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Elena Ashihmina and her husband worked at the bearings factory. He is behind the machine, she is an economist. In the 90th they created their own small business and started providing spare parts for the country's businesses – MTZ, MAZ, Pinskdrev, Granite and many other companies were their customers. They worked, earned and paid taxes, but four years ago, the life of the company stopped …
We wrote about Elena a year ago, in March . Then she told me how she wanted to make wooden playgrounds and tried to remove the pay machine from the factory. Now the problems of the small family business are much more serious. With regard to them with the company's husband, a bankruptcy case has been initiated, now he is at the stage of bankruptcy proceedings. How is it after 17 years of successful work? The woman is always looking for answers to her questions.
"We began to understand and came to the conclusion that the tax did not have the right to recognize our bills as invalid"
– – explains Elena and shows a pile of papers weighing 15 kilograms. For four years she has been trying to save the business that she and her husband have had since 1996.
– The IRS has checked our freight bills. And suddenly recognized a part of them, especially the invoices of six counterparties, invalid. Although they were properly executed, they were paid taxes and so on, – sued the entrepreneur. – According to the law, if the bills are found invalid, the value-added tax indicated therein is not deductible and the tax administration has declared that we must pay both the VAT and income tax. But this is not our case.
You see, the goods on these bills of lading were actually shipped, their payment was received and the taxes were paid on time – this is stated in the tax audit report. Which also confirms the validity of the invoices. And this is even directly indicated in the act of tax audit
– In general, in our case, only the court could have recognized the validity or invalidity of a letter from car, but only in the presence of motives. In other words, if the tax authorities suspected that our bills were invalid, they had to go to court. Such a decision of the court was not, – explains Elena. – The website of the Ministry of Taxes and Taxes contains a list of companies with an increased risk of doing business, including pseudo-entrepreneurial structures, whose activities are declared illegal by the court. We have checked and verified all our counterparties on this list. At the time we were working with them, and at the time of the tax audit, our counterparties were not on this list. In other words, these companies were in force and our documents with them were valid. We verified this and made our own statement that our audit revealed that six of the counterparties we dealt with are not on the CMH list
– To confirm that our counterparties do not include did not carry out illegal activities, we ordered extracts from the single register of legal persons and intellectual property. When we received them, we found that our counterparties were generally excluded from the register and closed due to bankruptcy. But it was after the completion of the transactions with us. In itself, bankruptcy is not punishable and legal. Later, we learned that the counterparties conducted inspections of the State Control Committee, but the controls resulted in a refusal to open a criminal case. Some companies have paid fines. It turned out that these companies were established by people who did not really manage them, but who transferred control to others. Yes, being founders, they did not sign on our waybills, but this is not prohibited by section 25 of the Labor Code. In general, despite inspections and fines, counterparties were not recognized as pseudo-entrepreneurial structures. In fact, our bills were not invalid.
"I learned that this ploy worked not only with me"
In August 2014, businessmen attacked the Minsk Economic Court. act – invalid. The court denied the contractors, referring to the fact that only the decision of the tax authorities, and not their actions, can be called.
– I still wonder why it is not possible to appeal tax actions, Then the contractors tried to appeal against the decision made on the basis of the audit report , appealed to the public prosecutor's office and the higher courts.
And by that decision the tax forced the company to pay 25,300 taxes and 14,800 penalties to the budget just over 40 thousand. At the same time, she also seized the property of the organization that was stored in the warehouse.
– The money in the accounts was stopped immediately after the establishment of the audit report. In fact, we could not work then, explains Elena. – The money was written off from the settlement accounts, but they were not enough to fully cover the debt.
– Later I learned that this system was working not only with me. Only in Minsk for the first nine months of 2014, about 400 companies were brought to justice in the same way. Everyone had a similar plan to conduct inspections, imagine? – Elena is surprised. – We have, of course, fought. But all the courts have lost. Although I do not really understand why. The lawyers, the lawyers we consulted with, all acknowledged that in our case, the tax audit that our invoices are invalid is illegal. We tried to appeal the decision to the Supreme Court, we appealed to the Attorney General's office, but we were denied.
In January 2015, the tax decision came into effect. At that time, our company remained only 130 million rubles unnamed (13 thousand denominated). But the company could not start working even with such a small debt.
More interesting. Elena says that the company's warehouses at that time had goods worth twice as much as pre-tax debt. It seems like it's easier – sell everything, save money and pay off debts. But there. The arrest did not withdraw the tax, but asked the court to recover the rest.
– The court sided with the tax authorities. But the court's decision looks like "recovering the debt due to the property named in the inventory". This legal standard is in the Tax Code. But here the order and conditions of such a collection are not disclosed: there is no mechanism prescribed in law, how should this be done. The Civil Code does not contain a legal category such as the recovery of debts to the detriment of the debtor's property. There, the order and conditions of "foreclosure of debts towards the property of the debtor" are prescribed. These legal standards are not similar or similar. And in my opinion, because of this white piece in the legal way to collect debts to the budget at the expense of the property of the debtor is absolutely impossible. Until the issue is resolved.
The tax authorities, having received such a decision, referred to the previous decree of the President No. 559 and the current Decree No. 63. Although these decrees are intended only for regulate the procedure for the sale of confiscated property or otherwise entered the property of the state. In our case, these decrees would have been effective only if the bailiff could not sell our products and made the decision to convert the property into state revenue. As a result, in practice we were asked to consent voluntarily to transfer the goods for sale to the Vostochny Trading House, – it continues. – By law, we were not obliged to do so and we did not agree with such requirements. Many will say, they say, well, and why, quickly pay back – quickly start a business. But in fact there are nuances. First of all, Vostochny's trading house does not specialize in the sale of hydraulic machine tools. Secondly, when selling goods as part of the forfeiture because of the regular monthly mark-ups applied, the goods could be sold. And there was a high probability that the goods would be sold, and we will stay and have the state. In general, all the fiscal year 2016 tried to force us to voluntarily transfer the goods to the Vostochny trading house, and we gave the tax authorities access to the products and showed that they were safe and of good appearance.
"Three years we were not allowed to sell"
– The story continued with the fact that in 2016, tax officials began to inform the police and the State Control Committee that we had not complied with the court's decision to recover the debt.before the budget, although according to the court's decision, they must fulfill it, says Elena – But, fortunately, the police and the State Control Committee have both refused to initiate criminal proceedings.In the end, the criminal case against the director – my husband – under Article 423 "Non-execution of a verdict, a decision or other judicial act" was initiated by the prosecutor's office Minsk: So far, we do not find an answer to the question of why this was done.At the course of the year, the criminal case was then stopped because of the absence of corpus delicti, and then resumed. There was no crime. The investigator seized the goods as evidence in the criminal case and transferred them to the Vostochny Trading House
Finally the criminal case was completed and at the end of November 2017 the goods were donated to the firm.
It looks like the lawsuits are finally over, you can sell the goods safely, try again to start the business and try to return the uncollected revenue. But it was not there.
– Even before we received the goods from the investigator, it turned out that the tax authorities again filed an application with the court. But already on the opening of a bankruptcy lawsuit against us. It was already a repeat call, in March 2016, they have already filed a similar application to the Minsk Economic Court. But the court returned the request, because our products were not subject to enforcement by the tax authorities. For a year, nothing has changed. Now, the total value of our goods is four times higher than the budget debt. Where is the state of stable financial insolvency? No.
– But in December 2017, the bankruptcy case is still ongoing, and it seems that the tax would have been transferred by the buyer (and not by the bankruptcy court). investigator) at the store responsible for the trade. house "East", – says Elena. – Our goods would have been sold on the spot, although we have not signed a certificate of acceptance with them. And the investigator did not grant the tax with such powers – to transfer material evidence in the criminal case, when there is no crime, to sell as a confiscation. We consider that these documents are empty. The appeal body allowed our complaint, but only with respect to the annulment of this decision. The application was reviewed by the Tax Court, in February 2018 he again accepted and filed a bankruptcy complaint. At the same time, we were also denied a counterclaim for damages for three years that we did not work, as we believe, by the fault of the tax
– We are at the stage of bankruptcy. In our opinion, the court opened bankruptcy proceedings in the absence of grounds for that, – says the contractor. – The feeling that no one cares, that our hydraulics are necessary for production, that our goods are imported and good, that we know how and where they are applied, that we are ready to work and pay taxes … state and we expect from them an appropriate answer.
Legal badistance in the service "Onliner.by"
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