The composition of financial statements is determined by law - this is a balance sheet (Form No. 1), a profit and loss statement (Form No. 2), appendices to them in Forms 3 - 6, an auditor's report (if the organization is subject to mandatory audit) and explanatory notes. However, small enterprises may not submit an explanatory note to the tax authorities if they are not subject to mandatory audit, as well as public organizations (clause 2 of Article 13 of the Law of November 21, 1996 No. 129-FZ “On Accounting”).

Every organization should not forget that on May 30, 2007, the Federal Tax Service of Russia, by order No. MM-3-06/333, approved the Concept of a planning system for on-site tax audits. Based on the published criteria for the risk of committing a tax offense, any taxpayer can assess their risks and, if desired, independently prevent or correct errors, as well as promptly explain the reasons for their occurrence. As follows from the Concept, if the results of the financial and economic activities of the organization meet the criteria, the inspector may recommend including such a taxpayer in the audit plan.

In first place in importance is such a criterion as the company's unprofitability.
An explanatory note can help avoid negative consequences if the value of this indicator is unfavorable. It should describe in detail the reasons for unprofitability and, most importantly, ways to improve the organization’s performance indicators.

Attention: losses

And do not forget that the validity of the expenses incurred must be documented.

New activity

Sales at a price below cost

E. Borisova
Material provided by the magazine "Practical Accounting"

Decide whether it is profitable for the company to show a loss.
Provide an explanation of why the company did not make a profit in this period.
Prepare for a losing commission.

Publication

Unprofitable reporting is always the subject of special attention of inspectors. At best, tax officials will limit themselves to asking for explanations of the reasons. But more often the consequences are more negative: a call to an unprofitable commission and an on-site inspection.

First, it is important to figure out whether to show the loss in the declaration or whether it is more profitable to hide it. If you nevertheless decide to submit a return without profit, then you need to prepare in advance for possible questions and requirements of the tax authorities.

Decide whether it is profitable for the company to show a loss

You summarize the financial year and discover that the company has made a loss. Probably the first thing you'll think about is hiding it. A positive tax base will save the organization from the prospect of commissions and on-site audits. But if you can document and justify expenses, is it really important to adjust the financial result? There are no safe maneuvers for distorting tax reporting. Each method has its own risks.

But if you still decide to adjust your reporting, carefully analyze the possible options. We need to find a way that will help increase revenues or reduce expenses of the organization with minimal risks. The most harmless option is to re-issue documents for expenses for a different period. Or, conversely, increase income and sign certificates for completed work from customers. Don't forget to check how the VAT amount will change in the reporting period. After all, you need to pay tax on additional sales. Only if you transfer expenses, then take into account the input VAT on them in another quarter.

Couldn't you reach an agreement with your counterparties? Consider other adjustment methods (see table).

Table. How to hide a loss on your tax return

The company can reduce the loss, provided that it accrued reserves during the reporting period. Write off their unused balance in the reporting period rather than carry it over to the next one. This will increase the company's non-operating income. To do this, in the accounting policy for the next year, fix the point that the company no longer creates reserves in tax accounting.

To hide losses, some companies recognize fictitious income. They enter into fictitious transactions with buyers and reflect income from a sale that never took place. The big disadvantage of this approach is that it distorts the company’s financial statements. There is a high probability that tax authorities will file claims against the organization’s counterparty if he writes off the costs of this transaction or accepts VAT as a deduction. And your company cannot avoid problems with inspectors if you write off such a bad debt from the buyer.

Another option to increase income is to sell the product with a return. The company ships products to a friendly counterparty at the end of the year, writes off its cost as expenses and recognizes income from sales. Next year, the buyer returns the product, and the company reflects it with the current date. The Tax Code allows you to correct errors in calculating the tax base in the current period if they led to excessive payment of tax (letter of the Ministry of Finance of Russia dated January 18, 2012 No. 03-03-06/4/1). A prerequisite for transferring expenses is the presence of profit in the period when the error was made. After all, if the company was at a loss, there is no question of paying tax at all. Returning goods will increase the organization's expenses by the amount of their sale to the buyer, and income by the amount of their cost.

Now let's look at ways that reduce losses by cutting costs. The company can carry forward the costs and take them into account in the next period. For example, put off documents confirming the consumption of paper for later. The familiar rule for correcting errors from the past will work here again. If due to an error the tax was overpaid, it can be corrected in the current period. But only if the company made a profit in the quarter with the error. Pay attention to what expenses you transfer - normalized for tax accounting purposes or not. For example, you decide to transfer expenses on advertising services to the next year. To completely protect yourself from tax claims, calculate whether these services fit into the standards of both the previous and current year.

Another popular way to hide a loss is to recognize part of the costs as deferred expenses. Such a mechanism is provided for in paragraph 1 of Article 272 of the Tax Code of the Russian Federation. If a company cannot establish a connection between expenses and specific income, then it distributes them between reporting periods independently. Such costs are taken into account in account 97 “Deferred expenses”. This method is often recommended by inspectors themselves to unprofitable companies in order to convince them to correct their statements. But here the inspectors forget that it is possible to extend the recognition of only those expenses that actually relate to the next reporting periods and are associated with generating income in the future. In other cases, the company must recognize the expense as a lump sum.

It is dangerous to use account 97 unjustifiably. When the company reflects such expenses in the future, inspectors can remove them and charge additional taxes with penalties and fines.

Sometimes companies hide losses by simply deleting expenses from the base. First of all, the accountant will exclude those expenses that he considers questionable from a tax point of view. But sometimes they get rid of legal expenses just to avoid inspection issues. In this case, the company forever deprives itself of the opportunity to recognize excluded expenses and overpays income tax. In addition, there is a constant difference between tax and accounting. After all, the organization excludes costs only from the tax base.

Adjust your tax accounting policies to your expected losses

If you expect that the company's reporting losses will last for a long time, review your tax accounting policies. First of all, refuse to accrue planned expenses - reserves. This will allow you to recognize only the actual costs that the company has incurred.

Do you use bonus depreciation and increasing factors? Give them up too. They accelerate the write-off of fixed assets, reducing current income taxes. On the contrary, it is better for a loss-making company to accrue depreciation in a slower manner. Establish in the accounting policy the right to apply reduction factors (clause 4 of Article 259.3 of the Tax Code of the Russian Federation).

Also review your cost allocation. Perhaps some of the indirect costs can be classified as direct. After all, these costs are not written off immediately, but only as revenue is recognized. Therefore, increasing the share of direct expenses will help the company reduce the resulting loss.

Provide an explanation of why the company did not make a profit in this period.

Let's say you decide not to hide the real state of affairs and submit your return at a loss. Inspectors will definitely check whether your company is using illegal methods to reduce taxes. Therefore, controllers often demand an explanation for the lack of profit. According to paragraph 3 of Article 88 of the Tax Code of the Russian Federation, an inspector has the right to request clarification during a desk audit of a loss-making declaration. Along with explanations, the company can submit supporting documents to the tax office. This is not necessary, but it is better to attach such documents to the explanations. After all, if the company explains the reasons for the loss and confirms them with documents, the likelihood of receiving an invitation to a commission will significantly decrease.

PARTICIPANT QUESTION
– We received a letter from the Federal Tax Service asking us to explain the loss. What happens if we don't answer it?

– The law does not provide any sanctions for the company and the manager in this case. In rare cases, officials still issue a fine, but it can easily be challenged in court. However, I do not recommend ignoring such a request. Even under the condition that there will be no sanctions from the inspectors. Failure to provide an explanation will definitely draw unnecessary attention to the company.

Prepare your explanations in any form. The main thing is to clearly explain the reason for the negative financial result. Tell us also about what measures are being taken to make a profit in the future.

In each case, the reasons for the loss are individual. For example, your organization is new to the market. Explain to the tax authorities that the company has just started its activities and the product is new to customers. Therefore, sales revenue is still minimal. And most of the costs are associated with advertising and marketing activities that will help develop the market. Or your company is just getting ready to start production and is spending large sums on the purchase of equipment. Support your arguments with a breakdown of income and expenses.

If the company has been in business for a long time, describe why revenue decreased or expenses increased. The decrease in revenue can be explained by a decrease in sales volumes or dumping policies. And the increase in costs is due to the development of new production facilities, repair or modernization of equipment. Write that a positive economic effect from today's spending is expected in the future.

In the explanations for inspectors, indicate the sources of financing for the company's activities. This could be: loans, credits or financial assistance from owners. Tax authorities are always interested in how a loss-making organization lives.

Typically, tax officials are satisfied with detailed and reasoned explanations. But if a company is at a loss for more than two reporting periods in a row, there is a chance that it will receive an invitation to a commission. And when inspectors have an unspoken intention to ensure additional revenues to the budget, they can even call an organization that has received a loss for the first time or the amount of it is very small.

Prepare for a losing commission

Before inviting a company to a commission, tax authorities will send an information letter. In it they will propose to reduce the loss, send adjustments, independently assess and eliminate tax risks according to twelve criteria from the Concept, approved by order of the Federal Tax Service of Russia dated May 30, 2007. No. MM-3-06/333. The inspectors will send this letter in advance - a month before the expected date of the meeting. And you will be given 10 working days to prepare a response. Such regulations were established by letter of the Federal Tax Service of the Russian Federation dated July 17, 2013 No. AS-4-2/12722.

If the inspectors do not receive a reasoned answer, they will call the company to a commission. They must do this by written notification in the form approved by order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338. If you receive such a notice, do not leave it unanswered. Otherwise, the tax authorities will hold the director of the company accountable (Part 1, Article 19.4 of the Code of Administrative Offenses of the Russian Federation).

Usually the manager is called to the commission, but instead an accountant or other authorized person can represent the interests of the company. The main thing is that the representative can have a constructive conversation with tax authorities and answer their questions about the company. You need to take your passport and power of attorney with you.

What if neither you nor the director can come to the commission? Ask the tax authorities to reschedule the meeting. Call the inspection, or better yet, send a letter indicating a valid reason. Most likely, the inspectors will reschedule the meeting.

So, the commission date has been set. If the company conducts real business and you can explain the reason for the loss, there is no need to worry before the meeting. Is the excitement too great? Bring a colleague with you to help. For example, a lawyer or an accounting employee.

The meeting will begin with questions about what the company does and how long it has been in business. Be prepared to list the organization's main customers and suppliers, legal and physical address, and sources of funding. One of the tasks of tax specialists at such commissions is to find out whether your company is a shell company. You will also be required to explain the reasons for the loss and talk about the measures that management is taking to correct the situation. Do not forget to collect and take with you the documents that the inspectors indicated in the invitation letter.

Most likely, tax authorities will insist that you adjust your reporting and show profit. But they have no right to demand this. The company decides whether to leave losses or not.

Following the meeting, the inspectors will draw up a protocol with their recommendations. The tax authorities are required to familiarize you with this document and give you a copy. After the commission, inspectors will continue monitoring the organization. If the company's tax burden does not increase over time, there is a possibility of being included in the on-site audit plan.

E. Dirkova, General Director of BUSINESS ACCOUNTANT LLC

The accountant always opens the envelope from the tax office with a sinking heart: “Well, thank God, it’s not an on-site audit!” However, if a company reports losses over several tax periods, the letter may well foreshadow such an audit. Tax authorities usually require justification for “unprofitable” reporting. In such a situation, it is not enough to simply prepare a duty “unsubscribe”. We advise you to consider options for further developments.

Let us recall that the “dangers of unprofitable reporting” of a company are warned by the Concept of the planning system for on-site tax audits, approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@ (hereinafter referred to as the Concept). If a company is asked to explain the reasons for losses or to appear before a commission to review the validity of losses, then it is not recommended to ignore such “signs of attention.”

Thus, one of the risk factors for the company is officially referred to as “failure by the taxpayer to provide explanations to the notification of the tax authority about the identification of discrepancies in performance indicators.”

Justify your expenses!

So, the company received a requirement to submit documents in the form of explanations confirming the reasons for the loss based on the results of financial and economic activities. Such a document does not exist in financial and economic activities, so you have to create it yourself. Additionally, tax authorities can request an analytical note from the chief accountant on the legality of including expenses incurred in the tax base. What are these tax demands based on?

Please note that within the framework of a desk audit, these actions are not entirely legal. As follows from paragraph 3 of Article 88 of the Tax Code, requests for explanations can be sent only in cases where the following are identified:

• errors in the tax return;
• contradictions between the information contained in the submitted documents;
• discrepancies between the information provided by the taxpayer and the information available to the tax authority and received by it during tax control.

But information about the latter basis is of a proprietary nature and remains closed to the taxpayer. Therefore, he has no choice but to assume that the inspector does not believe in the company’s losses.

Do you need profit?

When determining the level of profitability of a company, tax authorities are guided by industry average indicators of financial and economic activity. These data are presented in the document “Publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits dated June 25, 2007.” (prepared on the basis of the Concept).

Therefore, firms should carry out their own calculations of their “safe” tax burden and profitability. Unfortunately, this approach of officials is reminiscent of taxation based on the principle of imputed income. Meanwhile, the requirement for business profitability is laid down in civil legislation itself.

Civil law is based on the fact that entrepreneurial activity is aimed at systematically generating profit (Clause 1, Article 2 of the Civil Code of the Russian Federation). But this principle still cannot be considered universal for Russian reality. He “works” in big business for foreign companies whose shares are traded on the stock market. Profit for such firms is vital in a shareholder environment because it provides dividends to shareholders. But small and medium-sized businesses do not set themselves such tasks.

Undoubtedly, profits not withdrawn by the company's owners contribute to business development. But not everyone can and should be developed to the level of a major taxpayer: prospects depend both on the field of activity and on the personal qualities of the leader.

In a situation where the director of a company is its founder, it is more profitable for him to increase his salary than to pay himself dividends (due to the regressive UST scale). In practice, it turns out that management often has no economic interest in profit, and it is a purely fiscal category.

Getting rid of losses

A legal entity is characterized by its separate property (Clause 1, Article 48 of the Civil Code of the Russian Federation). Therefore, it is not able to carry out unprofitable activities for a long time. Otherwise, an unprofitable company can only survive within a successful holding company or serve as a source of illegal income for its management. For these reasons, tax authorities will begin to look for related transactions and fictitious expenses. Note that today the technologies for such “searches” have been sufficiently developed.

Systematic losses lead to a decrease in such an important financial indicator as the value of net assets. As a rule, it coincides with the amount of equity capital (Section III of the balance sheet). And if the value of net assets turns out to be less than the minimum amount of authorized capital, then the company is subject to liquidation due to financial insolvency (Clause 3, Article 20 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”).

In this case, a claim for liquidation may be filed with the court (Clause 11, Article 7 of the Federal Law of March 21, 1991 No. 943-1 “On the Tax Authorities of the Russian Federation”). An example of such an arbitration case is the resolution of the Federal Antimonopoly Service of the Moscow District dated December 15, 2004, December 9, 2004 No. KG-A40/11372-04.

It turns out that losses threaten the very existence of the company.

We act according to the situation

If in accounting a company must reflect all expenses without exception, then in tax accounting there is no such obligation. Expenses for tax purposes are rather the right of the taxpayer (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53). Therefore, a prudent accountant may “ignore” problematic expenses when calculating the tax base.

For example, it is not at all necessary for a construction company to reflect the costs of consulting and intermediary services when obtaining a license. Moreover, no one provides transcripts of the contents of such services in acts worth about 150,000 rubles.

But inspectors will look favorably on the costs of preparing and developing new production facilities (subclause 34, clause 1, article 264 of the Tax Code of the Russian Federation). In investment activities, tax losses are explained by the fact that not all costs are included in the cost of fixed assets. An example of this is interest on loans and borrowings attracted when creating an investment asset.

Of course, the explanatory note for the Federal Tax Service on the reasons for the loss depends on the specific conditions of the company’s activities (see the document on the previous page). But the main “alibi” for an organization is the presence of a business plan to get out of an unfavorable financial situation.

document

Explanations confirming the reasons for the loss
based on the results of financial and economic activities
LLC "PERSPECTIVE" for 9 months of 2007 in the amount of 43,737 rubles

The type of activity of PERSPECTIVA LLC is the provision of legal services.

The income tax loss for 9 months of 2007 was formed due to the excess of the Company's expenses over its income.

Recognized income and expenses comply with the criteria of Chapter 25 of the Tax Code and are confirmed by tax accounting data. The excess of expenses over income is not an accidental result, but the result of a targeted investment policy of the sole founder of the Company, G.L. Kuznetsov. Financing of the prevailing expenses of the Company is carried out from the personal funds of Kuznetsov G.L. - by providing interest-free loans, loan forgiveness and gratuitous cash assistance. This path was chosen as an alternative to a one-time increase in the authorized capital.

The company has a business plan for long-term development, according to which it expects to make a profit from the second half of 2008.

Personal funds of Kuznetsov G.L., aimed at the development of the Company, have official origin and other sources than PERSPECTIVE LLC.

Analytical note on the legality of inclusion
expenses incurred to reduce the tax base
on income tax for 9 months of 2007

An explanation for losses must be given to the tax service if a corresponding requirement has been received from this supervisory authority.

Why write an explanation?

Quite often, tax specialists have various questions based on the results of reports submitted by a tax agent. In such situations, inspectors send a letter to the organization asking for clarification. Most often, problems arise due to any contradictions, inaccuracies and errors identified in the declarations, inconsistencies between the data available in the tax and indicated in the reporting documentation of the enterprise, as well as due to the lack of profit based on the results of work in the reporting period, and even less especially with obvious losses.

FILES

The latter raises well-founded doubts among tax authorities, since the main purpose of any company is to extract benefits, and if there is no profit based on the results of the submitted declaration, then this may indicate attempts to hide income to evade taxes, which is especially important in case of systematic losses.

We should not forget that income tax is one of the main sources of budget formation, which means that tax authorities monitor transfers in this tax area especially closely.

What can lead to losses

Lack of income and losses of organizations is not such a rare occurrence as it might seem to an uninitiated person. They can be associated with a variety of circumstances. They can be caused by a general financial crisis, a decline in demand for products (including due to seasonal factors), an excess of expenses over profits (for example, when purchasing expensive equipment, major repair work, etc.), problems in production , ineffective company management, re-profiling of the enterprise and development of new markets and many other reasons.

How an organization is verified

In order to check and control a particular enterprise that has raised doubts about its financial and tax “purity,” the tax services create special, so-called “loss commissions.”

In accordance with the law, their main task is to stimulate organizations to independently understand the causes of losses and prevent their further occurrence.

The commission pays special attention to those companies that have shown no profit in their declarations over the previous two years, as well as those that make too little tax deductions (tax specialists have average figures for income and tax payments in a particular industry area of ​​business) .

To achieve their goals, employees of the loss-making commission not only write demands for explanations of losses in the organization, but also, in particularly dubious situations, call the management of the companies (usually the director and chief accountant) “on the carpet.”

Is it possible not to provide explanations for losses?

Explanations about losses must be given. Moreover, this should be done in writing and no later than five days after receiving the corresponding request from the tax authority.

Despite the fact that no punishment is provided for the lack of explanations in the legislation of the Russian Federation, ignoring letters from tax officials can have very dire consequences for the organization. In particular, additional taxes may be assessed or any administrative measures may be taken. But the most unpleasant thing, which is also quite possible, is that the lack of a logical and clear picture of the company’s financial activities can lead to an on-site tax audit, during which all documentation for the last three years will be “shooked up,” and this is fraught with completely different, more serious sanctions. It has been noticed that tax authorities are very willing to include companies with regular losses in the schedule of on-site inspections.

How to write an explanation of losses

The explanation can be written in any form. The main thing is that the structure of the document meets the norms and rules for drawing up business documentation, and the text of the explanatory note itself is clear, understandable and fully reflects the real state of affairs at the enterprise.

If some events characteristic of the entire economy led to losses: for example, a crisis, then sometimes it is enough to simply formulate this correctly, pointing out a decline in demand and a forced reduction in prices (attaching reports, price lists and other documents indicating this to the explanation). But if the reason for the lack of profit was, for example, large expenses of the taxpayer with a simultaneous decrease in sales, then this information must be supported by more serious documents (contracts and agreements on termination of contracts, acts, tax extracts, etc.). If possible, you should also provide a detailed report of expenses and income.

If losses arose as a result of any emergency situations (fires, floods, thefts, etc.), then certificates from the relevant government agencies (police, Ministry of Emergency Situations, management company, etc.) must be attached to the explanation.

The document will also include a description of the measures that the organization’s employees are taking to prevent further losses (they will indicate the desire of the enterprise management to correct the unfavorable situation).

It should be noted that large companies’ explanations sometimes reach several dozen pages, which is understandable, since the more accurate the explanatory note, the fewer claims from tax authorities may appear in the future and the lower the likelihood of an on-site tax audit.

How to fill out a form

You can write the document by hand, but it is better to print it on a computer. To print, it is permissible to take a regular sheet of paper or a form with details and the company logo. The explanation must be made in at least two copies, one of which should be sent to the destination, the second one should be kept with you. Information about the note must be entered in a special accounting journal - all you need to do is put its number and date here.

Who should sign the document

The explanation is written on behalf of the head of the organization or an employee temporarily in his place. Accordingly, it is the director who must sign his autograph on the letter. It would be good if the chief accountant of the enterprise signed the document as the financially responsible person who prepares financial and tax reporting.

How to send an explanation

If a company submits reports to the tax service electronically, then explanations must be submitted in the same format. However, if the tax agent uses the right to submit reporting documentation on paper, then it is allowed to generate an explanatory note in “live form”. Then it can be taken to the tax office in person, handed over to a representative (who has the appropriate power of attorney) or sent by mail.

If the tax office has sent you a request to provide explanations for losses, take into account the above recommendations and look at the example - based on them you can easily write your own document.

1. First, in the explanatory note you need to indicate the addressee (on the right or left at the top of the form), i.e. the tax office where this letter will be sent.
2. Then the sender is indicated: the name of the company, its details and contact information,
3. After that, go to the main section. First of all, provide here a link to the request for clarification received from the tax office.
4. Next, describe in as much detail as possible the circumstances in connection with which the losses occurred.
5. After that, move on to explanations in numbers. Here you need to provide data on income and expenses, as well as provide links to documentary evidence (indicating their name, number and date).
6. After the explanatory note has been generated, do not forget to sign it.

CRIB

A.Yu. Nikitin,
accounting and tax expert

How to prepare explanations of losses for the Federal Tax Service

When tax authorities may require clarification

During a desk audit of a declaration in which the amount of loss is stated, the inspection has the right to demand explanations justifying the amount of such loss A clause 3 art. 88 Tax Code of the Russian Federation.

Attention

According to the rules established by the Federal Tax Service itself, “unprofitable” declarations can become a reason for an on-site inspection only if they are submitted for 2 years in a row, plus the loss is declared in the declarations for the reporting periods of the current of the year clause 2 of the Publicly Available Risk Assessment Criteria, approved. By Order of the Federal Tax Service dated May 30, 2007 No. MM-3-06/333@; Letter of the Federal Tax Service dated July 17, 2013 No. AS-4-2/12722. But in practice, tax officials are beginning to threaten to include on-site audits earlier in the plan.

Sometimes this is understood this way: the Federal Tax Service can request clarification during a desk audit only of the declaration for the period in which the loss occurred. But this is not true. After all, the company can carry the loss into the future e clause 1 art. 283 Tax Code of the Russian Federation. It turns out that tax authorities have the right to demand an explanation of the losses of previous years declared in the declaration for the reporting period or for the year in which the profit was made. That is, they can request clarification as long as the company reduces profit by the amount of the loss it once received. And it's legal O Resolution 1 of the AAS dated November 5, 2015 No. A11-372/2015.

Tax authorities can also ask for clarification when checking an updated declaration, in which either a loss is declared for the first time, or it has been increased compared to the initial declaration.

Our readers report that they are already receiving requests from tax authorities to provide explanations for “unprofitable” declarations for 2016. For example, in a telephone conversation with one of the readers, inspectors stated that they did not need declarations with a loss, and threatened with an on-site audit if the company did not will provide an update with the tax due. And they even promised that if such a clarification was submitted, they would not find fault with the discrepancies between the declaration and the financial statements.

Advice

If you really made a mistake in the declaration, then you can not provide an explanation, but immediately submit an updated declaration Yu clause 1 art. 129.1 Tax Code of the Russian Federation. This will allow you to avoid a fine for incomplete payment of tax, provided that the arrears and penalties are paid in advance th subp. 1 clause 4 art. 81, clause 9.1 art. 88 Tax Code of the Russian Federation.

How to provide explanations

To taxpayers who file returns under the TKS, the inspectorate will send a request to provide an explanation th Appendix No. 1 to the Order of the Federal Tax Service dated 05/08/2015 No. ММВ-7-2/189@ electronic. The company must, within 6 working days from the date of sending the request by the tax authorities, send them an electronic receipt of acceptance of the document A clause 5.1 art. 23 Tax Code of the Russian Federation; clause 14 of the Procedure, approved. By Order of the Federal Tax Service dated April 15, 2015 No. ММВ-7-2/149@. If this is not done, tax authorities may suspend transactions on bank accounts. m subp. 2 p. 3 art. 76 Tax Code of the Russian Federation.

In this case, the explanations themselves can be submitted to the inspectorate either on paper or via TKS in the form of a scanned copy of the paper explanations or in the form of a file signed with a qualified electronic signature Yu clause 3 art. 88 Tax Code of the Russian Federation. You can check with the inspectorate which option suits them best.

The company has 5 working days from the date of receipt of the request to prepare an explanation of the company’s loss. I clause 6 art. 6.1, paragraph 3 of Art. 88 Tax Code of the Russian Federation. If the company has received a request to provide clarifications on the TKS, then this period is counted from the day the receipt of acceptance of the document is sent to the tax authorities.

There is no special form for explanations of losses, so they can be prepared in any form.

Discuss with the manager

Sometimes in practice, tax authorities require a detailed description of the organization’s activities, a breakdown of income and expenses, an explanation of the reasons for the occurrence of receivables and payables, submission of extracts from tax accounting registers and accounting policies, information about concluded agreements and the activities that the company will carry out in order to overcome the current situation. situations, predict income tax payments by the end of the year, etc. But you can decide for yourself whether to follow the lead of the tax authorities and whether to comply with their requirements that go beyond the limits established by law.

Along with explanations, the company has the right to submit extracts from accounting and (or) tax accounting registers, primary documents confirming the amount of losses A clause 4 art. 88 Tax Code of the Russian Federation. But the tax authorities have no right to demand them from you, except in the case where an adjustment with an increased amount of loss is filed after 2 years from the date established for filing the initial declaration And clause 8.3 art. 88 Tax Code of the Russian Federation.

For example, an updated declaration for 2014 with an increased amount of loss was filed in April 2017. Then auditors may require both extracts from accounting registers and primary documentation on transactions.

What to write about in the explanations

The mere presence of a loss does not indicate an understatement of the tax base. Indeed, for tax purposes, a company can recognize any documented and economically justified expenses s Art. 252 Tax Code of the Russian Federation.

And the reasons that the company's expenses exceeded its income can be anything. For example:

conducting business at the initial stage or developing a new type of activity/new market (for example, a branch is opened in another region, which required significant financial investments);

falling demand for products in times of crisis and high competition in the market;

reduction in prices for products with expiring dates, unsold seasonal goods (clothing, shoes, etc.);

refusal of buyers from transactions, termination of contracts with suppliers, resulting in a decrease in sales and purchase volumes;

acquisition of expensive equipment, vehicles, real estate, application of depreciation bonus on them;

repair of own or rented premises (if, under the terms of the contract, the tenant carries out routine repairs for his own check clause 2 art. 260 Tax Code of the Russian Federation);

emergencies, accidents (fire, flood), etc.

We tell the manager

If a company has just started operating, then it is natural to have expenses in the absence of income. And the tax authorities, most likely, will have no complaints against such companies e Letter of the Ministry of Finance dated April 21, 2010 No. 03-03-06/1/279. At the same time, if, for example, a company was going to open a branch, rented premises for this, hired employees, but the opening for some reason did not take place, inspectors may consider the expenses unreasonable And Letter from the Federal Tax Service for Moscow dated January 11, 2012 No. 16-15/000705@.

A letter of explanation can be written something like this.

In the Federal Tax Service of Russia in Noginsk
Moscow region
from Carmen LLC, INN/KPP 5031543286/503101001,
contact person: gl. accountant L.I. Independent,
tel.: +7-496-514-17-24

Ref. No. 25 from 02/21/2017

Explanations for the income tax return for 9 months of 2016

In response to your request No. 08-17/02987 dated 02/15/2017 for the provision of explanations regarding the reflection of losses in the income tax return for 9 months of 2016, we report the following.

The company carried out an analysis of the results of commercial activities, as well as tax reporting for 9 months of 2016. The analysis showed that the losses are temporary and associated with a decrease in income and an increase in the company’s costs. The organization did not allow incomplete reflection of information or errors leading to an understatement of the tax base for profits. Therefore, there is no reason to submit an updated declaration in accordance with paragraph 1 of Art. 81 Tax Code of the Russian Federation.

For 9 months of 2016, the company’s revenue from the sale of products amounted to 43.8 million rubles, expenses taken into account for tax purposes amounted to 48.0 million rubles, including:
- material costs - 23.6 million rubles;
- labor costs - 6.4 million rubles;
- the amount of accrued depreciation and expenses in the form of depreciation bonus - 8.7 million rubles;
- other expenses - 9.3 million rubles.

Thus, the amount of the resulting loss amounted to 4.2 million rubles. The main causes of losses are as follows.

1. Fall in consumer demand due to the crisis and high competition in the market. For this reason, the company was forced to lower selling prices for women's clothing, which makes up the majority of the assortment. As a result, some of the goods were sold at a minimum trade markup or at cost. Compared to the same period in 2015, sales revenue decreased by 14%.

2. Increase in expenses in the current period due to repairs in the rented store premises at the address: Noginsk, st. 3rd Internationala, 76. In accordance with the terms of the lease agreement, the tenant carries out current repairs at his own expense. In addition, during the renovation (from May 15 to July 31), retail space was reduced.

3. Purchase of warehouse space at the address: Noginsk, st. Rabochaya, 64. The facility was put into operation on August 1, 2016, in accordance with clause 9 of Art. 258 of the Tax Code of the Russian Federation applied a depreciation bonus in the amount of 10% of the original cost.

Thus, the excess of expenses over income is caused by objective reasons. In order to overcome the current situation, it is planned in 2017 to develop a new pricing policy, expand the range, and search for new suppliers. In addition, the management of Carmen LLC approved a plan to reduce the organization’s expenses in 2017. At the end of 2017, the company plans to make a profit.

Applications:
1) report of the marketing department on the dynamics of market prices for goods sold - on 3 sheets;
2) copies of the contract with Versal LLC for repair work dated 04/29/2016 No. 34/2, the acceptance certificate for the work performed dated 07/31/2016;
3) a copy of the purchase and sale agreement for non-residential premises dated 07/05/2016 No. 10/16;
4) the marketing policy of the company for 2017, approved by order No. 5-r dated January 23, 2017.

In the explanations, you can show the dynamics of income and expenses, if the last year was more successful for the company, or decipher some items of expenses, due to which the loss was mainly formed. But there is no need to go into too much detail about each figure. Do not promise the tax authorities that you will receive a profit within a specific time frame, because if these promises are not fulfilled, you will most likely receive new letters demanding that you submit an update on the tax increase.

What are the dangers of artificially increasing the tax base?

It happens that a company follows the lead of inspectors and excludes some expenses in order to obtain a positive tax base for profits. But if you are able to justify the amount of loss in the explanations, then it is necessary to declare it. You should not distort reporting at the request of inspectors. After all, you will do this to your own detriment.

Firstly, by submitting a clarification, you will essentially increase the period of the desk audit, since it will begin again O clause 9.1 art. 88 Tax Code of the Russian Federation. Inspectors will have more time to find violations.

Secondly, you will not be able to carry forward a loss that you do not declare in your return, and in subsequent years you will pay a higher tax amount e clause 1 art. 54 Tax Code of the Russian Federation; Resolution of the AS SZO dated November 21, 2016 No. Ф07-10207/2016.

Thirdly, you can take into account excluded expenses in the current tax period only if you make a profit and the tax payable to the budget is calculated according to the declaration. Otherwise, you will again have to submit an update for the period in which you removed these expenses at the request of the tax authorities th Letters of the Ministry of Finance dated April 13, 2016 No. 03-03-06/2/21034, dated July 22, 2015 No. 03-02-07/1/42067. If by that time 2 years have passed after the deadline for filing the primary return, the tax authorities will require a primary loss claim. at clause 8.3 art. 88 Tax Code of the Russian Federation.

Advice

When the company begins to make a profit, it is better to transfer the loss in parts so that the declaration results in an additional tax payment, albeit in a small amount. Then the tax authorities will not have any questions for the organization.

Consequences of failure to provide explanations

Consequence 1. From this year, for failure to provide explanations provided for in paragraph 3 of Art. 88 of the Tax Code of the Russian Federation, a fine of 5,000 rubles may be issued. In the event of a repeated violation within a calendar year, the fine will be 20,000 rub. pp. 1, 2 tbsp. 129.1 Tax Code of the Russian Federation

Consequence 2. Directors may call a “unprofitable” commission to a meeting. And, even if a large loss is declared based on the results of only one year, it is possible that tax authorities will consider the company as a candidate for inclusion in the on-site audit plan.

Consequence 3. It is unlikely, but still possible, that the inspectorate will try to exclude any expenses from the tax base for profits and will charge additional tax, for example, based on the results of counter audits. And since the tax authorities have already notified the company that there are claims to the declaration, sending a request for explanations, it is possible that one fine day you will simply be handed a desk audit report with additional charges And Letter of the Federal Tax Service dated July 16, 2013 No. AS-4-2/12705 (clause 2.7).

Advice

It is better to provide explanations, even if you did not meet the allotted five-day deadline. This can be done right up to the review of the audit materials. In this case, you will have to pay a fine, but if the tax authorities’ explanations are satisfied, there will be no additional assessments for the audit.

If documents confirming the loss are lost, do not panic and try to challenge the legality of sending you a request for explanations - this is pointless O Resolution 10 AAS dated 02.02.2017 No. 10AP-18432/2016. After all, you are not required to provide a primary report; you just need to explain under what circumstances the loss occurred. If this is done correctly, it is possible that it will never come to an on-site inspection. But if you actively refuse to explain the loss, tax authorities may suspect that you simply have nothing to support the figures stated in the declaration. Please note that if the amount of the loss is confirmed by a previous on-site inspection and the primary documents are lost after that, the inspection does not have the right to refuse the company to transfer the balance of such loss to the future e Resolution of the AS UO dated February 28, 2017 No. F09-182/17.

There are ways to prevent a loss from appearing in reporting, but almost all of them have their own risks. Of course, there are safe options. For example, a company whose sales depend on the time of year may reconsider the distribution of expenses into direct and indirect so that more expenses can be written off as its products are sold. V Letter of the Ministry of Finance dated June 10, 2011 No. 03-03-07/21. But it is better when the organization can justify the amount of the loss received without distorting the reporting or making changes to the accounting policies.