Article 126 of the Tax Code of the Russian Federation. Failure to provide the tax authority with information necessary for tax control (current version)

Some time ago, the rules for submitting documents at the request of tax inspectors were adjusted, and in June, the format of the notification about the impossibility of submitting them was adjusted. In addition, the latest reports from the Ministry of Finance, the Federal Tax Service and examples of judicial practice reveal new nuances of satisfying the professional curiosity of the Federal Tax Service. Read our material about which tax office the request may come from, where to submit documents if the audit is not carried out within the inspectorate, and what documents the fiscal authorities have the right to request.

The inspectorate must be informed of the impossibility of submitting the requested documents using a new form.

As of 06/09/2019, the Tax Service updated the form for notification of the impossibility of submitting documents within the prescribed period (paper form plus electronic format).

Changing the form was required due to the norm introduced by Law No. 302-FZ of August 3, 2018, which allows you not to send documents to the Federal Tax Service again.

The company is obliged to notify the Federal Tax Service about the impossibility of fulfilling the requirements of the inspectors no later than:

• one day if the materials relate to the work of the organization itself;
• five days if controllers need information about counterparties.

The form contains three blocks for individual cases of filling out:

• the first - to indicate the specific reason for extending the period;
• the second – in case of loss of documents or their transfer to an audit organization;
• third - if the requested documents have already been submitted to the Federal Tax Service earlier.

Order of the Federal Tax Service of the Russian Federation dated April 24, 2019 No. ММВ-7-2/ [email protected] “On approval of the form and format for submitting a notification about the impossibility of submitting documents (information) in electronic form within the established time frame”

Editor's note:

Submission of this notice does not guarantee an extension of the deadline for filing documentation.

However, if the inspectors refuse and a fine is imposed, the fact of sending it will help reduce or even cancel the sanctions.

Forms of guilt

The legislator does not make liability dependent on the form of guilt. The latter is possible both in the form of intent and negligence.

The refusal to provide data when requested clearly demonstrates intent. If we are talking about failure to fulfill or missing the deadline for fulfilling a requirement, then guilt can include both forms.

Despite the fact that the penalty is the same for all cases, a careless violation can act as a mitigating circumstance and reduce the amount of the penalty.

Rules for submitting documents have been updated

Tax officials have updated the forms of documents used in control activities, including the request form for the submission of explanations and documents.

In addition, the requirements for documents submitted to the tax authority on paper have been adjusted. The entire volume of papers for inspectors must be divided into parts of no more than 150 sheets each. Each such volume is separately bound, numbered and certified by the personal signature of the person confirming the authenticity of the papers. According to the new rules, a company seal is not needed to certify them. Documents of more than 150 pages are not divided into parts.

The collected package must be accompanied by a covering letter indicating the details of the inspectors' request or another basis for submitting papers. The letter must contain a list of all documents, or this information must be included as an attachment to it.

Editor's note:

If documents are submitted electronically through TKS or a personal account, a list of data submitted to the inspection is generated automatically. In addition, based on the text of the regulations, a cover letter must be drawn up only when sending papers at the request of the Federal Tax Service.

Their voluntary submission does not fall under the new requirement.

Conditions for bringing to responsibility

The tax authority must comply with formal grounds when requesting documentation. We are talking about drawing up a request using a special form. Documents in it must be indicated positionally, with name and quantity. This rule follows from the nature of liability, which depends on the number of unrepresented sources of information.

In turn, the addressee of the request must have these papers in hand and have a real opportunity to present them at the request of the tax authorities.

A prerequisite for the application of Art. 126 of the Tax Code is a missed deadline for transferring documentation.

It must be included in the request. If we are talking about a refusal to respond to a request, then it must be made in writing, otherwise the case will lack basic evidence.

Another condition is the mandatory relevance of the requested data to issues related to the procedure for calculating and making mandatory payments to the budget.

A request with other content is illegal.

When inspectors have the right to demand documents, and what are the consequences of disobedience?

The tax authority has the right to require documents:

• necessary in connection with a desk or field audit of the taxpayer (clause 1 of Article 93 of the Tax Code of the Russian Federation);
• relating to the activities of the inspected counterparty (clause 1 of Article 93.1 of the Tax Code of the Russian Federation);
• regarding a specific transaction outside the framework of tax audits (clause 2 of Article 93.1 of the Tax Code of the Russian Federation).

Responsibility for refusal to submit requested documents in relation to one’s own activities or their failure to submit them within the established time frame is provided for in Art. 126 of the Tax Code of the Russian Federation. The penalty is a fine of 200 rubles for each document not submitted.

Other persons for failure to submit documents about the taxpayer, refusal to submit documents they have, or submission of documents with knowingly false information may be held liable under clause 2 of Art. 126 of the Tax Code of the Russian Federation. The amount of the fine for organizations and individual entrepreneurs is 10 thousand rubles.

For unlawful failure to report or untimely communication of the requested information (not documents), liability arises in accordance with Art. 129.1 Tax Code of the Russian Federation. For the first offense, this entails a fine of 5 thousand rubles. A repeated act within a calendar year is punishable by a fine in the amount of 20 thousand rubles.

The Code of Administrative Offenses of the Russian Federation also provides for sanctions for taxpayer officials who fail to provide inspectors or distort documents and information necessary for tax control. Punishment in the form of a fine is imposed in accordance with paragraph 1 of Art. 15.6 of the code and can range from 300 to 500 rubles.

In addition, if the taxpayer does not submit the documents requested during the tax audit on time, the inspectorate may seize them (Clause 4 of Article 93 of the Tax Code of the Russian Federation).

Moreover, fiscal officials have the right not to pay attention even to the refusal of the person being inspected to open premises or other places where documents and objects subject to seizure may be located. The inspector can do this independently, trying not to unnecessarily damage locks, doors and other objects (Clause 4 of Article 94 of the Tax Code of the Russian Federation).

Another possible consequence of failure to comply with the inspectors’ demands is that the tax authority can determine the amounts payable to the budget by calculation based on the information it has about the enterprise, as well as data on other similar taxpayers (clause 7, clause 1, article 31 of the Tax Code of the Russian Federation). In this case, the tax will be calculated approximately, and arguments about the unreliability of the calculation will not be accepted (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 22, 2010 No. 5/10). The dispute over the legality of the decision of the Federal Tax Service, according to which the inspectors assessed an additional 21 million rubles in VAT to the company, ended in favor of the inspectors (Resolution of the Arbitration Court of the North Caucasus District dated March 13, 2019 No. F08-12102/2018).

The judges indicated that the company, without any objective reasons, did not submit primary documents at the request of the inspectorate, deliberately opposing tax control. Under such circumstances, the company’s subsequent attempt to present a refutation of additional accruals in court is an abuse of right and cannot lead to the cancellation of the decision of the Federal Tax Service made based on the results of the audit.

What is an on-site tax audit?

The main goal of commercial structures is to make a profit. At the same time, replenishing the state budget in the form of paying taxes and other payments based on the results of activities is the responsibility of companies and entrepreneurs. Evasion of current rules, including concealment of profits, understatement of the tax base, and the use of unreasonable expenses is fraught with administrative, and in some cases, criminal liability.

In order to monitor the completeness of tax payment, the Federal Tax Service periodically conducts audits of payers. Analysis of companies' activities can be carried out as part of desk or on-site tax audits. Desk is carried out on the basis of data provided by the business entity, for example, when submitting a tax return. If inconsistencies are identified or other questions arise, inspectors have the right to request additional clarification.

An on-site tax audit, unlike a desk audit, covers all areas of accounting for an organization or entrepreneur.

The completeness and timeliness of payment of budget payments by an economic entity, which it is obliged to accrue in accordance with current legislation, is analyzed.

From the point of view of the tax inspectorate, an on-site audit is a rather labor-intensive undertaking. It is almost impossible to monitor the work of all existing commercial structures. Visits to organizations and individual entrepreneurs are carried out selectively based on a pre-drawn up inspection plan or when motivating factors are detected. When forming a plan, the financial condition of the audited objects is analyzed and the following circumstances are taken into account:

• low level of accrued taxes in relation to the payer’s cash turnover;
• the presence of losses over several years;
• excess of expenses over income;
• low level of profitability;
• the average salary does not correspond to the industry average;
• misuse of tax deductions.

It is impossible to know in advance about the upcoming visit of tax inspectors. The inspection plan is closed. However, some factors may indirectly indicate that an organization or individual entrepreneur has come under the close attention of the tax authorities. Checking is possible if the following events occur:

1. The Federal Tax Service has asked banks for an extended statement of receipts and expenses over the past few years.
2. A counter check of one or more counterparties is carried out. Buyers or suppliers are asked to provide information about their relationship with the company being audited.

All of these signs should be considered only as indirect, the presence of which does not allow us to say with absolute certainty about the upcoming visits of tax officials. At the same time, the level of risk increases significantly. Therefore, it would not be superfluous for management to take additional measures to successfully pass the audit, including checking primary documents, analyzing the reasonableness of expenses, and others.

Deadlines for submitting documents to the Federal Tax Service

TABLE: “Time limits for submitting documents to the Federal Tax Service”

Introductory information

There are quite a lot of examples of illegal and unreasonable demands that tax authorities make on taxpayers.
This includes the request for additional documents during desk audits, the issuance of incorrectly completed demands for the payment of taxes or penalties, and various requests for the provision of this or that information. All this can be illustrated, in particular, by topics widely discussed on the Online Accounting forum: an order issued to an organization to check the legalization of wages; the requirement to prepare analytical materials on VAT and income tax for inspection; requirement to bring a flash drive or disk with files. So how to respond correctly (and as harmlessly as possible to the organization) to such requirements*? An analysis of the legislation allows us to conclude that there are three possible options for countering the illegal requirements of the Federal Tax Service. This is a simple failure to comply with an illegal requirement, failure to comply with a requirement with prior notification to the inspectorate and an appeal against an illegal requirement. Let's look at the pros and cons of each option.

How to submit electronic sick leave certificates to inspectors

The Federal Tax Service explained how to prove to inspectors that payments to employees are made within the framework of compulsory social insurance and therefore are not subject to insurance contributions.

As part of a desk audit of the DAM, the tax office has the right to request documents from the company? grounds for accrual or non-accrual of contributions for the amounts reflected in the report.

If the Federal Tax Service Inspectorate requires you to submit certificates of incapacity for work, officials recommend printing out a paper copy of the electronic sick leave, downloaded from the Social Insurance Fund register. The document must reflect the data that the employer used to determine the amount of insurance benefits. Calculations of the corresponding payments must also be attached to it.

The tax papers submitted must be certified by the organization, stitched and numbered properly. If they are requested again, it is enough to promptly inform the inspectors of the details of the document to which the confirmations were attached and with which they were sent to the Federal Tax Service.

Letter of the Federal Tax Service of the Russian Federation dated July 10, 2019 No. BS-4-11/ [email protected]

How to certify copies to confirm expenses

The Ministry of Finance considered an appeal on the procedure for certifying copies of documents confirming expenses for simplified taxation system activities.

There is a list of criteria that, if met, will allow these expenses to be recognized when calculating tax. They must be justified and documented. Justification means the economic feasibility of costs. Documentary confirmation is the compliance of the document’s execution with legally established rules.

In this case we are talking about certification of the copy. According to paragraph 5.26 of GOST R 7.0.97-2016, approved by Order of Rosstandart dated December 8, 2016 No. 2004-st, a copy will be provided with legal validity if the following details are present:

• the words "True";
• "Job title";
• "Signature";
• "FULL NAME.";
• "Date of".

If the copy is intended for transfer to another company, it must be supplemented with information about the place of storage of the original: “The original document is located in (name of organization) in file No. ... for ... year” - and certified with the seal of the organization.

To simplify the procedure for certifying a copy, a stamp may be used.

Letter of the Ministry of Finance of the Russian Federation dated April 22, 2019 No. 03-11-11/28986

Which persons may be subject to liability?

The list of possible violators is very wide. Liability may arise in relation to any individual whose age is 16 years or older. Any organization can also be involved, including non-profit structures.

Part 1.1. Art. 126 of the Tax Code limits the range of subjects. Only the controlling person can be held liable. Its status is provided for in Part 3 of Art. 25.13 NK. It can be owned by both an organization and an individual. These standards suggest the following attribution options:

• ownership of a share in a foreign company that is at least ¼;
• if ownership is carried out by a citizen, along with a spouse and minor children. Moreover, their total share is more than half, and the share owned by this individual exceeds 10 percent;
• the tax authority may recognize as such the person who actually exercises control over the company. At the same time, his actions must be aimed at realizing his own or family interests (spouse and minor children).

Another special subject is the tax agent. His responsibility is provided for in Part 1.2. Art. 126 NK.

Part 2 of this article establishes punishment for all persons who have not provided the necessary information about the counterparty. We are talking about cases when data on certain transactions is checked. Liability is provided for legal entities, individual entrepreneurs, as well as individuals who do not have the specified status.

The Ministry of Finance suggested how to save on the translation of foreign “primary documents”

The Ministry of Finance reminds that in order to reflect a company’s expenses in accounting for income tax, the amounts of appropriate expenses must be confirmed by documents drawn up in accordance with Russian legislation, and if the calculation was made abroad, with foreign business turnover.

Official paperwork in our country is conducted in Russian, so the “primary report” compiled in another language needs translation, the ministry notes.

If the standard form of foreign documents is found more often than others in accounting, officials consider it sufficient to contact a translator once to decipher its constant indicators. In the future, it will be possible to translate the updated form data, if necessary.

For reference, it is reported that the Tax Code of the Russian Federation does not establish a procedure for the transfer of foreign “primary documents”.

Letter of the Ministry of Finance of the Russian Federation dated April 29, 2019 No. 03-03-06/1/31506

Editor's note:

There is an opinion that foreign documents do not need translation for submission to inspectors. Thus, the Arbitration Court of the North-Western District, in Resolution No. F07-7835/2019 dated 07/08/2019, recognized the claims of inspectors to documents drawn up by various Norwegian suppliers as unfounded. The judges indicated that in terms of their design, content and details, all the disputed invoices coincided with each other, which allows us to conclude that they comply with business customs used in Norway. It helped to cancel the inspector's decision and the lack of references in it to norms of foreign law, which the disputed documents did not comply with. The arbitrators also ignored the argument about the lack of translation of invoices.

The requirement can come from any inspection where the company is registered

According to the norms of the Tax Code of the Russian Federation, in order to request documents related to the activities of the taxpayer, the tax authority sends a corresponding order to the inspectorate at the place of registration of the enterprise.

At the same time, officials pay attention to clause 1 of Art. 83 of the Tax Code of the Russian Federation, which states that for the purposes of tax control, registration of taxpayers is carried out:

• at the location of the organization;
• at the location of its separate divisions;
• at the location of the real estate and transport owned by it;
• on other grounds provided for by the code.

Thus, a taxpayer may be required to submit documents from any of the inspectorates where he is registered.

Letter of the Ministry of Finance of the Russian Federation dated 08/06/2019 No. 03-02-08/59105

Editor's note:

Please note that documents at the request of the Federal Tax Service should be sent to the address of the inspection that requested them. This rule applies even if inspectors are conducting an inspection on the company’s premises at the same time and have the originals of the requested documents at their disposal. Thus, a company from Chelyabinsk failed to challenge a fine of 17 thousand rubles for failure to fulfill the duty imposed by the fiscal authorities. Having received a request for documents under the TKS, the taxpayer responded to it in the same way, informing the Federal Tax Service about the presentation of the originals to its representatives located on the territory of the enterprise.

The court stated that the documents were not submitted to the Federal Tax Service within the prescribed period and left the fine in force (Resolution of the Arbitration Court of the Ural District dated January 29, 2019 No. F09-9273/18).

Reply with a written refusal

The next option involves not simply not fulfilling an illegal demand, but sending an official paper to the inspectorate, which sets out the organization’s opinion about the illegality of the demands made. Such a paper, naturally, does not exclude the possibility of imposing a fine on the organization (and this is confirmed by judicial practice - see, for example, the resolution of the FAS of the Volga-Vyatka District dated 04/05/11 in case No. A43-10932/2010, the resolution of the FAS of the Ural District dated 13.09. 11 No. Ф09-5722/11). However, submitting at least some document to the inspectorate on time already means that the organization not only ignored the requirements of the tax authorities, but has some legal grounds for this. It is quite possible that upon receiving such a response, inspectors will reconsider their requirements. Such precedents are quite common in practice. This is most likely due to the fact that a well-drafted written objection to the illegal actions of the inspectorate clearly makes it clear to the inspector that the organization will not hesitate to go to court.

Thus, sending a written message to the inspectorate may well contribute to a peaceful resolution of the situation. However, even if this does not happen, the organization, firstly, turns out to be prepared for the upcoming trial, because the arguments have already been formulated in writing. And secondly, the fine imposed by the Federal Tax Service will not be unexpected - in the process of discussing the legality of the claim with the tax authorities, the organization will certainly find out whether the inspectorate has abandoned its demands, or whether a fine is inevitable.

When checking the declaration, inspectors have the right to request any documents

The company failed to challenge the fine for failure to provide a balance sheet. The organization submitted to the inspectorate an updated VAT tax return with the amount of tax to be reimbursed from the budget in the amount of 2 million rubles. The right to VAT tax deductions is declared on invoices. However, the inspectors doubted the reality of the transactions and, as confirmation of them, requested from the taxpayer balance sheets for all accounts.

The organization left the request for copies of documents unfulfilled. In addition, she did not even inform the inspectorate about the absence or impossibility of providing them. At the same time, the list of documents that tax authorities may require for the legality of providing VAT deductions is not exhaustive.

Therefore, when checking a declaration, the Federal Tax Service has the right to require any documents confirming the legality of applying tax deductions.

The court rejected the taxpayer's argument that the fine was calculated illegally.

Resolution of the Arbitration Court of the Ural District dated July 24, 2019 No. A60-53363/2018

Editor's note:

Let us note that the courts also take the opposite position regarding “turnovers”. The arbitrators recognize that it is unlawful to hold people accountable for failure to submit documents that are provided for not by tax law, but by accounting legislation (resolutions of the Arbitration Court of the West Siberian District dated July 27, 2018 No. F04-3054/2018, dated December 29, 2014 No. A27-1435/2014).

In general, there is a tendency towards an increase in the appetites of inspectors. Thus, with the recent Decision of the Federal Tax Service of the Russian Federation dated June 19, 2019 No. SA-4-9 / [email protected] , officials confirmed that their subordinates have the right to independently determine the completeness and completeness of the “primary”, accounting registers and analytics necessary for them to exercise control. This decision was made based on the results of consideration of the taxpayer’s complaint regarding the request for copies of the staffing table and Orders on the appointment of the manager and chief accountant as part of an on-site audit of the correctness of VAT calculations.

When you cannot be fined for failure to provide documents upon request

The powers of tax officials to request documents during an on-site or desk audit are not unlimited. During a desk check, they are quite strictly limited by Art. 88 Tax Code of the Russian Federation. And even during an on-site inspection, you can only request documents related to the tax and period being audited . Hence the conclusion: if the tax authority has requested documents that it does not have the right to demand, you have every right not to submit them and you cannot be fined for this (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/08/2008 N 15333/07). For example, you cannot be fined for failure to submit: - invoices requested during a desk audit of a VAT return in which the tax was not claimed for reimbursement (Clause 7, 8 of Article 88 of the Tax Code of the Russian Federation); — invoices issued in 2009, requested during an on-site VAT audit for 2010; - any documents, copies of which have already been submitted to the tax authority during a tax audit starting from 01/01/2010 (Clause 5 of Article 93 of the Tax Code of the Russian Federation; Resolution of the Federal Antimonopoly Service dated 12/14/2010 in case No. A68-3284/10-135/18).

Attention! If you are asked for documents that you already submitted copies of during an audit in 2010 and later, you do not need to submit them again.

Another limitation is that the tax authority does not have the right to request documents from the person being inspected outside the framework of an on-site or desk audit (Clause 1 of Article 93 of the Tax Code of the Russian Federation). After all, there is simply no procedure for requesting documents for such a situation in the Tax Code. For example, on July 20, 2010, you filed a VAT return claiming the right to a tax refund. During a desk audit of this declaration, the inspection has the right to request from you documents confirming the right to deduct VAT on this declaration (Clause 8 of Article 88, paragraph 1 of Article 172 of the Tax Code of the Russian Federation). But if the requirement to submit these documents is made after October 20, 2010 (outside the three-month period allotted for conducting a desk audit (Clause 2 of Article 88 of the Tax Code of the Russian Federation)), you have the right not to respond to it and be fined under Clause 1 of Art. 126 NK is not allowed. This conclusion is confirmed by both the Supreme Arbitration Court of the Russian Federation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2009 N 10349/09) and the Ministry of Finance (Letter of the Russian Ministry of Finance dated November 24, 2008 N 03-02-07/1-471).

Attention! If the tax authority does not have the right to demand any document, then it cannot be fined for failure to submit it.

Also note that in paragraph 1 of Art. 126 of the Tax Code talks about liability only for failure to submit documents provided for by tax legislation. That is, if a document is not mentioned in tax legislation , then you cannot be fined for failure to submit it (Clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 N 106). And the courts, as a rule, come to the conclusion that it is impossible to fine under Art. 126 of the Tax Code for failure to submit documents not provided for by either accounting or tax legislation, as well as documents that you can draw up, but are not required to do. In particular, the courts declared it illegal to hold people liable for failure to provide (Clause 1 of Article 126 of the Tax Code of the Russian Federation): - lists of fixed assets related to different types of activities, lists of rented real estate, calculations of the distribution of income and expenses for different types of activities (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 03/09/2010 N KA-A40/1571-10); — certificates and declarations of conformity of manufactured products with GOST requirements, copies of letters from Rosstat confirming the code according to the All-Russian Classifier of Foreign Economic Activity (Resolution of the Federal Antimonopoly Service of the North-West Zone dated September 24, 2009 in case No. A42-5230/2006); - economic justification for calculating rental payments, detailing conversations from mobile phones and orders to set a limit on expenses for mobile communications, calculations confirming the advisability of refusing to exercise the option and the advisability of acquiring financial instruments of futures transactions (Resolution of the Federal Antimonopoly Service of the Central District of October 27, 2009 in case No. A48- 973/2009); — operator and dispatch sheets (Resolution of the Federal Antimonopoly Service of Ukraine dated February 20, 2008 N F09-11449/07-S2); — copies of issued bills (Resolution of the Federal Antimonopoly Service UO dated December 17, 2009 N F09-10019/09-S3); — staffing schedule (Resolution of the Federal Antimonopoly Service dated April 22, 2008 in case No. A55-11630/07). The next question: is it possible to be fined for failure to submit documents that were not drawn up, although they should have been ? It seems that the answer is obvious. Failure to fulfill the obligation to draw up a document should not exempt from liability for failure to submit it. After all, no one tries to challenge the fine for failure to submit a tax return (Article 119 of the Tax Code of the Russian Federation) simply because they did not have time to prepare it by the deadline. There are also courts that point to the legality of the fine under paragraph 1 of Art. 126 Tax Code in case of failure to submit documents due to the fact that they have not been drawn up (Resolutions of the FAS ZSO dated 01.07.2009 N F04-3216/2009(7623-A03-37); FAS UO dated 24.03.2008 N F09-1746/08-S3 ). True, oddly enough, they are in the minority. And most courts take the position that there can be no fine in such a situation. The logic is simple: since the document was not drawn up, then it could not be submitted within the time limit established by the requirement, for objective reasons. For example, the courts indicated that it is impossible to fine for unwritten and unsubmitted: - certificates in form 2-NDFL (Resolution of the Federal Antimonopoly Service of the Russian Federation dated 04/07/2008 in case No. A29-5357/2007); — books of accounting of income and expenses of organizations and individual entrepreneurs using a simplified taxation system (Resolutions of the Federal Antimonopoly Service of the North-West District dated 02.20.2009 in case No. A42-3046/2008; FAS North-West Region of 08.27.2009 in the case of No. A32-13466/2006-12/295 ); — purchase books and sales books (Resolution of the Federal Antimonopoly Service UO dated 04/09/2009 N F09-1830/09-S3); — orders on accounting policies (Resolution of the Federal Antimonopoly Service dated February 15, 2010 in case No. A35-9027/08-C21). Of course, if the decision to prosecute has already been made, any arguments that allow you to challenge it are good. And taxpayer-friendly practices can and should be used. At the same time, keep in mind: by justifying during an inspection the failure to provide mandatory primary documents and invoices by the fact that they were not drawn up, you can “get” a fine under Art. 120 NK. In addition, it is natural that the courts recognize the fines under paragraph 1 of Art. 126 of the Tax Code, if documents are not presented due to the fact that they: (or) were stolen (Resolutions of the FAS Central District dated October 23, 2008 in case No. A36-686/2008; FAS UO dated July 28, 2008 N F09-1296/08-C3 ); (or) seized by another government agency (in particular, the police) (Resolutions of the FAS PA dated May 22, 2009 in case No. A57-11985/06; FAS SZO dated June 18, 2009 in case No. A21-8111/2008); (or) lost for other reasons (for example, in an accident or natural disaster (Resolutions of the Federal Antimonopoly Service SZO dated 09/03/2010 in case No. A56-47676/2009; FAS VVO dated 06/08/2009 in case No. A17-7256/2008). How do you You see, this is due to the fact that in such circumstances there is no fault of the organization or entrepreneur for failure to provide documents. And without guilt there is no responsibility (Article 106, paragraph 2 of Article 109 of the Tax Code of the Russian Federation). For the same reason, the courts recognize the fine for failure to provide documents as illegal due to the fact that the organization or entrepreneur did not receive the request of the tax authority sent to them by mail (Clause 2 of the motivational part of the Determination of the Constitutional Court of the Russian Federation dated 04/08/2010 N 468-О-О; Resolution of the Federal Antimonopoly Service of the Moscow Region dated 01/11/2009 N KA-A41 /12621-08). Moreover, it is the tax authority that must prove receipt of the request (Clause 6 of Article 108 of the Tax Code of the Russian Federation; Part 5 of Article 200 of the Arbitration Procedure Code of the Russian Federation).

The inspector himself decides which period documents he is interested in

While checking the company’s VAT return for the second quarter of 2021, inspectors asked its counterparty for documents on transactions completed in the first quarter of 2021. The company refused to provide the papers, indicating that the tax authority’s request went beyond the boundaries of the audited period. The organization appealed the request of the Federal Tax Service in court, but to no avail.

Arbitrators of all instances, including the district cassation, confirmed that inspectors themselves decide what events are relevant to the inspection period and are not obliged to explain their position to taxpayers or persons from whom documents and information are requested.

Resolution of the Arbitration Court of the Volga District dated January 16, 2019 No. F06-41326/2018

The presumable end of the “camera chamber” does not exempt you from a fine for failure to provide documents

The inspectors requested documents from the company, citing a desk audit of the counterparty’s VAT declaration. The company was embarrassed that in order to verify the report for the first quarter, the Federal Tax Service Inspectorate needed supporting papers in October, when the general period of the “camera chamber” was supposed to expire in accordance with the norms of the Tax Code of the Russian Federation. The company sent a refusal with explanations to the inspectorate, and in response to the inspectors’ demand, it wrote a complaint to the department of the Federal Tax Service of the Russian Federation, but without achieving success, it went to court.

During the consideration of the dispute, it turned out that the Federal Tax Service Inspectorate appointed additional verification measures for the company’s counterparty, within the framework of which the disputed documents were requested. The court recognized the inspectors’ demand as legal, noting that in accordance with paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation, it would be lawful even if there were no checks at all.

Resolution of the Arbitration Court of the Volga District dated 02/01/2019 No. F06-41631/2018

Fine under Article 129.1 of the Tax Code

This fine is applied in case of failure to submit (late submission) to the tax authority: - information that a person is obliged to provide by virtue of the direct instructions of Art. 85 Tax Code of the Russian Federation. This applies to such organizations as, for example, the Federal Migration Service of Russia, the State Traffic Safety Inspectorate and Gostekhnadzor, Rosreestr authorities, and civil registry offices. It is clear that this basis for a fine has nothing to do with ordinary organizations and entrepreneurs, so we will not consider it further; — documents or information relating to the activities of the taxpayer being audited (fee payer, tax agent) requested during the tax audit; — information on a specific transaction requested by the tax authority outside the scope of the audit (Clause 2 of Article 93.1 of the Tax Code of the Russian Federation).

For reference, for a single failure to submit documents or information requested during an oncoming meeting within a calendar year, you may be fined: (if) the deadline for submitting documents or information expired on September 2, 2010 or earlier - 1000 rubles. (Clause 1 of Article 129.1 of the Tax Code of the Russian Federation (as amended, valid until 09/03/2010)); (if) the deadline for submitting documents or information expired on September 2, 2010 or later - 5,000 rubles. (Clause 1 of Article 129.1 of the Tax Code of the Russian Federation). If such an offense is committed two or more times during a calendar year, the fine will be: (if) the offense was committed before 09/03/2010 - 5000 rubles. (Clause 2 of Article 129.1 of the Tax Code of the Russian Federation (as amended, valid until 09/03/2010)); (if) the offense was committed after 09/02/2010 - 20,000 rubles. (Clause 2 of Article 129.1 of the Tax Code of the Russian Federation).

Let's look at the last two cases. Firstly, the tax authority conducting a desk or field audit of any taxpayer (tax agent) has the right to require you to provide available documents or information (information) relating to its activities. He can do this: - during the inspection itself (Clause 1 of Article 93.1 of the Tax Code of the Russian Federation); - after its completion, if, when considering the audit materials, the head of the tax authority decides to request such documents or information as part of additional tax control measures (Clause 6 of Article 101 of the Tax Code of the Russian Federation). Secondly, outside of a tax audit, you may be required to provide available information about a specific transaction if the tax authority has a justified need to obtain such information (Clause 2 of Article 93.1 of the Tax Code of the Russian Federation).

Inspectors should not indicate details of the requested documents.

The taxpayer appealed the Federal Tax Service's requirement to submit 1,027 invoices, goods and delivery notes and other documents confirming transactions with the counterparty for the quarter. According to the company, according to clauses 2, 3 of Art. 93.1 of the Tax Code of the Russian Federation, inspectors must indicate in the request information that allows them to identify a specific transaction.

The courts did not support this interpretation of the code. The arbitrators indicated that Art. 93.1 of the Tax Code of the Russian Federation does not establish the obligation of the tax authority to indicate details or other individualizing features of documents in the request. At the same time, the norms of the legislation on taxes and fees also do not contain a ban on requesting documents for several transactions. Themis also emphasized that inspectors should not inform the counterparty of the person being inspected the reasons why they decided to send a demand.

Resolution of the Arbitration Court of the Volga District dated January 29, 2019 No. F06-42165/2018

Editor's note:

It will not be possible to recognize as illegal a requirement that does not indicate a tax control measure. From the point of view of the RF Armed Forces, the main thing is to be able to understand which counterparty we are talking about, what documents are needed by the Federal Tax Service and for what period. The absence in the requirement of an indication to carry out a specific tax control event is formal in nature and does not indicate the invalidity of the inspection requirement (Determination of the RF Armed Forces dated September 19, 2018 No. 307-KG18-14038).

It is prohibited to inspect a company without a tax audit

The company received a request from the Federal Tax Service to provide many documents about its work over the past three years. Moreover, the requirement did not refer to any tax audit.

The inspectors wanted to see:

• decoding of accounting accounts 60, 62, 76, 90, 91 broken down by year;
• staffing schedule;
• decoding of accounts payable and receivable;
• decoding of 11 balance sheet indicators;
• tax registers of expenses and income broken down into direct, indirect and other for three years.

The company complained to the court. The first instance and the appeal supported the inspectors, but the district court sent the case for a new trial. The arbitrators agreed with the company's arguments that the requested documents did not relate to a single transaction, but to the entire activity of the company, and recognized that such a requirement, without verification, contradicts clauses 1 and 2 of Art. 93.1 Tax Code of the Russian Federation. The court of first instance will have to figure out whether the specified tax control measure took place and in relation to which particular counterparty or transaction it was initiated by the inspectors.

Resolution of the Arbitration Court of the Moscow District dated April 30, 2019 No. F05-5289/2019

Delaying the submission of tax documents will also protect the company

Officials are not required to grant a request for a delay. But even if they refuse and the company does not have time to prepare copies of the primary application, then the sending of the application itself will be interpreted in favor of the taxpayer. It can become an auxiliary argument against a fine*. Or a mitigating circumstance that makes it possible to reduce sanctions (see, for example, resolutions of the FAS Volga-Vyatka district dated 07.30.07 No. A29-8736/2006a and Northwestern district No. A26-5099/2009 dated 04.15.10). If the enterprise did not apply to the inspection, then this is one of the arguments to justify the fine (see, for example, resolutions of the FAS East Siberian District dated 09.27.12 No. A19-3375/2012 and Volga District dated 05.14.13 No. A65-27105/2011 ). * A reference to a petition is not enough to get rid of a fine. But by supplementing it with other arguments, you can be freed from sanctions. An example is the resolution of the Federal Antimonopoly Service of the Moscow District dated August 20, 2012 No. A41-27671/11 (the main argument is that there is no list of required documents). Or the resolution of the Federal Antimonopoly Service of the Far Eastern District dated September 20, 2012 No. F03-4036/2012 (the main argument is the illness of the entrepreneur). A deferment is requested no later than the day following receipt of the request from the Federal Tax Service (clause 3 of Article 93 of the Tax Code of the Russian Federation). It is necessary to explain its reasons: a large number of primary documents, its location in a remote unit, lack of photocopiers... If there are no arguments, then the court may admit: a deferment is not allowed, the company must be fined for the delay in paying the fine (resolution of the Federal Antimonopoly Service of the North Caucasus District dated 02.11.13 No. A22-663/2011, etc.).

The chief accountant is not obliged to provide the inspectorate with the employee’s work history

The Federal Tax Service imposed a fine of 300 rubles on the chief accountant of the company under Part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation for the fact that she did not submit to the inspection the documents requested in relation to one of her employees:

• application for a job;
• resignation letter;
• employment contract;
• The order of acceptance to work;
• personal card.

The chief accountant challenged the fine, and the court overturned it.

The fact is that the demand contained a reference to Art. 93.1 Tax Code of the Russian Federation. This meant that the inspection was interested in information about another company being inspected or about a specific transaction.

The chief accountant decided that the requested documentation did not relate to either one or the other. The company has no relationship with the audited organization. The listed documents do not relate to a specific transaction. The inspection did not indicate in its request what connection there is between this employee and the organization being inspected or a specific transaction.

Therefore, the accountant did not comply with the request. Moreover, she informed the inspectorate about the refusal, explaining the reasons. Additionally, the accountant wrote that the employee’s work documents contain his personal data, which the company has no right to transfer to anyone without his consent.

The judges came to the conclusion that the chief accountant was absolutely right. The documents listed in the request cannot be recognized as those that the company (its official) is obliged to submit to the tax authority.

In accordance with paragraph 11 of Art. 21 of the Tax Code of the Russian Federation, taxpayers have the right not to comply with unlawful acts and requirements of tax authorities.

Thus, the fine was imposed illegally.

Resolution of the Supreme Court of the Russian Federation dated April 26, 2019 No. 9-AD19-10

Appeal an illegal demand in court

Appealing the claims presented in court is perhaps the most radical way to combat tax arbitrariness. This method has undoubted advantages - the taxpayer delivers a kind of preemptive strike. This means that he is not pressed by the burden of a fine unexpectedly imposed by the tax authorities, and the appeal to the court itself is a surprise for the tax authorities. Moreover, in the event of an appeal against an illegal document, action or inaction of a government body, representatives of this body find themselves making excuses. After all, according to the Arbitration Procedural Code, it is they who must prove that their document, action or inaction complies with the law (clause 3 of Article 189 of the Arbitration Procedure Code of the Russian Federation).

But even on this path, difficulties await the taxpayer. Often the inspectorate tries to stop the consideration of the case, as they say, in the bud, convincing the judges that the organization could not go to court at all, since its rights have not yet been violated. After all, presenting a demand in itself does not entail any negative consequences. Moreover, according to the Tax Code, the taxpayer has the right to simply not comply with requirements if they are illegal.

However, the courts do not agree with this approach. Thus, the FAS Moscow District, in its resolution dated 04/07/10 No. KA-A40/3003-10, clearly and clearly indicated: the fact that the tax inspectorate’s requirement was not fulfilled before going to court gave the inspectorate the right to make a decision on bringing the organization to tax liability . This means that taxpayer rights are at risk. And the fact that subclause 11 of clause 1 of Article 21 of the Tax Code of the Russian Federation gives the taxpayer the right not to comply with an unlawful requirement of the inspectorate cannot limit the organization’s right to judicial protection.

True, it must be taken into account that the opportunity to go to court is available only in those cases when the inspectorate puts forward requirements, from which it clearly follows that, in the opinion of the Federal Tax Service Inspectorate, they are obligatory for execution. If the document received from the inspectors uses the words “we ask”, “we recommend”, etc., it is useless to complain to the court. Such documents do not impose any obligations on the taxpayer and do not create obstacles to the implementation of entrepreneurial and other economic activities (resolution of the Federal Antimonopoly Service of the North-Western District dated January 25, 2011 in case No. A42-2727/2010).

* Let’s immediately make a reservation that we will only talk about the official requirements of the inspection. That is, those that are drawn up in writing on the letterhead of the Federal Tax Service, and also certified by a seal and signature. Oral requirements in themselves are not mandatory, since they are not provided for by the Tax Code.

You don’t have to share product recipes with inspectors

As part of the on-site audit, the tax authorities requested from the company the recipe for 133 types of alcoholic products produced. The inspectors explained this by the need to reconcile the costs of purchasing raw materials with the list of required ingredients.

The company refused to comply with the request, pointing out that the recipe for the drinks produced does not contain the information necessary to verify the correctness of calculation and payment of taxes, and is information that is not subject to distribution.

Inspectors issued a fine, which the company went to court to appeal.

Themis supported the society's arguments. The arbitrators indicated that, within the meaning of Art. 88, 93 of the Tax Code of the Russian Federation, documents required by the tax authority must be related to the subject of the tax audit (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 8, 2008 No. 15333/07). In this case, confirmations of tax accounting data are:

• primary accounting documents (including an accountant’s certificate);
• analytical tax accounting registers;
• calculation of the tax base.

The recipe for alcoholic beverages is not a document used to control the correctness of calculation and payment of tax, since it does not relate to primary accounting documents or analytical registers of tax accounting, and also does not contain a calculation of the tax base.

Under such circumstances, the judges declared the fine for refusal to submit these documents illegal and canceled it.

Resolution of the Arbitration Court of the Volga District dated 02/01/2019 No. F06-42680/2018

The court exposed inspectors who confiscate documents and fine them for failure to submit them

As part of the on-site inspection, the company provided the inspectors with the originals of the requested documents. Three weeks later, the company received a notification via TKS about the suspension of control activities. In the accompanying letter, the inspectors reported that, in accordance with the requirements of the Tax Code of the Russian Federation, during the time-out, the original documents of the taxpayer must be returned before the inspection is resumed. The tax authorities attached to the letter copies of the lists of documents drawn up by the company when transferring the documentation, without notes on their return.

A month later, the audit was resumed, and the tax office demanded documents, the originals of which were never returned. The company nevertheless provided most of them, and for the missing papers it was fined more than 320 thousand rubles. The company went to court to appeal the punishment, where Themis supported its position.

The judges noted that the inspectorate does not have the right to demand from the taxpayer copies of documents whose originals were not returned to him. The procedure for returning papers, although not regulated, but, according to the court, should coincide with the registration of acceptance and transfer of documents from the taxpayer, that is, follow the inventory with the signature of the responsible person. The inspection, for its part, did not provide such evidence, which forced the arbitrators to cancel the tax authority’s decision.

Resolution of the Arbitration Court of the North-Western District dated January 21, 2019 No. F07-15324/2018