If the taxpayer missed the pre-trial order, in some cases it will not affect the consideration of the dispute in court.
In paragraph 3 of the information letter of the Russian Federation of 20.12.1999 No. C1-7 / SMP-1341, the legal position of the European Court of Human Rights is provided, according to which the dispute should not impede excessive legal or practical barriers, in particular complicated or formalized acceptance and consideration procedures claims.
Deviation of tax argument for non-compliance with pre-trial order
The court of first instance can also reject the argument about the improper compliance with the pre-trial order. This is possible if such an argument is stated by the inspection at the final stage of the process, when the court examined the evidence of the case, the circumstances included in the subject of proof. With the obvious absence of the parties to implement any conciliation procedures, this tax authority argument may be considered as abuse by their procedural rights.
In this case, the court has the right to provide the taxpayer time to appeal to the upstream tax authority. For example, in the decision of 07.09.2011 in the A56-12062 / 2011 case, the FAS of the North-West District recommended the court of first instance to find out the position of the Federal Tax Service of the FNS in the essence of the requirements declared by the taxpayer (the latter did not participate in the case).
The presence of the sides of the differences, which will not be able to be allowed in the pre-trial procedure, can be established by the court itself based on the case materials. For example, when considering an appeal against the case No. A33-23355 / 2014, the third arbitration court rejected the argument of inspection on the application of Art. 148 APC RF, establishing the presence of differences from the parties that cannot be resolved in the pre-trial procedure. The appeal board took into account a significant number of similar disputes permitted by the courts in favor of the taxpayer.
The court indicated the lack of grounds to believe that when contacting the Company with a statement to the tax authority in to judicial order His requirements would be satisfied. Equally, the court had no reason to believe that leaving the statement without consideration would contribute to the achievement of the consent between the parties. It will rather be a formal nature, since it cannot achieve the goals that pursues the preparation of the pre-trial settlement of the dispute (RESOLUTION of 06.05.2016).
The highest judicial instance also supported the specified approach. So, pointed out that the court of cassation instance of judicial acts of first and appeal instances and leaving the application without consideration does not meet the tasks of justice (protection of the violated rights and legitimate interests of the person carrying out entrepreneurial activities, ensuring the accessibility of justice, a fair trial of the dispute within a reasonable time) .
The consequence of the ability of the statement without consideration is the possibility of plaintiff again to contact the arbitration court with a statement in common order After eliminating the circumstances that served as the basis for leaving the application without considering (Part 3 of Art. 149 of the APC RF). This means that the Company after leaving the court of cassation instance of his statement without consideration in order to protect their rights and legitimate interests was to complain to the higher tax authority.
Meanwhile, as noted by the court in, provided for by Art. 139 of the Tax Code of the Russian Federation, the deadline for filing complaints has expired at the time of adoption by the court of cassation. The missed deadline for filing a complaint may be restored by a higher tax authority, if the causes of the skip are recognized as respectful. If the reasons are recognized as disrespectful, then the deadline for filing the complaint will not be restored and the taxpayer's complaint will remain without consideration. With this development of events, society is deprived of the established Constitution of the Russian Federation and Art. 2 APC RF Guarantees of the right to judicial protection of rights and legitimate interests.
Abuse of law
The possibility of exclusion from the general procedural rule for cases of adoption and consideration of the case in non-compliance with the claims proposed in the review of the judicial practice of the Armed Forces of the Russian Federation No. 4 (2015) (approved. Presidium 12/23/2015). The judges of the Economic Collegium of the Russian Armed Forces of the Russian Federation recognized the illegal abolition of the superior courts of the judicial act on the results of the consideration of the case on the merits and leaving the claim without consideration (definition of 26.10.2015 No. 306-ES15-1364). The argument is so. For a long consideration of the case from the defendant's behavior, there was no intention to voluntarily and promptly resolve the emergence of an extrajudicial dispute. Therefore, leaving the claim without consideration led to unreasonable delaying the resolution of the dispute and infringement of the rights of one of its parties. Whereas the complaint procedure is aimed at the prompt resolution of the dispute and serves as an additional guarantee of protection of rights.
The college applied part 5 tbsp. 159 of the APC of the Russian Federation, which provides for the court's right to refuse to satisfy the application (petition) in case it has not been submitted by the person participating in the case, due to the abuse of its procedural law, and is clearly aimed at breaking the court hearing, delaying the trial, preventing the consideration of the case.
As can be seen from judicial practice, the court assesses the very fact of the existence of an opportunity to an extrajudicial settlement of the dispute, taking into account the main task of this order - to encourage the parties to independently resolve the conflict. The specified task implies the elimination of the situation when the pre-trial procedure is an obstacle to the protection of their violated rights in court due to only the formal following procedures in contradiction with legal principles.
How is the pre-trial settlement of tax disputes in 2018. What is this "tax dispute" and how to avoid legal proceedings. There was always a huge number of conflicts in the field of taxation. These disputes between the parties are rarely solved by a peaceful way, so you have to go to court.
Tax disputes
Often, legal disputes occur between the parties. And especially often in the field of civil and economic legal relations.
And it forces them to go to court, the thing is that the court proceedings are delayed, and it is not profitable for anyone.
! Many participants in the dispute are trying not to bring the case to the court, but to solve the dispute between themselves. And this procedure is called pre-trial settlement.
They attract it to this 3rd side and try to solve everything peacefully. And such a procedure is also perfectly used in resolving tax disputes. The settlement to court implies:
- Dispute analysis;
- Evaluation of causes;
- Analysis of the norms of the law;
- Complaints;
! Important absolutely any dispute can be solved without the participation of the judge. To this end, it is enough to conclude an agreement on a pre-trial settlement.
In some cases provided for by law, such a procedure passes, despite the reluctance of the parties. Settlement is made on voluntary and mandatory.
And at all, the parties may even categorically against pre-trial regulation, and insist on trial.
Functions with the relevant department
The goal for creating such departments is the consideration of tax disputes and both stages, at the stage of consideration of the tax inspection act and at the second stage of appealing any official.
Distortion of pre-trial settlement have functions:
- Check out complaints of persons on various tax inspectorate solutions;
- Consider the disagreements of the parties to acts of various checks;
- Prepare conclusions on complaints.
Pre-trial settlement of all tax disputes in the NK, AIC and PNS letters.
Order of pre-trial settlement
Previously, in Russia, the settlement was only possible in solving departure checks. But since 2014, the settlement must be applied to all tax disputes without exception.
! It is primarily important for taxpayers who can solve the dispute through the tax inspectorate.
And also, such appeals are not subject to duty, and are absolutely obsolete. Settlement in these cases implies the filing of the Complaint of Taxpayers in the Hasional tax inspection. It is he who is considered in these disputes by the 3rd face. According to the NK, it is necessary to file a complaint through the tax inspection, the solution that is disputed in it. And it is from there that they are guided further.
During the consideration of its complaint, if the taxpayer, recognizes that violated the tax law, then one can count on a decrease in penalties.
The taxpayer can appeal with a pre-trial settlement:
- Refusal to conduct a tax deduction;
- Recovery of high money tax;
- Requirements of illegal payment of penalties or fines;
- Suspension of all bank account operations;
In fact, there are several types of stages that may draw up the taxpayer:
Procedures for the pre-trial settlement of tax disputes by law consists of the same stages:
Absolutely any taxpayer has full law appeal against the actions of the Tax Inspectorate, and also compiled by him during the audit. To do this, he needs to make a written complaint, and specifically indicate the subject of disputes.
In the tax inspectorate may consider:
- Documents that are confirmed by the reasons on which all claims are based;
- Calculation of the amount;
- Power of Attorney, EU
- Elutes are given a petition not by the taxpayer.
The law provides and determine the deadline for submission. And it is one year from the date of delivery to the decision of the decision on the basis of tax audit.
If complaints are submitted later than this period, it takes only due to a serious reason for such a pass.
The participation of the taxpayer itself in consideration of his request is not provided. But in some cases it will be invited to attend the proceedings. The term of appeal complaints depends largely on the dispute itself. If suddenly the decision of the tax inspectorate did not take effect, then the submission of the passing into the verifier division is given ten days. Other acts, and also the tax inspectorate, can be challenged during the calendar year. The tax service can ignore the facial complaint. It will be absolutely legal, then only if in some cases. The grounds for this are approved in the Tax Code of the Russian Federation:
- In the documents there is no personal signature of physical signature. persons;
- The complaint filed the field of how the specified deadlines were held for this;
- If the complaint is recalled back;
- If one or more complaints were filed on these bases earlier.
Managing the pre-trial settlement of tax disputes depend on the special division that in the tax inspectorate. Department that considers functioning The payer's petition should decide on the refusal within five days, and is still given three days to report this to the person.
! It is important in cases of refusing to consider the complaint, you can fix everything and send a new one, before this was not the legal and individuals.
The effectiveness of the resolution of disputes
How convenient modern system Solutions in controversial situations without trial, many specialists of this area speak. Especially when this procedure has become mandatory.
The effectiveness of the pre-trial settlement of tax disputes 2018 is to 1st turn in the fact that it allows you to comfortably and without any difficulties to find out tax relations.
The trial stage is not only economically profitable, but also costly in time.
The settlement frees taxpayers from the presence during the decision. The effectiveness of this method has long been proven in other countries. This allows you to improve tax controls, and besides, improving interaction procedures tax Services and taxpayers. Although on the other hand, many specialists indicate insufficient advising citizens, which leads to distrust on their part.
The pre-trial procedure for settling tax disputes is of great importance. His non-compliance and skipping period for its implementation can deprive the tax payer of the opportunity to protect their rights in court. We will reveal the key provisions of this procedure in our article.
Mandatory pre-trial settlement of tax disputes
Procedural legislation (Art. 4 of the APC RF, Art. 131 Code of Civil Procedure of the Russian Federation, Art. 4 CAS of the Russian Federation) is prescribed a mandatory pre-trial procedure for those controversial issues of taxation that are directly mentioned in the law. Such a settlement is carried out by presenting a written document to the opponent (complaints, requirements).
Currently, pre-trial settlement is necessary for tax disputes as:
- Recovery of tax arrears and sanctions:
- from individuals, except entrepreneurs (Art. 286 CAS RF, Art. 48 of the Tax Code of the Russian Federation);
- organizations and citizens dealing with entrepreneurship if the fiscal body missed the possibility of writing off in an indisputable order (Art. 46 of the Tax Code of the Russian Federation, Art. 213 of the APC RF).
- Appeals appeal (Art. 138 of the Tax Code of the Russian Federation) decisions of the fiscal body, on the basis of which the person is subject to or cannot be attracted to the responsibility established tax legislation, and which have not yet gained legitimate.
- Simple appeal:
- abnormative documents issued by inspections and deposits (including those who have entered into force decisions specified in the previous paragraph);
- actions or inaction of tax authorities.
Written objections that the taxpayer represents when conducting inspection taxes, should not be considered as proper fulfillment of pre-trial order. It is necessary to compile a separate complaint, even if the arguments contained in objections will be literally reproduced in the complaint.
Cases when pre-trial settlement is not required
Of general rules On mandatory pretty order to resolve tax disputes There are several exceptions.
First of all, such exceptions include actions or inaction of the employees of the Federal Tax Service, as well as the acts of an abnormative nature, to be able to dispute which is possible only directly in court for the reason that the authority made a decision is the ultimate authority in the tax hierarchy and does not have ourselves a higher level.
In addition, the pre-trial settlement of disputes, which are considered in accordance with the procedure for claim, and not by appealing the abnormative acts government agencies. This is due to the fact that in the Tax Code of the Russian Federation is not mentioned on the mandatory pre-trial settlement of such claims. So, in the Decree of the Plenum of the Supreme Arbitration of the Russian Federation of 07/30/2013 No. 57 (p. 65), it was especially noted that the property requirements with which the taxpayer had the right to appeal to the court, excluding the pre-trial stage, include disputes:
- on the return or compensation of excessively paid taxes, nozzles;
- recognition of not subject to execution of decisions on the recovery of tax, collection orders.
In the cases listed, pre-trial settlement is not required if the claim is presented regardless of challenging the act of an abnormative nature.
What threatens failure to comply with the order of pre-trial appeal
Pre-trial procedure for settling tax disputes about the recovery of arrears and tax sanctions It is implemented by handing a non-payment requirement of their payment (Art. 69 of the Tax Code of the Russian Federation). This document must be delivered during:
- 3 months from the moment of detection of arrears (in relation to debt exceeding 500 rubles);
- 1 year from the date of detection of debt, component of less than 500 rubles;
- 20 working days from the moment of gaining legal force The solution adopted after the verification procedure.
Appeal appeal is allowed during the period, the decision of the Inspectorate on bringing or unaccepting tax liability has not yet gained full force. You can appeal within 1 month from the date of obtaining the decision by the taxpayer (Article 101 of the Tax Code of the Russian Federation).
Appealing other documents of tax authorities that are abnormal, as well as actions or inaction of its employees allowed for 1 year. This period is calculated from the date when the person learned (or had the opportunity to learn) about the violation of his rights, or the date when the decision was made after the inspection, if it was not disputed.
Failure to follow the pre-trial order entails the impossibility of judicial challenge solutions of fiscal bodies.
According to paragraph 67 of Resolution No. 57, if only part of the decision was appealed in the higher authority, it is impossible to contact the court with the requirement of the abolition of another, not disputed part of the decision.
IMPORTANT! If the appeal was satisfied in part, you can re-appeal in higher organHowever, it is necessary to remember the observance of the term for appeal to the court (Art. 198 APC RF). Thus, the Armed Forces of the Russian Federation in its definition of 07.10.2015 No. 306-kg15-12146 noted that the submission of the re-appeal does not justify the skipping period.
Tax mediation
Under mediation in the current legislation, namely, the law "On an alternative procedure for resolving disputes with the participation of an intermediary (mediation procedure)" dated July 27, 2010 No. 193-ФЗ, it is understood to the leveling of the conflict with the assistance of the mediator intermediary. This procedure is aimed at resolving the dispute without attracting a court, although it can be used both before and after contacting this instance.
Important conditions for eliminating disagreements like this:
- the presence of good will both sides to achieve a compromise;
- assistance to an independent mediator intermediary in the dispute resolution.
However, tax legal relations are currently not submitted to the scope of the Act of Mediation. So, Art. 1 of Law No. 193-FZ contains the norm according to which the disputes not listed in it (and tax disputes are not in that list) can be resolved by mediation, only if it is established by law. The current legislation does not contain such a special reservation, and therefore the law on mediation to disputes arising from the tax legal relations is not applicable.
It is appropriate to mention Art. 105.31 of the Tax Code of the Russian Federation, which introduces the concept of a mutually agreed procedure. Nevertheless, this procedure is also carried out in order to resolve disagreements, it is still not suitable for the role of tax mediation for the following reasons:
- the mediator in this dispute is the FNS of Russia, which is difficult to call an independent mediator;
- this procedure is carried out only during tax monitoring, which is applied to a narrow circle of taxpayers.
In addition, the possibility of using any conciliation procedures with respect to tax disputes is very limited. So, the plenum of the Russian Federation in its resolution of 07/18/2014 No. 50 noted that legal Nature Such disputes do not allow conflict participants to change the consequences of contested actions and operations. In other words, the parties cannot agree on changing the tax rate or penalties.
Summing up, we note that the pre-trial order in tax disputes Committed when this is fixed in the law. The implementation of a pre-trial settlement with tax authorities requires a very scrupulous approach, primarily in terms of compliance with the deadlines established for appeal. Skip the term when filing a complaint to a higher authority means the impossibility of protecting rights, including in court.
The mediation procedure is currently not applicable to disputes arising from tax legal relations, and it is unlikely to be permissible in the form in which it is defined in Law No. 193-FZ.
How is the pre-trial settlement of tax disputes in 2019. What is a tax dispute and how can you avoid judicial trial in the field of taxation.
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In the field of taxation there has always existed a huge number of conflicts. Disputes between the parties were rarely solved in peaceful way, so I had to go to court.
This led to the workload of ships and constantly delaying the cases under consideration.
The pre-trial regulation procedure, successfully used in many countries of the world, has brought a huge benefit to the parties to tax disputes and in Russia.
Basic information
Very often between the parties there are various legal disputes. Especially often they happen in the field of economic and civil relations.
This forces them to go to court, but it does not always suit the parties. The fact is that the trial is delayed that it is not profitable for anyone.
Therefore, many conflict participants try not to bring the case to the court, but to solve the dispute between themselves. This procedure is called pre-trial settlement.
They attract the third side to this and try to solve everything peacefully. The pre-trial settlement procedure is also successfully used in resolving tax disputes.
The settlement to court implies:
- dispute analysis;
- assessment of the reasons meaning to appeal;
- analysis of legislation norms;
- registration claim.
What it is
Any dispute may decide without the participation of the judge. To this end, it is enough for the parties.
In some cases provided for by law, this procedure occurs, despite the reluctance of the parties. That is, the settlement outside the judicial system is divided into voluntary and obligatory.
At the same time, the parties can even be categorically against the pre-trial settlement and insist on the trial. This is the so-called intermediate stage preceding the court.
In the case of tax disputes, the appeal to the higher tax authority, and not to the court, was voluntary.
But since 2019, the pre-trial settlement of disputes in the field of taxation is obligatory for taxpayers. Often, tax disputes arise due to the misunderstanding of certain norms of tax legislation.
Because of this, various violations arise, which are clarified during. And if the taxpayer does not agree with the decision of the inspections, he can appeal it.
A variety of additional documents can be attached to the complaint, but the tax authorities may not take them into account ().
However, the tax service may consider:
- documents that are confirmed by the reasons on which all claims are based;
- calculations of amounts;
- power of attorney, if the petition is submitted not by the taxpayer himself.
Legislation provides for a certain amount of petition. It is 1 year from the date of the presentation of the decision on the basis of a tax audit.
If the complaint is submitted later than this period, it can only be admitted due to a serious reason for such a pass.
The participation of the taxpayer itself in consideration of his request is not provided. But in some cases it will be invited to attend the proceedings.
The terms of appeal complaints depend largely on the subject of the dispute itself. If the decision of the tax service did not enter into force, then 10 days is given to the verifier division.
Other acts, as well as tax services, can be challenged during the calendar year. The higher tax authority can ignore the facial complaint.
And it will be absolutely legal, but only in some cases. The grounds for this are approved by Art. 139.3 NK RF:
- the document does not have a personal signature of an individual;
- the complaint was filed after the deadline for this was passed;
- the complaint is recalled back;
- already one or more complaints were filed on these grounds earlier.
Managing the pre-trial settlement of tax disputes depends on the special division that function in the tax authorities.
The department considering the petition of the payer must decide on the refusal within 5 days.
Another 3 days is given to the person reported. In this case, the taxpayer should send a written notice indicating the reason.
It is important to know that in case of refusal to consider the complaint, you can fix it all and send a new one (). Before the right of physical and legal entities did not have.
What effectiveness
As far as the modern system of solving controversial situations without attracting a court, many specialists of this area speak. Especially when this procedure has become mandatory.
The effectiveness of the pre-trial settlement of tax disputes 2019 is primarily in the fact that it allows you to comfortably and without any difficulties to find out tax relations.
While the trial stage is not only economically profitable, but also costly in time.
Video: Supreme Court - Land Tax Tax Disputes
Pre-trial settlement frees the taxpayer from the presence during the decision. In addition, the effectiveness of this method has long been proven in other countries.
This allows you to improve tax controlAnd besides, improving the procedure for the interaction of tax services and taxpayers.
On the other hand, many experts point to insufficient advising citizens, which leads to distrust on their part.
Benefits
Among the advantages of pre-trial settlement, you can note the following:
- consideration of the complaint rarely exceeds 1 month;
- appeal to the higher authority for help for individuals is free service., while under judicial review, you have to hire a lawyer and pay for the duty;
- when considering disputes, confidentiality is observed, which allows not to worry about their reputation;
- the higher tax authority cannot decide which contributes to the deterioration of the taxpayer;
- the whole pre-trial settlement procedure is quite simple and does not require any special requirements from the taxpayer;
- to learn about how the stage of consideration is a complaint, you can not only in writing. For this, the Special FTS website works electronic service "Learn about the complaint."
disadvantages
The disadvantage of pre-trial regulation can be called that many taxpayers are not informed enough in this matter. Hence a huge number
