What is the deadline for paying the fiscal authority's demand for penalties?

1. Penalties are recognized as established by this article sum of money, which the taxpayer must pay in the event of payment of due amounts of taxes, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, later than the deadlines established by the legislation on taxes and fees.

2. The amount of the corresponding penalties is paid in addition to the amounts of tax due for payment and regardless of the application of other measures to ensure the fulfillment of the obligation to pay tax, as well as measures of liability for violation of legislation on taxes and fees.

3. A fine is accrued, unless otherwise provided by this article and Chapters 25 and 26.1 of this Code, for each calendar day of delay in fulfilling the obligation to pay tax, starting from the next day. established by law on taxes and fees from the day of payment of the tax to the day of fulfillment of the obligation to pay it, inclusive. The amount of penalties accrued on arrears cannot exceed the amount of this arrears.

Penalties are not accrued on the amount of arrears that the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with Article 46 of this Code, measures were taken to force the collection of taxes) could not repay due to the fact that, by decision tax authority the property of the taxpayer was seized or, by a court decision, interim measures were taken in the form of suspension of transactions on the accounts of the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with Article 46 of this Code, measures were taken to force the collection of taxes) in the bank, seizure of funds or property of a taxpayer (member of a consolidated group of taxpayers). In this case, penalties are not accrued for the entire period of validity of these circumstances. Filing an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of penalties on the amount of tax payable.

4. The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid tax amount.

Interest rate the penalty is assumed to be equal to:

for individuals, including individual entrepreneurs, - one three hundredth of the refinancing rate in force at that time Central Bank Russian Federation;

for organizations:

for delay in fulfilling the obligation to pay tax for a period of up to 30 calendar days (inclusive) - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;

for delay in fulfilling the obligation to pay tax for a period of more than 30 calendar days - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, valid for the period up to 30 calendar days (inclusive) of such delay, and one hundred and fiftieth of the refinancing rate of the Central Bank of the Russian Federation, valid for the period starting from 31st calendar day of such delay.

4.1. Legislative (representative) body state power subject of the Russian Federation, on whose territory the procedure for determining tax base on property tax for individuals based on cadastral value objects of taxation, has the right to adopt a law establishing that penalties are charged on the amount of arrears on property taxes for individuals:

5. Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

6. Penalties can be collected forcibly at the expense of cash (precious metals) the taxpayer on bank accounts, as well as at the expense of other property of the taxpayer in the manner prescribed by Articles 46 - 48 of this Code.

Forced collection of penalties from organizations and individual entrepreneurs is carried out in the manner provided for in Articles 46 and 47 of this Code, and from individuals who are not individual entrepreneurs - in the manner provided for in Article 48 of this Code.

Forced collection of penalties from organizations and individual entrepreneurs in the cases provided for in subparagraphs 1 - 3 of paragraph 2 of Article 45 of this Code is carried out in judicial procedure.

7. The rules provided for by this article also apply to fees, insurance premiums and apply to payers of fees, payers of insurance premiums, tax agents and a consolidated group of taxpayers.

8. Penalties are not accrued on the amount of arrears that a taxpayer (fee payer, insurance premium payer, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculating, paying a tax (fee, insurance premiums) or on other issues of application of tax legislation and fees given to him or an indefinite number of persons by a financial, tax or other authorized government body (authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to the tax (reporting, settlement) periods for which the arrears arose, regardless of the date of publication of such a document), and (or) in as a result of the taxpayer (fee payer, insurance premium payer, tax agent) fulfilling the motivated opinion of the tax authority sent to him during tax monitoring.

A penalty is the amount of money established by this article that a taxpayer must pay in the event of payment of due amounts of taxes, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, later than the deadlines established by the legislation on taxes and fees.

The amount of the corresponding penalties is paid in addition to the amounts of tax due and regardless of the application of other measures to ensure the fulfillment of the obligation to pay tax, as well as measures of liability for violation of legislation on taxes and fees.

The penalty is accrued, unless otherwise provided by this article and Chapters 25 and 26.1 of this Code, for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day of tax payment following the tax payment established by the legislation on taxes and fees until the day of fulfillment of the obligation to pay it, inclusive. The amount of penalties accrued on arrears cannot exceed the amount of this arrears.

Penalties are not accrued on the amount of arrears that the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with Article 46 of this Code, measures were taken to force the collection of taxes) could not repay due to the fact that, by decision of the tax authority, the taxpayer’s property was seized or by a court decision, interim measures were taken in the form of suspension of transactions on the accounts of the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with Article 46 of this Code, measures were taken to force the collection of taxes) in the bank, seizure of funds or property of the taxpayer (participant of a consolidated group of taxpayers). In this case, penalties are not accrued for the entire period of validity of these circumstances. Filing an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of penalties on the amount of tax payable.

The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid tax amount.

The interest rate of the penalty is assumed to be equal to:

for individuals, including individual entrepreneurs - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;
for organizations:
for delay in fulfilling the obligation to pay tax for a period of up to 30 calendar days (inclusive) - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;
for delay in fulfilling the obligation to pay tax for a period of more than 30 calendar days - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, valid for the period up to 30 calendar days (inclusive) of such delay, and one hundred and fiftieth of the refinancing rate of the Central Bank of the Russian Federation, valid for the period starting from 31st calendar day of such delay.

The legislative (representative) body of state power of a constituent entity of the Russian Federation, in whose territory the procedure for determining the tax base for the property tax of individuals based on the cadastral value of taxable objects is applied, has the right to adopt a law establishing that penalties are charged on the amount of arrears for the property tax of individuals :

1) for the tax period 2015 - starting from May 1, 2017;
2) for the tax period 2016 - starting from July 1, 2018;
3) for the tax period 2017 - starting from July 1, 2019.

Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

Penalties may be collected forcibly from the taxpayer’s funds (precious metals) in bank accounts, as well as from other property of the taxpayer in the manner prescribed by Articles 46 - 48 of this Code.

Forced collection of penalties from organizations and individual entrepreneurs is carried out in the manner prescribed by Articles of this Code, and from individuals who are not individual entrepreneurs - in the manner prescribed by Article 48 of this Code.

Forced collection of penalties from organizations and individual entrepreneurs in the cases provided for in subparagraphs 1 - 3 of paragraph 2 of Article 45 of this Code is carried out in court.

The rules provided for in this article also apply to fees, insurance premiums and apply to fee payers, insurance premium payers, tax agents and a consolidated group of taxpayers.

Penalties are not accrued on the amount of arrears that a taxpayer (fee payer, insurance premium payer, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculating, paying taxes (fees, insurance contributions) or on other issues of application of legislation on taxes and fees , given to him or an indefinite circle of persons by a financial, tax or other authorized government body (an authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to tax (reporting, settlement) periods for which arrears arose, regardless of the date of publication of such a document), and (or) as a result of the taxpayer (fee payer, insurance premium payer, tax agent) fulfilling the motivated opinion of the tax authority sent to him during tax monitoring.

The provision provided for in this paragraph does not apply if the specified written explanations or the reasoned opinion of the tax authority are based on incomplete or unreliable information provided by the taxpayer (payer of the fee, tax agent).

Article 75. Penalty

1. Penalty is the amount of money established by this article that the taxpayer must pay in the event of payment of due amounts of taxes, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, later than those established by the legislation on taxes and fees deadlines.

3. A fine is accrued, unless otherwise provided by this article and Chapters 25 and 26.1 of this Code, for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day following the tax payment established by the legislation on taxes and fees until the day of fulfillment of the obligation to pay it, inclusive. . The amount of penalties accrued on arrears cannot exceed the amount of this arrears.

Penalties are not accrued on the amount of arrears that the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with Article 46 of this Code, measures were taken to force the collection of taxes) could not repay due to the fact that, by decision of the tax authority, the taxpayer’s property was seized or by a court decision, interim measures were taken in the form of suspension of transactions on the accounts of the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with Article 46 of this Code, measures were taken to force the collection of taxes) in the bank, seizure of funds or property of the taxpayer (participant of a consolidated group of taxpayers). In this case, penalties are not accrued for the entire period of validity of these circumstances. Filing an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of penalties on the amount of tax payable.

4. The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid tax amount.

The interest rate of the penalty is assumed to be equal to:

for individuals, including individual entrepreneurs - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;

for organizations:

4.1. The legislative (representative) body of state power of a constituent entity of the Russian Federation, in whose territory the procedure for determining the tax base for the property tax of individuals based on the cadastral value of taxable objects is applied, has the right to adopt a law establishing that penalties are charged on the amount of arrears for the property tax of individuals :

5. Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

6. Penalties may be collected forcibly from the taxpayer’s funds (precious metals) in bank accounts, as well as from other property of the taxpayer in the manner prescribed by Articles 46 - 48 of this Code.

Forced collection of penalties from organizations and individual entrepreneurs in the cases provided for in subparagraphs 1 - 3 of paragraph 2 of Article 45 of this Code is carried out in court.

7. The rules provided for by this article also apply to fees, insurance premiums and apply to payers of fees, payers of insurance premiums, tax agents and a consolidated group of taxpayers.

8. Penalties are not accrued on the amount of arrears that a taxpayer (fee payer, insurance premium payer, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculating, paying a tax (fee, insurance premiums) or on other issues of application of tax legislation and fees given to him or an indefinite number of persons by a financial, tax or other authorized government body (an authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to tax (reporting, settlement) periods for which arrears arose, regardless of the date of publication of such a document), and (or) as a result of the taxpayer (fee payer, insurance premium payer, tax agent) fulfilling the motivated opinion of the tax authority sent to him during tax monitoring.

3. A fine is accrued for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day following the tax payment established by the legislation on taxes and fees, unless otherwise provided by this article and Chapters 25 and 26.1 of this Code.

Penalties are not accrued on the amount of arrears that the taxpayer (a member of a consolidated group of taxpayers against whom measures were taken to force the collection of taxes) could not pay due to the fact that by decision of the tax authority a seizure of the taxpayer’s property was imposed or by a court decision security bonds were taken measures in the form of suspension of transactions on the accounts of the taxpayer (member of the consolidated group of taxpayers, against whom, in accordance with Article 46 of this Code, measures were taken to forcefully collect taxes) in the bank, seizure of funds or property of the taxpayer (member of the consolidated group of taxpayers). In this case, penalties are not accrued for the entire period of validity of these circumstances. Filing an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of penalties on the amount of tax payable.

4. The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid tax amount.

The interest rate of the penalty is assumed to be equal to:

for individuals, including individual entrepreneurs, one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;

for organizations:

5. Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

6. Penalties may be collected forcibly from the taxpayer’s funds in bank accounts, as well as from other property of the taxpayer in the manner prescribed by Articles 46 - 48 of this Code.

Forced collection of penalties from organizations and individual entrepreneurs in the cases provided for in subparagraphs 1-3 of paragraph 2 of Article 45 of this Code is carried out in court.

7. The rules provided for by this article also apply to fees, insurance premiums and apply to payers of fees, payers of insurance premiums, tax agents and a consolidated group of taxpayers.

8. Penalties are not accrued on the amount of arrears that a taxpayer (fee payer, insurance premium payer, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculating, paying a tax (fee, insurance premiums) or on other issues of application of tax legislation and fees given to him or an indefinite number of persons by a financial, tax or other authorized government body (an authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to tax (reporting, settlement) periods for which arrears arose, regardless of the date of publication of such a document), and (or) as a result of the taxpayer (fee payer, insurance premium payer, tax agent) fulfilling the motivated opinion of the tax authority sent to him during tax monitoring.

Commentary to Art. 75 Tax Code of the Russian Federation

According to paragraph 1 of Art. 75 of the Tax Code of the Russian Federation, penalties are recognized as the amount of money established by this article, which the taxpayer must pay in the event of payment of due amounts of taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, later than those established by the legislation on taxes and fees deadlines.

Unlike civil legislation, tax legislation separates the concepts of penalties and fines. Article 330 Civil Code The Russian Federation combines these concepts under the general term “penalty”. At the same time, in civil law, a penalty has a dual character: on the one hand, it is a way to ensure obligations, and on the other, it is one of the measures of liability for violation of obligations.

Tax legislation does not consider penalties as a sanction for committing a tax offense; such sanctions include only fines established by Chapter. 16 and 18 of the Tax Code of the Russian Federation.

According to paragraph 2 of the commented article, penalties are paid regardless of the application of other measures to ensure the obligation to pay a tax or fee, as well as measures of liability for violation of legislation on taxes and fees.

The legislation on taxes and fees does not provide for the possibility of reducing the amount of penalties calculated for late payment of a tax (fee) (Resolution of the Federal Antimonopoly Service of the Far Eastern District of January 22, 2008 No. F03-A73/07-1/6214 in case No. A73-845k A73-5149 /2007-9, Resolution of the Federal Antimonopoly Service of the Moscow District of August 26, 2011 No. KG-A40/9308-11 in case No. A40-33815/10-124-140).

According to paragraph 3 of the commented article, a penalty is accrued for each calendar day of delay in fulfilling the obligation to pay a tax or fee, starting from the day following the tax or fee payment established by the legislation on taxes and fees, unless otherwise provided by Chapter. 25 “Organizational profit tax” of the Tax Code of the Russian Federation and Ch. 26.1 “Taxation system for agricultural producers (Unified Agricultural Tax)” Tax Code of the Russian Federation.

In addition to the fact that penalties are accrued on the amount of unpaid tax (fee), penalties are also accrued on the amount of late advance tax payments.

Thus, based on clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when applying arbitration courts part of the first Tax Code of the Russian Federation" and according to paragraph. 2 p. 3 art. 58 of the Tax Code of the Russian Federation, in the case of payment of advance payments later than the deadlines established by the legislation on taxes and fees, penalties are accrued for the amount of late advance payments in the manner prescribed by Art. 75 of the Tax Code of the Russian Federation.

In this case, the procedure for calculating penalties does not depend on whether the corresponding advance payments are paid during or at the end of the reporting period, or whether they are calculated on the basis of the tax base determined in accordance with Art. Art. 53 and 54 of the Tax Code of the Russian Federation and reflecting real financial results activities of the taxpayer.

Penalties for failure to pay advance tax payments on time are subject to calculation until the date of their actual payment or, in case of non-payment, until the due date for payment of the relevant tax.

If, at the end of the tax period, the amount of the calculated tax turned out to be less than the amount of advance payments due during this tax period, the courts must proceed from the fact that penalties accrued for non-payment of these advance payments are subject to a proportionate reduction.

This procedure should also be applied if the amount of advance tax payments calculated at the end of the reporting period is less than the amount of advance payments payable during this reporting period.

For calculated (reinstated) advance payments for reporting periods and for tax calculated according to tax return for the tax period, penalties must be calculated in accordance with Art. 75 of the Tax Code of the Russian Federation, starting from the day following the day on which the deadline established by the Tax Code of the Russian Federation for payment of advance payments and tax expired (Letter of the Ministry of Finance of Russia dated December 28, 2012 N 01-02-03/03-482 “On the accrual of penalties for tax on the profits of organizations").

It should be taken into account that the tax authority’s request for payment must contain information about the grounds for accruing penalties, the period for which they were accrued, etc. IN otherwise such a requirement will be declared invalid (Resolution of the Federal Antimonopoly Service of the East Siberian District dated February 27, 2008 No. A19-13280/07-24-F02-451/08 in case No. A19-13280/07-24).

Penalties for arrears that the taxpayer has not repaid due to the fact that his bank transactions were suspended or his property was seized are not accrued for the entire period of these circumstances.

The penalty for each day of delay is determined as a percentage of the unpaid amount of tax or fee (clause 4 of Article 75 of the Tax Code of the Russian Federation).

The interest rate of the penalty is assumed to be equal to one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time.

Thus, the calculation of the penalty can be presented as follows:

Unpaid amount Number of calendar days 1/300 valid

tax (fee, days of delay in payment of the rate

Penalty = advance payment x payment obligation x refinancing

on tax) tax (fee, advance Bank of Russia

tax payment)

According to paragraph 6 of Art. 75 of the Tax Code of the Russian Federation, forced collection of penalties from organizations and individual entrepreneurs in cases provided for in paragraphs. 1 - 3 p. 2 tbsp. 45 of the Tax Code of the Russian Federation, is carried out in court.

Let us recall that in paragraph 2 of Art. 45 of the Tax Code of the Russian Federation establishes a provision establishing the judicial procedure for collecting taxes:

from the organization that opened the personal account;

in order to collect arrears that have been owed for more than 3 months by organizations that, in accordance with the civil legislation of the Russian Federation, are dependent (subsidiary) companies (enterprises), from the corresponding main (predominant, participating) companies (enterprises) in cases where to the latter’s bank accounts proceeds are received for the sold goods (work, services) of dependent (subsidiary) companies (enterprises), as well as for organizations that, in accordance with the civil legislation of the Russian Federation, are the main (prevailing, participating) companies (enterprises) from dependent (subsidiary) companies (enterprises) ), when their bank accounts receive proceeds for the goods (work, services) sold by the main (prevailing, participating) companies (enterprises);

from an organization or individual entrepreneur, if their obligation to pay tax is based on a change by the tax authority in the legal qualification of the transaction made by such a taxpayer and the nature of the activity of this taxpayer.

In accordance with paragraph 8 of the commented article, penalties are not charged on the amount of arrears that a taxpayer (fee payer, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculating, paying a tax (fee) or on other issues of application of legislation on taxes and fees given to him or an indefinite number of persons by a financial, tax or other authorized government body (an authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to tax periods, for which arrears arose, regardless of the date of publication of this document).

In this case, the provision provided for in paragraph 8 of Art. 75 of the Tax Code of the Russian Federation, does not apply if the specified written explanations are based on incomplete or unreliable information provided by the taxpayer (payer of the fee, tax agent).

Let us only note that in paragraph 8 of Art. 75 of the Tax Code of the Russian Federation enshrines 3 fundamental provisions:

a penalty is not charged on the amount of arrears that arose as a result of his compliance with written explanations;

the clarification may not be addressed to a specific taxpayer, but to an indefinite number of persons;

The explanation must, in its meaning and content, relate to the tax periods for which the arrears arose, regardless of the date of publication of this document.

Let us note that according to clause 8 of Art. 75 of the Tax Code of the Russian Federation (as amended by Law N 348-FZ, in force from January 1, 2015), penalties are not accrued on the amount of arrears that a taxpayer (payer of the fee, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculation, payment tax (fee) or on other issues of application of legislation on taxes and fees given to him or an indefinite number of persons by a financial, tax or other authorized government body (an authorized official of this body) within his competence (these circumstances are established in the presence of the relevant document of this body, in the meaning and content related to the tax (reporting) periods for which arrears arose, regardless of the date of publication of such a document), and (or) as a result of the taxpayer (payer of the fee, tax agent) fulfilling the motivated opinion of the tax authority sent to him in during tax monitoring.

The above provision does not apply if the specified written explanations, the motivated opinion of the tax authority are based on incomplete or unreliable information provided by the taxpayer (payer of the fee, tax agent) (paragraph 2, paragraph 8, article 75 of the Tax Code of the Russian Federation as amended by Law No. 348- Federal Law).

3. A fine is accrued, unless otherwise provided by this article and Chapters 25 and 26.1 of this Code, for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day following the tax payment established by the legislation on taxes and fees until the day of fulfillment of the obligation to pay it, inclusive. . The amount of penalties accrued on arrears cannot exceed the amount of this arrears.

Penalties are not accrued on the amount of arrears that the taxpayer (a member of a consolidated group of taxpayers against whom, in accordance with an article of this Code, measures were taken to forcibly collect taxes) could not repay due to the fact that, by decision of the tax authority, the property of the taxpayer was seized or by decision of the court, interim measures were taken in the form of suspension of transactions on the accounts of the taxpayer (member of the consolidated group of taxpayers, against whom, in accordance with an article of this Code, measures were taken to force the collection of taxes) in the bank, seizure of funds or property of the taxpayer (participant consolidated group of taxpayers). In this case, penalties are not accrued for the entire period of validity of these circumstances. Filing an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of penalties on the amount of tax payable.

4. The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid tax amount.

The interest rate of the penalty is assumed to be equal to:

for individuals, including individual entrepreneurs - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;

for organizations:

5. Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

6. Penalties may be collected forcibly from the taxpayer’s funds (precious metals) in bank accounts, as well as from other property of the taxpayer in the manner prescribed by articles of this Code.

Forced collection of penalties from organizations and individual entrepreneurs is carried out in the manner prescribed by articles of this Code, and from individuals who are not individual entrepreneurs - in the manner prescribed by article of this Code.

Forced collection of penalties from organizations and individual entrepreneurs in the cases provided for in subparagraphs 1 - 3 of paragraph 2 of article of this Code is carried out in court.

7. The rules provided for by this article also apply to fees, insurance premiums and apply to payers of fees, payers of insurance premiums, tax agents and a consolidated group of taxpayers.

8. Penalties are not accrued on the amount of arrears that a taxpayer (fee payer, insurance premium payer, tax agent) incurred as a result of his compliance with written explanations on the procedure for calculating, paying a tax (fee, insurance premiums) or on other issues of application of tax legislation and fees given to him or an indefinite number of persons by a financial, tax or other authorized government body (an authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to tax (reporting, settlement) periods for which arrears arose, regardless of the date of publication of such a document), and (or) as a result of the taxpayer (fee payer, insurance premium payer, tax agent) fulfilling the motivated opinion of the tax authority sent to him during tax monitoring.

Commentary to Art. 75 Tax Code of the Russian Federation

Penalty (Latin poena - punishment) is a type of penalty applied in cases of delay in fulfilling contractual and other obligations. Most widely used in financial relations in case of delay in taxes and non-tax payments, as well as in settlement relations in case of delay in payment for received inventory items, work performed and services provided. As a general rule, the penalty is set as a percentage of the amount (price) of the overdue obligation and is accrued for each day of delay.

The article under comment is dedicated to legal regulation calculation, payment and collection of penalties. This regulation is mandatory, which is due to the public nature of tax relations. In Article 75 of the Tax Code of the Russian Federation, the legislator did not provide for references to civil legislation, as was the case in Articles 73 (pledge of property) and 74 (surety) of the Code.

1. Paragraph 1 of the commented article provides a definition and analysis of the legal concept of “fine”:

a) a penalty is always a monetary amount. Other types of property cannot act as a penalty (how the latter, in particular, differs from another method of fulfilling the obligation to pay taxes and fees - a pledge, Article 73 of the Tax Code of the Russian Federation); however, some fines provided for in the commented Code, in the order of calculation, resemble the definition of penalties (for example, in paragraph 1 of Article 119 of the Tax Code of the Russian Federation). Tax authorities do not have the right to arbitrarily change the amount of penalties. The penalty is applied to ensure timely completion tax liability, therefore, unlike a fine, which is calculated, as a rule, in a fixed amount, it is of a continuing nature (collected for each subsequent period of delay);

b) a penalty (unlike other methods of security mentioned in Chapter 11 of the Tax Code of the Russian Federation) is paid in all cases of late fulfillment of the obligation to pay taxes. In other words, the conditions for the application of penalties are failure to pay taxes both within the deadlines established by law and when they are postponed to a later date (when a deferment or installment plan for the payment of taxes, a tax or investment tax credit is provided). Since late payment of taxes (fees) is a violation of the tax obligation of taxpayers, fee payers or tax agents (Articles 23, 24 of the Tax Code of the Russian Federation), the penalty serves as a kind of form of liability for violation of this obligation and implies adverse property consequences for the violator. At the same time, a fine in Article 114 of the Tax Code of the Russian Federation is not recognized as a tax sanction. Note that previously the penalty in tax legislation and legal literature was considered as a sanction (a measure of financial responsibility);

c) the amount of the penalty is paid regardless of the use of other methods of ensuring the payment of taxes (pledge, surety, seizure of property, etc.). Rules Art. 75 of this Code also covers the accrual of penalties on tax amounts associated with the movement of goods across the customs border of the Russian Federation.

Looking ahead a little, we think it would be appropriate to indicate that the penalty is paid by the taxpayer, fee payer or tax agent voluntarily and simultaneously with the payment of the tax (fee) or after payment of such amounts in full. The law allows for forced (beyond the will of the taxpayer) collection of penalties due to:

1) the taxpayer’s funds in his bank accounts;

2) other property of the taxpayer in the manner prescribed in the Tax Code (Articles 46 - 48 of the Tax Code of the Russian Federation).

Order forced collection penalties can be indisputable or judicial. In an indisputable manner (based on a unilateral decision of the tax authority), a fine is levied on organizations ( legal entities), and in court - from individuals.

Therefore, the amount of the penalty is paid in addition to the amount of tax or fee (arrears) and regardless of the use of penalties (fines) provided for violation of the legislation on taxes and fees. It should also be noted that a fine may be collected along with the use of other methods of ensuring the fulfillment of the obligation to pay a tax or fee (for example, a pledge of property).

2. Paragraph 2 of the commented article of this Code fixes the ratio of penalties and amounts of tax (fee), as well as measures of liability for tax violations. The ratio is imperatively enshrined in the Law and cannot be arbitrarily changed by the tax authorities. At the same time, the Tax Code is based on the punitive principle, which is explained by the application of the penalty in question in public relations.

a) the mere payment by the taxpayer (tax agent) of the amount owed does not exempt him from transferring penalties;

b) the amounts of penalties are payable:

and in a situation where the fulfillment of the obligation to pay taxes and fees was ensured by other (in addition to penalties) methods specified in Chapter 11 of the Tax Code of the Russian Federation;

and in a situation where a penalty is the only way to ensure payment of taxes;

regardless of whether penalties have been established for untimely fulfillment of tax obligations. At the same time comparative analysis Articles 75 of the Tax Code of the Russian Federation and 114 of the Tax Code of the Russian Federation (dedicated to tax sanctions) allow us to draw a very important conclusion that this Code does not consider penalties as one of the types of liability for tax offenses(the last ones are fines that are applied in accordance with Articles 114 - 129 of the Tax Code of the Russian Federation). “Fine” and “tax sanctions” are essentially different legal concepts.

The procedure for calculating the amount of the penalty is defined in paragraphs 3 - 4 of the commented article.

3. The rules of paragraph 3 of the commented article establish the procedure for calculating penalties. In accordance with them, the penalty is charged:

a) for each calendar day of delay in fulfilling the obligation to pay taxes and fees. This also refers to the situation when the amount of taxes was not paid even in new term(which was established by the authorized body in the manner prescribed by Articles 61 - 67 of the Tax Code of the Russian Federation);

b) the countdown begins from the next day after the day of payment of the tax established by the Tax Code of the Russian Federation. In this case, a penalty is accrued for the entire period of time elapsed from the moment when it was necessary to fulfill the obligation to pay taxes (if the payment deadline had not been postponed) and until the decision to postpone the payment of taxes came into force. If they are not paid by the last day of the changed period, then the penalty is accrued until the taxes are actually paid. In this case, you should take into account:

His property was seized (Article 77 of the Tax Code of the Russian Federation).

On the other hand, filing an application to postpone the tax payment deadline does not suspend the accrual of penalties.

Penalties are not accrued during the entire period of validity of the deferment (installment plan) for taxes, tax credit, investment tax credit, if tax payers (tax agents) have not violated the new tax payment deadlines. A different conclusion would contradict the essence of the institution of “changing the deadlines for paying taxes and fees” and the content of Articles 61 - 68 of the Tax Code of the Russian Federation.

4. The rules of paragraph 4 of the commented article of this Code are important for the correct determination of the amount of the fine. It has been established that:

The penalty for each day of delay (the number of such days is established according to the rules of paragraph 3 of Article 75 of the Tax Code of the Russian Federation) is determined as a percentage of the unpaid tax amount;

As a general rule, the interest rate of the penalty should be equal to 1/300 of the refinancing rate of the Central Bank of the Russian Federation, valid for the entire period of delay. In other words, it is necessary to take into account changes in the mentioned rate that occurred during this period.

The rule that in all cases the amount of penalties cannot exceed the unpaid amount of tax has not been in effect since August 18, 1999, that is, since the entry into force of Law N 154-FZ.

5. The rules of paragraph 5 of Article 75 of the commented Code allow the use of one of two procedures for paying the amount of penalties:

1) simultaneously with the payment of taxes;

2) after taxes are paid (for example, after two or three days).

The amount of penalties cannot be paid until the tax itself has been transferred in full.

The amount of penalties must be paid to the tax agent in full. However, if it is paid in part, it should be noted that no penalty will be charged on the penalty. This would contradict paragraph 1 of Article 75 of the Tax Code of the Russian Federation, which defines the concept of “fine”.

6. Analyzing paragraph 6 of the commented article, we repeat what we said above, namely that:

1) penalties can be recovered from:

taxpayer's funds;

other property of the taxpayer;

2) penalties from taxpayer organizations are collected in an indisputable manner, penalties from individual entrepreneurs - through an arbitration court, from other individuals - by applying to a court of general jurisdiction;

3) extremely important for the correct determination of the amount of penalties accrued before January 1, 1999 and after this date, are the rules of Article 8 of the Federal Law of July 31, 1998 N 147-FZ “On the entry into force of part one Tax Code Russian Federation", which must be followed. The procedure for recalculating the debt of taxpayers (tax agents) for payment of penalties on taxes and fees was approved by Order of the Ministry of Taxes of Russia of September 3, 1999 No. AP-3-09/290.

Judicial practice under Article 75 of the Tax Code of the Russian Federation

Determination of the Constitutional Court of the Russian Federation dated July 18, 2017 N 1719-O

In turn, paragraph 8 of Article of the Tax Code of the Russian Federation establishes that penalties are not charged on the amount of arrears that a taxpayer has incurred as a result of his compliance with written explanations on the procedure for calculating, paying taxes or on other issues of applying the legislation on taxes and fees given to him or to an indefinite number of persons by a financial, tax or other authorized government body (an authorized official of this body) within its competence (these circumstances are established in the presence of a corresponding document of this body, in the meaning and content related to tax (reporting, settlement) periods, according to which arrears arose, regardless of the date of publication of such a document), and (or) as a result of the taxpayer’s compliance with the motivated opinion of the tax authority sent to him during tax monitoring.

Ruling of the Supreme Court of the Russian Federation dated April 11, 2018 N 301-KG17-22967 in case N A79-8152/2016

Guided by the provisions of articles , , , , , , , , , , , of the Tax Code, Federal law dated February 25, 1999 N 39-FZ "On investment activities in the Russian Federation, carried out in the form of capital investments", Federal Law dated December 30, 2004 N 214-FZ "On participation in shared construction apartment buildings and other real estate and on making changes to some legislative acts Russian Federation", taking into account the explanations set out in the resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/30/2013 N "On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation" and dated 05/30/2014 N "On some issues arising in arbitration courts when considering cases related to the collection of value added tax", the courts concluded that the transfer of objects shared construction is not subject to VAT and the company does not have the right to apply the controversial tax deduction.

Ruling of the Supreme Court of the Russian Federation dated April 23, 2018 N 308-KG18-3447 in case N A53-8573/2017

In refusing to satisfy the claim, the courts proceeded from the established circumstances of the case, confirmed by the evidence available in the case, examined in accordance with Article 71 of the Arbitration Procedural Code of the Russian Federation, and were guided by articles of the Tax Code Russian Federation. The courts found that in 2004, individual entrepreneur N.P. Dunaeva was purchased from a company with limited liability"Don" built-in store premises total area 102.3 sq. m at the address: Rostov region, Gukovo, st. K. Marx, 88. This premises was used by the entrepreneur for the purposes of business activities related to the retail sale of household goods. In 2014, this premises was sold by an entrepreneur to an individual, however, the entrepreneur did not fulfill the obligation to declare taxable items, calculate and pay taxes in connection with the sale of property and receive income in this regard.

Ruling of the Supreme Court of the Russian Federation dated April 20, 2018 N 302-KG18-3199 in case N A33-14893/2016

Recognizing the decision of the tax authority in this part as legal and justified, the appellate court was guided by articles , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , paragraph 78 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation." The court proceeded from the circumstances established in the case, confirmed by the available evidence, assessed by it according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation from the standpoint of their admissibility, completeness and reliability, sufficiency and mutual connection.

Ruling of the Supreme Court of the Russian Federation dated May 21, 2018 N 305-KG18-5369 in case N A41-24480/2017

Refusing to satisfy the stated requirement, the courts, having assessed the evidence presented in the case materials, guided by the provisions of articles , , , of the Tax Code, Federal Law of November 29, 2001 N 156-FZ "On investment funds", came to the conclusion that the inspectorate had legal grounds for making the contested decision.

Ruling of the Supreme Court of the Russian Federation dated May 28, 2018 N 304-KG18-5488 in case N A70-7737/2017

Having examined and assessed the evidence presented in the case materials, guided by the provisions of the articles,