Today, more often during tax audits, such a thing as “due diligence” sounds. It is not fixed either in the Tax Code or in other regulatory provisions. However, a reference to this concept is present in the acts that make up the tax. Due diligence - what is it? Let's look at the article. 
Relevance of the issue
Principle of due diligence It began to be applied by supervisory agencies as a result of more frequent cases of payers using one-day companies and relations with unscrupulous partners. This was due to the desire of subjects to reduce the amount of mandatory budgetary contributions or to avoid payment. Accordingly, persons received unreasonable benefits. The state, of course, provides for certain measures aimed at regulating business operations. In particular, criminal liability is provided for the unlawful creation of a legal entity or its reorganization. But existing measures are not always enough to eradicate violations.
Due diligence
Arbitrage practice in cases of financial irregularities has developed an approach to the settlement of disputes related to the use of unfair economic relations, one-day firms to derive unjustified benefits. Its general provisions were enshrined in plenary resolution of the Supreme Arbitration Court of the Russian Federation No. 53 of 2006. This determination clarifies the assessment by the arbitration tribunal of the validity of the taxpayer deriving tax benefits. The argument about its absence can act as a refusal to make a profit if the subject is affiliated or interdependent with the partner, that is, he could be aware of violations by the latter of obligations established by the Tax Code. This explanation is aimed at establishing the boundary of responsibility of the payer for dishonest actions of his counterparty.
Controversial issues
Despite clarifications of YOU, legislatively due diligence principle not regulated. In this regard, controversial situations arise. At the same time, the authorities considering the relevant cases evaluate the exercise of due diligence when choosing a counterparty very selectively, subjectively. In this case, the price of the claim, the economic situation in the country as a whole, and the specific circumstances of the dispute are taken into account.
As a result, in similar situations, sometimes opposing decisions are made. For example, a request for information from the Unified State Register of Legal Entities through the official website of the supervisory authority, the availability of copies of the charter, state registration certificate, registration, manager's passports, duly certified - all this was recognized by the authority as a manifestation of due diligence when choosing a counterparty. The opposite decision was made by the appeals body. The court, in particular, indicated that neither the fact of state registration in the Unified State Register of Legal Entities, nor the license to conduct construction activities is indisputable confirmation of the reality of business operations conducted by the entity. This position was explained by the fact that the above information and materials alone do not characterize a person as a conscientious, stable and reliable participant in economic relations.
Nuances
In this way, due diligence check may lead to different results. What to do in this case? Lawyers made several recommendations. Using them, an economic entity can avoid problems. Before entering into a transaction with any entity, it is advisable to check its integrity.A series of measures will guarantee legal protection in the event of a dispute. The check will make sure that the subject with whom the contract is concluded:
- It is a current legal entity capable of fulfilling obligations assumed by itself. For example, if a supply contract is concluded, then the check should show that the entity will actually ship the goods.
- Not a one-day company. Transactions with such organizations increase the likelihood of a field audit. At the same time, expenses for the purchase of products (purchase of services, works) from such companies and VAT deductions may be considered unreasonable.
A one-day company is a legal entity that is not endowed with actual independence. It is not created to conduct economic activity. As a rule, such firms do not provide reporting.
Action algorithm
How to prove due diligence? To avoid problems, you should:
- Use public electronic services.
- Get information from the register.
- Request from the company with which the transaction is expected to be certified certified copies of documents.
Consider each step.
Public Services
First of all, you should use the official website of the Federal Tax Service. If the company really exists, then information will be available on the TIN, PSRN, address, name of the director and founders, types of activities carried out under OKVED. Accordingly, if data on the company are not available, it is impossible to conclude a deal with it. Under an agreement with such a company, it will not be possible not only to take into account the costs and accept VAT deductible, but also to recover the debt, since the company does not exist. On the site you can also find information about persons who are not entitled to exercise leadership or be a member of a legal entity. The relevant fact must be confirmed / established by the court. The site has a section in which there are data on debtors or entities that have not submitted reports. In addition, you can check the addresses indicated during state registration as the location. 
Legislative changes
Currently there are several innovations. Thanks to the introduced changes, it will be easier for business entities to comply with due diligence requirements. In particular, on the official website of the supervisory authority, you can find information on the average number of employees, production costs, sales revenue. The electronic version of the Vestnik gosregistratsii journal also publishes data on decisions taken by the registration authorities on the upcoming exclusion of legal entities that have been declared invalid from the Unified State Register of Legal Entities. The relevant resolution may be issued if the company did not submit reports and did not perform operations on one of the available bank accounts during the year.
Other services
how due diligence viewing of information will be regarded:
- In the Unified Federal Register of Facts on the Activities of Organizations. Here you can find information about liquidation, reorganization, bankruptcy, the availability of licenses (existing), the value of assets.
- In the Register of Unscrupulous Suppliers.
- On the site of YOU. Having visited the section "Bank of decisions", you can find judicial acts by the name of participants.
- On the FSSP website. Of interest will be the "Bank data enforcement proceedings."
In addition, you can view the register of disqualified directors in the information databases of the Ministry of Internal Affairs.
the confirmation
All of the above actions undoubtedly act as due diligence. Federal Tax Service, however, may request confirmation of their completion. In this regard, it is advisable to take screenshots of web pages. They can be printed or saved in a special folder on the computer. In addition, lawyers recommend making copies of leaflets, advertising booklets, photo stands, copies of emails. They will perform as due diligence documents.
Extract from the register
It can be obtained on paper. The provision of an extract is paid. Service cost:
- 200 rub - in case of issue of paper within five days;
- 400 rub - upon submission the next day after submitting the request.
The application is submitted to any inspection. It is compiled in any form. The request shall indicate:
- Name of the company of interest.
- TIN and BIN.
- Name of applicant, information about him. Among other things, you must also specify the PSRN and TIN, contact phone number, address (mail or electronic). If an extract needs to be received in person (to the manager or another person acting by proxy), information about this should also be present in the application. If there is no corresponding mark, the paper will be sent by mail.
A receipt for payment for the service is attached to the application. These documents can be sent to the inspection by mail or provided in person. 
Electronic form
An extract may be provided free of charge. To do this, use the electronic service available on the website of the Federal Tax Service. An extract will be provided in PDF format. The document will have a qualified enhanced digital signature. A printed statement is equivalent to a paper one issued in the manner specified above. It should be noted that the electronic service can be used by persons who are registered on the inspection website and have access to their personal account. It should also be noted that receiving an extract alone is not considered due diligence. When choosing a counterparty, it is necessary to take into account a set of criteria for assessing risks that are possible when interacting with a company.
Request for papers from a future partner
Due diligence in choosing the company with which the transaction will be concluded is an important step towards establishing mutually beneficial relations. Of course, there can be no talk of any cooperation if the company does not comply with the requirements of the law. To verify the integrity of the company, you should request copies of:
- Of the Charter.
- St.-in on state registration and registration with the inspection at the location address.
- Decisions on the appointment (election) of the head.
- The second and third pages of the director’s passport.
- Licenses This document is necessary if the transaction is related to activities for the conduct of which permission is required.
- Accounting statements (annual). The document must contain information for the past period.
- Declarations (including VAT).
- Bank statements for r / s.
All copies must be properly certified. 
Copy of passport pages
The validity of the data in this document can be checked by series and number. A special FMS service is intended for this. It is worth noting that many legal entities ignore the recommendation of lawyers about a copy of the passport, believing that the actions they committed will already be regarded as due diligence. When choosing a counterparty among other papers, a copy of the decision on the appointment / election of the head, the minutes of the meeting, the order on the entry of the person in office and extracts from the Register is requested. The latter shall indicate the full name, post of the entity having the right to act on behalf of the enterprise without a power of attorney, as well as information about its passport or other identity document.
License
Information on permits issued to business entities is contained on the websites of competent authorities. However, it is worth saying that checking information on the availability of licenses can only indicate non-compliance with the requirements of the relevant standards. However, this may be in no way connected with the failure to comply with the provisions of the Tax Code. Accordingly, the lack of licenses may not entail tax consequences if this is not expressly provided for by the Code.
Reporting
Its data can be obtained free of charge for any period in Rosstat, if the company provides documentation to the statistical authorities.An interested person should send a request to the territorial unit in the prescribed form. For some enterprises, there is an obligation to post statements on the official websites of authorized information and analytical agencies. 
Representative Credentials
In many transactions, a person with a power of attorney acts on behalf of the organization. When interacting with a representative, as well as with the direct manager of the company, it is also necessary due diligence. This is especially important when people sign invoices and fulfill the terms of the contract. The sighting of payment documents by unauthorized entities deprives the payer of the opportunity to apply VAT deductions. In this case, the reality of supply will not act as a determining condition for obtaining benefits in the form of tax benefits.
Registration of invoices
In practice, filling out these documents is often done with some flaws. The dispute resolvers are of the opinion that the absence of the consignee’s name on individual invoices does not constitute an obstacle to recognizing them as confirmation of the registration of purchased products for subsequent VAT deductions. This position is determined as follows. Even with the absence of the above information on the invoice, it allows with the necessary reliability to establish the fact of a business transaction. Details that are not contained in the paper (taking into account their significance) do not affect the evidence of the action taken.
Exceptions
Not every action of an economic entity is considered as due diligence. So, they will not act as confirmation of actions aimed at preventing risks, paper:
- Not duly certified. In particular, we are talking about copies of documents that are requested from a partner.
- Provided after the transaction.
The results of events united by the concept of "due diligence", you can draw up a special certificate. The received (printed) papers are attached to it. All materials can be stored in a separate folder. All activities aimed at checking the counterparty should be fixed in the regulations. For example, they can be reflected in the" Regulation on the preparation rules, coordination, signing, accounting, control of the execution and storage of contracts. "If the company does not carry out business operations, information about which is present in the statements, the inspection has the right to refuse to recognize expenses and deductions of VAT, even if confirmed due diligence. 
Supervisory recommendations
In addition to what is considered to be the mandatory procedures mentioned above, the tax inspectorate advises to conduct some other activities related to the study of aspects of the future counterparty. First of all, it is recommended to witness the personal contact of the head or other authorized person of the supplier with the executive bodies of the buyer during the discussion and signing of contracts. Such a requirement is put forward by the Federal Tax Service, despite the fact that civil law does not fix the obligation of entities to conclude agreements at a meeting.
As Section 434 of the Civil Code points out, the written form of the transaction will be considered complied with if its conditions are reflected in one paper signed by the parties, as well as if the participants in the relationship exchanged contracts by mail, fax or other means of communication, allowing to establish with the necessary reliability that the act comes from the participant or a written proposal was accepted according to the rules fixed in 438 of the Code (sub. 3). It is also worth noting that Art. 165 of the Tax Code (Clause 1, Clause 1) does not impose additional requirements, since the question of the form of the agreement does not belong to the field of tax regulation.Despite the apparent inconsistency of the recommendations, it is still advisable for the company to have facts confirming personal contacts. For example, photographs of negotiations, written reports, testimonies of participants in a discussion, letters of attorney, emails, business cards, etc. can be used as such.
Company Location Address Information
The scope of actions of the payer, sufficient to formulate the conclusion that due diligence and caution were observed to the necessary extent, cannot go beyond the scope of activities that one firm is obliged to carry out in relation to another. The relevant restrictions are established by civil law. Despite this, some courts regard the lack of action to determine the actual location of the partner as non-compliance with due diligence requirements. It is worth saying that in this position there is a certain logic.
Moreover, information about the address of the actual location of the partner may be needed by the company itself in case of a dispute. Relevant information will contribute to a more rapid collection of debt.
Arbitration Disputes
Despite all the above measures, federal legislation does not provide the payer with the right to check the status of accounting and financial reporting, the timeliness and correctness of the deduction of mandatory budget payments when concluding contracts and fulfilling their conditions. Accordingly, the partner is not required to provide this information. This means that in controversial situations the responsibility for proving rests with the supervisory authority. It is the inspection that provides the materials confirming the violation. Moreover, the supervisory authority is obliged to prove the payer's guilt of a committed illegal act, in accordance with paragraph 6 of Art. 108 Tax Code.