Tax officers were allowed to check computers in the office. Supreme Court: inspectors have the right to inspect personal computers during an on-site tax audit

Heads of organizations and accountants should know that as part of the audit, Federal Tax Service employees can not only request copies of documents, but also check the software and all files on the company’s computers. Such actions of the inspectors were recognized as justified by the Supreme Court of the Russian Federation.

What's happened?

The Supreme Court of the Russian Federation ruled determination in case No. A19-916/2016, in which the taxpayer refused to recognize the actions of the Federal Tax Service as part of an on-site tax audit as illegal. The judges indicated that during such an audit, tax officials can not only request copies of the necessary documents, but also search for them themselves, for example, in the computers that are in the taxpayer’s office.

Inspecting computers and checking software does not violate the rights of the organization

As part of the on-site inspection, Federal Tax Service inspectors requested copies of documents from the taxpayer organization. The organization asked for a delay, citing the large volume of documentation and the possibility of the inspectors familiarizing themselves with the originals of these documents during the inspection. Federal Tax Service specialists refused the taxpayer's request and inspected the organization's premises. During the inspection, tax officials checked all items and documents in the office, and also became familiar with the software installed on the taxpayer’s computers.

The organization considered the latest action of the tax authorities to be illegal and went to court. The taxpayer pointed out that the inspectors simultaneously presented two mutually exclusive demands - to provide copies of documents and to familiarize themselves with their originals. In addition, it is unreasonable for inspectors to familiarize themselves with the software installed on the company’s computers.

However, the courts of all instances, including the Supreme Court of the Russian Federation, did not agree with this position of the organization and recognized the actions of the Federal Tax Service as legal. The judges explained that the inspection during the inspection of a personal computer includes familiarization with the software installed on it. After all, only in this way can one establish what specific problems a particular computer solves. Carrying out such an inspection meets the requirements Article 92 of the Tax Code of the Russian Federation. The judges also noted that familiarization of tax officials with original documents does not exclude their right to receive corresponding copies.

The Irkutsk pharmacy received an inspection from the tax office. When inspectors began digging into the computers and checking what software was installed on them, the owners were outraged. They complained to the arbitration court, but it sided with the inspectors. The case reached the Supreme Court, which confirmed that everything was legal: documents are stored on the computer, and they cannot be opened unless you know what the software costs.

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Supreme Court

Details - in the Supreme Court Decision N 302-КГ17-8315

The court emphasized that the Tax Code does not spell out in detail how the inspection should be carried out, and there are no restrictions. If inspectors want to get into office computers during an on-site inspection, then this is according to the rules.

Why does this concern me?

If there is no gray accounting on your computer, this does not mean that inspectors will not find anything criminal in it. During the check, they may stumble upon unlicensed software. Pirated “Photoshop” or “Office” is a violation of the law.

The tax inspectors themselves cannot initiate an administrative or criminal case against you - this is handled by the Investigative Committee. But inspectors must report the crime there. Then you will face serious consequences.

If the damage caused to software copyright holders is less than 50,000 rubles, the company will be fined in the amount of 30,000 rubles to 40,000 rubles. In addition, investigators can seize a computer with pirated software for up to four months.

6 years in prison is the maximum punishment for using pirated software

If the damage exceeds 50,000 rubles, then criminal liability arises. For using pirated software you can get up to six years in prison.

We asked the lawyer who, in his experience, faces charges: the head of the enterprise or the system administrator who installed unlicensed software on computers. It turned out that this depends on many factors. The basis of a crime is intent. If the director had no intent (for example, he didn’t even know that software could be pirated), then the system administrator may be convicted. Or maybe directors anyway. How the judge decides, how the investigator decides, what the prosecutor says - in neighboring courts the same cases can be handled differently.

The amount of damage is calculated based on the cost of licensed versions of programs. Price "Microsoft Office" - from 24,000 rubles, "Windows" - from 5,500 rubles, "Adobe Photoshop" - from 24,000 rubles. Such a set of three pirated programs on one computer is already worthy of a criminal case.

What to do?

Use legal software and everything will be fine.

During on-site tax audits, inspectors often require access to computer accounting programs. A variety of easily generated and easy-to-analyze reports allow reviewers to detect errors with a greater likelihood than from primary documents. But the company can legally access the program.

When an inspector's request to turn on a computer is illegal

The Tax Code obliges the taxpayer to store primary documents, maintain tax registers and generate reports. Therefore, only this information is required to be submitted for verification. But does the company keep records in a special accounting program or in Excel spreadsheet, or counts on paper - this is a private matter for society.

Inspectors may state that they have the right to inspect the organization’s premises or conduct an inventory. But, firstly, it provides only for an external inspection and always in the presence of witnesses. And the inventory is carried out in order to check the actual availability of property and compare it with data accounting, as well as for the purpose of identifying unaccounted for objects (clause 1.5 of the Regulations, approved). Therefore, if an inspector demands to copy a program or provide a password to access it, then he is breaking the law.

The inspector may justify his demand by the fact that he has the right to inspect documents, including in electronic format. To this, society can object to the following. According to paragraph 7 of Article 9 “On Accounting”, when compiling documents on computer media, a company is obliged to make copies of such documents on paper at the request of regulatory authorities. Thus, printing out documents from an accounting program yourself is not even a right, but a duty of society.

Trade secret mode will protect information from the program

Since information constituting a trade secret may include information of any nature (Clause 2 of Article 3 “On Trade Secrets”), an organization has the right to recognize electronic databases as such. Then tax authorities will be able to gain access to the accounting program only by court decision (clause 2 of article 6). The company may justify a refusal to provide access by the fact that the inspectors’ request does not contain a specific purpose for requesting information, is not signed by an authorized official, or does not contain a deadline for providing the requested information (Clause 1, Article 6).

The regulation on trade secrets establishes the procedure for handling information and monitoring its compliance. In addition, an order is issued to allow certain officials access to this data, and an agreement on maintaining secrecy is concluded with these persons or changes are made to the employment contract.

You can apply a “Trade Secret” sticker to the computer system unit, in which you can write down the name of the organization and location (subclause 5, clause 1, article 10). Then the tax authorities will not be able to claim that they did not know that this data was a trade secret.

A hard drive seized in violation of the seizure procedure does not prove guilt

If the organization refuses to provide documents and items, the inspector has the right to seize them independently (clause 4). As practice shows, tax authorities often violate the procedure for conducting it. For example, they carry out an excavation hard drive without a specialist and company representatives, whose presence would ensure the safety of the disk data.

In such cases, the court may require confirmation that the information contained on the disk was copied by the inspectors from this particular computer. If the inspectors do not provide evidence, the court may consider the information received unreliable ()).

For example, a case was heard in court when tax authorities seized during an on-site inspection system units. The excavation and examination of computers was carried out with the assistance of a third-party specialist. But the latter’s computer knowledge and skills were confirmed only by the reference issued by his employer. And in court it turned out that the specialist was qualified as an “electrical engineer” with a specialty in “electric drives and automation of industrial installations and technological complexes.”

As a result, the court came to the conclusion that the specialist’s qualifications were inadequate and did not accept the information from the program as evidence of a tax offense ().

A technical failure during a sudden check will justify the refusal to provide access to the program

If a company does not want to quarrel with inspectors, then it can justify its refusal to provide access as a technical failure. As practice shows, such arguments work in court ().

A technical failure can be confirmed by a recently sent request about a system malfunction to the service organization, to which a response will later be received. After all, systems so often crash after updates.

But for the court to accept such documents as proper evidence, they must be true. For example, the court heard a case where a letter about a possible technical failure from a service organization explained the incorrectness of the formation of an updated declaration. The letter stated that as a result of updating the program configuration, the program may malfunction on certain days.

But, as it turned out later, these were holidays and non-working days. The court indicated that the company did not document the presence of employees on these days. And also the fact that the service organization does not give a clear answer that a technical failure actually occurred. As a result, the court supported the tax authorities (upheld).

In addition, the organization can urgently remove from the computer HDD under the guise of ongoing repairs. Or start the data processing process for several hours. For example, cleaning system registry or a full antivirus scan.

A power outage in an organization's office paralyzes the work of not only computers, but also the office as a whole. The main thing is to document the fact of a technical failure as a result of power outages. Thus, in a case considered by the Federal Arbitration Court of the Ural District, the company provided an act. It indicated that the integrity and operability of the information base of the accounting program had been restored. Based on these documents, the court recognized that the failure led to a partial loss of data about individuals, contractors and other information. He pointed out that such information does not reflect the actual activities of the organization and does not prove the commission of a tax offense ().

It is safer to delete information from your hard drive without the possibility of its recovery

Some companies defend themselves by instructing the programmer to delete certain data after a sudden check, having first created copies of it. But deletion standard means operating system does not exclude the possibility of information recovery by inspectors. Indeed, in this case it is not physically deleted, but only marked as deleted. Data is completely erased only when writing to this sector new information. In particular, in a case considered by the Federal Arbitration Court of the Ural District, tax officials seized the hard drive, restored deleted files and proved the commission of a tax offense ().

To reliably delete information from a hard drive, there are special software, the main purpose of which is to repeatedly rewrite a deleted segment. But still, the most reliable means that completely eliminates information recovery is replacement of hard disk.

If this is done immediately before the inspection, then the lack of information will explain the conclusion of any service center about the failure of the previous hard drive.

It's safer to create a guest account

If a company does not want to enter into direct confrontation with inspectors and is ready to give access to the program, it can be limited as much as possible.

Create a new account. You should not give a password to an existing entry. After all, along with it, the inspectors will receive all the rights of this employee. It is safer to create a guest account under which minimal capabilities will be available. And under whose name, naturally, it will be prohibited to create, delete, edit documents, as well as copy the database to a laptop and other external media.

Make a cutting of the base for the inspection period. Using the “Base Rollup” processing, you can cut out accounting data for the required period of time, for example, for three years covered by the audit. That is, not to provide the inspectors with access to the database, but to copy the clipping to a separate computer. The organization has the right not to provide information beyond the verification period.

Restrict access to documents and other elements. For example, using various settings, you can make it so that the inspector cannot enter a particular document. Or exit from the document to some kind of report.

It is safer to get rid of equipment that was returned after inspection

It happens that after the return of previously seized system units or laptops, spyware or devices are discovered there. They are intended for secret transmission of information via the Internet or radio channel.

Currently, there are many such programs. For example, keyloggers-viruses can record every user action and monitor correspondence Email and find out passwords for various programs. The entered information, the list of active applications and the user's actions with them are saved in a special file on disk and periodically sent to the interested party.

Obtaining evidence using such spyware is illegal. But such information can point in the direction in which controllers need to work.

It is safer for the company to thoroughly inspect the returned equipment with the necessary specialists. It’s even safer to get rid of it right away. For example, sell it to third parties or use it in a business segment that may not be of interest to controllers.

Violation of the procedure for data exchange between the Department of Internal Affairs and tax authorities makes evidence inadmissible

When conducting operational-search activities, police officers have the right to confiscate electronic media information (clause 1, article 15). Therefore, tax authorities often resort to the help of law enforcement agencies in the case of particularly obstinate taxpayers. If the seizure of the database itself was carried out legally, then the results of its analysis can be used in court as evidence of a tax offense or a criminal offense.

But you need to clearly understand who exactly is seizing computers - the tax or law enforcement agency. The person who took it has the right to examine the information. Otherwise, the legitimacy of obtaining information is highly questionable. After all, tax and law enforcement authorities have the right to exchange information only if a certain procedure for interaction is observed (approved).

Thus, in one of the cases considered by the court, tax officials tried to prove the concealment of revenue using copies of three accounting programs for an entrepreneur received from the Department of Internal Affairs. Previously, these programs were seized by law enforcement agencies during operational search activities as counterfeit.

The court rejected the tax authorities' demands. He pointed out that the results of operational search activities are not evidence, but only information about the sources of those facts that can only become such evidence ().

Tax authorities cannot require all reports from the program

Knowing that an organization has an accounting program to which they are not given access, tax authorities may require certain reports from it. And threaten with fines for failure to provide these documents. However, this is often unlawful.

Thus, the Federal Arbitration Court of the Moscow District indicated the following. The list of documents that the tax authority has the right to request is open. But this does not mean that it is enough for the inspectorate to refer to the need for certain documents, and the taxpayer immediately has an obligation to submit them. Since orders for the appointment of a manager and chief accountant, balance sheets, and the General Ledger are not mandatory for tax purposes, the company cannot be held responsible for their failure to submit them.

Similar conclusions are contained in paragraph. It concerns the analysis of accounts by subconto, statements of analytical accounting of accounts and account cards.

However, in another case, tax officials managed to convince the court that printouts of cards for accounts 26, 44, 60, 62 and 76 allow them to analyze the legality of attributing costs of purchased goods to expenses that reduce taxable profit. As a result, the court indicated that accounting account cards, according to paragraph 1, are other documented data on taxable objects (8).

What data in the program will allow you to quickly identify distortions in tax accounting?

In principle, any information from an accounting program can reveal misstatements. But there are a number of indicators that inspectors look at first of all and compare them with the reports that were submitted to the inspection.

Revenue. By comparing subaccounts 90.1.1 “Revenue” with the data of the income tax return (line 010 of sheet 02), it is possible to identify a distortion of income.

Comparison of fiscal data from cash register reports with cash reports of form KO-4 and with register data for accounts 50 “Cash” and 90.1 “Revenue” makes it possible to establish the fact that money has not been received into the cash register of a trading organization ().

Expenses. Account cards for accounts 26, 44, 60, 62 and 76 broken down by each counterparty will give inspectors the opportunity to track transactions with each of them. And also analyze the legality of including costs for purchased goods, works or services in expenses ().

VAT. Inspectors can establish the fact of underpayment of VAT if they compare the information reflected in the VAT returns with information from the General Ledger and balance sheets for accounts 62, 73, 50, 76 (resolution of the Federal Arbitration Court of the Volga District dated September 22, 2009 No. A65- 20719/2008).

Inspectors can establish the fact of non-receipt of goods as a basis for deducting VAT using account card 41 “Goods” ().

Accounts receivable. Violations of the rules for writing off accounts receivable with an expired statute of limitations can be seen from the balance sheets for account 62 “Settlements with customers” ().

Tax authorities do not have the right to go to court with a claim for the use of an unlicensed program

If entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity, the court has the right to decide to liquidate such a legal entity at the request of the prosecutor (). In addition, administrative and criminal liability has been established for the illegal use of counterfeit programs. In particular, under Part 1, the fine for officials may be 10,000-20,000 rubles, for legal entities - 30,000-40,000 rubles. Plus, Article 146 of the Criminal Code of the Russian Federation provides for imprisonment for up to two years.

Punishment here faces the person who is responsible for installing the program. Most often this is a system administrator or programmer. If there are none, then it is possible to attract a chief accountant, but this is much more difficult. After all, to prove that it was he who bought and installed the program, and not, for example, the director, very strong evidence is needed.

The presence of flags in the program may indicate illegal actions

In an accounting program, it is safer to avoid comments on entries and subaccounts that may benefit auditors. For example, “expenses without a contract - draw up”, “purchase of goods - redo the invoice”, “for cashing out”, “close with documents”, “no invoice”, etc. Otherwise, the tax authorities won’t have to look for long .

Thank you for your assistance in preparing the material.

Vadim Yagudin,
expert of the Ardashev and Partners Consulting Group

When conducting an on-site inspection, inspectors can study programs installed on a computer in the office of the taxpayer being inspected. The validity of this approach was confirmed by the Supreme Court in its ruling dated 07/17/17 No. 302-KG17-8315 .

The essence of the dispute

We have already written about this matter earlier (see “”). During the on-site inspection, the inspection examined the premises, as well as objects and documents in the organization’s office. In addition, programs installed on the cashier’s personal computer were studied.

The organization filed a lawsuit demanding that the inspection be declared illegal. As the taxpayer explained, he only allowed the inspectors to inspect the computer itself, and did not give consent to other actions with this item, including viewing the software.

The court's decision

The courts of three instances recognized the actions of the software inspection inspectorate as legal. The arbitrators explained that an article of the Tax Code of the Russian Federation allows inspectors to inspect any documents and items that are important for the completeness of the inspection. The Tax Code does not establish any restrictions regarding specific items of inspection. Information can be presented not only in paper, but also in electronic form. In this regard, inspecting a computer includes examining the data it contains.

Disagreeing with this decision, the organization filed a complaint with the Supreme Court. However, the Supreme Court of the Russian Federation upheld the decisions of the lower courts. Thus, the Supreme Court recognized that inspectors have the right to inspect programs installed on the computer of the taxpayer being inspected.

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