176 of the Tax Code of the Russian Federation. Arbitration Court of the Stavropol Territory
/ "Arbitration disputes", 2007, N 4 /
N.G. Kuznetsova
N.G. Kuznetsova, judge of the Federal Arbitration Court of the North-West District.
The norms of Article 176 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation), devoted to the reimbursement of value added tax from the budget (by offset or refund), the accrual and payment of interest for violation of the terms of refund from the budget of value added tax, during recent years with confidence can be attributed to the number of the most frequently evaluated and studied by courts. This is explained by the fact that there are, perhaps, no questions that would be quite clearly and unambiguously resolved by the norms of the said article.
However, before discussing these issues, it is necessary to recall the special nature of the legal relationship referred to in Article 176 of the Tax Code of the Russian Federation.
The special nature of legal relations
As a general rule, the Tax Code of the Russian Federation regulates relations between the state and the persons charged with the obligation to pay taxes to the budget and tax payments... Organizations and citizens, including those with the status of an individual entrepreneur, in the presence of objects of taxation, calculate and pay taxes to the budgetary system, and the state, represented by authorized bodies, monitors the observance of the legislation on taxes and fees by these persons.
Taxpayers can allow excessive payments, and tax authorities can unjustifiably collect taxes to the budget. In this case, Articles 78 and 79 of the Tax Code establish the procedure and terms for refunding overpaid (collected) amounts from the budget. For violation of the terms for the return of excessively paid (collected) taxes to the budget, the taxpayer is paid interest according to the rules specified in Articles 78 and 79 of the Tax Code of the Russian Federation.
The above rules relate to the consequences of untimely return to the taxpayer of what he paid or collected from him directly to the budget.
At the same time, in a number of cases specially provided for by the Tax Code of the Russian Federation, the taxpayer has the right to a refund from the budget of the amounts of tax that he did not pay to the budget.
One of them is given in Chapter 21 "Value Added Tax" of the Tax Code of the Russian Federation.
In accordance with Article 173 of the named chapter of the Code, taxpayers calculate the amount of value added tax payable to the budget in next order: the total amount of tax calculated based on the results of each tax period according to the rules of Article 166 of the Code, is reduced by the amount tax deductions stipulated by Article 171 of the Tax Code of the Russian Federation. The difference is payable to the budget.
At the same time, often the amount of tax deductions (which means the amount of tax presented to the taxpayer by sellers of goods (works, services), as well as property rights in the territory of the Russian Federation, or paid by the taxpayer when importing goods into the customs territory under the customs regimes listed in paragraph 2 of Article 171 Tax Code of the Russian Federation) exceeds the amount of tax calculated based on the results of a specific tax period in relation to all transactions recognized as an object of taxation.
A positive difference in favor of the taxpayer is formed, and Chapter 21 of the Tax Code of the Russian Federation determines the procedure for handling such a difference.
The term "refund"
Clause 2 of Article 173 of the Tax Code of the Russian Federation states that a positive difference is subject to reimbursement to the taxpayer in the manner and on the conditions provided for in Article 176 "Procedure for refunding tax" of the Tax Code of the Russian Federation.
Moreover, Article 176 as amended, in effect until January 1, 2007, provided for two different procedures for the formation of such a "positive difference."
In accordance with paragraph 1 of Article 176 of the Tax Code of the Russian Federation, relating to the procedure for refunding tax on a declaration in the domestic market, a positive difference arises when the amount of tax deductions of the total tax amount calculated on transactions recognized as an object of taxation is exceeded.
Clause 4 of Article 176 of the Tax Code of the Russian Federation, which regulated the procedure for refunding tax on transactions in the sale of goods (works, services) taxed at a tax rate of 0 percent, provided for the refund of tax amounts recognized as tax deductions that relate to transactions taxed at a tax rate of 0 percent, and also the amounts of tax paid in accordance with subparagraph 6 of article 166 of the Tax Code of the Russian Federation. That is, since the proceeds from such sale of goods (works, services) are taxed at a tax rate of 0 percent, there is no amount calculated from the proceeds from such operations, respectively, the entire amount of tax paid to suppliers of goods, works, services (the amount of tax deductions) is presented to be reimbursed from the budget.
Clause 1 of Article 176 of the Tax Code of the Russian Federation indicates two ways to compensate for such a positive difference - offset and return.
Since the legislator introduces the special term "compensation" when the taxpayer has a positive difference in value added tax, thereby emphasizing the special nature of its occurrence, since it comes not on the excessive payment by the taxpayer to the budget of the tax calculated in accordance with Article 166 of the Tax Code of the Russian Federation, but concerns the amounts of tax paid to other persons in a different manner - to suppliers of goods (works, services), at customs as part of customs payments, etc., if refund or offset of tax on the basis of article 176 of the Tax Code of the Russian Federation in judicial acts, the following turns are applied: "tax refund by way of refund from the budget", "offset in the manner of tax refund".
The Supreme Arbitration Court of the Russian Federation, in its Resolution (dated 06.06.2000 N 9107/99), adopted back in 2000, distinguished between the concepts of "excessive payment", "overpayment of value added tax" and "refund of value added tax paid to suppliers of goods (works, services) ".
The Resolution states that in accordance with Article 78 of the Tax Code of the Russian Federation, the amount of overpaid tax is subject to refund to the taxpayer at the expense of the budget (extra-budgetary fund) to which the overpayment occurred. In case of violation of the terms of refund for the amount of overpaid tax that was not refunded to set time, interest is charged for each day of violation of the repayment period. That is, the basis for the application of this rule is the overpayment of tax to the budget ( extrabudgetary fund). Payment of taxes in accordance with Article 58 of the Tax Code of the Russian Federation is made in cash or cashless form... The payment of tax in accordance with Articles 45 and 60 of the Tax Code of the Russian Federation is understood as the order of the taxpayer to the bank in compliance with certain conditions for the transfer of tax to the relevant budgets.
Clause 3 of Article 7 of the Law of the Russian Federation "On Value Added Tax" (as well as Article 176 of the Tax Code of the Russian Federation in force since 2001) provides for the refund of the taxpayer from the budget for the amount of tax paid by him to suppliers. This norm regulates relations not on paying tax to the budget and returning it in case of overpayment, but on relations specific to this particular tax on refunding the amount of tax paid to suppliers. material values, that is, other business entities that are payers of this tax.
Taking into account the foregoing, the Supreme Arbitration Court of the Russian Federation recognized that there are no grounds for considering the indicated amounts overpaid to the budget and applying the provisions of Article 78 of the Tax Code of the Russian Federation relating to the accrual of interest to disputed legal relations.
Two procedures for tax refunds before 2007
Until 2007, taxpayers, in the presence of transactions for the sale of goods (works, services) taxed at a tax rate of 0 percent, were required to submit two separate declarations: 1) for transactions in the sale of goods (works, services) taxed at tax rates exceeding 0 percent (10%, 18%), most often referred to as a declaration for the internal market or a general declaration, and 2) for transactions in the sale of goods (works, services) taxed at a tax rate of 0 percent.
Accordingly, Article 176 of the Tax Code of the Russian Federation contained two independent procedures for tax refund: for transactions in the sale of goods (works, services) in the domestic market and for transactions in the sale of goods (works, services) taxed at a tax rate of 0 percent.
The first regulated the norms of paragraphs 1 - 3, and the second - the norms of paragraph 4 of Article 176 of the Tax Code of the Russian Federation.
The main differences between these orders were as follows.
First, the period for the emergence of the right to use in the interests of the taxpayer (offset or refund) of the amount of tax to be refunded declared in the declaration is defined differently.
Cash in the amount of a positive difference that a taxpayer had on a value-added tax declaration in the domestic market immediately after the taxpayer submitted such a declaration was recognized as taxpayer's cash, as evidenced by the norm of paragraph 2 of Article 176 of the Tax Code of the Russian Federation, as amended up to 2007 . Here it is indicated the obligation of the tax authority to send the amount of the positive difference reflected in the received tax authority declarations, within three calendar months for the performance of the taxpayer's obligations to pay taxes and fees, penalties, repayment of arrears, amounts of tax sanctions to be credited to the same budget.
Consequently, the tax authority, within three months after receiving the declaration, had the right and was obliged to independently offset the amount of tax presented in the declaration for reimbursement against the taxpayer's debt on taxes, penalties and tax sanctions, as well as the fulfillment of the taxpayer's current tax obligations, but At the end of three calendar months, the amount that was not credited was subject to refund to the taxpayer upon his written application.
The Code did not provide for a special confirmation by the tax authority of the taxpayer's right to such a positive difference.
This issue was resolved differently on the sale of goods (works, services) taxed at a tax rate of 0 percent.
Clause 4 of Article 176 of the Tax Code of the Russian Federation provided for the refund of the tax no later than three months, counting from the date of submission of the declaration with the documents provided for in Article 165 of the Tax Code of the Russian Federation. During this period, the tax authority was obliged to check the validity of the application tax rate 0 percent and tax deductions and, based on the results of the audit, make a decision on reimbursement by offset or refund of the corresponding amounts, or on refusal (in whole or in part) to reimburse. In the event that the taxpayer has tax arrears and penalties, as well as arrears in the awarded sanctions, subject to crediting to the same budget, the tax authority was obliged to offset. In the absence of such debts, the amounts subject to reimbursement were subject to offset against current tax payments of the same budget level or returned to the taxpayer at his request.
That is, until the tax authority makes a decision on reimbursement or before the expiration of the three-month period allotted for checking the declaration and the documents submitted with it, the amount of tax indicated in the declaration for reimbursement is not considered reimbursable to the taxpayer in any way.
Understanding this for a long time presented a certain difficulty for taxpayers, as evidenced by numerous Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation (from 17.10.2006 N 5370/06, from 27.02.2006 N 10606/05, from 07.02.2006 NN 11608/05, 13644 / 05, 11626/05, 7308/05, 7299/05, dated 14.12.2004 N 3521/04).
Taxpayers, while filing a declaration on the internal market and a declaration on transactions taxed at a tax rate of 0 percent, and the presence of the first amount of tax payable, and for the second amount of tax to be refunded from the budget, paid only the difference between the amounts or did not pay tax at all if the amount to be reimbursed significantly exceeded the amount of tax indicated for payment on the declaration in the internal market.
The taxpayers challenged the claims of the tax authorities to pay the tax in full according to the declaration on the internal market in arbitration courts. In applications to the court, taxpayers argued that the amount of tax liabilities is determined based on the results of each tax period and is calculated for all taxable transactions reflected in both declarations. Therefore, before the inspection makes a decision on the refusal to reimburse the value-added tax on tax return at a tax rate of 0 percent, the taxpayer has the right to offset the amount of value added tax payable on the tax return in the domestic market for the same tax period when calculating the amount tax liability in the aggregate, arising on the basis of Article 171 of the Tax Code of the Russian Federation.
The Supreme Arbitration Court of the Russian Federation did not agree with the position of taxpayers, indicating that for transactions subject to value-added tax at a tax rate of 0 percent by virtue of subparagraphs 1 - 6 and 8 of paragraph 1 of Article 164 of the Tax Code of the Russian Federation, deductions are made in the form of compensation on the basis of a separate tax declaration and after verification by the tax inspectorate of the documents submitted by the taxpayer with the declaration for their compliance with the requirements of Article 165 of the Tax Code of the Russian Federation.
Secondly, the purpose of the three-month period established by paragraph 2 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation is different, as well as the start date of its calculation.
According to clause 2 of Article 176 of the Tax Code of the Russian Federation, within a three-month period, the tax authority sends the amount of tax to be reimbursed to the taxpayer for the fulfillment of his tax obligations.
In this case, a three-month period is considered to be three calendar months following the expired tax period.
The three-month period provided for by paragraph 4 of Article 176 of the Tax Code of the Russian Federation is established for the tax authority to check "the validity of the application of the 0 percent tax rate and tax deductions."
These three months, in contrast to clause 2 of Article 176 of the Tax Code of the Russian Federation, are calculated from the date the taxpayer submits a tax declaration and documents provided for in Article 165 of the Tax Code of the Russian Federation.
The tax authorities often do not take into account this difference and when determining the period of delay in the tax refund on the tax return on the domestic market, the beginning of the three-month tax refund period is mistakenly considered the date of submission of the tax return, and not the day following the date of the end of the tax period for which the tax return was submitted. cost (Resolution of the Federal Arbitration Court of the North-West District of June 29, 2006 in case No. A56-54145 / 2005).
Thirdly, there is a different order of offset of payments depending on their type (it should be remembered that offset is carried out only in relation to payments to be credited to the same budget).
In paragraph 2 of Article 176 of the Tax Code of the Russian Federation, payments for the payment of which the amount subject to reimbursement is sent are given in the following sequence:
- fulfillment of the obligation to pay taxes and fees (including taxes paid in connection with the movement of goods across the customs border of the Russian Federation);
- payment of interest;
- repayment of arrears;
- the amount of tax penalties awarded to the taxpayer.
And in paragraph 4 of Article 176 of the Tax Code of the Russian Federation, a different sequence of offset is provided:
- arrears and interest on value added tax;
- arrears and penalties for other taxes and fees;
- arrears in the awarded sanctions;
- current payments for value added tax and (or) other taxes and fees, as well as taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the implementation of works (services) directly related to the production and sale of such goods ...
Even a cursory comparison of the above lists reveals significant differences in them.
To what extent were these discrepancies taken into account by the tax authorities when carrying out offsets under paragraphs 1 - 3 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, based on the existing judicial practice, it's hard to say.
Fourth, the deadline for filing an application for a tax refund is regulated differently.
Both orders provide for two methods of tax refund - offset and refund, however, the right to a tax refund is conditional on the presence of an application for refund submitted by the taxpayer.
Moreover, not all courts considered the existence of an application for tax refund submitted by the taxpayer to the tax authority as a condition for its refund by returning it to the current account.
The Supreme Arbitration Court of the Russian Federation in the Resolutions of November 28, 2006 N 9355/06, of November 29, 2005 N 7528/05, of December 21, 2004 N 10848/04, confirmed the need to submit such an application, indicating that before receiving the taxpayer's application, in which contains an explicitly expressed will to refund tax amounts to him, the tax authority does not have an obligation to return tax subject to refund.
But the will of the taxpayer can be expressed and should be taken into account not only when submitting an application for a refund directly to the tax authority. In Resolution No. 1363/06 of 06.06.2006, the Supreme Arbitration Court of the Russian Federation recognized the taxpayer as having complied with the requirement of Article 176 of the Tax Code of the Russian Federation on filing an application for refund as a condition for refunding tax by refund when the taxpayer states this requirement in an application filed with the arbitration court. Organization in addition to the requirement to invalidate the decision tax office on refusal to refund tax on a declaration at a tax rate of 0 percent, asked to oblige the tax authority to refund the tax by returning it to the current account. Prior to this, an application was not submitted directly to the tax authority for a tax refund. The Supreme Arbitration Court of the Russian Federation recognized that the purpose of the taxpayer's appeal to the court is to reimburse the tax by refunding funds that were not paid to him due to the unlawful inaction of the state body. The will to reimburse the tax from the budget by way of a refund can be expressed in an application to the court.
The resolution resolved the long-standing issue of the obligation of preliminary, before going to court with a demand for the obligation to reimburse the tax in accordance with Article 176 of the Tax Code of the Russian Federation by returning, filing an application with the tax authority. The Supreme Arbitration Court of the Russian Federation confirmed the right of a taxpayer to put forward a claim for a tax refund in an application filed with a court, and in cases where an application for tax refund by refund was not submitted to the tax authority.
Article 176 of the Tax Code of the Russian Federation does not unequivocally determine the date (term, period) of filing an application for a tax refund to the tax authority.
So, in the first paragraph of clause 3 of Article 176 of the Tax Code of the Russian Federation, it is indicated that after three calendar months following the expired tax period, the amount that was not credited is subject to refund to the taxpayer at his request.
Does this mean that the taxpayer can submit such an application even before the expiration of the three-month period in order to shorten the period for refunding the tax amount to the current account?
From the second paragraph of clause 3 of Article 176 of the Tax Code of the Russian Federation follows the obligation of the tax authority, within two weeks after receiving the application, to decide on the return of the tax amount from the relevant budget and, at the same time, to send the decision for execution to the appropriate federal treasury body.
And if a taxpayer submitted an application for a tax refund two weeks before the expiration of a three-month period, does the right to a tax refund arise on the very first day after it, or is it necessary to add two weeks to the three-month period?
In the Federal Arbitration Court of the Northwestern District, there are two opposing points of view, and their supporters do not deny that the taxpayer has the right to submit an application for a tax refund before the expiration of the three-month period.
According to the first point of view, when submitting an application before the expiration of a three-month period (no later than two weeks, including simultaneously with the declaration), two weeks for making a decision on refund are not added, since “a two-week period for making a decision on refund is absorbed by a three-month period, established by the first paragraph of clause 3 of Article 176 of the Tax Code of the Russian Federation "(Resolutions of the Federal Arbitration Court of the North-Western District of 09.21.2006 N A05-4743 / 2006-13, of 08.24.2006 N A56-40874 / 2005, of 02.20.2006 N A56- 40107/04).
A different position is set out in the Resolution of the Federal Arbitration Court of the North-West District of April 26, 2006 N A56-39759 / 2005. The court indicated that "since the application for a tax refund was filed simultaneously with the tax return, the maximum period for refunding value added tax in the domestic market is three months established for a cameral tax audit declarations, plus two weeks for making a decision on the return of the specified amount and sending the decision for execution to the appropriate federal treasury body, plus eight days allotted for the treasury to receive the tax authority’s decision, plus two allotted to the treasury for transferring the corresponding amounts to the taxpayer's account. ”
This issue was not submitted to the Presidium of the Supreme Arbitration Court of the Russian Federation.
But I would like to once again draw attention to the two norms of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, cited in the first and second paragraphs of paragraph 3 of Article 176 of the Tax Code of the Russian Federation.
In the first paragraph of clause 3, it is indicated that after three calendar months following the expired tax period, the amount that was not credited shall be refunded to the taxpayer upon his written application.
That is, it is directly indicated on the return of the unaccounted amount after three months.
At the same time, the second paragraph provides for the obligation of the tax authority, within two weeks after receiving the application, to make a decision on refunding the tax to the taxpayer and, within the same period, to send the opinion for execution to the appropriate federal treasury body.
Should it follow that a two-week period is set not only for making a decision, but also for sending an opinion to the appropriate body of the federal treasury?
If this is the case, then the two weeks provided for by paragraph two of clause 3 of Article 176 of the Tax Code of the Russian Federation may increase the period for the refund of the tax, regardless of when the application for its refund is submitted, since in the case of a decision on refund simultaneously with the decision on refund of tax in the last day of the three-month period, the tax authority has the right to send this decision within two weeks to the treasury authority.
Even less certainty about legal regulation the deadline for filing an application for a refund of a tax refundable on a declaration on transactions taxed at a tax rate of 0 percent.
Clause 4 of Article 176 of the Tax Code of the Russian Federation also does not establish the date (period) of sending an application for the return of tax refundable.
From the ninth paragraph of clause 4 of Article 176 of the Tax Code of the Russian Federation, it follows that in the absence of grounds for offsetting, the amounts subject to reimbursement are subject to refund to the taxpayer at his request. And in the next, tenth, paragraph, it is indicated that the tax authority, no later than the last day of the three-month period, must make a decision on the return of tax amounts from the relevant budget and, at the same time, send this decision for execution to the appropriate federal treasury body.
Taxpayers' understanding of the norms of these two paragraphs is different.
Some believe that an application for a refund should be submitted to the tax office at the time the audit is completed and the tax authority makes a decision. Since three months is the maximum period for conducting an audit and the tax authority can complete it much earlier (judicial practice knows many examples when tax authorities conduct an audit and make decisions within a month), such taxpayers submit an application simultaneously with the declaration or after a short period of time.
Other taxpayers believe that it makes no sense to apply for a tax refund before receiving a tax refund decision.
At the same time, it is not taken into account that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain norms governing the actions of tax authorities when a taxpayer submits an application for a refund after the tax authority has passed a decision.
However, this problem was resolved by the Presidium of the Supreme Arbitration Court of the Russian Federation.
In Resolution N 7528/05 of November 29, 2005, the Supreme Arbitration Court of the Russian Federation confirmed that, within the meaning of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, a taxpayer's application for a tax refund must be submitted before the expiration of the three-month period established for a desk audit of the tax return. At the same time, the Supreme Arbitration Court of the Russian Federation drew attention to the fact that this paragraph does not contain a prohibition on the taxpayer's filing an application for a tax refund even after this period, therefore, the taxpayer is not deprived of the opportunity to submit such an application, even if at the time of its submission the tax authority made a decision to offset the tax, did not make a decision on compensation, or made a decision to refuse compensation, since the latter can be challenged in an arbitration court.
The court also concluded that the period for consideration by the tax authorities of applications for tax refunds filed by taxpayers outside the three-month period for checking the tax return has not been established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation. Therefore, for the purposes of determining the initial moment of calculating interest for late tax refunds on a declaration at a tax rate of 0 percent, paragraph 3 of Article 176 of the Tax Code of the Russian Federation can be applied, obliging the tax authority, within two weeks after receiving the application, to make a decision on the tax refund and send it for execution by the federal treasury body.
I would like to remind you of the need to verify the powers of the person who signed the application for tax refund by way of refund sent to the tax authority.
The tax authorities have information about the head and chief accountant of organizations, as well as about individual entrepreneurs, their personal signatures, therefore they check the powers of the persons who signed the applications received by the tax authority.
In judicial practice, there are disputes arising from the signing of applications for offset or refund of value added tax by unauthorized persons.
So, in February 2006, the Federal Arbitration Court of the North-West District considered the cassation appeal in case No. А42-6647 / 04-26, initiated at the request of an individual entrepreneur to invalidate the decision of the tax authority to refuse to reimburse by refunding the amount of value added tax. paid to suppliers. In the course of considering the complaint of the inspectorate, the court established that the refusal of the tax authority to reimburse the taxpayer from the tax budget by way of refund was justified by the fact that the application for the refund of the tax was signed by an unauthorized person. The Federal Arbitration Court of the Northwestern District agreed with the tax authority. The court recognized that the written application of the taxpayer is a mandatory documentary basis for the return of value added tax. The court also indicated that, by virtue of the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation, the participation of a taxpayer - natural person v tax relations through an authorized representative is possible only on the basis of a notarized power of attorney or a power of attorney equated to such in accordance with the civil legislation of the Russian Federation. By power of attorney in accordance with paragraph 1 of Article 185 Civil Code The Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) is a written authorization issued by one person to another person for representation before third parties. The power of attorney may be terminated due to the cancellation of the power of attorney by the person who issued it. The person who issued the power of attorney may at any time revoke the power of attorney or delegate, and the person to whom the power of attorney was issued may refuse it. Thus, within the meaning of the provisions of Articles 185 and 188 of the Civil Code of the Russian Federation, a representative can exercise his powers only if they are confirmed by a written power of attorney. Since in the case under consideration, the taxpayer's application signed by the authorized person did not indicate on the basis of which document (power of attorney) the representative exercised his powers, the court of cassation rejected the entrepreneur's reference to the fact that the application was signed by a duly authorized person.
Fifth, the norm on the amount of interest accrued to the taxpayer for violation of the terms of tax refund by way of refund has been formulated differently.
Clause 3 of Article 176 of the Tax Code of the Russian Federation states that in case of violation of the terms of tax refund by refund to the taxpayer, interest is calculated and paid based on 1/360 of the refinancing rate The central bank Russian Federation for every day of delay.
In paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the size of the refinancing rate of the Central Bank of the Russian Federation, on the basis of which interest is calculated, is not limited.
This circumstance cannot but give rise to disputes between tax authorities and taxpayers.
The tax authorities believe that interest should be calculated based on 1/365 of the refinancing rate of the Central Bank of the Russian Federation.
The courts do not agree with this position of the tax authorities, pointing out that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain an indication of the required number of days used in calculating interest. Applying the provisions of Article 11 of the Tax Code of the Russian Federation, as well as being guided by the explanations contained in the joint Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum The Supreme Court Of the Russian Federation dated 08.10.98 N 14/13 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds", the courts proceed from the fact that interest for violation of the tax refund deadlines provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation is charged , based on the size established by clause 3 of Article 176 of the Tax Code of the Russian Federation - 1/360 of the refinancing rate of the Central Bank of the Russian Federation (Resolution of the Federal Arbitration Court of the Moscow District of 07.11.2006 N KA-A40 / 10666-06, of 22.06.2006 N KA-A40 / 5338 -06).
New tax refund procedure from January 1, 2007
From January 1, 2007, taxpayers submit single declaration for all transactions of the sale of goods, works, services, regardless of the applicable tax rate.
Accordingly, a unified tax refund procedure has been established.
First of all, there is a mandatory office check value added tax declarations for which the amount of tax deductions exceeds the total amount of tax recognized as an object of value added tax.
It should be noted that since 2007, Article 176 of the Tax Code of the Russian Federation contains a direct indication that the audit is a cameral one and is carried out in the manner established by Article 88 of the Tax Code of the Russian Federation. And in paragraph 8 of Article 88 of the Tax Code of the Russian Federation (as amended from January 1, 2007), the right of the tax authority, when a taxpayer submits a tax return on value added tax, in which the right to a tax refund is declared, to demand from the taxpayer documents confirming in accordance with article 172 of the Tax Code of the Russian Federation, the legality of the application of tax deductions.
That is, only if the amount of tax deductions exceeds the amount of tax calculated on transactions recognized as an object of value added tax, and the taxpayer has the right to reimburse the difference from the budget in accordance with Article 176 of the Tax Code of the Russian Federation, the tax authority has the right to require the submission of documents provided for in Article 172 of the Tax Code RF.
According to paragraph 2 of Article 88 of the Tax Code of the Russian Federation, a desk audit is carried out within three months from the date the taxpayer submits a tax return and documents that, in accordance with the Code, must be attached to the tax return.
Under the new rule, upon completion of the audit, within seven days, the tax authority is obliged to make a decision on the reimbursement of the corresponding amounts, if no violations of the legislation on taxes and fees were revealed.
This is a term that was not in the previous version of Article 176 of the Tax Code of the Russian Federation.
Refunds are made by credit or refund.
As before 2007, if the taxpayer has tax arrears, other federal taxes(that is, the type of tax is now decisive, and not the level of the budget to which it is credited), arrears on the corresponding penalties and (or) fines, the tax authority independently sets off the amount of tax to be refunded against their repayment.
In the absence of grounds for the tax authority to offset the amount of tax to be refunded by the decision of the tax authority, shall be returned upon the taxpayer's application to the bank account indicated by him.
The addition about the need for the taxpayer to indicate the bank account in the application appeared only in 2007, but the tax authorities, even before its introduction, often justified the legality of the taxpayer's non-refund of tax amounts by the absence of such information in the taxpayer's application.
The courts did not recognize such an explanation as a valid reason for the inaction of the tax authority, referring to the fact that due to the obligation of taxpayers established by subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation to inform the tax authorities about opening or closing accounts, the tax authorities know information about all of its accounts. Therefore, the tax authority must refund the tax amount to any known account.
Unfortunately, in the presence of numerous judicial practice testifying to the position of the tax authorities not to return value-added tax from the budget under any pretext, the introduction by the legislator of the rule on specifying a bank account in the application for tax refund will lead to additional disputes. After all, the obligation of taxpayers, established by subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation, has not been canceled, therefore, the tax authority always has information about the taxpayer's accounts. Therefore, in the absence of an indication of a specific bank account in the taxpayer's application, in principle, nothing prevents the tax authority from making a decision on the tax refund, and in the tax refund order issued on the basis of the decision sent to the territorial body of the federal treasury, indicate any known account taxpayer.
In connection with the mention of the application for a tax refund, I would like to draw your attention to one circumstance that can also cause controversy.
A cursory glance at the new version of the norms of Article 176 of the Tax Code of the Russian Federation gives the impression that the filing of an application for a tax refund by a taxpayer is not recognized as a prerequisite for refunding tax by refunding it:
- according to clause 2 of article 176 of the Tax Code of the Russian Federation, upon completion of the audit, within seven days, the tax authority is obliged to make a decision on tax refund;
- in accordance with clause 7, the decision on offset or refund is made simultaneously with the decision on the refund of the tax amount;
- Clause 10 states that if the deadline for refunding the tax amount is violated, counting from the 12th day after the completion of a desk tax audit, following which a decision was made to reimburse (in full or in part) the amount of tax, interest is charged;
- clause 6 provides for a tax refund upon the taxpayer's application to the bank account indicated by him.
It is possible that the purpose of the introduction in paragraph 6 of Article 176 of the Tax Code of the Russian Federation of the rule that the amount to be reimbursed by the decision of the tax authority is returned at the request of the taxpayer to the bank account indicated by him, is solely the legal consolidation of the taxpayer's right to give the tax authority mandatory instructions for him about the details accounts in a specific bank to which they are to be transferred cash.
Indeed, in accordance with clause 7 of Article 176 of the Tax Code of the Russian Federation, the tax authority is obliged to make a decision on offset or refund at the same time as the decision on the refund of the tax amount (in whole or in part) is made. Consequently, taking into account the provisions of paragraph 2 of the same article on the time frame for making a decision on tax refund, in the absence of grounds for offsetting, the tax authority is obliged to make a decision on the tax refund within seven days after the end of the desk audit, regardless of whether the taxpayer has an application for tax refund.
In this case, if the taxpayer has not submitted an application indicating the account details, the tax authority has the right to indicate in the payment order sent to the treasury any account it has information about.
If the tax authority has a taxpayer's application for a tax refund to a specific bank account, he is not entitled to issue payment order otherwise. Violation of this rule may be the basis for bringing the tax authority to responsibility for losses caused to the taxpayer, on the basis of Article 35 of the Tax Code of the Russian Federation.
In addition, upon recognition of the obligation of a taxpayer to submit an application for a refund and after January 1, 2007, the issue of the procedure and timeframe for considering tax refund applications filed after the tax authority has passed a tax refund decision remains unresolved. In article 176 of the Tax Code of the Russian Federation, there are now no norms that can be applied by analogy, as was possible before 2007 (Resolution of the Supreme Arbitration Court of the Russian Federation of November 29, 2005 N 7528/05).
Most likely, this issue will be submitted for resolution judiciary.
According to the new version of article 176 of the Tax Code of the Russian Federation, the next day after the tax authority makes a decision on the tax refund, it draws up and sends an order for the tax refund to the territorial body of the federal treasury.
It also establishes the duty of the tax authority to inform writing to the taxpayer about the decision:
- about compensation (in whole or in part);
- on the offset (refund) of the tax amount subject to refund;
- on refusal of compensation -
within five days from the date of the relevant decision.
The norm of article 176 of the Tax Code of the Russian Federation in the new edition, like its previous edition, obliges the tax authority only to report on the decision taken. But since the form and content of such a message are not determined by the Code, local tax authorities have different attitudes towards fulfilling this obligation. In a number of cases, taxpayers are notified that a corresponding decision has been made on such and such a number for such and such a number. In other cases, a copy of the decision is sent. But there are often cases of non-fulfillment of the above obligation by the tax authority, and then taxpayers will learn about the decision made by the tax authority when conducting reconciliations in court sessions during the consideration of tax disputes.
Apparently, in order to eliminate this violation of the rights of taxpayers, the legislator, in the new edition of Article 176 of the Tax Code of the Russian Federation (clause 9), established a rule according to which a written message about the decision taken must be transferred to the head of the organization, individual entrepreneur, their representatives (whose powers must be formalized in accordance with the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation) in person against a receipt or in another way confirming the fact and date of its receipt.
Outlined above new order tax refund refers to cases when the tax authority did not reveal violations by the taxpayer of the legislation on taxes and fees during a desk audit.
In case of violations, the tax authority draws up a tax audit act in accordance with Article 100 of the Tax Code of the Russian Federation. This act, along with other materials of the audit, as well as the objections of the taxpayer, is considered by the head of the tax authority and a decision must be made on it in accordance with Article 101 of the Tax Code of the Russian Federation. Simultaneously with the decision to prosecute or to refuse to bring the taxpayer to responsibility, clause 3 of Article 176 of the Tax Code of the Russian Federation provides for the tax authority to issue a decision on reimbursement (in whole or in part) of the amount of tax declared for reimbursement, or a decision on the refusal to reimburse the amount of tax declared to be reimbursed.
Obviously, a tax refund in such a situation is more complicated and time-consuming.
The new version of Article 176 of the Tax Code of the Russian Federation has excluded the rule that caused difficult questions, contained in paragraph 5 of clause 4, according to which, if the tax authority does not make a decision on refusal to refund tax within the prescribed period and (or) the tax authority is not presented to the taxpayer a reasoned opinion, the tax authority is obliged to make a decision on compensation for the amount for which a decision on refusal has not been made, and notify the taxpayer of the decision taken within ten days.
One of the main questions was the question of how formally should this rule be applied?
Does the court have the right to oblige the inspectorate to make a decision on tax refund by way of refund or offset without checking the primary documents, or should the court give the tax authority an additional period for checking them?
Does the inspectorate have the right, after a court has made a decision to impose on it the obligation to reimburse the taxpayer for a specific amount of tax (regardless of the method of reimbursement), to check the documents or is it obliged to make a decision on reimbursement without checking them?
Should the court request the documents listed in Article 165 of the Tax Code of the Russian Federation, as well as those provided for in Articles 171 and 172 of the Tax Code of the Russian Federation, confirming the taxpayer's right to a tax refund? Does the court need to evaluate such documents, including if the taxpayer himself attached them to the application to the court?
If you literally interpret the rule of paragraph five of clause 4 of Article 176 of the Tax Code of the Russian Federation, then it does not follow from it the obligation of the court or the tax authority to examine the documents confirming the taxpayer's right to reimburse the amount specified in the declaration.
This rule represents the negative consequences of non-fulfillment of the duties imposed on the state-authorized body - the tax inspectorate - to make a decision within a specified (and considerable!) Period, draw up and send a reasoned opinion to the taxpayer on its basis.
The Constitutional Court of the Russian Federation, in its Ruling No. 456-O of December 21, 2004, also clarified that the rule of paragraph 5 of clause 4 of Article 176 of the Tax Code of the Russian Federation "does not provide for the possibility of tax authorities making a decision to refuse to refund value added tax after the expiration of the time periods established by the Code."
In the Resolution of the Supreme Arbitration Court of the Russian Federation of 13.02.2007 N 12943/06, the courts' attention was drawn to the unlawful disregard of the violation by the tax authority of the three-month period established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation and the decision to refuse to refund tax outside of it after the taxpayer applied to a court demanding to oblige the inspection to reimburse the tax. Unfortunately, the content of the Resolution does not make it clear the position of the Supreme Arbitration Court of the Russian Federation regarding the presence or absence of the court's obligation to examine the documents submitted to the court by the taxpayer, since the case was sent for a new consideration to the court of first instance, and was not resolved by the Supreme Arbitration Court of the Russian Federation on the merits on the basis of the now canceled, but in 2005 (when the tax authority missed the deadline) of the existing rule.
At the same time, in the Decree of 06.03.2007 N 13661/06, the Supreme Arbitration Court of the Russian Federation confirmed the legality of the decision of the appeal instance, which, recognizing the actions of the inspectorate as unlawful, which manifested itself in the refusal to return the amount of tax deductions, referred to the norm of paragraph 5 of clause 4 of Article 176 of the Tax Code of the Russian Federation. The appellate court did not agree with the conclusion of the first instance court that the tax inspectorate, after missing a three-month period, cannot make a decision on tax refund without analyzing the primary documents, as well as documents confirming the taxpayer's right to tax deductions.
From the materials of this case it followed that the organization on 20.04.2005 sent to the tax inspectorate a declaration on value added tax at a tax rate of 0 percent for the first quarter of 2005 by registered mail with a description of the investment. In a statement dated June 9, 2005, the taxpayer asked to reimburse the tax by returning it to his current account. After the organization applied on July 15, 2005 with a request to report on the results of the consideration of the application, the inspectorate, by a letter dated June 22, 2005, notified of the refusal to return the amount claimed for reimbursement, justifying this decision by the fact that the taxpayer's declaration for the first quarter of 2005 was not considered, since submitted in an inappropriate (previously approved) form.
The taxpayer appealed against the actions of the inspectorate, which were expressed in the refusal to refund the amount of tax to be refunded, and asked the court to oblige the inspectorate to return the disputed amount to the current account.
The first instance court confirmed the absence of the inspection legal grounds for non-acceptance for consideration of the declaration of the organization with documents, nevertheless, he rejected the taxpayer's claims. The court referred to the fact that without analyzing the primary documents, as well as documents confirming the right to a tax deduction, the tax inspectorate is not entitled to make a decision on tax refund from the budget. The court of cassation agreed with the court of first instance, additionally stating that the taxpayer is not deprived of the opportunity to re-submit documents to the inspectorate in the manner and time frame established tax legislation.
The Supreme Arbitration Court overturned the decision of the court of first instance and the ruling of the cassation instance and upheld the ruling of the court of appeal on the satisfaction of the taxpayer's claims.
In this case, the Supreme Arbitration Court of the Russian Federation proceeded from the following. Since the courts of three instances confirmed that the tax authority in this case did not have legal grounds not to accept the taxpayer's declaration with the documents attached to it, “the court of first instance should have obliged the inspection to consider the submitted documents in the manner prescribed by Article 88 of the Code and make a decision based on the results their consideration, thereby obliging the inspection to eliminate the violation committed by it. " The Supreme Arbitration Court of the Russian Federation recognized that the courts of first and cassation instances violated the provisions of part four of Article 200 of the Arbitration Procedural Code of the Russian Federation on the taxpayer's right to submit, and the duties of the courts are to examine the documents that are the basis for obtaining a tax deduction, regardless of whether these documents were requested and examined by the tax authorities. body when deciding on the provision of a tax deduction. The courts unlawfully did not take into account the refusal of the tax authority, at the request of the court, to examine and evaluate the documents submitted by the taxpayer to the court, which the inspectorate substantiated by the fact that the Tax Code of the Russian Federation does not provide for a desk audit during the trial. In addition, the Supreme Arbitration Court considered it unlawful that the courts of first and cassation instances did not apply the interrelated provisions of Article 88, paragraphs 1 and 2 of Article 171, paragraph 2 of Article 172 and Article 176 of the Tax Code of the Russian Federation, from the content of which it follows that “the tax authority has no right to refuse a taxpayer tax deduction if the relevant audit has not been carried out by him. "
The new version of article 176 of the Tax Code of the Russian Federation, as well as the previous version of its clause 4, does not indicate the size of the refinancing rate of the Central Bank of the Russian Federation (clause 10). Apparently, disputes over the amount of interest payable will again arise in the courts.
In the second paragraph of clause 10 of Article 176 of the Tax Code of the Russian Federation, a norm appeared that had not previously been in Article 176 of the Tax Code of the Russian Federation. According to this norm, the interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days of violation of the repayment period.
This rule is not new for participants in tax legal relations, since a similar rule was provided for in Articles 78 and 79 of the Tax Code of the Russian Federation, in force since 1999.
A fundamentally new duty of the tax authority is established in paragraph 11 of Article 176 of the Tax Code of the Russian Federation.
According to the aforementioned paragraph, if the taxpayer has not been paid interest in full, the tax authority decides to return the remaining amount of interest calculated on the basis of the date of the actual refund to the taxpayer of the amount of tax to be refunded within three days from the date of receipt of the notification territorial body Federal Treasury on the date of return and the amount of funds returned to the taxpayer.
An order for the return of the remaining amount of interest, drawn up on the basis of the decision of the tax authority on the return of this amount, must be sent by the tax authority on the next day after the adoption of this decision to the territorial authority of the federal treasury.
Despite the fact that the new edition of Article 176 of the Tax Code of the Russian Federation, as before, does not determine the procedure for paying interest, the norms of paragraph 11, which establishes the procedure for "additional payment of interest", can provide answers to some of the questions arising in judicial practice.
First, the accrual and payment of interest is made by the decision of the tax authority.
Secondly, on the basis of this decision, the tax authority sends an order for the payment of interest to the relevant authority.
Thirdly, the order for the payment of interest should be sent the next day after the decision is made.
At the same time, I still did not find an answer to the question about the date until which the interest is calculated. Clause 11 of Article 176 of the Tax Code of the Russian Federation specifies the payment of the amount of interest calculated on the basis of the date of the actual return to the taxpayer of the amount of tax to be refunded.
This issue was the subject of litigation in the Federal Arbitration Court of the North-West District in case No. A56-11690 / 2005 (Resolution of August 29, 2005). The Federal Arbitration Court of the North-West District recognized that Article 176 of the Tax Code of the Russian Federation did not determine until what time interest should be calculated. However, paragraph 4 of Article 79 of the Tax Code of the Russian Federation states that interest on the amount of excessively collected tax is charged from the day following the day of collection to the day of actual return. Since Article 79 of the Tax Code of the Russian Federation regulates legal relations similar to those regulated by Article 176 of the Tax Code of the Russian Federation, the court of cassation considered it possible to apply an analogy of the law and indicated in the Resolution that the interest accrued on the amount of value added tax to be returned to the taxpayer is charged on the day of actual refund tax. In addition, the FAS SZO referred to a similar position in relation to Articles 78 and 79 of the Tax Code of the Russian Federation, set out in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5. Resolution of February 28, 2001 N 5 does not directly address the issue of calculating interest, but in It specifies the criterion for determining the moment of fulfillment of the obligation to return the corresponding amounts to the taxpayer by transferring them in a non-cash order to the recipient's account: when determining this moment, one should be guided by general rule, according to which the taxpayer is recognized as having fulfilled his obligation from the moment the corresponding amount is received by the bank indicated by the recipient of funds. Therefore, the court recognized that the tax refund in accordance with Articles 78, 79, 176 of the Tax Code of the Russian Federation can be considered made at the moment when the funds are actually transferred to the taxpayer's account. Therefore, the violation of the tax refund period, in connection with which interest is subject to accrual, ends at the time of the actual transfer of funds to the taxpayer's account.
The Supreme Arbitration Court of the Russian Federation, in its Resolution of November 29, 2005 N 7528/05, differently determined the day of the end of the tax refund delay period. The court indicated that the period of delay lasts on the day preceding the date of the actual transfer by the treasury of the corresponding amounts to the taxpayer. The legal basis for this conclusion is not provided in the Resolution. The resolution concerns the interpretation of clause 4 of Article 176 of the Tax Code of the Russian Federation, as amended, in effect until 01.01.2007. Judicial practice will show whether this conclusion of the Supreme Arbitration Court of the Russian Federation will be applied when interpreting the corresponding norm of the new edition of Article 176 of the Tax Code of the Russian Federation.
Calculation of the terms of tax refund
By sending to the tax authority an application for the return of the refundable amount of value added tax to the current account, each taxpayer expects to receive the amount indicated in the application as soon as possible.
How to determine the maximum period after which the tax amount must be credited to the taxpayer's current account?
When the tax is refunded according to the declaration on the domestic market, the funds were to be credited to the taxpayer's account no later than the last day of the aggregate next dates: three months (calculated from the first day of the month following the period for which the declaration is submitted) plus two weeks (if the application is submitted no later than two weeks before the expiration of the three-month period, whether or not to add these two weeks depends on the person employed on this the issue of position) plus eight days (the period for the treasury to receive the decision of the tax authority) plus two weeks (the period for the transfer of the corresponding amounts by the treasury authorities to the taxpayer's account).
When refunding tax on a declaration at a tax rate of 0 percent:
- if an application for a tax refund is submitted within a three-month period provided for by paragraph two of clause 4 of Article 176 of the Tax Code of the Russian Federation - three months (calculated from the date of submission of the declaration) plus eight days plus two weeks;
- if an application for a tax refund is filed after the expiration of a three-month period, the delay period begins on the next day after the expiration of the refund period provided for in paragraph 3 of Article 176 of the Tax Code of the Russian Federation (two weeks plus eight days plus two weeks), calculated from the moment the application was submitted (Resolution of the Supreme Arbitration Court Russian Federation of November 29, 2005 N 7528/05).
After January 1, 2007, Article 176 of the Tax Code of the Russian Federation establishes a single maximum tax refund period.
The new version of article 176 of the Tax Code of the Russian Federation provides for the following types of time limits:
- three months of a desk audit, calculated from the date the taxpayer submits a tax return and documents that, in accordance with the Code, must be attached to the tax return;
- seven days - the term for the tax authority to make a decision on the reimbursement of the corresponding amounts, if no violations of the legislation on taxes and fees were revealed, as well as a decision on refund taken simultaneously with it;
- the next day after the decision on the refund is made - the time period for the tax authority to send to the treasury an order for the refund of the tax amount, drawn up on the basis of such a decision;
- five days - the term for the transfer of the tax amount by the treasury to the taxpayer's current account. It should be noted that these five days are calculated from the day the treasury receives an order from the tax authority. At the same time, the time for its delivery (as it was in the previous version of Article 176 of the Tax Code of the Russian Federation for the decision) has not been set.
When adding up the above terms for the tax authority to issue a decision, send an order to the treasury authority and transfer the tax amount to the taxpayer's account by the treasury authority, there is a discrepancy between the result obtained and the maximum period established in paragraph 10 of Article 176 of the Tax Code of the Russian Federation.
According to this clause, the amount of tax must be returned within 11 days after the completion of the desk audit, as a result of which a decision was made on the refund (full or partial), and from the 12th day, the tax refund period is considered violated.
This discrepancy may lead to disputes and the need for their judicial resolution.
/ "Arbitration disputes", 2008, N 1 /
Calculation of the tax refund period when submitting revised tax returns
Article 81 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation) provides for the submission of revised declarations by taxpayers, which make changes to a previously filed tax return upon detection of the fact of non-reflection or incomplete reflection of information, as well as errors made, both leading and not leading to an understatement of the amount tax.
If the taxpayer is reimbursed for one amount according to the initially submitted value-added tax declaration, and another amount for the specified one, is the tax refund procedure established by Article 176 of the Tax Code of the Russian Federation subject to reapplication?
How do the originally filed and revised declarations compare? Is it possible to recognize the revised declaration as a new independent declaration for the previous tax period, canceling the previously sent declaration, or only making changes to the originally submitted declaration?
The norms of article 176 of the Tax Code of the Russian Federation in current edition provide for the mandatory conduct of a desk audit of the validity of the tax amount claimed for reimbursement in accordance with Article 88 of the Tax Code of the Russian Federation.
Does this mean that in all cases of filing a revised declaration, the three-month period for its verification will be re-calculated from the moment such a declaration is received by the tax authority?
In the judicial practice of applying the previous version of Article 176 of the Tax Code of the Russian Federation, the answer to this question depended on whether the amount of tax deductions changed when taxpayers filed revised declarations at a tax rate of 0 percent.
If the amount of tax deductions, that is, the amount of tax indicated for reimbursement, did not change, the courts did not find grounds for extending the aggregate deadlines for the tax refund (Resolution of the Federal Arbitration Court of the North-Western District of 23.01.2007 N A56-34919 / 2005, Federal Arbitration Court Zapadno -Siberian District of 06.09.2006 N F04-5383 / 2006 (25723-A27-42)).
When changing the amount of tax claimed for refund in the revised declaration, the courts recognized the right of the tax authority to check this declaration again in accordance with the procedure established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation (Resolution of the Federal Arbitration Court of the North-Western District of 20.06.2006 N A56-40107 / 04 ).
Another question arises when submitting a revised declaration.
Should I reapply for a refund of a different, adjusted tax amount? Does the solution to this issue depend on the amount of tax declared for refund: is it less or more than that indicated in the initially submitted declaration?
The relevance of a uniform solution to this issue when applying the relevant provisions of Article 176 of the Tax Code of the Russian Federation in the new edition will remain in the event that the filing of an application for a tax refund is recognized necessary condition reimbursement of value added tax by way of refund.
Consequences of Violation of Terms of Tax Refund
As already mentioned, article 176 of the Tax Code of the Russian Federation, both in the old and in the new edition, establishes two methods of tax refund - offset and refund. The same article determines the timing of the offset and return.
However, the payment of interest to the taxpayer is provided only in case of violation of the terms for the refund of the amount of value added tax to be refunded. Untimely offsetting by the tax authority does not entail the accrual of interest provided for in Article 176 of the Tax Code of the Russian Federation.
This conclusion was reached by the Supreme Arbitration Court of the Russian Federation in the Resolution of 05.10.2004 N 5351/04. The subject of the dispute in this case was two requirements: the recognition of illegal inaction of the tax authority, expressed in the failure to offset the amount of value added tax to be refunded, and the imposition of the obligation on the tax authority to accrue interest provided for in Article 176 of the Tax Code of the Russian Federation. The first instance court, having satisfied the first requirement, rejected the second as unlawful, not based on the norms of Chapter 21 of the Tax Code of the Russian Federation. The court found that the taxpayer had submitted declarations to the tax inspectorate in which more than 12 million rubles were claimed for reimbursement. The tax authority did not offset the amount of tax to be refunded within the time period established by Article 176 of the Tax Code of the Russian Federation. Two years later, the taxpayer submitted to the inspectorate a written application for offsetting this amount against tax arrears, and the tax authority executed it on the same day. Since no applications for tax refund by way of refund were submitted, the court did not find grounds for calculating interest.
The cassation instance canceled the court's decision on the second demand, having come to the conclusion that there were grounds for paying the taxpayer the interest provided for in Article 176 of the Tax Code of the Russian Federation, since "interest on the amount of untimely refunded tax is subject to accrual regardless of the way it is reimbursed (by offset or refund)."
The Supreme Arbitration Court of the Russian Federation disagreed with the cassation court and confirmed the legality of the decision of the first instance court. The Supreme Arbitration Court of the Russian Federation indicated that, in accordance with Article 176 of the Tax Code of the Russian Federation, interest on tax amounts subject to reimbursement is charged only if the tax authority violates the tax refund deadlines in the presence of a written application from the taxpayer. Since the taxpayer did not apply to the tax office with a written application for a tax refund, interest is not subject to accrual. The conclusion of the court of cassation on the accrual of interest for violation by the inspection of the timing of the offsetting of value added tax was declared unlawful by the Supreme Arbitration Court of the Russian Federation.
But in all cases, the taxpayer does not have the right to compensation for material losses caused by the late reimbursement of value added tax by the tax authority by receiving interest provided for in Article 176 of the Tax Code of the Russian Federation, if, in the end, the tax is reimbursed by way of offset, and not refund?
Judicial practice gives a negative answer to this question.
In February 2007, the Presidium of the Supreme Arbitration Court of the Russian Federation considered two cases (Resolutions of February 27, 2007 N 11484/06 and N 13584/06), by decisions on which the taxpayer was paid interest for violation of the tax refund deadline in situations where the amount of tax was not credited to the taxpayer's account, but was credited by the tax authority at his request against the fulfillment of the obligation to pay taxes.
It is necessary to pay attention to a number of special circumstances that existed in these cases.
When considering an application for review by way of supervision of the Resolution in case No. A56-1786 / 2005, the Supreme Arbitration Court of the Russian Federation found that the organization on November 20, 2003 filed a declaration at a tax rate of 0 percent on value added tax for October 2003, according to which she was subject to reimbursement from the budget a certain amount of tax. Together with the declaration, the tax authority received an application for the return of the amount of tax to be refunded to the taxpayer's current account. Before the expiration of the three-month period for checking this declaration on 02/09/2004, the organization submitted an updated value-added tax declaration for October 2003, in which the amount of tax deductions was increased. By a decision of 07.05.2004, the tax authority refused to reimburse the tax. The taxpayer appealed against this decision in the arbitration court. Arbitration court By a decision of 06.07.2004, he declared the decision of the tax authority invalid, ordered the inspectorate to make a decision on the tax refund and ensure its implementation by sending it to the federal treasury authorities. The tax authority did not comply with the court decision until 01.12.2004. For this reason and in connection with the emergence of the obligation to pay taxes, the organization on 01.12.2004 sent to the tax authority an application for offsetting the amount subject to reimbursement, which was executed by the inspectorate on 03.12.2004.
At the same time, the taxpayer rightly believed that the change in the method of execution of the court decision (due to its long-term non-execution by the tax authority), which confirmed his right to return the value added tax amount to be refunded from the budget, and not offset, cannot impede the calculation and payment of to him the interest provided for in paragraph twelve of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, if there are grounds for their receipt. Therefore, he appealed to the court with a demand to oblige the tax authority to accrue and ensure payment of the interest established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation, calculated from the moment the right to return appeared, if the tax authority had initially made a legal decision, and before the date of submission of the offset application.
The Supreme Arbitration Court of the Russian Federation confirmed that the taxpayer, in this case, has the right to receive interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. In the Decree of 27.02.2007 N 11484/06, the Court indicated that the legislation of the Russian Federation in the field of taxes and fees is aimed at establishing a balance between private and public interests in the field of taxation and links the payment of interest for late receipt of tax benefits with illegal delays on the part of the tax authorities. deductions due. The interest stipulated by the Tax Code is compensation for material and non-material losses of the taxpayer from untimely receipt of tax benefits due to untimely fulfillment by the Federal tax service functions to reimburse tax deductions. The refusal of the tax authorities to pay interest as compensation for late payments due violates the fair balance that must be maintained between the interests of individuals (taxpayers) and the interests of society.
In another case (Resolution of 27.02.2007 N 13584/06), the Supreme Arbitration Court of the Russian Federation, confirming the taxpayer's right to receive interest in such circumstances, proceeded from the fact that the organization's appeal to the tax authority with an application for tax offset (in the presence of a previously filed together with the declaration of the application for its return) was a forced measure due to the illegal actions of the tax authority. The tax authority, despite the existence of all the grounds for refunding the tax by refund, confirmed by the court decision, did not refund the tax, including in pursuance of the court decision. By a decision taken a year after the court session, based on the results of an audit of another declaration, the tax authority additionally assessed tax, for the payment of which, at the request of the taxpayer (which was sent involuntarily, due to the need for a certificate of the absence of arrears), the amount to be reimbursed was credited. But this decision of the inspectorate was also illegal, later it was declared invalid by the court.
The Supreme Arbitration Court of the Russian Federation came to the conclusion that if there are other grounds for a tax refund, one of the criteria is the will of the taxpayer. His subsequent statement about changing the method of tax refund is valid for the future and does not apply to the previous period, when the refund period was already violated. Within the meaning of article 176 of the Tax Code of the Russian Federation, the fact of a delay in the tax refund itself is the basis for calculating interest, regardless of whether the tax was returned in violation of the deadline or the obligation to refund it in the future is terminated.
Thus, from the above Resolutions, it can be concluded that if the tax authority fails to fulfill the obligation to return to the taxpayer the tax refundable amount, if there are grounds for its refund, the taxpayer has the right to receive the interest provided for in Article 176 of the Tax Code of the Russian Federation, and in the event that in due to the changed circumstances, in the presence of a previously submitted decision on the tax refund, he is forced to send an application for offset.
In this case, interest under clause 4 of Article 176 of the Tax Code of the Russian Federation is subject to accrual for the period from the moment the right to return arises, if the tax authority had initially made a legal decision, and until the date of submission of the offset application. That is, only for the period during which the taxpayer was entitled to a tax refund.
After the Presidium of the Supreme Arbitration Court of the Russian Federation passed the two above-mentioned Resolutions, some experts hastened to announce a change in the previously expressed position regarding the absence of legal grounds for calculating interest if the tax authority did not timely carry out a set-off under paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended up to 01.01.2007 ). Whether this is really so is difficult to say. But it should be remembered that the norm of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, in effect from January 1, 2007, directly indicates the accrual of interest "in case of violation of the terms for refunding the tax amount."
Grounds for refusal of tax authorities to pay interest
In the practice of the Federal Arbitration Court of the North-West District, it is difficult to recall a case when the tax authority would recognize the taxpayer's claims on the accrual and payment of interest provided for in Article 176 of the Tax Code of the Russian Federation. And this despite the fact that the tax authorities are authorized by the state to ensure compliance with the legislation on taxes and fees by all its participants, which include the tax authorities themselves.
The denial of the obligation to calculate and ensure the payment of interest is justified by the following circumstances:
- The tax authority timely, within the three-month period established by Article 176 of the Tax Code of the Russian Federation, made a decision to refuse to refund value added tax.
Referring to the timely decision on the refusal of tax refund by way of refund, the tax authorities ignore the fact that the taxpayer asks to pay interest, as a rule, after the court has declared the inspectorate's decision to refuse the tax refund invalid.
In one of the first decisions related to the formation of judicial practice of calculating interest under Article 176 of the Tax Code of the Russian Federation, the Federal Arbitration Court of the North-West District, rejecting this argument of the inspection, indicated the following.
In case of violation of the terms established in paragraph 4 of Article 176 of the Tax Code of the Russian Federation, interest is charged on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation. Moreover, it follows from the aforementioned norm that the accrual of these interests does not depend on the reasons for the violation of the established terms of tax refund. The specified interest is compensation for the losses of the taxpayer for the late return from the budget of the money owed to him. The recognition by the court of the tax inspectorate's decision to refuse (in whole or in part) to reimburse the taxpayer of tax from the budget and the imposition of the obligation on the tax authority to reimburse the tax by refund from the budget, indicate that the tax authority has not fulfilled the obligation to make a legal and reasoned decision within the specified time period. The systemic interpretation of the norms of the Tax Code of the Russian Federation, including the provisions of subparagraph 1 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation on the unconditional obligation of tax authorities to comply with the legislation on taxes and fees, allows us to conclude that paragraph 4 of Article 176 of the Tax Code of the Russian Federation deals only with legal and reasonable decision of the tax authority. If the decision of the tax inspectorate is recognized by the court as invalid and the inspectorate is obliged to return the tax from the budget, this means that the tax authority did not take the decision provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation within the prescribed time limit - the decision to return the tax amount from the budget (Resolution of 18.03.2002 N А52 / 3287/01/2).
The Supreme Arbitration Court of the Russian Federation in its Resolution of 19.04.2006 N 14471/05 confirmed the right of taxpayers to appeal to an arbitration court with a claim for interest payment, regardless of whether or not the decision of the tax authority to refuse to refund tax by way of refund was challenged.
In the case considered by the Supreme Arbitration Court, the organization appealed to the court with demands to declare illegal the inaction of the tax inspectorate, which was expressed in the non-refund of value added tax at the declaration at the rate of 0 percent, that is, in the failure to make a decision on the refund (refund) of the tax and failure to send it to the federal authority. Treasury, as well as the obligation of the inspection to reimburse the tax by returning from federal budget and pay interest for violation of the tax refund deadline. The first instance court satisfied the organization's claims. The cassation instance changed the court's decision, rejecting the applicant's claims to declare illegal the inaction of the tax authority and to pay interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. The decision adopted by the court of cassation is justified by the fact that there is no fact of inaction of the tax authority, since it made a decision within a three-month period to refuse to refund the tax. This decision of the taxpayer inspectorate has not been challenged, therefore, interest should not be charged on the amount to be refunded.
The conclusion of the court of cassation of the Supreme Arbitration Court of the Russian Federation was recognized as erroneous.
The Supreme Arbitration Court of the Russian Federation indicated that, within the meaning of the provisions of paragraph twelve of clause 4 of Article 176 of the Tax Code of the Russian Federation, the basis for calculating interest on the amount to be returned is a violation of the period for its return. In this case, the accrual of interest is not made dependent on the fulfillment by the tax authority of the obligation to make an appropriate decision (on refund of tax amounts or on refusal to refund). If the court confirms that the taxpayer has the right to a refund of value added tax, the fact that the said decision of the tax authority has not been challenged shall not be grounds for refusing to satisfy the taxpayer's claim to collect interest on the amount to be refunded.
- The Tax Code does not define the procedure for paying interest. There are no provisions in the Code that impose on the tax authority the obligation to pay interest.
This argument, in terms of the prevalence of its use by the tax authorities, is perhaps second.
The courts reject it, citing the fact that the absence in Article 176 of the Tax Code of the Russian Federation of the procedure for calculating interest for violation of the terms for refunding value added tax by refund cannot deprive the taxpayer of the right to receive them. In addition, within the meaning of the norms of Article 176 of the Tax Code of the Russian Federation, interest for late returned tax is paid in the same manner as those subject to reimbursement by returning the amount of value added tax. The tax authority is obliged to make a decision (opinion) on the payment of interest and send it to the federal treasury authorities for execution by paying the amounts due to the taxpayer at the expense of the budget. The courts also draw the attention of the tax authorities to a document that is binding on them - the procedure for paying interest for untimely tax refunds, provided for in Article 176 of the Tax Code of the Russian Federation. This procedure is established by the joint Order of the Ministry of the Russian Federation for Taxes and Duties and the Ministry of Finance of the Russian Federation of 12.09.2001 N BG-3-10 / 345; 74n "On the procedure for accounting for interest accrued for untimely return of an excessively paid (collected) amount of tax (due), as well as interest accrued for untimely reimbursement of value added tax" (Resolution of the Federal Arbitration Court of the North-Western District of February 19, 2007 N A52-2993 / 2006/2).
The original argument was put forward by the tax authority in the cassation appeal against judicial acts in case No. A56-32236 / 2006, filed with the Federal Arbitration Court of the North-West District. The tax authority referred to "that it does not have the obligation to pay interest, since it does not act in relations with the taxpayer as entity, to which another legal entity makes property claims, but as a public supervisory authority that does not have own funds"(Resolution of the Federal Arbitration Court of the North-West District of 12.02.2007).
Unfortunately, the tax authorities often ignore the fact that, when confirming the taxpayer's right to receive the interest provided for in Article 176 of the Tax Code of the Russian Federation, the court makes a decision not to collect the corresponding amount of interest from the tax authority, but imposes the obligation to calculate the interest provided for in Article 176 of the Tax Code of the Russian Federation and ensure their payment from the budget or accrue interest and send an opinion on their payment to the territorial body of the federal treasury.
- The taxpayer did not apply to the tax authority for payment of interest.
Neither old nor new edition Article 176 of the Tax Code of the Russian Federation does not provide for a taxpayer to send an application for the payment of interest in case of violation of the terms for the return of the amount to be refunded. Therefore, the courts reject as not based on the norms of the Tax Code of the Russian Federation the argument of the tax authorities, put forward to justify inaction, about the absence of a taxpayer's application for payment of interest when considering cases of appeal against inaction of the tax authority, expressed in the non-accrual of interest and failure to indicate their amount in the conclusion sent to the treasury to pay the untimely refunded amount of value added tax.
- The taxpayer does not have the right to claim interest payments, since he changed the methods of compensation: first he asked for a set-off, then he applied for a refund, and vice versa.
The position of the Supreme Arbitration Court of the Russian Federation on this issue is stated on pages 87 - 89.
- The taxpayer incorrectly determined the start date and the end date for interest payments.
From what moment is the interest provided for in Article 176 of the Tax Code of the Russian Federation accrued?
If the taxpayer submitted an application for refunding tax by refunding the tax together with the declaration, and the tax inspectorate unlawfully refused to refund the tax (which was confirmed by the court decision, which invalidated the inspectorate's decision to refuse to refund the tax), then interest is subject to accrual from the day it expired on in the aggregate, the terms established by Article 176 of the Tax Code of the Russian Federation.
This conclusion of the courts is justified by the fact that the tax authority did not make a decision within the prescribed time limit, which must be made in compliance with the norms of the Tax Code of the Russian Federation by the inspectorate.
That is, the accrual of interest in this case depends on the legality of the decision taken by the inspectorate, which imposes on the courts the obligation to very carefully assess the legality of the decision of the tax authority to refuse to refund value added tax, because the decision of the courts affects the receipt of interest by the taxpayer and their period. accruals.
Judicial practice knows various cases of appealing against decisions of tax authorities to refuse tax refunds:
- the decision to refuse a tax refund was made if there are documents confirming the right to deductions, which the tax authority unlawfully recognized as insufficient and (or) improperly executed;
- the decision to refuse to refund the tax was made due to the taxpayer's failure to submit, together with the declaration, documents confirming the right to tax deductions, and the tax authority did not claim them;
- the decision to refuse tax refunds was made due to the non-receipt from the taxpayer of documents confirming the right to tax deductions, when the taxpayer did not receive a request to send them (see, for example, Resolution of the Supreme Arbitration Court of the Russian Federation of 18.02.2006 N 1744/06 - the taxpayer received a request by fax the next day after the inspection made a decision to refuse to refund tax; Resolution of the Supreme Arbitration Court of the Russian Federation of 13.02.2007 N 14137/06 - the tax inspectorate indicated in the request the wrong month for which it needed the documents, the taxpayer fulfilled it, but another requirement it was not sent);
- the decision to refuse tax refunds was made due to the non-receipt from the taxpayer of documents confirming the right to tax deductions, when the request to send them was received by the taxpayer, but not executed (this option does not apply to cases when the taxpayer refuses to submit documents to the tax authority, referring to them absence from him, for example, in connection with the loss, - Resolution of the Supreme Arbitration Court of the Russian Federation of January 30, 2006 N 10963/06).
Obviously, in the situations listed in paragraphs 1, 2, 3, the courts have every reason to recognize the inspection decision as invalid, since such a decision is illegal at the time of its adoption. Accordingly, the taxpayer can claim interest calculated in such a way as if no decision had been taken by the tax authority.
But how legitimate is the invalidation of the inspectorate's decision to refuse to refund value added tax in cases where the taxpayer submitted to the tax authority improperly executed documents confirming the right to tax deductions, and the tax authority did not have legal grounds to confirm the right to tax deductions, and has the taxpayer sent the correct documents to the court?
The Supreme Arbitration Court of the Russian Federation has repeatedly drawn the attention of the courts to the need to verify the legality of the inspection decision as of the date of its issuance (Resolutions of 05.16.2006 N 14874/05, of 18.04.2006 N 16470/05; of 21.09.2005 N 4152/05; of 06.07 .2004 N 1200/04).
So, in the Resolution of September 21, 2004 N 4152/05 of the Supreme Arbitration Court of the Russian Federation, it is indicated that if the taxpayer declared a requirement to recognize the decision of the tax inspectorate as invalid, then the assessment of the legality of this decision should be carried out by the court on the basis of those documents that are mandatory for submission by force of law, which at the time its submissions were submitted to the tax office in order to confirm the right to a 0 percent tax rate and tax deductions for export operations. In particular, the invoices attached by the taxpayer to the response to the application for revision of judicial acts by way of supervision sent to the Supreme Arbitration Court of the Russian Federation cannot testify to the illegality of the decision of the tax inspectorate.
And according to the Resolution of the Supreme Arbitration Court of the Russian Federation of April 18, 2006 N 16470/05, the submission of a full package of documents specified in Article 165 of the Tax Code of the Russian Federation to confirm the right to apply the 0 percent tax rate directly to the court is not a reason for the court to make a decision on recognizing the inspectorate's refusal of compensation as illegal tax, since the verification of the legality of the decision on the taxpayer's right to apply the 0 percent tax rate is carried out taking into account only those documents that it had.
Despite the fact that the above examples relate to documents confirming the taxpayer's right to apply the 0 percent tax rate, can it be argued that the court's conclusion about the need to assess the legality of the inspectorate's decision to refuse to refund value added tax at the time of its issuance applies to only one component - documents listed in article 165 of the Tax Code of the Russian Federation?
Resolutions of the Supreme Arbitration Court of the Russian Federation of May 16, 2006 N 14874/05 and N 14873/05 contain a negative answer to this question. When considering cases on the application of a taxpayer to invalidate the decision of the tax inspectorate to refuse to refund the tax and to oblige the inspectorate to refund the amount of tax indicated in the declaration, the following was established. The taxpayer, at the request of the inspectorate, did not submit documents confirming the acquisition and posting of inventory items, as well as their payment, including the amount of value added tax declared for refund on a declaration at a tax rate of 0 percent. The taxpayer believed that he was not obliged to submit these documents during a desk audit, since the tax authority did not identify errors or contradictions in the submitted declaration, and source documents, demanded by the inspection, can only be the subject of an on-site, and not a desk audit. The taxpayer brought the documents demanded by the tax authority to the court. The courts upheld the applicant's claims, but the Supreme Arbitration Court of the Russian Federation overturned the decisions taken in the case. The Supreme Arbitration Court did not agree with the absence of the taxpayer's obligation to submit the primary documents requested by the tax authority during the in-house audit, confirming the right to tax deductions. With regard to the documents submitted by the applicant, it is indicated that "the documents submitted by the company to the court cannot testify to the illegality of the inspection's decision."
The aforementioned Resolutions also explained to the taxpayer that the refusal to reimburse the amount of value added tax at a tax rate of 0 percent in the specified tax period does not deprive him of the right to re-submit the appropriate documents to the inspectorate in another tax period within the time period established by law.
It seems that a similar approach should be used when a taxpayer submits to the tax authority improperly executed documents confirming the right to a tax refund (tax deductions).
Rejection by the courts of the taxpayer's claims to invalidate the inspectorate's decision to refuse to reimburse the tax on the grounds of its legality as of the date of issuance will actually prevent unjustified payment of interest from the budget provided for in Article 176 of the Tax Code of the Russian Federation.
But this applies only to cases when the tax authority fully complied with the rules for conducting a desk audit and making a decision on refusing tax refunds, namely: the taxpayer is informed about the questions that have arisen regarding the correctness of the calculation and payment of tax, about errors found when filling out the documents, he has additional information, explanations and documents were requested confirming the correctness of the calculation and the timeliness of the payment of taxes, and the taxpayer provided explanations, made corrections to the documents drawn up with errors and together with additional documents submitted them to the inspectorate when the taxpayer was notified in advance of the date and place of consideration of the materials of the desk tax audit by the head of the tax authority.
Moreover, the taxpayer's right to a tax refund will not remain unprotected, since the taxpayer has the right, in accordance with Article 81 of the Tax Code of the Russian Federation, to submit to the tax authority an updated value-added tax declaration for the same tax period for the amount of tax deductions that he was previously denied to refund. due to lack of evidence of the right to receive it. The revised declaration must be accompanied, if necessary, by an application for the return of refundable tax to the current account.
A taxpayer can also apply to the court with a claim for reimbursement from the budget by offsetting or refunding the corresponding amount of value added tax, regardless of the decision previously made by the tax authority to refuse to reimburse the tax. This right of the taxpayer is confirmed by the Supreme Arbitration Court of the Russian Federation in the Resolution of 13.02.2007 N 12943/06. The Supreme Arbitration Court of the Russian Federation recognized that the position of the courts on the impossibility of satisfying the taxpayer's claims on the obligation to reimburse him the amount of value added tax was not based on the norms of the law, if the applicant did not dispute the decision to refuse to reimburse the corresponding amount of tax.
In this case, the taxpayer, in accordance with the rules of parts three and four of Article 65, part one of Article 66, subparagraph 5 of part two and part three of Article 125 of the Arbitration Procedure Code of the Russian Federation, must submit to the court documents confirming the right to a refund of value added tax, as well as send copies of these documents to the tax authority as a person participating in the case as a defendant.
The outlined approach to solving the problem of assessing the legality of the decision of the tax authority is consistent with the position of the Constitutional Court of the Russian Federation, reflected in the Definition of 12.07.2006 N 267-O. The Constitutional Court indicated that the powers of the tax authority provided for in Articles 88 and 101 of the Tax Code of the Russian Federation are of a public law nature, which does not allow the tax authority to arbitrarily abandon the need to reclaim additional information, explanations and documents confirming the correctness of the calculation and the timeliness of the payment of taxes. When exercising the function of identifying tax offenses entrusted to it, the tax authority, in all cases of doubts about the correctness of the payment of taxes, is obliged to use the authority granted to it to demand the necessary information from the taxpayer. Accordingly, the taxpayer has the right to assume that if the tax authority does not apply to him for explanations or documents confirming the declared taxes, then the tax authority has no doubts about the correctness of tax payments. Anything else would mean a violation of the principle of legal certainty and would lead to arbitrariness of the tax authorities.
In accordance with the fourth part of Article 200 of the Arbitration Procedure Code of the Russian Federation, the arbitration court, when considering in court cases on challenging non-normative legal acts, decisions and actions (inaction) of tax authorities, their officials, checks the contested act or its individual provisions, contested decisions and actions ( inaction) and establishes their compliance with the law or other regulatory legal act, establishes the powers of the body or person who adopted the contested act, decision or committed the contested actions (inaction), and also establishes whether the contested act, decision and actions (inaction) violate the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities ...
Based on the above norm, the Constitutional Court considers that the verification of compliance with the law or other regulatory legal act of the decision of the tax authority adopted as a result of the desk tax audit, in terms of its validity, consists in the court's duty to verify the compliance of the conclusions of the tax authority not only with the materials that the tax authority available at the time of the audit. Judicial protection of rights and legitimate interests taxpayers cannot be provided if the courts, when deciding on the legality of the refusal to provide the declared tax deductions, proceed from the fact that the tax authority does not have documents confirming the correctness of their application. Therefore, the taxpayer has the right to submit, and the arbitration courts are obliged to investigate, establish, evaluate all documents that are important for the correct resolution of the case, confirming the factual circumstances that, in accordance with tax legislation, should be taken into account when deciding on the possibility of granting tax deductions, regardless of whether there were these documents were requested and examined by the tax authority when deciding whether to grant a tax deduction.
Taking into account the foregoing, it appears that if the tax authority makes a decision to refuse the taxpayer to reimburse the value-added tax due to the absence of the taxpayer at the time of the decision of the documents (duly executed documents) giving the right to deductions, according to the declaration for a specific tax period, despite the opportunity given to the taxpayer to submit (correct) them, the taxpayer does not have legal grounds to appeal against such a decision, and the court does not have to recognize it as invalid.
It would be more correct to send a revised declaration for the same tax period to the tax authority.
Otherwise, in the event of illegal inaction of the taxpayer and a legal decision of the tax authority on the date of its issuance, the taxpayer will subsequently receive the right to pay the interest specified in Article 176 of the Tax Code of the Russian Federation.
We must not forget about the right of a taxpayer to go to court with a claim to reimburse the corresponding amount of value added tax from the budget by returning it to the current account without appealing the decision of the tax authority.
In this case, the right of the taxpayer to pay interest in the event of failure by the tax authority to comply with the court decision within the established time frame will arise from the moment it enters into legal force (Resolution of the Supreme Arbitration Court of the Russian Federation of 06.06.2006 N 1363/06).
If the taxpayer applies to the court in the above-described situation in a statement containing two requirements - to invalidate the inspectorate's decision to refuse to refund tax from the budget by refund and to oblige the inspectorate to refund the tax by refunding to the current account, the court, having refused to satisfy the first requirement, may, upon presentation by the taxpayer of documents confirming the right to tax deductions, satisfy the second.
A similar approach is contained in the Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 08.05.2007 N 16367/06, of 13.02.2007 N 12943/06, of 05.12.2006 N 8689/06.
The proposed solution to the problem under study will ensure a balance of public and private interests, which is constantly drawn to the attention of the courts in the decisions of the highest judicial bodies of the Russian Federation.
The issue of invalidating the inspectorate's decision to refuse refund of value added tax in the situation set forth in paragraph 4, when the tax authority decides to refuse refund of tax due to non-receipt from the taxpayer of documents confirming the right to tax deductions, upon receipt, but failure to comply with the relevant inspection requirements can also hardly be classified as simple.
In fact, the tax authority denies the taxpayer the right to a tax refund not because it has indisputable evidence that the taxpayer does not have legal grounds for applying tax deductions and (or) documents confirming them.
The reason for the refusal is the sole failure of the taxpayer to submit documents confirming the right to the amount of tax deductions specified in the declaration.
But the consequences of failure to comply with the requirements of the inspectorate for the submission of documents are determined by the Tax Code of the Russian Federation. In accordance with Article 93 of the Tax Code of the Russian Federation, a taxpayer's refusal to submit the requested documents or their failure to submit them within the established time limits is recognized as a tax offense and entails liability under Article 126 of the Tax Code of the Russian Federation. It is also provided here that a tax authority official conducting a tax audit (there are no restrictions on desk audits) shall seize required documents in the manner prescribed by article 94 of the Tax Code of the Russian Federation. That is, the tax authority must take measures to obtain documents confirming the tax deductions declared in the declaration.
Only if it is proved that the taxpayer does not have the necessary documents, the decision of the tax authority to refuse to refund the tax will be legal and justified.
Neither Article 93 nor the provisions of Chapter 21 of the Tax Code of the Russian Federation provide for other consequences of the taxpayer's failure to submit documents confirming tax deductions.
It should be noted that the wording of Article 93 of the Tax Code of the Russian Federation, in effect since January 1, 2007, allows the requesting of documents only by serving the inspected person with the requirement to submit the documents. There is no such requirement for sending by mail.
- The taxpayer miscalculated the interest rate.
When rejecting the claims of the taxpayer for the payment of interest on this basis, the tax authority may have in mind:
- incorrect determination by the taxpayer of the start date of the tax refund delay;
- incorrect determination of the return date;
- incorrect application of the refinancing rates of the Central Bank of the Russian Federation in effect during the period of delay;
- incorrect determination of the size - 1/360 or 1/365 of the refinancing rate.
- The tax authority has actually failed to fulfill its obligation to refund tax to the taxpayer in accordance with Article 176 of the Tax Code of the Russian Federation.
Judicial practice knows many cases when the tax authority considers it unlawful to impose on it the obligation to pay interest under Article 176 of the Tax Code of the Russian Federation, if the amount of tax is not actually returned to the taxpayer, is not credited to his current account (regardless of whose decision on the tax refund has not been executed - the tax authority itself or the courts).
The courts, imposing in this case on the tax authority the obligation to pay interest, point out that the accrual of interest is not made by the Tax Code of the Russian Federation dependent on the actual refund of tax by the tax authority to its current account (Resolutions of the Federal Arbitration Court of the North-Western District of 21.02 .2007 N А56-1510 / 2006; Federal Arbitration Court of the Moscow District dated 12.01.2007 N КА-А40 / 13049-06).
- The tax authority made a timely decision on the tax refund.
As it turned out, the tax authorities in a number of cases show misunderstandings about the scope of their responsibilities related to the return in the procedure of reimbursing the amount of value added tax from the budget.
So, when the Federal Arbitration Court of the North-Western District on March 13, 2007, the cassation appeal of the tax inspectorate in case No. April 2006 and sent this decision to the head of the taxpayer's organization in due time. On this, the tax authority considered its obligations fulfilled.
Meanwhile, according to paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended up to 01.01.2007), the tax authority is obliged not only to make a decision on tax refund, but also, if there is a taxpayer's application for a tax refund, to make a decision on tax refund. In the considered case, the declaration on value added tax at a tax rate of 0 percent was received by the tax authority on 22.05.2006. The decision to reimburse the taxpayer from the budget for tax on the declaration for April 2006 was made on 21.08.2006. The decision to refund tax from the budget to the organization's current account was made by the tax authority only on 05.10.2006, and on the same day the conclusion on the execution of the decision on the refund was drawn up and sent to the Federal Treasury Department of the Ministry of Finance of the Russian Federation for the Pskov Region, as a result of which the tax was refunded only 05.10.2006.
In the tenth paragraph of clause 4 of Article 176 of the Tax Code of the Russian Federation, it is indicated that the decision on the return of tax amounts from the budget is made no later than the last day of a three-month period. Within the same period (three months), an opinion on the refund of tax to the taxpayer must be sent to the appropriate federal treasury body. The three-month period expired on 22.08.2006. The decision to return was made on 10/05/2006, that is, in violation of the established deadline. Since interest is subject to accrual in case of violation of the tax refund period set forth in paragraph 4 of Article 176 of the Tax Code of the Russian Federation for tax authorities and federal treasury bodies, the courts satisfied the taxpayer's claims to impose on the tax authority the obligation to ensure the payment of interest provided for in Article 176 of the Tax Code of the Russian Federation.
- The tax authority sent its opinion to the Treasury in a timely manner.
Violation of the deadlines for refunding tax to a taxpayer on his current account occurs in a number of cases due to the untimely execution by the Treasury of the conclusion on tax refund received from the inspection.
Guided by the norms of the Tax Code, taxpayers reasonably apply to the tax authority with a demand to pay the interest specified in Article 176 of the Tax Code of the Russian Federation.
The tax authorities unlawfully evade making a decision on the payment of interest, referring to the timely fulfillment of the obligations imposed on them by Article 176 of the Tax Code of the Russian Federation to refund the tax and the fault of the Treasury authorities.
This justification does not comply with the norms of Chapter 21 of the Tax Code of the Russian Federation. Interest under article 176 of the Tax Code of the Russian Federation is paid to the taxpayer for violation of the set of terms established in it, regardless of which body and at what stage the terms were violated. At the same time, without the conclusion of the inspectorate on the payment of interest, calculated by it according to the rules of article 176 of the Tax Code of the Russian Federation, the treasury body cannot pay them.
- Lack of information about the bank account to which the tax refundable amount is to be credited.
The courts' assessment of this argument of the tax authorities is set out on pages 83 - 84 of the Arbitration Disputes magazine, N 4 (40) / 2007.
In conclusion, I would like to remind you of the decision by the Supreme Arbitration Court of the Russian Federation of two fairly topical issues that have arisen in judicial practice.
The first is related to the problem tax accounting, voluntary transfers and forced transfers of taxpayers from one tax office to another. In this case, it is not uncommon for one tax authority to make a decision to refuse a tax refund, and another tax authority executes a court decision, which invalidates such a decision and the tax authority is obliged to refund tax with interest.
From the Resolutions of the Supreme Arbitration Court of 06.09.2005 N 4083/05 and of 30.05.2006 N 1334/06 it follows that the procedure for refunding tax upon transfer of a taxpayer and registration with a new inspection is not regulated by Article 176 of the Tax Code of the Russian Federation. But in the case when the decision of the tax inspectorate, in which the taxpayer was previously registered with the tax authorities, on the refusal to reimburse the value added tax, is recognized by the arbitration court as invalid, the new tax authority, where the taxpayer entered the register, is obliged to restore the rights of the taxpayer violated by the illegal decision of the previous inspection. The obligation to reimburse tax that has not been fulfilled by the previous inspectorate in this case does not cease and does not change. At the same time, the taxpayer is not obliged to re-submit the documents previously submitted to the previous inspectorate and assessed by the court. It is also not required to re-send a tax refund application to a new inspectorate if it was previously submitted to an inspectorate where the taxpayer was registered with the tax authorities - it cannot be considered as not giving rise to legal consequences in connection with registration with another tax authority.
Thus, if the new tax authority does not return the tax, the refund and return of which was previously unlawfully denied to the taxpayer, which was confirmed by the court decision, such a taxpayer has the right to apply to the court with a demand to declare illegal the inaction of the tax inspectorate, expressed in the non-refund of tax from the budget, and oblige the tax authority to refund the amount of tax with interest for violation of the tax refund period, calculated on the basis of article 176 of the Tax Code of the Russian Federation.
The second decision concerns cases when the courts, within the framework of one case, consider two claims filed against different tax authorities involved in the case as defendants. The taxpayer engages in the case both the tax authority that issued the contested decision to refuse to refund the tax, and the tax authority where the taxpayer switched to tax accounting, which will execute the court decision on refunding tax by returning to the taxpayer's current account and paying interest in resolving a dispute in favor of the taxpayer.
How, in this case, is the period established by paragraph 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation applied, does it apply to claims for tax refunds from the budget and for payment of interest under Article 176 of the Tax Code of the Russian Federation?
And this is the second question, which cannot be overlooked by the Supreme Arbitration Court of the Russian Federation.
The norm of part four of Article 198 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) provides that a statement on invalidating non-normative legal acts, illegal decisions and actions (inaction) government agencies, bodies local government, other bodies, officials may be filed with the arbitration court within three months from the day when the citizen or organization became aware of the violation of their rights and legitimate interests, unless otherwise provided by federal law.
The Supreme Arbitration Court of the Russian Federation in its Resolutions of 31.01.2006 N 9316/05 and of 05.12.2006 N 8689/06 concluded that the claims for the refund of tax, penalties, interest payments provided for by the Tax Code of the Russian Federation, the provisions of clause 4 Articles 198 of the Arbitration Procedure Code of the Russian Federation do not apply.
So, the Supreme Arbitration Court of the Russian Federation recognized that the requirements for the collection of interest for the late return of tax payments caused by the wrong actions of the tax authority, although they arise from public legal relations, are property character and do not fall under the category of cases considered under the rules of Chapter 24 of the Arbitration Procedure Code of the Russian Federation, including with the application of Article 198 of the Arbitration Procedure Code of the Russian Federation. Given the fact that in section III The aforementioned Code does not establish the specifics of considering claims for the recovery of interest and, based on the provisions of Article 189 of the Arbitration Procedure Code of the Russian Federation, these requirements should be considered in accordance with the rules of claim proceedings.
Consequently, the rule on the three-month period for filing an application, established by part 4 of Article 198 of the Code, does not apply to the filing of applications containing a claim for the refund of taxes, penalties, payment of interest provided for by the Tax Code of the Russian Federation.
* * *
Getting down to this work, it was difficult even to imagine how many questions and problems can be hidden in just one and, I must honestly say, quite understandable at first glance, the stated article of the Tax Code of the Russian Federation.
Probably, the dream of every judge considering tax disputes will always be a stable Tax Code of the Russian Federation with clearly and clearly stated and unambiguously interpreted norms.
3. Not later than the day following the day of issue bank guarantee(conclusion of a surety agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer about the fact of issuing a bank guarantee (conclusion of a surety agreement) in the manner determined federal body executive power, authorized to control and supervise taxes and fees.
4. A bank guarantee must be provided by a bank included in the list of banks that meet the requirements established by Article 74.1 of this Code for accepting bank guarantees for tax purposes. The requirements established by Article 74.1 of this Code are applied to the bank guarantee, taking into account the following features:
Information about changes:
1) the period of validity of the bank guarantee must expire no earlier than 10 months from the date of filing the tax return, in which the amount of tax to be refunded is declared;
2) the amount for which the bank guarantee was issued must ensure the fulfillment of obligations to return to the budgets of the budgetary system of the Russian Federation in full the amount of tax claimed for refund.
Information about changes:
6.1. A bank guarantee (surety agreement) is submitted to the tax authority no later than the period specified in clause 7 of this article for filing an application for the application of the declarative procedure for tax refund.
7. Taxpayers who have the right to apply the declarative tax refund procedure exercise this right by submitting to the tax authority, no later than five days from the date of filing the tax declaration, an application for the application of the declarative tax refund procedure, in which the taxpayer indicates the bank account details for transferring funds.
In the specified application, the taxpayer undertakes to return to the budget the amounts that he / she received (credited to him) in a declarative manner (including the interest provided for in paragraph 10 of this Article (if paid), as well as pay the interest accrued on the indicated amounts in the manner prescribed paragraph 17 of this article, if the decision to reimburse the amount of tax declared for reimbursement, in a declarative manner, will be canceled in whole or in part in the cases provided for in this article.
8. Within five days from the date of submission of the application for the application of the declarative procedure for tax refund, the tax authority verifies the taxpayer's compliance with the requirements provided for in paragraphs 2, 4.1 and this article, as well as whether the taxpayer has tax arrears, other taxes, arrears on the corresponding penalties and (or) fines payable or levied in the cases provided for by this Code, and decides to reimburse the amount of tax declared for refund on a declarative basis, or a decision on refusal to refund the amount of tax declared for refund on a declarative basis.
Simultaneously with the decision to reimburse the amount of tax declared for reimbursement, in a declarative manner, depending on the presence of the taxpayer's debts for these payments, the tax authority decides on the offset of the amount of tax declared for reimbursement, in a declarative manner and (or) a decision on refund (in full or partially) the amount of tax declared for refund, in a declarative manner.
The tax authority is obliged to notify the taxpayer about the decisions taken in writing within five days from the date of the relevant decision. At the same time, in the notification of the decision to refuse to refund the amount of tax claimed for refund, the provisions of this article violated by the taxpayer are indicated in a declarative manner. The specified message can be transmitted to the head of the organization, an individual entrepreneur, their representatives personally against a receipt or in another way, confirming the fact and date of its receipt.
Adoption of a decision to refuse to refund the amount of tax declared for refund on a declarative basis does not change the procedure and timing of a desk tax audit of the submitted tax return. In the event that a decision is made to refuse to refund the amount of tax declared for refund, in the application procedure, the refund of the tax is carried out in the manner and within the time limits provided for in Article 176 of this Code. In this case, in the case specified in this paragraph, in the presence of a written request from the taxpayer, the tax authority shall return the bank guarantee to him within a period of no later than three days from the date of receipt of such a request.
9. If the taxpayer has tax arrears, other taxes, arrears of corresponding penalties and (or) fines to be paid or collected in the cases provided for by this Code, the tax authority on the basis of the decision to offset the amount of tax declared for refund in the application In accordance with the procedure, the amount of tax declared for reimbursement is independently offset in a declarative manner at the expense of the repayment of the specified arrears and arrears in fines and (or) fines. In this case, the accrual of penalties on the specified arrears is carried out until the day the tax authority makes a decision on offsetting the amount of tax declared for reimbursement, in a declarative manner.
If the taxpayer has no tax arrears, other taxes, arrears in respect of the corresponding penalties and (or) fines payable or collected in the cases provided for by this Code, as well as if the amount of tax declared for reimbursement is exceeded, in a declarative manner, over the amounts of the indicated arrears for tax, other taxes, debts for the corresponding penalties and (or) fines, the amount of tax to be refunded is returned to the taxpayer on the basis of the decision of the tax authority to return (in whole or in part) the amount of tax declared for refund on a declarative basis.
10. An order for a refund of the tax amount is drawn up by the tax authority on the basis of a decision to refund (in whole or in part) the amount of tax declared for refund on a declarative basis and is subject to sending to the territorial body of the Federal Treasury on the next business day after the day the tax authority makes this decision.
Within five days from the date of receipt of the instructions specified in paragraph one of this clause, the territorial body of the Federal Treasury shall refund the taxpayer the amount of tax in accordance with the budgetary legislation of the Russian Federation and no later than the day following the day of return, notify the tax authority of the date of return and the amount returned to the taxpayer Money.
In case of violation of the deadlines for refunding the tax amount, interest is charged on this amount for each day of delay starting from the 12th day after the day the taxpayer submits the application provided for in paragraph 7 of this article. The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation in effect during the period of violation of the repayment period.
If the interest specified in this paragraph is not paid to the taxpayer in full, the tax authority, within three days from the date of receipt of the notification from the territorial body of the Federal Treasury of the date of refund and the amount of funds returned to the taxpayer, shall decide on the payment of the remaining amount of interest and no later than one day, following the day of adoption of this decision, sends to the territorial body of the Federal Treasury an order drawn up on the basis of this decision to pay the remaining amount of interest.
11. The validity of the amount of tax declared for refund is checked by the tax authority when conducting, in the manner and terms established by Article 88 of this Code, a desk tax audit based on the tax declaration submitted by the taxpayer, in which the amount of tax to be refunded is declared.
12. If during the desk tax audit no violations of the legislation on taxes and fees were revealed, the tax authority, within seven days after the end of the desk tax audit, is obliged to inform the taxpayer in writing about the end of the tax audit and about the absence of any violations of the tax legislation. and fees.
Not later than the day following the day of sending to the taxpayer who provided the bank guarantee, a message about the absence of revealed violations of the legislation on taxes and fees, the tax authority must send to the bank that issued the specified bank guarantee a written application for the release of the bank from obligations under this bank guarantee, and if there is a written request from the taxpayer, the tax authority is also obliged to return the bank guarantee to him no later than three days from the date of receipt of such an appeal.
No later than the day following the day of sending to the taxpayer, the obligation to pay the tax of which is secured by the surety provided for by this article, notifications about the absence of revealed violations of the legislation of the Russian Federation on taxes and fees, the tax authority is obliged to send a written application to the surety about the release of the surety from obligations under this agreement sureties.
13. In the event that violations of the legislation on taxes and fees are revealed during a desk tax audit, authorized officials of tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.
The act and other materials of a cameral tax audit, during which violations of the legislation on taxes and fees were revealed, as well as objections presented by the taxpayer (his representative) must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and a decision on them must be adopted in accordance with Article 101 of this Code.
14. Based on the results of consideration of the materials of a cameral tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer liable for committing a tax offense or to refuse to bring the taxpayer to responsibility for committing a tax offense.
15. If the amount of tax reimbursed to a taxpayer in the manner prescribed by this article exceeds the amount of tax to be reimbursed based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of the appropriate decision provided for in paragraph 14 of this article, makes a decision to cancel the decision on reimbursement of the amount of tax declared for refund, in a declarative manner, as well as decisions on the return (in whole or in part) of the amount of tax declared for refund, in a declarative manner and (or) a decision on offsetting the amount of tax declared for refund, in a declarative manner in part of the tax amount not subject to reimbursement based on the results of a cameral tax audit.
16. The tax authority is obliged to notify the taxpayer in writing of the decisions made, specified in paragraphs 14 and this article, within five days from the date of the relevant decision. The specified message can be transmitted to the head of the organization, an individual entrepreneur, their representatives personally against a receipt or in another way, confirming the fact and date of its receipt.
17. Simultaneously with the notification of the adoption of the decision specified in paragraph 15 of this article, the taxpayer is sent a request to return to the budget the amounts he received (credited to him) in a declarative manner (including the interest provided for in paragraph 10 of this article (if paid), in the amount proportional to the share of the excessively reimbursed amount of tax in total amount tax refunded on a declarative basis) (hereinafter in this article - the claim for refund). Interest is calculated on the amounts subject to refund by the taxpayer based on interest rate, equal to two times the refinancing rate of the Central Bank of the Russian Federation in effect during the period of using budget funds. The specified interest is calculated starting from the day:
1) actual receipt by the taxpayer of funds - in the event of a refund of the tax amount on a declarative basis;
2) making a decision on offsetting the amount of tax declared for refund on a declarative basis - in the case of offsetting the amount of tax on a declarative basis.
19. The claim for return can be transferred to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in any other way, confirming the fact and date of its receipt. If it is impossible to deliver the claim for return by the specified methods, it is sent by registered mail and is considered received after six days from the date of sending the certified mail.
20. The taxpayer is obliged to independently pay the amounts specified in the claim for refund within five days from the date of its receipt.
Not later than three days from the date of receipt of the notification from the territorial body of the Federal Treasury of the return by the taxpayer who submitted the bank guarantee of the tax amounts specified in the claim for refund, the tax authority is obliged to notify the bank that issued the bank guarantee of the bank's release from obligations under this bank guarantee, and also, if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than three days from the date of receipt of such a request.
23. In the event of non-payment or incomplete payment of the amounts specified in the claim for refund, within the prescribed period, by the taxpayer who applied the declarative procedure for refunding tax without providing a bank guarantee, or by the taxpayer who received the revised demand for the refund, as well as if it is impossible to send the claim to the bank payment sum of money on a bank guarantee due to the expiration of its validity period or if it is impossible to send it to the guarantor - management company claims for payment of a sum of money under a surety agreement, the obligation to pay these amounts is compulsorily fulfilled by levying a claim on monetary funds in the accounts or on other property of the taxpayer by the decision of the tax authority to collect the indicated amounts, adopted after the taxpayer failed to fulfill the claim for refund within the prescribed period, in the manner and terms established by Articles 46 on the refund of the amount of tax declared for refund on a declarative basis, but before the completion of a desk tax audit, then the specified decision on the previously filed tax return is canceled no later than the day following the day of submission of the revised tax return. Not later than the day following the day of adoption
1. In the event that, based on the results of the tax period, the amount of tax deductions exceeds the total amount of tax calculated for transactions recognized as an object of taxation in accordance with subparagraphs 1 - 3 of paragraph 1 of Article 146 of this Code, the resulting difference is subject to compensation (offset, refund) to the taxpayer in in accordance with the provisions of this article.
After the taxpayer submits a tax return, the tax authority verifies the validity of the amount of tax declared for refund when conducting a desk tax audit in the manner prescribed by Article 88 of this Code.
2. Upon completion of the audit, within seven days, the tax authority is obliged to make a decision on the reimbursement of the corresponding amounts, if during the desk tax audit no violations of the legislation on taxes and fees were revealed.
3. In the event of violations of the legislation on taxes and fees during a desk tax audit, authorized officials of tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.
The act and other materials of a cameral tax audit, during which violations of the legislation on taxes and fees were revealed, as well as objections presented by the taxpayer (his representative) must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and a decision on them must be adopted in accordance with Article 101 of this Code.
Based on the results of consideration of the materials of a cameral tax audit, the head (deputy head) of the tax authority makes a decision on bringing the taxpayer to responsibility for committing a tax offense or on refusing to hold the taxpayer accountable for committing a tax offense.
Simultaneously with this decision is made:
a decision to reimburse the full amount of tax declared for reimbursement;
a decision to refuse to reimburse the full amount of tax declared for reimbursement;
a decision on partial refund of the amount of tax declared for refund and a decision on refusal to refund part of the amount of tax declared for refund.
4. If the taxpayer has tax arrears, other federal taxes, arrears on the corresponding penalties and (or) fines to be paid or collected in the cases provided for by this Code, the tax authority independently sets off the amount of tax to be refunded against the specified arrears and arrears of fines and (or) fines.
5. In the event that the tax authority has decided to refund the tax amount (in whole or in part) in the presence of tax arrears that arose between the date of filing the declaration and the date of refund of the corresponding amounts and does not exceed the amount to be refunded by the decision of the tax authority, penalty interest arrears are not charged on the amount.
6. If the taxpayer has no arrears on tax, other federal taxes, arrears on the corresponding penalties and (or) fines to be paid or collected in the cases provided for by this Code, the amount of tax to be refunded by the decision of the tax authority shall be returned upon the taxpayer's application for the bank account indicated by him. In the presence of a written application (application submitted in electronic form with an enhanced qualified electronic signature through telecommunication channels) of the taxpayer, the amounts subject to refund may be directed towards the payment of forthcoming payments for tax or other federal taxes.
7. The decision on the offset (refund) of the tax amount is made by the tax authority simultaneously with the decision on the refund of the tax amount (in whole or in part).
8. The order for the refund of the tax amount, drawn up on the basis of the decision on the refund, is subject to sending by the tax authority to the territorial body of the Federal Treasury on the next day after the day the tax authority makes this decision.
Territorial body of the Federal Treasury within five days from the date of receipt the specified order carries out a refund to the taxpayer of the amount of tax in accordance with the budgetary legislation of the Russian Federation and within the same period notifies the tax authority of the date of refund and the amount of funds returned to the taxpayer.
9. The tax authority is obliged to notify the taxpayer in writing of the decision made to reimburse (in whole or in part), the decision to set off (refund) the tax amount subject to reimbursement, or refuse to reimburse it within five days from the date of the relevant decision.
The specified message can be transmitted to the head of the organization, an individual entrepreneur, their representatives personally against a receipt or in another way, confirming the fact and date of its receipt.
10. In case of violation of the deadlines for refunding the tax amount, starting from the 12th day after the completion of a desk tax audit, which resulted in a decision to refund (in full or in part) the amount of tax, interest is charged based on the refinancing rate of the Central Bank of the Russian Federation.
The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation in effect on the days when the refund period was violated.
11. In the event that the interest provided for in paragraph 10 of this article is not paid to the taxpayer in full, the tax authority makes a decision to return the remaining amount of interest calculated on the basis of the date of the actual return to the taxpayer of the amount of tax to be refunded within three days from the date of receipt of the notification the territorial body of the Federal Treasury on the date of return and the amount of funds returned to the taxpayer.
An order for the return of the remaining amount of interest, drawn up on the basis of a decision of the tax authority to return this amount, must be sent by the tax authority within the time period established by paragraph 8 of this article to the territorial body of the Federal Treasury for the return.
11.1. In the event that an application for offsetting the tax amount against the payment of forthcoming tax or other federal taxes (on the return of the tax amount to the specified bank account) subject to reimbursement by the decision of the tax authority has not been submitted by the taxpayer before the date of the decision to reimburse the tax amount ( in whole or in part), the offset (refund) of the tax amount is carried out in the manner and terms provided for in Article 78 of this Code. In this case, the provisions of paragraphs 7-11 of this article shall not apply.
12. In the cases and in the manner provided for by Article 176.1 of this Code, taxpayers have the right to use declarative procedure tax refund.
1. The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of the offset (refund) of the amount of tax declared for refund in the tax return, prior to the completion of a desk tax audit carried out in accordance with this Code on the basis of this tax declaration.
2. The following persons have the right to apply the declarative procedure for tax refund:
1) taxpayers-organizations in which the aggregate amount of value added tax, excise taxes, corporate profit tax and mineral extraction tax paid for three calendar years preceding the year in which the application for the application of the declarative procedure for tax refund is submitted, excluding the amount of taxes paid in connection with the movement of goods across the border of the Russian Federation and as tax agent, is at least 7 billion rubles. These taxpayers have the right to apply the declarative procedure for tax refund if at least three years have passed from the date of the establishment of the relevant organization to the day of filing the tax return;
2) taxpayers who, together with the tax declaration, in which the right to tax refund is declared, a valid bank guarantee, which provides for the bank's obligation on the basis of the tax authority's request to pay to the budget for the taxpayer tax amounts that he received (credited to him) in excess as a result of tax refund in in a declarative manner, if the decision to reimburse the amount of tax declared for refund on a declarative basis will be canceled in whole or in part in the cases provided for by this article;
3) taxpayers - residents of the territory of advanced socio-economic development, who, together with the tax declaration, in which the right to tax refund is declared, a surety agreement for the management company determined by the Government of the Russian Federation in accordance with Federal law"On the territories of advanced socio-economic development in the Russian Federation" (copy of the surety agreement), which stipulates the obligation of the management company, based on the requirement of the tax authority, to pay to the budget for the taxpayer tax amounts that he / she received (credited) in excess as a result of tax refunds on a declarative basis, if the decision to reimburse the amount of tax declared for reimbursement in a declarative manner will be canceled in whole or in part in the cases provided for in this article. The obligation of the management company to pay to the budget for the taxpayer the amounts of tax that he / she has received (credited to him) as a result of refunding tax on a declarative basis arises if the taxpayer has not complied with the tax authority's request to return the excessively received (credited) tax amounts within 15 calendar days from the moment the claim is submitted by the tax authority;
4) taxpayers - residents of the free port of Vladivostok, who, together with the tax declaration, in which the right to a tax refund is declared, a suretyship agreement for the management company, defined by the Federal Law "On the Free Port of Vladivostok" (a copy of the surety agreement), providing for the obligation of the management company on the basis of the requirement the tax authority to pay to the budget for the taxpayer the amount of tax received (credited to him) in excess as a result of tax refund on a declarative basis, if the decision to refund the amount of tax declared for refund on a declarative basis is canceled in full or in part in the cases provided for in this article ... The obligation of the management company to pay to the budget for the taxpayer the amounts of tax that he / she has received (credited to him) as a result of refunding tax on a declarative basis arises if the taxpayer has not complied with the tax authority's request to return the excessively received (credited) tax amounts within 15 calendar days from the moment the claim is submitted by the tax authority.
3. Not later than the day following the day of issuance of a bank guarantee (conclusion of a surety agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer about the fact of issuing a bank guarantee (conclusion of a surety agreement) in the manner determined by the federal executive body authorized on the control and supervision of taxes and fees.
4. A bank guarantee must be provided by a bank included in the list of banks that meet the requirements established by this Code for accepting bank guarantees for tax purposes. The requirements established by Article 74.1 of this Code are applied to the bank guarantee, taking into account the following features:
1) the period of validity of the bank guarantee must expire no earlier than eight months from the date of filing the tax return, in which the amount of tax to be refunded is declared;
2) the amount for which the bank guarantee was issued must ensure the fulfillment of obligations to return to the budgets of the budgetary system of the Russian Federation in full the amount of tax claimed for refund.
4.1. The requirements of the legislation of the Russian Federation on taxes and fees are applied to the surety agreement, taking into account the following features:
1) the term of the surety agreement must expire no earlier than eight months from the date of filing the tax return, in which the amount of tax to be refunded is declared;
2) the amount specified in the surety agreement must ensure the fulfillment of obligations to return to the budgets of the budgetary system of the Russian Federation in full the amount of tax claimed for reimbursement.
6.1. A bank guarantee (surety agreement) is submitted to the tax authority no later than the period provided for in paragraph 7 of this article for filing an application for the application of the declarative procedure for tax refund.
7. Taxpayers who have the right to apply the declarative tax refund procedure exercise this right by submitting to the tax authority, no later than five days from the date of filing the tax declaration, an application for the application of the declarative tax refund procedure, in which the taxpayer indicates the bank account details for transferring funds.
In the specified application, the taxpayer undertakes to return to the budget the amounts that he / she received (credited to him) in a declarative manner (including the interest provided for in paragraph 10 of this Article (if paid), as well as pay the interest accrued on the indicated amounts in the manner prescribed paragraph 17 of this article, if the decision to reimburse the amount of tax declared for reimbursement, in a declarative manner, will be canceled in whole or in part in the cases provided for in this article.
8. Within five days from the date of filing an application for the application of the declarative procedure for tax refund, the tax authority verifies the taxpayer's compliance with the requirements provided for in paragraphs 2, 4, 6 and 7 of this article, as well as whether the taxpayer has tax arrears, other taxes, arrears on the relevant penalties and (or) fines to be paid or collected in the cases provided for by this Code, and decides on the refund of the amount of tax declared for refund on a declarative basis or a decision on refusal to refund the amount of tax declared for refund on a declarative basis.
Simultaneously with the decision to reimburse the amount of tax declared for reimbursement, in a declarative manner, depending on the presence of the taxpayer's debts for these payments, the tax authority decides on the offset of the amount of tax declared for reimbursement, in a declarative manner and (or) a decision on refund (in full or partially) the amount of tax declared for refund, in a declarative manner.
The tax authority is obliged to notify the taxpayer about the decisions taken in writing within five days from the date of the relevant decision. At the same time, in the notification of the decision to refuse to refund the amount of tax claimed for refund, the provisions of this article violated by the taxpayer are indicated in a declarative manner. The specified message can be transmitted to the head of the organization, an individual entrepreneur, their representatives personally against a receipt or in another way, confirming the fact and date of its receipt.
Adoption of a decision to refuse to refund the amount of tax declared for refund on a declarative basis does not change the procedure and timing of a desk tax audit of the submitted tax return. If a decision is made to refuse to reimburse the amount of tax declared for reimbursement, the tax reimbursement is carried out in a declarative manner in the manner and within the time limits provided for by this Code. In this case, in the case specified in this paragraph, in the presence of a written request from the taxpayer, the tax authority shall return the bank guarantee to him within a period of no later than three days from the date of receipt of such a request.
9. If the taxpayer has tax arrears, other taxes, arrears of corresponding penalties and (or) fines to be paid or collected in the cases provided for by this Code, the tax authority on the basis of the decision to offset the amount of tax declared for refund in the application In accordance with the procedure, the amount of tax declared for reimbursement is independently offset in a declarative manner at the expense of the repayment of the specified arrears and arrears in fines and (or) fines. In this case, the accrual of penalties on the specified arrears is carried out until the day the tax authority makes a decision on offsetting the amount of tax declared for reimbursement, in a declarative manner.
If the taxpayer has no tax arrears, other taxes, arrears in respect of the corresponding penalties and (or) fines payable or collected in the cases provided for by this Code, as well as if the amount of tax declared for reimbursement is exceeded, in a declarative manner, over the amounts of the indicated arrears for tax, other taxes, debts for the corresponding penalties and (or) fines, the amount of tax to be refunded is returned to the taxpayer on the basis of the decision of the tax authority to return (in whole or in part) the amount of tax declared for refund on a declarative basis.
10. An order for a refund of the tax amount is drawn up by the tax authority on the basis of a decision to refund (in whole or in part) the amount of tax declared for refund on a declarative basis and is subject to sending to the territorial body of the Federal Treasury on the next business day after the day the tax authority makes this decision.
Within five days from the date of receipt of the instructions specified in paragraph one of this clause, the territorial body of the Federal Treasury shall refund the taxpayer the amount of tax in accordance with the budgetary legislation of the Russian Federation and no later than the day following the day of return, notify the tax authority of the date of return and the amount returned to the taxpayer Money.
In case of violation of the deadlines for refunding the tax amount, interest is charged on this amount for each day of delay starting from the 12th day after the day the taxpayer submits the application provided for in paragraph 7 of this article. The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation in effect during the period of violation of the repayment period.
If the interest specified in this paragraph is not paid to the taxpayer in full, the tax authority, within three days from the date of receipt of the notification from the territorial body of the Federal Treasury of the date of refund and the amount of funds returned to the taxpayer, shall decide on the payment of the remaining amount of interest and no later than one day, following the day of adoption of this decision, sends to the territorial body of the Federal Treasury an order drawn up on the basis of this decision to pay the remaining amount of interest.
11. The validity of the amount of tax declared for refund is checked by the tax authority when conducting, in the manner and terms established by Article 88 of this Code, a desk tax audit based on the tax declaration submitted by the taxpayer, in which the amount of tax to be refunded is declared.
12. If during the desk tax audit no violations of the legislation on taxes and fees were revealed, the tax authority, within seven days after the end of the desk tax audit, is obliged to inform the taxpayer in writing about the end of the tax audit and about the absence of any violations of the tax legislation. and fees.
Not later than the day following the day of sending to the taxpayer who provided the bank guarantee, a message about the absence of revealed violations of the legislation on taxes and fees, the tax authority must send to the bank that issued the specified bank guarantee a written application for the release of the bank from obligations under this bank guarantee, and if there is a written request from the taxpayer, the tax authority is also obliged to return the bank guarantee to him no later than three days from the date of receipt of such an appeal.
Not later than the day following the day of sending to the taxpayer who has provided the surety agreement of the management company (a copy of the surety agreement), a message about the absence of revealed violations of the legislation of the Russian Federation on taxes and fees, the tax authority is obliged to send the surety - the management company a written application for the release of the surety - the management company from obligations under this contract of order.
13. In the event of violations of the legislation on taxes and fees in the course of a desk tax audit, authorized officials of tax authorities must draw up a tax audit report in accordance with this Code.
The act and other materials of a cameral tax audit, during which violations of the legislation on taxes and fees were revealed, as well as objections presented by the taxpayer (his representative) must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and a decision on them must be adopted in accordance with this Code.
14. Based on the results of consideration of the materials of a cameral tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer liable for committing a tax offense or to refuse to bring the taxpayer to responsibility for committing a tax offense.
15. If the amount of tax reimbursed to a taxpayer in the manner prescribed by this article exceeds the amount of tax to be reimbursed based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of the appropriate decision provided for in paragraph 14 of this article, makes a decision to cancel the decision on reimbursement of the amount of tax declared for refund, in a declarative manner, as well as decisions on the return (in whole or in part) of the amount of tax declared for refund, in a declarative manner and (or) a decision on offsetting the amount of tax declared for refund, in a declarative manner in part of the tax amount not subject to reimbursement based on the results of a cameral tax audit.
16. The tax authority is obliged to inform the taxpayer in writing of the decisions made, specified in paragraphs 14 and 15 of this article, within five days from the date of the relevant decision. The specified message can be transmitted to the head of the organization, an individual entrepreneur, their representatives personally against a receipt or in another way, confirming the fact and date of its receipt.
17. Simultaneously with the notification of the adoption of the decision specified in paragraph 15 of this article, the taxpayer is sent a request to return to the budget the amounts he received (credited to him) in a declarative manner (including the interest provided for in paragraph 10 of this article (if paid), in the amount proportional to the share of the excessively refunded amount of tax in the total amount of tax refunded on a declarative basis) (hereinafter in this article - the claim for refund). Interest is calculated on the amounts subject to refund by the taxpayer based on an interest rate equal to two times the refinancing rate of the Central Bank of the Russian Federation in effect during the period when budget funds were used. The specified interest is calculated starting from the day:
1) actual receipt by the taxpayer of funds - in the event of a refund of the tax amount on a declarative basis;
2) making a decision on offsetting the amount of tax declared for refund on a declarative basis - in the case of offsetting the amount of tax on a declarative basis.
18. The form of the claim for refund is approved by the federal executive body authorized to control and supervise taxes and fees. The specified requirement must contain information:
1) on the amount of tax to be refunded based on the results of a cameral tax audit;
2) on the amounts of tax received in excess by the taxpayer (credited to the taxpayer) in a declarative manner, subject to return to the budget;
3) on the amount of interest provided for by paragraph 10 of this article, subject to return to the budget;
4) the amount of interest accrued in accordance with paragraph 17 of this article at the time of sending the claim for return;
5) on the deadline for the fulfillment of the claim for refund, established by paragraph 20 of this article;
6) on measures to collect the amounts payable, applied in case of non-fulfillment by the taxpayer of the claim for refund.
19. The claim for return can be transferred to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in any other way, confirming the fact and date of its receipt. If it is impossible to deliver the claim for return by the specified methods, it is sent by registered mail and is considered received after six days from the date of sending the certified mail.
20. The taxpayer is obliged to independently pay the amounts specified in the claim for refund within five days from the date of its receipt.
Not later than three days from the date of receipt of the notification from the territorial body of the Federal Treasury of the return by the taxpayer who submitted the bank guarantee of the tax amounts specified in the claim for refund, the tax authority is obliged to notify the bank that issued the bank guarantee of the bank's release from obligations under this bank guarantee, and also, if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than three days from the date of receipt of such a request.
22. Within ten days after the bank (guarantor - management company) has fulfilled the obligation to pay the amount of money under the bank guarantee (surety agreement), the tax authority sends the taxpayer a revised refund request indicating the amounts to be paid to the budget.
In this case, if the tax authority violates the deadline for sending a claim for refund, the accrual of interest on the amounts payable by the taxpayer on the basis of the claim for refund shall be suspended until the date of actual receipt of this claim by the taxpayer.
23. In the event of non-payment or incomplete payment of the amounts specified in the claim for a refund, within the specified time period, by the taxpayer who applied the declarative procedure for refunding tax without providing a bank guarantee, or by the taxpayer who received an updated demand for the refund, as well as if it is impossible to send a claim to the bank for payment of the amount of money under a bank guarantee due to the expiration of its validity period or if it is impossible to send the guarantor - the management company a claim for payment of the amount of money under the surety agreement; the obligation to pay these amounts is compulsorily executed by foreclosure on the funds in the accounts or otherwise property of the taxpayer by the decision of the tax authority on the collection of the specified amounts, adopted after the taxpayer's failure to fulfill the claim for return within the prescribed period, in the manner and terms established by Articles 46 and 47 of this Code.
24. After the taxpayer submits the application provided for in paragraph 7 of this article, before the end of the desk tax audit, the revised tax declaration shall be submitted in the manner prescribed by this Code, taking into account the specifics established by this paragraph.
If the revised tax return is filed by the taxpayer prior to the adoption of the decision provided for by the first paragraph of clause 8 of this article, then such a decision on the previously filed tax return is not made.
If the revised tax return is filed by the taxpayer after the tax authority has made a decision to reimburse the amount of tax declared for reimbursement in a declarative manner, but before the completion of a desk tax audit, then the specified decision on the previously filed tax return shall be canceled no later than the day following the day of filing the revised tax return. declaration. No later than the day following the day the decision is made to cancel the decision to reimburse the amount of tax claimed for reimbursement, on a declarative basis, the tax authority notifies the taxpayer of this decision. The amounts received by the taxpayer (credited to the taxpayer) on a declarative basis must be returned to them, taking into account the interest provided for in paragraph 17 of this article, in the manner prescribed by paragraphs 17-23 of this article.
Tax Code of the Russian Federation Article 176.1 Declarative procedure for tax refund
29.08.2007Clause 4 of Article 176 of the Tax Code of the Russian Federation stipulates that the refund of export VAT is made no later than three months, counting from the date the taxpayer submits the tax declaration and documents provided for in Article 165 of the Tax Code of the Russian Federation. In case of violation the specified period interest is calculated on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation. The tax authorities believe that if they refused to refund VAT within a three-month period, then the taxpayer is not entitled to receive interest in the event of an unlawful refusal to refund. Such a dispute was considered in the Resolution of the Federal Antimonopoly Service of the Moscow District of July 23, 2003 No. KA-A40 / 4862-03:
"Limited Liability Company" Ruzvneshtorg "(hereinafter referred to as LLC" Ruzvneshtorg ") applied to the Arbitration Court of Moscow with a statement about the obligation of the Inspectorate of the Ministry of Taxes and Duties of the Russian Federation No. , Inspectorate) to calculate and pay interest for late reimbursement of value added tax.
In support of their claims, referring to the fact that the decision of the Moscow Arbitration Court of April 24, 2002 in case No. No. 147 of December 18, 2001 on the refusal to reimburse OOO Ruzvneshtorg - the exporter of goods - value added tax in the amount of 416,174 rubles. By the same decision, the tax authority was obliged to reimburse the specified amount of tax by way of a refund.
Based on this court decision, orders of execution and excited enforcement proceedings However, no refund has been made by the tax authority to date.
By the decision of the Moscow Arbitration Court dated February 13, 2003, the claims were satisfied on the stated grounds. Inspection No. 4 for the Central Administrative District of Moscow is obliged to accrue interest in the amount of 102,053 rubles.
By the decision of the appellate instance of the same court dated April 15, 2003, the decision was upheld.
In the cassation appeal, the Inspectorate of the Ministry of Taxes and Duties of the Russian Federation No. 4 for the Central Administrative District of Moscow asks to cancel the judicial acts held in the case, citing their illegality and unfoundedness, believing that it did not violate the terms established by paragraph 4 of Art. 176 of the Tax Code of the Russian Federation, since the decision to refuse tax refund was made in a timely manner.
In its response to the cassation appeal, Ruzvneshtorg LLC considers the judicial acts adopted in the case to be lawful and asks to reject the cassation appeal.
In the session of the court of cassation, the representative of the Ministry of Taxes and Duties of the Russian Federation No. 4 for the Central Administrative District of Moscow supported the arguments of the complaint. The representative of OOO Ruzvneshtorg objected to her satisfaction.
Having checked the materials of the case, having discussed the arguments of the complaint, having heard the representatives of the parties, the court of cassation finds no grounds for canceling the decision and ruling of the court.
In accordance with paragraph 4 of Art. 176 of the Tax Code of the Russian Federation, value added tax refunds are made no later than three months, counting from the date the taxpayer submits the tax return specified in clause 6 of Art. 164 of the Tax Code of the Russian Federation and documents provided for in Art. 165 of the Tax Code of the Russian Federation.
During this period, the tax authority checks the validity of the application of the 0% tax rate and tax deductions and makes a decision on reimbursement by offset or refund of the corresponding amounts, or on refusal to reimburse.
In case of violation of the terms established by this paragraph, interest is charged on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation.
Satisfying the claims, the court proceeded from the fact that the tax authority violated the tax refund period established by the above article.
This is evidenced by the materials of the case.
So, on September 20, 2001, the taxpayer filed a tax return for August 2001 with the submission of documents provided for in Art. 165 of the Tax Code of the Russian Federation (p. 34).
By Decision No. 147 of December 18, 2001, the tax authority refused to reimburse VAT (p.p. 37 - 38).
The decision of the Moscow Arbitration Court of April 24, 2001 established the plaintiff's right to a tax refund, the above decision of the tax authority was declared invalid, and the Inspectorate is obliged to refund the tax. The facts established by the said court decision are based on paragraph 2 of Art. 69 of the Arbitration Procedure Code of the Russian Federation, prejudicial significance for the present case.
Evidence proving the actual offset or, the defendant is not presented.
In such circumstances, the cassation instance agrees with the conclusion of the court of first instance on the obligation of the Inspectorate of the Ministry of Taxes and Duties of the Russian Federation No. 4 in the Central Administrative District of Moscow to charge interest for untimely refunds of tax amounts.
The argument of the cassation appeal that the defendant did not violate the deadline, since the decision to refuse VAT refund was made within three months, provided for in paragraph 4 of Art. 176 of the Tax Code of the Russian Federation, and therefore interest is not subject to accrual, was the subject of consideration by the court of first and appeal instances and was lawfully rejected, since the law associates the accrual of interest not only with a violation of the deadline for making a decision on the merits of the documents submitted by the taxpayer, but also with a violation of the taxpayer's right to timely compensation tax him.
In addition, the interpretation of the norms of the Tax Code of the Russian Federation, including the provisions of clause 1 of part 1 of Art. 32 of the Tax Code of the Russian Federation on the unconditional obligation of tax authorities to comply with the legislation on taxes and fees, allows us to conclude that in paragraph 4 of Art. 176 of the Tax Code of the Russian Federation we are talking about making a legal and well-grounded decision.
The recognition by the court in case No. А40-42880 / 02-107-45 of the defendant's decision to refuse to refund the tax to the plaintiff as invalid indicates the failure of the tax authority to fulfill the obligation to issue a legal and reasoned decision within the specified time period.
She did not present any objections to the methodology for calculating the interest of the Inspectorate of the Ministry of Taxes and Duties No. 4 in the Central Administrative District of Moscow and did not state it in the cassation appeal.
The cassation instance considers that the norms of substantive law have been correctly applied by the court, the requirements of procedural legislation have been complied with, the conclusions correspond to the factual circumstances and the evidence collected in the case. "
A similar situation was considered in the Statement of the FAS of the North-West District of July 1, 2003 No. A56-35058 / 02, the court noted the following:
"Limited Liability Company" Sphinx "(hereinafter - the company, LLC" Sphinx ") appealed to the Arbitration Court of the city of St. Petersburg and Leningrad region with a statement to the Inspectorate of the Ministry of the Russian Federation for Taxes and Levies for the Krasnoselsky District of St. Petersburg (hereinafter - the Inspection) to recover 56270 rubles. 09 kopecks interest for violation of the value added terms provided for by paragraph 4 of Article 176 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation).
The Company, in accordance with Article 49 of the Arbitration Procedure Code of the Russian Federation, increased the amount of interest charged to 72,291 rubles. 43 kopecks
By a decision of 19.12.2002, the court satisfied the application of Sphinx LLC in full.
The decision of the court was changed by the decision of the appellate instance. 69340 rubles were collected from the Inspection. percent, and the rest of the stated claims were denied.
In the cassation appeal, the Inspectorate asks to cancel the judicial acts adopted in the case and to refuse the public to satisfy the application. According to the submitter of the complaint, the interest provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation is accrued only if the deadlines established by the said article are violated, and not if the tax authority makes an unlawful decision to refuse to refund value added tax (hereinafter - VAT).
The Inspectorate also indicates that interest should be calculated from the moment the decision is taken by the court of appeal.
Representatives of the Inspectorate, duly notified of the time and place of the consideration of the case, did not appear at the hearing, and therefore the complaint was considered in their absence.
At the hearing, the representative of the company rejected the arguments of the cassation appeal.
The legality of the contested judicial acts was verified in cassation.
As can be seen from the materials of the case, on February 19, 2002, the company submitted to the tax authority a VAT return at a rate of 0 percent for January 2002, according to which 669,882 rubles were claimed for reimbursement from the budget. VAT, as well as a package of documents provided for in paragraph 1 of Article 165 of the Tax Code of the Russian Federation, confirming the validity of the application of the 0 percent rate and tax deductions.
The Inspectorate carried out a desk audit of the declaration and documents submitted by the company, based on the results of which a decision was made dated May 16, 2002 N 10 / 110k to refuse the company to reimburse 669581 rubles from the budget. 44 kopecks VAT.
The decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region of June 16, 2002 in case No. A56-16859 / 02, which entered into legal force, invalidated the said decision of the tax authority.
Since the Inspectorate did not return the VAT on exports to the applicant for January 2002, the company applied to the arbitration court with an application for the recovery of RUB 72,291. 43 kopecks interest accrued for the period from 10.06.2002 to 11.12.2002, which the court of first instance satisfied in full.
The appellate instance, by a resolution of 13.03.2002, changed the court's decision, collecting RUB 69,340 from the tax authority. interest for the untimely refund of the tax by Sphinx LLC, indicating that according to the opinion of 23.08.2002 N 1591 presented by the Inspectorate at the hearing and the extract from the taxpayer's personal account, the company on 28.08.2002 received a refund from the budget of 76479 rubles. 44 kopecks VAT. Thus, interest on this amount is not subject to accrual from 28.08.2002.
According to the second paragraph of clause 4 of Article 176 of the Tax Code of the Russian Federation, VAT refunds are made no later than three months, counting from the date the taxpayer submits the tax declaration and documents provided for in Article 165 of the Tax Code of the Russian Federation.
The tenth paragraph of clause 4 of Article 176 of the Tax Code of the Russian Federation established that no later than the last day of the period specified in paragraph two of clause 4 of Article 176 of the Tax Code of the Russian Federation, the tax authority decides to return the tax amounts to the taxpayer from the relevant budget and, at the same time, sends this decision for execution to the appropriate body of the federal treasury.
carried out by the federal treasury authorities within two weeks after receiving the decision of the tax authority. In the event that such a decision is not received by the relevant federal treasury body after seven days, counting from the date of sending by the tax authority, the date of receipt of such a decision is the eighth day, counting from the date of sending such a decision by the tax authority.
In case of violation of the terms established by the specified norm, interest is calculated on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation.
Thus, the court of cassation considers that the conclusion of the courts is legitimate that interest is accrued within the meaning of the provisions of paragraph 4 of Article 176 of the Tax Code of the Russian Federation in cases of non-return or non-return of VAT amounts lawfully presented for reimbursement from the budget. At the same time, a violation of the terms can occur both due to the failure of the tax authority to take a decision on tax refund, and as a result of an illegal decision to refuse tax refund.
In the case under consideration, the company was not reimbursed the VAT for January 2002 within the time limits established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation, therefore, the courts reasonably collected interest from the Inspectorate in favor of the company for late VAT refunds.
The cassation instance considers that the court of appeal lawfully reduced the amount of interest charged, taking into account the fact that on 28.08.2002 the tax authority returned RUR 76479 to OOO Sphinx. 44 kopecks VAT.
In such circumstances, it should be recognized that the decision of the court of appeal was adopted in compliance with the rules of substantive and procedural law, and there are no grounds for changing or canceling it. "
Conclusions:
Thus, if the tax authority makes a decision within a three-month period to refuse to refund VAT and subsequently such a decision is declared illegal, then the refund amount will be charged with interest at the rate of the Central Bank of the Russian Federation.