The costs associated with the implementation of tax control. Costs associated with the implementation of tax control Reimbursement of costs associated with tax control
Tax Code of the Russian Federation Part 1 State Duma
Chapter 17. Costs associated with the implementation of tax control
Article 130. The composition of the costs associated with the implementation of tax control
The costs associated with the implementation of tax control, consist of the following amounts:
paid to witnesses, translators, specialists, experts and witnesses by the tax authorities;
Article 131. Payment of amounts due to witnesses, translators, specialists, experts and witnesses
1. Witnesses, interpreters, specialists, experts and attesting witnesses shall be compensated for the expenses incurred by them in connection with their appearance at the tax authority travel expenses, rent living quarters and daily allowances are paid.
2. Translators, specialists and experts receive remuneration for the work performed by them on behalf of the tax authority, if this work is not part of their official duties.
3. For employees called to the tax authority as witnesses, it is kept for the time of their absence from work in connection with the appearance at the tax authority wage at the main place of work.
4. Amounts due to witnesses, translators, specialists, experts and witnesses shall be paid by the tax authority upon the performance of their duties.
The procedure for payment and the amount of amounts payable are established by the Government Russian Federation and financed from federal budget Russian Federation.
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Article 131. Payment of amounts due to witnesses, translators, specialists, experts and witnesses
Commentary on Article 131
Tax control is one of the most important and at the same time conflict areas of tax law.
Tax control is, on the one hand, carried out in accordance with the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation, the Tax Code of the Russian Federation) the activities of tax authorities to monitor compliance by taxpayers and tax agents with legislation on taxes and fees. On the other hand, tax control is one of the main institutions of tax law, which combines legal norms that regulate the activities of tax authorities to control compliance with and enforcement of legislation on taxes and fees.
The purpose of tax control is to establish the legitimacy of the behavior of taxpayers and tax agents. That is why tax control is directly related to the protective function of tax law. It aims to correct any violation of the law in tax area; in the course of tax control, tax offenses are identified in order to then bring the offender to tax liability.
One of the most important principles of tax control is the requirement of legality, which is understood, on the one hand, as the focus of control measures on establishing the legality of the behavior of taxpayers and tax agents as controlled participants in tax legal relations, and on the other hand, as compliance by tax authorities with procedural rules when making tax events. The principle of the legality of tax control acquires a more detailed and concrete sound in the principles of documenting the results of tax control and proceduralization of control measures.
In pursuance of the requirement of legality and in development of the principle of proceduralization of tax audits, the Tax Code of the Russian Federation introduces into the scenario of tax audits a number of additional participants in legal relations on tax control, subjects of tax procedural law participating in certain tax control measures.
The Tax Code of the Russian Federation (clauses 11 - 12, clause 1, article 31 of the Tax Code of the Russian Federation) gives the tax authorities the right to involve a whole category of persons who assist in the implementation of tax control for tax control activities: specialists, experts, translators, witnesses, witnesses.
The listed persons may take part in various tax control measures, including in-house and on-site tax audits, if necessary. In the course of tax control, they assist the tax authorities in forming the evidence base: they contribute to obtaining information proving the fact of a tax offense and fixing the existing evidence in a proper way.
When carrying out specific actions to exercise tax control in the cases provided for by the legislation on taxes and fees (as a rule, during the inspection and seizure), attesting witnesses must be called (Article 98 of the Tax Code of the Russian Federation). The participation of attesting witnesses in tax control measures guarantees the observance of the rights of taxpayers, their presence in the tax process confirms the legitimacy and correctness of certain procedural actions.
Let us briefly introduce each of the listed persons contributing to the implementation of tax control.
A witness in tax law is an individual who may be aware of any circumstances that are important for the implementation of tax control, investigation and resolution of a tax offense case, and who is called to testify.
Witnesses are those who are not interested in the outcome of the case. individuals, attracted to participate in the tax control directly at the place of its conduct, certifying the facts and results of the action.
The translator is an individual who is fluent in the language, knowledge of which is necessary for the implementation of translation in the process of tax control measures.
Similar functions in the process of tax control are performed by experts and specialists. These two categories of tax control facilitators differ in that they have special knowledge in a certain area, which may be useful in the implementation of certain tax control measures.
The participation of an expert in the tax process necessarily ends with the preparation by the expert on his own behalf of a written opinion. It outlines the research conducted by the expert, his conclusions and substantiates the answers to the questions posed. Thus, the expert is directly involved in the formation of the evidence base.
As for the specialist, he participates in tax control activities to the extent that officials of the tax authorities lack certain skills, knowledge and skills. Most often, specialists are involved to assist and explain in the process of detecting, seizing documents and in connection with the use of technical means. Unlike an expert, a specialist does not give independent conclusions; with his knowledge and skills, he only assists in tax control.
Legislation on taxes and fees regulates the issues of costs associated with tax control, devoting a separate chapter to these issues (Chapter 17 of the Tax Code of the Russian Federation).
In accordance with Art. 131 tax code The Russian Federation adopted Decree of the Government of the Russian Federation of March 16, 1999 N 298<331>, which approved the Regulation on the procedure for payment and the amount of amounts payable to witnesses, translators, specialists, experts and witnesses involved in participating in the production of actions to implement tax control.
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<331>Collection of legislation of the Russian Federation. 1999. N 13. Art. 1601.
According to the aforementioned Decree of the Government of the Russian Federation, witnesses, interpreters, specialists, experts and attesting witnesses who are involved in the proceedings for the implementation of tax control are reimbursed for the travel expenses incurred by them in connection with the appearance at the tax authority, the rental of residential premises and are paid per diem.
In a relationship travel expenses It has been established that reimbursement to witnesses, interpreters, specialists, experts and attesting witnesses of travel expenses to the place of appearance and back to the place of residence is made on the basis of travel documents, but not higher than:
- the cost of travel by public transport (except taxis) - on highways and dirt roads;
- the cost of travel in a reserved seat (compartment) car - according to railway;
– fares in cabins paid for by groups V – VIII tariff rates on ships of sea transport, and in a cabin of category III on river ships - along waterways.
When using air transport, the cost of an economy class ticket is reimbursed.
These persons are paid the costs of travel by public transport (except taxis) to the railway station, pier, airport, if they are outside the respective settlement.
In addition to the costs of travel to the place of appearance and back to the place of residence, upon presentation of the relevant documents, the cost of pre-sale travel documents, expenses for the use of bedding.
In case of non-submission of travel documents to the said persons, facilitating the implementation of tax control, the costs of travel at the minimum fare for travel by the relevant modes of transport to the place of appearance and back to the place of residence are paid. To make such payments, it is necessary to obtain the permission of the head (deputy head) of the tax authority that calls the persons who assist in the implementation of tax control.
In a relationship living expenses and daily allowance it is established that the corresponding payments to witnesses, translators, specialists, experts and witnesses are made in accordance with Decree of the Government of the Russian Federation of October 13, 2008 N 749 “On the peculiarities of sending employees on business trips”<332>.
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<332>Collection of legislation of the Russian Federation. 2008. N 42. Art. 4821.
The hotel reservation fee is refundable at the rate of 50% of the refundable room rate per night.
At the same time, daily allowances are not paid if the witness, interpreter, specialist, expert or witness has the opportunity to return to their place of residence every day.
The legislation on taxes and fees proceeds from the fact that the work that translators, specialists and experts perform during tax control should be paid, unless this work is part of their official duties. In this case, the involvement of these persons is carried out on a contractual basis.
The said persons assisting in tax control shall receive monetary remuneration for the work performed by them on behalf of the tax authority, according to the rates of payment approved by the Ministry of Labor and Social Development of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation. The relevant norms are enshrined in the Decree of the Ministry of Labor of Russia dated February 18, 2000 N 19 “On approval of the norms for payment of monetary remuneration for translators, specialists and experts involved in participating in the production of actions to implement tax control”<333>.
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<333>Bulletin of regulations federal bodies executive power. 2000. No. 17.
For persons summoned to the tax authority as witnesses, during their absence in connection with this, the place of work (position) and average earnings at the main place of work.
Persons who do not work under an employment contract, for distracting them from work or ordinary activities, in addition to the reimbursement of expenses incurred, receive a monetary reward in the amount of the daily allowance established for business trips on the territory of the Russian Federation. In accordance with Decree of the Government of the Russian Federation of October 2, 2002 N 729 “On the amount of reimbursement of expenses associated with business trips on the territory of the Russian Federation, to employees who have concluded an employment contract for work in federal government bodies, government employees off-budget funds Russian Federation, federal public institutions” <334>expenses for the payment of daily allowances are set at 100 rubles for each day of being on a business trip.
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<334>Collection of legislation of the Russian Federation. 2002. N 40. Art. 3939.
The basis for the payment of amounts due to witnesses, translators, specialists, experts and witnesses is the decision of the head (deputy head) of the tax authority that involved these persons to participate in the production of actions to implement tax control.
Payment of the amounts to the said persons shall be made upon the fulfillment of their duties within the limits of the funds allocated to the tax authority from the federal budget.
In conclusion, we note that, despite the fact that guarantees and compensations for witnesses, translators, specialists, experts and witnesses in connection with the appearance at the tax authority or work on its behalf are provided for in Art. 131 of the Tax Code of the Russian Federation, when regulating the relevant relations, the provisions of Art. 170 of the Labor Code of the Russian Federation (“Guarantees and compensations for employees involved in the performance of state or public duties”), since this norm takes precedence over other federal laws (Article 5 of the Labor Code of the Russian Federation).
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Chapter 17. COSTS ASSOCIATED WITH THE IMPLEMENTATION OF TAX CONTROL
The costs associated with the implementation of tax control, consist of the amounts: (as amended by the Federal Law of 09.07.1999 N 154-FZ) paid to witnesses, translators, specialists, experts and witnesses by the tax authorities; court costs.
1. Witnesses, interpreters, specialists, experts and attesting witnesses shall be compensated for the travel expenses incurred by them in connection with their appearance at the tax authority, the rent of living quarters, and shall be paid daily allowances.
2. Translators, specialists and experts receive remuneration for the work performed by them on behalf of the tax authority, if this work is not part of their official duties.
3. Employees summoned to the tax authority as witnesses shall retain their wages at their main place of work during their absence from work in connection with their appearance at the tax authority. The paragraph is excluded. - the federal law dated 09.07.1999 N 154-FZ.
4. Amounts due to witnesses, translators, specialists, experts and witnesses shall be paid by the tax authority upon the performance of their duties. The payment procedure and amounts payable are established by the Government of the Russian Federation and financed from the federal budget of the Russian Federation.
Article 130. The composition of the costs associated with the implementation of tax control
Commentary on Article 130
The Arbitration Procedure Code of the Russian Federation in articles 101 - 112 considers the concept of court costs, which are part of the costs in a case of a tax offense. The administrative procedure for paying amounts to participants in out-of-court consideration of tax disputes is determined in Article 131 of the Tax Code of the Russian Federation and Decree of the Government of the Russian Federation of March 16, 1999 N 298 adopted in accordance with it.
1. Expenses are expenses that are necessary for the correct, complete and objective implementation of tax control. By general rule they are calculated on the basis of the norms and limits established by the current legislation (for example, the daily allowance, for reimbursement of travel expenses). These costs fall into two broad categories:
Costs associated with the payment of amounts due to the witness, translators, specialists, experts, witnesses;
Legal fees (see below for more on this);
Tax control has various forms and is expressed in:
1) implementation of tax audits;
2) obtaining explanations from taxpayers, tax agents;
3) verification of accounting and reporting data;
4) inspection of premises and territories;
5) other forms of control.
It should be noted that the tax authorities also exercise control over the observance of tax laws by banks. In this regard, the costs associated with this form of tax control are also included in the "costs" mentioned in the commented article.
2. The rules of paragraph 2 of the commented article say:
a) on the amounts payable only to persons directly specified in paragraph 2 of Article 130 of the Tax Code of the Russian Federation;
b) it is no coincidence that the commented article refers to the amounts paid. In other words, the legislator clearly established the monetary form of covering costs;
c) the rules of paragraph 2 of the commented article have the character of a general establishment: the reimbursement of expenses associated with the appearance of the persons specified in the article in the tax authority is devoted to the rules of paragraph 1 of Article 131 of the Code;
the payment of remuneration to translators, specialists, experts (in accordance with an agreement concluded with them in the prescribed manner) is covered by the rules of paragraph 2 of Article 131 of the Code;
d) the costs do not include amounts payable to persons by their employers (although these amounts are related to the distraction of employees from the performance of their labor functions).
3. When characterizing the rules of paragraph 3 of the commented article, it must be borne in mind that:
a) the composition of court costs is determined by the norms of the CPC, APC, CPC, as well as by-laws issued by the Government of the Russian Federation, the Ministry of Finance of Russia, and other state bodies in accordance with the CPC, APC, CPC;
b) unlike the costs mentioned in paragraph 2 of Article 130 of the Tax Code of the Russian Federation (they are reimbursed by the tax authorities, which is expressly provided for in paragraph 4 of Article 131 of the Tax Code of the Russian Federation), legal costs (mentioned in paragraph 3 of Article 130 of the Tax Code of the Russian Federation) are paid exactly court;
c) the rules of this Code shall apply to the procedure for payment, the amount of reimbursement of expenses referred to in paragraph 2 of Article 130 of the Tax Code of the Russian Federation.
In turn, when paying court costs, one should be guided by the norms of procedural legislation.
Article 131. Payment of amounts due to witnesses, translators, specialists, experts and witnesses
Commentary on Article 131
Decree of the Government of the Russian Federation of March 16, 1999 N 298 approved the Regulations on the procedure for payment and the amount of amounts payable to witnesses, translators, specialists, experts and attesting witnesses involved in the production of tax control actions. The specified persons involved in the performance of actions to implement tax control shall be reimbursed for the travel expenses incurred by them in connection with the appearance at the tax authority, the cost of renting a dwelling, and shall be paid per diem. Payment of amounts to witnesses, translators, specialists, experts and attesting witnesses involved in the performance of tax control actions is made when they perform their duties on the basis of a decision of the head (deputy head) of the tax authority that involved these persons to participate in the production of tax control actions. implementation of tax control, within the funds allocated to the tax authority from the federal budget.
1. Before proceeding directly to the commentary to paragraph 1 of Article 131 of the Tax Code of the Russian Federation, it is necessary to introduce the following definitions:
a) a witness is any natural person who may be aware of any circumstances that are significant for the implementation of tax control. His testimony is recorded in the protocol. Calling a witness, as well as giving evidence by him, are governed by the rules of Article 90 of the Tax Code of the Russian Federation;
b) as an interpreter, you can involve a person (both an organization and an individual) who is not interested in the outcome of the case, who knows the language, knowledge of which is necessary for translation, or who understands the signs of a dumb or deaf person. The interpreter is attracted by the tax authority to participate in the case in accordance with Article 97 of the Tax Code of the Russian Federation;
c) a specialist is a person with special knowledge and skills who is not interested in the outcome of the case;
d) an expert is a person who is able to explain issues arising in the course of tax control, as he has the necessary special knowledge in science, art, technology or craft. The involvement of an expert is carried out in accordance with the rules of Article 95 of the Tax Code of the Russian Federation;
e) Witnesses are any individuals who are not interested in the outcome of the case. They are called to participate in the implementation of tax control in accordance with Article 98 of the Tax Code of the Russian Federation and can be questioned based on the results of actions carried out in their presence;
f) tax authorities are not only tax authorities at the place of registration of a person in respect of which one or another form of tax control is carried out, but also other authorities endowed by this Code with the right to appoint (summon) the above-mentioned persons (for example, tax authorities conducting a counter tax audit; tax authorities carrying out a control tax audit);
g) expenses are reimbursed to the extent that they are related to the attendance:
directly to the tax authority (for example, to be interviewed as a witness);
to the place of carrying out one or another tax action carried out with their participation (for example, departure to the place of examination of the object of taxation);
h) Only those expenses that are incurred are subject to reimbursement.
At the same time, as a general rule, the mentioned expenses are compensated in the amounts in which they are actually (actually) incurred, but in any case, the amount of compensation cannot exceed the maximum norms established by the current legislation. The expenses are reimbursed for:
Travel to the location of the tax authority or to the place of the relevant tax action and back;
Renting accommodation (for example, in a hotel). This expense occurs in cases where a witness, expert, other persons travel to another locality;
Daily allowance. It is necessary to proceed precisely from those marginal rates of compensation that are in force at the moment when these expenses are actually incurred (and in established cases, when they are reimbursed).
2. The features of the rules set out in paragraph 2 of the commented article are that:
a) they cover the participation in tax control only of translators, specialists and experts. The fact is that, as a general rule, these persons are involved in the case on a contractual basis. One of the terms of the contract for the provision of paid services (which is concluded in this case) is the payment of remuneration;
b) remuneration is paid when:
The work performed by an expert, specialist, translator was carried out precisely on behalf of the tax authority;
This work is not part of their job responsibilities.
3. Let's analyze paragraph 3 of the commented article.
Let's introduce one more definition: employees are any individuals who are in labor relations with employers (an organization and an individual);
a) in accordance with Article 170 of the Labor Code, employers are obliged to freely release their employees to perform their state and public duties in cases provided for by applicable law. This also applies to cases of summoning witnesses to the tax authority, who retain not only their place of work, but also their average earnings;
b) in paragraph 3 of the commented article, it is not accidentally emphasized that wages are maintained at the main place of work: these rules should not be extended to earnings received, say, for part-time work with another person, for one-time work performed under civil law transactions ;
c) the rules of paragraph 3 of the commented article should not be broadly applied: in them we are talking specifically about maintaining the salaries of witnesses (during their absence from work due to their appearance at the tax authority), but not experts, translators, specialists, witnesses.
4. When analyzing the rules of paragraph 4 of the commented article, the following must be taken into account:
a) the tax authority makes the actual payment of amounts due to witnesses, translators, specialists, experts, witnesses, only after these persons have fulfilled their duties, which can be judged on the basis of the texts of contracts (concluded, for example, with an expert, specialist), protocols and other materials and circumstances;
b) paragraph 2 of paragraph 4 of this article contains two very important prescriptions:
That the procedure for paying amounts to witnesses, attesting witnesses, experts, specialists, translators is established by the Government of the Russian Federation;
The fact that the financing of the expenses mentioned in paragraph 4 of the commented article is carried out at the expense of the federal budget of the Russian Federation (even if a tax audit was carried out, say, on local taxes).