The state Duma adopted a law that lifts the neck of the audit secrecy to tax services. Auditors fear that the new measures will reduce the confidence of clients, lawyers are convinced that massively used this loophole will not be
Photo: Oleg Yakovlev / RBC
The state Duma approved in third and final reading amendments to the Tax code, according to which tax authorities will have access to the audit secret. The document, developed by the government, was approved in the first reading in June 2017, however, for the second reading, which took place a year later, was also significantly improved. For the bill in plenary, voted by 352 deputies, against — 21. The meeting was broadcast on the website of the Duma.
Now the law clearly stipulates the prohibition of the collection and use of tax authorities of information constituting the legal and audit secrets. Under the audit secret means any information obtained and compiled by the audit organization and its employees, as well as the individual auditor. The information disclosed by the client, auditing the mystery does not apply. All documents that the audit organization receives from customers, required to be kept in the organization from three to five years (three years for all consulting and legal projects and five years for audit services).
Amendments “On amendments to part I of the Tax code of the Russian Federation” remove this restriction and grant the right to tax authorities to request from the audit organizations and individual auditors with documents and information they have received from the companies in the conduct of the audit and providing accompanying services. The reason for this may be the decision of the head of Federal tax service (FTS) of Russia or his Deputy. To receive documents in this way, the tax authorities may, if the taxpayer did not provide them itself in the course of tax inspection.
The Ministry of Finance to develop the bill, did not respond to a request RBC. Earlier, Deputy Minister of Finance Ilya Trunin said that the bill will facilitate the identification of tax offences and the fight against tax evasion and fraud.
How to change the mechanism?
According to the modified version of the bill, the tax authorities receive the right data collection, storage and use of taxpayer information received from the audit organization, but, unlike the original version, will not be able to distribute. This is because any data received on on the taxpayer will automatically be subject to tax secrecy. “And in accordance with the provisions of the direct tax code and the criminal code of the Russian Federation the dissemination of information about a taxpayer constituting tax secret, and so directly forbidden,” — says a leading legal adviser of the Department of tax disputes FBK Grant Thornton Artem Lomize.
The amendments in the bill also prescribed previously lacking mechanism of the process of discovery of documents from the audit organization. First and foremost, the tax authority conducting the test, must request the necessary documents from the taxpayer.
Not after receiving the documents, the head or Deputy head of the FNS (and not the territorial tax Inspectorate) decides to request the necessary information from the auditing company. In justification of this request must be given details of the decision on carrying out exit tax check; the date of the direction of the requirement about submission of documents and period of their submission; information about the fact of non-presentation in due time of the documents; information about the audit organizations conducted the audit; and the information or other information that allows the audit organization to identify the requested documents. After that, the auditor at the place of registration exhibited a requirement with the decision of the FTS.
Photo: Emin Jafarov / “Kommersant”
“The emergence of a clear procedure soothe those taxpayers, who fear tyranny, where the linear heads of tax inspections will be massively request sensitive information such as audit reports”, — says partner of the law firm Taxology Mikhail Uspensky. Thus, the expert argues, the act provides a protecting barrier in the form of sanctions senior staff of the Central apparatus of the FTS of Russia. “Only the chief and his deputies will be able to order the auditors to disclose information about their clients, and relatively clearly defined procedure,” he explains.
Because the recovery is only possible with the approval of the leadership of the tax service, in large quantities it will not be used, said the head of analytical Department, Pepeliaev group Vadim Zaripov. “The draft law adopted in the implementation of OECD recommendations for international information exchange. Special need the Russian tax authorities in such an instrument is,” he says.
Auditor — not the referee
The Ministry of economic development at the stage of preparation of the bill opposed the amendment. According to the representative of the Ministry, such changes can reduce the taxpayers ‘ trust to the auditors and the audit institution as a whole, which in turn will reduce the quality of their work in assessing tax risks. “In some cases, audit is a mandatory procedure prescribed by the legislation, but the volume of the market of voluntary audit and especially counseling can be reduced. The audit may be a formal procedure”, — said the interlocutor of RBC.
The majority of experts agrees with the Ministry of economic development. “Such innovations will complicate the work of audit firms with their clients and will entail significant structural changes in the market of professional services”, — says Artem Lomize from the FCO.
According to Lomize, so as not to fall under the new rules, the taxpayer will be sufficient to hire for related services company, not having the status of the audit. As for the auditors, those who do not want to disclose information about customers could voluntarily pay the fine, he admits. Now the amount of such penalty in accordance with article 126 NK is 10 thousand approved by the state Duma the bill does not say about the new fines is thus governed by their size is the same article about the failure to provide information to the tax authorities.
The auditors themselves are also “not happy” from the upcoming changes in the law, said the head of KPMG in Russia and the CIS Kirill Altukhov. “Auditing mystery is one of the foundations of a trusting relationship with the client, without which it is impossible to audit. The client may lose confidence in privacy to close, which can lead to the risk of auditing errors, incorrect conclusions, and it is not in the interests of the users of audit services,” he says. According to the expert audit and consulting group “Gradient alpha” Irina Parulava, auditors will be forced to adapt and look for the line to satisfy the requirements of the law and not to drop the trust of the customer.