Mistakes and risks of financing in the group of companies

You may already be familiar with our analytics on allegations of artificial business splitting, which covered all tax arbitration disputes in the context of “business splitting” in a complete manner. In 2017-2019 (we are ending 2020), there were about 350 cases that went through three instances in court.

The analysis gave us the basis to identify 30 signs of artificial fragmentation of the business, which we were able to rank according to the degree of their “killer”. You can find all the analytics on this issue in the corresponding Guide.

Here we present those signs of fragmentation, which are somehow connected with the wrong movement of money in the group of companies.

In the rating of signs of artificial fragmentation, 29th place is occupied by unusual forms of settlements and unreasonable payments. This includes bills of exchange, mutual offsets, provision of interest-free loans, significant prepayments. The main reason is clear – the unwillingness to “distill” money once again between the subjects of the group.;

Examples:

Funds in the group of companies were transferred between the entities with the payment bases “repayment of bills” and “repayment of loans” (rent of real estate).

LLC on OSN attracted an individual entrepreneur to provide transport services, while previously transferring vehicles to him for use. Additional evidence of the formality of the relationship was the regular return of loans to interdependent taxpayers by individual entrepreneurs, which the individual entrepreneur had allegedly always received in cash (services).

Loans between the companies of the group were closed by offsets for rent (catering).

In order to preserve the simplified tax system, an individual entrepreneur registered the actual proceeds from the rental of real estate in the form of the sale of his own promissory notes to controlled tenants, plying further between related companies (rent of property).

23rd place – use of property without a contract
Of course, we are talking about those cases when a business does not want to send money to an entity where they are not needed.
Examples:

Two trading companies on the simplified tax system operated on premises owned by the beneficiary of the business and officially used by its main taxpaying company. At the same time, the right to use both this premises and other equipment (loading equipment, transport) was not legally formalized in any way (wholesale trade).

The IP beneficiary manufactured products and sold them through a network of companies controlled by him for special purposes. modes. At the same time, the companies used the property of this IP (manufacturing, retail trade) free of charge.

13th place – actual control of financial flows in the group
Basically, we are talking about cases where the sale of goods / works / services is carried out “backdating”. This sign is especially pronounced when a business organizes the so-called “without VAT-sales sleeve”, which involves the sale to end customers from different entities solely depending on their taxation system.
Example:

A single purchase when selling goods through several controlled LLCs. The sale of goods within the group of companies was formalized after the goods were sold by the associated LLC to the final buyer. Thus, the conclusion of contracts and the movement of funds within the Civil Code was artificial.

We also include the unified management of bank accounts (single IP and MAC addresses when accessing the Internet bank, a signatory in a bank card – a representative of the counterparty, matching contact numbers in the bank when opening accounts) to the actual control over finances. From the point of view of the Federal Tax Service and the court, this proves, among other things, the control of the counterparty.

Example:

IP on personal income tax is engaged in the sale of fuel and lubricants. At the same time, LTD leases vehicles for the provision of transport services on UTII. However, he took into account the VAT costs related to transport in his taxation. Among the evidence of the “scheme” was the fact that the IP is the only person who actually manages the account of the LLC. In the bank card with samples of LLC signatures, our individual entrepreneur is the only authorized person.

12th place – Movement of funds to one entity

The sign can manifest itself both when trying to consolidate funds in the operating sector (in procurement, for example), and directly on the beneficiary (as on an individual entrepreneur, or on a company completely controlled by him – because he is afraid of losing control over money).
Example:

The LLC leases 20 cars to the entrepreneur for UTII with the payment of rent in the amount of 4 million rubles. These cars in the same period are transferred back by the entrepreneur to the LLC under a contract for the provision of transport services. The transaction price is 35.5 million rubles. The entrepreneur directly earned 13 million rubles “clean” by transferring it to his personal account (as an individual).

10th place – Bearing expenses for each other

On the side of the selling entities, most often we are talking about support costs – advertising companies (from one retailer, for example, an entity in the interests of several), IT and website maintenance (there is one site, but several companies use it), etc.