Complaint is legitimate way fight against violation of the rights of physical and legal entities. To defend their interests, in the event of unlawful actions from the Federal Tax Service, you can start writing complaints. Consider a question more.
If the tax authorities violated your rights and you have evidence of this, then it is possible to appeal against unlawful actions. At the legislative level, the procedure for submission, the timing of consideration of complaints against actions or inaction tax authorities Describes in Article 139 of the Tax Code of the Russian Federation. You need to start with the writing of the text of the complaint. It follows:
- specify the tax authority data to which you appeal (name, address)
- specify the data of your organization or IP (company details, name, your position, OGRN, INN, contact details)
- say out the text of the complaint itself, indicating the evidence of illegal action or inaction tax, scans or screenshots of documents (audit act)
- clearly express your position, bring the grounds and references to the norms of the Tax Code of the Russian Federation
- denote the position of the tax on your issue
- specify what solution you want to achieve: cancellation of the tax authority or a change in the decision.
You can file a complaint through personal Area The taxpayer on the official website of the FTS online (there you can check the current status of your complaint and the solution for it), personally or through the representative - to the office or window of the reception of the tax authority documents, send documents by registered mail of Russia, preferably with the description of the investment.
Where to send a tax complaint
To submit a complaint against illegal actions or inaction on the part of the tax / its employee can be within one year. It is important that this period is counted since the detection of a violation (according to Art. 139 of the Tax Code of the Russian Federation). After filing a complaint, the tax authority for three days is obliged to send it to the main management instance. You can send a complaint:
- In the higher authority of the FNS, since it can cancel the actions of the subordinates. The Office of the Federal Tax Service cancels the decisions of regional tax.
- To court. Judicial authorities Consider complaints of any type, but be prepared for tightening the process. Consideration of the complaints in court - the matter is unprecedented. Although in some cases write to the higher tax authority and to achieve a positive will be much longer.
- To the prosecutor's office. But the question will reach until consideration, only if he has a criminal bias. For example, the abuse of official authority.
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Sample complaint
Tax name and address
Name of legal entity, FULL NAM
OGRN, INN / CAT
Legal and postal address.
Contact details
A complaint
on the actions / inaction of officials of a particular tax authority
either the name and props of the applied act and the name of the tax authority, his adopted
The essence of complaints: Describe the circumstances that contributed to the violation of its rights and legitimate interests on the part of the officials of the tax authority. In the event of an appeal of a particular tax authority, the applicant's arguments are preferred with reference to the norms of legislation, documents and other information confirming these circumstances.
In connection with the above, I ask: the applicant's request to understand the current situation in the event of an appeal of the actions (inaction) of the tax authority officials and recognize the actions or inaction of officials illegal or to cancel the applied Act of the Tax Authority.
Applications:
1. Documents (certified copies) confirming the validity of the arguments set out in the complaint.
2. Documents confirming the powers of the representative in the event of the signing of the complaint by the representative by proxy.
Position, FULL NAME, Signature, Date
Within three days from the moment of filing a complaint to the tax, it will have to be directed to the higher authority. The decision on the case is to endure within 15 days from the date of acceptance of the application. But by the indication of the head of the Office, this period may increase by another 15 days.
FTS may leave a complaint without consideration in several cases:
- if it is filed with a violation of the order prescribed in Art. 139.2 NK RF
- the statement does not have abnormative tax acts, specific actions are not specified, as a result of which the taxpayer rights were violated.
- violated filing time
- the complaint is withdrawn by the applicant himself
- the complaint with the same composition has already been sent from the same applicant.
- before making a decision, the tax authority eliminated the stated violations
The fact that the complaint will be left without consideration of the FNS is obliged to notify within five days from the date of its receipt or a statement about the revocation. However, this does not deprive you of the right to reverse the complaint (Art. 139.3 of the Tax Code of the Russian Federation).
As a result of the consideration of the complaint, the management of the FTS will make one of the following decisions:
- about holding additional events tax control
- on bringing to responsibility for committing tax offense
- on refusal to bring to responsibility for tax offense
- on attracting a person to responsibility for the tax offense
- on refusal to attract a person to responsibility for the tax offense
If the decision of the higher tax authority does not suit you, then it can be appealed to the appeal complaint.
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If the FNS authority on a subject ruled the decision with which you disagree, should contact the federal tax service or to court. Time during which you can write statement of claim The court is 10 days from the date of receipt of the decision on the case by the superior instance of the FTS. Requirements for the design of the appeal are similar to the requirements for the design of the complaint.
The appeal is submitted to the superior instance, but through the tax authority, whose decision appeals. For inspections of the Federal Tax Service of Russia, the supervisory tax authority is the management of the Federal Tax Service of Russia for the relevant subject. For the management of the Federal Tax Service of Russia on the subjects and for interregional inspections of the Federal Tax Service of the Federal Tax Service, the substain tax authority is the Federal Tax Service.
The decision on the appeal is carried out within one month from the date of its receipt. This period can be increased to two months. It should be noted that having received the appeal, the FNS understands that its decision did not take effect, and does not set the requirements for the payment of tax, penalties, a fine on the appealed decision.
Read Articles on Taxes and Store Reporting:
With violations in the work of the Tax Inspectorate, entrepreneurs and ordinary citizens are facing. Unlawful imposition of fines, incorrect tax obligations, failure to submit deductions, rudeness and non-professionalism in the work of the IFSS specialists - all these reasons make citizens think about how to write a letter to the tax.
The company's website indicates that citizens have the right to challenge the decisions or inaction of tax authorities, if these acts violate their rights (Art. 137 of the Tax Code of the Russian Federation). To report admitted violation and restore justice, you need to specialists from the IFSN.
The claim is compiled in writing, with respect to the norms of business vocabulary. It must be prepared according to the following model:
- Full name and address of the authors of the author-citizen or full name and legal address Applying an organization.
- The number of the document published by the IFNS, the provisions of which are subject to appeal, the description of the act of tax authorities that caused the dissatisfaction of the author of the appeal. It is necessary to state the situation fully, but concise.
- The name of IFTS (number, location), to which the company or the physically decided to file a complaint tax inspection.
- The reference to the provisions of regulatory acts confirming that the rights or legitimate interests of the auto-compiler are violated.
- Requirements that outlines a person submitting a statement.
So as not to be mistaken and do not miss important details, it is necessary to repel from a sample application to the tax inspection.
In circulation, it is recommended to specify the author's contact details (telephone number, mail), where the tax authorities are directed. In the descriptive part, it is not forbidden to describe any facts that can shed light on the situation.
The appeal is prepared in free form and signs by the author or his representative. In the second case, the appeal is a power of attorney confirming its powers.
The application to the IFTS should be accompanied by documentation confirming the correctness of the author-compiler. Sample application for tax:
Direction of application
Where to complain about the tax inspection? The appeal is sent to TU IFNS, whose work caused complaints from a citizen. His staff will transfer a statement to the higher authority. You can convert the claim in the following ways:
- call on hot line;
- contact via the Internet (official website of the IFTS) - https://www.nalog.ru/rn77/fl/interest/complaint/;
- personally with a written statement;
- direct the complaint by mail.
Complaint by phone
In order for the tax inspectorate, you can call the hot line 8 800 2222222. Its specialists will advise a citizen or the organization for questions of interest, will record discontent (illegal penalty or another example of violations).
You can call the specific division of the IFNS. Phone directory is presented on the official website of the tax inspection.
If you complain about the phone, make your appeal to respond to the following requirements:
- informativeness;
- lack of insults and informal vocabulary;
- compliance with the issues of IFTS;
- the presence of evidence of the violation.
Practice shows that the phone call is the least effective method. To quickly restore justice, go to the site and write a complaint online or send a paper handle personally (by mail).
Personal appeal
To transfer the appeal to the tax, you can visit this instance personally. An unhappy citizen is entitled to go to the territorial body or central apparatus. He will be asked to present a passport, find out what the essence of the appeal. If the oral conversation is not enough, the employee of the IFTS will help to make a statement.
To get not to an ordinary specialist, but to the manager, a preliminary recording is required. Depending on the degree of workload of the authorities, the schedule changes, and you need to be ready to wait 1-2 weeks.
Persons who decided to write an application to the tax traditionally pays more attention than citizens contacting the hotline. It is necessary to create an appeal in accordance with the applicable rules and bring at the address: Moscow, Neglinnaya ul. 23. Prepare two copies of the document: one will remain in the tax, the second will be returned to you with a mark on receipt.
Another option is suitable for residents of the regions that complain about IFTS. They write appeals and send them to mail at the specified address. You must select the type of sending "Custom". The documents submitted in this way are considered in the standard order.
I present a sample complaints in the management of the Federal Tax Service of Russia. Sample objection on the act tax audit You can see the link:
You can
is free
Get the estimate of the prospects for your dispute with the tax authority.
To do this, on the email address specified on the site you need to send a written request with a detailed description of the problem. Be prepared to send a copy of the applied to the tax authority.
The cost of services of a lawyer depends on the volume of intended work. Without familiarization with the client's problem and without assessing the prospects for a controversial situation, it is impossible to evaluate the amount of work. Therefore, we do not discuss the cost of our services before studying the client's problem. At the same time, in any case, our customers pay most of the fee "on the result" on the basis of a legal service provision agreement.
In the management of the Federal Tax Service of Russia in Moscow
125284, Moscow,
Khoroshevskoe highway, 12a
From
Romashka LLC
Inn ... / PPC ...
123456, Moscow,
Street house…
A complaint
On the decision of the Federal Tax Service of Russia No. ... in Moscow
№ ... dated February 12, 2016
On bringing to responsibility for tax offense
INTNS of Russia No. ... In Moscow, an exit tax audit LLC "Romashka" was held on the correctness of the calculation and timeliness of paying to the budget of taxes and fees, insurance premiums for compulsory pension insurance For the period from ... By ... 2014. According to the results of the inspection, the Company is proposed to pay arreed in the amount ... RUB. Accrued penalties for untimely tax pay as of 02/12/2016 in the amount of ... RUB. Also Romashka LLC is attracted to tax liability In size ... rubles. According to the results of the tax audit of the Federal Tax Service of Russia.
Romashka LLC believes that the above decision does not comply with the law.
As a result of the on-site tax audit due to the fact that the head of the Romaist LLC was not found, the documents for conducting an exit tax audit are not presented, in accordance with PP. 7 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation Inspectorate determined the amount of taxes payable, settlement path. However, the calculations of the inspection contradict tax legislation and established law enforcement practice, as well as violation significant conditions Procedures for consideration of tax audit materials, which is the basis for cancellation of the decision.
On page 2 Act of the exit tax audit Romashka LLC No. ... from ... years (hereinafter - the act) in paragraph 1.6. It is indicated that financial statements and tax Declarations Romashki LLC was revealed to the tax authorities in full and in the deadlines established by the legislation. The information provided formed the basis for calculating the tax authority amounts to pay the settlement path.
However, in violation of PP. 7 p. 1 Art. 31 of the Tax Code of the Russian Federation calculating the tax authority for income tax and VAT to be supplemented by the applicant, was carried out with the following violations: ...
1. According to PP. 7, paragraph 1 of Article 31 of the Tax Code of the Russian Federation, the tax authorities have the right to identify the amounts of taxes payable by taxpayers in budget System Russian Federation, calculated on the basis of their information on the taxpayer, as well as data on other similar taxpayers in cases of taxpayer refusal to allow the tax authority officials to inspect the production, warehouse, commercial and other premises and territories used by the taxpayer to extract income or related to content Taxation objects, non-submission for more than two months the tax authority necessary to calculate the taxes of documents, lack of income and expenses, accounting for taxation objects or keeping accounting with a violation of the established procedure that led to the impossibility of calculating taxes.
Inspection analyzes data on other similar taxpayers. As indicated on page 3 of solutions No. ... dated February 12, 2016 "On bringing to responsibility for committing a tax offense": "To determine the amount of taxes payable to the budget, similar taxpayers LLC" A ", LLC" B "were selected, LLC "I, LLC" T ", when choosing which the following criteria for the similarity were taken into account: a specific type of activity, the average number, the volume of revenue, the place of carrying out activities."
But the choice of similar taxpayers was carried out by inspection unreasonably, since ...
The position of LLC "Romashka" is confirmed by judicial practice.
So, in the resolution of the FAS ... District from .... in case number ... The court rejected the argument of inspection that ...
The elected tax authority of the organization is not similar to the "Chamomile" LLC, since ...
This conclusion is confirmed and judicial practice. As indicated in the ruling ... Courts from ... n ... in case number ...: "The inspection did not conduct an analysis ...".
As indicated in the definition of you of the Russian Federation from ... year No. ... in case No. Accrued taxes, penalties, penalties, since, applying the provisions of subparagraph 7 of paragraph 1 of Article 31 Tax Code The Russian Federation has not proven that it used data on similar taxpayers ... ".
The calculation of income tax is not justified and is incorrect, and, accordingly, the inspection did not prove the existence of income tax in the amount specified in the contested decision.
2. Invalid the calculation of the VAT to be supplemented.
The calculation of the VAT to be supplemented is given by inspection on pages 6 - 10 decisions No. ... dated February 12, 2016.
According to PP. 7 p. 1 Art. 31 Tax Code of the Russian Federation The tax authority has the right to determine the amount of taxes payable by taxpayers in the budget system of the Russian Federation, settlement on the basis of their information about the taxpayer, as well as data on other similar taxpayers
In accordance with paragraph 7 of Art. 166 of the Tax Code in the absence of a taxpayer accounting Or accounting for tax objects Tax authorities have the right to calculate the tax amounts payable, calculated on the basis of data on other similar taxpayers.
...
In paragraph 7 of Article 166 of the Code, the legislator provided for the possibility of calculating the estimated VAT due to payment for operations to be taxed from the taxpayer. Since the amount of tax deductions does not affect the definition tax base VAT, the deduction indicators cannot be used in relation to the calculation of VAT payable.
...3. Proceeding violation.
As indicated on page 2 of the Act of the Departure Tax Verification LLC "Romashka" No. ... from the ... of the year "On the basis of the decision of the Deputy Head of the Federal Tax Service of Russia No. ... in Moscow ... from ... year № ... Exit Tax Check was suspended with … of the year". "On the basis of the decision of the Deputy Head of the Federal Tax Service of Russia No. ... in Moscow ... from ... of the year ... Check is resumed from ... of the year."
Meanwhile, below on page 2, the act is indicated that ... the year is an inspection of the room located at: ... a protocol of inspection of the territory, premises, documents, items No. b / n from ... year was drawn up.
According to paragraph 2 of Article 92 of the Tax Code of the Russian Federation "2. Inspection of documents and items outside the framework of the on-site tax audit are allowed if the documents and items were obtained by the official officer of the tax authority as a result of the previously made actions for the implementation of tax controls or with the consent of the owner of these items to conduct their inspection. "
Since the inspection was carried out during the suspension period of the on-site tax audit, its results are not appropriate evidence and cannot be taken into account when making an inspection.
The same position adheres to judicial practice. So in the resolution of the FAS ... District from ... in case number ... It is indicated: "... what, since the inspection was made outside the framework exit Check And without the consent of the taxpayer, its results are not appropriate evidence. "
4. Violation of the essential conditions for the procedure for consideration of tax audit materials.
The act was not directed by the taxpayer.
In accordance with paragraph 5 of Article 100 of the Tax Code of the Russian Federation "Act of the tax audit within five days from the date of this act should be awarded a person in respect of which a check was conducted, or its representative under receipt or transpaved in a different way indicating the date of its receipt by the specified person ( His representative).
In the event that a person in respect of whom a check was conducted, or his representative evaporates to obtain a tax audit act, this fact is reflected in the act of tax audit, and the tax audit act is sent by mail by registered letter at the location of the organization ( separed division) or place of residence individual. In the case of an act of a tax audit in the mail by registered letter, the date of this act is considered the sixth day counting from the date of sending a registered letter. "
Meanwhile, from the register of sent by registered correspondence of the Federal Tax Service of the Russian Federation No. ... in Moscow it does not follow that the tax audit act was in a timely manner, until the decision was sent to the taxpayer. ...
The audit report was not received by the Company before the decision was made, in connection with which the following rights of the Company were violated: ...
In accordance with paragraph 14 of Article 101 of the Tax Code of the Russian Federation, "non-compliance with the officials of the tax authorities established by this Code may be the basis for the cancellation of the tax authority to the parental tax authority or the court."
Based on the foregoing, paragraph 3 of Article 101.2 of the Tax Code of the Russian Federation, and paragraph 2 of Article 140 of the Tax Code of the Russian Federation "Romashka"
Asks
Management of the Federal Tax Service of Russia in Moscow
cancel the decision of the Inspectorate of the Federal Tax Service of Russia No. ... in Moscow No. ... from February 12, 2016 "On bringing to responsibility for committing a tax offense" and discontinue the proceedings.
02/12/2016 Lawyer Gladilin A.N.
Hello!
I hope that the information on the site was useful for you.
In turn, please inform you which important information you did not find on the site.
I and my team strive to answer the most topical questions of site visitors, so I ask you to inform me that it was useful, and what information turned out to be not enough for what questions I could not find any questions.
Write in the comments or to the email address specified on the site.
Best wishes, lawyer Gladilin Andrei Nikolaevich.
If the payer believes that the tax authorities were inactive at the time when it was necessary to act, and because of this, his rights were violated (for example, the IFTS violated the return time (paragraph 6 of Art. 78 of the Tax Code of the Russian Federation)), then this payer has the right to file a complaint on the inaction of the tax inspectorate (Art. 137 of the Tax Code of the Russian Federation).
Where to write a complaint about the tax inspection
A complaint is submitted to the higher tax authority (paragraph 1 of Art. 138 of the Tax Code of the Russian Federation), that is, in the UFNS of that region, to which the inspection belongs to which you decide to complain.
Only on the court can be applied only after the inaction of the tax authorities were appealed to the UFNS (paragraph 2 of Art. 138 of the Tax Code of the Russian Federation).
By the way, it is also possible to submit a complaint with a tax inspectorate in the prosecutor's office (Art. 10 of the Federal Law of January 17, 1992 N 2202-1).
In our article we will consider the filing of the complaints in the UFNS.
Requirements for a complaint for tax inspection
The complaint should contain the following information (paragraph 2 of Art. 139.2 of the Tax Code of the Russian Federation):
- the name and address of the organization's organization (if the complaint is submitted by the physical, it must indicate its name and address of the place of residence);
- the name of the IFTS, whose inaction is appealed;
- information about what exactly the payer appeals (in our case it is the inaction of the IFTS);
- the grounds for which the taxpayer believes that its rights were violated (as a rule, this is a reference to legislation);
- requirements put forward by the taxpayer;
- the desired way to obtain a decision on the complaint (on paper or in in electronic format By TKS or through the personal account of the taxpayer).
Also in the complaint makes sense to specify phone numbers and email addresses that tax authorities can use to communicate with the taxpayer (clause 3 of Article 139.2 of the Tax Code of the Russian Federation).
If desired, the complaint can be attached to the documents confirming the facts set forth in it (paragraph 5 of Art. 139.2 of the Tax Code of the Russian Federation).
Submit the complaint should face, submitter, or a representative (paragraph 1 of Art. 139.2 of the Tax Code of the Russian Federation). By the way, if the complaint gives an authorized representative, then it is necessary to attach documents confirming these powers, for example, power of attorney (paragraph 4 of Art. 139.2 of the Tax Code of the Russian Federation).
Note that there is no complaint that the approved form is not, but you can use the form posted on the FNS website in the section "Pre-trial settlement of tax disputes".
Flow Methods Complaints
- on paper (personally or by mail);
- electronically on TKS;
- through the personal account of the taxpayer.
The procedure for filing a complaint against IFTS
Despite the fact that the complaint must be submitted to the UFNS, the payer represents it in the IFST, and the tax authorities will already be transferred to the management within three working days from the date of receipt of the complaint (paragraph 6 of Art. 6.1, paragraph 1 of Art. 139 of the Tax Code of the Russian Federation) . At the same time, the IFTS should eliminate the violations set forth in the complaint (of course, if these violations take place), and report it in the UFNS also within three days from the moment of elimination (clause 1.1 of Art. 139 of the Tax Code of the Russian Federation).
As for the deadlines for filing a complaint, it is possible to submit it during the year from the day when the payer learned or should have learn about the violation of his rights (paragraph 2 of Art. 139 of the Tax Code of the Russian Federation). True, if the term was missed by the taxpayer for a valid reason, the UFNS can restore it.
By the way, before making a decision on a complaint, the taxpayer may withdraw it (paragraph 7 of Art. 138 of the Tax Code of the Russian Federation). However, the review of the complaint will deprive the payer of the right to submit a new complaint on the same grounds.
Terms of consideration of the complaint and decision on it
According to the results of the consideration of the complaint about the inaction of the tax inspectorate, the UFNS may leave the complaint without satisfaction or recognize the inaction of the IFTS and make a decision on the merits (paragraphs 1, 5 of paragraph 3 of Art. 140 of the Russian Federation).
At the adoption of one or another solution at the UFNS, there are 15 working days from the date of receipt of the complaint (paragraph 6 of Art. 140 of the Tax Code of the Russian Federation). True, in some cases this period can be extended, but maximum for another 15 working days.
His decision of the UFNS presents / directs the taxpayer within three working days from the date of adoption of this decision (paragraph 6 of Art. 140 of the Tax Code of the Russian Federation).
You can learn about the fate of your complaint through the special FTS service.
For what reasons, the UFNS may refuse to consider the complaint
In some cases, management may refuse the payer in consideration of its complaint. This is possible if (paragraph 1 of Art. 139.3 of the Tax Code of the Russian Federation):
- the complaint is not signed or signed unauthorized face;
- the complaint does not specify what the inaction of the tax authorities were;
- the deadline for filing a complaint has expired;
- before making a decision on the complaint, the payer recalled her;
- the payer has already filed a complaint for the same reasons;
- before the UFNS decided on the complaint, the tax authorities eliminate violations.
Complaint of the inaction of the tax inspection: sample
Requirements for the appeal are the same as the requirements, for example, to a complaint about the inaction of the tax inspection (Art. 139.2 of the Tax Code of the Russian Federation).
Application form of an appeal can be downloaded on
The law must be honored, and this should not only be taxpayers, but also tax authorities. That's just they often forget about it. True, the Federal Tax Service of Russia reported to reduce the number of taxpayer complaints (firms and entrepreneurs) by 12% (for 9 months of 2016 compared to the same period of 2015). Yes, there is a reduction in pre-trial tax disputes, yes, the tax authorities take into account judicial practice. And yet the law in tax activities is not always respected. And what if the violation is obvious?
Choosing a way of protection
Some paths. You can choose only one, you can combine several, but what exactly? It may seem a casus, but you can ask about this right from the tax authorities. After all, as you know, the tax authorities should inform taxpayers for free, including the rights of taxpayers (sub. 4 of paragraph 1 of Art. 32 of the Tax Code of the Russian Federation). It can be done:
- by phone (8-800-222-22-22);
- on the Internet (http://www.nalog.ru);
- personally or in writing (127381, Moscow, ul. Neglinnaya, d. 23 or at the address of its tax inspectorate).
It should be remembered that with written appeal to respond 30 days (which successfully can be used to delay the time so that the limitation period has expired).
Up to bosses
Appeal to a higher official of the tax authority is a very effective measure that allows you to maintain a good relationship.
Most convenient way Appeals - through the personal account on the site nalog.ru. Despite the "innovativeness" of the method, the procedure for consideration of appeals established by law is fully covered on it (this is meant by the Federal Law of 02.05.2006 N 59-FZ, which, despite the name, applies to the appeals of legal entities). In general, it does not matter, in what form you appeal - with a statement or with a complaint. The main thing is to comply with uniform requirements and indicate:
- FULL NAME. the addressee - an official to which you appeal (or his position);
- their full name;
- address for an answer (postal or electronic);
- essence of circulation -
and all this sign (own or appropriate electronic signature). Confirming documents are attached to necessity and if available.
Refuse to accept the appeal Address is not entitled, it must in any case be taken, registered (within 3 days from the date of receipt) and considered (within 30 calendar days from the date of his registration). The official is entitled to send your letter to another person if the decision affecting your question beyond its competence.
The answer is sent or in writing, or by e-mail, or through the personal account (depends on what method you indicated in circulation). In general, without a response, the appeal remains in strictly defined cases:
- the applicant forgot to specify his last name or address for the answer;
- in circulation, non-parliamentary (obscene or offensive) expressions are used, as well as threats;
- the text is unreadable and (or) contains the question for which the answers have repeatedly repeatedly, and there are no new arguments.
In the case (although it is unlikely) if the official violates the procedure for consideration of the appeal, that is, the grounds for setting an administrative responsibility (a fine of 5,000 to 10,000 rubles (Article 5.59 of the Code of Administrative Medical University)).
Complaint to the higher tax authority
Taxpayers have the right to appeal:
- acts of tax authorities of an abnormative nature;
- actions or inaction of their officials -
if, in their opinion, acts, actions (inaction) violate their rights. Appeal can be issued as (fed to a solution that has not entered legal force) Or as a traditional complaint. Traditional complaint is supplied for challenging:
- an act of abnormative (i.e. individually defined, one-time, relative to a particular taxpayer) of the nature that has already entered into legal force;
- action (inactions) of officials, including decisions about or credit, "freezing" of accounts, bringing to responsibility, detaching tax and penalties, etc.
Both types of complaints are directed strictly through the tax inspectorate, which adopted the disputed decision or allowed illegal actions (inaction), which within three days from the date of receipt directs and, and its materials into a higher tax authority.
Note: Having received the usual (not appeal) complaint, the tax authorities are obliged to take measures to eliminate violations of the applicant's rights and report this to a higher tax authority for three days from the date of the elimination of violations (paragraph 1.1 of Art. 139 of the Tax Code of the Russian Federation).
The usual complaint is served during the year from the day:
- when the taxpayer learned (it was supposed to learn) about the violation of his rights;
- if the decision came into force on bringing to responsibility or the decision to refuse to bring to justice, which was not appealed in appeal;
- decisions, if the decision made on the results of the consideration of the tax audit of the consolidated group of taxpayers appealed against the results of the consideration of the consolidate taxpayer group, which was not appealed in appeal.
The appeal is submitted only until the day of entry into force of the appealed decision.
Requirements for the form and content of both complaints are identical, but the appeal itself can only be submitted in writing, through a personal account or telecommunication channels (e-mail it is possible). Indicated in addition to general data (Full name, names, addresses, ways to obtain a response, etc.):
- details of the applied act of non-normative character, actions (inaction);
- the name of the tax authority, the act, actions (inaction) of whose officials appealed;
- the grounds for which the person who gives the complaint believes that his rights are violated;
- applicant requirements.
The complaint can be attached:
- documents confirming the circumstances on which the taxpayer basizals its requirements;
- calculation of disputed taxes, collection, penalties, fines, tax deductionto which the taxpayer claims, and other calculations;
- power of attorney or other documents confirming the powers of the person who signed the complaint (if the complaint is signed not by the applicant's taxpayer himself).
The documents have this kind of nuance: the documents presented together with the complaint and the additional documents submitted during the consideration of the appropriate complaint before it decisions are considered to be considered a higher tax authority if the person who submitted the complaint presented an explanation of the reasons why it was impossible Timely submission of such documents to the tax authority, the solution of which is appealed (paragraph 4 of Art. 140 of the Tax Code of the Russian Federation). Taxists often understand it like this: documents can be taken into account only if the applicant can justify the reasons why it was impossible to submit their inspection, the solution of which appeals. This does not mean that documents can not be taken. The law does not require a taxpayer to document the fact that it was impossible to submit such documents to the tax authority in a timely manner, the solution of which appeals. The courts indicate that:
- Of the Tax Code of the Russian Federation (paragraph 4 of Art. 140 of the Tax Code of the Russian Federation) obliges the applicant to submit an explanation on the reasons for the impossibility of submission specified documents During the inspection (Resolution of the AS of the Volga District of 12.08.2015 n F06-26273 / 2015 in case No. A55-22321 / 2014);
- the tax authorities are not entitled to refuse to consider the submitted documents due to the documentary unconfiguration of the factory of the fact set forth in the explanations provided: in fact, this presentation of additional requirements not provided for by the Tax Code of the Russian Federation, the provisions of which obliges to submit only to the explanation (Resolution of the Eleventh Arbitration Court of Appeal from 06.04.2015 N 11AP -2554/2015).
"Explanations" is not the same as "documentary confirmation" (see, for example, Art. 88 of the Tax Code of the Russian Federation). So if the higher tax authority refused to consider additional documents with reference to the fact that the documentary confirmation of the absence of controversial documents at the time of the audit and deciding on its results is not presented, then the court will most likely consider this position unlawful. Moreover, in the case of submission of additional evidence, the tax authorities have the right to ask the court to announce a break or postpone the meeting, giving them the opportunity to familiarize and submit the evidence of their evidence (paragraph 78 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of July 30, 2013 No. 57).
Challenging does not suspend the execution of the applied act, but there is an exception. In case of appealing by the decision of the decision on bringing to responsibility (or decisions on refusal to bring to responsibility), the execution of the contested decision may be suspended. For this, in addition to the complaint, you must submit:
- statement of suspension;
- bank guaranteeon which the Bank undertakes to pay monetary sum In the amount of tax (collection, penal, fine), not paid to the appealed solution.
Options for solutions based on the consideration of the complaint:
- leave without satisfaction;
- cancel the act of the tax authority of an abnormative nature;
- cancel the decision of the tax inspection (fully or in part);
- cancel the solution and adopt a new one;
- to recognize the actions (inaction) of inspection officials illegal and make a decision on the merits.
It should be noted that the solution of the higher tax authority may be appealed (in the FTS of Russia within 3 months from the date of adoption).
To prosecutor
Amazes an incredible variety of ways of circulation. In addition to traditional methods (in writing, orally, in electronic form, even telegraph and fax can be used via the Internet receiving).
For formal details, it makes sense to explore the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", as well as the Instruction on the procedure for consideration of appeals and reception of citizens in the prosecution authorities of the Russian Federation (approved by the order of the Prosecutor General of January 30, 2013 No. 45) They are posted in open access on the official website of the General Prosecutor's Office (GenProc.gov.ru). There, by the way, there is an Internet reception. To avoid disappointments, it is necessary to understand that the subject of prosecutor's supervision among other things is the observance of the Constitution of the Russian Federation and the laws, respect for the rights and freedoms of man and citizen. In other words, the basis for the adoption of measures of prosecutorial response is a message about violations of legislation, rights, freedoms and interests (both a person and citizen and legal entities and entrepreneurs). In practice, this means that there is no point in the prosecutor to demand, for example, to recalculate the calculation made by tax authorities, but can be referred to in violation of the tax audit procedure, tax recovery, etc.
Appeal to the prosecution authorities can be issued as a statement or complaint, but in any case should contain:
- the name of the prosecutor's office (FF, the post of addresses);
- FULL NAME. applicant, address for response (postal or electronic);
- essence of the question;
- signature and date.
The appeal can be directed both to the prosecutor's office at the location of the applicant and the prosecutor's office at the location of the tax inspection, which complains.
Having established a violation fact, the prosecutor should make an idea of \u200b\u200beliminating violations of the law into a tax inspection (official), in whose competence to eliminate violations. The idea is subject to urgent consideration.
For a month, concrete measures should be taken to eliminate the violations of the law, their causes and conditions that contribute to them, and the results should be reported to the prosecutor in writing.
Species of the prosecutor's response are very effective:
- decree on the initiation of production administrative offense;
- the direction of the prosecutor to the official of the warning about the inadmissibility of violation of the law.
It happens, although it is infrequent that the prosecutors are cooling. Then it remains to be applied only to the court. Thus, the taxpayer sent a statement to the UFNS, containing information about tax evasion by a group of entrepreneurs, and confirming documents for 48 sheets. Materials were transferred to the appropriate tax inspection, but already on 9 sheets. The loss of 39 sheets brought into dark thoughts, and the taxpayer requested the prosecutor's office to spend a thorough check of the above facts and consider bringing an official to the appropriate type of responsibility (administrative or criminal). The court is recognized as illegal the inaction of the prosecutor's office, expressed in the failure to decide on the administrative responsibility of the Official of the UFNS, failure to provide an answer to the application for initiating a criminal case, the head of the specified interested person is entrusted with the obligation to eliminate admitted applicant's rights violations (the appellate definition of the Sverdlovsk Regional Court of January 15, 2014 N 33-532 / 2014).
To court but not immediately
Tax Code establishes mandatory pre-trial order settlement of the dispute (paragraph 2 of Art. 138 of the Tax Code of the Russian Federation). You can contact the court not only when the higher tax authority did not listen to your complaints, but then when he just ignored them without making a decision at all. By the way, appeal the decision higher organ You can immediately in court, without circulation even in a higher one.
Now we will not affect the noble case of appealing the regulatory legal acts of tax authorities (for those who wish, the study of Chapter 21 of the Administrative Judicial Code of the Russian Federation (CAS RF)) is obligatory.
We focus on a more common and landed - appealing of abnormative legal acts, solutions and actions (inaction) of tax authorities and their officials.
Forms of appeal to court Such (Art. 4 APC RF):
- the statement of claim - on economic disputes and other cases arising from civil legal relations;
- statement - on cases arising from administrative and other public legal relations, in cases of insolvency (bankruptcy), for special production, and in other cases provided for by the APC RF;
- a complaint - when contacting the arbitration court of appeal and cassation instances, as well as in other cases provided for by the APC RF and other federal laws.
The taxpayer (no matter, a citizen or organization) is entitled to contact the arbitration court with a statement on the recognition of invalid non-normative legal acts, illegal decisions and the actions (inaction) of tax authorities, officials, if it believes that the abnormative legal act, decision and action (inaction):
- do not comply with the law (another regulatory act);
- violate his entrepreneurial and economic rights and interests;
- oblige something to do without legal grounds;
- in other ways, impede the implementation of entrepreneurial and other economic activity.
The deadline for submission of the application is three months from the day when the taxpayer became aware of the violation of his rights and legitimate interests (unless otherwise established federal law), But the term missing for a good reason may be restored by the court (paragraph 4 of Art. 198 of the APC RF).
Requirements for the application are listed in Article 125 of the APC RF (Part 1, paragraph 1 - 2 and 10 hours 2, part 3). In particular, there must be specified:
- rights and legitimate interests, which, according to the applicant, are violated by the contested act, solutions or actions (inaction);
- laws and other regulatory acts, which, according to the applicant, does not correspond to the disputed ACT, decision or action (inaction) -
and also stated a requirement for the recognition of an abnormative-legal act invalid (decisions, actions (inaction) - illegal).
This kind of case should be considered by the judge alone in a period not exceeding three months from the date of receipt of the application (this period includes and the preparation of the case judicial proceedings, and the decision on the case, unless otherwise provided by law). The extension is possible up to six months by the Chairman of the Court on the motivated statement of the judge. The grounds for extension are the special complexity of cases, a significant number of participants in the arbitration process (paragraph 1 of Art. 200 of the APC RF).
The decision of the Arbitration Court of the First Instance, which did not enter into force may be appealed to the Court of Appeal. The appeal may be filed within a month after the adoption by the Arbitration Court of the first instance of the contested decision (Art. 259 of the APC RF). Further, it is possible to consider the case in the order of cassation (if this is not prohibited by law (paragraph 1 of Art. 273 of the APC RF)) on the period of no more than two months from the date of entry into force of the appealed decision, the decree of the Arbitration Court (unless otherwise provided by the APC RF ( Art. 276 APC RF)). And then it is possible to revise in order of supervision by the Presidium of the Armed Forces of the Russian Federation (ch. 36.1 of the APC RF) on time:
- no more than 2 months if it was not exterminated;
- not more than 3 months, if the case was estimated, not counting the time from the day of the delivery of the case before the day of his receipt in the Armed Forces of the Russian Federation.
