If both spouses are registered as entrepreneurs and pay (or want to pay) UTII, they often attempt to optimize physical performance to fit their vmenenku.
And tax, of course, trying to prove the fictitious nature of these transactions and assess additional taxes to businessmen BASED on. Sometimes they do, sometimes not. And it’s not even that “optimization” is a spouse, even if initially that is what caught the attention of inspectors. So, the tax authorities win the case in court if they are able to prove that in fact no separation of the “joint” trading object between entrepreneurs-spouses was not, the activity was conducted in one businessman throughout the sales area exceeding 150 sq. m. In such a case, the judge noted that the lease contracts concluded between spouses shall not entail any legal consequences due to their uncertainty: one cannot draw a conclusion about what trade premises or part thereof used each of the spouses, does not contains the coordinates of the space on the plans salesrooms. In another case, the judge noted that in the absence of agreement on division of property lease agreements concluded between spouses a General store, void . But the decisive role in this dispute also was the fact that the division of trading spaces was a sham and did not pursue any purpose other than minimizing taxes. Throughout the entire store sold the same goods: carpets and furniture. The suppliers for the requests the IRS has provided information from which it followed that their counterparty in all transactions was extremely wife. Based on this inspection, and the court concluded that the husband-Venedik needed only to the spouse would not show in the account a part of their revenues and, consequently, underestimate tax base under the simplified system.
But if the separation of the trading floor was in fact, the courts, and the marriage contract to accept the lease agreement as a document that defines the order of use of common property, and take the side of entrepreneurs. So, in one case the court upheld the taxpayer, finding that the trading hall with an area of 341 square meters in the shop belonging to the spouse, divided by shelves and showcases in three sections. Part of the floor space leased from the husband and wife did not exceed 150 sq m, which means that she was reasonably paid UTII. The documentation showed that each of the entrepreneurs led independent activity, not only in the controversial store, but also in other places. The judges noted that the tax authorities contradict themselves: during the test, the husband, they tried to prove that the activities in the disputed shop he kept exceptional, and during the test, the wife was assessed additional taxes BASED on her, confirming that she received proceeds from trade in the same store .