We are reviewing the resolution ordering the examination. Grounds for appointing an examination

Date of publication: 03.10.2013 09:00

In accordance with paragraphs. 11 clause 1 art. 31 of the Tax Code of the Russian Federation, tax authorities have the right to involve tax control specialists, experts and translators.

An expert can be involved in any actions to implement tax control (clause 1 of Article 95 of the Tax Code of the Russian Federation). Involving an expert during tax audits is a right tax authority, not an obligation.

Subclause 3 of clause 9 of Article 89 of the Tax Code of the Russian Federation provides that the head (deputy head) of a tax authority has the right to suspend the conduct of a visiting tax audit for carrying out examinations.

Engaging a specialist to give an opinion instead of an expert is unacceptable. Such a conclusion will be equated to the testimony of a witness or even recognized inadmissible evidence(clause 4 of article 101 of the Tax Code of the Russian Federation). The specialist does not conduct research, does not give opinions, but only assists in conducting tax control. His opinion has no such thing evidentiary value, as an expert opinion.

The examination is appointed by decree official tax authority carrying out tax audits. The resolution specifies the grounds for ordering the examination, the name of the expert and the name of the organization in which the examination should be carried out, the questions posed to the expert, and the materials made available to the expert.

The official of the tax authority who issued the decision to appoint an examination is obliged to familiarize the person being inspected with this decision and explain his rights, about which a protocol is drawn up.

When appointing and conducting an examination, the person being inspected has the right:

• challenge the expert; request the appointment of an expert from among the persons indicated by him;
• introduce additional questions to obtain an expert opinion on them;
• be present with the permission of a tax authority official during the examination and give explanations to the expert; get acquainted with the expert's opinion.

The procedure for conducting examinations and drawing up expert opinions is regulated by the Federal Law of May 31, 2001 N 73-FZ “On State forensic activity V Russian Federation" The norms of the named Federal Law also regulated expert activity persons operating outside state forensic institutions. In accordance with Article 25 of the above Federal Law, the result of the expert’s work is a written opinion, which is drawn up based on the results of research conducted by the expert or a commission of experts.

The expert gives an opinion on writing in one's own name. The conclusion outlines the research he conducted, the conclusions drawn and reasonable answers to the questions posed. If, during the examination, an expert establishes circumstances that are significant for the case, about which questions were not put to him, he has the right to include conclusions about these circumstances in his conclusion.

The expert’s conclusion or his message about the impossibility of giving an opinion is presented to the person being inspected, who has the right to give his explanations and raise objections, as well as to ask for additional questions to be put to the expert and for the appointment of an additional or repeat examination.

An additional examination is appointed in case of insufficient clarity or completeness of the conclusion and is assigned to the same or another expert.

A re-examination may be ordered if the expert’s conclusion is unfounded or there are doubts about its correctness and is assigned to another expert.

Expertise allows you to use in the investigation process and judicial trial criminal cases, the entire arsenal of modern scientific and technical means is the main channel for introducing the achievements of the scientific and technological revolution into judicial investigative practice.

An examination is appointed in cases where special knowledge is necessary to establish circumstances relevant to the case. There are types of examinations - types of forensic examination (fingerprint, ballistic, traceological, handwriting, forensic technical examination documents), forensic medical, forensic psychiatric, forensic accounting, forensic auto technical and some others.

The appointment of an examination is formalized by a resolution of the investigator or a court ruling. The resolution (definition) must indicate the grounds for ordering the examination, to whom it is entrusted and the materials (objects) presented at the disposal of the expert. The resolution (definition) must clearly formulate the issues requiring an expert opinion. Most often, the examination is carried out in special expert institutions (systems of the Ministry of Justice, Ministry of Internal Affairs, Ministry of Health).

An examination is required:

1) to establish the causes of death and nature bodily harm:

2) to determine mental state the accused or suspect in cases where doubt arises about their sanity or ability at the time of the proceedings to be aware of their actions or to control them:

3) to determine mental and physical condition a witness or victim in cases where doubt arises about their ability to correctly perceive the circumstances that are important to the case and give correct testimony about them:

4) to establish the age of the accused, suspect and victim, when this is important for the case, and there are no documents about age.

In addition to the usual examination, there are its special procedural types: commission, complex, additional and repeated.

Commission examination- this is an examination carried out by several experts of one specialty (or narrow specialization). Typically, the examination is entrusted to several experts if it is particularly complex, labor-intensive or significant in the case. According to departmental regulations The Ministry of Health commission carries out all forensic psychiatric examinations and some types forensic medical examinations. In other cases, the issue of the commission nature of the examination can be decided by the investigator or the court that appointed the examination, or by the head of the expert institution.

When conducting a commission examination, experts and commission members have the right to confer with each other before giving an opinion. From among the members of the commission, the head of the expert institution appoints the person responsible for conducting the examination (leading expert). He performs various organizational functions(coordination of the activities of commission members, development general plan research, leading a meeting of experts, etc.), but does not enjoy any advantages in resolving substantive issues.

If the members of the commission come to a common conclusion, they draw up a single conclusion. In case of disagreement, experts who do not agree with other opinions give separate conclusion.

Comprehensive examination- this is an examination in the production of which several experts of various specialties or narrow specializations (profiles) participate.

The current criminal procedural legislation does not provide for a comprehensive examination. Despite this, the production of complex examinations is becoming increasingly wide use. This is explained by the high efficiency of examination, wide possibilities for the cumulative, synthesized application of knowledge from various industries science and technology.

The most frequently carried out are complex medical and forensic examinations, in particular medical and ballistic examinations to establish the mechanism of the shot (direction and range of the shot, the relative position of the shooter and the victim, etc.), medical and forensic examinations to establish the mechanism of causing bodily harm (for example, a knife wound).

Transport and traceability examinations to establish the mechanism of a road traffic accident by examining damage to vehicles and other objects by automotive technicians and traceologists (sometimes with the participation of doctors, if damage to the human body is also examined).

Comprehensive examination has a number of features, distinctive features:

1. These include the fact that several experts of various specialties (specializations) are involved in its production, and the resulting division of functions between them in the research process.

2. here each expert can examine only those objects that fall within his competence and apply those methods

which he owns.

3. general conclusion is given based on the results obtained by various experts. Moreover, not all experts who conducted the research can participate in the formulation of this general (final) conclusion, but only those who are competent in general subject research. Subject specialists (especially method specialists) may not take part in this; their role may be limited to stating an interim conclusion based on the results of a personally conducted study.

In connection with these features, the requirement for an expert to give an opinion only on the basis of personally conducted research, which is mandatory for an ordinary, “classical” examination, cannot be extended to a comprehensive examination. Quite the contrary, here the expert formulates a conclusion based on research conducted not only by him personally, but also by other experts with a different specialization. Therefore, during a comprehensive examination, the issue of the expert’s personal responsibility for the conclusion he gives is resolved differently.

Each expert is personally responsible for the part of the research that he conducted and for the results he obtained ( intermediate conclusions). When formulating general (final) conclusions, there is a kind of conditional responsibility of the expert: he is responsible for the correctness of the conclusion in the formulation of which he participated, provided that the research results he used, conducted by other experts, are also correct.

Procedure of production - experts have the right to confer among themselves before giving their conclusions, experts who disagree with others draw up a separate conclusion, the group is led by a leading expert who has only organizational powers.

Additional expertise assigned in case of insufficient clarity or completeness of the conclusion. Ambiguity expert opinion can be expressed in unclear formulations, their vagueness, uncertainty, etc. Usually this deficiency is eliminated by questioning an expert, since this does not require additional research. Incompleteness of the expert opinion occurs when the expert left some of the questions posed to him without resolution, narrowed their scope, did not examine all the objects presented to him, etc.

Re-examination carried out if the expert’s conclusion is unfounded or there are doubts about its correctness. The validity of an expert's conclusion is its reasoning and persuasiveness. An expert’s conclusion may be recognized as unfounded if the methodology used by the expert is in doubt, the volume of research conducted by the expert is insufficient, the expert’s conclusions do not follow from the research results or contradict them in other ways. similar cases. Doubts about the correctness of the expert’s conclusion may arise, for example, if his conclusions do not correspond to other materials of the case, or if these conclusions are actively challenged by the accused or other participants in the process. Thus, the unfoundedness of an expert opinion is determined, as a rule, by assessing it itself - based on its content and internal structure, doubts about the correctness usually arise when comparing the expert’s conclusions with other evidence collected in the case.

The main difference between additional and repeated examinations consists in the fact that with an additional examination, issues that were not previously resolved are resolved, and with a repeat examination, issues that have already been resolved are re-examined (re-checked). Therefore, different and procedural order these types of examinations. An additional examination is entrusted to the same or another expert, and a repeated examination is assigned to another expert or other experts.

To clarify or supplement the conclusion, an expert may be questioned. The reasons for its implementation are the same as for the appointment additional examination- ambiguity or incompleteness of the conclusion.

The distinction between them is made according to next sign. If additional research is necessary to clarify or supplement the conclusion, an additional examination is appointed. If the expert can give the necessary explanations without carrying out additional research, he is interrogated. The protocol of interrogation of an expert is drawn up according to general rules.

When solving certain crimes, they often resorted to the appointment of an examination. The decision to appoint an examination is made at the stage preliminary review cases, as well as during the trial itself.

Concept of expertise

Expertise is considered to be a study that is prescribed and carried out in compliance with legislative norms, in which specialists use special scientific skills and knowledge, as well as technology. The result of the examination is the provision of an opinion, which is equated to the sources of evidence. Most often, forensic examination is appointed in criminal proceedings.

The examination can be divided on the following grounds:

• character;
• branch of special knowledge;
• group or individual;
• homogeneous and heterogeneous;
• scope of study;
• order of implementation: primary, repeated.

Before resorting to expert actions, an investigation is carried out. It is this that must prove that further investigation without an examination is impossible or will reach a dead end. Based investigative assessment worker law enforcement decides what examination to assign and who will do it.

Base

The reason for ordering the examination is the order of the investigator or judge. This order formalized as a resolution ordering a forensic examination. This procedure appointed both at the initiative of the court and at the request of one of the parties to the proceeding. Expertise in the judicial process is necessary if there is not enough legal or general knowledge to establish important information that can help in solving a crime.

The decision to order an examination is used when it is necessary to identify:

• for what reason did death occur;
• whether the person under investigation is sane;
• citizen's age.

Among other things, additional studies may be ordered if specialists, for example, come to contradictions. If the study was required but was not carried out, it may be canceled for this reason.

Purpose

In order to determine the decision to appoint an examination, a separate court hearing is held. At the same time, all parties trial can:

• ask your questions;
• read the resolution;
• appeal the decision;
• ask for research to be conducted in a specific organization;
• propose your candidates for examination and reject those proposed;
• be undergoing examination;
• read the opinions of experts.

The study is considered scheduled on the day when the decision to appoint the examination is made. During the study legal proceedings suspended and resumed only on the day when all materials, together with the expert’s decision, are returned to the court.

Structure and content

The document has a certain structure and should contain the following:

• Introductory part. The date, name of the court, details of the investigator, and criminal case number must be indicated here.
• Descriptive part. The facts that influenced the appointment of the examination, as well as the grounds for its conduct, should be set out here.
• Conclusion. This indicates the investigator’s decision to order the study and its type, details of the specialist who will conduct the examination, the location of the examination and the list of materials that are subject to examination.

Before using the document, the accused must also familiarize himself with it.

Legislative regulations do not regulate what a resolution on the appointment of an examination should look like. A sample of it is issued to investigative authorities or at court hearing, on the basis of which the document is drawn up.

Having recognized the necessity of conducting a forensic examination, the investigator or the court issues a reasoned decision, which is the procedural basis for its conduct (Article 184 of the Code of Criminal Procedure). The law does not establish the structure of the resolution on the appointment of an examination. In practice, the structure of the resolution has been adopted, consisting of three parts: introductory, descriptive, operative. In the introductory part the place and date of drawing up the resolution, the person who drew it up (name, position and place of work), the criminal case, the name of the accused (if identified), the articles of the Criminal Code under which he was held accountable are indicated.

In the descriptive part The resolution briefly outlines the plot of the case and the circumstances in connection with which the need for special knowledge arose; some features of the research object that are of interest to the expert may also be indicated (for example, storage conditions of the object that could cause its modification), article of the Code of Criminal Procedure, in accordance with which the examination was appointed.

In the operative part The resolution specifies the type or type of examination, formulates questions to be submitted for the expert's permission, appoints an expert or determines the forensic institution whose employees are entrusted with carrying out the examination, and provides a list of materials to be placed at the disposal of the expert.

Of great importance correct wording questions submitted for resolution by an expert. When raising questions, it is necessary to take into account that although, according to Art. 191 of the Code of Criminal Procedure, the expert has the right to indicate in the conclusion circumstances that are important to the case, about which questions were not asked, but he is not obliged to do this. Therefore, questions must be specific, precise and clear, not allowing for double interpretation. If questions are related, they should be asked in a logical sequence. IN methodological literature For forensic examination, there are approximate lists of questions for various types and types of forensic examinations. The questions asked must be within the competence of the expert. Questions of a legal nature, in particular about the presence of elements of a crime, guilt or innocence, cannot be raised before the expert examination. certain person and the form of his guilt. When formulating questions, the investigator or the court may consult with an expert or specialist.

The operative part of the resolution also contains a list of materials made available to the expert. Such materials are objects of expert research, samples necessary for comparative studies, protocols investigative actions and other documents containing information necessary for the expert to conduct research and give an opinion. Material evidence submitted for examination must be carefully examined, photographed, described in detail in the inspection report and attached to the case in accordance with the requirements of the Code of Criminal Procedure.

Preparation and appointment of forensic examinations

When preparing and ordering an examination, the investigator needs to resolve a number of issues, and first of all, the question of the appropriateness of its appointment.

According to the law (Article 196 of the Code of Criminal Procedure), in some cases forensic examinations must be carried out without fail. The appointment and conduct of an examination is mandatory if it is necessary to establish: the causes of death; the nature and degree of harm caused to health; the mental or physical state of the suspect or accused, when doubt arises about his sanity or ability to independently defend his rights and legitimate interests; the mental or physical state of the victim, when doubt arises about his ability to correctly perceive the circumstances relevant to the case and testify; the age of the suspect, accused, victim, when this is important to the case, and documents on age are missing or are in doubt.

If the examination is not mandatory by law, it should be appointed in cases where it is impossible to establish the circumstances of the case using other means of proof or when the evidence available to the investigator is incomplete or there are contradictions in it. In this case, one should keep in mind the general rule: if it is possible to use the help of specialists when investigating a case, such an opportunity should be realized.

An examination is appointed immediately as soon as the need for its appointment becomes obvious. If the investigator has all the necessary materials at his disposal, a delay in ordering an examination may lead to an increase in the investigation time. Therefore, it is necessary to obtain the relevant materials as quickly as possible and schedule an examination.

Of great importance right choice expert institution or expert. In this case, it is necessary to take into account the specifics of the objects, the complexity of the issues that are being resolved, the capabilities of a particular expert institution, etc. Most often, forensic examinations are carried out in state expert institutions; then the head of the institution entrusts the research to a specific expert and resolves all organizational issues. If the examination is not carried out in expert institution, the investigator himself invites the expert to his place or goes to him, ascertains his competence, hands the expert a resolution and all the objects necessary for the examination, explains the rights and obligations and warns the expert about responsibility for giving a knowingly false conclusion.

In accordance with Art. 195 Criminal Procedure Code investigator, recognizing the need to appoint an examination, makes a decision on this. To resolve the issue of placing a suspect or accused who is not in custody in a hospital for a forensic medical or forensic psychiatric examination, a petition is filed with the court.

The resolution or petition must indicate: the grounds for ordering the examination; last name, first name and patronymic of the expert or name of the expert institution; questions posed to the expert, materials made available to him.

The investigator must familiarize the suspect, the accused and his defense attorney with the resolution and explain to them their rights against signature in a special protocol.

An examination of the victim, as well as of the witness, is ordered only with their (or their legal representatives) written consent, except in cases where it is necessary to establish the physical or mental condition of the victim or his age.

The investigator has the right to be present during the examination and receive explanations from the expert regarding his actions. The fact that the investigator was present during the examination is reflected in the expert’s conclusion.

According to Art. 198 of the Code of Criminal Procedure, the suspect, the accused and his defense attorney have the right to: get acquainted with the decision on the appointment of an examination; challenge an expert or apply for an examination in another expert institution; apply for the involvement of persons specified by them as experts or for an examination to be carried out in a specific institution; petition for additional questions to be raised with the expert; be present with the permission of the investigator during the examination; give explanations to the expert; get acquainted with his conclusion, as well as the protocol of his interrogation.

The witness and victim in respect of whom the examination was carried out have the right to familiarize themselves with the expert’s conclusion. The victim also has the right to familiarize himself with the decision ordering the examination, challenge the expert, or petition for the examination to be carried out in another expert institution.

The resolution on the appointment of an examination consists of three traditional parts: introductory, descriptive and operative.

In introductory parts indicate: where, when, who made the decision (position, rank, surname of the investigator), in what case (case number, surname of the accused, articles of the Criminal Code).

IN descriptive Part briefly outlines the circumstances of the case in connection with which the examination was ordered, as well as the circumstances of the discovery of material evidence or the receipt of samples for comparative research.

IN operative Part indicates what kind of examination is assigned (genus, type), which specific institution or person is entrusted with carrying it out, in addition, questions are given to the expert, and it is also indicated which objects are sent for examination. The physical evidence and samples provided to the expert for comparative research must be described in sufficient detail, so that they can be individualized and distinguished from a number of similar ones. The packaging of objects is also described in detail.

Questions posed to experts should not go beyond the expert’s special knowledge; they should not be of a legal nature. Questions about the existence of a crime, the guilt or innocence of a certain person can only be resolved by an investigator or a court.

Questions should be clear, specific, as brief as possible and not subject to ambiguous interpretation. They are presented in a certain sequence: first, more general issues, on the positive solution of which the solution of other, less general ones depends.

If several objects are sent for research, it is recommended to group questions by object.

Sometimes tax authorities suspend an on-site audit in order to conduct an examination, the results of which determine whether the company will be involved in tax liability. To conduct such an examination, Art. 95 of the Tax Code of the Russian Federation provide special rules. The tax authority enters into an agreement with the expert and issues a resolution to conduct the examination. The inspectorate is obliged to familiarize the inspected company with this resolution. A protocol is drawn up indicating that the “acquaintance” has taken place. Then, after conducting the research, the expert writes a conclusion, which is also shared with the company. If the inspection violates this order, the court will most likely not accept the examination results as evidence. This means that there is a chance to challenge the decision itself based on the results of the audit. Let’s take a closer look at each stage of the examination and analyze where the inspection may stumble.

An examination is appointed in cases where special knowledge in science, art, technology or craft is required to clarify emerging issues (Clause 1 of Article 95 of the Tax Code of the Russian Federation).

The procedure for conducting an examination carried out within the framework of tax control is regulated by Art. 95 Tax Code of the Russian Federation. Similar examination is not appointed as part of legal proceedings, therefore it is not subject to the provisions of the Federal Law of May 31, 2001 No. 73-FZ “On State Forensic Expert Activities in the Russian Federation.” When appointing and conducting an examination within the framework of tax control, the inspectorate must be guided by the norms of the Tax Code of the Russian Federation. If the examination was not carried out in accordance with Art. 95 of the Tax Code of the Russian Federation, its results cannot be admissible evidence by virtue of Art. 68 and 71 of the Arbitration Procedure Code of the Russian Federation (FAS resolution Northwestern district dated September 13, 2010 No. A13-17705/2009).

For your information
Tax law does not determine the time frame within which the examination should be carried out. According to the courts, if the examination is carried out after completion on-site inspection, then the conclusion based on its results is considered inadequate evidence (resolution of the Federal Antimonopoly Service of the North-Western District dated 07/09/2012 No. A66-4438/2011, Volga District dated 09/28/2011 No. A06-7370/2010). If the examination is carried out even before the inspection has familiarized the company with the resolution on its appointment, this is considered a violation of the procedure provided for in Art. 95 of the Tax Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Moscow District dated May 20, 2014 No. F05-3879/14). Thus, it must be carried out during the period when the audit is carried out, after the taxpayer has familiarized himself with the decision to conduct the examination.

Types of examination

The Tax Code distinguishes between three types of examination (clause 10, article 95 of the Tax Code of the Russian Federation):

• primary;
• repeated - appointed if the expert’s conclusion is unfounded or there are doubts about its correctness and is entrusted to another expert. The inspectorate has the right to refuse the company to conduct a re-examination. Thus, in the case considered by the FAS Volga-Vyatka district, the company was not satisfied with the results of the handwriting examination. She filed a petition to schedule and conduct a re-examination at another expert institution, but was refused by the inspection. The court recognized that such a refusal is lawful and does not violate the rights of the taxpayer (resolution No. A29-3877/2010 dated November 15, 2010);
• additional - assigned in case of insufficient clarity or completeness of the conclusion and is assigned to the same or another expert. Thus, the Federal Antimonopoly Service of the North-Western District recognized the lack of unambiguous answers to the questions posed as grounds for ordering an additional examination (resolution No. A05-6302/2010 dated December 21, 2010). The decision to conduct an additional examination must indicate:
  - the grounds for its appointment;
  - information that the conclusion on the primary examination is not sufficiently clear or incomplete;
  - who is entrusted with carrying out the additional examination: the same expert or another.

If this information is not available, the court may declare the decision to conduct an additional examination illegal (Resolution of the Federal Antimonopoly Service of the North-Western District dated September 13, 2010 No. A13-17705/2009).

If we classify examinations according to the subject of research, then there are a lot of varieties. One of the most popular is handwriting examination - it is usually carried out when the tax authority needs to establish the authenticity of signatures on primary documents and invoices.

The resolution of the Federal Antimonopoly Service of the Moscow District considered a case where an examination was required to determine whether the development was “know-how,” - the court recognized that it was not, and therefore the company wrote off the costs of paying license fees unlawfully (resolution dated April 23, 2014 No. F05 -3079/14).

In addition, the examination can be carried out when necessary (Resolution of the Federal Antimonopoly Service of the Volga District dated 09.09.2008 No. A57-365/08-33, Resolution of the Supreme Arbitration Court of the Russian Federation dated 24.11.2008 No. 13976/08 refused to transfer the case by way of supervision):

Determine the cost and place of origin of the goods;

Assess the value of real estate;

Establish the authenticity of documents;

Determine whether the materials and components used in the company correspond to the volume of products or the technology of its production;

Determine what repair and construction work was performed ( major renovation, Maintenance, reconstruction), etc.

A specialist cannot replace an expert

Article 95 of the Tax Code of the Russian Federation, which regulates the procedure for conducting examinations, states that “an expert may be engaged on a contractual basis to participate in specific actions to implement tax control, including when conducting on-site tax audits.” And Article 96 of the Tax Code of the Russian Federation talks about engaging a specialist to assist in the implementation of tax control.

In the understanding of the Tax Code of the Russian Federation, a specialist is considered to be a person who has special knowledge and skills (Article 96 of the Tax Code of the Russian Federation). And an expert is a person who has special knowledge in science, art, technology or craft (Article 95 of the Tax Code of the Russian Federation). In fact, the same person can be both a specialist and an expert. However, if the inspection has concluded an agreement with him as an expert, then based on the results of his research he will write a conclusion that will have evidentiary value in court. In this case, the procedure for attracting an expert and conducting an examination, provided for in Art. 95 Tax Code of the Russian Federation. As for attracting a specialist, in this case no special procedure is provided. It is enough to conclude an agreement. But at the same time, the specialist’s task is to provide advice on any issues. He doesn't write a conclusion. And even if he writes, the court will not accept it as evidence.

Tax authorities often try to “replace” an expert with a specialist and conduct research without going through the legally approved examination procedure, and formalize its results as a conclusion and present it in court. However, in this case, the courts indicate that the examination procedure provided for in Art. 95 of the Tax Code of the Russian Federation, and do not accept such a conclusion as evidence.

In the case considered by the FAS Moscow District, the inspectorate invited a specialist to verify the authenticity of the signatures. She did not draw up a resolution to carry out the examination, citing the fact that this was not required when inviting a specialist. She presented the expert's report to the court. But the court indicated that the rules of the examination were not followed, the paper drawn up by the specialist did not contain any guarantees of reliability, and therefore was not evidence (Resolution of the Federal Antimonopoly Service of the Moscow District dated November 23, 2010 No. KA-A40/14030-10). Similar conclusions are contained in the decisions of the FAS Ural district dated July 27, 2009 No. F09-5320/09-S3 and the West Siberian District dated July 27, 2009 No. F04-4105/2009 (10368-A03-49).

The Federal Antimonopoly Service of the North-Western District also found that the inspectorate invited a specialist instead of an expert. He was not brought in to carry out specific actions to implement tax control, but in fact to conduct an examination of signatures. The court saw this as a violation of Art. 95 of the Tax Code of the Russian Federation and did not accept the document drawn up by a specialist as evidence (resolution No. A66-8173/2011 dated July 24, 2013).

There are other differences between an expert and a specialist:

• the company has the right to challenge an expert selected by the inspection (Article 95 of the Tax Code of the Russian Federation). While a specialist cannot be “removed” (Article 96 of the Tax Code of the Russian Federation);
• The specialist does not bear any responsibility for his consultations. While sanctions are provided for an expert for drawing up a knowingly false conclusion (this is a fine under clause 2 of Article 129 of the Tax Code of the Russian Federation) - a fine of 5,000 rubles. The expert must be warned of liability (resolutions of the Federal Antimonopoly Service of the Volga District dated 09.18.2008 No. A57-4045/08, Ural District dated 02.04.2009 No. F09-139/09-S2). According to some courts, the conclusion of an expert who was not warned of liability cannot serve as evidence when making a decision on an inspection (resolution of the Federal Antimonopoly Service of the Moscow District dated May 20, 2014 No. F05-3879/14, West Siberian District dated June 17, 2009 No. F04 -3485/2009(8697-A67-25)). In one of court decisions the company tried to challenge the conclusion, citing the fact that the expert was not warned about criminal liability, provided for in Art. 14 of the Federal Law “On State Forensic Expert Activities in the Russian Federation”. But the court indicated that the examination was carried out in accordance with Art. 95 of the Tax Code of the Russian Federation, and this norm does not contain a requirement to warn the expert about liability (in in this case we were talking about criminal liability) for the dacha false testimony. The court clarified that the manager must warn about such liability forensic institution, not an inspection (FAS resolution Far Eastern District dated February 19, 2014 No. Ф03-123/2014).

Is the inspection obliged to conduct an examination?

In fact, the company cannot force the tax authority to conduct an examination, nor prohibit it from doing so.

As the Ministry of Finance noted, the inspectorate is not obliged to order an examination at the taxpayer’s request (letter dated October 25, 2010 No. 03-02-07/1-495). In other words, tax authorities have the right to conduct an examination as part of an on-site audit, but they are not obliged to do so. If, for example, the inspectorate discovers a discrepancy between signatures on primary documents, it can refuse deductions and exclude expenses from expenses without an examination. And the company will not be able to force her to conduct an examination. However, an organization can appeal the inspector’s decision to assess additional taxes. If the case goes to court, then most likely the court will invalidate the decision of the Federal Tax Service, since the tax authority did not provide adequate evidence confirming the discrepancy between the signatures. Thus, the Federal Antimonopoly Service of the North-Western District denied the tax authorities their demands, because “the tax authority did not take advantage of the provision provided by Art. 95 of the Tax Code of the Russian Federation the right to conduct a handwriting examination of signatures on invoices” (resolution No. A56-30859/2009 dated March 1, 2010).

If the company seems that “the inspectorate has no real reasons for the appointment of an examination and the cause-and-effect relationship between the submitted claims for additional tax assessments and the appointment of an examination specific document", then the court will most likely indicate that the decision on the advisability of conducting an examination lies in exclusive competence tax authority (resolution of the Federal Antimonopoly Service of the Moscow District dated December 19, 2013 No. F05-16012/2013, East Siberian District dated March 25, 2011 No. A33-12146/2010).

Rarely, there are decisions in which the court says that conducting an examination is not only a right, but also an obligation of the tax authority. This was stated by the Federal Antimonopoly Service of the North-Western District in resolution dated July 13, 2009 No. A56-9363/2008. Here we were talking about the fact that the inspectorate tried to conduct an examination when the case was already being considered in court. She did not exercise her right to hold this event during the inspection. In our opinion, in this case there is still no direct obligation. We can talk about it only in the sense that any of the parties to the dispute must go to court not with unfounded allegations, but with evidence. According to Art. 71 of the Arbitration Procedure Code of the Russian Federation, evidence is recognized arbitration court reliable if, as a result of its verification and research, it turns out that the information contained in it is true. In this case, the evidence must be an expert’s opinion drawn up during the examination. Since the inspection did not present it, it lost the case.

We read the resolution on the examination

The examination is appointed by a resolution of an official of the tax authority carrying out an on-site tax audit, unless otherwise provided by the Tax Code of the Russian Federation (clause 3 of Article 95 of the Tax Code of the Russian Federation).

If the decision was made by an inspector who was not declared as an official to conduct the inspection, then, in the opinion of the court, this is considered a violation of paragraph 3 of Art. 95 Tax Code of the Russian Federation. At the same time, this circumstance cannot cast doubt on the reliability and correctness of the expert’s conclusions, which are assessed along with other evidence, and does not serve as a basis for invalidating the contested decisions (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 22, 2012 No. F03-1582/2012).

The form of the resolution was approved by order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338@. The resolution states:

• grounds for ordering an examination. The FAS of the West Siberian District recognized the absence in the resolution of a basis for ordering an examination as a formal violation that does not deprive the taxpayer of the opportunity to realize established rights, therefore, does not violate his rights and legitimate interests(resolution dated December 27, 2010 No. A03-4895/2010). Similar conclusions are contained in the resolution of the Federal Antimonopoly Service of the Moscow District dated December 19, 2013 No. F05-16012/2013);
• expert's surname. Arbitration practice on the question whether the name of the expert in the resolution mandatory requisite, ambiguous. Some courts believe that the absence of an expert’s name deprives the taxpayer of the opportunity to challenge the expert, ask for the appointment of an expert from among the persons indicated by him, give explanations to the expert, that is, to exercise the rights that are granted to taxpayers (FAS resolution Central District dated June 20, 2012 No. 54-3201/2011). But there are also decisions in which judges allow the absence of the expert’s name in the decision. Thus, the Federal Antimonopoly Service of the North-Western District came to the conclusion that the rights of the person being inspected are not violated if the last name is not indicated due to the fact that the inspectorate did not know who would be entrusted with carrying out the examination, since the vacation period began in the expert organization (resolution dated 21.04. 2009 No. A42-4828/2008). And the FAS of the East Siberian District, in its resolution dated December 30, 2010 No. A33-3928/2010, indicated that the absence of an expert’s name in the text does not deprive the taxpayer of such rights as challenging the expert. The inspection commissions an examination specific organization, which independently appoints an expert to whom the person being inspected can challenge him during the examination process;
• name of the organization where the examination should be carried out;
• questions posed to the expert. The expert does not have the right to change the wording of the questions posed to him. In the resolution of the Federal Antimonopoly Service of the Volga Region dated December 14, 2010 No. A55-35381/2009, the court found that the questions specified in the expert report differed from the questions posed to the expert in the resolution ordering the examination. Such a conclusion, according to the judges, cannot serve as evidence in the case. We also note that the questions posed to the expert cannot go beyond his special knowledge(clause 2 of article 95 of the Tax Code of the Russian Federation). This refers to knowledge in science, technology, art and craft (Clause 1, Article 95 of the Tax Code of the Russian Federation). They cannot be the subject of an examination appointed in accordance with Art. 95 of the Tax Code of the Russian Federation, for example, issues of law enforcement (resolution of the Federal Antimonopoly Service of the Central District dated March 25, 2008 No. A35-808/07-C8);
• materials made available to the expert. According to clauses 3, 4 of Art. 95 of the Tax Code of the Russian Federation, the examination is carried out on materials officially made available to the expert. The research objects and materials are provided to the expert by the official who appointed the examination. Sometimes, when conducting a handwriting examination, the inspectorate does not send for examination all the documents of the counterparty, the signatures on which appeared dubious to the tax authorities. In this case, if a discrepancy between the signatures is discovered, the court will recognize this fact as proven in relation only to those documents that were actually examined (Resolution of the Federal Antimonopoly Service of the North-Western District dated May 14, 2010 No. A56-49950/2009). By the way, according to the judges, it is not necessary for the expert to send original documents for research. For example, the conclusion of a handwriting examination conducted on the basis of copies of documents is acceptable evidence (resolution of the Federal Antimonopoly Service of the West Siberian District dated 03/24/2014 No. A27-3379/2013, of the North-Western District dated 03/11/2010 No. A44-1979/2009).

Studying the protocol

The tax authority is obliged to familiarize the company with the resolution on the appointment of the examination, tell the company about its rights and draw up an appropriate protocol (clause 6 of Article 95 of the Tax Code of the Russian Federation).

The form of the protocol on familiarization of the person being inspected with the resolution on the appointment of an examination was approved by Order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/33 (Appendix 10). The protocol must contain:

Name of the tax authority that initiated the examination;

Full and abbreviated name of the organization being inspected;

Place and date of familiarization;

Start and end time of the event;

Position, surname, name, patronymic of the person who compiled the protocol;

Last name, first name, patronymic of each person participating in the familiarization;

A note indicating that the taxpayer has been informed of his rights.

After reviewing the protocol, the person being inspected may request that additional questions be put to the expert and that an additional or repeat examination be ordered. If the company has no comments or questions, the protocol is signed by the inspector who compiled it and a representative of the organization. A copy of the document is issued to the audited company.

If a protocol was not drawn up, most likely the court will consider that the examination procedure was violated. The conclusion in this case is not accepted as evidence (resolutions of the FAS East Siberian Federal Antimonopoly Service dated 02.02.2012 No. A19-6680/10, Ural District dated 08.11.2009 No. F09-5758/09-S2, West Siberian District dated 03.04.2009 No. F04-1211/2009(1530-A81-34)).

In some cases, the court may make a different decision. For example, the Federal Antimonopoly Service of the West Siberian District took into account that the taxpayer, before the start of the examination, actually exercised the rights granted to him (submitted a petition to disqualify the expert). And, despite the fact that the protocol was not drawn up, the court came to the conclusion that the taxpayer’s rights were not violated when ordering an examination. This means that the results of an expert study can be recognized as admissible evidence when considering a dispute (resolution dated April 18, 2012 No. A03-5846/2010).

Get to know your rights

As already noted, the inspection must familiarize the inspected person with his rights, which are as follows:

• familiarize yourself with the resolution on the appointment of the examination (clause 6 of Article 95 of the Tax Code of the Russian Federation). If the inspection does not familiarize the company with the resolution, the court may recognize the expert’s conclusion as unacceptable evidence (resolution of the Federal Antimonopoly Service of the West Siberian District dated December 10, 2013 No. A45-23839/2012);
• challenge the expert (subclause 1, clause 7, article 95 of the Tax Code of the Russian Federation). The Federal Antimonopoly Service of the North-Western District indicated that a company can select a specific expert, but choose expert organization she has no right (resolution dated April 21, 2009 No. A42-4828/2008);
• request the appointment of an expert from among the persons indicated by him (subparagraph 2, paragraph 7, article 95 of the Tax Code of the Russian Federation). However, as indicated by the Federal Antimonopoly Service of the Ural District, the Tax Code of the Russian Federation does not oblige the tax authority to entrust the examination to the person proposed by the taxpayer; the right of final choice lies with the tax authority (resolution No. F09-4153/10-S3 dated 06/07/2010);
• ask additional questions to the expert (subclause 3, clause 7, article 95 of the Tax Code of the Russian Federation). At the same time, additional questions should not expand the subject of the study, defined tax office(resolution of the Federal Antimonopoly Service of the East Siberian District dated December 30, 2010 No. A33-3928/2010);
• be present with the permission of a tax authority official during the examination and give explanations to the expert (subclause 4, clause 7, article 95 of the Tax Code of the Russian Federation). At the same time, the inspection is not obliged to inform the company about the place and time of the examination (Resolution of the Federal Antimonopoly Service of the North-Western District dated February 11, 2008 No. A42-9396/2005). The Supreme Arbitration Court of the Russian Federation also thinks the same. In Ruling No. VAS-16191/12 dated December 17, 2012, the court emphasized that untimely notification of a company that received permission to attend the examination of the time and place of the examination is not significant violation her rights. In this case, we were talking about a handwriting examination, and the court indicated that the expert did not need the presence of the taxpayer during the examination in order to give explanations. The resolution of the Federal Antimonopoly Service of the West Siberian District states that the receipt by a company of a notice of the date and place of the examination on the day of the examination is not a violation of the rights of the taxpayer (resolution No. A27-2427/2013 dated December 26, 2013);
• get acquainted with the expert’s conclusion, give your explanations and raise objections (subclause 5, clause 7, clause 9, article 95 of the Tax Code of the Russian Federation). The Tax Code of the Russian Federation does not say when the inspection must familiarize the inspected person with the expert’s conclusion. The FAS Moscow District indicated that the expert opinion is one of the tax audit materials that are considered by the head (his deputy) of the inspectorate along with other evidence. A separate familiarization of the company with the expert’s opinion outside of consideration of the materials of the inspection of the Tax Code of the Russian Federation is not provided (resolutions of the Federal Antimonopoly Service of the Moscow District dated 05/11/2011 No. KA-A40/3847-11, dated 04/22/2010 No. KA-A40/3561-10). In the case considered by the Federal Antimonopoly Service of the Volga-Vyatka District, the company stated that familiarization with the expert’s conclusion after reviewing the materials of the on-site tax audit deprived it of the opportunity to present its objections and provide explanations on this conclusion. However, the court rejected these arguments and upheld the inspectorate’s decision (resolution No. A82-3257/2012 dated 07/02/2013);
• ask for the appointment of an additional or repeated examination (clause 9 of article 95 of the Tax Code of the Russian Federation).

The implementation of the above rights is carried out after a resolution on the appointment of an examination is issued (resolution of the Federal Antimonopoly Service of the West Siberian District dated June 17, 2010 No. A27-24809/2009).

Reading the expert's opinion

The expert gives a written opinion on his own behalf. The conclusion outlines the research he conducted, the conclusions drawn as a result and substantiated answers to the questions posed (clause 8 of Article 95 of the Tax Code of the Russian Federation).

A conclusion may be considered inadequate evidence if:

• the conclusion does not indicate which documents were handed over to the expert and examined by him (resolution of the Federal Antimonopoly Service of the North-Western District dated December 4, 2009 No. A56-48361/2008);
• the expert made a probabilistic conclusion on to the question asked(FAS resolution North Caucasus District dated July 4, 2012 No. A53-7098/2011);
• in the conclusion there is no answer to the question posed, it was not given by the expert who is indicated in the resolution on the appointment of the examination (resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 20, 2009 No. A15-1780/2008);
• the conclusion was received after completing the inspection and making a decision based on the results of the inspection (Resolution of the Federal Antimonopoly Service of the East Siberian District dated May 20, 2013 No. A19-8764/2012). However, not all courts consider this fact a violation. For example, the Federal Antimonopoly Service of the North-Western District indicated that if an expert opinion was received after the completion of an on-site inspection, this does not deprive it of evidentiary value (resolution dated April 30, 2014 No. A21-3394/2013).

Let us note that the courts do not pay attention to minor inaccuracies in the expert opinion. Thus, the Federal Antimonopoly Service of the North-Western District indicated that the erroneous naming of an invoice as a payment document does not entail the invalidity of the expert opinion, since it does not distort the essence of the conclusions made by the expert (resolution dated February 17, 2014 No. A05-4792/2013).

Important
If, during the examination, an expert establishes circumstances that are significant for the case, about which no questions were put to him, he has the right to include conclusions about these circumstances in his conclusion (clause 8 of Article 95 of the Tax Code of the Russian Federation).

The courts emphasize that the results of the examination must be documented in a document drawn up in the form of a conclusion, and not in any other way. And the examination itself was appointed and carried out in the manner prescribed by Art. 95 Tax Code of the Russian Federation.

For example, the court recognized that a certificate from the regional forensic center of the Main Department of Internal Affairs cannot be considered admissible evidence, since it was compiled based on the results of a handwriting study conducted in accordance with paragraph 5 of Art. 6 of the Federal Law of August 12, 1995 No. 144-FZ “On Operational Investigative Activities”, and therefore does not comply with the requirements of Art. 95 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Ural District dated January 22, 2010 No. F09-11151/09-S3, Determination of the Supreme Arbitration Court of the Russian Federation dated May 5, 2010 No. VAS-6179/10).

In addition, the arbitrators indicate that the certificates do not meet the requirements for an expert opinion. Certificates often lack the following necessary information:

• references to regulatory legal documents, on the basis of which the expert’s conclusions were made (resolution of the Federal Antimonopoly Service of the Volga Region dated December 14, 2010 No. A12-6263/2010);
• description of the research methodology (resolution of the Federal Antimonopoly Service of the North-Western District dated May 13, 2010 No. A56-41647/2009).

This is interesting

Sometimes the question arises: what should the name of a document confirming, for example, the market value of property be called if the assessment was ordered by an inspectorate as part of an examination. On the one hand, such a document is drawn up by an appraiser and is called an appraisal report. On the other hand, in order to become evidence in court, this document must be called an expert’s opinion and nothing else. Thus, in a case considered by the Federal Antimonopoly Service of the West Siberian District, the inspectorate appointed an examination of the assessment market value real estate And land plot owned by the company. The results of the examination were supposed to be used as an independent expert judgment on the most probable market value of the objects of assessment to verify the legitimacy of the determination tax base on corporate income tax, VAT, property tax. The expert drew up a conclusion that contained calculations and justification for the market value of the objects. The company attempted to challenge the results of this study on two fronts.

First, she questioned the competence of the assessors. She indicated that the conclusion did not contain complete and sufficient information, and therefore the values ​​​​used in the calculations made by the inspection could not be verified, including different odds that there is no justification for the use of some methods and the exclusion of other assessment methods, that when comparing objects the appraiser took into account objects that, due to certain specifics, cannot be compared with each other. Moreover, in violation of Art. 11 of the Federal Law of July 29, 1998 No. 135-FZ “On Valuation Activities in the Russian Federation”, the report does not indicate valuation dates, which is misleading and allows for ambiguous interpretation related to the dates for determining the value; the report does not indicate the book value of the object; the factor of external (economic) wear and tear is not taken into account; it is not indicated in what area the expert involved has knowledge; the concept of market value that guided the expert does not correspond to the concept of market value given in the Tax Code of the Russian Federation. According to the public, the sources of information used by the expert are unreliable; expert opinion regarding influence book value on the size of the market value of the valuation object is of a presumptive nature, which is unacceptable.

Secondly, the company pointed out formal shortcomings. Thus, according to the company’s statement, in violation of clause 25 of section 4 Federal standard assessments " General concepts assessments, approaches and requirements for conducting an assessment”, the assessment report is called an expert opinion. In other words, if the report is considered a conclusion, then this is a violation of evaluation standards, and if the report is considered a report, then this is a violation of the procedure provided for in Art. 95 Tax Code of the Russian Federation.

However, the court rejected the company’s arguments, pointing out that the title of the appraiser’s report as an expert’s opinion does not affect the size of the market value of the appraised object. The company’s attempts to challenge the professionalism of the appraisers also failed (resolution of the Federal Antimonopoly Service of the West Siberian District dated August 15, 2013 No. A46-10461/2011).