Article 176.1 of the Tax Code of the Russian Federation. Stavropol Territory Arbitration Court

Clause 4 of Article 176 of the Tax Code of the Russian Federation provides that the compensation of export VAT is produced no later than three months, considering the taxpayer from the date of submission tax Declaration and documents provided for in Article 165 of the Tax Code of the Russian Federation. In violation of the specified period, the amount to be returned to the taxpayer is accrued interest on the basis of the refinancing rate of the Central Bank of the Russian Federation. Tax authorities believe that if they refused to compensate for VAT within a three-month period, the taxpayer has no right to receive interest in the event of unlawful refusal. Such a dispute is considered in the Resolution of the FAS of the Moscow District of July 23, 2003 No. Ka-A40 / 4862-03:

"Ruzvneshtorg limited liability company (Next LLC" Ruzvneshtorg ") appealed to the Arbitration Court of Moscow, with a statement about the obligation of the Inspectorate of the Ministry of Internal Affairs of the Russian Federation No. 4 in the Central Administrative District of Moscow (hereinafter - the IMNS of the Russian Federation N 4 in Central Assembly of Moscow , Inspection) charge and pay interest for late reimbursement of value added tax.
In substantiation of his claims, referring to the fact that the decision of the Arbitration Court of Moscow dated April 24, 2002 in case N A40-4280 / 02-107-45 was recognized as invalid by the decision of the Asia RF N 4 in Moscow N 147 of December 18, 2001 on refusal to refuse Rizvneshtorg LLC - exporter of goods - value added tax in the amount of 416174 ruble. The tax authority was obliged to reimburse the specified tax amount by returning.
Based on this decision of the court issued executive lists and initiated executive productionHowever, the tax authority is not produced so far.
By the decision of the Moscow Arbitration Court of February 13, 2003, the claims are satisfied according to the stated grounds. The N 4 of the Central Asian of Moscow is obliged to accrue interest in the amount of 102053 rubles.
By the decision of the appellate instance of the same court of April 15, 2003, the decision was left unchanged.
In the cassation appeal, the Inspectorate of the Russian Federation N 4 in the Central Region of Moscow asks the judicial acts in the case, referring to their illegality and unreasonableness, believing that it was not disturbed by the deadlines established by paragraph 4 of Art. 176 of the Tax Code of the Russian Federation, since the decision to refuse to compensate for tax was carried out in a timely manner.
In response to the cassation appeal, LLC "Ruzvneshtorg" considers judicial acts legal acts, asks the cassation complaint to reject.
In a session of the Court of Cassation Institution, the representative of the Republic of Activities of the Russian Federation N 4 on the Central Bank of Moscow supported the arguments of the complaint. The representative of LLC "Ruzvneshtorg" objected to her satisfaction.
After checking the materials of the case, having discussed the arguments of the complaint by listening to representatives of the parties, the court of cassation does not find grounds for the abolition of the decision and judgment of the court.
In accordance with paragraph 4 of Art. 176 of the Tax Code of the Russian Federation Reimbursement of value added tax is made no later than three months, considering from the date of submission by the taxpayer of the tax declaration specified in paragraph 6 of Art. 164 of the Tax Code of the Russian Federation and the documents provided for by Art. 165 Tax Code.
During the specified period, the tax authority conducts an inspection of the validity of the application of the tax rate of 0% and tax deductions and decides on reimbursement by testing or returning relevant sums or refusal to compensation.
In case of violation of the deadlines established by this clause, the amount to be returned to the taxpayer is accrued, on the basis of the refinancing rate Central Bank Russian Federation .
Satisfying claims, the court proceeded from the fact that the tax authority was violated by the deadline for tax reimbursement.
This is evidenced by the case file.
Thus, on September 20, 2001, the taxpayer filed a tax declaration for August 2001 with the submission of documents provided for by Art. 165 of the Tax Code of the Russian Federation (l. 34).
By the decision of December 18, 2001, the N 147 tax authority refused to refund VAT (l. 37 - 38).
By the decision of the Moscow Arbitration Court of April 24, 2001, the right of the plaintiff was established to reimburse tax, the aforementioned decision of the tax authority is invalid, the inspection is obliged to compensate the tax. The facts established by the specified court decision have on the basis of paragraph 2 of Art. 69 of the Arbitration Procedure Code of the Russian Federation is an ultimate value for the present case.
Evidence testifying to actual standings or respondent is not represented.
Under such circumstances, the cassation instance agrees with the conclusion of the court of first instance on the duties of the Assembly of the Russian Federation N 4 in the Central Asian of Moscow to accrue interest for the late return of tax amounts.
The argument of a cassation complaint that the defendant was not broken by the deadline, since the decision to refuse VAT reimbursement was carried out within the three months provided for in paragraph 4 of Art. 176 of the Tax Code of the Russian Federation, and therefore percentages are not subject to accrual, it was the subject of consideration of the court of first and appeal instances and is legitimately rejected, since the interest of interest law binds not only with a violation of the decision of a decision on the merits of the documents submitted by the taxpayer, but also with a violation of the taxpayer's right to the timely compensation to him tax.
In addition, the interpretation of the norms of the Tax Code of the Russian Federation, including the provisions of paragraph 1 of Part 1 of Art. 32 NK RF about unconditional obligation tax authorities Comply with the legislation on taxes and fees, allows us to conclude that in paragraph 4 of Art. 176 of the Tax Code. This is a legitimate and reasonable decision.
Recognition by the court in case No. A40-42880 / 02-107-45 Decisions of the defendant to refuse to refund the plaintiff invalid testifies to non-fulfillment by the tax authority obligation to make in set time legitimate and reasonable decision.
The objections to the method of calculating percentage of the ISS N 4 in the Central Region of Moscow did not provide in the cassation appeal.
The cassation instance believes that the norms of substantive law are applied correctly, the requirements of procedural legislation are observed, the conclusions correspond to the actual circumstances and the evidence collected in the case. "

A similar situation was considered in the supply of the FAS of the North-Western District of July 1, 2003 No. 56-35058 / 02, the court noted the following:

"Sphinx Limited Liability Company (hereinafter referred to as Society, Sphinx LLC) appealed to the Arbitration Court of St. Petersburg and Leningrad region With a statement to the inspection of the Ministry of the Russian Federation for Taxes and Claims on the Krasnoselsky district of St. Petersburg (hereinafter - the Inspection) on recovery of 56270 rubles. 09 Cop. Interest for violation of the validity of the value added, provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).
Society in accordance with Article 49 of the Arbitration Procedure Code of the Russian Federation increased the amount of precipitated interest to 72291 rubles. 43 kopecks.
By decision of 19.12.2002, the court satisfied the statement of Sphinx LLC in full.
A decree of the appellate instance, the court decision was changed. With inspection recovered 69340 rubles. percent, and in the rest of the stated claims denied.
In the cassation appeal, the inspection asks to cancel judicial acts adopted on the case and refuse to society in meeting the application. According to the complainant, the interest stipulated by paragraph 4 of Article 176 of the Tax Code of the Russian Federation is charged only in violation of the deadlines established by the named article, and not in the case of the tax authority, an unlawful decision to refuse to compensate for value added tax (hereinafter - VAT).
The inspection also indicates that interest should be calculated from the moment the decision is taken by the court of appeal.
Representatives of the inspection, in the prescribed manner of the case notified of the time and place of consideration of the case, did not appear at the court hearing, and therefore the complaint was considered in their absence.
At the hearing, the representative of the Company rejected the arguments of the cassation complaint.
The legality of the appealed judicial acts is checked in cassation.
As can be seen from the materials of the case, Society February 19, 2002 submitted to the tax authority a declaration on VAT at a rate of 0 percent in January 2002, according to which $ 6,69882 was announced to reimbursement from the budget. VAT, as well as a package of documents stipulated by paragraph 1 of Article 165 of the Tax Code, confirming the validity of the application of the rate of 0 percent and tax deductions.
The inspection conducted a desk verification of the declaration and documents submitted by the Company and documents, based on the results of which a decision was made of 16.05.2002 N 10/10K about refusing to society in the budget of 669581 rubles. 44 cop. VAT.
The decision of the Arbitration Court of St. Petersburg and the Leningrad Region of the Arbitration Court of St. Petersburg and the Leningrad Region dated 16.06.2002 in case No. A56-16859 / 02, the specified decision of the tax authority is invalid.
Since the inspection did not return the applicant of VAT on exports in January 2002, the Company appealed to the arbitration court with a statement for recovery of 72291 rubles. 43 kopecks. Interest accrued for the period from 10.06.2002 to 11.12.2002, which the court of first instance satisfied completely.
The appeal instance by the decision of March 13, 2002 has changed the decision of the court, recovering from the tax authority 69340 rubles. Interest for the late refund of LLC Sphinx Tax, indicating that according to the presented inspection at the court hearing, the conclusion of 23.08.2002 N 1591 and an extract from the personal account of the taxpayer 28.08.2002 was made compensation from the budget 76479 rubles. 44 cop. VAT. Thus, interest on this amount is not subject to accrual from 28.08.2002.
According to paragraph to the second paragraph 4 of Article 176 of the Tax Code of the Russian Federation, VAT reimbursement is produced no later than three months, considering the tax declaration and documents provided for by Article 165 of the Tax Code of the Russian Federation from the date of submission by the taxpayer.
Paragraph of the tenth of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, it was established that no later than the last day of the term specified in the second paragraph of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the tax authority decides on the return of the taxpayer amounts from the relevant budget and in the same period directs this decision to execute to the appropriate organ of the Federal Treasury.
It is carried out by the federal treasury bodies within two weeks after obtaining a tax authority. In the case when such a decision is not received by the relevant authority of the Federal Treasury after the expiry of seven days, considering from the date of the direction of the tax authority, the date of obtaining such a decision is recognized as the eighth day, considering from the date of the direction of such a decision by the tax authority.
In violation of the deadlines established by the specified norm, the amount to be returned to the taxpayer is accrued, interest on the refinancing rate of the Central Bank of the Russian Federation.
Thus, the court of cassation considers the conclusion of courts that the accrual of interest in the meaning of the provisions of paragraph 4 of Article 176 of the Tax Code of the Russian Federation is carried out in cases of non-return or return with violation of the values \u200b\u200bof VAT sums, legitimately presented to refund out of the budget. At the same time, the violation of the deadlines may occur both because of the tax authority to the tax authority on the tax reimbursement and due to the adoption of a illegal decision on the refusal of tax reimbursement.
In this case, the Company was not reimbursed by VAT in January 2002 within the time limits established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation, therefore the courts reasonably recovered from the Inspectorate in favor of the Company in favor of late VAT reimbursement.
The cassation instance believes that the court of appeal is legitimately reduced the amount of recoverable interest, taking into account the circumstance that the tax authority 28.08.2002 produced a refund of Sphinx LLC 76479 rubles. 44 cop. VAT.
Under such circumstances, it should be recognized that the decree of the appellate court is adopted in compliance with the norms of material and procedural law, and there are no grounds for its change or cancellation. "

Conclusions:

Thus, if the tax authority puts the decision to refuse the VAT refusal within a three-month period and later this decision will be illegal, interest at the rate of compensation at the rate of the Central Bank of the Russian Federation.

(introduced by federal law of 17.12.2009 N 318-FZ)

1. The applicant tax reimbursement procedure is an exercise in the manner prescribed by this article, testing (return) of the tax amount declared for reimbursement in the tax declaration, until the completion of this Class Tax Declaration is completed in accordance with Article 88 of this Class tax audit.

2. The right to apply the applaining order of tax compensation is:

1) taxpayers organizations whose aggregate value added tax, excise taxes, tax on the profit of organizations and the mining tax paid for the three calendar years preceding the year in which the application is applied for the application of a declaration of tax compensation, excluding sums of taxes paid in connection with the movement of goods across the border of the Russian Federation and as tax agentis at least 10 billion rubles. These taxpayers are entitled to apply the applicant tax reimbursement procedure if at least three years have passed since the creation of an appropriate organization before the date of submission of the tax declaration;

(as amended. Federal Law from 11/27/2010 N 306-FZ)

2) taxpayers who provided with the tax declaration in which the right to reimburse tax, the current banking guarantee, providing for the Bank's obligation on the basis of the tax authority's claim to pay the taxpayer for the taxpayer, excessively obtained by them (credited) as a result of tax reimbursement in applyingIf the decision to reimburse the amount of tax claimed to be reimbursed in a declarative manner will be canceled in whole or in part in the cases provided for in this article.

3. Not later than the day following the day of issuing a bank guarantee, the Bank shall notify the tax authority at the place of taxpayer about the fact of issuing a bank guarantee in the manner determined by federal organ executive authorized to control and oversight in the field of taxes and fees.

4. Bank guarantee must be provided by the Bank included in the list of banks that meet the established requirements for bank guarantees for tax guarantees (hereinafter referred to as a list). The list is conducted by the Ministry of Finance of the Russian Federation on the basis of information received from the Central Bank of the Russian Federation, and is subject to the placement on the official website of the Ministry of Finance of the Russian Federation in the information and telecommunication network "Internet". To include in the list, the Bank must meet the following requirements:

(as amended by Federal Law of 11.07.2011 N 200-FZ)

1) existence of a license banking operationsissued Central Bank Russian Federation and implementation banking activities For at least five years;

3) Availability own funds (capital) of the bank in the amount of at least 1 billion rubles;

4) compliance with mandatory standards provided for by the Federal Law of July 10, 2002 N 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)" (hereinafter - the Federal Law "On the Central Bank of the Russian Federation (Russian Bank)"), for all reporting dates over the past six months;

5) the absence of the requirement of the Central Bank of the Russian Federation on the implementation of measures to financial rehabilitation of the Bank on the basis of the Federal Law of February 25, 1999 N 40-FZ "On Insolvency (Bankruptcy) of Credit Organizations".

5. In case of identifying circumstances indicating the compliance of the Bank not included in the list established by the requirements of either the discrepancy between the Bank included in the list established by the requirements, these information is sent to the Central Bank of the Russian Federation to the Ministry of Finance of the Russian Federation within five days from the date of identification specified circumstances to make appropriate changes in the list.

6. The bank guarantee must meet the following requirements:

1) the bank guarantee should be irrevocable and indescribable;

2) the bank guarantee cannot contain an indication of the submission to the tax authority to the Bank of documents that are not provided for by this article;

3) the duration of the bank guarantee should expire no earlier than eight months from the date of submission of the tax declaration, in which the amount of tax on reimbursement is announced;

4) the amount for which a bank guarantee is issued must ensure the fulfillment of obligations to return to the budget in full amount of the tax claimed to reimbursement;

5) The bank guarantee should allow indisputable write-off of funds from a guarantor account if it is not fulfilling the requirements for payment monetary sum According to the bank guarantee, aimed at the end of the banking guarantee.

6.1. Bank guarantee is provided to the tax authority no later than the term provided for in paragraph 7 this article To submit an application for applying a declaration of tax compensation.

(clause 6.1 introduced by Federal Law of July 19, 2011 No. 245-FZ)

7. Taxpayers who have the right to apply the applaining order of tax compensation are implementing this right through submission to the tax authority no later than five days from the date of submission of the tax declaration of the application for the application of the applicant order of tax reimbursement in which the taxpayer points out the bank account details for the transfer of funds.

In this statement, the taxpayer assumes the obligation to return to the budget of the amount obtained by him (encountered) in the applicant procedure (including interest provided for in paragraph 10 of this article (in case of payment), as well as pay interest accrued on these amounts in the manner prescribed Clause 17 of this article, if the decision to reimburse the amount of tax claimed to reimbursement, will be abolished in a respectable or partially in the cases provided for in this article.

8. Within five days from the date of applying for the application of a declaration of tax reimbursement, the tax authority checks compliance with the taxpayer of the requirements provided for in paragraphs 2, 4, 6 and 7 of this article, as well as the existence of the taxpayer arrears for tax, other taxes, debt on the appropriate Pozy and (or) fines payable or recovery in cases provided for by this Code, and decides on reimbursement of the tax amount declared, in a declarative procedure or decision to refuse to reimburse the tax amount declared for reimbursement in a declarative manner.

Simultaneously with the decision on the reimbursement of the tax amount declared for refunds, in a declarative procedure, depending on the taxpayer's arrears, at the specified payments, the tax authority decides on the expansion of the tax amount declared for reimbursement, in a declarative order and (or) a decision on returning (fully or In part) the amount of tax declared for refunds in a declarative manner.

On the decisions made decisions, the tax authority is obliged to inform the taxpayer in writing within five days from the date of adoption of the relevant decision. At the same time, in a decision on deciding on the refusal to reimburse the amount of tax declared for reimbursement, the norms of this article violated by the taxpayer are indicated. This message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally on receipt or otherwise confirming the fact and date of its receipt.

The decision to refuse to reimburse the amount of tax declared to reimbursement, does not change the procedure and timing of the desk tax audit of the submitted tax declaration. In the event of a decision on refusal to reimburse the amount of tax declared for reimbursement, the tax reimbursement is carried out in the manner and the deadlines provided for in Article 176 of this Code.

9. If the taxpayer has arrears for tax, other taxes, debt on relevant penalties and (or) fines payable or recovery in cases provided for by this Code, the tax authority on the basis of a decision on the expansion of the tax amount declared for reimbursement in the applicant The order is made independently offset the amount of the tax declared for refunds, in a declarative procedure on the repayment of the specified arrears and debt on the foam and (or) fines. At the same time, the accrual of the penalties to the specified arreed is carried out until the date of the tax authority, the decision on the credentials of the tax claimed to refund, in a declarative manner.

In the absence of taxpayer arrears for tax, other taxes, debt on the relevant pencils and (or) fines payable or recovery in cases provided for by this Code, as well as when the amount of tax declared for refunds, in a declarative procedure above the sums of mentioned arreaxes For tax, other taxes, debt on appropriate penalties and (or) fines, the amount of tax subject to refund, is returned to the taxpayer on the basis of the decision of the tax authority on the return (fully or partially) of the tax amount declared for refunds, in a declarative manner.

10. The instruction to the return of the tax amount is issued by the tax authority on the basis of a decision on the return (in whole or in part) of the tax claimed to refund, in a declarative procedure and is subject to territorial body Federal Treasury on the next business day after the tax authority is taking this decision.

Within five days from the date of receipt of the procedure specified in paragraph, the territorial body of the Federal Treasury regulates the taxpayer of the tax amount in accordance with the budget legislation of the Russian Federation and no later than the day following the return day, notifies the tax authority on the return date and the amount of the taxpayer returned Money.

When violating the duration of the return amount of the tax on this amount, interest is charged for each day of delay starting from the 12th day after the day of submission by the taxpayer of the application provided for in paragraph 7 of this article. The interest rate is made equal to the refinancing rate of the Central Bank of the Russian Federation, which is valid during the period of violation of the return period.

In the event that the interest provided by this clause paid by the taxpayer is not fully paid, the tax authority within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the return date and the amount of funds returned by the taxpayer decides on the payment of the remaining interest rate and no later than the day, following the day after the day of the adoption of this decision, sends to the territorial body of the Federal Treasury decorated on the basis of this decision to pay the remaining amount of interest.

11. The validity of the tax amount declared to reimbursement is verified by the tax authority in conducting in the manner and deadlines that are established by Article 88 of this Code, a challenge tax audit on the basis of the tax declaration submitted by the taxpayer, in which the amount of tax on reimbursement is announced.

12. In the event that, when conducting a challenge tax audit, violations of tax authorities and fees were not identified, the tax authority for seven days after the end of the cameral tax audit is obliged to inform the taxpayer in writing about the end of the tax audit and the lack of identified violations of tax laws and fees.

Not later than the day, following the direction of the taxpayer, who provided a bank guarantee, reports on the absence of violations of the legislation on taxes and fees, the tax authority is obliged to send to the bank that issued the specified bank guarantee, a written application for the release of the Bank from obligations under this bank guarantee.

(paragraph introduced by the Federal Law of 19.07.2011 N 245-FZ)

13. In the case of identifying violations of tax legislation and fees during a challenge tax audit, the tax audit must be compiled by the authorized officials of the tax authorities in accordance with Article 100 of this Code.

The act and other materials of the challenge tax audit, during which violations of tax laws and fees were revealed, and the objections submitted by the taxpayer (his representative) should be considered by the head (deputy head) of the tax authority, which carried out the tax audit, and the decision on them should be Adopted in accordance with Article 101 of this Code.

14. According to the results of consideration of the materials of the challenge tax audit, the head (deputy head) of the tax authority makes a decision on attracting a taxpayer to liability for committing a tax offense or to refuse to attract the taxpayer to liability for tax offense.

15. In the event that the tax amount reimbursed by the taxpayer in the manner prescribed by this article exceeds the amount of tax subject to compensation for the results of a challenge tax audit, the tax authority simultaneously with the adoption of an appropriate decision provided for in paragraph 14 of this article, decides to cancel the decision on Reimbursement of the tax amount declared for refunds, and decisions on the return (in whole or in part) of the tax claimed to refund, in a declarative manner and (or) decisions on the exchange of the tax amount declared for reimbursement, in a declarative manner Parts of the tax amount not subject to compensation based on the results of a challenge tax audit.

16. The tax authority is obliged to inform the taxpayer on the decisions declared in paragraphs 14 and 15 of this article within five days from the date of the adoption of the relevant decision. The specified message may be transferred to the head of the organization, an individual entrepreneur, their representatives personally on receipt or otherwise confirming the fact and date of its receipt.

17. Simultaneously with the report on the decision specified in paragraph 15 of this article, the taxpayer aims to return to the budget of an excessive amount obtained by him (encountered) in a declarative procedure (including interest provided for in paragraph 10 of this article (if paid), in the amount, in a proportional share of excessive reimbursed amount of tax in total amount Tax reimbursed in the applicant) (hereinafter referred to as a refund requirement). The amount to be returned by the taxpayer are accrued on the basis of interest rateequal to the two-time refinancing rate of the Central Bank of the Russian Federation, which operated in the period of use of budget funds. Specified interest are accrued from the day:

1) the actual receipt of the taxpayer means - in the event of a return amount of the tax in the applicant;

2) making decisions on the standings of the tax amount declared for reimbursement, in a declarative manner - in the event of the tax amount in the applicant.

18. The form of a refund claim is approved by the federal executive authority authorized to control and oversight in the field of taxes and fees. The required requirement must contain information:

1) on the amount of tax subject to reimbursement on the results of a challenge tax audit;

2) about the amount of tax, excessively obtained by the taxpayer (credited taxpayer) in a declarative procedure to be reputed to the budget;

3) about the amount of interest provided for in paragraph 10 of this article to be returned to the budget;

4) about the amount of interest accrued in accordance with paragraph 17 of this article at the time of the direction of the refund claim;

5) on the date of execution of the refund claim established by paragraph 20 of this article;

6) On measures to recover the amounts to be paid, applied in the event of non-fulfillment by the taxpayer's refundable requirements.

19. The refund requirement can be transferred to the head of the organization, an individual entrepreneur, their representatives in a receipt or otherwise confirming the fact and date of its receipt. If the specified ways are not possible to return the refund requirement, it is sent by mail by registered mail and is considered to be obtained after six days from the date of direction of the registered letter.

20. The taxpayer is obliged to independently pay the amounts specified in the refund request, within five days from the date of its receipt.

21. In case of non-payment or incomplete payment within the established period of the taxpayer, which submitted a bank guarantee, the amount specified in subparagraph 2 of paragraph 18 of this article, the tax authority not earlier than the day following the expiration date established by paragraph 20 of this article sends to the Bank On the payment of the money amount on a bank guarantee, indicating the amounts payable for the guarantor within five days from the date of receipt by the Bank of this requirement.

The bank is not entitled to refuse the tax authority in meeting the requirements of the payment of the monetary amount on the bank guarantee (except for the case when such a requirement is presented to the bank after the deadline for which a bank guarantee is issued).

In the event of non-fulfillment by the Bank within the prescribed period, the requirement of the payment of the monetary amount on the bank guarantee the tax authority implements the right of undisputed debiting the amounts specified in this requirement.

22. Within ten days after the execution of the bank's responsibility for payment of a bank guarantee payment, the tax authority sends the taxpayer a refined refund requirement with the indication of the amounts to be paid to the budget.

At the same time, in case of violation by the tax authority, the direction of refundability of interest accrual for the amounts payable to the taxpayer on the basis of a refund claim is suspended to the date of the actual receipt of this requirement by the taxpayer.

23. In case of non-payment or incomplete payment of the amounts listed on the request for a return, within the established period of taxpayer, who applied the applicant tax reimbursement procedure without providing a bank guarantee, or a taxpayer who received a refined refund requirement, as well as in case of impossibility of sending a request to the Bank Payment of the money amount on a bank guarantee due to the expiration of its validity of its duty to the payment of data amounts is fulfilled by the procedure by adding cash In accounts or other property of the taxpayer for the decision of the tax authority on the recovery of these amounts adopted after the taxpayer non-fulfillment within the prescribed period of the refund, in the manner and deadlines that are established by Articles 46 and 47 of this Code.

24. After submitting the taxpayer of the statement provided for in paragraph 7 of this article, until the end of the challenge tax audit, the refined tax declaration is submitted in the manner provided for in Article 81 of this Code, taking into account the characteristics established by this clause.

If the refined tax declaration is filed by the taxpayer before the decision provided for by paragraph is the first paragraph 8 of this article, then such a decision on a previously submitted tax declaration is not accepted.

If the refined tax declaration was filed by the taxpayer after taking the tax authority a decision on reimbursement of the tax amount declared for reimbursement, in a declarative order, but before the completion of the challenge tax audit, the specified decision on the previously submitted tax declaration is canceled no later than the day following the day of the submission of the refined tax Declaration. Not later than the day following the day the decision of the decision on the cancellation of the decision on the reimbursement of the tax amount declared for refunds, in a declarative procedure, the tax authority shall notify the taxpayer on making this decision. The amounts received by the taxpayer (credited to the taxpayer) in a declarative order should be returned to them, taking into account the interests provided for in paragraph 17 of this article, in the manner prescribed by paragraphs 17-23 of this article.

/ "Arbitration disputes", 2007, N 4 /
N.G. Kuznetsov

Kuznetsova N.G., Judge of the Federal Arbitration Court of the North-West District.

The norms of Article 176 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), devoted to the reimbursement of the value added tax (by testing or returning), accrual and pay interest for violating the return time from the budget of value added tax over the past years with confidence It can be attributed to the number of the most frequently evaluated and studied by the courts. It is explained by the fact that no, perhaps, questions that would be quite clear and unambiguously permitted by the norms of the title article.

However, before discussing these questions, it is necessary to recall the special nature of the legal relationship, which this is speech In Article 176 of the Tax Code of the Russian Federation.

Special nature of legal relations

As a general rule, the Tax Code of the Russian Federation regulates relations between the state and the persons on which the obligation to pay taxes to the budget and tax payments. Organizations and citizens, including those who have the status of an individual entrepreneur, in the presence of tax facilities, calculate and pay taxes in the budget system, and the state, represented by authorized bodies, monitors compliance with the legislation on taxes and fees.

Taxpayers may allow excessive payment, and tax authorities - unreasonable tax recovery in the budget. In this case, Articles 78 and 79 of the Tax Code establish the procedure and timing of the return from the budget is unnecessarily paid (recovered) amounts. For violation of the refund period of excessively paid (recovered) taxes to the budget, interest on the rules defined by Articles 78 and 79 of the Tax Code of the Russian Federation are paid to the budget.

The above rules concern the consequences of a late return of the taxpayer that they are paid or from it directly into the budget.

At the same time, in a number of specially stipulated by the Tax Code of the Russian Federation, the taxpayer has the right to refund from the budget amounts of tax, which he did not pay the budget.

One of them is given in chapter 21 "Value Added Tax" of the Tax Code of the Russian Federation.

In accordance with Article 173 of the named head of the Code of Code, the taxpayers shall be calculated to be paid to the budget amount of value added tax in next order: The total amount of tax, calculated on the basis of each tax period according to the rules of Article 166 of the Code, decreases by the amount of tax deductions provided for in Article 171 of the Tax Code of the Russian Federation. The difference is payable to the budget.

At the same time, often the amount of tax deductions (under which the tax amounts submitted by the taxpayer by the sellers of goods (works, services), as well as property rights in the territory of the Russian Federation or paid by the taxpayer when importing goods into the customs territory in the customs regimes listed in paragraph 2 of Article 171 The Tax Code of the Russian Federation) exceeds the amount of tax calculated on the basis of a particular tax period in relation to all operations recognized as the object of taxation.

The difference is positive in favor of the taxpayer, and chapter 21 of the Tax Code of the Russian Federation determines the procedure for handling such a difference.

Term "Reimbursement"

In paragraph 2 of Article 173 of the Tax Code of the Russian Federation, it is indicated that the positive difference is subject to a compensation for the taxpayer in the manner and under the conditions provided for in Article 176 "The procedure for tax reimbursement" of the Tax Code of the Russian Federation.

Moreover, Article 176, as decaded by January 1, 2007, provided for two different procedures for the formation of such a "positive difference."

In accordance with paragraph 1 of Article 176 of the Tax Code of the Russian Federation, which relate to the procedure for compensation for tax on the Declaration of the Domestic Market, a positive difference occurs when the amount of tax deductions of the total tax calculated on operations recognized as the object of taxation is exceeded.

Clause 4 of Article 176 of the Tax Code of the Russian Federation, regulating the procedure for reimbursement of tax on the operations of the sale of goods (works, services) taxable tax rate 0 percent, provided for the reimbursement of taxes recognized by tax deductions that relate to transactions taxed at a tax rate of 0 percent, as well as the amounts of tax paid in accordance with sub-clause 6 of Article 166 of the Tax Code of the Russian Federation. That is, since the revenue from such an implementation of goods (works, services) is subject to a tax rate of 0 percent, there is no amount calculated from revenue from such operations, respectively, the entire amount of tax paid to suppliers of goods, works, services (the amount of tax deductions) is presented to reimbursement from the budget.

In paragraph 1 of Article 176 of the Tax Code of the Russian Federation, it is indicated on two ways to reimburse such a positive difference - the offset and refund.

Since the legislator introduces the special term "reimbursement" when the taxpayer has a positive value-added tax difference, emphasizing the special nature of its occurrence, as it is not about the excessive payment of the taxpayer to the tax budget, calculated in accordance with Article 166 of the Tax Code of the Russian Federation, A concerns the amount of tax paid by other persons in a different order, suppliers of goods (works, services), at customs as part of customs payments, etc., when returning or credit the tax on the basis of Article 176 of the Tax Code of the Russian Federation, revolutions are applied: "Reimbursement tax by returning from the budget "," Offset in order of tax reimbursement ".

The highest arbitral tribunal of the Russian Federation in adopted in 2000 by the decision (from 06.06.2000 N 9107/99) led the differences between the concepts of "excessive payment", "overpayment of value added tax" and "reimbursement of value added tax paid by suppliers of goods (works, services). "

The resolution states that in accordance with Article 78 of the Tax Code of the Russian Federation, the amount of excessive tax paid to the taxpayer at the expense of the budget (extrabudgetary fund), which has been overpayed. If the return time is violated, the amount of unnecessary tax paid is not returned within the deadline, interest is charged for every day of the return period. That is, the basis for the application of this rule is to overpay the tax to the budget ( extrabudgetary fund). Tax payments under Article 58 of the Tax Code are made in cash or non-cash form. Under the payment of the tax under articles 45 and 60 of the Tax Code of the Russian Federation it is understood as the instructions of the taxpayer by the Bank in compliance with certain conditions for the transfer of the tax in the relevant budgets.

Clause 3 of Article 7 of the Law of the Russian Federation "On Value Added Tax" (as well as in force since 2001, Article 176 of the Tax Code of the Russian Federation) provides for the taxpayer from the budget of the tax amount paid to them by suppliers. This norm regulates the relationships not to pay the tax to the budget and its return in the event of a overpayment, but specific attributive attitude of the tax paid to suppliers material values, that is, other business entities that are payers of this tax.

Taking into account the above, the Supreme Arbitration Court of the Russian Federation acknowledged that grounds for considering these amounts overpaid to the budget and apply to the controversial relations of the provision of Article 78 of the Tax Code of the Russian Federation relating to interest accrual.

Two orders of tax reimbursement until 2007

Until 2007, taxpayers in the presence of operations of the sale of goods (works, services), taxed at the tax rate of 0 percent, were obliged to submit two separate declarations: 1) on the operations of the sale of goods (works, services) tax rates exceeding 0 percent (10%, 18%), most often hereinafter referred to as the Declaration of the domestic market or the general declaration, and 2) on the operations of the sale of goods (works, services) taxable 0 percent.

Accordingly, article 176 of the Tax Code of the Russian Federation contained two independent procedures for tax reimbursement: for the operations of the sale of goods (works, services) in the domestic market and for the operations of the sale of goods (works, services), taxed at the tax rate of 0 percent.

The first regulated the norms of paragraphs 1 - 3, and the second - the norms of paragraph 4 of Article 176 of the Tax Code of the Russian Federation.

The main differences in these orders were as follows.

First, in different ways, the period of use of the right to use for the interests of the taxpayer (offset or refund) declared in the declaration of tax on reimbursement was determined.

Cash in the amount of the positive difference that arose from the taxpayer on the value-added tax declaration on the domestic market immediately after filing the taxpayer of such a declator, was recognized as a taxpayer's cash, as evidenced by paragraph 2 of Article 176 of the Tax Code of the Russian Federation, in the editorial office that operated until 2007 . Here it is indicated on the obligation of the tax authority to send the amount of the positive difference reflected in the declaration received into the tax authority, within three calendar months to fulfill the duties of the taxpayer on the payment of taxes and fees, penalties, repayment of arrears, amounts of tax sanctions subject to enrollment in the same budget .

Consequently, the tax authority for three months after receipt of the declaration was right and was obliged to independently spend off the amount of tax deposit on taxes, foam and tax sanctions available at the taxpayer, and the fulfillment of current tax obligations of the taxpayer, but The end of three calendar months the amount that was not credited was to return the taxpayer on his written statement.

Special confirmation of the tax authority of the taxpayer's right to such a positive difference did not provide for the Codex.

Otherwise, this question was solved on the operations of the sale of goods (works, services), taxed at the tax rate of 0 percent.

Paragraph 4 of Article 176 of the Tax Code of the Russian Federation envisaged a tax reimbursement no later than three months, considering the declaration of the declaration with the documents provided for in Article 165 of the Tax Code of the Russian Federation. During this period, the tax authority was obliged to check the validity of the application of the tax rate of 0 percent and tax deductions and on the results of the verification, decide on reimbursement by testing or returning the relevant amounts either to refuse (fully or partially) in compensation. If the taxpayer has arrears and tax penalties, as well as debt on the awarded sanctions subject to enrollment in the same budget, the tax authority was obliged to exercise. In the absence of such debts, the amount to be reimbursed was to be offset on the expense of current tax payments of the same budget level or return to the taxpayer on his application.

That is, before making a tax authority, the decision on compensation or before the expiration of a three-month period, allocated to check the declaration and the documents submitted to it, indicated in the reimbursement declaration, the tax amount is not considered to be reimbursed by the taxpayer in any way.

Understanding this sufficiently has been a certain difficulty for taxpayers, as evidenced by the numerous decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation (from 10.02.2006 N 5370/06, from 02.27.2006 NN 11608/05, 13644 / 05, 11626/05, 7308/05, 7299/05, dated 14.12.2004 N 3521/04).

Taxpayers while simultaneously submitting a declaration on the domestic market and declarations on operations taxable at the tax rate of 0 percent, and the present of the first amount of tax to payment, and on the second amount of tax to be reimbursed from the budget, we paid only the difference between the amounts or did not pay the tax at all If the amount to be reimbursed significantly exceeded the tax amount specified in the Declaration on the Domestic Market.

The requirements of tax authorities on paying a full tax on the Declaration on the internal market of taxpayers challenged in arbitration courts. In statements to the court, taxpayers argued that the amount of tax liabilities is determined by the results of each tax period and is calculated on all taxable operations reflected in both declarations. Therefore, before making an inspection, the decision on the refusal to compensate for the value added tax on the tax return on the tax return of 0 percent of the taxpayer has the right to test for the value added tax payable for the tax return on the domestic market for the same tax period, when calculating the value tax obligations In the aggregate arising on the basis of Article 171 of the Tax Code of the Russian Federation.

The Supreme Arbitration Court of the Russian Federation did not agree with the position of taxpayers, indicating that on operations taxable by subparagraphs 1 - 6 and 8 of paragraph 1 of Article 164 of the Tax Code of the RF value added tax rate on a tax rate of 0 percent, deductions are made in the form of compensation on the basis of a separate After verifying the tax inspectorate submitted by the taxpayer with the Declaration of Documents for compliance with the requirements of Article 165 of the Tax Code of the Russian Federation.

Secondly, the purpose of the three-month period established by paragraph 2 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, as well as the date began its calculus.

According to paragraph 2 of Article 176 of the Tax Code of the Russian Federation during the three-month period, the tax authority sends the taxpayer to be reimbursed by the amount of tax on the fulfillment of its tax liabilities.

At the same time, three calendar months followed by three years following tax period.

The three-month period provided for by paragraph 4 of Article 176 of the Tax Code of the Russian Federation is established to verify the tax authority "the validity of the application of the tax rate of 0 percent and tax deductions".

These three months, in contrast to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, are calculated from the date of submission by the taxpayer of the tax declaration and documents provided for in Article 165 of the Tax Code of the Russian Federation.

Tax authorities often do not take into account this difference and in determining the period of delay in the return of tax on the domestic market, the beginning of the three-month tax return period is mistakenly considered the date of submission of the declaration, and not the day, following the end date of the tax period for which the Added Tax Declaration Cost (Resolution of the Federal Arbitration Court of the North-West District of June 29, 2006 in case No. A56-54145 / 2005).

Thirdly, there is a different order of credit tests depending on their type (it should be remembered that the test is carried out only with regard to payments to be credited to the same budget).

In paragraph 2 of Article 176 of the Tax Code of the Russian Federation, payments, whose payment is sent to the reimbursement, are given in such a sequence:

• execution of the obligation to pay taxes and fees (including taxes paid in connection with the movement of goods across the customs border of the Russian Federation);
• payment of pencils;
• repayment of arrears;
• the amounts of tax sanctions awarded to the taxpayer.

And in paragraph 4 of Article 176 of the Tax Code of the Russian Federation, another setup order is provided:

• arrears and penalties for value added tax;
• arrears and penalties for other taxes and fees;
• debt on awarded sanctions;
• current payments for value-added tax and (or) other taxes and fees, as well as on taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the implementation of work (services) directly related to the production and implementation of such goods .

Even a quick comparison of the list of lists allows you to see significant differences in them.

How important these discrepancies were taken into account when conducting tests under paragraphs 1 - 3 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, based on the existing judicial practice, It's hard to say.

Fourth, in different ways the deadline for submitting an application for the return of tax is settled.

Both orders are provided for two ways to reimburse tax - a credit and refund, but the right to return the tax is due to the presence of a return statement submitted by the taxpayer.

Moreover, not all courts considered the presence of a taxpayer submitted to the tax authority on the return of the tax by the condition of its reimbursement by returning to the current account.

The Supreme Arbitration Court of the Russian Federation in the decrees of 28.11.2006 No. 9355/06, from 11/29/2005 N 7528/05, from 21.12.2004 N 10848/04 confirmed the need to submit such an application, indicating that before receiving the taxpayer's application, Which is a clearly pronounced will to return to him amounts of tax, the tax authority does not have the obligation to return the tax to be reimbursed.

But the will of the taxpayer can be expressed and must be taken into account not only when applying for return directly into the tax authority. In the decision of 06.06.2006 No. 1363/06, the Supreme Arbitration Court of the Russian Federation recognized the taxpayer to fulfill the requirement of Article 176 of the Tax Code of the Russian Federation on the submission of an application for a return as the terms of tax reimbursement by returning when expressing the taxpayer of this requirement in a statement filed to the arbitrator. Organization In addition to the claim for invalidation tax Inspection A refusal to reimburse tax on the tax rate on the tax rate of 0 percent asked to oblige the tax authority to reimburse the tax by returning to the settlement account. Prior to this, the application directly to the tax authority was not filed. The Supreme Arbitration Court of the Russian Federation acknowledged that the purpose of the taxpayer's appeal to the court is a tax reimbursement by refunding money not paid by him due to the illegal inaction of the state body. The will to reimburse tax from the budget by returning can be expressed in a statement to the court.

The ruling was allowed a sufficiently long question about the obligation of preliminary, before turning to court with the requirement of the obligation to compensate the tax in accordance with Article 176 of the Russian Federation by returning, submitting an application to the tax authority. The Russian Federation confirmed the taxpayer's right to put forward the demand for the return of the tax in a statement filed to the court, and in cases where the application for tax reimbursement by return was not filed into the tax authority.

Article 176 of the Tax Code of the Russian Federation unequivocally does not determine the date (period, period) of the application for the return of tax in the tax authority.

Thus, in the first paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, it is indicated that after the expiration of the three calendar months following the expired tax period, the amount that was not credited, to be returned to the taxpayer on his application.

Does this mean that the taxpayer can submit such a statement before the expiration of a three-month period is to reduce the return amount of the tax on the current account?

From the second paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, the obligation of the tax authority within two weeks after receiving the application to decide on the return of the tax amount from the relevant budget and in the same time to send a decision on execution to the appropriate authority of the Federal Treasury.

And if the taxpayer presented a statement about the return of tax two weeks before the expiration of a three-month period, does the right to return the tax in the first day following the day or need two weeks to add to three months?

In the federal arbitration court of the North-Western district there are two opposite points of view, and their supporters do not deny the availability of the taxpayer the right to submit an application for the return of the tax before the expiration of a three-month period.

According to the first point of view, when submitting an application before the expiration of a three-month period (no later than two weeks, including simultaneously with the declaration), two weeks for making a decision on the return are not added, since "a two-week period for making a decision on a return is absorbed in three months, The first paragraph 3 of article 176 of the Tax Code of the Russian Federation established by paragraph "(Resolutions of the Federal Arbitration Court of the North-Western District of 21.09.2006 No. A05-4743 / 2006-13, of August 24, 2006 No. A56-40874 / 2005, from 20.02.2006 N A56 40107/04).

Another position is set out in the resolution of the Federal Arbitration Court of the North-West District of April 26, 2006 No. A56-39759 / 2005. The court indicated that, "since the application for the return of tax was filed simultaneously with the tax declaration, the maximum return time of the value-added tax on the domestic market is equal to the three months established for the challenge of the declaration, plus two weeks to make a decision on the return of the specified amount and directions Decisions for execution to the appropriate body of the Federal Treasury plus eight days allocated to obtain the treasury of the tax authority's decision, plus two put on the treasury for transferring the appropriate amounts to the taxpayer. "

For consideration of the Presidium of the Supreme Arbitration Court of the Russian Federation, this issue was not carried out.

But I would like to once again pay attention to two standards of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, given in paragraphs of the first and second paragraph 3 of Article 176 of the Tax Code of the Russian Federation.

The first paragraph of paragraph 3 states that after the expiration of the three calendar months following the expired tax period, the amount that was not credited is subject to return to the taxpayer on his written statement.

That is, it is directly indicated for the refund of the undetected amount after three months.

At the same time, the second paragraph provides for the obligation of the tax authority within two weeks after receiving the application to decide on the return of the taxpayer's tax and in the same time to send an opinion on execution to the appropriate authority of the Federal Treasury.

Should a two-week period be established not only to make a decision, but also to send the conclusion of the relevant federal treasury authority?

If so, then two weeks stipulated by paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, may increase the tax return period, regardless of when an application for its return is submitted, since and in case of a decision on returning simultaneously with the decision to reimburse tax in The last day of the three-month term, the tax authority has the right to send this decision within two weeks to the Treasury Organ.

Even less definiteness in legal regulation The deadline for submitting an application for the return of tax reimbursed by the Declaration on Operations Reliable At the Tax Belt of 0 percent.

Clause 4 of Article 176 of the Tax Code of the Russian Federation also does not establish a date (period) of the application for the return of the taxation to be reimbursed.

From paragraph of the ninth paragraph 4 of Article 176 of the Tax Code of the Russian Federation, it follows that in the absence of grounds for holding a test, the amounts to be reimbursed are subject to return to the taxpayer according to its application. And in the next, tenth, paragraph it states that the tax authority is no later than the last day of the three-month period, should decide on the return of the tax from the relevant budget and in the same period to send this decision to execute into the appropriate authority of the Federal Treasury.

Understanding by taxpayers the norms of these two paragraphs.

Some believe that the return application should be in the tax inspection at the time of the end of the verification and the tax authority of the decision. Since three months - the maximum test date and the tax authority can complete its holding much earlier (judicial practice a lot of examples are known when the tax authorities are verified and make decisions within a month), such taxpayers file an application simultaneously with a declaration or a slight time period.

Other taxpayers believe that before obtaining the decision of the tax authority on the tax reimbursement, it makes no sense to apply for its return.

It does not take into account that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain the rules governing the actions of the tax authorities when submitting a taxpayer for a return after making a tax authority.

However, this problem was solved by the Presidium of the Supreme Arbitration Court of the Russian Federation.

In the decision of 29.11.2005 No. 7528/05, the Supreme Arbitration Court of the Russian Federation confirmed that, within a sense of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the taxpayer's statement on the return of tax should be represented before the expiration of a three-month period established for the challenge of the tax declaration. At the same time, the Supreme Arbitration Court of the Russian Federation drew attention to the fact that this clause does not contain a ban on the taxpayer statement on the return of the tax and at the end of this period, therefore, the taxpayer is not deprived of the opportunity to submit such a statement, even if the The tax authority decided to test the tax, did not make a decision on reimbursement or decided to refuse to refuse, since the latter may be challenged in the arbitration court.

The court also concluded that the term of consideration by tax authorities for the return of tax filed by taxpayers outside the three-month period to verify the tax declaration, paragraph 4 of Article 176 of the Tax Code of the Russian Federation. Therefore, for the purpose of determining the initial moment of interest, paragraph 3 of Article 176 of the Tax RF, which obliging the tax authority within two weeks after receiving the application to decide on the return of tax within two weeks after receiving the application, may be applied to determine the initial moment of interest. His on execution to the organ of the Federal Treasury.

I would like to remind you about the need to verify the authority of the person who signed the application sent to the tax authority by returning the tax.

Tax authorities have information about the head and the main accountant of organizations, as well as about individual entrepreneurs, their personal signatures, so check the powers of those who have entered the tax authority of the statement.

In judicial practice there are disputes arising due to the signing of the directed statements about the standings or return value added tax by unauthorized persons.

So, in February 2006, the Federal Arbitration Court of the North-West District considered the cassation complaint in the case of N A42-6647 / 04-26, initiated by the application of an individual entrepreneur on invalidation of the decision of the tax authority on refusal to refund by returning the amount of value added tax Suppliers paid. In the course of consideration of the inspection complaint, the court found that the tax authority refusal to compensate for the taxpayer from the tax budget by returning is justified by the fact that the application for the return of the tax is signed by an unauthorized person. The Federal Arbitration Court of the North-West District agreed with the tax authority. The court acknowledged that the written statement of the taxpayer is a mandatory documentary basis for returning value added tax. The court also indicated that by virtue of the requirements of articles 26 and 29 of the Tax Code of the Russian Federation, the taxpayer participation - individual In tax relations through the authorized representative, it is possible only on the basis of a notarized power of attorney or a power of attorney equivalent in accordance with the civil legislation of the Russian Federation. Power of attorney according to paragraph 1 of Article 185 Civil Code Of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) is recognized as a written authority issued by one person to another person for representation to third parties. The power of attorney may be discontinued due to the abolition of power of attorney by the person who issued it. The person who issued a power of attorney may, at all time, cancel the power of attorney or a handover, and the person who is the power of attorney is issued, to refuse her. Thus, within the meaning of the provisions of Articles 185 and 188 of the Civil Code of the Russian Federation, the representative can exercise his powers only if they are confirmed by written power of attorney. Since in the case under consideration, in the application of the taxpayer, signed by a trustee, was not indicated, on the basis of which document (power of attorney), the representative implements his powers, the court of cassation rejected the link of the entrepreneur to the fact that the statement was signed by a properly authorized person.

Fifth, in different ways, the rate of interest accrued taxpayer was formulated for violating the timing of the tax return in reimbursement.

In paragraph 3 of Article 176 of the Tax Code of the Russian Federation, it is indicated that in violation of the tax reimbursement time by returning the taxpayer, interest is charged and paid, based on the 1/360 refinancing rate of the Central Bank of the Russian Federation for each day of delay.

In paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the size of the refinancing rate of the Central Bank of the Russian Federation, based on which interest is accrued is not limited.

This circumstance cannot but generate disputes between tax authorities and taxpayers.

Tax authorities believe that interest should be calculated, based on the 1/365 refinancing rate of the Central Bank of the Russian Federation.

The courts do not agree with this position of tax authorities, indicating that paragraph 4 of Article 176 of the Tax Code does not contain an indication of the required number of days applied when calculating interest. Applying the provisions of Article 11 of the Tax Code of the Russian Federation, as well as guided by the explanations contained in the joint decree of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum Supreme Court Of the Russian Federation of 08.10.98 N 14/13 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money," the courts proceed from the fact that interest for violating the deadlines of the tax returns provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation are accrued based on clause 3 of Article 176 of the Russian Federation of the Russian Federation - 1/360 refinancing rate of the Central Bank of the Russian Federation (Resolution of the Federal Arbitration Court of the Moscow District dated 07.11.2006 N Ka-A40 / 10666-06, from June 22, 2006 N Ka-A40 / 5338 -06).

New tax reimbursement from January 1, 2007

From January 1, 2007, taxpayers seemed unified Declaration For all operations to implement goods, works, services, regardless of the tax rate applied.

Accordingly, a single tax reimbursement procedure is established.

First of all, a mandatory cameral verification of value added tax declarations are provided for which the amount of tax deductions exceeds the total amount of tax recognized as the value added taxation object.

It should be noted that Article 176 of the Tax Code of the Russian Federation since 2007 contains a direct indication that the check is desk and is carried out in the manner established by Article 88 of the Tax Code of the Russian Federation. And in paragraph 8 of Article 88 of the Tax Code of the Russian Federation (as amended since January 1, 2007), the tax authority is provided for the taxpayer for the tax declaration on the value added tax, in which the right to reimburse tax, refer to the taxpayer documents confirming the taxpayers According to Article 172 of the Tax Code of the Russian Federation, the legality of the use of tax deductions.

That is, only when the amount of tax deductions over the amount of tax calculated on operations recognized as the value-added taxation object and the occurrence of the taxpayer's right to reimburse the difference from the budget in accordance with Article 176 of the Tax Code of the Russian Federation, the tax authority has the right to demand submission of documents provided for in Article 172 of the NC RF.

According to paragraph 2 of Article 88 of the Tax Code of the Russian Federation, the Cameral check is carried out within three months from the date of submission by the taxpayer of the tax return and documents that, in accordance with the Code, should be attached to the tax declaration.

According to a new rule at the end of the inspection within seven days, the tax authority is obliged to decide on reimbursement of relevant amounts, if violations of tax legislation and fees have been revealed.

This is the term that was not in the previous edition of Article 176 of the Tax Code of the Russian Federation.

Reimbursement is carried out by credit or return.

As before 2007, if the taxpayer has arrears for tax, other federal taxes (That is, it is now determining the type of tax, and not the level of the budget in which it is credited), the tax authority on the relevant penalties and (or) fines of the tax authority independently credits the tax amount to be reimbursed in their repayment.

In the absence of grounds for the tax authority, the tax authority to be reimbursed by the tax authority is returned to the taxpayer's application for the bank account specified by it.

The addition of the need to indicate the taxpayer in the statement of the bank account only since 2007, however, the tax authorities often substantiated the validity of non-return to the taxpayer amounts to the tax by the lack of such information in the taxpayer's statement.

The courts did not recognize such an explanation for the valid reason for the inaction of the tax authority, referring to the fact that due to subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation, the obligations of taxpayers to inform the tax authorities about the opening or to close the accounts to the tax authorities are known about all its accounts. Therefore, the tax authority must return the amount of tax on any known account.

Unfortunately, in the presence of numerous judicial practice, testifying to the position of tax authorities not to return under any pretext from the budget of value added tax, the introduction of the rule of the rule on instructions in the application for the return of the bank account tax will lead to additional disputes. After all, the obligation of taxpayers established by sub-clause 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation is not canceled, therefore, the tax authority always has information about the accounts of the taxpayer. Therefore, in the absence of a taxpayer in a statement, an indication of a specific account in the Bank, in principle, nothing prevents the tax authority to make a decision on the return of tax, and on behalf of the tax refund decorated on the basis of a decision sent to the territorial body of the Federal Treasury, to specify any known account Taxpayer.

In connection with the mention of the application for the return of tax, I would like to pay attention to one circumstance, which can also cause controversy.

When a new version of the new version of Article 176 of the Tax Code of the Russian Federation, the submission of the taxpayer on the return of tax is not recognized as an obligatory condition for tax reimbursement by returning the tax.

• according to paragraph 2 of Article 176 of the Tax Code of the Russian Federation at the end of the inspection within seven days, the tax authority is obliged to decide on the tax reimbursement;
• in accordance with paragraph 7, the decision on the credit or return is made simultaneously with the decision to reimburse the tax amount;
• in paragraph 10, it is indicated that when a tax return time is violated, counting from the 12th day after the completion of the challenge tax audit, following which the decision was made on compensation (full or partial) tax amount, interest is charged;
• paragraph 6 provides for the return of the tax on the taxpayer's application for the bank account specified by it.

It is possible that the purpose of introducing in paragraph 6 of Article 176 of the Tax Code of the Russian Federation that the amount to be reimbursed is to resolve the tax authority returns at the request of the taxpayer to the bank account specified by it, is exclusively the legal consolidation of the taxpayer's right to give the tax authority. Mandatory instructions for it Accounts in a specific bank on which cash is subject to transfer.

Indeed, in accordance with paragraph 7 of Article 176 of the Tax Code of the Russian Federation, the tax authority is obliged to decide on the standings or return simultaneously with the decision to reimburse the tax amount (fully or partially). Consequently, given the provisions of paragraph 2 of the same article on the date of the decision on tax reimbursement, in the absence of grounds for the testing of the tax authority, it is obliged to decide on the return of the tax within seven days after the end of the camera check, regardless of the availability of the taxpayer's application for the return of the tax.

In this case, if the application, indicating the details of the account, is not submitted by the taxpayer, the tax authority has the right in the payment order sent to the Treasury, to specify any account, information about which has.

If the tax authority has a taxpayer's statement on the return of the tax on a specific bank account, it is not entitled to arrange payment order Otherwise. Violation of this rule may be the basis for attracting a tax authority to liability for losses caused by the taxpayer, on the basis of Article 35 of the Tax Code of the Russian Federation.

In addition, when recognizing the obligation to submit a taxpayer for a return and after January 1, 2007, the question of the procedure and the term for consideration of applications for the return of tax filed after the tax authority makes a decision on tax reimbursement remains. In Article 176 of the Tax Code of the Russian Federation, there are no norms that can be applied by analogy as possible until 2007 (Resolution of the Supreme Arbitration Court of the Russian Federation of November 29, 2005 No. 7528/05).

Most likely, this issue will be submitted for permission. judicial bodies.

According to the new edition of Article 176 of the Tax Code of the Russian Federation, the next day, after making the tax authority, the decision on the return of the tax is issued and sent to the territorial body of the Federal Treasury to return the tax.

There is also an obligation of the tax authority to inform the taxpayer about the decision taken in writing:

• about compensation (fully or partially);
• about standing (return) the amount of tax subject to refund;
• about refusal to compensation -

within five days from the date of the adoption of the relevant decision.

The norm of article 176 of the Tax Code of the Russian Federation in the new edition, as well as its former editors, obliges the tax authority only to report on the decision taken. But since the form and content of such a message is not defined by the Code, the tax authorities in different ways refer to the execution of this duty. In some cases, taxpayers are directed to the notice that this number for such a number is made a corresponding decision. In other cases, a copy of the solution is sent. But there are often cases of non-fulfillment of the above-mentioned duties, and then taxpayers learn about the decision taken by the tax authority during reconciliation at court sessions during the consideration of tax disputes.

Apparently, to eliminate this violation of the rights of taxpayers, the legislator in the new edition of Article 176 of the Tax Code of the Russian Federation (paragraph 9) established the rule, in accordance with which a written message about the decision was to be transmitted to the head of the organization, an individual entrepreneur, their representatives (whose powers should be Decorated in accordance with the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation), in a receipt or otherwise confirming the fact and date of its receipt.

The above new procedure for the tax reimbursement concerns cases when the tax authority was not identified when conducting a certificate verification of violations by the taxpayer of tax legislation and fees.

In case of detection of violations, the tax authority is an act of a tax audit in accordance with Article 100 of the Tax Code of the Russian Federation. This act, along with other inspection materials, as well as the objections of the taxpayer, is considered by the head of the tax authority and the decision should be made in accordance with Article 101 of the Tax Code of the Russian Federation. Simultaneously with the decision to bring to responsibility, either refusal to attract the taxpayer to the liability of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, it is planned to make a tax authority to reimbursement (in whole or in part) of the tax claimed to refund, or decisions on the refusal to reimburse the amount of tax claimed to refund.

Obviously, the return of tax in such a situation is more complicated and durable.

From article 176 of the Tax Code of the Russian Federation, the rule contained in paragraph five of paragraph 4 was excluded in the new edition, according to which, if the tax authority, a tax authority was not submitted during the established period, the tax authority was not submitted to the tax authority. Motivated conclusion, the tax authority is obliged to decide on compensation for the amount on which the decision was not made to refuse, and notify the taxpayer about the decision taken within ten days.

One of the main issues was the question of how formally should apply this rule?

Is the right to oblige the inspection to make a decision on tax reimbursement by returning or testing without checking primary documents or the court must provide the tax authority for an additional term for their inspection?

Does the inspection right after the court has a decision on imposing the obligation to compensate to the taxpayer a specific amount of tax (regardless of the method of compensation) to check documents or is it obliged to make a decision on compensation without checking them?

Should the court request the documents listed in Article 165 of the Tax Code of the Russian Federation, as well as those provided for in Articles 171 and 172 of the Tax Code, confirming the taxpayer's right to reimburse tax? Do you need to evaluate such documents to the court, including if the taxpayer himself has attached them to a court statement?

If literally interpret the paragraph of the fifth paragraph 4 of Article 176 of the Tax Code of the Russian Federation, then it does not follow the obligation of the court or the tax authority to explore documents confirming the taxpayer's right to reimburse the amount specified in the Declaration.

This rule is the negative consequences of the non-fulfillment of the authority assigned to the authorized by the state - the tax inspectorate - the duties to take into the decision established (and considerable!) Decision, to issue and send the taxpayer on its basis a motivated conclusion.

The Constitutional Court of the Russian Federation in determining from 21.12.2004 N 456 also explained that the provision of paragraph of the fifth paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not provide for the possibility of the tax authorities a decision on refusal to reimburse value added tax after the expiration of the deadlines established by the Code of Destroy. "

In the decision of the Supreme Arbitration Court of the Russian Federation dated 13.02.2007 No. 12943/06, the attention of the courts for unlawful leaving the violation of the tax authority established by paragraph 4 of Article 176 of the Russian Federation of the Russian Federation of three months and the decision to refuse to compensate for tax beyond after turning the taxpayer in court demanding to oblige the inspection to compensate the tax. Unfortunately, the position of the Supreme Arbitration Court of the Russian Federation regarding the availability or absence of the court to investigate documents submitted to the court to the court to the court, as the case is aimed at a new consideration of the court of first instance, and not allowed by the highest arbitration court of the Russian Federation on the merits Based on now already canceled, but in 2005 (when the tax authority missed the timeline) of the operating rule.

At the same time, in the decision of 06.03.2007 No. 13661/06, the law confirmed the legality of the decree of the appellate instance, which, recognizing the inspection unlawful actions, expressed in refusal to return the amount of tax deductions, referred to the state of paragraph of fifth paragraph 4 of Article 176 of the Tax Code of the Russian Federation. The court of appeal did not agree with the conclusion of the court of first instance that the Tax Inspectorate when passing a three-month period cannot decide on the tax reimbursement without analyzing primary documents, as well as documents confirming the taxpayer's right to tax deductions.

From the materials of this case, it was necessary that the Organization 20.04.2005 sent to the Tax Inspectorate on the value added tax on a tax rate of 0 percent for the first quarter of 2005 by registered letter with the description of the investment. In a statement of 06/09/2005, the taxpayer requested to compensate the tax by returning to its current account. After the conversion of the Organization on July 15, 2005 with a request to report on the results of consideration of the application by the inspection by letter dated June 22, 2005, notified the refusal to return the amount declared for reimbursement, justifying such a decision because the taxpayer declaration was not considered for the first quarter of 2005, since Presented in the improper (previously approved) form.

The taxpayer appealed against the actions of the inspection, expressed in refusal to return to the reimbursement of the tax amount, and asked the court to oblige the inspection to return the disputed amount to the current account.

The court of first instance confirmed the lack of inspection legal grounds For failure to consider the declaration of the Organization with documents, nevertheless the taxpayer requirement rejected. The court referred to the fact that without analyzing the primary documents, as well as documents confirming the right to a tax deduction, the tax inspectorate is not entitled to make a decision on reimbursement of tax from the budget. The court of cassation agreed with the court of first instance, additionally pointing out that the taxpayer is not deprived of the opportunity to re-submit documents to the inspection in the manner and deadlines that are established tax legislation.

The Supreme Arbitration Court abolished the decision of the court of first instance and the decree of the cassation instance and left the decision of the court of appeal to satisfy the requirements of the taxpayer.

At the same time, the Russian Federation proceeded from the following. Since the courts of three instances confirmed that the tax authority did not have legal grounds in the case under consideration, it was not legal basis for the declaration of the taxpayer with the documents attached to it, "the court of first instance should have obligated the inspection to consider the submitted documents in the manner established by Article 88 of the Code, and decide on the results Their considerations, thereby supposed to the inspection to eliminate the violation made it. " The Russian Federation acknowledged that the courts of first and cassation instances violated the provisions of part of the fourth article 200 of the Arbitration Procedure Code of the Russian Federation on the right of the taxpayer to submit, and the duties of the courts - to investigate the documents that are the basis of obtaining tax deductions regardless of whether these documents were exterminated and investigated to the tax Authority when solving the issue of granting the tax deduction. The courts wrongfully did not take into account the refusal of the tax authority at the request of the court to explore and evaluate the documents submitted by the taxpayer, which the inspection substantiated the fact that the Tax Code of the Russian Federation does not provide for a challenge check during the trial. In addition, the highest arbitration court considered unauthorized by the courts of the first and cassation instances of the interrelated provisions of Article 88, paragraphs 1 and 2 of Article 171, paragraph 2 of Article 172 and Article 176 of the Tax Code of the Russian Federation, from the content of which it follows that "the tax authority is not entitled to refuse the taxpayer in Tax deduction, if the appropriate test was not conducted. "

In the new edition of Article 176 of the Tax Code of the Russian Federation, as in the previous edition of its paragraph 4, the size of the refinancing rate of the Central Bank of the Russian Federation is not specified (para. 10). Apparently, in the courts again there will be disputes on the size of the percentage payable.

In the second paragraph of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, the rate appeared, which in Article 176 of the Tax Code was not previously. According to this norm, the interest rate is made equal to the refinancing rate of the Central Bank of the Russian Federation, which operated in the days of the reimbursement period.

This rule is not for the participants of the tax legal relations new, since a similar rule was provided for in Articles 78 and 79 of the Tax Code of the Russian Federation operating since 1999.

A fundamentally new duty of the tax authority is established in paragraph 11 of Article 176 of the Tax Code of the Russian Federation.

According to the title, if the taxpayer did not fully pay interest, the tax authority decides on the return of the remaining amount of interest calculated, based on the date of the actual return of the taxpayer of the tax amount to be reimbursed, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on Return and the sum of the money returned by the taxpayer.

The order for the refund of the remaining amount of interest, decorated on the basis of the decision of the tax authority on the return of this amount, is subject to the tax authority the day after the adoption of this decision to the territorial body of the Federal Treasury.

Despite the fact that the new version of Article 176 of the Tax Code of the Russian Federation, as before, did not define the procedure for payment of interest, the norms of paragraph 11, which enshrines the order of interest of interest, can give answers to some of the issues arising in judicial practice.

First, the accrual and payment of interest is made by decision of the tax authority.

Secondly, on the basis of this decision, the tax authority sends an instruction to the relevant authority for interest payments.

Thirdly, the interest order should be directed the day after the decision.

At the same time, she still did not find a legal consolidation of the answer to the question of the date, which interests interest. In paragraph 11 of Article 176 of the Tax Code of the Russian Federation, it is stated on the payment of interest calculated, based on the date of the actual return of the taxpayer of the tax amount to be reimbursed.

This question was the subject of a trial in the Federal Arbitration Court of the North-West District in case No. A56-11690 / 2005 (RESOLUTION of 29.08.2005). The Federal Arbitration Court of the North-West District admitted that Article 176 of the Tax Code of the Russian Federation was not defined, to what point the interest should be accrued. However, in paragraph 4 of Article 79 of the Tax Code of the Russian Federation, it is indicated that interest in the amount of excessive recovery tax is charged from the day following the day of recovery, on the day of the actual return. Since Article 79 of the Tax Code of the Russian Federation regulates the legal relations similar to the legal relations regulated by Article 176 of the Tax Code of the Russian Federation, the court of cassation court considered it possible to apply the analogy of the law and pointed out in the ruling that interest accrued on the amount of value added tax to be returned to the taxpayer is accrued on the actual return day tax. In addition, the FAS SZO referred to a similar position in relation to articles 78 and 79 of the Tax Code of the Russian Federation, set forth in the decision of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.02.2001 N 5. The decision of 28.02.2001 N 5 directly does not concern the issue of interest accrual, but in It indicates a criterion for determining the moment of execution of the obligation to return the taxpayer of relevant sums by transferring them to a cashless procedure to the recipient's account: when determining this moment, it should be guided general ruleAccording to which the taxpayer is recognized as fulfilled its duty from the receipt of the relevant amount to the Bank specified by the recipient. Therefore, the court acknowledged that the return of the tax under Articles 78, 79, 176 of the Tax Code of the Russian Federation can be considered generated at the time when the cash is actually listed on the taxpayer's account. Therefore, a violation of the return period of taxes, in connection with which interest is subject to accrual, ends at the time of the actual transfer of funds to the taxpayer's account.

The Supreme Arbitration Court of the Russian Federation in the decision of 29.11.2005 No. 7528/05 otherwise identified the end of the period of delay in the return of the tax. The court indicated that the delay period lasts on a day preceding the date of the actual transfer of the treasury of the appropriate amounts to the taxpayer. The legal justification of such an output in the ruling is not given. The decision concerns the interpretation of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, as amended by January 1, 2007. Whether this conclusion of the Russian Federation will be applied by interpreting the relevant norm of the new edition of Article 176 of the Tax Code of the Russian Federation, will show judicial practice.

Calculation of tax return timing

Directing a tax authority to return to the reimbursement of the value added tax amount to the current account, each taxpayer expects to obtain the amount specified in the application as soon as possible.

How to determine the maximum time, at the end of which the amount of tax should go to the taxpayer's current account?

When returning tax on the Declaration on the domestic market, the funds were supposed to be credited to the taxpayer no later than the last day next time: three months (calculated from the first day of the month following the period for which the declaration is presented) plus two weeks (if the application is filed no later than two weeks before the expiration of a three-month period, add or not these two weeks - depends on this The question of the position) plus eight days (the term for receiving the treasury of the tax authority) plus two weeks (the term for transfer by the treasury authorities of the appropriate amounts to the taxpayer's account).

When returning tax on the tax rate on a tax rate of 0 percent:

• if the application for the return of tax is filed within the three-month term provided for by paragraph by the second paragraph 4 of Article 176 of the Tax Code of the Russian Federation, - three months (calculated from the day of submission of the Declaration) plus eight days plus two weeks;
• if the application for the return of the tax was filed after the expiration of a three-month period, the period of delay begins from the next day after the expiration of the return time provided for in paragraph 3 of Article 176 of the Tax Code of the Russian Federation (two weeks plus eight days plus two weeks), calculated from the moment of submission of the application (Resolution of the Supreme Arbitration Court Of the Russian Federation of 29.11.2005 N 7528/05).

After January 1, 2007, Article 176 of the Tax Code of the Russian Federation establishes a single maximum tax return period.

The new edition of Article 176 of the Tax Code provides for the following types of deadlines:

• three months of holding a desk check, calculated from the date of submission by the taxpayer of the tax declaration and documents, which, in accordance with the Code, should be attached to the tax declaration;
• seven days - the term for making a tax authority a decision on reimbursement of relevant amounts, unless violations of the legislation on taxes and fees were not identified, as well as the decision made simultaneously with it;
• the next day after deciding on the return - the date of the direction of the tax authority to the Treasury of the order for the return of the tax amount decorated on the basis of such a decision;
• five days - a deadline for transferring the tax of the Taxation to the taxpayer's current account. It should be paid to the fact that these five days are calculated from the date of receipt of the treasury of the tax authority. At the same time, the term of its delivery (as it was in the previous revision of Article 176 of the Tax Code of the Russian Federation for the decision) is not established.

When addressed the above deadlines for the tax authority, the direction of instructions to the Treasury body and transfer by the Treasury Authority to the taxpayer's account, the discrepancy between the result was the result of the result with the maximum period established in paragraph 10 of Article 176 of the Tax Code of the Russian Federation.

According to the named item, the amount of tax must be returned within 11 days after the completion of the cameral audit, according to the results of which a decision was made on compensation (full or partial), and from the 12th day the tax return period is considered to be disturbed.

This discrepancy may entail the disputes and the need for their judicial permit.

/ "Arbitration disputes", 2008, N 1 /

Calculation of the period of return of the tax when submitting refined declarations

Article 81 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) provides for taxpayers with refined declarations, which make changes to the previously submitted tax declaration when the fact of the irregular or incompleteness of the reflection of information, as well as the mistakes, as leading and not leading to increasing the amount tax.

If the taxpayer according to the initially presented declaration on value added tax is refundable to be refundable one amount, and on the refined - the other, is the procedure for tax reimbursement established by Article 176 of the Tax Code of the Russian Federation?

How do the initially submitted and updated declarations correlate? Is it possible to recognize the updated declaration by a new independent declaration for the previous tax period, annuling a previously directed declaration, or only makes a change in the initially represented declaration?

Norms of Article 176 of the Tax Code of the Russian Federation in current edition Provide compulsory conducting a certificate verification of the validity of the tax amount declared for reimbursement, in accordance with Article 88 of the Tax Code of the Russian Federation.

Does this mean that in all cases of filing a refined declaration, the three-month period of its inspection will be calculated again from the receipt of such a declaration in the tax authority?

In the judicial practice of applying the previous revision of Article 176 of the Tax Code of the Russian Federation, the answer to this question depended on whether the refined declarations of 0 percent of tax deductions changed by taxpayers.

If the amount of tax deductions, that is, the tax amount specified to compensation, did not change, the courts did not find grounds to extend the set of tax return time (Resolution of the Federal Arbitration Court of the North-West District of January 23, 2007 No. A56-34919 / 2005, the Federal Arbitration Court West -Sibirsk district from 09/06/2006 N F04-5383 / 2006 (25723-A27-42)).

With the change in the amount of the tax declared for refunding in the refined declaration, the courts recognized the right of the tax authority to verify this declaration again in the procedure established by paragraph 4 of Article 176 of the Russian Federation (the resolution of the Federal Arbitration Court of the North-West District of June 20, 2006 N A56-40107 / 04 ).

Another question arises when submitting a refined declaration.

Is it necessary to re-submit a statement about the return of another, updated tax amount? Is the solution to this question depends on the amount of the tax amount declared to refund: less or more it specified in the initially represented declaration?

The relevance of the uniform solution to this issue when applying the relevant standards of Article 176 of the Tax Code of the Russian Federation will remain in the event if the application for the return of the tax will be recognized prerequisite Reimbursement of value added tax by return.

Consequences of violation of tax reimbursement

As already mentioned, Article 176 of the Tax Code of the Russian Federation, both in the old, and in the new edition establishes two methods of tax reimbursement - offset and refund. The same article defines the timing of the test and return.

However, the payment of the taxpayer of interest is envisaged only in the event of a violation of the reimbursement of the value added tax to be reimbursed. Incompretation of the tax authority of the test does not entail the accrual of the interest provided for in Article 176 of the Russian Federation.

This conclusion came the Supreme Arbitration Court of the Russian Federation in the decision of 05.10.2004 No. 5351/04. The subject of the dispute in this case was two requirements: the recognition of the illegal inaction of the tax authority, which expressed in the failure of the test of the value added tax to be reimbursed, and the imposition on the tax authority to accrue interest, provided for in Article 176 of the Tax Code of the Russian Federation. The court of first instance, satisfying the first requirement, rejected the second as an unlawful, not based on the norms of chapter 21 of the Tax Code of the Russian Federation. The court found that the taxpayer submitted to the tax inspectorate of the declaration, which stated to reimburse more than 12 million rubles. The tax authority on time set by Article 176 of the Tax Code of the Russian Federation, the test of the tax to be reimbursed did not produce. Two years later, the taxpayer presented a written application for the exchange of this amount into the inspectorate on the repayment of tax debt, and the tax authority performed it on the same day. Since applications for tax reimbursement by returning were not filed, the court did not find the grounds for accrual interest.

The cassation instance has canceled the court decision on the second requirement, concluding the presence of grounds for paying the taxpayer provided for by Article 176 of the Russian Tax Code of the Russian Federation, since "interest in the amount of the reimbursed tax is subject to accrual regardless of the method of reimbursement (by credit or return).

The Supreme Arbitration Court of the Russian Federation did not agree with the court of cassation and confirmed the legality of the decision of the court of first instance. The Supreme Arbitration Court of the Russian Federation indicated that in accordance with Article 176 of the Tax Code of the Russian Federation, interest on the amount of tax to be reimbursed is charged only if the tax authority is violated the tax return time in the presence of a taxpayer's written statement. Since the taxpayer did not apply to the Tax Inspectorate with a written statement on the return of the tax, the interest of the accrual is not subject to. The conclusion of the court of cassation on the accrual of interest for violation of the inspection of the timeline of the tax on the value added tax of the Russian Federation was unlawful.

But in all cases, the taxpayer does not have the right to compensate for the material losses caused by untimely reimbursement of the tax authority for value-added tax, by receiving interest provided for in Article 176 of the Tax Code of the Russian Federation, if ultimately the tax is reimbursed by testing, not a refund?

Judicial practice gives a negative answer to this question.

In February 2007, the Presidium of the Supreme Arbitration Court of the Russian Federation considered two cases (decisions of 27.02.2007 N 11484/06 and N 13584/06), the decisions on which the taxpayer paid interest for a violation of the return time in situations where the tax amount was not credited At the expense of the taxpayer, but was studied by the tax authority for its application on the execution of the obligation to pay taxes.

It is necessary to pay attention to a number of special circumstances that have been in these cases.

When considering a review on the revision in the order of oversight of the decision in case No. A56-1786 / 2005, the Supreme Arbitration Court of the Russian Federation found that the organization was established on November 20, 2003 to declated the tax rate of 0 percent on value added tax for October 2003, According to which she was subject to refund out of the budget, a certain amount of tax. Together with the declaration in the tax authority, a statement was received on the return of the tax amount to be reimbursed to the taxpayer's current account. Before the expiration of a three-month period of verification of this declaration 09.02.2004, the organization filed a refined declaration on value added tax for October 2003, in which the amount of tax deductions increased. By decision of 07.05.2004, the tax authority refused to compensate for the tax. This decision the taxpayer appealed against the Arbitration Court. The arbitration court decision of July 06, 2004 recognized the decision of the tax authority invalid, obliged the inspection to make a decision on the return of the tax and ensure its execution by referral to the federal treasury bodies. The tax authority until 01.12.2004 the court decision did not fulfill. For this reason, and in connection with the appearance of the obligation to pay taxes, the organization 01.12.2004 sent a statement to the tax authority on the standings to be reimbursed by the amount, which is executed on 03.12.2004 by inspection.

At the same time, the taxpayer rightly believed that the change in the method of executing a court decision (due to its long non-fulfillment of the tax authority), which was confirmed by his right to return to the reimbursement of the value added tax amount, and not a credit, cannot prevent accrual and pay He is percent of the percentage of paragraph of the twelfth paragraph 4 of Article 176 of the Tax Code, if there are grounds for their receipt. Therefore, he appealed to the court demanding to oblige the tax authority to accrue and ensure the payment of the interest established by paragraph 4 of Article 176 of the Russian Federation percent, calculated from the moment the right to return, if the tax authority was initially made a legal decision, and before the date of submission of the statement.

The Supreme Arbitration Court of the Russian Federation confirmed the presence of the taxpayer in the one of the right to receive interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. In the decision of 27.02.2007 No. 11484/06, the court indicated that the legislation of the Russian Federation in the field of taxes and fees aimed at establishing the balance of private and public interests in the field of taxation and links the payment of interest for the delay in obtaining tax benefits with illegal delays from the tax authorities due to deductions. The interests provided by the Tax Code are compensation for material and intangible losses of the taxpayer from the late receipt of tax benefits due to late execution by the federal authorities tax Service Functions for reimbursement of tax deductions. The refusal of tax authorities to pay interest in compensation for the delay in payments due violates a fair balance, which should be supported between the interests of individuals (taxpayers) and the interests of society.

According to another case (RESOLUTION of 27.02.2007 N 13584/06) The Supreme Arbitration Court of the Russian Federation, confirming the taxpayer's right to receive interest in such circumstances, proceeded from the fact that the appeal of the Organization to the Tax Authority with a statement about the taxation of the tax (if there was a previously submitted Together with the declaration of a statement about his return) was a forced measure due to illegal actions of the tax authority. The tax authority, despite the presence of all grounds for tax reimbursement by returning, confirmed by the court decision, the tax did not return, including in fulfillment of the court decision. Announced a year after the court session, the tax authority declared on the results of the inspection of another declaration of the tax authority, in which the payment of the taxpayer (which is necessary forced, due to the need for reference to the absence of arrears), the amount to be reimbursed. But this decision of the inspection was illegal, subsequently, it is invalidated by the court.

The Russian Federation came to the conclusion that if there are other grounds for returning the tax, one of the criteria is the will of the taxpayer. The subsequent application for a change in the method of tax compensation is valid for the future and does not apply to the previous period when the return period was already violated. As a sense of article 176 of the Tax Code of the Russian Federation, the fact of the delay in the return of tax is the basis for the accrual of interest, regardless of whether the tax against a violation of the term or obligation to return it is further discontinued.

Thus, from the above orders, it can be concluded that when a tax authority is untimely execution, the obligation to return the taxpayer to reimburse the amount of the tax in the presence of grounds for its return is the taxpayer has the right to receive the interest provided for by Article 176 of the Russian Federation and in the case when The strength of the changed circumstances, if there was a previously submitted decision on the return of the tax, he is forced to send a statement about the standings.

In this case, interest on paragraph 4 of Article 176 of the Tax Code of the Russian Federation shall be charged for the period from the moment the right to return, if the tax authority was initially a legitimate decision was made, and before the date of application for the standings. That is, only for the period during which the taxpayer had the right to return the tax.

After the Presidency of the Supreme Arbitration Court of the Russian Federation of the two above decisions, some specialists hurried to declare the change in the previously expressed position on the lack of legal grounds for accrualing interest in the untimely holding of the tax authority under paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended, in force before 01.01.2007 ). Is it really so difficult to say. But it should be remembered that the norm of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, operating from January 1, 2007, directly indicates percentage of interest "in violating the timing of the tax amount".

Founding of tax authorities to pay interest

In the practice of the Federal Arbitration Court of the North-Western District, it is difficult to recall the case when the tax authority recognized the taxpayer's claims about the accrual and payment of the interest provided for in Article 176 of the Russian Federation interest. And this is despite the fact that the tax authorities are authorized by the state to ensure compliance with the legislation on taxes and fees by all its participants to which the tax authorities also belong.

Duties denial to accrue and ensure interest payments justified by the following circumstances:

1. The tax authority is in a timely manner, in the established article 176 of the Tax Code of the Russian Federation, a three-month term made a decision to refuse to reimburse the value added tax.

Referring to the timely decision to refuse to reimburse tax by returning, the tax authorities ignore the fact that the taxpayer asks to pay interest, as a rule, after recognition by the court, the decision of the Inspectorate on the refusal to reimburse tax is invalid.

In one of the first decisions belonging to the formation of judicial practice of interest accrual under Article 176 of the Tax Code of the Russian Federation, the Federal Arbitration Court of the North-West District, rejecting this argument of the inspection, indicated the following.

In violation of the statutes established in paragraph 4, 176 of the Tax Code of the Russian Federation for the amount to be returned to the taxpayer are accrued interest on the basis of the refinancing rate of the Central Bank of the Russian Federation. Moreover, it follows from the named norm that the accrual of these interest does not depend on the reasons for the violation of the established tax refund terms. These interest are compensation for the taxpayer's loss for a late refund from the budget of funds due to it. By the court's invalidation of the tax inspectorate for the refusal (in whole or in part) in reimbursement of the taxpayer of tax from the budget and the imposition on the tax authority, the obligation to compensate the tax by returning from the budget indicate a tax authority's failure to make a legitimate and reasonable decision. The system interpretation of the Norms of the Tax Code of the Russian Federation, including the provisions of subparagraph 1 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation on the unconditional obligation of tax authorities to comply with the legislation on taxes and fees, allows us to conclude that in paragraph 4 of Article 176 of the Tax Code of the Russian Federation, it is only about legitimate and reasonable decision of the tax authority. If the issued tax inspectorate is recognized by the court invalid and the inspection is entrusted with the obligation to return tax from the budget, this means that the tax authority did not adopt a decision provided for in paragraph 4 of Article 176 of the Russian Federation, the decision to return the tax amount from the budget (RESOLUTION of 03/18/2002 N A52 / 3287 / 01/2).

The Supreme Arbitration Court of the Russian Federation in the decision of 19.04.2006 No. 14471/05 confirmed the right of taxpayers to appeal to the Arbitration Court with the requirement to pay interest, regardless of whether or not the decision of the tax authority to refuse to compensate for tax by refund.

In the case considered by the highest arbitral tribunal, the organization appealed to the court to recognize illegal the inaction of the tax inspectorate, expressed in the non-payment of value added tax on the declaration at a rate of 0 percent, that is, in failure to make a decision on refund (return) of the tax and the non-direction of it to the federal authority Treasury, as well as the obligation of inspection to compensate the tax by returning from federal budget and pay interest for violation of the tax return period. The court of first instance satisfied the requirements of the organization. The cassation instance has changed the court's decision, rejecting the applicant's claims on the recognition of the illegal inaction of the tax authority and on the payment of interest under article 176 of the Tax Code of the Russian Federation. The decision taken by the court of cassation is substantiated by the fact that the fact of the inaction of the tax authority is absent, since they are accepted within the three-month period of the decision to refuse to refund. This decision of the inspection by the taxpayer is not challenged, therefore, interest on the amount to be reimbursed should not be accrued.

The conclusion of the court of cassation instance of the Russian Federation recognized the erroneous.

The Russian Federation indicated that, in the sense of the provisions of the paragraph of the twelfth paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the foundation of interest accrual for the amount to be returned is a violation of its return period. The interest accrual at the same time is not to depend on the fulfillment of the obligation to take the appropriate decision (on reimbursement of tax amounts or on refusal to compensation). When confirmed by the court of having a taxpayer, the right to reimburse the value-added tax is the lack of challenging of the specified decision of the tax authority is not a basis for refusing to satisfy the taxpayer's claim for the recovery of interest in the amount to be returned.

1. The tax code does not define the procedure for paying interest. The code has no rules imposed on the tax authority the obligation to pay interest.

This argument on the prevalence of its use by tax authorities occupies, perhaps, second place.

The courts reject him, referring to the fact that the lack of interest in article 176 of the Russian Federation of accrual interest for violating the time-added tax reimbursement by return cannot be deprived of the taxpayer of the right to receive them. In addition, in the sense of the norms of Article 176 of the Tax Code of the Russian Federation, interest for the non-timely returned tax is paid in the same manner as subject to reimbursement by refunding the amount of value added tax. The tax authority is obliged to make a decision (conclusion) on interest and send it to the federal treasury bodies for execution by paying taxpayer due at the expense of the budget. The courts also draw the attention of the tax authorities to the document, mandatory for them to execute, is the procedure for the payment of interest for the late tax reimbursement provided for in Article 176 of the Tax Code of the Russian Federation. This procedure is established by the joint order of the Ministry of the Russian Federation on taxes and fees and the Ministry of Finance of the Russian Federation of September 12, 2001 N BG-3-10 / 345; 74N "On the procedure for accounting for interest accrued for a late return of overlaid (recovered) amount of tax (collection), as well as interest accrued for late reimbursement of value added tax" (Resolution of the Federal Arbitration Court of the North-Western District of 19.02.2007 N A52-2993 / 2006/2).

The original argument was put forward by the tax authority in the cassation appeal on judicial acts in case No. A56-32236 / 2006, submitted to the Federal Arbitration Court of the North-West District. The tax authority referred "on the absence of his duties to pay interest, as it acts in relations with the taxpayer not as entityTo which another legal entity presents property requirements, and as a public monitoring authority that has no own funds "(Resolution of the Federal Arbitration Court of the North-Western District of 12.02.2007).

Unfortunately, the tax authorities often leave without attention that when confirmed by the taxpayer's right to receive the provisions provided for in Article 176 of the Russian Federation, the court makes a decision not to recover from the tax authority the relevant amount of interest, but imposes a duty to accrue the interest provided for in Article 176 of the Russian Federation interest and ensure Their payment from the budget or accrue interest and send a conclusion about their payment to the territorial body of the Federal Treasury.

1. The taxpayer did not apply to the tax authority with a statement of interest.

Neither old nor new edition Articles 176 of the Tax Code of the Russian Federation do not provide for the direction of the taxpayer for the payment of interest in violation of the reimbursement of the amount to be reimbursed. Therefore, the courts are rejected as not based on the norms of the tax code of the Russian Federation of tax authorities, nominated in justification of inaction, about the absence of a taxpayer's application for interest in the consideration of cases of appealing the inaction of the tax authority, expressed in non-percentage of interest and unspelling their amount in the treasury in the treasury On the payment of a non-timely returned amount of value added tax.

1. The taxpayer is not entitled to claim interest, because it has changed the methods of compensation: first asked to conduct a test, then he applied for a return, and vice versa.

The position of the Supreme Arbitration Court of the Russian Federation on this issue is set out on page 87 - 89.

1. The taxpayer incorrectly determined the start date and date of the end of interest.

From what moment by article 176 of the Tax Code of the Russian Federation are accrued?

If the taxpayer is filed together with the declaration a statement of tax reimbursement by returning it, and the tax inspectorate was unlawful refused to reimburse tax (which was confirmed by the decision by the court, which the decision to refuse the tax refusal is invalidated), then the interest is subject to accrual from the day when Total timelines established by Article 176 of the Tax Code of the Russian Federation.

Such a conclusion of the courts is justified by the fact that the tax authority is not taken within the prescribed period, which should be adopted by the inspection of the Norms of the Tax Code of the Russian Federation.

That is, the interest accrual in the case under consideration is depending on the legality of the decision taken by the inspection, which imposes on the courts to the courts to very carefully approach the legality of the decision of the tax authority to refuse to reimburse the value added tax, because the decision of the courts affects the taxpayer of interest and the period Accrued.

Judicial practice is known for various cases of appealing to the decisions of tax authorities on refusal to reimburse tax:

1. the decision to refuse to compensate for the tax is made in the presence of documents confirming the right to deductions that the tax authority illegally recognized as insufficient and (or) improperly decorated;
2. the decision to refuse to compensate for the tax is made in connection with the failure of the taxpayer together with the declaration of documents confirming the right to tax deductions, and the tax authority did not exterminate them;
3. the decision to refuse to compensate for the tax is made in connection with the notion of the taxpayer of documents confirming the right to tax deductions when the requirement of their direction is not received by the taxpayer (see, for example, the Decree of the RF 0.02.2006 No. 1744/06 - the taxpayer's requirement was received By fax the day after the inspection of the decision on the refusal of tax refund; Decree of the RF 0.02.2007 No. 14137/06 - the tax inspectorate pointed out in the requirement not that month for which she was necessary for documents, the taxpayer was executed, and another requirement He was not directed);
4. the decision to refuse to compensate for the tax is made in connection with the notion of the taxpayer of documents confirming the right to tax deductions when the requirement of their direction is received by the taxpayer, but not fulfilled (this option does not concern when the taxpayer refuses to submit documents to the Tax authority, referring to their The absence of him, for example, in connection with the loss, is the ruling of you of the Russian Federation dated January 30, 2006 N 10963/06).

Obviously, in situations listed in paragraphs 1, 2, 3, the courts have all the grounds for recognizing the inspection decision by invalid, since such a decision is illegal at the time of its submission. Accordingly, the taxpayer may apply for interest calculated in such a way as if the tax authority is not taken any decision.

But how legitimately recognized invalidation of the decision of the Inspectorate on the refusal to compensate for the value added tax in cases where the taxpayer submitted in the tax authority inadvertently executed documents confirming the right to tax deductions, and the tax authority did not have legal grounds for confirming the right to tax deductions, and In court, the taxpayer sent properly executed documents?

The Supreme Arbitration Court of the Russian Federation has repeatedly addressed the attention of the courts on the need to verify the legality of the decision of the inspection at the date of its submission (decree of 16.05.2006 N 14874/05, from 18.04.2006 N 16470/05; from 09/21/2005 No. 4152/05; from 06.07 .2004 N 1200/04).

Thus, in the ruling of 09/21/2004 No. 4152/05, the Russian Federation indicates that if the taxpayer claimed the requirement for the recognition of the tax inspectorate invalidation, the assessment of the legality of this decision should be carried out by the court on the basis of those obligatory for the submission due to the law of documents that at the time His submission was presented to the tax inspection in order to confirm the right to a tax rate of 0 percent and tax deductions for export operations. In particular, they cannot indicate the illegality of the decision of the tax inspection of the invoice attached by the taxpayer to the feedback to the application for the revision of judicial acts in the procedure of supervision aimed at the Supreme Arbitration Court of the Russian Federation.

And according to the Decree of the Way of the Russian Federation of 18.04.2006 No. 16470/05, the submission of a full package of documents defined by Article 165 of the Tax Code of the Russian Federation, to confirm the right to apply 0 percent tax rates directly to the court, it is not a reason for making a decision on recognizing illegal inspection refurbishment The tax, since the verification of the legality of the decision on the right of the taxpayer to apply 0 percent tax rates is carried out taking into account only those documents with which it has.

Despite the fact that the above examples concern the documents confirming the taxpayer's right to apply 0 percent tax rates, it is possible to argue that the conclusion of the court on the need to assess the legality of the decision of the Inspectorate on the refusal to compensate for the value added tax at the time of its submission applies only to one component - Documents listed in Article 165 of the Tax Code of the Russian Federation?

Decisions of the Way of the Russian Federation of 16.05.2006 N 14874/05 and N 14873/05 contain a negative answer to this question. When considering cases on the application of the taxpayer on invalidation of the decision of the tax inspection on the refusal to reimburse the tax and the obligatory inspection, the following tax indicated in the declaration was established. The taxpayer at the request of the inspection did not submit documents confirming the acquisition and acquisition of commodity values, as well as their payment, including the amount of value added tax, declared for reimbursement on the declaration of the tax rate of 0 percent. The taxpayer believed that it was not obliged to submit these documents when conducting a desk check, since the tax authority did not identify errors or contradictions in the presented declaration, and source documents, customized by inspection, may be the subject of only outbound, and not cameral verification. Required by the tax authority documents taxpayer brought to court. The courts satisfied the applicant's claims, but the Russian Federation canceled the decision taken in the case. The Supreme Arbitration Court did not agree with the lack of a taxpayer responsibilities when conducting a cameral verification to submit the primary documents confirming the right to tax deductions to the tax authority. For the documents submitted by the applicant, it is stated that "documents submitted by society cannot indicate the illegality of the decision of the inspection."

In these decisions, the taxpayer also explained that the refusal to reimburse the amount of value-added tax on the tax rate of 0 percent in the specified tax period does not deprive his right to re-submit to the Inspectorate of appropriate documents in another tax period within the limits established by the status of term.

It seems that a similar approach should be when presenting the taxpayer in the tax authority inadvertently executed documents confirming the right to tax reimbursement (tax deductions).

Departure by the courts of the taxpayer's claims for invalidation of the decision of the Inspectorate on the refusal to reimburse the tax on the motive of its legality at the date of the submission will actually prevent unreasonable payment from the budget of interest provided for by Article 176 of the Tax Code of the Russian Federation.

But this concerns only cases when the tax authority fully complied with the rules for conducting a challenge audit and making a decision on the refusal of tax reimbursement, namely: the taxpayer is informed about the issues that have arisen regarding the correctness of the calculation and payment of tax, on the detected errors when completing the documents, he has Additional information, explanations and documents confirming the correctness of the calculation and timeliness of taxes, and the taxpayer submitted an explanation, made corrections to the documents decorated with errors and together with additional documents I submitted them to the inspection when the taxpayer is notified in advance of the date and place of consideration of the materials of the challenge tax audit by the head of the tax authority.

Moreover, the taxpayer's right to reimburse tax will remain unprotected, since the taxpayer has the right to submit to the tax authority the refined declaration on value added tax for the same tax period on the amount of tax deductions in the reimbursement of the tax period. Due to the unprotence of the right to receive it. The updated declaration should be applied if necessary, an application for the return of the tax rate to be reimbursed.

The taxpayer can also apply to the court with a request for compensation from the budget by testing or returning the relevant amount of value added tax regardless of the tax authority a decision to refuse to compensate for the tax. Such the taxpayer right is confirmed by the Supreme Arbitration Court of the Russian Federation in the decision of 13.02.2007 N 12943/06. The Russian Federation has not recognized the position of the court based on the norms of the law of the law on the impossibility of meeting the requirements of the taxpayer on the obligation to refund the amount of value added tax, if the applicant was not challenged on the refusal to reimburse the relevant amount of the tax.

In this case, the taxpayer in accordance with the rules of the parts of the third and fourth Article 65, part of the first Article 66, subparagraph 5 of the second part of the second and part of the third article 125 of the Arbitration Procedure Code of the Russian Federation must submit to the court documents confirming the right to reimburse the value added tax, as well as Send copies of these documents to the tax authority as a person participating in the case as a defendant.

The described approach to solving the problem of assessing the legality of the decision of the tax authority is consistent with the position of the Constitutional Court of the Russian Federation, reflected in the definition of 12.07.2006 N 267-O. The Constitutional Court indicated that the powers of the tax authority provided for by Articles 88 and 101 of the Tax Code of the Russian Federation are publicly legal in nature, which does not allow the tax authority to arbitrarily abandon the need for recovery additional information, explanations and documents confirming the correctness of the calculation and timeliness of paying taxes. When implementing the fundamental offenses of tax offenses assigned to it, the tax authority in all cases of doubts in the correctness of the tax is required to take advantage of the legal information provided to him by the taxpayer. Accordingly, the taxpayer has the right to assume that if the tax authority does not refer to it for explanations or documents confirming the declared taxes, then the tax authority has no doubt about the correctness of tax payments. Other would mean a violation of the principle of legal definiteness and led to the arbitrariness of tax authorities.

According to part of the fourth article 200 of the Arbitration Procedure Code of the Russian Federation, the Arbitration Court upon consideration at the court hearing of cases of challenging the incomplete legal acts, decisions and actions (inaction) of tax authorities, their officials checks the contested act or its individual provisions contested decisions and action ( Inaction) and establishes their compliance or other regulatory legal act, establishes the existence of authority from the body or persons who have accepted the contested act, the decision or accomplished the contested actions (inaction), and also establishes whether the disputed act, solution and action (inaction) violate The rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activity.

Based on the above standard, the Constitutional Court considers that verification for compliance with the law or other regulatory legal act of the tax authority, adopted based on the results of a challenge tax audit, in terms of its validity consists of court obligation to check the compliance of the tax authority's conclusions not only with the materials that the tax authority Put at the time of the check. The judicial protection of the rights and legitimate interests of taxpayers cannot be achieved if the courts in deciding on the legality of refusal to provide declared tax deductions emanate from one lack of documents from the tax authority confirming the correctness of their application. Therefore, the taxpayer has the right to imagine, and the arbitration courts are obliged to investigate, establish, to evaluate all the documents for the right permission of the case, confirming the actual circumstances, which in accordance with tax legislation should be taken into account when solving issues on the possibility of providing tax deductions, regardless of whether These documents are exterminated and investigated by the tax authority in solving the issue of granting the tax deduction.

In view of the above, it appears that if the tax authority decided to refuse the taxpayer in reimbursement of value added tax due to the lack of the taxpayer at the time of the decision of the documents (properly executed documents), giving the right to deduct, on the declaration for a specific tax period, despite The possibility of their submission (correction) provided to the taxpayer, the taxpayer does not have legal grounds to appeal such a decision, and the court - to recognize it invalid.

It would be more correct to refer to the tax authority of the updated declaration for the same tax period.

Otherwise, with the illegal inaction of the taxpayer and the legitimate decision of the tax authority, at the date of his submission, the taxpayer will later receive the right to pay percentage provided for in Article 176 of the Russian Federation.

We must not forget about the right of the taxpayer to apply to the court with the requirement of reimbursement of the relevant amount of value-added tax from the budget by returning to the current account without appealing the decision of the tax authority.

In this case, the taxpayer's right to pay interest in case of failure to fulfill the tax authority in the established periods of the decision of the court will arise from the moment of its entry into force (decree of the RF 06/06/2006 No. 1363/06).

If the taxpayer appeals to the situation described above in a statement containing two requirements - on recognizing invalidation of the decision on the refusal to reimburse tax from the budget by returning and on the obligation of inspection to compensate the tax by returning to the current account, the court refusing to satisfy the first requirement Maybe, when submitting the taxpayer documents confirming the right to tax deductions, satisfy the second.

A similar approach is contained in the decrees of the Presidium of the Supreme Arbitration Court of the Russian Federation of 08.05.2007 N 16367/06, from February 13, 2007 No. 12943/06, from 05.12.2006 N 8689/06.

The proposed solution to the problem under study will ensure the balance of public and private interests, which the courts are constantly drawn in decisions of the highest judicial authorities of the Russian Federation.

The question of recognizing invalidation of the decision on the refusal to reimburse the value-added tax in the situation set out in paragraph 4, when the tax authority decides to refuse to reimburse tax in connection with the notion of the taxpayer of documents confirming the right to tax deductions upon receipt, but Failure to be the appropriate inspection requirement is also unlikely to be attributed to simple.

In fact, the tax authority refuses the taxpayer in the right to reimburse tax not because it has undisputed evidence of the lack of legal grounds from the taxpayer to apply tax deductions and (or) documents confirming them.

The reason for refusal is the only failure to provide the taxpayer of documents confirming the right to the amount of tax deductions specified in the Declaration.

But the consequences of non-fulfillment of the requirements of the Inspectorate on the submission of documents are determined by the Tax Code of the Russian Federation. In accordance with Article 93 of the Tax Code of the Russian Federation, the taxpayer refusal from the submission of the requested documents or their failure to submit on time to the tax offense is recognized as a tax offense and entail the responsibility under Article 126 of the Tax Code of the Russian Federation. Here it is also provided that the official of the tax authority, conducting a tax audit (no restrictions for cameral checks), produces a recess necessary documents in the manner provided for in Article 94 of the Tax Code of the Russian Federation. That is, the tax authority must take measures to receive documents confirming the tax deductions announced in the Declaration.

Only with the proof of the fact of the absence of the taxpayer the necessary documents, the decision of the tax authority on the refusal to reimburse tax will be legal and reasonable.

Other consequences of non-submission by the taxpayer of documents confirming tax deductions, nor Article 93, nor the norms of chapter 21 of the Tax Code do not provide.

It should be noted that the editors of Article 93 of the Tax Code of the Russian Federation, operating from January 1, 2007, allows for the claims of documents solely only by presenting the requirements for the submission of documents to the audience. Directions by mail such a requirement is not provided.

1. The taxpayer incorrectly calculated the amount of interest.

Rejecting the requirements of the taxpayer on interest payments on this basis, the tax authority may keep in mind:

• incorrect definition of the taxpayer the date of the beginning of the delay in the return of the tax;
• incorrect definition of the return date;
• improper application of refinancing rates of the Central Bank of the Russian Federation, operating during the period of delay;
• incorrect size definition - 1/360 or 1/365 refinancing rates.

1. The tax authority actually did not fulfill the obligation to return the taxpayer of the tax in accordance with Article 176 of the Tax Code of the Russian Federation.

There are many cases of judicial practice when the tax authority considers illegal impositions on it to pay interest under Article 176 of the Russian Federation if the tax amount is actually not returned to the taxpayer, not credited to its current account (regardless of whether the decision to return the tax is not fulfilled - The tax authority or judicial authorities).

Courts, entitled to the tax authority, the obligation to pay interest, indicate that interest accrual is not raised by the Tax Code of the Russian Federation dependent on the tax authority of the tax authority of the tax return of the tax on its current account (Decisions of the Federal Arbitration Court of the North-West District of 21.02 .2007 N A56-1510 / 2006; Federal Arbitration Court of the Moscow District of 12.01.2007 N Ka-A40 / 13049-06).

1. The tax authority issued a decision on tax reimbursement in a timely manner.

As it turned out, the tax authorities in some cases show misunderstanding on the amount of their duties associated with the return in the order of reimbursement of the amount of value-added tax from the budget.

Thus, when considering the Federal Arbitration Court of the North-Western District, 03/13/2007 the cassation complaint of the tax inspectorate in the case No. A52-3680 / 2006/2, it was found that the Tax authority decided to reimburse the taxpayer from the budget of the value added tax on the Declaration for April 2006 and sent this decision within the prescribed period to the head of the taxpayer organization. This tax authority considered his duties fulfilled.

Meanwhile, according to paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended by January 1, 2007), the tax authority is obliged not only to decide on tax reimbursement, but also if there is a taxpayer's application for the return of the tax, decide on the return of the tax. In the considered case, a declaration on value added tax on a tax rate of 0 percent entered the tax authority 05/22/2006. The decision to compensate for the taxpayer from the tax budget for the Declaration for April 2006. Adopted 21.08.2006. The decision on the return from the budget of the tax on the settlement account of the organization was made by the tax authority only 05.10.2006, and on the same day decorated and sent to the Office of the Federal Treasury of the Ministry of Finance of the Russian Federation under the Pskov region Conclusion on the execution of a decision on the return, as a result of which the tax was returned only 05.10.2006.

In paragraph, the tenth of paragraph 4 of Article 176 of the Tax Code of the Russian Federation states that the decision to return the amount of tax from the budget no later than the last day of the three-month period. In the same time (three-month) should be sent to the appropriate body of the Federal Treasury, the conclusion of the taxpayer's tax return. Three-month term expired on 08/22/2006. The decision on the return was taken 05.10.2006, that is, with a violation of the deadline. Since interest is subject to accrual in violation when returning the tax of the deadlines, determined by paragraph 4 of Article 176 of the Tax Code of the Russian Federation for the tax authorities and the federal treasury bodies, the courts satisfied the requirements of the taxpayer on imposing the obligation to ensure the payment provided for by Article 176 of the Russian Federation interest.

1. The tax authority sent a conclusion in the Treasury.

Violation of the timing of the taxpayer's taxpayer for its current account occurs in some cases due to the late execution of the Treasury from the Inspectorate of the Inspectorate of the Tax Return.

Guided by the norms of the Tax Code, taxpayers are reasonable to turn to the tax authority with the requirement to pay interest on Article 176 of the Russian Federation.

The tax authorities wrongfully shy away from making a decision on interest, referring to the timely commitment by article 176 of the Russian Federation responsibilities for the return of tax and the fault of the Treasury bodies.

Such a substantiation does not comply with the standards of chapter 21 of the Tax Code of the Russian Federation. Interest on Article 176 of the Tax Code of the Russian Federation is paid to the taxpayer for the violation of the totality of the deadlines established in it, regardless of which authority and at what stage the timeline is violated. At the same time, without the conclusion of the Inspectorate on the payment of interest calculated by it according to the rules of Article 176 of the Tax Code of the Russian Federation, the Treasury authority cannot pay them.

1. The lack of information about the bank account on which the tax amount to be returned is to return.

The assessment by the courts of this argument of tax authorities is set out on page 83 - 84 journals "Arbitration disputes", N 4 (40) / 2007.

In conclusion, I would like to recall the decision of the Higher Arbitration Court of the Russian Federation of two fairly relevant issues arising in judicial practice.

The first is associated with the problem tax accounting, voluntary transitions and forced transfers of taxpayers from one tax inspection to another. In this case, the decision to refuse to compensate for the tax is often taken by one tax authority, and executes the court decision that such a decision is invalid and the tax authority is entrusted to return the income tax, another tax authority.

From the decisions of the Supreme Arbitration Court of 06.09.2005 No. 4083/05 and from 30.05.2006 No. 1334/06, it follows that the procedure for reimbursement of the tax in the transition of the taxpayer and registration in the new inspection of Article 176 of the Tax Code of the Russian Federation is not regulated. But in the case when the tax inspectorate in which the taxpayer was earlier consistent with tax accounting, a refusal to compensate for value added tax was recognized as an arbitration court invalid, a new tax authority, where the taxpayer has passed on, is obliged to restore the taxpayer's rights disturbed by the illegal decision Inspection. The obligation not fulfilled the obligation to compensate the tax in this case does not stop and does not change. At the same time, the taxpayer is not obliged to submit documents previously represented in the former inspection and the court evaluated. It is not necessary to repeatedly refer to a new inspection of the application for the return of the tax, if it was previously submitted to the inspection, where the taxpayer consisted of tax accounting, it cannot be considered as non-generating legal consequences in connection with registration in another tax authority.

Thus, if the new tax authority does not return the tax, in the compensation and return of which it was previously illegally refused to the taxpayer, which was confirmed by the court decision, such a taxpayer has the right to apply to the court with the requirement to recognize the inactivity of the tax inspectorate, expressed in the non-return of tax from the budget, and oblige Tax authority Return the amount of tax with interest for violation of the tax return period accrued on the basis of Article 176 of the Tax Code of the Russian Federation.

The second solution applies to cases where the courts within the framework of one case consider two requirements declared to different tax authorities attracted to participate in the case as the defendants. The taxpayer attracts to participate in the case and the tax authority, which was issued in court a decision on the refusal of tax refund, and the tax authority, where the taxpayer has moved to tax accounting, which will fulfill the court decision on tax reimbursement by returning to the taxpayer's current account and payment Interest when solving a dispute in favor of the taxpayer.

How is the period established by paragraph 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation, whether it is applied to the requirements for the return of tax from the budget and the payment of interest on Article 176 of the Tax Code of the Russian Federation?

And this is the second question, for the resolution of which the highest arbitration court of the Russian Federation can not be paid attention.

The norm of the fourth part of Article 198 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF) provides that the application for invalidation of abnormative legal acts, illegal decisions and actions (inaction) government agencies, organs local governments, other bodies, officials can be filed to the Arbitration Court for three months from the day, when a citizen, the Organization has become aware of the violation of their rights and legitimate interests, unless otherwise established by federal law.

The Supreme Arbitration Court of the Russian Federation in the regulations from 01/31/2006 N 9316/05 and from 05.12.2006 N 8689/06 concluded that the requirements for the return of tax, penalties, interest paid for by the Tax Code of the Russian Federation, the provisions of paragraph 4 Articles 198 APC RF does not apply.

So, the Russian Federation acknowledged you that the claims for the recovery of interest for the late refund of tax payments caused by the incorrect actions of the tax authority, although it follows from public relations, but they carry property and do not fall under the category of cases considered according to the rules of chapter 24 of the Arbitration Procedure Code of the Russian Federation, including using Article 198 of the APC RF. Taking into account the fact that section III The named Code did not establish the features of consideration of the requirements for the recovery of interest and based on the provisions of Article 189 of the APC RF, these requirements should be considered by the rules of claim.

Consequently, the rule on a three-month deadline for submitting an application established by part 4 of Article 198 of the Code does not apply to submission of applications containing the requirement for the return of taxes, penalties, interest paid by the Tax Code of the Russian Federation.

* * *

Getting Started to this work, it was difficult to even imagine how many questions and problems can be mastered in just one and, it is necessary to be honest, quite understandable at the first view of the above article of the Tax Code of the Russian Federation.

Probably, the dream of every judge considering tax disputes will always be the stable Tax Code of the Russian Federation with clearly and understandable and unequivocally interpreted norms.

(introduced by federal law of 17.12.2009 N 318-FZ) 1. The applicant tax reimbursement procedure is an exercise in the manner prescribed by this article, the credence (return) of the tax amount declared for reimbursement in the tax return to completion in accordance with the article 88 of this Code based on this tax declaration of the challenge tax audit. 2. The right to apply the applaining order of tax reimbursement: 1) taxpayers-organizations that have a total value added tax, excise taxes, tax on the profit of organizations and the mineral mining tax paid for three calendar years preceding the year in which An application for the application of a declaration of tax compensation is submitted, excluding the amounts of taxes paid in connection with the movement of goods through the customs border of the Russian Federation and as a tax agent is at least 10 billion rubles. These taxpayers are entitled to apply the applicant tax reimbursement procedure if at least three years have passed since the creation of an appropriate organization before the date of submission of the tax declaration; 2) taxpayers who provided with the tax declaration in which the right to reimburse tax, the current banking guarantee, providing for the Bank's obligation on the basis of the tax authority's claim to pay the taxpayer for the taxpayer, excessively obtained by them (credited) as a result of tax reimbursement in Applying, if the decision to reimburse the amount of the tax declared to reimbursement, will be canceled in a respectable or partially in the cases provided for in this article. 3. Not later than the day, following the day of issuing a bank guarantee, the Bank shall notify the tax authority at the place of accounting of the taxpayer on the fact of issuing a bank guarantee in the manner determined by the federal authority of the executive authority authorized to control and oversight in the field of taxes and fees. 4. Bank guarantee must be provided by the Bank included in the list of banks that meet the established requirements for bank guarantees for tax guarantees (hereinafter referred to as a list). The list is conducted by the Ministry of Finance of the Russian Federation on the basis of information received from the Central Bank of the Russian Federation, and is subject to placement on the official website of the Ministry of Finance of the Russian Federation in the Internet ". To include a bank must meet the following requirements: 1) the availability of a license for banking operations issued by the Central Bank of the Russian Federation and banking activities for at least five years; 2) the presence of a registered authorized capital bank in the amount of at least 500 million rubles; 3) the presence of own funds (capital) of the Bank in the amount of at least 1 billion rubles; 4) compliance with mandatory standards provided for by the Federal Law of July 10, 2002 N 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)" (hereinafter referred to as the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)"), for all reporting dates for the last six months; 5) the absence of the requirement of the Central Bank of the Russian Federation on the implementation of measures to financial rehabilitation of the Bank on the basis of the Federal Law of February 25, 1999 N 40-FZ "On Insolvency (Bankruptcy) of Credit Organizations". 5. In case of identifying circumstances indicating the compliance of the Bank not included in the list established by the requirements of either the discrepancy between the Bank included in the list established by the requirements, these information is sent to the Central Bank of the Russian Federation to the Ministry of Finance of the Russian Federation within five days from the date of identification specified circumstances to make appropriate changes in the list. 6. The bank guarantee must meet the following requirements: 1) the bank guarantee must be irrevocable and indescribable; 2) the bank guarantee cannot contain an indication of the submission to the tax authority to the Bank of documents that are not provided for by this article; 3) the duration of the bank guarantee should expire no earlier than eight months from the date of submission of the tax declaration, in which the amount of tax on reimbursement is announced; 4) the amount for which a bank guarantee is issued must ensure the fulfillment of obligations to return to the budget in full amount of the tax claimed to reimbursement; 5) The bank guarantee should allow the undisputed cancellation of funds from the guarantor's account if it is not fulfilling it in the prescribed period for the payment of the payment of the monetary amount on a bank guarantee, aimed until the expiration date of the bank guarantee. 7. Taxpayers who have the right to apply the applaining order of tax compensation are implementing this right through submission to the tax authority no later than five days from the date of submission of the tax declaration of the application for the application of the applicant order of tax reimbursement in which the taxpayer points out the bank account details for the transfer of funds. In this statement, the taxpayer assumes the obligation to return to the budget of the amount obtained by him (encountered) in the applicant procedure (including interest provided for in paragraph 10 of this article (in case of payment), as well as pay interest accrued on these amounts in the manner prescribed Clause 17 of this article, if the decision to reimburse the amount of tax claimed to reimbursement, will be abolished in a respectable or partially in the cases provided for in this article. 8. Within five days from the date of applying for the application of a declaration of tax reimbursement, the tax authority checks compliance with the taxpayer of the requirements provided for in paragraphs 2, 4, 6 and 7 of this article, as well as the existence of the taxpayer arrears for tax, other taxes, debt on the appropriate Pozy and (or) fines payable or recovery in cases provided for by this Code, and decides on reimbursement of the tax amount declared, in a declarative procedure or decision to refuse to reimburse the tax amount declared for reimbursement in a declarative manner. Simultaneously with the decision on the reimbursement of the tax amount declared for refunds, in a declarative procedure, depending on the taxpayer's arrears, at the specified payments, the tax authority decides on the expansion of the tax amount declared for reimbursement, in a declarative order and (or) a decision on returning (fully or In part) the amount of tax declared for refunds in a declarative manner. On the decisions made decisions, the tax authority is obliged to inform the taxpayer in writing within five days from the date of adoption of the relevant decision. At the same time, in a decision on deciding on the refusal to reimburse the amount of tax declared for reimbursement, the norms of this article violated by the taxpayer are indicated. The specified message may be transferred to the head of the organization, an individual entrepreneur, their representatives personally on receipt or otherwise confirming the fact and date of its receipt. The decision to refuse to reimburse the amount of tax declared to reimbursement, does not change the procedure and timing of the desk tax audit of the submitted tax declaration. In the event of a decision on refusal to reimburse the amount of tax declared for reimbursement, the tax reimbursement is carried out in the manner and the deadlines provided for in Article 176 of this Code. 9. If the taxpayer has arrears for tax, other taxes, debt on relevant penalties and (or) fines payable or recovery in cases provided for by this Code, the tax authority on the basis of a decision on the expansion of the tax amount declared for reimbursement in the applicant The order is made independently offset the amount of the tax declared for refunds, in a declarative procedure on the repayment of the specified arrears and debt on the foam and (or) fines. At the same time, the accrual of the penalties to the specified arreed is carried out until the date of the tax authority, the decision on the credentials of the tax claimed to refund, in a declarative manner. In the absence of taxpayer arrears for tax, other taxes, debt on the relevant pencils and (or) fines payable or recovery in cases provided for by this Code, as well as when the amount of tax declared for refunds, in a declarative procedure above the sums of mentioned arreaxes For tax, other taxes, debt on appropriate penalties and (or) fines, the amount of tax subject to refund, is returned to the taxpayer on the basis of the decision of the tax authority on the return (fully or partially) of the tax amount declared for refunds, in a declarative manner. 10. The order for the return of the tax amount is issued on the tax authority on the basis of a decision on the return (in whole or in part) of the tax claimed on the reimbursement, in a declarative procedure and is subject to the territorial body of the Federal Treasury on the next business day after the date of the tax authority of this decision. Within five days from the date of receipt of the procedure specified in paragraph, the territorial body of the Federal Treasury regulates the taxpayer of the tax amount in accordance with the budget legislation of the Russian Federation and no later than the day following the return day, notifies the tax authority on the return date and the amount of the taxpayer returned Money. When violating the duration of the return amount of the tax on this amount, interest is charged for each day of delay starting from the 12th day after the day of submission by the taxpayer of the application provided for in paragraph 7 of this article. The interest rate is made equal to the refinancing rate of the Central Bank of the Russian Federation, which is valid during the period of violation of the return period. In the event that the interest provided by this clause paid by the taxpayer is not fully paid, the tax authority within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the return date and the amount of funds returned by the taxpayer decides on the payment of the remaining interest rate and no later than the day, following the day after the day of the adoption of this decision, sends to the territorial body of the Federal Treasury decorated on the basis of this decision to pay the remaining amount of interest. 11. The validity of the tax amount declared to reimbursement is verified by the tax authority in conducting in the manner and deadlines that are established by Article 88 of this Code, a challenge tax audit on the basis of the tax declaration submitted by the taxpayer, in which the amount of tax on reimbursement is announced. 12. In the event that, when conducting a challenge tax audit, violations of tax authorities and fees were not identified, the tax authority for seven days after the end of the cameral tax audit is obliged to inform the taxpayer in writing about the end of the tax audit and the lack of identified violations of tax laws and fees. 13. In the case of identifying violations of tax legislation and fees during a challenge tax audit, the tax audit must be compiled by the authorized officials of the tax authorities in accordance with Article 100 of this Code. The act and other materials of the challenge tax audit, during which violations of tax laws and fees were revealed, and the objections submitted by the taxpayer (his representative) should be considered by the head (deputy head) of the tax authority, which carried out the tax audit, and the decision on them should be Adopted in accordance with Article 101 of this Code. 14. According to the results of consideration of the materials of the challenge tax audit, the head (deputy head) of the tax authority makes a decision on attracting a taxpayer to liability for committing a tax offense or to refuse to attract the taxpayer to liability for tax offense. 15. In the event that the tax amount reimbursed by the taxpayer in the manner prescribed by this article exceeds the amount of tax subject to compensation for the results of a challenge tax audit, the tax authority simultaneously with the adoption of an appropriate decision provided for in paragraph 14 of this article, decides to cancel the decision on Reimbursement of the tax amount declared for refunds, and decisions on the return (in whole or in part) of the tax claimed to refund, in a declarative manner and (or) decisions on the exchange of the tax amount declared for reimbursement, in a declarative manner Parts of the tax amount not subject to compensation based on the results of a challenge tax audit. 16. The tax authority is obliged to inform the taxpayer on the decisions declared in paragraphs 14 and 15 of this article within five days from the date of the adoption of the relevant decision. The specified message may be transferred to the head of the organization, an individual entrepreneur, their representatives personally on receipt or otherwise confirming the fact and date of its receipt. 17. Simultaneously with the report on the decision specified in paragraph 15 of this article, the taxpayer aims to return to the budget of an excessive amount obtained by him (encountered) in a declarative procedure (including interest provided for in paragraph 10 of this article (if paid), In the amount, a proportional share of an excessive reimbursed amount of tax in the total tax reimbursed in the applicant) (hereinafter referred to as a refund requirement). The amount to be returned by the taxpayer are accrued on the basis of the interest rate equal to the two-time refinancing rate of the Central Bank of the Russian Federation, which operated in the period of use of budget funds. These interest are accrued from the day: 1) the actual receipt of the taxpayer of funds - in case of returning the amount of the tax in the applicant; 2) making decisions on the standings of the tax amount declared for reimbursement, in a declarative manner - in the event of the tax amount in the applicant. 18. The form of a refund claim is approved by the federal executive authority authorized to control and oversight in the field of taxes and fees. The specified requirement must contain information: 1) on the amount of tax subject to reimbursement on the results of a challenge tax audit; 2) about the amount of tax, excessively obtained by the taxpayer (credited taxpayer) in a declarative procedure to be reputed to the budget; 3) about the amount of interest provided for in paragraph 10 of this article to be returned to the budget; 4) about the amount of interest accrued in accordance with paragraph 17 of this article at the time of the direction of the refund claim; 5) on the date of execution of the refund claim established by paragraph 20 of this article; 6) On measures to recover the amounts to be paid, applied in the event of non-fulfillment by the taxpayer's refundable requirements. 19. The refund requirement can be transferred to the head of the organization, an individual entrepreneur, their representatives in a receipt or otherwise confirming the fact and date of its receipt. If the specified ways are not possible to return the refund requirement, it is sent by mail by registered mail and is considered to be obtained after six days from the date of direction of the registered letter. 20. The taxpayer is obliged to independently pay the amounts specified in the refund request, within five days from the date of its receipt. 21. In case of non-payment or incomplete payment within the established period of the taxpayer, which submitted a bank guarantee, the amount specified in subparagraph 2 of paragraph 18 of this article, the tax authority not earlier than the day following the expiration date established by paragraph 20 of this article sends to the Bank On the payment of the money amount on a bank guarantee, indicating the amounts payable for the guarantor within five days from the date of receipt by the Bank of this requirement. The bank is not entitled to refuse the tax authority in meeting the requirements of the payment of the monetary amount on the bank guarantee (except for the case when such a requirement is presented to the bank after the deadline for which a bank guarantee is issued). In the event of non-fulfillment by the Bank within the prescribed period, the requirement of the payment of the monetary amount on the bank guarantee the tax authority implements the right of undisputed debiting the amounts specified in this requirement. 22. Within ten days after the execution of the bank's responsibility for payment of a bank guarantee payment, the tax authority sends the taxpayer a refined refund requirement with the indication of the amounts to be paid to the budget. At the same time, in case of violation by the tax authority, the direction of refundability of interest accrual for the amounts payable to the taxpayer on the basis of a refund claim is suspended to the date of the actual receipt of this requirement by the taxpayer. 23. In case of non-payment or incomplete payment of the amounts listed on the request for a return, within the established period of taxpayer, who applied the applicant tax reimbursement procedure without providing a bank guarantee, or a taxpayer who received a refined refund requirement, as well as in case of impossibility of sending a request to the Bank Payment of the monetary amount on the bank guarantee due to the expiration of its validity of its data on the payment of data amounts is fulfilled by the procedure by appealing for funds on accounts or other property of the taxpayer to solve the tax authority for the recovery of these amounts adopted after the taxpayer's failure to fulfill The term of refund claim, in the manner and deadlines, which are established by Articles 46 and 47 of this Code. 24. After submitting the taxpayer of the statement provided for in paragraph 7 of this article, until the end of the challenge tax audit, the refined tax declaration is submitted in the manner provided for in Article 81 of this Code, taking into account the characteristics established by this clause. If the refined tax declaration is filed by the taxpayer before the decision provided for by paragraph is the first paragraph 8 of this article, then such a decision on a previously submitted tax declaration is not accepted. If the refined tax declaration was filed by the taxpayer after taking the tax authority a decision on reimbursement of the tax amount declared for reimbursement, in a declarative order, but before the completion of the challenge tax audit, the specified decision on the previously submitted tax declaration is canceled no later than the day following the day of the submission of the refined tax Declaration. Not later than the day following the day the decision of the decision on the cancellation of the decision on the reimbursement of the tax amount declared for refunds, in a declarative procedure, the tax authority shall notify the taxpayer on making this decision. The amounts received by the taxpayer (credited to the taxpayer) in a declarative order should be returned to them, taking into account the interests provided for in paragraph 17 of this article, in the manner prescribed by paragraphs 17-23 of this article.

2. These amounts during the three tax periods following the expired tax period, if the taxpayer has arrears in excise tax, other federal taxes, prompts on federal taxes, and (or) fines payable or recovery on the basis of the decision The tax authority in the cases provided for by this Code, or on the basis of the court decision that has entered into force is subject to a test account for the repayment of these arrears and debt on foaming, fines of the tax authority independently in the manner established by Article 78 of this Code.

After the tax authority is taking a decision on excise compensation by credit (return) of these amounts in the manner prescribed by paragraph 4 of Article 203 of the Code, they are reflected on the personal account of the taxpayer.

32. The indicator "Documented the fact of exporting tobacco products for which the Bank's guarantee or bank guarantee was previously represented" (string codes 120 - columns 5) are filled in submission to the tax authority of the documents provided for in paragraph 7 of Article 198 of the Code, no later than 180 days from the date of the implementation of these excisable goods for export.

Order of the Federal Tax Service of Russia of 07.11.2011 N MMB-7-6 / [Email Protected] (ed. from 02.27.2017) on amending the annexes to the orders of the Federal Tax Service of 09.12.2010 N MMB-7-8 / [Email Protected], 02/17/2011 N MMB-7-2 / [Email Protected], 02/17/2011 N MMB-7-2 / [Email Protected]