What is the deadline for conducting an on-site tax audit?

Extension of on-site tax audit

Grounds and procedure for extending an on-site tax audit

Extension of an on-site tax audit is a well-known event that previously had no regulation at the level of law, and also remains part of the Tax Code in 2021. As before, in 2019, an extension of an on-site tax audit is possible up to four months, and in exceptional cases - up to six. At the same time, in the Tax Code of the Russian Federation, in Article 89, you will not find the grounds and procedure for extending on-site tax audits, only a general phrase: “The grounds and procedure for extending the period for conducting an on-site tax audit are established by the Federal Tax Service of Russia.” Until the end of 2021 The grounds and procedure for extending the deadline for an on-site (repeated) tax audit were contained in the order of the Federal Tax Service of the Russian Federation dated May 8, 2015 N ММВ-7-2/ [email protected] From 01/04/2019. There is a new order of the Federal Tax Service of Russia dated November 7, 2021 N ММВ-7-2/ [email protected] , which, like the previous one, contains the forms of documents drawn up by the tax authorities of the Russian Federation when conducting tax audits, as well as the grounds and procedure extension of the deadline for an on-site tax audit.

Renewal terms

The on-site inspection can be extended for up to 4 months, and in exceptional cases - up to 6 (letter of the Ministry of Finance dated November 20, 2009 No. 03-02-07/1-516). An example of such a case is if an organization has 10 or more separate divisions. As for other grounds for extending the inspection for 6 months, the law does not precisely define them. That is, in each specific situation, Federal Tax Service specialists make decisions independently.

But this does not mean that the verification can be extended without reason. If the taxpayer doubts the appropriateness of such a decision by the Federal Tax Service, he can go to court. In practice, there are examples when arbitrators confirmed that there were no grounds for extending the inspection (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 1, 2013, No. A43-17631/2012).

The procedure for extending an on-site tax audit until the end of 2018.

The decision to extend an on-site tax audit is made by the head of the Federal Tax Service department for the constituent entity of the Russian Federation in which the tax authority conducting the on-site audit is located. For example, on the extension of on-site tax audits of “ordinary” taxpayers in Moscow, the decision is made by the head (deputy head) of the Federal Tax Service of Russia in Moscow, upon a reasoned request from the territorial tax authority. Extension of the on-site tax audit of the largest taxpayer, conducted by the interregional inspectorate of the Federal Tax Service of Russia for the largest taxpayers - by decision of the head (deputy) of the Federal Tax Service of Russia.

Grounds for extending an on-site tax audit for up to four and (or) six months:

1) conducting an audit of a taxpayer classified as the largest; 2) 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, requiring additional verification; 3) the presence of force majeure circumstances (flooding, flooding, fire, etc.) in the territory where the inspection is carried out; 4) conducting inspections of organizations that have several separate divisions, namely: - from 4-10 separate divisions - extension up to 4 months, from 10 - up to 6 months. 5) failure by the taxpayer (payer of the fee, tax agent) to submit, within the period established in accordance with paragraph 3 of Article 93 of the Code, the documents necessary for conducting an on-site (repeated on-site) tax audit; 6) other circumstances. Moreover, in this case, 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 person being inspected, the ramifications of the organizational and economic the structure of the person being inspected, the complexity of technological processes and other circumstances.

Why are checks taking so long?

Although the law sets a very specific period for the GNP - 2 months, in practice this event sometimes drags on for more than six months, and this is not the limit. Moreover, this happens on completely legal grounds. After all, suspension and extension of inspection can be used together.

For example, one and a half months after the start of the inspection, the inspectorate decides to suspend the process for a period of two months. At this time, information will be requested from the counterparties of the inspected entity. After the end of this period, it was decided to resume the check for the remaining 2 weeks, plus extend it to another 3 months. As a result, with one suspension and one extension, instead of two months, the inspection takes a 7-month period.

Grounds and Procedure for extending an on-site tax audit in 2021

The grounds and procedure for extending an on-site tax audit in 2019 are set out in the order of the Federal Tax Service of Russia dated November 7, 2018 N ММВ-7-2/ [email protected] Appendix No. 6. In 2021, the grounds for extending the period for conducting an on-site tax audit to four months, and in exceptional cases - up to six months, are: 1) conducting an on-site tax audit of the largest taxpayers classified in this category in the manner established by Article 83 of the Code; 2) receiving, during an on-site tax audit, information about whether the taxpayer has violations of tax legislation that require additional checks. Sources of information - law enforcement agencies, regulatory authorities, other sources; 3) conducting an on-site tax audit of an organization that has several separate divisions, namely: - 4 or more separate divisions - up to 4 months, more than 10 - up to 6 months. 4) failure by the inspected taxpayer to submit, within the prescribed period, the documents necessary to conduct such an audit (failure to submit documents as required - under Article 93 of the Tax Code of the Russian Federation); 5) active opposition of the audited taxpayer to its implementation (clause 1.1 of Article 113 of the Code); *The concept of “active counteraction to the conduct of the GNP” is not disclosed in the Tax Code, however, in Part 1.1 of Article 113 of the Tax Code of the Russian Federation there is the following provision: actively counteracted the conduct of an on-site tax audit, which became an insurmountable obstacle to its implementation and determination of the amounts by the tax authorities taxes (insurance contributions) payable to the budget system of the Russian Federation. 6) drawing up an act provided for in paragraph 3 of Article 91 of the Code; — The presence of a fact of obstruction of access of tax authorities officials conducting a tax audit to the territory or premises (with the exception of residential premises) used by the inspected taxpayer for the main activity. 7) - failure by the bank to provide information about the accounts of the inspected taxpayer, - failure by the counterparty or other person to provide documents (information) about the activities of the inspected person within the time period provided for in paragraph 5 of Article 93.1 of the Code, - failure to appear or evasion of appearance without good reason of a person summoned in the case of tax offense as a witness (Article 128 of the Code), - failure by the expert to provide an expert opinion within the period established by the contract (clause 1 of Article 95 of the Code), - failure of the translator to perform the translation assigned to him (clause 3 of Article 97 of the Code); the occurrence of a natural or man-made emergency, fire, flooding, or emergency situation affecting the person subject to an on-site tax audit and (or) the tax authority conducting the on-site tax audit. The head (deputy head) of a tax authority has the right to suspend an on-site tax audit for: 1) requesting documents (information) in accordance with paragraph 1 of Article 93.1 of this Code; 2) receiving information from foreign government bodies within the framework of international treaties of the Russian Federation; 3) conducting examinations; 4) translation into Russian of documents submitted by the taxpayer in a foreign language.

What documents are used to document a change in deadlines?

To suspend/renew/extend the timing of control activities, it is necessary to draw up documents in accordance with the regulated form.

A substantiated decision to increase the duration of the GNP is made by the head of the Federal Tax Service of the constituent entity of the Russian Federation. Extension of the deadlines for inspections carried out by the Interregional Inspectorate of the Federal Tax Service for the largest taxpayers, as well as the Federal Tax Service of a constituent entity of the Russian Federation, the Federal Tax Service of the Russian Federation is carried out by the head of the Federal Tax Service of the Russian Federation.

The VNP is suspended and resumed by the head of the tax authority conducting the audit.

The justification for suspending/extending inspection periods often becomes the subject of legal disputes. For example, ensuring completeness and comprehensiveness, the need for a detailed study of individual issues of financial and economic activity cannot be considered sufficient grounds for increasing the period of the GNP (resolution of the AS SZO dated 09.11.2015 in case No. A21-6006/2014, resolution of the FAS VSO dated 01.31.2012 in case No. A19-8432/2011, resolution of the Supreme Court of Moscow dated July 17, 2015 in case No. A41-46433/14, etc.).

Suspension (suspension) of on-site tax audits in 2021

Suspension of on-site tax audits in 2021, or as they say “suspension of on-site tax audits” as before, is possible. In contrast to the extension of an on-site tax audit, the grounds and procedure for suspending an on-site audit are directly stated in the Tax Code of the Russian Federation. The tax authority conducting an on-site tax audit has the right to suspend an on-site tax audit in 2021 on the grounds and in the manner established in paragraph 9 of Article 89 of the Tax Code of the Russian Federation. The suspension of an on-site tax audit in 2021 must always be formalized by a decision of the head (deputy head) of the tax authority conducting the on-site tax audit and motivated in accordance with the code. Resumption of an on-site tax audit is possible only after a separate decision has been issued by the head (deputy head) of the tax authority conducting the on-site tax audit. Attention ! In 2021, the Decision to conduct an on-site tax audit, the Decision to suspend the on-site tax audit, the Decision to resume the on-site tax audit, as well as the corresponding requirements for the provision of documents (Article 93 of the Tax Code of the Russian Federation), requirements for “counter” audits (Article 93.1 of the Tax Code RF) are drawn up in accordance with the forms approved by order of the Federal Tax Service of Russia dated November 7, 2021 N ММВ-7-2/ [email protected]

When and for what time is repeated VNP carried out?

The legislation does not establish special deadlines for repeated GNP. From paragraph 6 of Art. 89 of the Tax Code of the Russian Federation, we can conclude that a repeat on-site tax audit is carried out within 2 months. In the presence of exceptional circumstances, the period may be extended to 4–6 months. Repeated GNP may be suspended or extended on the grounds and in the manner discussed earlier in this article.

According to sub. 1 clause 10 art. 89 of the Tax Code of the Russian Federation, during a repeated tax return, a higher authority checks both the taxpayer and the subordinate tax authority. This expresses its dual nature (see Resolution of the Constitutional Court of the Russian Federation dated March 17, 2009 No. 5-P). This circumstance gave rise to the opinion that her appointment is possible only after a decision has been made by the lower body that conducted the previous inspection. However, the courts did not accept it.

IMPORTANT! The current practice does not connect the possibility of conducting a repeated GNP with a preliminary decision by a lower tax authority. The courts believe that a new inspection can be ordered and carried out before the end of the consideration of the results of the previous one (decrees of the AS MO dated December 21, 2015 in case No. A40-57636/2015, AS DVO dated March 23, 2016 in case No. A80-231/2015).

Suspension of on-site tax audits in 2021 is possible for:

1) requesting documents (information) in accordance with paragraph 1 of Article 93.1 of the Tax Code of the Russian Federation (“counter check with counterparties”, check “in chains”); 2) obtaining information from foreign government bodies within the framework of international treaties of the Russian Federation (for example, agreements on the avoidance of double taxation); 3) conducting examinations; 4) translation into Russian of documents submitted by the taxpayer in a foreign language. Suspension of an on-site tax audit on the specified grounds is allowed no more than once for each person from whom documents are requested.

Suspending the scan

An on-site inspection of an organization can not only be extended, but also suspended. Suspension of an inspection means that the duration of the inspection period is also suspended. After the check is resumed, the countdown will continue.

Suspension of an inspection is possible if during the inspection it is necessary to:

• request documents (information) about the organization being inspected from its counterparties or other persons who have this information;

• obtain information from foreign government bodies within the framework of international treaties of Russia;

• conduct an examination;

• translate into Russian documents submitted by the audited organization in a foreign language.

This follows from the provisions of paragraph 9 of Article 89 of the Tax Code of the Russian Federation.

The list of grounds for suspending an on-site inspection is closed. The inspection may suspend an inspection several times and for various reasons.

There are only two restrictions on suspension.

Firstly, suspension of an inspection to request information from a counterparty or other persons is allowed no more than once for each person (paragraph 6, clause 9, article 89 of the Tax Code of the Russian Federation). If the inspection suspended the inspection in order to request documents from any counterparty of the organization, it will subsequently not be able to suspend the inspection to request additional documents from the same counterparty.

Secondly, the total period of all suspensions cannot exceed six months. An exception is provided only for those cases when, within six months, the inspection does not have time to receive the information requested from foreign government bodies. In such a situation, the total period of suspension of the on-site inspection may be increased by another three months. This is stated in paragraph 8 of paragraph 9 of Article 89 of the Tax Code of the Russian Federation.

The inspection is suspended from the date specified in the decision to suspend the on-site inspection. Renewed - from the date specified in the decision on its renewal. These decisions are made by the head (his deputy) of the inspection, which appointed an on-site inspection of the organization (paragraph 7, paragraph 9, article 89 of the Tax Code of the Russian Federation).

During the period of suspension of the inspection, the inspection:

• cannot request documents from the organization being inspected;

• must return to the organization all originals requested earlier during the inspection (except for documents obtained as a result of seizure);

• is obliged to suspend all activities in the territory where the on-site inspection is being carried out.

This is stated in paragraph 9 of paragraph 9 of Article 89 of the Tax Code of the Russian Federation.

However, these restrictions do not prohibit the inspectorate from carrying out additional tax control measures. In particular, during the period of suspension of the inspection, the inspection may conduct interrogations of witnesses (outside the premises located on the territory of the organization being inspected), as well as summon representatives of the organization to give explanations. This is stated in the letter of the Federal Tax Service of Russia dated November 21, 2013 No. ED-3-2/4395. In justifying their position, the authors of the letter refer to paragraph 26 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57, according to which the suspension of an inspection does not deprive the inspectorate of the right to take any actions outside the organization. The only limitation is that these actions should not be related to the request for documents from the organization or carried out on its territory. At the same time, the inspection has the right to demand those documents that it requested earlier, but the organization did not have time to submit them before suspending the inspection (letter of the Federal Tax Service of Russia dated August 7, 2015 No. ED-4-2/13892).

Situation: is the inspection obliged to return copies of documents previously received from the organization during the inspection during the period of suspension of the inspection?

No, I don't have to.

During the period of suspension of the on-site inspection, the inspection must return to the organization all originals requested earlier during the inspection (paragraph 9, paragraph 9, article 89 of the Tax Code of the Russian Federation). The law does not provide for the return of copies, so the tax office has no obligation to return them. Moreover, tax legislation does not prohibit the inspection, during the period of suspension of the inspection, from examining and analyzing these copies, as well as the information for which the inspection was suspended (information from counterparties, examination results, translations of documents, data from foreign government bodies). This follows from the provisions of paragraph 9 of paragraph 9 of Article 89 of the Tax Code of the Russian Federation. Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated February 5, 2009 No. 03-02-07/1-47.

Situation: can the tax inspectorate interrogate witnesses during the period of suspension of an audit?

Yes maybe.

All restrictions in force during the period of suspension of the on-site inspection are specified in paragraph 9 of clause 9 of Article 89 of the Tax Code of the Russian Federation. Their list is closed. In particular, the inspection is obliged to suspend all activities on the territory of the organization being inspected. Meanwhile, the Tax Code of the Russian Federation does not prohibit the inspection from carrying out control activities that are not related to the presence of inspectors on the territory of the organization. For example, they may conduct interviews with witnesses on their premises. Similar explanations are contained in paragraph 16 of the letter of the Federal Tax Service of Russia dated September 13, 2012 No. AS-4-2/15309. In arbitration practice there are examples of court decisions confirming this conclusion (see, for example, decisions of the FAS Volga District dated January 14, 2010 No. A57-19762/2008, Far Eastern District dated March 20, 2009 No. F03-711/2009).

Situation: can the inspectorate suspend an on-site inspection during the period of its extension?

Yes maybe.

During the extension period, an on-site inspection is carried out in accordance with the general procedure. Tax legislation does not establish any restrictions for the inspection on ongoing activities or actions (clause 6 of Article 89 of the Tax Code of the Russian Federation). In particular, during the period of extension of the on-site inspection, the inspection may suspend it. Similar explanations are given by tax service specialists (see, for example, letter of the Federal Tax Service of Russia for Moscow dated February 21, 2008 No. 16-27).

Deadline for suspension of on-site tax audits in 2019

The total period of suspension of an on-site tax audit cannot exceed six months. (clause 9 of article 89 of the Tax Code of the Russian Federation) In the event that an on-site tax audit was suspended to obtain information from foreign states (clause 2 of clause 9 of article 89 of the Tax Code of the Russian Federation), 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 this inspection may be increased by three months. Attention ! In the case of “Suspension of an on-site tax audit,” the taxpayer’s requirements for the provision of documents sent to the taxpayer after the date of the decision to suspend the on-site tax audit are not subject to fulfillment by the taxpayer. At the same time, previously received by the taxpayer in accordance with Art. 93 of the Tax Code of the Russian Federation, the requirements must be fulfilled. In case of suspension of the visit, the tax authority is obliged to return to the taxpayer all originals requested during the audit, with the exception of documents received during the seizure. The actions of the tax authority on the territory (premises) of the taxpayer related to the suspended inspection are also suspended (prohibited).

In what cases is an on-site inspection suspended?

The tax authority, in accordance with the norms of paragraph 9 of Art. 89 of the Tax Code of the Russian Federation, has the right to suspend the on-site inspection. There is a break, after which the check is resumed.

Example

If you suspend an on-site inspection for 15 days, which up to this point had lasted 1 month, then after 15 days the inspectors will resume the inspection. Moreover, they will have another month left before the end of the control event.

Tax Code in para. 9 clause 9 art. 89 specifies what inspectors must do if an inspection is suspended:

• leave the taxpayer's territory;
• stop demanding documents from the taxpayer;
• return all originals previously requested from the taxpayer, but documents seized during seizure are not returned.

In letters dated November 21, 2013 No. ED-3-2/ [email protected] and dated July 25, 2013 No. AS-4-2/13622 (clause 4.2), the list of prohibitions was expanded. During the suspension period, tax officials are prohibited from doing the following:

• seize documents and objects;
• carry out an inspection (we assume that also an inventory of property);
• get acquainted with original documents on the territory of the taxpayer.

An independent on-site inspection of a branch or representative office may also be suspended, since clause 9 of Art. 89 of the Tax Code does not prohibit this.

You can learn about what periods inspectors have the right to check from the material “A repeated on-site inspection can be “deeper” than 3 years .