Among the main obligations of taxpayers in accordance with the Tax Code of the Russian Federation is the obligation to pay taxes (clause 1, clause 1, article 23 of the Tax Code of the Russian Federation). For payers of insurance premiums and fees, such an obligation is, respectively, the payment of premiums and fees (clause 1, clause 3.4, clause 4, article 23 of the Tax Code of the Russian Federation). When the obligation to pay tax arises and when it stops, we will tell you in our consultation.

Obligation to pay taxes

The obligation to pay taxes is established by the Tax Code of the Russian Federation and other acts of tax legislation. If the taxpayer has circumstances that require the payment of a specific tax, then, consequently, a related obligation arises (clause 2, article 44 of the Tax Code of the Russian Federation). For example, in relation to VAT, if, according to the results of the quarter, the organization has the amount of VAT calculated in accordance with Art. 166 of the Tax Code of the Russian Federation and increased by the amount of the restored tax, exceeds the amount tax deductions provided for in Art. 171 of the Tax Code of the Russian Federation, the taxpayer has an obligation to pay VAT (clause 1, article 173 of the Tax Code of the Russian Federation).

When does the obligation to pay tax (fee) end?

The Tax Code provides for cases when the obligation to pay tax is terminated.

So, the obligation to pay tax terminates in the following cases (clause 3, article 44 of the Tax Code of the Russian Federation):

• its payment;
• death of a taxpayer-individual or declaring him dead. At the same time, the transport tax, as well as debt on local taxes redeemed by heirs;
• liquidation of the taxpayer-organization;
• other circumstances when the tax legislation recognizes the obligation as terminated (for example, upon expiration of the limitation period for tax collection).

Thus, the fulfillment of the obligation to pay taxes and fees is the most common way to terminate the tax obligation. At the same time, from November 30, 2016, the obligation to pay tax is considered fulfilled, regardless of whether the taxpayer paid the tax himself or a third party did it for him (

Persons on whom a vehicle recognized as an object of taxation is registered are recognized. However, there are a number of exceptions to this rule. And not so long ago this list was expanded.

In accordance with Art. 357 tax code(hereinafter referred to as the Code) by payers transport tax persons are recognized on whom, in accordance with the legislation of the Russian Federation, vehicles that are the object of taxation are registered. Accordingly, from the moment of state registration of the car in the traffic police, the organization is recognized as a transport tax payer.

In their explanations, the regulatory authorities have repeatedly drawn the attention of taxpayers to the fact that the obligation to pay transport tax is made dependent on, and not on its actual presence or use. The termination of the collection of transport tax is provided for by the Code in the event of deregistration of the vehicle in the registration authorities. There are no other grounds for stopping the collection of transport tax (with the exception of the theft of the vehicle or the emergence of the right to a tax benefit) January 2012 N 03-05-06-04 / 09, March 24, 2011 N 03-05-06-04 / 123, Federal Tax Service of Russia dated January 27, 2012 N BS-3-11 / 241, etc. .d.).

Thus, in the general case, as long as a car is registered for an organization, in relation to this vehicle it is recognized as a payer of transport tax with all that is called the consequences. In this case, you will have to pay tax and submit reports to the IFTS according to general rules.

"Base" in theft

However, there is an exception to this rule, which, in principle, we have already named. We are talking about a situation where a car registered to a company was stolen. Subparagraph 7 of paragraph 2 of Art. 358 of the Code expressly provides that the objects of taxation for the transport tax are not wanted vehicles. However, everything is not so simple. In accordance with this rule, in order to stop accruing transport tax, it is necessary that the fact of theft be documented by an authorized body.

By virtue of clause 17.4 methodological recommendations on the application of Ch. 28 of the Code in the event of theft (theft) of a vehicle, taxpayers submit to the tax authority a document confirming the fact of its theft (return). Such is issued by the bodies of the Ministry of Internal Affairs of Russia (GUVD, ATS, ATC, etc.), carrying out work on the investigation and disclosure of crimes, including hijackings (thefts) Vehicle.

The Ministry of Finance of Russia in the Letter of August 9, 2013 N 03-05-04-04 / 32382 explained that the collection of tax in relation to a vehicle that is stolen is terminated starting from the month following the month in which the theft was committed. A document confirming the fact of theft may be a certificate of theft, which is issued by the authorities involved in the investigation and disclosure of theft (theft) of vehicles.

At the same time, officials noted that in addition to the mentioned certificate, the fact of hijacking can also be confirmed by a certificate of initiation of a criminal case. And if the month in which the car was stolen is impossible to determine for one reason or another, then the collection of transport tax is terminated from the month following the month in which the criminal case was initiated.

Example 1. In February 2015, a car was stolen from Romashka LLC. This fact is confirmed by the certificate of the Ministry of Internal Affairs. In June 2015, the car was found and returned to the community.
Since, when calculating the transport tax, the month of theft and the month of the return of the vehicle are included in the period of its stay with the taxpayer, the transport tax for 2015 should be calculated taking into account the coefficient equal to 0.75 (9 months : 12 months).

It must be taken into account that a stolen vehicle is not subject to transport tax only during the period of its search. Moreover, if the search period, which, alas, is quite common in practice, stretches for several years, then the fact that the car is wanted must be confirmed annually, up to deregistration of the stolen vehicle.

In this regard, it seems appropriate to remove the "missing" car from the register so that the tax authorities do not have "unnecessary" questions. Such an opportunity is provided for in paragraph 5 of the Rules for the registration of motor vehicles and trailers for them in the State Inspectorate for Road Safety of the Ministry of Internal Affairs Russian Federation, approved by the Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 N 1001.

Example 2. A certificate issued by the Ministry of Internal Affairs confirms that in February 2015, a car was stolen from Gvozdika LLC. Suppose that by the end of the year this vehicle will not be found. In this case, the transport tax is paid for 2015 with a coefficient of 0.1667 (2 months : 12 months).

Note! For the purpose of stopping the collection of transport tax, it is necessary to submit to the tax authority a certificate confirming the fact of theft. That is, for example, a copy of the application submitted to the Ministry of Internal Affairs that the vehicle was stolen is not enough in such situations. After all, such a statement is one-sided and does not directly confirm the fact of hijacking (see, for example, Resolutions of the FAS of the Ural District of September 3, 2013 N F09-6557 / 13, FAS of the North Caucasus District of October 31, 2011 N A15- 2503/2010 etc.).

We also note that both the original certificate of theft and its copy can be submitted to the tax authority. The difference is that, having received a copy, the tax authorities will send a request to the authority that issued this certificate to make sure that the fact of theft really takes place (see Letter dated May 13, 2015 N BS-3-11 / [email protected]).

closed list

Until recently, the list of cases where a taxpayer could “save” on transport tax in relation to a vehicle registered to him was limited to only three situations (see, for example, Letter of the Federal Tax Service of Russia dated January 27, 2012 N BS-3-11 / 241 ):

• in case of deregistration of the vehicle in the registration authorities;
• for the period of search for vehicles upon confirmation of the fact of their theft (theft) by a document issued by the authorized body;
• when eligible for a tax benefit.

The Ministry of Finance of Russia in the Letter dated May 6, 2015 N 03-05-06-04 / 26019 also indicated that there are no other grounds for stopping the collection of transport tax by the Code. At the same time, officials noted that if it is impossible to pay the tax on time and if there are grounds provided for in paragraph 2 of Art. 64 of the Code, the taxpayer has the right to apply to the authorized body with an application for a deferral or installment plan for tax payment.

Symmetrical "corrections"

In the same time arbitrage practice is not limited to a literal interpretation of the norms of Ch. 28 of the Code.

The fact is that, as we have already said, the payers of the transport tax are persons on whom vehicles that are the object of taxation are registered in the prescribed manner. It turns out that in order not to pay transport tax, you simply do not need to register the car. That's real savings for you.

Of course, the tax authorities do not agree with this approach (that is, in this part, the inspectors read the provisions of the Code with a reservation). And on this issue, their courts support. Thus, the Supreme Court of the Russian Federation, in Ruling No. 301-KG14-2926 of October 29, 2014, indicated that the norms of tax legislation establishing the object of transport taxation are designed for a conscientious taxpayer who performs the duties of state registration of vehicles. And positive consequences in the form of the absence of the obligation to pay transport tax are impossible for an unscrupulous taxpayer.

Thus, the lack of vehicle registration is not at all a reason not to pay transport tax. It all depends on why the car was not registered on time. And if in this case the fault of the taxpayer takes place (intentionally did not register the vehicle with the traffic police), then you will have to pay in full.

On the other hand, suppose that due to certain circumstances, the organization, on the contrary, cannot deregister the car, for example, there are some legal obstacles. Do I need to pay transport tax on this vehicle under such circumstances?

The Supreme Court of the Russian Federation in the Ruling of February 17, 2015 in case N 306-KG14-5609 in this part indicated that in the case when the current tax legislation connects the moment of the occurrence of the obligation to pay tax or the termination of such obligation with the actions of the taxpayer and the latter is assigned the obligation, among other things, to apply to the competent authorities with an application for registration or deregistration of the relevant object of taxation, that is, registration is of a declarative nature, the risks of adverse consequences of not taking such actions lie with the taxpayer, but ...

At the same time, the judges ruled in favor of the taxpayer. In the case under consideration, the company did not have the opportunity to deregister the vehicle simply because the necessary documents were not issued by another government agency ... and also for a good reason. That is, in fact, the taxpayer was held hostage by the situation. He is forced to pay tax on a vehicle that he, in fact, no longer has (there was an accident), only on the grounds that this vehicle has not been deregistered. Moreover, the taxpayer cannot remove it from the register, since in this particular case it did not depend on him.

It is noteworthy that the specified Ruling of the Supreme Court of the Russian Federation N 306-KG14-5609 is contained in the Review of decisions of the Supreme Court, which the Federal tax service sent by Letter dated July 17, 2015 N СА-4-7 / [email protected] for the information of the tax authorities "on the ground" so that they use it in their work. This allows us to conclude that the Federal Tax Service has finally agreed that not only the fact of registration of the vehicle for the taxpayer, but also objective circumstances that allow or, conversely, prevent him from deregistering the vehicle, are of paramount importance.

Thus, in fact, the Federal Tax Service (not without the help of the Supreme Court) recognized a common truth: in the absence of the taxpayer's fault that the car was not deregistered, he does not have an obligation to pay transport tax in relation to it. However, do not forget that in any case, you will have to document the moment when the vehicle actually dropped out of the transport tax base.

October 2015

Answer:

LETTER FROM THE MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION dated December 24, 2014 N 03-05-06-04 / 66762

According to Article 357 of the Tax Code of the Russian Federation, taxpayers of transport tax are persons who, in accordance with the legislation of the Russian Federation, have registered vehicles that are recognized as an object of taxation in accordance with Article 358 of the Code.

The objects of taxation are vehicles registered in accordance with the established procedure in accordance with the legislation of the Russian Federation (paragraph 1 of Article 358 of the Code).

In addition, paragraph 1 of Article 362 of the Code establishes that the amount of transport tax payable by taxpayers who are individuals, is calculated by the tax authorities on the basis of information that is submitted to the tax authorities by the authorities that carry out state registration of vehicles on the territory of the Russian Federation.

Thus, the obligation to pay transport tax is made dependent on the registration of the vehicle. In case of registration of a vehicle and (or) removal of the vehicle from registration (deregistration) during the tax (reporting) period, the tax amount is calculated taking into account the coefficient determined as the ratio of the number of full months during which the vehicle was registered for taxpayer, to the number of calendar months in the tax (reporting) period. In this case, the month of registration of the vehicle, as well as the month of removal of the vehicle from registration, is taken as a full month (paragraph 3 of Article 362 of the Code).

Consequently, the collection of transport tax is terminated from the month following the month of its deregistration with the registration authorities.

24 April 2017, 21:15 , question #1619716 il, Moscow

received
fee 50%

Hello!

1. Is it possible to pay not all years by applying the limitation period. If so, which ones and in what order?

Can. But you need to calculate the time. It depends on whether the tax authority sent you a demand for payment (namely, a demand, not tax notice).

If you sent a claim, then after 2 years from the date set for payment in the claim, they will no longer be able to collect tax from you. More precisely, they can, but for this they need to restore the term in court.

Article 47 tax agent, payer of the fee, payer of insurance premiums) - organizations, individual entrepreneur
The decision to collect tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur is made within one year after the expiration of the deadline for fulfilling the tax payment requirement. The decision to collect tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization or individual entrepreneur the amount of tax due. An application may be filed with the court within two years from the date of expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court.

2. If you do not pay all the years, then how to pay the penalty if it has been accrued on an accrued basis since 2011.
a) pay the full amount
b) pay a penalty only for the last 3 years, how to calculate it.

3. After paying 3x recent years, for unpaid old years, a penalty will continue to accrue, what to do with it, will they be able to recover it in court?

After the expiration of 2 years from the date of the claim, the tax office cannot sue for recovery. But most likely, this debt will still “hang” on your personal account in the taxpayer's office. This is due to the fact that the tax authorities do not write off even such “bad” debts.

4) I.e. what is the correct sequence of actions on my part to resolve issues with the state with minimal losses.

As I said - pay only the last requirements. If you do not pay them, then at any time you can transfer them to the bailiffs or to the court for collection.

And, of course, you need to remove the car from the register, if you have not already done so.

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Due to the fact that the second owner, after the sale of my car, did not register it for a long time, I have accumulated tax debt on transport tax, which must be repaid.
il

In accordance with Art. 357 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), taxpayers are persons who, in accordance with the legislation of the Russian Federation, have registered vehicles recognized as an object of taxation.
Taxpayers - individuals pay transport tax on the basis of a tax notice sent by the tax authority (part 3 of article 363 of the Tax Code of the Russian Federation).

According to Art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees.

1. Is it possible to pay not all years by applying the limitation period. If so, which ones and in what order?
il

They can recover only for the last 3 years, and the tax authority has already missed the deadline for collecting in court.

If the obligation to calculate the amount of tax is assigned
to the tax authority, no later than 30 days before the due date for payment by the tax authority
sends a tax notice to the taxpayer. tax notice
shall be deemed received after six days from the date of sending the registered
letters (paragraphs 2, 4 of article 52
Tax Code of the Russian Federation)

According to part 3 of Art. 52
Tax Code of the Russian Federation, tax payable by individuals in respect of
objects real estate and (or) vehicles, calculated by the tax authorities
for no more than three tax periods preceding the calendar
year of issuance of the tax notice.

Failure to fulfill or improper fulfillment of the obligation to pay tax is
grounds for sending by the tax authority to the taxpayer
Claims for the payment of tax under Articles 69 and 70
NK RF.

Based on paragraph 1 of Art. 70
Tax Code of the Russian Federation, the request for payment of tax must be sent
taxpayer no later than three months from the date of detection of arrears.

According to part 2 of Art. 48
Tax Code of the Russian Federation, an application for recovery is filed with a court of general jurisdiction by a tax authority
within six months from the date of expiration of the deadline for fulfilling the claim for payment of tax,
fees, penalties, fines, unless otherwise provided by this paragraph.

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Writing off a vehicle from the organization's balance sheet without deregistration with the registering state body does not relieve the taxpayer to whom the vehicle is registered from the obligation to calculate and pay transport tax, except in cases where the taxpayer did not have an objective opportunity to take appropriate actions to remove registered vehicle.

The Judicial Collegium notes that in the case when the current tax legislation links the moment of occurrence of the obligation to pay tax or the termination of such obligation with the actions of the taxpayer, and the latter is obliged, including to apply to the competent authorities with an application for registration or deregistration relevant object of taxation, that is, registration is declarative in nature, the risks of adverse consequences of failure to perform such actions lie with the taxpayer.

The company pointed out the presence of an objective obstacle to deleting an aircraft from the aircraft register, since these actions are impossible without the submission of an act of decommissioning a civil aircraft, drawn up based on the results of inspection, defect detection, disassembly and its disposal.

Meanwhile, until the completion of the investigation of the criminal case on the fact of this aviation accident by the Department for the Investigation of Particularly Important Cases of the Moscow Interregional Investigation Department on Transport of the Investigative Committee of the Russian Federation, it was not possible for the taxpayer to carry out all the named actions.

The tax authority and the courts ignored this circumstance, attaching decisive importance only to the existence of the fact state registration vessel, as the only condition for the emergence of the obligation to pay transport tax, without taking into account the indicated circumstances of an objective nature.

This conclusion is contained in the Ruling of the Supreme Court of the Russian Federation dated February 17, 2015 in case No. 306-KG14-5609.

The norms of tax legislation that establish the object of taxation of transport tax are designed for a conscientious taxpayer who performs the duties of state registration of vehicles. Positive consequences in the form of the absence of an obligation to pay transport tax are impossible for an unscrupulous taxpayer

The basis for the decision in the disputed part was the conclusions of the inspection that the company, when calculating the transport tax, did not include in tax base unregistered but actually operated vehicles.

Recognizing that the failure to fulfill the obligation to state registration of vehicles does not entail the exclusion of these vehicles from the number of objects of taxation for transport tax, the courts, meanwhile, proceeded from the fact that the norms of tax legislation establishing the object of taxation of transport tax are designed for a conscientious taxpayer who performs responsibilities for the state registration of vehicles. Positive consequences in the form of the absence of the obligation to pay transport tax are impossible for an unscrupulous taxpayer. At the same time, the inspectorate did not provide any evidence of unfair behavior of the company in order to evade payment of the transport tax. When considering the dispute, the courts took into account the insignificant period of time from the moment the vehicles were purchased to their registration.