Tax inspectors will check all programs in your office computers. And you won't be able to prove that they had no right to do so. And at the interrogation in the inspection, according to the tax authorities, it is necessary to answer all questions.
Judges on the side of the tax authorities
The Supreme Court of the Russian Federation in Ruling dated July 17, 2017 No. 302-KG17-8315 allowed tax authorities to inspect office computers employees during field inspections.The company, in which the inspectors checked all the programs installed on the working computers, considered that the inspector did not have the right to do so and went to court. But the Supreme Court sided with the inspection.
What judges relied on when allowing inspectors to inspect the contents of computers:
- in the Tax Code of the Russian Federation there is no list of items allowed for inspection. Not prohibited means allowed;
- computers may contain important information on taxes. This means that inspectors can inspect them without any separate permission.
Suspension of verification
Do not forget that inspectors do not have the right to inspect the territory or premises of the taxpayer during the suspension of an on-site tax audit.Tax authorities often suspend inspections to gain time. So, you have the right to simply not let them into the territory during this period.
The tax authorities also have no right to demand documents and conduct surveys during the suspension of the audit.
Remember that when you suspend the check, you must return the originals requested during the revision. True, with the exception of documents obtained during the seizure.
During the interrogation in the inspection it is impossible not to answer questions
All questions in the inspection will have to be answered. Otherwise, the employee summoned for interrogation will be fined. What is more important - not to answer or pay 3,000 rubles, is up to the taxpayer to decide.The story is like this. The shareholder of the company was summoned for questioning. At the inspection, he refused to answer one question, citing that it was not connected with taxes and concerned his personal life. The tax authorities fined him under Art. 128 of the Tax Code of the Russian Federation for 3,000 rubles.
The shareholder wrote a complaint to the Federal Tax Service, referring to the fact that he has the right not to testify against himself under Art. 51 of the Constitution.
The Federal Tax Service on the complaint issued a decision dated April 12, 2017 No. SA-4-9 / [email protected] The tax authorities decided that the shareholder was silent not for his own protection, but to hide information needed for a tax audit.
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An inspection from the tax office came to the Irkutsk pharmacy. When the inspectors began to dig into the computers and check what software was installed in them, the owners were outraged. They complained to the arbitration court, but he sided with the inspectors. The case reached the Supreme Court, which confirmed that everything was legal: documents are stored in the computer, but you cannot open them if you do not know what the software costs.
A computer is a means of creating and storing documents, respectively, an official of the tax authority,<…>the right to inspect a personal computer.<…>Inspection of a personal computer includes an inspection of the software installed on it, because<…>only in this way can one determine what tasks the computer solves.
Supreme Court
Details - in the Ruling of the Supreme Court N 302-KG17-8315
The court emphasized that the Tax Code does not specify in detail how to conduct an inspection, and there are no restrictions. If inspectors want to get into office computers during an on-site inspection, then this is according to the rules.
Why does this concern me?
If there is no gray accounting on your computer, this does not mean that the inspectors will not find anything criminal in it. During the check, they may stumble upon unlicensed software. Pirate "Photoshop" or "Office" is a violation of the law.
The tax inspectors themselves cannot initiate an administrative or criminal case against you - this is handled by the Investigative Committee. But the inspectors must report the crime there. Then serious consequences await you.
If the damage caused to software copyright holders is less than 50,000 rubles, the company will be fined from 30,000 rubles to 40,000 rubles. In addition, investigators can seize a computer with pirated software for up to four months.
6 years in prison - the maximum penalty for using pirated software
If the damage exceeds 50,000 rubles, then criminal liability occurs. You can get up to six years in prison for using pirated software.
We asked the lawyer who, in his experience, faces charges: the head of the enterprise or system administrator who installed unlicensed software on computers. Turns out it depends on a lot of factors. The basis of crime is intent. If the director had no intention (for example, he did not even know that the software is pirated), then the system administrator can be convicted. Or maybe directors. How the judge decides, how the investigator decides, what the prosecutor says - in neighboring courts the same cases can be handled differently.
The amount of damage is calculated based on the cost of licensed versions of programs. The price of "Microsoft Office" - from 24,000 rubles, "Windows" - from 5,500 rubles, "Adobe Photoshop" - from 24,000 rubles. Such a set of three pirated programs on one computer already draws on a criminal case.
What to do?
Use legal software, and everything will be fine.
Heads of organizations and accountants should be aware that, as part of the audit, FTS employees can not only request copies of documents, but also check the software and all files on the company's computers. Such actions of the inspectors were recognized as justified by the Supreme Court of the Russian Federation.
What happened?
The Supreme Court of the Russian Federation ruled ruling in case No. А19-916/2016, in which he refused to the taxpayer to recognize the actions of the Federal Tax Service as part of an on-site tax audit as illegal. The judges pointed out that during such an audit, the tax authorities can not only request copies of the necessary documents, but also search for them on their own, for example, in computers that are in the taxpayer's office.
Inspection of computers and verification of software does not violate the rights of the organization
As part of the on-site inspection, the inspectors of the Federal Tax Service requested copies of documents from the taxpayer organization. The organization asked for a delay, citing the large volume of documentation and the opportunity for reviewers to familiarize themselves with the originals of these documents during the course of the review. Specialists of the Federal Tax Service refused the taxpayer and inspected the premises of the organization. During the inspection, the tax authorities checked all items and documents in the office, and also got acquainted with software installed on the taxpayer's computers.
The organization considered the last action of the tax authorities illegal and went to court. The taxpayer pointed to the simultaneous presentation by the inspectors of two mutually exclusive requirements - to provide copies of documents and get acquainted with their originals. In addition, it is unreasonable to familiarize the inspectors with the software installed on the company's computers.
However, courts of all instances, including the Supreme Court of the Russian Federation, did not agree with this position of the organization and recognized the actions of the Federal Tax Service as legal. The judges explained that the inspection during the inspection of a personal computer includes familiarization with the software installed on it. After all, only in this way it is possible to establish what kind of tasks this or that computer solves. Such an inspection is in accordance with the requirements Article 92 of the Tax Code of the Russian Federation. The judges also noted that familiarization of the tax authorities with the original documents does not exclude their right to receive the relevant copies.
