How to prepare for and pass an on-site tax audit

The procedure for the head of the tax authority to make a decision based on the results of consideration of tax audit materials is established by Article 101 of the Tax Code of the Russian Federation. According to paragraph 7 of Article 101 of the Tax Code of the Russian Federation, based on the results of consideration of the tax audit materials, the head of the tax authority or his deputy makes a decision:

• on holding the taxpayer accountable for committing a tax offense;
• on refusal to hold the taxpayer accountable for committing a tax offense.

A decision based on the results of consideration of the tax audit materials must be made by the head of the tax authority or his deputy within ten working days from the day following the last day of the one-month period allotted for the taxpayer to submit objections. It should be taken into account that it is not worth expecting a decision to be made directly on the day of consideration of the tax audit materials (see paragraph 43 of the Resolution of the Plenum of the Supreme Arbitration Court dated July 30, 2013 No. 57). The form of the decision was approved by the Order of the Federal Tax Service of Russia dated May 31, 2007. No. MM-3-06/ [email protected]

What offenses are considered under Art. 101 of the Tax Code of the Russian Federation?

Let's look at what kind of offenses can be recorded by the heads of the Federal Tax Service or their deputies in accordance with Art. 101 Tax Code of the Russian Federation.

The resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 states that in the manner provided for by the provisions of Art. 101 of the Tax Code of the Russian Federation, offenses are considered, the composition of which is defined:

• Art. 120 of the Tax Code of the Russian Federation (gross violation of the rules for accounting for income and expenses);
• Art. 122 of the Tax Code of the Russian Federation (non-payment of a tax or fee or its incomplete transfer to the budget);
• Art. 123 of the Tax Code of the Russian Federation (failure by the agent to fulfill obligations to transfer taxes to the budget).

About what types of violations are considered to fall under Art. 123 of the Tax Code of the Russian Federation, read the material “The Ministry of Finance recalled the conditions for a fine under Art. 123 Tax Code of the Russian Federation" .

In turn, offenses, the composition of which is determined in other articles of the Tax Code of the Russian Federation, should be considered, as the Supreme Arbitration Court of the Russian Federation believes, in accordance with Art. 101.4 Tax Code of the Russian Federation.

Gross violations by a company of the procedure for accounting for income and expenses may be accompanied by a fine of 10,000 rubles if they are committed within the same tax period. If a company commits a similar violation in subsequent tax periods, the amount of sanctions is tripled. If a gross violation of the procedure for accounting for income and expenses led to a decrease in the tax base (contribution base), then the company will pay a fine in the amount of 20% of the unpaid tax (contributions), but not less than 40,000 rubles.

Gross violations in the provisions of the Tax Code of the Russian Federation mean:

• the company lacks primary documents;
• lack of invoices;
• lack of accounting or tax registers;
• incorrect or untimely reflection on synthetic, analytical accounting accounts, as well as in tax registers of business operations, assets, and financial resources.

Read more about penalties for this type of violation in the article “Fine for gross violation of the rules for accounting for income and expenses .

Let us note that from April 2021, liability for taxpayer officials has been tightened for gross violations in accounting (Article 15.11 of the Code of Administrative Offenses). Now the fine for them can be 5,000 rubles. – 10,000 rub. against 2,000 rub. — 3,000 rub. according to previous standards. In addition, the legislator expanded the list of violations that entail administrative liability.

Failure to pay a tax or fee or their incomplete transfer to the budget is accompanied by a fine of 20% of the corresponding debt of the company. If it is established that the taxpayer knowingly refused to pay taxes and fees, the fine may amount to 40% of the debt to the budget.

If the tax agent does not fulfill its obligations to withhold and transfer the required amounts to the Russian budget or does not fulfill them in full, then it will have to pay a fine in the amount of 20% of the amount of money that must be transferred to the state.

At the same time, decisions of officials from the Federal Tax Service, made based on the results of reviewing documents as part of inspections and reflecting the agency’s position on establishing facts of offenses, can be appealed. Let's consider this aspect in more detail.

Rules for reviewing tax audit materials

The circle of subjects who are granted powers in the proceedings is limited. Such officials include the head of the Federal Tax Service of Russia or another tax authority, as well as his deputy.

The standard time for reviewing an inspection report is 10 days.

If additional measures are required (interviewing a witness or other person, as well as requesting documents from the taxpayer’s counterparties), then no more than 1 month can be added to the procedure time.

The rights and obligations of tax authorities in relation to consolidated group tax can be exercised within a 2-month period. Within the specified framework, deferment periods are determined by the tax authorities independently.

Consideration of the case on its merits presupposes a preliminary determination of the appearance of the person held accountable. If his presence is required, the proceedings are postponed. As a rule, this does not pose a problem in order to impose a penalty.

The process of reviewing materials involves maintaining a protocol. It reflects data on the inspection materials studied and disclosed.

During the proceedings, the rights and responsibilities of the tax authorities include resolving the following issues:

• about the existence of a violation of the legislation of the Russian Federation;
• whether there is liability for such violations;
• about the existence of grounds to hold the person accountable;
• on the possibility of applying a number of rules regarding punishment. This refers to the grounds for exemption from liability, as well as mitigating or aggravating circumstances.

The outcome of these procedures is a decision on the case.

What is the procedure for appealing the actions of the Federal Tax Service?

In accordance with paragraph 8 of Art. 101 of the Tax Code of the Russian Federation, tax officials must explain to the taxpayer the procedure for appealing a decision made by the Federal Tax Service based on the results of reviewing documents as part of an audit.

Current legal norms make the corresponding appeal mechanism two-stage: first, the payer must express disagreement with the decision of the Federal Tax Service by contacting a higher structure of the department, and if the reaction of the tax authorities does not suit him or the complaint remains unanswered, he can go to court (clause 2 of article 138 of the Tax Code of the Russian Federation ).

The period for consideration of a complaint by a higher body of the Federal Tax Service is 1 month. The department also has the right to extend it for another 1 month if there is a need to obtain documents from lower-level structures of the Federal Tax Service (Clause 6 of Article 140 of the Tax Code of the Russian Federation).

In accordance with the provisions of paragraph 4 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, applications to arbitration must be submitted no later than 3 months after violations of a citizen’s rights are identified. The following actions of tax authorities are recognized as such:

• the higher structure of the Federal Tax Service made a decision on the complaint that did not suit the applicant, and notified him of this decision;
• The deadline for consideration of the complaint by the department has expired.

An alternative to going to court after a higher structure of the Federal Tax Service has made a decision on a complaint may be to subsequently forward the complaint to the central office of the Federal Tax Service in Moscow. This also needs to be done within 3 months from the moment of familiarization with the decision of the territorial structure of the department, which is superior to the Federal Tax Service Inspectorate that conducted the inspection (clause 2 of Article 139 of the Tax Code of the Russian Federation).

A complaint to the structure of the Federal Tax Service, to which the inspectorate of the Federal Tax Service is subordinate, must be submitted in writing signed by the person directly filing it or his representative. You can also submit it in electronic form via telecommunication channels or through the taxpayer’s personal account (clause 1 of Article 139.2 of the Tax Code of the Russian Federation).

The structure of the complaint must include:

• Full name of the applicant, company address;
• information about the appealed decision of the Federal Tax Service;
• the name of the Federal Tax Service whose actions are being appealed;
• the grounds on which the applicant is appealing the decision of the Federal Tax Service;
• applicant's requirements;
• applicant's contact details;
• documents that support the applicant’s arguments;
• if necessary, documents confirming the authority of the person representing the interests of the applicant and signing the complaint;
• method of obtaining a decision on the complaint (on paper, in electronic form or through the taxpayer’s personal account).

It may be noted that the costs associated with a possible contact with lawyers in order to more competently draw up a complaint to the Federal Tax Service can be included in expenses when calculating income tax (letter of the Ministry of Finance of the Russian Federation dated December 7, 2012 No. 03-03-06/1/644 ).

Read about the latest innovations in the appeal procedure in the material “Innovations in appealing the actions of tax authorities have begun to take effect .

Why is a desk audit carried out?

The objectives of the desk tax audit are:

-monitoring the taxpayer’s compliance with the legislation on taxes and fees of the Russian Federation;

-detection and suppression of tax violations;

-preparation of information for selecting an object for an on-site tax audit.

The object of the desk tax audit will be the tax return submitted to the Federal Tax Service. A tax return is submitted by each taxpayer for each type of tax payable by that taxpayer. The tax return must be drawn up on the prescribed form. At the same time, tax authorities do not have the right to require the taxpayer to include in tax returns information not related to the calculation and payment of taxes.

In addition to tax returns, during the desk audit, accounting reporting forms are used, submitted to the Federal Tax Service in accordance with paragraphs. 4 paragraphs 1 art. 23 of the Tax Code of the Russian Federation and legislation on accounting, as well as other documents requested from the taxpayer or submitted by him independently. When conducting a desk audit, the Federal Tax Service has the right to use any information it has about the taxpayer, if this information was obtained legally, namely:

- documents of the taxpayer submitted by him;

- tax returns and financial statements previously submitted by the taxpayer to the Federal Tax Service for previous reporting periods;

- information received by the Federal Tax Service from various government bodies, in accordance with the requirements of Art. 85 Tax Code of the Russian Federation.

It should be noted that during a desk audit, the Federal Tax Service has the right to use the rights to collect evidence of a tax crime under Art. 90,93,95,96,97,98 Tax Code of the Russian Federation. Earlier, I mentioned that such an audit is carried out without a special decision of the head of the tax authority and his deputy, however, employees of the Federal Tax Service Inspectorate, who are charged with carrying out such audits, have the right to conduct this type of inspection; as a rule, the Federal Tax Service Inspectorate has desk audit departments.

In what cases does the Federal Tax Service have the right not to satisfy a taxpayer’s complaint?

It will be useful to consider the norms of the Tax Code of the Russian Federation, according to which the Federal Tax Service acquires the right to refuse to satisfy a payer’s complaint. First of all, we note that this action is among 5 possible ones that tax authorities have the right to carry out. Apart from the refusal to satisfy the complaint, these include:

• cancellation of the act of a lower tax authority;
• reversal of the decision of a lower tax authority (in whole or in part);
• cancellation of the decision of the lower structure of the Federal Tax Service and adoption of a new one
• recognizing the actions (inaction) of tax officials as illegal and making a decision on the merits.

Provisions of paragraph 1 of Art. 139.3 of the Tax Code of the Russian Federation includes the grounds on which the Federal Tax Service has the right to refuse a payer’s complaint. A similar scenario is possible if:

• the procedure for filing a complaint is not followed or it does not indicate acts of the tax authority of a non-regulatory nature, actions or inactions of its officials that led to a violation of rights;
• the deadline for filing a complaint has been missed, there is no request for its restoration, or the payer has been denied this right;
• the applicant, before the Federal Tax Service made a decision on the complaint, sent the department a recall of the document - in whole or in part;
• this is not the first time a complaint has been filed with the Federal Tax Service, but on the same grounds as the previous one;
• Before making a decision on the complaint, the tax authority reported that the violation of the taxpayer’s rights had been eliminated.

At the same time, the taxpayer can try to challenge the refusal to satisfy the complaint, as well as file the complaint again, if the reason for the refusal was not a withdrawal of the complaint or a repetition.

Entry into force of a decision based on the results of a tax audit

The decision to prosecute for committing a tax offense and the decision to refuse to prosecute for committing a tax offense enter into legal force after one month from the date of delivery to the inspected taxpayer or his representative (Clause 9 of Article 101 of the Tax Code of the Russian Federation). If the decision of the tax authority based on the results of a tax audit is sent by registered mail, the date of its delivery is considered to be the sixth day from the date of its sending. The period begins to be calculated in working days starting from the next day after the calendar date or the occurrence of the event that determines its beginning (see paragraphs 2 and 6 of Article 6.1 of the Tax Code of the Russian Federation).

Also, Article 101.2 of the Tax Code of the Russian Federation provides for separate deadlines for the tax authority’s decision to enter into legal force if the person being audited files an appeal against such a decision:

• the decision comes into force in the part not canceled by the higher tax authority and in the part not appealed from the day the higher tax authority makes a decision on the appeal;
• if the higher tax authority considering the appeal cancels the decision of the lower tax authority and makes a new decision, such decision of the higher tax authority comes into force from the date of its adoption;
• If a higher tax authority leaves the appeal without consideration, the decision of the lower tax authority comes into force from the date the higher tax authority makes the decision to leave the appeal without consideration, but not earlier than the expiration of the deadline for filing the appeal.

At the end of the issue under consideration, we note that the taxpayer has the right to appeal the results of consideration of the tax audit materials before the day the appealed decision of the tax authority enters into legal force. The appeal is filed through the tax authority that made the relevant decision. If the taxpayer decides to exercise the right of such an appeal and submits an appeal to a higher tax authority on time, the tax authority whose decision is being appealed is obliged to send it with all materials to the higher tax authority within three days from the date of receipt of such a complaint (clause 1 of Art. 139.1 of the Tax Code of the Russian Federation). The appealed decision will enter into legal force from the date of its approval by the higher tax authority in whole or in part (see paragraph 9 of Article 101 of the Tax Code of the Russian Federation). The taxpayer bears the obligation to execute the decision of the tax authority that has entered into legal force, both to hold him accountable for committing a tax offense, and to refuse such prosecution. A decision to prosecute may provide for the taxpayer’s obligation to pay arrears of taxes, penalties, and fines, and a decision to refuse to prosecute may provide for arrears and penalties. In addition to the above, the tax authority’s decision may contain requirements to make corrections to the taxpayer’s accounting and tax documents.

Can a taxpayer refuse to participate in the review of documents?

One of the pressing issues in the area of ​​interaction between taxpayers and the Federal Tax Service under consideration is whether the former can refuse to participate in the study of documents as part of tax audits. In accordance with paragraph 2 of Art. 101 of the Tax Code of the Russian Federation, the absence of representatives of the inspected organization when considering the inspection materials cannot be an obstacle to carrying out the relevant event, but only if the head of the Federal Tax Service does not consider that their participation is mandatory. Thus, the representative has the right not to interact with the Federal Tax Service during the study of documents, but department officials may consider that this procedure cannot be carried out without his participation.

At the same time, the Federal Tax Service has at its disposal a very effective countermeasure in case the payer’s participation in the review of documents is highly desirable, but he avoids interacting with the tax authorities. The Ministry of Finance, in paragraph 4 of letter No. AS-4-2/9355 dated May 23, 2013, recommends that territorial tax authorities provide taxpayers with notifications of the date, time, and place of consideration of inspection documents simultaneously with the acts that correspond to these inspections. If the payer does not accept this notification, the inspector may, in accordance with the recommendation of the Federal Tax Service, draw up a protocol on the administrative violation provided for in Art. 19.1.4 Code of Administrative Offenses of the Russian Federation. That is, the taxpayer in this case may be held liable for obstructing the activities of the tax authority. As a result, the company's official and the organization itself may be fined.

Extension of the on-site inspection period

The Federal Tax Service of Russia, in a letter dated July 25, 2013 No. AS-4-2/13622 (clause 4.1), indicated that it is possible to extend the period for conducting an on-site inspection more than once. However, this requires compelling reasons, which are given in Appendix 4 to the order of the Federal Tax Service of Russia dated 05/08/2015 No. ММВ-7-2/ [email protected]

ConsultantPlus experts explained which on-site tax audits have special deadlines. Get trial access and upgrade to the Ready Solution for free.

In addition, the Tax Code does not establish restrictions on activities carried out during the period for which the audit is extended. Therefore, tax authorities are actively taking advantage of the opportunity to suspend on-site inspections. This is exactly the conclusion made by the authors of the letter of the Federal Tax Service of Russia for Moscow dated February 21, 2008 No. 16-27.

Example

To conduct an on-site tax audit of Omega LLC, a 2-month period was initially provided. However, after the initial study of the materials, by decision of the inspection management, the period was extended to 4 months. But then it turned out that information from contractors was needed. The tax authority suspended it after 3.5 months of inspection. From the point of view of the legality of the actions of the Federal Tax Service, there is no doubt.

However, tax authorities do not always have the right to an extension. These are the following cases:

• If an independent tax audit of branches or representative offices is carried out. For them, a period of one month is established, with exceptions to paragraph 7 of Art. 89 of the Tax Code of the Russian Federation does not provide for this.
• If an audit of a consolidated group of taxpayers is carried out. For them this period, according to paragraph 5 of Art. 89.1 of the Tax Code of the Russian Federation, should be no more than 2 months. It can increase for as many months as there are taxpayers in the group, not counting the responsible participant. But in any case, the total period should not be more than 1 year.

The Federal Tax Service of Russia, in a letter dated July 25, 2013 No. AS-4-2/13622 (clause 4.1), analyzed this rule and indicated that the inspection period for the Group of Taxpayers was initially set and cannot be extended.

What violations of the Federal Tax Service when checking and processing decisions are significant?

In accordance with paragraph 14 of Art. 101 of the Tax Code of the Russian Federation, a taxpayer has the right to count on the cancellation by a higher body of the Federal Tax Service of a decision made by the head or deputy of the Federal Tax Service if the relevant structure violates the essential conditions of the procedure for studying documents as part of an audit. What could they be?

It happens that tax authorities neglect the obligation to serve the audited company with a desk audit report, which can also result in decisions recognizing the company as a violator of tax laws, as well as to provide the necessary evidence base reflecting the fact that the said report was sent. The Federal Antimonopoly Service of the West Siberian District, in its resolution dated July 17, 2014 No. A45-20696/2013, comes to the conclusion that this is unacceptable.

The tax audit report, as well as the decision of the head of the Federal Tax Service or his deputy, must contain, first of all, a systematic presentation of facts indicating a violation by the taxpayer of legislation in the field of taxes and fees (Resolution of the Federal Antimonopoly Service of the East Siberian District dated March 20, 2013 No. A78-4025/2012) . If tax authorities generate documents that do not meet the specified criterion, this may be qualified as a significant violation of the procedure for considering audit materials.

The tax audit report, as well as the decision of the head of the Federal Tax Service or his deputy, must necessarily contain references to the provisions of regulatory legal acts that the audited company violated, as well as links to documents evidencing these violations (Resolution of the Federal Antimonopoly Service of the Moscow District dated January 14, 2014 No. F05- 16619/2013). First of all, these are primary documents. If these, as well as references to legal acts, are not indicated in the inspection report, this action of the Federal Tax Service may be qualified as a significant violation of the procedure for reviewing documents.

Is the absence of signatures of all inspectors in the inspection report a significant basis for canceling the decision of the tax authority? ConsultantPlus experts have collected court decisions on this topic into a single review. Learn the material by getting trial access to the system for free.

At the same time, the tax authorities’ violation of the deadline for making a decision on an audit is not significant and cannot be a basis for canceling the decision. See here .

Delivery of the decision

Within five working days after the decision is made based on the results of the inspection, it must be handed over to the organization (paragraph 1, paragraph 9, article 101, paragraph 6, article 6.1 of the Tax Code of the Russian Federation). The countdown of the period begins from the next day after the decision is signed (clause 2 of article 6.1 of the Tax Code of the Russian Federation). For example, if the inspection decision was made on March 6, 2015 (Friday), then the inspection must deliver it to the organization no later than March 16, 2015.

The inspection must hand over the decision personally to a legal or authorized representative of the organization. If it is impossible to deliver the decision, the inspection may send it by registered mail. In this case, the decision is considered received after six working days from the date of sending the registered letter. In this case, the countdown of the six-day period begins on the day following the day of dispatch. This follows from the totality of the provisions of paragraph 13 of Article 101, paragraphs 2 and 6 of Article 6.1 of the Tax Code of the Russian Federation.

In addition, the solution can be transmitted to the organization via telecommunications channels. The procedure for electronic document flow between tax inspectorates and taxpayers was approved by Order of the Federal Tax Service of Russia dated April 15, 2015 No. ММВ-7-2/149. With this option, the decision will be considered received when the inspection receives an electronic receipt for the receipt of this document. If the inspection does not receive such a receipt, it will send a decision on paper in accordance with the generally established procedure. This conclusion follows from the provisions of paragraphs 12, 16 and 19 of the Procedure, approved by order of the Federal Tax Service of Russia dated April 15, 2015 No. ММВ-7-2/149.

An example of determining the date of receipt of a tax audit decision. The inspection sent the decision to the organization by registered mail

On October 12, 2015, the tax inspectorate made a decision based on the results of an on-site tax audit. Since it was impossible to deliver the decision in person, the inspection sent it by registered mail on October 13, 2015. Six working days after sending a registered letter expire on October 21, 2015. Therefore, a decision sent by registered mail will be considered received by the organization on October 22, 2015.

Situation: can the inspection make changes to the inspection decision after it has been delivered to the organization?

Answer: yes, it can, if the changes improve (not worsen) the organization's position or are of a technical nature (for example, correcting typos).

Tax legislation does not allow the inspectorate to make changes to the inspection decision. At the same time, it does not contain a ban on such actions. This follows from an analysis of the provisions of Article 101 of the Tax Code of the Russian Federation.

As a result, if the changes that the inspection makes to the decision do not change or improve the position of the organization (for example, lead to a reduction in the amount of arrears), then they are considered completely legitimate. Such changes do not violate the rights of the organization and can be taken into account. The validity of this conclusion is confirmed by paragraph 44 of the resolution of the Plenum of the Supreme Arbitration Court dated July 30, 2013 No. 57 and district arbitration practice (see, for example, the resolutions of the FAS of the East Siberian District dated October 14, 2008 No. A33-476/08-F02-5025/ 08, Volga-Vyatka District dated February 28, 2008 No. A79-11019/2006, Northwestern District dated February 7, 2008 No. A56-3141/2007).

If the changes that the inspectorate makes to the decision impose additional tax obligations on the organization (for example, they increase the amount of arrears), then they are considered illegal. Such changes violate the rights of the organization and should not be taken into account. Arbitration practice confirms the legitimacy of this approach (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 22, 2008 No. 9467/07, determinations of the Supreme Arbitration Court of the Russian Federation dated January 30, 2009 No. VAS-537/09, dated October 22, 2008 No. 13589/08, resolution of the Federal Antimonopoly Service of the West Siberian District dated December 21, 2012 No. A27-13595/2011, Volga-Vyatka District dated May 5, 2012 No. A31-7157/2011, Central District dated September 14, 2010 No. A23 -746/10A-14-32).

In what time frame must documents be provided at the request of the Federal Tax Service?

In accordance with paragraph 1 of Art. 93 of the Tax Code of the Russian Federation, as well as clause 6 of Art. 101 of the Tax Code of the Russian Federation, Federal Tax Service inspectors have the right to request various documents from the company being inspected during the inspection. It will be useful to consider the time frame within which they should be provided.

For any types of audits, including additional ones, the taxpayer must send the required documents to the Federal Tax Service within 10 days from the receipt of the relevant request (clause 3 of Article 93 of the Tax Code of the Russian Federation).

The Federal Tax Service can deliver this request in person (clause 1 of Article 93 of the Tax Code of the Russian Federation), send it through a personal account, via telecommunication channels, or by regular mail (clause 4 of Article 31 of the Tax Code of the Russian Federation). If the request is sent by mail, then the date of its receipt is the 6th working day from the date of sending. If the request is sent through the taxpayer’s personal account, then it is considered received the very next day after sending (paragraph 3, paragraph 4, article 31 of the Tax Code of the Russian Federation).

It can be noted that even if the taxpayer received the request by mail before the expiration of 6 days from the date of sending, then he, one way or another, has the right to count the deadline for providing documents after 6 days (letter of the Ministry of Finance of the Russian Federation dated May 6, 2011 No. 03-02-07 /1-159 ).

If the payer does not provide additional documents for verification, the Federal Tax Service will impose a fine on him in the amount of 200 rubles for each source not provided (clause 1 of Article 126 of the Tax Code of the Russian Federation).

In turn, payers are required to provide the necessary documents upon request if they are at the disposal of the company (letter of the Federal Tax Service of the Russian Federation dated February 20, 2015 No. AS-3-2/636).

When does the on-site tax audit start and when should it end?

The timing of an on-site tax audit is regulated by clause 6 and para.
5 paragraph 7 art. 89 Tax Code of the Russian Federation. According to the norms of the Tax Code contained in these paragraphs, the duration of an on-site inspection should not exceed 2 months for the organization as a whole and 1 month for a separate inspection of a branch or representative office. True, these periods are allowed to be extended up to 4 months, and as an exception, up to 6. This is discussed in more detail in the letter of the Ministry of Finance of Russia dated November 20, 2009 No. 03-02-07/1-516 (clause 2). Sometimes it happens that, taking into account the suspension, the total duration of control activities can reach a year, or even more.

The time frame for an on-site tax audit is as follows:

• its beginning, according to paragraph 8 of Art. 89, paragraph 8 of Art. 89.1 of the Tax Code of the Russian Federation, the day on which the decision to begin the inspection is considered.
• ending, in accordance with clause 8 of Art. 89, paragraph 8 of Art. 89.1 of the Tax Code of the Russian Federation, the day on which a tax audit certificate is drawn up is considered.

You can learn about the reasons for extending a tax audit from the material “How and when an on-site tax audit can be extended .

How should the Federal Tax Service notify the payer about the consideration of documents?

So, the Tax Code of the Russian Federation regulates in some detail how the Federal Tax Service should send requests to payers to provide additional documents. However, this legal regulation does not regulate in detail how the Federal Tax Service should notify the taxpayer about the time and place of studying documents as part of the audit - that is, fulfill the obligation provided for in paragraph 2 of Art. 101 Tax Code of the Russian Federation.

The Supreme Arbitration Court of the Russian Federation, in Resolution No. 57 dated July 30, 2013, indicates that tax authorities can provide notification of the consideration of documents as part of an audit in any way. The arbitration believes that the Tax Code of the Russian Federation does not have provisions regulating the specific method of communication between the Federal Tax Service and the companies being inspected in this case.

It is important that one or another notification method allows identifying the sender and recipient of information about the consideration of documents. Also, the Federal Tax Service must have evidence of the transfer of relevant information (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2010 No. 14458/09, dated February 12, 2008 No. 12566/07).

What consequences are provided by law if the taxpayer is not given an on-site inspection report? The answer to this question is in ConsultantPlus. If you don't have access to the system, get a free trial online.

For more information about providing documents to the Federal Tax Service, read the article “How to submit documents at the request of the tax inspectorate .

When conducting a desk audit, the tax authority conducts:

1.Checking the comparability of tax reporting indicators of the current period with indicators for the past period;

2. comparison of the indicators of the audited tax return with the indicators of tax returns for other types of taxes and financial statements;

3. assessment of the reliability of the tax return indicators, based on the information available to the tax authority;

4. analysis of the main indicators of the financial and economic activities of the taxpayer in comparison with the average indicators for a group of similar taxpayers.

If, during a desk audit, errors are identified in filling out a tax return or contradictions between information, the Federal Tax Service Inspectorate within 3 working days informs the taxpayer about this and offers to make appropriate changes within 5 days. If the taxpayer does not make the appropriate corrections within the prescribed period, then the Federal Tax Service begins collecting evidence. Most often, this is done by: requesting from the taxpayer additional information, explanations and documents confirming the correctness of his tax calculations; requesting from other persons documents related to the activities of a given taxpayer; obtaining information from banks about transactions on the accounts of the taxpayer being audited.

It should be noted that the requirement to submit documents is signed by the INFS official conducting the inspection and handed over to the taxpayer against signature, or sent by registered mail with notification. The taxpayer’s refusal to provide the requested information or failure to provide it within the established time frame is recognized as a tax offense and entails liability under Part 1 of Art. 126 of the Tax Code of the Russian Federation.

Is it possible to send clarification during the inspection?

As we noted above, among the offenses that can be recorded under Art. Tax Code 101 - non-payment of taxes, fees or incomplete transfer to the budget (Article 122 of the Tax Code of the Russian Federation). The amount of these obligations is fixed mainly based on the information in the tax return provided by the company to the Federal Tax Service.

It may happen that the accounting department of the audited organization discovers that the already submitted declaration contains errors, as a result of which discrepancies arise between the actual tax obligations and the declared ones not in favor of the taxpayer. The Federal Tax Service, having discovered them during an inspection, can record an offense. Many companies, upon detection of relevant errors, immediately send an updated declaration to the Federal Tax Service. But is it possible to do this directly during the inspection?

Taxpayers are required to send clarifications to the tax authorities if errors in the previous declaration led to a reduction in tax (clause 1 of Article 81 of the Tax Code of the Russian Federation). In turn, the norms of the Tax Code of the Russian Federation do not establish circumstances and criteria limiting the sending of updated declarations to the Federal Tax Service.

Thus, it is quite acceptable to send clarifications to tax authorities during audits. However, will this help to avoid a decent fine upon discovery of arrears by the Federal Tax Service - 20% of the unpaid tax (clause 1, Article 122 of the Tax Code of the Russian Federation), and if inspectors consider the incorrect calculation of tax by the company to be intentional - then 40% (clause 3, Article 122 Tax Code of the Russian Federation)?

Unfortunately, the clarification does not guarantee that the Federal Tax Service will refuse to issue a fine. But you can avoid it if:

• submit the clarification before the deadline for transferring the tax to the budget;
• submit the clarification before being informed that the Federal Tax Service has discovered an error in the main declaration, or that the tax authorities will initiate an on-site audit for the corresponding period, provided that by the time the clarification is submitted the company will have paid the tax and penalties;
• During the on-site inspection, the Federal Tax Service did not reveal any errors in the declaration.

Another option to avoid a fine is to pay taxes and penalties, submit an amendment and send a request to the Federal Tax Service not to charge a fine, based on the provisions of sub-clause. 3 p. 1 art. 112 of the Tax Code of the Russian Federation. That is, by referring to circumstances that could mitigate liability for the identified tax offense.

Providing clarification, paying taxes and penalties, at a minimum, will convince the Federal Tax Service that the payer understated the amount of tax in the main declaration unintentionally, and the likelihood of the department imposing a fine of 40% will be significantly reduced.

To learn how the fine for tax failure to be paid on time will be calculated when several clarifications are submitted for the same period, read the material “How will the fine for non-payment be calculated if several clarifications are submitted in one period?” .

Request for payment of taxes

The requirement to pay taxes, penalties and fines on the basis of a decision to bring into force tax liability is sent to the taxpayer within 10 working days from the date of entry into force of this decision (Clause 2 of Article 70 of the Tax Code of the Russian Federation).

Note. The requirement sent to the organization by the tax authority with which the taxpayer is registered is transferred to the head of the organization personally against signature or sent by registered mail. In this case, it is considered received after six working days from the date of sending the registered letter.

The requirement must contain information:

- about the amount of tax debt;

— the amount of penalties accrued at the time the claim was sent;

— the deadline for paying the tax established by the legislation on taxes and fees;

— deadline for fulfilling the requirement;

— measures to collect tax and ensure the fulfillment of the obligation to pay tax, which are applied in the event of failure to comply with the requirement by the taxpayer.

In all cases, the request must contain detailed information about the grounds for levying the tax, as well as a reference to the provisions of the legislation on taxes and fees that establish the taxpayer’s obligation to pay the tax.

What are the legal grounds for the Federal Tax Service to take interim measures?

In accordance with paragraph 10 of Art. 101 of the Tax Code of the Russian Federation, the Federal Tax Service may apply interim measures against the inspected organization aimed at preserving the assets of the payer, through which its obligations to the budget that arose as a result of the inspection can be repaid. It will be useful to consider what are the legal reasons for taking these measures by the Federal Tax Service and in what cases the tax authorities do not have the right to implement them.

The Tax Code of the Russian Federation does not contain provisions regulating in detail the criteria for initiating interim measures, which the Federal Tax Service must adhere to. In paragraph 10 of Art. 101 of the Tax Code of the Russian Federation only states that tax authorities must have sufficient grounds to believe that refusal to take interim measures may adversely affect the execution of the decision of the Federal Tax Service, which requires the company to pay arrears, penalties and fines. What could those “sufficient reasons” be?

Judicial practice shows that such a basis may be, in particular, the actions of the inspected company, expressed in the transfer of fixed assets in favor of the founders, in terms of timing coinciding with the inspection (Resolution of the Federal Antimonopoly Service of the West Siberian District dated January 27, 2012 No. A27-5430/2011) . Tax authorities, having recorded this circumstance, have the right to consider that the company, by reducing assets, seeks to avoid subsequent payment of arrears, and the court may agree with this argument of the Federal Tax Service.

Another possible sufficient reason is the initiation by the company of a liquidation procedure, accompanied by a decrease in the amounts available in current accounts (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated January 21, 2013 No. A53-9359/2012). This reason can be assessed as especially compelling if the liquidated company, in addition to cash in its current account, does not have a significant amount of other property through which the debt to the budget can be repaid.

The active sale of property by a company directly upon receipt of an inspection report from the Federal Tax Service is another possible reason for tax authorities to find sufficient grounds for taking interim measures (Resolution of the Federal Antimonopoly Service of the East Siberian District dated September 4, 2012 No. A10-3116/2011).

Another possible basis for discovering sufficient grounds for the Federal Tax Service to take interim measures against the taxpayer is the implementation by the audited company of settlements with shell companies (Resolution of the Federal Antimonopoly Service of the West Siberian District dated April 10, 2015 No. A70-6490/2014).

One way or another, in most cases, the taxpayer has the right to challenge the decision of the Federal Tax Service to take interim measures in court, since the Tax Code of the Russian Federation does not define in detail the criteria for detecting sufficient grounds for issuing it.

At the same time, the payer also has the opportunity to give the tax authorities a counter-response in the form of their own “interim measures.” Let us consider their essence in more detail.

The decision and its contents

The final document may either provide for recovery or do without it. The options that determine the penalties should include the following information:

• circumstances relevant to the case, established by the audit;
• counter-arguments of the taxpayer in favor of the fact that the performance of his duties was proper, and their assessment;
• a reference to the norm of the Tax Code of the Russian Federation establishing punishment for violation;
• information on the amount of arrears, penalties, as well as the fine due for payment.

If the decision does not involve liability, then it must contain the grounds for adoption. In cases where an audit confirms arrears, it must be indicated along with the amount of the penalty.

If the legislation on administrative offenses provides for separate liability, then a corresponding resolution establishing a penalty may be issued in relation to the person being inspected. Such rules are determined by the norms of the Code of Administrative Offences.

There may also be signs of a crime. If they are discovered, the execution of the decision is suspended, and the materials are sent to law enforcement agencies. If the latter decide to terminate the investigation or refuse to initiate a case, then the tax authorities cancel the above suspension. The procedure is similar in the case of an acquittal.

Interim measures in favor of the taxpayer: what is their essence?

The term “interim measures” in Russian legislation can be interpreted in different ways. Thus, in the Tax Code of the Russian Federation, these are understood as actions of the Federal Tax Service aimed at preserving the taxpayer’s property, against which arrears can be repaid. However, there are also interim measures provided for by the arbitration procedural legislation. In accordance with paragraph 1. Art. 90 of the Arbitration Procedure Code of the Russian Federation, these should be understood as measures that are aimed at ensuring the property interests of the subject.

The main interim measures (in the meaning given in the Arbitration Procedure Code of the Russian Federation) in this case may be:

• prohibition of the Federal Tax Service from performing actions with property and bank accounts that are actually the subject of a dispute (subclause 2, clause 1, article 91 of the Arbitration Procedure Code of the Russian Federation);
• suspension of the decision of the Federal Tax Service on the adoption of interim measures in the meaning given in the Tax Code of the Russian Federation (clause 3 of Article 199 of the Arbitration Procedure Code of the Russian Federation).

As we noted above, recourse to arbitration is possible only after the taxpayer has carried out the necessary interactions with the Federal Tax Service in a pre-trial manner. But, if a company legally initiated a claim in arbitration, the subject of which is the adoption of interim measures (in the meaning given in the Arbitration Procedure Code of the Russian Federation), then the Federal Tax Service, while the case is being considered in court, cannot apply its own interim measures in the meaning given in the Tax Code RF (clause 77 of the resolution of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).

Sources:

• Tax Code of the Russian Federation
• Arbitration Procedural Code of the Russian Federation

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Selection criteria

Each company can independently assess its risks. The Federal Tax Service has released a number of criteria, non-compliance with which increases the chances of a company having personal communication with inspectors.

The main indicators are given in the Order of the Federal Tax Service of the Russian Federation dated May 30, 2007 No. MM-3-06/ [email protected]

The following are reasons for the tax authorities to take a closer look at the company:

1. The calculated taxes for the period are below the average level of taxes for enterprises in a similar industry.
2. The company shows losses in its declarations for several periods in a row.
3. The company asserts its right to deductions. For example, VAT accepted for deduction is significantly more than the accrued tax.
4. Expenses significantly exceed income and grow with each reporting period.
5. Employees have low salaries. Below the minimum wage and (or) below the average salary level for the region, industry, etc.
6. The income and number of employees of taxpayers using the simplified tax system are constantly close to the maximum values.
7. Individual entrepreneurs' income is constantly at the same level as expenses.
8. Transactions involve chains of counterparties-resellers (intermediaries) and there are no reasonable business goals for this.
9. The company or individual entrepreneur ignores the requirements of the Federal Tax Service and does not provide the requested documents.
10. The company has repeatedly changed its address, that is, it “migrates” between tax authorities.
11. The profitability of the enterprise is low in comparison with the profitability of enterprises with similar activities.
12. The company enters into transactions with dubious counterparties.

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Grounds for canceling a tax authority's decision

The decision does not take effect immediately. The person involved is given a month to appeal the document through the appeal procedure. It is possible to challenge a decision by filing a complaint through the body that made the original decision.

The outcome of the consideration of the complaint may be either its satisfaction or refusal. The application may also be partially granted. In addition, a higher executive body can cancel the decision and make a new one.

Any decision not related to the satisfaction of the complainant’s demands transfers the disputed document to the status of being valid in part or in full.

After an unsuccessful appeal, it is possible to file claims in court. This complaint is sent to the appropriate structure at the location of the body that made the decision. Requirements for the content of statements of claim when filing and acceptable deadlines are contained in the procedural legislation of the Russian Federation.

The reasons for cancellation can be both factual and procedural, due to a gross violation of the rights of the involved person.

Also, the basis for cancellation is a conviction against an individual who was previously brought to tax liability.

Is it possible to replace

The taxpayer may contact the tax authorities by submitting a request for interim measures of an alternative nature.

We are talking about the voluntary replacement of these restrictions with a bank guarantee with full coverage, a pledge of highly liquid securities or other property. Third party guarantees are also possible.

If a guarantee is presented, issued by a bank included in a special list, then replacement must be carried out without fail after registration, since the obligations of the credit institution are reliable, and the interim measures, the termination of which the taxpayer seeks, harm the company.

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