A letter of objection to the act to the tax office. Written objection to the tax audit act

Denis Lysenko,
President of NP "Association Professional Accountants Commonwealth ",
Ph.D.

Not later than two months from the date of issuing a certificate confirming the end tax audit(Clause 8 of Article 89 of the Tax Code of the Russian Federation), the inspectors draw up an act of an on-site tax audit (paragraph 1 of Clause 1 of Article 100 of the Tax Code of the Russian Federation), in the form approved by order of the Federal Tax Service of Russia dated December 25, 2006. No. SAE-2-06 / 892.

It is important to note that after drawing up the certificate, representatives tax office is not entitled to be on the territory of the enterprise, to demand documents and to carry out any events tax control(Clause 3 of the letter of the Federal Tax Service of Russia dated December 29, 2012 No. AS-4-2 / 22690). Inspectors are obliged to leave the act, even if, according to the results of the inspection, they did not reveal any violations (paragraph 1 of clause 1 of article 100 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated 04.16.2009 No. ШТ-22-2 / 299). V this case the tax office indicates in the act that there are no violations tax legislation(Clause 12, Clause 3, Article 100 of the Tax Code of the Russian Federation).

A copy of the field tax audit act must be handed over to the organization within five working days from the date of its signing (clause 5 of article 100, clause 6 of article 6.1 of the Tax Code of the Russian Federation).

At the same time, the inspection can personally hand over the act to a legal or authorized representative of the company against receipt, or in another way, indicating the date of receipt of the act by the organization (for example, through a courier service).

Upon receipt of the tax audit act, the representative of the enterprise must put two signatures in it: on receipt of the act and on familiarization with its content. If the representative of the organization refuses to put a signature on the act, then a corresponding note will be made in the act about the refusal to sign (clause 2 of article 100 of the Tax Code of the Russian Federation).

In the event that an organization (its representative) evades receiving an on-site inspection report, the tax inspectorate reflects this fact in the act and sends it by registered mail to the location of the organization ( a separate subdivision). In this case, the date of receipt of the act is the sixth working day from the date of sending the registered letter (paragraph 2, clause 5 of article 100 and clause 6 of article 6.1 of the Tax Code of the Russian Federation). The countdown of the six-day period begins from the day following the day of sending the act (clause 2 of article 6.1 of the Tax Code of the Russian Federation).

Example:

On September 20, 2013, the tax inspectorate signed an on-site tax audit act. On September 26, the inspectorate sent him to the location of the organization by registered mail. The sixth working day after September 26 is October 4, 2013. Consequently, this day will be recognized as the date of receipt of the field inspection certificate.

The inspectorate must send a registered letter with a tax audit act to legal address organizations. This is due to the fact that all postal correspondence intended Russian organizations, their branches or representative offices, must be sent by the tax inspectorate to the addresses indicated in the Unified State Register of Legal Entities (Clause 5, Article 31 of the Tax Code of the Russian Federation). No other options are provided by law.

As for the duty of the inspection to attach to the act handed over to the organization, evidence of violations that were revealed during the on-site or office tax audit, the following should be considered.

If the proof of the violation is the documents received from the audited organization, then the inspection is not obliged to attach such evidence to the verification act.

If the proof of the violation is documents received from other sources (for example, minutes of interviewing witnesses, documents of counterparties, etc.), then the inspectorate must attach such evidence to the tax audit act, even if the information received from third parties constitutes banking, tax or other secrets protected by law, and also contain personal data of citizens. In these cases, not complete copies of documents should be attached to the tax audit act, but extracts from them certified by the inspection (clause 3.1 of article 100 of the Tax Code of the Russian Federation, clause 1.13 of Appendix 6 to the order of the Federal Tax Service of Russia dated December 25, 2006 No. SAE-3 -06/892).

Objections to the tax audit act

If an organization does not agree with the facts and conclusions set out in the tax audit act, it can submit to the inspectorate objections to the act as a whole or to its individual provisions (clause 6 of article 100 of the Tax Code of the Russian Federation). Moreover, this rule applies to acts drawn up both on the basis of the results of field and office audits.

Even if during the audit, the tax authorities made a lot of procedural errors, when filing objections, it is important to focus on the content of the act, that is, on the conclusions of the controllers.

When justifying its position, the company must necessarily refer to the norms Tax Code RF and letters from officials: the Ministry of Finance or the Federal Tax Service of Russia. In addition, letters of the regional department of the Federal Tax Service should be used, and even more so the written replies of its inspectorate to the organization, if any.

When preparing an objection, judicial practice in favor of taxpayers, which is consistent with the situation under consideration. First of all, it is necessary to refer to the decisions of the Supreme Arbitration Court of the FAS of your district. You need to state your arguments consistently, clearly and concisely, following the order in which the tax inspectorate presented the violations found in the act. For clarity, you can cite individual positions or provide links to specific paragraphs of the act.

Objections are submitted to the tax office within one month from the date the organization receives the tax audit report (clause 6 of article 100 of the Tax Code of the Russian Federation). The monthly period is valid if the organization prepares an objection to the act, which was received by the organization on July 24, 2013 and later (clause 1 of article 6 of the Law of 23.07.2013 No. 248-FZ, letter of the Federal Tax Service of Russia dated 15.08.2013. No. АС-4-2 / 14794).

As a reminder, the deadline for preparing objections to acts of tax audits received before July 24, 2013 was 15 working days. By the time of entry into force new edition paragraph 6 of Article 100 of the Tax Code of the Russian Federation (August 24, 2013), this period has already expired. Its extension by the Law of 23.07.2013. No. 248-FZ is not provided. In any case, the period is counted from the day following the day when the inspection report was received (clause 2 of article 6.1 of the Tax Code of the Russian Federation).

For example, if an organization received a tax audit report on September 25, 2013, objections must be submitted no later than October 25, 2013.

If the tax audit report was sent to the organization by registered mail by mail, the monthly period for filing objections is counted from the seventh day from the moment the registered mail was sent. The fact is that the date of delivery of an act sent by registered mail is not the day it was actually received, but the sixth day from the moment it was sent by mail (paragraph 2, clause 5, article 100 of the Tax Code of the Russian Federation).

Objections to the tax audit act are made in writing, to which you can attach documents confirming the validity of the objections. At the same time, supporting documents can be submitted to the tax office and separately from objections within a pre-agreed period. Objections and documents to them are sent to the inspectorate whose employees carried out the check (clause 6 of article 100 of the Tax Code of the Russian Federation)

Insofar as standard sample there are no objections to the tax audit act, they can be drawn up in any form. As already noted above, the main thing is that the objections list specific points of the act with which the organization does not agree, and a clear justification for such a position is given with references to the attached documents. If the point of view of the organization is confirmed by the letters of the Ministry of Finance of Russia, tax service or judicial practice, then you should provide a link to them. Objections to the act can be signed either by the head of the organization or by a person authorized by him (for example,).

Objections are drawn up in duplicate, the organization submits one copy to the inspection, and keeps the second. An objection to the tax inspectorate can be submitted either through the office or by mail, the main thing is that the organization has confirmation of the timely dispatch of objections and that these objections have been received by the inspectorate.

The head of the inspection (his deputy) must consider objections to the act, the act itself and other materials of the tax audit and make an appropriate decision on them.

Meanwhile, the absence of written objections does not deprive the organization of the right to present its oral explanations directly during the consideration of the materials of the tax audit (clause 4 of article 101 of the Tax Code of the Russian Federation).

When the tax office conducts an on-site tax audit, an act is always drawn up based on its results. The inspectorate has 2 months for this from the date of drawing up a certificate of an on-site tax audit (clause 1 of article 100 of the Tax Code of the Russian Federation). And if we are talking about a cameral tax audit, then the act is drawn up only when the inspectorate has identified violations of tax legislation. In this case, the act is drawn up within 10 working days after the end of the office tax audit (clause 5 of article 88 of the Tax Code of the Russian Federation). Regardless of the type of tax audit, in case of disagreement with the conclusions reflected in the act, the taxpayer can submit objections to the tax audit act, a sample and an example of the form for which we will present in our consultation.

How long does it take to file an objection?

If an organization does not agree with the facts stated in the inspection report, as well as with the conclusions and proposals of the inspectors, it can submit its written objections both to the act as a whole and to its individual provisions. For this, the taxpayer is given 1 month from the date of receipt of the tax audit report (clause 6 of article 100 of the Tax Code of the Russian Federation).

Where and in what form should objections be filed?

Objections to the inspection report are filed with the tax inspectorate that conducted the inspection and drew up an act based on its results. Please note that to appeal the inspection report to a higher tax authority or you can't go to court.

If the taxpayer did not manage to send objections in time, they can be voiced at the stage of consideration of the materials of the tax audit (clause 4 of article 101 of the Tax Code of the Russian Federation). And it is better to submit them in writing at this stage.

Objections to the tax audit act are drawn up in any form. They need to indicate which provisions of the act do not agree with (point by point) and, in support of their position, provide references to the relevant legislation.

Written objections may be accompanied by copies of documents that would confirm the validity of the objections.

The taxpayer's objections are signed by the head or other authorized person (respectively, a power of attorney is attached).

Objections to the inspection report can be filed with the inspection personally or through a representative in one of the following ways:

To the office of the tax office or the window for receiving documents;

By mail.
When drafting objections to the inspection report, it is possible to recommend not to indicate in it the procedural errors of inspectors (for example, violation of the deadlines for the adoption of a document, lack of evidence). After all, then the inspection will have the opportunity to eliminate the shortcomings. However, such violations would play into the hands of the taxpayer when appealing the decision on the audit with a higher tax authority.

For objections to the act of a desk audit, we will give a sample of their preparation.

I present to your attention a sample of objections to a tax audit report. Send a request for drafting objections to the tax audit act in the feedback form or to the address:

A sample complaint to the Office of the Federal Tax Service of Russia can be viewed at the link:

To the Interdistrict Inspectorate of the Federal Tax Service of Russia No. ...
address: …

From
OOO "..."
INN ...
Checkpoint ...
address: …

December 16, 2015

Ref No. ________

Objections
to Act No. ... from ...
office tax audit
Limited Liability Company "..."
(OOO "...")
INN ... KPP ...

Interdistrict Inspectorate of the Federal Tax Service of Russia No. ... conducted a cameral tax audit of LLC "..." INN ... KPP ... based on tax return on value added tax, in which for ... quarter of 2015 it is declared ... rubles, presented ... 2015. tax return registration number (calculation) ...
The check “established” the non-payment (incomplete payment) of the value added tax for the… quarter of 2015. in the amount of ... rubles, unjustified overestimation of the tax deduction in the amount of ... rubles, as well as the overestimation of VAT presented for reimbursement from the budget for ... quarter of 2015 in the amount of ... rubles. According to the results of the audit, LLC "..." is proposed to pay: a) the amount of unpaid (not listed) taxes (fees) VAT on goods (work, services) sold in the territory of the Russian Federation (KBK ...) in the amount of ... rubles, b) penalties for late payment or non-payment (late transfer or non-transfer) of taxes (fees). It is also proposed to reduce the VAT charged for reimbursement from the budget in excess of the amount of ... tax liability, provided for in clause 1 of article 122 of the Tax Code of the Russian Federation, to make the necessary corrections in accounting and tax accounting.
LLC "..." does not agree with the conclusions of the inspection set out in the Act of a cameral tax audit No. ... dated ... 2015. The inspectorate's conclusions are not confirmed by the materials of the tax audit, they contradict tax legislation and established law enforcement practice.

LLC "..." signed contracts for the supply of products for subsequent sale at domestic market: (statement of factual circumstances and regulatory justification of the taxpayer's position)

By virtue of subparagraph 4 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, operations involving the import of goods into the customs territory of the Russian Federation are recognized as objects of taxation.

In accordance with article 171 of the Tax Code of the Russian Federation, a taxpayer has the right to reduce total amount VAT calculated in accordance with article 166 of the Tax Code of the Russian Federation, on the established by this article tax deductions.

Clause 2 of Article 171 of the Tax Code of the Russian Federation establishes that the amounts of tax presented to the taxpayer and paid by him when importing goods into the customs territory of the Russian Federation under the customs regime of release for free circulation in respect of goods purchased for resale are subject to deductions.

...

These requirements of tax legislation are fully complied with by LLC "...". In particular...

Inappropriateness of the conclusion of the inspectorate on the illegality of the application of the tax deduction for VAT on goods not entered into the warehouse of the taxpayer being inspected.

On the page ... of the Act, the inspection indicates:
From the foregoing it follows that LLC "..." does not have its own and does not rent warehouse premises necessary for the reception, unloading, loading and storage of goods, which confirms the absence of the actual moment of receipt of the goods by LLC "...", i.e., acceptance of the goods to the accounting of LLC "..." was not carried out, and as a result - tax deductions for VAT are illegal in accordance with paragraph 1 of article 172 of the Tax Code of the Russian Federation.
Inventories are accepted for accounting when control over them is transferred to the taxpayer. Proceeding from this, the moment of establishing control over them is primary for the acceptance of goods for accounting. As long as the item is in transit and has not been posted to the warehouse, the deduction cannot be applied, even if there are invoices and delivery notes.
The inspectorate also indicates that in the course of tax control measures, it was established that the ownership of the imported goods into the territory Russian Federation to LLC "..." did not pass.
This conclusion is based on the following circumstances
- absence storage facilities and a certain kind Vehicle, material and labor resources;
- explanations of the taxpayer about the delivery of goods directly by the supplier's transport to the buyer LLC "..." and then directly to the buyers of the 2nd link (testimony of the head of LLC "..." ...).
In this regard, LLC "..." in accordance with Article 172 of the Tax Code of the Russian Federation unreasonably accepted for deduction the amount of tax paid to the customs authorities when importing goods into the territory of the Russian Federation.

However, the conclusions of the tax authority contradict tax legislation and established judicial practice. (normative rationale and references to jurisprudence)

The conclusion about the absence of a transfer of ownership was made by the inspection on the basis of the lack of storage facilities and a certain type of vehicles, material and labor resources, as well as explanations of the taxpayer about the delivery of goods directly by the supplier's transport to the buyer LLC "..." and then directly to the buyers of the 2nd link. However, in accordance with Article ...

Acceptance of imported goods is confirmed following documents... . These documents were submitted to the tax authority.

Invalidity of the conclusion of the inspection about the absence of economic benefits

On the page ... of the Act it is indicated that according to the analysis of procurement documents and documents for the sale of goods submitted by LLC "...", the average markup for sold to buyers: LLC "V", LLC "G", LLC "D", LLC "E ", in ... quarter of 2015. the product accounted for 3%, i.e. there is no economic benefit in the further sale of the product.
The audited taxpayer, together with other economic entities, performed chains of concerted actions that did not have a real business purpose, but aimed at obtaining benefits in the form of withdrawing funds from the budget, which is an obstacle to VAT refunds
However, the inspectorate's conclusion contradicts tax legislation and established law enforcement practice, since ...

The inspection materials did not find confirmation of the inspectorate's conclusions about the Company's dishonesty when VAT was presented for reimbursement from the budget.
Thus, LLC "..." submitted all the documents provided for by Articles 171, 172 and 176 of the Tax Code of the Russian Federation to confirm the right to reimburse the disputed VAT amounts from the budget. The inspectorate's conclusions do not correspond to the documents available in the inspection materials and contradict the current tax legislation and established judicial practice.
LLC "..." does not agree with the conclusions set out in the Act of a cameral tax audit No. ... year and asks the Interdistrict Inspectorate of the Federal Tax Service of Russia No. ... ... quarter of 2015, not to bring to tax liability based on the results of consideration of materials of a tax audit.

12/16/2015 lawyer Gladilin A.N.

Document design and content

Despite the fact that the protocol is drawn up in an arbitrary form, common sense requires that the document contains sufficiently convincing arguments and evidence, supported by well-formed documents and appropriate legislation... It is required to structure the text of objections, drawing up a document by analogy with an inspection report, i.e., combine all information into three main blocks:

introductory (general), which provides information about the actual check, the number and date of the act, the period of the conduct;
descriptive, revealing the essence of the questions that became the basis for the preparation of objections. In this block, all the arguments of the audited company for each contested position should be stated in detail. Note that the drafting of the protocol is preceded by the scrupulous work of the enterprise to analyze all the violations noted by the inspector of the Inspectorate of the Federal Tax Service, since when drawing up such a document as the protocol of disagreements to the verification act (sample below), you should know exactly which violations were actually committed by the company and which are flaws or the speculations of the inspectors. The arguments of the company should be substantiated by referring to the relevant laws, clarifications of the Ministry of Finance or the Federal Tax Service, as well as existing court practice.

If it is possible to recreate the missing documents or correct the deficiencies referred to in the act, they should be restored and submitted together with objections. If the verification report reveals inaccuracies in the calculations or a distorted estimate business transactions, these facts are also indicated. All controversial issues are best grouped into 2 categories - violations of the actual verification procedure or substantive law.

If the challenge concerns only the issues of the inspection, the head of the IFTS may make a decision on the implementation of additional control measures aimed at eliminating procedural omissions. As a rule, these violations do not affect the financial position of the organization, and few of them file objections on this matter. It is better for companies to focus on violations of the merits of the audit, since the enterprise has the right to appeal against the decision to bring to tax liability only to the extent that was contested in the higher tax authority;

operative, that is, a summing up with an indication of the amount of additional taxes, with which the organization does not agree, and proposing a certain algorithm of actions. In addition, you should ask the Federal Tax Service Inspectorate to notify the company about the day and time of the analysis of the protocol of disagreements, so as not to give the tax authorities a reason to consider the document without the knowledge of the company.

If documents (copies) are attached to the objections, their number should be mentioned in the "Attachments" line. All copies are certified by an authorized representative of the company and a seal.

Objections to the tax audit report: deadline

As a written appeal to the Inspectorate of the Federal Tax Service, stating disagreement in certain points with the audit act, objections to the act of the field tax audit can be submitted to the office of the territorial IFTS or sent by mail. This can be done within 1 month after receiving the act (clause 6 of article 100 of the Tax Code of the Russian Federation). Unified form this document does not exist, but the Federal Tax Service has developed a very convenient option « Objections to the tax audit act ».

Note that the presented form is suitable for filing objections for any status of conducted tax audits - in-house or on-site. Companies often develop the form of the document, changing it, depending on the violations noted in the act. We offer one more frequently encountered document.

Sample objection to the on-site inspection report

The objection to the field tax audit act, a sample of which is presented, contains 2 blocks - general and descriptive. The operative part is filled in based on the information in the previous one, which describes the controversial positions of the act.

What to expect after submitting objections to the IFTS

The end of the period provided by law for the registration and transmission of objections (1 month from the date of receipt of the act) is the beginning of a ten-day period when the head of the IFTS should consider the disagreements and make a decision to bring the taxpayer to tax liability or accept his arguments.

Objection to a tax audit act - sample of this document can be downloaded from the link contained in the article. The objection reflects the disagreement of the person in respect of whom the check was carried out, with its results, drawn up in the form of an act.

Officials The Federal Tax Service of Russia has the right to carry out compliance checks legal entities, IP, individuals the requirements of the current legislation. By virtue of Art. 31 of the Tax Code of the Russian Federation, the purpose of inspections is to establish the correctness and timeliness of payment tax payments.

Article 87 of the Tax Code of the Russian Federation provides for two types of verification activities: office and field tests. At office audit the subject of the tax authority's study is the declarations submitted by the taxpayer. During an on-site inspection, FTS employees go to the taxpayer's territory and study documents, interview witnesses, make seizures, request explanations, conduct examinations and inventories. Thus, although the purpose of these checks is the same, the methods of their implementation are different.

Based on the results of cameral audit actions, if no violations of tax legislation were found, no final document is drawn up. If violations are found, a final act is drawn up.

During an on-site check, an act is drawn up in all cases. It is important to note that the form of the act, and the procedure for filling it out both in the office and in the field inspections, are the same. The form of this document is contained in the Order of the Federal Tax Service of Russia dated 05/08/2015 No. ММВ-7-2 / [email protected](Appendix No. 23).

If the taxpayer does not agree with the data specified in the act, or with the conclusions of the inspectors, he has the right to submit objections to him to the tax authority (clause 6 of article 100 of the Tax Code of the Russian Federation). The deadline for filing objections is 1 month. It is allowed to dispute both the entire document and its individual provisions. It is also possible to attach documents supporting the objections.

Requirements for written objections to a tax audit act, content of objections

Objections are filed with the territorial body of the Federal Tax Service, which carried out the check. The law does not provide for the form of objections, and also does not impose mandatory requirements for the content of the document.

When filing objections to the inspection report, you can use the information specified in Art. 139.2 of the Tax Code of the Russian Federation. This rule regulates the procedure for drawing up a complaint against a decision of the tax authorities. Despite the fact that it cannot be applied directly to the legal relations under consideration, general principles drafting the document become clear.

Objections must be made in writing, signed by the applicant. If they are submitted by a representative of the applicant, it is necessary to issue a power of attorney.

The document should include the following information:

FULL NAME. the applicant, or the name of the organization challenging the act.
Applicant's address.
Details of the act (date, number).
An indication of the name of the Federal Tax Service Inspectorate to which the objections are filed.
An indication of the violations committed when drawing up the act.
Applicant's requirements.
An indication of the manner in which the reply to objections will be sent (for example, by mail, by e-mail).
Applicant's contact phone number.

Objections can be filed in person, sent by mail, or via Personal Area on the website of the Federal Tax Service, as well as through the section " electronic services/ contact the Federal Tax Service of Russia "on the official website of the Federal Tax Service (a link to electronic services is contained in the lower part of the website of the Federal Tax Service of Russia at nalog.ru).

What is the structure of objections to the FTS inspection report?

Traditionally, a three-step structure can be used for formal business letters and complaints. It is also suitable for objections to the verification act.

The document is divided into three parts:

Introductory. It indicates general information about the inspection carried out, its period, subject, etc.
Descriptive. It indicates the violations that, in the applicant's opinion, were committed by the tax authority.
Resolution. This section reflects the requirements of the applicant.

The sections should contain a "header", which reflects the data about the applicant, the name of the document (objections), an indication of the tax authority that adopted the act.

An indication in objections to legal norms is optional, but desirable. You can refer to the clarifications government agencies, the Federal Tax Service itself, judicial practice.

If the document is submitted on behalf of the organization, it is signed by its executive body (director, general director). Complaints from individual entrepreneurs and citizens are signed by them personally. If there is a representative with a power of attorney issued for him, he has the right to sign the objections himself. The power of attorney must specify the authority to file objections.

Thus, a sample of objections to the act of a cameral tax audit can be downloaded from the link at the beginning of the article. A sample of objections to an on-site tax audit act is drawn up in the same way, so there is no point in duplicating the document, in both cases the submitted sample will do.