Article 59 of the Tax Code of the Russian Federation. Recognition of arrears and debts on penalties and fines as hopeless for collection and their write-off (current version)

What is arrears?

By arrears , the legislation of the Russian Federation understands the amount of an established tax or fee that is not paid to the Federal Tax Service or another competent government body by a citizen or organization obligated to pay them on time. That is, within the period established by the provisions of regulatory legal acts. Amounts of insurance contributions to state funds - Pension Fund, Social Insurance Fund, Federal Compulsory Medical Insurance Fund - are also recognized as arrears.

Arrears is also the amount of tax, fee or contribution that is underpaid or accrued in excess of what a citizen or organization paid, for example, as a result of an audit or by a court decision.

Thus, arrears are a debt to a government organization. As a rule, upon detection by the regulatory authority, the payer undertakes to repay it. In cases provided for by the legislation of the Russian Federation, a penalty is charged for the arrears.

On the issue of calculating the period for collecting arrears (Definition of the Constitutional Court of the Russian Federation dated July 18, 2019 No. 2165-O)

REPORT AT THE CONFERENCE “TAX LAW IN DECISIONS OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION”

Olga Igorevna Lyutova

Senior Researcher at the Institute of State and Municipal Administration of the National Research University Higher School of Economics, Candidate of Legal Sciences

The problem of calculating the deadline for tax collection is fundamentally important both from the point of view of both ensuring the budgetary interests of the state and from the position of the taxpayer, who is interested in the unambiguous legal regulation of his status by tax legislation. Indeed, the resolution of procedural issues of tax collection, including those related to the calculation of deadlines for determining the legality of certain actions of subjects of tax legal relations, can significantly vary the amount of collection.

Currently, the specifics of calculating the period for tax collection have been updated due to the emergence in the practice of tax law enforcement of a situation of ambiguous interpretation of the provisions of paragraph 1 of Article 70 of the Tax Code of the Russian Federation. As is known, in accordance with this norm, the period for the tax authority to send a tax payment request to the taxpayer is calculated (as a general rule) from the day the arrears are identified. The essence of the case in this case lies in the different interpretation by the parties of the tax legal relationship of the moment the arrears were identified, as a result of which they proposed to associate this day, on the one hand, with the dates of the tax audit, and on the other, with the day the taxpayer provided the 2-NDFL certificate. At the same time, the Constitutional Court of the Russian Federation, in its Ruling dated July 18, 2019 No. 2165-O[1], concluded that there was no violation of constitutional rights and freedoms by the provisions of paragraph 1 of Article 70 of the Tax Code of the Russian Federation and the unambiguity of the content of this norm. It must be assumed that such a decision allows us to judge that, in the opinion of the Constitutional Court of the Russian Federation, the provisions of paragraph 1 of Article 70 of the Tax Code of the Russian Federation are quite logical and do not cause contradictions in interpretation. From the point of view of its motivation, the Determination of the Constitutional Court of the Russian Federation of July 18, 2019 No. 2165-O is characterized by laconicism of thought, as well as the general nature of the phrases, which does not allow one to evaluate the logic of the judgment when making a “refusal” decision. In our opinion, in the Determination of July 18, 2019 No. 2165-O, the Constitutional Court of the Russian Federation was unconvincing in its judgments and they require, at a minimum, additional motivation.

As is known, in the official judicial interpretation of the provisions of the Tax Code of the Russian Federation, contained in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57, the day of discovery of the arrears by the Court is prescribed to be understood as the next day after the due date for payment of the tax (advance payment), and in the case of provision tax return (calculation of advance payment) in violation of the established deadlines - the next day after its submission[2]. However, even such an official interpretation did not become a universal panacea for all real difficulties. As experts rightly note, an analysis of the judicial practice that has emerged since the publication of this clarification shows that in many court decisions the issue of timely identification of debt by the inspection is not examined at all, and the collection deadlines are counted from the moment the inspection actually issues a demand for tax payment, without taking into account existing violations of deadlines identifying debt[3]. In this case, there is an unlawful increase in the period for collecting the tax and the actual delay of the procedure.

It can be noted that in modern Russian legislation there are not many norms that do not require explanation from the law enforcement officer. As noted by A.V. Demin, “any attempt to formulate ideally flawless acts of tax legislation that would not require creative interpretations on the part of the addressees of tax regulations is initially doomed to failure”[4]. However, the definition of the concepts of tax legislation is something that, along with the principles of law, is the fundamental basis of legal regulation and, because of this, requires a greater degree of certainty, which, according to V.M. Zaripova, “helps prevent unintentional violations of the law, especially when legislation changes”[5].

In this regard, we believe that the current situation requires assessment not only with the help of empirical tools (for example, in the form of a generalization of judicial and other law enforcement practice), but also through the tools of the theory of tax law. First of all, it is worth noting that the wording of paragraph 1 of Article 70 of the Tax Code of the Russian Federation is, in our opinion, vague for the following reasons.

Firstly, neither in paragraph 1 of Article 70 of the Tax Code of the Russian Federation, nor in other articles of the Tax Code of the Russian Federation or other regulatory legal acts of tax legislation, the content of the concepts “detection of arrears” and/or “day of identification of arrears” is disclosed, despite the fact that it objectively requires explanations, at least in terms of clarifying the entity that has the right to carry out such identification.

In fact, this means that the interpreted provision of Part 1 of Article 70 of the Tax Code of the Russian Federation does not allow taxpayers to unambiguously determine the consequences of their actions in the field of taxation on the basis of a law not accompanied by judicial practice, which indicates the presence of legal uncertainty regarding the issue of determining the procedure for calculating the deadline for filing a claim. Also, this situation indicates the absence of the possibility of direct action of the tax law, which is very atypical for the German legal system, which in legal theory traditionally includes the Russian legal system. It seems that the actual replacement of a legislative provision with judicial interpretation in our country in exceptional situations may have a right to exist, but it must have very significant reasons. For example, K.A. Ponomareva [6], and calls such dynamics the root cause of the emergence of gaps and conflicts in tax law. As for Part 1 of Article 70 of the Tax Code of the Russian Federation, this norm is applied in the same wording as now, since the adoption of Part 1 of the Tax Code of the Russian Federation and has not been subject to changes by the legislator in its content in relation to the application of the concept “day of discovery of arrears”. Therefore, to justify the vagueness of the wording of paragraph 1 of Article 70 of the Tax Code of the Russian Federation, one cannot refer to the legislator’s activity in changing the content of the norm as a factor explaining the ambiguity of this provision.

Secondly, in the legal regulation of tax legislation there is no legal relationship to identify tax arrears. This conclusion, in our opinion, logically follows from the current wording of Article 2 of the Tax Code of the Russian Federation, which currently actually determines the subject of tax law (the subject and scope of legal regulation of the tax legislation of the Russian Federation). When assessing this argument, one must keep in mind the opinion of D.V. Tyutin, according to which the list of types of relations regulated by Article 2 of the Tax Code of the Russian Federation is not exhaustive[7]. Thus, legal relations related to the identification of arrears are not established by Article 2 of the Tax Code of the Russian Federation as an independent type of tax relations. It is worth assuming that they develop within the framework of either tax payment relations (in the case of “linking” the identification of arrears to the day following the day of tax payment) or during the implementation of tax control (subject to the identification of arrears during a tax audit). In our opinion, this circumstance additionally allows us to evaluate the use of the concept of “identification of arrears” as unnecessary, unjustifiably complicating the collection procedure and not allowing an unambiguous assessment of the calculation of the relevant deadlines.

Thus, the issue of unambiguously determining the timing of sending a demand for tax payment from the point of view of an unambiguous and consistent establishment of the day from which it should be calculated requires a solution precisely at the level of legal regulation by tax legislation, and not judicial or other law enforcement practice, as well as legal doctrine.

[1] Ruling of the Constitutional Court of the Russian Federation dated July 18, 2019 No. 2165-O “On the refusal to accept for consideration the complaint of the closed joint-stock company “Trest SevZapSpetsStroyMontazh” for violation of constitutional rights and freedoms by the provisions of paragraph 3 of Article 46, paragraph 4 of Article 69, paragraphs 1 , and 4 of Article 70 of the Tax Code of the Russian Federation, as well as paragraph 2 of part 1 of Article 287 of the Arbitration Procedure Code of the Russian Federation” // The document was not published. Access mode: SPS “ConsultantPlus”, 04/09/2020.

[2] Para. 3 p. 50 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” // The document was not published. Access mode: SPS “ConsultantPlus”, 04/09/2020.

[3] Elkina N.V. Statute of limitations and deadlines for collecting tax debt // Taxes. 2021. No. 6. P. 38 - 41.

[4] Demin A.V. Official explanations of fiscal authorities in the context of certainty of taxation // Bulletin of Tomsk State University. Right. 2021. No. 31. P. 64.

[5] Zaripov V.M. Challenging official clarifications: new opportunities // Tax expert. 2015. No. 5. P. 21.

[6] Ponomareva K.A. Judicial acts and acts of “soft law” in the system of sources of tax law // Taxes. 2021. No. 6. P. 12 - 15.

[7] Tyutin D.V. Tax law: course of lectures // Access mode: SPS “ConsultantPlus”, 04/09/2020.

What is debt?

Debt means :

• the amount of tax, fee or contribution that a person or company is obliged to pay to the state has not yet paid it, but, in principle, manages to do it on time;
• the amount of money that a citizen or organization must pay to another person or company in accordance with the law or the terms of a private agreement (in this case, the debt is called accounts payable);
• the amount of money that a person or organization expects to receive from another person or company in accordance with the law or the terms of a private agreement (this, in turn, is a receivable).

Thus, debt is the amount of a tax, fee or contribution before the delay and their transformation into arrears or any other funds that must be paid by the obligated party in favor of the entitled party.

The debt may be current or past due. In the first case, it is formed by virtue of a law, contract or legally significant actions of the subjects of legal relations - for example, when one party provided services or supplied goods to the other. Overdue debt appears when the party that is obliged to pay (for example, for services rendered) does not do so on time. In this case, the debt may be increased, if provided by law or contract, by the amount of the penalty.

If there is no money

If it is not possible to collect the debt at the expense of the debtor’s funds (there are none or not enough to pay off the debt), then the inspectorate, no later than 1 year after the end of the deadline for fulfilling the requirement to pay the debt, makes a decision on its collection at the expense of the taxpayer’s property (clause 7, article 46 , clause 1 of article 47 of the Tax Code of the Russian Federation). Collection of arrears, penalties and other tax debts at the expense of property is carried out in the manner prescribed by Article 47 of the Tax Code of the Russian Federation. The inspectorate issues a special resolution in the form approved by order of the Federal Tax Service of Russia on February 13, 2021 No. ММВ-7-8/ [email protected] and transmits it to the bailiff service.

The decision to collect arrears and fines from the company’s property can be made within a year after the deadline for fulfilling the requirement for their payment. Otherwise, the decision is invalid (clause 1 of Article 47 of the Tax Code of the Russian Federation).

And one more thing you need to remember is this. Despite the fact that the statute of limitations for tax offenses is three years, this is not a basis for writing off tax debt, and does not mean that the inspectorate cannot collect it.

Comparison

The main difference between arrears and debt is that the first term has a much narrower range of application and denotes only the amount of tax, fee or contribution that a citizen or organization owes to the state represented by individual bodies or funds. In addition, arrears most often indicate a unilateral obligation - to the state.

Debt is a much broader concept. It can mean, in principle, any amount of money that one individual, organization or government entity owes to other entities. Or, on the contrary, they expect to receive from them. Debt is a tax, fee or contribution that has not turned into arrears, but which a citizen or company still manages to pay on time.

The term "debt" is often used to refer to an amount that must be paid by a government agency (usually the one that collects taxes, fees, or assessments) to those individuals who typically pay the payments themselves. So, if a company overpaid taxes, then it receives the right to return them from the budget - and in this case, the Federal Tax Service forms a debt to it.

There are two types of debt: current and overdue. In the first case, it is not accompanied by the accrual of penalties. In the second, the obligated party may also be forced to pay a penalty.

Having determined what the difference is between arrears and debt, we will reflect the conclusions in the table.

Check for legality

Despite all the clarity and apparent simplicity, the requirement may turn out to be invalid and subject to cancellation.
However, the Tax Code of the Russian Federation does not contain a list of grounds for this. They are formed by judicial practice. True, the courts often develop two opposite approaches to the same “flaw” in the requirement, as a result of which it is difficult for the taxpayer to independently determine how legal the document he received is. Let's consider a number of situations when a demand is considered invalid and must be cancelled, and we'll figure out what to do when we receive it.

Table

How to fulfill the requirement

The minimum period within which a taxpayer must pay off the tax arrears based on the inspection requirement is 8 working days from the date of receipt of the document (Clause 6, Article 6.1, Paragraph 4, Clause 4, Article 69 of the Tax Code of the Russian Federation). If he does not comply with the requirement, then:

• no later than 2 months after the end of the deadline for fulfilling the requirement, the inspectorate makes a decision to collect the debt from the debtor’s accounts opened in banking and credit institutions (clause 3 of Article 46 of the Tax Code of the Russian Federation);
• after 2, but no later than 6 months after the end of the deadline for fulfilling the demand for payment of arrears, penalties, fines, etc., the inspection has the right to submit an application to the arbitration court in order to recover the necessary amount of debt from the taxpayer. If the inspectorate, for good reason, missed the deadline for filing this application, the court may reinstate it (paragraph 1, paragraph 3, subparagraph 5, paragraph 11, article 46 of the Tax Code of the Russian Federation, article 117 of the Arbitration Procedure Code of the Russian Federation).

Four ways to argue about penalties

In practice, there are not always grounds for recognizing the requirement to pay tax as illegal and subject to complete cancellation.
But there is often reason to argue about the amount of penalties. Let us give a brief analysis of these grounds. Thus, arbitration courts recognize a claim as illegal if it does not indicate (or is incorrectly indicated):

1) the amount of arrears on which penalties are accrued (resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5, FAS Moscow District dated February 7, 2013 No. A41-2782/12, etc.);

2) the period of occurrence of the arrears (the deadline for paying the tax), for which penalties are accrued (resolutions of the Federal Antimonopoly Service of the Volga District dated January 29, 2013 No. A65-15962/2012, FAS Moscow District dated August 9, 2012 No. A41-14380/11, etc.);

3) the period for accrual of penalties (resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5, FAS Far Eastern District dated July 11, 2012 No. F03-2590/2012, FAS Moscow District dated September 13, 2012 No. A40-134248/11-140-542, etc. .);

4) the refinancing rate applied when calculating penalties (FAS of the West Siberian District dated November 13, 2012 No. A03-13705/2011, FAS Moscow District dated March 29, 2011 No. KA-A40/1941-11, etc.).

True story

We have indicated
the basic legislative rules that were in force during the period of the controversial situation considered within the framework of the Resolution of the Arbitration Court of the Moscow Region of October 31, 2014 No. F05-12000/14 in case No. A40-28598/13 Let's look at this dispute next. But first, let us note that the tax norms, neither earlier nor now, do not clarify whether the tax authority should apply to the court with a demand for collection of tax debts from an interdependent person only if there is a judicial act that has entered into force establishing the fact of interdependence of organizations. In practice, inspectors go to court simultaneously with demands to recognize persons as interdependent and to collect tax debts from the interdependent person. The inspectors acted similarly in the resolution being analyzed.

The circumstances of the dispute considered are as follows.

After an on-site tax audit ( the period of the audit was from 06/10/2011 to 06/07/2012, and not the period under audit), tax inspectors presented claims to the company for 330 million rubles. (arrears, fines and penalties), of which the amount of arrears for VAT amounted to more than 231 million rubles. However, the controllers were unable to collect this debt, since the closed joint-stock company at that time had actually transferred all of its financial and economic activities to the LLC (note, with the same name).

The LLC was created during the period of inspection of the JSC (04/25/2012).

Both companies - CJSC and LLC are registered at the same address, their contact numbers, information sites, and types of activities are the same.

Assets, trademark rights and all employees (159 people) were transferred from the CJSC to the LLC.

Clients also moved from one company to another. At the same time, contracts between the CJSC and buyers for the supply of water were terminated and new ones were concluded on the same day (also for the supply of water), but with the LLC. In addition, agreements were concluded for the assignment of rights to claim accounts payable for products previously shipped to the CJSC’s customers.

An essential point to which attention should be paid: from the registration documents it follows that neither the LLC had participation in the CJSC, nor the CJSC was the founder of the LLC.

In other words, on formal grounds, LLC and CJSC were not interdependent entities for the purposes of applying Art. 45 of the Tax Code of the Russian Federation (the LLC was not a dominant (participating) or dependent company in relation to the CJSC). In this case, the provisions of paragraphs. 2 p. 2 art. 45 of the Tax Code of the Russian Federation (as amended) did not provide for the possibility of the court recognizing persons as otherwise dependent.

Federal taxes

As a general rule, federal taxes and fees include (Article 13 of the Tax Code of the Russian Federation):

• VAT;
• excise taxes;
• personal income tax;
• corporate income tax;
• MET;
• water tax;
• fees for the use of objects of the animal world and for the use of objects of aquatic biological resources;
• National tax.

In the commented letter, the Russian Ministry of Finance spoke about offsetting the overpayment of income tax against the arrears of personal income tax.

Five “unreal” punctures

When receiving a request to pay taxes or penalties, it is necessary to determine whether the payer actually has an obligation to pay them.
For the first time, this basis for the cancellation of this document was noted in paragraph 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 11, 2004 No. 79. And although these clarifications relate to the application of legislation on compulsory pension insurance, arbitration courts are guided by the same approach when resolving tax disputes. Thus, the courts may recognize the requirement as inconsistent with the actual obligation of the taxpayer in cases where:

1) the decision based on the results of a tax audit regarding the tax (penalties, fines) for the amount of which the claim was made was canceled or changed (Resolution of the Federal Antimonopoly Service of the Moscow District dated January 23, 2013 No. A40-12057/12-90-57, etc.);

2) the operative part of the tax audit decision does not contain the amount of debt, which is reflected in the demand for payment of taxes (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 28, 2012 No. A31-5137/2011, Federal Antimonopoly Service of the West Siberian District dated December 21, 2012 No. A27- 13595/2011);

3) the tax authority was unable to justify the amount of arrears identified outside the framework of the tax audit (resolution of the FAS of the Volga District dated August 28, 2012 No. A55-22748/2011, FAS of the Central District dated December 20, 2010 No. A35-2653/2010);

4) the debt specified in the demand was previously repaid by the inspection by carrying out an offset, including on the day this document was issued (clause 5 of Article 78 of the Tax Code of the Russian Federation, resolution of the Federal Antimonopoly Service of the East Siberian District dated December 7, 2012 No. A19-7442/ 2012);

5) the calculation of penalties presented by the inspection does not correspond to the amount of penalties and the amount of arrears specified in the request, and the tax authority could not explain such a discrepancy (Resolution of the Federal Antimonopoly Service of the East Siberian District dated 04/07/2011 No. A58-5241/2010).

If the demand received by the taxpayer falls under at least one of the specified cases, then he must apply to the arbitration court with an application to declare the document illegal and to cancel it.

Please note: in these cases, tax officials had to prove in court not only the legality of the demand, but also the very fact of the existence of arrears. At the same time, the Tax Code of the Russian Federation does not answer the question of what documents this can be confirmed. Based on the analysis of judicial practice, the presence of arrears can be confirmed by a reconciliation act on the taxpayer’s personal account (clause 22 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 25).

At the same time, inspectors often present the taxpayer’s personal account card to the court to justify tax arrears. However, in the overwhelming majority of cases, the courts do not recognize this data as sufficient evidence of arrears (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 18, 2003 No. 8156/02, FAS Moscow District dated January 15, 2013 No. A40-57014/12-20-316, etc.).