176.1 of the tax code of the Russian Federation. Arbitration Court of the Stavropol Territory. Consequences of failure to comply with tax refund deadlines

06.12.2023

2. The specified amounts during three tax periods following the expired tax period, if the taxpayer has arrears in excise duty, other federal taxes, debts on penalties accrued on federal taxes and (or) fines subject to payment or collection based on a decision of the tax authority in cases provided for by this Code, or on the basis of a court decision that has entered into force, are subject to offset against the repayment of the specified arrears and debts for penalties and fines by the tax authority independently in the manner established by Article 78 of this Code.

After the tax authority makes a decision to reimburse the excise tax by offsetting (returning) these amounts in the manner established by paragraph 4 of Article 203 of the Code, they are reflected in the personal account of the taxpayer.

32. The indicator “Documented fact of export of tobacco products for which a bank guarantee or bank guarantee was previously presented” (line codes 120 - column 5) is filled in when submitting to the tax authority the documents provided for in paragraph 7 of Article 198 of the Code, no later than 180 days from the date of sale of the specified excisable goods for export.

Order of the Federal Tax Service of Russia dated November 7, 2011 N ММВ-7-6/733@ (as amended on February 27, 2017) On amendments to the annexes to the Orders of the Federal Tax Service dated December 09, 2010 N ММВ-7-8/700@, dated 17.02 .2011 N ММВ-7-2/168@, dated 02/17/2011 N ММВ-7-2/169@

The text of the letter has been published
"Official documents" (appendix to "Accounting. Taxes. Law"), 2010, N 17
Question: Federal Law dated December 17, 2009 N 318-FZ Ch. 21 of the Tax Code of the Russian Federation has been supplemented with new provisions providing for the declarative procedure for VAT refund. According to the new rule provided for in Art. 176.1 of the Tax Code of the Russian Federation, the amount of tax declared for reimbursement in the tax return (the positive difference between the amount of tax deductions and the amount of calculated tax) may be reimbursed to the taxpayer before the tax authorities complete a desk tax audit. At the same time, the tax authorities are given the right, if the taxpayer at the time of making a decision on VAT refund in the application form has arrears on taxes, as well as debts on the corresponding penalties and (or) fines, to independently offset the amount of tax declared for reimbursement to pay off these arrears and debts on penalties and (or) fines.
What debt of the taxpayer in this case will be recognized as arrears of taxes and debt of penalties and fines? Are the amounts of taxes, penalties and fines accrued to the taxpayer based on the results of an on-site (desk) audit in respect of which interim measures have been taken, in particular, the execution of the contested act of the tax authority has been suspended on the basis of a decision? arbitration court?
What is the procedure for calculating interest on tax amounts subject to refund by the taxpayer, provided for in paragraph 17 of Art. 176.1 of the Tax Code of the Russian Federation, in the event of a decision being made based on the results of a desk tax audit to cancel the decision to refund (in whole or in part) the amount of tax declared for refund in a declarative manner? Is it true that interest should be calculated using the formula:
Interest = Amount x (Central Bank ref. rate x Day / 365 (366)),
where Amount is the amount to be refunded by the taxpayer if the tax authority, based on the results of an audit, makes a decision to cancel the decision to refund (in whole or in part) the amounts of tax claimed for refund in a declarative manner;
Referral rate Central Bank - refinancing rate of the Central Bank of the Russian Federation;
Day - number of days during the period of use budget funds.
Is it accrued in addition to the interest specified in clause 17 of Art. 176.1 of the Tax Code of the Russian Federation, penalties on the amount of tax that is not subject to reimbursement based on the results of a desk tax audit for the period of use of budget funds?
Answer:
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
LETTER
dated April 5, 2010 N 03-07-08/95
The Department of Tax and Customs Tariff Policy has considered your letter on the application of certain provisions of Art. 176.1 of the Tax Code of the Russian Federation on the application procedure for reimbursement of value added tax and reports the following.
Article 176.1 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) establishes a declarative procedure for reimbursement of value added tax. According to this procedure, taxpayers whose tax deductions at the end of the tax period exceed the total amount of tax calculated for transactions recognized as the object of taxation by value added tax are given the right, starting from the submission of declarations for the first quarter of 2010, to reimburse the specified difference until the completion of the desk audit tax return.
Clause 9 of the said Art. 176.1 of the Code provides that if a taxpayer has arrears on value added tax, other taxes, arrears on relevant penalties and (or) fines subject to payment or collection in cases provided for by the Code, the tax authority based on a decision to offset the amount of value added tax The amount of tax declared for reimbursement is automatically offset against the amount of tax declared for reimbursement in order to pay off the specified arrears and debts on penalties and (or) fines.
In accordance with paragraph 2 of Art. 11 of the Code, arrears are recognized as an amount of tax or amount of a fee that is not paid within the period established by the legislation on taxes and fees. Moreover, for each day of delay in fulfilling the obligation to pay a tax or fee on the basis of the provisions of Art. 75 of the Code, penalties are assessed, and fines are collected for committing a tax offense in cases established by the Code.
Clause 8 of Art. 101 of the Code establishes that the amount of the identified arrears and the amount of the corresponding penalties, as well as the fine payable, are indicated in the decision to prosecute or refuse to prosecute for committing a tax offense.
Based on the provisions of paragraph 9 of Art. 101 and paragraph 1 of Art. 101.3 of the Code, the decision to bring or refuse to bring to justice for committing a tax offense is subject to execution from the date of its entry into force, that is, after 10 days from the date of delivery of the corresponding decision to the person (his representative) in respect of whom it was made, if it was not appealed.
In case of non-payment or incomplete payment of tax (penalties, fines) within the established period, the organization’s obligation to pay tax (penalties, fines) is compulsorily fulfilled, provided for in Art. Art. 46 and 47 of the Code.
Clause 3 of Art. 138 of the Code provides that in the event of an appeal against acts of the tax authorities to the court, at the request of the taxpayer, the execution of the appealed acts may be suspended by the court in the manner established by the procedural legislation of the Russian Federation.
In accordance with parts 4 and 5 of Art. 96 of the Arbitration Procedural Code of the Russian Federation, interim measures remain in effect until the actual execution of the judicial act, which completed the consideration of the case on the merits, and until the entry into force of the corresponding judicial act.
According to paragraph 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83, suspension of the actions of a non-normative legal act or decision is understood not as recognition of the act or decision as invalid as a result of an interim measure of the court, but a prohibition of the implementation of those measures that are provided for by this act, decision.
Thus, the adoption by the court of interim measures does not mean recognition of the taxpayer’s obligation to pay the relevant taxes (penalties, fines) as fulfilled and the absence of arrears on taxes and (or) debts on penalties and fines, but suspends the actions of the tax authorities to collect them.
Taking into account the above, the amount of value added tax claimed for reimbursement in a declarative manner is not offset against arrears and arrears of penalties and fines for which the judicial authorities have taken an interim measure in the form of suspension of the execution of the relevant acts of the tax authorities.
Based on the provisions of Art. 176.1 of the Code, in the event of violations of the legislation on taxes and fees during a desk audit, the amount of value added tax reimbursed to the taxpayer in an application form is subject to refund in the part of the tax amount that is not subject to reimbursement based on the results of the said audit. At the same time, in accordance with clause 17 of this article of the Code, interest is accrued on the amount of tax to be refunded by the taxpayer based on an interest rate equal to two times the refinancing rate Central Bank of the Russian Federation (hereinafter referred to as the Bank of Russia), which operated during the period of use of the specified budget funds.
Considering that Art. 176.1 of the Code is not provided special order calculation of the refinancing rate of the Bank of Russia, when calculating the indicated interest, the number of days in a year is taken equal to 365 (366) days.
Thus, the amount of interest payable to the budget is calculated as the product of the amount of value added tax to be returned by the taxpayer, the double refinancing rate of the Bank of Russia, divided by the number of days in the year (365 or 366), and the number of days of using budget funds.
If during the period of using budgetary funds different refinancing rates of the Bank of Russia were in effect, interest is calculated in the above order separately for each refinancing rate of the Bank of Russia and the resulting amounts are added up.
As for the issue of penalties on the amount of value added tax reimbursed to the taxpayer in an application form and subject to refund by the taxpayer based on the results of a desk audit, the rules of the Code do not provide for their accrual.
At the same time, we note that this letter from the Department does not contain legal norms or general rules that specify regulatory requirements, and is not a regulatory legal act. In accordance with Letter of the Ministry of Finance of Russia dated 08/07/2007 N 03-02-07/2-138, the opinion of the Department is of an informational and explanatory nature on the application of the legislation of the Russian Federation on taxes and fees and does not interfere with following the norms of the legislation on taxes and fees in the understanding , different from the interpretation set out in this letter.
Director of the Tax Department
and customs tariff policy
I.V.TRUNIN
05.04.2010

Article 176.1. Application procedure for tax refund

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code dated 07/01/2019
entered into force on December 22, 2009

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The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of an offset (refund) of the amount of tax declared for reimbursement in a tax return, before the completion of a desk tax audit conducted in accordance with Article 88 of this Code on the basis of this tax return.

The following have the right to apply the application procedure for tax refund:

1) taxpayers-organizations for whom the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid for the three calendar years preceding the year in which the application for application of the application procedure for tax refund is submitted, excluding amounts of taxes paid in connection with the movement of goods across the border of the Russian Federation and as tax agent, amounts to at least 2 billion rubles. These taxpayers have the right to apply the declarative procedure for tax refund if at least three years have passed from the date of creation of the relevant organization to the day of filing the tax return;
2) taxpayers who have provided, along with the tax return in which the right to a tax refund is stated, a valid bank guarantee, providing for the bank’s obligation, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amounts of tax that were excessively received by him (credited to him) as a result of the tax refund in declarative procedure, if the decision to reimburse the amount of tax declared for reimbursement is canceled in whole or in part in the cases provided for by this article;
3) taxpayers - residents of the territory of rapid socio-economic development, who provided, along with the tax return in which the right to tax refund is stated, a guarantee agreement management company, determined by the Government of the Russian Federation in accordance with the Federal Law "On Territories of Rapid Socio-Economic Development in the Russian Federation" (copy of the guarantee agreement), providing for the obligation of the management company, based on the request of the tax authority, to pay to the budget for the taxpayer the amounts of tax received in excess by him (offset him) as a result of tax reimbursement in a declarative manner, if the decision to reimburse the amount of tax declared for reimbursement in a declarative manner is canceled in whole or in part in the cases provided for in this article. The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand;
4) taxpayers - residents of the free port of Vladivostok, who provided, along with the tax return in which the right to tax refund is stated, a guarantee agreement for the management company determined by the Federal Law "On the Free Port of Vladivostok" (a copy of the guarantee agreement), providing for the obligation of the management company on the basis of the requirement tax authority to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax refund in a declarative manner, if the decision to reimburse the amount of tax declared for reimbursement in a declarative manner is canceled in whole or in part in the cases provided for by this article . The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand;
5) taxpayers whose obligation to pay tax is secured by a guarantee in accordance with Article 74 of this Code, providing for the obligation of the guarantor, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amount of tax excessively received by him (credited to him) as a result of tax refund in an application procedure, if the decision to reimburse the amount of tax declared for reimbursement in the declarative procedure is canceled in whole or in part in the cases provided for in this article.

For the purposes of subparagraph 5 of paragraph 2 of this article, the guarantor must meet the following requirements:

1) be a Russian organization;
2) the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid by the guarantor during the three years preceding the year in which the application for concluding a guarantee agreement was submitted, excluding the amounts of taxes paid in connection with moving goods across the border of the Russian Federation and as a tax agent, amounts to at least 2 billion rubles;
3) the amount of the guarantor’s obligations under existing surety agreements (including the surety agreement specified in subparagraph 5 of paragraph 2 of this article in relation to the taxpayer), concluded in accordance with this Code, as of the date of submission of the application for the conclusion of a surety agreement specified in subparagraph 5 of paragraph 2 of this article, does not exceed 50 percent of the cost net assets the guarantor, determined as of December 31 of the calendar year preceding the year in which the application for concluding the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article was submitted;
4) the guarantor, as of the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, is not in the process of reorganization or liquidation;
5) in relation to the guarantor on the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, insolvency (bankruptcy) proceedings have not been initiated in accordance with the legislation of the Russian Federation on insolvency (bankruptcy);
6) the guarantor, as of the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, has no debt in paying taxes, fees, insurance premiums, penalties and fines.

No later than the day following the day of issuance of the bank guarantee (conclusion of the guarantee agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer about the fact of issuing the bank guarantee (conclusion of the guarantee agreement) in the manner determined by the federal executive body authorized to control and supervision in the field of taxes and fees.

The bank guarantee must be provided by a bank included in the list of banks that meet the requirements established by Article 74.1 of this Code for accepting bank guarantees for tax purposes. The requirements established by Article 74.1 of this Code are applied to the bank guarantee, taking into account the following features:

1) the validity period of the bank guarantee must expire no earlier than 10 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared;
2) the amount for which the bank guarantee is issued must ensure the fulfillment of obligations to return to the budgets of the budget system of the Russian Federation in full the amount of tax claimed for reimbursement.

The requirements of the legislation of the Russian Federation on taxes and fees are applied to the guarantee agreement, taking into account the following features:

1) the validity period of the guarantee agreement must expire no earlier than 10 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared, and must not exceed one year from the date of conclusion of the guarantee agreement;
2) the amount specified in the guarantee agreement must ensure the fulfillment of obligations to return to the budgets of the budget system of the Russian Federation in full the amount of tax claimed for reimbursement.

A bank guarantee (guarantee agreement) is provided to the tax authority no later than the period provided for in paragraph 7 of this article for filing an application for the application of the declarative procedure for tax refund.

Taxpayers who have the right to apply the declarative procedure for tax refund exercise this right by submitting to the tax authority no later than five days from the date of filing the tax return an application for the application of the declarative procedure for tax refund, in which the taxpayer indicates the bank account details for the transfer Money.

IN said statement the taxpayer undertakes the obligation to return to the budget the amounts he received in excess (credited to him) in the application form (including interest provided for in paragraph 10 of this article (if paid), as well as to pay interest accrued on these amounts in the manner established by paragraph 17 of this article article, in the event that the decision to reimburse the amount of tax claimed for reimbursement is canceled in full or in part in the cases provided for by this article.

Within five days from the date of filing an application for application of the application procedure for tax refund, the tax authority verifies the taxpayer’s compliance with the requirements provided for in paragraphs 2, 4, 4.1 and 7 of this article, as well as whether the taxpayer has arrears on taxes, other taxes, debts on relevant penalties and (or) fines subject to payment or collection in cases provided for by this Code, and makes a decision on reimbursement of the amount of tax declared for reimbursement in a declarative manner or a decision on refusal to reimburse the amount of tax declared for reimbursement in a declarative manner.

Simultaneously with the decision to reimburse the amount of tax claimed for reimbursement in a declarative manner, depending on the presence of debts of the taxpayer for the specified payments, the tax authority makes a decision to set off the amount of tax declared for reimbursement in a declarative manner and (or) a decision on refund (in full or partially) the amount of tax claimed for reimbursement in a declarative manner.

The tax authority is obliged to inform the taxpayer in writing about the decisions made within five days from the date of adoption of the relevant decision. At the same time, in the notification about the decision to refuse reimbursement of the amount of tax claimed for reimbursement, the norms of this article violated by the taxpayer are indicated in a declarative manner. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives in person against receipt or in another way confirming the fact and date of its receipt.

Making a decision to refuse to reimburse the amount of tax claimed for reimbursement in an application form does not change the procedure and timing of conducting a desk tax audit of the submitted tax return. If a decision is made to refuse reimbursement of the amount of tax claimed for reimbursement, in the application procedure, tax reimbursement is carried out in the manner and within the time frames provided for in Article 176 of this Code. Moreover, in the case specified in this paragraph, if there is a written request from the taxpayer, the tax authority returns the bank guarantee to him no later than three days from the date of receipt of such request.

If the taxpayer has arrears on taxes, other taxes, debts on the corresponding penalties and (or) fines subject to payment or collection in the cases provided for by this Code, the tax authority, on the basis of a decision to offset the amount of tax claimed for reimbursement, shall apply in a declarative manner independently offset the amount of tax claimed for reimbursement in a declarative manner to pay off the specified arrears and debts on penalties and (or) fines. In this case, the accrual of penalties for the specified arrears is carried out until the day the tax authority makes a decision to offset the amount of tax claimed for reimbursement in a declarative manner.

If the taxpayer does not have arrears on taxes, other taxes, debts on relevant penalties and (or) fines subject to payment or collection in cases provided for by this Code, as well as if the amount of tax declared for reimbursement, in a declarative manner, exceeds the amounts of these arrears for taxes, other taxes, debts on relevant penalties and (or) fines, the amount of tax subject to reimbursement is returned to the taxpayer based on the decision of the tax authority to return (in whole or in part) the amount of tax claimed for reimbursement in a declarative manner.

An order to refund the amount of tax is issued by the tax authority on the basis of a decision to refund (in whole or in part) the amount of tax claimed for reimbursement in an application form and is subject to sending to territorial body Federal Treasury on the next business day after the day the tax authority made this decision.

Within five days from the date of receipt of the order specified in paragraph one of this paragraph, the territorial body of the Federal Treasury shall refund the amount of tax to the taxpayer in accordance with the budget legislation of the Russian Federation and no later than the day following the day of the refund, notify the tax authority of the date of the refund and the amount returned to the taxpayer Money.

If the deadline for returning the tax amount is violated, interest is accrued on this amount for each day of delay starting from the 12th day after the day the taxpayer submits the application provided for in paragraph 7 of this article. The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, valid during the period of violation of the repayment deadline.

If the interest provided for in this paragraph is not paid to the taxpayer in full, the tax authority, within three days from the date of receipt of the notification from the territorial body of the Federal Treasury about the date of return and the amount of funds returned to the taxpayer, makes a decision on payment of the remaining amount of interest and no later than the day following the day of adoption of this decision, sends to the territorial body of the Federal Treasury an order drawn up on the basis of this decision to pay the remaining amount of interest.

The validity of the amount of tax declared for reimbursement is checked by the tax authority during a desk tax audit, in accordance with the procedure and within the time limits established by Article 88 of this Code, on the basis of the tax return submitted by the taxpayer, in which the amount of tax to be reimbursed is declared.

If, during a desk tax audit, no violations of the legislation on taxes and fees were identified, the tax authority, within seven days after the end of the desk tax audit, is obliged to inform the taxpayer in writing about the completion of the tax audit and about the absence of identified violations of the legislation on taxes and fees .

No later than the day following the day of sending to the taxpayer, whose obligation to pay tax is secured by the guarantee provided for in this article, a message about the absence of identified violations of the legislation of the Russian Federation on taxes and fees, the tax authority is obliged to send to the guarantor a written application for the release of the guarantor from obligations under this agreement guarantees.

If violations of the legislation on taxes and fees are detected during a desk tax audit, authorized officials of tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.

The report and other materials of the desk tax audit, during which violations of the legislation on taxes and fees were identified, as well as objections submitted by the taxpayer (his representative), must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and a decision on them must be made in accordance with Article 101 of this Code.

Based on the results of consideration of the materials of the desk tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer accountable for committing a tax offense or to refuse to hold the taxpayer accountable for committing a tax offense.

If the amount of tax reimbursed to the taxpayer in the manner provided for by this article exceeds the amount of tax subject to reimbursement based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of the appropriate decision provided for in paragraph 14 of this article, makes a decision to cancel the decision to reimburse the amount tax declared for reimbursement in a declarative manner, as well as a decision to return (in whole or in part) the amount of tax declared for reimbursement in a declarative manner and (or) a decision to offset the amount of tax declared for reimbursement in a declarative manner in part of the amount tax that is not subject to reimbursement based on the results of a desk tax audit.

The tax authority is obliged to inform the taxpayer in writing about the decisions made, specified in paragraphs 14 and 15 of this article, within five days from the date of adoption of the relevant decision. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

Simultaneously with the notification of the adoption of the decision specified in paragraph 15 of this article, the taxpayer is sent a request for the return to the budget of the amounts excessively received by him (credited to him) in the application form (including interest provided for in paragraph 10 of this article (if paid), in the amount , the proportional share of the excessively refunded amount of tax in the total amount of tax refunded in the application procedure) (hereinafter in this article - the refund request). Interest is charged on amounts to be refunded by the taxpayer based on an interest rate equal to twice the refinancing rate of the Central Bank of the Russian Federation in effect during the period of use of budget funds. The specified interest is calculated starting from the day:

1) actual receipt by the taxpayer of funds - in the case of a refund of the tax amount in the application form;
2) making a decision to offset the amount of tax claimed for reimbursement in a declarative manner - in the case of offset of the amount of tax in a declarative manner.

The form of the refund request is approved by the federal executive body authorized for control and supervision in the field of taxes and fees. The specified requirement must contain information:

1) on the amount of tax subject to reimbursement based on the results of a desk tax audit;
2) about the amounts of tax received in excess by the taxpayer (credited to the taxpayer) in a declarative manner, subject to return to the budget;
3) on the amount of interest provided for in paragraph 10 of this article, subject to return to the budget;
4) about the amount of interest accrued in accordance with paragraph 17 of this article at the time of sending the request for return;
5) on the deadline for fulfilling the demand for return established by paragraph 20 of this article;
6) on measures to collect amounts payable, applied in the event of failure by the taxpayer to comply with the request for a refund.

A request for a return may be submitted to the head of an organization, an individual entrepreneur, or their representatives personally against a signature or in another way confirming the fact and date of its receipt. If the return request cannot be served by the indicated methods, it is sent by registered mail and is considered received after six days from the date of sending the registered letter.

The taxpayer is obliged to independently pay the amounts specified in the refund request within five days from the date of its receipt.

No later than three days from the date of receipt of the notification from the territorial body of the Federal Treasury about the return by the taxpayer who submitted the bank guarantee of the tax amounts specified in the refund request, the tax authority is obliged to notify the bank that issued the bank guarantee about the bank’s release from obligations under this bank guarantee, and also, if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than three days from the date of receipt of such request.

Within ten days after the fulfillment of the obligation of the bank (guarantor - management company) to pay sum of money under a bank guarantee (guarantee agreement), the tax authority sends the taxpayer a clarified request for a refund indicating the amounts to be paid to the budget.

Moreover, if the tax authority violates the deadline for sending a request for a refund, the accrual of interest on the amounts payable by the taxpayer on the basis of the request for a refund is suspended until the date of actual receipt of this request by the taxpayer.

In the event of non-payment or incomplete payment of the amounts specified in the refund request within the established period by the taxpayer who applied the application procedure for tax refund without providing a bank guarantee, or by the taxpayer who received an updated refund request, as well as in the event of the impossibility of sending a request for payment of money to the bank amounts under a bank guarantee due to the expiration of its validity period or in the event of the impossibility of sending a demand to the guarantor - management company for the payment of a sum of money under the guarantee agreement, the obligation to pay these amounts is compulsorily fulfilled by foreclosure on the funds in the accounts or on other property of the taxpayer by a decision of the tax authority to collect the specified amounts, adopted after the taxpayer failed to fulfill the requirement for a refund within the established period, in the manner and within the time limits established by Articles 46, 47 of this Code.

After the taxpayer submits the application provided for in paragraph 7 of this article, before the end of the desk tax audit, the updated tax return is submitted in the manner prescribed by Article 81 of this Code, taking into account the specifics established by this paragraph.

If an updated tax return is filed by the taxpayer before the decision provided for in paragraph one of clause 8 of this article is made, then such a decision on the previously filed tax return is not made.

If an updated tax return is filed by the taxpayer after the tax authority has made a decision to reimburse the amount of tax claimed for reimbursement in a declarative manner, but before the completion of a desk tax audit, then the specified decision on the previously filed tax return is canceled no later than the day following the day of filing the updated tax return. declarations. No later than the day following the day the decision was made to cancel the decision to reimburse the amount of tax claimed for reimbursement, in a declarative manner, the tax authority notifies the taxpayer about the adoption of this decision. Amounts received by the taxpayer (credited to the taxpayer) in a declarative manner must be returned to them, taking into account the interest provided for in paragraph 17 of this article, in the manner provided for in paragraphs 17 - 23 of this article.

1. The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of an offset (refund) of the amount of tax declared for refund in a tax return, until the completion of a desk tax audit conducted in accordance with this Code on the basis of this tax return.

2. The following have the right to apply the application procedure for tax refund:

1) taxpayers-organizations for whom the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid for the three calendar years preceding the year in which the application for application of the application procedure for tax refund is submitted, excluding the amount of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent is at least 7 billion rubles. These taxpayers have the right to apply the declarative procedure for tax refund if at least three years have passed from the date of creation of the relevant organization to the day of filing the tax return;

2) taxpayers who have provided, along with the tax return in which the right to a tax refund is stated, a valid bank guarantee, providing for the bank’s obligation, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amounts of tax that were excessively received by him (credited to him) as a result of the tax refund in declarative procedure, if the decision to reimburse the amount of tax declared for reimbursement is canceled in whole or in part in the cases provided for by this article;

3) taxpayers - residents of the territory of rapid socio-economic development, who provided, along with the tax return in which the right to tax refund is declared, a guarantee agreement for a management company determined by the Government of the Russian Federation in accordance with the Federal Law “On Territories of Rapid Social and Economic Development in the Russian Federation” Federation" (copy of the guarantee agreement), providing for the obligation of the management company, on the basis of the request of the tax authority, to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax refund in a declarative manner, if the decision on the refund of the amount of tax declared for refund in a declarative manner, will be canceled in whole or in part in the cases provided for in this article. The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand;

4) taxpayers - residents of the free port of Vladivostok, who provided, along with the tax return in which the right to tax refund is stated, a guarantee agreement for the management company defined by the Federal Law “On the Free Port of Vladivostok” (a copy of the guarantee agreement), providing for the obligation of the management company on the basis of the requirement tax authority to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax refund in a declarative manner, if the decision to reimburse the amount of tax declared for reimbursement in a declarative manner is canceled in whole or in part in the cases provided for by this article . The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand;

5) taxpayers whose obligation to pay tax is secured by a guarantee in accordance with Article 74 of this Code, providing for the obligation of the guarantor, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amount of tax excess received by him (credited to him) as a result of tax refund in a declarative manner, if the decision to reimburse the amount of tax claimed for reimbursement in the declarative procedure is canceled in whole or in part in the cases provided for in this article.

2.1. For the purposes of subparagraph 5 of paragraph 2 of this article, the guarantor must meet the following requirements:

1) be a Russian organization;

2) the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid by the guarantor during the three years preceding the year in which the application for concluding a guarantee agreement was submitted, excluding the amounts of taxes paid in connection with moving goods across the border of the Russian Federation and as a tax agent, amounts to at least 7 billion rubles;

3) the amount of the guarantor’s obligations under existing surety agreements (including the surety agreement specified in subparagraph 5 of paragraph 2 of this article in relation to the taxpayer), concluded in accordance with this Code, as of the date of submission of the application for the conclusion of a surety agreement specified in subparagraph 5 of paragraph 2 of this article, does not exceed 20 percent of the value of the guarantor’s net assets, determined as of December 31 of the calendar year preceding the year in which the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article was submitted;

4) the guarantor, as of the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, is not in the process of reorganization or liquidation;

5) in relation to the guarantor on the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, insolvency (bankruptcy) proceedings have not been initiated in accordance with the legislation of the Russian Federation on insolvency (bankruptcy);

6) the guarantor, as of the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, has no debt in paying taxes, fees, penalties and fines.

3. No later than the day following the day of issuing a bank guarantee (concluding a surety agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer about the fact of issuing a bank guarantee (concluding a surety agreement) in the manner determined by the federal executive body authorized on control and supervision in the field of taxes and fees.

4. A bank guarantee must be provided by a bank included in the list of banks that meet the requirements established by Article 74.1 of this Code for accepting bank guarantees for tax purposes. The requirements established by Article 74.1 of this Code are applied to the bank guarantee, taking into account the following features:

1) the validity period of the bank guarantee must expire no earlier than 10 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared;

4.1. The requirements of the legislation of the Russian Federation on taxes and fees are applied to the guarantee agreement, taking into account the following features:

1) the validity period of the guarantee agreement must expire no earlier than 10 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared, and must not exceed one year from the date of conclusion of the guarantee agreement;

6.1. A bank guarantee (guarantee agreement) is provided to the tax authority no later than the period provided for in paragraph 7 of this article for filing an application for the application of the declarative procedure for tax refund.

7. Taxpayers who have the right to apply the declarative tax refund procedure exercise this right by submitting to the tax authority no later than five days from the date of filing the tax return an application for the application of the declarative tax refund procedure, in which the taxpayer indicates the bank account details for transferring funds.

In the said application, the taxpayer undertakes the obligation to return to the budget the amounts received in excess by him (credited to him) in the application form (including interest provided for in paragraph 10 of this article (if paid), as well as to pay interest accrued on these amounts in the manner established paragraph 17 of this article, in the event that the decision to reimburse the amount of tax claimed for reimbursement is canceled in full or in part in the cases provided for by this article.

8. Within five days from the date of filing an application for application of the declarative procedure for tax refund, the tax authority verifies the taxpayer’s compliance with the requirements provided for in paragraphs 2, 4, 4.1 and 7 of this article, as well as whether the taxpayer has arrears on tax, other taxes, debts on relevant penalties and (or) fines subject to payment or collection in cases provided for by this Code, and makes a decision on reimbursement of the amount of tax declared for reimbursement in a declarative manner or a decision on refusal to reimburse the amount of tax declared for reimbursement in a declarative manner.

The tax authority is obliged to inform the taxpayer in writing about the decisions made within five days from the date of adoption of the relevant decision. At the same time, in the notification about the decision to refuse reimbursement of the amount of tax claimed for reimbursement, the norms of this article violated by the taxpayer are indicated in a declarative manner. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

Making a decision to refuse to reimburse the amount of tax claimed for reimbursement in an application form does not change the procedure and timing of conducting a desk tax audit of the submitted tax return. If a decision is made to refuse reimbursement of the amount of tax claimed for reimbursement, in the application procedure, tax reimbursement is carried out in the manner and within the time limits provided for in Article 176 of this Code. Moreover, in the case specified in this paragraph, if there is a written request from the taxpayer, the tax authority returns the bank guarantee to him no later than three days from the date of receipt of such request.

9. If the taxpayer has arrears on taxes, other taxes, debts on relevant penalties and (or) fines subject to payment or collection in the cases provided for by this Code, the tax authority on the basis of a decision to offset the amount of tax claimed for reimbursement in the application procedure, the amount of tax claimed for reimbursement is independently offset in a declarative manner to pay off the specified arrears and debts on penalties and (or) fines. In this case, the accrual of penalties for the specified arrears is carried out until the day the tax authority makes a decision to offset the amount of tax claimed for reimbursement in a declarative manner.

10. An order for a refund of the tax amount is issued by the tax authority on the basis of a decision to return (in whole or in part) the amount of tax claimed for reimbursement in an application form and is subject to sending to the territorial body of the Federal Treasury on the next business day after the day the tax authority makes this decision.

11. The validity of the amount of tax declared for reimbursement is checked by the tax authority when conducting, in the manner and within the time frame established by Article 88 of this Code, a desk tax audit on the basis of the tax return submitted by the taxpayer, in which the amount of tax to be reimbursed is declared.

12. If, during a desk tax audit, no violations of the legislation on taxes and fees were identified, the tax authority, within seven days after the end of the desk tax audit, is obliged to inform the taxpayer in writing about the completion of the tax audit and the absence of identified violations of the tax law and fees.

13. If violations of the legislation on taxes and fees are detected during a desk tax audit, authorized officials of the tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.

14. Based on the results of consideration of the materials of the desk tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer accountable for committing a tax offense or to refuse to hold the taxpayer accountable for committing a tax offense.

15. If the amount of tax reimbursed to the taxpayer in the manner provided for by this article exceeds the amount of tax subject to reimbursement based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of the corresponding decision provided for in paragraph 14 of this article, makes a decision to cancel the decision on reimbursement of the amount of tax declared for reimbursement in a declarative manner, as well as a decision on the return (in whole or in part) of the amount of tax declared for reimbursement in a declarative manner and (or) a decision on offset of the amount of tax declared for reimbursement in a declarative manner part of the tax amount that is not subject to reimbursement based on the results of a desk tax audit.

16. The tax authority is obliged to inform the taxpayer in writing about the decisions made, specified in paragraphs 14 and 15 of this article, within five days from the date of adoption of the relevant decision. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

17. Simultaneously with the notification of the adoption of the decision specified in paragraph 15 of this article, the taxpayer is sent a demand for the return to the budget of the amounts excessively received by him (credited to him) in the application form (including interest provided for in paragraph 10 of this article (if paid), in an amount proportional to the share of the excessively refunded amount of tax in the total amount of tax refunded in the application procedure) (hereinafter in this article - the refund request). Interest is charged on amounts to be refunded by the taxpayer based on an interest rate equal to twice the refinancing rate of the Central Bank of the Russian Federation in effect during the period of use of budget funds. The specified interest is calculated starting from the day:

18. The form of the request for a refund is approved by the federal executive body authorized for control and supervision in the field of taxes and fees. The specified requirement must contain information:

1) on the amount of tax subject to reimbursement based on the results of a desk tax audit;

2) about the amounts of tax received in excess by the taxpayer (credited to the taxpayer) in a declarative manner, subject to return to the budget;

3) on the amount of interest provided for in paragraph 10 of this article, subject to return to the budget;

4) about the amount of interest accrued in accordance with paragraph 17 of this article at the time of sending the request for return;

5) on the deadline for fulfilling the demand for return established by paragraph 20 of this article;

6) on measures to collect amounts payable, applied in the event of failure by the taxpayer to comply with the request for a refund.

19. A request for a refund may be submitted to the head of an organization, an individual entrepreneur, or their representatives personally against a receipt or in another way confirming the fact and date of its receipt. If the return request cannot be served by the indicated methods, it is sent by registered mail and is considered received after six days from the date of sending the registered letter.

20. The taxpayer is obliged to independently pay the amounts specified in the refund request within five days from the date of its receipt.

22. Within ten days after the fulfillment of the obligation of the bank (guarantor - management company) to pay the amount of money under the bank guarantee (guarantee agreement), the tax authority sends the taxpayer an updated request for a refund indicating the amounts to be paid to the budget.

23. In case of non-payment or incomplete payment of the amounts specified in the request for a refund, within the established period, by the taxpayer who applied the application procedure for tax refund without providing a bank guarantee, or by the taxpayer who received an updated request for a refund, as well as in the event of the impossibility of sending a request for a refund to the bank payment of a sum of money under a bank guarantee due to the expiration of its validity period or in the event of the impossibility of sending a demand to the guarantor - the management company for the payment of a sum of money under the guarantee agreement, the obligation to pay these amounts is compulsorily fulfilled by foreclosure on the funds in the accounts or otherwise property of the taxpayer by decision of the tax authority to collect the specified amounts, adopted after the taxpayer failed to comply with the requirement for a refund within the established period, in the manner and within the time limits established by Articles 46 and 47 of this Code.

24. After the taxpayer submits the application provided for in paragraph 7 of this article, before the end of the desk tax audit, the updated tax return is submitted in the manner prescribed by Article 81 of this Code, taking into account the specifics established by this paragraph.

If an updated tax return is filed by the taxpayer after the tax authority has made a decision to reimburse the amount of tax claimed for reimbursement in an application manner, but before the completion of a desk tax audit, then the specified decision on the previously filed tax return is canceled no later than the day following the day of filing the updated tax return. declarations. No later than the day following the day the decision was made to cancel the decision to reimburse the amount of tax claimed for reimbursement, in a declarative manner, the tax authority notifies the taxpayer about the adoption of this decision. Amounts received by the taxpayer (credited to the taxpayer) in a declarative manner must be returned to them, taking into account the interest provided for in paragraph 17 of this article, in the manner provided for in paragraphs 17-23 of this article.

Commentary to Art. 176.1 Tax Code of the Russian Federation

Federal Law No. 318-FZ of December 17, 2009 introduced a declarative procedure for VAT reimbursement. This norm is established by Art. 176.1 Tax Code of the Russian Federation.

The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of offset (refund) of the amount of tax declared for refund in the tax return, before the completion of a desk tax audit conducted in accordance with this tax return (clause 1 of Article 176.1 of the Tax Code RF).

Taxpayers will be able to use the application procedure for VAT refund if certain conditions are met. The first condition giving the right to use the application procedure is the fact that at least 3 years have passed from the date of registration of the organization to the moment of filing the declaration. At the same time, the total amount of VAT, excise taxes, profit tax and mineral extraction tax paid over the previous three calendar years must be at least 10 billion rubles. This amount does not include taxes paid in connection with the movement of goods across the customs border.

When forming the specified total amount of taxes for the purposes of applying the above norm of the Tax Code of the Russian Federation, taking into account the norm, the amount of taxes paid includes:

receipt of funds for payment of VAT, excise taxes, corporate income tax and mineral extraction tax according to settlement documents in which the indicator “Date of debit from the payer’s account” (field 71) refers to the three-year period preceding the year in which the application for application of the application procedure is submitted VAT refunds, and credited to the relevant accounts of the Federal Treasury. These receipts are taken into account regardless of whether the tax paid falls into the category of overpaid or overcharged; the amount of taxes other than VAT, excise taxes, corporate income tax and mineral extraction tax, offset in the manner prescribed by Art. Art. 78, 79 of the Tax Code of the Russian Federation for payment of VAT, excise taxes, corporate income tax and mineral extraction tax, for which the date of the decision on offset falls within the corresponding three-year period; the amounts of VAT and excise taxes offset in the manner provided for in Art. Art. 176, 176.1, 203 Tax

Code of the Russian Federation on account of payment of VAT, excise taxes, corporate income tax and mineral extraction tax, for which the date of the decision on offset falls on the above period.

The total amount of taxes is reduced by the amounts of overpaid or overcharged VAT, excise taxes, corporate income tax and mineral extraction tax, in respect of which the tax authority in the manner provided for in Art. Art. 78, a decision was made to return.

Do not participate in the calculation of the total amount of taxes: amounts of VAT subject to reimbursement, in respect of which the tax authority in accordance with the procedure

provided for in Art. Art. 176, 176.1 of the Tax Code of the Russian Federation, a decision was made to return; amounts of excise taxes subject to reimbursement, in respect of which the tax authority in accordance with the procedure,

provided for in Art. 203 of the Tax Code of the Russian Federation, a decision was made to return it.

The above procedure for calculating the total amount of taxes for the purpose of applying paragraphs. 1 item 2 art. 176.1

The Tax Code of the Russian Federation was explained by the Federal Tax Service of Russia in a Letter (Letter of the Federal Tax Service of Russia dated July 23, 2010 N AS-37-2/7390@).

In accordance with paragraph 2 of Art. 176.1 of the Tax Code of the Russian Federation, the following have the right to apply the application procedure for VAT refund:

1) taxpayers-organizations for whom the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid for the three calendar years preceding the year in which the application for application of the application procedure for tax refund is submitted, excluding the amount of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent is at least 10 billion rubles. These taxpayers have the right to apply the declarative procedure for tax refund if at least three years have passed from the date of creation of the relevant organization to the day of filing the tax return;

2) taxpayers who have submitted, together with the tax return in which the right to a tax refund is declared, a valid bank guarantee, providing for the bank’s obligation, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amounts of tax that were excessively received by him (credited to him) as a result of the tax refund in application procedure, if the decision to reimburse the amount of tax claimed for reimbursement is canceled in full or in part in the cases provided for in Art. 176.1 Tax Code of the Russian Federation;

3) and from January 1, 2015 - taxpayers - residents of the territory of rapid socio-economic development, who submitted, together with the tax return in which the right to tax refund is declared, a guarantee agreement of the management company (a copy of the guarantee agreement), providing for the obligation of the management company on the basis demands of the tax authority to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax reimbursement in the declarative manner, if the decision to reimburse the amount of tax declared for reimbursement in the declarative procedure is canceled in whole or in part in the cases provided for by this article. The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand (clause 3, clause 2, article 176.1 of the Tax Code of the Russian Federation, as amended Federal Law dated November 29, 2014 N 380-FZ “On amendments to part two of the Tax Code of the Russian Federation in connection with the adoption of the Federal Law “On territories of rapid socio-economic development in the Russian Federation”).

Please note that from January 1, 2015, no later than the day following the day of issuance of the bank guarantee (conclusion of the guarantee agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer about the fact of issuing the bank guarantee (conclusion of the guarantee agreement) in the manner , determined by the federal executive body authorized for control and supervision in the field of taxes and fees (clause 3 of Article 176.1 of the Tax Code of the Russian Federation as amended by Federal Law of November 29, 2014 N 380-FZ “On Amendments to Part Two of the Tax Code of the Russian Federation in connection with the adoption of the Federal Law “On Territories of Advanced Social and Economic Development in the Russian Federation”).

In this case, the bank guarantee must meet the requirements specified in clause 4 of Art. 176.1 of the Tax Code of the Russian Federation, including the amount of a bank guarantee, which should ensure the fulfillment of the obligation to return to the budget in full the amount of tax claimed for reimbursement in a declarative manner.

A bank guarantee (guarantee agreement) is submitted to the tax authority no later than the deadline provided for in clause 7 of Art. 176.1 of the Tax Code of the Russian Federation for filing an application for the application of the declarative procedure for tax refund (clause 6.1 of Article 176.1 of the Tax Code of the Russian Federation (as amended by Federal Law of November 29, 2014 N 380-FZ “On amendments to part two of the Tax Code of the Russian Federation in connection with adoption of the Federal Law “On Territories of Rapid Socio-Economic Development in the Russian Federation”)).

Based on clause 4 of Art. 176.1 of the Tax Code of the Russian Federation, the requirements established by Art. 74.1 of the Tax Code of the Russian Federation, taking into account the following features:

1) the validity period of the bank guarantee must expire no earlier than 8 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared;

2) the amount for which the bank guarantee is issued must ensure the fulfillment of obligations to return to the budgets of the budget system of the Russian Federation in full the amount of tax claimed for reimbursement.

In this regard, the amount for which the bank guarantee was issued, submitted to the tax authority in the manner prescribed by Art. 176.1 of the Tax Code of the Russian Federation must ensure the fulfillment of obligations to return to the budget in full only the amount of tax declared for reimbursement.

Let us note that from January 1, 2015, introduced into Art. 176.1 of the Tax Code of the Russian Federation, clause 4.1 (as amended by the Federal Law of November 29, 2014 N 380-FZ “On Amendments to Part Two of the Tax Code of the Russian Federation in connection with the adoption of the Federal Law “On Territories of Rapid Socio-Economic Development in the Russian Federation” ) provides that the requirements of the legislation of the Russian Federation on taxes and fees are applied to the guarantee agreement, taking into account the following features:

1) the validity of the guarantee agreement must expire no earlier than eight months from the date of filing the tax return in which the amount of tax to be reimbursed is declared;

2) the amount specified in the guarantee agreement must ensure the fulfillment of obligations to return to the budgets of the budget system of the Russian Federation in full the amount of tax claimed for reimbursement.

The taxpayer submits tax return, in which he declares his right to a tax refund. Along with the declaration, he submits a bank guarantee, according to which the bank assumes obligations to pay funds to the budget, namely the amounts of tax received in excess by the taxpayer as a result of tax refund in a declarative manner.

Thus, the taxpayer, no later than 5 days from the date of filing the tax return, submits an application to the tax office to exercise the right to a VAT refund (offset). The application must indicate:

bank account details for transferring funds;

the obligation to return to the budget the amounts of VAT and certain interest that were excessively received by him (credited to him) on a declarative basis in the event that the decision to reimburse the amount of tax on a declarative basis is canceled in whole or in part.

Tax authorities in accordance with clause 8 of Art. 176.1 of the Tax Code of the Russian Federation must also check within 5 days:

a) compliance by the taxpayer with the requirements provided for in paragraphs 2, 4, 6 and 7 of Art. 176.1

Tax Code of the Russian Federation;

b) the taxpayer has arrears on VAT and other taxes;

c) the taxpayer has debts on relevant penalties and (or) fines,

subject to payment or collection in cases provided for by the Tax Code of the Russian Federation.

As a result of the audit, the tax authority must accept:

a) a decision on reimbursement of the amount of tax claimed for reimbursement in a declarative manner;

b) or a decision to refuse to reimburse the amount of tax claimed for reimbursement in the application

The tax authority is obliged to inform the taxpayer about decisions made in writing within 5 days from the date of adoption of the relevant decision.

At the same time, in the notification about the decision to refuse reimbursement of the amount of tax claimed for reimbursement, the norms of Art. 176.1 of the Tax Code of the Russian Federation, violated by the taxpayer.

The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

If a decision is made to refuse reimbursement of the amount of tax claimed for reimbursement, in the application procedure, tax reimbursement is carried out in the manner and within the time limits provided for in Art. 176 of the Tax Code of the Russian Federation. Moreover, in this case, if there is a written request from the taxpayer, the tax authority must return the bank guarantee to him no later than 3 days from the date of receipt of such request. This obligation appeared for the tax authorities on December 25, 2014.

g. in accordance with the amendments made to paragraph. 4 paragraph 8 art. 176.1 of the Tax Code of the Russian Federation Federal Law of November 24, 2014 N 366-FZ “On amendments to part two of the Tax Code of the Russian Federation and certain legislative acts Russian Federation".

In accordance with paragraph 12 of Art. 176.1 of the Tax Code of the Russian Federation, if during a desk tax audit no violations of the legislation on taxes and fees were identified, the tax authority, within 7 days after the end of the desk tax audit, is obliged to inform the taxpayer in writing about the completion of the tax audit and about the absence of identified violations of the law on taxes and fees.

No later than the day following the day of sending to the taxpayer who provided the bank guarantee a message about the absence of identified violations of the legislation on taxes and fees, the tax authority is obliged to send to the bank that issued the specified bank guarantee a written statement on the release of the bank from obligations under this bank guarantee. And from December 25, 2015, if there is a written request from the taxpayer, the tax authority is also obliged to return the bank guarantee to him no later than 3 days from the date of receipt of such a request (paragraph 2 of clause 12 of article 176.1 of the Tax Code of the Russian Federation as amended by the Federal Law of November 24 2014 N 366-FZ “On amendments to part two of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation”).

In addition, from January 1, 2015, no later than the day following the day of sending to the taxpayer who provided the guarantee agreement to the management company (a copy of the guarantee agreement), a message about the absence of identified violations of the legislation of the Russian Federation on taxes and fees, the tax authority is obliged to send to the guarantor - the manager company a written application for the release of the guarantor - the management company from obligations under this agency agreement (paragraph 3, clause 12, article 176.1 of the Tax Code of the Russian Federation, introduced by Federal Law of November 29, 2014 N 380-FZ “On amendments to part two of the Russian Tax Code Federation in connection with the adoption of the Federal Law “On Territories of Advanced Social and Economic Development in the Russian Federation”).

In accordance with paragraph 13 of Art. 176.1 of the Tax Code of the Russian Federation, in the event of violations of the legislation on taxes and fees during a desk tax audit, authorized tax officials must draw up a tax audit report in accordance with Art. 100 Tax Code of the Russian Federation.

In accordance with paragraph 14 of Art. 176.1 of the Tax Code of the Russian Federation, based on the results of consideration of the materials of the desk tax audit, the head (deputy head) of the tax authority issues:

a) a decision to hold the taxpayer accountable for committing a tax

offenses;

b) or a refusal to hold the taxpayer accountable for committing a tax

offenses.

In accordance with paragraph 15 of Art. 176.1 of the Tax Code of the Russian Federation in the event that the amount of tax reimbursed to the taxpayer in the manner provided for in Art. 176.1 of the Tax Code of the Russian Federation exceeds the amount of tax subject to reimbursement based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of one of the above decisions, makes a decision to cancel the decision to reimburse the amount of tax declared for reimbursement in a declarative manner, as well as the decision to return ( in full or in part) the amount of tax declared for reimbursement in a declarative manner and (or) a decision to offset the amount of tax declared for reimbursement in a declarative manner in relation to the amount of tax not subject to reimbursement based on the results of a desk tax audit.

In accordance with paragraph 16 of Art. 176.1 of the Tax Code of the Russian Federation, the tax authority is obliged to inform the taxpayer in writing about the decisions made, specified in clauses 14 and 15 of Art. 176.1 of the Tax Code of the Russian Federation, within 5 days from the date of adoption of the relevant decision. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

Simultaneously with the notification of the decision specified in paragraph 15 of Art. 176.1 of the Tax Code of the Russian Federation, the taxpayer is sent a request for the return to the budget of the amounts excessively received by him (credited to him) in the application form (including interest provided for in paragraph 10 of Article 176.1 of the Tax Code of the Russian Federation (if paid), in an amount proportional to the share of the excess refunded amount tax in the total amount of tax refunded according to the application procedure).

Interest is charged on amounts to be refunded by the taxpayer based on an interest rate equal to twice the refinancing rate of the Central Bank of the Russian Federation in effect during the period of use of budget funds. The specified interest is calculated starting from the day:

1) actual receipt by the taxpayer of funds - in the case of a refund of the tax amount in an application form;

2) making a decision to offset the amount of tax claimed for reimbursement in a declarative manner - in the case of offset of the amount of tax in a declarative manner.

In accordance with paragraph 16 of Art. 176.1 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently pay the amounts specified in the refund request within 5 days from the date of its receipt.

From November 25, 2014, the provisions of the newly introduced paragraph. 2 clause 20 art. 176.1 of the Tax Code of the Russian Federation states that no later than 3 days from the date of receipt of the notification of the territorial body of the Federal Treasury about the return by the taxpayer who submitted the bank guarantee of the tax amounts specified in the request for return, the tax authority is obliged to notify the bank that issued the bank guarantee about the bank’s release from obligations under this bank guarantee, as well as if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than 3 days from the date of receipt of such an application (paragraph 2 of clause 20 of article 176.1 of the Tax Code of the Russian Federation as amended by Federal Law of November 24, 2014 N 366-FZ “On amendments to part two of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation”).

In accordance with paragraph 23 of Art. 176.1 of the Tax Code of the Russian Federation in case of non-payment or incomplete payment of the amounts specified in the request for a refund within the established period by a taxpayer who applied the application procedure for tax refund without submitting a bank guarantee, or by a taxpayer who received an updated request for a refund, as well as in the event of failure to send a request to the bank on the payment of a sum of money under a bank guarantee due to the expiration of its validity period, the obligation to pay these amounts is compulsorily fulfilled by foreclosure on the funds in the accounts or on other property of the taxpayer according to the decision of the tax authority to collect the specified amounts, adopted after the taxpayer’s failure to comply with the established deadline for the demand for return, in the manner and within the time limits established by Art. Art. 46 and 47 of the Tax Code of the Russian Federation.

/"Arbitration Disputes", 2007, N 4/
N.G. KUZNETSOVA

Kuznetsova N.G., judge of the Federal Arbitration Court Northwestern district.

The provisions of Article 176 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), dedicated to the reimbursement of value added tax from the budget (by offset or refund), the accrual and payment of interest for violation of the deadlines for the return of value added tax from the budget, throughout recent years can confidently be considered one of the most frequently assessed and studied by courts. This is explained by the fact that, perhaps, there are no issues that would be sufficiently clearly and unambiguously resolved by the norms of the said article.

However, before discussing these issues, it is necessary to remember the special nature of the legal relations about which we're talking about in Article 176 of the Tax Code of the Russian Federation.

The special nature of legal relations

As a general rule, the Tax Code of the Russian Federation regulates the relationship between the state and persons who are responsible for paying taxes and tax payments to the budget. Organizations and citizens, including those with the status of individual entrepreneurs, if there are objects of taxation, calculate and pay in budget system taxes, and the state, represented by authorized bodies, exercises control over compliance by the named persons with the legislation on taxes and fees.

Taxpayers may make excessive payments, and tax authorities may unjustifiably collect taxes from the budget. In this case, Articles 78 and 79 of the Tax Code establish the procedure and deadlines for returning from the budget overpaid (collected) amounts. For violation of the deadlines for the return of taxes overpaid (collected) to the budget, the taxpayer is paid interest according to the rules defined by Articles 78 and 79 of the Tax Code of the Russian Federation.

The above rules concern the consequences of untimely return to the taxpayer of what he paid or was collected from him directly to the budget.

At the same time, in a number of cases specifically provided for by the Tax Code of the Russian Federation, the taxpayer has the right to a refund from the budget of tax amounts that he did not pay to the budget.

One of them is given in Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation.

In accordance with Article 173 of the said chapter of the Code, taxpayers calculate the amount of value added tax payable to the budget in the following order: the total amount of tax calculated at the end of each tax period according to the rules of Article 166 of the Code is reduced by the amount of tax deductions provided for in Article 171 of the Tax Code of the Russian Federation . The difference is subject to payment to the budget.

In this case, often the amount of tax deductions (which refers to the amount of tax presented to the taxpayer by sellers of goods (works, services), as well as property rights on the territory of the Russian Federation or paid by the taxpayer when importing goods into the customs territory under the customs regimes listed in paragraph 2 of Article 171 Tax Code of the Russian Federation) exceeds the amount of tax calculated based on the results of a specific tax period in relation to all transactions recognized as an object of taxation.

A positive difference is formed in favor of the taxpayer, and Chapter 21 of the Tax Code of the Russian Federation determines the procedure for handling such a difference.

The term "reimbursement"

Paragraph 2 of Article 173 of the Tax Code of the Russian Federation states that the positive difference is subject to compensation to the taxpayer in the manner and under the conditions provided for in Article 176 “Procedure for tax refund” of the Tax Code of the Russian Federation.

Moreover, Article 176 as amended, in force until January 1, 2007, provided for two different procedures for the formation of such a “positive difference”.

In accordance with paragraph 1 of Article 176 of the Tax Code of the Russian Federation, which relates to the procedure for tax refund according to the declaration on domestic market, a positive difference arises when the amount of tax deductions exceeds the total amount of tax calculated for transactions recognized as an object of taxation.

Clause 4 of Article 176 of the Tax Code of the Russian Federation, which regulated the procedure for tax refunds on transactions for the sale of goods (works, services) taxed under tax rate 0 percent, provided for the reimbursement of tax amounts recognized as tax deductions that relate to transactions taxed at a tax rate of 0 percent, as well as tax amounts paid in accordance with subparagraph 6 of Article 166 of the Tax Code of the Russian Federation. That is, since the proceeds from such sales of goods (works, services) are taxed at a tax rate of 0 percent, there is no amount calculated from the proceeds from such operations; accordingly, the entire amount of tax paid to suppliers of goods, works, services (the amount of tax deductions) is presented for reimbursement from the budget.

Paragraph 1 of Article 176 of the Tax Code of the Russian Federation indicates two ways to compensate for such a positive difference - offset and refund.

Since the legislator introduces the special term “reimbursement” when a taxpayer has a positive difference in value added tax, thereby emphasizing the special nature of its occurrence, since we are not talking about an excessive payment by the taxpayer to the budget of the tax calculated in accordance with Article 166 of the Tax Code of the Russian Federation, and concerns the amounts of tax paid to other persons in a different manner - to suppliers of goods (works, services), at customs as part of customs payments, etc., when returning or crediting tax on the basis of Article 176 of the Tax Code of the Russian Federation, the following phrases are used in judicial acts: "reimbursement tax by way of refund from the budget", "offset by way of tax refund".

The Supreme Arbitration Court of the Russian Federation, in its Resolution adopted back in 2000 (dated 06/06/2000 N 9107/99), distinguished between the concepts of “excess payment”, “overpayment of value added tax” and “reimbursement of value added tax paid to suppliers of goods” (works, services)".

The Resolution states that, in accordance with Article 78 of the Tax Code of the Russian Federation, the amount of overpaid tax is subject to refund to the taxpayer from the budget (non-budgetary fund) into which the overpayment occurred. If the refund deadline is violated, interest is accrued on the amount of overpaid tax not returned within the prescribed period for each day the refund deadline is violated. That is, the basis for applying this rule is the overpayment of tax to the budget ( off-budget fund). Payment of taxes in accordance with Article 58 of the Tax Code of the Russian Federation is made in cash or non-cash form. The payment of tax in accordance with Articles 45 and 60 of the Tax Code of the Russian Federation is understood as an order from the taxpayer to the bank, subject to certain conditions, to transfer the tax to the relevant budgets.

Clause 3 of Article 7 of the Law of the Russian Federation “On Value Added Tax” (as well as Article 176 of the Tax Code of the Russian Federation, in force since 2001) provides for reimbursement to the taxpayer from the budget of the amount of tax paid by him to suppliers. This norm regulates relations not regarding the payment of tax to the budget and its return in case of overpayment, but specific, characteristic of this particular tax, relations regarding the reimbursement of the amount of tax paid to suppliers material assets, that is, other business entities that are payers of this tax.

Taking into account the above, the Supreme Arbitration Court of the Russian Federation recognized that there are no grounds for considering these amounts as overpaid to the budget and applying the provisions of Article 78 of the Tax Code of the Russian Federation relating to the calculation of interest to disputed legal relations.

Two tax refund procedures before 2007

Until 2007, taxpayers in the presence of transactions for the sale of goods (work, services) taxed at a tax rate of 0 percent were required to submit two separate declarations: 1) for transactions for the sale of goods (work, services) taxed at tax rates exceeding 0 percent (10%, 18%), most often referred to as a declaration for the internal market or a general declaration, and 2) for transactions involving the sale of goods (works, services) taxed at a tax rate of 0 percent.

Accordingly, Article 176 of the Tax Code of the Russian Federation contained two independent procedures for tax reimbursement: for transactions of sale of goods (work, services) on the domestic market and for transactions of sale of goods (work, services) taxed at a tax rate of 0 percent.

The first regulated the norms of paragraphs 1 - 3, and the second - the norms of paragraph 4 of Article 176 of the Tax Code of the Russian Federation.

The main differences between these orders were as follows.

Firstly, the period of emergence of the right to use in the interests of the taxpayer (offset or refund) of the tax amount declared in the declaration for reimbursement is defined differently.

Cash in the amount of the positive difference that a taxpayer had on the value added tax return on the domestic market immediately after the taxpayer filed such a declaration was recognized as the taxpayer’s cash, as evidenced by the norm of paragraph 2 of Article 176 of the Tax Code of the Russian Federation, as amended in force until 2007 This indicates the obligation of the tax authority to send the amount of the positive difference reflected in the declaration received by the tax authority within three calendar months to fulfill the taxpayer’s obligations to pay taxes and fees, penalties, repayment of arrears, amounts. tax sanctions, subject to credit to the same budget.

Consequently, the tax authority, within three months after receiving the declaration, had the right and was obliged to independently offset the amount of tax presented in the declaration for reimbursement against the taxpayer’s debt for taxes, penalties and tax sanctions, as well as the fulfillment of the taxpayer’s current tax obligations, but at the end of three calendar months, the amount that was not offset was subject to return to the taxpayer upon his written application.

The Code did not provide for special confirmation by the tax authority of the taxpayer’s right to such a positive difference.

This issue was resolved differently for transactions involving the sale of goods (works, services) taxed at a tax rate of 0 percent.

Clause 4 of Article 176 of the Tax Code of the Russian Federation provided for tax reimbursement no later than three months, counting from the date of submission of the declaration with the documents provided for in Article 165 of the Tax Code of the Russian Federation. During this period, the tax authority was obliged to check the validity of the application of the 0 percent tax rate and tax deductions and, based on the results of the check, make a decision on compensation by offsetting or returning the corresponding amounts or on refusal (in whole or in part) of compensation. If the taxpayer had arrears and penalties on taxes, as well as debts on awarded sanctions that were to be credited to the same budget, the tax authority was obliged to carry out an offset. In the absence of such debts, the amounts to be reimbursed were subject to offset against current tax payments of the same budget level or to be returned to the taxpayer upon his application.

That is, until the tax authority makes a decision on reimbursement or until the expiration of the three-month period allotted for checking the declaration and the documents submitted with it, the amount of tax indicated in the declaration for reimbursement is not considered subject to reimbursement to the taxpayer in any way.

Understanding this has been a certain difficulty for taxpayers for quite a long time, as evidenced by numerous Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation (dated 10/17/2006 N 5370/06, dated 02/27/2006 N 10606/05, dated 02/07/2006 NN 11608/05, 13644 /05, 11626/05, 7308/05, 7299/05, dated 12/14/2004 N 3521/04).

Taxpayers, when simultaneously filing a return on the internal market and a return on transactions taxed at a tax rate of 0 percent, and having the first amount of tax payable, and the second amount of tax subject to reimbursement from the budget, paid only the difference between the amounts or did not pay tax at all , if the amount to be reimbursed significantly exceeded the amount of tax indicated for payment under the declaration for the domestic market.

Taxpayers disputed the demands of the tax authorities to pay the full amount of tax on the return on the internal market in arbitration courts. In applications to the court, taxpayers argued that the amount of tax liabilities is determined based on the results of each tax period and is calculated for all taxable transactions reflected in both declarations. Therefore, before the inspection makes a decision to refuse a refund of value added tax on a tax return at a tax rate of 0 percent, the taxpayer has the right to offset the amounts of value added tax payable under the tax return on the internal market for the same taxable period, when calculating the total amount of tax liability arising on the basis of Article 171 of the Tax Code of the Russian Federation.

The Supreme Arbitration Court of the Russian Federation did not agree with the position of taxpayers, indicating that for transactions subject to value added tax at a tax rate of 0 percent by virtue of subparagraphs 1 - 6 and 8 of paragraph 1 of Article 164 of the Tax Code of the Russian Federation, deductions are made in the form of compensation on the basis of a separate tax return and after checking by the tax inspectorate the documents submitted by the taxpayer with the declaration for compliance with their requirements of Article 165 of the Tax Code of the Russian Federation.

Secondly, the purpose of the three-month period established by paragraph 2 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, as well as the start date of its calculation, are different.

According to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, within a three-month period, the tax authority sends the amount of tax to be reimbursed to the taxpayer for the fulfillment of his tax obligations.

In this case, three calendar months following the expired tax period are considered a three-month period.

The three-month period provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation is established for the tax authority to check “the validity of applying the 0 percent tax rate and tax deductions.”

These three months, in contrast to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, are calculated from the date the taxpayer submits the tax return and documents provided for in Article 165 of the Tax Code of the Russian Federation.

Tax authorities often do not take this difference into account and, when determining the period of delay in tax refund on a return on the domestic market, the beginning of the three-month tax refund period mistakenly considers the date of filing the return, and not the day following the end date of the tax period for which the value added tax return was submitted. cost (Resolution of the Federal Arbitration Court of the North-Western District dated June 29, 2006 in case No. A56-54145/2005).

Thirdly, there is a different order of offset of payments depending on their type (it should be remembered that offset is carried out only in relation to payments subject to credit to the same budget).

In paragraph 2 of Article 176 of the Tax Code of the Russian Federation, payments for the payment of which the amount to be reimbursed is allocated are given in the following sequence:

fulfillment of the obligation to pay taxes and fees (including taxes paid in connection with the movement of goods across the customs border of the Russian Federation);
payment of penalties;
repayment of arrears;
the amount of tax penalties awarded to the taxpayer.

And paragraph 4 of Article 176 of the Tax Code of the Russian Federation provides for a different ranking order:

arrears and penalties for value added tax;
arrears and penalties for other taxes and fees;
debt on awarded sanctions;
current payments for value added tax and (or) other taxes and fees, as well as taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the implementation of work (services) directly related to the production and sale of such goods .

Even a quick comparison of the above lists allows you to see significant differences in them.

To what extent did the tax authorities take these discrepancies into account when carrying out offsets under paragraphs 1 - 3 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, based on the existing judicial practice, it's hard to say.

Fourthly, the deadline for filing a tax refund application is regulated differently.

Both procedures provide for two methods of tax refund - offset and refund, however, the right to a tax refund is conditional on the presence of a refund application submitted by the taxpayer.

Moreover, not all courts considered the presence of a tax refund application submitted by the taxpayer to the tax authority as a condition for its reimbursement by returning it to the current account.

The Supreme Arbitration Court of the Russian Federation in Resolutions dated November 28, 2006 N 9355/06, dated November 29, 2005 N 7528/05, dated December 21, 2004 N 10848/04 confirmed the need to submit such an application, indicating that before receiving the taxpayer’s application, which contains his express will to return the tax amounts to him, the tax authority has no obligation to return the tax subject to reimbursement.

But the will of the taxpayer can be expressed and must be taken into account not only when submitting an application for a refund directly to the tax authority. In Resolution No. 1363/06 dated 06.06.2006, the Supreme Arbitration Court of the Russian Federation recognized the taxpayer as having fulfilled the requirement of Article 176 of the Tax Code of the Russian Federation to submit an application for a refund as a condition for tax reimbursement by way of a refund when the taxpayer sets out this requirement in an application submitted to the arbitration court. Organization in addition to the request for invalidation of the decision tax office about the refusal to refund the tax on the declaration at a tax rate of 0 percent, she asked to oblige the tax authority to refund the tax by returning it to the current account. Prior to this, an application for a tax refund had not been submitted directly to the tax authority. The Supreme Arbitration Court of the Russian Federation recognized that the purpose of the taxpayer's appeal to the court is to reimburse the tax by returning funds not paid to him due to the unlawful inaction of a state body. The will to reimburse the tax from the budget through a refund can be expressed in an application to the court.

The resolution resolved the long-standing issue of the obligation to first, before going to court, demand an obligation to reimburse the tax in accordance with Article 176 of the Tax Code of the Russian Federation by returning it and submitting an application to the tax authority. The Supreme Arbitration Court of the Russian Federation confirmed the right of a taxpayer to put forward a claim for tax refund in an application submitted to the court, and in cases where an application for tax refund by refund was not submitted to the tax authority.

Article 176 of the Tax Code of the Russian Federation does not clearly define the date (term, period) of filing an application for a tax refund to the tax authority.

Thus, in paragraph one of paragraph 3 of Article 176 of the Tax Code of the Russian Federation it is stated that after three calendar months following the expired tax period, the amount that was not offset must be returned to the taxpayer upon his application.

Does this mean that the taxpayer can submit such an application before the expiration of the three-month period in order to shorten the period for returning the tax amount to the current account?

From the second paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, it follows that the tax authority, within two weeks after receiving the application, makes a decision on the return of the amount of tax from the relevant budget and, within the same period, sends the decision for execution to the relevant body of the federal treasury.

And if the taxpayer submitted an application for a tax refund two weeks before the expiration of the three-month period, does the right to a tax refund arise on the first day following it or is it necessary to add two weeks to the three-month period?

In the Federal Arbitration Court of the Northwestern District, there are two opposing points of view, and their supporters do not deny that the taxpayer has the right to submit an application for a tax refund before the expiration of the three-month period.

According to the first point of view, when submitting an application before the expiration of the three-month period (no later than two weeks, including simultaneously with the declaration), two weeks for making a decision on return are not added, since “the two-week period for making a decision on return is absorbed by the three-month period, established by the first paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation" (Resolutions of the Federal Arbitration Court of the North-Western District dated 09/21/2006 N A05-4743/2006-13, dated 08/24/2006 N A56-40874/2005, dated 02/20/2006 N A56- 40107/04).

A different position is set out in the Resolution of the Federal Arbitration Court of the North-Western District dated April 26, 2006 N A56-39759/2005. The court indicated that “since the application for a tax refund was submitted simultaneously with the tax return, the maximum period for the return of value added tax in the domestic market is equal to three months established for the desk tax audit of the declaration, plus two weeks for making a decision on the return of the specified amount and direction decisions for execution to the relevant body of the federal treasury, plus eight days allotted for the treasury to receive the decision of the tax authority, plus two allotments allotted to the treasury for transferring the corresponding amounts to the taxpayer’s account.”

This issue was not brought up for consideration by the Presidium of the Supreme Arbitration Court of the Russian Federation.

But I would like to once again draw attention to the two norms of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, given in paragraphs one and two of paragraph 3 of Article 176 of the Tax Code of the Russian Federation.

The first paragraph of paragraph 3 states that after three calendar months following the expired tax period, the amount that was not offset shall be returned to the taxpayer upon his written application.

That is, it is expressly stated that the uncredited amount will be returned after three months.

At the same time, paragraph two provides for the duty of the tax authority, within two weeks after receiving the application, to make a decision on returning the tax to the taxpayer and, within the same period, to send the conclusion for execution to the relevant federal treasury body.

Should a two-week period be established not only for making a decision, but also for sending the conclusion to the appropriate body of the federal treasury?

If this is so, then the two weeks provided for in paragraph two of paragraph 3 of Article 176 of the Tax Code of the Russian Federation may increase the period for tax refund, regardless of when the application for its refund is submitted, since even if a decision on refund is made simultaneously with the decision on tax refund in the last day of the three-month period, the tax authority has the right to forward this decision to the treasury authority within two weeks.

There is even less certainty in legal regulation deadline for filing an application for a refund of tax reimbursed under the declaration for transactions taxed at a tax rate of 0 percent.

Paragraph 4 of Article 176 of the Tax Code of the Russian Federation also does not establish the date (period) for sending an application for the return of the tax subject to refund.

From paragraph nine of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, it follows that in the absence of grounds for offset, the amounts subject to reimbursement are subject to return to the taxpayer upon his application. And in the next, tenth, paragraph it is stated that the tax authority, no later than the last day of the three-month period, must make a decision on the return of tax amounts from the relevant budget and, within the same period, send this decision for execution to the relevant body of the federal treasury.

Taxpayers' understanding of the provisions of these two paragraphs is different.

Some believe that the application for a refund should be with the tax office at the time the audit is completed and the tax authority makes a decision. Since three months is the maximum period for conducting an audit and the tax authority can complete it much earlier (judicial practice knows many examples when tax authorities conduct an audit and make decisions within a month), such taxpayers submit an application simultaneously with the declaration or after a short period of time.

Other taxpayers believe that there is no point in filing an application for a tax refund before receiving a decision from the tax authority on a tax refund.

At the same time, it is not taken into account that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain rules regulating the actions of tax authorities when a taxpayer submits an application for a refund after the tax authority makes a decision.

However, this problem was resolved by the Presidium of the Supreme Arbitration Court of the Russian Federation.

In Resolution No. 7528/05 dated November 29, 2005, the Supreme Arbitration Court of the Russian Federation confirmed that, within the meaning of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, a taxpayer’s application for a tax refund must be submitted before the expiration of the three-month period established for a desk audit of a tax return. At the same time, the Supreme Arbitration Court of the Russian Federation drew attention to the fact that this paragraph does not contain a ban on the taxpayer filing an application for a tax refund even after this period; therefore, the taxpayer is not deprived of the opportunity to submit such an application, even if by the time it is submitted the tax authority made a decision to offset the tax, did not make a decision on compensation, or made a decision to refuse compensation, since the latter can be challenged in arbitration court.

The court also concluded that the period for consideration by tax authorities of tax refund applications submitted by taxpayers outside the three-month period for verifying a tax return is not established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation. Therefore, for the purpose of determining the initial moment of accrual of interest for late tax refund on a declaration at a tax rate of 0 percent, paragraph 3 of Article 176 of the Tax Code of the Russian Federation can be applied, obliging the tax authority to make a decision on tax refund within two weeks after receiving the application and send it within the same period it for execution by the federal treasury body.

I would like to remind you of the need to verify the credentials of the person who signed the application sent to the tax authority for tax reimbursement through a refund.

The tax authorities have information about the head and chief accountant of organizations, as well as about individual entrepreneurs, and their personal signatures, therefore they check the authority of the persons who signed the applications received by the tax authority.

In judicial practice, there are disputes arising due to the signing of submitted applications for offset or refund of value added tax by unauthorized persons.

Thus, in February 2006, the Federal Arbitration Court of the North-Western District considered a cassation appeal in case No. A42-6647/04-26, initiated at the request of an individual entrepreneur to invalidate the decision of the tax authority to refuse compensation by returning the amounts of value added tax , paid to suppliers. During the consideration of the inspectorate's complaint, the court found that the tax authority's refusal to reimburse the taxpayer from the budget for taxes through a refund was justified by the fact that the application for a tax refund was signed by an unauthorized person. The Federal Arbitration Court of the Northwestern District agreed with the tax authority. The court recognized that a written statement from the taxpayer is a mandatory documentary basis for a refund of value added tax. The court also indicated that, due to the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation, the participation of the taxpayer - individual in tax relations through an authorized representative is possible only on the basis of a notarized power of attorney or a power of attorney equivalent to that in accordance with civil law Russian Federation. Power of attorney in accordance with paragraph 1 of Article 185 Civil Code The Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) recognizes a written authority issued by one person to another person for representation before third parties. The validity of a power of attorney may be terminated due to the cancellation of the power of attorney by the person who issued it. The person who issued the power of attorney may at any time revoke the power of attorney or sub-power of attorney, and the person to whom the power of attorney was issued may revoke it. Thus, within the meaning of the provisions of Articles 185 and 188 of the Civil Code of the Russian Federation, a representative can exercise his powers only if they are confirmed by a written power of attorney. Since in the case under consideration, the taxpayer’s application, signed by an authorized representative, did not indicate on the basis of which document (power of attorney) the representative exercises his powers, the cassation court rejected the entrepreneur’s reference to the fact that the application was signed by a duly authorized person.

Fifthly, the rule on the amount of interest accrued to the taxpayer for violating the deadlines for returning taxes in the form of a refund is formulated differently.

Paragraph 3 of Article 176 of the Tax Code of the Russian Federation states that if the deadlines for tax reimbursement by refund are violated, the taxpayer is charged and paid interest based on 1/360 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay.

In paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the size of the refinancing rate of the Central Bank of the Russian Federation, based on which interest is calculated, is not limited.

This circumstance cannot but give rise to disputes between tax authorities and taxpayers.

Tax authorities believe that interest should be calculated based on 1/365 of the refinancing rate of the Central Bank of the Russian Federation.

The courts do not agree with this position of the tax authorities, pointing out that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain an indication of the required number of days used in calculating interest. Applying the provisions of Article 11 of the Tax Code of the Russian Federation, as well as guided by the explanations contained in the joint Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation dated October 8, 1998 N 14/13 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of others money", the courts proceed from the fact that interest for violation of the tax refund deadlines provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation is accrued based on the amount established by paragraph 3 of Article 176 of the Tax Code of the Russian Federation - 1/360 of the refinancing rate of the Central Bank of the Russian Federation (Resolution of the Federal Arbitration Court Court of the Moscow District dated 07.11.2006 N KA-A40/10666-06, dated 22.06.2006 N KA-A40/5338-06).

New tax refund procedure from January 1, 2007

From January 1, 2007, taxpayers submit single declaration for all transactions of sale of goods, works, services, regardless of the applicable tax rate.

Accordingly, a unified tax refund procedure has been established.

First of all, there is a mandatory desk audit of value added tax declarations for which the amount of tax deductions exceeds the total amount of tax recognized as subject to value added tax.

It should be noted that Article 176 of the Tax Code of the Russian Federation since 2007 contains a direct indication that the inspection is desk-based and is carried out in the manner established by Article 88 of the Tax Code of the Russian Federation. And paragraph 8 of Article 88 of the Tax Code of the Russian Federation (as amended in force on January 1, 2007) provides for the right of the tax authority, when a taxpayer submits a tax return for value added tax, which states the right to a tax refund, to request from the taxpayer documents confirming the in accordance with Article 172 of the Tax Code of the Russian Federation, the legality of applying tax deductions.

That is, only if the amount of tax deductions exceeds the amount of tax calculated for transactions recognized as subject to value added tax, and the taxpayer has the right to reimburse the difference from the budget in accordance with Article 176 of the Tax Code of the Russian Federation, the tax authority has the right to demand the submission of documents provided for in Article 172 of the Tax Code RF.

According to paragraph 2 of Article 88 of the Tax Code of the Russian Federation, a desk audit is carried out within three months from the date the taxpayer submits a tax return and documents that, in accordance with the Code, must be attached to the tax return.

According to the new rule, upon completion of the inspection, within seven days, the tax authority is obliged to make a decision on the reimbursement of the appropriate amounts, if no violations of the legislation on taxes and fees have been identified.

This is a period that was not in the previous version of Article 176 of the Tax Code of the Russian Federation.

Refunds will be made by credit or refund.

As before 2007, if the taxpayer has arrears on taxes, other federal taxes (that is, the type of tax is now determining, and not the level of the budget to which it is credited), arrears on the corresponding penalties and (or) fines, the tax authority will independently offsets the amount of tax to be reimbursed against their repayment.

If there are no grounds for the tax authority to carry out an offset, the amount of tax subject to reimbursement by decision of the tax authority is returned at the request of the taxpayer to the bank account specified by him.

The addition about the need for the taxpayer to indicate a bank account in the application appeared only in 2007, however, even before its introduction, tax authorities often justified the legality of non-refund of tax amounts to the taxpayer by the absence of such information in the taxpayer’s application.

The courts did not recognize such an explanation as a valid reason for the inaction of the tax authority, citing the fact that, due to the obligation of taxpayers established by subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation to inform the tax authorities about the opening or closing of accounts, the tax authorities know information about all of their accounts. Therefore, the tax authority must return the tax amount to any known account.

Unfortunately, given the presence of numerous judicial practices indicating the position of the tax authorities not to return value added tax from the budget under any pretext, the introduction by the legislator of a rule to indicate a bank account in the tax refund application will lead to additional disputes. After all, the obligation of taxpayers established by subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation has not been canceled, therefore, the tax authority always has information about the taxpayer’s accounts. Therefore, in the absence of an indication of a specific bank account in the taxpayer’s application, in principle, nothing prevents the tax authority from making a decision on a tax refund, and in the tax refund order issued on the basis of the decision, sent to the territorial body of the federal treasury, indicate any known account taxpayer.

In connection with the mention of an application for a tax refund, I would like to draw attention to one circumstance that may also cause controversy.

A quick glance at the new edition of the provisions of Article 176 of the Tax Code of the Russian Federation creates the impression that the filing by a taxpayer of an application for a tax refund is not recognized prerequisite tax reimbursement by refund:

according to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, after completing the inspection, within seven days, the tax authority is obliged to make a decision on tax refund;
in accordance with paragraph 7, the decision on offset or refund is made simultaneously with the decision on refund of the tax amount;
paragraph 10 states that if the deadline for the refund of the tax amount is violated, starting from the 12th day after the completion of the desk tax audit, following which a decision was made on the refund (full or partial) of the tax amount, interest is accrued;
Clause 6 provides for the refund of tax at the request of the taxpayer to the bank account specified by him.

It is possible that the purpose of introducing in paragraph 6 of Article 176 of the Tax Code of the Russian Federation the rule that the amount subject to reimbursement by decision of the tax authority is returned at the request of the taxpayer to the bank account specified by him, is solely to legally consolidate the right of the taxpayer to give the tax authority mandatory instructions on the details accounts in a specific bank to which funds are to be transferred.

Indeed, in accordance with paragraph 7 of Article 176 of the Tax Code of the Russian Federation, the tax authority is obliged to make a decision on offset or refund simultaneously with the adoption of a decision on refund of the tax amount (in whole or in part). Consequently, taking into account the provisions of paragraph 2 of the same article on the deadline for making a decision on a tax refund, in the absence of grounds for an offset, the tax authority is obliged to make a decision on a tax refund within seven days after the end of the desk audit, regardless of the availability of the taxpayer’s application for a tax refund.

In this case, if an application indicating account details is not submitted by the taxpayer, the tax authority has the right to indicate in the payment order sent to the treasury any account for which it has information.

If the tax authority has a taxpayer’s application for a tax refund to a specific bank account, it does not have the right to issue payment order otherwise. Violation of this rule may be grounds for holding the tax authority liable for losses caused to the taxpayer on the basis of Article 35 of the Tax Code of the Russian Federation.

In addition, while it is recognized that it is mandatory for a taxpayer to submit an application for a refund even after January 1, 2007, the issue of the procedure and time frame for considering applications for a tax refund submitted after the tax authority has made a decision on a tax refund remains unresolved. Article 176 of the Tax Code of the Russian Federation now contains no rules that can be applied by analogy, as was possible before 2007 (Resolution of the Supreme Arbitration Court of the Russian Federation dated November 29, 2005 N 7528/05).

Most likely, this issue will be submitted for resolution judiciary.

According to the new edition of Article 176 of the Tax Code of the Russian Federation, the next day after the tax authority makes a decision on a tax refund, it draws up and sends an order for a tax refund to the territorial body of the Federal Treasury.

It also establishes the obligation of the tax authority to inform the taxpayer in writing about the decision made:

about compensation (in whole or in part);
on the offset (refund) of the tax amount subject to reimbursement;
about refusal of compensation -

within five days from the date of adoption of the relevant decision.

The norm of Article 176 of the Tax Code of the Russian Federation in the new edition, like its previous edition, obliges the tax authority only to report the decision made. But since the form and content of such a message are not defined by the Code, local tax authorities have different attitudes towards the fulfillment of this obligation. In a number of cases, taxpayers are notified that a corresponding decision has been made on such and such a date. In other cases, a copy of the decision is sent. But there are often cases of failure by the tax authority to fulfill the above obligation, and then taxpayers learn about the decision made by the tax authority when conducting reconciliations in court hearings during the consideration of tax disputes.

Apparently, in order to eliminate this violation of taxpayers’ rights, the legislator, in the new wording of Article 176 of the Tax Code of the Russian Federation (clause 9), established a rule according to which a written message about the decision made must be transferred to the head of the organization, an individual entrepreneur, and their representatives (whose powers must be executed in accordance with the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation) in person against receipt or in another way confirming the fact and date of its receipt.

The new tax refund procedure outlined above applies to cases where the tax authority did not identify, during a desk audit, violations by the taxpayer of the legislation on taxes and fees.

If violations are detected, the tax authority draws up a tax audit report in accordance with Article 100 of the Tax Code of the Russian Federation. This act, along with other audit materials, as well as the taxpayer’s objections, is considered by the head of the tax authority and a decision must be made on it in accordance with Article 101 of the Tax Code of the Russian Federation. Simultaneously with the decision to hold the taxpayer accountable or to refuse to hold the taxpayer accountable, paragraph 3 of Article 176 of the Tax Code of the Russian Federation provides for the tax authority to make a decision to reimburse (in whole or in part) the amount of tax declared for reimbursement, or a decision to refuse to reimburse the amount of tax declared for reimbursement.

Obviously, tax refunds in such a situation are more complex and time-consuming.

From Article 176 of the Tax Code of the Russian Federation in the new edition, the rule that raised difficult questions was excluded, contained in paragraph five of paragraph 4, according to which, if the tax authority within deadline a decision has not been made to refuse a tax refund and (or) the tax authority has not provided the taxpayer with a reasoned conclusion, the tax authority is obliged to make a decision on reimbursement for the amount for which a decision to refuse has not been made, and notify the taxpayer of the decision within ten days.

One of the main questions was how formally should this rule be applied?

Does the court have the right to oblige the inspectorate to make a decision on tax reimbursement through a refund or offset without checking the primary documents, or should the court give the tax authority an additional period to check them?

Does the inspection have the right, after a court has made a decision imposing on it the obligation to reimburse the taxpayer a specific amount of tax (regardless of the method of reimbursement), to check documents or is it obliged to make a decision on reimbursement without checking them?

Should the court request the documents listed in Article 165 of the Tax Code of the Russian Federation, as well as those provided for in Articles 171 and 172 of the Tax Code of the Russian Federation, confirming the taxpayer’s right to a tax refund? Does the court need to evaluate such documents, including if the taxpayer himself attached them to the application to the court?

If we literally interpret the rule in paragraph five of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, then it does not follow from it that the court or tax authority is obliged to examine documents confirming the taxpayer’s right to reimbursement of the amount specified in the declaration.

This rule represents the negative consequences of failure to fulfill the duties assigned to the state-authorized body - the tax inspectorate - to make a decision within the established (and considerable!) time frame, draw up and send a reasoned conclusion to the taxpayer on its basis.

The Constitutional Court of the Russian Federation, in Ruling No. 456-O dated December 21, 2004, also clarified that the norm in paragraph five of clause 4 of Article 176 of the Tax Code of the Russian Federation “does not provide for the possibility of tax authorities making a decision to refuse reimbursement of value added tax after the expiration of the deadlines established by the Code.”

The Resolution of the Supreme Arbitration Court of the Russian Federation dated February 13, 2007 N 12943/06 draws the attention of the courts to the unlawful disregard by the tax authority of the violation of the three-month period established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation and the issuance of a decision to refuse tax reimbursement outside its borders after the taxpayer applies to court demanding that the inspectorate reimburse the tax. Unfortunately, from the contents of the Resolution it is not clear the position of the Supreme Arbitration Court of the Russian Federation regarding the presence or absence of the court’s obligation to examine the documents submitted to the court by the taxpayer, since the case was sent for a new trial to the court of first instance, and was not resolved by the Supreme Arbitration Court of the Russian Federation on the merits on the basis of the now cancelled, but in 2005 (when the tax authority missed the deadline) rule.

At the same time, in Resolution No. 13661/06 of 03/06/2007, the Supreme Arbitration Court of the Russian Federation confirmed the legality of the decision of the appellate instance, which, recognizing the actions of the inspectorate in refusing to return the amount of tax deductions as unlawful, referred to the norm of paragraph five of paragraph 4 of Article 176 of the Tax Code of the Russian Federation. The appellate court did not agree with the conclusion of the first instance court that the tax inspectorate, if the three-month deadline is missed, cannot make a decision on tax refund without analyzing the primary documents, as well as documents confirming the taxpayer’s right to tax deductions.

From the materials of this case, it followed that on April 20, 2005, the organization sent to the tax office a value added tax declaration at a tax rate of 0 percent for the first quarter of 2005 by registered mail with a list of investments. In the application dated 06/09/2005, the taxpayer requested a refund of the tax by way of a refund to his bank account. After the organization applied on July 15, 2005 with a request to report on the results of consideration of the application, the inspectorate, in a letter dated June 22, 2005, notified of the refusal to return the amount claimed for reimbursement, justifying this decision by the fact that the taxpayer’s declaration for the first quarter of 2005 was not considered, since presented in an inappropriate (previously approved) form.

The taxpayer appealed the inspectorate's actions, which resulted in the refusal to return the refundable amount of tax, and asked the court to oblige the inspectorate to return the disputed amount to the bank account.

The court of first instance confirmed that the inspectorate had no legal grounds for not accepting the organization’s declaration with documents for consideration; nevertheless, it rejected the taxpayer’s demands. The court referred to the fact that without analyzing primary documents, as well as documents confirming the right to a tax deduction, the tax inspectorate does not have the right to make a decision on tax reimbursement from the budget. The cassation court agreed with the court of first instance, additionally pointing out that the taxpayer is not deprived of the opportunity to re-submit documents to the inspectorate in the manner and within the time limits established by tax legislation.

The Supreme Arbitration Court overturned the decision of the court of first instance and the Resolution of the cassation instance and upheld the Resolution of the appellate court to satisfy the taxpayer's claims.

At the same time, the Supreme Arbitration Court of the Russian Federation proceeded from the following. Since the courts of three instances confirmed that the tax authority in the case under consideration had no legal grounds not to accept the taxpayer’s declaration with the documents attached to it, “the court of first instance should have obliged the inspectorate to consider the submitted documents in the manner established by Article 88 of the Code and make a decision based on the results their consideration, thereby obliging the inspectorate to eliminate the violation it committed.” The Supreme Arbitration Court of the Russian Federation recognized that the courts of the first and cassation instances violated the provisions of part four of Article 200 of the Arbitration Procedural Code of the Russian Federation on the right of the taxpayer to present, and the duties of the courts to examine, documents that are the basis for obtaining a tax deduction, regardless of whether these documents were requested and examined by the tax authorities authority when deciding on the provision of a tax deduction. The courts wrongfully did not take into account the refusal of the tax authority, at the request of the court, to examine and evaluate the documents submitted by the taxpayer to the court, which the inspectorate justified by the fact that the Tax Code of the Russian Federation does not provide for a desk audit during court proceedings. In addition, the Supreme Arbitration Court considered it unlawful for the courts of first and cassation instances to not apply the interrelated provisions of Article 88, paragraphs 1 and 2 of Article 171, paragraph 2 of Article 172 and Article 176 of the Tax Code of the Russian Federation, from the content of which it follows that “the tax authority does not have the right to refuse the taxpayer tax deduction if the corresponding check was not carried out by him.”

The new edition of Article 176 of the Tax Code of the Russian Federation, as well as the previous edition of its paragraph 4, does not indicate the size of the refinancing rate of the Central Bank of the Russian Federation (clause 10). Apparently, disputes will again arise in the courts over the amount of interest to be paid.

In the second paragraph of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, a norm appeared that was not previously in Article 176 of the Tax Code of the Russian Federation. According to this norm interest rate is taken to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the reimbursement period was violated.

This rule is not new for participants in tax legal relations, since a similar rule was provided for in Articles 78 and 79 of the Tax Code of the Russian Federation, in force since 1999.

A fundamentally new duty of the tax authority is established in paragraph 11 of Article 176 of the Tax Code of the Russian Federation.

According to this paragraph, if interest is not paid to the taxpayer in full, the tax authority makes a decision to return the remaining amount of interest, calculated based on the date of actual return to the taxpayer of the amount of tax to be reimbursed, within three days from the date of receipt of the notification from the territorial body of the federal treasury about date of return and the amount of money returned to the taxpayer.

An order for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, must be sent by the tax authority the next day after the adoption of this decision to the territorial body of the federal treasury.

Despite the fact that the new version of Article 176 of the Tax Code of the Russian Federation, as before, does not define the procedure for paying interest, the provisions of paragraph 11, which establishes the procedure for “additional payment of interest,” can provide answers to some of the questions that arise in judicial practice.

Firstly, the accrual and payment of interest is made by decision of the tax authority.

Secondly, based on this decision, the tax authority sends an order to the relevant authority to pay interest.

Thirdly, the order to pay interest must be sent the next day after the decision is made.

At the same time, the answer to the question about the date until which interest is calculated still has not been legally established. Clause 11 of Article 176 of the Tax Code of the Russian Federation states the payment of interest calculated based on the date of actual return to the taxpayer of the amount of tax to be reimbursed.

This issue was the subject of litigation in the Federal Arbitration Court of the North-Western District in case No. A56-11690/2005 (Resolution dated 08/29/2005). The Federal Arbitration Court of the North-Western District recognized that Article 176 of the Tax Code of the Russian Federation does not determine until what point interest should be accrued. However, paragraph 4 of Article 79 of the Tax Code of the Russian Federation states that interest on the amount of excessively collected tax is accrued from the day following the day of collection until the day of the actual refund. Since Article 79 of the Tax Code of the Russian Federation regulates legal relations similar to legal relations regulated by Article 176 of the Tax Code of the Russian Federation, the cassation court considered it possible to apply an analogy of the law and indicated in the Resolution that interest accrued on the amount of value added tax subject to refund to the taxpayer is accrued on the day of the actual refund tax. In addition, the FAS NWO referred to a similar position in relation to Articles 78 and 79 of the Tax Code of the Russian Federation, set out in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5. The Resolution dated February 28, 2001 No. 5 does not directly address the issue of calculating interest, but in it specifies the criterion for determining the moment of fulfillment of the obligation to return the relevant amounts to the taxpayer by transferring them by bank transfer to the recipient’s account: when determining this moment, one should be guided by general rule, according to which the taxpayer is recognized as having fulfilled his obligation from the moment the corresponding amount is received by the bank indicated by the recipient of the funds. Therefore, the court recognized that a tax refund in accordance with Articles 78, 79, 176 of the Tax Code of the Russian Federation can be considered made at the moment when the funds are actually transferred to the taxpayer’s account. Therefore, violation of the tax refund deadline, in connection with which interest is subject to accrual, ends at the time of the actual transfer of funds to the taxpayer’s account.

The Supreme Arbitration Court of the Russian Federation, in Resolution No. 7528/05 dated November 29, 2005, determined the end date of the tax refund delay period differently. The court indicated that the period of delay lasts until the day preceding the date of the actual transfer by the Treasury of the relevant amounts to the taxpayer. The legal basis for this conclusion is not provided in the Resolution. The resolution concerns the interpretation of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, as amended, in force until 01/01/2007. Judicial practice will show whether this conclusion of the Supreme Arbitration Court of the Russian Federation will be applied when interpreting the corresponding norm of the new edition of Article 176 of the Tax Code of the Russian Federation.

Calculation of tax refund deadlines

By submitting an application to the tax authority for the refund of the refundable amount of value added tax to the current account, each taxpayer expects to receive the amount specified in the application as soon as possible.

How to determine the maximum period after which the tax amount should be credited to the taxpayer’s current account?

When returning tax under a domestic market declaration, funds were to be credited to the taxpayer’s account no later than the last day of the aggregate of the following periods: three months (calculated from the first day of the month following the period for which the declaration was submitted) plus two weeks (if the application was not submitted later than two weeks before the expiration of the three-month period, whether or not to add these two weeks depends on the position taken on this issue) plus eight days (the period for the treasury to receive the decision of the tax authority) plus two weeks (the period for the treasury authorities to transfer the corresponding amounts to the account taxpayer).

When returning tax on a return at a tax rate of 0 percent:

if the application for a tax refund is submitted within the three-month period provided for in paragraph two of paragraph 4 of Article 176 of the Tax Code of the Russian Federation - three months (counted from the date of submission of the declaration) plus eight days plus two weeks;
If an application for a tax refund is submitted after the expiration of a three-month period, the period of delay begins on the next day after the expiration of the refund period provided for in paragraph 3 of Article 176 of the Tax Code of the Russian Federation (two weeks plus eight days plus two weeks), calculated from the date of filing the application (Resolution of the Supreme Arbitration Court Russian Federation dated November 29, 2005 N 7528/05).

After January 1, 2007, Article 176 of the Tax Code of the Russian Federation established a single maximum tax refund period.

The new edition of Article 176 of the Tax Code of the Russian Federation provides for the following types of deadlines:

three months of conducting a desk audit, calculated from the date the taxpayer submits a tax return and documents that, in accordance with the Code, must be attached to the tax return;
seven days is the period for the tax authority to make a decision on the reimbursement of the corresponding amounts, if no violations of the legislation on taxes and fees have been identified, as well as the decision on the refund taken at the same time;
the next day after the decision on the refund is made - the deadline for the tax authority to send to the treasury an order for the refund of the tax amount issued on the basis of such a decision;
five days is the period for transferring the tax amount by the treasury to the taxpayer’s bank account. Please note that these five days are calculated from the day the Treasury receives the tax authority’s order. At the same time, the deadline for its delivery (as was the case in the previous version of Article 176 of the Tax Code of the Russian Federation for the decision) has not been established.

When adding up the above deadlines for the tax authority to make a decision, send an order to the treasury authority and transfer the amount of tax to the taxpayer's account by the treasury authority, a discrepancy arises between the result obtained and the maximum period established in paragraph 10 of Article 176 of the Tax Code of the Russian Federation.

According to this paragraph, the tax amount must be returned within 11 days after the completion of the desk audit, which resulted in a decision on refund (full or partial), and from the 12th day the tax refund period is considered violated.

This discrepancy may lead to disputes and the need for judicial resolution.

/"Arbitration Disputes", 2008, N 1/

Calculation of the tax refund period when submitting updated returns

Article 81 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) provides for the filing by taxpayers of updated declarations, which amend a previously filed tax return upon discovery of the fact of non-reflection or incomplete reflection of information, as well as errors made, both leading and not leading to an understatement of the amount tax.

If the taxpayer is subject to a refund of one amount according to the initially submitted value added tax return, and another amount according to the updated one, is the tax refund procedure established by Article 176 of the Tax Code of the Russian Federation subject to re-applying?

How do the originally filed and amended declarations compare? Is it possible to recognize an updated declaration as a new independent declaration for the previous tax period, canceling a previously submitted declaration, or only amending the originally submitted declaration?

The provisions of Article 176 of the Tax Code of the Russian Federation in the current edition provide mandatory desk verification of the validity of the amount of tax claimed for reimbursement in accordance with Article 88 of the Tax Code of the Russian Federation.

Does this mean that in all cases of filing an updated declaration, the three-month period for its verification will be recalculated from the moment such a declaration is received by the tax authority?

In the judicial practice of applying the previous version of Article 176 of the Tax Code of the Russian Federation, the answer to this question depended on whether the amount of tax deductions changed when taxpayers filed updated returns at a tax rate of 0 percent.

If the amount of tax deductions, that is, the amount of tax indicated for reimbursement, did not change, the courts found no grounds for extending the set of deadlines for tax refunds (Resolution of the Federal Arbitration Court of the North-Western District dated January 23, 2007 N A56-34919/2005, Federal Arbitration Court of the West -Siberian District dated 09/06/2006 N F04-5383/2006(25723-A27-42)).

When the amount of tax claimed for reimbursement in the amended declaration changed, the courts recognized the right of the tax authority to check this declaration again in the manner established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation (Resolution of the Federal Arbitration Court of the North-Western District of June 20, 2006 N A56-40107/04 ).

Another question arises when submitting an amended declaration.

Is it possible to re-submit an application for a refund of a different, adjusted amount of tax? Does the solution to this issue depend on the amount of tax claimed for reimbursement: is it less or more than that indicated in the originally submitted declaration?

The relevance of a uniform solution to this issue when applying the relevant provisions of Article 176 of the Tax Code of the Russian Federation in the new edition will remain in the event that filing an application for a tax refund is recognized as a necessary condition for the reimbursement of value added tax through a refund.

Consequences of failure to comply with tax refund deadlines

As already indicated, Article 176 of the Tax Code of the Russian Federation, both in the old and new editions, establishes two methods of tax reimbursement - credit and refund. The same article defines the deadlines for offset and return.

However, payment of interest to the taxpayer is provided only in case of violation of the deadlines for returning the amount of value added tax to be reimbursed. Failure to timely carry out an offset by the tax authority does not entail the accrual of interest provided for in Article 176 of the Tax Code of the Russian Federation.

This conclusion was reached by the Supreme Arbitration Court of the Russian Federation in Resolution No. 5351/04 dated October 5, 2004. The subject of the dispute in this case was two demands: recognition as illegal of the inaction of the tax authority, expressed in the failure to offset the refundable amount of value added tax, and imposition on the tax authority of the obligation to accrue interest provided for in Article 176 of the Tax Code of the Russian Federation. The court of first instance, having satisfied the first requirement, rejected the second as unlawful and not based on the norms of Chapter 21 of the Tax Code of the Russian Federation. The court found that the taxpayer submitted declarations to the tax inspectorate in which more than 12 million rubles were claimed for reimbursement. The tax authority did not offset the tax amount subject to reimbursement within the period established by Article 176 of the Tax Code of the Russian Federation. Two years later, the taxpayer submitted a written application to the inspectorate to offset this amount to pay off tax debt, and the tax authority executed it on the same day. Since no application was made for tax refund by way of refund, the court found no basis for charging interest.

The cassation instance overturned the court's decision on the second claim, concluding that there were grounds for paying the taxpayer the interest provided for in Article 176 of the Tax Code of the Russian Federation, since “interest on the amount of untimely refunded tax is subject to accrual regardless of the method of compensation (by offset or refund).”

The Supreme Arbitration Court of the Russian Federation did not agree with the cassation court and confirmed the legality of the decision of the first instance court. The Supreme Arbitration Court of the Russian Federation indicated that, in accordance with Article 176 of the Tax Code of the Russian Federation, interest on tax amounts subject to reimbursement is accrued only if the tax authority violates the tax refund deadlines in the presence of a written application from the taxpayer. Since the taxpayer did not apply to the tax office with a written application for a tax refund, interest is not subject to accrual. The conclusion of the cassation court on the accrual of interest for the inspection's violation of the deadlines for the offset of value added tax was declared unlawful by the Supreme Arbitration Court of the Russian Federation.

But in all cases, does the taxpayer not have the right to compensation for material losses caused by untimely reimbursement of value added tax by the tax authority, by receiving interest provided for in Article 176 of the Tax Code of the Russian Federation, if ultimately the tax is reimbursed by offset rather than refund?

Judicial practice gives a negative answer to this question.

In February 2007, the Presidium of the Supreme Arbitration Court of the Russian Federation considered two cases (Resolutions dated February 27, 2007 N 11484/06 and N 13584/06), decisions in which the taxpayer was paid interest for violating the tax refund deadline in situations where the tax amount was not credited to the taxpayer’s account, but was credited by the tax authority at his request towards the fulfillment of his obligation to pay taxes.

It is necessary to pay attention to a number of special circumstances in these cases.

When considering the application for review by way of supervision of the Resolution in case No. A56-1786/2005, the Supreme Arbitration Court of the Russian Federation found that on November 20, 2003, the organization filed a declaration at a tax rate of 0 percent for value added tax for October 2003, according to which she was subject to reimbursement from the budget of a certain amount of tax. Along with the declaration, the tax authority received an application for the refund of the amount of tax to be refunded to the taxpayer's bank account. Before the expiration of the three-month period for checking this declaration, on 02/09/2004, the organization filed an updated value added tax return for October 2003, in which the amount of tax deductions was increased. By decision of May 7, 2004, the tax authority refused to refund the tax. The taxpayer appealed this decision to the arbitration court. Arbitration court By decision of 07/06/2004, the decision of the tax authority was declared invalid, obliging the inspectorate to make a decision on tax refund and ensure its execution by sending it to the federal treasury authorities. The tax authority did not execute the court decision until December 1, 2004. For this reason and in connection with the emergence of an obligation to pay taxes, on December 1, 2004, the organization sent to the tax authority an application for offset of the amount to be reimbursed, which was executed by the inspectorate on December 3, 2004.

At the same time, the taxpayer rightly believed that a change in the method of execution of the court decision (due to its long-term non-execution by the tax authority), which confirmed his right specifically to the return of the amount of value added tax subject to reimbursement from the budget, and not an offset, cannot prevent the accrual and payment him the interest provided for in paragraph twelve of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, if there are grounds for receiving them. Therefore, he went to court with a demand to oblige the tax authority to accrue and ensure payment of the interest established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation, calculated from the moment the right to a refund arose, if the tax authority had initially made a legal decision, and until the date of filing the application for offset.

The Supreme Arbitration Court of the Russian Federation confirmed that the taxpayer in the above case has the right to receive interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. In Resolution No. 11484/06 dated 27.02.2007, the Court indicated that the legislation of the Russian Federation in the field of taxes and fees is aimed at establishing a balance of private and public interests in the field of taxation and links the payment of interest for late receipt of tax benefits with illegal delays on the part of tax authorities in payment deductions due. The interest provided for by the Tax Code is compensation for the taxpayer’s material and intangible losses from the untimely receipt of tax benefits due to untimely implementation by the Federal authorities. tax service functions for reimbursement of tax deductions. The refusal of the tax authorities to pay interest as compensation for late payments due violates the fair balance that must be maintained between the interests of individuals (taxpayers) and the interests of society.

In another case (Resolution dated February 27, 2007 N 13584/06), the Supreme Arbitration Court of the Russian Federation, confirming the taxpayer’s right to receive interest in such circumstances, proceeded from the fact that the organization’s application to the tax authority with an application for tax offset (if there was a previously submitted together with the declaration of the application for its return) was a forced measure due to unlawful actions of the tax authority. The tax authority, despite the presence of all the grounds for refunding the tax through a refund, confirmed by a court decision, did not return the tax, including in pursuance of a court decision. By a decision made a year after the court hearing based on the results of an audit of another declaration, the tax authority assessed additional tax, the payment of which, at the request of the taxpayer (which was sent involuntarily, due to the need for a certificate of absence of arrears), included the amount to be reimbursed. But this decision of the inspectorate was also illegal; it was subsequently declared invalid by the court.

The Supreme Arbitration Court of the Russian Federation came to the conclusion that if there are other grounds for tax refund, one of the criteria is the will of the taxpayer. His subsequent application to change the tax refund method is valid for the future and does not apply to the previous period when the refund deadline was already violated. Within the meaning of Article 176 of the Tax Code of the Russian Federation, the mere fact of a delay in tax refund is the basis for the accrual of interest, regardless of whether the tax was returned in violation of the deadline or the obligation to return it was subsequently terminated.

Thus, from the above Resolutions we can conclude that if the tax authority fails to timely fulfill the obligation to return to the taxpayer the amount of tax to be reimbursed, if there are grounds for its return, the taxpayer has the right to receive the interest provided for in Article 176 of the Tax Code of the Russian Federation even in the case when Due to changed circumstances, in the presence of a previously submitted decision on a tax refund, he is forced to submit an application for offset.

In this case, interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation is subject to accrual for the period from the moment the right to a refund arises, if the tax authority had initially made a legal decision, and until the date of filing the application for offset. That is, only for the period during which the taxpayer was entitled to a tax refund.

After the Presidium of the Supreme Arbitration Court of the Russian Federation issued the above two Resolutions, some experts hastened to declare a change in the previously expressed position regarding the lack of legal grounds for calculating interest in the event of untimely offset by the tax authority under paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended in force until 01.01.2007 ). Whether this is really true is difficult to say. But it should be remembered that the norm of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, in force since January 1, 2007, directly indicates the accrual of interest “if the deadline for returning the tax amount is violated.”

Grounds for refusal by tax authorities to pay interest

In the practice of the Federal Arbitration Court of the Northwestern District, it is difficult to recall a case when the tax authority recognized the taxpayer’s demands for the accrual and payment of interest provided for in Article 176 of the Tax Code of the Russian Federation. And this despite the fact that the tax authorities are authorized by the state to ensure compliance with the legislation on taxes and fees by all its participants, which include the tax authorities themselves.

The denial of the obligation to accrue and ensure payment of interest is justified by the following circumstances:

The tax authority promptly, within the three-month period established by Article 176 of the Tax Code of the Russian Federation, made a decision to refuse reimbursement of value added tax.

Referring to the timely adoption of a decision to refuse tax refund through a refund, the tax authorities ignore the fact that the taxpayer asks to pay interest, as a rule, after the court has declared the inspector’s decision to refuse a tax refund invalid.

In one of the first decisions related to the formation of judicial practice of calculating interest under Article 176 of the Tax Code of the Russian Federation, the Federal Arbitration Court of the North-Western District, rejecting this argument of the inspectorate, indicated the following.

If the deadlines established in paragraph 4 of Article 176 of the Tax Code of the Russian Federation are violated, interest is accrued on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation. Moreover, from this norm it follows that the accrual of these interests does not depend on the reasons for violating the established deadlines for tax refunds. The specified interest is compensation for the taxpayer's losses for untimely return from the budget of funds due to him. The court's recognition as invalid of the tax inspectorate's decision to refuse (in whole or in part) to reimburse the taxpayer for the tax from the budget and the imposition on the tax authority of the obligation to reimburse the tax through a refund from the budget indicates the tax authority's failure to fulfill the obligation to make a legal and justified decision within the established period. A systematic interpretation of the norms of the Tax Code of the Russian Federation, including the provisions of subparagraph 1 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation on the unconditional obligation of tax authorities to comply with the legislation on taxes and fees, allows us to conclude that paragraph 4 of Article 176 of the Tax Code of the Russian Federation deals only with legal and justified decision of the tax authority. If the decision made by the tax inspectorate is recognized by the court as invalid and the inspection is entrusted with the obligation to return the tax from the budget, this means that the tax authority did not within the prescribed period make the decision provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation - a decision to return the amount of tax from the budget (Resolution dated 03/18/2002 N A52/3287/01/2).

The Supreme Arbitration Court of the Russian Federation, in Resolution No. 14471/05 dated April 19, 2006, confirmed the right of taxpayers to appeal to an arbitration court with a claim for payment of interest, regardless of whether the tax authority’s decision to refuse tax reimbursement through a refund is challenged or not.

In the case considered by the Supreme Arbitration Court, the organization appealed to the court with demands to declare illegal the inaction of the tax inspectorate, expressed in the failure to reimburse the value added tax on the declaration at a rate of 0 percent, that is, in the failure to make a decision on the reimbursement (refund) of the tax and failure to send it to the federal body treasury, as well as the obligation of the inspectorate to reimburse the tax by returning from federal budget and pay interest for violating the tax refund deadline. The court of first instance satisfied the organization's demands. The cassation instance changed the court's decision, rejecting the applicant's demands to declare the inaction of the tax authority illegal and to pay interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. The decision adopted by the cassation court is justified by the fact that there is no fact of inaction of the tax authority, since it made a decision to refuse tax refund within a three-month period. This decision of the inspectorate was not challenged by the taxpayer, therefore, interest should not be accrued on the amount to be reimbursed.

The conclusion of the cassation court of the Supreme Arbitration Court of the Russian Federation was found erroneous.

The Supreme Arbitration Court of the Russian Federation indicated that, within the meaning of the provisions of paragraph twelfth clause 4 of Article 176 of the Tax Code of the Russian Federation, the basis for calculating interest on the amount to be returned is a violation of the deadline for its return. The accrual of interest in this case does not depend on the fulfillment by the tax authority of the obligation to make an appropriate decision (on the refund of tax amounts or on the refusal to refund). If the court confirms that the taxpayer has the right to a refund of value added tax, the fact that there is no challenge to the said decision of the tax authority is not a basis for refusing to satisfy the taxpayer’s claim to collect interest on the amount to be refunded.

The Tax Code does not define the procedure for paying interest. There are no provisions in the Code that impose an obligation on the tax authority to pay interest.

This argument, in terms of the prevalence of its application by tax authorities, occupies, perhaps, second place.

The courts reject it, citing the fact that the absence in Article 176 of the Tax Code of the Russian Federation of the procedure for calculating interest for violation of the deadlines for reimbursement of value added tax through a refund cannot deprive the taxpayer of the right to receive it. In addition, within the meaning of the provisions of Article 176 of the Tax Code of the Russian Federation, interest for untimely returned tax is paid in the same manner as those subject to reimbursement by returning the amount of value added tax. The tax authority is obliged to make a decision (conclusion) on the payment of interest and send it to the federal treasury authorities for execution by paying the amounts due to the taxpayer from budget funds. The courts also draw the attention of tax authorities to a document that is binding on them - the procedure for paying interest for late tax refunds, provided for in Article 176 of the Tax Code of the Russian Federation. This procedure was established by the joint Order of the Ministry of the Russian Federation for Taxes and Duties and the Ministry of Finance of the Russian Federation dated September 12, 2001 N BG-3-10/345; 74n “On the procedure for accounting for interest accrued for late return of an overpaid (collected) amount of tax (fee), as well as interest accrued for untimely reimbursement of value added tax amounts” (Resolution of the Federal Arbitration Court of the North-Western District dated 02/19/2007 N A52-2993/2006/2).

The original argument was put forward by the tax authority in a cassation appeal against judicial acts in case No. A56-32236/2006, filed with the Federal Arbitration Court of the North-Western District. The tax authority referred to “his lack of obligation to pay interest, since he does not act in relations with the taxpayer as entity, to which another legal entity makes property claims, but as a public regulatory body that does not have own funds"(Resolution of the Federal Arbitration Court of the North-Western District dated February 12, 2007).

Unfortunately, tax authorities often ignore the fact that when confirming the taxpayer’s right to receive interest provided for in Article 176 of the Tax Code of the Russian Federation, the court makes a decision not to collect the corresponding amount of interest from the tax authority, but imposes the obligation to accrue interest provided for in Article 176 of the Tax Code of the Russian Federation and provide their payment from the budget or accrue interest and send a conclusion on their payment to the territorial body of the federal treasury.

The taxpayer did not apply to the tax authority for payment of interest.

Neither the old nor the new editions of Article 176 of the Tax Code of the Russian Federation provide for the taxpayer to send an application for the payment of interest if the deadline for returning the amount to be reimbursed is violated. Therefore, the courts reject as not based on the norms of the Tax Code of the Russian Federation the argument of the tax authorities, put forward to justify inaction, about the absence of a taxpayer’s application for the payment of interest when considering cases of appealing the inaction of the tax authority, expressed in the non-calculation of interest and the failure to indicate their amount in the conclusion sent to the treasury for payment of untimely refunded value added tax.

The taxpayer does not have the right to claim payment of interest, since he changed the methods of compensation: first he asked for an offset, then he applied for a refund, and vice versa.

The position of the Supreme Arbitration Court of the Russian Federation on this issue is set out on pp. 87 - 89.

The taxpayer incorrectly determined the start date and end date of interest payments.

From what moment are the interests provided for in Article 176 of the Tax Code of the Russian Federation accrued?

If the taxpayer has submitted, along with the declaration, an application for tax reimbursement by way of a refund, and the tax inspectorate unlawfully refused to reimburse the tax (which is confirmed by a court decision, by which the inspectorate’s decision to refuse a tax refund was declared invalid), then interest is subject to accrual from the day on which the tax period expired. together the terms established by Article 176 of the Tax Code of the Russian Federation.

This conclusion of the courts is justified by the fact that the tax authority did not make a decision within the prescribed period, which should be made if the inspection complies with the norms of the Tax Code of the Russian Federation.

That is, the accrual of interest in the case under consideration depends on the legality of the decision made by the inspectorate, which imposes on the courts the obligation to very carefully assess the legality of the tax authority’s decision to refuse a refund of value added tax, because the court’s decision affects whether the taxpayer receives interest and its period accruals.

Judicial practice knows different cases of appealing decisions of tax authorities to refuse a tax refund:

the decision to refuse a tax refund was made in the presence of documents confirming the right to deductions, which the tax authority unlawfully recognized as insufficient and (or) improperly executed;
the decision to refuse a tax refund was made due to the taxpayer’s failure to submit, along with the declaration, documents confirming the right to tax deductions, and the tax authority did not request them;
the decision to refuse a tax refund was made due to the failure to receive documents from the taxpayer confirming the right to tax deductions, when the request for their direction was not received by the taxpayer (see, for example, Resolution of the Supreme Arbitration Court of the Russian Federation of February 18, 2006 N 1744/06 - the taxpayer received a request by fax the next day after the inspection made a decision to refuse a tax refund; Resolution of the Supreme Arbitration Court of the Russian Federation dated February 13, 2007 N 14137/06 - the tax inspectorate indicated in the request not the month for which it needed documents, the taxpayer fulfilled it, but another requirement. was not sent to him);
the decision to refuse a tax refund was made due to the failure to receive documents from the taxpayer confirming the right to tax deductions, when the request for their submission was received by the taxpayer, but not fulfilled (this option does not apply to cases where the taxpayer refuses to submit documents to the tax authority, citing their his absence, for example, due to loss - Resolution of the Supreme Arbitration Court of the Russian Federation of January 30, 2006 N 10963/06).

It is obvious that in the situations listed in paragraphs 1, 2, 3, the courts have every reason to invalidate the inspection decision, since such a decision is illegal at the time of its making. Accordingly, the taxpayer can claim to receive interest calculated in such a way as if no decision had been made by the tax authority.

But how lawful is it to invalidate the inspector’s decision to refuse a refund of value added tax in cases where the taxpayer submitted to the tax authority improperly executed documents confirming the right to tax deductions, and the tax authority did not have legal grounds to confirm the right to tax deductions, and Did the taxpayer send correctly executed documents to the court?

The Supreme Arbitration Court of the Russian Federation has repeatedly drawn the attention of the courts to the need to verify the legality of the inspection decision on the date of its issuance (Resolutions dated May 16, 2006 N 14874/05, dated April 18, 2006 N 16470/05; dated September 21, 2005 N 4152/05; dated 06.07 .2004 N 1200/04).

Thus, in Resolution No. 4152/05 of the Supreme Arbitration Court of the Russian Federation dated September 21, 2004, it is stated that if the taxpayer made a request to recognize the decision of the tax inspectorate as invalid, then the assessment of the legality of this decision should be carried out by the court based on those documents required to be submitted by force of law, which at the time its findings were submitted to the tax office in order to confirm the right to a tax rate of 0 percent and tax deductions for export operations. In particular, invoices attached by the taxpayer to the response to the application for review of judicial acts by way of supervision, sent to the Supreme Arbitration Court of the Russian Federation, cannot indicate the illegality of the decision of the tax inspectorate.

And according to the Resolution of the Supreme Arbitration Court of the Russian Federation dated April 18, 2006 N 16470/05, the submission of a complete package of documents, defined by Article 165 of the Tax Code of the Russian Federation, to confirm the right to apply a tax rate of 0 percent directly to the court is not a reason for the court to make a decision to declare the inspectorate’s refusal of compensation illegal tax, since the verification of the legality of the decision on the taxpayer’s right to apply a tax rate of 0 percent is carried out taking into account only those documents that it had.

Despite the fact that the examples given concern documents confirming the taxpayer’s right to apply a tax rate of 0 percent, can it be argued that the court’s conclusion about the need to assess the legality of the inspectorate’s decision to refuse a refund of value added tax at the time of its issuance applies to only one component - documents listed in Article 165 of the Tax Code of the Russian Federation?

Resolutions of the Supreme Arbitration Court of the Russian Federation dated May 16, 2006 N 14874/05 and N 14873/05 contain a negative answer to this question. When considering cases on the taxpayer's application to invalidate the tax inspectorate's decision to refuse a tax refund and the inspection's obligation to reimburse the amount of tax indicated in the declaration, the following was established. The taxpayer, at the request of the inspectorate, did not provide documents confirming the acquisition and posting of inventory items, as well as their payment, including the amount of value added tax claimed for reimbursement under the declaration at a tax rate of 0 percent. The taxpayer believed that he was not obliged to submit these documents during a desk audit, since the tax authority did not identify errors or contradictions in the submitted declaration, and source documents, requested by the inspection, can only be the subject of an on-site and not a desk inspection. The taxpayer brought the documents requested by the tax authority to the court. The courts satisfied the applicant's demands, but the Supreme Arbitration Court of the Russian Federation overturned the decisions taken in the case. The Supreme Arbitration Court did not agree with the taxpayer’s lack of obligation, when conducting a desk audit, to present the primary documents requested by the tax authority confirming the right to tax deductions. With regard to the documents presented by the applicant, it is stated that “the documents submitted by the company to the court cannot indicate the illegality of the inspectorate’s decision.”

The said Resolutions also explain to the taxpayer that refusal to reimburse amounts of value added tax at a tax rate of 0 percent in a specified tax period does not deprive him of the right to re-submit the appropriate documents to the inspectorate in a different tax period within the period established by law.

It seems that a similar approach should be taken when the taxpayer submits to the tax authority improperly executed documents confirming the right to a tax refund (tax deductions).

Rejection by the courts of the taxpayer's demands to invalidate the inspectorate's decision to refuse a tax refund on the grounds of its legality on the date of issue will actually prevent the unjustified payment from the budget of interest provided for in Article 176 of the Tax Code of the Russian Federation.

But this applies only to cases where the tax authority has fully complied with the rules for conducting a desk audit and making a decision to refuse a tax refund, namely: the taxpayer is informed about questions that have arisen regarding the correct calculation and payment of tax, about errors discovered when filling out documents, additional information, explanations and documents were requested, confirming the correctness of calculation and timely payment of taxes, and the taxpayer provided explanations, made corrections to the documents drawn up with errors and, together with additional documents, submitted them to the inspectorate, when the taxpayer was notified in advance of the date and place of consideration of the materials by the desk tax office inspection by the head of the tax authority.

Moreover, the taxpayer’s right to a tax refund will not remain unprotected, since the taxpayer has the right, in accordance with Article 81 of the Tax Code of the Russian Federation, to submit to the tax authority an updated value added tax return for the same tax period for the amount of tax deductions for which compensation was previously denied to him due to lack of proof of the right to receive it. If necessary, the updated declaration must be accompanied by an application for the return of the refundable tax to the current account.

The taxpayer can also apply to the court with a claim for reimbursement from the budget by offsetting or returning the corresponding amount of value added tax, regardless of the tax authority’s earlier decision to refuse a tax refund. This right of the taxpayer was confirmed by the Supreme Arbitration Court of the Russian Federation in Resolution No. 12943/06 dated February 13, 2007. The Supreme Arbitration Court of the Russian Federation recognized the position of the courts on the impossibility of satisfying the taxpayer’s demands for the obligation to reimburse him for the amount of value added tax, if the applicant did not challenge the decision to refuse to reimburse the corresponding amount of tax, as not based on the norms of the law.

In this case, the taxpayer, in accordance with the rules of parts three and four of Article 65, part one of Article 66, subparagraph 5 of part two and part three of Article 125 of the Arbitration Procedural Code of the Russian Federation must submit to the court documents confirming the right to reimbursement of value added tax, as well as send copies of these documents to the tax authority as a person participating in the case as a defendant.

The stated approach to solving the problem of assessing the legality of a tax authority’s decision is also consistent with the position of the Constitutional Court of the Russian Federation, reflected in Determination No. 267-O dated July 12, 2006. The Constitutional Court indicated that the powers of the tax authority provided for in Articles 88 and 101 of the Tax Code of the Russian Federation are of a public law nature, which does not allow the tax authority to arbitrarily waive the need to request additional information, explanations and documents confirming the correctness of calculation and timely payment of taxes. When carrying out the function assigned to it to identify tax offenses, the tax authority, in all cases of doubt about the correctness of payment of taxes, is obliged to use the authority granted to it to request the necessary information from the taxpayer. Accordingly, the taxpayer has the right to assume that if the tax authority does not contact him for explanations or documents confirming the declared taxes, then the tax authority has no doubts about the correctness of the payment of taxes. Otherwise, it would mean a violation of the principle of legal certainty and would lead to the arbitrariness of the tax authorities.

According to part four of Article 200 of the Arbitration Procedural Code of the Russian Federation, the arbitration court, when considering in court cases challenging non-normative legal acts, decisions and actions (inactions) of tax authorities, their officials, verifies the contested act or its individual provisions, contested decisions and actions ( inaction) and establishes their compliance with the law or other regulatory legal act, establishes the authority of the body or person who adopted the contested act, decision or performed the contested actions (inaction), and also establishes whether the contested act, decision and actions (inaction) violate the rights and legitimate interests of the applicant in the field of business and other economic activities .

Based on the above norm, the Constitutional Court believes that checking for compliance with the law or other regulatory legal act of a tax authority’s decision, adopted based on the results of a desk tax audit, in terms of its validity, consists of the court’s obligation to check the compliance of the tax authority’s conclusions not only with the materials used by the tax authority available at the time of the inspection. Judicial protection of the rights and legitimate interests of taxpayers cannot be ensured if the courts, when deciding on the legality of refusing to provide the declared tax deductions, proceed from the mere lack of documents from the tax authority confirming the correctness of their application. Therefore, the taxpayer has the right to present, and arbitration courts are obliged to investigate, establish, evaluate all documents that are important for the correct resolution of the case, confirming factual circumstances, which, in accordance with tax legislation, must be taken into account when deciding on the possibility of providing tax deductions, regardless of whether These documents were requested and examined by the tax authority when deciding whether to grant a tax deduction.

Taking into account the above, it appears that if the tax authority decides to refuse a taxpayer a refund of value added tax due to the fact that at the time the decision is made, the taxpayer does not have documents (duly executed documents) giving the right to deductions for a declaration for a specific tax period, despite provided the taxpayer with the opportunity to submit (correct) them, the taxpayer has no legal grounds to appeal such a decision, and the court has no grounds to declare it invalid.

It would be more correct to send an updated return to the tax authority for the same tax period.

Otherwise, in case of illegal inaction of the taxpayer and legal decision tax authority on the date of its issuance, the taxpayer will subsequently receive the right to pay the interest provided for in Article 176 of the Tax Code of the Russian Federation.

We must not forget about the right of the taxpayer to go to court with a demand for reimbursement of the corresponding amount of value added tax from the budget by returning it to the current account without appealing the decision of the tax authority.

In this case, the taxpayer’s right to payment of interest if the tax authority fails to comply with the court decision within the established time frame will arise from the moment it enters into legal force (Resolution of the Supreme Arbitration Court of the Russian Federation dated 06.06.2006 N 1363/06).

If, in the situation described above, the taxpayer applies to the court with a statement containing two demands - to invalidate the inspectorate’s decision to refuse to reimburse the tax from the budget through a refund and to oblige the inspectorate to reimburse the tax by returning it to the current account, the court, having refused to satisfy the first demand, may, upon presentation by the taxpayer of documents confirming the right to tax deductions, satisfy the second.

A similar approach is contained in the Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05/08/2007 N 16367/06, dated 02/13/2007 N 12943/06, dated 12/05/2006 N 8689/06.

The proposed solution to the problem under study will ensure a balance of public and private interests, which is constantly drawn to the attention of the courts in decisions of the highest judicial bodies of the Russian Federation.

The question of invalidating the inspector's decision to refuse a refund of value added tax in the situation set out in paragraph 4, when the tax authority decides to refuse a tax refund due to the failure to receive documents from the taxpayer confirming the right to tax deductions upon receipt, but failure to comply with the relevant inspection requirements can also hardly be classified as simple.

In fact, the tax authority denies the taxpayer the right to a tax refund not because it has indisputable evidence that the taxpayer lacks legal grounds for applying tax deductions and (or) documents confirming them.

The only reason for refusal is the taxpayer’s failure to provide documents confirming the right to the amount of tax deductions indicated in the declaration.

But the consequences of failure to comply with the inspection’s requirements to submit documents are determined by the Tax Code of the Russian Federation. In accordance with Article 93 of the Tax Code of the Russian Federation, the taxpayer’s refusal to submit the requested documents or their failure to submit them within the established time limits is recognized tax offense and entail liability under Article 126 of the Tax Code of the Russian Federation. It also provides that the tax official conducting a tax audit (restrictions for desk audits no), makes a recess necessary documents in the manner prescribed by Article 94 of the Tax Code of the Russian Federation. That is, the tax authority must take measures to obtain documents confirming the tax deductions declared in the declaration.

Only if it is proven that the taxpayer does not have the necessary documents, the tax authority’s decision to refuse a tax refund will be legal and justified.

Neither Article 93 nor the norms of Chapter 21 of the Tax Code of the Russian Federation provide for other consequences of a taxpayer’s failure to provide documents confirming tax deductions.

It should be noted that the wording of Article 93 of the Tax Code of the Russian Federation, in force since January 1, 2007, allows for the request of documents solely by serving the person being inspected with a request for the production of documents. There is no such requirement for sending by mail.

The taxpayer incorrectly calculated the amount of interest.

When rejecting a taxpayer's claims for payment of interest on this basis, the tax authority may have in mind:

incorrect determination by the taxpayer of the start date of the delay in tax refund;
incorrect determination of the return date;
incorrect application of refinancing rates of the Central Bank of the Russian Federation that were in effect during the period of delay;
incorrect determination of the size - 1/360 or 1/365 of the refinancing rate.

The tax authority actually failed to fulfill the obligation to return the tax to the taxpayer in accordance with Article 176 of the Tax Code of the Russian Federation.

Judicial practice knows many cases when the tax authority considers it unlawful to impose on it the obligation to pay interest under Article 176 of the Tax Code of the Russian Federation, if the tax amount has not actually been returned to the taxpayer, has not been credited to his current account (regardless of whose decision to refund the tax has not been executed - the tax authority itself or the judicial authorities).

The courts, imposing in this case on the tax authority the obligation to pay interest, point out that the accrual of interest is not made by the Tax Code of the Russian Federation dependent on the tax authority actually returning the tax to its current account (Resolution of the Federal Arbitration Court of the North-Western District dated 21.02 .2007 N A56-1510/2006; Federal Arbitration Court of the Moscow District dated January 12, 2007 N KA-A40/13049-06).

The tax authority made a timely decision on tax refund.

As it turned out, tax authorities in a number of cases show misunderstandings regarding the scope of their responsibilities related to the return of value added tax amounts from the budget.

Thus, when the Federal Arbitration Court of the North-Western District considered the cassation appeal of the tax inspectorate in case No. A52-3680/2006/2 on March 13, 2007, it was established that the tax authority timely made a decision to reimburse the taxpayer from the budget for the amount of value added tax on the declaration for April 2006 and sent this decision within the prescribed period to the head of the taxpayer’s organization. At this point, the tax authority considered its duties fulfilled.

Meanwhile, according to paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended until January 1, 2007), the tax authority is obliged not only to make a decision on tax refund, but also, if there is a taxpayer’s application for a tax refund, to make a decision on tax refund. In the case considered, the value added tax declaration at a tax rate of 0 percent was received by the tax authority on May 22, 2006. The decision to reimburse the taxpayer from the budget for the tax on the return for April 2006 was made on August 21, 2006. The decision to refund the tax from the budget to the organization’s current account was made by the tax authority only on 10/05/2006, and on the same day a conclusion on the execution of the decision on refund was drawn up and sent to the Federal Treasury Department of the Ministry of Finance of the Russian Federation for the Pskov Region, as a result of which the tax was returned only 05.10.2006.

Paragraph ten of paragraph 4 of Article 176 of the Tax Code of the Russian Federation states that the decision to return tax amounts from the budget is made no later than the last day of the three-month period. Within the same period (three months), a conclusion on the refund of the tax to the taxpayer must be sent to the relevant federal treasury body. The three-month period expired on August 22, 2006. The decision to return was made on October 5, 2006, that is, in violation of the established deadline. Since interest is subject to accrual if, when returning a tax, the set of deadlines determined by paragraph 4 of Article 176 of the Tax Code of the Russian Federation for tax authorities and federal treasury authorities is violated, the courts satisfied the taxpayer’s demands to impose on the tax authority the obligation to ensure the payment of interest provided for in Article 176 of the Tax Code of the Russian Federation.

The tax authority promptly sent the conclusion to the treasury.

Violation of the deadlines for tax refund to the taxpayer to his current account occurs in a number of cases due to the treasury’s untimely execution of the tax refund report received from the inspectorate.

Guided by the norms of the Tax Code, taxpayers reasonably apply to the tax authority with a demand to pay the interest provided for in Article 176 of the Tax Code of the Russian Federation.

The tax authorities unlawfully evade making a decision on the payment of interest, citing the timely fulfillment of the duties imposed on them by Article 176 of the Tax Code of the Russian Federation for tax refunds and the fault of the treasury authorities.

This justification does not comply with the norms of Chapter 21 of the Tax Code of the Russian Federation. Interest under Article 176 of the Tax Code of the Russian Federation is paid to the taxpayer for violating the totality of the deadlines established therein, regardless of which body and at what stage the deadlines were violated. At the same time, without the inspection’s conclusion on the payment of interest, calculated by it according to the rules of Article 176 of the Tax Code of the Russian Federation, the treasury authority cannot pay them.

Lack of information about the bank account to which the refundable tax amount is to be credited.

The courts' assessment of this argument of the tax authorities is set out on pp. 83 - 84 of the journal "Arbitration Disputes", No. 4(40)/2007.

In conclusion, I would like to recall the decision of the Supreme Arbitration Court of the Russian Federation on two quite pressing issues that arose in judicial practice.

The first one is related to the problem tax accounting, voluntary transfers and forced transfers of taxpayers from one tax office to another. In this case, often the decision to refuse a tax refund is made by one tax authority, and another tax authority executes the court decision, which declared such a decision invalid and the tax authority is obliged to return the tax with interest.

From the Resolutions of the Supreme Arbitration Court dated September 6, 2005 N 4083/05 and dated May 30, 2006 N 1334/06, it follows that the procedure for tax reimbursement upon transfer of a taxpayer and registration with a new inspection by Article 176 of the Tax Code of the Russian Federation is not regulated. But in the event that the decision of the tax inspectorate, with which the taxpayer was previously registered, to refuse a refund of value added tax is recognized by the arbitration court as invalid, the new tax authority, where the taxpayer was transferred to the tax register, is obliged to restore the rights of the taxpayer violated by the illegal decision of the previous one. inspections. The obligation to reimburse the tax not fulfilled by the previous inspection in this case does not cease and does not change. In this case, the taxpayer is not obliged to re-submit documents previously submitted to the previous inspection and assessed by the court. There is no need to re-submit a tax refund application to a new inspectorate if it was previously submitted to the inspectorate where the taxpayer was registered with the tax authorities - it cannot be considered as not generating legal consequences in connection with registration with another tax authority.

Thus, if the new tax authority does not return a tax, the reimbursement and return of which was previously illegally denied to the taxpayer, which is confirmed by a court decision, such a taxpayer has the right to apply to the court with a demand to declare illegal the inaction of the tax inspectorate, expressed in the non-refund of tax from the budget, and oblige The tax authority will return the amount of tax with interest for violation of the tax refund deadline, accrued on the basis of Article 176 of the Tax Code of the Russian Federation.

The second decision concerns cases when courts, within the framework of one case, consider two claims filed against different tax authorities involved in the case as defendants. The taxpayer involves in the case both the tax authority, which made the decision contested in court to refuse a tax refund, and the tax authority, where the taxpayer was transferred to tax registration, which will execute the court decision on tax refund by returning it to the taxpayer’s bank account and paying interest when resolving a dispute in favor of the taxpayer.

How does the deadline established by paragraph 4 of Article 198 of the Arbitration Procedural Code of the Russian Federation apply in this case? Does it apply to claims for tax refunds from the budget and for the payment of interest under Article 176 of the Tax Code of the Russian Federation?

And this is the second question, the resolution of which by the Supreme Arbitration Court of the Russian Federation cannot be ignored.

The norm of part four of Article 198 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) stipulates that an application to invalidate non-normative legal acts, illegal decisions and actions (inaction) of state bodies, bodies local government, other bodies, officials may be filed with the arbitration court within three months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests, unless otherwise established by federal law.

The Supreme Arbitration Court of the Russian Federation in Resolutions dated January 31, 2006 N 9316/05 and dated December 5, 2006 N 8689/06 concluded that the requirements for refund of tax, penalties, payment of interest provided for by the Tax Code of the Russian Federation, the provisions of paragraph 4 Article 198 of the Arbitration Procedure Code of the Russian Federation does not apply.

Thus, the Supreme Arbitration Court of the Russian Federation recognized that the requirements for the collection of interest for late return of tax payments caused by incorrect actions of the tax authority, although they arise from public legal relations, are nevertheless property nature and do not fall under the category of cases considered according to the rules of Chapter 24 of the Arbitration Procedural Code of the Russian Federation, including the application of Article 198 of the Arbitration Procedure Code of the Russian Federation. Taking into account the fact that Section III of the said Code does not establish the specifics of consideration of claims for the collection of interest and based on the provisions of Article 189 of the Arbitration Procedure Code of the Russian Federation, these claims must be considered according to the rules of claim proceedings.

Consequently, the rule on a three-month period for filing an application, established by Part 4 of Article 198 of the Code, does not apply to filing applications containing a claim for the refund of taxes, penalties, and payment of interest provided for by the Tax Code of the Russian Federation.

* * *

When starting this work, it was difficult to even imagine how many questions and problems could be hidden in just one and, to be honest, quite clearly stated at first glance article of the Tax Code of the Russian Federation.

Probably, the dream of every judge considering tax disputes will always be a stable Tax Code of the Russian Federation with clearly and understandably stated and unambiguously interpreted rules.