Due diligence - this concept was introduced by the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12.10.2006 N 53 [1] , however, there is no exact definition of the concept in it. Based on a synthesis of information available in open sources, due diligence refers to the adoption of a set of measures and actions aimed at obtaining the necessary and reliable information about a potential counterparty . The exercise of due diligence is one of the actions to verify the counterparty . The Federal Tax Service of Russia actively uses the concept of due diligence to challenge the validity of the VAT deduction, as well as the legality of the inclusion of certain expenses by taxpayers in the costs of calculating income tax if one-day firms are present in the payment chain.
Most often, prudence is deemed inappropriate when working with a counterparty when
- the counterparty is not registered in the Unified State Register of Legal Entities / EGRIP or there are violations during registration;
- the counterparty is valid, but the primary documents are drawn up with violations;
- there is no information about the address of the location of the counterparty, and the address of its registration is "mass" ;
- there is no documentary evidence of the authority of the manager or his representative, signing documents on behalf of the counterparty;
- the taxpayer did not verify the identity of the head of the counterparty or his representatives;
- there is no information on the acquisition / production by the counterparty of goods for subsequent sale, that is, only cash flows are carried out, and there are no goods flows;
- the counterparty does not have production and (or) retail space, own or leased real estate, equipment, vehicles, employees.
And this is not a complete list of possible circumstances. The adverse consequences of insufficient prudence when concluding transactions in entrepreneurial activities fall on the person who concluded such transactions. Moreover, often checking only the state registration of the counterparty and its registration with the tax authority is insufficient and is not recognized by the tax service and the courts as manifesting due diligence by the taxpayer.