A.V. Churyaev. The Tendencies of Taxes’ Case Law Concerning “Vicious” Counteragents

Abstract: This article is devoted, in the author’s opinion, to one of the most pressing problems in modern tax laws that can be formulated as gaining tax advantage from business relations with so-called “fly-by-night companies.” The commodity turnover that has formed in Russian Federation shows that more than one half of companies registered in our country are founded with the purpose of tax avoidance. The usage of such organizations in tax evasion schemes is vividly illustrated in notorious court cases against such companies as “UKOS,” “Rusneft,” “MIAN” and others. Still, up to now there is no unified approach to the legal estimation of the transactions in which such a “vicious” company is a party to the trade. The tendency of judiciary law enables us to claim that in our country courts gradually cease applying to such an important presumption as innocence of a tax payer. It often happens that it is a tax bearer, who carries a burden of adducing evidence of his/her conscientiousness despite the fact of public legal relations in which tax officers have potentially wider legal opportunities. Such situation justifies scientific community’s opinion about the necessity of reviewing the abovementioned tendency, with the balance between a tax office’s and a taxpayer’s interests kept. In this connection the important thing is the application of a scientifically-founded approach to trying similar disputes, taking into consideration common regularities of tax law in the whole jurisprudence system. This article represents an attempt to introduce such a theoretical conception. Chasing this task, on the base of law enforcement practice, the author points out the characteristic features and classifies fly-by-night companies, defines the extent of their influence on a tax bearer’s tax risks. On the ground of studying modern researches in tax law science the author makes a conclusion that the main thing in the case of having a dispute should be the exposure of the economic operations reality, not defining a contractor’s civil- law status. Undoubtedly, a party to the trade’s defective status can be a reason for the declaration of a deal’s invalidity, but only in civil-law relations. For tax purposes it is the fact of making an economic transaction that is important. The attention also should be drawn to the attendant payment (to be exact real commodity and money movement). The existence of such circumstances should be a subject to be proven in such disputes. Other point of view would broaden tax control purposes and would transfer into the sphere of civillaw relations.

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