A. Makhonin / Vedomosti

Gazprom Torgservis managed to successfully challenge the tax authorities' claims in court. However, the company spent 2.4 million rubles on a Gazprombank guarantee (about 1% of the claim amount of 213.8 million rubles), thus delaying the collection of taxes from it for the duration of the process. Having won the dispute, it decided to collect legal costs from the Federal Tax Service.

The Presidium of the Supreme Arbitration Court (SAC) is to consider a dispute between tax authorities and Gazprom TorgServis, which is demanding that the budget compensate it for the costs of a bank guarantee.

Judges of three instances decided that the company could have done without a guarantee, which means that the costs for it were not forced and are not subject to compensation. But the "troika" of judges of the Supreme Arbitration Court had a different opinion and referred the case to the presidium for consideration. The courts did not take into account the position of the Supreme Arbitration Court formulated in 2012 (in the Inteko case), the "troika" ruling states: the list of costs for the process contained in the Arbitration Procedural Code is not closed.

The purpose of the guarantee in such cases is to suspend the execution of the tax inspectorate's decision for the duration of the trial, explains Yulia Kuznetsova from Sameta: the company must convince the court that the budget will get its due if it loses the case. Until 2012, it was not possible to recover the costs of guarantees from the state, says Svetlana Tarnopolskaya from Yukov and Partners, then after the Supreme Arbitration Court's decision there was a sharp turnaround, companies win about 40% of such disputes. But only in the case when the court itself offered to obtain a guarantee, continues Ivan Chemichev from MEF-Audit, otherwise, as in the Gazprom Torgservis case, the business has to bear these costs. Although in practice, it is possible to postpone the collection of taxes only by obtaining a bank guarantee, notes Kuznetsova.

According to Sergey Pepeliaev, Managing Partner of Pepeliaev Group, companies obtain a guarantee in almost every tax case. This is not a cheap pleasure, he notes: bank commissions range from 5 to 15%. Such rates are significantly higher than for regular guarantees: last year, the top 10 banks did not charge more than 1.6%, according to Alexey Buzdalin, Chief Expert of Interfax-CEA. According to the Federal Tax Service, in 2012, arbitration courts considered 54,113 tax disputes for a total of 247 billion rubles, and officials won cases for 163 billion. If companies presented a bank guarantee to the court in all other cases, then at a rate of 5-15%, they could demand compensation for these costs from the state in the amount of 4.2-12.6 billion rubles.

Gazprom Torgservis and Gazprombank did not respond to Vedomosti's request. Gazprom indicates that it has the right to manage more than 20% of Gazprombank's shares.

Lawyers expect that the mistakes of officials will cost the budget more and more. In 2008, the amounts of legal costs for lawyers, collected by taxpayers from the budget, amounted to tens of thousands of rubles, and in 2009 the Supreme Arbitration Court sharply raised this bar, considering compensation of 1.6 million rubles to be reasonable. In 2012, the tax service paid the legal costs of the American company Aelita Software Corporation already in the amount of 2.89 million rubles. In disputes between companies, the amount of compensation is significantly higher; the record was set by the Cypriot Aruge Holdings Limited, which won 32.5 million rubles from the Billa retail chain. It will also be possible to sue the state for similar amounts, believes the managing partner of Muranov, Chernyakov and Partners (which received this record fee) Alexander Muranov, although it is, of course, more difficult for a government agency to seize funds from another government agency.

There is a risk that the parties to the process will start to "draw" high legal costs for themselves, warns Yuri Efremov, a lawyer at Khrenov and Partners. It is necessary to monitor that fraudulent schemes do not appear: for example, companies can receive expensive guarantees from affiliated structures, Pepeliaev points out.

The need to compensate for expenses has a positive effect on the work of tax officials, Kuznetsova is sure: “Before assessing additional taxes, they carefully study judicial practice and, if they see that the courts will not be on their side, they abandon their claims.”

The budget will pay the tax authorities' guarantee