Екатерина Уцына
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Налоговая инспекция провела выездную проверку, в ходе которой обнаружила, что налогоплательщик применяет схему уклонения от уплаты налогов. Дело в том, что он контролировал не только производство, транспортировку, но и продажу товара. Приобретал этот товар сам же налогоплательщик. Как выяснили проверяющие, фактически товар был произведен в Китае и завозился в Калининградскую область. Учитывая статус региона в качестве свободной экономической зоны, уплачивать НДС с импортного товара не надо было.
Что касается производства, то на калининградских заводах, подконтрольных налогоплательщику, происходила лишь маркировка товара, наклейка этикеток и упаковка. Заводы, в свою очередь, применяли льготу по НДС за счет использования труда инвалидов (пп. 2 п. 3 ст. 149 Налогового кодекса). Готовый же товар реализовывался через цепочку фирм-однодневок организациям, также подконтрольным налогоплательщику. Последние, в свою очередь, через технические организации продавали его проверяемой компании. В процессе движения по этой цепочке товар из необлагаемого НДС становился облагаемым, при этом техническими организациями налог в бюджет фактически не уплачивался. Что не мешало налогоплательщику заявлять НДС к вычету. Кроме того росла и цена товара, позволяя занижать налогоплательщику налог на прибыль.
О том, можно ли применять вычет по НДС при импорте товара, если он используется в рамках предпринимательской деятельности, читайте в материале «Налоговые вычеты по НДС при импорте (ввозе товаров в РФ)» в «Энциклопедии решений. Налоги и взносы». Получите полный доступ на 3 дня бесплатно!
Проведя налоговую проверку, инспекторы доначислили НДС и налог на прибыль, а также пени и штраф на неуплаченнную сумму налога (п. 3 ст. 122 НК РФ). Основанием для такого решения послужило то, что налогоплательщик и подконтрольные ему организации были взаимозависимыми лицами. Кроме того, товар по факту поступал напрямую к проверяемой компании, минуя подставные организации, целью создания которых было увеличение цены товара и НДС. Именно это и позволило получить необоснованную налоговую выгоду путем завышения расходов и применения налоговых вычетов по НДС (ст. 171, ст. 172 НК РФ).
Суды трех инстанций поддержали позицию проверяющих. Так, ВС РФ отказал организации в передаче кассационной жалобы для дальнейшего рассмотрения, подтвердив, что формальный документооборот в данном случае свидетельствует о получении необоснованной налоговой выгоды (определение ВС РФ от 28 мая 2019 г. № 305-ЭС19-4083).
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