Suspension of operations on the current account. About the procedure for suspension of operations on taxpayer accounts
An unexpected and unpleasant situation is when a refusal to make a payment comes in or it is impossible to cash out due to the suspension of operations on bank accounts. The ban or restriction may affect both the individual and the entrepreneur and the company.
The reason for this may be one of the following factors:
- court decisions of any jurisdiction;
- order of bailiffs;
- act of the Federal Tax Service.
The suspension of operations on bank accounts means only a ban on expenses (write-off, transfer and withdrawal), while proceeds continue to be carried out.
You should know: “According to Article 76 of the Tax Code, when restrictions are imposed, the bank is obliged to carry out expenditure operations, the priority of which precedes the obligations to pay taxes and fees.”
The second paragraph of Article 855 of the Civil Code establishes the following sequence of payments:
1. Recovery under alimony, compensation for harm to life and health.
2. Payment of benefits, salaries and labor on a contract basis.
3. Repayment of debts to the budget, PFRF and FSS.
4. The rest of the executive documents.
5. Other payments.
Grounds for Sanctions
The reason for the suspension of operations on taxpayer accounts with a bank may be arrears arising from recalculation for previous periods and delays in paying current taxes and insurance premiums. Failure to pay penalties, interest and imposed penalties, failure to comply with the deadlines for submitting a declaration.
Thus, three reasons for the prohibition of consumption are legislatively fixed:
- failure to fulfill the requirements for the payment of taxes, fees and penalties in accordance with clause 2 of article 76 of the Tax Code (sometimes a penny amount may also serve as a reason for blocking);
- failure to submit a declaration within 10 days after the deadline in accordance with paragraph 3 of Art. 76 Tax Code;
- for committing a tax offense identified as a result of the audit (subparagraph 2 of paragraph 10 of article 101 of the Tax Code).
Blocking should be made only for the amount of collection. If the funds in the account exceed the obligations, then payments in excess of the established limit must be made. For example, the bank has 300 thousand rubles, and restrictions are imposed on the amount of 100 thousand rubles, therefore, expense orders within 200 thousand rubles must go through.
The imposition of restrictions is also used in case of failure to submit a tax return within the specified period. In such a situation, sanctions are more stringent, but resolving the problem is much easier. All accounts are subject to blocking without setting a limiting amount, and the entrepreneur or organization cannot carry out expenditure operations at all.
The decision to impose financial restrictions is taken by the management of the tax authority. The procedure for suspension of operations on bank accounts requires first to send the corresponding document to the financial organization, where it is accepted for execution. Only then, no later than the next business day, a copy of the decision is sent to the taxpayer in any way that allows you to witness its receipt.
Blocking as a preventive sanction is also allowed in the case of a tax audit. In this case, at the time of its holding, the tax authority, guided by Articles 76 and 101 of the Tax Code of the Russian Federation, blocks cash flow.
What accounts can be blocked
According to Art. 76 of the Tax Code of the Russian Federation, Article 11 of the Tax Code of the Russian Federation, as well as Resolution No. 2942/10 and Resolution of the Federal Antimonopoly Service No. A68-9966 / 2008-5 / 18 are subject to blocking accounts that have the following characteristics:
- used for crediting and transferring funds;
- ruble and in foreign currency;
- not loanable;
- not including third-party funds;
- attached to corporate cards.
Restrictions cannot be imposed on the following categories of accounts:
- transit;
- loan;
- deposit;
- general (belonging to partnerships).
You should know: “The collection (transfer) of taxes and fees debts is carried out only from the taxpayer’s funds that belong to him and there is documentary evidence of this.”
How to unlock
Having learned about the imposition of sanctions, you should find out their cause and establish the legality of the decision. Trace the passage of priority operations, eliminate the reason for imposing restrictions, and in case of unlawful actions of both the financial organization and the tax authority, compensate the losses incurred through the court.
To cancel the suspension of operations on bank accounts, it is necessary to satisfy the requirements, if the arrest is lawful, or to challenge it, in the opposite case. The lock is removed by making an appropriate decision by the authority that imposed it. Tax authorities will lift the sanction in case of:
- submitting a declaration;
- payment of existing debt.
If financial restrictions were introduced erroneously or in violation of the law, you should personally contact the tax authority with a written or oral complaint, having in your hands documents confirming your innocence. Such "mistakes" rarely reach the court and, as a rule, are resolved in the next day or two.
Attention! If the account is not unblocked within the time period specified by law, the inspection (or the bank, if the delay was due to his fault) is obliged to pay interest for the unlawful suspension of operations. However, from this amount you have to pay income tax.
Blocking current (settlement) accounts creates many problems, suspends the activities of an entrepreneur (organization), and generates lost profits. In order to avoid such an unpleasant situation, one should not postpone the submission of declarations and hesitate to pay taxes.
If this nevertheless happened, it is necessary to resolve the problem as soon as possible. By a coincidence, the tax authority and the bank that imposed the restriction may delay the release. In order not to waste time, you can open a new account in another bank during the sanction period.
To bookmarks
My name is Tatyana, I am the owner of the consulting center Profdelo and a tax consultant, specializing in working with IT and DIGITAL.
A wave of suspension of operations on the accounts of law-abiding FE by online banks swept. Wang, that the suspensions will continue, there will be more, complaining, articles and posts on social networks even more.
The problems are not only for the IP, but also for the LLC. Online banks tackle more often because they are not in the top 11 and risk a license more. What to do if operations are suspended, I’ll tell you step by step.
Step 0. Provide supporting documents clearly on the list in full
If some of the documents from the requested list are not applicable to you, explain in writing to the bank why. Provide written explanations on the activities of your LLC or IE, especially if you know why you specifically suspended the account.
Do not write "unsubscribe" - write honestly and completely, if there is nothing to hide. If you have something to hide, consult with a tax consultant what is better to write and how to file a situation.
Why I called this step "action 0". It is necessary to provide the requested correctly, on the machine, by default. Do not even think about not providing documents or providing an incomplete package - cross out your prospects.
We answer the bank request correctly:
- receive a written request for the provision of documents and information;
- gather a complete set of requested documents;
- for each missing document, give a detailed explanation in the cover letter;
- provide the requested information in writing in a cover letter;
- make an inventory of the transferred, include a cover letter in it;
- respond to the request in writing through remote banking services (via Internet banking);
- at the request of the bank, bring the requested personally to the department, while leaving yourself a second copy of the inventory with a mark of acceptance (date, name, signature, position of the person who accepted it, tank stamp if possible);
- answer additional questions that compliance asks in writing or in a chat;
- provide additionally requested documents or information;
If the answer is not received after 3 business days, officially inquire about the results of the proceedings.
Update by Georgy Pankov: It is important that the bank has the right to independently suspend account operations only for up to 5 business days (paragraph 10 of Article 7 of Law 115-FZ). Blocking for a longer period is possible only by decision of Rosfinmonitoring or a court decision. If, after 5 (five) business days, the Rosfinmonitoring resolution has not been received, the bank is obliged to resume operations on the account by order of the client.
Step 1. Find out how much money is left and are you ready to donate it?
What do law-abiding entrepreneurs and small business owners begin to do after they learn about the suspension? - Swearing with a bank in a chat room and writing angry posts on social networks. This will not help to take the money.
Find out the balance and decide if it is relevant to your budget. If there are 100 rubles, they can be sacrificed and continue to be further indignant in public space. If there are more than a million rubles - most likely you will want to return them.
Step 2. Open a bank account in another bank.
The law does not prohibit opening several open accounts in different banks. Choose a reliable large bank out of three: Sberbank, Raiffeisen, VTB - they are less faulty. Yes, you have to sacrifice online convenience, but save finances.
Why do I recommend opening a second account at this stage? - Since you were suspected of laundering (violation of 115-ФЗ), it is very likely that they will blacklist the Central Bank of the Russian Federation about your IP or LLC and it will be either difficult or impossible to open an account. This paralyzes business for the long term.
Step 3. Evaluate the chances of a refund
Reread the contract with the bank - what commission is taken from the balance of funds if you close the account in 115-FZ. Usually it is from 10 to 25%.
Examine your business, or consult your tax advisor to see if you are really at risk.
Criteria for verification:
- You take out a lot of money on a personal card (more than 200-300 thousand rubles a month, even if it is stipulated by the tariff and the bank charges a good commission for it).
- You withdraw cash in large amounts (more than 100 thousand rubles per month).
- The money in the account does not “run out”; you immediately transfer it further or withdraw it.
- Apply a patent or carry out agent activities, and taxes make up less than 0.9% of the debit turnover of the account (debit turnover on the statement is an expense, you can print and check it yourself).
- Payments come with VAT, but leave without VAT, and the amount of VAT payable is small.
- Use in your work services that are seen in tax evasion or in tax evasion (payment acceptance services through terminals, salary tax evasion services, etc.)
We found that the bank really has reasons not to love you - your task is to withdraw all your money as quickly as possible so as not to get on a high commission. If the remote service is blocked, bring a payment to the supplier, either for taxes or to another account.
If everything is bad, the supplier may not be able to go to another account, but they have no right not to pay taxes. If you did not find the reasons for the suspension, but the account was not unlocked 2 days after the bank received the answer, run. The account will most likely not be unlocked.
Action 4. Two scenarios
Option a. It was not possible to withdraw money, the account was blocked under 115-ФЗ, the bank withdrew a commission of 10-15-25%
Before the court, you need to file a written claim in which to state the requirements. The claim is sent to the bank by registered mail. The second copy remains with you. You can also transfer a claim in person, having received a acceptance mark on the second copy. If the answer to the claim does not satisfy you, send the second. At this stage, you should already work with a lawyer who will protect your interests in court.
In court, the arguments will be as follows:
- According to the agreement with the bank, the commission is charged in case of failure to provide or incomplete provision of documents. You have fulfilled your duty in full.
- No other information was requested by the bank. If there were - you provided them exhaustively.
- There are no signs of money laundering or terrorism in your business, and the data provided to the bank prove it.
- The legislation does not provide for an increased commission in case of closing an account at the initiative of the bank under 115-ФЗ.
In the first instance may not be able to win, do not despair. LLC won the court on appeal (in the second instance). More details in the Decree of the AC of the Moscow District of 08.13.2018 in the case No. A40-192833 / 2017.
Option b. They managed to save the money, they brought them to another bank
Rest for a couple of days, and then urgently eradicate the reasons that led to the suspension or blocking of the situation. If the causes are not eradicated, blocking will continue.
The most difficult thing is for those who pay little taxes on a patent or on agency contracts - such entrepreneurs will have problems constantly until the CBR policy loosens.
Consider paying more (at least 1% of turnover). If it doesn’t ruin you much, do it. Include this “sacrifice” in the price of your services - raise prices a little.
If you can’t pay taxes at the norm, look for acquaintances in the bank’s management. Consider a small local bank that will go into your position and not block your account.
If you carry out risky operations on the instant transfer of money to yourself, other individuals or cash withdrawals, let the money lie down.
It is better to transfer finances to your card and withdraw from there than to withdraw directly from the account of an individual entrepreneur or, especially, LLC. Get several cards in different banks so that it is not tracked how much you withdraw cash in the terminals.
If you find other obstacles - discuss this issue with a competent tax consultant and develop measures that will protect the business from blocking.
Currently, quite often there is a suspension of operations on taxpayer accounts with a bank. This measure is used by regulatory authorities. It should be said that this creates significant obstacles to the business activities of legal entities and individual entrepreneurs. In addition, the use of this tool is far from always legitimate. We will consider further when suspension of operations on bank accounts with respect to a taxpayer is allowed.
General information
The suspension of operations on bank accounts means the actual freezing of funds. That is, the owner cannot move them anywhere. An exception is only those operations, the implementation of which, in accordance with the Civil Code, precedes the obligation to deduct fees and taxes. At the same time, transfers are made without any restrictions. The grounds for suspension of operations on taxpayer accounts with a bank may vary.
Default
This is one of the most popular reasons for suspending operations with bank accounts. An article of the law provides for the freezing of funds in order to enforce the collection of outstanding contributions to the budget, including fines and penalties. The decision on blocking cannot be made earlier than the act on imposition of the penalty is adopted. Funds are also frozen to pay interest. This is due to the fact that% is collected according to the same rules as mandatory deductions. The suspension of operations on bank accounts is carried out for the amount specified in the relevant decision. The remaining funds are not blocked and can be used.
Failure to submit a declaration
Suspension of operations on bank accounts is applied in cases when the subject within ten days after the specified time has not passed the reporting documentation to the supervisory authority. This allows the supervisory authority to make an appropriate decision on the blocking of funds. In this situation, a complete suspension of operations on bank accounts will be undertaken. This puts the entrepreneur in an extremely difficult position. In such situations, the size of the balance, the amount of income, will not matter.
Limitation period
The maximum period after which suspension of operations on bank accounts cannot be carried out was not initially established by the Tax Code of the Russian Federation. This was clarified in a letter to the Federal Tax Service dated February 9, 2011. But from January 1, 2015, this period is limited to 3 years. The calculation starts from the day the ten-day period ends.
Additionally
From January 1, 2015, the suspension of operations on bank accounts is allowed if the entity within ten days after the expiration of the established time has not provided a receipt on the receipt of requirements for the presentation of appropriate documents, notifications of a call to the inspection, explanations sent to him in electronic form. This is established in Art. 10 Federal Law No. 134. Thus, the suspension of operations on bank accounts is applied in cases of evasion of paying off liabilities to the budget and failure to submit a declaration on time. Blocking funds on other grounds is not allowed.
Important point
The submission of the declaration in paper form is not foreseen from January 1, 2014. The Metropolitan Inspectorate explained that if the rules for the provision of accounting documents in electronic form are not complied with, the entity is threatened with liability under Art. 119.1. At the same time, non-submission of the declaration via telecommunication channels does not provide for suspension of operations on bank accounts. Article 76 of the Code will apply if the entity has not submitted reports at all. At the same time, the supervisory authority may take interim measures if necessary. Among which, in particular, the suspension of operations on bank accounts.
Blocking Decision
There is a certain procedure for suspension of operations on bank accounts. The relevant order is approved by the head of the Federal Tax Service or his deputy. Informing banks about the suspension of operations on accounts is carried out electronically. The decision should be sent to the organization serving the entity. A copy of the order must also be transferred to the debtor company. In this case, there must necessarily be documentary evidence that the subject received the decision. It can be a receipt or other paper. The company must be notified no later than the next day after the decision. The authorized bodies are required to comply with the procedure for suspension of operations on bank accounts. Otherwise, their actions may be challenged.
What gets under lock?
A current (settlement) or other account is opened with a bank in the name of the subject upon conclusion of an agreement with a financial institution. The latter under the terms of the signed agreement assumes a number of obligations. In particular, the banking structure accepts and credits funds to an account opened with a client, fulfills its orders on the issue and transfers, and other transactions. When blocked, respectively, the financial structure does not fulfill its obligations. This measure applies to any accounts that may receive funds and from which they may be spent. This applies equally to both currency and ruble p / s. The first ones are blocked, as a rule, when there are insufficient funds in national currency accounts or when operations on all available accounts are completely suspended. Not only can r / s be frozen. The blocking may also apply to corporate accounts intended for employees to make settlements using corporate bank cards and record transactions with them. An explanation on this issue in 2010 was given by the Presidium of the Supreme Arbitration Court.
Exceptions
The suspension of operations on bank accounts does not apply with respect to:
- Transit movements of funds. This is due to the inconsistency of the accounts for which such operations are carried out, to the signs given in Art. 11, p. 2. They are opened for currency transfers simultaneously with the payment in foreign money, regardless of the will of the enterprise.
- Loan accounts. They are intended for the repayment of borrowed funds by the debtor. At their core, they do not act like bank accounts. This clarification is given in the letter of the Ministry of Finance dated November 21, 2007.
- Settlement accounts that are open for joint venture partnership activities. Money for them is in the common ownership of all participants, and not one entity. Collection from them can be made only in the amount that is assigned to the debtor on the basis of ownership.
Deposits
They open in accordance with the deposit agreement. An enterprise cannot transfer funds from such accounts. This clarification is given in the Letter of the Ministry of Finance No. 03 02 07 / 1-497. Along with this, it should be noted that under Art. 46, p. 5 of the Tax Code, no tax is collected from a deposit, provided that its term has not yet expired. If the deposit agreement is valid, the control authority can instruct the financial organization. In accordance with it, the bank will have to transfer funds from the deposit after its expiration on the account, if by that time the debtor has not fulfilled its obligations. Thus, in fact, there is a global suspension by banks of operations on settlement accounts. Financial institutions are required to inform the Federal Tax Service about the availability of deposits and fund balances on them.
Limitations and opportunities of the Federal Tax Service
The suspension of operations on bank accounts, as mentioned above, implies the inability to carry out expenditure actions with funds. That is, the owner can not transfer them to the counterparty, to remove by checkbook. However, far from always and not all operations can be terminated. For example, if a penalty is levied, then the transfer of funds is allowed in excess of the amount charged. In addition, the sequence of obligations that must be fulfilled before the amount established by the Federal Tax Service is recovered is established. The sequence is established when it is likely that the funds available to the debtor may not be enough to make all payments. The first are satisfied requirements for executive documents, which provide for the transfer or issue of funds to compensate for damage to life or health, as well as the recovery of alimony.
Suspension of bank accounts: payroll
Repayment of debts to employees can be carried out according to executive or payment documents. First, the requirements for IL are satisfied. The executive documents may provide for the transfer or issue of funds for the payment of severance pay, salaries to employees (both former and present) under an employment contract, remuneration to the authors of products of intellectual activity. Next in turn will be settlements on payment securities. In them, in addition to remuneration of employees, an order may be provided by the Federal Tax Service to write off and transfer debts on budgetary contributions, the Social Insurance Fund and the Pension Fund to deduct insurance contributions.
Other requirements
In the fourth turn, obligations under other writ of execution providing for monetary penalties will be repaid. The remaining debts on payment documents will be executed in calendar priority. Thus, the write-off of amounts to budget allocations will be carried out in the third turn. If there is not enough funds to satisfy the requirements of the Federal Tax Service, the financial institution serving the debtor first transfers the funds according to documents 1 and 2 of the queue.
Write-off Features
Payments in the same sequence are made in the order of the calendar line. For example, a payment document for paying off wage arrears was received earlier than a collection order from the Federal Tax Service. The service organization must first satisfy the first request received. If the funds remain in the account, the debt to the budget is repaid. In case of blocking due to failure to submit a declaration and in the absence of an order from the Federal Tax Service to write off budget deductions, the service organization can satisfy the requirements of payment documents for salaries of persons working under a labor contract.
Bans
It should be noted that in accordance with the amendments made by the Federal Law No. 248 to Art. 76, p. 12, if there is an order to suspend taxpayer settlement operations in the Russian Federation, the financial institution cannot open new accounts or provide the debtor with the opportunity to use electronic payment instruments. To ensure the implementation of this requirement, a special Internet service was introduced. It allows banking institutions to quickly receive information about the availability of decisions on the suspension of settlement operations on customer accounts and electronic funds transfers.
This Internet resource is accessible and open for use by financial organizations. Prior to making these changes to the Tax Code, entrepreneurs could not open accounts only in those banks to which the relevant decisions on freezing were sent. In addition, the debtor will not be able to close the blocked account if there is money left on it. This is due to the fact that when this procedure is completed, funds must be spent. And by decision of the authorized body, expenditure operations are suspended. Even if there is no remainder on the r / s and it is closed, the order will still continue to operate. This means that it is not possible to open a new account.
Unlock
Of course, the company is interested in thawing its assets as soon as possible. The suspension of operations on bank accounts is canceled if the following reasons exist:
- Repayment of debts to the budget or collection of amounts by the Federal Tax Service. Upon receipt by the tax office of documents confirming the payment of arrears (fines, penalties), the suspension of operations is removed. To accelerate the unlocking, the necessary papers can be submitted to the authorized body by the head or representative of the debtor organization or by the entrepreneur himself, together with a statement on defrosting of the c / s. The Federal Tax Service must decide on lifting the suspension of operations no later than the next day after receipt of the documents.
- Submission of a declaration. After receiving the reporting documentation, the Federal Tax Service is obliged the next day to decide on the cancellation of an earlier order to suspend operations on accounts. If the company sent a declaration, but the blocking still occurred, it is necessary to submit an application for defrosting of the r / s to the inspection. Documents confirming that the report was sent on time are attached to it.
Statement
The right to cancel the decision to suspend settlement operations arises when an amount exceeding that indicated in the order is formed on the account. The application is made in any form. The text indicates the account on which there is enough money to pay off the debt. A supporting document is attached to the application. It is a bank statement. In addition, indicated r / s, which must be thawed. The FTS within two days should make a decision on the satisfaction of the application and the cancellation of the earlier order regarding the excess of the amount owed.
Responsibility of the Federal Tax Service
If the inspection has violated the terms of decision-making or blocked accounts, without any reason, it is obliged to pay interest. The rules for their accrual are established in Art. 76, paragraph 9.2 of the Code. Interest is paid for calendar days of illegal suspension of operations or delay in making a decision to withdraw it. If the order was initially unlawful, accrual is made from the date it was received by the financial institution.
Interest is calculated on the basis of the amount that was frozen, that is, on the funds that the company could not dispose of in any way, and not on the amount indicated in the decision. For example, by order of the blocking, 100 thousand rubles are subject to blocking, and there were only 30 on the regional railway station. Interest will be accrued on exactly 30 thousand rubles. In case of unlawful blocking of accounts due to non-receipt of a declaration, the calculation is made with respect to all funds that were at that time in the accounts. The interest rate is the Central Bank refinancing rate. The indicator is taken, which was valid in the days of unlawful blocking, violation by the Federal Tax Service of the deadlines for issuing a decision or sending an order to a financial organization to cancel the suspension of operations.
When the inspection can not freeze p / s?
The blocking of operations on accounts can be considered illegal if the decision is made in connection with:
- Failure to provide financial statements within the prescribed period.
- Failure to provide the agent with the settlements provided for in Part 2 of the Tax Code.
- The presence of an error in the presented declaration, if it does not appear as a basis for refusal to accept (for example, the checkpoint is incorrectly indicated).
- Failure to provide information on average headcount on time.
- Failure to receive the FTS declaration in a timely manner through the fault of the operator of telecommunications networks or mail.
- Signing of accounting documentation by an unauthorized person.
In all these cases, the decision to suspend settlement transactions will be illegal. Accordingly, it can be challenged.
conclusions
The grounds on which the tax inspectorate may suspend settlement operations on the debtor's accounts are listed in Art. 76 Tax Code. This list is considered exhaustive. No other reasons may serve as a basis for blocking the account. It is necessary to know not only the entrepreneur / organization itself, but also the financial structure that serves it. In addition, it should be borne in mind that the blocking can concern only those r / s that are open on the basis of the relevant agreement.
The suspension of operations on other accounts (transit, deposit, loan, etc.) is an occasion to challenge the actions of the Federal Tax Service. The ability of the debtor to block will depend on the amount of funds that are on his account. If there is more money than the amount owed, then operations can be carried out. Funds in the amount of unliquidated obligations will be frozen, and all the rest will be at the free disposal of the subject. However, such an account cannot be closed. When repaying obligations, the priority established in the Code must be observed. The blocking cannot apply to payments that are required by law to be paid before debt to the budget.
Conclusion
Undoubtedly, the suspension of the operation on settlement accounts has an extremely negative effect on the activities of companies and individual entrepreneurs. In order to avoid these kinds of problems, experts recommend that everyone pay attention to the timely fulfillment of their obligations. This applies not only to deductions to the budget, but also to reporting in a timely manner and in proper form. If blocking of settlement operations has occurred, one should not delay the solution of the problem.
If the funds for r / s are not enough, you need to fix this as soon as possible. Having settled all debts, you should immediately notify the supervisory authority and submit an appropriate application to remove the lock. The faster this is done, the faster, accordingly, the funds will be unfrozen. The legislation sets a fairly short time frame within which the Federal Tax Service must decide to cancel the suspension of settlement transactions. Therefore, the problem can be solved as soon as possible after the repayment of debts. If the authorized body delayed the decision, he will be obliged to compensate for his inaction by paying interest.
The suspension of operations on bank accounts is a very serious event for any business entity, since it can paralyze almost all of its activities. What are the reasons for the suspension and how to solve this problem, we will consider in our article.
Legislation limiting account management
- account seizure;
- suspension of operations on it, including the freezing of funds.
These measures imply a temporary cessation of debiting money from the account and are used to ensure compliance with legislative requirements and court decisions.
Arrest is imposed on a certain amount under the procedural law:
- court to enforce the judgment (Art. 142 Code of Civil Procedure of the Russian Federation, Art. 96 APC of the Russian Federation);
- preliminary investigation bodies to ensure the enforcement of a court verdict in terms of a civil action (Article 115 of the Code of Criminal Procedure)
- the bailiff to ensure the enforcement of the requirements of the writ of execution (Law "On Enforcement Proceedings" dated 02.10.2007 No. 229-ФЗ, hereinafter - Law No. 229).
Suspension of operations on bank accounts is carried out:
- Based on the decision of the fiscal authority.
- Banks (financial institutions):
- in cases stipulated by the law "On counteracting the legalization (laundering) of income ..." dated 07.08.2001 No. 115-ФЗ (hereinafter - the law No. 115-ФЗ);
- if there is any doubt regarding the writ of execution received from the claimant (Clause 6, Article 70 of Law No. 229).
Can a tax block a legal entity's bank account, reasons for blocking
The Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation) granted the fiscal authorities the right to make decisions on the suspension of operations on bank accounts (blocking) of a participant in economic activity and civil turnover. The blocking of accounts aims to influence the organization to ensure compliance with tax laws.
The reasons for blocking the account are listed in the Tax Code. They can be conditionally divided into groups according to the degree of limitation of the ability of the account holder to manage their funds. Blocking can be full or partial.
Partial suspension of operations on a bank account consists in a ban on debiting a certain amount from the account and is applied if:
- obligatory payments and (or) penalties for their non-payment have not been paid;
- based on the results of a desk or field audit, the fiscal authority collects debt (subparagraph 2, paragraph 10, article 101 of the Tax Code of the Russian Federation).
Full account blocking is entered if:
- within the period specified by law, a tax return has not been submitted (subparagraph 1, paragraph 3, article 76 of the Tax Code of the Russian Federation);
- the fiscal authority is not provided with the ability to work with documents through the telecommunication channel (subparagraph 1.1 p. 3 article 76, subparagraph 2 p. 3 article 76 of the Tax Code);
- the organization, which is a tax agent, has not submitted documents relating to the calculation and transfer of personal income tax (paragraph 3.2 of article 76 of the Tax Code of the Russian Federation).
IMPORTANT! Blocking does not affect those transfers which, by virtue of clause 2 of Article 855 of the Civil Code of the Russian Federation are carried out before taxes and fees (paragraph 1 of Article 76 of the Tax Code of the Russian Federation).
Account Blocking Procedure
Since for organizing the suspension of operations on a bank account is a rather serious problem, only the head (deputy) of the fiscal body is entitled to make such a decision. The decision to block is sent to the financial institution by electronic communication no later than the next day after its adoption. A taxpayer is sent a copy of the document at the same time.
Upon receiving a decision, a financial organization is obliged to execute it in the manner prescribed by law. The Tax Code of the Russian Federation clearly defines the actions associated with blocking the accounts of the organization. Guided by Article 76 Tax Code, financial institution:
- stops writing off money from accounts subjected to blocking (para. 2 p. 1);
- reports to the fiscal authority within 3 days information on the amounts held on blocked accounts (clause 5);
- if the taxpayer after making a decision to block the account has changed its name and / or account details, it will stop writing off money from the changed account (para. 3 p. 7);
- exempted from the obligation to open new accounts at the request of the taxpayer.
IMPORTANT! In this case, the taxpayer will not be able to open accounts in another financial structure (Clause 12, Article 76 of the Tax Code of the Russian Federation).
Crediting of funds received to the organization’s account is carried out as usual.
Partial blocking of accounts by tax authorities
A partial suspension of operations on a bank account is applied by fiscal authorities if:
- The organization has not fulfilled or improperly fulfilled the obligation to pay taxes, fees and fines. In this case, the fiscal authority decides to enforce the collection of these payments (subparagraph 1, paragraph 2, article 46 of the Tax Code of the Russian Federation).
The decision is made within 2 months after the deadline for voluntary payment of the debt (paragraph 3 of article 46 of the Tax Code). To ensure the implementation of this decision, the fiscal authority restricts account transactions. Moreover, if there is more money in the account than the size of the debt, then the organization can manage the amount exceeding the size of the debt without any restrictions (subparagraph 1, paragraph 2 of article 76 of the Tax Code of the Russian Federation).
- As a result of a desk (exit) check, a tax violation was revealed. In this case, the fiscal authority holds the organization accountable and / or decides to recover arrears, penalties and fines. In order to enforce the decision, the following measures are applied:
- a ban on the transfer (pledging) of certain property without the consent of the fiscal authorities;
- a ban on debiting money from an account for the amount specified in the decision of the fiscal authority and not covered by the value of the property of the organization (clause 10 of article 101 of the Tax Code of the Russian Federation).
Full blocking of accounts by tax authorities
The full debit of money from a bank account is terminated in the following cases:
- In case of untimely submission or failure to submit a tax return.
For this reason, the fiscal authority can block the account at any time within 3 years after the expiration of the period specified by law (subparagraph 1, paragraph 3, article 76 of the Tax Code of the Russian Federation). - Failure to comply with the rules of electronic document management.
As follows from paragraph 5.1 of Art. 23 of the Tax Code, the taxpayer is required to conclude an agreement with the electronic document management operator to ensure the exchange of documents with the fiscal authority.
Electronic reporting organizations should:
- ensure the receipt of documents from the Federal Tax Service Inspectorate (notifications of a call to the inspection, requirements for the submission of documents)
- confirm the acceptance of documents by sending an electronic receipt to the IFTS within 6 business days (subparagraph 2, paragraph 3, article 76 of the Tax Code of the Russian Federation).
- Lack of personal income tax calculation.
From 01.01.2016, an organization that is a tax agent must submit documents to the fiscal body regarding the calculation and withholding of personal income tax amounts.
In all of the above cases, the legislator has established an additional period of 10 working days to decide on blocking the account. The specified period shall be calculated in accordance with the rules for calculating the deadlines - on the next business day after the date of improper fulfillment of the taxpayer obligation or the establishment of the fact of its non-fulfillment.
IMPORTANT! The list is exhaustive. Other grounds for blocking the account (late delivery of financial statements or an outdated form of tax return) are illegal (resolution of the 11th AAS dated February 24, 2011 No. A65-22703 / 2010).
How to unlock a blocked tax bank account
The bank has blocked the account of a legal entity - what to do in this case? The actions that must be taken to unblock the organization’s account with the bank depend primarily on the reasons for the blocking. As a rule, it is enough to fulfill the requirements of the fiscal authority:
- pay the payments specified in the request of the fiscal authority;
- submit a declaration;
- submit an agreement concluded with the electronic document management operator;
- present receipts on acceptance of the requirements of the fiscal authority;
- submit the requested documents;
- ensure the attendance of a representative;
- provide data on personal income tax.
In all these cases, the fiscal body must cancel the suspension of operations on the bank account no later than 1 day following the day the organization fulfills its duties.
If several accounts have been blocked and the total amount of funds on them is greater than the amount of debt, you can contact the fiscal authority with a statement. It should contain information about the account on which there is enough money to pay off the debt (confirmed by an extract from the bank), as well as about those accounts from which the restriction should be removed. The decision to remove the block must be made within 2 days after receiving such an appeal (Clause 9, Article 76 of the Tax Code).
In addition, the decision of the fiscal authority to block the account can be appealed if it is made in violation of the law.
So, appealing in a situation when:
- the decision to block the account was made in the absence of restrictions on the disposal of property (resolution of the 1st AAS dated April 30, 2015 in case No. A11-11149 / 2014);
- the inspection violated the deadlines and / or did not notify the taxpayer of the blockage (FAS MO decision of July 4, 2013 in case No. A40-82853 / 12-20-447);
- the inspectorate lacked legal grounds for blocking, that is, it committed substantive violations (determination of the RF Armed Forces dated 03.03.2017 No. 305-KG16-16245).
Accounts that may be blocked
As follows from paragraph 2 of Art. 11 of the Tax Code, the concept of an account used in the framework of tax legal relations applies to settlement (current) and other accounts in financial institutions opened under a bank account agreement. Thus, all accounts, the contract for which is concluded in accordance with the rules of Art. 845 of the Civil Code of the Russian Federation, can be considered by fiscal authorities as accounts for which the blocking is applicable.
That is, the organization’s current account will be blocked in the first place. Blocking is also possible:
- Current foreign currency accounts (Articles 46, 76 of the Tax Code).
- The corporate account of the organization, which is used by its employees for settlements at the expense of the funds of this organization in its interests using bank cards issued for the indicated purposes. Such an account, according to the Presidium of the Supreme Arbitration Court of the Russian Federation, has all the attributes of a bank account (Decree No. 2942/10 of September 21, 2010).
Accounts that cannot be blocked
Fiscal authorities are not entitled to restrict operations on the following accounts:
- Transit, loan as not having the characteristics of the account specified in paragraph 2 of Art. 11 of the Tax Code (instruction of the Central Bank of the Russian Federation dated 03.30.2004 No. 111-I, letter of the Ministry of Finance of Russia dated 04.16.2013 No. 03-02-07 / 1/12722).
- Nominal and escrow accounts (Articles 860.5, 860.8 of the Civil Code of the Russian Federation). You can read about the latest type of accounts in the article What is an escrow account - the procedure for opening and changing.
- Deposit, since these accounts are opened on the basis of a bank deposit agreement (Clause 1, Article 834 of the Civil Code of the Russian Federation).
IMPORTANT! Upon the expiration of the term of the deposit agreement, funds from this account can be transferred to the organization’s bank account at the request of the fiscal authority and, accordingly, debited to pay off tax arrears (Clause 5, Article 46 of the Tax Code of the Russian Federation).
- Used to carry out the activities of a simple partnership (joint activity). The funds in such an account are the property of the participants in the joint activity, and not of the taxpayer (Decision of the FAS Central Organ of 08.08.2009 No. A68-9966 / 2008-5 / 18).
- Open on the basis of Art. 1018 of the Civil Code of the Russian Federation for settlements on activities related to trust management.
Responsibility of tax authorities for unlawful blocking of an account or untimely removal of blocking
Since the suspension of operations on a bank account creates serious problems for any business entity, the legislator provides for liability of fiscal authorities for unlawful actions (inaction) relating to such a decision, as well as for failure to comply with the deadlines associated with the cancellation of this measure.
The fiscal authority is obliged to cancel the account lockout strictly within the time periods specified in Art. 76 of the Tax Code of the Russian Federation, and not later than the next day, inform the financial organization about this by electronic communication (Clause 4 of Article 76 of the Tax Code of the Russian Federation).
If these terms are violated, as well as in the case of unlawful blocking of the account, the fiscal authority is obliged to pay interest for each day of violation of the term or unlawful blocking of the account. The method of calculating interest is defined in paragraph 9.2 of Art. 76 of the Tax Code.
In case of disagreement with the action of the fiscal body, including with regard to blocking the account, it should first be appealed to a superior organization and only then to a court (Article 137, Section 2 of Article 138 of the Tax Code of the Russian Federation).
Fiscal authorities are also liable for losses caused by the actions (inaction) of their employees (Article 16 of the Civil Code of the Russian Federation, paragraph 1 of Article 35 of the Tax Code of the Russian Federation). Losses mean real damage, as well as lost profits (lost profits). In this case, the plaintiff will need to prove that the losses are associated with the actions (inaction) of the fiscal body, as well as to justify the amount of loss, especially in relation to lost profits.
How to find out (check) if a bank account is blocked
You can check whether the legal entity’s account in the tax bank has been blocked by using the web-site “Information on the availability of decisions to suspend operations on taxpayer accounts” created by the Federal Tax Service of Russia. This resource is publicly available and allows any interested person to quickly receive data on locks. The web service is available on the website of the Federal Tax Service of Russia, in the section "On the Federal Tax Service of Russia / Interaction with other state institutions of the Russian Federation / Interaction with the Bank of Russia ..." (https://service.nalog.ru/bi.do). To obtain information you need to know the payer's TIN and BIC of the servicing bank.
IMPORTANT! Only decisions on blocking accounts sent in electronic form are received at the federal level, so the bases of the federal and local levels may not coincide. In this case, changes to the file cabinet are made, including at the request of the organization (letter of the Federal Tax Service of Russia dated 02.20.2014 No. PA-4-6 / 3003).
Account seizure by bailiff
The seizure of funds in the account is one of the enforcement measures used by the bailiff service to fulfill the requirements of the writ of execution. This measure implies the termination of debiting of money from the debtor's account in the amount established in the decision of the bailiff.
The arrest of funds in the account applies:
- For the execution of the court ruling on the application of measures to secure the claim. A writ of execution issued on the basis of such a determination may be presented by the interested party to the MTP for execution.
IMPORTANT! The arrest imposed by a bailiff in pursuance of a court ruling on the seizure of a debtor's money can only be lifted by a court. - As an interim measure in the framework of enforcement proceedings. The decision to apply the arrest is made either by the bailiff independently, or at the request of the claimant (paragraph 2 of article 30 of law No. 229). The measure is aimed at forcing the debtor to execute the writ of execution (Clause 1, Article 64 of Law No. 229).
- As a measure of enforcement. If the debt has not been repaid voluntarily, the bailiff sends a decision to the financial institution on the transfer of money from the debtor's account to the branch’s deposit account. When the funds in the debtor’s account are insufficient, the financial institution is obliged to execute the order of the bailiff upon receipt of money in this account (Clause 9, Article 70 of Law No. 229).
How to unlock a bank account blocked by bailiffs
The most effective way to remove the seizure imposed by the bailiff from the account is to repay the debt, which has become the reason for the limitation of account expenditure operations.
If the debt is repaid voluntarily, to remove the restriction, you must:
- submit documents to the bailiff confirming payment of the debt in full;
- file a request for the completion of enforcement proceedings and an application to remove the lock from the account.
After satisfying the application, the bailiff shall issue a decision on the termination of enforcement proceedings, in which he cancels the blocking of the account. A copy of the decision is sent to a financial institution that removes restrictive measures. The arrest must be lifted after the financial institution receives a canceling resolution, which is subject to execution within the time period specified therein (paragraph 4 of Article 14 of Law No. 229).
It should also be borne in mind that according to paragraph 1 of Art. 37 of Law No. 229, the debtor has the opportunity to apply with a justified application to the body that issued the writ of execution on granting him an extension (installment plan) for the execution of this document. Based on the decision to grant a deferment (installment plan), it will be possible to cancel the account arrest.
Illegal actions by a bailiff to seize funds in accounts may be appealed against within 10 days in the order of subordination or to a court. The appeal procedure is established in Ch. 18 of Law No. 229.
Blocking of a bank account on the basis of the provisions of Law No. 115-FZ
Law No. 115-ФЗ provides financial organizations with the opportunity to suspend operations on accounts. Conventionally, these grounds are divided into 2 groups:
- blocking the operation by the bank independently (Clause 10, Article 7 of Law No. 115-FZ);
- blocking of an account on the basis of a decision of an authorized body or a judicial act.
The grounds for self-blocking give the financial structure the right to suspend account account transactions in the amount indicated in the payment order if at least one of the parties:
- is included in the list of persons in respect of whom the authorized body applied measures to freeze assets;
- acts on instructions and on behalf of persons whose assets are frozen.
The duration of such a lock should not exceed 5 days. If during this period the financial institution does not receive a resolution of the authorized body to suspend write-offs, then the blocked transfer is subject to execution.
IMPORTANT! In this case, only the operation that matches the above characteristics is suspended. The rest of the transfer of money in favor of other recipients is permissible.
In case of blocking the account on the basis of a decision of the authorized body of the Russian Federation, all write-offs are suspended for up to 30 days, and in case of blocking on the basis of a court decision, until such decision is canceled.
Account expense transactions are resumed within 1 business day after the expiration of the period specified in the resolution of the authorized body, or the receipt of a judicial decision to cancel the asset freeze.
Thus, any restriction of the organization’s rights to dispose of funds is possible only in cases expressly provided for by applicable law. The organization, in turn, in order to eliminate problems associated with blocking bank accounts, must conduct its business activities in accordance with the requirements of the law.
Andrey Kizimov,
phD in Economics, Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia
The tax inspectorate may suspend operations on the organization’s bank accounts only in cases and according to the rules provided for by the Tax Code of the Russian Federation (paragraph 6 of article 7 of the Law of March 21, 1991 No. 943-1, subparagraph 5 of paragraph 1 of article 31 of the Tax Code of the Russian Federation )
Account Lockout Right
The tax inspectorate has the right to block a bank account if the organization:
- failed to comply with the requirement of the tax inspectorate to pay tax (penalties, fines);
- did not submit a tax return within the prescribed period;
- i didn’t send an electronic receipt to the tax inspectorate to receive the requirements or notifications sent by the inspectorate.
This procedure is provided for in paragraphs 2 and 3 of Article 76 of the Tax Code of the Russian Federation.
If the organization did not submit or did not submit the accounting (financial statements) to the tax inspectorate at all, the inspectorate does not have a reason to suspend bank account operations (letter of the Ministry of Finance of Russia dated July 4, 2013 No. 03-02-07 / 1/25590).
Tax evasion block
If the account is blocked due to collection of debts to the budget, the decision to suspend operations is taken no earlier than the decision is made to recover taxes (fees, fines, penalties) (paragraph 2 of clause 2 of article 76 of the Tax Code of the Russian Federation). In this case, expenditure operations are suspended only within the amount specified in the decision to suspend operations on accounts. If several accounts are indicated in the decision to suspend operations, the bank must block each of them for the amount specified in the decision. The inspection may suspend spending operations on a foreign currency account for an amount equivalent to the amount in rubles specified in the decision. Recalculation is carried out at the rate of the Bank of Russia set at the start date of the suspension of operations on the foreign currency account. This procedure is provided for in the paragraphs 3 and 4 of paragraph 2 of Article 76 of the Tax Code of the Russian Federation and is explained in the letter of the Ministry of Finance of Russia dated January 14, 2013 No. 03-02-07 / 1-6.
The organization has the right to use funds that are in bank accounts in excess of debt amounts (letter of the Ministry of Finance of Russia dated April 15, 2010 No. 03-02-07 / 1-167).
Block for non-submission of declarations
If the account is blocked due to the late submission of a tax return, a decision to suspend operations can be made no earlier than 10 working days after the deadline for reporting. Such a right shall remain with the inspection for three years. This follows from subparagraph 1 of paragraph 3 of Article 76 and paragraph 6 of Article 6.1 of the Tax Code of the Russian Federation. Moreover, there are no restrictions on the amount of blocking (letter of the Ministry of Finance of Russia dated April 15, 2010 No. 03-02-07 / 1-167).
Since paragraph 3 of Article 76 of the Tax Code of the Russian Federation deals specifically with tax returns, the inspection is not entitled to block the organization’s account for late submission of tax calculations. For example, the inspectorate cannot suspend operations on the bank account of a tax agent who has not passed a calculation of the amount of income paid to foreign organizations and withheld taxes. But if the tax agent (including the special regime) does not report on the amounts of VAT withheld (will not hand over section II of the VAT return), then the inspection will have reasons to suspend operations on the current account. Such clarifications are contained in the letters of the Federal Tax Service of Russia dated December 11, 2014 No. ED-4-15 / 25663 and dated August 22, 2014 No. CA-4-7 / 16692.
Situation: does the tax inspectorate have the right to make a decision to suspend operations on the organization’s bank accounts if the organization has not timely submitted the payment of advance payments (other documents that serve as the basis for calculating and paying taxes)
No, it doesn’t.
The tax inspectorate has the right to block the bank accounts of the organization if the organization is late with the submission of a tax return. The account may be blocked after 10 working days have elapsed since the deadline for submitting a tax return. The inspection may make such a decision within three years from the date of non-submission of the declaration. This follows from subparagraph 1 of paragraph 3 of Article 76 and paragraph 6 of Article 6.1 of the Tax Code of the Russian Federation. Moreover, there are no restrictions on the amount of blocking (letter of the Ministry of Finance of Russia dated April 15, 2010 No. 03-02-07 / 1-167).
Since paragraph 3 of Article 76 of the Tax Code of the Russian Federation expressly states that an account can be blocked only for failure to submit a tax return, the tax inspectorate is not entitled to suspend account operations if the organization is late in filing a settlement of advance payments.
Similar conclusions are contained in letters of the Federal Tax Service of Russia dated December 11, 2014 No. ED-4-15 / 25663, and the Ministry of Finance of Russia dated July 12, 2007 No. 03-02-07 / 1-324.
Blocking for violation of electronic workflow rules
Since 2015, organizations and entrepreneurs who must submit reports electronically are required to ensure the receipt and confirmation of the receipt of electronic documents sent by tax inspections. Such documents include requirements for the submission of documents (explanations), as well as notification of a call to the inspection. Confirmation of acceptance of documents is reduced to sending electronic receipts to the inspection of receipt of such requirements and notifications. You must send a receipt for the receipt of documents within six business days from the date of receipt. This is stated in paragraph 5.1 of Article 23 of the Tax Code of the Russian Federation.
If in a six-day period the organization (entrepreneur) did not confirm the receipt of documents, then within the next 10 working days the inspection is entitled to block the taxpayer’s current account (subparagraph 2, paragraph 3, article 76 of the Tax Code of the Russian Federation).
Situation: how to refuse to accept an electronic claim from the tax office
Send an electronic rejection notice to the inspection.
You can refuse to accept an electronic claim from the tax office in three cases:
- the request is addressed to another taxpayer and entered the organization erroneously;
- the requirement does not comply with the approved format;
- the request does not contain a qualified electronic signature of the tax inspector.
Such grounds for refusal are provided for in paragraph 14 of the Procedure approved by order of the Federal Tax Service of Russia dated February 17, 2011 No. MMV-7-2 / 168. True, in practice, only the first case is possible - an error with the addressee. Since electronic requirements are generated automatically and inconsistencies in the format of the document itself or electronic signature are practically eliminated.
So, if you received the electronic claim erroneously, you need to send a notice of refusal to the tax inspectorate (Section 17 of the Procedure approved by Order of the Federal Tax Service of Russia of February 17, 2011 No. MMV-7-2 / 168). The notification form was approved by order of the Federal Tax Service of Russia dated June 9, 2011 No. MMV-7-6 / 362. Form a notification automatically in electronic form using a program that provides electronic document management. In text format, the electronic notification will look like this.
The chief accountant advises: you can quickly send a notification in the General Accountant System Reports. To do this, it is enough to perform a few simple steps.
Important: the notification must be sent no later than the next business day after the document is sent by the tax inspectorate (paragraph 16 of the Procedure approved by Order of the Federal Tax Service of Russia of February 17, 2011 No. MMV-7-2 / 168). True, no sanctions are provided for violation of this term. But if, within six working days, the inspection does not receive a receipt of acceptance or a notice of refusal, it may block your current account (subparagraph 2, paragraph 3, article 76 of the Tax Code of the Russian Federation).
Blocking as a counter to concealment of property
In addition to the cases listed above, account blocking is allowed if the tax inspectorate has reason to believe that the organization can hide its property from forcible collection to pay off debts to the budget. If taxes, penalties, fines are assessed on the basis of the organization’s on-site audit, the tax inspectorate has the right to make a decision to prohibit the alienation (pledge) of certain types of property of the organization (real estate, vehicles, etc.) without its consent (paragraph 10 Article 101 of the Tax Code of the Russian Federation). After that, the inspection may block money in banks for the amount of accrued debt, which is not covered by the value of the specified property (para. 3 subparagraph 2 p. 10 article 101 of the Tax Code of the Russian Federation). The blocking procedure in this case corresponds to the procedure established by Article 76 of the Tax Code of the Russian Federation (paragraph 1, subparagraph 2, clause 10, article 101 of the Tax Code of the Russian Federation).
Reorganization Lock
If the inspection by its decision blocked the account of the organization that ceased its activities in connection with the reorganization, the effect of this decision shall also apply to the accounts of its successors. This is stated in the letter of the Ministry of Finance of Russia dated July 24, 2012 No. 03-02-07 / 1-187.
Lock restrictions
Despite the fact that blocking an account limits the organization's ability to use cash, some types of payments can still be made.
Account lockout does not apply:
- on payments for the transfer to the budget of taxes, fees, insurance premiums, interest and fines.
- payments whose priority under civil law precedes the fulfillment of the obligation to pay taxes, fees, penalties and fines;
This is stated in paragraph 3 of paragraph 1 of Article 76 of the Tax Code of the Russian Federation.
The first limitation means that even after the account is blocked, the current organization can send payment orders to the bank to transfer taxes, fees, insurance contributions to the budget. The Bank is obliged to fulfill these instructions (letters of the Ministry of Finance of Russia dated June 3, 2010 No. 03-02-07 / 1-266, dated December 4, 2008 No. 03-02-07 / 1-495). In addition, the bank is obligated to deduct from the blocked account of the organization the amount of taxes and contributions on executive documents of bailiffs (letter of the Ministry of Finance of Russia dated August 1, 2011 No. 03-02-07 / 1-270).
But, for example, the organization will not be able to fulfill the obligation to transfer customs duties (fees): these amounts do not apply to taxes (fees) and other payments specified in paragraph 1 of Article 76 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated June 3, 2010 No. 03-02-07 / 1-265).
When applying the second restriction, it must be borne in mind that for existing organizations, payments on bank accounts are carried out in the following order:
- first of all, according to executive documents on compensation for harm caused to life and health, as well as claims for the recovery of alimony;
- secondly, according to executive documents for calculating the payment of severance pay and salaries to retiring employees, as well as the payment of remuneration to the authors of the results of intellectual activity;
- in the third turn, according to payment documents for calculating salaries for working employees, on behalf of tax inspectorates and extra-budgetary funds for collecting debts on taxes, fees and compulsory insurance contributions;
- in the fourth turn, according to executive documents providing for the satisfaction of other monetary claims;
- fifth, according to other payment documents in the order of calendar priority (including on payment orders of organizations for the transfer of current taxes, fees, insurance premiums).
This is stated in paragraph 2 of Article 855 of the Civil Code of the Russian Federation.
The collection of taxes at the request of inspections relates to the third stage. Therefore, the bank will make the payments of the first and second (and in some cases the third) turn unconditionally. Even if the organization’s account is blocked.
If the funds in the organization’s current account are insufficient, payments for requirements related to one queue are made in the order of the calendar priority of receipt of documents. For example, in existing organizations, both the transfer of salaries and the collection of arrears according to the requirements of tax inspectorates and extra-budgetary funds refers to one - third - stage. Therefore, first, the bank will execute those payment orders that arrived earlier. This rule also applies if the organization’s account is blocked. This conclusion is confirmed by letters of the Ministry of Finance of Russia dated July 11, 2013 No. 03-02-07 / 1/26955, dated April 19, 2013 No. 03-02-07 / 1/13537, dated November 6, 2012 No. 03-02 -07 / 1-279 and the Federal Tax Service of Russia dated February 27, 2013 No. AC-4-2 / \u200b\u200b3225.
Another procedure applies if the organization is liquidated. In this case, the sequence of payments established by paragraph 1 of Article 64 of the Civil Code of the Russian Federation is applied.
First of all, the requirements of citizens are satisfied, to which the liquidated organization is responsible for causing harm to life or health, as well as claims for compensation:
- non-pecuniary damage;
- in excess of compensation for damage caused by the destruction, damage to the capital construction facility;
- in addition to compensation for damage caused by violation of safety requirements during construction;
- in addition to compensation for damage caused by violations of the requirements for the safe operation of buildings and structures.
Secondly, calculations are made on the payment of severance pay and employee salaries, as well as on the payment of remuneration to the authors of the results of intellectual activity.
In the third turn, settlements are made on obligatory payments to the budget and to extrabudgetary funds.
In the fourth turn, settlements are made with other creditors.
Write-off of funds from the account for requirements related to one queue is carried out in the order of the calendar priority of receipt of documents.
Thus, the liquidated organization has the right to spend money on payments of the first and second stage (for example, on salary payments), even if the organization’s current account is blocked, and the obligatory payments to the budget and non-budget funds are not listed. Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated April 8, 2011 No. 03-02-07 / 1-112.
Situation: is it possible to transfer salaries to employees of an operating organization from a current account blocked by the tax office
Yes you can.
When an account is blocked, the bank ceases all expenditure operations on it (paragraph 2 of clause 1 of article 76 of the Tax Code of the Russian Federation). At the same time, suspension of account operations does not apply to payments whose priority precedes the order of settlements with the budget (paragraph 3 of clause 1 of article 76 of the Tax Code of the Russian Federation).
The transfer of salaries to working employees relates to payments of the third stage (clause 2 of article 855 of the Civil Code of the Russian Federation). The same line includes payments to the budget, which are charged according to the requirements of tax inspections and extra-budgetary funds.
If expenditure operations are suspended due to the fact that the organization did not submit a tax return within the prescribed period, then all funds in the current account are blocked. However, the inspection does not send any requirements for collecting tax arrears to the bank. If at this time the organization transfers payment documents for the transfer of salaries to the bank, then it is obvious that the sequence of execution of these documents will precede the order of settlements with the budget - after all, the organization has no tax obligations (i.e., other payments of the third priority). And if there are enough funds in the current account, the bank must transfer the salary to the organization’s employees in full, without restrictions. This conclusion is confirmed by letters of the Ministry of Finance of Russia dated March 5, 2014 No. 03-02-07 / 1/9526 and dated November 9, 2012 No. 03-02-07 / 1-285.
If expenditure operations are suspended due to the fact that the organization has not complied with the requirement to pay tax (penalties, fines), a different procedure applies. In this case, the tax inspectorate or extra-budgetary fund makes a demand for the payment of taxes or insurance premiums, and the organization has payment obligations that must be fulfilled in the third place. If at this time the organization sends payment documents for the transfer of salaries to the bank, then the bank will execute them in the order of calendar priority. In practice, the following options are possible:
- a payment order for the transfer of salaries was received by the bank before the inspection blocked the account;
- a payment order for the transfer of salaries was received by the bank after blocking the account.
In the first case, the bank will first execute the payment order for the transfer of salaries. If there is not enough money in the account, then in the file cabinet a salary payment will be a priority. Therefore, when the money is credited to the account, first of all, the bank will direct them to transfer the salary.
This conclusion is confirmed by letters of the Ministry of Finance of Russia dated July 11, 2013 No. 03-02-07 / 1/26955, dated April 19, 2013 No. 03-02-07 / 1/13537, dated November 6, 2012 No. 03-02 -07 / 1-279 and the Federal Tax Service of Russia dated February 27, 2013 No. AC-4-2 / \u200b\u200b3225.
An example of a salary transfer from a current account blocked for an unfulfilled tax claim. A payment order for salary payment was received by the bank before the account was blocked
On April 15, the organization sent payment orders to the bank to transfer salaries to five employees:
- order No. 101 - 80 000 rubles .;
- order No. 102 - 90 000 rubles .;
- order No. 103 - 40 000 rubles .;
- order No. 104 - 60 000 rubles .;
- Order No. 105 - 25,000 rubles.
The balance of funds in the current account as of April 15 is 0 rubles. Therefore, these payment orders are queued for outstanding payments.
On April 16, the tax inspectorate blocked the organization’s bank account for an outstanding tax claim in the amount of 200,000 rubles.
On April 17, the organization received payment from the buyer in the amount of 210,000 rubles. Despite the blocking of the account, all of this amount was used to pay off arrears on payment orders No. 101, 102 and 103.
In the second case, a different order applies. The fact is that when blocking for an unfulfilled tax claim, the current account is not completely blocked, but only within the amount specified in the request of the tax inspectorate. Therefore, if the organization has enough unblocked funds in the account, then the bank is obliged to execute the payment order for the transfer of salaries.
An example of a salary transfer from a current account blocked for an unfulfilled tax claim. A payment order for the payment of salaries was received by the bank when the account was already blocked
As of April 15, the balance in the bank account of the organization is 1 000 000 rubles. On the same day, the tax inspectorate suspended expenditure on the account in the amount of 150,000 rubles.
On April 16, the organization sent a payment order to the bank to transfer salaries (indicating the priority of payment “3”) in the amount of 300,000 rubles. Despite the blocking of the account, the bank is obliged to make this payment, since “free” funds in the account are 850,000 rubles. (1,000,000 rubles. - 150,000 rubles.) - Enough to transfer salaries.
If there is not enough “free” money in the account, then the organization will be forced to first pay off the tax claim and only then can pay the salary.
Lock decision
The decision form on the suspension of operations on bank accounts was approved by order of the Federal Tax Service of Russia of October 3, 2012 No. MMV-7-8 / 662. This decision is made by the head or deputy head of the tax inspectorate (paragraphs 2, 3 of article 76 of the Tax Code of the Russian Federation).
The decision to block the account is transmitted to the bank in electronic form. A copy of the decision is handed to the representative of the organization against receipt or in a way that allows you to set the date the organization received the copy. This is stated in paragraph 4 of Article 76 of the Tax Code of the Russian Federation.
The tax inspectorate may make several decisions to suspend operations on the organization’s bank account. In this case, the bank is obliged to block the account for the total amount specified in these decisions (letter of the Ministry of Finance of Russia dated July 24, 2009 No. 03-02-07 / 1-384).
The suspension of an organization’s operations on its bank accounts is valid from the moment the bank receives such a decision until its cancellation. Moreover, the decision to block the account does not apply to payment orders made by the bank on the same day that the decision was received, but earlier in time (letter of the Ministry of Finance of Russia dated May 23, 2011 No. 03-02-07 / 1-169).
The bank, having received from the tax inspectorate a document on blocking an account, must execute it unconditionally, even if the account is unlawfully blocked (Clause 6, Article 76 of the Tax Code of the Russian Federation). The organization will not be able to present any claims to the bank, since the bank is not liable for losses incurred due to blocking the account (Clause 10, Article 76 of the Tax Code of the Russian Federation). In addition, the bank will suspend operations on accounts, even if, after the inspection makes a decision to block the account, the organization changes its name and account details. This is stated in paragraph 7 of Article 76 of the Tax Code of the Russian Federation.
An organization will not be able to open a new account (deposit, deposit) during the blocking period. And not only in the service, but also in any other bank. This procedure is established by paragraph 12 of Article 76 of the Tax Code of the Russian Federation. Currently, the tax service is developing a special Internet service through which banks will be able to quickly receive information about organizations whose accounts are blocked by tax authorities. Information on the cancellation of blocking will be posted on the same resource. This is stated in the letter of the Federal Tax Service of Russia dated January 22, 2014 No. ED-4-2 / \u200b\u200b738.
Block Cancellation Statement
If the inspection has blocked several accounts of the organization at once, and only some of them have sufficient funds to cover the budget debt, the organization has the right to submit an application to the inspection to cancel the block. But only in relation to those accounts on which funds are deposited in excess of the amount necessary to repay the debt. For example, if an inspection has blocked three accounts of an organization, and there are enough cash balances on two of them to cover a debt, the organization may apply to the inspection with a written statement to cancel blocking the third account.
Make a statement in any form. Indicate in it:
- bank account numbers that have enough money to cover the debt;
- bank account numbers to be unlocked.
Attach documents confirming the availability of funds sufficient to pay off the debt. Such documents may include bank statements on cash balances on blocked accounts.
This follows from the provisions of paragraph 9 of Article 76 of the Tax Code of the Russian Federation.
Cancel decision to block
The decision to suspend operations on the accounts specified in the application is canceled:
- within two business days from the date of receipt from the organization of an application to cancel the block (if the organization attached supporting documents to the application) (para. 2 p. 9 article 76, paragraph 6 article 6.1 of the Tax Code);
- within two business days from the date of receipt from the bank of information about cash balances on the organization’s blocked accounts (if the organization has not attached supporting documents to the application) (paragraph 4, paragraph 9, article 76, paragraph 6 of article 6.1 of the Tax Code of the Russian Federation).
The decision to suspend operations in respect of all other accounts is canceled:
- no later than one business day following the day the organization submits the tax return - if the account was blocked due to the late submission of the tax return by the organization (subparagraph 1, paragraph 3.1 of article 76, paragraph 6 of article 6.1 of the Tax Code of the Russian Federation);
- no later than one business day following the day of transmission of the electronic receipt of the receipt of requirements and notifications or after the day of submission of the documents themselves, explanations, and appearance at the inspection (subparagraph 2, paragraph 3.1 of article 76, paragraph 6 of article 6.1 of the Tax Code of the Russian Federation). To unblock accounts, send a statement to the inspection;
- no later than one business day following the day of receipt by the tax inspectorate of documents (copies thereof) confirming the collection of tax (penalties, fines) - if the account was blocked due to non-fulfillment by the organization of the requirement of the tax inspectorate to pay tax (penalties, fines) (p 8 clause 76, clause 6 clause 6.1 of the Tax Code of the Russian Federation);
- on the day of the decision on the cancellation (replacement) of interim measures if the account was blocked so that the organization could not hide the property from forcible collection for repayment of the debt revealed by the results of the tax audit (paragraph 2 of clause 10 of article 101 of the Tax Code of the Russian Federation).
Other conditions not specified in the Tax Code of the Russian Federation may become the basis for unblocking the account. Such conditions may be established by separate federal laws. For example, all restrictions on the disposal of property (including money) are automatically removed if, as part of the bankruptcy procedure, a monitoring procedure is introduced or bankruptcy proceedings are opened (paragraph 1 of article 63, paragraph 1 of article 126 of the Law of October 26, 2002 g. No. 127-FZ). If the suspension of operations on the organization’s accounts is canceled on such additional grounds, an inspection decision to cancel the blocking is not required. This is stated in paragraph 9.1 of Article 76 of the Tax Code of the Russian Federation.
Interest for violation of the unlock period
If the deadline for unblocking the account has been violated or if the decision to suspend operations on the accounts was made illegally, the tax inspectorate must pay the organization interest. Interest is accrued at the refinancing rate for each calendar day of violation of the unlock period (unlawful suspension of operations on accounts). The duration of the interest accrual period is determined from the day the decision to suspend operations is received by the bank until the day the decision to cancel the lock is received by the bank. At the same time, on the day when the decision to suspend operations was received by the bank, the inspectorate must accrue interest even if the organization used its account during this day. For example, if the decision to block was received by the bank at the end of the trading day.
The amount of interest due to the organization can be calculated by the formula.