If the tax authority made an incorrect decision or made a mistake in his work, which immediately affected you as a taxpayer, then you should not be afraid of handling a complaint against the court or other controlling organization.
Judicial practice on tax disputes makes significant amendments to work and allows it to adjust its activities in accurately in accordance with the current requirements of the law.
Usually the need to submit a lawsuit for a tax arise in the case when the decision of the higher tax authority is completely or partially satisfied with the taxpayer. And in this situation it is extremely important to know about the terms of consideration of the claim, the main stages of this procedure and its proper documentary accompaniment.
Grounds for filing a tax service complaint
We list the most basic types of violations of the law from the IFSN:
- incorrect tax calculation;
- refusal to refund over tax credits;
- tax audit of organizations or IP was made with violations;
- refusal to provide tax deductions to persons who have the right to him;
- illegal accrual of fines and penalties;
- refusal to provide tax breaks;
- late fulfillment of legal obligations.
How to file a complaint against the actions of the tax authority?
In disagreement with the actions of the tax service and compiled by the acts of testing organizations, the first part should be submitted to the complaint to a higher controlling organization ().
If we are talking about cameral, exit or unscheduled verification, then on the compiled act, it is necessary to record that the document will certainly be appealed. Initially, the complaint is submitted to the authority that conducted a check. In the case when a written response to the complaint did not arrange a taxpayer, to appeal to the higher tax authority.
Challenge the actions of the tax service if the written communication with it did not bring the desired result, it is possible not only in court, but also in the prosecutor's office. A complaint about the prosecutor's office is only if there are signs of a criminal offense in the actions of the IFX or its individual employees. In other cases it is worth contacting the District Court at the location of the IFTS, which is to be sued.
What are the courts to apply for IFTS?
- To district courts - in violation of the rights of an individual;
- In arbitration courts - in violation of the rights of organizations and IP.
It is necessary to go to court within 3 months after receiving the decision of the higher tax authority. This is possible in the event that the tax authority response was not given on a designated period ().
Drawing up a claim
Before suing the tax service, it is necessary to draw up a statement of claim, the content of which is established by paragraph 1 of Article 199 of the Administrative Procedure Code of the Russian Federation. Shape is standard:
- "Cap" document. In the upper right corner, information on the tax authority is indicated in which the claim is filed, the Personal data of the plaintiff (FULL NAME, the address of the permanent registration), information about the defendant (the name of the tax authority, his legal address), personal data of the representative (if it is submitting a lawsuit), the price of a claim, information about the magnitude of the state duty;
- The main part with a detailed description of the circumstances of the case and references to regulations, which were violated by the tax service;
- Final part. It lists all claims, their legitimate justification is given;
- List of applications to the suit. The list of the applicant's personal signature (or his representative) and the date of filing the claim.
In accordance with the law in the main part of the claim, the IFX should be the following information:
- the name of the tax authority whose solutions are disputed;
- full information about the contested act, solutions (name, number, date of adoption) or perfect action;
- transmission of rights and legitimate interests that were violated;
- an indication of specific articles of regulatory acts that confirm the violation of the applicant's rights from the tax service;
- requirements to recognize the decision of the tax authority or the action of an official illegal.
What documents to add a lawsuit?
A complete list of documents that need to be completed in the district or arbitration court is presented in Article 126 of the APC RF. They can be submitted to the court and in paper, and electronically. It will take advantage to send copies of the claim to other participants in the lawsuit.
What are these documents?
- Receipt of payment of the state duty for filing a claim;
- Any documents that confirm the legality of the claimant's claims;
- A copy of the certificate of state registration of a legal entity or IP;
- Power of attorney certified by the notary (when applying through a representative);
- Copies of previous court decisions;
- Documents confirming attempts to pre-trial settlement of the conflict (complaint of the tax inspectorate);
- Extract from the USRP or for legal entities and entrepreneurs.
Answering the question, is it possible to file a lawsuit on the IFTS, it is worth taken into account whether attempts were initially to resolve the situation in the IFSN itself. Often, the conflict can already be resolved by complaint with the local tax service department or its regional office. Trials related to tax legislation disorders can go for several months. While the answer to the complaint of taxpayers in the IFTS is obliged to provide just for 30 days.
The Federal Tax Service of Russia published an overview of the positions of higher courts on taxation issues. It contains judicial acts of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, which were adopted in the first half of 2016 on controversial issues of VAT calculus, personal income tax, income tax, land tax, tax audits, application of the patent taxation system (PSN), controlled transactions. Total present twenty-five situations. 1C experts comment on the most interesting for taxpayers. An overview with the opinion of ships directed by the FTS to work to the tax authorities should be taken into account by taxpayers in carrying out their activities.
FNS of Russia letter dated 07.07.2016 No. SA-4-7 / [Email Protected] I sent for work to the lower tax authorities a review of judicial practice - judicial acts of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, adopted in the first half of 2016 on taxation issues. In review, ambiguous issues of tax calculus - VAT, personal income tax, income tax, patent taxation system (PSN) are raised. Consider the most interesting and important of them.
Cheat Sheet on the article by the editorial office of Buk.1ce for those who have no time
1. The Federal Tax Service of Russia sent for work to the lower tax authorities a review of judicial practice - judicial acts of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, adopted in the first half of 2016 on taxation issues.
2. In their decisions, the judges did the following conclusions:
- VAT is not restored if the subsidy is obtained from the regional budget, even at the expense of federal funds.
- Remuneration to the buyer for the purchase of food products can reduce their cost in order to calculate VAT.
- With accelerated reimbursement of VAT, percentages are not accrued if the amount to refund is not reduced in the refined declaration.
- It is impossible to return the interest paid by the taxpayer when canceling the decision on VAT refunds in a declarative manner.
- Even if the challenge is a court decision, the inspection can carry out an exit tax check.
- The taxpayer is obliged to provide a material and technical base when carrying out an inventory by the tax authority.
- The employer must keep NDFL from the payment of the fare of an employee committed for personal purposes.
- Do not hold tax from excess interest on controlled debt, which are paid to the Russian organization.
- If the loan is expressed in foreign currency, and calculations in rubles, then a termal difference occurs.
- The inspection may be fined to failure to notify the controlled transaction.
- In case and field checks, the inspection cannot check prices on controlled transactions.
- When calculating the average number of employees, only employees occupied in this activity should be taken into account for the use of PSN.
- A commercial organization cannot apply a reduced land tax rate.
3. Follow the position of the courts, even if it contradicts the written explanations of the Ministry of Finance of Russia and the FTS of Russia. This is due to the fact that the tax authorities should in this case should be guided by precisely solutions, decrees, information letters of the Armed Forces of the Russian Federation. This conclusion is contained in the letter of the Ministry of Finance of Russia of 07.11.2013 No. 03-01-13 / 01/47571.
Value added tax
VAT is not restored if the subsidy is obtained from the regional budget, even at the expense of federal funds
The provisions of the subparagraph 6 of paragraph 3 of Article 170 of the Tax Code of the Russian Federation oblige taxpayers to restore the previously adopted by VAT, if a subsidy was obtained from the federal budget for compensation for the costs of purchased goods (works, services) from the federal budget. Consequently, in relation to subsidies allocated from other budgets, the VAT is not necessary. However, in practice, the question arises about the application of this norm, if the subsidy is obtained from the regional budget, but its initial source was the federal budget.
The court came to the conclusion that in this case the VAT is not restored, because such a subsidy is the income of the subject entity and cannot be considered as a subsidy provided from the federal budget (paragraph 1 of the review). Such an approach is divided into the Ministry of Finance of Russia and the Federal Tax Service of Russia (see the emails of the Ministry of Finance of Russia dated December 16, 2015, No. 03-07-11 / 73587, from 10/23/2015 No. 03-07-11 / 60945, from July 10, 2015 No. 03- 07-15 / 39765, sent by letter of the Federal Tax Service of Russia of 08/17/2015 No. GD-4-3 / [Email Protected]).
Remuneration to the buyer for the purchase of food products can reduce their cost in order to calculate VAT
Often, sellers pay to buyers stimulating remuneration (for example, for a certain amount of procurement). If this is provided for by the contract, such a remuneration can change the cost of the product already shipped (paragraph 2.1 of Art. 154 of the Tax Code of the Russian Federation). In this case, the seller sets a correction invoice, after which the parties change tax liabilities.
However, the provisions of another law prohibit the price of a food product when paying a premium for achieving a certain amount of procurement (clause 4 of Article 9 of the Federal Law of December 28, 2009 No. 381-FZ "On the basics of state regulation of trading activities in the Russian Federation"). Therefore, the controlling bodies conclude that the tax liabilities of the parties are not corrected in this case (the emails of the Ministry of Finance of Russia of September 18, 2013 No. 03-07-09 / 38617, from July 25, 2013 No. 03-07-11 / 29474).
The courts with such an approach did not agree and allowed for the purpose of taxation to change the price of the food product, if it is provided for by the contract. Therefore, it is possible to set correction invoices, since the mentioned trade law is not applied to the tax relations (paragraph 3 of the review).
With accelerated reimbursement of VAT, percentages are not accrued if the amount to the refined declaration is reduced.
The taxpayer has the right to reimburse VAT in an accelerated order according to the rules of Article 176.1 of the Tax Code of the Russian Federation. If the updated declaration is submitted by the payer after making a decision on accelerated VAT reimbursement, but before completing the cameral check, then the decision on the previously submitted declaration is canceled. Therefore, the taxpayer is obliged to return at the request of the tax authority the amount of VAT, obtained (credited) to them in a declarative order, and pay interest (paragraph 3 of paragraph 24 of Art. 176.1 of the Tax Code of the Russian Federation). However, the courts note that percentages are not automatically accrued if the amount to reimbursement is not reduced in the refined declaration (paragraph 5 of the review).
It is impossible to return the interest paid by the taxpayer when canceling the decision on VAT refunds in the applicant
The court considered the following dispute (paragraph 6 of the review). According to the results of the verification of the Declaration, the inspection canceled the decision to refund VAT in an expedited manner, since the deductions were not confirmed. In this regard, the taxpayer returned the amount of VAT amounts earlier with interest. Later, he presented a refined declaration, documents confirming deduction, and asked him to return to him. The tax authority and the court refused this for the following reasons. The interest provided for in paragraph 17 of Article 176.1 of the Tax Code of the Russian Federation is, in essence, the sanction for the illegal use of budgetary funds. Their return is possible only if the court or higher tax authority recognize the decision on the initial declaration invalid. The courts came to similar conclusions earlier (see Resolution of the FAS of the Moscow District of December 10, 2013 No. F05-15324 / 2013).
Tax audits
Even if the challenge is a court decision, the inspection can carry out an exit tax check.
According to the results of the cameral audit, the inspection refused the taxpayer in VAT refund. The court recognized this decision inspection invalid and ordered the tax authority to return the tax. Later, the inspection conducted an on-site inspection of the same disputed tax period. As a result, violations were discovered, which were not previously identified, and the taxpayer was attracted to justice.
The court came to the conclusion that the Tax Code of the Russian Federation does not prohibit the holding of cameral and field inspections in the same period, and supported the decision of the tax authority. Even if, according to the results of the "cameroller", the court decision was made, the inspection is entitled to conduct a more in-depth check - the exit (paragraph 8 of the review). The controlling bodies adhere to a similar approach in their explanations (see the letter of the Federal Tax Service of Russia of March 13, 2014 No. EF-4-2 / \u200b\u200b4529).
The taxpayer is obliged to provide a material and technical base when carrying out an inventory by the tax authority
This conclusion came to the court, referring to paragraph 2.7 of the provisions on the procedure for the inventory of property of taxpayers in the tax audit (approved by the Order of the Ministry of Finance of Russia and the Federal Tax Service of Russia of 10.03.1999 No. 20N / GB-3-04 / 39). The argument of the taxpayer on the illegality of this norm (it allegedly introduces additional duties not provided for by tax legislation) rejected by the court. The fact is that the possibility of the tax authority to carry out the inventory of property is fixed in the Tax Code of the Russian Federation. The controversial norm only specifies it. Therefore, if the tax authority carries out an inventory at the taxpayer warehouse, the latter must provide it with that workforce and the equipment that he has.
Income tax of individuals
The employer must keep NDFL from the payment of the fare of an employee committed for personal purposes.
The fare of an employee for personal purposes is not related to the execution of employment duties, so his payment is not a compensation payment (Art. 164 of the Labor Code of the Russian Federation) and is not exempt from the NDFL under article 217 of the Tax Code of the Russian Federation. Payment of such a passage by the employer refers to employee income, this income is subject to NDFL (paragraph 10 of the review). This conclusion has repeatedly came the courts and earlier (see Definitions of the Armed Forces of the Russian Federation of October 19, 2015 No. 8-kg15-6, from 21.03.2016 No. 8-kg15-34).
Profit Tax
Do not hold tax from excess percent on controlled debt, which are paid to the Russian organization
The Russian organization has outstanding debt to another Russian company affiliated with foreign. By virtue of paragraph 2 of Article 269 of the Tax Code of the Russian Federation, such debt is controlled by debt to a foreign organization. In this regard, interest on it is taken into account in expenditures, taking into account the restrictions provided for in paragraph 3 of Article 269 of the Tax Code of the Russian Federation. Overtime percentages are equal to the dividends of a foreign company (clause 4 of Art. 269 of the Tax Code of the Russian Federation). A question arose before the court, should the Russian organization hold a tax of interest on the controlled debt paid to the Russian lender?
According to the court, it should not, because percentages are actually paid by the Russian, not foreign organization (paragraph 12 of the review). This is due to the fact that the Tax Code of the Russian Federation does not provide for taxation from the tax agent (source of income) when paying interest on debt obligations to Russian organizations. The financial department supports a similar approach (see the emails of the Ministry of Finance of Russia of 14.05.2015 No. 03-08-05 / 27557, from 11/26/2014 No. 03-08-05 / 60262, from 06.03.2014 No. 03-08-05 / 9669) .
If the loan is expressed in foreign currency, and calculations in rubles, then a termal difference occurs
Companies have concluded a loan agreement in foreign currency. Then an additional agreement of the borrower was given the opportunity to pay debt in rubles at the rate of the currency established by the Central Bank of the Russian Federation at the date of provision of a loan. In such a situation, the courts supported the tax authorities in the fact that the taxpayer is obliged to recalculate the amount of foreign exchange debt and interest on it in rubles in the course established by the Central Bank of the Russian Federation at the dates:
- recognition of expenses in the form of interest,
- termination (execution) of obligations
- for the last number of current month.
The negative or positive difference is reflected in the composition of non-engineering expenses or income in the manner provided for in Articles 271 and 272 of the Tax Code of the Russian Federation (paragraph 13 of the Review). Representatives of the financial department in a letter dated November 26, 2014 No. 03-03-06 / 1/60179 came to a similar conclusion.
Controlled transactions
Inspection may be fined for failure to submit a notification on a controlled transaction.
It is the territorial tax authority at the place of accounting of the taxpayer, it is obliged to check the timeliness of submission by the taxpayer notification, reflecting all controlled transactions in it, as well as the accuracy of the information notification specified in this. Accordingly, it was the inspection that can be responsible for the violations found during such an inspection under Article 129.4 of the Tax Code of the Russian Federation: failure to provide notification and submission of notifications with false data.
At the same time, the control of prices in controlled transactions is related to the competence of the Federal Tax Service of Russia (paragraph 14 and 16 of the review).
During cameral and field checks, the inspection cannot check prices on controlled transactions
Determining income (profits, revenues) of interdependent persons who are parties to a controlled transaction, is made exclusively the Federal Tax Service Federal District with the use of methods established by Chapter 14.3 of the Tax Code of the Russian Federation. And paragraph 1 of Article 105.17 of the Tax Code of the Russian Federation prohibits checking prices in controlled transactions during exit and cameral checks.
At the same time, prices for transactions between interdependent persons who are not recognized as controlled can be tested by the tax authorities within the frame or on-site inspection (paragraph 15 of the review). Such a conclusion is contained in the letters of the Ministry of Finance of Russia dated September 16, 2014 No. ED-4-2 / [Email Protected] and the Federal Tax Service of Russia of 06/16/2015 No. EF-2-13 / [Email Protected]
Patent tax system
When calculating the average number of employees for the use of PSNs, only employees occupied in this activity should be taken into account
As a general rule, the average number of employees employed in PSN activities should not exceed 15 people for the tax period for all types of activities carried out by the entrepreneur (paragraph 5 of Art. 346.43 of the Tax Code of the Russian Federation). In a situation where, along with PSN, an entrepreneur uses UTII, in the calculation of the number of employees, only employed in activities on the patent should be taken into account. The court linked this so that the restriction acting for a patent cannot be distributed to other taxation regimens (paragraph 17 of the review).
It should be noted that the regulatory authorities have a different opinion: when calculating the average number of employees to use PSNs, all employees should be taken into account, including those employed in the activities of ENVD (letters of the Ministry of Finance of Russia of September 10, 2015 No. 03-11-11 / 52295, FTS of Russia from 06.11.2015 No. SD-3-3 / [Email Protected]).
Land tax
A commercial organization cannot apply a reduced land tax rate.
According to subparagraph 1 of paragraph 1 of Article 394 of the Tax Code of the Russian Federation, the land tax rate cannot exceed 0.3 percent on areas acquired (provided) for housing construction, personal subsidiary farming, gardening, gardening or animal husbandry, as well as country farm. For its application, the fact of granting (acquisition) of land is important for these purposes, for example, country household (country construction). Therefore, the organization that uses this area in business activities cannot apply a reduced rate of 0.3 percent (paragraph 19 of the review). Such an approach has previously demonstrated representatives of the controlling bodies and some courts (see the letter of the Federal Tax Service of Russia of December 24, 2015 No. SA-4-7 / [Email Protected] (paragraph 25), Ministry of Finance of Russia dated March 20, 2012 No. 03-05-04-02 / 25, Commentary of 1C experts in the Comments on the Comments on the Laws and Decisions of Ships "in the Legal Support section).
Execution by the Bank of Tax Payments
Severity of tax payments by the Bank
Payments to the budget carried out on the instructions of the tax authorities (that is, in a compulsory), to be executed by the Bank in the third place, and payments for tax liabilities on the payment orders of the taxpayer - in the fifth place. Such a conclusion confirms the judicial practice (paragraph 20 of the review) and the controlling authorities (see the letters of the Federal Tax Service of Russia dated July 11, 2016 No. GD-4-8 / 12408, Ministry of Finance of Russia dated 17.05.2016 No. 03-02-07 / 2/28.22) .
This review of the Federal Tax Service of Russia sent for use in the work of the lower tax authorities (a letter of the Federal Tax Service of Russia dated July 7, 2016 No. SA-4-7 / [Email Protected]). In this regard, we recommend that taxpayers and tax agents consider the conclusions of the courts given in the document. Moreover, follow the position of the courts, even if it contradicts the written explanations of the Ministry of Finance of Russia and the FTS of Russia. This is due to the fact that the tax authorities should in this case should be guided by precisely solutions, decrees, information letters of the Armed Forces of the Russian Federation. Such a conclusion is contained in the letter of the Ministry of Finance of Russia of 07.11.2013 No. 03-01-13 / 01/47571, which was brought to the tax authorities by letter of the Federal Tax Service of Russia of November 26, 2013 No. GD-4-3 / [Email Protected]
FTS may cancel the decisions of the lower tax authorities on benefits and deducts within three years after the inspection, the Supreme Court decided. Taxpayers cannot affect the revision process, lawyers indicate
The Supreme Court (Sun) allowed the bodies of the Federal Tax Service (FTS) to cancel the decisions of the lower managers and inspections for tax breaks and deductions, and also determined that the "statute period" for revising decisions is three years after the end of the controlled tax period. Lawyers indicate that the court decision expands the powers of tax authorities, and the taxpayers actually does not have the ability to influence the cancellation process and revising the decisions made.
The essence of the dispute
Sun rejected the cassation complaint of Aquamarine LLC, which challenged the FNS actions, which had canceled the decision taken in favor of the company's decision of the lower management.
AKVAMARINA, OOO, engaged in the production of jewelry in the Kostroma region, challenged the decision of the Regional Inspectorate of the FNS No. 7. In May 2014, the inspection conducted a challenge of the company on the basis of the VAT Declaration. According to the results of the inspection, the company was attracted to liability for tax offenses: the inspection considered that the company used counterparties to obtain unreasonable tax benefits. Akvamarina was denied VAT for 26.6 million rubles, a penalty of 2.1 million rubles was accrued. and penalties 0.47 million rubles, the company should also supplement arrears on VAT in the amount of 10.8 million rubles.
Aquamarine did not agree with the decisions of the inspection and appealed to the higher management of the FTS in the Kostroma region. In November 2014, the Office agreed with the requirements of the taxpayer and abolished the decision of the lower inspection, since the tax authority is not presented with evidence, which properly confirm the coherence of the actions of society and its counterparties. " However, the Federal Tax Service of Russia considered that the management decision does not comply with the law, and in order to control the understanding tax authority overturned it in December 2015. Aquamarine challenged the decision of the Federal Tax Service in the Arbitration Court of Moscow and the ninth arbitration appeal court. Both instances agreed with the arguments of the tax and left a decision in force.
In the cassation appeal, directed in the aircraft, Aquamarin asked to cancel the decisions of the lower courts and cancel the decision of the FTS, referring to significant violations by the courts of substantive law. Sun did not agree with the plaintiff and left the decision of the FTS in force.
Also, Sun confirmed that the higher bodies of the FTS can cancel the decisions of the subordinates in accordance with paragraph 3 of Art. 31 of the Tax Code in cases of violation of tax legislation in order to restore legality. Separately, the court stressed that the authority to cancel the decisions of the lower tax authorities should be limited in time. "The presence of the deadlines during which adverse consequences may occur for a person in relations with the state, represents the necessary condition for the application of these consequences," the Sun is said in the definition of Sun. The court came to the conclusion that the higher tax authority has the right to abolish the decisions of the lowering within three years from the end of the tax period in respect of which the verification was carried out.
The FTS noted that the definition of the Sun will not make cardinal changes to judicial practice, since the Constitutional Court issued a similar decision back in 2010. According to the statistics of the FNS, the abolition of decisions of the lower organs is related to the "positive for taxpayers" practice. Since 2015, 2114 decisions were canceled by the territorial departments of the FTS, 2069 of them were made in favor of taxpayers, RBC reported to the FTS. "The excessive or unreasonable intervention of the Federal Tax Service of Russia is within the competence and powers of the lower tax authorities or the abuse of the authorities provided by law on the abolition of decisions of the lower tax authorities in the implementation of current control over their legality, the above statistics are not confirmed," the tax service is reported.
The procedure for which cannot be influenced
Situations similar to the "Aquamarina" dispute are quite rare, not all tax authorities are checked by higher. For such an audit, information on the misunderstanding decisions should appear, the head of the tax practice of the law firm Tilling Peters Ekaterina Boldinova believes. It is important that the FTS independently and initiatively corrected the "error", and within the framework of the procedure that the taxpayer could not influence in any way, she explains. This approach seems very radical.
"The NK provides for specific rules and procedures for each type of checks, and in each of the procedures of the taxpayer there are certain rights and guarantees of their compliance. However, the independent intervention of a higher tax authority in the relationship between the taxpayer with the administering tax authority means that the taxpayer in such a situation is deprived of any rights, except for the right to challenge the decisions, "says Boldynov.
The Supreme Court consolidated a rather radical conclusion in determining, providing extremely broad powers to the Tax authority, a senior lawyer BGP Litigation Denis Savin agrees. "It turns out that now the taxpayer will not be able to forget about those produced once and dropped at the level of detachments," he says.
What does it mean for business
Sun offered to limit the powers of higher tax authorities by revising those solutions that the taxpayer were granted benefits and deductions. "Such a limitation is obviously stimulated by the tax authorities to minimize the number of positive solutions for taxpayers [on benefits and deductions]," Boldinova fears.
Canceling solutions of the lower tax authorities is associated with the incorrect application of the legislation on taxes and fees, including taking into account the developing judicial practice and legal positions of the Sun, the RBC is explained in the FTS. Cancellation of such solutions is aimed at eliminating unreasonable claims of tax authorities to taxpayers and support for reasonable detachments, also noted in the FTS.
Judicial practice for such disputes is a few, but solutions are quite unambiguous, indicates the head of the practice of tax disputes "MEF-Audit PKF" Alexander Oatsov. "From other known similar cases, it is possible to clarify the case of LLC" Celene "(A40-36957 / 2016) and the definition of you on April 18, 2013 (.pdf), in which the right of a higher authority was confirmed to cancel the decision of the subordination in order. This definition referred to, in particular, the courts considered the case of Aquamarine LLC, - indicates Oatons.
You can not insure myself from the situation when the business passed a desk check, and after a while the superior instance revises the act of checks and maintains taxes, considers the partner of Vinder Law Office Artem Goryunov, but you can prepare in advance. "The courts tend to get up to the side of the tax authorities - in particular, because taxpayers are not ready for checks. All the arguments need to be uploaded immediately, at the stage of the desk check, because when the dispute goes into a higher level of tax or a court, you will not add anything, "the lawyer advises.
Claims always begin at the primary level - in the district inspection of the Federal Tax Service, indicates Goryunov, so it is important and necessary to check the conscientiousness of counterparties, following all Recommendations of the FTS: make sure that the company is white, is at the specified address, reports and so on.
The importance of storing documents and reporting for the past tax periods is becoming even higher, and companies need not only to carefully prepare for verification, but also to be ready to protect their position in the event of a dispute with the FTS, a lawyer says.
Many companies are afraid to sue FTS. Among the business owners there is a stereotype that if it comes to court with officials, the latter will certainly won. We have dealt with, what chances have companies in court.
For taxpayers, the FTS seems to be an unequal rival in the judicial dispute. However, monthly tax inspections lead hundreds of processes. Moreover, the initiator of the proceedings is in most cases the organization. The reason for the claim is the results of inspections with the overestimated amounts of tax to refund, but if in this case the company still has doubts about their own right, then with obvious mistakes in the calculations of inspectors, managers do not agree. About why it is necessary to apply to the court to inspectors, a lawyer said, a specialist in the financial law of the Consulting Center "Business Curator" Alexey Zaitsev, who had previously led the case, being a trustee of the FTS. Now he is increasingly getting up on the opposite direction in disputes, protecting the interests of companies.
– Alexey, are you familiar with how the inspections are shipped with taxpayers?
- At one time I myself led in the courts of the case from the tax. I needed it for personal experience, and I suggested a cooperation near Moscow. Lawyers from the suburbs were inconvenient to travel to the center of the capital, to the Arbitration Court of the Moscow Region, and I took this work on myself.
- Is your activity limited only by arbitrations?
- Over time, I had to delve into the disputes of various instances. The Tax Legal Department is doing practically in all vessels. Civilians - consider disputes with individuals when it comes to the amount of up to 50 thousand rubles. If the amount of tax is higher, it is considered in the district or urban court. When a member of the dispute is a business entity and conflict is economical - the case is sent to arbitration.
– Exists Do tax inspections have the practice of transferring cases from the district inspection to the higher authorities, if we are talking about a large company or a big amount of tax?
- if the dispute concerns the amount exceeding 20 million rubles, the district inspection lawyer is obliged to direct the case in the management of the Federal Tax Service; This is the only criterion for the transfer of business. But usually it is not taken entirely. It makes no sense to tear off the conflict from the soil on which he was born. The chiefs of legal departments are engaged in large disputes as the most experienced employees, under the leadership of curators from higher authorities. In these cases, there is really serious training. There is a permanent dialogue between inspection and management, a joint collection of information on the case and entering the court.
- Professionals are engaged in serious disputes, but it is believed that legal departments are filled with young and inexperienced employees.
- The way it is. Why do people go to the tax? Approximately 20 percent are specialists still Soviet hardening. They are going to work in inspections until the end of their careers. But the main mass of lawyers who come immediately after the university, expect to gain experience, study the structure from the inside and build their career already outside the walls of the FTS. The tax for them is the opportunity to gain experience in doing business in all vessels. This is the first place of work of young professionals, and they have no practical knowledge. The quality of preparation for the processes from this, of course, suffers, which, however, is more than paying for the number of proceedings.
- What is the cause of a large number of cases? Why does taxpayers generally arise the need to defend their rights in court?
- Ideally, the FNS should be the structure that does not accept objections. If she calculated the tax, then it is payable. But it is ideal! In practice, inspectors give a lot of reasons for litigation. Here is a digit for example: 40 percent of the results of the field checks are disputed in court. The tax charge system itself is built in such a way that it is beneficial to create reimbatries.
- What are these internal features?
- Any inspection is interested in paying the taxpayer maximum amounts. In the legal department, although they understand the entire comicness of the situation and the unreasonableness of the requirements from the tax, can not do anything. The management usually insists that the amount declared after checks defended themselves in court. There is practical benefits in this. All dependencies on whether the tax court will benefit or not, the transcendental sums accrued by employees of the departments and cameras are recorded in the reports and improve the indicators, which increases the financing of the inspection and salary of employees in particular. But in the management of the FTS, the situation is understood. If all departments have good results, the courts make decisions in favor of taxpayers, it means that the inspection declares unreasonable amounts to pay. Therefore, the performance of all departments are multiplied by the coefficient, which is calculated on the basis of court decisions. But even this measure does not work: in the general settlement system, it does not play a significant role.
- Is the reason for a judicial dispute always a deliberate overestimation of tax charges?
- Not always, and here again the system, its complexity, poor database update and excessive confidence in computer programs is to blame. For example, some owner of the apartment accrued instead of 1.5 thousand rubles 150 thousand rubles of tax. What is the reason? In the fact that the girl is engaged in sending notifications, the work of which is to click on the button - and the program itself will print it with a stack of receipts; However, no one is engaged in their verification for reliability. From here and a large number of technical errors. The same traffic police database with which tax authorities work quickly and rarely updated. There are cars that have long been disposed of. But their former owners come regularly receipts. And such inaccuracies are in no way in a hurry to correct. This is the calculation of "fool". Many people are easier to pay the receipt than to deal with where this tax come from, especially if the amounts for payment are small.
- Why are this kind of disputes not solved in a peaceful way? After all, it is not necessary to go to court to eliminate technical errors?
- In my practice, the tax extremely rarely recognized his wrong or overstaving the amounts of taxes accrued from the results of the inspections. Although there is a separate procedure for this - a taxpayer call to resolve situations in pretrial order. In district inspections, such meetings are pure formality, because everyone knows each other, and all claims discussed in advance, but the discussion must be configured that there are no complaints about non-compliance with this procedure. The inspection position in this case is as follows: if the tax authorities really exceeded the amount of charges, then let it be proven in court. Lawyers at such meetings must be definitely. I myself have repeatedly been at such negotiations, at the same time I didn't even have the results of the inspection. Usually it is possible to familiarize themselves with them during the meeting, but we can not go about a proper understanding of the situation.
- What is the reason for such a ignorance? Why can a lawyer be devoted in advance in the essence of the question?
- Because it is the risk of the corruption component. There is a huge number of rules fixed in the regulations. For the same reason, various lawyers are conducted at different stages of the proceedings. This greatly reduces the quality, but, in the opinion of people who have developed internal documents of the FTS, with such an organization of work, an inspection officer cannot fall on the side of the taxpayer. Although it happens very disappointing when you dedicate a lot of time to one case and have to transfer it to another employee.
- With such an organization of doing business, a legal department should have a lot of work?
- At one employee of Loorddele the inspection, in which I worked, accounted for about 40 cases per month. They need to prepare everything, learn. In this case, the system is built in such a way that it is not possible to collect all the necessary data promptly. There is an opportunity to see the necessary information in computer programs, but according to the regulations, the lawyer does not have rights to this, because again the corruption component arises - suddenly an employee obtained data uses for personal purposes? Therefore, you have to write a request, to sight it with your head and wait for the regulations for three days. The process of collecting information is stretched for a long time. Therefore, often lawyers have time to prepare only for important processes, and in the rest they listen to the portion of "compliments" for improper work.
- I always thought that the judges were more than loyally tuned towards the tax inspectorate.
- Very differently configured. Some are so good that they consider to make a decision to make a decision in favor of the inspection. Other sincere hate taxes. Experienced judges annoying the need to work with trackers from tax, they perceive it as disrespect for themselves. It is known that the Moscow Regional Court until recently took the overwhelming number of solutions in favor of taxpayers. Corruption is also impossible to exclude, in the courts of the Moscow region, it still exists.
- Does the inverse situation happen when "topping" comes to "Once" a specific taxpayer?
- If it comes to major organizations and big money, a certain arrangement of forces always takes place. But it does not always play a decisive role. For example, the process over the Dmitrov dairy plant. And the tax, and the plant collected such a number of "supporters" in their favor, to determine who is stronger, it was already impossible. As a result, the decision took the judge on which they tried to put pressure, but since the alignment of the forces was equal, then it did not affect the solution. Salaries of judges today are high, so they do not see any particular interest to accept someone's side of trifles.
Publication Date: 05/28/2012 10:16 (Archive)
Arbitration Court of Moscow
1. The original certificate of the Arbitration Court of Moscow, indicating the number and date of the payment order (certified by the head of the court);
2. A copy (original, in the absence of the original of the reference of the Arbitration Court of Moscow) Definitions (decisions) of the Arbitration Court of Moscow;
3. Payment order with genuine bank marker and indicating the date of write-off of funds (in case the state duty is subject to return in full)
4. A copy of the payment order (if the state duty is refundable in part)
Return of state duty:
Chertanovsky District Court of Moscow
List of necessary documents:
1. The original of the definition of the Chertanovsky District Court of Moscow, indicating the circumstances, which are the basis for the full (partial) return of the state duty, indicating the number and date of the payment order (certified by the shift seal of the court);
2. Payment order with genuine bank marker and indicating the date of write-off cash (in case the state duty is subject to return in full)
3. A copy of the payment order (in case the state duty is subject to return partially)
In case the state duty paid an erroneous
To return an erroneous paid state duty, you need to provide:
1. The original of the reference of the Arbitration Court of Moscow, due to the refusal of the specified person from performing a legally significant action, indicating the number and date of the payment order (certified by the head of the court);
2. Payment order with genuine bank marker and indicating the date of writing off cash (original)
Return of state duty for individuals
Additionally, when applying for a return of state duty to individuals should be indicated:
1. Passport details
2. Inn
3. Details for the return of state duty (name, INN / CAT, bik, k / s, p / s-20 digits).
4. Address
5. Contact phone
6. In the case of payment and (or) obtaining state duty, a representative or other person needs to provide power of attorney or other documents confirming the right to pay and (or) receive. The power of attorney on behalf of the IP should be signed by the IP and is certified by printing, in the absence of printing, it is necessary to provide notarized power of attorney. A power of attorney on behalf of an individual must be notarized.
7. Documents required for the return of state duty
Return of state duty for legal entities
When submitting an application for a refund of the state duty to legal entities must be indicated:
1. INN / CPP organization
2. Full name of the organization
3. Details for the return of state duty (indicating the name of the bank, the Bank of the Bank, the full and accurate name of the recipient)
4. Contact phone / fax
5. Address
6. In the case of payment and (or) obtaining state duty, the representative of the organization needs to provide power of attorney or other documents confirming the powers of the representative for payment and (or) obtaining state duty. In accordance with Art. 61, 62 "Arbitration Procedure Code of the Russian Federation" dated 24.07.2002 N 95-ФЗ in the power of attorney issued by the submitted person, or in other document, the right of the representative for the signing of the claim and the response to the statement of claim, the claim to ensure the transmission of the case should be specially agreed In the arbitration court, full or partial refusal of claims and recognition of the claim, changing the basis or object of claim, the conclusion of the settlement agreement and the agreement on actual circumstances, the transfer of its powers to another person (transmission), as well as the right to sign a statement on the revision of judicial acts According to new or newly discovered circumstances, appeal against the judicial act of the arbitration court, receiving awarded cash or other property. A power of attorney on behalf of the organization should be signed by its head or other authorized by the constituent documents by the constituent documents and fastened to the seal of the organization.
7. Documents required for the return of state duty
