The payer's right to optimize tax liability and abuse of tax law: limits and legal consequences

The article raises the question of the criteria for distinguishing the payer's subjective right to tax optimization and the abuse of such a right. The lack of clarity and legal certainty in this matter leads to a violation of the fiscal interests of the state, as a result of which budgets incur financial losses, or the legitimate rights of taxpayers are violated. An attempt to resolve this problem within the framework of judicial law–making, of course, brought a positive result, however, as practice has shown, this was not enough. The purpose of the article is to define the boundaries between the concepts of "the payer's right to tax optimization" and "abuse of tax law" with the justification of fixing these provisions in the Tax Code of the Russian Federation. Special attention is paid to the reasons that contribute to increasing the possibilities of the payer to abuse his tax right to optimization.
As a result of the study, it is noted that the payer's right to tax optimization should be understood as a reduction in the amount of tax liabilities through lawful actions of a person, including the use of the rights granted by law related to exemption from taxes, fees (mandatory payments), their reduction or reimbursement. And the abuse of tax law is a form of the taxpayer's realization of his subjective tax right when it contradicts its true purpose, formally established in the law, is harmful and entails unjustified economic advantages over others.
Conclusion. The exercise of the right to tax optimization is always the lawful behavior of the payer. The main limits beyond which the payer's right to optimize taxation passes into its abuse are harmfulness and obtaining tax advantages over other payers. Harmfulness is not illegal or unlawful behavior of a person but indicates that he uses his right to tax optimization in order to achieve another result that was not originally provided by the legislator when establishing the meaning and content of this right. Therefore, abuse of tax law does not entail any legal liability for the payer, since he does not violate the norms of tax legislation and does not go beyond the limits specified by law, beyond which a tax offense already begins (a criminal offense under Articles 198, 199 of the Criminal Code of the Russian Federation). The consequences in this situation consist only in the rightful actions of the ruling entity (court or tax authority).

1. Vasil'eva E.G. [Tax optimization and regulatory limits of its implementation in the modern tax system: a national regulatory model]. Nalogi = Taxes. 2020;(3):29–34. (In Russ.)]

2. Vachugov I.V., Martynov O.N. [The uncertainty of the boundaries of tax optimization is a problem of the Russian tax system]. Nalogi i nalogooblozhenie = Taxes and taxation. 2021;(3):118–129. (In Russ.)]

3. Ledneva Yu.V. [Taking into account the fiscal interests of the state when optimizing the tax regime to attract investment]. Zhurnal rossiiskogo prava = Journal of Russian Law. 2020;(7):144–157. DOI: 10.12737/jrl2020.087. (In Russ.)]

4. Malinovskii A.A. [Abuse of taxpayer rights: comparative legal aspects]. Vestnik MGIMO Universiteta = Bulletin of MGIMO University. 2013;(2 (29)):156–162. (In Russ.)]

5. Tegetaeva O.R. [Tax optimization VS tax evasion]. Nalogi i nalogooblozhenie = Taxes and taxation. 2014;(10):889–893. (In Russ.)]