If a taxpayer (fee payer, insurance premium payer, tax agent) (including in case of loss of the right to restructure debts on taxes, dues, insurance premiums and debts on accrued penalties, termination of the deferral, installment plan, termination of the agreement on investment tax credit) the tax authority generates by software a document on the identification of arrears, in the form , approved by order of the Federal Tax Service of Russia dated February 13, 2017 No. ММВ-7-8/ [email protected]"On approval of forms of a document on the identification of arrears, requirements for the payment of tax, dues, insurance premiums, penalties, fines, interest, as well as documents used tax authorities when applying interim measures and collecting debts on said payments” (registered by the Ministry of Justice of Russia on March 15, 2017 No. 45958), which is kept by the tax authority.
According to the position of the Supreme Arbitration Court Russian Federation set forth in Resolution of the Plenum No. 57 of July 30, 2013 “On Certain Issues Arising from the Application by Arbitration Courts of Part One of the Tax Code of the Russian Federation”, the day the arrears are revealed should be understood as the day after the due date for paying the tax (advance payment), and in the case of submission tax return(advance payment calculation) in violation of the established deadlines - the next day after its submission.
It should be noted, however, that information about Money ah, enrolled in budget system Russian Federation, submitted by the authorities Federal Treasury in the Federal Tax Service of Russia, as a rule, after 4 days from the day the taxpayer deposited funds with the bank.
And, accordingly, a document on the identification of arrears from taxpayers (payers of fees, payers of insurance premiums, tax agents) - organizations, individual entrepreneurs or a responsible participant in a consolidated group of taxpayers (hereinafter - CTG), individuals who are not individual entrepreneurs, is formed no later than 5 working days from the date of the due date for payment of tax, fee, insurance premiums.
In case of non-receipt of a tax declaration (calculation) within the time period established by the legislation on taxes and fees, a document on the identification of arrears is formed no later than 5 working days from the date of receipt of the tax declaration (calculation) by the tax authority.
After the formation of a document on the identification of arrears, the tax authority analyzes the data information resource local level "Settlements with the budget" on the taxpayer's overpayment and debt for one type of tax, as well as penalties and fines in order to confirm the presence of amounts of overpaid mandatory payments and offsets in accordance with paragraph 5
Arrears - this is the amount of tax (or the amount of the fee), not paid within the prescribed period.
Also, arrears are recognized as excessively reimbursed earlier by the decision of the inspectorate the amount of tax that the inspectors revealed during the field trip or desk audit.
In cases stipulated by the legislation of the Russian Federation, arrears are charged.
Inspectors can identify arrears as part of control measures - based on the results of a desk audit or field audit.
It is reflected in the relevant decisions taken based on the results of inspections. The date of such decisions is the date of detection of arrears.
He can identify the arrears himself, for example, if he finds:
wrong indication in payment order Treasury account number and name of the beneficiary's bank, as a result of which it did not enter the budget;
errors in the calculation of the taxable base and the amount of tax.
Other rules are established for arrears in the form of previously overpaid amounts of tax. The date of occurrence of the specified arrears is:
the day of actual receipt by the taxpayer of funds - in case of a tax refund;
the day of the decision to set off the amount of tax claimed for reimbursement - in the case of a tax offset.
In addition, inspectors can identify arrears outside the scope of control measures, for example, by comparing tax amounts indicated in declarations (calculations of advance payments).
At the same time, the day of detection of such arrears should be understood as the next day after the deadline for paying the tax (advance payment), and in the case of submitting a tax declaration (advance payment calculation) in violation of the established deadlines, the next day after its submission.
To establish the date of occurrence of the arrears, the taxpayer may also be guided by the information reflected in his personal account maintained by the tax authority, since they are reflected in it in any case.
If a arrears are discovered during tax audit the demand for payment is sent within 20 working days from the date of entry into force of the decision on the audit.
For cases where arrears are detected outside the scope of control measures, the time limit for submitting a claim depends on total amount debts (including debts on penalties and fines):
500 rub. and more - the claim is sent within 3 months from the date of detection of arrears;
less than the specified amount - within a year from the date of detection of arrears.
Minimum term for voluntary repayment of the debt specified in the demand - 8 working days from the date of receipt of the demand. However, this period may be extended at the discretion of the tax authority. However, no maximum limit has been set.
At the end of the specified period (or the period specified in the claim itself), the terms are determined for the indisputable, and then for the judicial recovery of arrears.
The term for the indisputable collection of debt is limited to 2 months, after which the tax authority within 6 months has the right to apply to the court with an application for its collection in judicial order.
Therefore, taking into account the foregoing, the maximum period allotted by the tax legislation for the collection of the identified arrears is calculated as follows: the beginning of the countdown is the date of detection of the arrears + the time until the claim for payment is made (3 months or 20 working days) + the period for voluntary payment (8 working days days or more) + time for indisputable collection (2 months) + time to apply to the court (up to 6 months after the expiration of the term for fulfilling the claim).
In most cases, the IFTS collects arrears in an extrajudicial (indisputable manner) from bank accounts organization or at the expense of its property.
To do this, the IFTS issues an organization a requirement to pay tax.
If the organization does not fulfill the requirement to pay the tax on time, then the IFTS within two months from the date of its expiration:
Simultaneously with the decision to collect the IFTS may suspend operations on the bank accounts of the organization.
If there is not enough money in bank accounts to enforce the decision on collection, the Federal Tax Service Inspectorate may collect tax at the expense of other property of the organization, including cash on hand.
To do this, within one year from the date of expiration of the deadline for fulfilling the requirement to pay tax, the IFTS may decide to collect tax at the expense of the property of the organization.
On the basis of such a decision, the IFTS sends a decision on the collection of tax to the bailiffs, and they, as part of the enforcement proceedings, begin to collect the tax.
In particular, they can seize property and subsequently forcibly seize and sell it.
The IFTS will apply to the court for the recovery of arrears if it misses the deadline for an indisputable recovery.
You can apply to the IFTS court:
if the deadline for making a decision on the collection of tax at the expense of funds on the organization's bank accounts is missed - within six months from the date of expiration of the deadline for fulfilling the tax payment requirement;
if the deadline for making a decision on the collection of tax at the expense of property has been missed - within two years from the date of expiration of the deadline for fulfilling the claim for payment of tax.
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Arrears: details for the accountant
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...). The second - by the day of the actual repayment of the arrears (clause 57 of the Resolution of the Plenum ... be carried out taking into account the day of repayment of the arrears. Please note: from October 1 ... by submitting an updated declaration), she paid the arrears and penalties. Calculate the amount of penalties ... in the period Refinancing rate, % Amount of arrears, rub. Penalties accrued, rub. 29 ... payable in the event of an arrears, therefore, if the taxpayer has in ... in the period Refinancing rate, % Amount of arrears, rub. Penalties accrued, rub. 29 ...
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For the period for which the arrears are charged, there is an overpayment according to the same ... information: in the case when the amount of the arrears turned out to be greater than the amount of the overpayment, the overpayment ... is calculated only from the difference between the arrears and the overpayment. If the acts stipulated by ... the established deadline for claiming arrears on insurance premiums, penalties and ... non-payment of insurance premiums include non-payment of arrears on insurance premiums, penalties, fines ...
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Tax arrears areoverdue debts of legal entities and individuals on payments to the budget. Let us consider in our article in detail what this is - tax arrears, as well as what negative consequences it entails for organizations and entrepreneurs.
If a legal entity or individual entrepreneur misses the deadline for paying taxes or insurance premiums, thereby violating tax law(paragraph 2, clause 1, article 45 of the Tax Code of the Russian Federation), then he has a debt to the budget. This is an arrears in taxes (insurance contributions), that is, in this case, a debt (clause 2, article 11 of the Tax Code of the Russian Federation).
About what violations arise liability and what is its size, read the article. .
In addition, there are situations when, when checking a taxpayer, inspectors discover an excessive amount of taxes reimbursed to him from the budget, for example, VAT. And it's tax arrears, too.
The following taxes can be reimbursed from the budget:
Read about illegal VAT refunds and subsequent liability for this in the material. .
Tax arrears arise the very next day after the violation of the deadline for paying taxes to the budget established by law.
If an excessively refunded amount of tax is recognized as arrears, then the day of its formation will be (paragraph 4, clause 8, article 101 of the Tax Code of the Russian Federation):
It is always necessary to transfer taxes on time, otherwise consequences are possible - this is a tax arrears, as well as the accrual of penalties.
The arrears can be repaid by the taxpayer in voluntary. However, in addition to the tax itself, it will also be necessary to transfer penalties to the budget, calculated taking into account the number of days of delay in payment.
If the taxpayer does not pay off his own debt in the form of tax arrears and penalties to the budget, then the tax authorities will collect these amounts already by force.
If it is impossible to recover the tax arrears and penalties from the taxpayer, the tax authorities may write off this debt as uncollectible.
Consider the procedure for collecting debt to the budget from the taxpayer step by step.
Step 1. If tax arrears are discovered, the tax authority must issue a demand to the debtor for payment of tax, penalties, fines, interest within the following terms:
Step 2 The taxpayer must fulfill the requirement within the period specified in it (clause 6, article 6.1, paragraph 4, clause 4, article 69 of the Tax Code of the Russian Federation). The minimum period in which he needs to meet the repayment of arrears on taxes, penalties, etc., is 8 working days from the date of receipt. If the debtor does not comply with the demand, then:
Read the material from which taxpayer accounts debts on taxes and fees can be collected. .
Step 3 If it is not possible to recover the debt at the expense of the debtor's funds, then:
Read more about the collection procedure.
If the term limitation period the debt to the budget has expired, then the tax authorities will not be able to oblige the debtor to pay the arrears, despite the fact that the debt will still be on him. However, if such a debt is recognized as uncollectible, then it can be excluded from the card for settlements with the budget.
According to sub. 1-4.1 p. 1 art. 59 of the Tax Code of the Russian Federation, a debt is recognized as bad debt in the following cases:
Arrears in tax payments arise in case of violation of the terms of their payment. It is recognized from the first day following the date determined as the last day of the payment term. The consequence of it are penalties charged for each day of delay.
If the taxpayer does not extinguish the arrears and penalties voluntarily, the IFTS resorts to the procedure of forced collection. In certain situations, the debt is recognized as uncollectible.
As you know, a claim for payment of debts identified not as part of an audit can be issued no later than 3 months from the date of detection of arrears. However, nowhere in the Tax Code of the Russian Federation does it say what the date of detection of arrears is.
When Arrears Arise tax code term . From this definition it follows that it can arise only when the tax amount is accrued, but not paid to the budget in a timely manner. The fact that the tax has not been paid must be known to the tax authority on the day following the expiration of the payment deadline. And he learns about the amount of the accrued tax from the tax return. This means that the arrears can be revealed only after you: - submitted a declaration with the amount of tax payable, - missed the tax payment deadline. Let's illustrate what has been said. The last day for paying UTII for the I quarter is April 25, the tax was not paid on time. OPTION 1. The taxpayer submitted a UTII declaration for the 1st quarter on April 20 or earlier. Until April 25, the tax can not be paid and there will be no arrears. We can talk about its presence only from April 26th. From the same day, the 3-month period for issuing a claim will begin to be calculated. Thus, the last day of its exhibiting will be July 26th. OPTION 2. The UTII declaration for the 1st quarter was submitted in violation of the deadline - April 24. In this case, the deadline for issuing a claim will run in the same way as in option 1. OPTION 3. The UTII declaration for the 1st quarter was submitted in violation of the deadline - April 30. Before submitting a declaration tax office cannot make a claim, since she will not know the amount of the arrears. Therefore, the deadline for issuing a claim for this declaration will begin to run on May 1 and its last day will be July 31. Inspectors have their own approach However, in practice, the tax authorities often count the time for issuing a claim not from the date indicated by us, but from any moment the arrears are discovered in their internal documents and databases. And this approach sometimes finds support. Note. If arrears are detected outside the framework of a tax audit, the tax inspectorate draws up a document on the identification of arrears with a taxpayer (payer of fees) or a tax agent. From the date of the preparation of this document, she begins to count the period for issuing a claim. However, still in judicial practice The prevailing opinion is that the discovery by the tax authority of data in its internal documents cannot indicate either an arrears or an overpayment, since such data completely depend on the actions of its employees. And the courts refuse to recover arrears on claims made with violation of deadlines. For example, in one of the court decisions the following situation was considered. The inspection made a mistake when reflecting tax charges in the entrepreneur's personal account card. Having corrected it after 2 years, she made a claim for a tax surcharge within 3 months from the moment she discovered her mistake and made corrections to the card. But the court refused to recover this arrears, arguing this way. The tax debt was formed not as a result of unlawful (guilty) actions of the entrepreneur, but because of an inspection error. And the inspection had the opportunity to timely identify the arrears and send a claim to the entrepreneur, but did this only after 2 years. So, she lost the right to collect the disputed amount of tax. *** I would like to wish you not to forget about the deadlines for paying taxes. And if you received a claim for the payment of arrears that was not revealed as a result of an audit, treat it carefully: check both the basis and the terms for issuing it. If there are violations, the claim can be challenged either in a higher tax authority or in court. First published in the journal "Glavnaya kniga" 2010, N 5 Kononenko A.
