Налоговые нарушения в трансграничных сделках. Проблемы установления действительных налоговых обязательств

Abstract

Determining valid tax liabilities is an approach developed by law enforcement practices, according to which, even if a tax offence is identified, the state treasury should receive tax only in the amount determined by the legislature. Above this amount, the arrears are not a tax, but a sanction that is not established by law. But if in recent years this approach has been actively developed and used in practice for domestic transactions, additional tax assessments for cross-border transactions are often made without taking these requirements into account. Reclassification for the purposes of International transactions has already been in the focus of the Supreme Court’s attention, but lower courts apply its legal positions very narrowly – only within the same category of cases. As a result, in the majority of cases, even if there are identified facts and circumstances that allow the true amount of arrears to be determined, law enforcement authorities ignore them. This leads to tax being collected in an excessive amount, and sometimes to double taxation of the same income. There is no reason why the approach that has become generally accepted for domestic transactions could not be applied to persons involved in foreign trade. Arbitrary taxation and the collection of unspecified payments under the guise of tax undermines the confidence of business entities in the tax system and the predictability of law enforcement practice.