Statement of tax credit. Application for interregional offset IFNS (sample)
In any case, the inspection takes a decision on the offsetting of overpaid amounts against arrears within 10 working days:
- from the moment of detecting an overpayment, if the organization did not apply to the inspection with a statement of offset against a specific payment;
- from the date of receipt of the organization’s statement of credit for a specific payment (if the organization has filed such a statement);
- from the date of signing of the act on reconciliation of settlements with the budget (if the inspection and the organization reconciled);
- from the moment the court decision comes into force (including if the organization has achieved offset through the court).
This procedure is provided for in paragraph 5 of Article 78 of the Tax Code of the Russian Federation.
Offset payments
If the organization does not have arrears in other taxes (fees, penalties, fines), the overpayment can be set off against future payments to the budget. This decision is made by the tax inspectorate at the request of the organization. Pre can appointreconciliation of calculations with the budget .
How to declare offset
Filing applications must be submitted in the form approved by order of the Federal Tax Service of Russia dated March 3, 2015 No. MMV-7-8 / 90.
The statement has a line to indicate the amount allocated to pay the arrears. However, at the time of filing such an application, you may not know the exact amount of the arrears against which the offset is supposed. For example, if you are applying for a tax return.
If you do not know the amount of debt to the budget, then the amount of the forthcoming payment, at which the organization asks to offset the overpayment, can be omitted from the application (letter of the Ministry of Finance of Russia dated September 2, 2011 No. 03-02-07 / 1-315). After the amount of the arrears becomes known, the inspection will send the full amount of the existing overpayment to pay it off.
Which tax office should I contact
Applications for offsetting taxes excessively paid to the regional budgets at the location of the separate divisions of the organization can be submitted both to the tax inspectorate at the location of the organization and to the tax inspectorate at the location of the separate divisions (letter of the Federal Tax Service of Russia dated November 19, 2010 No. Yak-37- 8/15939).
How can I apply?
Application can be submitted:
- on paper. The application must be signed by the head or representative of the organization;
- in electronic form via telecommunication channels with enhanced skilled electronic signature .
This is stated in paragraph 4 of Article 78 of the Tax Code of the Russian Federation.
How long can I claim
An organization can submit an application for offset within three years from the date of payment of the excess tax amount. The tax inspectorate must decide on the offset within 10 business days from the receipt of the application from the organization. This procedure is provided for in paragraphs 4 and 7 of Article 78 of the Tax Code of the Russian Federation.
Tip: if you plan to set off the overpayment against upcoming payments (for the same or a different tax), it is better to file a set-off application in advance. At least 10 business days before the due date for the tax on which you want to set off the overpayment. Otherwise, the inspection may charge interest.
The tax shall be deemed paid from the day the inspection decides on the offset (subparagraph 4, paragraph 3, article 45 of the Tax Code of the Russian Federation). In turn, the inspection makes a decision within 10 business days from the day when it receives an application for offset from the organization (paragraph 4 of article 78 of the Tax Code of the Russian Federation). If you submit the application too late (for example, on the eve or on the last day of tax payment, at the expense of which it is planned to offset the overpayment), then the inspectors may not be in time with the offset. And then the organization will have an arrears, and the inspection will accrue interest for late payment until the day the decision on the offset is made (subparagraph 4, paragraph 3, article 45, paragraph 3 of article 75 of the Tax Code of the Russian Federation).
And what a shame, if the inspection decides on the offset in a timely manner (within 10 business days from receipt of the application), then it will not be possible to challenge the penalties. After all, the actions of controllers comply with applicable law. Similar clarifications are in the letters of the Ministry of Finance of Russia dated August 2, 2011 No. 03-02-07 / 1-273, dated February 12, 2010 No. 03-02-07 / 1-62.
Situation: how to determine the period from which the three-year period is calculated for filing an application for the return (offset) of excessively paid taxes?
The answer to this question depends on the type of tax. Rather, on whether advance payments for this tax are provided.
The total period for submitting applications for the return or offset of excessively paid tax is three years from the date of payment of this amount (paragraph 7 of article 78 of the Tax Code of the Russian Federation). But what is considered a payday? It depends on whether there are tax advances.
Overpayment on tax, for which you do not need to transfer advance payments
For example, VAT, MET, UTII, gambling tax. In this case, the three-year period for filing the application, count from the date of transfer of the excess tax amount. If the overpayment arose as a result of several payments, then determine the deadline for the application separately for each of them. The validity of this approach is confirmed by arbitration practice (see, for example, Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 29, 2004 No. 2046/04, determination of the Supreme Arbitration Court of the Russian Federation dated March 26, 2009 No. VAS-1890/09, and a resolution of the FAS of the Moscow District of November 1 2008 No. KA-A40 / 10257-08).
Overpayed tax to the budget, for which advance payments are provided
For example, this is income tax, property tax, land tax. For them, a three-year period for submitting an application must be counted:
- from the date of submission of the tax return for the tax period - if the organization has submitted the tax return within the prescribed time period or ahead of schedule. For example, if an organization submits an annual income tax return on March 20, 2015, it may file an application for the refund (offset) of the excessively paid tax on this tax return by March 20, 2018;
- from the date established for filing the tax return - if the organization has submitted the tax return late. For example, if an organization submits an annual income tax return on April 15, 2015, it may file an application for the refund (offset) of the excess tax paid on this tax return by March 28, 2018.
The validity of this conclusion is confirmed by letters of the Ministry of Finance of Russia dated June 15, 2012 No. 03-03-06 / 1/309, the Federal Tax Service of Russia dated February 21, 2012 No. CA-4-7 / 2807 and arbitration practice (see, for example, decisions Presidium of the Supreme Arbitration Court of the Russian Federation of June 28, 2011 No. 17750/10, FAS of the Moscow District of February 16, 2012 No. A40-49892 / 11-116-139, of the Far Eastern District of February 13, 2012 No. F03-45 / 2012).
Note: even if you did not manage to submit your application within three years, you can return or offset the tax through the court.
An example of appealing a decision of a tax inspectorate to refuse to refund a tax overpayment
On January 27, 2016, Alpha filed an application with the tax inspectorate for the refund of excessively paid transport tax for 2012. According to the declaration for 2012, the amount of tax amounted to 390,000 rubles., According to the updated declaration - 375,000 rubles. Overpayment of 15,000 rubles. formed due to the application of the wrong tax rate.
Transport tax for 2012 Alfa paid in advance. Advances were paid in three payment orders:
- April 26, 2012 - 130,000 rubles .;
- July 19, 2012 - 130,000 rubles .;
- October 25, 2012 - 130,000 rubles.
The inspection sent Alfa a decision of February 15, 2016. In the decision, the inspection indicated that it refused to refund the tax because the three-year deadline for submitting the application was missed. The inspectorate determined the day from which the three-year period for filing an application begins, the date of payment, the transfer of which entailed an overpayment, namely October 25, 2012.
The accountant decided to appeal the decision of the tax office. February 22, 2016 the organization turned to the regional Federal Tax Service of Russia with written complaint .
Situation: is it possible to set off (return) the overpayment of tax if more than three years have passed since the payment of the excess amount?
Yes you can.
As a rule, you need to go to court. The fact is that the three-year period referred to in paragraph 7 of Article 78 of the Tax Code of the Russian Federation is set for extrajudicial offset (return) of overpayment. Skipping this period does not deprive the organization of the right to set off (return) the overpayment in court. Such conclusions are contained in the determination of the Constitutional Court of the Russian Federation of June 21, 2001 No. 173-O.
It makes sense to go to court if the inspection refused to return (read out) the excessively paid amounts or did not respond at all to the organization’s application within the prescribed time (paragraph 33 of the Resolution of the Supreme Arbitration Court of the Russian Federation on July 30, 2013 No. 57, letter of the Russian Ministry of Finance dated June 1, 2009 g. No. 03-02-07 / 1-281). It should be borne in mind that in some cases, inspections have the right to offset the overpayment that arose more than three years ago. We are talking about situations where, in addition to overpayments, an organization has arrears of taxes, penalties or fines. If such an arrears can be recovered without going to court, and if the deadline for the collection has not expired, then the inspection has the right to set off the "old" overpayment in order to pay off the arrears. Such clarifications are contained in the letter of the Ministry of Finance of Russia dated April 22, 2015 No. 03-02-07 / 2/23112.
Limitation period
When considering a case in court, the limitation period is determined by the norms of civil rather than tax legislation. The court will count down the limitation period not from the moment the excess amount was paid, but from the moment when the organization found out (should have known) about it (Clause 1, Article 200 of the Civil Code of the Russian Federation).
Thus, the main task of the organization, which intends to return the overpayment in court, is to prove that no more than three years have passed between the date of appeal to the court and the date when it became aware of the overpayment (paragraph 1 of article 65 of the APC RF) .
How to confirm the three-year period
Before filing a claim, you need to evaluate whether the organization has the necessary evidence. For example, if the organization received an overpayment message from the inspection, then it is advisable to go to court only if three years have not passed since the receipt of such a document.
There is no universal evidence to confirm the initial limitation period (the date when the organization became aware of the overpayment). In each case, the courts may evaluate the arguments presented by both the organization and the tax inspectorate in different ways (Article 71 of the APC of the Russian Federation).
Day of clarification from the Federal Tax Service of Russia and the Ministry of Finance of Russia
The court must take into account all circumstances relevant to the case (Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2009 No. 12882/08). For example, if an organization appealed to the Federal Tax Service of Russia or the Ministry of Finance of Russia with a request to determine the tax base, the limitation period may be calculated from the moment of clarification. After all, before receiving clarifications, the organization could not correctly calculate the amount of tax.
But the filing date of the revised tax return, in which the organization showed a tax reduction, is not a reference point for calculating the statute of limitations. Decisions confirming the validity of this approach are in the district arbitration practice (see, for example, the resolution of the Federal Antimonopoly Service of the North Caucasus District dated April 26, 2010 No. A32-4895 / 2009-59 / 76).
Day of receipt of the inspection report
The starting point for the calculation of the limitation period may be the receipt of an act of field tax audit. Usually this happens if, according to the results of the audit, organizations charge additional taxes on property, transport, land and other taxes that are taken into account when taxing profits.
In this situation, the organization incurs additional costs, so the previously listed income tax amount becomes overpaid. Having clarified its tax obligations, the organization will be able to set off these amounts against current (future) payments or return it to a bank account.
Since the organization learns about the occurrence of an overpayment on income tax and the possibility of offsetting (refunding) these amounts only after receiving an act of tax audit, the limitation period in this case must be counted from the moment the act is received (Article 200 of the Civil Code of the Russian Federation). The validity of this approach is confirmed by the arbitration practice (see, for example, ruling of the Arbitration Court of the North Caucasus District dated May 6, 2015 No. F08-2175 / 2015, FAS of the Ural District dated December 19, 2007 No. F09-10590 / 07-C3) .
Date of compilation of reconciliation statement
The organization may refer to what it learned about the overpayment in the preparation of acts joint reconciliation of calculations with the budget . In such cases, the limitation period starts from the date of signing the reconciliation act (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated October 16, 2009 No. ВАС-13453/09, and the resolution of the Federal Antimonopoly Service of the Urals District dated June 22, 2009 No. Ф09-4077 / 09 -C3, of the Far Eastern District of July 11, 2011 No. F03-2746 / 2011, of April 23, 2010 No. F03-2351 / 2010, of the Moscow District of March 22, 2010 No. KA-A40 / 2210-10, of 9 November 2009 No. KA-A41 / 11714-09, dated April 22, 2009 No. KA-A40 / 3293-09, dated February 6, 2009 No. KA-A41 / 188-09, West Siberian District dated July 29 2009 No. F04-4570 / 2009 (11952-A75-15)).
Statute of limitations
It should be noted that the limitation period may be interrupted. For this, it is necessary that the inspectorate take any action testifying to the recognition of a debt (Article 203 of the Civil Code of the Russian Federation).
However, it will not be possible to use this norm on the basis of a reconciliation act issued by the tax inspectorate. Acts of reconciliation of settlements, as well as decisions on partial offsetting of overpayments, are not a recognition of debt. Consequently, they cannot be a reason to interrupt the statute of limitations for the return (offset) of excessively paid taxes, penalties and fines.
This conclusion is confirmed by a stable arbitration practice (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated February 22, 2012 No. ВАС-1345/12, dated January 24, 2012 No. ВАС-17660/11, and the Resolution of the Federal Arbitration Court of the Moscow Region dated April 12, 2013 No. А40-68277 / 12-90-445, dated March 20, 2013 No. А40-120856 / 11-107-499, of the North Caucasus District dated September 26, 2011 No. А22-1389 / 2010, dated March 4, 2010 No. А32-7594 / 2009-51 / 103, dated February 27, 2010 No. А32-12635 / 2008-70 / 98, of the Volga Region dated February 11, 2010 No. А65-11889 / 2009, of the West Siberian District dated October 5, 2011 No. A46-16162 / 2010, Volga-Vyatka District dated April 30, 2009 No. A17-2713 / 2008).
Situation: whether tax inspectors should charge interest if they deduct excess tax amounts (levies, penalties) from the arrears of another tax?
Yes they should.
Interest is accrued on the amount of excessively collected tax (levy, interest) (paragraph 5 of Article 79 of the Tax Code of the Russian Federation). The organization has the right to receive interest in the case when it asked to set off the excessively collected tax (levy, interest) against the arrears of another tax (clause 9 of article 79 of the Tax Code of the Russian Federation). This is explained by the fact that interest is a compensation for material losses of an organization that were caused by excessive collection of tax amounts. And it does not matter in what form the money is returned to the organization - by transfer to a bank account or by offset against the arrears of another tax.
A similar point of view is reflected in the letter of the Federal Tax Service of Russia dated September 21, 2011 No. CA-4-7 / 15431.
Judges also agree with this approach (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated November 24, 2008 No. 15129/08, the resolution of the FAS of the Moscow District dated May 5, 2011 No. KA-A40 / 3771-11-P, dated August 20 2009 No. KA-A41 / 8136-09, of the East Siberian District of July 21, 2008 No. A19-18067 / 07-33-Ф02-3291 / 08).
Each taxpayer may form overpayment on taxes. Overpayment is formed if the taxpayer pays taxes (penalties, fines) in a larger amount than required by law. Yes, and tax officials often sin unnecessarily recovery payments to the budget.
In any case, the taxpayer has the right to timely offset or return Amounts excessively transferred or recovered to the budget.
The offset and refund of overpaid (overly collected) amounts of contributions, penalties, fines is also provided for by the legislation of state funds:
- Pension Fund of the Russian Federation ( FIU),
- Federal Compulsory Health Insurance Fund ( FFOMS),
- Social Insurance Fund of the Russian Federation ( FSS).
- Incorrect tax calculation: inaccuracy in calculating the tax base, application of the wrong tax rate, etc. Moreover, the payment is recognized as overpaid if the taxpayer himself, without the participation of the tax authority, incorrectly calculated the payment amount.
- Errors in filling out payment orders for the payment of tax, penalties, fines, which entailed their transfer to the budget in an excessive amount. For example, an indication by a taxpayer in a payment of an overestimated amount to be paid that is incorrect by the BCC may lead to this.
- Introduction of changes in tax legislation, the effect of which applies to previous periods. For example, an overpayment for tax may occur upon the introduction of an exemption that has been applied since the beginning of the current year.
- According to the results of the tax period, the amount of tax to be reduced is calculated.
- Change in tax regime.
- Recovery by the tax authority of an excessive amount of payments to the budget.
Excessively exacted the amount of tax (interest, fine) is the amount that the tax authority accrued, reflecting this in the decision based on the results of the tax audit and (or) in the demand.
It does not matter if the payer paid the corresponding amount on his own (on the basis of a demand or decision) or the tax authority forcibly recovered it.
Overpaid tax amount (penalty, fine) - this is the amount that the payer himself (without the participation of the tax authority) calculated in an excessive amount or made a mistake when indicating the payment in the payment order (receipt).
In the second case, in accordance with Article 78 of the Tax Code of the Russian Federation, the tax authority must inform taxpayer about each fact of tax excess becoming known to tax specialists and the amount of excess tax paid within 10 days from the date of discovery of such a fact.
Attention! In practice, tax authorities do not report an overpayment, as sanctions for non-compliance with this order are not provided.
In the event of the discovery of evidence of a possible excessive payment of tax, at the proposal of the tax authority or taxpayer, a joint reconciliation of calculations. The total period for reconciliation of settlements is 10 business days. The results of such reconciliation are documented in an act.
First of all, the overpayment is sent to pay arrears and penalties. In this case, the tax authorities can independently, without a statement from the taxpayer, pay off the arrears against the overpayment. This tax authorities report to the taxpayer within 5 working days from the date of the decision.
Attention! The tax authority does not have the right to offset the excessively paid tax on account of paying off arrears and arrears of interest, the possibility of which is lost.
If the taxpayer has no arrears or penalties, he is entitled to set off the overpayment in the invoice. upcoming payments. However, such a set-off is possible only at the request of the taxpayer. The tax inspectorate is not entitled to set off the overpayment on account of upcoming payments on its own.
The application shall indicate the tax at which the overpayment occurred, the amount of the overpayment, and also where the credit should be made: to pay off the arrears or to pay for future payments.
If there is an error in the payment, it is advisable to attach this order and an extract from the bank to the application. If the taxpayer made a mistake in calculating the tax and this was the reason for the overpayment, then an updated declaration must be submitted together with the statement of offset or refund.
Attention! Offset is only possible between taxes of one kind.
Federal tax can only be credited to the federal, regional - regional, etc. For example, income tax and VAT can be set off among themselves (both taxes are federal). The transport tax with property tax (regional taxes) will also “fit” each other.
? | What is the set-off date? |
Within 10 business days. | ! |
The decision to set off the excessively paid tax against upcoming payments must be made by the tax authority within 10 working days. In this case, the moment of payment of the “necessary” tax will be the date of the decision on the offset.
Another 5 days are given to the tax authorities in order to inform the taxpayer of their decision.
Attention! If the overpayment was formed before the arrears on the same tax or in the same budget and completely covers the arrears, then fines should not be charged. Since in such a situation there was no real underpayment to the budget. This conclusion was made by the Plenum of the Supreme Arbitration Court of the Russian Federation in resolution No. 5 of February 28, 2001.
The taxpayer has the right to expect a refund of the overpayment if the following conditions are met:
- ✓ overpayment occurred in three year period from the moment of excessive tax payment;
- ✓ no debt on taxes and penalties.
The form is approved by the Order of the Federal Tax Service dated 03.03.2015 No. MMV-7-8 / [email protected]
The application shall indicate the tax on which the overpayment occurred, the amount of the overpayment, as well as the details of the current account where the overpayment should be returned.
If a positive decision is made, then the amount is returned within a month, that is, no later than one month from the day the taxpayer submits the application.
In case of violation of this period for each day of violation, starting from the day after the expiration of the one-month period for the return of the overpayment, the taxpayer interest. They are calculated based on the refinancing rate of the Bank of Russia, which was valid for days of violation of the repayment period.
Attention! It is important to distinguish payments from, since the first tax authority should return you with interest. As for excessively paid taxes (penalties, fines), then interest is accrued on them only if the tax authority violates the deadline for returning the overpayment to the taxpayer.
The general scheme is as follows
![](https://i0.wp.com/cbu23.ru.opt-images.1c-bitrix-cdn.ru/images/scheme.png)
Also, the taxpayer is entitled to tax in case of refusal of the inspection to offset (return) or if there is no response to the application, file an application with court within three years from the date of overpayment.
Attention! In case of tax, the taxpayer has the right to go to court without first contacting the inspection.
The right to refund or set off an overpayment is not unlimited. The application must be sent to the tax office within three years from the date of payment of this amount
Attention! In the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 13, 2010 No. 17372/09, it was noted that the moment when the taxpayer knew or should have learned about the fact of excessive tax payment should be determined taking into account the assessment of the totality of all circumstances relevant to the case (in particular, the reasons according to which the taxpayer allowed the overpayment of the tax, the possibility for him to correctly calculate the tax according to the data of the initial tax return, changes in the current legislation during the tax period under consideration), as well as other x circumstances that may be recognized by the court as sufficient to recognize the deadline for tax refund missed.
You can apply for a credit or refund directly to the tax authority. At the same time, we recommend having a copy of the application or its second copy. It is needed for the tax authority responsible for receiving and registering incoming documents to make a note on the date of receipt of the application.
A statement is also allowed. by mail. It is better to forward it with a valuable letter with a description of the attachment.
It is very convenient to send an application electronically via telecommunication channels. To send reports via the Internet, you can purchase an electronic digital signature in the Certification Center of the Central Bank of Ukraine and use it for one year to submit reports to the Tax Authorities, Pension Fund (Pension Fund), Social Insurance Fund (FSS), etc.
In economic life, it often happens that organizations and entrepreneurs fulfill the obligation to transfer budget payments in a larger amount than is required by current legislation. An overpayment is made to the treasury, which gives the right to act in two ways: to return the excess formed or write a statement on the offset of the amount of excessively paid tax and send it to pay off arrears of upcoming obligations. The second option is simple to implement and convenient for business entities, so it is often preferred.
Before taking action, you should understand how the overpayment to the budget was formed. Two options are possible:
1. Error IFTS
The fiscal authority issued an incorrect claim, and the taxpayer, without understanding the situation, paid for it. Such a tax is called unduly collected. The situation does not leave the business entity the right to write an application for offsetting the tax, the transferred funds can only be returned from the budget. Additionally, the tax authorities transfer interest to the company for the period from the date of collection to the day of return. This is the "reckoning" for the error.
2. Inaccuracy made by the taxpayer
Overpayment may arise due to incorrect calculation, indication of incorrect details in the payment order, inaccuracy in the tax return. A legal entity has the right to choose: return excessive transfers or send for repayment of upcoming budget payments.
A sample application for offsetting excessively paid tax requires an indication of the budget payment to which the surplus will be directed. Legislation restricts the company from choosing: overpayments on taxes can be used to pay off obligations to a budget of a similar level. For example, an excess of income tax can “pay off” VAT, because it is federal taxes, but not land tax.
If a company transfers payments to the budget for third parties, acting as an agent, for example, for personal income tax, the resulting excess cannot be allowed to repay the organization’s own obligations to the state.
Cross-Tax Offset: 2017 Statement
To fill out an application, you must use the updated form introduced by Order of the Federal Tax Service No. MMV-7-8 / 454 dated 2017. The latest version differs from the previous ones in that it is suitable for organizations conducting VAT refunds. This is not considered a tax overpayment in the strict sense: the right to a refund is granted to companies whose input VAT exceeded the output VAT over the period.
Another innovation is the appearance in the application for tax credit of an additional column - the position and name of the person who signed the document. If it is submitted on paper, the field contains the data of the head of the organization or another person acting by proxy, if sent electronically, information about the representative of the company for whom the digital signature is issued.
The rest of the application form for offsetting the overpayment of tax is similar to the previous options. It indicates the following information:
- name of the tax office where the document is submitted;
- name of applicant organization;
- Name of representative of the organization;
- TIN, PPC of the applicant company, its legal address;
- No. of the article of the Tax Code of the Russian Federation giving the right to transfer surplus (for example, 78, 79, 176, etc.);
- type of tax on which the overpayment was formed, KBK, OKTMO;
- tax period when surplus has arisen;
- name of tax, KBC, OTKMO, in payment of arrears on which the overpaid amount will be sent;
- date of filling out the document, signature.
An application for offsetting an excessively paid tax can be submitted within three years from the date of the excess transfers. If the deadline date falls on a holiday or non-working day, the deadline is postponed to the next business day following it.
Important! Experts recommend regular reconciliations with the budget, so as not to miss the deadline for the return of funds. After three years, they will have to prove their case in court, and arbitration practice is not always on the side of companies.
An application for tax credit for overpayment offset, a sample of which is presented on the websites of information and legal systems, can be submitted to the fiscal authorities in writing (you need a personal visit to the Inspectorate of the Federal Tax Service of the General Director or authorized representative), by Russian Post (by registered letter) or by TKS (the document is signed EDS).
It is possible that the resulting overpayment to the budget will not be discovered by the taxpayer, but by the fiscal authorities. Legislation obliges them to notify the company or individual entrepreneur within 10 days.
How are taxes offset?
Having received the application for offsetting the overpayment of taxes, the form of which meets all the requirements of the law, tax authorities are required to begin its consideration. They are given five days to give the requesting organization a written positive or negative answer, another five days to begin the process of setting off the funds.
If the decision is positive, information about the need for offsetting is transferred to the Federal Treasury. In total, one month is given for the transfer procedure from the moment of receiving the taxpayer’s appeal to the date the funds are credited to the faithful BSC.
If the tax credit between the KBK statement raises questions for the tax authorities, they are entitled to initiate additional procedures:
- reconciliation of accounting data - up to 15 business days;
- desk audit (up to three months) - if the surplus was formed as a result of filing a clarifying declaration to decrease.
Experts recommend submitting an application for tax credit in advance: the procedure takes time for which a delay may occur under the budget obligation for which you want to transfer the surplus, which threatens with penalties and fines.
It is important to consider that if there are arrears on other budgetary obligations, the resulting surplus will be directed to paying them off. The application for offsetting the overpayment of tax will be valid only in relation to the amount remaining after this transaction.
If you find an error, please select a piece of text and press Ctrl + Enter.
If an overpayment for any tax is allowed, it can be returned. Or set off against future payments (subparagraph 5, paragraph 1, article 21 of the Tax Code). To make such a castling, you will need a tax credit application from one KBK to another. A sample of such a document for 2019 with the rules of offset can be found in our article.
What payments can be used to offset the excessively paid
First, check whether it is possible to offset the overpayment of one tax against another in your specific case. After all, it is not possible to send an existing overpayment to any BSC. Everything will depend on what exactly you are allowed to overpay. And what taxes are the rest. That is, it is important what mandatory payments your company must pay to the budget.
As a general rule, it is possible to set off an overpayment to pay off debts (current or upcoming amounts) within the limits of taxes of one group. There are three types of those, recall: the federal group, regional and local (paragraph 1 of article 78 of the Tax Code). Both taxpayers and agents fall under this clause (clause 14 of article 78 of the Tax Code). This means that the usual overpayment can be set off against the arrears of the tax agent.
For example, a company as a tax agent withheld from the income of its employees personal income tax in the amount of 12,000 rubles. When paying salaries, this amount was withheld, but only 7,000 rubles were transferred to the budget. At the same time, the organization as a taxpayer had an overpayment of VAT in the amount of 6,000 rubles. Part of this overpayment (5,000 rubles) is permissible to be offset against the arrears of the personal income tax agent.
To compare the CSC, for which offset in 2019 is possible, our table will help.
Tax Credit Guide 2019
* Overpayments for tax can be set off not only as payment of future tax payments, but also as repayment of arrears, transfer of interest and fines (paragraph 1 of article 78 of the Tax Code of the Russian Federation).
How to apply for offsetting tax overpayment
If the tax authorities find an overpayment without your participation, they will deduct it on their own due to arrears of another tax of the same level, or penalties and fines on it. If there are no debts, then some tax specialists in the field can automatically credit the overpayment also against current (future) payments. But according to the established rules, you need to draw up a statement for this, a sample of which we have provided for you, so it’s better not to be too lazy and draw up an "extra piece of paper" (paragraphs 4 and 5 of article 78 of the Tax Code of the Russian Federation). So you can be sure that you have fulfilled your budgetary obligations.
An application for offsetting (transferring) tax from one KBK to another can be submitted to the Federal Tax Service Inspectorate within 3 years from the date of overpayment (paragraphs 2, 7 of Article 78 of the Tax Code of the Russian Federation). Otherwise, if more years have passed, you can return your money only through the court.
And keep in mind: as a general rule, no interest is charged on the amount of the overpayment. Therefore, it makes sense to timely decide the fate of all arising overpayments and manage them with the greatest benefit for the company.
If the tax was not overpaid, but unduly collected, then interest must be accrued on a mandatory basis. The right to receive interest remains with the organization, even if it decided to set off these excess penalties against the arrears of another tax (paragraphs 5 and 9 of article 79 of the Tax Code).
How to fill out an application for offsetting tax overpayment
The application form for tax credit is given in Appendix No. 9 to the order of the Federal Tax Service of Russia dated February 14, 2017 No. MMV-7-8 / [email protected] KND - 1150057. Thus, a typical form is filled out. We brought it for download. Further, you will find a sample design.
Please note: Valid form is used from March 31, 2017. Until that date, a different form was applied. Therefore, check the details of the documents that you are preparing to fill out.
If you want to pay off the arrears through the set-off mechanism, but still don’t know the exact amount, you can leave out a special line in the application to indicate the set-off amount. Such clarifications in the interests of quick repayment of debts were given by officials from the Ministry of Finance in a letter dated 02.09.2011 No. 03-02-07 / 1-315. In such a situation, as soon as the amount of debt becomes known, the inspection will send the necessary amount from the existing overpayment to repay the arrears.
As for the general filling order, companies and entrepreneurs fill out only the first page. The second is intended for individuals who are not entrepreneurs.
The usual order of filling out the form is not. But there are a number of explanations at the end of the form (on the second page). The rest is intuitive filling. And you can focus on the general rules for filling out similar forms.
What documents to attach to the tax credit application
Attach the documents for the offset, from which you will see the presence of an overpayment. This may be an erroneous declaration and an explanatory accounting certificate to it; reconciliation statement of calculations with the budget; bank statements.
If the application is submitted on behalf of the company by proxy, you also need a copy of this document.
Application for offsetting overpaid tax: sample
We gave an example of a completed application for a situation when an organization reads an overpayment on personal income tax against another federal tax. In this case, it is VAT.
Application Methods
An application for offsetting tax (overpayment) from one KBK to another can be submitted to the Federal Tax Service Inspectorate (para 1, clause 4 of article 78 of the Tax Code of the Russian Federation):
- on paper. That is, the head personally goes to the tax office with a request for offset. Or his authorized person. Or mailing is also possible (with a valuable letter with a description of the attachment);
- in electronic form (with enhanced qualified electronic signature by TCS or through the personal account of the taxpayer).
What to do after applying for offset
After contacting the Federal Tax Service Inspectorate with a request to transfer tax from one BSC to another, the sample of which we have provided, wait for the decision of the inspectors.
The tax authorities have been given 10 working days to issue a set-off verdict from the day when they received a corresponding application from you (paragraph 2 of Article 78 of the Tax Code of the Russian Federation).
The Federal Tax Service Inspectorate must inform you of its decision to set off or refuse it within five business days from the day the answer was accepted (paragraph 9 of article 78 of the Tax Code).
What to do if insurance premiums are overpaid
In the case of insurance premiums, the procedure for transferring amounts is similar to the above for taxes. And the application form for contributions to the Federal Tax Service is the same (Appendix No. 9 to the order of the Federal Tax Service of Russia dated 02.14.2017 No. MMV-7-8 / [email protected]).
For credit of contributions to the funds, see Order of the FSS of the Russian Federation dated February 17, 2015 No. 49 (form 22 - FSS of the Russian Federation) and Resolution of the Board of the RF PF dated December 22, 2015 No. 511p (form 22-PFR). At the same time, for the contributions to injuries to the FSS, take the application form from the order of the FSS of the Russian Federation dated 11.17.2016 No. 457 (Appendix No. 2). And here you can read out the amounts only within the fund.
Many companies are faced with a situation where they have an overpayment for one or even several taxes. A reasonable step in such a situation would be to set off an overpayment against the same or other taxes. We will find out in what order such a set-off takes place and what documents need to be drawn up.
We must say right away that the rules on offsetting overpayments apply not only to taxes, but also to fines and penalties (paragraph 14 of article 78, paragraph 9 of article 79 of the Tax Code of the Russian Federation). Therefore, in the future, speaking of taxes, we will keep in mind all three types of payments.
So, tax overpayments can occur for two reasons:
- the organization itself overpays the tax (for example, as a result of incorrect determination of the tax base or incorrect indication of the BCC in the payment). In this case, the tax is refunded in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation;
- the tax inspectorate collects excess tax. In such a situation, Art. 79 of the Tax Code.
For your information
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From January 1, 2015, compulsory tax collection is allowed even from personal accounts. Those organizations whose tax arrears of not more than 5 million rubles can miss out on the personal account. (subparagraph 1, paragraph 2, article 45 of the Tax Code of the Russian Federation). If more debt arises, tax officials will have to go to court.
The organization that overpaid the tax can choose one of three options (chapter 12 of the Tax Code):
- return the overpayment (in the absence of tax debt - paragraph 1 of article 79 of the Tax Code);
- set off the overpayment as payment for this tax;
- set off the overpayment as payment for some (not all!) other taxes.
Consider the last two options.
What taxes can be set off?
In accordance with paragraph 1 of Art. 78 of the Tax Code of the Russian Federation, the offset is made by type of tax: federal - against federal, regional - against regional, local - against local (Clause 1, Article 12 of the Tax Code). At the same time, it does not matter to which budget a particular tax is credited (letter of the Ministry of Finance of Russia dated 04/26/2011 No. 03-02-07 / 1-141).
Example 1
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Federal taxes are, in particular, VAT and income tax (paragraphs 1 and 5 of article 13 of the Tax Code). At the same time, VAT goes to the federal budget in full (Article 50 of the Civil Code of the Russian Federation), and income tax (20% rate) is distributed between the federal (at 2% rate) and regional (18% rate) budgets (paragraph 1 of Article 284) Tax Code of the Russian Federation).
Nevertheless, an overpayment of VAT can be fully offset against income tax (and vice versa).
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Taxes paid in connection with the application of special taxation regimes are also federal (item 7 of article 12 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated 04.20.2006 No. 03-02-07 / 2-30).
If the organization overpaid itself
The order of the organization’s actions will depend on who discovered the overpayment: itself or the tax office.
Overpayment discovered by inspection
In this case, the tax authorities are required to inform the organization of the overpayment. For this, they have 10 working days from the date of discovery (paragraph 6 of article 6.1, paragraph 3 of article 78 of the Tax Code). The message is sent in the form approved by the order of the Federal Tax Service of Russia dated 03.03.2015 No. MMV-7-8 / [email protected] (Appendix No. 2 to this order). It can be handed over to the company representative on receipt, sent by regular mail, via telecommunication channels or through your personal account (paragraph 2, paragraph 4 of article 31 of the Tax Code of the Russian Federation).
I must say that in practice, tax authorities do not always report the discovery of an overpayment. Therefore, if the organization identified it on its own, it makes sense to submit an offset test to the inspection, not hoping for the inspectors to be active in this matter. Moreover, the Tax Code of the Russian Federation allows this to be done, even if the tax inspectorate itself has discovered an overpayment (paragraph 3 of paragraph 5 of Article 78 of the Tax Code of the Russian Federation).
If the company has an arrears in taxes, then the inspection itself must set off the overpayment to account for the existing debt (Clause 5, Article 78 of the Tax Code of the Russian Federation). Of course, this applies only to those cases where the possibility of forced debt collection has not been lost (paragraph 32 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.07.2013 No. 57 “On some issues arising when the arbitration courts apply part one of the first Tax Code of the Russian Federation”). Loss can occur, for example, if the inspection has missed a two-month period (after the organization has not complied with the tax requirement) to make a decision on the enforcement of debt collection (clause 3 of article 46 of the Tax Code of the Russian Federation).
If there are no debts, then only the taxpayer can determine the future fate of the overpayment. In such a situation, the inspection is not entitled to carry out the offset of the overpayment (for example, against future payments for the same tax) (letter of the Ministry of Finance of Russia dated 07.25.2011 No. 03-02-07 / 1-260) .
Organization overpaid
A taxpayer who has discovered an overpayment may submit an application for its offset to the inspection. The form of this document was approved by order of the Federal Tax Service of Russia dated 03.03.2015 No. MMV-7-8 / [email protected] (Appendix No. 9 to this order).
For your information
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You can apply for offset within three years from the date of tax payment (paragraph 7 of article 78 of the Tax Code of the Russian Federation).
The tax office will verify the information from the application with its data on payments received. In case of discrepancies, tax authorities may propose reconciliation of settlements (paragraph 2 of clause 3 of article 78 of the Tax Code). If all questions are resolved, the inspection will decide on the offset of tax amounts, if not, on the denial of offset. In both cases, the inspection has 10 working days to make a decision. This period is calculated either from the date of receipt of the application from the organization, or from the date of signing of the act of reconciliation of settlements (paragraph 6 of article 6.1, paragraph 2 of paragraph 4 of article 78 of the Tax Code). Often, tax officials violate this deadline. In such a situation, you can complain about their inaction to a higher tax authority (clause 2 of article 138 of the Tax Code of the Russian Federation), but it is impossible to demand interest on late payment. Such a measure is provided for the delayed return (and not offset) of excessively paid tax (paragraph 10 of article 78 of the Tax Code).
The inspection has another five working days to inform the organization of the decision (paragraph 6 of article 6.1, paragraph 9 of article 78 of the Tax Code).
Offset Application
The procedure for filling out the application for offset will be considered in Example 2.
Example 2
A sample of filling out an application for offsetting an overpayment of VAT against upcoming payments for the same tax.
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Asset LLC has an overpayment of VAT for the III quarter of 2015 in the amount of 100,000 rubles. There is no arrears of other federal taxes. In this regard, the company wants to set off an overpayment in respect of upcoming payments for the same tax.
The application will be filled out as follows:
If the excess tax was collected by the tax office
The inspection can offset the excessively collected tax only against the existing arrears. Moreover, the inspection will carry out the test on its own, without any statements from the taxpayer (paragraph 1 of article 79 of the Tax Code of the Russian Federation). But the offset against future payments in this case is not possible (letter of the Ministry of Finance of Russia dated 11.23.2012 No. 03-02-07 / 1-293).
In accordance with paragraph 5 of Art. 79 of the Tax Code of the Russian Federation an excessively collected tax amount is refundable with interest calculated at the refinancing rate. At the same time, tax service specialists emphasize one very important point: “for calculating interest, it does not matter in what form the excessively collected tax is refunded - by returning it to the taxpayer’s bank account or by offsetting” (letter of the Federal Tax Service of Russia dated September 21, 2011 No. SA-4 -7/15431). The courts agree with this approach (decisions of the Federal Antimonopoly Service of the North Caucasus District dated April 12, 2013 in case No. A32-14781 / 2012, the Federal Antimonopoly Service of the Moscow District dated April 26, 2013 in case No. A40-85167 / 12-107-453 and dated March 16, 2011 No. KA-A40 / 1301-11 in case No. A40-82943 / 10-35-416).
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Interest is accrued from the day following the date of collection to the day of actual return (paragraph 2 of clause 5 of article 79 of the Tax Code of the Russian Federation).
In practice, the question often arises: by what formula should such percentages be calculated? According to officials, it follows from the fact that there are 360 \u200b\u200bdays in a year (letters of the Ministry of Finance of Russia dated 01/14/2013 No. 03-02-07 / 1-7, Federal Tax Service of Russia dated 02/08/2013 No. ND-4-8 / [email protected]) Moreover, they refer to paragraph 2 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 08.10.1998 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest on borrowed money”. However, it is difficult to understand how a resolution explaining the application of the Civil Code of the Russian Federation is related to tax relations.
That is why the Presidium of the Supreme Arbitration Court of the Russian Federation issued a resolution stating that the actual number of days in a year should be used in the calculation: 365 or 366 (resolution dated 01.21.2014 No. 11372/13 in case No. A53-31914 / 2012).