Tax violation act. Order of the Federal Tax Service on approval of the form of the act on the discovery of facts indicating tax offenses - Rossiyskaya Gazeta

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Order of the Federal Tax Service of Russia dated 05/08/2015 N ММВ-7-2/189@ "On approval of the forms of documents provided for by the Tax Code of the Russian Federation and used by tax authorities in the exercise of their powers in relations regulated by legislation on...

Appendix No. 39

to the order of the Federal Tax Service of Russia

dated 05/08/2015 N ММВ-7-2/189@

REQUIREMENTS

TO THE DRAFTING OF AN ACT ON THE DISCOVERY OF FACTS EVIDENTING

ABOUT THE PROVISIONS OF THE TAX CODE OF THE RUSSIAN FEDERATION

TAX OFFENSE (EXCEPT TAX

OFFENSE CASES FOR WHICH ARE UNDER CONSIDERATION

IN THE PROCEDURE ESTABLISHED BY ARTICLE 101 OF THE TAX CODE

RUSSIAN FEDERATION)

1. An act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses, cases of detection of which are considered in the manner established by Article 101 of the Tax Code of the Russian Federation) (hereinafter referred to as the Act) is drawn up on paper or electronically form.

The act is drawn up in Russian. If it is necessary to use abbreviated names and generally accepted abbreviations in the text of the Act, at the first use the corresponding phrase is given in full, while its abbreviated name or abbreviation used further in the text is indicated in brackets. All cost indicators expressed in foreign currency are subject to reflection in the tax audit report with a simultaneous indication, in accordance with the current procedure, of their ruble equivalent at the rate quoted by the Bank of Russia for the corresponding foreign currency in relation to the ruble on the date of the tax offense.

2. The act on paper is drawn up only according to the approved form, filled out by hand or using software and printed on a printer.

The sheets of the Act, if drawn up on paper, and the appendices to it must be numbered, the document with the appendices must be laced and certified by the signature of the head (deputy head) of the tax authority. It is allowed to formulate annexes to the Act in the form of separate links. It is not allowed to fasten the sheets of the Act and appendices, leading to damage to the paper media.

Marks, erasures and other corrections are not allowed in the Act, with the exception of corrections specified and certified by the signatures of the inspector (the head of the inspection group (team)) and the person being inspected (his representative). Errors may not be corrected by correction or other similar means.

The form of the Act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses, cases of detection of which are considered in the manner established by Article 101) is approved by Appendix No. 38 to this order.

full and abbreviated name or last name, first name, patronymic (if any) of the person who committed the tax offense;

taxpayer identification number (hereinafter referred to as TIN). If facts of violations of the legislation on taxes and fees are detected by an organization at the location of its separate division, in addition to the organization’s TIN, the checkpoint of the organization at the location of the separate division is indicated.

information about detected facts of violation of the legislation on taxes and fees - documented facts of violation of the legislation on taxes and fees.

The descriptive part of the Act must contain a systematic presentation of discovered documented facts of violations of the legislation on taxes and fees and circumstances related to these facts that are relevant for making a decision based on the results of consideration of the Act, including identified circumstances that mitigate or aggravate responsibility for committing a tax offense.

a) objectivity and validity. The facts reflected in the Act must be the result of carefully carried out tax control measures, exclude factual inaccuracies, and ensure the completeness of the conclusion about non-compliance with the legislation on taxes and fees of the committed acts (actions or inactions).

For each fact of violation of the legislation on taxes and fees reflected in the Act, the following must be clearly stated:

the essence and circumstances of violation of legislation on taxes and fees;

type of tax offense, method and other circumstances of its commission;

b) completeness and complexity of reflection in the Act of all significant circumstances related to the facts of violations of the legislation on taxes and fees.

Each established fact of violation of legislation on taxes and fees must be described fully and comprehensively. The statement in the Act of the circumstances of the tax offense committed must be based on the results of a study of all documents that may be relevant to the stated fact, as well as on the results of tax control measures.

The Act must ensure that all significant circumstances related to the identified violations of the legislation on taxes and fees are reflected;

c) clarity, conciseness and accessibility of presentation. The wording contained in the Act must exclude the possibility of double interpretation; the presentation must be concise, concise, clear, consistent and, if possible, accessible to persons without special knowledge;

d) systematic presentation. Detected violations of the legislation on taxes and fees should be grouped in the act into sections, paragraphs and subparagraphs in accordance with the nature and types of violations of the legislation on taxes and fees.

Identified facts of homogeneous mass violations of the legislation on taxes and fees can be grouped into statements, tables and other materials attached to the Act (appendices). In this case, the text of the Act provides a statement of the essence of these violations of the legislation on taxes and fees, with reference to specific norms of the Code, and a reference is made to the relevant appendices to the Act. Moreover, these applications must contain a complete list of similar violations of the legislation on taxes and fees. Each of these applications must be signed by the official of the tax authority who drew up the Act, as well as by the person who committed the tax offense (his representative).

3.3. The final part of the Act indicates the conclusions and proposals of the official who discovered facts of violation of the legislation on taxes and fees, to eliminate the identified violations and apply tax sanctions:

conclusions on bringing to tax liability indicating the paragraph and article of the Code, the elements of a tax offense and the fine provided for by the Code (for reference);

Article 100 of the Tax Code - regulates tax control over on-site and desk audits; Art. 101.4 of the Tax Code - regulates tax control over OTHER tax offenses. QUESTION The enterprise received a report on OTHER tax offenses under Article 101.4 with reference to evidence on THESE OTHER offenses - evidence OFFICIAL RECORDS of the FIELD INSPECTIONS department, IS IT LAWFUL for not presenting THESE OFFICIAL RECORDS to the taxpayer, and can THEY be evidence of aNOTHER tax offense.????

The tax audit report regarding other tax offenses must be presented along with the attachments. Facts indicating an offense must be documented. The act should not contain subjective assumptions that are not based on sufficient evidence. In each specific case, the evidence is assessed separately; there is no specific list of documents that can confirm the offense; either a higher tax authority or a court can evaluate the evidence used by the tax authority.

The rationale for this position is given below in the materials of the Glavbukh System

1. Order of the Federal Tax Service of Russia dated December 13, 2006 No. SAE-3-06/860@ “On approval of the form of an act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (except for tax offenses provided for in Articles 120, 122, 123) , and requirements for...”

2. If facts of violations of the legislation on taxes and fees are discovered, an official of the tax authority must draw up in the prescribed form an Act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses provided for by , , ) (hereinafter referred to as the Act) .

3. The Act must indicate documented facts of violation of the legislation on taxes and fees, as well as the conclusions and proposals of the official who discovered the facts of violation of the legislation on taxes and fees to eliminate the identified violations and apply sanctions for tax offenses. *

4. The act must be drawn up on paper in Russian and have continuous page numbering. The Act is accompanied by copies of documents (if any) confirming the facts of violation of the legislation on taxes and fees reflected in the Act, protocols of interrogation of witnesses, as well as other materials relevant for making a correct and informed decision based on the results of consideration of the Act.

Blots, erasures and other corrections are not allowed in the Act, with the exception of corrections agreed upon and certified by the signatures of the persons signing the act.

All cost indicators expressed in foreign currency are subject to reflection in the Act with a simultaneous indication, in accordance with the current procedure, of their ruble equivalent at the rate quoted by the Bank of Russia for the corresponding foreign currency in relation to the ruble.

If it is necessary to use abbreviated names and abbreviations in the text of the Act, upon first use, the corresponding phrase is given in full, while its abbreviated name or abbreviation used further in the text is indicated in brackets.

5. The act is drawn up in two copies, one of which remains in storage with the tax authority, the other is handed over to the person who committed the tax offense (his representative).

If the tax authority identifies circumstances that suggest a violation of the legislation on taxes and fees, containing signs of a crime, the Act is drawn up in triplicate. In this case, the third copy of the act is attached to the materials sent to the internal affairs bodies to resolve the issue of initiating a criminal case in the manner prescribed by paragraph 3 of Article 32 of the Code.

7. The act must consist of three parts: introductory, descriptive and final.

7.1. The introductory part of the Act must contain:

1) Act number (assigned upon its registration with the tax authority);

2) name of the place where the Act was drawn up;

3) date of the Act. The specified date means the date of drawing up the Act by an official of the tax authority;

4) last name, first name, patronymic of the official of the tax authority who drew up the Act, his position and class rank (if any), indicating the name of the tax authority;

Proposals to eliminate identified violations of legislation on taxes and fees. These proposals must contain a list of specific measures aimed at eliminating and suppressing detected violations of the legislation on taxes and fees;

Indication of the number of sheets of appendices to the Act.

8. The act is signed by the official of the tax authority who compiled it and the person who committed the tax offense. The following entry is made regarding the refusal of the person who committed the tax offense to sign the Report:

refused to sign the Act”, certified by the signature of a tax authority official indicating the date.

The act is handed over to the person who committed the tax offense (his representative) against a receipt or transferred in another way indicating the date of its receipt. Before being handed over to the person who committed the tax offense (his representative), the Act is subject to registration with the tax authority in a special journal, the pages of which must be numbered, laced and sealed by the tax authority.

Upon delivery of the Act, the following entry is made on the last page of the copy of the Act remaining in the custody of the tax authority:

"A copy of the Act with attachments on

sheets received" signed by the person who committed the tax offense (his representative), indicating his last name and initials, as well as the date of delivery of the act. *

If a person who has committed a tax offense evades receiving the Report, the tax authority official makes a note in the Report:

evaded receiving the Certificate”, certified by the signature of a tax authority official, indicating the date.

After marking the evasion of receiving the Certificate, the Certificate is sent to the person who committed the tax offense by registered mail.

Sincerely,

Irina Nikolina, expert of the BSS "System Glavbukh".

Answer approved by Alexander Rodionov,

Deputy Head of the BSS Hotline "System Glavbukh".

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MAKING DECISIONS ON THE RESULTS OF TAX CONTROL ACTIVITIES OTHER THAN TAX INSPECTIONS (UNDER ART. 101.4 of the Tax Code of the Russian Federation)

1. DELIVERY (DIRECTION) OF THE ACT ON DETECTION OF TAX OFFENSE FACTS (EXCEPT FOR THOSE PROVIDED BY ARTICLES 120, 122, 123 of the Tax Code of the Russian Federation)

1.1. Within what period must the act of discovery of tax offenses be served (with the exception of those provided for in Articles 120, 122, 123 of the Tax Code of the Russian Federation) (clause 4 of Article 101.4 of the Tax Code of the Russian Federation)?

1.2. Within what period should an act on the discovery of tax offenses be sent by mail (except for those provided for in Articles 120, 122, 123 of the Tax Code of the Russian Federation) if the person who committed the offense evades receiving it (clause 4 of Article 101.4 of the Tax Code of the Russian Federation)?

1.1. Within what period must the act of discovery of tax offenses be served (except for those provided for in Articles 120, 122, 123 of the Tax Code of the Russian Federation) (clause 4 of Article 101.4 of the Tax Code of the Russian Federation)?

However, the Tax Code of the Russian Federation does not specify the period during which the act on the discovery of tax offenses must be served on the person who committed the offense.

There is no official position.

The Plenum of the Supreme Arbitration Court of the Russian Federation, in paragraph 28 of Resolution No. 57 of July 30, 2013, indicated the following. Since Art. 101.4 of the Tax Code of the Russian Federation does not provide for a period for delivery to the person in respect of whom an act on the discovery of facts of tax offenses has been drawn up, then in relation to clause 5 of Art. 100 of the Tax Code of the Russian Federation, it should be assumed that such an act must be served within five days from the date of its preparation.

See documents for details

Position 1. An act on the discovery of facts of tax offenses (except for those provided for in Articles 120, 122, 123 of the Tax Code of the Russian Federation) must be delivered to the person in respect of whom it was drawn up within five days from the date of drawing up

The Plenum of the Supreme Arbitration Court of the Russian Federation noted: Art. 101.4 of the Tax Code of the Russian Federation does not provide for a deadline for delivering a report on the discovery of tax violations, as well as a copy of the decision made based on the results of consideration of materials from other tax control measures.

The court indicated that in relation to paragraph 5 of Art. 100 and paragraph 9 of Art. 101 of the Tax Code of the Russian Federation, it should be assumed that the specified act and decision must be served on the relevant person within five days from the date of its preparation.

Position 2. The deadline for delivering the act of discovery of tax offenses (except for those provided for in Articles 120, 122, 123 of the Tax Code of the Russian Federation) has not been established

Article: Bringing the taxpayer to responsibility under Art. 101.4 of the Tax Code of the Russian Federation (Pantyushov O.V.) (“Advocate”, 2013, No. 2)

Contains similar conclusions:

Article: The procedure for bringing to tax liability in accordance with Art. 101.4 Tax Code of the Russian Federation (Pantyushov O.V.) (“Taxes” (newspaper), 2010, No. 18)

Thematic issue: New rules for conducting inspections, collecting fines, paying taxes (Zuykova L.P.) (“Economic and Legal Bulletin”, 2009, No. 10)

According to paragraph 1 of Art. 101.4 of the Tax Code of the Russian Federation, upon discovery of a violation of tax legislation, liability for which is established by the Tax Code of the Russian Federation (with the exception of offenses, cases of detection of which are considered in the manner established by Article 101 of the Tax Code of the Russian Federation), the inspection official must, within 10 days from the date of discovery of the violation draw up an act in the prescribed form (hereinafter referred to as the act on the discovery of tax violations).

The act is handed to the person who committed the offense against a receipt or transmitted in another way indicating the date of its receipt. If the named person evades receiving the act, a corresponding note is made in the act and it is sent to the named person by registered mail. If the specified act is sent by registered mail, the date of delivery of the act is considered to be the sixth day counting from the date of its dispatch (clause 4 of article 101.4 of the Tax Code of the Russian Federation).

However, the Tax Code of the Russian Federation does not specify the period within which the report on the discovery of tax offenses must be sent by mail if it is impossible to hand it over to the person who committed the offense.

There is no official position.

The Plenum of the Supreme Arbitration Court of the Russian Federation, in paragraph 29 of Resolution No. 57 of July 30, 2013, indicated the following.

According to paragraph 4 of Art. 101.4 of the Tax Code of the Russian Federation, if it is impossible to deliver to the relevant persons an act on the discovery of facts of tax offenses, this act is sent by registered mail. Since this norm does not establish a special period for sending such acts, it should be assumed that these actions must be performed by the inspection within 5 days from the date of drawing up the act.

See documents for details

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” (clause 29)

Since clause 4 of Art. 101.4 does not establish a special deadline for sending a report on the discovery of tax offenses by mail if it is impossible to deliver it; these actions must be performed by the inspectorate within 5 days from the date of drawing up the report.

2. NOTICE OF REVIEW OF MATERIALS

2.1. Is a taxpayer considered to have been notified of the consideration of materials of tax control measures if the notification is sent by mail without an inventory of the contents (clauses 4, 7, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

2.2. Is a taxpayer considered to have been notified of the consideration of materials of tax control measures if the notification was sent by mail, but the inspection, when making a decision, was not convinced that it was received by the taxpayer (clauses 4, 7, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

2.3. Is a taxpayer considered to have been notified of the consideration of materials of tax control measures if the date is indicated in the notification, but the time of consideration is not indicated (clauses 7, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

Essential conditions for the procedure for reviewing materials of tax control measures include ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the review of materials and provide explanations (clause 12 of Article 101.4 of the Tax Code of the Russian Federation).

The Tax Code of the Russian Federation does not clarify whether the fact that a notification is sent by mail without an inventory of the contents can be considered a violation of the procedure for considering materials of tax control measures.

There is no official position.

There are court decisions according to which postal receipts are not evidence of proper notification to the taxpayer, since they do not confirm which document was sent.

See documents for details

The court found that there was no inventory confirming the sending by mail of a notification about the consideration of materials of tax control measures. This served as one of the grounds for invalidating the inspectorate's decision.

Resolution of the Federal Antimonopoly Service of the Moscow District dated July 3, 2009 N KA-A40/4792-09 in case N A40-78154/08-116-266

The court did not accept postal receipts as evidence, since their content does not indicate that the company was sent a notice about the consideration of materials of tax control measures. Since there is no evidence of delivery of the notice to the taxpayer, the inspection decision was declared invalid as made with significant violations.

The court did not accept as evidence the list for sending registered mail, since it does not follow from it that a notification was sent to the taxpayer. The letter was returned to the inspection after the expiration of the storage period, but it did not use other methods of notification, although it knew the company's telephone number. The decision of the tax authority was declared invalid as it was made with significant violations.

In accordance with paragraph 4 of Art. 101.4 of the Tax Code of the Russian Federation, an act on the identification of an offense is handed over to the person who committed it against a receipt or transmitted in another way indicating the date of receipt of the document. If the act is sent by registered mail, the date of its delivery is the sixth day counting from the date of sending. According to paragraph 7 of Art. 101.4 of the Tax Code of the Russian Federation, the inspectorate notifies the taxpayer in advance of the time and place of consideration of the act.

The essential conditions for the procedure for considering tax control materials include ensuring that the person in respect of whom the act was drawn up can participate in the consideration of the materials and provide explanations (clause 12 of Article 101.4 of the Tax Code of the Russian Federation).

The Tax Code of the Russian Federation does not explain whether the fact that the notification was sent by mail, but the inspectorate was not convinced of its actual receipt, can be considered a violation of the procedure for considering materials of tax control measures.

There is no official position.

There are court decisions according to which the requirement to ensure the opportunity to participate in the consideration of materials of tax control measures is not fulfilled if the decision is made in the absence of information about the actual notification of the taxpayer.

See documents for details

Resolution of the Federal Antimonopoly Service of the Ural District dated May 12, 2009 N F09-2783/09-C3 in case N A60-35186/2008-C8

The court found that the notice of consideration of materials of tax control measures, sent by registered mail, was returned to the inspectorate after the decision was made. Since, when making the decision, the inspection did not establish the fact of proper notification of the taxpayer, its decision was declared invalid as made with a significant violation of the procedure for considering the materials.

Resolution of the Federal Antimonopoly Service of the Central District dated 09.09.2009 in case No. A62-1280/2009

The court found that the notice of consideration of materials of tax control measures, sent by registered mail, was returned to the inspectorate before a decision was made. Since the inspectorate did not take other measures to notify the taxpayer, although it had his telephone number, the decision was declared invalid as made with a significant violation of the procedure for considering materials.

According to paragraph 7 of Art. 101.4 of the Tax Code of the Russian Federation, the inspectorate notifies the taxpayer in advance about the time and place of consideration of the act. Essential conditions for the procedure for reviewing materials of tax control measures include ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the review of materials and provide explanations (clause 12 of Article 101.4 of the Tax Code of the Russian Federation).

The Tax Code of the Russian Federation does not explain whether the fact that the notice reflects the date of consideration, but does not indicate the time, can be considered a violation of the procedure for considering materials of tax control measures.

There is no official position.

There is a court decision according to which indicating only the date of consideration of materials of tax control measures is a significant violation, entailing the invalidation of the inspector’s decision.

See documents for details

Resolution of the Federal Antimonopoly Service of the Ural District dated February 11, 2009 N F09-327/09-C3 in case N A50-10157/08

The court found that the act sent to the taxpayer reflected the date of consideration of the audit materials, but did not indicate the time. Since this is a significant violation of the procedure for considering materials from tax control measures, the inspectorate’s decision was declared invalid.

3. PROCEDURE FOR REVIEWING MATERIALS

TAX CONTROL EVENTS

3.1. Is a decision subject to cancellation if it was made before the deadline for submitting objections to the act had expired (clauses 4, 5, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

3.2. Is a decision subject to cancellation if the consideration of materials from tax control measures took place on one day, and the decision was made on another (clauses 7, 8, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

According to paragraph 5 of Art. 101.4 of the Tax Code of the Russian Federation, a person who has committed a tax offense has the right, if he disagrees with the facts set out in the act, to submit his written objections. From 08/24/2013 this should be done within a month from the date of receipt of the act (until 08/24/2013 – 10 days).

In accordance with Part 7 of Art. 6 of Federal Law No. 248-FZ of July 23, 2013, if the period established by clause 5 of Art. 101.4 of the Tax Code of the Russian Federation (as amended in force on August 24, 2013) was not completed before August 24, 2013, then this period is calculated in the manner in force after August 24, 2013.

The Federal Tax Service of Russia, in Letter No. AS-4-2/14794 dated August 15, 2013, explained the procedure for applying these transitional provisions. It was noted that for inspection reports handed over from July 24, 2013, written objections can be submitted within a month from the date of receipt of the report.

According to paragraph 12 of Art. 101.4 of the Tax Code of the Russian Federation, violation of the essential conditions of the procedure for considering materials of tax control measures is grounds for canceling the decision of the inspectorate. Other violations of the procedure for considering materials also serve as grounds for canceling the decision.

The question arises: is it a fundamental violation to make a decision before the deadline for filing objections has expired?

There is no official position.

There are judicial acts according to which the inspection’s adoption of a decision before the expiration of the deadline for the taxpayer to submit objections is grounds for canceling such a decision.

See documents for details

Resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 22, 2010 in case No. A32-15610/2009-63/193 (Determination of the Supreme Arbitration Court of the Russian Federation dated September 14, 2010 No. VAS-12271/10 denied the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation)

The court found that the inspection made a decision earlier than the deadline after which the report sent by registered mail is considered received. This was one of the grounds for canceling the decision as made in violation of the essential conditions of the procedure for considering tax control materials.

Resolution of the Federal Antimonopoly Service of the Ural District dated November 12, 2008 N F09-7761/08-C3 in case N A76-180/08

The court found that the inspection made a decision earlier than the deadline after which the report sent by registered mail is considered received. In fact, the notice was received two days after it was sent. On this basis, the decision was declared invalid as it was made in violation of the essential conditions of the procedure for considering tax control materials.

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 22, 2009 in case No. A56-60459/2008

The court found that the decision by the inspectorate was made before the expiration of 10 working days from the date of actual receipt by the taxpayer of the notification act sent by registered mail. On this basis, the decision was declared invalid as it was made in violation of the essential conditions of the procedure for considering tax control materials.

According to paragraph 7 of Art. 101.4 of the Tax Code of the Russian Federation, the act is considered in the presence of the taxpayer. Moreover, the taxpayer must be notified in advance of the time and place of consideration of tax control materials. During the consideration of materials, the head (deputy head) of the tax authority establishes the grounds and circumstances of the offense charged to the taxpayer.

At the same time, by virtue of clause 8 of the same article, based on the results of consideration of the act and the documents and materials attached to it, the head of the inspection (his deputy) makes an appropriate decision.

The question arises: should the decision be made on the day of consideration of the tax control materials and is the issuance of a decision not on the day of consideration of the tax control materials grounds for canceling such a decision?

There are two points of view on this issue.

There is no official position.

There are judicial acts according to which making a decision not on the day of consideration of tax control materials without an invitation from the taxpayer is a violation of the essential conditions of the procedure for considering these materials.

At the same time, there are judicial acts according to which the issuance of a decision not on the day of consideration of tax control materials is not grounds for invalidating such a decision.

See documents for details

Position 1. Making a decision not on the day of consideration of tax control materials without an invitation from the taxpayer is grounds for declaring this decision invalid

Resolution of the Federal Antimonopoly Service of the Central District dated October 23, 2008 in case No. A36-686/2008

The court found that the tax authority made a decision not on the day of consideration of the tax control materials, but later. Since no decision was made on the day of consideration of the materials, the procedure for considering these materials was not completed. In the absence of evidence that the company was notified of the consideration of the materials on the day the decision was actually made, the court made the following conclusion: the decision was made in violation of the essential conditions of the procedure for considering the specified materials. This was one of the grounds for invalidating the inspectorate's decision.

Contains similar conclusions:

Resolution of the Federal Antimonopoly Service of the Ural District dated December 26, 2008 N F09-9933/08-C3 in case N A50-776/08

Resolution of the Federal Antimonopoly Service of the North-Western District dated May 27, 2009 in case No. A05-11101/2008

The court found that the inspection made a decision on a date other than the one scheduled for consideration of the tax control materials. He indicated that since the taxpayer was not notified of the change in the date for consideration of the materials, the inspector's decision is invalid.

Contains similar conclusions:

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 24, 2009 in case No. A56-60473/2008

Resolution of the Federal Antimonopoly Service of the Ural District dated January 22, 2009 N F09-10426/08-C3 in case N A50-10156/08

Resolution of the Federal Antimonopoly Service of the Ural District dated November 12, 2008 N F09-7761/08-C3 in case N A76-180/08

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 31, 2009 in case No. A56-60438/2008

The court found that the inspectorate made a decision not on the day on which the consideration of the tax control materials was scheduled, but later. The court took into account the lack of evidence of consideration of objections on the appointed day and notice of their consideration on another day and declared the decision invalid.

Contains similar conclusions:

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 24, 2009 in case No. A56-60430/2008

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 20, 2009 in case No. A56-60424/2008

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 2, 2009 in case No. A56-60457/2008

Position 2. Making a decision not on the day of consideration of tax control materials without an invitation from the taxpayer is not grounds for declaring the decision invalid

Resolution of the Federal Antimonopoly Service of the West Siberian District dated January 28, 2013 in case No. A27-12514/2012 (Determination of the Supreme Arbitration Court of the Russian Federation dated April 9, 2013 No. VAS-3382/13 denied the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation)

According to the taxpayer, the inspection did not provide him with the opportunity to participate in the process of reviewing the materials, since the review of the act and other materials took place with the participation of his representative on one day, and the decision was made on another.

The court found that after reviewing the act and other materials, the organization did not submit additional documents to the tax authority and the inspection did not examine it on the day the decision was made. The FAS indicated that the difference in the dates of consideration of materials and drawing up (formalization) of the decision is not a significant violation of the procedure for bringing to responsibility and does not entail the unconditional cancellation of the decision.

Resolution of the Federal Antimonopoly Service of the West Siberian District dated January 22, 2013 in case No. A27-12513/2012

The court indicated that the adoption (formulation) of a decision not on the day of consideration of the tax control materials and without the participation of the taxpayer is not a significant violation of the procedure for bringing to responsibility and does not entail the unconditional cancellation of the decision made by the inspection.

Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 20, 2013 in case No. A61-571/2012 (Determination of the Supreme Arbitration Court of the Russian Federation dated September 16, 2013 No. VAS-12499/13 denied the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation)

The court indicated that from the provisions of Art. 101.4 of the Tax Code of the Russian Federation does not mean that the decision must be made on the day of consideration of the audit materials or on another day, but only with notification of the taxpayer about the time and place of the decision. In making this conclusion, the court took into account the position expressed in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2009 No. 14645/08.

Contains similar conclusions:

Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 02/04/2010 in case No. A32-1903/2009-30/5-51/275

Resolution of the Federal Antimonopoly Service of the Ural District dated October 20, 2009 N F09-8166/09-C3 in case N A50-3179/2009

The court found that the tax authority’s report and other materials were considered taking into account the taxpayer’s objections. The court indicated that from the content of Art. 101.4 of the Tax Code of the Russian Federation does not mean that the decision must be made on the day of consideration of tax control materials or in the presence of the taxpayer. Making a decision on another day does not constitute a violation by the inspectorate of the essential conditions of the procedure for considering tax control materials.

Contains similar conclusions:

Resolution of the Federal Antimonopoly Service of the Ural District dated 06/09/2009 N F09-3786/09-C3 in case N A50-17216/2008-A5

Resolution of the Federal Antimonopoly Service of the Ural District dated 06/09/2009 N F09-3782/09-C3 in case N A50-17217/2008-A5

Resolution of the Federal Antimonopoly Service of the Ural District dated June 2, 2009 N F09-3478/09-C3 in case N A50-17218/2008

Resolution of the Federal Antimonopoly Service of the Central District dated October 15, 2008 in case No. A48-2437/08-15

TAX CONTROL EVENTS

4.1. Is a decision subject to cancellation if it does not contain the results of consideration of the taxpayer’s objections (clauses 9, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

4.2. Is a decision subject to cancellation if it was signed by an inspectorate official who did not take part in the consideration of materials of tax control measures (clauses 8, 12 of Article 101.4 of the Tax Code of the Russian Federation)? >>>

According to paragraph 9 of Art. 101.4 of the Tax Code of the Russian Federation, the decision to hold a person accountable also sets out the taxpayer’s arguments in his own defense and the results of their verification.

In accordance with paragraph 12 of Art. 101.4 of the Tax Code of the Russian Federation, violation of the essential conditions of the procedure for considering materials of tax control measures is grounds for canceling the decision of the inspectorate. Other violations of the procedure for considering materials also serve as grounds for canceling the decision.

The Tax Code of the Russian Federation does not clarify whether the absence in the inspection decision of the results of consideration of the taxpayer’s objections is grounds for canceling this decision.

There is no official position.

There is a judicial act according to which the absence of the results of consideration of the taxpayer’s objections in the decision serves as grounds for canceling the decision.

See documents for details

Resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 15, 2009 N F03-6774/2009 in case N A51-389/2009

The court indicated that one of the grounds for invalidating the inspectorate’s decision was the failure to reflect in the decision the results of consideration of the taxpayer’s objections.

According to paragraph 8 of Art. 101.4 of the Tax Code of the Russian Federation, based on the results of consideration of the act and the documents and materials attached to it, the head of the inspection (his deputy) makes a decision. The basis for its cancellation is failure to comply with the procedure for considering materials (clause 12 of Article 101.4 of the Tax Code of the Russian Federation).

The Tax Code of the Russian Federation does not clarify whether a decision can be made by an official who did not participate in the consideration of materials of tax control measures and objections of the taxpayer.

There are two points of view on this issue.

There is no official position.

There is a court decision according to which the adoption of a decision by an official who did not consider the materials of tax control measures is grounds for canceling such a decision.

At the same time, there is a judicial act, according to which the consideration of the act and the adoption of a decision by different officials are not grounds for canceling the decision.

See documents for details

Position 1. A decision made by a person who has not reviewed tax control materials is grounds for canceling the decision

Resolution of the Federal Antimonopoly Service of the Central District dated October 15, 2008 in case No. A48-2437/08-15

The inspectorate's decision was declared invalid because it was signed by an official who did not review the materials of tax control measures.

Position 2. A decision made by a person who has not reviewed tax control materials is not grounds for canceling the decision

Resolution of the Federal Antimonopoly Service of the Volga District dated September 27, 2011 in case No. A06-7317/2010

The court indicated that the consideration of the act and the adoption of a decision by different persons cannot lead to the invalidity of the decision. The court justified its position by the fact that the decision to prosecute was made by an authorized official - a manager, whose duties during vacation were temporarily performed by another person.

5. SERVICE OF THE DECISION,

RESULTS OF THE REVIEW OF THE MATERIALS

OTHER TAX CONTROL EVENTS

5.1. Within what period should a decision made based on the results of consideration of materials of other tax control measures be handed over (clause 4 of article 31, article 101.4 of the Tax Code of the Russian Federation)?

According to Art. 100.1 of the Tax Code of the Russian Federation, cases of violations identified during other tax control activities (with the exception of those provided for in Articles 120, 122 and 123 of the Tax Code of the Russian Federation) are considered in the manner established by Art. 101.4 Tax Code of the Russian Federation.

If a violation of tax legislation is detected (with the exception of offenses, cases of which are considered in the manner established by Article 101 of the Tax Code of the Russian Federation), the inspection must draw up a corresponding act within 10 days from the date of its discovery (clause 1 of Article 101.4 of the Tax Code of the Russian Federation). Based on the results of consideration of the act and the documents attached to it, the tax authority makes a decision to bring or refuse to bring to responsibility (clause 8 of Article 101.4 of the Tax Code of the Russian Federation).

Until August 24, 2013, clause 11 of Art. 101.4 of the Tax Code of the Russian Federation, which provided that a copy of the said decision is handed over to the relevant person against a receipt or transferred in another way indicating the date of receipt. If the person failed to receive a copy of the decision, it was sent by registered mail and was deemed received six days after the date of mailing.

On August 24, 2013, a new version of clause 4 of Art. 31 of the Tax Code of the Russian Federation, according to which documents used by the inspectorate in the exercise of its powers in relations regulated by the legislation on taxes and fees can be handed over against receipt, sent by registered mail or submitted in electronic form, if the procedure for their transfer is not provided for by the Tax Code of the Russian Federation .

The Tax Code of the Russian Federation does not specify the deadline for delivering a decision made based on the results of consideration of materials of other tax control measures to the interested party.

There are two points of view on this issue.

There is no official position.

The Plenum of the Supreme Arbitration Court of the Russian Federation, in paragraph 28 of Resolution No. 57 of July 30, 2013, stated the following conclusion. In relation to clause 9 of Art. 101 of the Tax Code of the Russian Federation, it must be assumed that the decision in question must be served within five days from the date of adoption.

See documents for details

Position 1. A decision made based on the results of consideration of materials from other tax control measures must be served within five days from the date of adoption

The position of the Supreme Arbitration Court of the Russian Federation is as follows. Since Art. 101.4 of the Tax Code of the Russian Federation does not provide for a time limit for delivery of a decision made based on the results of consideration of materials of other tax control measures in relation to clause 9 of Art. 101 of the Tax Code of the Russian Federation, it must be assumed that it must be served within five days from the date of acceptance.

Position 2. The deadline for delivery of a decision made based on the results of consideration of materials from other tax control measures has not been established.

Article: Bringing the taxpayer to responsibility under Article 101.4 of the Tax Code of the Russian Federation (Pantyushov O.V.) (“Lawyer”, 2013, No. 2)

Contains similar conclusions:

Thematic issue: Tax audits - 2011 (Zuykova L.P.) (“Economic and Legal Bulletin”, 2011, N 6)

Interdistrict Inspectorate of the Federal Tax Service

services N___ by ______________________________

(name, location)

from:_______________________________________

___________________________________________

(name, OGRN, TIN, location)

according to the act dated "____"____________ 201___ N______

on detection of tax offenses

Officials of the Interdistrict Inspectorate of the Federal Tax Service

an act dated "____"______________ 20__ was drawn up. N____about the discovery of facts,

testifying to the tax provisions provided for by the Tax Code of the Russian Federation

As stated in the act, ______________________________ (hereinafter also -

taxpayer) has committed actions that contain signs of tax

the offense provided for in article _____________________ part one

Tax Code of the Russian Federation, in connection with which inspectors are asked to involve

taxpayer to be held accountable for carrying out the specified tax

offenses.

A copy of the inspection report was handed over to the taxpayer's representative

"__"_________ 201___

The taxpayer does not agree with the facts stated in the act, as well as with

conclusions and proposals of a tax authority official, in connection with which

on the basis of paragraph 5 of article 101.4 of part one of the Tax Code of the Russian Federation

presents its objections to the act.

Registration No. 8822

In accordance with paragraph 3 of Article 1014 of the Tax Code of the Russian Federation (Collection of Legislation of the Russian Federation, 1998, No. 31, Article 3824; 2006, No. 31 (Part 1), Article 3436), I order:

1. Approve:

1.1. The form of the Act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses provided for in Articles 120, 122, 123), in accordance with Appendix 1 to this order;

1.2. Requirements for drawing up an Act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses provided for in Articles 120, 122, 123), in accordance with Appendix 2 to this order.

2. The departments of the Federal Tax Service for the constituent entities of the Russian Federation will inform lower tax authorities of this order and ensure its application.

3. Entrust control over the execution of this order to the Deputy Head of the Federal Tax Service M.P. Mokretsova.

Head of the Federal
tax service
A. Serdyukov

Appendix 2

Requirements for drawing up an Act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses provided for in Articles 120,122,123)

1. These Requirements for drawing up an Act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation (with the exception of tax offenses provided for in Articles 120, 122, 123) are applied when discovered during tax control activities (in accordance with Article 1014 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) of facts indicating tax offenses provided for by the Code (with the exception of tax offenses provided for in Articles 120, 122 and 123 of the Code).

4. The act must be drawn up on paper, in Russian and have continuous page numbering. The Act is accompanied by copies of documents (if any) confirming the facts of violation of the legislation on taxes and fees reflected in the Act, protocols of interrogation of witnesses, as well as other materials relevant for making a correct and informed decision based on the results of consideration of the Act.

Blots, erasures and other corrections are not allowed in the Act, with the exception of corrections agreed upon and certified by the signatures of the persons signing the act.

5. The act is drawn up in two copies, one of which remains in storage with the tax authority, the other is handed over to the person who committed the tax offense (his representative).

7. The act must consist of three parts: introductory, descriptive and final.

7.1. The introductory part of the Act must contain:

1) Act number (assigned upon its registration with the tax authority);

2) name of the place where the Act was drawn up;

3) date of the Act. The specified date means the date of drawing up the Act by an official of the tax authority;

4) last name, first name, patronymic of the official of the tax authority who drew up the Act, his position and class rank (if any), indicating the name of the tax authority;

5) an indication of paragraph 1 of Article 1014 of the Code, on the basis of which the tax authority official drew up the Act;

6) full and abbreviated name or last name, first name, patronymic of the person who committed the tax offense. If facts are discovered indicating that an organization has committed tax offenses provided for by the Code at the location of its separate division, in addition to the name of the organization, the full and abbreviated name of the separate division and its location are indicated;

7) address of the location of the organization or place of residence of an individual;

8) taxpayer identification number (TIN) (TIN of an individual, if available). If facts of violations of the legislation on taxes and fees are detected by an organization at the location of its separate division, in addition to the organization’s TIN, the reason for registration code (KPP) is indicated.

7.2. The descriptive part of the Act must contain a systematic presentation of discovered documented facts of violations of the legislation on taxes and fees and circumstances related to these facts that are important for making the right decision based on the results of consideration of the Act, including identified circumstances that mitigate or aggravate responsibility for committing a tax offense.

For each fact of violation of the legislation on taxes and fees reflected in the Act, the following must be clearly stated:

the essence and circumstances of violation of legislation on taxes and fees;

type of tax offense, method and other circumstances of its commission;

The act should not contain subjective assumptions that are not based on sufficient evidence.

b) completeness and complexity of reflection in the Act of all significant circumstances related to the facts of violations of the legislation on taxes and fees.

The Act must ensure that all significant circumstances related to the identified violations of the legislation on taxes and fees are reflected.

c) clarity, conciseness and accessibility of presentation. The wording contained in the Act must exclude the possibility of double interpretation; the presentation should be concise, clear, clear, consistent and, if possible, accessible to persons without special knowledge.

Identified facts of homogeneous mass violations of the legislation on taxes and fees can be grouped into statements, tables and other materials attached to the Act (appendices). In this case, the text of the Act provides a statement of the essence of these violations of the legislation on taxes and fees with reference to specific norms of the Code and a reference is made to the relevant appendices to the Act. Moreover, these applications must contain a complete list of similar violations of the legislation on taxes and fees. Each of these applications must be signed by the official of the tax authority who drew up the Act, as well as by the person who committed the tax offense (his representative).

7.3. The final part of the Act must contain:

conclusions about the presence of signs of tax violations. These conclusions must contain an indication of the type of tax offenses committed with reference to the legal provisions of the Code providing for liability for this type of tax offense;

proposals to collect from the bank untransferred amounts of taxes (fees, penalties and fines) (given if the tax authority identifies the bank’s failure to fulfill the obligations established by Article 60 of the Code);

proposals to eliminate identified violations of legislation on taxes and fees. These proposals must contain a list of specific measures aimed at eliminating and suppressing detected violations of the legislation on taxes and fees;

an indication of the number of sheets of appendices to the Act.

"__________________________________

indicating his position,

refused to sign the Act”, certified by the signature of a tax authority official indicating the date.

Upon delivery of the Act, the following entry is made on the last page of the copy of the Act remaining in the custody of the tax authority:

“I received a copy of the Act with attachments on ___ sheets” signed by the person who committed the tax offense (his representative), indicating his surname and initials, as well as the date of delivery of the act.

If a person who has committed a tax offense evades receiving the Report, the tax authority official makes a note in the Report:

"_______________________________

(Full name of the head of the organization

___________________________________

indicating his position,

FULL NAME. an individual (full name of his representative)

evaded receiving the Certificate”, certified by the signature of a tax authority official indicating the date.

After marking the evasion of receiving the Certificate, the Certificate is sent to the person who committed the tax offense by registered mail.