Audit secret and new law on tax authorities access to audit data
Managers of many firms are turning to auditors to conduct audits, restore accounting and advise on accounting and taxation issues. Addressing specialists, business entities expect that the law requires auditors to “remain silent” about the facts of the client’s economic life, which implied an auditor’s secret. Audit secrecy is one of the foundations of a trust relationship with a client. Alexey Slyusarev, Director General of the Status Quo Law Center, describes in detail the role of the auditor in the relationship between business entities and the state
As follows from paragraph 3 of Article 9 of the Law on Auditing, an audit organization (auditor) is not entitled to transfer information and documents constituting audit secrets to third parties, nor to disclose this information, including the content of documents, except as otherwise provided for in auditing and other federal laws. That is a mandatory condition for the transfer of such information to third parties is a statutory permission.
Everything seems to be nothing, but until such time as Federal Law No. 231-ФЗ dated July 29, 2018 “On Amendments to Part One of the Tax Code of the Russian Federation” came into force, which supplemented the Tax Code of the Russian Federation with new article 93.2.
The content of this provision significantly expands the powers of the tax authorities from January 1, 2019. Officials of the tax authority at the place of registration of an audit organization (individual auditor) have the right to demand from it the services obtained in carrying out audit activities and the provision of other services related to auditing activities stipulated by clauses 1, 2, 4 and 5 of part 7 of article 1 of the Federal Law of December 30, 2008 No. 307-ФЗ “On Auditing”, documents (information).
That is, business entities should not expect that their appeal to the auditor will remain without consequences with the introduction of the new provisions of the Tax Code.
Moreover, often the tax authorities, “delighted” with the new powers, completely forget that they can be applied only in accordance with the procedure established by law. In turn, the established procedure for forming a request in accordance with the provisions of Article 93.2 of the Tax Code of the Russian Federation envisages its mandatory approval in the central apparatus of the Federal Tax Service.
Inspections need to clearly define for themselves what it wants. The request must be formulated specifically, indicating exactly which documents or information were not provided by the taxpayer during the tax control and what the tax authority needs as a result of the execution of the request, that is, what documents the regulatory authorities want to receive.
After the central office of the Federal Tax Service approves the request, drawn up taking into account the provisions of article 93.2 of the RF Tax Code, it is submitted to the inspection, which is registered by an auditing company. After receiving this request, the tax authority sends it to the address of the auditing firm.
When executing requests, the behavior of an auditor is important, since it is precisely his reaction that determines what kind of information falls into the hands of fiscal authorities, which, unfortunately, do not always follow the letter of the law.
It is worth noting that tax authorities are entitled to apply to auditors only as part of a field tax audit or verification of the completeness of calculation and payment of taxes in connection with transactions between related parties.
There is an exception to this rule, as well as from any other – the documents can be obtained by the inspection from the auditor (audit company) also upon receipt of a request from the competent authority of a foreign state (territory) in relation to the audited person in cases stipulated by international treaties of the Russian Federation.
It should be noted that during the off-site tax audits, the changes in question do not apply. Therefore, when receiving a request, the auditor should understand that with regard to his client either a field tax audit is being conducted, or a request has been received from the competent authority of a foreign state (territory) in relation to the audited entity, the execution of which is governed by international treaties of the Russian Federation.
In other cases, requests from tax authorities sent to auditors are illegal and not enforceable.
Pay attention to the treatment of tax authorities to auditors.
Directly the requirement to submit documents (information) should be formed by an official of the tax authority at the place of registration of the audit organization (individual auditor). However, one should not forget that the application of the provisions of Article 93.2 of the Tax Code of the Russian Federation does not exclude the use of the powers provided for in Article 93.1 of the Tax Code of the Russian Federation, which establishes the procedure for interaction of tax authorities when requesting documents (information) from contractors or other persons possessing them.