Article 89 of the Tax Code of the Russian Federation. On-site tax audit (current version)

A tax audit is a form of tax control over compliance with legislation on taxes and fees by taxpayers, payers of fees or tax agents. The Tax Code names two forms of such inspections: desk and on-site .

Taxpayers are aware of another form of tax audit – counter audit. There is currently no such concept in the Tax Code of the Russian Federation, but there is an obligation to submit, at the request of the tax inspectorate, documents related to the activities of a certain counterparty. Naturally, these documents will also provide information about the taxpayer who submitted them, which means they also bear the risk of tax sanctions.

To ensure that tax audits do not present you with unpleasant surprises, we recommend that from time to time we organize total internal audits designed to identify potential tax risks and assess the completeness and timeliness of submission of all reports. This service is available to our users free of charge.

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All taxpayers repeatedly undergo a desk tax audit - after submitting each declaration, calculation or other documents on tax obligations. On-site tax audits are not carried out in relation to all taxpayers, but selectively, for one or more taxes, and they can cover a period of up to three years preceding the year of the audit. We have listed the main differences between these two types of tax audits in the table.

What is an on-site inspection by the Federal Tax Service?

Conducting on-site tax audits is among the main activities of the Federal Tax Service of the Russian Federation. This procedure is regulated by the provisions of Art. 89 of the Tax Code of the Russian Federation, other federal laws, as well as by-laws, letters and clarifications of departments related to the activities of the Federal Tax Service.

An on-site tax audit is a procedure that complements a desk audit. In general, it represents a visit of Federal Tax Service inspectors to the territory of the taxpayer organization. Organized for the purpose of checking documents and other significant circumstances of the company’s compliance with the requirements established by the legislation of the Russian Federation.

Let's study the basic rules of the relevant events established by Art. 89 of the Tax Code of the Russian Federation and other regulatory sources, more details.

How is an on-site tax audit carried out?

An on-site tax audit is a much more complex, lengthy and negative event for the taxpayer than a desk audit. The on-site inspection begins from the day the decision is made to conduct it, which the inspectors must present to you along with their official identification.

To conduct an inspection, you must provide inspectors with premises on your territory. If this is not possible, for example, because the LLC is registered at a home address or they are checking an individual entrepreneur who does not have an office, then an on-site tax audit will be carried out on the territory of the tax authority. In this case, the problem arises of transferring many of your documents to the tax office, so sometimes inspectors agree to conduct the audit in a temporarily rented neighboring office.

During an on-site tax audit, tax officials not only study documents, but also interview the taxpayer and his employees. Inspectors must have access to all documents related to the calculation and payment of taxes, including their originals. It is possible to carry out other tax control measures, such as:

• seizure of documents and objects;
• questioning of witnesses;
• appointment of examination;
• inspection;
• property inventory;
• involvement of a specialist, translator.

The period for conducting an on-site tax audit should not exceed two months, and for a branch or representative office - one month. The two-month period can be extended to four or even six months. In addition, the inspection may be suspended for the reasons specified in paragraph 9 of Article 89 of the Tax Code of the Russian Federation for a period of up to six months. During the period of suspension of the on-site inspection, the activities of the inspectors are terminated, and the original documents are returned to the taxpayer (unless they were obtained as a result of seizure).

The on-site tax audit ends with the preparation of a certificate, which records the subject of the audit and the timing of its implementation. The certificate only records the completion date of the on-site tax audit, and its results are reflected in the report.

Unlike a desk inspection, during an on-site inspection a report must be drawn up, even if no violations were found. An on-site tax audit report is drawn up within two months after the certificate of completion. The act must be delivered to the taxpayer personally (or his representative), and if he avoids receiving it, the act is sent by mail and is considered served on the sixth day from the date of sending the registered letter. The procedure for filing objections to an on-site inspection report, making a decision and appealing is the same as for a desk inspection.

If you want to understand in detail how an on-site tax audit is carried out from the point of view of tax officers fulfilling their official duties, we recommend that you read the letter of the Federal Tax Service dated July 25, 2013 No. AC-4-2/13622 “On recommendations for conducting on-site tax audits” "

Basic rules for on-site inspections of the Federal Tax Service

An on-site inspection by the Federal Tax Service is carried out on the basis of a decision signed by the head of the territorial structure of the tax service. Inspectors taking part in it are also appointed by a separate local legal act - these are the requirements of paragraph 1 and paragraph 2 of Art. 89 Tax Code of the Russian Federation. As we noted above, the event in question is usually held on the territory of the taxpayer. But if it is impossible to provide it, the check is carried out in the building of the territorial division of the Federal Tax Service to which the company is assigned.

During the event under consideration, Federal Tax Service inspectors may request all documents related to taxes from the taxpayer or his counterparties. If necessary, tax authorities have the right to conduct an inventory of the company’s assets and inspect its premises. In accordance with paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, Federal Tax Service inspectors can check documents only for 3 years preceding the year in which the check was initiated.

The measures under consideration cannot be carried out for the same types of taxes in the same year more than 2 times. In addition, the Federal Tax Service can initiate only 2 on-site inspections during the year. If a company is reorganized or liquidated, then an on-site inspection can be initiated against it at any time, regardless of previous events of this type. The subject of studying the company's activities also does not matter. However, in this case, inspectors have the right to examine a period that does not exceed 3 years before the year in which the Federal Tax Service decided to conduct the inspection. The duration of the event in question, as a rule, does not exceed 2 months - these are the provisions of paragraph 6 of Art. 89 Tax Code of the Russian Federation. But if necessary, the inspection period can be extended to 4 months. As an exception - up to 6.

Upon completion of the audit, a document is drawn up and sent to the taxpayer, which records information about the event.

Article 89 of the Tax Code of the Russian Federation. On-site tax audit (current version)

For example, a tax authority may, during an on-site audit, identify circumstances that impede tax deductions that could not be identified during a desk audit. The mere fact of VAT reimbursement based on the results of a desk audit does not exclude the possibility of additional tax assessment based on the results of an on-site audit and recognition of deductions as unlawful, since the Tax Code of the Russian Federation does not prohibit such additional tax assessment and does not make the possibility of additional tax assessment based on an on-site audit dependent on the results of a desk audit for the same period.

In addition, the tax authority has the right, after a desk audit, to conduct an on-site tax audit on the same tax and, after its completion, make a decision on its additional assessment, despite the fact that the organization appealed the desk audit report on the additional assessment of this tax to a higher tax authority.

The Tax Code of the Russian Federation does not prohibit the simultaneous conduct of on-site and desk tax audits.

As the FAS of the East Siberian District indicated in Resolution No. A19-19310/2011 dated July 19, 2012, conducting a desk tax audit during a field tax audit does not contradict the norms of the Tax Code of the Russian Federation, since the legislation does not prohibit the tax inspectorate from simultaneously conducting desk and field tax audits on the same and the same taxes for the same period. Article 89 of the Tax Code of the Russian Federation only limits the conduct of two or more on-site tax audits on the same taxes for the same period.

In addition, since on-site and desk audits are independent and independent forms of tax control, the failure of the tax authority to identify unlawful actions of the taxpayer during desk tax audits does not exclude the possibility of establishing and proving these facts within the framework of an on-site tax audit, which is another form of tax control.

In accordance with the explanations of the Constitutional Court of the Russian Federation contained in Determination No. 441-О-О dated 04/08/2010, the norms of the Tax Code of the Russian Federation do not prohibit, during an on-site inspection, the identification of violations that were not detected during a desk inspection.

This was brought to the attention of the Federal Antimonopoly Service of the North-Western District in Resolution dated 03/05/2012 N A26-5577/2011.

In the Ruling of the Supreme Arbitration Court of the Russian Federation dated July 16, 2012 N VAS-8251/12, the court found that the taxpayer’s argument about the tax authority’s obligation to conduct an on-site tax audit on based on documents previously submitted to the tax authority for desk tax audits for certain periods. The adoption by the tax authority of decisions on reimbursement of value added tax based on desk audits does not exclude the possibility of subsequently adjusting, based on the results of on-site tax audits, the amounts of tax in respect of which such decisions were made, if circumstances are established indicating that the reimbursement was unfounded (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 22, 2006 N 15000/05).

The Federal Antimonopoly Service of the West Siberian District, in Resolution dated November 29, 2012 N A46-17546/2012, having examined and assessed the evidence presented in the case file, established that the reason for ordering an on-site tax audit of the company was Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 19, 2011 N 15932/10 , which defines the practice of applying the rules of law of the above regional normative legal acts in disputes related to the calculation and payment of land tax for 2008.

During the on-site tax audit, the tax authority re-examined and investigated the same factual circumstances as during the desk audit of the updated tax return for land tax for 2008.

As part of the on-site tax audit, no new information was established that was previously unknown to the tax authority, or circumstances regarding the area or location of the land plot that is the subject of taxation.

In contrast to the decision of the tax authority, adopted based on the results of a desk audit, the contested decision of the tax authority contains a conclusion on the need to determine the tax liability for land tax based on the cadastral value of the land plot established in Resolution No. 174-p, and not by Decree No. 110.

The court noted that the contested decision was made by the tax authority before receiving the documents it requested from the Office of the Federal Service for State Registration, Cadastre and Cartography for the constituent entity of the Russian Federation.

Thus, in the case under consideration, the depth of desk and field tax audits is the same.

Under such circumstances, the court concluded that the on-site tax audit, although formalized by the tax authority in the manner established by Article 89 of the Tax Code of the Russian Federation, was not actually such, since it was carried out in order to eliminate an error made by the inspection (application of Decree No. 110 instead of Resolution No. 174-p ) and additional assessment of land tax for 2008 for the range of circumstances and offenses that were identified as a result of a desk tax audit.

At the same time, the court indicated that it is unacceptable for the tax authority to create such conditions under which the type of tax audit it has chosen (desk or field) without any actual differences in their essence could allow the tax authority, at its own and formally unlimited discretion, to revise what it had previously adopted. according to a desk tax audit, a decision is made, changing only the applicable rules of law, on the basis of which not only the tax is additionally charged, but also penalties for the entire period of the arrears.

The courts noted that the definition (change) of judicial and arbitration practice is not considered by the legislation of the Russian Federation on taxes and fees to be either a reason or a basis for carrying out an on-site tax audit of a taxpayer. Errors of the tax authority in law enforcement are subject to elimination in the manner prescribed by Chapter 20 of the Tax Code of the Russian Federation.

Taking into account the specific circumstances, the court declared the contested decision of the tax authority invalid.

According to the Decree of the Constitutional Court of the Russian Federation dated 04/08/2010 N 441-О-О, paragraph 1 of Article 89 of the Tax Code of the Russian Federation provides that an on-site tax audit is carried out on the territory (premises) of the taxpayer based on the decision of the head (deputy head) of the tax authority. This provision also provides for another option for conducting an on-site tax audit: if the taxpayer does not have the opportunity to provide premises for conducting an on-site tax audit, an on-site tax audit can be carried out at the location of the tax authority.

In the Resolution of the Federal Antimonopoly Service of the Far Eastern District dated June 20, 2012 N F03-2316/2012, the court found that an on-site tax audit of the entrepreneur’s activities was carried out at the location of the Federal Tax Service of Russia in Petropavlovsk-Kamchatsky in connection with the taxpayer’s application signed by his representative by proxy. Consequently, the taxpayer’s argument about the illegality of conducting an audit at the location of the tax authority was recognized by the court as contrary to the norms of tax legislation.

In the Resolution of the Federal Antimonopoly Service of the Moscow District dated October 30, 2012 N A40-29703/12-115-124, the court found that the organization was unreasonably deprived of the right to conduct an on-site tax audit on its territory (in its premises), the right to familiarize tax officials with the originals documents of the taxpayer in the territory of the audited entity, since the organization did not apply to the tax authority with an application to conduct an audit at the location of the tax authority.

The organization had and has the opportunity to provide premises to inspectors to exercise the powers assigned to them to conduct an on-site tax audit of the organization. All previously conducted on-site tax audits were carried out at the organization’s office premises.

If the tax authority has made a decision to conduct an on-site tax audit, then the Tax Code of the Russian Federation and other regulatory legal acts do not provide for the possibility of postponing its conduct due to the start of the procedural deadlines provided for by the Tax Code of the Russian Federation after the adoption of the said decision for determining the duration of the audit, drawing up a certificate of the audit conducted , an audit report, consideration of the taxpayer’s objections and making a decision based on its results.

Thus, an on-site audit is carried out on the basis of a decision of the tax authority. Sometimes situations occur in which technical errors are made in this decision, which is not a basis for invalidating the decision to conduct an inspection.

The FAS Moscow District, in Resolution No. A40-26973/12-99-126 dated August 14, 2012, established that the tax authority made a technical error in the title of the controversial decision: instead of “decision to conduct an on-site tax audit,” it was erroneously stated: “decision to conduct an on-site tax audit.” inspections in connection with liquidation."

After discovering this error, the tax authority decided to amend the decision to conduct an on-site tax audit, which was sent to the taxpayer by mail to all known addresses.

The tax authority complied with all the requirements of Article 89 of the Tax Code of the Russian Federation when making the contested decision, therefore a technical error cannot lead to the decision being invalidated.

There are no rules in the Tax Code of the Russian Federation prohibiting tax authorities from making changes to the decisions they make aimed at correcting errors of an organizational and technical nature (spoofs, typos, arithmetic errors).

This error did not negatively affect the rights and obligations of the organization as a taxpayer, did not entail any negative consequences for the taxpayer, and was eliminated by the tax authority independently.

As the Federal Tax Service of Russia explained in letter No. AS-37-2/15853 dated November 18, 2010, the Tax Code of the Russian Federation does not contain rules requiring tax authorities to inform the taxpayer in advance about the appointment and conduct of an on-site tax audit.

The Resolution of the Federal Antimonopoly Service of the Central District dated October 30, 2012 N A35-104/2012 noted that the current tax legislation provides for the participation of employees of internal affairs bodies only within the framework of an on-site tax audit (Article 89 of the Tax Code of the Russian Federation), which is necessarily indicated in the tax decision authority to conduct an on-site audit, as provided for by the provisions of the Instruction on the procedure for interaction between internal affairs bodies and tax authorities when organizing and conducting on-site tax audits, approved by Orders dated 06/30/2009 of the Ministry of Internal Affairs of the Russian Federation N 495 and the Federal Tax Service N MM-7- 2-347.

In Resolution dated 07/06/2012 N A46-12176/2011, the Federal Antimonopoly Service of the West Siberian District indicates that determining the amount of unpaid tax only by comparing data from accounting and tax reporting with other analytical information does not comply with the norms of tax legislation and contradicts the requirements of Article 89 of the Tax Code of the Russian Federation imposed to an on-site tax audit, the procedure for its conduct, the types and volume of documents that are the subject of the audit and are examined during its conduct.

The tax authority’s argument that it does not have the obligation to verify the tax base using primary accounting documents contradicts the purpose of the on-site tax audit, defined by paragraph 4 of Article 89 of the Tax Code of the Russian Federation.

The limitation on the period for which an on-site tax audit can be carried out is established in paragraph 4 of Article 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 the audit was made.

In the Resolution of the Federal Antimonopoly Service of the Central District dated November 21, 2012 N A35-439/2012, the court indicated that the tax authority did not have legal grounds for investigating these circumstances in relation to the period of activity of the inspected person outside the statute of limitations established by paragraph 4 of Article 89 of the Tax Code of the Russian Federation. Beyond the three-year period, the tax authority is deprived of the opportunity to collect, record and present to the court evidence relating to earlier periods of activity of the tax agent, and, accordingly, is limited in the right to collect tax debts relating to these periods of activity.

At the same time, an on-site tax audit is carried out on the basis of a decision of the head (deputy head) of the tax authority, which already at the time of its issuance contains the name or surname of the taxpayer, a list of taxes being audited and the period being audited. The provisions of Article 89 of the Tax Code of the Russian Federation do not provide for changing the periods of an on-site tax audit if the decision to conduct an audit is received by the taxpayer (handed to him) not in the year in which it was made. That is, adjustment of the periods that can be checked during an on-site inspection scheduled at the end of one calendar year, taking into account the date of delivery of the decision to conduct it in the next year, is not provided for by Article 89 of the Tax Code of the Russian Federation.

This is also indicated in the Resolution of the Federal Antimonopoly Service of the North-Western District dated June 22, 2012 N A05-14239/2010.

Article 89 of the Tax Code of the Russian Federation provides the tax inspectorate with the opportunity to conduct an on-site tax audit for a period beyond the three-year period for which an on-site tax audit can be carried out: if the taxpayer submits an updated tax return within the framework of the corresponding on-site tax audit, the period for which the updated one is submitted is checked. tax return.

The Federal Antimonopoly Service of the East Siberian District, in Resolution dated July 19, 2012 N A19-19310/2011, came to a similar conclusion.

The Ministry of Finance of Russia in letter dated July 11, 2011 N 03-02-07/1-234 noted that the duration of an on-site tax audit, if extended, can be four months, and in exceptional cases - six months.

An on-site tax audit may be suspended in the cases listed in paragraph 9 of Article 89 of the Tax Code of the Russian Federation.

Let us note that, within the meaning of paragraph 9 of Article 89 of the Tax Code of the Russian Federation, during the period of suspension of an on-site tax audit, it is also not allowed to receive explanations from the taxpayer and interrogate his employees.

At the same time, the tax authority is not deprived of the right to carry out actions outside the territory (premises) of the taxpayer, if they are not related to the request of documents from the taxpayer.

In addition, the taxpayer is obliged to submit to the tax authority those documents that were requested before the suspension of the audit (clause 26 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

In accordance with the Order of the Federal Tax Service of the Russian Federation dated December 25, 2006 N SAE-3-06/ [email protected] “On approval of document forms used when conducting and processing tax audits; grounds and procedure for extending the period for conducting an on-site tax audit; the procedure for interaction between tax authorities to carry out orders to request documents; requirements for drawing up a Tax Audit Report,” the grounds for extending the period for conducting an on-site (repeated on-site) tax audit to four and (or) six months may be the conduct of inspections of a taxpayer classified as the largest; receiving, during an on-site (repeated on-site) tax audit, information from law enforcement, regulatory authorities or other sources indicating that the taxpayer, fee payer, tax agent has violated the legislation on taxes and fees and requires additional verification; the presence of force majeure circumstances (flooding, flooding, fire, etc.) in the territory where the inspection is carried out; conducting inspections of organizations that have several separate divisions, namely: four or more separate divisions - up to four months; less than four separate divisions - up to four months, if the share of taxes paid attributable to these separate divisions is at least 50% of the total amount of taxes paid by the organization, and (or) the share of property on the balance sheet of separate divisions is at least 50 % of the total value of the organization’s property; ten or more separate units - up to six months; failure by a taxpayer, fee payer, or tax agent to submit, within the time limit established in accordance with paragraph 3 of Article 93 of the Tax Code of the Russian Federation, the documents required for conducting an on-site (repeated on-site) tax audit; other circumstances.

The need and timing for extending an on-site (repeated on-site) tax audit are determined based on the duration of the period being inspected, the volume of documents being checked and analyzed, the number of taxes and fees for which the audit is ordered, the number of activities carried out by the inspected person, the ramifications of the organizational and economic structure of the inspected person, the complexity technological processes and other circumstances.

As stated in the Resolution of the Federal Antimonopoly Service of the Moscow District dated December 24, 2012 N A40-40169/12-20-209, there are no special and/or additional conditions for making a decision to extend the on-site inspection period to 6 months, as well as a precise description of “exceptional” cases, only upon the occurrence of which the Federal Tax Service of Russia for a constituent entity of the Russian Federation can make a decision on such an extension, the provisions of the legislation on taxes and fees of the Russian Federation do not contain.

The Resolution of the Federal Antimonopoly Service of the West Siberian District dated 07/06/2012 N A45-17556/2011 clarified that from paragraph 9 of Article 89 of the Tax Code of the Russian Federation it does not follow that for the period of validity of the suspension of an on-site tax audit, the actions of the tax authority in conducting interviews with witnesses, sending requests.

At the same time, in the Resolution of the Federal Antimonopoly Service of the Ural District dated October 16, 2012 N F09-9504/12, the court did not accept the taxpayer’s argument that witness testimony obtained during the suspension of the tax audit is unacceptable evidence. Clause 9 of Article 89 of the Tax Code of the Russian Federation contains restrictions on the actions of the tax authority during the period of suspension of an audit to request documents from the taxpayer himself, and also limits the actions of the inspectorate on the territory of the taxpayer, that is, conducting interrogations during the period of suspension of a tax audit is not a violation.

In the Resolution of the Federal Antimonopoly Service of the Moscow District dated November 29, 2012 N A40-54948/12-91-307, the court established that the deadline for submitting documents at the request of the tax authority fell during the period of suspension of the on-site tax audit.

The court pointed out that the failure to submit these documents during the period of suspension of the inspection does not constitute an offense, liability for which is provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation, since imposing the obligation to transfer documents during the specified period violates the rights of the taxpayer guaranteed by paragraph 5 of paragraph 9 of Article 89 of the Tax Code RF.

In the situation considered in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 22, 2013 N A39-840/2012, the period for suspending the on-site inspection of the organization exceeded the period established by paragraph 9 of Article 89 of the Tax Code of the Russian Federation.

At the same time, the resumption of an on-site tax audit does not contradict the provisions of the Tax Code of the Russian Federation and cannot in itself entail a violation of the rights and legitimate interests of the taxpayer.

Violation by the tax authority of the deadline for suspending an on-site tax audit in this case cannot be recognized as a necessary and sufficient basis for declaring the contested non-normative act invalid.

At the same time, the court pointed out that the fact of violation of the deadlines for suspending an on-site tax audit may be the subject of a judicial assessment in the framework of a dispute about invalidating a decision made based on the results of the audit.

The period for conducting an on-site tax audit is the sum of the periods during which the inspectors are on the territory of the taxpayer being inspected, and if a tax audit is suspended, the two-month period established by paragraph 6 of Article 89 of the Tax Code of the Russian Federation is suspended.

A similar position is set out in judicial practice (see Resolution of the Federal Antimonopoly Service of the North-Western District dated June 22, 2012 N A05-14239/2010).

According to the explanations of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 1621/11 of July 19, 2011, partial submission by taxpayers of primary accounting and tax accounting documents as part of an on-site tax audit is not a circumstance that exempts tax authorities from applying the provisions of subparagraph 7 of paragraph 1 of Article 31 Tax Code of the Russian Federation, since the task of tax control is to objectively establish the amount of the tax liability of the taxpayer being audited.

The tax authority has the right to conduct an independent on-site tax audit of branches and representative offices regarding the correctness of calculation and timely payment of regional and (or) local taxes. An independent on-site 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 division.

The Tax Code of the Russian Federation does not provide for the tax authority to conduct an independent on-site tax audit of a separate division that is not a branch or representative office of the organization, as well as to conduct the said audit of branches or representative offices on issues of the correctness of calculation and timely payment of federal taxes, including those provided for by special tax regimes.

This position is reflected in the letter of the Ministry of Finance of Russia dated March 28, 2011 N 03-02-08/32.

In the Resolution of the Federal Antimonopoly Service of the East Siberian District dated November 27, 2012 N A58-370/2012, the court noted that the tax authority has the right to inspect branches of an organization as part of an audit of the organization as a whole, without making a separate decision to conduct an audit of any branch.

It should be added that the appointment of an on-site tax audit to ensure taxpayers’ compliance with the legislation on taxes and fees falls within the competence of the tax authority with which the relevant organization is registered and registered with the tax authorities. Exceptions to this rule are those cases when an independent on-site tax audit of a branch or representative office of an organization is carried out based on a decision of the tax authority at the location of the separate division.

Drawing up a certificate of inspection actually means that the inspection is completed.

A similar position is reflected in the Resolution of the Federal Antimonopoly Service of the North-Western District dated October 25, 2012 N A26-7671/2011: the date of preparation of the certificate records the end of the on-site tax audit (clause 8 of Article 89 of the Tax Code of the Russian Federation).

The Federal Tax Service of Russia, in a letter dated December 29, 2012 No. AS-4-2/22690, explained that the inspectors must hand over the completed certificate to the taxpayer or his representative in person (paragraph 1 of clause 15 of Article 89 of the Tax Code of the Russian Federation). The certificate form provides a field in which the taxpayer marks the receipt of the certificate, if the certificate is handed directly to him and not sent by mail.

The certificate is handed over on the same day when it is drawn up, i.e. on the last day of the inspection (paragraph 1 of paragraph 15 of Article 89 of the Tax Code of the Russian Federation).

If the taxpayer (his representative) avoids receiving a certificate, it must be sent by registered mail (paragraph 2 of paragraph 15 of Article 89 of the Tax Code of the Russian Federation). In this case, the signature of the taxpayer (his representative) on the certificate is not required. The date of receipt of the certificate will be considered the date indicated on the calendar stamp of the postal notification of delivery of the letter to the addressee.

It should be noted that the completion date of the inspection coincides with the date of drawing up the certificate (clause 15 of Article 89 of the Tax Code of the Russian Federation). Further calculation of deadlines for processing the results of a tax audit is calculated from the date of drawing up the certificate, and not its delivery; therefore, a different deadline for delivery of the certificate does not entail any consequences for the taxpayer.

It should be noted that after drawing up the certificate, tax authority employees do not have the right to be on the taxpayer’s territory, request documents, or carry out other tax control activities.

As the Third Arbitration Court of Appeal indicated in Resolution No. A33-18616/2011 dated May 23, 2012, the signing of a certificate of an audit by not all persons who were entrusted with conducting an audit is not an absolute basis for concluding that the decision made based on the results of an on-site tax inspection is invalid. checks.

The mandatory signing of the certificate by all officials of the tax authority who conducted the audit is not provided for by Article 89 of the Tax Code of the Russian Federation, and therefore the FAS Volga Region, in Resolution dated March 13, 2012 N A72-4064/2011, rejected the argument that the certificate of the on-site tax audit was not signed by the head of the inspection team.

A taxpayer who, on the last day of an on-site tax audit, was given a certificate of a tax audit and a requirement to submit documents in connection with this audit, dated on the same day, is not required to comply with this requirement.

The FAS Volga-Vyatka District, considering in Resolution No. A29-164/2011 dated February 27, 2012 the case of bringing an organization to tax liability by the tax authority, indicated that the inspection on the day of drawing up the certificate of the inspection is considered completed (finished), and therefore The taxpayer has no obligation to submit documents after the specified day. The court also relied on the fact that the request for documents and the tax audit certificate were dated on the same day.

The Tax Code of the Russian Federation provides for only a few cases when it is permissible to cancel a tax authority’s decision:

— the first case is specified in Article 176.1 of the Tax Code of the Russian Federation in relation to the application procedure for VAT refund;

— the second case implies the cancellation of the tax authority’s decision when it is appealed either by a higher tax authority or by a court.

At the same time, the Tax Code of the Russian Federation does not provide for rules granting the tax authority the right to cancel a decision previously made by it (not in a declarative manner, but in the usual manner) within the framework of an on-site tax audit.

This position is confirmed in the decision of the Moscow Arbitration Court dated April 20, 2011 N A40-523/11-20-3.

Article 89 of the Tax Code of the Russian Federation does not establish any prohibitions on conducting inspections during one tax period or calendar year, with the exception of the case provided for in paragraph 5.

In other words, tax authorities are prohibited from conducting more than two on-site tax audits in relation to a taxpayer as a whole during a calendar year.

Consequently, the adoption by the tax authority of a decision to conduct a new, second in the current calendar year, on-site audit with a new composition and its conduct during the same calendar year do not contradict the norms of tax legislation.

In addition, according to Article 89 of the Tax Code of the Russian Federation, a third on-site tax audit within a year may be legal if it is carried out as a repeat on-site tax audit carried out on the basis of paragraph 10 of this article.

The Supreme Arbitration Court of the Russian Federation, in its Determination No. VAS-18407/12 dated January 28, 2013, noted that Article 89 of the Tax Code of the Russian Federation does not contain a provision that a repeat tax audit can be carried out by a higher authority only after consideration of the materials of the initial audit. The task of monitoring the activities of a lower-level tax authority can be implemented by a higher-level tax authority after drawing up an audit report. The mentioned norm does not establish restrictions on the appointment and conduct of a repeat on-site tax audit as control over the tax authority before a decision is made on the initial on-site tax audit.

When applying the norm of Article 89 of the Tax Code of the Russian Federation that if a taxpayer submits an updated tax return, within the framework of the corresponding on-site tax audit, the period for which the updated tax return was submitted is checked, the following must be taken into account:

1) the norm is an exception to the general rule regarding the period that can be covered by an on-site tax audit (three calendar years immediately preceding the year in which the decision to conduct the audit was made);

2) the norm applies if the taxpayer submits an updated tax return for a period exceeding three calendar years preceding the year in which such a return is submitted;

3) the norm gives the tax authority the right to conduct an on-site tax audit for the period for which the updated tax return is submitted;

4) the specified on-site tax audit can be carried out if the corresponding period was not previously covered by an on-site tax audit;

5) the moment of submission of the updated tax return (during the on-site tax audit, before it, after it) is not important for the application of the norm.

The above position is reflected in the letter of the Federal Tax Service of Russia dated May 29, 2012 N AS-4-2/8792.

In the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 26, 2012 N A32-4042/2011, the court indicated that the Tax Code of the Russian Federation does not contain a prohibition on filing updated tax returns for the corresponding tax period in the event of the appointment, conduct or completion of an on-site tax audit for this period. There is no prohibition on filing an updated tax return even after a decision has been made based on the results of the said audit. Accordingly, the tax authority’s authority to verify it must also correspond with this taxpayer’s right to submit an updated tax return.

When submitting an updated tax return after the completion of an on-site tax audit, but before making a decision on it, the tax authority, taking into account the volume and nature of the updated information, has the right to carry out additional tax control measures, guided by paragraph 6 of Article 101 of the Tax Code of the Russian Federation, or, making a decision without taking into account the data of the updated tax declaration, schedule a repeat on-site inspection regarding updated data.

Note that the purpose of a repeated on-site tax audit conducted by a higher tax authority is precisely to control the tax authority that previously conducted an on-site tax audit, and not to re-inspect the taxpayer.

Since the Tax Code of the Russian Federation does not directly prohibit the suspension or extension of a repeat on-site inspection, a repeat inspection can be suspended in the same manner as established by Article 89 of the Tax Code of the Russian Federation (see Resolutions of the Federal Antimonopoly Service of the East Siberian District dated February 27, 2008 N A19-11393/07- 40-Ф02-449/08, Federal Antimonopoly Service of the Ural District dated 10/07/2010 N Ф09-8299/10-С3).

In Resolution dated October 30, 2012 N A20-895/2012, the Federal Antimonopoly Service of the North Caucasus District came to the conclusion that Article 89 of the Tax Code of the Russian Federation does not contain a provision that a repeat tax audit can be carried out by a higher authority only after reviewing the materials of the initial audit. The task of monitoring the activities of a lower-level tax authority can be implemented by a higher-level tax authority after drawing up an audit report. Article 89 of the Tax Code of the Russian Federation does not establish restrictions on the appointment and conduct of a repeat on-site tax audit as control over the tax authority before a decision is made on the initial on-site tax audit.

It is necessary to take into account that the status of a taxpayer remains with an individual even after he ceases his entrepreneurial activity.

The provisions of Article 89 of the Tax Code of the Russian Federation do not contain a ban on conducting on-site tax audits of individuals who have ceased activities as individual entrepreneurs.

The Constitutional Court of the Russian Federation, in Determination No. 95-O-O dated January 25, 2007, indicated that both organizations and individuals are subject to tax control and prosecution for identified tax offenses, regardless of whether they acquire or lose a special legal status, engage in certain activities, or transfer subject to certain taxes or special tax regimes; Tax control in the form of tax audits, as well as liability for tax offenses, are aimed at ensuring the fulfillment of the obligation to pay a tax or fee, which is terminated on the grounds provided for in paragraph 3 of Article 44 of the Tax Code of the Russian Federation.

Taking into account the above, the Ministry of Finance of Russia, in letter dated January 23, 2012 N 03-02-08/6, came to the conclusion that tax authorities have the right to carry out on-site tax audits of individuals who have lost the status of an individual entrepreneur during the period of their activities as an individual entrepreneur.

Purpose of conducting an on-site inspection

Let us consider in more detail what, in fact, is the purpose of the event in question. In accordance with paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, an on-site inspection is generally organized in order to establish the correctness of the calculation and payment of certain taxes by the company. The provisions of the Tax Code of the Russian Federation may prescribe other grounds for carrying out the relevant event.

Most often, the Federal Tax Service initiates an on-site audit if, during the desk audit, it was not possible to clearly establish that the company correctly complies with the requirements of the tax legislation of the Russian Federation, while there are suspicions that there are some miscalculations in its work. An on-site audit may be assigned for the purpose of a detailed study of tax and accounting sources, and other documents that are generally not examined during a desk audit.

Risk criteria for conducting an on-site tax audit

On-site tax audits are carried out according to a plan, which is an internal document of the Federal Tax Service. Unlike the plan for non-tax audits, which is published on the website of the Prosecutor General’s Office, it is impossible to find such information in the public domain. To select taxpayers included in the plan of on-site tax audits, a special Concept was created, approved by Order of the Federal Tax Service No. MM-3-06 / [email protected] dated May 30, 2007.

Every taxpayer must understand that the possibility of not including on-site tax audits in the plan depends on the transparency of its activities, the completeness of calculation and payment of taxes to the budget.” (From the Concept of the planning system for on-site tax audits)

The appendix to this document contains 12 main criteria recommended for taxpayers to independently assess the risks of conducting on-site tax audits:

1. The taxpayer's tax burden is below its average level for the type of economic activity or in a specific industry. The tax burden is calculated as the ratio of the amount of taxes paid and the turnover (revenue) of the taxpayer.
2. Tax or accounting reports reflect losses for two or more years.
3. The average monthly salary of workers is below the average level for the type of economic activity in the constituent entity of the Russian Federation. Such official data can be found on the Rosstat website.
4. Repeatedly approaching the maximum value of indicators that grant taxpayers the right to apply special tax regimes. This refers to such indicators as: approaching the maximum level of income on the simplified tax system (in 2021 - 150 million rubles); sales floor area is 150 sq. m for UTII; number of employees on special regime (100 people for the simplified tax system and UTII or 15 people for the PSN), etc.
5. Reflection by an individual entrepreneur of the amount of expenses that is as close as possible to the amount of his income received for the calendar year. This risk criterion applies to individual entrepreneurs on the general taxation system. Risky expenses are considered to be 83% or more of income.
6. The faster growth rate of expenses than the growth rate of income from the sale of goods (works, services) – for organizations on OSNO.
7. The share of VAT deductions from the amount of accrued tax exceeds 89% for a period of 12 months.
8. Failure by the taxpayer to provide explanations to the notification of the tax authority about the identification of discrepancies in performance indicators. As you can see, it is risky not to respond to requests from the tax inspectorate based on the results of a desk audit of declarations.
9. Construction of financial and economic activities based on concluding agreements with counterparties-resellers or intermediaries without reasonable economic or other reasons (business purpose). A business purpose means that any activity of the taxpayer must be aimed at making a profit.
10. Repeated, more than two times, deletion and registration with the tax authorities of an organization in connection with a change in legal address (the so-called migration between tax inspectorates).
11. Significant ( 10% or more) deviation of the level of profitability according to accounting data from the average level of profitability for a given field of activity according to statistics.
12. Conducting financial and economic activities with high tax risk. From the point of view of the tax authorities, relationships with partners - unscrupulous contractors - are suspicious. The risk criterion, among other things, is the absence of: personal contacts of management or authorized officials when discussing supply conditions and signing contracts; information about the actual location of the counterparty and its premises; documentary confirmation of the authority of the head of the counterparty company or his representative; information on the state registration of the counterparty in the Unified State Register of Legal Entities, etc.

What decisions can be made based on the results of the audit?

As soon as the tax audit regulated by Art. 89 of the Tax Code of the Russian Federation, completed - inspectors of the Federal Tax Service draw up a special act, which reflects the results of the event. The document may record a decision to hold the company accountable for violating the tax laws of the Russian Federation or to refuse to impose any sanctions on the company.

In the first case, inspectors must reflect in the report all the circumstances of the offense with reference to real documents. The source documenting the results of the audit also reflects the taxpayer's liability measures. These may include fines and penalties.

In turn, if the act reflects the decision of the Federal Tax Service inspectors not to impose sanctions on the inspected enterprise, it must also be motivated by certain circumstances. The act containing the sanctions must specify the period during which the taxpayer can appeal the decision made by the inspectors by appealing to a higher tax structure.

How is a desk tax audit carried out?

A desk tax audit is carried out for the period and for the tax indicated in the submitted declaration. The tax inspectorate cannot make a decision on additional tax assessment, penalties or fines in relation to a tax or period that is not reflected in the audited return.

The data from the received declaration is entered into the automated information system of the tax authorities (AIS Tax), after which the benchmark indicators are reconciled. It is also checked whether the deadline for submitting the declaration has been missed, whether there are any contradictions, errors or inconsistencies in the data or grounds for requesting supporting documents. If everything is in order, then the desk tax audit ends there.

If the tax authorities have questions for you, they must request in writing to provide the necessary explanations or make corrections to the declaration. The request must be answered within five working days. This response could be filing an updated tax return (if you agree with the tax authorities’ comments) or a reasoned written explanation of your position.

Here it is necessary to take into account that if the inspectors do not agree with your arguments, then a report from a desk tax audit may be drawn up on the collection of arrears, the accrual of penalties and prosecution in the form of a fine. Within one month from the date of receipt of the act, the taxpayer can file an objection to it, which must be considered within 10 working days.

Based on the results of consideration of the audit data and objections to the act, the head of the tax inspectorate must make a decision on bringing or refusing to bring to justice. Tax officials are required to inform the taxpayer about the time and place of consideration of the materials of the desk audit in order to be able to participate in the process personally or through his representative.

If you are not satisfied with the decision based on the results of the chamber chamber, you can appeal further - to a higher tax authority and to the court.

Contents of the on-site inspection

Let's take a closer look at what the verification procedure actually is - in accordance with Art. 89 of the Tax Code of the Russian Federation, what is its content. First of all, as we noted above, the head of the territorial structure of the Federal Tax Service makes a decision to conduct an on-site inspection in relation to a specific company. This document should reflect:

— name of the territorial structure of the Federal Tax Service;

— document number and date;

— name of the company being inspected;

— her TIN;

— checkpoint;

— the reporting period for which the audit is carried out;

— types of taxes, the correctness of calculation and payment of which will be studied by inspectors;

- FULL NAME. tax service specialists participating in the audit.

The decision must be signed by the head of the Federal Tax Service. Federal Tax Service inspectors, having arrived at the territory of the organization being inspected, present the relevant document to the director of the company. If the Federal Tax Service employees do not have permission with them, or they cannot confirm their identities, then the head of the enterprise will have the right to prevent them from entering the company’s territory. If everything is in order with the document reflecting the decision of the Federal Tax Service to conduct an inspection, the director of the company certifies with his signature the fact of familiarization with it.

If the head of the inspected organization refuses to allow Federal Tax Service inspectors into the territory of the facility even though the tax authorities have all the documents in order, then the Federal Tax Service representatives draw up a separate act about this. Based on this document, the head of the Federal Tax Service can subsequently contact the law enforcement agencies to resolve the issue of gaining access to the taxpayer’s territory. Moreover, if the company did not allow inspectors to conduct an on-site inspection, the Federal Tax Service has the right to make decisions on tax offenses based on the available data.

UrDela.ru

Part 1. An on-site tax audit is carried out on the territory (premises) of the taxpayer based on the decision of the head (deputy head) of the tax authority.

If the taxpayer does not have the opportunity to provide premises for conducting an on-site tax audit, an on-site tax audit may be carried out at the location of the tax authority.

Part 2. The decision to conduct an on-site tax audit is 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 the manner prescribed by Article 83 of this Code as a major taxpayer is made by the tax authority that registered this organization as a major taxpayer. An independent on-site 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 the separate division. The decision to conduct an on-site tax audit must contain the following information: full and abbreviated name or last name, first name, patronymic of the taxpayer; the subject of the audit, that is, taxes, the correctness of calculation and payment of which is subject to verification; periods for which the audit is carried out; positions, surnames and initials of the tax authority employees who are entrusted with carrying out 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 by the federal executive body authorized for control and supervision in the field of taxes and fees.

Part 3. An on-site tax audit in relation to one taxpayer can be carried out on one or more taxes.

Part 4. The subject of an on-site tax audit is the correctness of 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 the audit was made.

Part 5. Tax authorities do not have the right to conduct two or more on-site tax audits on the same taxes for the same period.

Tax authorities do not have the right to conduct more than two on-site tax audits in relation to one taxpayer during a calendar year, except in cases where 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 the 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.

Part 6. An on-site tax audit cannot last more than two months. This period may be extended to four months, and in exceptional cases - to six months.

The grounds and procedure for extending the period for conducting an on-site tax audit are established by the federal executive body authorized for control and supervision in the field of taxes and fees.

Part 7. As part of an on-site tax audit, the tax authority has the right to check the activities of branches and representative offices of the taxpayer.

The tax authority has the right to conduct an independent on-site tax audit of branches and representative offices regarding the correctness of calculation and timely payment of regional and (or) local taxes. A tax authority conducting an independent on-site audit of branches and representative offices does not have the right to conduct two or more on-site tax audits on the same taxes for the same period in relation to a branch or representative office. The tax authority does not have the right to conduct more than two on-site tax audits in relation to one branch or representative office of a taxpayer within one calendar year. When conducting an independent on-site tax audit of branches and representative offices of the taxpayer, the audit period cannot exceed one month.

Part 8. The period for conducting an on-site tax audit is calculated from the day the decision to order the audit is made and until the day the certificate of the audit is drawn up.

Part 9. The head (deputy head) of the tax authority has the right to suspend the conduct of 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 bodies within the framework of international treaties of the Russian Federation;

3) carrying out examinations;

4) translation into Russian of documents submitted by the taxpayer in a foreign language.

Suspension of an on-site tax audit on the basis specified in subparagraph 1 of this paragraph is allowed no more than once for each person from whom documents are requested. The suspension and resumption of an on-site tax audit is formalized by a corresponding decision of the head (deputy head) of the tax authority conducting the said audit. The total period of suspension of an on-site tax audit cannot exceed six months. If the inspection was suspended on the basis specified in subparagraph 2 of this paragraph, and within six months the tax authority was unable to obtain the requested information from foreign government bodies within the framework of international treaties of the Russian Federation, the period of suspension of the said inspection may be increased by three months . During the period of suspension of the on-site tax audit, the actions of the tax authority to request documents from the taxpayer are suspended, to whom in this case all originals requested during the inspection are returned, with the exception of documents received during the seizure, and the actions of the tax authority in the territory are also suspended (on the premises) of the taxpayer related to the specified audit.

Part 10. A repeated on-site tax audit of a taxpayer is an on-site tax audit conducted regardless of the time of the previous audit on the same taxes and for the same period.

When scheduling a repeat on-site tax audit, the restrictions specified in paragraph 5 of this article do not apply. When conducting a repeat on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct a repeat on-site tax audit was made.

Resolution of the Constitutional Court of the Russian Federation dated March 17, 2009 N 5-P, the provision contained in paragraphs four and five of clause 10 of Article 89 of the Tax Code of the Russian Federation, according to which a repeated on-site tax audit of the taxpayer can be carried out by a higher tax authority in order to monitor the activities of the tax authority that conducted the initial on-site tax audit was recognized as inconsistent with the Constitution of the Russian Federation to the extent that this provision, in the meaning given to it by established law enforcement practice, does not exclude the possibility of a higher tax authority making a decision during a repeat on-site tax audit that entails a change in the rights and obligations of the taxpayer determined by a judicial act that was not reviewed and canceled in the manner established by procedural law, adopted in 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.

In accordance with Part 3 of Article 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ, acts or their individual provisions recognized as unconstitutional lose force.

A repeated on-site tax audit of a taxpayer can 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 a decision of its head (deputy head) - in the event that 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 on-site tax audit, the period for which the updated tax return was submitted is checked.

Paragraph seven of clause 10 of Article 89 applies to legal relations arising in connection with the conduct of a repeat on-site tax audit, if the decision to conduct the initial on-site tax audit was made after January 1, 2007.

If, during a repeated on-site tax audit, it is revealed that the taxpayer has committed a tax offense that was not identified during the initial on-site tax audit, tax sanctions are not applied to the taxpayer, except for cases where the failure to identify a tax offense during the initial tax audit was the result of a conspiracy between taxpayer and tax authority official.

Part 11. An on-site tax audit carried out in connection with the reorganization or liquidation of a taxpayer organization can be carried out regardless of the time and subject of the previous audit. In this case, a period not exceeding three calendar years preceding the year in which the decision to conduct the inspection was made was verified.

Part 12. The taxpayer is obliged to ensure that tax officials 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 established by Article 93 of this Code. Familiarization of tax authorities with original documents is allowed only on the territory of the taxpayer, with the exception of cases of conducting an on-site tax audit at the location of the tax authority, as well as cases provided for in Article 94 of this Code.

Part 13. If necessary, authorized officials of tax authorities carrying out an on-site tax audit may conduct an inventory of the taxpayer’s property, as well as inspect production, warehouse, trading and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects, in the manner established by Article 92 of this Code.

Part 14. If the officials carrying out the on-site tax audit have sufficient grounds to believe that documents evidencing the commission of offenses may be destroyed, hidden, changed or replaced, these documents are seized in the manner prescribed by Article 94 of this Code.

Part 15. On the last day of an on-site tax audit, the inspector is obliged to draw up a certificate of the audit, which records the subject of the audit and the timing of its conduct, and hand it over to the taxpayer or his representative.

If the taxpayer (his representative) avoids receiving a certificate of the audit, the said certificate is sent to the taxpayer by registered mail.

Part 16. The specifics of conducting on-site tax audits when implementing production sharing agreements are determined by Chapter 26.4 of this Code.

16.1. The specifics of conducting on-site tax audits of residents excluded from the unified register of residents of the Special Economic Zone in the Kaliningrad Region are determined by Articles 288.1 and 385.1 of this Code.

Part 17. The rules provided for in this article also apply when conducting on-site tax audits of fee payers and tax agents.
‹ Article 88 (Tax Code of the Russian Federation). Desk tax audit Up Article 90 (Tax Code of the Russian Federation). Witness participation ›

Inspector tasks

Let’s take a closer look at what tasks Federal Tax Service inspectors solve during an on-site inspection. During the event under consideration, tax officials, using the available data on the taxpayer, information from the documents and materials provided to them:

— analyze the information received about the company’s activities;

— identify possible inconsistencies in the studied documents, violations in the maintenance of accounting and tax records;

— determine the degree of influence of these shortcomings on the payment discipline of the organization;

— if necessary, initiate counter inspections of other companies that are related to the activities of the company being inspected;

— inspect the premises and surrounding areas;

- communicate with people working in the company, attract competent experts - in order to objectively assess the activities of the company being audited;

— determine the evidence base for detected violations of the tax legislation of the Russian Federation;

— additional taxes are assessed, the grounds for fines and penalties are determined;

— the test results are correctly recorded.

Tax audits and monitoring

Article 89 of the Tax Code of the Russian Federation establishes a rule according to which the Federal Tax Service does not have the right to initiate the measures in question during those periods in which tax monitoring is carried out in relation to the company. The exception is scenarios in which:

— an on-site inspection is carried out by a higher-level structure of the Federal Tax Service as a method of monitoring the work of the territorial representative office of the Federal Tax Service, which conducts monitoring;

— the tax monitoring procedure in relation to the taxpayer is terminated early;

— the company refuses to comply with the motivated opinion of the Federal Tax Service;

— the taxpayer submits an updated declaration to the Federal Tax Service with the amount of tax, which is reduced in comparison with that recorded in the previous reporting document.

Inspection of branches and representative offices

The procedure in question can also be initiated in relation to branches and representative offices of the company, if it has any. In relation to this activity, Art. 89 of the Tax Code of the Russian Federation establishes a restriction for the Federal Tax Service - inspectors do not have the right to inspect branches and representative offices of a company 2 or more times for the same payments within the same period. In addition, the Federal Tax Service cannot visit the relevant structures more than twice a year. The period of inspection of branches and representative offices of the company should not exceed 1 month.

Pausing the scan

In the provisions of paragraph 9 of Art. 89 of the Tax Code of the Russian Federation contains norms that regulate the procedure for suspending the event in question. Thus, the head of the territorial division of the Federal Tax Service has the right to initiate a pause in the inspection if:

— it is necessary to request additional documents from the taxpayer;

- it is necessary to obtain information from government agencies of foreign countries - in accordance with international agreements of the Russian Federation;

- an examination needs to be carried out;

— there is a need to translate documents provided by the company being inspected to inspectors into Russian.

The inspection is suspended in accordance with a separate order from the head of the territorial division of the Federal Tax Service. If the procedure in question has been initiated, then during the period of cancellation of the Federal Tax Service’s actions, the taxpayer will be returned the originals of those sources that were originally requested by the inspectors.

Recheck

In some cases, the Federal Tax Service may conduct a second inspection. The decision to conduct it should be made by a higher structure of the Federal Tax Service in the process of monitoring the work of the territorial division of the Federal Tax Service, which conducted the first inspection. A repeat inspection by the Federal Tax Service is understood as an event that involves department inspectors checking the same taxes that were examined during the previous visit of Federal Tax Service inspectors to the company. Moreover, if a new visit by Federal Tax Service inspectors reveals offenses that were not detected during the previous inspection, then, as a rule, no sanctions are imposed on the taxpayer. Repeated inspection is regulated by the provisions of paragraph 10 of Art. 89 Tax Code of the Russian Federation.

What will the Federal Tax Service do if a violation is detected?

If inspectors of the Federal Tax Service of the Russian Federation identify violations in the activities of a company, they will have to take all necessary legal measures in order to document the discovered facts. This is necessary so that subsequent decisions by tax authorities have an evidence base.

If necessary, the Federal Tax Service may confiscate documents from the company that may confirm a violation - so that the taxpayer does not subsequently conceal them. Federal Tax Service inspectors have the right to demand explanations from the company being inspected regarding the discovered facts characterizing the activities of the enterprise. In this case, a request for the provision of necessary information can be made both orally and in writing.

If the taxpayer refuses to interact constructively with the Federal Tax Service, this may lead to the inspector interpreting this or that complex issue not in favor of the organization being inspected. If necessary, Federal Tax Service inspectors can videotape the inspection process and photograph the objects being studied that belong to the company.

Facts about the inspection must be recorded in a separate protocol. In the relevant document, the inspector is obliged to record the date and place of implementation of certain actions, full name. participants in the inspection of the objects of the inspected company, the content of the actions carried out by the inspectors, facts identified during the inspection of the objects. Photo and video materials, if any, are attached to the protocol.

Counter check

We noted above that, along with the on-site inspection - or as part of it - a counter inspection can be initiated. Its essence is that the Federal Tax Service requests data on the company’s activities from third parties related to the company being inspected. It is worth noting that it is regulated by other norms of the Tax Code of the Russian Federation - different from those contained in Article 89 of the Tax Code of the Russian Federation. A tax audit classified as a counter audit is, in particular, regulated by the provisions of Art. 87 of the Tax Code of the Russian Federation.

The event in question can be implemented in 2 ways. Firstly, the territorial division of the Federal Tax Service can independently request from third-party companies documents that are related to the activities of the company being inspected. Secondly, inspectors have the right to interact with colleagues on issues of obtaining the necessary information - sending them requests about the need to request certain documents from companies registered in the relevant territory.

Peculiarities of interpretation of legislation regarding tax audits

The most important nuance of tax law is the interpretation of the provisions of the Tax Code of the Russian Federation and its complementary regulations. Many accountants prefer Art. 89 of the Tax Code of the Russian Federation with comments, since the wording given in the Code in its pure form sometimes does not clearly allow one or another norm to be interpreted. The provisions of the Tax Code of the Russian Federation in the appropriate format can be found on the pages of many thematic portals on the Internet.

Article 89 of the Tax Code of the Russian Federation with comments may contain expert explanations regarding: the procedure for actions of Federal Tax Service inspectors and taxpayers during inspections, the consequences of certain activities carried out by Federal Tax Service employees and inspected companies, judicial practice in disputes between the Federal Tax Service and organizations. In all cases, the information reflected in the relevant sources can be useful for businesses.

Regarding the provisions contained in Article 89 of the Tax Code of the Russian Federation: judicial practice can, as in the case of expert comments, help clarify them. It happens that the opinion of specialists on certain norms of the Tax Code of the Russian Federation is based primarily on judicial precedents.

In cases where Art. 89 of the Tax Code of the Russian Federation with commentaries contains references to judicial practice - we can talk about the consideration of cases in different instances. But many experts still prefer to refer to decisions taken by the RF Armed Forces or the Supreme Arbitration Court of the Russian Federation. That is, not subject to appeal. In this case, Article 89 of the Tax Code of the Russian Federation with commentaries can be considered as a source that contributes to a more correct interpretation of the norms of the Tax Code of the Russian Federation regarding inspections by business representatives.

It is, of course, important for competent specialists of commercial enterprises to have access to the latest version of Art. 89 Tax Code of the Russian Federation. “Consultant” and other legal reference systems are probably the best way to stay informed about updates to the relevant source of law.

Summary of tax audits

Tax audits are an integral part of doing business, and as a taxpayer, you will always be under the control of the tax authorities. Although inspections, especially on-site inspections, can have serious adverse consequences for you, there are ways to significantly reduce their risk:

• Submit tax and accounting (for organizations) reports on time and, if possible, without errors.
• Pay taxes and advance payments in full and on time.
• Do not avoid communicating with the tax authorities; if they have any complaints against you, you must give your explanations as quickly as possible. Unconstructive behavior would be ignoring correspondence emanating from the Federal Tax Service or attempting to evade the delivery of acts or decisions. Letters from the Federal Tax Service are considered served on the sixth day after they were sent, so your arguments that you did not receive the correspondence are unlikely to be accepted.
• Maintain and store all documents related to business activities, especially those that support expenses.
• If you are not an accounting professional, then make sure you get quality accounting services.
• Assess your activities in terms of the risk criteria specified in the Concept.
• Be careful when choosing contractors.
• In case of risks of serious amounts of additional charges during tax audits, we recommend contacting narrow specialists - tax lawyers and consultants, outsourcers of high-quality accounting services.

Summary

So, the Federal Tax Service, which has not received the required result after conducting a desk audit of the company’s activities, can initiate an on-site audit. This procedure is mainly regulated by Article 89 of the Tax Code of the Russian Federation. An on-site tax audit, however, may also be subject to the jurisdiction of other provisions of the Tax Code of the Russian Federation, federal laws and by-laws.

During the event under consideration, the task of the Federal Tax Service inspectors is to determine how correctly the company calculates and pays taxes. To do this, the Federal Tax Service has the right to use a wide range of methods permitted by law - requesting documents, inspecting premises, interacting with third-party organizations related to the activities of the company being inspected.

In some cases, the suspension of an on-site inspection is provided. The decision to initiate the procedure under consideration, as well as to establish a pause in its implementation, is made by the head of the territorial division of the Federal Tax Service. He also appoints inspectors responsible for the event.

Based on the results of the audit, the tax authorities make a reasoned decision - to fine the company or, conversely, to do without any sanctions against it. Along with studying the activities of a particular company, the Federal Tax Service can initiate a counter-inspection of those persons who are associated with the activities of the organization being inspected.

The interpretation of the norms of the Tax Code of the Russian Federation is of great importance for accountants and other competent specialists of Russian companies - in terms of inspections and not only. Financiers can acquire the necessary knowledge in this area by studying expert comments and public information about court hearings in disputes between the Federal Tax Service and inspected enterprises.

How much does a tax audit cost?

Any tax audit is a test for the taxpayer, which often results in the collection of significant amounts of tax arrears, the accrual of penalties, and in some cases, fines. You can get an idea of ​​these amounts from the official data of the Federal Tax Service.

Every year, the Federal Tax Service prepares a report on the results of business control. In 2021, the efficiency of one on-site tax audit increased by 54% compared to last year and amounted to 13.7 million rubles. For comparison, in 2013 the amount was almost 2 times less - 7.1 million rubles. Tax authorities believe that a risk-based approach to conducting audits has a positive effect, because the number of on-site audits is decreasing and their effectiveness is increasing.

On-site tax audits have become more selective, but at the same time almost one hundred percent effective. In other words, if the tax inspectorate has decided to conduct an on-site tax audit on you, then you cannot do without additional assessments. The average amount of additional penalties of 13.7 million rubles, as well as the average temperature in the hospital, of course, does not give an idea of ​​​​what financial sanctions an on-site tax audit will result in for a particular taxpayer. However, you can assume its consequences for your business, and they are very serious.

It is easier to prevent an on-site tax audit than to deal with its consequences later. At the same time, the risks of conducting it are not secret; moreover, tax authorities strongly recommend that taxpayers conduct such self-diagnosis. Next, we will consider in detail the risk criteria for an on-site tax audit.

According to the report of the Federal Tax Service for 2014-2017, it is planned:

• increase the efficiency of efforts to combat the use of tax evasion schemes , including the use of offshore companies and shell companies;
• improve the quality of control activities based on analytically developed spot checks in high-risk areas of activity;
• create a system of control over the use of cash register equipment and the completeness of revenue accounting, based on the transfer of data to the tax authorities in electronic form (we wrote about this already started experiment in the article about the cash register);
• increase the efficiency of collecting amounts accrued as a result of tax audits by taking a full range of measures, including bringing to subsidiary liability the heads (founders) of tax evading organizations (that is, the limited liability of LLC participants for the obligations of a legal entity, in particular for tax, it will soon be possible to forget);
• improve the quality and effectiveness of desk audits, etc.

Somehow, the presumption of good faith of the taxpayer, expressed in Article 3(7) of the Tax Code of the Russian Federation, does not look very convincing against the background of such efficiency of work (existing and planned) of the tax authorities: “All irremovable doubts, contradictions and ambiguities of acts of legislation on taxes and fees are interpreted in favor taxpayer." It seems that just as for doctors there are no healthy people, but only those who have not been thoroughly examined, so for the tax authorities there are no bona fide taxpayers, but only those who have not yet been examined.

Of course, not all taxpayers are of equal interest to the tax office. Still, the administrative resource of the Federal Tax Service is limited, and first of all, they will deal with large enterprises or very obvious violators of tax legislation. You can work well for many years without any problems with fiscal accounts, for which you must carefully follow the rules of tax accounting (plus accounting for organizations), document flow, timely transfer payments and taxes, and comply with labor laws.