Formation of a methodology for determining valid tax liabilities in case of unjustified application of tax benefits and reduced tax rates

Kosenkova Yuliya ORCID: 0000-0002-7925-9220 PhD in Economics Associate Professor; Department of Taxes and Tax Administration; Financial University under the Government of the Russian Federation 49/2 Leningradsky Ave., Moscow, 125167, Russia yykosenkova@fa.ru

Introduction

The tax legislation of both the Russian Federation and most countries of the world offers taxpayers a sufficient number of options that allow them to carry out tax planning within the legally established framework. Nevertheless, tax evasion is an urgent problem for almost all States. Moreover, it would be a mistake to link illegal actions practiced by business entities in order to reduce tax liabilities with crisis phenomena in the economy. Moreover, a study by Koumanakos E. (2017) ^[1] demonstrates that during a recession, companies more often apply tax planning measures (perhaps quite aggressive, but within the framework of legislation), and during economic growth, methods of tax evasion using illegal measures are more often used. Similar conclusions are reached by A.Athira and Vishnu K. Ramesh (2024), who study the dependence of the prevalence of tax evasion on the uncertainty of economic policy based on data from listed firms from 22 countries ^[2]. The study shows a negative relationship between the level of uncertainty in economic policy and the extent of tax evasion. As a rule, this is due to the fact that the increased uncertainty of economic policy leads to an increase in the uncertainty of the consequences of the applied tax evasion strategies, as a result of which forecasting potential tax consequences becomes problematic ^[3]. At the same time, it is necessary to note the positive impact of digitalization and digital transformation on reducing evasive practices ^[4]. In many ways (but not exclusively) This influence is based on increasing the transparency of the company's activities, improving tax administration and reducing agency costs for managing the organization.

The improvement of tax control measures, the implementation of a risk-based approach, and the full implementation of digitalization contribute to the concentration of efforts of Russian tax authorities on the most significant violations of tax legislation, which leads to an increase in the effectiveness of control activities: a reduction in the number of on-site tax audits (hereinafter referred to as GNP) is accompanied by a steady increase in additional tax payments per audit (Table 1).

Table 1 – Effectiveness of on-site tax control of organizations and individual entrepreneurs, 2017-2023

Source: compiled by the author according to the Federal Tax Service of Russia (Report No. 2-NK)

During the GNP, tax authorities identify facts of distortion of tax accounting data, the implementation of imaginary and fake transactions, "fragmentation of business" and other violations of tax legislation, leading to unjustified tax benefits for taxpayers. The amounts of additional charges presented above are the result of determining the so-called actual tax liabilities (hereinafter referred to as the BOTTOM). However, as practice shows, taxpayers and tax authorities have a significant difference in understanding of the essence of this concept and the procedure for calculating actual tax liabilities. This leads to the impossibility of a pre-trial settlement of some of the issues related to determining the BOTTOM and transferring them for judicial decision. The data presented in Figures 1 and 2 indicate that, despite the reduction in the number of tax cases submitted to arbitration courts since 2020, the amounts of contested additional charges have not decreased. It should also be noted that there is a certain imbalance: in more than a third of cases, taxpayers manage to satisfy their claims in arbitration courts, while the amounts of successfully contested surcharges rarely exceed 10% of the total amount of contested surcharges per year (it is also necessary to take into account the impact of the fact that some of the taxpayers' claims (includingsatisfied) relate to procedural issues and do not dispute additional charges).

Figure 1. Dynamics of the number of tax disputes in the arbitration courts of the first instance

Source: compiled from the data https://www.russiantaxandcustoms.com / and the Judicial Department at the Supreme Court of the Russian Federation

Figure 2. Dynamics of the amount of additional charges for tax disputes contested in the arbitration courts of the first instance

Source: compiled from the data https://www.russiantaxandcustoms.com / and the Judicial Department at the Supreme Court of the Russian Federation

This fact indicates that the absence of a single generally accepted methodology for calculating valid tax liabilities leads to an increase in the workload of arbitration courts with tax disputes, an increase in the cost of financial resources for the participation of tax authorities in these disputes when defending budgetary interests, and a violation of taxpayers' rights when calculating the bottom line. The latter is also evidenced by the fact that in the case of cases being referred to the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation (hereinafter referred to as the SCEC), in the vast majority of cases the decision is made in favor of the taxpayer (Table 2). Consequently, the courts of first instance, the appellate and cassation instances made the decision based on the calculation of the BOTTOM proposed by the tax authority, which (calculation) was based on an erroneous interpretation of the letter and spirit of the tax legislation.

Table 2 – Number of court cases on tax issues referred to the Judicial Board on Economic Disputes of the Supreme Court of the Russian Federation

Source: compiled according to the Judicial Department of the Supreme Court of the Russian Federation

These tables allow us to conclude that in all cases where the decision was made in favor of taxpayers (and this is the majority of cases referred to the SCEC), the courts of first instance, the court of appeal and the court of cassation decided based on the calculation of the BOTTOM proposed by the tax authority, which (calculation) was based on an erroneous interpretation of the letter and spirit of the tax legislation.

Based on this, it can be assumed that the improvement of tax administration and tax control is impossible without the formation of a unified methodology for calculating valid tax liabilities in case of various violations of tax legislation. The development and adoption of such a methodology will lead to a reduction in the volume of contradictions between taxpayers and tax authorities, which will both reduce the burden directly on tax authorities and the judicial system, and will guarantee the protection of taxpayers' rights and economic interests.

Literature review and description of the problem

In Russia, the issue of determining the nature and procedure for calculating valid tax liabilities has been debated in the scientific and practical field relatively recently. Discussions about the legal and economic essence of the concept are based on the lack of a legal definition and consolidation of this concept. Currently, this term is used primarily in the practice of taxation and tax administration. Nevertheless, this issue also attracts the attention of researchers. From a legal point of view, the essence of the BOTTOM is considered in the works of D. V. Vinnitsky ^[5], D. M. Shchekin ^[6], A. S. Barinov ^[7], A. A. Pechenkina ^[8], Zvankov ^[9]. The works of A.V. Ilyin ^[10-12], E. Yu. Kaverina ^{[13, 14]}, E. S. Tsepilova ^[15] and a number of other researchers are devoted to the issues of the economic content of this concept. Nevertheless, there is no single approach among both practitioners and researchers to the content of this concept and the practice of calculating the BOTTOM value.

Zh. G. Popkova defines a valid tax liability as the amount of tax payable after the end of the tax period, which exactly corresponds to both the tax-relevant characteristics of a taxpayer's activity and the norms of tax law ^[16]. E. S. Tsepilova defines a tax liability as the amount of tax that a taxpayer is required to pay as a result of a taxable event within the prescribed time frame to the appropriate budget calculated by applying the tax rate to the database ^[15]. Kaverina E. Y. defines a valid tax liability as an obligation "calculated on the basis of indicators of a taxpayer's real financial and economic activity, and not from indicators contained in his accounting documents and his tax statements that do not reflect the real picture of his activities" ^[13]. According to V. E. Shkaeva, a valid tax obligation should not be punitive in nature and should take into account the amounts of taxes actually paid by the taxpayer and the expenses incurred by him, the right to deductions ^[17].

In the framework of this study, a valid tax liability will be understood as a tax liability calculated based on the actual financial and economic activities of the taxpayer, from the actual nature of the business operations performed.

In general, the approach of domestic researchers, based on the need to correlate the size of the bottom line with the amount of tax benefit received by the taxpayer, is practically not disputed. A similar approach has been formed in the Russian theory of taxation for a long time. Even in the "Experience of Tax Theory" by N. I. Turgenev, the postulate was stated: "The tax should be levied on net income, and not on capital itself; so that the sources of state income are not depleted" ^[19].

But, according to A.V. Ilyin, the problem of calculating the bottom line in the implementation of tax control lies in the fact that tax authorities systematically do not take into account the real expenses incurred by the taxpayer, overestimating the financial result, which leads to economically unjustified taxation ^[12]. The author fully shares A. V. Ilyin's point of view on this issue. This problem is of particular interest due to the fact that, according to Letter No.BV-4-7/13450@ from the Federal Tax Service of Russia dated 10.10.52022, "Judicial practice has formulated an approach according to which the identification of unjustified tax benefits does not imply the determination of a higher tax liability (which in fact would mean the application of sanctions), and to serve as a basis for additional assessment of the amount of tax payable to the budget in such a way as if the taxpayer had not abused the right (Rulings of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 05.04.2018 N 305-KG17-20231, dated 06.03.2018 N 304-KG17-8961, dated 30.09.2019 N 307-ES19-8085, dated 28.10.2019 N 305-ES19-9789, etc.)". However, in practice, this approach is not always implemented, which demonstrates the contradiction between the officially declared position of the tax authorities and the actual actions of tax officials in the implementation of control measures.

One of the reasons for this discrepancy is the BOTTOM calculation method. In particular, the issue of the possibility of determining the taxpayer's actual tax obligations by the calculation method provided for in clause 7, clause 1, Article 31 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) has not been fully resolved. The official position of the tax authorities on this issue has changed periodically. The introduction of Article 54.1 of the Tax Code of the Russian Federation in 2017 was the basis for refusing taxpayers tax reconstruction and the application of the calculation method for determining the BOTTOM (in particular, for expenses incurred) (Letters from the Federal Tax Service of Russia dated 31.10.2017 N ED-4-9/22123@ and dated 13.12. 2019 № 01-03-11/97904), which led to In practice, it is not profits that are taxed, but gross income. The introduction of Article 54.1 to the Tax Code of the Russian Federation has raised concerns among a number of researchers ^[17], since, according to Resolution No. 53 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12.10.2006 "On the assessment by Arbitration Courts of the Validity of a taxpayer's tax benefit", the amount of a taxpayer's tax liability should be determined based on the true economic content of the transactions performed. Subsequently, the position of the official authorities changed: the use of tax reconstruction became acceptable in some cases, but accounting for income tax expenses and the use of VAT deductions is currently linked to the form and degree of the taxpayer's guilt (Letters of the Federal Tax Service of Russia dated 10.10.2022 №BV-4-7/13450@, dated 10.03.2021 № BV-4-7/3060@ and dated 10/14/2022 № BV-4-7/13774@)

At the same time, there is also no consensus among researchers on this issue. For example, D. S. Polozkov believes that the definition of tax liabilities by calculation corresponds in its meaning to the principle of determining the BOTTOM ^[20]. At the same time, the researcher notes that "in the absence of information about a controversial transaction performed with a valid supplier (contractor) and its parameters, recognition should be refused." both deductions and expenses" ^[20]. In his publications, A. S. Ilyin not only defends the need to use the calculation method in determining the expenses incurred by the taxpayer, but also suggests a methodology for determining expenses by the calculation method ^{[11, 12]}.

Despite the fact that the author does not fully share the point of view of any of the opponents, nevertheless, the official position of the tax authorities is perplexing, which considers it possible to use the calculation method in determining the income of a taxpayer who has received an unjustified tax benefit, but does not recognize the possibility of using the same method in calculating the expenses incurred by him, which leads to economically unjustified excessive taxation.

Closely related to the issue under consideration is the issue of identifying transactions actually performed by the taxpayer with real counterparties and, as a result, determining the actual expenses incurred. If actual transactions were identified, the issue of using the calculation method to determine the taxpayer's expenses would be irrelevant. In the decisions of the Constitutional Court of the Russian Federation (Resolutions No. 5-P of 03/28/2000, No. 5-P of 03/17/2009, No. 10-P of 06/22/2009, Definition No. 526-O of 02/27/2018, etc.), it is noted that tax authorities are not exempt from the obligation to take exhaustive measures aimed at establishing a valid the amount of the taxpayer's tax liability, which would exclude the possibility of imputing tax to him in an amount greater than that established by law. At the same time, it is not specified anywhere what exactly is meant by exhaustive measures, where is the limit after which it is safe to say that all appropriate measures have been taken.

Another issue that needs to be addressed is the possibility of taking into account when determining the AMOUNT of taxes actually paid by the taxpayer in carrying out business activities. In some cases, when conducting tax control measures, the tax authorities do not take into account the payments actually paid.

According to the author, most of the issues outlined could be resolved by developing and adopting a unified BOTTOM calculation methodology.

Formation of a methodology for calculating valid tax liabilities in terms of unjustified application of tax benefits and reduced rates

The practice of tax control has allowed us to identify a number of "schemes" for obtaining unjustified tax benefits, each of which has certain features. The author believes that the creation of a methodology for calculating actual tax liabilities must necessarily take them into account. It is advisable to form a methodology in the following areas of illegal actions:

- making fictitious transactions involving "technical" companies;

- "business fragmentation";

- substitution of one transaction for another;

- concealment or distortion of information required for the correct qualification of legal relations;

- unjustified application of benefits or reduced rates.

Each of these areas has distinctive features that should be reflected in the developed methodology. In the framework of this study, we will analyze the last point – the unjustified use of benefits and tax rates. The difference in this area is the extremely wide coverage of possible tax offenses, since the unjustified application of tax benefits and tax rates is possible within each tax of the tax system of the Russian Federation, as well as when applying special (provided for in Article 18 of the RF Code) and preferential (such as taxation in the implementation of RIP, SPIC, etc.) tax regimes.

When developing a unified methodology for calculating the BOTTOM line in terms of unjustified use of tax benefits and reduced tax rates, the author considers it advisable to rely on the general design proposed by A.V. Tikhonova ^[21], which includes 3 stages:

1) Recognition of the basic method of determining the bottom;

2) The formation of the burden of proof;

3) Directly calculate the BOTTOM.

Let's consider the formation of a methodology for calculating the BOTTOM in terms of unjustified application of tax benefits and reduced rates in accordance with this design.

Stage 1. The position of the courts is generally accepted at the moment, according to which the taxpayer's conscious participation in activities aimed at obtaining unjustified tax benefits deprives him of the right to use the calculation method for determining the BOTTOM (Letter of the Federal Tax Service of Russia dated 10.10.2022 №BV-4-7/13450@). However, the taxpayer's active participation in eliminating damage to the budget, removing transactions from the "shadow turnover", and disclosing real counterparties, which is documented, allows for the calculation of the BOTTOM line to take into account the actual expenses incurred by the taxpayer. Moreover, the tax authority is required to take exhaustive measures to determine the reality of the transaction, identify the counterparty who acted as the actual executor of the transaction, and take into account not only all income received, but also all expenses actually incurred.

According to established practice and explanations of the tax authority, the use of the calculation method for determining tax liabilities (according to subclause 7, clause 1, Article 31 of the Tax Code of the Russian Federation) is possible when accounting with violations that do not allow calculating the amount of tax liability using the direct method, as well as if the taxpayer fails to exercise due diligence when choosing a counterparty, but subject to the taxpayer's non-participation in the schemes with the involvement of "technical" companies in order to obtain unjustified tax benefits. At the same time, it should be remembered that the taxpayer's right to receive a tax benefit, stipulated by clause 3, clause 1, Article 23 of the Tax Code of the Russian Federation, is conditioned by the taxpayer's documentary evidence of the right to apply the benefit. The application of a reduced tax rate must also have a legitimate justification and documentary evidence. Thus, in the absence of documentary evidence of the right to benefits and the application of a reduced tax rate, the determination of tax liabilities by the calculation method is unacceptable. Therefore, in the case of unjustified application of tax benefits or reduced rates, only the factual method should be used to determine actual tax liabilities.

Stage 2. The stage includes the identification of risk markers of the scheme. Risk markers are signs of a tax offense that are generalized, systematized and highlighted as a result of established judicial practice on a specific issue ^[21].

In order to systematize risk markers, they were divided into three groups according to specific schemes of unjustified application of tax benefits and rates (Table 3). Taking into account the features mentioned above, the unjustified use of tax incentives and reduced rates implies an extremely large number of risk markers, which does not allow them all to be reflected in the publication. Table 3 shows only examples of such risk markers for each of the identified groups.

Table 3 - Risk markers of unjustified application of tax benefits and reduced rates

Source: compiled by the authors themselves

The list of measures taken by tax authorities in the administration of tax benefits and reduced tax rates directly depends on the composition of the tax offense and the list of risk markers that are identified in each specific case. For example, in the case of property taxes, such measures include: the study of technical documentation regarding the disputed object of taxation; the analysis of the contract of sale of the disputed object in order to establish its identification as movable or immovable property; the analysis of records in the Unified State Register of Legal Entities regarding the disputed object; the study of the functional purpose and role of the disputed object of taxation in the technological process; verification of title documents, licenses, etc. in relation to the taxpayer, confirming his right to apply a tax benefit (reduced tax rate). Similarly, a list of tax authorities' measures is formed for each unlawful application of a tax benefit or a reduced tax rate.

Stage 3. Analysis of the practice of unjustified application of a tax benefit or a reduced tax rate allows us to conclude that in most cases (there are exceptions, which will be described below) the extraction of unjustified tax benefits:

A) not related to the presence of counterparties;

B) does not dispute the validity of the transaction and the fact of conducting business;

C) does not contain the circumstances specified in clause 2, clause 2, Article 54.1 (the obligation is fulfilled by a person who is not a party to the contract)

D) corresponds to clause 1 of Article 54.1 of the Tax Code of the Russian Federation – "reduction by the taxpayer of the tax base and (or) the amount of tax payable as a result of distortion of information about the facts of economic life (totality of such facts), about the objects of taxation to be reflected in the tax and (or) accounting or tax reporting of the taxpayer"

E) complies with clause 1, clause 2, Article 54.1 of the Tax Code of the Russian Federation – the main purpose is non-payment (incomplete payment of the amount of tax).

Further measures for calculating the bottom should be carried out taking into account these characteristics. Let's consider the features of calculating the BOTTOM in accordance with the groups of offenses identified above.

1. Calculation of the BOTTOM in case of non-compliance with the conditions for the application of tax benefits and reduced rates.

The calculation of the BOTTOM line for property taxes, as a rule, boils down to the inclusion of the taxable object in the tax base, the application of the tax rate established by law (not reduced) or the exclusion of unjustifiably applied tax benefits. The amount of the BOTTOM in this case should be calculated taking into account the tax already paid. However, an increase in property taxes leads to a corresponding increase in the organization's expenses for corporate income tax purposes (Clause 1, clause 1, Article 264 of the Tax Code of the Russian Federation). Therefore, at the second stage, the calculation of the BOTTOM for property taxes should lead to a corresponding reduction in the tax liability for corporate income tax. An increase in the organization's other expenses related to production and sales by the amount of additional property taxes must be made in the tax period to which the calculation of the BOTTOM for property taxes relates.

With regard to the application of a reduced VAT tax rate, cases of unjustified tax benefits are associated with:

1) Substitution of the object of taxation - unjustified attribution of operations for the sale of goods, works, and services (hereinafter referred to as TRU) to VAT–free operations (Definition of the Supreme Court of the Russian Federation dated 01/22/2024 N 308-ES23-27421 in case N A32-4375/2022). In this case, when calculating the BOTTOM, the following points must be taken into account::

- when calculating the BOTTOM, it is advisable to apply the estimated VAT rate (10/110 or 20/120). If the taxpayer mistakenly (intentionally) classified the transactions as non-taxable, but the contract price is determined in a fixed amount, excluding VAT (and this is explicitly stated in the contract and primary documents), paid by the buyer to the taxpayer without VAT, and subsequently the tax authority carries out taxation of this revenue, the VAT amount must be calculated within the fixed amount established by the contract. prices are based on the estimated rate. Otherwise, the economic nature of VAT is violated. The organization implementing the TRU is obliged to present to the buyer the amount of VAT, which, having been received by the seller from the buyer, forms a source for VAT payment to the budget by the seller. When calculating VAT payments based on the 10% (20%) rate, this amount cannot be paid to the seller by the buyer, therefore, the source of VAT payment to the budget will be the amount not paid by the buyer (in the normal case, the burden is shifted to the consumer, which is the essence of indirect tax), and own the funds of the business entity (not part of the added value), which contradicts the economic nature of VAT. This approach has also been reflected in law enforcement practice (Resolution of the Arbitration Court of the Ural District dated 06/28/2023 N F09-3809/23 in case N A76-28549/2022; Resolution of the Arbitration Court of the East Siberian District dated 12/07/2022 N F02-6011/2022 in case N A74-728/2022; paragraph 17 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 05/30/2014 N 33 "On some issues that arise for arbitration courts when considering cases related to the collection of value-added tax"). The application of the estimated VAT rate also results in a reduction in the corporate income tax base (since VAT will be a higher amount in the taxpayer's actual gross revenue than in the original version of the tax calculation, which will lead to a decrease in revenue);

- the assignment of disputed transactions to VAT entails a number of consequences, in addition to additional tax amounts, which should be reflected in the calculation of VAT amounts payable. In particular, (1) the amount of VAT deductible will increase (since the VAT paid on the purchase of TUS used to carry out the disputed operation will now be reasonably deductible), (2) the proportion that applies to the distribution of the amounts of "input" VAT on the purchase of TUS used both taxable and in non-taxable activities, therefore, the amount of VAT deductible will increase. And since the BOTTOM is calculated as if the taxpayer had not abused the right, the consequences of changing the qualifications of the operations performed must be fully taken into account. Therefore, at the second stage of the BOTTOM calculation, adjustments should be made not only to the calculation of value added tax, but also to the corporate income tax (since the amount of input VAT, which should be included in the cost of purchased goods, works, and services, will change).

2) Substitution of the object of taxation: unjustified attribution of the sale of TRU, taxed at the standard rate of 20%, to the category of taxed at a reduced rate of 0% or 10% (Resolution of the Arbitration Court of the Moscow District dated 12.09.2023 N F05-16084/2023 in case N A40-293013/2022; Ruling of the Supreme Court of the Russian Federation dated 17.06.2022 N 307-ES22-8901 in case no. A52-2712/2021). In general, the calculation of the BOTTOM should be carried out taking into account the provisions defined in the previous paragraph. At the same time, it is advisable to consider another feature of the BOTTOM calculation. In the event that instead of a zero VAT rate applied unreasonably (for example, the case of JSC Aeroflot-Russian Airlines A40-136146/11-107-569 in which the organization was unable to confirm with the collected package of documents the right to apply a reduced VAT rate of 0%, as a result of which it charged and paid VAT to the budget from disputed transactions at the rate of 18%), VAT is subsequently calculated by the organization at the basic base rate, in which case the organization has the right to take into account the VAT amounts accrued, paid to the budget, but not presented to the buyer, but paid at its own expense, as part of expenses for corporate income tax purposes in accordance with subclause 1, clause 1, Article 264 The Tax Code of the Russian Federation, which is confirmed by the position of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.04.2013 N 15047/12 12 in case N A40-136146/11-107-569 . It is important to note that the accounting of these expenses in the NGO tax base should be carried out in the tax period that corresponds to the tax period of the occurrence of VAT tax liabilities (initially incorrectly calculated at a reduced tax rate).

2. Calculation of the BOTTOM when identifying the factors of tax migration.

In the case of unjustified migration of an organization (sole proprietor) to another region in order to obtain unjustified tax benefits, it should be remembered that the reality of conducting business in the region of actual activity is not disputed. Counterparties (as a rule) are not involved to extract unjustified tax benefits. 54.1 of the Tax Code of the Russian Federation, there is a distortion of accounting and reporting data, as well as the absence of a real business purpose. Therefore, when calculating the BOTTOM, it is necessary to restore (reconstruct) The situation is as if the taxpayer were operating in the original region of registration, which does not provide tax benefits or the opportunity to apply a reduced tax rate. This will lead to an increase in tax liabilities for the tax in question. When calculating the BOTTOM, it is necessary to take into account the amounts of taxes paid by the taxpayer. Additional funds credited to the regional budget must be credited to the budget of the subject of the Russian Federation in which the business is actually conducted.

3. Calculation of the BOTTOM in case of reorganization of legal entities and creation of "legendary" sole proprietors in order to apply tax benefits and reduced tax rates.

The calculation of actual tax liabilities when using such schemes for obtaining unjustified tax benefits should be carried out taking into account the following features:

- interdependent "technical" companies (counterparties) are often involved, or legendary organizations or sole proprietors are created through a reorganization mechanism by separation (or another form of reorganization);

- an interdependent counterparty, as a rule, has no real business activity;

- the transaction is not carried out in accordance with its actual economic meaning, as a rule, a fake transaction takes place (paragraph 2 of Article 170 of the Civil Code of the Russian Federation). This type of tax offense most often involves the substitution of transactions for the sale of property with transactions of an investment nature.;

- when applying such schemes for obtaining unjustified tax benefits, the BOTTOM is calculated for a number of taxes – NGO, VAT, and in some cases others (for example, mineral extraction tax);

- in the context of the provisions of art. 54.1 of the Tax Code of the Russian Federation, it can be noted that the provisions of paragraph 1 of the article in question (distortion of information about the facts of economic life), paragraph 1 of paragraph 2 (the main purpose of the transaction is non-payment of tax, there is no reasonable business purpose).

Paragraph 7 of Resolution No. 53 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12.10.2006 "On the Assessment by Arbitration Courts of the Validity of a Taxpayer's tax Benefit" clarifies that if the court, based on an assessment of the evidence provided by the tax authority and the taxpayer, concludes that the taxpayer has not accounted for transactions for tax purposes in accordance with their actual economic meaning the court determines the scope of the taxpayer's rights and obligations based on the true economic content of the relevant transaction.

As a rule, the application of fake transactions through the reorganization procedure has the following form: a taxpayer acquires property, creates a subsidiary (uses a previously created one), transfers disputed property to its authorized capital, and subsequently sells not the disputed property, but a share in the subsidiary. The result: the sale of property is replaced by a number of investment transactions, which leads to non-payment of VAT and income tax.

At the first stage, the calculation of the BOTTOM for value added tax is carried out. The calculation of actual VAT tax liabilities should be carried out taking into account previously paid taxes, including if a transaction is reclassified from investment to taxable, this entails the following changes in the calculation of value added tax:

- cancellation of the restoration of VAT paid upon the acquisition of disputed property, and the acceptance of this amount for deduction when calculating the BOTTOM (VAT was restored, because it was decided to use the acquired property in non–taxable activities - the transfer of property to the authorized capital of the organization);

- the calculation of the BOTTOM should be carried out taking into account the features described above (including the calculation of the VAT tax liability using the calculated rate, etc.).

In the case of a reclassification of the transaction, the calculation of corporate income tax expenses should take into account the following points::

- the value of the property, for which it is accepted for accounting, is subject to adjustment. If initially (when qualifying the transaction as an investment) the property was taken into account at cost with VAT, then when the transaction is reclassified (and VAT is deducted), the value of the property must be taken into account without VAT. This entails a) a reduction in the depreciation amounts recorded in the NGO tax base, and b) when calculating the tax base for the sale of property, the adjusted residual value of the property must be taken into account.;

- if the taxpayer applies the provisions of Clause 9 of Article 258 of the Tax Code of the Russian Federation (depreciation premium) when acquiring property, the issue of the need to restore the amounts of the depreciation premium attributed to expenses (including it in non-operating income) must be resolved depending on who is the final buyer of the disputed property. If the buyer (the last link in the chain of transactions) is not an interdependent person for the taxpayer (an independent counterparty), then the recovery of the depreciation premium amounts is not justified, since the condition provided for in paragraph 4, paragraph 9, Article 258 of the Tax Code of the Russian Federation is not met ("If the fixed asset ... is sold earlier than after the expiration of five years from the date of its commissioning to a person who is interdependent with the taxpayer ..."). Since the interdependence has not been established, the above provision is not applicable. Then, when determining the NGO tax base for the sale transaction, it is necessary to take into account the property at its residual value, taking into account the depreciation premium (which, accordingly, will increase the tax base, i.e. there will be no damage to the interests of the budget). If the final buyer is an interdependent person, then the depreciation premium is subject to recovery. At the same time, it must be recognized that, if necessary, this scheme does not make practical sense to transfer property to an interdependent person. It is more expedient for a taxpayer to carry out an operation that does not carry tax risks - to transfer property directly to the authorized capital of an interdependent person. In this case, the transaction will not entail the recovery of the depreciation premium, as it cannot be qualified as a sale.

Conclusions

A study of the essence of such a concept as valid tax liabilities has allowed us to determine that it, used primarily in the practical field, has neither a normative basis nor a generally accepted calculation methodology, despite its practical significance. The lack of a unified methodology for calculating valid tax liabilities increases uncertainty in the process of tax administration and tax control, which has negative consequences for all participants in legal relations.

The scientific novelty of the study lies in the proposed methodology for calculating actual tax liabilities based on the example of such areas of obtaining unjustified tax benefits as the unjustified use of tax benefits and reduced tax rates. The article notes that the proposed procedure for calculating the bottom line should be an integral part of a single methodology that unites all areas of application of the so-called "tax schemes". Despite the fact that each of the tax payments has its own unique features, the created methodology has sufficient flexibility and can be used in relation to any tax payment. The methodology implies not only the correct addition of a separate tax, but also the introduction of appropriate changes due to the addition of this tax to the calculation of other taxes related to it (most often, but not exclusively, such an interconnected tax is the corporate income tax).

The author does not link the formation and recognition of a unified methodology for determining the BOTTOM with the subsequent reduction in the number of tax offenses. As it was demonstrated at the beginning of the study, taxpayers' propensity to evade taxation is determined by factors other than the procedure for determining valid tax obligations in the event of such violations. There is also no direct relationship between the application of the considered methodology and the growth of tax revenues to the budget system of the Russian Federation. The main effect of the formation of a single generally accepted methodology is to reduce the conflict between the parties to tax relations, reduce the number of tax disputes resolved in court, and respect the economic interests of both the state and taxpayers.

The practical significance of the study lies in the systematization, based on the analysis of judicial practice, of risk markers indicating the commission of an offense, as well as in the possibility of using in practice the formulated features of calculating the BOTTOM on value added tax and corporate income tax, which correspond to the theory of taxation, the spirit and letter of tax legislation, as well as the position of the Supreme Court of the Russian Federation Federation.

As a direction for further research, it is proposed to determine the specifics of calculating the BOTTOM according to the proposed methodology for other "schemes" of tax offenses outlined above, such as business fragmentation, substitution of one transaction for another, etc.

The article was prepared based on the results of research carried out at the expense of budgetary funds on the state assignment of the Financial University.