The limitation period for the debts of individual entrepreneurs. Statute of limitations on taxes: what is it and how is it calculated? Does the statute of limitations on unpaid taxes apply
Selection of the most important documents on request Statute of limitations on taxes (legal acts, forms, articles, expert advice and much more).
Normative acts
“Tax Code of the Russian Federation (Part One)” of July 31, 1998 N 146-ФЗ
(as amended on February 19, 2018) 3.
Statute of limitations on taxes: what is it and how is it calculated?
The decision on recovery is made after the expiration of the period specified in the demand for tax, but no later than two months after the expiration of the specified period. The decision on recovery made after the expiration of the specified period shall be considered invalid and shall not be enforced. In this case, the tax authority may apply to the court for recovery from the taxpayer (tax agent) - organization or individual entrepreneur due to pay the amount of tax. The application may be filed with the court within six months after the expiration of the deadline for fulfilling the requirement to pay tax. The deadline for submitting an application for good reason may be restored by the court.
Articles, comments, answers to questions: Statute of limitations on taxes
Federal Tax Service "extended" the statute of limitations
The Federal Tax Service clarified the procedure for calculating the statute of limitations for prosecution for non-payment or incomplete payment of tax.
It is impossible to hold a taxpayer liable if three years have passed since the date of the tax offense or the same period has passed since the beginning of the tax period following the one in which the offense was committed, the Federal Tax Service explains.
However, violators mainly count the statute of limitations from the end of the tax period for which tax has not been paid. However, according to the law, the taxpayer must calculate and pay tax after the end of the tax period. At this moment, an offense may occur - non-payment or incomplete payment. Therefore, the statute of limitations should be calculated after the end of the tax period.
The Federal Tax Service gave these clarifications after the court considered the taxpayer’s complaint - he argued that he could not be held liable, since the statute of limitations had expired. The taxpayer did not pay corporate income tax for 2012, the deadline for which is set until March 28, 2013. “The offense took place already in 2013, which means that the statute of limitations for prosecution starts from January 1, 2014,” the statement reads.
The Federal Tax Service notes that this conclusion is in line with the legal position of the Supreme Arbitration Court set forth in paragraph 15 of the resolution of the Plenum of July 30, 2013 No. 57 “On some issues arising when the arbitral tribunals apply part one of the first Tax Code of the Russian Federation”.
Source: http://www.buhgalteria.ru/news/n153083
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And: Close LLC - Alternatively or officially
The option of closing the LLC, which our Center offers you, is to transfer the company to hired founders with the replacement of the general director by a foreign management company, or by a foreign hired director. The bottom line is that the rights and obligations of the founders of the liquidated LLC are transferred to the new founders, foreigners, a new general director and accountant are appointed. The main plus of such liquidation of the LLC is its short time and cost.
Statute of limitations for the identification and collection of tax arrears
The essence of such a transfer is that, according to the legislation of the Russian Federation, the responsibility for the activities of the organization lies with the General Director and accountant (financially), and in specially provided cases, the founder. After the purchase and sale transaction, or transfer of the share to the Company, all responsibility passes to the new founder and the gene. to the director. You get a full set of documents confirming that the company has passed re-registration and transferred to the new owner, a foreigner.
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LLC closing schemes
The closure of an LLC entails the cessation of its activities without transfer of rights and obligations in succession to other persons (Article 61 of the Civil Code of the Russian Federation).
An enterprise may be liquidated voluntarily in the manner prescribed by the Civil Code of the Russian Federation. It can also be liquidated by a court decision on the grounds provided for by the Civil Code of the Russian Federation.
It is possible to voluntarily close an LLC by decision of its founders (participants), including in connection with the expiration of the period for which it was created, with the achievement of the goal for which it was created.
The court may decide to close the LLC if there are gross violations of the law that are irreparable in the creation of the enterprise, or if the company engages in activities prohibited by law, or with other repeated or gross violations of the law or other legal acts, or in the case of systematic implementation a public or religious organization, a charity or other fund of activities contrary to its statutory goals, as well as in other cases provided for by the Civil Code of the Russian Federation.
Close the LLC can and the tax authority. Repeated or gross violations of tax laws are the most common ground for filing lawsuits by the tax authorities to close an LLC. In this case, the tax authorities file lawsuits in arbitration courts on the basis of specific norms of tax legislation and clause 2 of article 62 of the Civil Code of the Russian Federation.
A large number of lawsuits to close the LLC tax authorities file due to the fact that these organizations do not bring their constituent documents in accordance with the requirements of the Civil Code of the Russian Federation.
A special case of closing an LLC is declaring it bankrupt. According to the Bankruptcy Law, all legal entities can be declared insolvent, except for state-owned enterprises, institutions, political parties and religious organizations.
The closure of the LLC begins with the appointment by the court of a liquidation commission, which solves the problem of identifying the company's debts and making settlements with its creditors. The liquidation commission places a publication in the press about the closure of the LLC, the procedure and deadline for making claims by its creditors, and also notify the creditors in writing. Article 64 of the Civil Code of the Russian Federation establishes the order of priority for settlements between a company and creditors.
According to paragraph 5 of Art. 64 of the Civil Code of the Russian Federation, the creditor's claims declared after the expiration of the period established by the liquidation commission for their presentation are satisfied from the property of the liquidated enterprise remaining after satisfaction of the creditors' claims declared on time. If the closing procedure of the company is completed, and the creditor did not declare his claims on time, then the obligations of the company are considered settled.
There are other, faster ways to close an LLC. One of them is the reorganization of the enterprise (merger, takeover). In this case, the company is excluded from the state registry. During the reorganization, all rights and obligations of the enterprise are transferred to another, newly formed legal entity. A tax audit during a reorganization cannot be avoided.
The next type of closure of an LLC may be re-registration with a change in the composition of the founders and director. Changes are recorded in the IMNS, funds are notified. The company itself exists, as before. If the company has no debts to the IMNS and the funds, then a tax audit can be avoided.
Options such as enterprise reorganization and re-registration cannot be called the closure of the LLC in its formal sense, but the main task facing entrepreneurs is to get rid of the company and obligations. But it is quite difficult for businessmen to carry out such a procedure for closing an LLC, sometimes it is impossible. The help of a qualified professional is needed here.
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The limitation period, after which the taxpayer cannot be held accountable, is three years. At the same time, the Tax Code does not contain provisions specifying at what point this period should be counted off if it is a violation of the law such as non-payment or incomplete payment of tax amounts. And there can be several options: count three years from the moment when the tax should be paid, or from the next day when the tax period for which this tax was payable expired, or from the end of the tax period for which the tax payment deadline . Which of the options to choose, so that, as they say, to sleep peacefully?
Responsibility for non-payment or incomplete payment of tax (collection) is provided for in Art. 122 of the Tax Code (hereinafter - the Code). This norm establishes that non-payment or incomplete payment of tax (fee) due to understatement of the tax base, other incorrect calculation of tax (fee) or other unlawful actions (inaction) generally entails the collection of a fine of 20 percent of the unpaid tax (fee) ) In the case when there is a deliberate commission of the specified offense, the fine will already amount to 40 percent of the unpaid amount of tax.
Limitation period
In turn, according to Art. 113 of the Code, a person cannot be held liable for committing a tax offense if three years have passed from the date of its commission or from the day after the tax period during which the offense was committed and before the decision to hold accountable prescription). That is, the statute of limitations for a tax offense is three years. Moreover, this norm stipulates that in the general case the limitation period is calculated from the moment the offense was committed. And the exception to this rule are offenses under Art. Art. 120 and 122 of the Code. With regard to them, the statute of limitations is determined by special rules - from the day after the end of the relevant tax period.
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tax period
So, if we talk about an offense in the form of non-payment or incomplete tax payment, then according to Art. 113 of the Code, the three-year limitation period shall be counted from the day following the day of the end of the relevant tax period. The problem is that this norm does not explain which period is appropriate. In this regard, in judicial practice on this issue there was, to put it mildly, a “mess”.
Some courts believe that the starting point is the first day after the end of the tax period for which the tax was to be paid (see, for example, the FAS Decree of the Volga-Vyatka District of February 15, 2011 in case No. A29-5301 / 2009 and dated November 21, 2009 in the case of N A17-695 / 2009, FAS of the West Siberian District of June 11, 2009 N F04-3438 / 2009 (8540-A27-19)).
True, there is another option - to count off the statute of limitations starting from the day following the tax payment date (see, for example, Decisions of the FAS of the Central District of September 9, 2008 in cases N A09-7320 / 2007-21 and FAS North - Caucasian dated July 31, 2008 N Ф08-4328 / 2008). I must say that this approach is even fair in its own way, but ... In this case, there is no link to "the corresponding tax period." Therefore, it is thought that this position is contrary to the provisions of Art. 113 of the Code.
A different view on resolving the issue of calculating the statute of limitations for tax evasion was first presented in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 27, 2011.
Statute of limitations for taxes for individuals and legal entities - general concepts and legal framework
N 4134/11. The “supreme” judges considered that such should be calculated from the day the tax period ends, in which (and not for which) tax should be paid.
Plus a year
I must say that if the tax period is, for example, a quarter, then the difference in the procedure for calculating the terms is not so great. And if the tax period is a calendar year? It turns out that in this case the statute of limitations will actually be equal to not three, but four years. For example, take income tax. Suppose we are talking about non-payment of tax for 2014. It was due to be paid in 2015. Accordingly, the statute of limitations begins on January 1, 2016.
It is worth noting that after the publication of the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 27, 2011 No. 4134/11, the “supreme” judges had to make excuses. In the information messages posted on the official site of the EAC, it was said that in fact the court did not consider the issue regarding the procedure for calculating the statute of limitations. Be that as it may, since then, examples of court decisions began to be encountered in arbitration practice in which the arbitrators used the approach voiced by the “supreme” judges (see Decisions of the FAS of the Far Eastern District of May 8, 2013 No. F03-1101 / 2013, FAS of the Ural District of August 6, 2013 N F09-6724 / 13, etc.).
Moreover, the Plenum of the Supreme Arbitration Court of the Russian Federation put an end to this matter in Resolution No. 57 of July 30, 2013. Section 15 of the section "Responsibility for Violations of the Law on Taxes and Fees" of this Resolution clarifies the application of the provisions of para. 3 p. 1 art. 113 of the Code. The “supreme” judges this time noted the following. The acts for which liability is established by Art. 122 of the Code, consist of non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of tax or other illegal actions. Meanwhile, the tax base and the amount of tax are calculated by the taxpayer after the end of the tax period at the end of which the tax is paid. Therefore, the statute of limitations under Art. 113 of the Code is calculated in this case from the day after the end of the tax period during which the offense was committed in the form of non-payment or incomplete payment of tax. In other words, the SAC Plenum secured the position voiced earlier by the SAC Presidium, thereby establishing that in such situations the statute of limitations should be calculated from the day the tax period ends, in which (and not for which) the tax should be paid.
Note! In a letter dated August 22, 2014, representatives of the Federal Tax Service of Russia N SA-4-7 / 16692, they hastened to “please” taxpayers with the fact that the indicated position of the BAC Presidium is also applicable to taxes for which the tax period is one year.
Latest trends
Thus, with the light hand of the “highest” judges, the statute of limitations for bringing to justice under Art. 122 of the Code is actually four years, not three.
On the one hand, as a result of judicial reform and the unification of the “higher” courts, the Supreme Arbitration Court ceased to exist. And clarifications on the jurisprudence of the application of laws and other normative legal acts by arbitration courts, given by the Plenum of the Supreme Arbitration Court, remain valid until the adoption of relevant decisions by the Plenum of the Supreme Court (Law of June 4, 2014 No. 8-FKZ). On the other hand, judging by the Decree of the Armed Forces of the Russian Federation of February 10, 2015 N 2-KG14-3, you should not rely on any changes in this part. In it, the representatives of the Armed Forces practically literally reproduced the position of the Plenum of the Supreme Arbitration Court, agreeing that once the tax base and the amount of tax are calculated after the end of the tax period, based on the results of which the tax is paid, the statute of limitations defined by Art. 113 of the Code, calculated in this case from the day after the end of the tax period during which the offense was committed in the form of non-payment or incomplete payment of tax.
In the case under review, the individual entrepreneur was caught failing to pay VAT for the first quarter of 2010. Under the legislation in force at that time, tax was due no later than April 20, 2010, that is, in the second quarter of 2010. The decision to hold the merchant accountable was made by the inspection 19 June 2013, however, the entrepreneur, referring to the provisions of Article
113 of the Code, refused to pay a fine. He motivated his refusal by the fact that on April 20, 2013 the statute of limitations had expired to hold him accountable for the commission of the specified offense. It is noteworthy that the courts of the first and appeal instances sided with the taxpayer. And the court of cassation (and after it the Supreme Court) applied a different “arithmetic”. Thus, the Supreme Court pointed out that since the tax was to be paid in the second quarter of 2010, the statute of limitations for the liability of IP was calculated from the day after that, that is, from July 1, 2010. Accordingly, it expired on July 1 2013. And so, the decision of the inspectorate to hold the IP accountable was made before the statute of limitations.
On this basis, the case was referred for a new trial.
"Secret" move
Thus, today the courts and regulatory bodies must adhere to a unified approach to the procedure for calculating the statute of limitations when bringing a taxpayer to responsibility under Art. 122 of the Code. And in fact, this period obviously exceeds three years.
Under such circumstances, it must be borne in mind that liability under Art. 122 of the Code is generally avoidable. Indeed, as follows from paragraph 19 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 57, the taxpayer’s inaction, expressed exclusively in the non-transfer to the budget of the tax amount indicated in the declaration, does not constitute an offense established by Art. 122 of the Code. In this case, only penalties are recovered from the tax breaker.
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The obligation to pay taxes by law is assigned to all subjects of civil law: not only legal entities, individual entrepreneurs, but also citizens. Taxation is a complex legal system, during the implementation of which a lot of contentious issues arise between taxpayers and regulatory organizations. So, one of the important aspects requiring a clear understanding and compliance is the statute of limitation of tax debt.
General concepts on the limitation period
Supervisory authorities, as a rule, do not remind about the need to make a payment; entities in most situations must do this themselves. If the taxpayer has not paid deductions in a timely manner, a tax debt arises.. Statutory limitation in legal application means a certain period of time when the fiscal service has the right to claim unpaid (fully or partially) tax debts from a citizen and to collect them through the judicial authorities.
It is necessary to distinguish the statute of limitations for a tax offense from the statute of limitations for non-payment of accrued tax payments and mandatory fees, including penalties. The period in relation to offenses is calculated from the day the person committed the offense or at the end of the tax period when it was committed.
For the obligation to pay taxes, the legislation does not establish any time limits for exemption from tax debt. It is impossible to consider taxpayers of different categories in the same way, the time frame for claims depends on the person’s membership in a particular status: a legal entity-organization, an individual entrepreneur-businessman and an individual citizen.
Statute of limitations on taxes IP
For entrepreneurs without the formation of a legal entity, the decision to enforce tax collection is assessed on the correct observance / non-observance of the time allotted for payment. The periods after are considered:
- the deadline for the taxpayer to deposit amounts to special accounts;
- submission of a declaration of accrual and payment of calculated tax;
- receipt of the notification of the tax inspectorate for the payment of tax when the previously reported inaccurate amount is adjusted (charged) based on the results of inspections.
Currently, tax authorities have the right to levy arrears for a time period not exceeding three years. If the requirements are not fulfilled, the IFTS collects debts mainly without going to court. The fiscal service has the right to apply for judicial recovery within 6 months after the end of the period that is set for payment. The circumstances in which debt can only be recovered through the courts are indicated in Article 45, paragraph 2 of the Tax Code (Part I) and constitute an exception to the rules for the undisputed recovery.
Calculus features
In practice, for the IP category, the following approach is applied: if the debt relates to commercial activity, then the limitation period for taxes of legal entities is applied; if the debt arose during non-profit activities, the period will be similar to that for individuals. Since in most cases the activities of entrepreneurs are associated with profit-making, they are equated with organizations in this matter.
After the transfer of the requirement to pay the resulting debt, the individual entrepreneur must fulfill it within eight days from the date of receipt, after which the restraint period is calculated:
- half a year from the last payment - at the expense of money in the accounts of individual entrepreneurs (Article 46 of the Tax Code);
- two years from the last date of satisfaction of the claim - recovery by applying to the IP property (Article 47 of the Tax Code).
Statute of limitations on taxes of individuals
The collection of arrears from a citizen takes place through the courts, in contrast to the requirements for organizations. At the beginning of the procedure, a notice to pay tax is sent to the person at a certain time. The statute of limitations for tax evasion for filing a claim begins from the day when the tax authorities revealed a non-payment (Article 70 of the Tax Code, Part I), and is equal to:
- three months with a debt of 500 rubles or more;
- one year with a debt of less than 500 p.
The tax service must notify the citizen of the debt and give time for self-payment of the debt - this is 8 working days (Article 69 of the Tax Code, Part I). The collection of fees from an individual debtor is regulated by Article 48 of the Tax Code (Part I). The right to collect outstanding debt through a court of general jurisdiction arises if:
- debt\u003e 3 thousand rubles - within six months after the deadline for payment on demand;
- debt ≤ 3 thousand rubles - within six months from the moment when the total debt for all mandatory fees exceeds 3 thousand rubles;
- debt
Despite the fact that tax arrears are unlimited, the time limit applies to such payments: property tax and transport fee. Three years have been set aside for them. Debt cancellation is possible if the required amount has not been received for three years from the debtor. Three years have been established for the collection of personal income tax. The fiscal authorities are entitled to demand arrears from the debtor only for a given period, that is, if a person is due for five years, then they can force a citizen to pay off only for the last three-year period.
The legislative framework
The procedure and deadlines for the enforcement of tax arrears are provided for by tax legislation, not the Civil Procedure Code - many mistakenly believe and believe that the provisions on the general civil statute of limitations apply in this regard. The regulatory provisions of the Tax Code are as follows:
- With regard to the procedure for paying transport tax, Part 3 of Art. 363 Tax Code.
- The rules for the payment of property tax are determined by Article 409, Chapter 32 of the Tax Code, which replaced Federal Law No. 2003-1 from 01.01.2015.
- The limitation period for personal income tax is determined by Chapter 23 of the Tax Code.
Often, taxpayers receive claims from tax authorities to pay tax arrears for long periods. To what extent are these requirements consistent with the law and is there a statute of limitations on taxes, i.e. the period after which the tax authority loses the ability to collect debt through the court.
Does the general limitation period, namely 3 years, apply to tax legal relations?
No, the general statute of limitations (three years) established by Art. 196 of the Civil Code for civil relations, does not apply to tax legal relations, this is expressly stated in paragraph 3 of Art. 2 of the Civil Code of the Russian Federation, namely, the norms of civil law are not applicable to tax legal relations.
What is provided in the tax legislation regarding the statute of limitations on taxes?
Direct norms similar to Art. 196 of the Civil Code, which would establish a limitation period, after which the tax authority is no longer entitled to forcibly collect tax debt from the taxpayer through the court, the Tax Code does not contain. In the same time, limitation period for the return of excessively collected taxes (penalties, fines) for taxpayers established in the Tax Code of the Russian Federation, it is three years from the day when the taxpayer found out or should have known about the collection of excess payments from it (para 2 para. 3, para 1 para 9 clause 79 of the Tax Code).
Are tax debts indefinite and can tax recover arrears, for example, 10 years after its inception?
The tax liability of the taxpayer according to the current Tax Code of the Russian Federation is valid is perpetual, however, certain deadlines for the tax authorities to collect debts from taxpayers, if they were missed, the debt should be recognized as uncollectible and written off on this basis.In addition, in relation to property taxes of citizens (transport tax, property tax of individuals), the calculation of which is assigned to the tax authorities, in Art. 52 of the Tax Code, a special rule is established - the Tax Authority has the right to calculate these taxes for no more than three tax periods (years) preceding the calendar year of the tax notification to the citizen taxpayer.The indicated rule is certainly not a “limitation period” in its direct understanding, but limits the tax authorities in the timing of the calculation of such taxes.
Let’s explain what has been said by way of example, when a citizen is notified in 2016 about the payment of a transport tax, the tax authority will be able to include transport tax amounts there only for 2015, 2014, 2013, debts for earlier periods should not be included in such a notification, provided that earlier than 2016, a citizen did not receive tax notifications for the indicated periods.
Thus, answering the question of the indefiniteness of the taxpayer’s debts and the possibility of collecting the debt after a long period of time, we can draw the following conclusion - the taxpayer’s obligation to pay the tax arrears has no statute of limitations, but is limited by the deadlines for tax collection in the Tax Code, and also - the rules for calculating taxes in relation to property taxes of citizens-taxpayers.
Therefore, in order to answer the question whether the tax inspectorate legally requires the taxpayer to pay arrears for a long past period and whether it can recover it from the taxpayer, you need to install: 1. Has the tax authority not violated the rules for calculating taxes (if these are property taxes of individuals); 2. whether the inspection did not miss the deadlines established by the Tax Code for the enforcement of arrears.
How to determine the start of the deadlines for the collection by the tax authority of debt?
The start of the deadline for collecting a tax debt is the moment the tax authority reveals the taxpayer's debt. From the moment the tax debt is revealed, the period for collecting the debt begins to flow and the collection procedure itself begins.
If the arrears were established by the tax authorities as a result of a tax audit (cameral, visiting, repeated), the moment of detection and the start of the countdown of the deadlines for its collection - there will be a day the decision comes into force according to the results of such P rover.
If the amount of tax payable has been indicated in the tax return ourselves taxpayer or calculated by the tax authority in the tax notice, but not actually listed by the taxpayer in the budgetunder day of arrears it should be understood the day after the tax payment deadline (by declaration, by notification), and if the taxpayer submits a tax return in violation of the established deadlines - the next day after its submission. From the indicated moment, the established deadlines for collecting arrears from the taxpayer will flow.
How long has the Tax Code been established by the Tax Code of the Russian Federation for the recovery of tax arrears?
In the Tax Code of the Russian Federation, a deadline is established for the collection of tax in a judicial proceeding, which is determined on the basis of a set of terms, namely:
- the deadline for sending claims for the payment of arrearsand to the taxpayer;
– deadline for voluntary fulfillment of the requirement;
- the deadline for the tax authorities to appeal to the court.
In total, from the moment of revealing the arrears to filing an application with the court to recover it at the expense of the taxpayer’s money, the tax authorities have about nine months, and if the collection of the arrears is carried out at the expense of the taxpayer’s property (in the case of citizens, money also includes property) , the maximum period for judicial recovery is two years from the date of expiration of the period for voluntary fulfillment by the taxpayer of the requirement to pay tax. In addition, it should be borne in mind that the period for collecting in court debts on property debts of citizens depends on the amount of tax debt.
If the deadlines for collecting the arrears and the court refuses to restore them are violated, the inspection loses the opportunity to collect the debt from the taxpayer, and the arrears must be deemed uncollectible on the basis of paragraphs. 4 p. 1 art. 59 of the Tax Code.
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The limitation period is necessary so that the party that suffered the damage could go to court during this period, even if a lot of time has passed. The total statute of limitations under Civil law is three years. Is there a statute of limitations on taxes and overpayments, and what is its duration? In our article, we will consider what terms are set aside by tax legislation for collecting taxes from legal entities, entrepreneurs and ordinary citizens, as well as for returning tax overpayments to them.
Statute of limitations on taxes
When a person commits a tax offense, the statute of limitations, after which it can no longer be held accountable, is three years. The deadline starts from the day the offense was committed or immediately after the tax (reporting) period in which it was committed (Article 113 of the Tax Code of the Russian Federation, Article 196 of the Civil Code of the Russian Federation). But the tax legislation does not establish any time limits after which the obligation to pay the tax would be removed from the debtor. Therefore, the concept of “statute of limitations for tax payments” implies a period during which unpaid (or not fully paid) tax can be recovered from the taxpayer by fiscal authorities.
If the tax is not transferred to the state budget on time and arrears have arisen for it, for the IFTS this becomes the basis for contacting the taxpayer with a request to pay it (paragraph 1 of article 45 of the Tax Code of the Russian Federation). The claim is transferred personally to the hands of the debtor payer or sent to him by registered mail. The requirement must be fulfilled within 8 days from the date of receipt, or by the time directly specified in it. After this, the calculation of the limitation period for the payment of taxes begins.
If the taxpayer-debtor fails to meet the requirements on time, within 2 months, the tax authorities may decide to recover unpaid amounts. If, at the end of this period, the arrears are not repaid, its collection is possible only through the court.
For filing an application with the court to recover arrears from the money available in the taxpayer’s bank accounts, the statute of limitations for taxes of legal entities and individual entrepreneurs is six months after the expiration of the time allotted for the fulfillment of the former IFTS requirement (paragraph 3 of article 46 of the Tax Code of the Russian Federation) .
If the collection of arrears is “aimed” at the property of the debtor, including its cash, then the statute of limitations on taxes of individuals and organizations recoverable in court will be 2 years from the date the taxpayer’s claim is completed (paragraph 1 of article 47 of the Tax Code of the Russian Federation )
All of the above applies equally to taxpayers and to tax agents who have debts on the transfer of relevant payments.
In the event that the tax authorities have missed the statute of limitations for tax evasion for filing an application, the court may, at the request of the Inspectorate of the Federal Tax Service, reinstate it if it considers the reasons for such a pass valid.
Statute of limitations for taxes overpaid to the budget
Having established the overpayment of taxes, penalties, fines, the Federal Tax Service must report this fact to the taxpayer within 10 days (paragraph 3 of article 78 of the Tax Code of the Russian Federation). Overpayment is set off against future tax payments or refunded to the tax payer.
When the overpayment arose due to the fault of the taxpayer, he has the right to write to the inspection an application for a refund (offset) within 3 years from the date of payment of the excess amount (paragraph 7 of Article 78 of the Tax Code of the Russian Federation), and in case of unlawful refusal of the tax authorities to offset or return the overpayment - file statement of claim to court.
The statute of limitations for taxes that are excessively collected is 3 years. This means that the taxpayer who overpaid the tax due to the IFTS fault may sue it within three years from the moment it detects such an overpayment. An application to the inspectorate for the return of the amount overpaid to the budget is submitted within 1 month after the payer becomes aware of the excessively “withdrawn” tax, or from the day the court decision to recover the amount exceeding the actual amount of the debt came into force (paragraph 3 of Art. 79 of the Tax Code).
Statute of limitations on taxes of individuals
The statute of limitations for taxes paid by individuals who are not individual entrepreneurs is established in art. 48 of the Tax Code of the Russian Federation.
The Federal Tax Service Inspectorate may apply for collection of tax debt to the court if 3 years have passed since the date of the expiration of the first claim, and a citizen owes the state more than 3,000 rubles during this time. The term for circulation is six months from the day when the amount of the debt exceeded 3,000 rubles.
If in 3 years the debt has not become more than this amount, then the tax authorities have six months to go to court after the end of the three-year period.
So, the statute of limitations for taxes should not be confused with the period of prosecution for tax offenses. In this context, this is the time period in which the tax authorities have the right to recover arrears from the taxpayer, or the time for the taxpayer to apply for a refund (offset) of the tax overpayment.
To date, the statute of limitations on taxes is a very relevant topic for citizens of the Russian Federation.
Unfortunately, this concept in Russian legislation did not receive due attention, which led to the emergence of many questions related to it, the answers to which can be found in this article.
What it is?
The limitation period is the period of time during which tax service representatives are entitled to forcibly collect debts from individuals or legal entities.
Until such time has expired, the relevant authority may recover a debt from a certain person. However, this can be done by force only on the basis of a court order.
The time frame of statute of limitations for taxes is quite difficult to determine, since this is not directly stated in the legislation.
The specific period depends on several aspects, for example, the status of the taxpayer or the type of tax.
This issue is rather confusing not only for taxpayers, but also for representatives of tax authorities themselves. So, for example, they may miss the deadline for filing a statement of claim with the appropriate judicial authority, making it virtually impossible to determine the statute of limitations. However, judicial practice is trying to fight this, taking precedents.
Based on all the norms collected, you can notice the fact that all ambiguities in the law are interpreted in favor of taxpayers.
How much is it, its nuances
This tax period is often equated to the general statute of limitations, which is enshrined in the Civil Code of the Russian Federation and is 3 years. However, this is a mistake. It should be determined by tax legislation.
In the Tax Code of the Russian Federation there is no clear answer to the question about the specific duration of the period in question. But based on several norms, several conclusions can be drawn:
- the obligation of a person to pay taxes is unlimited in nature;
- there is a time limit for the enforcement of debt from a person: it is 3 years.
In other words, such a concept as the statute of limitations does not exist in the Russian tax law in its purest form. Although in fact it is replaced by a concept such as enforcement period.
The standard rules are described above, but there are exceptions to any law. The term for the possibility of going to court for representatives of the tax service may be increased by 6 months if the debt does not exceed the amount of 3 thousand rubles. The court also has the right to restore the missed statute of limitations at its discretion.
The application of these exceptions directly depends on the status of the taxpayer, on his actions and behavior.
Determining the beginning of a period is also difficult. According to the law, it starts from the day when the tax service revealed tax evasion. In this case, the body must within 20 days notify the taxpayer of this and demand payment of the debt. In some situations, non-payment can be detected only during the audit, which must be obtained in court.
In addition to all of the above, the period may depend on the type of payment. For example, this period for the transport tax is not fixed anywhere, so it is automatically equated to 3 years.
You can get detailed information about the length of the period under review from the following video:
However, it is impossible to consider all taxpayers in the same way, since the time frame for the limitation period will depend on the person's belonging to one of 3 categories.
Individuals
The beginning of the statute of limitations is the day on which representatives of the tax service discovered non-payment. In some cases, evasion can be detected only during a search for which a court permit is needed.
According to the Tax Code of the Russian Federation, the relevant authority is obliged to notify the individual about his debt and provide a certain period for self-repayment of the debt. Usually given 8 working days.
In case of refusal, the tax authority has the right to apply to the court with a claim for the forced payment of debt within:
- 6 months, provided that the amount of the debt exceeds 3 thousand rubles .;
- 3 years, provided that the amount of debt for the whole time did not exceed 3 thousand rubles .;
- 6 months from the date of exceeding the debt of an amount of 3 thousand rubles, provided that initially the debt was less than this amount.
For the most part, the statute of limitations for individuals does not exceed 6 months. This fact can most likely be called a plus.
Legal entities
In case of non-payment of taxes by a legal entity, a notification is also sent to him with a request for repayment within 20 days. In case of refusal, representatives of the tax authority have the full right to debit the necessary funds from the accounts of the organization without a court decision within 2 months.
If the material funds in the account are insufficient, the tax service may confiscate the property of a legal entity as payment of debt within one year. faces.
If this right has been lost, then the inspection may within 2 years file an application with the court demanding payment of the debt.
Due to confusion in the legislation, the tax administration does not always manage to write off the necessary amount of money within 2 months. If this happened, then its representatives no longer have the right to manage the accounts of a legal entity without an appropriate court decision. Thus, from this moment begins the time period of limitation for organizations.
IP
The statute of limitations for taxes for an individual entrepreneur is not specified in the Tax Code. But based on several articles, several conclusions can be drawn:
- if the indebtedness of the individual entrepreneur relates to income from its commercial activities, the period is set to be the same as for individuals;
- if the indebtedness of the individual entrepreneur relates to income from its non-commercial activities, then the period is set to be the same as for legal entities.
In most cases, individual entrepreneurs are engaged in commercial activities, so they are equated with ordinary citizens in determining the time frame.