Add to the list of unscrupulous contractors. Register of unscrupulous suppliers. Sanctions for providing false information

The management set the task of finding a way to publish about the bad faith of the counterparty who violated the terms of the contract. Question: is there a similar official website of regulatory authorities (Rospotrebnadzor, etc.) on the Internet where a “register” or “list” of legal entities that do not fulfill their contractual obligations is posted, i.e. unscrupulous counterparties. if such exists, please provide the conditions and procedure for submitting an application (application) for placement on such a list of a counterparty who has caused us a lot of inconvenience with his dishonest actions, including lost profits, and this also had a negative impact on our reputation

Answer

Fly-by-night counterparties can cause damage both to the state in case of tax evasion, and to the taxpayer, who will have to prove the validity of the tax benefit received when returning VAT or when accounting for expenses for profit tax purposes as a result of interaction with such unscrupulous counterparties.

Inspections are guided by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 "", which established the main signs of bad faith taxpayer and rules for their determination.

Taxpayers, in order to prove the exercise of due diligence and caution when choosing a counterparty, can turn to Public criteria
self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits (approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@ " "), as well as explanations from financial authorities regarding the in which case the taxpayer is considered to have fulfilled the obligation to verify the counterparty.

In order to protect yourself from risks when conducting business and possible claims from tax authorities, there are many opportunities to verify the integrity of a potential business partner.

We have identified a number of actions that, in the opinion of tax authorities and courts, must be performed to confirm the exercise of due diligence and caution when choosing a counterparty.

You can find out whether a license was issued to a potential counterparty at websites of licensing authorities– for each type of activity the licensing authority will be different. For example, the Rospotrebnadzor website allows you to search through registers of licenses issued for activities related to the use of infectious disease agents and for activities in the field of using ionizing radiation sources.

7. Get acquainted with the annual financial statements of the counterparty. In accordance with clause 89 of the Regulations on accounting and financial reporting in the Russian Federation (approved by the Ministry of Finance of Russia dated July 29, 1998 No. 34n), the annual financial statements of the organization are open to interested users(banks, investors, creditors, buyers, suppliers, etc.) who can familiarize themselves with it and receive copies of it with reimbursement for the costs of copying, and the organization must provide an opportunity for interested users to familiarize themselves with the financial statements.

In addition, Rosstat is obliged to provide information on the annual financial statements of organizations free of charge (Regulations on the Federal State Statistics Service, approved by the Government of the Russian Federation dated June 2, 2008 No. 42, Rosstat dated May 20, 2013 No. 183 “On approval of the Administrative Regulations for the provision of Federal State Statistics Service of the state service "Providing interested users with accounting (financial) reporting data of legal entities operating on the territory of the Russian Federation."

8. Study the register of unscrupulous suppliers. Of course, a potential counterparty is not necessarily a participant in the procurement system for state and municipal needs, but there is such a possibility. Therefore, we still recommend going through this optional stage of verification and searching for the appropriate register, updated by the FAS of Russia.

9. Check the authority of the person signing the agreement. Courts often point to the need to verify credentials as a condition for recognizing a taxpayer as bona fide (FAS ZSO dated May 25, 2012 in case No. A75-788/2011, Eighth Arbitration Court of Appeal dated September 20, 2013 in case No. A46-5720/2013) . Moreover, if the taxpayer has received all the necessary documents and information, but has not verified the authority of the counterparty’s representative to sign the documents, this will be grounds for recognizing this taxpayer as dishonest (resolution of the Federal Antimonopoly Service of the Moscow Region dated July 11, 2012 in case No. A40-103278/11 -140-436).

When considering a case, if a signatory refuses to sign on documents, a handwriting examination- but sometimes it can be done without it (FAS UO dated June 30, 2010 No. F09-4904/10-S2 in case No. A76-39186/2009-41-833). However, more often the courts emphasize that a simple visual comparison of signatures and the testimony of a taxpayer’s representative cannot be considered a sufficient basis for recognizing that documents were signed by unidentified persons (decision of the Third Arbitration Court of Appeal dated October 13, 2010 in case No. A33-4148/2010).

And of course, the courts establish the fact of bad faith of the taxpayer in the event that the authorized representative of the counterparty at the time of signing the documents died(Higher Arbitration Court of the Russian Federation dated December 6, 2010 No. VAS-16471/10) or his powers were terminated(FAS PO dated February 28, 2012 No. F06-998/12 in case No. A65-14837/2011). On the other hand, the latter case cannot, in the opinion of the courts, indicate the receipt of an unjustified tax benefit if, before the conclusion of the controversial transaction, the taxpayer had a long-term economic relationship with the counterparty (FAS SKO dated April 25, 2013 No. F08-1895/13 in the case No. A53-12917/2012, resolution of the FAS ZSO dated October 27, 2011 No. F07-8946/11 in case No. A52-4227/2010).

Before signing documents, please pay attention to the following:

• Is the transaction being concluded for your counterparty large;
• hasn't it expired? term of office representative of the counterparty (as determined by the organization’s charter or power of attorney);
• Not limited whether charter powers of the director to conclude transactions the amount of which exceeds a certain value.

10. Make a request to the tax office at the place of registration of the counterparty. The courts emphasize that this is also regarded as a manifestation of the taxpayer’s prudence (FAS ZSO dated October 14, 2010 in case No. A27-26264/2009, FAS ZSO dated March 5, 2008 No. F04-1408/2008(1506-A45-34) in case No. A45-5924/07-31/153, Third Arbitration Court of Appeal dated October 11, 2013 in case No. A74-5445/2012, Eleventh Arbitration Court of Appeal dated September 5, 2012 in case No. A55-1742/2012 ).

Moreover, district arbitration courts confirm duty of the tax authorities provide the requested information within the range of information not recognized in accordance with tax secrecy. Thus, the FAS ZSO emphasized that the refusal of the inspectorate to provide information about the taxpayer’s counterparty affects the latter’s rights related to obtaining tax benefits, taking into account the taxpayer’s obligation to confirm due diligence and caution when choosing a counterparty (Resolution of the FAS ZSO dated December 14, 2007 No. F04- 67/2007(77-A67-32) in case No. A67-1687/2007).

Sometimes the courts even emphasize that the taxpayer had the opportunity to contact the relevant services to check the counterparty, but he did not do so (Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 14, 2010 No. KA-A40/10728-10 in case No. A40-4632/10- 115-57).

True, occasionally the courts still come to the conclusion that the taxpayer could not apply to the inspectorate at the place of registration of the counterparty, since only tax authorities have such authority (FAS NWO of July 31, 2013 in case No. A13-8751/2012).

But even if the tax office refuses to respond to the request, the the fact of his direction will indicate that the taxpayer wanted to protect himself when choosing a counterparty and can serve in the future as evidence of due diligence. In this case, it is important that the request is submitted personally to the tax office (a copy of the request with an acceptance mark must be left on hand) or by mail with a receipt receipt and an inventory of the contents (in this case, one copy of the inventory and the returned notification will remain).

As we see, the positions of the courts regarding the scope of actions that need to be performed to verify the integrity of the counterparty vary. True, sometimes the courts are a little disingenuous.

Thus, they point out that the tax inspectorate did not prove the lack of due diligence of the taxpayer - on the contrary, when making controversial transactions, he was asked for notarized copies of the necessary documents. At the same time, the courts emphasize that in the field of tax relations there is presumption of good faith, and law enforcement agencies cannot interpret the concept of “bona fide taxpayers” as imposing additional obligations on taxpayers not provided for by law (Resolution of the Federal Antimonopoly Service of the Moscow Region dated January 31, 2011 No. KA-A40/17302-10 in case No. A40-30846/10-35 -187, resolution of the FAS MO dated December 16, 2010 No. KA-A40/15535-10-P in case No. A40-960/09-126-4, resolution of the FAS MO dated July 22, 2009 No. KA-A40/6386 -09 in case No. A40-67706/08-127-308).

This understanding of good faith was developed by the Constitutional Court of the Russian Federation in October 16, 2003 No. 329-O, which taxpayers often refer to when justifying their position. In particular, the Court emphasized that the taxpayer cannot be held responsible for the actions of all organizations participating in the multi-stage process of paying and transferring taxes to the budget.

At the same time, courts often indicate the need to request relevant documents from the counterparty, emphasizing what these actions mean for the taxpayer nature of the duty(FAS PO dated July 14, 2010 in case No. A57-7689/2009, FAS ZSO dated July 20, 2010 in case No. A81-4676/2009).

Sometimes the attention of the courts may be drawn to other details - for example, the conclusion of an agreement for the “trial” supply of goods small batch to check the counterparty (resolution of the Federal Antimonopoly Service of the Moscow District dated December 16, 2010 No. KA-A40/15535-10-P in case No. A40-960/09-126-4), the fact of registration of the counterparty in several days before the transaction is completed (FAS UO dated November 28, 2012 No. F09-11410/12 in case No. A60-7356/2012), etc. Tax authorities may also refer to the fact that the counterparty organization has "mass leaders and founders", and this fact should have alerted the taxpayer (FAS MO dated November 3, 2011 No. F05-11505/11 in case No. A41-23181/2010).

In conclusion, we note that the presence only one sign of dishonesty counterparty, as a rule, is not an obstacle to recognizing the tax benefit received by the taxpayer as unjustified. However, their combination often makes tax inspectors wary, and the courts make a decision not in favor of the taxpayer.

On May 14, 2018, the functional block of the Unified Information System in the field of procurement (zakupki.gov.ru) (hereinafter referred to as the UIS) was put into operation, ensuring the implementation of the requirements of the Decree of the Government of the Russian Federation dated July 1, 2016 No. 615 “On the procedure for attracting contractors to provide services and (or) performance of work on the overhaul of common property in an apartment building and the procedure for purchasing goods, works, services in order to perform the functions of a specialized non-profit organization carrying out activities aimed at ensuring the overhaul of common property in apartment buildings" (hereinafter - resolution No. 615).
From the date of commissioning of the above functional block, the placement of pre-selection procedures and electronic auctions for attracting contractors to provide services and (or) perform major repairs will be carried out in cooperation with the Unified Information System and electronic trading platforms in accordance with the procedure provided for by Resolution No. 615 .
At the same time, 2 new registers will be available in the public part of the UIS (Register of Qualified Contracting Organizations (hereinafter referred to as RKPO) and the Register of Unscrupulous Contracting Organizations (hereinafter referred to as RNPO)). These registers will be filled with information contained in the corresponding regional registers published on the websites of executive authorities of the constituent entities of the Russian Federation and on the official website of the Federal Antimonopoly Service. The maintenance and filling of the registers of RKPO and RNPO will be carried out by authorized bodies in the Unified Information System.
Information on contracts concluded as a result of electronic auctions for the provision of services and (or) the performance of major repairs of common property of apartment buildings (including procedures initiated earlier) after May 14, 2018 must be placed in the Register of EIS Agreements.

Register of unscrupulous suppliers- this is a list of contractors who violated the provisions of the relevant legislation (44-FZ or 223-FZ) during the signing or execution of a contract concluded as a result of procurement.

In the Russian Federation, there are legal norms that regulate the liability of performers recognized as winners based on the results of the procurement. If they evade the contract, they are included in a special list called the Register of Unscrupulous Suppliers, which entails the imposition of certain sanctions on such counterparties.

On November 22, 2012, the Government of the Russian Federation adopted a resolution describing the algorithm of actions - “On maintaining a register of unscrupulous suppliers, provided for by the Federal Law “On the procurement of goods, works, services by certain types of legal entities.”

FAS register of unscrupulous suppliers

The supervisory body responsible for reviewing customer complaints filed against unscrupulous performers and maintaining the register is the Federal Antimonopoly Service (FAS). And in the regions there are local territorial bodies.

Reasons for inclusion in this list may include the following:

refusal and evasion of the supplier from fulfilling or concluding a contract;

the customer going to court and the court making a decision to terminate the contract on the basis of serious violations on the part of the contractor;

refusal on the part of the customer to fulfill the contract, due to violation of the terms of the contract on the part of the contractor.

Register of Unscrupulous Suppliers - official website

Information about companies included in this database, in accordance with Art. 104 44-FZ should be posted on a single information portal and be available to everyone free of charge.

The official website of the register of unscrupulous suppliers in the Unified Information System is http://zakupki.gov.ru

Many customers make it a mandatory condition for participation in tenders that the contractor not be on the register.

Video: how to avoid inclusion in the RNP

Register of unscrupulous suppliers according to 44-FZ

This register contains the following information about these enterprises or individuals:

1. Number and date of recording information about the company (individual) in the register.
2. The authorized body that included the unscrupulous performer in the register.
3. Information about the supplier, contractor and its location, namely: legal name. person or full name of individual faces; country, index, name of territorial unit, city, locality, street, number of building, house, apartment or office; TIN of an individual or legal entity.
4. Information about the auction: the date of the auction, summing up the results or declaring it invalid and details of the document confirming this fact.
5. Contract details:
   — date of conclusion of the unfulfilled contract (if present);
   —name of the goods, works or services for which the contract was intended;
   — OKVED code of goods (works or services);
   — price and currency of the contract;
   - the period within which the contract must be executed.
6. The reasons for which the decision to terminate the contract was made.
7. Date of termination of the contract.

Inclusion in the register of unscrupulous suppliers threatens the contractor with a significant reduction in tenders, in which he will be able to participate for 2 years from the date of his inclusion in the list. But in addition to bidding under 44-FZ, there are also commercial tenders and procurement under 223-FZ. Those. if the customer in the documentation did not indicate a clear restriction for participants from the RNP under 44-FZ, then the contractor can submit an application for such a purchase.

Important: If the organizer or founder of a company included in the RNP submits an application for participation as an individual or individual entrepreneur, then, based on the instructions of the Ministry of Finance, such an application should be rejected.

This applies only to those cases where the customer establishes a requirement that the contractor be absent from the register of unscrupulous suppliers.

It is possible to remove it from this list prematurely if a court decision made against this organization (or individual) is canceled.

This period can only be reduced if the counterparty was included in the register by court decision.

Register of unscrupulous suppliers 223-FZ

Federal Law No. 223 does not have clear requirements for contractor companies regarding their involvement in the register. But often customers have a requirement in their documentation that the counterparty is not on this list.

The customer can independently check the supplier at any time for his integrity in relation to concluded transactions. Therefore, it makes no sense to take part in tenders under 223-FZ, the documentation of which contains a clause stating that the contractor is not in the register of unscrupulous performers.

Algorithm for adding a contractor to the RNP

Depending on the situation, the customer's actions differ slightly. Let's consider each of the situations in detail:

1. Cancellation (termination) of a contract through the court or refusal to perform the contract by the customer. The customer, within 3 days from the date of termination of the contract, must send to the FAS the data corresponding to Part 3 of Art. 104 FZ-44, as well as a court decision (its copy) or a letter justifying the reasons for the customer’s refusal to cooperate with this supplier.
2. If it is planned to conclude an agreement with a procurement participant next on the list after the rejected winner, then the customer must send information to the FAS (clauses 1-3, part 3, article 104) no later than three working days from the date of conclusion of the agreement with participant number 2. It is also necessary to attach an extract from the protocol of consideration of applications, the protocol of the auction, or any other documents that indicate the winner’s refusal to sign the contract.
3. The third case involves avoidance of signing the contract by the only procurement participant. In this situation, the customer, within 5 working days after the expiration of the deadline for signing the contract, sends information to the FAS (clauses 1-3, part 3, article 104) and attaches an extract from the protocol for considering the application, the protocol for the tender and other documents that may confirm that the only contractor refused to conclude the contract.

After the documents are received by the FAS, employees of this institution must review the facts presented in the documentation within 10 working days and make a decision.

If the information is not enough to make a decision, then a notification is sent to the customer within 3 working days from the date of receipt of the FAS data. And the customer is given another 3 days to contact the service to provide the missing information. If information about the contractor’s dishonesty is confirmed, then within three days the FAS includes this contractor in the register of dishonest suppliers.

Sanctions for providing false information

If providing information about an unscrupulous supplier is a necessary legal action within the framework of the contract being concluded, then you should not forget or ignore this action. Because failure to provide this information entails penalties (in accordance with the Code of Administrative Offenses of the Russian Federation, Article 19.7.2.) in the amount of: for officials 15,000 rubles; for legal entities persons - 100,000 rub.

The data in the article is current at the time of writing; for more complete and up-to-date information, follow the legal norms of the Russian Federation.

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In practice, most entrepreneurs, especially beginners, have many questions regarding the process of searching and checking counterparties: what tools should be used, are there free opportunities for this, what information needs to be analyzed, etc. Moreover, there are no standard rules and criteria for such verification . All actions that need to be taken are usually developed by companies themselves during the analysis process, based on a risk assessment.

According to Andrey Khrykin, project manager at Focus.Forum, the process of verifying counterparties rests on three pillars:

• Trustworthiness - the company's intentions and its relationship with the government and other business partners;
• assessment - identifying the main assessment criteria and objective information;
• knowledge - understanding what information is worth considering and what is not.

Why search and check counterparties?

Verifying a counterparty is a comprehensive and not one-time job, as many may think. But it is necessary, because the company’s money and reputation are at stake. It is not for nothing that the tax authorities warn that responsibility for choosing a counterparty lies entirely with the company. Therefore, it should be interested in assessing the risks and tax consequences that may arise as a result of cooperation with dubious counterparties. If the tax office has claims against one of your counterparties, it is likely that you will unwittingly find yourself in trouble.

Verification of new counterparties is also necessary taking into account such a concept as “unjustified tax benefit”, which is supposed to be received by those entrepreneurs who minimize taxation by evading taxes.

Why the service is convenient:

• The search for a company or individual entrepreneur is carried out by name, address, full name, tax identification number and other parameters. The relevance and reliability of information is guaranteed through access to official government open sources.
• In addition to the latest extracts from the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs, the user receives data from the Card Index of the Supreme Arbitration Court, the Federal Bailiff Service, the Federal Treasury State Contract Database, the Unified Federal Register of Bankruptcy Information, and the Rosstat Organizations Accounting Database.
• The company card, in addition to all other necessary information, includes a selection of links with mentions of the company on the Internet, which allows you to speed up the process of collecting facts by aggregating information from the media, from forums with reviews, from the website of the company itself and the websites of its partners, suppliers and clients, from the issuer's information disclosure page, from news resources.
• The service user can put 1000 companies under surveillance. Upon learning of changes in data, Contour.Focus will notify the user about them by email.
• The service is able to analyze organizations according to criteria preset by the user.

Offline verification of the counterparty, identification of suspicious signs

Armed with all sorts of free online verification tools, don't forget about offline investigation.

What needs to be done?

• Make sure that the company is actually located at the address indicated in the documents.

This is especially necessary to do in cases where you are negotiating, for example, with a manufacturing company whose activities require the presence of warehouses and premises for production. Unscrupulous counterparties may indicate non-existent addresses.

• Get to know the company's management personally when discussing terms of cooperation and concluding transactions.
• Make sure that the company intends to comply with the terms of the transaction.

This can only be understood during negotiations, observing the behavior of management. You should be wary if the counterparty is in a hurry to conclude a deal and wants to quickly agree on payment, while luring in with low prices and unrealistic conditions.

• Make sure that the conditions specified in the contract are feasible for the counterparty.

Does the counterparty have real capabilities to fulfill the terms of the contract? Will he be able to meet production or delivery deadlines for the product? Will it violate deadlines when completing work?

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