How to challenge a claim for payment of a debt listed on your “Settlements with the Budget” card, the collection period for which has expired

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When an inspection makes a demand for payment of a tax, penalty or fine based on the results of an inspection, everything is more or less clear: both the amounts are recognizable and the grounds for additional charges are already clear. But often the inspection requirement is based only on some old numbers from your “Settlements with the Budget” card (RSB card, former personal account card). In such a situation, it is important not to get confused and understand what to do with it.

Consequences of the decision coming into force

The decision to prosecute (subclause 1, paragraph 7, article 101 of the Tax Code of the Russian Federation), as well as the decision to refuse to prosecute, comes into force after one month from the date of its delivery to the taxpayer in respect of whom the audit was carried out (para. 1 clause 9 article 101 of the Tax Code of the Russian Federation). A similar entry into force period is provided for decisions made in relation to a consolidated group of taxpayers. In this case, the period is determined from the moment the decision is delivered to the member of the consolidated group.

If the inspectorate is unable to deliver the decision to the taxpayer, then it is sent by registered mail. These actions must be completed by the tax authority within five days from the date of the decision. (Clause 29 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57). The date of delivery of the decision is considered to be the sixth day from the date of sending the registered letter.

A company should not in any way avoid receiving a tax audit decision . Since this may lead to negative consequences in the form of missing the deadline established for the appeal. If the decision is appealed, it comes into force to the extent not canceled by the higher tax authority. And also in the unappealed part from the day the higher inspectorate made a decision on the appeal (clause 1 of Article 101.2 of the Tax Code of the Russian Federation).

Let's consider the consequences of the entry into force of the decision to prosecute . Having identified the alleged arrears, the inspection makes a demand for payment of tax (paragraph 3, paragraph 1, article 45 of the Tax Code of the Russian Federation). The requirement is sent within 20 days from the date of entry into force of the relevant decision (Clause 2 of Article 70 of the Tax Code of the Russian Federation). The requirement to pay the tax can be delivered to the taxpayer in person, sent by registered mail or transmitted electronically via telecommunication channels (Clause 6 of Article 69 of the Tax Code of the Russian Federation). In this case, the company has eight working days to comply with the requirement on a voluntary basis. However, inspectors can set a longer period (paragraph 4, paragraph 4, article 69 of the Tax Code of the Russian Federation).

In case of failure to comply with the requirement, the fiscal authorities have the right to collect arrears, penalties and fines in an indisputable manner (Articles 46, 47 of the Tax Code of the Russian Federation). The decision on collection is made no later than two months after the expiration of the period established in the requirement to pay the tax (clause 3 of Article 46 of the Tax Code of the Russian Federation). Having missed this deadline, inspectors will be able to collect the debt only in court (subclauses 1–4, clause 2, article 45 of the Tax Code of the Russian Federation).

In addition, after the decision has entered into force and the demand has been served, the inspectorate has the right to take interim measures aimed at enforcing the decision. The most negative of them are the suspension of transactions on bank accounts and the seizure of property (clause 10 of Article 101 of the Tax Code of the Russian Federation).

To avoid damage...

When taking interim measures such as suspending the validity of a contested non-normative legal act, the court must assess how failure to take such measures could lead to significant damage to the applicant. Thus, according to paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 55 “On the application of interim measures by arbitration courts” in order to prevent significant damage to the applicant, interim measures can be aimed at maintaining the existing state of relations between the parties. Evidence of these facts can be a balance sheet, financial statements, loan agreements, contracts with counterparties. This is the kind of evidence the bank provided, which was taken into account by the court. The bank has sufficient assets to pay off the arrears and penalties by decision of the tax authority, which is confirmed by the data of its balance sheet, according to which the applicant has sufficient funds for the immediate execution of the contested decision. The balance sheet currency is 2.5 billion rubles.

Another argument in favor of taking interim measures was the significant time costs associated with the return from the budget of funds unjustifiably collected from the bank, which the bank will have to overcome if a decision is made on the disputed claim in its favor. Unjustified diversion of funds may have a negative impact on the entire activity of the bank, including the revocation of the license to carry out banking activities.

Pre-trial appeal of a tax audit decision

It is obvious that the decision to prosecute carries a sufficient number of negative consequences, up to and including temporary suspension of the organization’s activities. The question arises: what should the company do after the decision is made? There are two options here. If the taxpayer agrees with the controllers’ claims, then it is better to immediately pay the arrears, penalties and fines. There is no need to wait until a tax payment request is made. Because this is fraught with the consequences described above.

If the company does not agree with the additional charges, then it is necessary to appeal the decision in the manner prescribed by the Tax Code. If everything is clear with the first option, then appealing the decision raises questions. First of all, let’s define the main options for appeal: pre-trial appeal of a decision that has not entered into force, pre-trial and judicial appeal of a decision that has entered into force.

A decision to impose liability that has not entered into force is appealed by submitting an appeal to a higher tax authority. This complaint can be filed before the day the decision comes into force (clause 2 of Article 139.1 of the Tax Code of the Russian Federation). Decisions appealed by submitting an appeal to a higher tax authority come into force at the moment the higher inspectorate makes a decision on the complaint (clause 1 of Article 101.2 of the Tax Code of the Russian Federation). This means that during the consideration of the complaint, fiscal officials do not have the right to make a demand for tax payment. And, accordingly, apply any interim measures.

The appeal is submitted to the tax authority that made the decision. The inspectorate, whose decision is being appealed, is obliged to send it with all materials to a higher authority within three working days from the date of receipt of the complaint (Clause 1 of Article 139.1 of the Tax Code of the Russian Federation). The bodies whose powers include consideration of appeals are the Federal Tax Service for the constituent entities of the Russian Federation and the Federal Tax Service of Russia (Appendix No. 5 to the order of the Ministry of Finance of Russia dated July 17, 2014 No. 61n “On approval of the Model Regulations on the territorial bodies of the Federal Tax Service”).

Appeals against decisions of the Federal Tax Service for a constituent entity of the Russian Federation and interregional inspectorates for the largest taxpayers are considered by the Federal Tax Service of Russia. Appeals against decisions of territorial inspectorates of the Federal Tax Service of Russia are considered by the Federal Tax Service for the constituent entities of the Russian Federation. When submitting a complaint to a company, it is worth monitoring the process of sending it to a higher inspection and finding out the incoming number. In this case, the company will be able to receive information about the consideration of the complaint.

A higher authority considers the appeal within a month from the date of its receipt (clause 6 of Article 140 of the Tax Code of the Russian Federation). This period may be extended to receive documents from lower inspections, but not more than one month. While the appeal is being considered, the inspector's decision is not considered to have entered into force.

Choosing a protection method

There are several ways. You can choose only one, you can combine several, but which ones exactly? It may seem like an incident, but you can ask the tax authorities about this directly. After all, as you know, tax authorities must inform taxpayers free of charge, including about the rights of taxpayers (subclause 4, clause 1, article 32 of the Tax Code of the Russian Federation). It can be done:

by phone (8-800-222-22-22);
via the Internet (https://www.nalog.ru);
in person or in writing (127381, Moscow, Neglinnaya St., 23 or at the address of your tax office).

It must be remembered that when applying in writing, 30 days are allotted for a response (which can be successfully used to delay time, so that, for example, the statute of limitations expires).

Complaint against a decision that has entered into force

a tax audit decision that has entered into force is largely similar to that described above. However, there are also differences. A complaint against a decision to prosecute a person that has entered into force can be filed within one year from the date of its adoption (paragraph 2, paragraph 2, article 139 of the Tax Code of the Russian Federation). This complaint is also submitted through the tax authority that made the decision and is sent to the inspectorate within three days of receipt.

The main difference is that appealing a decision that has already entered into force does not suspend the validity of the decision itself (clause 5 of Article 138 of the Tax Code of the Russian Federation). This means that the inspection, despite the presence of a complaint, may issue a demand for payment of arrears. At the same time, inspectors have the right to apply interim measures and collect additional charges from the company.

However, there is a way to avoid negative consequences. The company has the right to apply to a higher tax authority to suspend the appealed decision. The main thing is that there are sufficient grounds to believe that such a decision does not comply with current legislation (paragraph 2, paragraph 5, article 138 of the Tax Code of the Russian Federation). Unfortunately, the Tax Code does not contain a clear procedure for considering such an application and making a decision on it. This can make it significantly more difficult to appeal a decision to suspend a review decision.

It is worth noting that there is the possibility of appealing a decision made by a higher inspection to the Federal Tax Service of Russia. Such a complaint can be filed within three months from the date the higher tax authority made the decision (paragraph 3, paragraph 2, article 139 of the Tax Code of the Russian Federation).

Up to the authorities

Appealing to a higher-ranking official of the tax authority is a very effective measure, which allows you to maintain good relations.

The most convenient way to contact is through your personal account on the website nalog.ru. Despite the “innovativeness” of the method, it is fully subject to the procedure for considering appeals established by law (meaning Federal Law No. 59-FZ of May 2, 2006, which, despite the name, also applies to appeals from legal entities). In general, it does not matter in what form you apply - with a statement or with a complaint. The main thing is to comply with the uniform requirements and indicate:

FULL NAME. addressee - the official you are addressing (or his position);
your full name;
address for response (mail or email);
the essence of the appeal is

and sign it all (with your own hand or with an appropriate electronic signature). Supporting documents are attached as necessary and if available.

The addressee has no right to refuse to accept an appeal; in any case, it must be accepted, registered (within 3 days from the date of receipt) and considered (within 30 calendar days from the date of its registration). The official has the right to forward your letter to another person if the solution to the issue you raised is beyond his competence.

The response is sent either in writing, or by email, or through your personal account (depending on which method you indicated in your request). In general, an appeal remains unanswered in strictly defined cases:

the applicant forgot to indicate his name or address for the response;
the address used unparliamentary (obscene or offensive) expressions, as well as threats;
the text is unreadable and (or) contains a question that has already been answered many times, and there are no new arguments.

In the event (although this is unlikely) if an official violates the procedure for considering an appeal, then there are grounds to raise the issue of administrative liability (fine from 5,000 to 10,000 rubles (Article 5.59 of the Code of Administrative Offenses of the Russian Federation)).

Judicial appeal of a tax audit decision

Calculation of the time limit for going to court . Submission of an appeal to a higher tax authority is confirmation of compliance with the pre-trial procedure for the purpose of further appeal to the court (clause 2 of Article 138 of the Tax Code of the Russian Federation). Currently, the three-month period for going to court is calculated exclusively from the moment the higher authority makes a decision on the appeal (clause 3 of article 138 of the Tax Code of the Russian Federation, part 4 of article 198 of the Arbitration Procedure Code of the Russian Federation).

Previously, fiscal officials insisted that the taxpayer could appeal the decision to prosecute in court within three months from the date the decision of the lower inspection came into force. And some courts supported them (resolution of the Federal Antimonopoly Service of the Volga District dated April 19, 2011 No. A12-10342/2010). Therefore, in practice, quite often there was a situation where the payer missed the deadline to go to court due to the fact that he did not have time to go through the full cycle of pre-trial appeal to a higher tax authority. This procedure, unlike objections to the inspection report, is mandatory (clause 2 of article 138, clause 6 of article 100 of the Tax Code of the Russian Federation).

This situation has given rise to a large number of legal disputes. The result of the formation of judicial practice in favor of taxpayers was the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 20, 2011 No. 10025/11. The court noted that a complaint against an inspection decision that has entered into force is submitted to a higher authority within a year from the date of its adoption (clause 2 of Article 139 of the Tax Code of the Russian Federation). This period cannot be reduced due to the threat of missing the three-month period established by Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation. The specified three-month period should not be considered as an obstacle to the taxpayer’s exercise of the right to out-of-court appeal. This gap was finally eliminated with the entry into force of Federal Law No. 153 FZ dated 07/02/13.

Since the period for judicial appeal is three months from the moment when taxpayers became aware of a violation of their rights and legitimate interests (Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation), they often postpone submitting an application to the court. This behavior is fraught with negative consequences. The right to judicial appeal does not suspend the effect of the inspection decision. From the moment the decision on the appeal is approved by a higher authority, the inspectorate has every right to make a demand for payment of tax.

Application for interim measures . In order to avoid risks, it is worth submitting an application to the court as soon as possible (Articles 125, 126, 198 of the Arbitration Procedure Code of the Russian Federation). In this case, an application for interim measures should be attached in the form of suspending the validity of the contested decision until the judicial act enters into force (Article 90 of the Arbitration Procedure Code of the Russian Federation). These actions will deprive inspectors of the opportunity to block the organization’s accounts and seize property. The arbitration court will consider the said application no later than the next day after its receipt (Part 1.1 of Article 93 of the Arbitration Procedure Code of the Russian Federation).

To satisfy the application, it is necessary to consistently prove that failure to take interim measures will cause significant material damage to the company and make it difficult (or impossible) to execute the judicial act. It is also necessary to prove that the interim measures are proportionate to the stated requirement. The court may require counter-security from the company. For example, in the form of depositing funds into a court deposit account or by providing a bank guarantee or surety for the same amount (Part 1 of Article 94 of the Arbitration Procedure Code of the Russian Federation). The amount of counter-collateral cannot be less than half the amount of the company's property claims. If the stated facts are not confirmed and counter-security is not provided, the court will most likely refuse the taxpayer’s application for interim measures (clauses 3, 6 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 83). In turn, if countersecurity is provided along with such an application, the court has no grounds for refusing to take interim measures (Part 4 of Article 93 of the Arbitration Procedure Code of the Russian Federation).

To the prosecutor

The incredible variety of methods of address is amazing. In addition to traditional methods (written, oral, electronic, via the Internet), even telegraph and fax can be used.