Petition to the tax office to reduce the fine in 2021 and 2021

What does Article 112 of the Tax Code allow?

The list of mitigating circumstances that will allow a company or individual entrepreneur to reduce the amount of sanctions for tax violations is given in Art. 112 of the Tax Code of the Russian Federation. It is open and provides for the possibility of recognizing “other circumstances” as mitigating.

Please note: it is the company, as an interested party, that must declare the presence of mitigating circumstances and apply for a reduction in the amount of the penalty. To do this, you need to write a statement or petition to reduce the amount of the fine. And attach documents confirming the presence of mitigating circumstances.

According to paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, such circumstances are recognized:

committing an offense due to a combination of difficult personal or family circumstances;
committing an offense under the influence of threat or coercion or due to financial, official or other dependence;
difficult financial situation of an individual held accountable for committing a tax offense;
other circumstances that may be recognized as mitigating by the court or tax authority considering the case.

Exception of fault

If there are circumstances that exclude a person’s guilt in committing a tax offense, sanctions are not applied. Article 111 of the Tax Code describes three types of these circumstances:

extraordinary and insurmountable circumstances;
deranged state;
written explanations from government agencies.

Let's look at them in more detail. Extraordinary and insurmountable circumstances are recognized if there has been a natural disaster, etc. These circumstances are established by the presence of generally known facts, publications in the media and other means that do not require special means of proof.

Attention

If the taxpayer does not have the money to pay the tax due to the fact that his partners did not pay him in a timely manner, this circumstance is not considered insurmountable. Consequently, such an unpleasant situation is not recognized as a circumstance excluding guilt in a tax offense.

For example, the financial documentation of an enterprise was destroyed by a severe flood, due to which the company was unable to submit reports to the tax authority in a timely manner.

Individuals who were in a state of insanity at the time of the commission of the offense, in which it is impossible to be aware of their actions or to lead, are exempt from liability. The tax authority will have to prove your poor health.

The medical aspect of insanity is the exacerbation of a chronic mental illness. Therefore, a circumstance excluding guilt in committing a tax offense is not recognized as a person’s painful condition, which, perhaps, did not entail a loss of control over one’s actions, but objectively prevented the fulfillment of tax obligations. For example, an individual entrepreneur could not pay tax due to a long stay in the hospital.

The rule of exemption from tax liability due to insanity does not apply to organizations. After all, the guilt of the latter, as has already been said, is established depending on the guilt of their officials. The insanity of one official does not eliminate the responsibility of other officials for maintaining financial discipline in the company. The exception is organizations that have one official on staff.

And finally, written explanations from government agencies can exclude guilt. In this case, we mean situations where tax obligations were not fulfilled due to the taxpayer’s execution of written explanations. These explanations can be given to him personally or to an indefinite number of persons by a financial, tax or other government body.

These circumstances are established in the presence of a document from this body, which in its meaning and content relates to the tax periods in which the offense was committed. The date of publication of such a document does not matter.

Let us note that, according to paragraphs 1 and 2 of Article 34.2 of the Tax Code, written explanations are given by:

The Ministry of Finance of Russia - to tax authorities, taxpayers, responsible participants in a consolidated group of taxpayers, payers of fees and tax agents on the application of the legislation of the Russian Federation on taxes and fees;
financial authorities of the constituent entities of the Russian Federation and municipalities - taxpayers and tax agents on the application, respectively, of the legislation of the constituent entities of the Russian Federation on taxes and fees and regulatory legal acts of municipalities on local taxes and fees.

Special rules

The presence of an aggravating circumstance is not an obstacle to the simultaneous reduction of tax penalties in the presence of mitigating circumstances.

Subparagraph 4 of paragraph 1 of Article 32 of the Tax Code assigns to tax authorities the obligation to inform taxpayers free of charge, including in writing:

about current taxes and fees;
on legislation on taxes and fees and on regulatory legal acts adopted in accordance with it;
on the procedure for calculating and paying taxes and fees;
on the rights and obligations of taxpayers, fee payers and tax agents;
on the powers of tax authorities and their officials.

Tax authorities are also required to provide tax return and calculation forms and explain how to fill them out.

Attention

The list of circumstances that exclude a person from being held accountable for committing a tax offense is closed.

If written explanations are based on incomplete or unreliable information provided by the taxpayer, then their implementation is not a circumstance excluding the person’s guilt in committing a tax offense.

“Other” mitigating circumstances

Tax officials previously cited other circumstances on their website:

minor delay (transfer of tax or submission of a declaration, payment with a delay of a “small” number of days);
recognition by the taxpayer of guilt, absence of debt at the time of making the decision, elimination of damage, independent identification and elimination of errors, etc.;
carrying out charitable activities by the taxpayer; social orientation of the taxpayer’s activities (taxpayer-agricultural producer;
city-forming enterprise, etc.);
difficult financial situation of the organization (liquidation of the enterprise;
reorganization of the taxpayer;
bankruptcy procedures;
non-conduct of economic activity);
seasonal nature of work, etc.;
difficult financial situation of an individual (pensioner, lack of income, etc.);
serious health condition (disability, serious illness, illness during the commission of an offense, etc.);
committing an offense due to a combination of circumstances (personal and family circumstances, etc.);
disproportionality of the act to the severity of the punishment (absence of adverse economic consequences, damage to the budget;
conscientious performance by the taxpayer of his duties;
presence of constant overpayment;
lack of intent to commit an offense, etc.).

Grounds for mitigating the fine

The size of the sanction can be reduced. So says the article. 112 of the Tax Code of the Russian Federation. But reasons are needed. Conditions for reduction are divided (conditionally) into the following types:

The types depend on the subject. General grounds are possible if the violation is minor. For example, the deadline was missed by only a few days and no damage was caused to the state budget. The rule of “first violation” should be highlighted separately: if a person has committed an offense for the first time, then this serves as a basis for mitigating the punishment.

In addition to the examples listed, the article highlights the following conditions:

critical circumstances;
threats and coercion;
plight;
other factors.

Critical circumstances include personal and family problems. This concerns citizens. For example, divorce proceedings or multiple dependents are valid reasons.

Distress is the inability to make a payment due to an objective lack of money. Other factors include conditions that the tax authority determines independently based on the specifics of the situation. In other words, the Federal Tax Service has the right to personally determine who is worthy of mitigating the sanctions.

Legal entities and individual entrepreneurs can hope for a reduction in the fine under the following factors:

unseen circumstances;
risk of bankruptcy;
failures and problems when transmitting information to the Federal Tax Service.

Examples: loss of documentation due to fire, low efficiency of postal services, etc. Practice shows that it is more difficult for organizations to prove the validity of conditions than for citizens.

If at least one of the listed factors is present, the person has the right to a reduction in the fine. But for this you will need to draw up a special procedural document.

How much will the fine be reduced?

If there are mitigating circumstances, the amount of the fine may be reduced by at least 2 times compared to the amount provided for in the relevant article of the Tax Code. This is expressly stated in paragraph 3 of Art. 114 Tax Code of the Russian Federation.

It will not be possible to reduce the sanctions completely to zero, since this will already be considered an exemption, and not a reduction in the fine.

Therefore, we note that mitigating circumstances do not relieve the taxpayer of responsibility for committing an offense and the tax office cannot completely cancel the fine on their basis.

Release from liability

A person cannot be held liable for committing a tax offense if at least one of the following circumstances exists.

Absence of a tax violation event;

The person is not guilty of committing a tax offense;

Commitment of an act containing signs of a tax offense by an individual who was under 16 years of age at the time of the commission of the act. A person can be brought to tax liability only from the age of 16 (clause 2 of article 107 of the Tax Code of the Russian Federation);

Expiration of the statute of limitations for bringing to justice for committing a tax offense;

Absence of a tax violation event. This circumstance means the absence of an act, the commission of which is the basis for prosecution. For example, missing the deadline for filing a declaration with the inspectorate does not constitute a tax offense if the person is not a payer of such tax;

No guilt. Guilt is a necessary condition for holding a person accountable for violating the laws on taxes and fees. Its absence excludes the possibility of considering the committed act an offense and does not allow the taxpayer (tax agent, fee payer) to be brought to tax liability. The presence of the circumstance in question is due to the fact that in some situations a person’s ability to act voluntarily is limited or even impossible. This deprives him of the right to choose between legal and illegal behavior or to realize the illegality of his actions (inaction).

Expiration of statute of limitations (3 years).

Let’s say that three years have passed from the day the tax offense was committed (or from the next day after the end of the tax period when it was committed) until the decision to bring the person to justice is made. Then the person cannot be held accountable.

The calculation of the limitation period from the next day after the end of the corresponding tax period applies to tax offenses provided for in the following articles of the Tax Code:

120 “Gross violation of the rules for accounting for income and expenses and objects of taxation”;
122 “Non-payment or incomplete payment of tax (fee) amounts.”

For other tax offenses, the statute of limitations is calculated from the date of their commission.

Intent when committing an offense

Intent and mitigating circumstances are incompatible. If the taxpayer’s actions involve intentional acts, then mitigating circumstances cannot be applied.

Here are some actions that cannot be used as mitigating circumstances (resolution of the Arbitration Court of the East Siberian District dated December 11, 2014 in case No. A58-6043/2013):

additional assessments of taxes, penalties and fines were the result of the activities of already dismissed officials;
lack of sufficient funds to pay taxes and tax penalties;
lack of profit from the organization; existence of debts to counterparties;
the difficult financial situation of society;
whether he has credit obligations in relation to the equipment purchased on lease.

Thus, the Federal Tax Service and the Investigative Committee of the Russian Federation have developed methodological recommendations for tax and investigative authorities on how to identify and prove intent in tax offenses and published them in letter No. ED-4-2 of the Federal Tax Service of Russia dated July 13, 2017 / [email protected]

When preparing the document, its authors analyzed a lot of materials from tax audits and court decisions. In particular, if intent in the actions of taxpayer officials aimed at non-payment of taxes (fees) is proven, then the punishment for this will be more severe. The fine for intentional tax evasion is twice as high as for unintentional evasion . It is 40% of the amount of underpayment (clause 3 of Article 122 of the Tax Code of the Russian Federation).

Please note: intent may also be grounds for criminal prosecution.

How to make a petition?

A petition to reduce a fine to the tax office is a request addressed to the tax authority. This is a full-fledged document that requires compliance with the rules of execution. The law does not directly stipulate the mandatory clauses of the act. However, in practice, a composition technique has been developed.

Requirements:

written form;
availability of details;
motivation and narrative;
business style of presentation.

The document can be drawn up either in handwritten or printed form. Details – mandatory information about the applicant. Contains contact information, full name (if a citizen) or full name (if a legal entity). They are written at the top of the text on the right side. A title must be written after the details.

The main part contains the facts of the case. The applicant proves that events and certain conditions prevented the tax transaction from being completed on time or without violations. The reason must be valid. In addition, during the argumentation, it is recommended to make reference to the provisions of the law that give the right to reduce the fine. Next, a specific request is stated, for the sake of which the act is drawn up - a reduction in the size of the fine.

It makes sense to list applications in a separate section. These may be certificates and certificates that confirm the validity of the reason for the violation. The text itself ends with the date of application and the signature of the applicant. If the document is from a legal entity, then the seal of the organization is affixed.

Execution cannot be pardoned

Even minimal and insignificant violations of fiscal legislation can be punished by tax authorities. Penalties are provided for almost everything. Didn’t submit reports - a fine, didn’t pay the tax on time - a fine and a fine, didn’t provide a confirmation document - again penalties.

Taxpayers just bat their eyes guiltily: yes, they are overdue; yes, they forgot; yes, they didn't pay. Not many people know that the amount of punishment can be significantly reduced or penalties can be avoided altogether. But for this you will need to prepare a sample petition to reduce the fine to the tax office.

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So, if the offender proves at least one of the good reasons for his offense, the tax authorities must reduce the punishment. ATTENTION

: at least doubled.

Such rules apply even to minimal amounts of fines, for example, for failure to provide supporting documentation you will be fined 200 rubles for each document or for late submission of a tax return - the minimum penalty is 1000 rubles. This means that if you apply for a reduction in the punishment, the amounts can be halved (100 and 500 rubles, respectively). Or they may remove penalties altogether.

Sample petition to the tax office to mitigate the fine

It is not recommended to make mistakes. The tax authority may reject a request for the application of mitigating circumstances for a tax audit if it is not drawn up in accordance with the rules of business practice. It is important to carefully consider the points and parts of the document. Don't forget to fill in the details. The circumstances must be presented in detail and to the point. Without artistic expressions and statements. Dry style only.

Before drafting, it is recommended to use a standard template that will help you format the document correctly. The form contains all the necessary information. All that remains is to either fill in the empty fields or register the act according to the template. This guarantees acceptance of the document by the tax authority.

What reasons are considered valid?

Of course, “they just forgot” is not an excuse. However, officials have identified a list of mitigating reasons that can be recognized by regulatory authorities as an exculpatory argument. This list is enshrined in Article 112 of the Tax Code of the Russian Federation.

All circumstances described in the code can be divided into three groups:

Universal - these are the reasons that any company or entrepreneur has the right to include in a sample petition to the tax office for mitigation of a fine. Examples of such circumstances may be:
lack of intent;
the offender repents and fully admits his guilt;
the taxpayer is in good faith, there are no other violations;
financial situation leaves much to be desired (will have to be documented);
During the period of the misconduct, there was no accountant in the company (vacation, dismissal, illness).

If the organization has the status of a budgetary institution or operates in socially significant areas or organizes the supply of food products for the budgetary sector, then these circumstances can also be indicated in the application.

Specific - those reasons that apply only to a specific tax offense.

Individual . However, only individual entrepreneurs, who are also individuals, can identify such reasons. Thus, the following are recognized as mitigating factors: disability, minors, disabled dependents, advanced age, serious illness or difficult financial situation of the family.

It is worth noting that the list of these reasons is not closed. This means that any reason can be considered significant: from an accountant’s cold to the loss of the keys to the safe where the money is. The main thing is that these very circumstances arouse pity, sympathy or a feeling among the court and controllers that the punishment for this very offense is disproportionate.

How to file a petition to reduce a fine

The requirement to pay a fine is in hand, there are mitigating circumstances, what to do next. Indeed, simply “pressuring for pity” is not enough. The circumstances must be clearly stated. Officials did not provide a unified form for such a request document, so prepare it in any form. In fact, a petition is an ordinary application to the Federal Tax Service, therefore, it must be drawn up according to generally accepted rules.

We recommend using the form: