Tax secret: what is this and who can impinge on it?
Article 102 of the Tax Code of the Russian Federation contains general definition of the tax secret via listing of data, not related to this secret:
1) data being public, including those, which became such with consent of their holder - taxpayer;
2) on the taxpayer’s identification number;
3) on violations of the law on taxes and dues and measures of responsibility for these violations;
4) data, provided to the tax (customs) or law enforcement authorities of other states in accordance with international treaties (agreement), in which the Russian Federation is one of the parties, on mutual cooperation between the tax (customs) or law enforcement authorities (with regard to information, provided to these authorities);
5) data, provided to the election committees in accordance with the law on election as per the results of audits of information about the amounts and sources of incomes of the candidate and his marriage partner, as well as about the property, beneficially owned by the candidate and his marriage partner, by the tax authorities;
6) data, provided to the state information system on state and municipal payments, provided for by the Federal Law dated July 27, 2010 N 210-FZ "On organization of provision of state and municipal services";
7) information on participation of the taxpayer within the consolidated group of taxpayers, as well as on application of the special tax regime does not make the tax secret from January 1, 2014.
8) data, provided to the local authorities for the purposes of execution of control over completeness and reliability of information, provided by the payers of local dues, for calculation of dues, as well as on the amounts of arrears on such dues.
It can be supposed that all other data, related to the taxpayer, as well as his business activity, can be the tax secret. The tax secret shall not be subject to disclosure by the tax authorities, bodies of internal affairs, investigative authorities, authorities of the state extra-budgetary funds and customs authorities, as well as their officials, and excluding the cases, provided for by the federal law. Information, coming to the state authorities, making the tax secret, have a special regime of storage and access.
It follows from the very concept of the tax secret that administrative or criminal responsibility shall be established for illegal receipt of data, making the tax secret and their disclosure.
Administrative responsibility provides for imposition of the administrative fine on individuals at the rate of five hundred to one thousand rubles, and on officials – four thousand to five thousand rubles.
Criminal responsibility for unlawful disclosure or use of information, making commercial, tax or bank secret, without consent of its holder by the person, to which it was entrusted or became known due to the service or work, is determined by art. 183 of the Criminal Code of the Russian Federation. Maximum punishment for this offence provides for compulsory labor for the period of up to five years or imprisonment for the period of up to seven years.
Disclosure of the tax secret includes, in particular, use or transfer of information, which makes the commercial secret (production secret) of the taxpayer and became known to the officials of the state authority in the of fulfillment of their duties, to other person, as well as loss of documents, containing the information, making the tax secret.
Provision of information, making the tax secret takes place on the basis of the request for provision of confidential information.
Who can be interested in information, making the tax secret? First of all, it is state authorities, in connection with holding of any audits by them, and, of course, it is contractors, which often request different sort of information from the partners in the course of settlement of transaction, including that, making the tax secret. This can be:
- information about personal data of the specific taxpayers;
- data, related to the commercial secret;
- data, related to the bank secret;
- information about the property of the taxpayer and similar information.
The most spread reason, for which the contractor can request data, related to the tax secret, is manifestation of due circumspection and prudence in selection of the partner, since execution of these actions is one of the most important indicators of conscientiousness of the taxpayer. And though the applicable law does not oblige the parties to the contract, concluded not within special procedures, provided for by the law (tender, auction), to provide any documents to each other in connection with conclusion of the contract, in practice, really, the parties often request different documents from its contractor: copies of the certificate of state registration, documents, confirming the powers, body of the contractor for settlement of the transaction, license, certificate of authorization, issued by the self-regulatory organization, etc.
However, the law does not oblige the party, requested by the contractor to provide copies of any documents or other data in connection with conclusion of the contract, to provide such documents, data, that is why it is entitled to settle this question at his discretion.
The party, interested in confirmation of competence of its contractor, is entitled to refer to the tax authorities for provision of the extract from the Uniform State Register of Legal Entities, documents of the contractor, contained in the Uniform State Register of Legal Entities, for example, charter, to it. Such data are public.
The following can also be requested:
1) documents of financial and tax accounting, accounting statements.
Accounting statements are of public nature, unlike accounting ledgers and internal accounting statements.
Otherwise the question is settled on provision of tax accounting documents to the contractor. Information about the taxpayer is the tax secret after his registration in the tax authority. Such data include tax accounting data. At the same time, data, disclosed by the taxpayer or with his consent, shall not be recognized the tax secret
2) Bank card, bank accounts.
It can be seen in practice that the contractor demands to provide a bank card for confirmation of the authentic signature of the chief executive offices, when the question is, for example, about distant signing of the contract by each of the parties. But since such a duties is not provided for by the law, the organization can reject the contractor in its provision or propose to provide the bank card with the signature of the only chief executive officer of the organization and without signature of the person, having the right of the second signature.
3) Passport data of the founders, director. Sometimes contractors also request this information. If the documents, requested by the contractor, contain personal data of the employees or, for example, participants (shareholders) of the company - individuals (for example, name, date of birth, passport data, etc.), transfer of such data is processing (distribution) of personal data and can be performed only with the written consent of the corresponding subjects of personal data. That is why the organization is not obliged and may not provide information, containing personal data of the indicated persons, without their consent. The provision of the contract on the duty to provide such information to the contractor is also contradictory to the law.