This time, what drew the Supreme Court's attention was whether it was lawful to charge late-payment interest on VAT against the organiser of the scheme.
• The lower courts found that the participants in the scheme were paying tax under the simplified tax system and the unified tax on imputed income, whereas they ought to have been paying VAT under the general tax system. The courts concluded that, because the taxpayer had not filed an application to set the overpayment under the special regimes against the VAT arrears, the late-payment interest on VAT had been charged lawfully.
The Supreme Court disagreed with that approach. The amount of tax paid under the special tax regimes was sufficient to cover the VAT arrears. The tax authority itself set the overpayment against the VAT arrears. Since the budget suffered no loss, the inspectorate was not entitled to charge late-payment interest (ruling of the Judicial Panel of the Supreme Court of 4 September 2024, No. 307-ЭС24-5688, in case No. А26-8877/2021).
This case confirms once again that the tax authorities often take an inconsistent position in disputes about business splitting, and grossly infringe taxpayers' rights. Following a field tax audit, the tax authority is obliged to determine the true amount of the tax liability to the budget. The point of charging late-payment interest is to compensate the budget for a loss on a particular tax. If the budget has suffered no loss, how can late-payment interest be charged? It is surprising that the lower courts did not see the error in the tax authorities' position, and that so obvious a question had to be decided at the level of the Supreme Court, comments Andrey Rymarev, head of tax practice at Consul Group.
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