The limitation period for the debts of individual entrepreneurs. Limitation period for taxes: what is it and how is it calculated? Is there a statute of limitations on unpaid taxes?
A selection of the most important documents on request Term limitation period on taxes(legal acts, forms, articles, expert advice and much more).
Regulations
"Tax code Russian Federation(part one) "of 07.31.1998 N 146-FZ
(as amended on February 19, 2018)3.
Limitation period for taxes: what is it and how is it calculated?
The decision to collect is made after the expiration of the period specified in the demand for payment of tax, but no later than two months after the expiration of specified period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court for the recovery of the amount of tax due from the taxpayer (tax agent) - an organization or an individual entrepreneur. An application may be filed with the court within six months after the expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court.
Articles, comments, answers to questions: Tax limitation period
The Federal Tax Service “extended” the statute of limitations for bringing to justice
Federal tax service clarified the procedure for calculating the statute of limitations when holding liable for non-payment or incomplete payment of tax.
It is impossible to hold a taxpayer liable if three years have passed since the date of the tax offense or the same period has passed since the beginning of the tax period following the one in which the offense was committed, explains the Federal Tax Service.
However, violators generally count the statute of limitations from the end of the tax period for which the tax has not been paid. At the same time, according to the law, the taxpayer must calculate and pay tax after the end of the tax period. At this point, an offense may occur - non-payment or incomplete payment. Therefore, the statute of limitations must be calculated after the end of the tax period.
The Federal Tax Service gave these explanations after considering the taxpayer's complaint in court - he argued that he could not be held liable, since the statute of limitations had expired. The taxpayer did not pay corporate income tax for 2012, the payment deadline for which is set until March 28, 2013. “The offense took place already in 2013, which means that the statute of limitations for bringing to justice is counted from January 1, 2014,” the clarification says.
The Federal Tax Service notes that this conclusion is consistent with the legal position of the Supreme Arbitration Court, set out in paragraph 15 of the Resolution of the Plenum of July 30, 2013 No. 57 “On some issues arising in the application arbitration courts part one of the Tax Code of the Russian Federation.
Source: http://www.buhgalteria.ru/news/n153083
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And one more thing: Close LLC - Alternative or officially
The option of closing an LLC, which our Center offers you, is the transfer of the enterprise to hired founders with the replacement of the general director with a foreign one management company or a foreign hired director. The bottom line is that the rights and obligations of the founders of a liquidated LLC are transferred to new founders, foreigners, a new general director and accountant are appointed. The main advantage of such liquidation of an LLC is the short time and cost.
Limitation period for identifying and collecting tax arrears
The essence of such a transfer lies in the fact that, according to the legislation of the Russian Federation, responsibility for the activities of the organization lies General manager and an accountant (financially), and specifically provided cases and founder. After the sale and purchase transaction is completed, or the share is transferred to the Company, all responsibility passes to the new founder and general manager. director. You also receive a complete set of documents confirming that the company has been re-registered and transferred to a new owner, a foreigner.
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LLC closure schemes
The closure of an LLC entails the termination of its activities without the transfer of rights and obligations by succession to other persons (Article 61 of the Civil Code of the Russian Federation).
An enterprise may be liquidated voluntarily in the manner prescribed by the Civil Code of the Russian Federation. It can also be liquidated by a court decision on the grounds provided for by the Civil Code of the Russian Federation.
An LLC can be closed voluntarily by decision of its founders (participants), including in connection with the expiration of the period for which it was created, with the achievement of the purpose for which it was created.
The court may decide to close an LLC if, during the creation of the enterprise, gross violations of the law are committed, which are irreparable, or if the company carries out activities prohibited by law, or with other repeated or gross violations of the law or other legal acts, or in the case of systematic implementation public or religious organization, charitable or other fund for activities that are contrary to its statutory goals, as well as in other cases provided for by the Civil Code of the Russian Federation.
The tax authority can also close an LLC. Repeated or gross violations of tax laws are the most common grounds for filing lawsuits by the tax authorities to close an LLC. In this case, the tax authorities file claims in arbitration courts on the basis of specific norms of tax legislation and clause 2 of article 62 of the Civil Code of the Russian Federation.
A large number of claims for the closure of LLCs are filed by the tax authorities due to the fact that these organizations do not bring their constituent documents in line with the requirements of the Civil Code of the Russian Federation.
A special case of closing an LLC is declaring it bankrupt. According to the Bankruptcy Law, all legal entities can be declared insolvent, except for state-owned enterprises, institutions, political parties and religious organizations.
The closing of an LLC begins with the appointment of a liquidation commission by the court, which solves the problem of identifying the company's debts and making settlements with its creditors. The liquidation commission places a publication in the press about the closure of the LLC, the procedure and deadline for filing claims by its creditors, and also notifies the creditors in writing. Article 64 of the Civil Code of the Russian Federation establishes the order of priority for the company's settlements with creditors.
According to paragraph 5 of Art. 64 of the Civil Code of the Russian Federation, the claims of the creditor, declared after the expiration of the period established by the liquidation commission for their presentation, are satisfied from the property of the liquidated enterprise, remaining after the satisfaction of the claims of creditors, declared on time. If the procedure for closing the company is completed, and the creditor did not declare his claims on time, then the company's obligations are considered repaid.
There are other, faster ways to close an LLC. One of them is the reorganization of the enterprise (merger, accession). In this case, the company is excluded from state register. During the reorganization, all rights and obligations of the enterprise are transferred to another, newly formed legal entity. Tax audit during reorganization cannot be avoided.
The next type of closure of an LLC may be re-registration with a change in the composition of the founders and director. Changes are registered in the IMNS, funds are notified. The company itself exists as before. If the company has no debts to the IMTS and funds, then tax audit can be avoided.
Such options as the reorganization of the enterprise and re-registration cannot be called the closure of an LLC in its formal sense, however, the main task facing entrepreneurs is being solved - getting rid of the company and obligations. But it is quite difficult for businessmen themselves to carry out such a procedure for closing an LLC, sometimes it is impossible. Here you need the help of a qualified specialist.
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The limitation period after which the taxpayer cannot be held liable is three years. At the same time, the Tax Code does not contain provisions specifying from what moment this period should be counted if we are talking about such an offense as non-payment or incomplete payment of tax amounts. And there may be several options here: three years to count from the moment when the tax must be paid, or from the next day when the tax period for which this tax was payable expired, or from the end of the tax period for which the tax payment deadline fell . Which of the options to choose, so that for sure, as they say, sleep peacefully?
Responsibility for non-payment or incomplete payment of amounts of tax (fee) is provided for in Art. 122 of the Tax Code (hereinafter referred to as the Code). This provision establishes that non-payment or incomplete payment of tax (duty) amounts as a result of understating tax base, other incorrect calculation of the tax (fee) or other unlawful actions (inaction) in the general case entails the collection of a fine in the amount of 20 percent of the unpaid amount of the tax (fee). In the case when the intentional commission of the specified offense takes place, the fine will already amount to 40 percent of the unpaid tax amount.
statute of limitations
In turn, according to Art. 113 of the Code, a person cannot be held liable for committing a tax offense if three years have elapsed from the day it was committed or from the day after the end of the tax period during which this offense was committed and until the decision to hold liable was made (the period prescription). That is, the statute of limitations for committing a tax offense is three years. At the same time, this rule stipulates that, in the general case, the statute of limitations is calculated from the moment the offense was committed. And the exception to this rule are offenses under Art. Art. 120 and 122 of the Code. In their respect, the limitation period is determined according to special rules - from the next day after the end of the relevant tax period.
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tax period
So, if we talk about an offense in the form of non-payment or incomplete payment of tax, then according to Art. 113 of the Code, the three-year limitation period must be counted from the day following the end of the relevant tax period. The problem is that this rule does not explain which period is relevant. In this regard, in the judicial practice on this issue, there was, to put it mildly, a “mess”.
Some courts consider that the starting point is the first day after the end of the tax period for which the tax should have been paid (see, for example, the Decrees of the Federal Antimonopoly Service of the Volga-Vyatka District of February 15, 2011 in case N A29-5301 / 2009 and of November 21, 2009 in case N A17-695 / 2009, FAS of the West Siberian District of June 11, 2009 N F04-3438 / 2009 (8540-A27-19)).
True, there is another option - to count the statute of limitations starting from the day following the established day of tax payment (see, for example, the Resolutions of the Federal Antimonopoly Service of the Central District of September 9, 2008 in case N A09-7320 / 2007-21 and the Federal Antimonopoly Service of the North -Kavkazsky dated July 31, 2008 N F08-4328 / 2008). It must be said that this approach even fair in its own way, but... In this case, there is no link to the "corresponding tax period". Therefore, it seems that this position is contrary to the provisions of Art. 113 of the Code.
A different view on resolving the issue of the procedure for calculating the statute of limitations for non-payment of tax was first presented in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 27, 2011 No.
The limitation period for taxes for individuals and legal entities - general concepts and legal framework
N 4134/11. The "superior" judges considered that this should be calculated from the day of the end of the tax period in which (and not for which) the tax must be paid.
Plus a year
I must say that if the tax period is, for example, a quarter, then the difference in the order of calculation of the terms is not so great. What if the tax period is a calendar year? It turns out that in this case the statute of limitations will actually be equal not to three, but to four years. For example, take income tax. Suppose we are talking about non-payment of tax for 2014. It should have been paid in 2015. Accordingly, the limitation period begins to be calculated from January 1, 2016.
It is worth noting that after the publication of the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 27, 2011 N 4134/11, the "superior" judges had to make excuses. Information messages posted on the official website of the Supreme Arbitration Court stated that, in fact, the court did not consider the issue of the procedure for calculating the statute of limitations at all. Be that as it may, it was since then that arbitration practice began to encounter examples of court decisions in which arbitrators applied precisely the approach voiced by the “superior” judges (see Resolutions of the FAS of the Far Eastern District of May 8, 2013 N F03-1101 / 2013, FAS of the Ural District of August 6, 2013 N F09-6724 / 13, etc.).
Moreover, the Plenum of the Supreme Arbitration Court of the Russian Federation put an end to this matter in Resolution No. 57 of July 30, 2013. In paragraph 15 of the section “Responsibility for violations of the legislation on taxes and fees” of this Resolution, the application of the provision of par. 3 p. 1 art. 113 of the Code. "Higher" judges this time noted the following. Acts for which Art. 122 of the Code, consist in non-payment or incomplete payment of tax amounts as a result of understatement of the tax base, other incorrect calculation of tax or other illegal actions. Meanwhile, the calculation of the tax base and the amount of tax is carried out by the taxpayer after the end of the tax period, following which the tax is paid. Therefore, the statute of limitations under Art. 113 of the Code is calculated in this case from the next day after the end of the tax period during which the offense was committed in the form of non-payment or incomplete payment of tax. In other words, the Plenum of the SAC consolidated the position voiced earlier by the Presidium of the SAC, thereby establishing that in such situations the limitation period should be calculated from the end of the tax period in which (and not for which) the tax must be paid.
Note! Representatives of the Federal Tax Service of Russia in the Letter dated August 22, 2014 N CA-4-7 / 16692 hastened to “please” taxpayers with the fact that the indicated position of the Presidium of the Supreme Arbitration Court is also applicable to those taxes for which the tax period is a year.
Latest trends
Thus, with the light hand of the “superior” judges, the statute of limitations for bringing to responsibility under Art. 122 of the Code is actually four years, not three.
On the one hand, as a result of the judicial reform and the unification of the "higher" courts, the Supreme Arbitration Court ceased to exist. And clarifications on the issues of judicial practice in the application of laws and other regulatory legal acts by arbitration courts given by the Plenum of the Supreme Arbitration Court remain valid until the relevant decisions are made by the Plenum of the Supreme Court (Law of June 4, 2014 No. 8-FKZ). On the other hand, judging by the Ruling of the Armed Forces of the Russian Federation of February 10, 2015 N 2-KG14-3, one should not hope for any changes in this part. In it, the representatives of the Supreme Court almost literally reproduced the position of the Plenum of the Supreme Arbitration Court, agreeing that since the calculation of the tax base and the amount of tax is carried out after the end of the tax period following which the tax is paid, the statute of limitations defined by Art. 113 of the Code, is calculated in this case from the next day after the end of the tax period during which the offense was committed in the form of non-payment or incomplete payment of tax.
In the case under consideration, an individual entrepreneur was caught failing to pay VAT for the first quarter of 2010. According to the legislation in force at that time, the tax had to be paid no later than April 20, 2010, that is, in the second quarter of 2010. The decision to hold the merchant liable was made by the inspection 19 June 2013 However, the entrepreneur, referring to the provisions of Art.
113 of the Code, refused to pay the fine. He motivated his refusal by the fact that on April 20, 2013 the statute of limitations for bringing him to justice for committing the said offense had expired. It is noteworthy that the courts of first instance and appeal took the side of the taxpayer. And the court of cassation (and after it, Supreme Court) applied a different "arithmetic". Thus, the Supreme Court indicated that since the tax was to be paid in the second quarter of 2010, the limitation period for holding an individual entrepreneur liable was to be calculated from the next day after the end of that, that is, from July 1, 2010. Accordingly, it expired on July 1 2013. And therefore, the decision of the inspection to bring the individual entrepreneur to responsibility was made before the expiration of the statute of limitations.
On this basis, the case was referred for a new trial.
"Secret" move
Thus, today the courts and regulatory authorities must adhere to a unified approach to the procedure for calculating the statute of limitations when holding a taxpayer liable under Art. 122 of the Code. And in fact, this period, obviously, exceeds three years.
Under such circumstances, it must be borne in mind that liability under Art. 122 of the Code can be avoided altogether. After all, as follows from paragraph 19 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 57, the inaction of the taxpayer, expressed solely in the non-transfer to the budget of the amount of tax indicated in the declaration, does not constitute an offense established by Art. 122 of the Code. In this case, only fines are collected from the violator of the deadlines for paying the tax.
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The obligation to pay taxes is assigned by law to all subjects of civil law: not only to legal entities, individual entrepreneurs but also on citizens. Taxation is complex legal system, during the implementation of which a lot of controversial issues arise between taxpayers and controlling organizations. Yes, one of important aspects requiring clear understanding and compliance, becomes a statute of limitations tax debt.
General concepts of the statute of limitations
Control authorities, as a rule, do not remind about the need to make a payment, the subjects in most situations must do it themselves. If the taxpayer fails to make contributions in a timely manner, a tax debt arises.. Under the statute of limitations in legal application, they understand a certain period of time when the fiscal service has the right to claim unpaid (in whole or in part) tax debts from a citizen and forcibly collect them through the judiciary.
It is necessary to distinguish the limitation period for a tax offense from the limitation period for bringing to responsibility for non-payment of accrued tax payments and mandatory fees, including penalties. The term in relation to offenses is counted from the day the person committed the offense or at the end of the tax period when it was committed.
For the obligation to pay taxes, the legislation does not establish any time limits for exemption from tax debt. It is impossible to treat taxpayers of different categories in the same way, the time frame for claims depends on the person's belonging to a specific status: a legal entity-organization, an individual entrepreneur-merchant and an individual-citizen.
Statute of limitations for corporate taxes
For entrepreneurs without education legal entity the decision to enforce the collection of taxes is assessed on the correctness of its compliance / non-compliance with the time allotted for payment. Periods considered after:
- the expiration of the term for the taxpayer to deposit amounts into special accounts;
- submission of a declaration on the accrual and payment of the calculated tax;
- receipt of a notification from the tax inspectorate for the payment of tax, when the unreliable value previously presented in the report is corrected (additionally charged) based on the results of inspections.
Currently, tax authorities have the right to collect arrears for a time period not exceeding three years. In case of non-fulfillment of the requirements of the IFTS, it collects debts mainly without going to court. The Fiscal Service has the right to apply for judicial recovery within 6 months after the end of the period that is set for payment. Circumstances under which debt collection is possible only through the courts are specified in Article 45, paragraph 2 of the Tax Code (Part I) and constitute an exception to the regulations on indisputable collection.
Features of calculus
In practice, for the IP category, the following approach is used: if the debt relates to commercial activities, then the limitation period for taxes of legal entities is applied; if the debt arose during non-commercial activities, the period will be the same as for individuals. Since in most cases the activities of individual entrepreneurs are connected with making a profit, they are equated with organizations in this matter.
After the transfer of the demand for the payment of the resulting debt, the individual entrepreneur must fulfill it within eight days from the date of receipt, after which the preventive period is calculated:
- six months from the last payment - at the expense of money in the accounts of individual entrepreneurs (Article 46 of the Tax Code);
- two years from the last date of satisfaction of the claim - recovery by appeal to the IP property (Article 47 of the Tax Code).
The statute of limitations for personal taxes
The collection of arrears from a citizen occurs by judicial procedure, in contrast to the requirements for organizations. At the beginning of the procedure, a notification is sent to the person at a certain time to pay the tax. The limitation period for non-payment of taxes for filing a claim begins to be counted from the day when the tax authorities revealed non-payment (Article 70 of the Tax Code, part I), and is equal to:
- three months with a debt of 500 rubles or more;
- one year with a debt of less than 500 rubles.
The tax service must notify the citizen about the debt and give time for self-payment of the debt - this is 8 working days (Article 69 of the Tax Code, part I). The collection of fees from the debtor-individual is regulated by Article 48 of the Tax Code (Part I). The right to collect outstanding debt through a court of general jurisdiction arises if:
- debt > 3 thousand rubles - within six months after the deadline for payment on demand;
- debt ≤ 3 thousand rubles - within six months from the moment when total debt for all mandatory fees will exceed 3 thousand rubles;
- debt
While the tax debt is indefinite, the time limit applies to such payments: property tax and transport fee. They have three years to recover. Debt cancellation is possible if the required amount has not been received from the debtor for three years. Three years are also established for personal income tax collection. From the debtor, the fiscal authorities have the right to demand payment of arrears only for given period, that is, if a person owes for five years, then they can force a citizen to repay only for the last three-year period.
The legislative framework
Procedure and timing enforcement tax debts are provided for by tax legislation, and not by the Code of Civil Procedure - many mistakenly believe and believe that provisions on the general civil statute of limitations apply in this regard. The regulatory provisions of the Tax Code are as follows:
- With regard to the payment procedure transport tax Part 3 of Art. 363 NK.
- The rules for paying property tax are determined by Article 409, Chapter 32 of the Tax Code, which replaced Federal Law No. 2003-1 from 01.01.2015.
- The limitation period for personal income tax is determined by Chapter 23 of the Tax Code.
Often, taxpayers receive claims from the tax authorities for the payment of tax arrears for long past periods. To what extent such requirements comply with the law and whether there is a statute of limitations for taxes, i.e. the period after which the tax authority loses the possibility of forcible collection of debt through the court.
Does the general limitation period, namely 3 years, apply to tax legal relations?
No, the general limitation period (three years) established by Art. 196 of the Civil Code for civil legal relations does not apply to tax legal relations, this is expressly stated in paragraph 3 of Art. 2 of the Civil Code of the Russian Federation, namely, the norms of civil law are not applicable to tax legal relations.
What is provided in the tax legislation about the statute of limitations on taxes?
Direct norm, similar to Art. 196 of the Civil Code, which would establish a limitation period, after the expiration of which, the tax authority is no longer entitled to forcibly collect a tax debt from a taxpayer through a court, the Tax Code does not contain. In the same time, statute of limitations for the return of excessively collected taxes (penalties, fines) for taxpayers established in the Tax Code of the Russian Federation, it is three years from the date when the taxpayer found out or should have known about the collection of excessive payments from him (paragraph 2, clause 3, paragraph 1, clause 9, article 79 of the Tax Code of the Russian Federation).
Are tax debts perpetual and can the tax authority collect arrears, for example, after 10 years from the moment of its formation?
The tax liability of the taxpayer in accordance with the current Tax Code of the Russian Federation is valid is perpetual, however, the code contains certain terms for the forced collection of debts from taxpayers by tax authorities, if missed, the debt should be recognized as uncollectible, and written off on this basis.In addition, with regard to property taxes citizens (transport tax, property tax of individuals), the calculation of which is entrusted to the tax authorities, in Art. 52 of the Tax Code establishes a special rule - the Tax authority has the right to calculate the specified taxes for no more than three tax period(years) preceding the calendar year of sending a tax notice to a taxpayer-citizen. This rule is not, of course, a "limitation period" in its direct sense, but limits the tax authorities in terms of calculation of such taxes.
Let us explain what was said with an example, when a citizen is sent a notice of payment of transport tax in 2016, the tax authority will be able to include transport tax amounts there only for 2015, 2014, 2013, debts for earlier periods should not be included in such notification, provided that before 2016, the citizen did not receive tax notices for the specified periods.
Thus, answering the question about the indefiniteness of the taxpayer's debts and the possibility of collecting the debt after a long period of time, we can draw the following conclusion - the taxpayer's obligation to pay tax arrears does not have a statute of limitations, but is limited by the deadlines for collecting taxes established in the Tax Code of the Russian Federation in judicial order, as well as - the rules for calculating taxes in respect of property taxes of citizens-taxpayers.
Therefore, to answer the question of whether tax office demands from the taxpayer a debt for a long past period and whether he can recover it from the taxpayer, you need to install: 1. Did the tax authority violate the rules for calculating taxes (if this property taxes individuals); 2. whether the inspection missed the deadlines established by the Tax Code of the Russian Federation for the forced collection of arrears.
How to determine the moment of the beginning of the period for the collection of debts by the tax authority?
The beginning of the countdown for the collection of the tax debt is the moment when the tax authority reveals the taxpayer's debt. From the moment the tax debt is revealed, the period for collecting the debt begins to run and the actual collection procedure begins.
If the arrears were established by the tax authorities as a result of a tax audit(office, field, repeated), the moment of detection and the start of the countdown for its collection will be the day the decision comes into force as a result of such P rovers.
If the amount of tax payable was specified v tax return by ourselves taxpayer or calculated by the tax authority tax notice , but actually not transferred by the taxpayer to the budget, under the day the arrears are discovered should be understood as the next day after the due date for paying the tax (by declaration, by notification), and if the taxpayer submits a tax return in violation of the established deadlines, the next day after its submission. From the indicated moment will flow and deadlines to recover arrears from the taxpayer.
How much time from the moment of revealing the tax debt is established by the Tax Code of the Russian Federation for the procedure for collecting tax arrears?
The Tax Code of the Russian Federation establishes a deadline for collecting tax in court, which is determined on the basis of a combination of terms, namely:
- the time limit for filing a claim for payment of arrears and the taxpayer
– term for voluntary fulfillment of the requirement;
– the deadline for the tax authorities to apply to the court.
In total, from the moment the arrears are discovered to the filing of an application with the court for its collection at the expense of the taxpayer's funds, the tax authorities have approximately nine months, and if the arrears are collected at the expense of the taxpayer's property (in the case of citizens, property also includes cash also), the maximum period for judicial recovery- is two years from the date of expiration of the period for the voluntary fulfillment by the taxpayer of the requirement to pay tax. In addition, it should be borne in mind that the period for collecting debts on property debts of citizens in court depends on the amount of tax debt.
If the deadlines for collecting arrears are violated and the court refuses to restore them, the inspectorate loses the opportunity to recover the debt from the taxpayer, and the arrears must be recognized as uncollectible on the basis of paragraphs. 4 p. 1 art. 59 of the Tax Code of the Russian Federation.
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The limitation period is necessary so that the party who has suffered damage can apply to the court during this period, even if a lot of time has passed. The general limitation period under the Civil Law is three years. Is there a statute of limitations on taxes and overpayments, and what is its duration? In our article, we will consider what terms are set aside by tax legislation for collecting taxes from legal entities, entrepreneurs and ordinary citizens, as well as for returning tax overpayments to them.
Tax statute of limitations
When a person commits a tax offense, the limitation period, after which he can no longer be held liable, is three years. The countdown begins from the day the offense was committed or immediately after the end of the tax (reporting) period in which it was committed (Article 113 of the Tax Code of the Russian Federation, Article 196 of the Civil Code of the Russian Federation). But the tax legislation does not establish any time limits after which the obligation to pay tax would be removed from the debtor. Therefore, the concept of "tax limitation period" implies a period during which unpaid (or not fully paid) tax can be recovered from the taxpayer by the fiscal authorities.
If the tax is not transferred to the state budget on time and there is an arrears on it, this becomes the basis for the IFTS to apply to the taxpayer with a demand for its payment (clause 1, article 45 of the Tax Code of the Russian Federation). The demand is handed over personally to the payer-debtor or sent to him by registered mail. The request must be fulfilled within 8 days from the date of receipt, or within the time period directly indicated in it. After that, the calculation of the limitation period for the payment of taxes begins.
If the taxpayer-debtor fails to comply with the requirement on time, within 2 months, the tax authorities may decide to recover the unpaid amounts. If at the end of this period the arrears are not repaid, its collection is possible only through the court.
To file an application with the court for the recovery of arrears from the money available in the bank accounts of the taxpayer, the limitation period for taxes of legal entities and individual entrepreneurs is six months after the expiration of the period allotted for fulfilling the earlier requirement of the IFTS (clause 3 of article 46 of the Tax Code of the Russian Federation) .
If the collection of arrears is “aimed” at the debtor’s property, including his cash, then the limitation period for taxes of individual entrepreneurs and organizations collected in court will be 2 years from the date of expiration of the deadline for fulfilling the tax authorities’ requirement (clause 1, article 47 of the Tax Code of the Russian Federation ).
All of the above applies equally to both taxpayers and tax agents having debts for the transfer of relevant payments.
In the event that the tax authorities missed the statute of limitations for non-payment of taxes for filing an application, the court, at the request of the Federal Tax Service Inspectorate, can restore it if it deems valid reasons for such a omission.
Limitation period for taxes overpaid to the budget
Having established an overpayment of taxes, penalties, fines, the IFTS must report this fact to the taxpayer within 10 days (clause 3, article 78 of the Tax Code of the Russian Federation). The overpayment goes towards offsetting future tax payments or is returned to the taxpayer's account.
When the overpayment arose through the fault of the taxpayer, he has the right to write to the inspectorate an application for a refund (offset) within 3 years from the date of payment of the excess amount by him (clause 7 of article 78 of the Tax Code of the Russian Federation), and if the tax authorities wrongfully refuse to set off or return the overpayment, file claim in court.
The limitation period for overcharged taxes is 3 years. This means that a taxpayer who has overpaid tax due to the fault of the IFTS can sue her in court within a three-year period from the moment he discovers such an overpayment. An application to the Inspectorate for the return of the amount overpaid to the budget is submitted within 1 month after the payer became aware of the excessively "withdrawn" tax, or from the date of entry into force judgment on the recovery of an amount exceeding the actual amount of the debt (clause 3 of article 79 of the Tax Code of the Russian Federation).
The statute of limitations for personal taxes
The limitation period for taxes paid by individuals who are not individual entrepreneurs is established in Art. 48 of the Tax Code of the Russian Federation.
The IFTS can apply for the recovery of a tax debt to the court if 3 years have passed since the deadline for fulfilling its very first claim, and a citizen owes the state more than 3,000 rubles during this time. The deadline for applying is six months from the date when the amount of the debt exceeded 3,000 rubles.
If in 3 years the debt has not become more than this amount, then the tax authorities have six months to go to court after the end of the three-year period.
So, the statute of limitations for taxes should not be confused with the period of liability for tax offenses. In this context, this is the time period in which the tax authorities have the right to recover arrears from the taxpayer, or the time for the taxpayer to apply for a refund (offset) of the tax overpayment.
To date, the statute of limitations for taxes is a very relevant topic for citizens of the Russian Federation.
Unfortunately, this concept Russian legislation did not receive due attention, which led to the emergence of many questions related to it, the answers to which can be found in this article.
What it is?
The limitation period is the period of time during which representatives of the tax service have the right to forcibly collect debt from an individual or legal entity.
Until this period has expired, the relevant authority may collect a debt from a certain person. However, this can be done by force only on the basis of a court order.
It is rather difficult to determine the time frame for the limitation period for taxes, since this is not directly mentioned in the legislation.
The specific period depends on several aspects, such as the status of the taxpayer or the type of tax.
This issue is quite confusing not only for taxpayers, but also for the representatives of the tax authorities themselves. So, for example, they can miss the deadline for filing statement of claim in due Judicial authority, which makes it almost impossible to determine the statute of limitations. However, trying to fight it arbitrage practice by accepting precedents.
On the basis of all the norms collected, one can notice the fact that all ambiguities in the legislation are interpreted in favor of taxpayers.
How much it is, its nuances
This tax period is often equated with the general statute of limitations, which is enshrined in Civil Code RF and equals 3 years. However, this is a mistake. It must be determined by tax law.
V tax code The Russian Federation does not have a clear answer to the question of the specific duration of the period under consideration. But on the basis of several norms, several conclusions can be drawn:
- the obligation of a person to pay taxes is of an indefinite nature;
- there is a time limit for the forced collection of a debt from a person: it is 3 years.
In other words, there is no such thing as a statute of limitations in Russian tax legislation in its pure form. Although in fact it has been replaced by such a concept as enforcement period.
The above are standard rules, but there are exceptions to any law. The term for applying to the court for representatives of the tax service can be extended by 6 months if the debt does not exceed the amount of 3 thousand rubles. The court also has the right to restore the missed statute of limitations at its discretion.
The application of these exceptions directly depends on the status of the taxpayer, on his actions and behavior.
It is also difficult to determine the beginning of the period. According to the law, it starts from the day when the tax service revealed non-payment of taxes. In such a case, the authority must within 20 days notify the taxpayer of this and demand payment of the debt. In some situations, non-payment can only be detected during an audit, which must be cleared by the court.
In addition to all of the above, the term may depend on the type of payment. For example, this period for the transport tax is not fixed anywhere, so it is automatically equated by 3 years.
You can learn more about the duration of the period in question from the following video:
However, it is impossible to treat all taxpayers equally, since the limitation period will depend on the person's belonging to one of the 3 categories.
Individuals
The beginning of the statute of limitations is the day on which representatives of the tax authorities discovered non-payment. In some cases, it is possible to detect payment evasion only during a search, which requires court permission.
According to the Tax Code of the Russian Federation, the relevant authority is obliged to notify the individual about his debt and provide a certain period for independent repayment of the debt. Usually given 8 business days.
In case of refusal, the tax authority has the right to apply to the court with a claim for compulsory payment of the debt within:
- 6 months, provided that the amount of the debt exceeds 3 thousand rubles;
- 3 years, provided that the amount of debt for the entire time did not exceed 3 thousand rubles;
- 6 months from the date the debt exceeded the amount of 3 thousand rubles, provided that the debt was initially less than this amount.
For the most part, the statute of limitations for individuals does not exceed 6 months. This fact is more likely to be called a plus.
Legal entities
In case of non-payment of taxes by a legal entity, a notification is also sent to it demanding repayment of the debt within 20 days. In case of refusal, representatives tax authority have every right to write off necessary funds from the accounts of the organization without a court decision within 2 months.
If there are not enough material resources on the account, the tax service may confiscate the property of the legal entity as payment of the debt within one year. faces.
If this right has been lost, then the inspectorate can file an application with the court demanding payment of the debt within 2 years.
Due to confusion in the legislation, the tax office does not always have time to write off the required amount of money within 2 months. If this happened, then its representatives no longer have the right to dispose of the accounts of a legal entity without a corresponding court decision. Thus, from this moment begins the statute of limitations for organizations.
IP
The statute of limitations for taxes for an individual entrepreneur is not specified in the Tax Code. But based on several articles, several conclusions can be drawn:
- if the debt of an individual entrepreneur relates to income from his commercial activities, then the period is set the same as for individuals;
- if the debt of an individual entrepreneur relates to income from his non-commercial activities, then the period is set the same as for legal entities.
In most cases, individual entrepreneurs are engaged in commercial activities, therefore, in terms of determining the time frame, they are equated with ordinary citizens.