Costs associated with tax control. Costs associated with tax control Reimbursement of costs associated with tax control
Tax Code of the Russian Federation Part 1 State Duma
Chapter 17. Costs associated with the implementation of tax control
Article 130. Composition of costs associated with the implementation of tax control
The costs associated with the implementation of tax control consist of the amounts:
paid to witnesses, translators, specialists, experts and witnesses by the tax authorities;
legal costs.
Article 131. Payment of amounts due to witnesses, translators, specialists, experts and attesting witnesses
1. Witnesses, translators, specialists, experts and attesting witnesses shall be reimbursed for the expenses incurred by them in connection with their appearance at the tax authority for travel, renting living quarters and paid per diems.
2. Translators, specialists and experts receive remuneration for work performed by them on behalf of the tax authority, if this work is not included in the scope of their official duties.
3. For employees summoned to the tax authority as witnesses, during their absence from work in connection with the appearance at the tax authority, wages at the main place of work shall be retained.
4. The amounts due to witnesses, translators, specialists, experts and attesting witnesses shall be paid by the tax authority upon the performance of their duties.
The procedure for payment and the amounts to be paid are established by the Government of the Russian Federation and financed from the federal budget of the Russian Federation.
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From the book Tax Code of the Russian Federation. Part one author State DumaChapter 17. Costs associated with the implementation of tax control Article 130. Composition of costs associated with the implementation of tax control The costs associated with the implementation of tax control consist of the amounts: paid to witnesses, translators, specialists,
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From the author's Bar ExamChapter 17. COSTS RELATED TO THE PERFORMANCE OF TAX CONTROL Article 130 Abolished from January 1, 2007
From the author's bookArticle 82. Forms of tax control 1. Legislative and other normative acts (51) 2.
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From the author's bookChapter 17. Costs associated with tax control Article 130. Composition of costs associated with tax control (as amended by Federal Law of 09.07.1999 N 154-FZ) Article 131. Payment of amounts due to witnesses, translators, specialists,
From the author's bookArticle 130. Composition of costs associated with the implementation of tax control (as amended by Federal Law of 09.07.1999 N 154-FZ) Article 131. Payment of amounts due to witnesses, translators, specialists, experts and witnesses 1. Legislative and other normative acts ( 74) 2.
From the author's book From the author's bookQuestion 349. Crimes related to the implementation of extremist activities. Criminal forms of extremism include: - public appeals to carry out extremist activities (Art.280 of the Criminal Code); - incitement to hatred or enmity, as well as humiliation
Article 131. Payment of amounts due to witnesses, translators, specialists, experts and attesting witnesses
Commentary on Article 131
Tax control is one of the most important and, at the same time, conflictogenic areas of tax law.
Tax control is, on the one hand, carried out in accordance with the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation, the Tax Code of the Russian Federation), the activities of tax authorities to monitor compliance by taxpayers and tax agents with legislation on taxes and fees. On the other hand, tax control is one of the main institutions of tax law, combining legal norms, with the help of which the activities of tax authorities are regulated to monitor compliance with and implementation of legislation on taxes and fees.
The purpose of tax control is to establish the legality of the behavior of taxpayers and tax agents. That is why tax control is directly related to the protective function of tax law. It aims to remedy any violation of the law in the tax area; in the course of tax control, tax violations are revealed in order to then bring the offender to tax liability.
One of the most important principles of tax control is the requirement of legality, which is understood, on the one hand, as the direction of control measures to establish the legality of the behavior of taxpayers and tax agents as controlled participants in tax legal relations, and on the other hand, as the observance of procedural rules by tax authorities in tax activities. The principle of the legality of tax control acquires a more detailed and specific meaning in the principles of documenting the results of tax control and the proceduralization of control measures.
In pursuance of the requirement of legality and in development of the principle of proceduralization of tax audits, the Tax Code of the Russian Federation introduces into the script of tax audits a number of additional participants in legal relations in tax control, subjects of tax procedural law who take part in certain tax control activities.
The Tax Code of the Russian Federation (subparagraphs 11 - 12, paragraph 1 of Art. 31 of the Tax Code of the Russian Federation) gives the tax authorities the right to attract a whole category of persons to carry out tax control measures to carry out tax control measures: specialists, experts, translators, witnesses, attesting witnesses.
The listed persons can take part in various tax control activities, including in the conduct of desk and field tax audits, if necessary. In the course of tax control, they assist the tax authorities in the formation of an evidence base: they contribute to obtaining information proving the fact of a tax offense and properly fixing existing evidence.
When carrying out specific actions to implement tax control in cases stipulated by the legislation on taxes and fees (as a rule, during the inspection and seizure), attesting witnesses should be called (Article 98 of the Tax Code of the Russian Federation). The participation of attesting witnesses in tax control measures guarantees the observance of the rights of taxpayers, their presence in the tax process confirms the legality and correctness of the performance of certain procedural actions.
We will briefly present each of the listed persons who contribute to the implementation of tax control.
A witness in tax law is an individual who may be aware of any circumstances that are important for the implementation of tax control, investigation and resolution of a tax offense case, and who is summoned to testify.
The attesting witnesses are individuals who are not interested in the outcome of the case, who are involved in the conduct of tax control directly at the place of its conduct, and certify the facts and results of the action.
The translator is an individual who is fluent in the language, knowledge of which is necessary for translation in the course of tax control measures.
Experts and specialists perform similar functions in the process of tax control. These two categories of persons assisting in the conduct of tax control differ in that they have special knowledge in a certain area, which may be useful in the implementation of certain tax control measures.
The participation of an expert in the tax process necessarily ends with the preparation of a written opinion by the expert on his own behalf. It sets out the research conducted by the expert, the conclusions he made, and justifies the answers to the questions posed. Thus, the expert is directly involved in the formation of the evidence base.
As for the specialist, he participates in tax control activities to the extent that tax officials lack certain skills, knowledge and skills. Most often, specialists are involved to assist and explain in the process of detection, seizure of documents and in connection with the use of technical means. Unlike an expert, a specialist does not give independent opinions; with his knowledge and skills he only assists in tax control.
The legislation on taxes and fees regulates the issues of costs associated with tax control, devoting a separate chapter to these issues (Chapter 17 of the Tax Code of the Russian Federation).
In accordance with Art. 131 of the Tax Code of the Russian Federation, the Resolution of the Government of the Russian Federation of March 16, 1999 N 298 was adopted<331>, which approved the Regulations on the procedure for payment and the amount of amounts to be paid to witnesses, translators, specialists, experts and attesting witnesses who are involved in the performance of actions to implement tax control.
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<331> Collection of legislation of the Russian Federation. 1999. N 13. Art. 1601.
According to the aforementioned Decree of the Government of the Russian Federation, witnesses, translators, specialists, experts and attesting witnesses who are involved in the performance of actions for the implementation of tax control are reimbursed for the expenses incurred by them in connection with their appearance at the tax authority on travel, renting living quarters and paid per diems.
In a relationship travel expenses it was established that reimbursement of witnesses, translators, specialists, experts and attesting witnesses for travel expenses to the place of appearance and back to the place of residence is made on the basis of travel documents, but not higher:
- the cost of travel by public transport (except for taxis) - on highways and dirt roads;
- the cost of travel in a reserved seat (compartment) carriage - by rail;
- the cost of travel in cabins paid for in the V - VIII groups of tariff rates on ships of sea transport, and in a cabin of category III on river ships - on waterways.
When using air travel, the cost of an economy class ticket will be refunded.
These persons are paid the cost of travel by public transport (except for taxis) to the railway station, pier, airport, if they are located outside the boundaries of the corresponding settlement.
In addition to the cost of travel to the place of appearance and back to the place of residence, upon presentation of the relevant documents, the cost of the preliminary sale of travel documents and the cost of using bedding are reimbursed.
In case of failure to provide travel documents to the specified persons assisting in the implementation of tax control, travel expenses shall be paid at the minimum fare by the respective means of transport to the place of appearance and back to the place of residence. To make such payments, it is necessary to obtain permission from the head (deputy head) of the tax authority calling for persons assisting in the implementation of tax control.
In a relationship rental costs and daily subsistence allowance it is established that the corresponding payments to witnesses, translators, specialists, experts and attesting witnesses are made in accordance with the Decree of the Government of the Russian Federation of October 13, 2008 N 749 "On the specifics of sending workers on business trips"<332>.
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<332> Collection of legislation of the Russian Federation. 2008. N 42. Art. 4821.
The hotel reservation fee is refunded in the amount of 50% of the reimbursable cost of the bed per day.
At the same time, per diems are not paid if the witness, translator, specialist, expert or attesting witness has the opportunity to return to the place of residence every day.
Legislation on taxes and fees proceeds from the premise that the work performed during tax control by translators, specialists and experts should be paid, unless this work is part of their official duties. In this case, the involvement of these persons is carried out on a contractual basis.
The aforementioned persons assisting in the conduct of tax control receive monetary remuneration for the work performed by them on behalf of the tax authority, according to the wage rates approved by the Ministry of Labor and Social Development of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation. The relevant norms are enshrined in the Decree of the Ministry of Labor of Russia dated February 18, 2000 N 19 "On approval of the norms for payment of monetary remuneration to translators, specialists and experts involved in the performance of actions to implement tax control"<333>.
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<333> Bulletin of normative acts of federal executive bodies. 2000. N 17.
For persons summoned to the tax authority as witnesses, during their absence in this regard, the place of work (position) and average earnings at the main place of work are retained at work.
Persons who do not work under an employment contract, for their distraction from work or regular activities, in addition to the amounts for reimbursement of expenses incurred, receive a monetary remuneration in the amount of daily allowance established for business trips on the territory of the Russian Federation. In accordance with the Decree of the Government of the Russian Federation of October 2, 2002 N 729 “On the amount of reimbursement of expenses related to business trips in the territory of the Russian Federation, to employees who have entered into an employment contract for work in federal government bodies, employees of state extra-budgetary funds of the Russian Federation, federal state institutions ”<334> per diem expenses are set at 100 rubles for each day of being on a business trip.
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<334> Collection of legislation of the Russian Federation. 2002. N 40. Art. 3939.
The basis for the payment of amounts due to witnesses, translators, specialists, experts and attesting witnesses is the decision of the head (deputy head) of the tax authority, which attracted these persons to participate in the performance of actions to implement tax control.
The payment of amounts to these persons is made upon the fulfillment of their duties within the limits of funds allocated to the tax authority from the federal budget.
In conclusion, we note that, despite the fact that guarantees and compensation to witnesses, translators, specialists, experts and attesting witnesses in connection with the appearance at the tax authority or work on its behalf are provided for in Art. 131 of the Tax Code of the Russian Federation, the provisions of Art. 170 of the Labor Code of the Russian Federation (“Guarantees and compensation for employees involved in the performance of state or public duties”), since this norm has priority over other federal laws (Art. 5 of the Labor Code of the Russian Federation).
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Chapter 17. COSTS RELATED TO THE IMPLEMENTATION OF TAX CONTROL
The costs associated with the implementation of tax control consist of the following amounts: (as amended by the Federal Law of 09.07.1999 N 154-FZ) paid to witnesses, translators, specialists, experts and understood by the tax authorities; legal costs.
1. Witnesses, translators, specialists, experts and attesting witnesses shall be reimbursed for the expenses incurred by them in connection with their appearance at the tax authority for travel, renting living quarters and paid per diems.
2. Translators, specialists and experts receive remuneration for work performed by them on behalf of the tax authority, if this work is not included in the scope of their official duties.
3. For employees summoned to the tax authority as witnesses, during their absence from work in connection with the appearance at the tax authority, wages at the main place of work. The paragraph is excluded. - Federal Law of 09.07.1999 N 154-FZ.
4. Sums due to witnesses, translators, specialists, experts and attesting witnesses shall be paid by the tax authority upon the performance of their duties. The procedure for payment and the amounts to be paid are established by the Government of the Russian Federation and financed from the federal budget of the Russian Federation.
Article 130. Composition of costs associated with the implementation of tax control
Commentary on Article 130
The Arbitration Procedure Code of the Russian Federation in Articles 101 - 112 considers the concept of court costs, which are included in the costs of a tax violation case. The administrative procedure for the payment of amounts to participants in out-of-court consideration of tax disputes is determined in Article 131 of the Tax Code of the Russian Federation and the Resolution of the Government of the Russian Federation of March 16, 1999 N 298 adopted in accordance with it.
1. Costs are expenses that are necessary for the correct, complete and objective implementation of tax control. As a general rule, they are calculated on the basis of the norms and limits established by the current legislation (for example, daily allowances, for reimbursement of travel expenses). The costs mentioned fall into two large groups:
Costs associated with the payment of amounts due to a witness, translators, specialists, experts, attesting witnesses;
Legal costs (see below);
Tax control has various forms and is expressed in:
1) carrying out tax audits;
2) receiving explanations from taxpayers, tax agents;
3) verification of accounting and reporting data;
4) inspection of premises and territories;
5) other forms of control.
It should be noted that the tax authorities also exercise control over banks' compliance with tax legislation. In this regard, the costs associated with this form of tax control are also included in the "costs" mentioned in the commented article.
2. The rules of paragraph 2 of the commented article say:
a) on the amounts payable only to persons directly indicated in paragraph 2 of Article 130 of the Tax Code of the Russian Federation;
b) it is not by chance that the commented article speaks of the amounts paid. In other words, the legislator has clearly established the monetary form of covering costs;
c) the rules of paragraph 2 of the commented article have the character of a general establishment: the rules of paragraph 1 of Article 131 of the Code are devoted to reimbursement of expenses associated with the appearance of the persons indicated in the article at the tax authority;
the rules of paragraph 2 of Article 131 of the Code are devoted to payments of remuneration to translators, specialists, experts (in accordance with the agreement concluded with them in the prescribed manner);
d) the costs do not include the amounts payable to persons by their employers (although these amounts are associated with the distraction of employees from the performance of their labor functions).
3. When characterizing the rules of paragraph 3 of the commented article, it should be borne in mind that:
a) the composition of legal costs is determined by the norms of the Code of Civil Procedure, the APK, the CPC, as well as by-laws issued by the Government of the Russian Federation, the Ministry of Finance of Russia, and other government agencies in accordance with the CPC, APK, CPC;
b) unlike the costs mentioned in paragraph 2 of Article 130 of the Tax Code of the Russian Federation (they are reimbursed by the tax authorities, which is directly provided for in paragraph 4 of Article 131 of the Tax Code of the Russian Federation), legal costs (mentioned in paragraph 3 of Article 130 of the Tax Code of the Russian Federation) are paid exactly by the court;
c) the rules of this Code apply to the procedure for payment, the amount of reimbursement of costs referred to in paragraph 2 of Article 130 of the Tax Code of the Russian Federation.
In turn, when paying legal costs, one should be guided by the norms of procedural legislation.
Article 131. Payment of amounts due to witnesses, translators, specialists, experts and attesting witnesses
Commentary on Article 131
Decree of the Government of the Russian Federation of March 16, 1999 N 298 approved the Regulation on the procedure for payment and the amount of amounts to be paid to witnesses, translators, specialists, experts and attesting witnesses who are involved in the execution of actions to implement tax control. The said persons, involved in the performance of actions for the implementation of tax control, shall be reimbursed for the expenses incurred by them in connection with the appearance at the tax authority for travel, renting living quarters and paid per diems. The payment of amounts to witnesses, translators, specialists, experts and attesting witnesses involved in the performance of actions for the implementation of tax control is made when they perform their duties on the basis of the decision of the head (deputy head) of the tax authority, which attracted these persons to participate in the performance of actions on implementation of tax control, within the funds allocated to the tax authority from the federal budget.
1. Before proceeding directly to the commentary on paragraph 1 of Article 131 of the Tax Code of the Russian Federation, it is necessary to introduce the following definitions:
a) a witness is any natural person who may be aware of any circumstances that are significant for the implementation of tax control. His testimony is recorded in the protocol. Summoning a witness, as well as giving testimony to them, are governed by the rules of Article 90 of the Tax Code of the Russian Federation
b) a person who is not interested in the outcome of the case (both an organization and an individual) who speaks the language, knowledge of which is necessary for translation, or understands the signs of a dumb or deaf person, can be involved as an interpreter. The translator is involved by the tax authority to participate in the case in accordance with Article 97 of the Tax Code of the Russian Federation;
c) a specialist is a person with special knowledge and skills who is not interested in the outcome of the case;
d) an expert is a person who is able to clarify issues arising in the course of tax control, since he has the necessary special knowledge in science, art, technology or craft. The involvement of an expert is carried out in accordance with the rules of Article 95 of the Tax Code of the Russian Federation;
e) attesting witnesses are any individuals who are not interested in the outcome of the case. They are called to participate in the implementation of tax control in accordance with Article 98 of the Tax Code of the Russian Federation and can be interviewed based on the results of actions performed in their presence;
f) tax authorities are not only tax authorities at the place of registration of a person in respect of whom one or another form of tax control is carried out, but also other authorities endowed by this Code with the right to appoint (summon) the above-mentioned persons (for example, tax authorities conducting counter tax audit; tax authorities carrying out a control tax audit);
g) expenses are reimbursed insofar as they are related to attendance:
directly to the tax authority (for example, for interviewing as a witness);
to the place where one or another tax action is carried out with their participation (for example, going to the place where the examination of the taxable object is carried out);
h) exactly those expenses that are incurred are subject to compensation.
At the same time, as a general rule, the mentioned expenses are compensated in the amounts in which they were actually (actually) incurred, but in any case, the amount of compensation cannot exceed the maximum norms established by the current legislation. Expenses for:
Travel to the location of the tax authority or to the place of the relevant tax action and back;
Renting a living space (for example, in a hotel). This expense takes place in cases when a witness, expert, other persons leave for another settlement;
Payment of per diem. It is necessary to proceed precisely from those marginal rates of compensation that are in effect at the time when these costs are actually incurred (and in established cases - when they are reimbursed).
2. Features of the rules set forth in paragraph 2 of the commented article are that:
a) they cover the participation of only translators, specialists and experts in tax control. The fact is that, as a general rule, these persons are involved in the case on a contractual basis. One of the conditions of the contract for the provision of paid services (which is concluded in this case) is the payment of remuneration;
b) remuneration is paid when:
The work performed by an expert, specialist, translator was carried out precisely on behalf of the tax authority;
This work is not part of their official duties.
3. Let's analyze item 3 of the commented article.
Let's introduce one more definition: employees are any natural persons who are in labor relations with employers (organization and individual);
a) in accordance with article 170 of the Labor Code, employers are obliged to release their employees without hindrance to fulfill their state and public duties in cases provided for by the current legislation. This also applies to cases of summoning witnesses to the tax authority, who retain not only the place of work, but also the average earnings;
b) in paragraph 3 of the commented article it is not accidental that it is emphasized that wages at the main place of work are preserved: these rules should not be extended to earnings received, say, for part-time work with another person, for one-time work performed under civil law transactions ;
c) the rules of paragraph 3 of the commented article should not be broadly applied: they are talking specifically about maintaining the salaries of witnesses (during their absence from work in connection with the appearance at the tax authority), but not experts, translators, specialists, witnesses.
4. When analyzing the rules of paragraph 4 of the commented article, it is necessary to take into account the following:
a) the tax authority makes the actual payment of the amounts due to witnesses, translators, specialists, experts, and attesting witnesses only after these persons have performed their duties, which can be judged on the basis of the texts of agreements (concluded, for example, with an expert, specialist), protocols and others. materials and circumstances;
b) paragraph 2 of clause 4 of this article contains two very important requirements:
That the procedure for the payment of amounts to witnesses, attesting witnesses, experts, specialists, translators is established by the Government of the Russian Federation;
The fact that the financing of the expenses mentioned in paragraph 4 of the commented article is carried out at the expense of the federal budget of the Russian Federation (even if the tax audit was carried out, say, on local taxes).
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