Not long ago, the rules for making a decision based on the results of tax audits changed. Moreover, innovations have added rights to taxpayers. Now inspectors are required to familiarize them with the collected information even before considering the audit materials, and also hand over an addition to the tax audit report within 5 working days and give another 15 days to file written objections.
All these are useful additions for business, but here’s a question whose answer may make you even more happy: is the decision of the Federal Tax Service subject to cancellation if the inspectorate does not comply with the new instructions?
Question two: what kind of formal violations by the inspectorate in recording the results of an inspection can their decision be overturned?
It is possible that the answers will be useful following the results of the reporting campaign for the first quarter of 2021.
The company is required to familiarize itself in advance with the materials of the inspection and additional measures.
In September 2021, the following innovations were included in the Tax Code of the Russian Federation.
Familiarization with materials
Tax authorities are now obliged to familiarize the person being audited with them even before considering the audit materials and additional tax control measures.
True, it is not indicated how much “before”: a week, a day or an hour. Obviously, the period should be sufficient for the company representative to familiarize himself with all the documents collected by the inspectors.
Addendum to the inspection report
After completing additional tax control activities (interrogating witnesses, requesting documents, conducting an examination), inspectors are required to draw up an addition to the inspection report.
Previously, there was no such requirement; these activities were not documented at all in a separate document.
Presentation of the supplement
Within 5 days after drawing up, the supplement must be handed over to the taxpayer: handed over in person against a signature or transferred in another way indicating the date of its receipt.
Time limit for challenging
Within 15 days, the taxpayer has the right to challenge this addition.
Interrogation of a witness
After the interrogation, the witness must be given a copy of the interrogation protocol in person against signature. If he refuses to receive a copy, this fact is reflected in the protocol.
Federal Law of August 3, 2018 No. 302-FZ “On Amendments to Parts One and Two of the Tax Code of the Russian Federation”
Editor's note:
Previously, the deadline for delivering the results of additional tax control measures was not regulated by law. The gap was filled by the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation, according to which this period should be similar to the period for delivery of the tax audit report, that is, 5 working days (clause 28 of the Resolution No. 57 dated July 30, 2013). In fact, these clarifications have now been written down in the code (by default, “days” in the Tax Code of the Russian Federation mean working days, clause 6 of article 6.1).
As for handing the witness a copy of the protocol of his interrogation, the code did not previously require this. Therefore, the tax authorities believed that they were not obliged to issue it. The Ministry of Finance supported them (letter dated November 6, 2009 No. 03-02-08/82). Judges too (Resolution of the Twelfth AAS dated March 21, 2019 No. 12AP-1159/2019). The absence of a copy of the interrogation protocol made it difficult to prepare objections against them.
The decision is canceled if the company is not provided with participation in the consideration of materials
In paragraph 14 of Art.
101 of the Tax Code of the Russian Federation lists formal violations that inevitably serve as grounds for canceling an inspection decision: a) failure to ensure that the person being inspected has the opportunity to participate in the consideration of inspection materials;
b) failure to provide the same person with an opportunity to present his explanations.
In addition, the grounds for canceling the inspection decision by a higher tax authority or court may be other violations of the procedure for considering tax audit materials, if they led or could lead to the adoption of an unlawful decision.
“Tax Code of the Russian Federation (Part One)” dated July 31, 1998 No. 146-FZ
Editor's note:
These rules can be applied if tax officials fail to fulfill their new obligations to familiarize the company with the audit materials before they are considered in the office of the Federal Tax Service and to familiarize themselves with the additions plus allow 15 days to receive objections.
After all, the innovations are directly aimed at ensuring the company’s full participation in the consideration of materials and providing it with the opportunity to prepare reasonable objections.
Moreover, if the inspectors’ failure to fulfill the above-mentioned duties could lead to the adoption of an unlawful decision. This conclusion is confirmed by previously established judicial practice.
Thus, the Arbitration Court of the Moscow District declared the decision of the Federal Tax Service invalid, citing the fact that during the implementation of additional tax control measures, the company was actually deprived of the opportunity to prepare and present explanations regarding the results of these measures and the final conclusions of the inspection, since it was not notified of the fact in advance consideration of all inspection materials, or familiarization in advance with the results of additional measures taken (Resolution No. F05-16883/2014 dated 02/09/2015).
Challenging in court due to newly discovered circumstances
The Arbitration Procedure Code of the Russian Federation allows for the possibility of appealing against judicial acts based on new or newly discovered circumstances.
By virtue of Art. 311 of the Arbitration Procedure Code of the Russian Federation, the grounds for reviewing judicial acts are:
Newly discovered circumstances that existed at the time of the adoption of the judicial act, circumstances in the case, which include:
- circumstances significant to the case that were not and could not be known to the applicant;
- falsification of evidence established by a court verdict that has entered into legal force, a knowingly false expert opinion, knowingly false testimony of a witness, knowingly incorrect translation, which entailed the adoption of an illegal or unfounded judicial act in this case;
- criminal acts of a person participating in the case or his representative established by a court verdict that has entered into legal force, or criminal acts of a judge committed during the consideration of this case.
New circumstances that arose after the adoption of a judicial act, but are essential for the correct resolution of the case, circumstances that include:
- reversal of a judicial act of an arbitration court or a court of general jurisdiction or a resolution of another body that served as the basis for the adoption of a judicial act in this case;
- a transaction recognized as invalid by a judicial act of an arbitration court or a court of general jurisdiction that has entered into legal force, which entailed the adoption of an illegal or unfounded judicial act in this case;
- recognition by the Constitutional Court of the Russian Federation of a law applied by an arbitration court in a specific case as inconsistent with the Constitution of the Russian Federation, in connection with the adoption of a decision on which the applicant applied to the Constitutional Court of the Russian Federation;
- the violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms established by the European Court of Human Rights during the consideration by the arbitration court of a specific case, in connection with the decision on which the applicant applied to the European Court of Human Rights;
- determination or change in the resolution of the Plenum of the RF Armed Forces or in the resolution of the Presidium of the RF Armed Forces of the practice of applying a legal norm, if the relevant act of the RF Armed Forces contains an indication of the possibility of revising judicial acts that have entered into legal force due to this circumstance.
From the content of the above norm, we can conclude that there are no new or newly discovered circumstances that could serve as a basis for canceling the court decision.
The decision is canceled if the company is not notified of the date and time of consideration
The Plenum of the Supreme Arbitration Court of the Russian Federation explained that violation of the essential conditions of the procedure for considering inspection materials and, therefore, the basis for canceling the decision of the Federal Tax Service by virtue of clause 14 of Art.
101 of the Tax Code of the Russian Federation are: 1) failure to notify or improper notification of the person being inspected about the place and time of consideration of the inspection materials and making a decision in the absence of this person.
In this case, notification can be made not only by sending a registered letter with a return receipt or delivering it directly to the addressee, but also in some other way. For example, by sending a telephone message, telegram, by fax or transmitted electronically via telecommunication channels.
2) making a decision based on the results of consideration of the tax materials by the wrong head (deputy head) of the Federal Tax Service who considered these materials, including the objections of the person being inspected, and directly examined all available evidence.
The taxpayer has the right to refer to such violations in court, provided that he indicated them in a complaint to the Federal Tax Service.
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”
Editor's note:
It is not enough for the inspectorate to simply confirm that the notice was sent to the taxpayer. Before considering the materials, officials must make sure that the taxpayer (legal representative) received this notice (clause 2, clause 3, article 101 of the Tax Code of the Russian Federation).
A typical example. The company stated that it was not notified of the ongoing tax control activities, and did not receive either a desk audit report, a notification of a summons to review materials, or a request to provide documents.
The court rejected the inspectorate's argument about sending these documents by registered mail. The inspectorate was unable to provide copies of postal notifications of their delivery, which was regarded by the judges as evidence of the company’s failure to receive postal correspondence (Resolution of the Moscow District Arbitration Court dated January 20, 2015 No. F05-15735/2014).
Moreover, even the notice received by the company is improper if the letter from the Federal Tax Service was accepted by an unauthorized employee of the company. That is, one who is neither the legal representative of the company - the general director, nor a representative by proxy. Even if this employee is the chief accountant of the organization (Resolution of the Arbitration Court of the East Siberian District dated March 29, 2018 No. F02-45/2018).
Reinstatement of a missed deadline for appeal
The conclusion that the deadline for appeal was missed was made based on the following. By virtue of Article 137 of the Tax Code of the Russian Federation, every person has the right to appeal against acts of tax authorities of a non-normative nature if such acts violate his rights.
Article 138 of the Tax Code of the Russian Federation distinguishes types of appeal according to the method:
- To the tax authority
- in the form of a complaint against an act that has entered into force;
- in the form of an appeal against an act that has not entered into force;
- To court (allowed only after appealing the act to the tax authority).
By virtue of clause 3 of Art. 138 of the Tax Code of the Russian Federation, in the event of a judicial appeal against acts of tax authorities of a non-normative nature, the period for going to court is calculated from the day when the person became aware of the decision taken by a higher tax authority on the relevant complaint, or from the date of expiration of the period for making a decision on the complaint (appeal) , established by paragraph 6 of Article 140 of the Tax Code of the Russian Federation.
In accordance with paragraph 4 of Art. 138 of the Tax Code of the Russian Federation, appeals by organizations and individuals in court against acts (including normative ones) of tax authorities, actions or inactions of their officials are carried out in the manner prescribed by the relevant procedural legislation of the Russian Federation.
By virtue of clause 4 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, an application can be submitted to the arbitration court within 3 months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests, unless otherwise established by federal law.
Thus, the period for appealing the tax authority’s decision has now expired. The only thing that can be done is to try to appeal in cassation, but, as already said, there are no real grounds for cancellation.
You may be interested in: Services for registering an LLC in Moscow.
The decision is canceled if the company is not notified of the postponement of the review period
The tax authority held the company liable under Art.
123 of the Tax Code of the Russian Federation for untimely transfer of personal income tax in the amount of 1.7 million rubles withheld from employees’ salaries. Then he demanded payment of a fine. The organization challenged the decision of the tax authorities, citing the fact that they did not provide it with the opportunity to participate in the process of considering tax audit materials - personally to the general director or a representative of the company and provide explanations, that is, they violated the essential conditions of the procedure for considering tax audit materials.
The court found that the inspectorate sent a notice to the company about the time and place of consideration of the tax audit materials dated January 22, 2018, according to which the consideration of the materials was to take place on January 29, 2018 at 16:00.
At the same time, from the protocol of consideration of materials it follows that this event took place on January 30, 2018 at the same time. Based on its results, the inspection made a decision to hold the company accountable. At the same time, the Federal Tax Service did not provide evidence of notification to the company about the consideration of the materials on the specified date.
In this regard, the courts came to the conclusion that the tax authority did not really provide the company with the opportunity to participate in the process of reviewing materials, thereby violating the essential conditions of the procedure for reviewing tax audit materials. By virtue of paragraph 14 of Art. 101 of the Tax Code of the Russian Federation, this is an unconditional basis for canceling the decision.
Based on the above, the inspection's decision was declared invalid.
Resolution of the Arbitration Court of the West Siberian District dated 04/05/2019 No. A81-4953/2018
The decision is canceled if the inspection report is received after the inspection period has expired
The individual entrepreneur appealed to the arbitration court with a demand to declare illegal the decision of the Federal Tax Service to bring him to justice.
As a basis, he pointed out that the tax authority did not comply with the procedural requirements for proceedings in the case of a tax offense. 1. The inspection report was received after the inspection period had expired.
The entrepreneur filed a declaration under the simplified tax system, indicating income in the amount of 5.3 million rubles and expenses in the amount of 4.8 million rubles.
The inspectorate refused to recognize expenses, citing the fact that these rental expenses - for the maintenance of premises, the purchase of shelving, office furniture, a scrubber machine and cleaning the territory - although confirmed by documents, it is not a fact that they relate to rented premises.
To prove the opposite, inspectors inspected the leased territory and premises, and also sent a request to the subtenant.
However, these actions were taken after the deadline for the desk audit had expired and even after the entrepreneur’s appeal had been considered by the Federal Tax Service of the Russian Federation.
Consequently, the protocol for the inspection of the territory and premises, as well as the subtenant’s response, are documents obtained in violation of the order, and therefore they do not meet the criterion of admissibility of evidence and cannot be used as the basis for a decision based on the results of a desk audit.
2. The discrepancy between the amount in the declaration and in the account is not a reason to request documents.
According to the Federal Tax Service, 63 million rubles were received into the individual entrepreneur’s current account during the same period. Referring to this discrepancy, the inspection sent the businessman a request to present a book of income and expenses, a book of a cashier-operator and other documents confirming the income received.
However, the inspectorate had no legal basis for sending this demand. She did not provide evidence that the specified amount was transferred to the current account as a result of activities under the simplified tax system and is the income of the individual entrepreneur. The inspection did not find out what the origin of these funds was. In addition, the inspectors did not provide evidence that any errors or contradictions were found in the declaration.
Under such circumstances, the discrepancy between the amount of revenue received during the year to the current account and the income reflected in the tax return can be the subject of investigation only as part of an on-site tax audit, but not a desk audit.
Thus, by virtue of paragraph 7 of Art. 88 of the Tax Code of the Russian Federation there were no legal grounds for sending this request to the Federal Tax Service. Chapter 26.2 of the code also does not imply the obligation of the taxpayer to submit to the inspectorate, along with the declaration, a book of income and expenses, a book of a cashier-operator and other documents.
Resolution of the Arbitration Court of the Ural District dated December 8, 2018 No. F09-7976/18
Recommendations for further actions
You can try to demand from a foreign person payment of the tax that was forcibly collected from XXX LLC. In case of failure to fulfill this obligation, apply to the relevant foreign court with a demand for recovery of damages.
You may be interested in: Recovery of damages in court.
The question of the legal possibility and procedure for such an appeal requires separate research and good knowledge of the norms of international private law and the national legislation of the foreign company.
The decision is canceled if the inspection does not formalize an increase in the inspection period
The court invalidated the decision of the Federal Tax Service to charge the company several million rubles in the form of VAT, income and property taxes.
The reason was that the inspection went beyond the inspection period. According to the decision to conduct the inspection, the period from 01/01/2013 to 12/31/2014 was subject to inspection.
During the audit, inspectors discovered that in the third quarter of 2012, the company, with the help of an interdependent party, created a scheme that made it possible to regulate income and maintain the possibility of applying the simplified tax system. In fact, the company lost the right to apply the special regime in the specified quarter. Therefore, the tax authority assessed taxes according to the general taxation system.
The inspectors decided to correct the inspection period with a letter “On the correction of a technical typo.” It stated that in the decision to conduct an inspection and the certificate of the inspection, the beginning of the period under inspection should be read as defined from 01/01/2012.
The court found this method of extending the inspection period to be contrary to the Tax Code of the Russian Federation.
The audited tax period is an essential condition for conducting an audit, which determines the rights and obligations of the tax authority and the taxpayer during the audit. In this regard, changing it by correcting a typo (especially after the end of the check) is unacceptable.
The actions of the Federal Tax Service are a significant violation of the inspection procedure, on the basis of which the inspection’s decision is invalidated.
Resolution of the Arbitration Court of the Volga-Vyatka District dated January 28, 2019 No. F01-6742/2018
The decision is canceled if the attachments to the inspection report were not delivered to the company
The court considered the fact that the taxpayer was not given documents confirming violations of the law identified during the audit to be sufficient to overturn the decision of the Federal Tax Service.
The arbitrators found that in order to serve the act with attachments, inspectors went to the individual entrepreneur’s registration address. However, no one opened the door for them, and then they decided to send the documents by mail.
According to the website https://www.russianpost.ru, the postal item was received by the addressee. In confirmation of this circumstance, the tax authority also sent a request to the branch of the FSPU Russian Post. According to the response, the registered letter was delivered personally to the addressee on November 24, 2017.
At the same time, the entrepreneur presented the court with a letter from the post office branch, according to which the specified item was delivered to an inappropriate person.
Thus, there is no reliable evidence of delivery of attachments to the tax audit report.
This indicates a violation of clauses 3.1 and 5 of Art.
100 of the Tax Code of the Russian Federation: the tax audit report must be handed over to the person in respect of whom the audit was carried out within 5 days. Attached to the report are documents confirming violations of the legislation on taxes and fees identified during the audit. Failure to serve applications may serve as a basis for declaring the decision of the Federal Tax Service invalid (clause 14 of article 101 of the Tax Code of the Russian Federation, clauses 38, 68 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).
Resolution of the Arbitration Court of the East Siberian District dated 04/03/2019 No. F02-1255/2019
Editor's note:
A similar decision was recently made by the Arbitration Court of the East Siberian District - it sent the case for a new trial, since the fact of delivery of the audit materials and additional tax control measures, the sufficiency of the documents handed over for recognition of accruals as legitimate by the courts were not verified (Resolution dated March 18, 2019 No. F02-471/ 2019).
The decision is canceled if the power of attorney was unreasonably rejected
The court overturned the decision of the Federal Tax Service, as it came to the conclusion that the inspectorate had significantly violated the procedure for considering inspection materials: it unlawfully did not allow representatives of the public to participate in the consideration of materials.
The stumbling block was the powers of attorney of two representatives of the company, whom it delegated to the inspectorate to review documents based on the results of the audit. The inspectors did not allow them to sit at the table, citing the fact that the powers of attorney did not contain the authority to participate on behalf of the company in the consideration of the materials of a specific audit. This means that the named persons are not authorized representatives of the taxpayer, the Federal Tax Service summarized and reviewed the audit materials without their participation.
However, the court supported the company in the fact that neither the legislation on taxes and fees, nor civil legislation prescribe the need for a special indication in the power of attorney of the authority to participate in the consideration of materials of a specific audit.
A power of attorney issued to an authorized representative of a taxpayer-organization may indicate general authority to represent interests in relations with government agencies.
The submitted powers of attorney comply with the requirements of Art. 185, 186 of the Civil Code of the Russian Federation, drawn up in writing, signed by the head of the enterprise, contain the seal of the organization, the date of issue of the power of attorney indicating the expiration date of its validity.
There were no statements from the company regarding the termination of powers of attorney or the withdrawal of powers of representatives or limitation of the scope of powers.
Consequently, the tax authority was obliged to allow representatives of the company to participate in the consideration of documents and give them the right to give explanations (clause 1, 6 of Article 100 of the Tax Code of the Russian Federation).
Resolution of the Federal Antimonopoly Service of the East Siberian District dated 02.09.2010 No. A33-20479/2009
How a current account is blocked
You can learn in detail about the procedure for suspending account transactions, indicating the articles of the Tax Code of the Russian Federation, on the website of the tax service. And here we will provide basic information.
If an organization or entrepreneur has a debt to the budget, then the Federal Tax Service is first obliged to make a corresponding demand. You have eight working days from the date of receipt of the letter to pay the arrears. The problem is that correspondence from the tax office is considered delivered on the sixth day after sending; proof of its receipt is not required. The taxpayer may not even know that he has incurred a debt to the budget.
It’s even worse if the reason for the blocking was an unsubmitted declaration. In a letter dated 07.28.16 No. AS-3-15/ [email protected] the Federal Tax Service indicated that tax legislation does not oblige to warn an organization or individual entrepreneur about the need to report. Established reporting deadlines are available to everyone, and they must be adhered to without reminders.
If the payment requirement is not fulfilled or the declaration is not received on time, the inspection makes a decision to block and transfers it to the bank. The decision of the Federal Tax Service must be executed immediately, so the bank informs the client about the blocking that has already taken place, and not about its possibility.
A copy of the decision to suspend transactions on accounts must be sent to the taxpayer no later than the next day. That is, it is impossible to find out about the blocking in advance; it is possible that the bank itself will be the first to notify about it, and the message from the Federal Tax Service will arrive later, moreover, against a signature.
Can the suspension of transactions on accounts be considered illegal if a copy of the decision from the tax office never arrived? There are several court decisions in which the courts took the side of taxpayers, but there is also the opposite practice.
Checking your current account for blocking is also carried out on the tax service website. To do this, you need to keep the TIN of the organization or individual entrepreneur, the BIC of the bank and request information about current suspensions.
In the same way, you can check your current account for blocking if you plan to make a payment to a counterparty. To do this, indicate the TIN and BIC of the business partner’s bank. Sometimes it turns out that the information is already in the Federal Tax Service system, but it has not yet reached the bank. Therefore, it is convenient to use this service if you suspect that such a decision may be made against you, but do not know whether it is still possible to make payments.
When blocked, debit transactions on the account are prohibited, except for those whose priority is higher than paying taxes. These are enforcement documents on claims for compensation for harm caused to life or health, alimony, severance pay, employment and copyright contracts.
As for the salary, which is paid without executive documents, it is in the same order as the transfer of taxes. Money is written off for claims that are in the same queue in calendar order. That is, if a document about transferring money from a blocked current account to a salary arrived before the order from the Federal Tax Service, it must be executed by the bank.
The amount blocked on the account depends on the reason for the suspension of operations. If this is an unsubmitted declaration or payment of insurance premiums, then all funds are blocked. If we are talking about non-payment of taxes and other payments, then only the amount of arrears is blocked.
How many accounts can the INFS block if there are several of them? The Tax Code of the Russian Federation does not establish special rules on this issue. However, in practice, all accounts of an organization or individual entrepreneur are blocked, because otherwise the measure of influence on the taxpayer will be incomplete. However, you cannot open a new current account in any bank.
The decision is canceled if the operative part of the decision diverges from the reasoning
The court overturned one of the clauses of the inspectorate’s decision on the additional assessment of personal income tax.
The basis was the fact that the conclusion in the operative part of the decision on additional tax assessment contradicted the conclusion in the motivational part about the absence of grounds for additional assessment due to the absence of any employment contracts or civil law contracts with employees by the company.
The judges indicated that the decision did not reflect the specific circumstances of the offense. Pointing to the untimely transfer of the tax, the inspectorate did not provide data regarding which persons the payment was made, in what time frame the tax transfer should have been made, and within what time frame it was made.
At the same time, the court rejected another comment from the company regarding the inspection procedure.
The company referred to the fact that during the audit an act dated November 17, 2011 was drawn up, with which it was familiarized, but the text of the decision contained a reference to the audit report dated November 13, 2011, the text of which the company representatives were not familiar with.
However, the court accepted the explanations of the inspection representative that the reference to the inspection report dated November 13 was a technical error (typo) and the company did not justify how this typo violated its rights and interests or could lead to the adoption of an illegal and unfounded decision.
Resolution of the Federal Antimonopoly Service of the Moscow District dated June 17, 2013 No. A40-78644/12-99-446
The decision is canceled if its content differs from the content of the act
The courts overturned part of the decision of the Federal Tax Service on the grounds that the inspectors violated the procedure for its adoption, since it did not contain the circumstances of the tax offense committed by the company as they were established by the audit in the act:
- the methodology and legal justification for additional accrual differ;
- the decision contains new grounds for additional tax assessments that are not listed in the act;
- the amounts of additional charges according to the decision significantly exceed the amounts of additional charges according to the inspection report.
Changing the grounds for additional assessment of taxes, penalties and fines in the decision in comparison with the audit report puts the taxpayer in a position in which the right already exercised by him to submit objections to the audit report is neutralized by the new grounds for additional assessment given in the decision.
In such a situation, the company is actually deprived of the right to submit objections to the final arguments and conclusions of the Federal Tax Service contained in the inspection decision.
These circumstances indicate a violation of the provisions of paragraphs. 12 clause 3 art. 100, paragraph 8 of Art. 101 of the Tax Code of the Russian Federation, which is an unconditional basis for declaring the inspection decision invalid.
Resolution of the Federal Antimonopoly Service of the Moscow District dated December 11, 2013 No. F05-15400/2013
How to unblock a current account
In most cases, the easiest way is to perform those actions, the failure of which caused the “freezing”. So, if the account is blocked for failure to submit a declaration, RSV or 6-NDFL, then the necessary report should be sent. And if the reason for the “arrest” is failure to pay a tax or contribution, then you need to transfer payments (including from third party accounts; see: “How to fill out a payment slip when paying tax for another person: explanations from the Federal Tax Service”), and transfer them to the Federal Tax Service relevant information.
Generate a payment invoice for payment of tax (penalties, fines) in one click based on the request received from the Federal Tax Service
As a general rule, the decision on the account is made by the inspectorate within the next day after receiving documents confirming the elimination of the reason for the blocking. Another day is required to transmit this decision to the bank. Thus, restrictions on the account must be lifted two business days after the taxpayer has completed the necessary actions (clauses 3.1, 3.2 and 4 of Article of the Tax Code of the Russian Federation).
But in some cases, it will not be possible to release the account from “seizure” using the above method. This may be a consequence of both the specific reason for the blocking and the illegality of the actions of the Federal Tax Service. In these situations, you need to do the following.
If the reason for blocking is to secure an audit decision, the taxpayer can access the account without appealing the relevant decision. To do this, you need to top up your account balance so that it exceeds the additional accrued amounts. And then the inspection will be obliged to “unfreeze” the account in terms of excess (clause 9 of Art. Tax Code of the Russian Federation, letter of the Ministry of Finance dated January 16, 2013 No. 03-02-07/1-10). After this, you can proceed to appeal the decision of the Federal Tax Service, if there are reasons for this.
If the “seizure” of the account was the result of errors or unlawful actions of the inspectorate, then the only way to remove the restrictions is to appeal the relevant decision.
The decision is canceled if the inspection report is not signed by all inspectors
The court overturned the decision of the Federal Tax Service to assess additional taxes to the entrepreneur, since the copy of the act handed to him did not have the signatures of the two inspectors who conducted the on-site tax audit.
The copy of the inspection report bears the signature of one of them. The inspectors objected that the businessman was present during the examination of the inspection materials, so the absence of signatures of the indicated persons on the copy of the act did not lead to a violation of his rights.
However, the judges recalled that, according to paragraph 2 of Art. 100 of the Tax Code of the Russian Federation, the tax audit report is signed by the persons who conducted the relevant audit and the person in respect of whom it was carried out.
A similar instruction is contained in the requirements for drawing up an inspection report, approved by order of the Federal Tax Service of the Russian Federation.
Representatives of the Federal Tax Service in court hearings were unable to explain the reason for the lack of signatures on the copy of the individual entrepreneur’s act, and also did not explain when and under what circumstances one of the inspectors signed the copy of the act available to the inspectorate, indicating that this inspector had resigned.
As a result, the court concluded that the decision made in the absence of an audit report that complies with the requirements of tax legislation is illegal and violates the rights and legitimate interests of the taxpayer. In this regard, the contested decision is declared invalid.
Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 03/09/2011 No. A29-4799/2010
Editor's note:
If one inspector signed the inspection report for another, this is also a reason to cancel the decision of the Federal Tax Service. The judges believe that we cannot talk about an empty formality here, because in such a situation the signature was essentially falsified (Resolution of the Arbitration Court of the Volga District dated April 29, 2015 No. F06-23225/2015).
Appeal to court on new grounds and subject of claim
The Arbitration Procedure Code of the Russian Federation allows for the possibility of going to court on new grounds and subject matter. At the same time, by virtue of clause 4 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, an application can be submitted to the arbitration court within 3 months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests, unless otherwise established by federal law.
A deadline for filing an application missed for a valid reason may be reinstated by the court. At the same time, to recognize the reasons for missing the deadline for applying to the court as valid, compelling reasons are required, which are absent in this case.
Since more than 3 months have passed since the entry into force of the disputed Requirement No. 5139 and the decision, filing a statement of claim with a different basis and subject is inappropriate.
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The decision is canceled if protocols of interrogation of witnesses are not attached to the act
The company discovered that the inspection did not fully send it the documents listed in the tax audit report, on the basis of which the decision made conclusions about the additional amounts of taxes, penalties and fines.
Interrogation protocols were not attached:
- company employees;
- officials of counterparties;
- employees of transport organizations;
- employees of retail stores selling the company's products.
According to the company, this is a significant violation of the inspection and decision-making procedure, as a result of which the decision should be reversed.
The Federal Tax Service stated that the interrogation protocols have no evidentiary value and are not the basis for conclusions in the contested decision. In addition, protocols of interrogations of company employees are documents of the taxpayer himself and, by virtue of clause 3.1 of Art. 100 of the Tax Code of the Russian Federation should not be attached to the inspection report.
The court concluded that the inspection was wrong and overturned its decision.
From the meaning of Art. 101 of the Tax Code of the Russian Federation it follows that all conclusions set out in the on-site tax audit report and in the decision on it must be based on the actual circumstances identified during the audit and confirmed by documents received by the tax authority during the relevant control activities.
The tax audit report is accompanied by documents confirming violations of the legislation on taxes and fees identified during the audit (with the exception of documents received from the person in respect of whom the audit was carried out) (clause 3.1 of Article 100 of the Code).
However, the company was not sent in full the documents listed in the act as justification for the additional charges made by the inspectorate. The interrogation reports were not obtained by the inspectors from the taxpayer, so the company should have been presented.
Thus, the inspection’s failure to attach to the copy of the act all documents confirming the facts of violations identified during the inspection does not comply with the current tax legislation.
Resolution of the First Arbitration Court of Appeal dated January 28, 2014 No. A43-6244/2013
Assessing the legality of the conclusions of the tax authorities and courts
As follows from the case materials, XXX LLC paid interest under the loan agreement in the amount of 29,128,298 rubles in favor of a foreign organization for 2013.
In accordance with paragraph 1 of Art. 310 of the Tax Code of the Russian Federation, tax on income received by a foreign organization from sources in the Russian Federation is calculated and withheld by the tax agent. This can be a Russian organization or a foreign organization operating in the Russian Federation through a permanent representative office. Tax is withheld for each payment of income specified in paragraph 1 of Art. 309 of the Tax Code of the Russian Federation. The exception is the cases established in paragraph 2 of Art. 310 Tax Code of the Russian Federation.
Such cases include, in particular, the existence of an international treaty for the avoidance of double taxation. At the same time, the Russian Federation does not have an agreement on the elimination of double taxation with the Republic of the Marshall Islands.
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The decision is canceled if the company was not aware of the claims against the declaration
The company submitted a VAT return on paper, but for technical reasons, when preparing a copy of the declaration, the text of section 3 was cut off on the right side by one character: tax at a rate of 18 percent instead of 6,870,706 rubles was reflected as 687,070 rubles, tax deductions instead of 6,833,478 rubles – 683,347 rubles.
At the same time, in section 1 of the declaration in line 040 “The amount of tax calculated for payment to the budget in accordance with Article 173 of the Tax Code of the Russian Federation” is indicated correctly - 37,228 rubles. The inspectorate discovered arithmetic discrepancies in the data and sent a message to the company in June seeking clarification. However, according to the Russian Post website, the company did not receive it. The inspectorate made no other attempts to notify the company about the error in the declaration.
1. This served as one of the grounds for canceling the decision of the Federal Tax Service on additional payment of tax and payment of a fine.
The judges indicated that the inspection did not provide the society with the opportunity to become familiar with the substance of the claims against it, the existence of which it could not even assume. After all, given that the declaration did not declare the right to a VAT refund, the verification of it should have been of a formal nature by virtue of paragraphs 7, 8 of Art. 88 Tax Code of the Russian Federation.
2. The inspection created another basis for canceling its decision: in September it drew up a desk inspection report, and in October it made a decision.
However, she did not have the right to do this, since the declaration was received by the inspectorate on February 7, which means that the inspection should have been completed on May 7, and the inspection report sent before May 22. The act was sent only after the contested decision was adopted - on November 28.
In this case, it turns out that the review of the audit materials could have been carried out by the tax authority no earlier than January 12 of the following year (November 28 + 6 days for sending the report + a month for objections). However, the decision was made without taking into account these deadlines, which are procedural guarantees of respect for the rights of taxpayers.
As a result, the court decided that the case established another unconditional basis for declaring the contested decision invalid (clause 14 of Article 101 of the Tax Code of the Russian Federation): the company was not provided with the opportunity to submit objections to the inspection report and the inspection materials were considered without its notification.
DECISION of the Arbitration Court of the Moscow District dated 04/07/2016 No. F05-3209/2016
Editor's note:
A similar case - a company filed an initial VAT return and an updated one.
At the same time, I made a mistake in filling out two lines:
- in the primary – reflected the deduction from advances in line 150 “The amount of tax presented to the taxpayer when calculating the amount of payment, partial payment for upcoming deliveries (performance of work, provision of services)”;
- in the updated declaration, she mistakenly included this amount in line 130 “The amount of tax presented to the taxpayer when purchasing goods (work, services), property rights, subject to deduction in the territory of the Russian Federation.”
The tax office refused the deduction.
The court overturned her decision, because in violation of paragraph 3 of Art. 88 of the Tax Code of the Russian Federation, the inspection did not ask the company for an explanation, and the latter lost the opportunity to make amendments (Resolution of the Arbitration Court of the Moscow District dated 02/08/2017 No. F05-19680/2016).
The decision is canceled if the inspection did not make a claim against the counterparty
The court overturned the decision of the Federal Tax Service due to the fact that the inspectorate assessed additional taxes to the organization with reference to the unrealistic provision of transport services, but did not make a claim against the transport company itself.
So, tax authorities:
- representatives of this company were not called to salary commissions during the audited period;
- did not request clarification during desk audits of the company’s tax returns;
- did not find out how and to whom wages are paid in this company.
In addition, the inspectorate analyzed the bank statement on the company’s cash flow using a selective method.
Tax control measures were also carried out selectively, in relation to only some organizations with which this company, based on the bank statement, had contractual relations. Thus, all this led to a distortion of objective information and, as a consequence, to unfounded conclusions reflected in the decision of the Federal Tax Service.
Resolution of the Arbitration Court of the Moscow District dated 06/08/2018 No. F05-7859/2018
