Consulting salvation is the work of their hands
So, for the next year in Russia will officially have a new profession – tax adviser. No, tax advisors exist today, but it was introduced in the state Duma the law “About tax consultation” introduces the system of self-regulation for those who earns a living by forcing his way through the maze of tax legislation. From now on, tax advisors will be considered only those who passed the qualification exam and become members of the self-regulatory organization (SRO). In principle, nothing unexpected happened. The Russian legislator is already established path. System of self-regulation of the various activities (of the same audit) are functioning in Russia for several years. But the Western experience of such way to organize certain types of economic activity spans many decades. The suitability of this mechanism for tax consulting? How well-researched the law? He who makes life easier – and who complicates? We will try to understand.
Can you be more specific?What can be considered tax advice? On what grounds and in what form it may be given? The new law links the concept of “tax consultation” with the conclusion by its results. And I, for example, practice and oral advice. So my staff will have to compose up a written opinion corresponding? The law explicitly States that the tax consultants can develop a strategy clients on tax planning of its activities, have the right to provide services in the preparation of tax reporting, as well as act is actually in the role of tax lawyers, that is to represent the client’s interests in court. Generally the list of services that can be provided within the framework of tax consulting, the law leaves open. On the one hand it’s, like, good. On the other hand practice shows that in Russian conditions, more than the amount prescribed rights of citizens – the better.
The principles of self-regulation
Recall that today, tax consultants already have a kind of self-governing body – the Chamber of tax consultants. But before us the law assigns him the role of other structures. This is primarily SRO. They will come and individuals (tax advisers) and legal entities (tax advice). The SRO should consist of not less than one hundred such persons. At the same time, serious control functions in the field of tax consulting transferred the Federal tax service (FTS).
The law provides for the liability of tax advisors for the disclosure of information provided by customers (except those cases, when the client intends this information to make public, and information about the fact of conclusion of the contract on consulting). So, liability. The law introduces punishments such as warning, suspension of membership in SRO and the highest measure is an exception from it. But at the same time not specified, in what cases, for what offences could apply some type of punishment. It will agree, will inevitably cause problems with the application of the law. Much will depend on judicial practice, but while she will be acquired, it will take some time. Imagine the situation: the tax adviser acting as expert in litigation. Would it be possible to say further that his conclusion is disclosure of secrecy?
In addition, the law prohibits the seizure of documents provided to the consultant his clients (except for the situations expressly provided by the code of criminal procedure). In my opinion, this safeguard consultant would cost to strengthen. For example, to impose the requirements of judicial authorization for the seizure of information from a tax consultant.
Another measure of the responsibility provided by the law. Tax consultants will be responsible to its customers for providing poor quality services. What is the criterion for the quality of services of a tax consultant involves the law? It’s very simple: if the client on the basis of a judicial decision (which has already entered validity) will be forced to pay fines and penalties for actions taken on the basis of proposals of the consultant, the person performing tax consulting, will be obliged as recourse to compensate the client for such costs. Draw your attention to the fact that the responsibility of the tax consultant is only within fines and penalties. If the client, based on consultation decided, the consequence of which was assessed additional taxes, such tax losses the consultant to indemnify him is not required.
Thus, the court will be the court that determines the quality of tax consultant. At first glance, the position of the legislature is impeccable. But if we turn to the law-enforcement practice in cases of tax offences, we can see that the situations where the courts clearly be on the side of tax authorities, to put it mildly, are found not infrequently. Calling a spade a spade: some prosecutorial bias of the courts will make the job of a tax consultant is very risky.
In addition, the quality of work of tax consultants will hold until a certain authorized Federal body (it will determine, most likely, the Russian Government decree). The results of the inspections the authority will suspend the membership in a SRO or to exclude from their composition in the offending consultants. Of course, the right to conduct inspections and endowed with the SRO. Provides for the creation of another governing (controlling) body in the sphere of tax consulting. The Council on activities in the field of tax consulting. He will be endowed with significant authority to adopt professional standards at the Federal level, approve the Code of professional ethics in the field of tax consulting. What’s troubling is that the abundance of regulatory bodies and the excessive (in my opinion) the presence of officials. So, in the above-mentioned composition of the Council representatives of the professional community of tax advisers are in the minority. Actually, I think, tax consultants, after the adoption of the law will be more vulnerable than it is now. For example, the right to seek suspension of membership in the SRO (and even exclusion from the organization) will be vested with the tax authorities. The consultant and the victim may challenge this requirement in court. That is, it is exposed to administrative tools, and he can defend only by applying judicial methods.