The Federal Tax Service conducted an analysis of the effectiveness of sending subpoenas for questioning a witness and found out the following:
- the share of subpoenas for questioning is more than 43% of paper documents sent by tax authorities;
- at the same time, the turnout of witnesses is only 15%, and in some regions is less than 7%.
In its clarifications, the Federal Tax Service notes the following reasons for the low efficiency of bringing witnesses:
- there is no motivation to appear for questioning at the tax office, because the fine for non-appearance is only 1,000 rubles, and, as a rule, they are not held responsible;
- the inspectors do not make a preliminary analysis of the role of the witness and the significance of his testimony, so they call "everyone in a row" for tax questioning;
- inspectors who conduct interrogations at the place of residence of witnesses (on behalf of an inspection from another city/region conducting the tax audit) do not understand all the essential circumstances (goals and objectives of the interrogation) that affect the strategy and tactics of tax interrogation.
To increase the effectiveness of interrogations, the Federal Tax Service instructs* the tax authorities to:
- to provide a risk-based approach: to determine who needs to be called for questioning, taking into account the role and the significance of the testimony, as well as in relation to the expected results (potential additional charges, collection of evidence against the taxpayer and his counterparties, etc.);
- indicate the purposes and objectives of the interrogation (sent to the authorities of the other city/region where the witness leaves), include options for questions depending on the answers received during the course. Subpoenas for questioning should be sent in advance;
- reduce the number of witnesses calls no less than 30% in the 1st quarter of 2023 in comparison to the level of the 4th quarter of 2022.
*Clarifications have been provided in the letter of the Federal Tax Service of Russia dated 10.02.2023 No. SD-4-2/1627@.
We believe that most likely the number of subpoenas for questioning will decrease, but the interrogations will become more in–depth — the number of questions and the degree of their detail will increase.
If you have received a subpoena for questioning, we recommend you follow these recommendations in order to successfully pass the interrogation:
- It is important to remember that the goal of the inspectors is often to get the "necessary” testimony: the inspector asks questions in such a way as to prove their version of events. Therefore, the task of the witness is to be extremely attentive and:
- To maintain the general “line” of answers: not to give different answers to the same question, which can be asked by the examiner in different variations about the same transaction or business operation, the same persons, only to bring down the witness;
- Answer all the questions posed, if they have fundamental importance (for example, the responsible employee needs to confirm the facts): reviewers often include a series of questions in one question, each of which requires a separate answer.
Consistently provide answers to all the questions posed, if it is important and required, for example, to confirm the circumstances that matter;
- Outline the scope of your professional duties and powers and not answer questions outside of this circle, even if the information is known. It is better to refer to a colleague who is competent in the question asked.
- Not to succumb to tricks and manipulations: strive to answer questions asked directly and to the point. Do not react to the emotional comments of the inspectors (for example, the inspector may express doubts about the competence of the interrogated), maintain composure with intentionally long pauses or, conversely, accelerated pace of speech, uttering questions in a low voice. Do not believe the verifier in word, for example, that other colleagues gave different answers if you are sure that you have reliable information (if you are not sure, record in a neutral wording in the protocol that you should review the contract, primary documents, accounting data or other documents before to provide the comment).
- In any company there is a certain change of staff over time. If the witness turns out to be a former employee, there is always a risk that:
- he will not remember the details during the interrogation and will answer “I do not remember” or “it did not happen”, which will be interpreted that the employee did not confirm the facts/circumstances, which means there was no transaction, the operation was not performed, the primary documents are fictitious, etc.;
- he may be “offended” by his former employer, therefore, he will tell about the violations of tax legislation known to him, which will help to form additional claims against the company;
- he will give other contradictory testimony, because he “doesn't care anymore”.
In this regard, we recommend to keep in touch with former employees and, if necessary, explain to them that the interrogation is not related to a violation of the law by the company, but it is a standard procedure of the tax authorities during audits. Provide the former employee with the documents so that he can remember the scope of operations of the previous periods, recommend responding within the scope of previous job responsibilities (do not go beyond the competence, do not to inform other people's words, rumors, interpretations, etc.), using only the facts he witnessed.
- At the end of the interrogation carefully review the minutes (protocol) of the interrogation and insist on entering the answers by the inspector in the form in which they were given – without using simplified wording, reservations and distortions, inaccurate descriptions that distort the essence of the answers. As a rule, we recommend a witness to attend an interrogation with a full–time lawyer of the company or an outside consultant who will “morally” support the witness, make sure that the witness accurately understands the questions asked and is familiar with the terms used (for example, “bad-faith supplier” – from what is bad-faith? “due diligence/due circumspection” – what is it? what are the “intra-group services”? and so on), subtract the protocol for the correctness of the answers recorded by the examiner, help to insist on making correct and complete formulations of the answers or formulate comments for inclusion in the protocol as the additional remarks.
Otherwise, unfortunately, there are cases when objections to questions and answers given during the interrogation were not subsequently accepted by the courts, if these objections were not indicated in the remarks to the interrogation protocol, and the answers given outside the competence of the witness were recognized by the courts as completely admissible evidence.
Marillion Tax & Legal practice team monitors the interrogations conduct by the tax authorities and is ready to both advise you and your colleagues in more detail and help in preparing for interrogations and accompanying them.