| Services that can check any organization and individual entrepreneur | ||
|---|---|---|
| Who will check | What is checked | Where to look (scheduled inspections) |
| Prosecutor's office | Anything. The widest spectrum. | Search on the site by database (complete good database) |
| Rostrud/Ministry of Labor/Federal Service for Labor and Employment | Compliance with TC | Base of inspections of the Ministry of Labor (complete good base) |
| Federal Tax Service / Ministry of Finance / Tax Inspectorate | First of all, everything related to taxes, accounting and reporting. cash discipline. KKM. | Consolidated Federal Tax Service (at the time of this writing, the database does not seem to be full - there are only Moscow and the Moscow Region) |
| Fund social insurance(FSS)/ Pension Fund(FIU) | Questions regarding the accrual of benefits, pensions. Payments and accruals of insurance premiums. Fund reporting. | Two funds together check organizations Database of checks of medical organizations in the city of Moscow (other regions need to be searched separately, there is no common base) |
| Ministry of Health / Federal Service for Surveillance in Healthcare | Compliance with the Labor Code and the Federal Law in the field of health care for workers. | Consolidated inspection plan of Roszdravnadzor (complete good base) |
| Can check large and / or specialized organizations (IP) | ||
| (full good base) | ||
| Ministry of Economic Development/Federal Agency for State Property Management | Property in federal ownership | Schedule for Conducting Federal Property Inspections (Complete Good Base) |
| Federal Treasury | Control audit organizations | (at the time of writing, there is no database) |
| Rosreestr/Federal Service state registration, cadastre and cartography | Land supervision. Cadastre | Plans for carrying out inspections of land legislation (complete good base) |
| Rospatent/Federal Service for Intellectual Property | Protection of patents, brands, copyrights. | Plan for scheduled inspections (complete good base) |
| Ministry of Health / Federal Biomedical Agency | Compliance with the legislation of the Russian Federation in the field of ensuring the sanitary and epidemiological welfare of the population | Plan for scheduled inspections of the FMBA of Russia (complete good base) |
| Ministry of Industry and Trade/Federal Agency for Technical Regulation and Metrology | Compliance with licensing requirements, good manufacturing practices | Plan for scheduled inspections (complete good base) |
| Ministry of Natural Resources/Federal Service for Hydrometeorology and Environmental Monitoring | Licensing Compliance | Audit plan (complete good base) |
| Ministry of Natural Resources/Federal Service for Supervision of Natural Resources | Compliance by an economic entity with the requirements of the current legislation of the Russian Federation in the field of nature management and environmental protection | Plans for the control and supervision activities of Rosprirodnadzor and its territorial bodies (a complete good base) |
| Ministry of Defense/Federal Service for Technical and Export Control | Prevention, detection and suppression of violations of mandatory requirements in the field of export control | Plan for conducting scheduled inspections of legal entities and individual entrepreneurs on export control issues (complete good base) |
| Federal Air Transport Agency | Verification of compliance with the legislation on the contract system in the field of procurement in the amount provided for in paragraph 3 of the Rules for the implementation of departmental control in the field of procurement to meet federal needs, approved by Decree of the Government of the Russian Federation of February 10, 2014 No. 89 | The plan for the Federal Air Transport Agency to conduct audits of compliance by subordinate customers with the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement of goods, works, services to meet federal and municipal needs (complete good base) |
If you mistakenly got into the inspection plan, you can be removed from there upon application.
Who can be tested and when? Free service
From June 2, 2016, if you are required to submit a paper copy of the document to the IFTS, you can simply scan it and provide it as a file.
Since 2016, the Labor Inspectorate for the first violation related to the safety of workers or wage arrears, small business leaders and individual entrepreneurs will now always issue only a warning, and only for a second one - a fine.
From July 1, 2016, during inspections, the authorities will not have the right to ask the company for extracts from the USRIP, USRLE, USRN, information about the average headcount or the presence or absence of debts in taxes and fees, as well as some other documents (the full list is in the resolution Government dated April 19, 2016 No. 724-r). After all, such data can be obtained from the tax office, and even on the Internet in the database of individual entrepreneurs and organizations.
Tax audit is an action tax office(IFTS) to control the correctness of calculation, timeliness and completeness of tax payment for individual entrepreneurs and organizations.
During this action, the data obtained as a result of the audit is compared with the data of tax returns submitted to the IFTS.
Documents can only be requested in writing. If documents are requested orally, you are not required to submit them. This follows from paragraph 1 of Article 93 tax code RF. The inspection's request for the submission of documents must be in writing.
In order of the Federal Tax Service dated May 31, 2007 No. MM-3-06 / [email protected] it is said that the requirement must indicate the name, type, details and other signs of documents that allow them to be identified. That is, the request must contain clear information about which document is requested. If there is no exact information, then such a requirement may not be fulfilled or fulfilled to the extent that you understand it. Therefore, I recommend that you comply with the requirement of the inspection to the extent that you understand it. For example, submit a copy of the main contract with the counterparty. The inspectorate must specify its request and send you the request again.
Can the police check? Only within the framework of operational search activities (ORM) or raids. For each ORM there must be a corresponding resolution on the ORM.
The check may cover a period not exceeding three years preceding the year in which the decision to conduct it was made. This is the rule of paragraph 4 of Article 89 of the Tax Code of the Russian Federation. That is, if the decision is dated 2019, you can only check 2016-2018. The inspectorate is not entitled to carry out an inspection for 2004 and earlier.
Tip: Never submit (unnecessarily) clarifications for a period earlier than three years, even if they were requested by the Federal Tax Service. The IFTS has the right to check the updates even after a 3-year period.
Paragraph 2 of Article 88 of the Tax Code of the Russian Federation states that a desk audit must take place within three months from the date of submission of the declaration, but if the inspector violates the deadlines for conducting a desk audit and at the same time reveals the fact of non-payment of tax, then he has every right to take measures to enforce arrears.
The tax authorities may also non-tax audits. So, in accordance with the Law of the Russian Federation of June 18, 1993 N 5215-1 "On the use of cash registers in the implementation of cash settlements with the population" tax authorities carry out checks on the use of CMC; in accordance with the Federal Law of November 22, 1995 N171-FZ "On state regulation production and turnover ethyl alcohol, alcoholic and alcohol-containing products" - checking the production and circulation of alcoholic products, etc.
Depending on the location of the tax audit, they are divided into cameral and field audits.
Desk check- this is an audit of tax returns and other documents submitted by the taxpayer that serve as the basis for calculating and paying taxes, as well as an audit of other documents on the activities of the taxpayer held by the tax authority, carried out at the location of the IFTS.
The Federal Tax Service has the right to call any witnesses for questioning during a desk audit. NC does not allow it.
The tax office is not required to report such an audit in advance (letter of the Ministry of Finance dated February 17, 2016 No. 03-02-07 / 1/8635).
Tip: Carefully study the decision on the on-site inspection. Better call the IFTS and check the reliability. Often scammers can disguise themselves as inspectors.
An on-site inspection is now done only for 0.9% of organizations (reported by the Head of the Federal Tax Service of Russia Mikhail Mishustin in October 2015).
Under field tax audit means a set of actions to verify the primary accounting and other accounting documents of the taxpayer, registers accounting, financial statements and tax declarations, business and other contracts, acts on the fulfillment of contractual obligations, internal orders, orders, protocols, any other documents; on inspection (examination) of various items, any used by the taxpayer to generate income or related to the maintenance of objects of taxation of production, storage, retail and other premises and territories; on conducting an inventory of property belonging to the taxpayer; as well as other actions of tax authorities (their officials) carried out at the location of the taxpayer (the place of its activity, the location of the object of taxation) and in other places outside the location of the IFTS.
With or
For non-submission of documents at the request of the inspection in connection with the on-site inspection, the director of the organization may be held criminally liable. In this case, the chief accountant will act as his accomplice. Even if the company is no longer active.
Documentary verification is an audit covering the primary accounting documentation and accounting registers taxpayer. At the same time, no legislative act specifies the place of conducting such an inspection.
The actions of other persons, for example, experts, translators, may also be associated with on-site inspections, but such actions, as a rule, are due to the initiative of the tax authority.
The IFTS can transfer any documents on inspections to the organization in several ways:
Duration - no more than two months; in exceptional cases, a higher tax authority may extend the duration of a tax audit up to four months.
Tip: If the check is suspended, then all original documents (except for the seizure) must be returned to you, and you are not entitled to request new ones (clause 9, article 89 of the Tax Code of the Russian Federation).
The term of the on-site inspection includes the time of the actual presence of the inspectors on the territory of the inspected enterprise. However, the periods between the delivery to the taxpayer of the requirement to submit documents and the provision of the documents requested during the audit shall not be counted within the specified period.
In the course of an on-site inspection, it may be necessary to inspect premises and territories used to generate income or related to the maintenance of taxable objects, to conduct an inventory of property, to seize documents and items, etc. In a number of cases provided for by the Code, when conducting control actions, protocols.
Counter check is a comparison of different instances of the same document. Based on the essence of the method, it can only be applied to documents that are drawn up not in one, but in several copies. These include documents that document the receipt or leave material assets(invoices, invoices, etc.). Copies of documents are either in different organizations or in different structural divisions enterprises. Provided correct reflection economic activity, different document instances have the same content. In other cases, documents are drawn up only in one copy, or have different content. When comparing documents, the following may not coincide: the quantity of goods, the unit of measure, the price of goods, etc. The absence of a copy of the document may be a sign of non-documentation of the fact of economic activity, and as a result, concealment of income.
In practice, a counter audit is part of an ongoing desk or field tax audit.
Tax audits are divided into complex, thematic and targeted tax audits according to the volume of audited issues.
Comprehensive check- this is a check of the financial and economic activities of the organization for a certain period of time on all issues of compliance with tax laws. The frequency of due diligence has not been established at this time.
After the entry into force of the Tax Code of the Russian Federation, almost all field tax audits are carried out in the form of complex ones. This can include such issues as the correctness of the calculation and transfer of taxes (fees) by the taxpayer, the performance of the functions of a tax agent; the correctness of writing off the amounts of taxes and sanctions from the accounts of taxpayers; opening accounts for taxpayers (when checking banks); application of KKM; the procedure for the sale of alcoholic products, etc. Only an on-site tax audit allows you to use the full range of rights granted to the tax authorities.
Thematic check- this is a check of certain issues of the financial and economic activities of the organization (for example, checking the correctness of the calculation and payment of income tax, VAT, property tax, and other taxes). Such audits are carried out as necessary, determined by the head of the tax authority.
A thematic audit is carried out either as an element of a comprehensive audit, or as a separate audit on established facts of violations of the law on the basis of current tax monitoring. Accordingly, its results are drawn up either in a separate act, or are reflected in the act of a comprehensive audit. If there is a need for a due diligence based on a thematic review, it should be decided additional solution expanding the range of questions to be tested.
With the help of or this online service for organizations, you can keep tax and accounting records for the simplified tax system and UTII, generate payments, 4-FSS, SZV, Unified calculation 2017 and submit any reports via the Internet, etc. (from 250 r / month). 30 days free. For newly created IPs now (free of charge).
Target Check- this is a check of compliance with tax laws in a certain direction or financial and economic operations of the organization. Such checks are carried out on issues of mutual settlements with suppliers and buyers of products (services), on export-import operations, on a specific transaction, on the placement of temporarily free funds, the correctness of the application of benefits and on any other financial and economic transactions. The results of a targeted audit are used in a comprehensive or thematic audit and are drawn up either in the acts of these audits or as separate annexes. It is possible to conduct targeted inspections as independent ones. However, in this case, there is a risk of incomplete verification of certain issues of compliance with tax laws.
According to the method of organization, tax audits are divided into scheduled and unannounced.
sudden check- this is a kind of on-site tax audit conducted without prior notice to the taxpayer (as opposed to a scheduled audit).
The purpose of a sudden inspection is to establish the fact that an offense has been committed, which can be hidden during ordinary inspections. Surprise inspections are not carried out often. At the same time, many non-tax audits, for example, audits of the use of cash registers, in most cases are carried out as sudden.
The Tax Code of the Russian Federation also provides for the possibility of conducting control and repeated inspections.
Target control check- Establish the fact of low-quality conduct of an earlier audit by officials of the tax authorities.
Recheck- this is an audit for the same types of taxes and for the same tax periods for which the previous audit was carried out. The Tax Code of the Russian Federation provides for restrictions on repeated tax audits. Thus, according to Article 87 of the Tax Code of the Russian Federation, it is prohibited to conduct repeated field tax audits for the same taxes payable or paid by the taxpayer (payer of the fee) for the already audited tax period. Currently, repeated field tax audits are carried out, as a rule, in the form of control audits.
According to the volume of documents to be checked, checks are divided into:
solid(when all documents of the organization are checked, without gaps and assumptions about the absence of violations);
selective(when only part of the documentation is checked).
Continuous checks most often held in small organizations or in organizations where it is necessary to restore accounting (if it is absent or destroyed primary documents).
Custom scan can develop into a continuous one in the event that violations are found in the sample being checked, which may be inherent in the entire array of the organization's documentation.
With the help of or this online service for organizations, you can keep tax and accounting records for the simplified tax system and UTII, generate payments, 4-FSS, SZV, Unified calculation 2017 and submit any reports via the Internet, etc. (from 250 r / month). 30 days free. For newly created IPs now (free of charge).
The right to conduct tax audits is regulated by Chapter 14 "Tax control" (Articles 87-105).
Article 87. Tax audits
1. Tax authorities conduct the following types of tax audits of taxpayers, payers of fees and tax agents:
1) cameral tax audits;
2) field tax audits.
2. The purpose of in-house and on-site tax audits is to control compliance by a taxpayer, payer of fees or tax agent legislation on taxes and fees.
Article 87.1. Lost strength. - The Customs Code of the Russian Federation of May 28, 2003 N 61-FZ.
The provisions of Article 88 in its constitutional and legal interpretation do not oblige the taxpayer simultaneously with filing tax return provide documents confirming the correctness of the application of the tax deduction, when
The fact that the tax authority has the right to demand from the taxpayer the documents necessary and sufficient to verify the correctness of the application tax deductions(Determination of the Constitutional Court of the Russian Federation of July 12, 2006 N 266-O).
Article 88
(as amended by Federal Law No. 137-FZ of July 27, 2006)
1. An in-house tax audit is conducted at the location of the tax authority on the basis of tax declarations (calculations) and documents submitted by the taxpayer, as well as other documents on the activities of the taxpayer, available to the tax authority.
2. An in-house tax audit is carried out by authorized officials of the tax authority in accordance with their official duties without any special decision of the head of the tax authority within three months from the date of submission of the tax declaration (calculation) by the taxpayer.
(Clause 2 as amended by Federal Law No. 224-FZ of November 26, 2008)
3. If an in-house tax audit reveals errors in the tax declaration (calculation) and (or) contradictions between the information contained in the submitted documents, or if the information provided by the taxpayer is found to be inconsistent with the information contained in the documents held by the tax authority and received by him in during the course of tax control, the taxpayer is informed about this with a requirement to provide the necessary explanations or make appropriate corrections within the prescribed period within five days.
4. A taxpayer submitting explanations to the tax authority regarding the identified errors in the tax declaration (calculation) and (or) contradictions between the information contained in the submitted documents, has the right to additionally submit to the tax authority extracts from the tax and (or) accounting registers and (or ) other documents confirming the accuracy of the data entered in the tax declaration (calculation).
5. A person conducting a cameral tax audit is obliged to consider the explanations and documents submitted by the taxpayer. If, after considering the submitted explanations and documents, or in the absence of explanations from the taxpayer, the tax authority establishes the fact of a tax offense or other violation of the legislation on taxes and fees, officials of the tax authority are required to draw up an audit report in the manner prescribed by Article 100 of this Code.
6. When conducting in-house tax audits, the tax authorities are also entitled to demand, in accordance with the established procedure, from taxpayers who use tax incentives, documents confirming the right of these taxpayers to these tax benefits.
7. When conducting a desk tax audit, the tax authority is not entitled to demand from the taxpayer additional information and documents, unless otherwise provided by this article or if the submission of such documents together with a tax declaration (calculation) is not provided for by this Code.
8. When filing a tax return for value added tax, in which the right to a tax refund is declared, a desk tax audit is carried out taking into account the specifics provided for in this paragraph, on the basis of tax returns and documents submitted by the taxpayer in accordance with this Code.
The tax authority has the right to demand from the taxpayer documents confirming, in accordance with Article 172 of this Code, the legitimacy of applying tax deductions.
9. When conducting a desk tax audit on taxes associated with the use natural resources, the tax authorities have the right, in addition to the documents specified in paragraph 1 of this article, to demand from the taxpayer other documents that are the basis for the calculation and payment of such taxes.
9.1. If, before the end of the in-house tax audit, the taxpayer has submitted an amended tax return (calculation) in the manner provided for in Article 81 of this Code, the in-house tax audit of the previously filed declaration (calculation) is terminated and a new in-house tax audit begins on the basis of the amended tax declaration (calculation) . The termination of a desk tax audit means the termination of all actions of the tax authority in relation to the previously filed tax declaration (calculation). At the same time, documents (information) received by the tax authority as part of the terminated in-house tax audit may be used in carrying out tax control measures in relation to the taxpayer.
(Clause 9.1 introduced federal law dated November 26, 2008 N 224-FZ)
10. The rules provided for by this article also apply to payers of fees, tax agents, unless otherwise provided by this Code.
Article 89. Field tax audit
(as amended by Federal Law No. 137-FZ of July 27, 2006)
1. An on-site tax audit is carried out on the territory (in the premises) of a taxpayer on the basis of a decision of the head (deputy head) of the tax authority.
If a taxpayer is unable to provide premises for an on-site tax audit, an on-site tax audit may be conducted at the location of the tax authority.
2. The decision to conduct an on-site tax audit shall be made by the tax authority at the location of the organization or at the place of residence of an individual, unless otherwise provided by this paragraph.
The decision to conduct an on-site tax audit of an organization classified in accordance with the procedure established by Article 83 of this Code as the largest taxpayer shall be made by the tax authority that has carried out the registration of this organization as the largest taxpayer.
The decision to conduct an on-site tax audit of an organization that has received the status of a participant in a project for the implementation of research, development and commercialization of their results in accordance with the Federal Law "On the Skolkovo Innovation Center" is made by the tax authority that registered this organization with the tax authority.
An independent field tax audit of a branch or representative office is carried out on the basis of a decision of the tax authority at the location of such a separate subdivision.
The decision to conduct an on-site tax audit must contain the following information:
full and abbreviated names or surname, name, patronymic of the taxpayer;
the subject of verification, that is, taxes, the correctness of the calculation and payment of which is subject to verification;
periods for which the audit is carried out;
positions, surnames and initials of employees of the tax authority who are entrusted with the audit.
The form of the decision of the head (deputy head) of the tax authority to conduct an on-site tax audit is approved federal body executive power, authorized to control and supervise in the field of taxes and fees.
(Clause 2 as amended by Federal Law No. 243-FZ of September 28, 2010)
3. An on-site tax audit in respect of one taxpayer may be carried out for one or several taxes.
4. The subject of an on-site tax audit is the correct calculation and timely payment of taxes.
As part of an on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made, unless otherwise provided by this article, may be audited.
If a taxpayer submits an amended tax return, the period for which the amended tax return is submitted is checked within the framework of the relevant on-site tax audit.
5. Tax authorities are not entitled to conduct two or more field tax audits on the same taxes for the same period.
The tax authorities are not entitled to conduct more than two on-site tax audits in respect of one taxpayer during a calendar year, with the exception of cases when the head of the federal executive body authorized for control and supervision in the field of taxes and fees makes a decision on the need to conduct an on-site tax audit of a taxpayer in excess of the specified restrictions.
When determining the number of on-site tax audits of a taxpayer, the number of independent on-site tax audits of its branches and representative offices is not taken into account.
6. An on-site tax audit cannot last more than two months. This period may be extended up to four months, and in exceptional cases - up to six months.
The grounds for and procedure for extending the period for conducting an on-site tax audit shall be established by the federal executive body authorized to exercise control and supervision in the field of taxes and fees.
7. As part of an on-site tax audit, a tax authority has the right to inspect the activities of branches and representative offices of a taxpayer.
The tax authority has the right to conduct an independent on-site tax audit of branches and representative offices regarding the correctness of the calculation and timeliness of payment of regional and (or) local taxes.
A tax authority conducting an independent on-site audit of branches and representative offices is not entitled to conduct two or more on-site tax audits on the same taxes for the same period in respect of a branch or representative office.
The tax authority is not entitled to conduct more than two field tax audits in relation to one branch or representative office of a taxpayer within one calendar year.
When conducting an independent field tax audit of the branches and representative offices of the taxpayer, the period of the audit may not exceed one month.
8. The term for conducting an on-site tax audit is calculated from the day the decision to appoint an audit is made and until the day a certificate of the audit is drawn up.
9. The head (deputy head) of a tax authority has the right to suspend an on-site tax audit for:
1) requesting documents (information) in accordance with paragraph 1 of Article 93.1 of this Code;
2) obtaining information from foreign government agencies under international treaties Russian Federation;
3) conducting expert examinations;
4) translation into Russian of documents submitted by the taxpayer in a foreign language.
The suspension of an on-site tax audit on the grounds specified in subparagraph 1 of this paragraph is allowed no more than once for each person from whom documents are requested.
Suspension and resumption of an on-site tax audit are documented by the relevant decision of the head (deputy head) of the tax authority conducting the specified audit.
The total period of suspension of an on-site tax audit may not exceed six months. If the audit was suspended on the grounds specified in subparagraph 2 of this paragraph, and within six months the tax authority was unable to obtain the requested information from foreign state bodies in the framework of international treaties of the Russian Federation, the period for suspending the said audit may be extended by three months .
For the period of validity of the period of suspension of an on-site tax audit, the actions of the tax authority to demand documents from the taxpayer are suspended, to which in this case all originals demanded during the audit are returned, with the exception of documents received during the seizure, and the actions of the tax authority in the territory of (in the premises) of the taxpayer related to the specified audit.
10. A repeated on-site tax audit of a taxpayer is recognized as an on-site tax audit conducted regardless of the time of the previous audit for the same taxes and for the same period.
When appointing a repeated field tax audit, the restrictions specified in paragraph 5 of this article shall not apply.
When conducting a repeated on-site tax audit, a period not exceeding three calendar years preceding the year in which a decision was made to conduct a repeated on-site tax audit may be checked.
Resolution of the Constitutional Court of the Russian Federation of March 17, 2009 N 5-P, the provision contained in paragraphs four and five of paragraph 10 of Article 89 of the Tax Code of the Russian Federation, according to which a repeated field tax audit of a taxpayer can be carried out by a higher tax authority in order to control the activities of the tax authority that conducted the initial on-site tax audit is recognized as inconsistent with the Constitution of the Russian Federation to the extent that this provision, in the sense given to it by established law enforcement practice, does not exclude the possibility of a higher tax authority making a decision during a repeated on-site tax audit that entails a change in the rights and obligations of the taxpayer determined not revised and not canceled in the manner prescribed by the procedural law judicial act adopted on a dispute between the same taxpayer and the tax authority that carried out the initial on-site tax audit, and thereby conflicts with the factual circumstances previously established by the court and the evidence available in the case, confirmed by this judicial act.
A repeated field tax audit of a taxpayer may be carried out:
1) by a higher tax authority - in order to control the activities of the tax authority that conducted the audit;
2) by the tax authority that previously conducted the audit, on the basis of the decision of its head (deputy head) - if the taxpayer submits an updated tax return, which indicates the amount of tax in an amount less than previously declared. As part of this repeated field tax audit, the period for which the amended tax return is submitted is checked.
Paragraph seven of clause 10 of Article 89 (as amended by Federal Law No. 137-FZ of July 27, 2006) applies to legal relations arising in connection with the conduct of a repeated field tax audit, if the decision to conduct the initial field tax audit was made after January 1 2007.
If during the repeated on-site tax audit it is revealed that a taxpayer committed a tax offense that was not revealed during the initial on-site tax audit, tax sanctions are not applied to the taxpayer, except in cases where the failure to reveal the fact of a tax offense during the initial tax audit was the result of a conspiracy between taxpayer and official of the tax authority.
11. An on-site tax audit carried out in connection with the reorganization or liquidation of a taxpayer organization may be carried out regardless of the time of the conduct and the subject of the previous audit. At the same time, the period not exceeding three calendar years preceding the year in which the decision to conduct the audit was made is checked.
12. A taxpayer shall be obliged to ensure that officials of tax authorities conducting an on-site tax audit have the opportunity to familiarize themselves with documents related to the calculation and payment of taxes.
When conducting an on-site tax audit, the taxpayer may be required to provide the documents necessary for the audit in the manner prescribed by Article 93 of this Code.
Familiarization of officials of tax authorities with the original documents is allowed only on the territory of the taxpayer, with the exception of cases of an on-site tax audit at the location of the tax authority, as well as cases provided for in Article 94 of this Code.
13. If necessary, authorized officials of tax authorities who carry out an on-site tax audit may conduct an inventory of the taxpayer's property, as well as inspect production, storage, trade and other premises and territories used by the taxpayer to generate income or related to the maintenance of objects of taxation, in accordance with the procedure established by Article 92 of this Code.
14. If the officials conducting the on-site tax audit have sufficient grounds to believe that documents evidencing the commission of offenses may be destroyed, concealed, altered or replaced, these documents shall be seized in the manner prescribed by Article 94 of this Code.
15. On the last day of the on-site tax audit, the inspector must draw up a certificate of the audit, which specifies the subject of the audit and the timing of its conduct, and hand it over to the taxpayer or his representative.
In the event that the taxpayer (his representative) evades receiving a certificate of the inspection carried out, the said certificate shall be sent to the taxpayer by registered mail.
16. Peculiarities of field tax audits in the course of implementation of production sharing agreements are determined by Chapter 26.4 of this Code.
16.1. Peculiarities of field tax audits of residents excluded from unified register residents of the Special Economic Zone in the Kaliningrad Region are determined by Articles 288.1 and 385.1 of this Code.
(Clause 16.1 was introduced by Federal Law No. 84-FZ of May 17, 2007)
17. The rules provided for by this article shall also apply when conducting on-site tax audits of fee payers and tax agents.
Article 90. Participation of a witness
1. Any natural person who may be aware of any circumstances that are important for the implementation of tax control may be called as a witness to testify. The testimony of the witness is recorded in the protocol.
2. They cannot be interrogated as a witness:
1) persons who, due to their minor age, their physical or mental disabilities, are not able to correctly perceive the circumstances that are important for the implementation of tax control;
2) persons who have received information necessary for tax control in connection with the performance of their professional duties, and such information is classified as a professional secret of these persons, in particular a lawyer, an auditor.
(Clause 2 as amended by Federal Law No. 154-FZ of July 9, 1999)
3. An individual has the right to refuse to testify only on the grounds provided for by the legislation of the Russian Federation.
4. Testimony of a witness may be obtained at the place of his stay, if due to illness, old age, disability he is unable to appear at the tax authority, and at the discretion of the official of the tax authority - in other cases.
5. Before taking evidence, an official of a tax authority shall warn the witness of liability for refusal or evasion to testify or for giving knowingly false evidence, which is noted in the protocol, which is certified by the signature of the witness.
Article 91
1. Access to the territory or to the premises of a taxpayer, payer of a levy, tax agent, officials of tax authorities directly conducting a tax audit shall be carried out upon presentation by these persons of service certificates and a decision of the head (his deputy) of the tax authority to conduct an on-site tax audit of this taxpayer, fee payer, tax agent.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
2. Officials of tax authorities directly conducting a tax audit may inspect the documents used for tax purposes. entrepreneurial activity territories or premises of the inspected person or inspection of objects of taxation to determine the conformity of the actual data on these objects with the documentary data provided by the inspected person.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
3. When impeding the access of officials of tax authorities conducting a tax audit to the indicated territories or premises (with the exception of residential premises), the head of the auditing group (team) draws up an act signed by him and the person being audited.
On the basis of such an act, the tax authority, based on the data it has about the person being audited or by analogy, has the right to independently determine the amount of tax payable.
In case of refusal of the verified person to sign the specified act, a corresponding entry is made in it.
(Clause 3 as amended by Federal Law No. 137-FZ of July 27, 2006)
4. No longer valid. - Federal Law of December 30, 2001 N 196-FZ.
5. Access of officials of the tax authorities conducting a tax audit to residential premises in addition to or against the will of those living in them individuals otherwise than in cases established by federal law, or on the basis of a court decision is not allowed.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
Article 92. Inspection
1. An official of a tax authority conducting an on-site tax audit, in order to clarify the circumstances that are important for the completeness of the audit, has the right to inspect the territories, premises of the taxpayer in respect of which the tax audit is being carried out, documents and objects.
2. Inspection of documents and items outside the framework of an on-site tax audit is allowed if the documents and items were received by an official of the tax authority as a result of previously performed actions to implement tax control or with the consent of the owner of these items to conduct their inspection.
3. Inspection is carried out in the presence of attesting witnesses.
During the inspection, the person in respect of whom the tax audit is being carried out, or his representative, as well as specialists, have the right to participate.
4. In necessary cases, during the inspection, photographs, filming, video recording are made, copies are made of documents or other actions are taken.
5. A protocol is drawn up on the inspection.
Article 93
(as amended by Federal Law No. 137-FZ of July 27, 2006)
1. An official of a tax authority conducting a tax audit shall have the right to demand from the audited person the documents necessary for the audit. The requirement to submit documents may be transferred to the head (legal or authorized representative) of the organization or an individual (his legal or authorized representative) personally against receipt or transmitted electronically via telecommunication channels. If it is impossible to transfer the request for the submission of documents by the indicated methods, it is sent by registered mail and is considered received after six days from the date of sending the registered letter.
2. The required documents may be submitted to the tax authority in person or through a representative, sent by registered mail or transmitted electronically via telecommunication channels.
Submission of documents on paper is carried out in the form of copies certified by the person being checked. It is not allowed to require notarization of copies of documents submitted to a tax authority (official), unless otherwise provided by the legislation of the Russian Federation.
If the documents requested from the taxpayer are drawn up in electronic form according to the established formats, the taxpayer has the right to send them to the tax authority in electronic form via telecommunication channels.
The procedure for sending a request to submit documents and the procedure for submitting documents at the request of a tax authority in electronic form via telecommunication channels are established by the federal executive body authorized to exercise control and supervision in the field of taxes and fees.
If necessary, the tax authority has the right to familiarize itself with the original documents.
(Clause 2 as amended by Federal Law No. 229-FZ of July 27, 2010)
3. Documents that were requested in the course of a tax audit shall be submitted within 10 days from the date of receipt of the relevant request.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
If the audited person is not able to submit the requested documents within 10 days, within the day following the day of receipt of the request to submit documents, he shall notify in writing the tax authorities of the tax authorities of the impossibility of submitting documents within the specified time limits, indicating the reasons for which the required documents cannot be submitted within the established time limits, and on the terms during which the person being checked can submit the required documents.
Within two days from the date of receipt of such notification, the head (deputy head) of the tax authority has the right, on the basis of this notification, to extend the deadlines for submitting documents or refuse to extend the deadlines, on which a separate decision is made.
4. Refusal of the audited person to submit the documents requested during a tax audit or failure to submit them within the established time limits shall be recognized as a tax offense and shall entail liability under Article 126 of this Code.
In the event of such a refusal or failure to submit the said documents within the established time limits, the official of the tax authority conducting the tax audit shall seize required documents in the manner prescribed by Article 94 of this Code.
Clause 5 of Article 93 came into force on January 1, 2010 and applies to documents submitted to the tax authorities after January 1, 2010.
5. In the course of a tax audit or other tax control measures, the tax authorities shall not be entitled to demand from the audited person the documents that were previously submitted to the tax authorities during in-house or on-site tax audits of this audited person. This restriction does not apply to cases where the documents were previously submitted to the tax authority in the form of originals, subsequently returned to the person being audited, as well as to cases where the documents submitted to the tax authority were lost due to force majeure.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
Article 93.1. Request for documents (information) about the taxpayer, payer of fees and tax agent or information about specific transactions
1. An official of a tax authority conducting a tax audit has the right to demand from the counterparty or from other persons who have documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited, these documents (information).
Documents (information) related to the activities of the taxpayer (fee payer, tax agent) being audited may also be requested when considering tax audit materials based on the decision of the head (deputy head) of the tax authority when additional tax control measures are prescribed.
2. If, outside the framework of tax audits, the tax authorities have a justified need to obtain information regarding a specific transaction, an official of the tax authority has the right to demand this information from the participants in this transaction or from other persons who have information about this transaction.
3. The tax authority carrying out tax audits or other tax control measures sends an order to request documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited to the tax authority at the place of registration of the person from whom the specified documents should be requested (information).
(as amended by Federal Law No. 229-FZ of July 27, 2010)
At the same time, the order shall indicate during which tax control measure it was necessary to submit documents (information), and when requesting information regarding a specific transaction, information is also indicated that allows identifying this transaction.
4. Within five days from the date of receipt of the order, the tax authority at the place of registration of the person from whom the documents (information) are requested, sends this person a request for the submission of documents (information). To this requirement a copy of the order to request documents (information) is attached. The request for the submission of documents (information) shall be sent subject to the provisions provided for in paragraph 1 of Article 93 of this Code.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
5. A person who has received a request to submit documents (information) shall fulfill it within five days from the date of receipt or, within the same period, report that he does not have the requested documents (information).
If the requested documents (information) cannot be submitted within the specified period, the tax authority, at the request of the person from whom the documents are requested, has the right to extend the deadline for submitting these documents (information).
The provisions of Clause 5 of Article 93.1 (as amended by Federal Law No. 229-FZ of July 27, 2010) apply to documents submitted to the tax authorities after January 1, 2011 (Clause 8 of Article 10 of Federal Law No. 229-FZ of July 27, 2010).
The requested documents shall be submitted taking into account the provisions provided for in paragraphs 2 and 5 of Article 93 of this Code.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
6. A person's refusal to submit the documents requested during a tax audit or failure to submit them within the established time limits shall be recognized as a tax offense and entail liability under Article 129.1 of this Code.
7. The procedure for the interaction of tax authorities in the execution of orders for the reclamation of documents is established by the federal executive body authorized for control and supervision in the field of taxes and fees.
Article 94. Seizure of documents and objects
1. Seizure of documents and items shall be carried out on the basis of a reasoned decision of the official of the tax authority conducting the on-site tax audit.
The specified decision is subject to approval by the head (his deputy) of the relevant tax authority.
2. It is not allowed to seize documents and objects at night.
3. Seizure of documents and objects is carried out in the presence of witnesses and persons from whom documents and objects are seized. In necessary cases, a specialist is invited to participate in the extraction.
Prior to the commencement of the seizure, an official of the tax authority shall present a resolution on the seizure and explain to the persons present their rights and obligations.
4. An official of a tax authority proposes to the person from whom the seizure of documents and objects is being carried out to hand them over voluntarily, and in case of refusal, the seizure is made by force.
If the person from whom the seizure is being carried out refuses to open the premises or other places where the documents and objects subject to seizure may be located, the official of the tax authority has the right to do this independently, avoiding causing unnecessary damage to locks, doors and other objects.
5. Documents and items that are not related to the subject of a tax audit are not subject to seizure.
6. A protocol is drawn up on the seizure, seizure of documents and items in compliance with the requirements provided for in Article 99 of this Code and this Article.
7. The seized documents and items are listed and described in the seizure protocol or in the descriptions attached to it with an exact indication of the name, quantity and individual characteristics of the items, and, if possible, the value of the items.
8. In cases where there are not enough copies of the documents of the audited person to carry out tax control measures and the tax authorities have sufficient grounds to believe that the original documents can be destroyed, hidden, corrected or replaced, the official of the tax authority has the right to seize the original documents in the manner prescribed this article.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
When seizing such documents, copies are made of them, which are certified by an official of the tax authority and transferred to the person from whom they are seized. If it is impossible to make or transfer the made copies simultaneously with the seizure of documents, the tax authority shall transfer them to the person from whom the documents were seized within five days after the seizure.
9. All seized documents and objects are presented to witnesses and other persons participating in the seizure, and, if necessary, are packed at the place of seizure.
The seized documents must be numbered, laced and affixed with the seal or signature of the taxpayer (tax agent, fee payer). In case of refusal of the taxpayer (tax agent, payer of the fee) to affix the seized documents with a seal or signature, a special note is made about this in the record of seizure.
10. A copy of the protocol on the seizure of documents and objects shall be handed over against receipt or sent to the person from whom these documents and objects were seized.
Article 95. Expertise
1. In necessary cases, an expert may be involved on a contractual basis to participate in the implementation of specific actions for the implementation of tax control, including during on-site tax audits.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
Examination is appointed if special knowledge in science, art, technology or craft is required to clarify emerging issues.
2. The questions put to the expert and his conclusion cannot go beyond the expert's special knowledge. Involvement of a person as an expert is carried out on a contractual basis.
3. An expert examination shall be appointed by a resolution of the official of the tax authority carrying out an on-site tax audit, unless otherwise provided by this Code.
(As amended by Federal Law No. 132-FZ of June 7, 2011)
The decision shall indicate the grounds for appointing an expert examination, the name of the expert and the name of the organization in which the expert examination is to be carried out, the questions posed to the expert, and the materials made available to the expert.
4. The expert has the right to get acquainted with the materials of the audit related to the subject of the examination, to make requests for the provision of additional materials to him.
5. An expert may refuse to give an opinion if the materials provided to him are insufficient or if he does not have the necessary knowledge to conduct an examination.
6. An official of a tax authority who has issued a decision on the appointment of an expert examination is obliged to familiarize the person being checked with this decision and explain his rights provided for by paragraph 7 of this article, about which a protocol is drawn up.
7. When appointing and conducting an expert examination, the person being checked has the right to:
1) challenge the expert;
2) to request the appointment of an expert from among the persons indicated by him;
3) submit additional questions to obtain an expert opinion on them;
4) be present, with the permission of an official of the tax authority, during the performance of the expert examination and give explanations to the expert;
5) get acquainted with the expert's opinion.
8. The expert gives an opinion in writing on his own behalf. The expert's conclusion sets out the research conducted by him, the conclusions drawn as a result of their research and reasonable answers to the questions posed. If the expert, during the performance of the examination, establishes circumstances that are relevant to the case, about which he was not asked questions, he has the right to include conclusions about these circumstances in his opinion.
9. The expert's opinion or his report on the impossibility of giving an opinion shall be presented to the person being checked, who has the right to give his explanations and objections, as well as to ask for additional questions to the expert and for the appointment of an additional or repeated examination.
10. An additional expert examination is appointed in case of insufficient clarity or completeness of the conclusion and is entrusted to the same or another expert.
A re-examination is appointed in case of groundlessness of the expert's opinion or doubts about its correctness and is entrusted to another expert.
Additional and repeated examinations are appointed in compliance with the requirements provided for by this article.
Article 96
1. In necessary cases, a specialist with special knowledge and skills, who is not interested in the outcome of the case, may be involved on a contractual basis to participate in carrying out specific actions to implement tax control, including during on-site tax audits.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
2. The engagement of a person as a specialist is carried out on a contractual basis.
3. The participation of a person as a specialist does not exclude the possibility of questioning him as a witness on the same circumstances.
Article 97. Participation of an interpreter
1. In necessary cases, an interpreter may be engaged on a contractual basis to participate in tax control activities.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
2. An interpreter is a person who is not interested in the outcome of the case and who knows the language, knowledge of which is necessary for translation.
This provision also applies to a person who understands the signs of a dumb or deaf natural person.
3. The translator is obliged to appear on the call of the official of the tax authority who appointed him and accurately perform the translation entrusted to him.
4. The translator is warned about the responsibility for refusal or evasion from fulfilling his duties or knowingly false translation, about which a note is made in the protocol, which is certified by the signature of the translator.
Article 98. Participation of attesting witnesses
1. When carrying out actions to exercise tax control in the cases provided for by this Code, witnesses are called.
2. At least two witnesses are summoned.
3. Any individuals who are not interested in the outcome of the case may be called as witnesses.
4. It is not allowed to participate as witnesses of officials of tax authorities.
5. Witnesses are obliged to certify in the protocol the fact, content and results of the actions carried out in their presence. They have the right to make comments on the actions taken, which are subject to inclusion in the protocol.
If necessary, witnesses may be interrogated on the specified circumstances.
Article 99 General requirements presented to the protocol drawn up during the performance of actions to implement tax control
1. In the cases provided for by this Code, protocols are drawn up when carrying out actions to implement tax control. Protocols are drawn up in Russian.
2. The protocol shall indicate:
1) its name;
2) the place and date of the specific action;
3) the time of the beginning and end of the action;
4) position, surname, name, patronymic of the person who drew up the protocol;
5) last name, first name, patronymic of each person who participated in the action or was present during its conduct, and, if necessary, his address, citizenship, information about whether he speaks Russian;
7) facts and circumstances significant for the case revealed during the performance of the action.
3. The protocol is read by all persons who participated in the production of the action or were present during its implementation. These persons have the right to make comments to be included in the protocol or attached to the case.
4. The protocol shall be signed by the official of the tax authority who drew it up, as well as by all the persons who participated in the production of the action or were present during its implementation.
5. Photographs and negatives, films, video recordings and other materials made during the performance of the action shall be attached to the protocol.
Article 100. Registration of the results of a tax audit
(as amended by Federal Law No. 137-FZ of July 27, 2006)
1. Based on the results of an on-site tax audit, within two months from the date of drawing up a certificate of an on-site tax audit carried out by authorized officials of tax authorities, a prescribed form act of tax audit.
In case of detection of violations of the legislation on taxes and fees in the course of an in-house tax audit, the officials of the tax authority conducting the said audit must draw up a tax audit act in the prescribed form within 10 days after the end of the in-house tax audit.
2. The act of a tax audit is signed by the persons who conducted the relevant audit and the person in respect of whom this audit was carried out (his representative).
An appropriate entry shall be made in the tax audit report on the refusal of the person in respect of whom the tax audit was conducted, or of his representative to sign the act.
3. The act of a tax audit shall indicate:
1) the date of the tax audit report. The specified date is understood as the date of signing the act by the persons who carried out this verification;
2) full and abbreviated names or last name, first name, patronymic of the person being checked. In the case of an audit of an organization at the location of its separate subdivision, in addition to the name of the organization, the full and abbreviated names of the inspected separate subdivision and its location are indicated;
3) last names, first names, patronymics of the persons who conducted the audit, their positions, indicating the name of the tax authority they represent;
4) the date and number of the decision of the head (deputy head) of the tax authority to conduct an on-site tax audit (for an on-site tax audit);
5) the date of submission to the tax authority of the tax declaration and other documents (for a desk tax audit);
6) a list of documents submitted by the audited person during the tax audit;
7) the period for which the audit was carried out;
8) the name of the tax in respect of which the tax audit was carried out;
9) start and end dates of the tax audit;
10) the address of the location of the organization or the place of residence of an individual;
11) information about the tax control measures taken during the tax audit;
12) documented facts of violations of the legislation on taxes and fees revealed during the audit, or a record of the absence of such;
13) the conclusions and proposals of the inspectors to eliminate the identified violations and references to the articles of this Code, if this Code provides for liability for these violations of the legislation on taxes and fees.
3.1. Documents confirming the facts of violations of the legislation on taxes and fees, revealed during the audit, are attached to the tax audit act. In this case, the documents received from the person in respect of whom the audit was carried out are not attached to the audit report. Documents containing information not subject to disclosure by the tax authority constituting a banking, tax or other legally protected secret of third parties, as well as personal data of individuals, are attached in the form of extracts certified by the tax authority.
(Clause 3.1 was introduced by Federal Law No. 229-FZ of July 27, 2010)
4. The form and requirements for drawing up a tax audit report are established by the federal executive body authorized to exercise control and supervision in the field of taxes and fees.
5. Within five days from the date of this act, the act of a tax audit must be handed over to the person in respect of whom the audit was carried out, or to his representative against receipt, or handed over in another way, indicating the date of its receipt by the specified person (his representative).
If the person in respect of whom the audit was conducted, or his representative evade receiving the tax audit report, this fact is reflected in the tax audit report, and the tax audit report is sent by registered mail to the location of the organization (separate subdivision) or place of residence physical person. If a tax audit report is sent by registered mail, the date of delivery of this report shall be the sixth day counting from the date of sending the registered letter.
6. The person in respect of whom the tax audit was conducted (his representative), in case of disagreement with the facts set forth in the tax audit report, as well as with the conclusions and proposals of the inspectors, within 15 days from the date of receipt of the tax audit report, has the right to submit to the appropriate tax authority written objections to the said act as a whole or to its separate provisions. At the same time, the taxpayer has the right to attach documents (certified copies thereof) confirming the validity of his objections to the written objections or within the agreed period to transfer to the tax authority.
Article 100.1. The procedure for considering cases of tax offenses
(Introduced by Federal Law No. 137-FZ of July 27, 2006)
1. Cases of tax offenses revealed in the course of a desk or field tax audit are considered in the manner prescribed by Article 101 of this Code.
2. Cases of tax offenses revealed in the course of other measures of tax control (with the exception of offenses provided for by Articles 120, 122 and 123 of this Code) are considered in the manner prescribed by Article 101.4 of this Code.
Article 101
(as amended by Federal Law No. 137-FZ of July 27, 2006)
1. The act of a tax audit, other materials of a tax audit and additional tax control measures, during which violations of the legislation on taxes and fees were revealed, as well as written objections submitted by the audited person (his representative) to the specified act must be considered by the head (deputy head) the tax authority that conducted the tax audit, and a decision on them must be made within 10 days from the date of expiration of the period specified in paragraph 6 of Article 100 of this Code. This period may be extended, but not more than one month.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
2. The head (deputy head) of the tax authority shall notify the person in respect of whom this audit was conducted of the time and place of consideration of the tax audit materials.
A person in respect of whom a tax audit has been conducted has the right to participate in the process of consideration of the materials of the specified audit personally and (or) through his representative. The person in respect of whom a tax audit was conducted has the right to familiarize himself with all the materials of the case, including the materials of additional tax control measures, before the decision provided for in paragraph 7 of this article is made.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
The absence of the person in respect of whom the tax audit was conducted (his representative), duly notified of the time and place of consideration of the tax audit materials, is not an obstacle to the consideration of the tax audit materials, except in cases where the participation of this person is recognized by the head (deputy head ) the tax authority is obligatory to consider these materials.
3. Before considering the materials of a tax audit on the merits, the head (deputy head) of the tax authority must:
1) announce who is reviewing the case and the materials of which tax audit are subject to review;
2) establish the fact of the appearance of the persons invited to participate in the consideration. If these persons fail to appear, the head (deputy head) of the tax authority finds out whether the participants in the proceedings have been notified in accordance with the established procedure, and makes a decision to consider the tax audit materials in the absence of these persons or to postpone the said consideration;
3) in case of participation of a representative of the person in respect of whom the tax audit was conducted, check the authority of this representative;
4) explain to the persons participating in the review procedure their rights and obligations;
5) make a decision to postpone consideration of tax audit materials in case of non-appearance of the person whose participation is necessary for consideration.
4. When examining the materials of a tax audit, the act of the tax audit, and, if necessary, other materials of tax control measures, as well as written objections of the person in respect of whom the audit was carried out, may be announced. The absence of written objections does not deprive this person (his representative) of the right to give his explanations at the stage of consideration of tax audit materials.
When considering the materials of a tax audit, the submitted evidence is examined, including documents previously requested from the person in respect of whom the tax audit was carried out, documents submitted to the tax authorities during cameral or on-site tax audits of this person, and other documents available to the tax authority . It is not allowed to use evidence obtained in violation of this Code. If documents (information) on the activities of the taxpayer were submitted by the taxpayer to the tax authority in violation of the deadlines established by this Code, then the documents (information) received by the tax authority will not be considered received in violation of this Code. During the consideration, a decision may be made to involve, if necessary, a witness, expert, specialist in this consideration.
(as amended by Federal Law No. 224-FZ of November 26, 2008)
5. In the course of consideration of tax audit materials, the head (deputy head) of the tax authority:
1) establishes whether the person in respect of whom the tax audit act was drawn up committed a violation of the legislation on taxes and fees;
2) establishes whether the revealed violations constitute the elements of a tax offence;
3) establishes whether there are grounds for holding a person liable for committing a tax offence;
4) reveals circumstances excluding the guilt of a person in committing a tax offense, or circumstances mitigating or aggravating responsibility for committing a tax offense.
6. If it is necessary to obtain additional evidence to confirm the fact of violations of the legislation on taxes and fees or the absence of such violations, the head (deputy head) of the tax authority has the right to make a decision to carry out additional tax control measures within a period not exceeding one month.
The decision on appointment of additional measures of tax control shall set out the circumstances that necessitated the implementation of such additional measures, indicate the period and specific form of their implementation.
As additional measures of tax control, documents may be requested in accordance with Articles 93 and 93.1 of this Code, interrogation of a witness, and examination.
7. Based on the results of consideration of the tax audit materials, the head (deputy head) of the tax authority makes a decision:
1) on bringing to responsibility for committing a tax offense;
2) on refusal to call to account for committing a tax offense.
8. The decision to hold accountable for committing a tax offense shall set out the circumstances of the tax offense committed by the person called to account as they were established by the conducted audit, with reference to documents and other information confirming the said circumstances, arguments given by the person in respect of which the audit was carried out. verification, in its defense, and the results of verification of these arguments, the decision to bring the taxpayer to tax liability for specific tax offenses, indicating the articles of this Code that provide for these offenses, and the applicable liability measures. The decision on holding liable for committing a tax offense shall indicate the amount of the identified arrears and the corresponding penalties, as well as the fine to be paid.
The decision to refuse to call to account for the commission of a tax offense sets out the circumstances that served as the basis for such a refusal. The decision to refuse to call to account for tax offenses may indicate the amount of the arrears, if this arrears were revealed during the audit, and the amount of the corresponding penalties.
In the decision to hold liable for committing a tax offense or in the decision to refuse to hold liable for committing a tax offense, the period during which the person in respect of whom the decision was made has the right to appeal against the said decision, the procedure for appealing the decision to a higher tax authority ( superior official), as well as the name of the body, its location, and other necessary information.
9. The decision to call to account for committing a tax offense and the decision to refuse to call to account for committing a tax offense shall enter into force upon the expiration of 10 days from the date of delivery to the person (his representative), in respect of whom the corresponding decision was made. In this case, the relevant decision must be served within five days after the date of its issuance. If it is impossible to deliver the decision, it shall be sent to the taxpayer by registered mail and shall be considered received after six days from the date of sending the registered letter.
(as amended by Federal Laws No. 224-FZ of November 26, 2008, No. 229-FZ of July 27, 2010)
If an appeal is filed against a decision of a tax authority in the manner prescribed by Article 101.2 of this Code, the said decision shall enter into force from the date of its approval by a higher tax authority in full or in part.
The person in respect of whom the corresponding decision has been made has the right to execute the decision in full or in part before its entry into force. At the same time, the filing of an appeal does not deprive this person of the right to execute the decision that has not entered into force in full or in part.
10. After a decision is made to hold accountable for committing a tax offense or a decision to refuse to hold liable for committing a tax offense, the head (deputy head) of the tax authority has the right to take interim measures aimed at ensuring the possibility of enforcement of the said decision, if there are sufficient grounds to believe that failure to take these measures may make it difficult or impossible in the future to enforce such a decision and (or) collect arrears, penalties and fines specified in the decision. In order to take interim measures, the head (deputy head) of the tax authority issues a decision that enters into force from the date of its issuance and is valid until the day of execution of the decision to hold liable for committing a tax offense or the decision to refuse to hold liable for committing a tax offense or until the day cancellation of the decision by a higher tax authority or court.
The head (deputy head) of the tax authority has the right to make a decision to cancel interim measures or a decision to replace interim measures in the cases provided for by this paragraph and paragraph 11 of this article. The decision to cancel (replace) interim measures shall enter into force from the date of its adoption.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
Security measures may include:
1) a ban on the alienation (mortgage) of the taxpayer's property without the consent of the tax authority. The prohibition on alienation (mortgaging) provided for by this subparagraph is made sequentially in relation to:
real estate, including those not involved in the production of products (works, services);
Vehicle, valuable papers, office space design items;
other property, except finished products, raw materials and materials;
finished products, raw materials and materials.
At the same time, the prohibition on the alienation (mortgaging) of the property of each subsequent group is applied if the total value of the property from the previous groups, determined according to accounting data, is less than the total amount of arrears, penalties and fines payable on the basis of a decision to hold liable. for committing a tax offense or a decision to refuse to hold liable for committing a tax offense;
2) suspension of operations on bank accounts in the manner prescribed by Article 76 of this Code.
Suspension of operations on bank accounts in the manner of taking interim measures may be applied only after a ban on the alienation (mortgage) of property has been imposed and if the total value of such property, according to accounting data, is less than the total amount of arrears, penalties and fines payable on on the basis of a decision to hold liable for committing a tax offense or a decision to refuse to hold liable for committing a tax offense.
Suspension of operations on bank accounts is allowed in relation to the difference between the total amount arrears, penalties and fines specified in the decision to hold liable for committing a tax offense or the decision to refuse to hold liable for committing a tax offense, and the value of property that is not subject to alienation (mortgaging) in accordance with subparagraph 1 of this paragraph.
11. At the request of the person in respect of whom a decision was made to take interim measures, the tax authority has the right to replace the interim measures provided for in paragraph 10 of this article with:
1) a bank guarantee confirming that the bank undertakes to pay the amount of arrears specified in the decision to hold liable for committing a tax offense or the decision to refuse to hold liable for committing a tax offense, as well as the amounts of relevant penalties and fines in case of non-payment of these amounts by the principal within the period established by the tax authority;
2) a pledge of securities circulating on an organized securities market, or a pledge of other property, executed in the manner prescribed by Article 73 of this Code;
3) a guarantee of a third party, drawn up in the manner prescribed by Article 74 of this Code.
12. When a taxpayer submits a valid bank guarantee of a bank included in the list of banks responsible for requirements for acceptance bank guarantees for the purposes of taxation, provided for in paragraph 4 of Article 176.1 of this Code, the tax authority is not entitled to refuse the taxpayer to replace the interim measures provided for in this paragraph.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
13. A copy of the decision on the adoption of interim measures and a copy of the decision on the abolition of interim measures within five days after the date of its issuance shall be handed over to the person in respect of whom the said decision has been made, or to his representative against receipt or transferred in another way, indicating the date of receipt by the taxpayer of the relevant decision .
(as amended by Federal Law No. 229-FZ of July 27, 2010)
If a copy of the decision is sent by registered mail, the decision shall be deemed received after six days from the date of sending the registered letter.
(paragraph introduced by Federal Law No. 229-FZ of July 27, 2010)
14. Non-compliance by officials of tax authorities with the requirements established by this Code may be the basis for the cancellation of the decision of the tax authority by a higher tax authority or court.
Violation of the essential conditions of the procedure for considering tax audit materials is the basis for the cancellation by a higher tax authority or court of a decision of a tax authority to hold liable for a tax offense or a decision to refuse to hold liable for a tax offense. To such essential conditions includes ensuring the possibility of the person in respect of whom the audit was carried out to participate in the process of consideration of the tax audit materials personally and (or) through his representative and ensuring the possibility of the taxpayer to provide explanations.
The grounds for the cancellation of the said decision of the tax authority by a higher tax authority or court may be other violations of the procedure for considering tax audit materials, if only such violations led or could lead to the adoption of an unlawful decision by the head (deputy head) of the tax authority.
15. For violations identified by the tax authority, for which individuals or officials of organizations are subject to administrative liability, the authorized official of the tax authority who conducted the audit draws up a protocol on administrative offense within its competence. Consideration of cases of these offenses and the application of administrative penalties against individuals and officials of organizations guilty of their commission are carried out in accordance with the legislation on administrative offenses.
15.1. If the tax authority that made the decision to hold the taxpayer (payer of fees, tax agent) - an individual liable for committing a tax offense, sent materials to the investigating authorities in accordance with paragraph 3 of Article 32 of this Code, then no later than the day following after the date of sending the materials, the head (deputy head) of the tax authority is obliged to make a decision to suspend the execution of the decisions made in respect of this individual on bringing to responsibility for committing a tax offense and the decision to collect the relevant tax (fee), penalties, fines.
At the same time, the period of collection provided for by this Code shall be suspended for the period of suspension of the execution of the decision on the collection of the relevant tax (fee), penalties, fines.
If, based on the results of consideration of the materials, a decision is made to refuse to initiate a criminal case or a decision to terminate the criminal case, as well as if an acquittal is issued in the relevant criminal case, the head (deputy head) of the tax authority no later than the day following the day upon receipt of notification of these facts from the investigating authorities, makes a decision on the resumption of the execution of the decision taken in relation to this individual on bringing to responsibility for committing a tax offense and the decision on the collection of the relevant tax (fee), penalties, fines.
(as amended by Federal Law No. 404-FZ of December 28, 2010)
If the action (inaction) of a taxpayer (fee payer, tax agent) - an individual, which served as the basis for bringing him to responsibility for committing a tax offense, became the basis for issuing a guilty verdict against this individual, the tax authority cancels the decision in part of holding a taxpayer (fee payer, tax agent) - an individual, liable for committing a tax offense.
Investigative authorities that have received materials from the tax authorities in accordance with paragraph 3 of Article 32 of this Code are obliged to send notifications to the tax authorities on the results of consideration of these materials no later than the day following the day the relevant decision was made.
(as amended by Federal Law No. 404-FZ of December 28, 2010)
Copies of the decisions of the tax authority referred to in this paragraph, within five days after the day the relevant decision was made, shall be handed over by the tax authority to the person in respect of whom the corresponding decision was made, or to his representative against receipt, or transferred in another way, indicating the date of their receipt. If a copy of the decision of the tax authority is sent by registered mail, the date of its receipt shall be considered the sixth day from the date of sending.
(Clause 15.1 was introduced by Federal Law No. 383-FZ of December 29, 2009)
16. The provisions established by this article also apply to payers of fees and tax agents.
Article 101.1. No longer valid on January 1, 2007. - Federal Law of July 27, 2006 N 137-FZ.
Article 101.2. The procedure for appealing the decision of a tax authority to hold liable for a tax offense or a decision to refuse to hold liable for a tax offense
(Introduced by Federal Law No. 137-FZ of July 27, 2006)
1. A decision to call to account for committing a tax offense or a decision to refuse to call to account for committing a tax offense may be appealed to a higher tax authority in the manner determined by this article.
The procedure, terms for considering a complaint by a higher tax authority and making a decision on it are determined in the manner prescribed by Articles 139 - 141 of this Code, subject to the provisions established by this Article.
2. A decision to call to account for committing a tax offense or a decision to refuse to call to account for committing a tax offense that has not entered into force may be appealed in the appellate procedure by filing an appeal.
If the higher tax authority considering the appeal does not cancel the decision of the lower tax authority, the decision of the lower tax authority shall enter into force from the date of its approval by the higher tax authority.
If the higher tax authority considering the appeal changes the decision of the lower tax authority, the decision of the lower tax authority, taking into account the changes made, enters into force from the date of adoption of the relevant decision by the higher tax authority.
3. A decision that has entered into force on calling to account for committing a tax offense or a decision to refuse to hold liable for committing a tax offense that has not been appealed on appeal may be appealed to a higher tax authority.
4. At the request of the person appealing against the decision of the tax authority, the higher tax authority shall have the right to suspend the execution of the appealed decision.
5. The decision to hold liable for committing a tax offense or the decision to refuse to hold liable for committing a tax offense may be appealed to the judicial order only after appealing this decision to a higher tax authority. If such a decision is appealed in court, the term for applying to the court is calculated from the day when the person in respect of whom this decision was made became aware of its entry into force.
Article 101.3. Enforcement of a decision of a tax authority to hold liable for a tax offense or a decision to refuse to hold liable for a tax offense
(Introduced by Federal Law No. 137-FZ of July 27, 2006)
1. A decision to call to account for committing a tax offense or a decision to refuse to call to account for committing a tax offense shall be enforceable from the date of its entry into force.
2. Enforcement of the relevant decision shall be entrusted to the tax authority that issued this decision. If the complaint is considered by a higher tax authority on appeal, the relevant decision that has entered into force is sent to the tax authority that issued the initial decision within three days from the date the relevant decision comes into force.
3. On the basis of a decision that has entered into force, a person in respect of whom a decision has been made to hold accountable for committing a tax offense or a decision to refuse to hold accountable for committing a tax offense shall be sent, in accordance with the procedure established by Article 69 of this Code, a demand to pay a tax (fee ), relevant penalties, as well as a fine if this person is held liable for tax offense.
Article 101.4. Proceedings on the case of tax offenses provided for by this Code
(Introduced by Federal Law No. 137-FZ of July 27, 2006)
1. Upon discovery of facts indicating violations of the legislation on taxes and fees, liability for which is established by this Code (with the exception of tax offenses, cases of detection of which are considered in the manner established by Article 101 of this Code), by an official of the tax authority within 10 days from the date of detection of the specified violation, an act must be drawn up in the prescribed form, signed by this official and the person who committed such a violation. The refusal of a person who has committed a violation of the legislation on taxes and fees to sign an act shall be recorded in this act.
(Clause 1 as amended by Federal Law No. 229-FZ of July 27, 2010)
2. The act must contain documented facts of violation of the legislation on taxes and fees, as well as the conclusions and proposals of the official who discovered the facts of violation of the legislation on taxes and fees, to eliminate the identified violations and apply tax sanctions.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
3. The form of the act and the requirements for its preparation are established by the federal executive body authorized for control and supervision in the field of taxes and fees.
4. The act is handed over to the person who has committed a tax offense against receipt or is transferred in another way, indicating the date of its receipt. If the said person evades receiving the said act, the official of the tax authority shall make an appropriate note in the act and the act shall be sent to this person by registered mail. If the said act is sent by registered mail, the date of delivery of this act shall be the sixth day from the date of its dispatch.
5. A person who has committed a tax offense has the right, in case of disagreement with the facts set forth in the act, as well as with the conclusions and proposals of the official who discovered the fact of a tax offense, within 10 days from the date of receipt of the act, to submit written objections to the relevant tax authority on the act. in general or in its individual provisions. At the same time, the specified person has the right to attach documents (certified copies thereof) confirming the validity of the objections to the written objections or within the agreed period to transfer to the tax authority.
6. After the expiration of the period specified in paragraph 5 of this article, within 10 days, the head (deputy head) of the tax authority considers the act, which records the facts of violation of the legislation on taxes and fees, as well as documents and materials submitted by the person who committed the tax offense .
7. The act is considered in the presence of the person called to account or his representative. The tax authority shall notify the person who has committed a violation of the legislation on taxes and fees in advance of the time and place of consideration of the act. The absence of a duly notified person who is called to account for committing a tax offense or his representative does not deprive the head (deputy head) of the tax authority of the opportunity to consider the act in the absence of this person.
When considering the act, the drawn up act, other materials of tax control measures, as well as written objections of the person held liable for committing a tax offense may be announced. The absence of written objections does not deprive this person of the right to give his explanations at the stage of consideration of the act.
When considering the act, explanations of the person held liable are heard, other evidence is examined. It is not allowed to use evidence obtained in violation of this Code. If the documents (information) were submitted by the person held liable to the tax authority in violation of the deadlines established by this Code, then the documents (information) received will not be considered received in violation of this Code.
(as amended by Federal Law No. 224-FZ of November 26, 2008)
In the course of consideration of the act and other materials of tax control measures, a decision may be made to involve, if necessary, a witness, expert, specialist in this consideration.
During the consideration of the act and other materials, the head (deputy head) of the tax authority:
1) establishes whether the person in respect of whom the act was drawn up allowed violations of the legislation on taxes and fees;
2) establishes whether the revealed violations form the composition of the tax offenses contained in this Code;
3) establishes whether there are grounds for bringing the person in respect of whom the act was drawn up to liability for committing a tax offence;
4) reveals circumstances excluding the guilt of a person in committing a tax offense, or circumstances mitigating or aggravating responsibility for committing a tax offense.
8. Based on the results of consideration of the act and the documents and materials attached to it, the head (deputy head) of the tax authority shall make a decision within the period provided for in paragraph 6 of this article:
(as amended by Federal Law No. 229-FZ of July 27, 2010)
1) on holding a person liable for a tax offence;
2) on refusal to hold a person liable for a tax offence.
9. The decision to hold a person accountable for violating the legislation on taxes and fees sets out the circumstances of the committed offense, indicates the documents and other information that confirm these circumstances, the arguments given by the person held liable in his defense, and the results of verification of these arguments , a decision to hold a person accountable for specific tax offenses, indicating the articles of this Code that provide for liability for these offenses, and the applicable liability measures.
The decision to hold liable for committing a tax offense shall indicate the period during which the person in respect of whom the said decision has been made has the right to appeal against this decision, the procedure for appealing the decision to a higher tax authority (superior official), and also indicate the name of the body, place its location, other necessary information.
10. On the basis of the decision made to hold a person accountable for violating the legislation on taxes and fees, this person shall be sent a demand for payment of penalties and a fine in the manner established by Article 69 of this Code and within the time limits established by paragraph 2 of Article 70 of this Code.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
11. A copy of the decision of the head of the tax authority and the demand for the payment of penalties and fines shall be handed over to the person who has committed a tax offense against receipt or transferred in another way, indicating the date of their receipt by this person (his representative). If the person held liable or his representatives evade receiving copies of the said decision and demand, these documents shall be sent by registered mail and shall be deemed received six days after the date of their sending by registered mail.
12. Failure by officials of tax authorities to comply with the requirements established by this Code may be the basis for the cancellation of the decision of the tax authority by a higher tax authority or court.
Violation of the essential conditions of the procedure for considering the act and other materials of tax control measures is the basis for the cancellation of the decision of the tax authority by a higher tax authority or court. Such essential conditions include ensuring the possibility of the person in respect of whom the act was drawn up to participate in the process of consideration of the materials personally and (or) through his representative and ensuring the possibility of this person to provide explanations.
The grounds for the cancellation of the decision of the tax authority by a higher tax authority or court may be other violations of the procedure for considering materials, if only such violations led or could lead to the adoption of an incorrect decision.
13. According to the violations of the legislation on taxes and fees identified by the tax authority, for which persons are subject to administrative liability, an authorized official of the tax authority draws up a protocol on an administrative offense. The consideration of cases of these offenses and the application of administrative sanctions against persons guilty of their commission are carried out by the tax authorities in accordance with the legislation of the Russian Federation on administrative offenses.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
Article 102. Tax secrecy
In accordance with Federal Law No. 162-FZ of June 27, 2011, from January 1, 2013, paragraph 1 of Article 102 will be supplemented by subparagraph 6 of the following content:
"6) provided to the State information system on state and municipal payments, provided for by the Federal Law of July 27, 2010 N 210-FZ "On the organization of the provision of state and municipal services."
1. Any information about a taxpayer received by a tax authority, internal affairs authorities, investigating authorities, an authority of the state off-budget fund and a customs authority shall constitute a tax secret, except for the information:
1) disclosed by the taxpayer independently or with his consent;
2) taxpayer identification number;
3) excluded. - Federal Law of 09.07.1999 N 154-FZ;
3) on violations of the legislation on taxes and fees and measures of responsibility for these violations;
(As amended by Federal Law No. 154-FZ of July 9, 1999)
4) provided to the tax (customs) or law enforcement authorities of other states in accordance with international treaties (agreements), to which the Russian Federation is a party, on mutual cooperation between tax (customs) or law enforcement authorities (in terms of information provided to these authorities);
(As amended by Federal Law No. 154-FZ of July 9, 1999)
5) provided to election commissions in accordance with the legislation on elections based on the results of inspections by the tax authority of information on the amount and sources of income of the candidate and his spouse, as well as on property owned by the candidate and his spouse by right of ownership.
(Item 5 was introduced by Federal Law No. 64-FZ of April 26, 2007)
2. Tax secrets are not subject to disclosure by tax authorities, internal affairs authorities, investigative authorities, authorities of state off-budget funds and customs authorities, their officials and involved specialists, experts, except for cases provided for by federal law.
(as amended by Federal Laws No. 154-FZ of 09.07.1999, No. 13-FZ of 02.01.2000, No. 86-FZ of 30.06.2003, No. 404-FZ of 28.12.2010)
The disclosure of a tax secret includes, in particular, the use or transfer to another person of the production or commercial secret of a taxpayer that has become known to an official of a tax authority, an internal affairs authority, an investigating authority, an authority of a state extra-budgetary fund or a customs authority, a specialist or expert involved in the performance of their duties. responsibilities.
(as amended by Federal Laws No. 86-FZ of 30.06.2003, No. 404-FZ of 28.12.2010)
3. Information constituting a tax secret received by tax authorities, internal affairs authorities, investigative authorities, authorities of state off-budget funds or customs authorities shall have a special regime of storage and access.
(as amended by Federal Laws No. 154-FZ of 09.07.1999, No. 13-FZ of 02.01.2000, No. 86-FZ of 30.06.2003, No. 404-FZ of 28.12.2010)
Access to information constituting a tax secret is granted to officials designated by the federal executive body authorized for control and supervision in the field of taxes and fees, the federal executive body authorized in the field of internal affairs, the federal state body exercising powers in the field of criminal legal proceedings, the federal executive body authorized in the field of customs affairs.
(as amended by Federal Laws No. 58-FZ of 29.06.2004, No. 103-FZ of 26.06.2008, No. 404-FZ of 28.12.2010)
4. Loss of documents containing information constituting a tax secret, or disclosure of such information shall entail liability under federal laws.
Article 103
1. When conducting tax control, it is not allowed to cause unlawful harm to the persons being checked, their representatives or property in their possession, use or disposal.
2. Losses caused by unlawful actions of tax authorities or their officials in the course of tax control are subject to compensation in full, including lost profits (lost income).
3. For the infliction of losses on the audited persons, their representatives as a result of committing unlawful actions, tax authorities and their officials shall bear liability as provided for by federal laws.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 137-FZ of July 27, 2006)
4. Losses caused to the audited persons, their representatives by lawful actions of officials of tax authorities shall not be subject to compensation, except for the cases provided for by federal laws.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 137-FZ of July 27, 2006)
Article 103.1. No longer valid on January 1, 2007. - Federal Law of July 27, 2006 N 137-FZ.
Article 104. Application for collection of a tax sanction
1. After a decision is made to hold an individual who is not an individual entrepreneur liable for committing a tax offense, or in other cases when an out-of-court procedure for collecting tax sanctions is not allowed, the relevant tax authority applies to the court to recover from this person involved to liability for committing a tax offense, a tax sanction established by this Code.
(as amended by Federal Laws No. 137-FZ of 27.07.2006, No. 324-FZ of 29.11.2010)
Before applying to the court, the tax authority is obliged to offer the person held liable for committing a tax offense to voluntarily pay the appropriate amount of the tax sanction.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 137-FZ of July 27, 2006)
If a person held liable for committing a tax offense refused to voluntarily pay the amount of a tax sanction or missed the payment deadline specified in the demand, the tax authority applies to the court with an application to recover from this person a tax sanction established by this Code for committing this tax offense.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 137-FZ of July 27, 2006, No. 324-FZ of November 29, 2010)
2. Application for the recovery of a tax sanction from an organization or individual entrepreneur is filed with an arbitration court, and from an individual who is not an individual entrepreneur - to a court of general jurisdiction.
(as amended by Federal Law No. 324-FZ of November 29, 2010)
The application shall be accompanied by the decision of the tax authority and other case materials obtained in the course of the tax audit.
(as amended by Federal Law No. 324-FZ of November 29, 2010)
3. In necessary cases, simultaneously with the filing of an application for the recovery of a tax sanction from a person called to account for committing a tax offense, a tax authority may send a petition to the court to secure a claim in the manner prescribed by the civil procedural legislation of the Russian Federation and the arbitration procedural legislation of the Russian Federation.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 324-FZ of November 29, 2010)
4. The rules of this article shall also apply in the event of prosecution for violation of the legislation on taxes and fees committed in connection with the movement of goods across the customs border of the Customs Union.
(Clause 4 was introduced by Federal Law No. 154-FZ of July 9, 1999, as amended by Federal Law No. 137-FZ of July 27, 2006, and No. 306-FZ of November 27, 2010)
Article 105
1. Cases on the recovery of tax sanctions at the request of the tax authorities to organizations and individual entrepreneurs are considered arbitration courts in accordance with the arbitration procedural legislation of the Russian Federation.
(as amended by Federal Law No. 324-FZ of November 29, 2010)
2. Cases on the recovery of tax sanctions at the request of tax authorities against individuals who are not individual entrepreneurs are considered by courts of general jurisdiction in accordance with the civil procedural legislation of the Russian Federation.
(as amended by Federal Law No. 324-FZ of November 29, 2010)
3. Enforcement of court decisions that have entered into legal force on the recovery of tax sanctions is carried out in the manner prescribed by the legislation of the Russian Federation on enforcement proceedings.
(as amended by Federal Law No. 229-FZ of July 27, 2010)
Enforcement of court decisions that have entered into legal force on the collection of tax sanctions from organizations for which personal accounts are opened is carried out in the manner established by the budgetary legislation of the Russian Federation.
(paragraph introduced by Federal Law No. 137-FZ of July 27, 2006)
Can they come with a check to an apartment / house to an individual? They can either with the consent of an individual, or with a court order (letter of the Ministry of Finance dated August 31, 2017 No. 03-02-08 / 5597).
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There are 2 main types of tax audits - cameral and field. A desk audit is carried out in respect of each declaration (calculation) submitted by the taxpayer or tax agent at the location of the tax authority (clause 1, article 88 of the Tax Code of the Russian Federation). As part of it, the tax authorities check the compliance of the indicators inside the declaration, and also compare them with the values of your statements for previous periods in order to track significant deviations.
By general rule desk audit lasts 3 months from the day following the day of submission tax reporting in the IFTS (clause 2, article 88 of the Tax Code of the Russian Federation). Moreover, this period cannot be extended or postponed. It is during these 3 months that the tax authorities have the right to require the taxpayer to submit additional documents related to the audit (Letter of the Ministry of Finance of the Russian Federation dated February 18, 2009 N 03-02-07 / 1-75).
An on-site audit is a more complex event that involves checking a large number of documents on the tax being checked on the territory of the taxpayer or tax authority (clauses 1,3,4 of article 89 of the Tax Code of the Russian Federation). Further we will talk about her.
The maximum period of a tax audit (onsite) is 3 calendar years preceding the year in which the decision to conduct it was made (clause 4, article 89 of the Tax Code of the Russian Federation). That is, when making a decision in 2017, the tax authorities can check the period within the framework of 2014-2016. And for what period can the tax authority request documents? Controllers can request any documents directly related to the period being checked and, of course, the tax being checked (clause 12, article 89, clause 1, article 93 of the Tax Code of the Russian Federation). That is, the period of "reclamation" of documents is determined by the period of verification.
The on-site inspection itself can last for 2 months, and if self verification tax authorities of a branch or representative office of an organization - 1 month (clauses 6.7 of article 89 of the Tax Code of the Russian Federation). The specified periods are counted from the date of the decision to conduct an inspection (clause 8, article 89 of the Tax Code of the Russian Federation). In this case, an on-site inspection can:
In accordance with the Tax Code of the Russian Federation, documents of accounting and tax accounting, as well as the primary organization and individual entrepreneurs must be kept for 4 years from the date of termination tax period, in which the document was last used in tax calculation or reporting (
Companies often have disputes with tax authorities about the periods that the latter are entitled to check as part of an on-site tax audit. Based on judicial practice and clarifications of officials, we will consider in which cases companies have a chance to defend their case, and in which they do not.
An on-site tax audit is carried out on the basis of the decision of the head (deputy head) of the tax authority (clause 1, article 89 of the Tax Code of the Russian Federation). Within its framework, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made (clause 4, article 89 of the Tax Code of the Russian Federation) can be checked.
In practice, there are situations when several months pass between the decision to conduct an inspection and the inspection itself, and it takes place as early as next year. In such cases, some companies consider that the three-year period should be based on the year in which the audit is actually carried out. But the courts do not support them.
Thus, the Arbitration Court of the Urals District, in its decision of July 17, 2017 in case No. A60-47352/2016, considered the following situation. In 2016, the company underwent an on-site tax audit, during which the tax authorities audited the periods from April 2012 to December 2014 inclusive. The company believed that since the audit was conducted in 2016, the tax authority had the right to audit 2015, 2014 and 2013. And the inclusion in the audit of 2012 is contrary to the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation.
The court ruled that the company's arguments were erroneous. He noted that in accordance with paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the three-year period is counted from the year in which the decision to conduct an audit was made, and not from the year in which it was actually carried out. The decision to conduct an on-site tax audit was made by the head of the inspectorate on June 30, 2015. So, based on the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authority could audit the period from 2012 to 2014, and the controllers did not go beyond the three-year limit of the audit period.
Another example is a dispute considered by the Arbitration Court of the West Siberian District in a decision dated December 25, 2018 in case No. A75-918 / 2017. The tax authority decided to conduct an on-site tax audit on December 28, 2015, which actually took place in 2016. The court found it lawful for the inspectorate to conduct an audit for 2012, 2013 and 2014.
Please note: in such cases, the earliest year covered by the tax audit is beyond three years. limitation period(Article 196 of the Civil Code of the Russian Federation). In this regard, some companies believe that the tax authorities are not entitled to charge additional tax. For example, the Federal Antimonopoly Service of the Volga District, in its decision dated March 19, 2013 in case No. А06-3630/2012, considered the situation when the decision to conduct an on-site audit was made by the tax inspectorate on December 26, 2011, and the audit itself took place already in 2012. Within its framework the period from January 1, 2008 to December 31, 2010 was audited. The Company attempted to challenge the additional tax assessment for 2008 due to the expiration of the limitation period. But the court rejected this argument. He pointed out that the additional accrual was made lawfully, since, according to paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, as part of an on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made can be audited. At the same time, the arbitrators noted that the company was not reasonably fined for non-payment of tax in 2008, since the statute of limitations for imposing tax liability had expired. Recall that according to paragraph 1 of Art. 113 of the Tax Code of the Russian Federation, a person cannot be held liable for a tax offense if three year (statute of limitations).
In paragraph 4 of Art. 89 of the Tax Code of the Russian Federation states that when a taxpayer submits an amended tax return, the period for which the amended tax return is filed is checked as part of the relevant on-site tax audit.
Explaining the procedure for applying this rule, the Federal Tax Service of Russia in letters dated July 25, 2013 No. AC-4-2 / [email protected] and dated May 29, 2012 No. AC-4-2/8792 indicated that:
1) the norm is an exception to general rule about the period that can be covered by an on-site inspection;
2) the norm is applied if the taxpayer submits an amended tax return for a period exceeding three calendar years preceding the year in which such a declaration is submitted;
3) the norm gives the tax authority the right to conduct an on-site audit for the period for which an updated tax return is submitted;
4) the specified on-site tax audit may be conducted if the relevant period was not previously covered by an on-site tax audit;
5) the moment of submission of the amended tax return (during the on-site tax audit, before it, after it) does not matter for the application of the norm.
And in a letter dated 03.09.2010 No. AC-37-2 / [email protected] specialists of the Federal Tax Service of Russia noted that in the case of filing an amended tax return, the period for which it is submitted is checked, including if the specified period is outside the three calendar years preceding the year in which the decision to conduct an audit was made.
Thus, when submitting an updated declaration, tax authorities can check the period that goes beyond the three-year limit. The courts confirm this.
In the dispute considered in the decision of the Arbitration Court of the North Caucasus District dated August 13, 2014 in case No. A53-11519 / 2013, the tax inspectorate in 2012 conducted an on-site tax audit for 2009 and 2010. At the same time, in the course of monitoring the correctness of the calculation and payment of income tax for 2009, the tax authority examined, among other things, revised income tax returns for 2008 and 2009 filed in October 2010. The Company believed that the inspectorate was not entitled to check the correctness of the calculation of income tax for the tax period preceding the period of verification.
But the courts of three instances judged differently. They indicated that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation provides for an exception to the general rule on the three-year depth of a tax audit. If a company has submitted an amended declaration, the tax authorities have the right, when conducting an on-site audit for the period, the indicators of which were affected by the data of the amended declaration, to check the period for which such a declaration was submitted. It does not matter that the specified period is outside the three calendar years preceding the year in which the decision to conduct the audit was made. Ruling of the Supreme Court of the Russian Federation dated November 28, 2014 No. 308-KG14-4417 denied transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation.
A repeated on-site inspection may be scheduled if the taxpayer has submitted an amended declaration, which indicates the amount of tax in an amount less than previously declared. The subject of such a repeated field tax audit is the correctness of the tax calculation based on the changed indicators of the revised tax return, which led to a decrease in the previously calculated tax amount (increased loss) (subclause 2, clause 10, article 89 of the Tax Code of the Russian Federation).
When conducting a repeated field tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct a repeated field tax audit was made (clause 10, article 89 of the Tax Code of the Russian Federation) can be checked. The question arises: is the tax authority entitled to conduct a repeated on-site tax audit if the period for which an updated tax return is filed exceeds three calendar years preceding the year in which the tax authority made a decision to conduct a repeated on-site tax audit?
Officials think they are right. In a letter dated April 19, 2013 No. 03-02-07/1/13473, the Ministry of Finance of Russia indicated that, as part of the repeated on-site tax audit scheduled in connection with the submission of an updated declaration, the period for which it was submitted is checked. Therefore, the period checked in the course of this repeated on-site inspection may exceed three calendar years preceding the year in which the decision to conduct it was made. A similar conclusion is contained in the letter of the Federal Tax Service of Russia dated July 25, 2013 No. AS-4-2 / 13622.
The same opinion is also held by Supreme Court. In Ruling No. 305-KG15-606 dated 05.03.2015, he considered the situation when, on December 26, 2011, the company submitted revised declarations for June, August and December 2009, which reflected the amounts of excise taxes claimed for reimbursement paid when importing goods into the territory of the Russian Federation, and the amount of tax is indicated in an amount less than previously declared. In 2013, the Tax Inspectorate conducted a second on-site audit of the period for which the revised declarations were submitted. The company considered that the tax authorities went beyond the three-year period established by paragraph 10 of Art. 89 of the Tax Code of the Russian Federation.
The courts of three instances pointed out that the start date of the audit is the day the decision to conduct the audit was made (December 29, 2012), so the disputed period (2009) does not go beyond three years established in paragraph 10 of Art. 89 of the Tax Code of the Russian Federation. They also noted that the tax legislation provides for the possibility of filing an updated declaration for a period that is beyond three years. In this regard, the possibility of conducting a repeated tax audit outside the specified period corresponds to the principles and objectives of tax regulation and does not violate the balance of private and public interests.
Please note: in Ruling No. 305-KG17-19973 of March 16, 2018, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation expressed the legal position that a repeated on-site tax audit cannot be initiated by a tax authority without taking into account the assessment of the reasonableness of the period elapsed from the date of filing an updated tax declarations. When assessing the reasonableness of the term for appointing a repeated on-site inspection, all circumstances related to ensuring a balance of private and public interests should be taken into account, in particular:
the existence of the possibility for the tax authority to timely identify circumstances indicating the unreasonableness of changes in the calculation of tax, declared in the revised declaration;
the ability of the taxpayer in the event of an on-site audit to ensure the protection of their rights after the lapse of the established paragraph 1 of Art. 23 of the Tax Code of the Russian Federation for a four-year period for storing documents necessary for the calculation and payment of taxes;
the presence or absence in the actions of the taxpayer of signs of opposition to tax control (providing false and (or) incomplete documents to the tax authority, etc.).
In this case, a repeated field tax audit was scheduled 1 year and 10 months after the submission of the revised tax return to the tax authority, which the arbitrators recognized as a significant period. In this regard, the panel of judges sent the case back for a new trial, instructing the courts to assess the reasonableness of the timing of the appointment of an on-site tax audit, to adopt legal and reasonable judicial acts.
The legal position of the Supreme Court is used by the courts when making decisions. Thus, taking into account this legal position, the Arbitration Court of the North-Western District, in its decision dated August 20, 2018 in case No. A21-10802 / 2017, recognized the decision to conduct an on-site audit, taken 2 years 11 months after the submission of the revised tax return, as violating the rights and legitimate interests companies.
Often disputes arise over whether tax authorities can control the current period as part of an on-site tax audit.
Tax specialists and financiers believe that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not contain a ban on field tax audits for the reporting periods of the current calendar year in which the decision to conduct a tax audit was made (letters of the Ministry of Finance of Russia dated July 26, 2018 No. 2019 No. ED-4-2/7305). This conclusion confirmed by jurisprudence.
In Ruling No. 304-KG14-737 of September 9, 2014, the Supreme Court of the Russian Federation considered the following situation. On March 30, 2012, the tax authority decided to conduct an on-site tax audit in the company for the period from January 1, 2009 to February 29, 2012. Based on the results of the audit, the company was held liable under Art. 123 of the Tax Code of the Russian Federation for the period from September 2, 2010 to December 31, 2011 and for January, February 2012
The court of first instance ruled that it was unlawful to hold the company liable for January and February 2012. In its opinion, from the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not directly follow that the check may cover the current calendar year. And a broad interpretation of the provisions contained in the law, or their extension to cases not specified in it, is unacceptable. In addition, according to paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer. Thus, the on-site tax audit for January and February 2012 does not comply with the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation.
But the appellate and cassation courts did not agree with this conclusion. They indicated that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not contain a ban on field inspections for the reporting periods of the current calendar year. Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On Certain Issues of the Application of Part One of the Tax Code of the Russian Federation” clarified that tax legislation does not contain a ban on auditing periods of the current calendar year. From this, the courts concluded that checking the reporting periods of the current year as part of an on-site tax audit does not violate the norms of tax legislation. The Supreme Court upheld this conclusion.
The fact that the conduct of an on-site tax audit of the reporting periods of the current year by the inspectorate does not contradict the norms of the Tax Code and does not violate the rights and legitimate interests of the taxpayer is stated in the decisions of the Arbitration Court of the West Siberian District of May 10, 2017 in case No. A45-28037 / 2015, Vostochno- Siberian District dated April 19, 2017 in case No. A33-8287/2016, Moscow District dated November 12, 2015 in case No. A41-32783/2015, FAS Far Eastern District No. Ф03-453/13 dated February 26, 2013 (Determination of the Supreme Arbitration Court of the Russian Federation dated April 26, 2013 No. VAC-4862/13 refused to transfer the case for review).
Sometimes, as part of an on-site tax audit, controllers make additional charges for transactions related to periods beyond the three-year period. Courts consider such actions unlawful.
An example is the decision of the Arbitration Court of the North Caucasus District dated June 27, 2018 in case No. A63-11808 / 2017. In 2016, the Inspectorate conducted an on-site check of the timeliness of the transfer of personal income tax by an individual entrepreneur to the budget for the period from January 1, 2013 to February 29, 2016, as a result of which the businessman was charged additional tax. The reason was that the entrepreneur received in 2012 as a compensation. real estate. The ownership of this property was registered for him by the court in 2013. The controllers considered that the businessman received real estate only from the moment of state registration of the transfer of ownership of it. In this regard, the income from the transaction should be taken into account in 2013.
But the courts of three instances did not agree with this. They pointed out that the procedure for determining the date of receipt of income by individuals does not depend on the fact of state registration of the transfer of ownership of the property. The date of receipt of income in this case is the date of the deed of transfer (October 15, 2012). And since the deal was made in 2012, it tax consequences associated with this tax period. Therefore, the inspectorate did not have the right to charge personal income tax for 2013 on transactions made in 2012. Controllers went beyond the statutory period for conducting an on-site tax audit (no more than three calendar years preceding the year in which the decision to conduct an audit was made).
In practice, there are situations when, based on the results of an audit, tax authorities make additional charges, taking into account accounts payable formed outside the three-year period. The courts consider this to be beyond the scope of the verification (decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 29, 2012 No. 17259/11, FAS Central District dated November 21, 2012 in case No. A35-439 / 2012, the Ural District dated October 12, 2012 in case No. A60-613 / 2012).
Thus, in the dispute considered in the decision of the Arbitration Court of the North Caucasus District dated August 22, 2018 in case No. А01-2762/2017, the company had tax payables as of January 1, 2014. During the on-site tax audit conducted in 2017, the tax authorities checked the period from January 1, 2014 to March 31, 2017. They assessed additional tax to the company, taking into account the company's accounts payable as of January 1, 2014.
The court of additional charges canceled. He pointed out that the tax inspectorate does not have the right to check the activities of the taxpayer (tax agent) beyond the three-year period established by paragraph 4 of Art. 89 of the Tax Code of the Russian Federation. The disputed debt was formed outside the audited period. Tax law does not provide for the inclusion in the results of field tax audits of all credit balances available on personal account of the taxpayer (tax agent) as of the date of the beginning of the audited period, as well as the inclusion of such balances in the results of audits.
It happens that tax authorities check taxes within the three-year period established by law, but at the same time they go beyond the dates indicated in the decision to conduct an on-site audit. The courts consider this a violation and cancel additional charges.
In the decision of the Federal Antimonopoly Service of the Urals District dated September 15, 2009 in case No. A71-13315 / 2008A19, the situation was considered when the tax authorities, as part of an on-site audit, accrued penalties on the 2004 debt on income tax and VAT. The court recognized the accruals as unfounded, since, according to the decision to conduct an on-site tax audit, the period from January 1, 2005 to December 31, 2006 was subject to control.
And in the situation considered by the Nineteenth AAC in its Resolution No. 19AP-2131/09 of May 28, 2009, the controlled period in the decision to conduct an on-site tax audit was limited to 2006 and 2007. However, based on the results of the audit, the controllers also made additional charges for 2005. They explained this by the fact that a typo was made in the decision to conduct the audit and instead of "January 1, 2005" "January 1, 2006" was printed.
The court recognized the additional charges for 2005 as illegal. He pointed out that since at the time of the audit there was no application for clarification of the audited period, the tax authorities were obliged to conduct an audit for the period from January 1, 2006 to December 31, 2007. In this regard, the tax authority did not have the right to check the correctness and timeliness taxes for 2005
Julia Vasilyeva
head of the group for accreditation of foreign missions
Tax audit more than three years
The law in some cases allows for the possibility of conducting inspections and bringing to responsibility for violation of the law, even if the period subject to control within the framework of an on-site tax audit exceeds three calendar years.
Article 87 of the Tax Code of the Russian Federation provides that in order to control compliance by a taxpayer, payer of fees or tax agent with the legislation on taxes and fees, tax authorities have the right to conduct on-site and desk audits.
Paragraph 1 of Art. 88 of the Tax Code of the Russian Federation states that within the framework of a desk audit, the period specified in the declaration filed by the taxpayer and documents submitted by the taxpayer is subject to control.
The period subject to control as part of an on-site inspection is established by paragraph 4 of Art. 89 of the Tax Code of the Russian Federation. It should not exceed three calendar years preceding the year in which the decision to conduct an audit was made, unless otherwise provided by Art. 89 of the Tax Code of the Russian Federation.
In this article, we propose to consider those very “other” cases, in the event of which the tax authorities have the right to control the correctness of the calculation and the timeliness of paying taxes for periods exceeding the established three years from the date of the decision to conduct an on-site audit.
Example
The decision to conduct an on-site tax audit of X LLC was made on 12/29/2012. The taxpayer received this decision on 11.01.2013. What limits can be set for the period subject to control by the tax authority within the framework of this on-site tax audit? According to the literal interpretation of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authorities have the right to check the correctness of the calculation and timeliness of the payment of taxes by the taxpayer LLC "X" for the period starting from January 01, 2009.
Please note that the fact that the decision to conduct an audit was received by the taxpayer not in the year in which it was made, but in the next, does not in any way affect the three-year limitation period subject to verification.
This conclusion is confirmed by the materials of judicial practice (Decree of the Federal Antimonopoly Service of the North-Western District of June 22, 2012 No. А05-14239/2010).
You should also take into account the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation (paragraph 2, clause 27 of the resolution of February 28, 2001 No. 5), according to which the norm of clause 4 of Art. 89 of the Tax Code of the Russian Federation establishes only prescription restrictions when determining by the tax authority the period of the past activity of the taxpayer, which can be covered by an audit, and does not contain a ban on audits of tax periods of the current calendar year.
An exception to the general rule on the period that may be covered by an on-site tax audit, provided for in Art. 89 of the Tax Code of the Russian Federation, is contained in par. 3, paragraph 4 of the said article and is the case when the taxpayer submits an updated declaration as part of the relevant on-site tax audit. This exception exempts the supervisory authority from the three-year limitation of the audited period and provides the right to conduct an on-site audit for an arbitrarily old period for which an updated declaration has been submitted.
It should be noted that the wording of the norm under consideration - "within the framework of the relevant on-site tax audit" - allows for certain options for the taxpayer's behavior and allows the company to try to limit the possibility of expanding the boundaries of the audited period. So, from a literal interpretation it follows that the exception can be applied only if the “clarification” was submitted directly during the on-site tax audit.
The tax authorities themselves, according to the clarifications of the Federal Tax Service of Russia, presented in a letter dated 05.29.2012 No. AC-4-2 / 8792, believe that the time of submission of an updated declaration (during the on-site tax audit, before it, after it), for the application of the norm does not matter, and an on-site tax audit may be carried out for the period specified in the “clarification” that exceeds three years from the date of the decision to conduct an audit, unless the corresponding period was previously covered by an on-site tax audit. However, there is arbitrage practice when the courts of several instances took the side of the taxpayer.
Example from practice:
“On August 24, 2009, the head of the Inspectorate made decision No. 58/28 on conducting an on-site tax audit of LLC MSP ROSSBAN regarding the correctness of the calculation and timeliness of payment (withholding, transfer) of all types of taxes and fees paid by it, as well as insurance premiums for the OPS - for the period from January 01 to December 31, 2008.
The adjusted income tax return No. 3 for the first quarter of 2005 was submitted by the company to the Inspectorate on March 12, 2008, that is, three months before the on-site tax audit for 2005-2007, appointed by decision No. 31 dated June 25, 2008. No. 58/28 (as amended and supplemented) does not contain an instruction to conduct an on-site tax audit in respect of the tax period of 2005, including for the 1st quarter of 2005.
Under such circumstances, the court of first instance came to a reasonable conclusion that the disputed amended declaration was subject to examination and evaluation during an in-house tax audit of the declaration or during an on-site audit of the period to which it relates (2005), and as a result, the absence of the tax authority of the legal grounds for the audit of the 1st quarter of 2005 within the framework of the audit for the period from January 01 to December 31, 2008” (Resolution of the Thirteenth Arbitration Court of Appeal dated May 30, 2011 No. A21-8116 / 2010).
Another "exceptional case" referred to in Art. 89 of the Tax Code of the Russian Federation, is the submission by the taxpayer of an updated declaration in which the amount of tax is adjusted downward (clause 2, clause 10, article 89 of the Tax Code of the Russian Federation).
Thus, when submitting an amended declaration with the amount of tax to be reduced, the tax authorities have the right to conduct a repeated field tax audit, which may cover the period specified in the “refined” that exceeds the limits of the three-year limitation period.
Also, residents excluded from the unified register of residents of the Special Economic Zone in the Kaliningrad Region are subject to an exception to the general rule. Features of conducting field tax audits in respect of them are determined by Art. 288.1 and 385.1 of the Tax Code of the Russian Federation (Clause 16.1 of Article 89 of the Tax Code of the Russian Federation).
The three-year limitation during inspections does not also apply to taxpayers and payers of fees paid when applying the special tax regime established by Ch. 26.4 of the Tax Code of the Russian Federation, when fulfilling production sharing agreements. This feature expressly fixed by Art. 346.42 of the Tax Code of the Russian Federation, which states that an on-site tax audit can cover any period during the entire period of the production sharing agreement, starting from the year the agreement enters into force.
Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:
| No. p / p | Exceptions | Foundations |
|---|---|---|
| 1 | Submission by the taxpayer of an amended tax return as part of the relevant on-site tax audit. | Paragraph 3, paragraph 4 of Art. 89 Tax Code of the Russian Federation |
| 2 | Repeated on-site audit in connection with the submission by the taxpayer of an updated tax return, which indicates the amount of tax in an amount less than previously declared. | Subparagraph 2 of paragraph 10 of Art. 89 Tax Code of the Russian Federation |
| 3 | Carrying out an on-site audit of a resident excluded from the register of the Special Economic Zone in the Kaliningrad Region, in terms of income tax and corporate property tax, provided that the decision to appoint such an audit was made no later than three months from the date of payment by the resident of the relevant tax. | Clause 16.1 of Art. 89 Tax Code of the Russian Federation |
| 4 | Carrying out an on-site audit of a taxpayer who applies a special tax regime in the performance of a production sharing agreement. | Paragraph 1 of Art. 346.42 of the Tax Code of the Russian Federation |
Verification of individual entrepreneurs who have already ceased their activities
Due to the doubling of contributions to the Pension Fund since January 2013, many individual entrepreneurs have decided to stop their activities. They believe that if they received certificates of termination, deregistration with the IFTS and an extract from IGRIP, then the regulatory authorities will never again bother them about the correctness and timeliness of paying taxes (fees) for the period of their activity as an individual entrepreneur. However, it is not. Despite the fact that an individual no longer has the status of an individual entrepreneur, he continues to be a taxpayer and his obligation to pay taxes and fees does not stop when leaving an individual entrepreneurial activity.
The grounds for the emergence, change and termination of the obligation to pay a tax or fee are established by Art. 44 of the Tax Code of the Russian Federation. According to paragraph 3 of the said article, the obligation to pay tax and (or) collection is terminated:
Apparently, this norm does not provide for the fact of the termination of individual entrepreneurial activity as a basis for the termination of the obligation to pay a tax (fee).
Moreover, pp. 8 p. 1 art. 23 of the Tax Code of the Russian Federation provides for the obligation of taxpayers to ensure the safety of accounting and tax accounting data and other documents necessary for the calculation and payment of taxes, including documents confirming the receipt of income, expenses (for organizations and individual entrepreneurs), as well as payment ( withholding) taxes. Termination of entrepreneurial activity does not release the former entrepreneur from this obligation.
Important at work:
There is an opinion:
Taxpayers (even conscientious ones) are extremely negative about any audits, but companies and organizations are especially disliked by field tax audits. The reasons are clear: not only do tax officials fall “like snow on their heads”, but they need to create acceptable working conditions, and the physical presence of inspectors in the office creates an atmosphere of nervousness, stress for employees, and disrupts the usual rhythm of work.
Prepare for planned desk audit it is always possible in advance: to think over the answers to each question, to get the missing documents or make corrections to the existing ones, to try to “plug the holes”. This will not work with an exit: one fine morning you just meet guests who are not at all obliged to inform you of the visit in advance (letter of the Federal Tax Service No. AC-37-2 / 15853 dated 01/18/2010).
Is it possible to find out about the upcoming visit of the tax authorities in advance? Directly, by phone call or by written request - no. But there are indirect methods, using which, with a high degree of probability, it is possible to predict the upcoming check:
According to the Concept of on-site inspections (Order of the Federal Tax Service No. ММВ-7-2-297), the tax authorities form their plan based on the assessment of the risks of the company's work, realizing that it is technically impossible to check all legal entities and individuals in the country, so control is carried out selectively.
Who has increased chances get under close attention and find yourself "under the hood"? Here are some criteria:
It is important to remember that the fiscal authorities have their own internal plan, the main indicator of which is the filling of the budget. This means that people can come to a successful and profitable company “just like that” if the budget is low and there is an urgent need to “plug holes” through additional charges and fines.
Exceptions are minimal:
After presenting the decision and familiarizing the director of the organization with it, an interview is usually held both with the management and with other persons responsible for taxes - deputies, financiers, chief accountant. Avoiding conversation is a stupid tactic, it is worth considering how to establish contact and establish cooperation, but within the framework of corporate etiquette and rules.
An on-site tax audit in 95% of cases is accompanied by an inventory, which helps the tax authorities to assess the movement of inventory and thus collect valuable information about the economic activities of the audited company. Tax officials have every right to inspect office rooms (not to be confused with a search - this is a completely different procedural action), visit warehouses, workshops, trading floors, utility rooms and ask unexpected questions at the same time. It is impossible to forbid them to visit certain squares, to prevent this, but it is necessary to detach a couple of employees in the role of witnesses or witnesses - in case an Inspection Report is drawn up.
According to articles 93 and 93.1 of the Tax Code, the tax authorities have the right to demand any documents related to the financial and economic sphere of the company. If the tax authorities are afraid of deliberate concealment of papers or their concealment in order to destroy or secretly make changes to them, tax officials have the right to seize, but only in the daytime.
Sometimes, in order to establish the truth, the tax authorities resort to examination of documents (Article 95), in extreme cases, to the interrogation of witnesses (not necessarily employees of the company being audited).
After carrying out all the procedures, the inspectors slowly systematize the information, form the final documents of the audit.
According to the law, tax authorities are given 2 months to draw up the final Act. The form of the Act is specified by Order of the Federal Tax Service MMV-7-2 / 189, the document consists of an introductory, descriptive and final part. Even if absolutely no violations of the Tax Code are found during the GNP, the Act is still drawn up and signed.
What is written in the Act?
It is accepted that 6 days (for companies with foreign jurisdiction - 20 days) must pass from the date of putting the postal stamp on the letter, and it will be considered that the Certificate has been handed over to the payer. It is from the 6th day that the deadline for appealing (objections) to the audit begins.
If something is underpaid or not paid at all, the tax authorities make proportional additional charges and oblige the organization to fulfill its duty to pay taxes. For violations, they are held accountable, the least possible measure is fines and penalties.
By the way, the tax authorities at any time can apply to the Investigative Committee or other judicial authorities if they reveal serious violations of the law. Employees of the authorities can officially take part in the inspection if the violations "pull" a criminal article.
Surely the organization employs employees whose guilt has been proven, even if these were random errors in registration. The head of the organization is obliged to bring the perpetrators to disciplinary responsibility, which is reflected in the order, but also has the right to refuse to hold employees accountable.
However, for a number of reasons, the period is extended to two or six months, the decision on this is made by the head of the tax auditing unit. There must be good reasons for the extension, some of which are listed in the order of the Federal Tax Service dated May 8, 2015 No. MMV-7-2 / 189:
Is there a deadline for conducting an on-site tax audit? Yes, it is equal to one year, including all extensions and "pauses".
