According to the generally accepted rules of the enterprise, they may hope for the return of the previously paid VAT only after a sufficiently long period (from 2 months), since the IFST is required to check the presented declaration and making a solution (compensate or refuse). Thus, in this time interval, taxpayers become creditors for the state, and if the amounts for reimbursement are impressive, then the abundance of funds from turnover are the same impressive, which reduces the profitability of the company and negatively affects its financial condition.
In order to avoid such consequences, you can return funds to the account in a declarative manner. This means that it is possible to return the VAT before the Declaration is verified and the tax will be convinced by the Company's right to reimburse tax. This option is enshrined in Art. 176.1 of the Tax Code of the Russian Federation, but it is acceptable only for enterprises with significant levels of revolutions and budget deductions.
Who is entitled to count on VAT reimbursement upon application
The right to the applicant procedure for reimbursement of VAT firm has if it:
over 3 years operates and over the past 3 years has listed taxes together by 2 billion rubles. and more (VAT, NPPI, income tax, excise taxes). At the same time, a reimbursed VAT is deducted from the total value of tax;
introduced the current bank guarantee;
is a resident of the OER territory or free port of Vladivostok (with a guarantee from the management company);
presented guarantee from the company created more than 3 years ago and paid taxes in the last 3 years from 2 billion rubles over the past 3 years. The guarantor should not be in the bankruptcy procedure, liquidation / reorganization or to have debt to the budget. The amount of guarantry can not be more than half of the cost pure assets Guarantor.
Let's talk about the role of the bank guarantee VAT for refunds in the applicant.
What is a bank guarantee for the return of VAT
A bank guarantee for tax reimbursement is a document confirming its obligations to implement the agreed conditions. Those. The guarantor bank undertakes to compensate losses if the company will be found that the right to return VAT is missing from the company, and it did not return the reimbursement at the request of the IFNS.
Key provisions that reveal the term "bank guarantee" are recorded in Art. 74.1 Tax Code of the Russian Federation. It is entitled to issue a bank, meaning in a periodically renewed list approved by the Ministry of Finance, and the corresponding criteria of Art. 74.1 Tax Code of the Russian Federation. The bank should be licensed by the Central Bank of the Russian Federation, not to have the requirements of the Central Bank on financial recovery and comply with all regulations of Law No. 86-FZ dated July 10, 2002 "On the Central Bank of the Russian Federation" last six months. In addition, the size of the bank's own assets should be 1 billion rubles. And more, and the period of its work on the market is at least 5 years.
Bank guarantee (VAT) can not be withdrawn or transferred to another company, and the minimum period of its action is 10 months from the moment of submission of the VAT declaration with the amount of tax return.
Bank guarantee for VAT refund: how to get
So, if the firm corresponding to the criteria listed above decided to apply for tax reimbursement, then it should be taken care of receiving a bank guarantee. Recall that at the same time the company's confidence in the right to return VAT should be one hundred percent.
The process of issuing a warranty is identical to the provision of a loan: it is necessary to contact the bank with a statement to which the document package is attached. The conditions for issuing a warranty usually depend on the financial situation of the applicant's company, but almost always under the guarantee requires provision. The fee for obtaining it is established by the bank and can vary from 1 to 10% per annum.
For your information! Finding a company that announced the return of VAT, and its guarantor bank in various regions of the country should not be the reason for the failure of the IFNS in compensation.
The amount that was warranty cannot be less than the amount of the recoverable tax (or its part) and should in the event of force majeure situations to cover the obligations to the budget (for example, in a situation where the IFTS was motivated to refuse VAT at the end of the inspection). The document must be recorded on the obligations of the Bank to compensate VAT if the payer ignores it.
Applicational procedure for reimbursement of VAT: bank guarantee
The procedure for accelerated reimbursement of VAT on a bank guarantee looks like this:
The company prepares confirming the legality of the return of VAT documents (as in common order) and represents the Declaration on VAT;
Over the next 5 days draws:
Bank guarantee;
A statement on the implementation of the applicant on the return of VAT in an arbitrary form (with the obligatory indication of the details of the account, which will be reset);
Over the next five days, the IFTS considers the application and makes a decision on tax refund or refusal. The solution is reported to companies also within 5 days. The refusal of tax authorities should be argued - to the decision indicate which point of the Tax Code of the Russian Federation is violated by the enterprise;
When making a positive decision, the IFTS sends an instruction in the Treasury, where the money is transferred to the company's bank account.
In total, the procedure for refunding VAT on the application takes 11 working days from the date of its submission. If, after this period, money will not be paid to the account, the incomplete amount begins to be indexed according to the current refinancing rate of the Central Bank.
Banking guarantee of VAT refund during export
Enterprises - exporters are often faced with situations when the amount of deduction on VAT exceeds the amount of tax to payment, i.e. the right to compensation arises. To return VAT, they can both under the general rules and according to the application, watched by the bank guarantee and in the same manner that is presented above.
Thus, return VAT under the bank guarantee can only be large companies. Quick return to the turnover of solid amounts is a certain plus of this procedure, but it must be remembered that there is a minus - for providing warranty, the Bank will have to pay (and sometimes it is very significant amounts).
In the modern business sphere, the problem of unreasonable failures in VAT refunds is alarming the owners of many Russian firms and companies. The presumption of guilt is to blame for the majority of failed affairs. As it represents a bank guarantee for VAT reimbursement and what are the stages of its design.
Before you seek help to the bank, you should learn more about it:
- whether it is included in the list of banks that the Ministry of Finance of the Russian Federation entrusted the issuance of the guarantee;
- will he be able to continue to do the case at that stage, on which the applicant gathered himself to convey the banking bank.
Consultation of a lawyer, and its better constant presence near will be very by the way. The question is quite complicated and requires specific knowledge.
Persons eligible for VAT reimbursement:
- Taxpayers, the amount of paid taxes of which - from 10 billion rubles.
- Persons these have the right to use the appliance regime of tax reserves, provided that from the date of registration of the company or firm before the day of the transfer of the Declaration, more than 3 years have passed.
- Taxpayers who have provided the tax declaration and warranty of the bank. The declaration should indicate that the company has the right to return the tax.
In guarantees, the duties of a financial and credit institution will be provided for the tax client, credited over the required due to the required VAT returned in a declarative mode, and in case of a decision on the return of VAT, which declared to return, will be partially or fully canceled.
Procedure of Reimbursement
The bank guarantee of the VAT refund provides for two options for compensation:
- The amount of taxes paid is returned to the current account;
- Funds will be counted at subsequent VAT payments.
Tax reimbursement procedure:
- Preparatory stage:
- verification of documents that prove the right to reimburse tax;
- preparation of documentation for judicial trial (swing and copying);
- registration tax Declaration And its check.
Stage is very important. You need to double-check the availability of all papers, seals, execution rules several times. It will save time in the future.
- The process of consideration of the case:
- the beginning of the process (it is important here to ensure that the IFTS does not delay the timeline);
- when new progress data appears, you should consider possible options Event development.
Results maybe two: the case ended with a positive result; Refused received.
- The development of events, if in the case of a bank guarantee with the reimbursement of VAT received a refusal.
- preparation of objections in writing;
- if you refuse to return a tax, even after considering objections, a complaint should be concluded in the UFNS;
- repeated process, only already considered by the UFNS.
Hire lawyers?
If you are not strong in legal and banking issues, the answer is unequivocal - it is necessary. The same answer will be for those who are strongly employed who cannot personally attend to be present. In such a paper, you can simply get confused. I need practical experience in such matters.
What advantages are that lawyers will be used:
- Documents are checked by professionals, and when submitting securities for consideration by IFTS, the likelihood of a positive outcome of this step is 90%. As a result - all documentation is verified and ready for filing to the IFTS and the Arbitration Court.
- If it is accepted for consideration, then lawyers follow him, without losing a single detail, which ordinary people will seem not significant. Controlled the timing of the course of the case. If possible, lawyers "customize" the court. Such cases are more often winning those who hired specialists.
- In case of refusal (this also happens, but much less often) the right office itself will issue an objection to the conclusion of the IFTS and submit documentation (appeal) in the UFNS.
- In case of re-refusal, lawyers turn to the arbitration court.
From the side it will seem that the case goes by itself, without personal participation Applicant. It will require only payment for services.
How much will the services of the lawyer cost
An approximate range of payment for services, depending on the amount of VAT (VAT sum in rubles - the cost of services in rubles):
- 100 000-1 000 000 - from 40,000;
- 1 000000-5 000 000 - from 60,000;
- more than 5,000,000 from 200,000.
It is worth noting that with small amounts it is better to understand himself, otherwise the money received will mostly go to pay for services of attracted lawyers. But with a large paid tax, you should seek help. Good firms provide warranties and make it possible to pay in several ways.
Payment methods (from more beneficial to more cost):
- Full prepayment. At the initial stage, the client pays services. The amount does not depend on the subsequent development of events.
- The result is paid. At the very beginning, the baker pays fixed amount. If, as a result, the bank guarantee of VAT has raised strength and returned money (lawyers won the case), then the client pays additionally the result. Otherwise, there will be no extra charge.
- Phased payment. The most reliable, but most expensive. Payment amount is available upon completion of the case.
Commentary on the letter of the Ministry of Finance of Russia dated 04.07.2012 No. 03-07-08 / 168 "On the lack of grounds for notifying the Bank's tax authority on exemption from obligations on a bank guarantee issued by the taxpayer for the purpose of applying the applicant order of VAT reimbursement"
Banks issue taxpayers warranty for applying applicant. Responsibility to notify banks on exemption from obligations under this guarantee is entrusted with tax inspectorates. In the published Ministry of Finance of Russia, a letter dated 04.07.2012 No. 03-07-08 / 168 states that the only reason for the direction of such a notification is the lack of a taxpayer for the identified violations by results cameral check His declarations.
How the inspection frees the bank-guarantor of obligations
The declarative procedure (Art. 176.1 of the Tax Code of the Russian Federation), unlike the usual order (Art. 176 of the Tax Code of the Russian Federation) provides for the reimbursement of VAT by the tax inspectorate of the taxpayer before the end of the challenge of the relevant tax declaration under certain conditions. Recall that the cameral check is carried out by the inspection within three months from the date of the submission of the declaration (paragraph 2 of Art. 88 of the Tax Code of the Russian Federation).
One of the conditions for early reimbursement of VAT is the taxpayer, together with the tax declaration, in which VAT is brought to compensation, the currently important bank guarantee. In this case, the Bank guarantees payment to the taxpayer for the taxpayer the amount of tax, excessively obtained by it (credited) in a declarative manner, if, on the results of the taxpayer, violations and early VAT reimbursement will be fully or partially canceled (paragraph 2 of paragraph 2 of Art. 176.1 NK RF).
Such a bank guarantee provides the opportunity to apply the applicant procedure for the compensation of VAT by taxpayers who are not related to the category of the largest, which is not needed by bank guarantee when complying with other conditions established by paragraphs. 1 p. 2 art. 176.1 Tax Code of the Russian Federation for early VAT reimbursement.
The inspection will take a guarantee only from the bank included in a special list that is leading the Ministry of Finance. This list is subject to the site on the website of this ministry on the Internet (clause 4 of Article 176.1 of the Tax Code of the Russian Federation).
Bank guarantees issued by branches of banks included in the list on behalf of these banks are made by tax inspections as bank guarantees issued by the Banks themselves (a letter of the Bank of Russia from 01.06.2010 No. 04-15-7 / 2630, brought to inspections by letter of the Federal Tax Service of Russia from 15.06 .2010 N shs-37-3 / [Email Protected]).
From January 1, 2012, the taxpayer submits a bank guarantee for the inspectorate (if necessary) on the same deadlines as the application for "accelerated" VAT refund (clause 6.1 of Art. 176.1 of the Tax Code of the Russian Federation).
If VAT taxpayer is already reimbursed in a declarative order and cameras completed without comment, then tax inspectorate must within seven days after the end of the desk tax audit Inform the taxpayer in writing about its end and on the absence of violations revealed. And a guarantee will no later than the next day after sending the specified message to the taxpayer, the inspection sends a written application for the release of the Bank from obligations under this bank guarantee (paragraph 12 of Art. 176.1 of the Tax Code of the Russian Federation).
In the commentated letter, it was emphasized that such a situation is the only reason for the direction of the tax inspectorate of such a written statement in the bank-guarantor. In other cases, notification by the inspections of banks issued bank guarantees to taxpayers in the purposes under consideration, the norms of the Tax Code of the Russian Federation are not provided.
When the bank guarantee becomes useless
Tax authorities may refuse taxpayers in the compensation of VAT in a declarative procedure due to non-compliance with its conditions on formal features. This does not interfere with the successful end of the desk check, to compensate the VAT taxpayer in the usual manner established by Art. 176 of the Tax Code of the Russian Federation (paragraph 8 of Art. 176.1 of the Tax Code of the Russian Federation).
Calculate in early VAT reimbursement Tax inspection may, for example, if:
- the statement is incorrectly written;
- the bank guarantee does not satisfy the conditions established by paragraph 6 of Art. 176 of the Tax Code of the Russian Federation, etc.
In case of such a refusal, the bank guarantee becomes useless. But the Tax Code (Art. 176.1 of the Tax Code of the Russian Federation) does not provide for the obligation of the Tax Inspectorate notify the bank-guarantor on exemption from obligations under such a guarantee.
Early reimbursement of the VAT taxpayer does not affect the course of the challenge check of its declaration, which is going on.
The tax amount refunded by the taxpayer in a declarative manner may exceed the tax amount to be reimbursed by the results of a challenge tax audit. In this case, the tax inspectorate decides on the abolition of the previous decision on the reimbursement of the tax amount (or on it to the account of the taxpayer's arrears), as well as the decision on the return (fully or partially) of this amount of the tax as illegally presented to refund (to test) ( . 15, Art. 176.1 Tax Code of the Russian Federation).
In addition, it is decided to attract the taxpayer to liability for committing tax offense Either a refusal of such attracting (clause 14 of Art. 176.1 of the Tax Code of the Russian Federation).
Simultaneously with the report on the adoption of these decisions, the Inspectorate sends the taxpayer to return to the budget of an overview of them (studied) in the applicant.
In this case, the bank guarantee is a way to ensure the taxpayer (principal) to the tax authority (beneficiary) of the specified monetary sum. Bank-guarantor undertakes to pay the tax instead of the principal on the beneficiary of a written request for payment (Art. Art. 368, 369 of the Civil Code of the Russian Federation).
The taxpayer is obliged to independently pay the amounts specified in the refund request, within five days from the date of its preparation (paragraph 20 of Art. 176.1 of the Tax Code of the Russian Federation). If he executes this condition, the bank may not be useful.
If the taxpayer has not paid, then the tax authorities the next day at the end of the deadline for satisfying the requirement directed by the taxpayer, send the Bank to the Garant to pay the requirement for the taxpayer.
Bank-guarantor has the right in regression to demand from the taxpayer to compensate money paid by the tax authority on a bank guarantee (but not sanctions for violation by the Bank by the requirements of Art. 176.1 of the Tax Code of the Russian Federation). This right, as well as the amount to be reimbursed by the guarantor, is determined by its agreement with the principal, which was granted a guarantee (Article 379 of the Civil Code of the Russian Federation).
As already noted, the taxpayer providing the bank guarantee can pay unnecessarily obtained in the applicant procedure of VAT, as well as penalties and fines. They are indicated in the requirement of the tax inspectorate drawn up according to the results of a challenge tax audit, during which violations were revealed. In such a situation, as clarified in the commentated letter, the tax inspectorate does not have a duty to notify the Bank on the release of its bank guarantee obligations.
The warranty was not useful, and the money pay
The validity of the bank guarantee issued for the purpose of applying the applicant procedure for VAT reimbursement should expire no earlier than eight months from the date of submission of the tax declaration, in which the amount of tax on reimbursement (PP. 3 of paragraph 6 of Article 176.1 of the Tax Code of the Russian Federation).
The issuance of a bank guarantee is a banking operation (paragraph 8 of Part 1 of Art. 5 of the Federal Law of 02.12.1990 N 395-1 "On Banks and banking activities"). For this operation, the Garant Bank pays remuneration (paragraph 2 of Art. 369 of the Civil Code of the Russian Federation). The cost of this service depends on a number of circumstances, including a warranty period, and amounts to an average of 1 to 10% of the amount of warranty.
The list of conditions for termination of the bank guarantee is established by Art. 378 Civil Code of the Russian Federation. These include:
- payment of the beneficiary (in this case of the tax inspectorate) of the amount to which the warranty was issued;
- the end of the term determined in the warranty to which it is issued;
- failure of the beneficiary from their rights under warranty and returning it to the guarantor;
- failure to benefit from their guarantee rights written statement about the release of the guarantor of its obligations.
Termination of the obligations of the guarantor on the grounds specified in paragraphs. 1, 2 and 4 p. 1 Art. The 378 Civil Code of the Russian Federation, does not depend on whether the warranty is returned.
The guarantor that has become aware of the cessation of the guarantee must notify the principal about this without delay (paragraph 2 of Art. 378 of the Civil Code of the Russian Federation).
As we found out, the taxpayer, not to pay extra, may be interested in reducing the duration of the bank guarantee, which has become useless, in different situations. However, by virtue of the provisions of Art. 176.1 of the Tax Code of the Russian Federation Tax Inspectorate (Beneficiary) is obliged to ensure the termination of the bank guarantee (send the bank a guarantee a written application for release from obligations) only in one of the cases discussed above, namely, if the cameral check of the VAT declaration is completed successfully.
Moreover, this duty appeared from tax authorities from January 1, 2012 due to the amendments made in Art. 176.1 NK RF Federal law from 19.07.2011 N 245-FZ "On Amendments to Parts First and Second Tax Code Russian Federation and individual legislative acts of the Russian Federation on taxes and fees. "
This circumstance is emphasized in the resolution of the FAS of the North Caucasus District of 01.09.2011 N A32-34406 / 2010. In the situation considered by the court, the taxpayer was invalid to pay 2% of its amount per month before February 2011, since in August 2010 the Society received the message of the inspection on the successful completion of the challenge of the declaration without comments. The bank guarantee agreement was found that the period for calculating interest ( banking Commission) It may be interrupted if the warranty returns before its expiration. Therefore, the taxpayer requested the tax authorities to return the guarantee by the Bank. But he was denied a request. The court supported the tax authorities, referring to the legislation operating in the disputed period.
The arbitration practice indicates that the possibility of termination of the obligations on a bank guarantee is also available if the warranty was not useful due to the taxpayer's refusal to apply the applicant.
In the resolution of the FAS of the North-West District dated 16.05.2011 N A52-3118 / 2010, the following taxpayer and the Bank with the Tax Inspectorate was considered.
In order to fulfill the conditions for applying a declarative procedure for reimbursement of VAT, the taxpayer in July 2010 presented a bank guarantee in the inspection for a period of March 31, 2011. In ensuring the guarantee, the taxpayer laid his property under the mortgage agreement.
The inspection decided to refuse the taxpayer in reimbursement of the amount of VAT filed to reimbursement. Challenge this decision in judicial order He failed. Then the taxpayer in August 2010 appealed to the inspectorate with a request to abandon his bank guarantee rights by sending a statement about release from obligations under issued bank guarantee, as well as return the original bank guarantee guarantor. The inspection refused this request.
The taxpayer appealed to the bank with a statement on the return of the commission paid by him for providing a bank guarantee and to remove encumbrance from the mortgaged property. The bank also refused the taxpayer.
Then the taxpayer appealed to the court with a claim for the inspection of the obligation to send it to the bank the written application for release from the obligations under the bank guarantee.
The judges stated that the list of conditions for termination of a bank guarantee does not exclude the possibility of its termination under the general rules for termination of the obligations established by ch. 26 Civil Code of the Russian Federation.
According to Art. 417 of the Civil Code of the Russian Federation if as a result of the publication act of the State Body The fulfillment of the obligation becomes impossible or partially, the obligation stops completely or in the appropriate part.
The beneficiary (inspection) cannot refuse his bank guarantee rights at the request of the principal (taxpayer). At the same time, in connection with the inspection of the decision on refusal to apply the applicant procedure, the provisional legal relationship did not occur. This decision is the act of the state body, on the basis of which the obligation to the bank guarantee is discontinued by virtue of paragraph 1 of Art. 417 of the Civil Code.
Thus, the District Court refused to oblige the inspection to send the bank a written application for exemption from the obligations under the bank guarantee. Nevertheless, according to the court, these obligations are discontinued on the basis of the decision of the tax authority on the refusal of the taxpayer in the application of the applicant.
Then the bank appealed to the Russian Federation with a statement about the revision in the supervisory procedure. In the definition of 08/24/2011 N you-11102/11, the highest arbitrators confirmed that the obligation to the bank guarantee was discontinued due to the impossibility of fulfilling the obligation. Refusing to society in reimbursement of VAT sums, the inspection did not use the bank guarantee, consequently, the requirement of the obligation of the inspection to refuse the right of law is not based on the law. In the transfer of the case to the Presidium of the US RF, the bank was denied.
Tax account
Order tax accounting CUSTOMER CUSTOMERS OF THE CUSTOMER OF THE BANK AND MIRROR INSTRUCTIONS OF ENERGY OF THE BANK in the provision of a bank guarantee if the amount of commission's fee is set as a percentage of the amount of warranty, refers to the category of controversial issues.
Judicial practice on this issue has not yet been formed. And written explanations of officials are contradictory.
So, in the letter of the Ministry of Finance of Russia dated January 16, 2008 No. 03-03-06 / 1/7, it was noted that the cost of payment of services related to production and (or) implementation includes other expenses (PP. 25 p. 1 . 264 of the Tax Code of the Russian Federation), and in other cases - on nonealization expenses (PP. 15 p. 1 Art. 265 of the Tax Code of the Russian Federation).
If, under the terms of the Treaty on the provision of a bank guarantee, the amount of commission's remuneration to the Bank is set as a percentage of the amount of products supplied, then for the purpose of taxation of profit, such expenses are equal to expenses in the form of interest on debt obligations. Tax Features specified expenses Installed Art. 269 \u200b\u200bNK RF. Recall that expenses in the form of interest on debt liabilities are normalized.
Similar (in mirror) Determination of the Bank's revenues in the form of remuneration for issuing a guarantee in percentage of annual, taking into account the duration of the guarantee and the guaranteed amount given in the letter of the Ministry of Finance of Russia dated July 24, 2008 No. 03-03-06 / 2/92. Such income is taken into account as income in the form of interest on a debt obligation.
Later, letters were published with a different interpretation of income and expenses under the bank guarantee agreement.
In the Ministry of Finance of Russia dated January 11, 2011 No. 03-03-06 / 1/4, it is said that if the bank guarantee is paid for the first year, and in the second year quarterly, bank customer costs are taken into account evenly during the period for which the warranty is purchased.
The conclusion about the uniform distribution of the Bank's customer expenditures in the form of a fee for the provision of a bank guarantee acquired in order to ensure the fulfillment of obligations under the contract during the period on which the warranty is purchased is also provided in the Ministry of Finance of Russia from 19.07.2012 No. 03-03-06 / 4/75.
In a letter of financiers dated July 17, 2012, N 03-03-06 / 1/328 are given similar (in the mirror) clarification of tax accounting by the bank of its income from transactions to the bank guarantee. Such income must be taken into account evenly during the term of the bank guarantee (service), regardless of the actual receipt of funds.
September 2012
Conditions for bank guaranteeing provide for the payment for the tax client, which is read on over the required VAT refund. Reimbursement is made according to this principle:
- the amount of taxes paid by the client returns to the account;
- means are counted at subsequent VAT payments.
The procedure for compensation has a preparatory stage and the process of consideration of the case. At the first stage, the documentation is conducted, which confirms the right of the client to refund, prepares documentation for proceedings in court, the tax return is issued.
IN obligatory The authenticity and correctness of all seals is checked, which allows you to save time in the future.
The bank guarantee necessarily foresees the return on VAT payments. However, the client should be previously known, whether the bank is included in the list of guarantees. To do business, you need to contact a professional lawyer who accompanies the client at all stages of conducting the procedure.
List of persons who have the right to reimburse VAT:
- taxpayers who pay tax the amount specified in the laws on financial affairs;
- the right to compensation can be used if the company has not passed from the day more than 3 years;
- taxpayers who provide a declaration and bank guarantee.
The procedure for compensation on VAT
Cash resources that are cooked on VAT, customers compensation at the expense credit funds. Therefore, the return of value added tax was simplified. But the bank guarantee does not always imply such a compensation. It should be irrevocable and indescribable. The validity of the guarantee must be at least 8 months. In addition, the contract must confirm that in case of non-fulfillment of obligations, the entire amount is debited from the bank-guarantor's account.
If the bank guarantee is issued correctly, the amount of additional cost returns in 14 days from the moment the application was submitted.
Calculation of VAT
Accelerated option of compensation
The applicant as the owner of the bank guarantee after submitting a declaration within five days sends a petition for the return of VAT. If there is no clearly installed form of a form of such a petition, then the paper is drawn up in free form. Be sure to specify details on bank account. It is at him that reimbursement funds will be transferred. After that, in five working days, the inspectors decide on refund on additional cost. The applicant's official decision is notified in writing.
If at the time of registration of the application, the company had arrears on tax payments or fines, then the VAT refund can go to the account of these debts. Such solutions have the form of accelerated and accepted simultaneously with a positive response response. Then the return is subject to only the balance after overlapping arrears.
Tax refund orders are sent by the inspector on the next working day after making a positive verdict for the guarantee owner. To enumerate the required amount, the treasury has five days. In the event that these deadlines are violated, then from 12 days interest on the returned amount of taxes on the cost will influence the refinancing rate. At the same time, the law does not define the maximum amount of one and all guarantees issued by the Bank.
The decision on the return may be canceled if the amount of VAT exceeds the recoverable one. This solution concerns camery check. Then the company undertakes to return cash To the budget, for which she is also provided for five days. The company also contributes interest for the use of budget assets. For this purpose, a two-time refinancing rate for the current period is prescribed.
Below is a video on the topic of VAT article
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Calculations on refund payments for additional cost
The amount of VAT, which will return, multiply on the twin refinancing rate. Then the obtained value is divided into 365 days and multiplied by the number of days as budget funds were used. If different refinancing rates acted during this period, then interest are accrued separately at each rate. The obtained values \u200b\u200bare summed up and give a complete amount of return to the budget. Such costs a company or company cannot take into account how consumption in profit tax calculations, and go a separate cost of costs.
An additional problem for the reimbursement of VAT is to refine the declaration or extension of the validity of the guarantee action. Then the firm may receive a refusal of the inspector. The decision is motivated in this case by the fact that the bank guarantee should not be changed and adjustable.
What is the features of the legal mode of this warranty? 1
The main obligation provided by the guarantee
Tax authorities, as well as other state structures, often take bank guarantees as ensuring the fulfillment of the obligations of the taxpayer arising from law 1.
With the introduction of a declarative procedure for reimbursement of value added tax (VAT) on the basis of the Federal Law of December 17, 2009 No. 318-FZ "On Amendments to the Party of the first and second Tax Code of the Russian Federation in connection with the introduction of a declaration order of value added tax" ( Further - Federal Law No. 318-ФЗ) The spectrum of bank guarantees taken by tax guarantees has expanded.
The applicant tax reimbursement procedure is the implementation of the test (return) of the tax amount declared for reimbursement in the tax declaration, until the completion of the conducted in accordance with Art. 88 Tax Code based on this tax declaration of a challenge tax audit.
The right to apply the applicant order of tax compensation is not all taxpayers, but only those that meet the following features:
1) These are taxpayers-organizations that have a cumulative amount of VAT, excise taxes, tax on the profit of organizations and mining tax paid for the three calendar years preceding the year in which an application is applied to apply the applaining order of tax reimbursement (excluding taxes paid due to the movement of goods across the customs border of the Russian Federation and as tax agent) is at least 10 billion rubles. These taxpayers are entitled to apply the applicant tax reimbursement procedure if at least three years have passed since the creation of an appropriate organization before the date of submission of the tax declaration;
2) these taxpayers who provided together with the tax declaration, which stated the right to reimburse tax, the current bank guarantee, providing for the Bank's obligation on the basis of the tax authority's requirement to pay taxpayer for the taxpayer, excessively obtained by them (credited) as a result of tax reimbursement In a declarative procedure, if the decision to reimburse the tax amount declared to reimbursement, will be canceled in a respectable or partially in cases provided for by Art. 176.1 Tax Code of the Russian Federation (VAT return guarantee).
It is noteworthy that sub. 2 p. 2 Art. 176.1 Tax Code of the Russian Federation, unlike subsection. 1 p. 2 art. 176.1 of the Tax Code of the Russian Federation, calls the Taxpayer, and not the Taxpayer-Organization. The question arises - does an individual entrepreneur possesses the right to apply the applaining order of VAT reimbursement? In our opinion, this question should be answered positively because:
- sub. 2 p. 2 Art. 176.1 of the Tax Code of the Russian Federation directly does not limit the list of taxpayers exclusively by organizations;
- Individual entrepreneurs by virtue of paragraph 1 of Art. 143 of the Tax Code of the Russian Federation are also VAT taxpayers;
- typical form of the tax authority requirement to the bank-guarantor about the payment of the money amount on the bank guarantee 2 directly calls individual entrepreneur Along with the taxpayer-organization as an alleged principal for such a bank guarantee.
Considering the issue of participants in the legal relations on a bank guarantee, it is also necessary to clarify the legality of the tax guarantees issued by the branches credit organizations. The position of the Bank of Russia on this issue was reflected in the relevant letter of 06/01/2010 No. 04-15-7 / 2630. Taking into account that the branch is not a legal entity, as well as given the requirements of Art. 55 Civil Code of the Russian Federation, Art. 1, 5 and 22 of the Federal Law of 02.12.1990 No. 395-1 "On Banks and Banking Activities", the Bank of Russia explained: since legal entities They are responsible for its obligations to all owned property, bank guarantees issued by branches of banks included in the list, on behalf of these banks, are made by tax authorities as bank guarantees issued by the banks themselves. Additionally, the need to take into account the terms of reference of persons signing a bank guarantee on behalf of the Bank was emphasized.
The implementation of the aforementioned right to apply the applaining order of tax compensation is carried out by the taxpayer through submission no later than five days from the date of submission of the tax declaration into the tax authority of the relevant application. In it, in particular, indicate:
- requisites bank account to enumerate the recoverable amount of VAT;
- The obligation of the taxpayer to return to the budget of the excessive amount they (encountered) in the applicant procedure, including interest provided for by paragraph 10 of Art. 176.1 of the Tax Code of the Russian Federation (in case of payment), as well as pay interest accrued on these amounts in the manner prescribed by paragraph 17 of Art. 176.1 of the Tax Code of the Russian Federation, if the decision to reimburse the amount of tax claimed to reimbursement, will be completely or partially canceled.
Within five days from the date of application of the application, the tax authority verifies compliance with the taxpayer established by the tax legislation of the requirements, as well as the presence of tax arrears, other taxes, debt on the relevant pencils and (or) fines payable or recovery, and decides on compensation tax amounts or decision to refuse to reimburse the amount of tax declared for reimbursement in a declarative manner.
Simultaneously with the decision on the reimbursement of the tax amount declared for refunds, in a declarative procedure, depending on the taxpayer's arrears, at the specified payments, the tax authority decides on the expansion of the tax amount declared for reimbursement, in a declarative order and (or) a decision on returning (fully or In part) the amount of tax declared for refunds in a declarative manner.
In the case of the taxpayer, inconsistencies in tax, other payments or debt on the relevant pencils and (or) fines payable or recovery, the tax authority independently credits the tax amount declared for reimbursement, in a declarative procedure on the repayment of these arrears and debts on Pozy and (or) fines.
The instructions for the return of the tax amount is issued on the tax authority on the basis of a decision on the return (in whole or in part) of the tax claimed to reimbursement, in a declarative procedure and shall be treated in the territorial body of the Federal Treasury on the next business day after the date of the tax authority acceptance of this decision. Within five days from the date of receipt of this order, the territorial body of the Federal Treasury is returning to the taxpayer amount of the tax and no later than the day following the return day, notifies the tax authority on the return date and the amount of funds returned by the taxpayer (paragraph 10 of Art. 176.1 of the Tax Code of the Russian Federation) .
In the event that "According to the results of a challenge verification of the declarative declaration, the amount of VAT exceeds the one that must be reimbursed, the decision on the standings (return) is canceled. The taxpayer in a five-day period after receiving the requirement for the return of the tax is obliged to return (fully or partially) to the budget of the funds received by them (credited) in the applicant (tax and interest for the delay of compensation (if they were listed)), as well as pay interest For the use of budget funds, based on the two-time refinancing rate of the Central Bank of the Russian Federation, which operated at that time (paragraph 17 of Art. 176.1 of the Tax Code of the Russian Federation).
Moreover, the specified norm does not provide a special procedure for calculating the rate. Therefore, the Ministry of Finance of Russia in a letter dated 04/05/2010 No. 03-07-08 / 95 explained that the formula for calculating interest would be as follows: the amount of VAT to be returned is multiplied by the double refinancing rate of the Central Bank of the Russian Federation, it is divided by 365 (366) days and multiplies On the number of days of use of budget funds. If, during the period of use of budget funds, different refinancing rates of the Central Bank of the Russian Federation operated, interest is calculated separately at each rate, and the values \u200b\u200bobtained are summed up. It should be paid to the fact that the cost of payment of these percentages cannot be taken into account in costs when calculating income tax (the corresponding change is made in paragraph 2 of Art. 270 of the Tax Code of the Russian Federation) "3.
Thus, the bank guarantee of the return of VAT is a guarantee issued in the framework of the applicantic order of VAT reimbursement on behalf of the principal (taxpayer) in favor of the beneficiary (tax authority), to ensure the fulfillment of the taxpayer's obligations to return the amounts of the above tax, are unnecessarily listed by him (taken into account) From the budget, in cases established by law.
By virtue of this bank guarantee, the Bank assumes the obligation to pay for the taxpayer to the budget of the tax amount, excessively obtained by them (credited) as a result of compensation in the applicant procedure of VAT, if the decision to reimburse the amount of tax claimed to reimbursement, will be canceled in the applicant Fully or partly in cases provided for by Art. 176.1 NK RF.
This warranty has a number of significant advantages for the client. In particular, the return of the VAT amount is produced in a more compressed period than with the general procedure for the reimbursement of this tax, it is possible to use the indentant amount of VAT in the client's entrepreneurial activity before the tax audit is completed.
At the same time, the legal regime of the bank guarantee under consideration is characterized by some gaps in legislation. The main of them is associated with the fuzziness of the formulation of the duration of the bank guarantee.
So, for example, the validity period of the cameral check is only three months. This regard is not too clear the position of the legislator that has established that the validity of the bank guarantee should not be less than eight months. If you associate this criterion with a paid nature of obtaining a bank guarantee, we can conclude that the application of the applicant procedure of the test (reimbursement) of VAT will increase the taxpayer's costs. In addition, the refusal to use deductions may entail the detachment of taxes, fines and penalties. As a result, the taxpayer may be in a very unpleasant situation - when, on the one hand, the requirements will be presented tax authoritiesOn the other hand, the Bank's demands in regression for the paid amounts under warranty. If the provision of the guarantee was the property, which is a means of production or directly participating in the production process, the Bank may paralyze the company's work, demanding an arrest for such property in judicial procedure.
In addition, the above amorphous formulation of the law raises the question: how to specify the term of its action in the text of the bank guarantee? Does the Bank have the right to point out that the bank guarantee is valid for eight months from the date of submission of the tax declaration in which the amount of VAT for reimbursement is announced?
In our opinion, such a wording will be inappropriate, the warranty obligation on such a guarantee will not arise. The duration of the bank guarantee is one of the most complex and controversial issues of law enforcement. By general ruleThe bank guarantee comes into force from the date of its issuance, if no other (Article 373 of the Civil Code of the Russian Federation) has not been established in the warranty. According to Art. 190 of the Civil Code of the Russian Federation established by law, other legal acts, a transaction or court appointed by the court is determined by the calendar date or expiration of the period of time, which is calculated for years, months, weeks, days or hours. The term can also be determined by an indication of an event that should inevitably come. The obligation to submit a taxpayer of the VAT declaration is fixed in paragraph 5 of Art. 174 of the Tax Code of the Russian Federation, but at the same time the onset of this event cannot be recognized inevitable, since it depends on the will of the taxpayer itself. Accordingly, the indication in the text of the bank guarantee is the following wording: "For eight months from the date of submission of the tax return on VAT, in which the right to compensation is stated, which is confirmed by the marks of the tax authority on adoption," 6 is not allowed. A similar position was set out at one time in paragraph 2 of the review of the practice of resolving disputes related to the use of norms Civil Code Russian Federation on bank guarantee 7.
Special requirements for the guarantor and bank guarantee
The current legislation establishes a number of requirements relating to the personality of the guarantor and to the text of the bank guarantee.
The bank guarantee must be provided by the Bank included in the list of banks that meet the established requirements for bank guarantees for tax purposes.
Based on the information received from the Bank of Russia, the specified list is conducted by the Ministry of Finance of the Russian Federation and is posted on the official website of the Ministry on the Internet 8: (http://www.minfin.ru/ru/tax_relations/policy/bankwarranty/).
To include in the list, the Bank must meet the following requirements:
1) existence of a license banking operationsissued Central Bank Rf, and banking activities for at least five years;
2) the presence of a registered authorized capital bank in the amount of at least 500 million rubles;
3) Availability own funds (capital) of the bank in the amount of at least 1 billion rubles;
4) compliance with the required standards stipulated by the Federal Law of July 10, 2002 No. 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)", for all reporting dates in the last six months;
5) the absence of the requirement of the Bank of Russia on the implementation of measures to financial rehabilitation of the Bank on the basis of Federal Law of 25.02.1999 No. 40-FZ "On Insolvency (Bankruptcy) of Credit Organizations".
In case of identifying circumstances indicating the compliance of the Bank not included in the list established by the requirements or, on the contrary, the bank's inconsistency of established requirements, these information is sent by the Bank of Russia to the Ministry of Finance of the Russian Federation within five days from the date of identifying these circumstances to make appropriate changes in Scroll.
It should be noticed that the establishment of certain requirements for banks authorized to issue VAT return guarantees is by no means a new legislation.
A similar model of the relationship between the state body and credit institutions is quite widely used to make bank guarantees by customs authorities in order to ensure the payment of customs payments.
Based on the Order of the FCS of Russia of 01.06.2010 No. 1059 "On approval of the register of banks and other credit institutions", banks with the right to issue bank guarantees of payment of customs payments should be included in a special registry 9.
In addition, banks, which are guaranteed to ensure the payment of customs payments, by virtue of the requirements of paragraph 2 of Art. 343 of the Customs Code of the Russian Federation must comply with the following requirements:
1) the availability of a license to carry out banking operations issued by the Central Bank of the Russian Federation and the implementation of banking activities at least five years;
2) the absence of debt to customs authorities;
3) the presence of a registered authorized capital of the Bank in the amount of at least 200 million rubles;
4) the presence of own funds (capital) of the bank in the amount of at least 1 billion rubles;
5) compliance with the mandatory standards provided for by the Federal Law of July 10, 2002 No. 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)", on all reporting dates in the last six months;
6) the lack of the Bank of Russia requirement on measures to financial rehabilitation of the Bank on the basis of the Federal Law of 25.02.1999 No. 40-FZ "On Insolvency (Bankruptcy) of Credit Organizations".
Analysis of the above requirements suggests that the requirements for banks that ensure the payment of customs payments, as well as to banks providing VAT refunds, are almost the same.
However, banks are guarantors by virtue of Art. 176.1 of the Tax Code of the Russian Federation must possess bo? minimum size registered authorized capital (500 million rubles. against 200 million in accordance with Art. 343 of the Customs Code of the Russian Federation).
On the other hand, banks are guarantors by virtue of Art. 343 of the Labor Code of the Russian Federation must not have debt to customs authorities, but for guaranty banks on the basis of Art. 176.1 of the Tax Code of the Russian Federation, a similar requirement is not provided.
There is another bright distinctive feature: Art. 176.1 SNA does not provide compliance with maximum size One bank guarantee and the maximum size of all the on-time bank guarantees issued by one bank.
Meanwhile, such requirements are quite commonly envisaged by the current legislation as special conditions for admission by state bodies of bank guarantees.
In particular, the order of the Ministry of Finance of Russia of 03.10.2006 No. 121n "On the establishment of the maximum amount of one bank guarantee and the maximum amount of all simultaneous bank guarantees issued by one bank or one organization, for the adoption of bank guarantees by the customs authorities in order to ensure the payment of customs payments" 10 The corresponding values \u200b\u200bwere established for banks whose guarantees are made by the customs authorities. The establishment of specific values \u200b\u200bfor banks depends on the size of the bank's own funds (capital) and compliance with the standard of sufficiency of own funds (capital) of the Bank (H1) on all reporting dates in the last three months.
In accordance with the Decree of the Government of the Russian Federation of 21.12.2005 No. 785 "On marking of alcoholic beverages by federal special brands" 11 Bank guarantees are accepted within the maximum amount of one bank guarantee, as well as compliance with the bank-guarantor of the maximum amount of all simultaneous bank guarantees established by Federal Service on regulating the alcohol market. The distribution of the above maximum values \u200b\u200bon the basis of the order of Rosalkogolregulation from 01.06.2010 No. 38N "On approval of the maximum amount of one bank guarantee and all at the same time existing bank guarantees issued by one guarantor" 12 is laid only the amount of own funds (capital) of the Bank for all reporting dates, Also within the last three months.
Of course, the presence of such differences in the required requirements for banks acting as a guarantor to authorized government agencies, several destabilizes the market:
- First, to obtain status authorized bank it is necessary to withstand each time financial criteria. These requirements may vary, and banks are forced to continuously tracking the market dynamics. This leads to certain temporary, financial and organizational costs;
- Secondly, the reputational risks of the bank increase. It is quite difficult to explain to the client why guarantees of the bank are made by the customs authorities in order to ensure payment of tax payments, but are not accepted by tax authorities in ensuring the return of VAT;
- Third, banks are forced to comply with a certain procedure for inclusion and exclusion from the relevant registers, lists, lists. Each time for inclusion in the next list, it is necessary to prepare and send various documents, financial statementsMake certain actions, which is also quite inconvenient and costly.
It appears that with the expansion of the spectrum of activities and operations of economic entities, to ensure the execution of which bank guarantees are made in favor government agencies, it is necessary to unify the requirements for credit institutions and the procedure for including them in single register banks whose guarantees are made by authorized state bodies.
Taking into account that information on the financial and economic situation of credit institutions is accumulated in the Central Bank of the Russian Federation, it is logical to entrust the responsibility of the register of Russia. In turn, this will significantly reduce document flow on the grounds for inclusion in the above list. To eliminate the credit institution from the relevant registry, the Bank of Russia will be able to analyze the relevant reporting.
Returning to the analysis of the requirements established by tax legislation, we note - the bank guarantee must meet the following requirements:
1) must be irrevocable and indescribable;
2) should not contain an indication of the tax authority submission to the bank of documents that are not provided by Art. 176.1 of the Tax Code of the Russian Federation;
3) the duration of the bank guarantee should expire no earlier than eight months from the date of submission of the tax declaration, in which the amount of tax on reimbursement is announced;
4) the amount for which a bank guarantee is issued must ensure the fulfillment of obligations to return to the budget in full amount of the tax claimed to reimbursement;
5) the bank guarantee should allow indisputable write-off of funds from the Garant account in case of failure to set time Requirements on the payment of the monetary amount on a bank guarantee, aimed before the expiration of the bank guarantee.
The Bank is obliged to notify the tax authority at the place of accounting of the taxpayer on time, no later than the day, following the day of issuing a bank guarantee, in the manner prescribed by the federal executive authority authorized to control and oversight in the field of taxes and fees.
In part, not contrary to Art. 176.1 of the Tax Code of the Russian Federation, to legal relations related to the issuance of a bank guarantee, submitting the requirements for a bank guarantee, the implementation of the guarantee and the termination of the bank guarantee, the provisions of the civil law of the Russian Federation are applied.
In particular, the issue of such a bank guarantee is carried out on the basis of the conclusion between the taxpayer and the credit institution of the bank guarantee agreement, which may contain some special conditions Due to the specifics of the warranty. For example, to make a positive decision to work with the taxpayer, the Bank must trace the dynamics of VAT reimbursement in previous periods In order to evaluate the financial position of the taxpayer. To do this, you need to request an additional set of documents from the principal.
It is possible that for the issue of such guarantees, banks will include additional criteria for assessing the solvency of the client and, accordingly, the obligation of additional provision of documents. Thus, credit organizations, developing typical projects (drafts) of bank guarantees of VAT return, have the right to include in relevant banking guarantees for the issuance of bank guarantees, due to the specifics of the legal regime of the warranty itself.
Bank guarantee payment
In the event that a taxpayer complained by the taxpayer exceeds the tax amount to be reimbursed by the results of a challenge tax audit, the tax authority simultaneously with the adoption of the appropriate decision provided for in paragraph 14 of Art. 176.1 NK RF, makes decisions:
- on the abolition of a decision on reimbursement of the tax amount declared for refunds, in a declarative procedure;
- return (fully or partially) the amount of tax claimed to refund, in a declarative manner and (or)
- Study of the tax amount declared for reimbursement, in a declarative procedure in terms of the amount of tax not subject to reimbursement on the results of a challenge tax audit.
Within five days from the date of the adoption of the relevant decision, the tax authority reports him in writing the taxpayer.
Simultaneously with the report on the decision-making of the taxpayer, the requirement to return to the budget of the amounts obtained (encountered) in the applicant procedure (including interest provided for by paragraph 10 of Article 176.1 of the Tax Code of the Russian Federation (in the case of payment), in the amount of proportional to the proportion of unnecessary reimbursed amount of tax in total amount tax refunded in a declarative order).
The amount to be returned by the taxpayer are accrued on the basis of interest rateequal to the two-time refinancing refinancing of the Central Bank of the Russian Federation, which operated in the period of use of budget funds. Specified interest are accrued from the day:
1) the actual receipt of the taxpayer means - in the event of a return amount of the tax in the applicant;
2) making decisions on the standings of the tax amount declared for reimbursement, in a declarative manner - in the event of the tax amount in the applicant.
The form of a refund claim is approved by the federal executive body authorized to control and oversight in the field of taxes and fees, and contains information:
1) on the amount of tax subject to reimbursement on the results of a challenge tax audit;
2) the amounts of tax, which are overcome by the taxpayer (credited taxpayer) in a declarative procedure to be returned to the budget;
3) the amount of interest provided by paragraph 10 of Art. 176.1 of the Tax Code of the Russian Federation, to return to the budget;
4) the amount of interest accrued in accordance with paragraph 17 of Art. 176.1 of the Tax Code of the Russian Federation at the time of the referral request;
5) the deadline for the refund claim established by paragraph 20 of Art. 176.1 of the Tax Code of the Russian Federation;
6) measures to recover the amounts to be paid applicable in case of non-fulfillment by the taxpayer's refundable requirements.
The taxpayer is obliged to independently pay the amounts specified in the refund request, within five days from the date of its receipt.
In case of non-payment or incomplete payment by the taxpayer, who submitted a bank guarantee, the aforementioned amount of the tax authority not earlier than the day after the day of the expiration of the five-day period (established for voluntary payment of the amount specified in the return request), sends a requirement to pay the money amount for banking Guarantees indicating the amounts payable to the guarantor also within five days from the date of receipt of this requirement.
The form of the requirement is established by the order of the Federal Tax Service of Russia of 07.06.2010 No. MMB-7-8 / [Email Protected] "On approval of the form of the requirement of payment of the monetary amount on a bank guarantee".
It should be noted that the form of the tax authority requirement on the payment of the amounts of bank guarantee was introduced relatively recently, while the possibility of issuing bank guarantees to ensure the fulfillment of the obligation to return VAT arose much earlier. For almost six months, the requirements sent to the tax authorities sent unity in part of the amounts payable. In most cases, the tax authorities demanded a return to the budget of an unnecessarily received by the taxpayer (credited) amounts of VAT. However, there were cases when the tax authorities also demanded interest payments.
In our opinion, such a situation is due to some discrepancies in the text Art. 176.1 NK RF.
In particular, it is envisaged that the taxpayer is sent by the requirement to return to the budget of the amounts obtained by him (rendered) in the applicant. If, in addition to these amounts, the taxpayer lists the interest provided for by paragraph 10 of Art. 176.1 of the Tax Code of the Russian Federation, that is, for the violation of the timing of the tax return on a declarative order, the requirement also refers to the need to return these interest (paragraph 17 of Art. 176.1 of the Tax Code of the Russian Federation). Of course, in a proportional share of excessive reimbursed amount of tax in the total tax reimbursed in a declarative manner.
At the same time, the bank guarantee covers only the payment of the tax itself and does not take into account the accrued interest. Tax authorities are now granted the right to collect the indicated interest on par with arrears, penalties and fines, for this purpose, has changed sub. 9 p. 1 Art. 31 of the Tax Code of the Russian Federation (Article 1 of Federal Law No. 318-FZ). Accordingly, if the values \u200b\u200bof the bank guarantee were not enough to cover the amounts issued in the applicant procedure, the recovery is drawn to cash on accounts or other property of the taxpayer 14. The bank is not entitled to refuse the tax authority in meeting the requirements of the payment of the monetary amount on the bank guarantee (except for the case when such a requirement is presented to the bank after the deadline for which a bank guarantee is issued). In the event that the specified requirement is left without execution, the tax authority implements the right of undisputed debit from the bank's account of the amount specified in the requirement.
It should be noticed that the Federal Law No. 318-FZ does not make changes and additions to administrative legislation in order to establish responsibility for violation by the Bank the responsibility of the payment of the monetary amount on the bank guarantee.
Chapter 18 of the Tax Code of the Russian Federation, establishing drafts of offenses, implying the responsibility of banks, also does not call such a composition and does not establish responsibility for such a violation. Thus, the responsibility for non-fulfillment by the Bank the requirements of the tax authority declared in accordance with paragraph 21 of Art. 176.1 NK RF, does not occur. In fact, the only possible unfavorable consequence for the bank is the undisputed write-off from its bank account the amounts specified in the requirement of the tax authority.
For ten days after the execution of the Bank's responsibility for the payment of the money amount on a bank guarantee, the tax authority sends the taxpayer a refined requirement for return indicating the amounts payable to the budget.
At the same time, in case of violation by the tax authority, the direction of refundability of interest accrual for the amounts payable to the taxpayer on the basis of a refund claim is suspended to the date of the actual receipt of this requirement by the taxpayer.
1 - for example, to ensure the fulfillment of obligations on the use of purchased brands in accordance with their appointment in the labeling of alcoholic beverages (clause 4.1 of the Decree of the Government of the Russian Federation of December 21, 2005 No. 785 "On the marking of alcoholic beverages by federal special brands"). By virtue of paragraph 2 of Art. 184 of the Tax Code of the Russian Federation, the bank guarantee may provide for the obligation of the Bank to pay the amount of excise and appropriate penalties in cases of non-submission to the taxpayer in the manner and within the deadlines established by paragraph 7 and 7.1 of Art. 198 Tax Code of the Russian Federation, documents confirming the fact of exporting of excisable goods or imports to the port special economic zone excisable goods placed under the customs regime of the free customs zone, and non-payment of the excise and (or) penalties.
2 - approved by order of the Federal Tax Service of Russia of 07.06.2010 No. MMB-7-8 / [Email Protected] // Russian newspaper. 20.07.2010. № 158.
3 - Practical Comment Main Changes tax legislation Since 2010, as of legislation on 05.07.2010.
4 - Chemicals A. Provided by a bank guarantee // Practical accounting. 2010. № 2.
5 Read more about it. Article S.V. Puffling "The condition of the period of bank guarantee in the context of arbitration practice" on p. 41.
6 - ATP "ConsultantPlus". Expert consultation: Ministry of Finance of Russia. 2010. Number in IB 84942.
7 - information letter of the Presidium of the Supreme Arbitration of the Russian Federation of January 15, 1998 No. 27 // Bulletin of the Russian Federation. 1998. number 3.
8 - Official information This is contained in the letter of the Federal Tax Service of Russia of 03/16/2010 No. Shs-22-3 / [Email Protected] "On the list of banks that meet the requirements of paragraph 4 of Article 176.1 of the Tax Code of the Russian Federation".
9 - Order of the Federal Customs Service of Russia dated December 7, 2006 (Ed. Of October 30, 2009) No. 1281 "On Approval Administrative regulations Federal Customs Service for the Implementation of the State Function on Register of Banks and other credit organizations with the right to issue bank guarantees of payment of customs payments "// Russian newspaper. 11.04.2007. № 75.
10 - BNA. 2006. No. 46.
11 - SZ RF. 2005. No. 52 (Part 3). Art. 5748.
12 - Russian newspaper. 07/14/2010. № 153.
13 - Typical forms of the decision on the cancellation of the decision to reimburse the amount of value-added tax, declared to refund, in a declarative procedure, decisions on reimbursement of the amount of value added tax, declared for reimbursement in the applicant, and other documents provided for by Art. 176.1 NK RF, established regulatory acts Tax authorities: Order of the Federal Tax Service of Russia of 27.04.2010 No. MMB-7-3 / [Email Protected], Order of the Federal Tax Service of Russia of 03/23/2010 No. MM-7-3 / [Email Protected], Order of the Federal Tax Service of Russia of 05/18/2010 No. MMB-7-8 / [Email Protected] and etc.
14 - Clarification of the management of the Federal Tax Service of Russia at the Udmurt Republic // http://www.taxpravo.ru/novosti/statya-33746-poryadok_uskorennogo_vozvrata_nds.
