"Russian tax courier”, N 19, 2003

According to the Tax Code, the tax is considered paid from the moment the taxpayer presents to the bank payment order if there is a sufficient balance in his account. However, there is an exception to this rule that many are not even aware of.

In the Tax Code, clause 2 of Article 45 is devoted to the moment the taxpayer fulfills the obligation to pay tax. It states that for non-cash payments, the tax is considered paid after the taxpayer presents to the bank an order to pay the appropriate amount if there is a sufficient cash balance in his account. The tax is not considered paid if the bank returned the payment order or the taxpayer himself recalled it. Or if other requirements are presented to the account, which, in accordance with Article 855 Civil Code are executed on a priority basis, and the account balance is not enough to satisfy all requirements.
It would seem that everything is simple: if there is enough money in the account, you submit the payment order to the bank and forget it. But in reality, everything is somewhat more complicated.

One payment is not enough

To understand the problem, you need to do small excursion into history - before the entry into force of part one Tax Code.
At that time, the termination of the obligation to pay tax was stated in paragraph 3 of Article 11 of the Law of the Russian Federation of December 27, 1991 N 2118-1 “On the Fundamentals tax system V Russian Federation”(hereinafter referred to as Law No. 2118-1). According to this paragraph, the duty legal entity upon payment of the tax ceased with the payment of the tax or the abolition of the tax. The wording of this norm did not give a clear answer to the question from what moment the obligation to pay tax is considered fulfilled. The established law enforcement practice has given this norm the following meaning: the taxpayer’s obligation to pay tax ceases only from the moment the corresponding amounts are received into the budget. Thus, the possibility of re-collecting from the taxpayer the amounts of taxes not received into the budget was allowed.
A number of taxpayers appealed to the Constitutional Court of the Russian Federation with a complaint about the violation of the constitutional rights and freedoms of citizens in connection with the application of the provision contained in paragraph 3 of Article 11 of Law No. 2118-1. Having considered the case, the court made a decision in Resolution No. 24-P of October 12, 1998 (hereinafter referred to as Resolution No. 24-P). The provision of paragraph 3 of Article 11 of Law No. 2118-1, taking into account the meaning given to it by established law enforcement practice, was recognized as inconsistent with the Constitution of the Russian Federation.
The court ruled that the obligation of a legal entity to pay tax ceases from the day the credit institution writes off the payment from the payer’s current account, regardless of the time the amounts are credited to the corresponding budgetary or extra-budgetary account. The court also emphasized that the taxpayer is not responsible for the actions of all organizations participating in the multi-stage process of paying and transferring taxes to the budget.
However, later the Constitutional Court had to return to consideration of this issue. The reason was a request from the Ministry of Taxes and Taxes of Russia, which was faced with numerous cases of the use of fraudulent transfer schemes tax payments to the budget through “problem” banks. The Ministry raised the question whether in this case the tax can be considered paid.
The court stated its position in Determination No. 138-O dated July 25, 2001 (hereinafter referred to as Determination No. 138-O). In accordance with this document, the conclusions contained in Resolution No. 24-P apply only to bona fide taxpayers. This presupposes that tax authorities and other executive bodies are obliged to monitor the fulfillment of tax obligations and verify the integrity of taxpayers and banks. And if bad faith by taxpayers is revealed, ensure the protection of the interests of the state, including using judicial protection mechanisms.
Thus, the provision that the taxpayer’s obligation to pay tax ceases from the day it is written off from the current account (and from January 1, 1999 - from the moment a payment order is presented to the bank if there is a sufficient cash balance in the account) should be applied taking into account the Definition N 138-O. In other words, it applies only to bona fide taxpayers.
Who is a bona fide taxpayer?
The criteria for good faith are not specified either in Definition No. 138-O or in tax legislation. Developed certain criteria judicial practice. But they turned out to be different not only within different courts, but even within the same court.
The Ministry of Taxes of Russia undertook to summarize the judicial practice, which is the subject of Letter dated August 30, 2001 N ШС-6-14/668@ “On the fulfillment of the obligation to pay taxes (fees).” In it, the ministry explained that arbitration courts regard the following circumstances as evidence indicating the absence of a real possibility of tax receipts in the budget and bad faith actions of taxpayers.
1. Lack of a real cash balance sufficient to fulfill the obligation to pay tax in the taxpayer’s bank account and in the correspondent account of the “problem” bank itself.
As evidence of the absence of funds in the bank's correspondent account, arbitration courts accept statements from the State Administration of the Bank of Russia on the bank's correspondent account as of the date of “transfer” by the taxpayer of the tax. Evidence also includes information about the status of the bank's correspondent account received from the tax authority at the place of registration of the bank.
2. The bank to which the payment orders for tax payment were sent does not have the right to carry out the relevant transactions. This circumstance is confirmed by the order of the Bank of Russia to revoke the bank’s license to carry out banking operations.
3. Efficiency and coordination of actions of the bank and the taxpayer aimed at the “cash-free” fulfillment of the obligation to pay taxes and fees (for example, through the use of “bill schemes”).
4. Absence of facts of the taxpayer carrying out other operations, except for operations to “pay” taxes through this “problem” bank.
5. The taxpayer has accounts with sufficient cash balances to fulfill the obligation to pay taxes in solvent banks.
6. Absence of the fact of shipment of products, performance of work, provision of services, for payment for which the taxpayer’s current account in the “problem” bank was credited cash.
The above list is not exhaustive. Depending on the specific circumstances of the case under consideration, the tax authorities may present other evidence of bad faith to the arbitration courts.
In addition, according to Determination N 138-O, tax authorities have the right to systematically inform taxpayers about those banks whose services should not be used when transferring tax payments. Moreover, tax authorities may require taxpayers to revoke their settlement documents for tax write-off. The goal is to encourage conscientious taxpayers to fulfill their tax obligations and to suppress cases of abuse when choosing a bank to transfer taxes to the budget. If the tax authority informed the taxpayer which banks should not be used, and there is confirmation of this, but the taxpayer nevertheless turned to the “problem” bank, this will be additional evidence of the taxpayer’s bad faith.
In fairness, we note that in a number of cases, arbitration courts recognize the actions of the taxpayer in good faith, and the tax paid, even when the money is transferred through a “problem” bank. For example, in the taxpayer’s current account, funds were formed on the basis of the counterparty’s execution of a supply agreement, and the counterparty’s current account was in the same bank (Resolution of the Federal Arbitration Court of the Volga-Vyatka District dated December 11, 2001 in case No. 1002/5k). Another example: the taxpayer did not know about financial condition bank, even being its founder, therefore his actions in transferring taxes through such a bank were recognized as bona fide (Resolution of the Federal Arbitration Court of the Central District of May 23, 2002 in case No. A23-4133/01A-14-398).
When resolving disputes, arbitration courts, as a rule, proceed from the fact that in order to classify a bank as a “problem” bank, it is necessary that it does not have a cash balance in its correspondent account necessary to make payments on the orders of clients. The cash balance in the client's current account must be sufficient to make such payments.
A taxpayer or bank is recognized as dishonest when judicial procedure. In accordance with Article 65 of the Arbitration Procedural Code of the Russian Federation, each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections. Thus, tax authorities must provide evidence of dishonesty in the actions of taxpayers and “problem” banks. Taxpayers are proof of the integrity of their actions.

How to prove your integrity
What threatens a taxpayer who has complied with the requirements of clause 2 of Article 45 of the Tax Code of the Russian Federation, but his money has not been received into the budget?
The actions of the tax authorities in this situation are addressed by the Orders of the Ministry of Taxes of Russia dated 08/18/2000 N BG-3-18/297 and dated 10/06/2000 N BG-3-18/351, as well as the Letter dated 10/09/2000 N VP-6-18/ 788@. In them, the Ministry indicated that tax payments are considered received in budget revenues only when they are credited to accounts for accounting budget revenues. This follows from the provisions of the Budget Code.
The amount not received by the budget will be listed on the taxpayer’s personal account as unpaid. If the taxpayer’s integrity does not raise doubts among the tax authority, no penalties will be charged on this amount and no measures will be taken to address it. forced collection. True, in this case it will not be possible to obtain a certificate of no debt to the budget.
If the taxpayer’s integrity is not obvious to the tax authority, the consequences of non-receipt of money to the budget will be different. Penalties will be charged on the amount not received, the tax authority will make a demand for tax payment, and if it is not fulfilled, it will begin the procedure for forced collection.
In this situation, the taxpayer can only help by turning to the arbitration court. Before making a decision, the court may, at the request of the taxpayer, take interim measures. For example, prohibit the tax authority from presenting a collection order to collect the amount of tax that has not been received into the budget (clause 2 of Article 91 of the Arbitration Procedure Code of the Russian Federation) or suspend collection (clause 5 of Article 91 of the Arbitration Procedure Code of the Russian Federation).
But judicial practice is not in favor of the taxpayer. In particular, when it comes to schemes where “problem” banks repay their own bills. Examples include:
- Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 17, 2000 N 3561/00, of October 22, 2002 N 2045/01, of October 22, 2002 N 9448/01, of October 22, 2002 N 10515/01, of October 29, 2002 N 4 621/ 01 and dated 05.11.2002 N 6294/01;
- Resolutions of the Federal Arbitration Court of the Moscow District dated October 28, 2002 in case No. KA-A41/7200-02, dated December 17, 2002 in case No. KA-A40/8140-02, dated January 21, 2003 in case No. KA-A41/9054- 02, dated 02/27/2003 in case No. KA-A41/757-03 and dated 03/17/2003 in case No. KA-A41/465-036;
- Resolution of the Federal Arbitration Court of the North-Western District dated 06/05/2000 in case No. A13-5883/99-14 and others.

M.V.Krasnov
Deputy Editor-in-Chief
scientific and practical journal
“Taxes and taxation”,
supervisor
groups for maintaining a unified register
for registration of rights to real estate
Mostransgaz LLC

At what point and under what conditions is a taxpayer considered to have fulfilled his obligation to pay tax to the budget? Is the taxpayer required to prove that he had no information about the insolvency of the bank serving him? Under what circumstances can early payment of tax be regarded as an abuse of right, and the obligation to pay tax not be considered fulfilled? What mistakes are allowed when preparing payment orders for tax transfers to the budget? We will present the answers to these questions in this article.

In accordance with paragraphs. 1 clause 3 art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order for transfer to budget system Russian Federation to the appropriate account Federal Treasury funds from the taxpayer’s bank account if there is a sufficient cash balance on it on the day of payment.

From the legal position set out in the resolution of the Constitutional Court of the Russian Federation dated October 12, 1998 No. 24-P, it follows that the constitutional obligation of each taxpayer to pay taxes is considered fulfilled at the moment when the seizure of part of his property intended for payment to the budget as a tax, actually happened. Such a withdrawal occurs when the bank debits the appropriate funds from the taxpayer’s current account to pay the tax, which indicates payment of the tax. In this case, the taxpayer is not responsible for the actions credit institutions participating in the multi-stage process of paying and transferring taxes to the budget.

Repeated collection from a bona fide taxpayer of taxes not received into the budget violates constitutional guarantees private property. The collected amounts of money in this case are not arrears, since the constitutional obligation to pay taxes is considered fulfilled at the moment when the seizure of part of the property of a bona fide taxpayer within the framework of public law relations actually occurred.

District arbitration courts in their law enforcement practice proceed from the fact that the transfer by taxpayers of payment orders to their servicing banks to transfer tax amounts to the budget if there is a sufficient amount of money in their accounts is the proper fulfillment of the obligation to pay taxes (resolution of the Federal Antimonopoly Service of the East Siberian District dated 3.02. 2011 in case No. A78-2527/2010, resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 8, 2009 No. F03-5145/2009 in case No. A59-6025/2008, resolution of the Federal Antimonopoly Service of the West Siberian District dated September 27, 2010 in case No. A75- 403/2010, resolution of the Federal Antimonopoly Service of the North-Western District dated May 16, 2011 in case No. A21-5390/2010) provided that the taxpayer is not aware of information about the application of restrictions in relation to the bank servicing him in terms of making payments (resolution of the Federal Antimonopoly Service of the West Siberian District dated 05/26/2010 in case No. A45-17836/2009). The circumstances confirming the taxpayer’s awareness cannot include information published in the Kommersant newspaper about the bank’s insolvency; it is not a basis to consider it established that the taxpayer was familiar with this circumstance (Resolution of the Federal Antimonopoly Service of the Moscow District dated October 21, 2009 No. KA-A40/11072- 09 in case No. A40-62942/09-76-263).

The presence of information about the bank's insolvency, the latter's lack of assets may indicate the taxpayer's dishonesty and the fact that his obligation to transfer taxes to the budget system of the Russian Federation has not been fulfilled (resolution of the Federal Antimonopoly Service of the West Siberian District dated February 10, 2010 in case No. A75- 3067/2009). The burden of proving the circumstances that served as the basis for the conclusion that the taxpayer was unscrupulous rests with the tax authority (resolution of the Federal Antimonopoly Service of the West Siberian District dated February 3, 2010 in case No. A45-10180/2009, resolution of the Federal Antimonopoly Service of the Moscow District dated August 22, 2011 No. KA-A41/9282 -11 in case No. A41-23066/09).

If the taxpayer has the appropriate evidence indicating that all the conditions set by the legislator have been met for the purpose of recognizing him as a bona fide taxpayer, the obligation to pay the corresponding tax is subject to recognition as fulfilled regardless of the actual entry of the payment into the budget system of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated August 10, 2010 No. F03- 5429/2010 in case No. A59-258/2010).

Non-receipt of tax amounts to the budget due to the lack of funds in the bank's correspondent account does not affect the recognition of the obligation to pay tax payments as fulfilled, since it does not relate to the list of cases specified in clause 4 of Art. 45 of the Tax Code of the Russian Federation. The fact that there are no funds in the bank’s correspondent account at the time of presentation of payment orders and debiting of tax amounts from the taxpayer’s account does not indicate the taxpayer’s bad faith, since the legislation of the Russian Federation does not provide for the obligation of clients of credit organizations to check the availability of funds in the correspondent accounts of these organizations when opening accounts or transferring them payment orders (resolution of the Federal Antimonopoly Service of the Moscow District dated August 22, 2011 No. KA-A41/9282-11 in case No. A41-23066/09).

Taking into account the legal position set out in Determination No. 138-O of the Constitutional Court of the Russian Federation dated July 25, 2001 and Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 18, 2001 No. 9408/00, the said provision of Art. 45 of the Tax Code of the Russian Federation applies only to a bona fide taxpayer and implies the obligation of tax authorities to prove the detected dishonesty of taxpayers and banks in the manner established by the Tax Code of the Russian Federation. If the competent authority of the state establishes the fact of abuse of rights, i.e. bad faith of the taxpayer, then clause 2 of Art. 45 of the Tax Code of the Russian Federation should not apply to such taxpayers. At the same time, the said Definition especially emphasizes that in the field of tax relations there is a presumption of good faith of taxpayers, the responsibility to refute which rests with the tax authorities.

According to the legal position set out in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 17, 2002 No. 2257/02, in accordance with clause 1 of Art. 45 of the Tax Code of the Russian Federation, the taxpayer has the right to fulfill the obligation to pay taxes ahead of schedule, while this rule presupposes the payment of tax if there is a corresponding obligation, but before the deadline established by law. Fulfillment of an obligation that has not arisen may, under certain circumstances, be regarded as an abuse of right.

Thus, in one case, the taxpayer, having no current tax obligations to the budget, gave his bank instructions to transfer advance payments, and subsequently submitted the paid amounts for offset. The inspectorate refused to carry out the offset, motivating its refusal as follows. The funds were written off from the taxpayer’s current account, but not from the correspondent account due to their absence; at the time payment orders were sent to the bank, the company’s obligation to pay tax had not formed, since the reporting (tax) period had not ended; the transferred amounts did not correspond to actual tax obligations; payment orders were issued instead of orders withdrawn on the same day to pay civil obligations; clients were notified by the bank employees serving them about the reasons for the delay in the execution of orders, the relevant information was placed on the stands of the operating room in the bank; The bank received an order from the Central Bank of the Russian Federation on restrictions and prohibitions on certain transactions. According to the inspectorate, these circumstances taken together indicate that the taxpayer has a real intention to pay taxes to the budget.

The Presidium of the Supreme Arbitration Court of the Russian Federation supported the position of the inspectorate, noting the following. Provision of paragraph 3 of Art. 45 of the Tax Code of the Russian Federation that the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to transfer funds to the budget system of the Russian Federation to the appropriate account of the Federal Treasury from the taxpayer’s bank account if there is a sufficient balance on it on the day of payment, applies only on bona fide taxpayers. When considering cases of offset of overpaid amounts of tax, this legal norm is applied taking into account the circumstances characterizing the taxpayer and his conscientiousness in fulfilling his tax obligation, including its existence. In the absence of tax obligations, the obligation to pay tax cannot be considered fulfilled. Excessive payment of tax occurs when the taxpayer, calculating the amount of tax payable to the budget independently, that is, without the participation of the tax authority, for any reason, including due to ignorance tax legislation or honest mistake, makes an error in calculations.

An overpaid amount of tax may be recognized as the crediting of funds to the accounts of the relevant budget in an amount exceeding the tax amounts payable for certain tax periods. Failure to credit funds to the accounts of the relevant budgets and the execution of payment orders for the payment of taxes in the absence of tax obligations and, in addition, before the end of the tax (reporting) period and before the due date for tax payment, collectively indicates the dishonest actions of the taxpayer and the absence of his real intention fulfillment of tax obligations (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 27, 2011 No. 2105/11).

If you make mistakes in preparing payment orders for the transfer of tax amounts, you must keep the following in mind. If as a result of an error in the code budget classification the tax amount has been received by the budget of another level, then the obligation to pay the tax is considered fulfilled and, accordingly, the taxpayer can submit an application to clarify the payment (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated July 18, 2008 No. F03-A51/08-2/2631 in case No. A51-2361 /200839-38). If errors made by the taxpayer when filling out a payment order did not result in non-transfer of the tax amount to the budget, then his obligation to pay tax is considered fulfilled. Among such minor errors, the courts, in particular, include incorrect indication of the OKATO code (resolution of the Federal Antimonopoly Service of the North-Western District dated July 4, 2011 in case No. A05-5601/2010), the budget classification code (resolution of the Federal Antimonopoly Service of the Moscow District dated July 1, 2009 No. KA- A41/5651-09 in case No. A41-19848/08).

The foregoing allows us to draw the following main conclusions.

The taxpayer’s obligation to pay the amount of tax to the budget is considered fulfilled from the moment of presentation to the bank of an order to transfer funds from the taxpayer’s bank account to the budget system of the Russian Federation to the appropriate account of the Federal Treasury if there is a sufficient cash balance on it on the day of payment (clause 3 of Art. 45 of the Tax Code of the Russian Federation) provided that the taxpayer is not aware of the application of restrictions in relation to the bank serving him in terms of making payments. The presence of information from the taxpayer about the insolvency of the bank serving him, the burden of proof of which falls on the tax authority, indicates his bad faith and the absence of a real intention to fulfill tax liability.

TENTH ARBITRATION COURT OF APPEALS
RESOLUTION
from 2012 in case No. A41
The operative part of the resolution was announced in 2012
The resolution was made in full in 2012
arbitration court of appeal composed of:
presiding judge
judges
when keeping minutes of a court session:
when participating in the meeting:
from the applicant (OJSC "plant", OGRN:) - Lazukin M.V., representative by power of attorney
from an interested party (Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region) - representative by power of attorney,
having considered at the court hearing the appeal of JSC "plant" against the decision Arbitration Court Moscow region from 2012 in case No. A41, accepted by the judge
at the request of OJSC "plant" to the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region to recognize the obligation to pay taxes as fulfilled and to invalidate the claim,
installed:
open joint stock company"plant" (hereinafter - JSC "zavod", taxpayer) appealed to the Arbitration Court of the Moscow Region with a statement (taking into account the clarification of the requirements in accordance with Article 49 of the Arbitration Procedure Code of the Russian Federation, adopted by the arbitration court) to the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region (hereinafter - the tax authority , inspection) on declaring illegal the requirement to pay a tax, fee, penalty, fine N as of 02/11/2011; recognition of the obligation to pay income tax for November 2010 in the amount of RUB 379,999, land tax for 2010 in the amount of 453,500 rubles. fulfilled
By decision of the Arbitration Court of the Moscow Region in 2012, the stated claims were rejected in full.
Having disagreed with the decision of the court of first instance, JSC "Zavod" appealed to the Tenth Arbitration Court of Appeal with an appeal, in which it asked to cancel the contested judicial act and satisfy the stated demands.
At the court hearing, the taxpayer's representative supported the arguments of the appeal.
The representative of the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region objected to the satisfaction of the appeal on the grounds set out in the response and additions to the response to the appeal; he considers the decision of the court of first instance to be legal and justified.
Having considered the appeal, studied the case materials, listened to the opinions of representatives of persons participating in the case, and checked the correct application of the rules of substantive and procedural law by the court of first instance, the appellate court came to the following conclusions.
As follows from the case materials, OJSC "plant" is registered for tax purposes with the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region.
On December 21, 1998, an agreement was concluded between the applicant and JSCB "Bank" on the opening and servicing of a client's settlement (current) account No. 215, the subject of which is the opening and cash management services current account.
On November 25, 2010, the applicant submitted to JSCB Bank, through current account N, payment orders N for the transfer of income tax for November 2010 in the amount of RUB 379,999. and payment order N for the transfer of land tax for the fourth quarter of 2010 in the amount of 453,500 rubles.
The corresponding funds were written off from the applicant’s current account, but were not credited to the budget revenue accounts due to insufficient funds in the correspondent account of the said credit organization.
In accordance with the order Central Bank The Russian Federation has revoked the license to carry out banking operations from the credit organization JSCB Bank (CJSC) (Moscow) since December 3, 2010.
In a letter dated January 25, 2011 N, the tax authority refused to recognize the applicant’s obligation to pay the specified taxes as fulfilled.
Besides, tax authority a demand was made for payment of land tax, fee, penalty, fine N as of 02/11/2011.
By virtue of Art. 45 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees. The obligation to pay tax must be fulfilled on time, established by law about taxes and fees. Failure to perform or improper execution The obligation to pay tax is the basis for the tax authority or customs authority to send a request to the taxpayer to pay the tax.
In accordance with paragraphs. 1 clause 3 art. 44 of the Tax Code of the Russian Federation, the obligation to pay tax ceases with the payment of this tax.
According to paragraphs. 1 clause 3 art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to transfer funds from the taxpayer’s bank account to the budget system of the Russian Federation to the appropriate account of the Federal Treasury if there is a sufficient cash balance on it on the day of payment. This rule refers to the payment of tax if there is a corresponding obligation, but before the deadline established by law.
According to the legal position set out in the Resolution of the Constitutional Court of the Russian Federation of October 12, 1998 N 24-P, the constitutional obligation of each taxpayer to pay taxes is considered fulfilled at the moment when the seizure of part of his property intended for payment to the budget as a tax actually occurs. Such a withdrawal occurs when the bank debits the appropriate funds from the taxpayer’s current account to pay the tax, which indicates payment of the tax. At the same time, the taxpayer is not responsible for the actions of credit institutions participating in the multi-stage process of paying and transferring taxes to the budget.
Thus, a tax or fee can be recognized as paid only if, as a result of measures taken by the taxpayer, fee payer, there was a real opportunity for the corresponding funds to flow into the budget, off-budget fund, that is, when the actions of the taxpayer aimed at paying taxes and collections were of a bona fide nature.
The Presidium of the Supreme Arbitration Court of the Russian Federation, in resolutions dated December 17, 2002 N 2257/02, dated July 27, 2011 N 2105/11, explained that in accordance with paragraph 1 of Article 45 of Part One of the Tax Code of the Russian Federation, the taxpayer has the right to fulfill the obligation to pay taxes ahead of schedule.
According to the legal position formed by the Supreme Arbitration Court of the Russian Federation when considering similar disputes, the provisions of Article 45 of the Code are applied taking into account the circumstances characterizing the taxpayer and his conscientiousness in fulfilling the tax obligation, including its existence. In the absence of tax obligations, conclusions on recognition of the fulfilled obligation to pay taxes and fees do not correspond to paragraph 3 of Article 45 of the Code. In addition, the resolution of the Supreme Arbitration Court of the Russian Federation dated July 27, 2011 N 2105/11 clarifies that the taxpayer’s obligation to pay taxes can arise only after the end of the tax period.
In the case under consideration, the applicant asked the court to recognize the obligation to pay fulfilled: income tax for November 2010 in the amount of 379,999 rubles; land tax for the fourth quarter of 2010 in the amount of 453,500 rubles.
According to Article 8 of the Tax Code of the Russian Federation, a tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of those belonging to them by right of ownership, economic management or operational management funds for the purpose of financial support for the activities of the state and (or) municipalities.
In accordance with Article 388 of the Tax Code of the Russian Federation, taxpayers of land tax are organizations and individuals who own land plots on the right of ownership, the right of permanent (perpetual) use or the right of lifelong inheritable possession.
Article 389 of the Tax Code recognizes the object of taxation as land plots located within the municipality on whose territory the tax has been introduced, with the exception of land plots listed in paragraph 2 of this article.
According to Article 390 of the Tax Code, the tax base for land tax is defined as the cadastral value of land plots recognized as an object of taxation in accordance with Article 389 of the Code.
By virtue of Article 391 of the Code, the tax base is determined in relation to each land plot as its cadastral value as of January 1 of the year being the tax period.
Paragraph 3 of Article 392 of the Code establishes that taxpayers-organizations determine the tax base independently on the basis of information from the state land cadastre about each land plot owned by them by right of ownership or right of permanent (perpetual) use, which, according to paragraph 14 of Article 396 of the Code, are subject to notification information from taxpayers based on the results of the state cadastral valuation lands as of January 1 of the calendar year in the manner determined by the Government of the Russian Federation, no later than March 1 of this year.
Article 393 of the Tax Code recognizes the calendar year as the tax period for land tax, and the reporting periods (for taxpayers - organizations and individuals who are individual entrepreneurs) - the first quarter, second quarter and third quarter of the calendar year.
Based on Article 396 of the Code, the amount of tax is calculated at the end of the tax period as a percentage corresponding to the tax rate tax base. Taxpaying organizations calculate the amount of tax (the amount of advance tax payments) independently.
Taxpayers in respect of whom reporting period defined as a quarter, the amounts of advance tax payments after the first, second and third quarters of the current tax period are calculated as one fourth of the corresponding tax rate percentage of the cadastral value of the land plot as of January 1 of the year, which is the tax period. The amount of tax payable to the budget at the end of the tax period is determined by these taxpayers as the difference between the amount of tax calculated in accordance with paragraph 1 of Article 396 of the Code and the amounts of advance tax payments payable during the tax period.
The procedure and deadlines for payment of tax and advance payments of tax are established by Article 397 of the Tax Code of the Russian Federation.
From paragraph 1 of Art. 397 of the Tax Code of the Russian Federation it follows that tax and advance payments for land tax are subject to payment by taxpayers in the manner and within the time limits established by regulatory legal acts of representative bodies of municipalities (city laws federal significance Moscow and St. Petersburg).
During the tax period, taxpayers make advance payments of tax, unless otherwise provided by the regulatory legal act of the representative body of the municipality (laws of the federal cities of Moscow and St. Petersburg). Upon expiration of the tax period, taxpayers pay the amount of tax calculated in the manner prescribed by paragraph 4 of Article 396 of this Code. (Clause 2 of Article 397 of the Tax Code of the Russian Federation).
Thus, based on the analysis of the above norms and circumstances, it follows that at the time of presentation to the bank of payment order No. dated November 25, 2010 for the transfer of land tax for the fourth quarter of 2010 in the amount of 453,500 rubles, the cadastral value of the land plot was determined by the taxpayer had an obligation to make advance payments.
In addition, the amount paid by payment order N dated November 25, 2010 corresponds to the amount tax liability OJSC "plant" for land tax, which is confirmed by the information presented in the case materials tax return and the issued requirement N as of 02/11/2011.
The tax authority did not present evidence to the court that the taxpayer knew about the insolvency of JSCB Bank, as well as other evidence indicating the taxpayer’s bad faith.
Based on the foregoing, the appellate court comes to the conclusion that the decision of the trial court in terms of refusal to satisfy the taxpayer’s demands to recognize his obligation to pay land tax for the fourth quarter of 2010 in the amount of 453,500 rubles. (payment order N t 25.11.2010), as well as the requirement to invalidate demand N for payment of tax, fee, penalty, fine as of 02.11.2011, since the taxpayer was asked to pay the amount of arrears that he did not have, is subject to cancellation in connection with incorrect application by the court of first instance of the norms of substantive law when considering the stated claims in this part.
At the same time, according to paragraph 2 of Article 223 of the Tax Code of the Russian Federation, when receiving income in the form of wages, the date of actual receipt by the taxpayer of such income is recognized as the last day of the month for which he was accrued income for work duties performed in accordance with employment contract(contract).
Based on paragraph 6 of Article 226 of the Tax Code of the Russian Federation, tax agents are obliged to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash from the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or on his instructions to third party bank accounts.
In other cases, tax agents transfer the amounts of calculated and withheld tax no later than the day following the day the taxpayer actually received income - for income paid in in cash, as well as the day following the day of actual withholding of the calculated amount of tax - for income received by the taxpayer in kind or in the form of material benefit.
Thus, the tax agent calculates, withholds and transfers to personal income tax budget With wages(including for the first half of the month) once a month during the final calculation of the employee’s income based on the results of each month for which the income was accrued to him.
By virtue of paragraph 1 of Art. 226 Tax Code of the Russian Federation Russian organizations, individual entrepreneurs and permanent representative offices of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income, are required to calculate, withhold from the taxpayer and pay the amount of tax.
Regardless of the method of payment (directly by the taxpayer or through a tax agent), such payment must be made only at the expense of the taxpayer’s funds (property). Consequently, a taxpayer who independently fulfills his tax obligation is obliged to seize part of his own property, while a tax agent, fulfilling a tax obligation for a taxpayer, is obliged to seize part of not his own property, but part of “someone else’s” property (the taxpayer). Payment of tax at the expense of tax agents is not allowed (Clause 9, Article 226 of the Tax Code of the Russian Federation).
According to personal account OJSC "plant" personal income tax payment for November 2010 was made by payment orders dated November 3, 2010, November 10, 2010, November 17, 2010, November 22, 2010 and November 25, 2010 for a total amount of RUB 87,200.
As follows from the materials presented in the case payroll N from 11/10/2010 and payment orders for wages N from 11/03/2010, from 11/10/2010, from 11/17/2010, from 11/22/2010 and from 11/25/2010 in November 2010, before the presentation of the disputed payment order, the taxpayer actually paid wages employees in the amount of RUB 594,124. 61 kopecks, personal income tax amounted to 77,239 rubles.
From payslip for November 2010 it follows that personal income tax was accrued in the amount of 374,117 rubles, of which 87,200 rubles. paid in November 2010. Thus, in December 2010, the taxpayer, as an agent, had to pay an additional 286,917 rubles to the budget, amounting to personal income tax amount for November 2010.
Evidence of payment of wages to employees and other payments due personal income tax, in November 2010 until November 25, 2010 in the amount upon payment of which the taxpayer as an agent became obligated to transfer to the budget the withheld personal income tax in the amount of RUB 379,999.
According to the explanations given in Resolution of the Supreme Arbitration Court of the Russian Federation No. 2105/11 of July 27, 2011, as part of transferring payments to the budget in the absence of a tax obligation, the payer does not fulfill his constitutional obligation, but voluntarily replenishes budget accounts for subsequent offset of emerging tax obligations. In this case, the transfer of payment is not of a public law, but of a private law nature and, accordingly, in the event of failure to transfer funds written off from the payer’s account, the bank becomes obligated to it, since in such relations there is no seizure of the property of a bona fide taxpayer as part of the fulfillment of a tax obligation that has one-sided nature.
Under the above circumstances, the appellate court supports the conclusion of the trial court that there are no legal grounds for satisfying the requirements of OJSC "plant" for recognition of the obligation to personal income tax payment for November 2010 in the amount of 379,999 rubles. executed, therefore, the appellate court has no grounds for canceling or changing the judicial act of the court of first instance in this part.
In accordance with Part 1 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, citizens, organizations and other persons have the right to apply to the arbitration court with an application to invalidate non-normative legal acts, illegal decisions and actions (inaction) of state bodies, bodies local government, other bodies, officials, if they believe that the contested non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of business and other economic activity, unlawfully impose any obligations on them, or create other obstacles to the implementation of entrepreneurial and other economic activities.
In accordance with Part 5 of Art. 200 of the Arbitration Procedure Code of the Russian Federation, the obligation to prove the compliance of the contested non-normative legal act with the law or other normative legal act, the legality of the adoption of the contested decision, the commission of the contested actions (inaction), whether the body or person has the appropriate authority to adopt the contested act, decision, or perform the contested actions (inaction) , as well as the circumstances that served as the basis for the adoption of the contested act, decision, commission of the contested actions (inaction), is assigned to the body or person that adopted the act, decision or performed the actions (inaction).
Based on the foregoing, the appellate court comes to the conclusion that there are legal grounds for changing the decision of the trial court with the adoption of a new decision to satisfy the stated requirements in terms of recognizing the fulfilled obligation of OJSC "plant" to pay land tax for the fourth quarter of 2010 in the amount of 453,500 rubles . (payment order No. dated November 25, 2010), as well as on the invalidation of N’s demand for payment of taxes, fees, penalties, and fines as of February 11, 2011.
In accordance with Art. 110 Arbitration Procedure Code of the Russian Federation and clause 5 Information letter Presidium of the Supreme Arbitration Court of the Russian Federation No. dated March 13, 2007, legal costs incurred by persons participating in the case, in whose favor a judicial act was adopted, are recovered by the arbitration court from the outside.
If the claim is partially satisfied, legal costs are borne by the persons participating in the case in proportion to the amount of the satisfied claims.
Return state duty from the budget into which it was paid, if the court decision is made wholly or partially not in favor government agency, local government or official, Article 333.40 of the Tax Code of the Russian Federation, which establishes the grounds and procedure for the return of state duty, is not provided for.
Changes made by Art. 14 Federal Law dated December 25, 2008 N 281-FZ "On amendments to certain legislative acts Russian Federation" in paragraph 1 of Article 333.37 of the Tax Code of the Russian Federation on the exemption of state bodies, local government bodies acting in cases considered in arbitration courts, as plaintiffs or defendants, from paying state fees for distribution legal expenses do not apply.
Recovery from the defendant of the state duty paid by the applicant to the budget imposes on the defendant the obligation not to pay the state duty to the budget, but to compensate the applicant sums of money, equal to the legal costs incurred by him.
Exemption of state and municipal bodies from reimbursement of legal costs is not provided for by law.
Therefore, it applies general order distribution of legal costs provided for by Chapter 9 of the Arbitration Procedure Code of the Russian Federation, and the state fee paid by the applicant in accordance with Part 1 of Art. 110 of the Arbitration Procedure Code of the Russian Federation is subject to recovery in his favor directly from the state body (local government body) as a party to the case.
Based on the foregoing, the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region is subject to collection in favor of OJSC "plant" of a state duty in the amount of 6,000 rubles, paid by it under payment orders No. dated 06.15.2011 and No. 14 dated 01.13.2012.
Guided by Articles 266, 268, paragraph 2 of Article 269, paragraph 4 of part 1 of Article 270, Article 271 of the Arbitration Procedure Code of the Russian Federation, the court
decided:
The decision of the Arbitration Court of the Moscow Region of 2012 in case No. A41 is amended in terms of the refusal to satisfy the requirements for recognition of the fulfilled obligation of OJSC "plant" to pay land tax for the fourth quarter of 2010 in the amount of 453,500 rubles. and invalidation of the claim for payment of tax, fee, penalty, fine as of February 11, 2011 N, issued by the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region.
Satisfy this part of the requirement.
Recognize fulfilled the obligation of OJSC "plant" to pay land tax for the fourth quarter of 2010 in the amount of 453,500 rubles, invalidate the requirement N for the payment of tax, fee, penalty, fine as of February 11, 2011, issued by the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region areas.
The rest of the decision of the court of first instance is left unchanged.
To collect 6,000 rubles from the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region. court costs for payment of state fees for filing an application and appeal.

FEDERAL ARBITRATION COURT OF THE MOSCOW DISTRICT

RESOLUTION

dated March 20, 2013 No. A40-76467/12-116-163

Federal Arbitration Court of the Moscow District composed of:

presiding judge O.V. Dudkina,

judges Nagornaya E.N., Shishova O.A.,

when participating in the meeting:

from the applicant - Esmedlyaev O.V. according to Dov. dated October 25, 2012; Esmedlyaev R.M. according to Dov. dated 02/20/2012;

from the defendant - Lobanov A.A. according to Dov. dated March 18, 2013 N 05-34/11011d;

having considered on March 20, 2013 at a court hearing the cassation appeal of the defendant - Inspectorate of the Federal Tax Service of Russia No. 7 for Moscow,

Arbitration Court of Moscow

accepted by judge Starodub A.P.,

Ninth Arbitration Court of Appeal,

accepted by judges Nagaev R.G., Okulova N.O., Krekotnev S.N.,

according to the application of Krestyanskie Vedomosti Media Group CJSC (OGRN 1037739331740)

on recognition of fulfilled obligation to pay VAT

to the Federal Tax Service of Russia No. 7 for Moscow (OGRN 1047707042130),

installed:

The closed joint-stock company "Peasant Vedomosti Media Group" (hereinafter referred to as the applicant, the company, the taxpayer) applied to the Moscow Arbitration Court with an application to the Inspectorate of the Federal Tax Service of Russia No. 7 for the city of Moscow (hereinafter referred to as the inspection) for recognition of the fulfilled obligation of the company to pay VAT for the 1st quarter of 2012 in the amount of 294,007 rubles, offset against the fulfillment of the current (future) obligation to pay taxes forcibly written off from the applicant’s current account at OJSC Rosselkhozbank 28,750.57 rubles. as a penalty for late payment of VAT for the 1st quarter of 2012 (taking into account clarification of the stated requirements).

By the decision of the Moscow Arbitration Court dated October 10, 2012, upheld by the decision of the Ninth Arbitration Court of Appeal dated December 12, 2012, the company’s application was satisfied as normatively justified and documented.

In the cassation appeal, the inspectorate asks to cancel the judicial acts, pointing out that the courts incorrectly applied the norms of substantive law, and the conclusions of the courts do not correspond to the actual circumstances and materials of the case.

The representative of the inspectorate at the court hearing supported the arguments of the cassation appeal.

A representative of the society objected to the cancellation of judicial acts on the grounds set out in them.

Having listened to the representatives of the parties, studied the case materials, and discussed the arguments of the complaint, the cassation court finds no grounds for satisfying it.

In accordance with sub. 1 clause 1 art. 45 of the Tax Code of the Russian Federation, unless otherwise provided by paragraph 1 of Art. 45 of the Code, the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to transfer funds from the taxpayer’s bank account to the budget system of the Russian Federation to the appropriate account of the Federal Treasury if there is a sufficient cash balance on it on the day of payment.

The courts found that the write-off of value added tax for the 1st quarter of 2012 in the amount of 294,007 rubles. according to payment order No. 196 dated April 19, 2012, CB "SEMBANK" (hereinafter referred to as the bank) was made from the taxpayer's current account if there was a sufficient cash balance in the latter's account; the amount indicated in the payment order constituted the applicant’s real tax liability to pay tax for the specified tax period (clause 1 of Article 174 of the Tax Code of the Russian Federation); at the time of the disputed transaction, funds from counterparties were regularly received into this account of the company, including on the day of debiting.

At the same time, the courts indicated that the bank account had been used by the company since December 20, 1999, and at the time the disputed amount was written off there was no prohibition or restriction on the bank banking transactions, the bank’s license was not revoked, it was not declared insolvent (bankrupt).

These circumstances, established by the courts, are not disputed by the inspectorate.

In this regard, and also taking into account the active movement of funds in his current account, the taxpayer, according to the conclusion of the courts, did not have information about the insolvency of the bank.

The inspection did not refute the conclusion of the courts.

The courts of two instances, having examined and assessed, according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the evidence presented by the parties in the case materials, guided by the provisions of paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, taking into account the legal positions set out in the ruling of the Constitutional Court of the Russian Federation N 138-O dated July 25, 2001 and in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation N 6928/06 dated November 8, 2006, paragraph 1 of Art. 174 of the Tax Code of the Russian Federation, came to the conclusion that the company had fulfilled its obligation to pay the disputed amount of tax.

The argument of the complaint that the company is a creditor of the bank for the disputed amount does not correspond to the factual circumstances established by the court and the response of the State Corporation "Deposit Insurance Agency" dated October 24, 2012 N 6/9780 (vol. 2 pp. 93) , to which the inspection refers.

In the said letter of the State Corporation "Deposit Insurance Agency" it is indicated that funds in the amount of 294,007.00 rubles were written off according to payment order No. 196 dated April 19, 2012 in payment of VAT to ZAO "Krestyanskie Vedomosti Media Group" for the 1st quarter of 2012 included in the register of bank creditor claims as claims of the Federal Tax Service.

Contrary to the arguments of the complaint about the presence of funds in the company’s accounts in other banks, the documents referred to by the inspectorate do not confirm this circumstance.

According to the account statement at JSCB Mosoblbank OJSC for the period from 02/01/2012 to 05/19/2012 there were no funds in the company’s account until 04/25/2012, and the insignificant amount received later was not enough to pay the tax (vol. 1, pp. 63) . From the account statement for the period from 04/11/2012 - 05/19/2012, opened at Avangard JSCB, it follows that there were no funds in the account until 05/16/2012 (vol. 1 case sheet 79). On the day of payment of the tax, there were no funds in the company’s account at OJSC Rosselkhozbank (vol. 1, pp. 73 - 78).

Thus, the conclusions of the courts that the inspectorate did not prove the fact that there were funds in the company’s accounts in other banks in an amount sufficient to pay the tax are justified.

The defendant's assertion that the applicant never made tax payments in advance is not supported by anything documented. Moreover, legally for a certain period The tax payment date was 04/20/2012, and the payment order was dated 04/19/2012.

Other arguments of the complaint, aimed at reassessing the factual circumstances established by the courts, and a different interpretation by the cassator of the rules of substantive law, do not indicate a judicial error in the case.

In accordance with the provisions of Article 286 of the Arbitration Procedural Code of the Russian Federation, the cassation court is not given the authority to review the factual circumstances of the case established by the courts during their consideration, to give a different assessment of the evidence collected in the case, to establish or consider established circumstances that were not established in the decision or resolution , or were rejected by the courts of first instance or appeal.

Since the cassation appeal does not contain circumstances that, in accordance with Article 288 of the Arbitration Procedure Code of the Russian Federation, could serve as a basis for the cancellation of the appealed judicial acts adopted in the case, and no violations of the norms of substantive and procedural law were committed during the consideration of the case by the courts, the cassation court does not see any grounds for cancellation of judicial acts adopted in the case.

Considering the above and guided by Articles 284 - 289 of the Arbitration Procedural Code of the Russian Federation, the court

decided:

the decision of the Moscow Arbitration Court dated October 10, 2012 and the decision of the Ninth Arbitration Court of Appeal dated December 12, 2012 in case No. A40-76467/12-116-163 are left unchanged, the cassation appeal of the Federal Tax Service of Russia No. 7 for Moscow - without satisfaction .

Presiding judge

O.V. DUDKINA

E.N.NAGORNAYA

Last updated:

The tax is considered paid from the moment you submit a payment order to the bank for its transfer and there is enough money in your current account. If you pay tax in cash, it is considered paid from the moment the money is transferred to the bank's cash desk. It doesn't matter when the money comes into the budget. Even if, due to the fault of the bank, they do not get there at all (for example, in the event of a bank bankruptcy), the tax office will not be able to make a claim against you.

There is another way to settle accounts with the budget - to offset the overpayment of this tax or other taxes, penalties and fines against the payment of the “simplified” tax (clauses 1, 4, 14 of Article 78 of the Tax Code of the Russian Federation). In this case, the tax is considered paid from the date of issue tax office decisions on offset (clause 4, clause 3, article 45 of the Tax Code of the Russian Federation).

KBK for payment of simplified tax system

According to the order of the Ministry of Finance of Russia dated June 8, 2018 No. 132n single tax credited to the budget according to the following BCC:

Name of payment	KBK for tax transfer	KBK for transferring tax penalties	KBK for transferring tax fines
Single tax under the simplified tax system on income	182 1 05 01011 01 1000 110	182 1 05 01011 01 2100 110	182 1 05 01011 01 3000 110
Single tax under the simplified tax system on income (for tax periods expired before January 1, 2011)	182 1 05 01012 01 1000 110	182 1 05 01012 01 2100 110	182 1 05 01012 01 3000 110
Single tax under the simplified tax system on the difference between income and expenses (including the minimum tax credited to the budgets of the constituent entities of the Russian Federation)	182 1 05 01021 01 1000 110	182 1 05 01021 01 2100 110	182 1 05 01021 01 3000 110
Single tax under the simplified tax system on the difference between income and expenses (for tax periods expired before January 1, 2011)	182 1 05 01022 01 1000 110	182 1 05 01022 01 2100 110	182 1 05 01022 01 3000 110
Minimum tax for simplification (paid (collected) for tax periods expired before January 1, 2011)	182 1 05 01030 01 1000 110	182 1 05 01030 01 2100 110	182 1 05 01030 01 3000 110

How do individual entrepreneurs pay tax?

Individual entrepreneurs can pay taxes in cash through a bank, or, if there is no bank, through the local administration cash desk or organization postal service(Clause 3, Clause 3, Article 45, Clause 4, Article 58 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated April 22, 2008 No. 03-02-07/1-155).

For the transfer of taxes by individual entrepreneurs through the structural divisions of Sberbank of Russia, payment document forms N PD (tax) and N PD-4sb (tax) are provided (letter of the Ministry of Taxes of Russia No. FS-8-10/1199 and Sberbank of Russia No. 04-5198 dated September 10, 2001 G.).

If the tax is transferred through the post office or local administration, the individual entrepreneur is issued a receipt (clause 4 of article 58 of the Tax Code of the Russian Federation).

The tax is considered paid from the day when an individual entrepreneur deposits cash into a bank or cash desk of a local administration or a postal service organization. At the same time, in payment document it is necessary to correctly indicate the Federal Treasury account and the name of the recipient's bank, otherwise the tax will not be considered paid (clause 3, clause 3, clause 4, clause 4, article 45 of the Tax Code of the Russian Federation).

If the local administration or post office returned the money to the entrepreneur, the tax is also unpaid (clause 3, clause 4, article 45 of the Tax Code of the Russian Federation).

Please note that banks, local administrations and post offices do not have the right to charge organizations and individual entrepreneurs fee for transferring payments to the budget (clause 4 of article 58, clause 2 of article 60 of the Tax Code of the Russian Federation).

If the tax was paid through a problem bank

But if the tax was paid through a problem bank and the money did not reach its destination, then the arrears will have to be paid again. This is what the arbitrators of the Moscow District decided in their ruling dated May 25, 2017 No. F05-6488/2017.

The essence of the trial is as follows. The company transferred the “simplified” tax through the bank, information about the financial instability of which was published on the Internet. As a result, the tax amount was written off from the organization's current account. However, the money never reached the budget due to a lack of funds in the bank's correspondent account. Soon the bank's license was revoked.

Since the tax was never received into the budget, the Federal Tax Service issued a demand to the organization to pay the arrears. In response, the company sent a letter to the inspectorate, in which it asked that the obligation to pay the “simplified” tax for the year be considered fulfilled. However, the tax authorities did not take into account the formally paid tax, considering the organization’s actions to be dishonest.

The company considered the actions of the tax authorities illegal and went to court. The courts of the first, appellate and cassation instances sided with the Federal Tax Service. They indicated:

• firstly, the disputed payment order was sent by the company to the bank long before the deadline for paying the tax - January 16. While the obligation to pay the “simplified” tax expires on March 31;
• secondly, information about the financial instability of the bank was published on the Internet. This means that the organization could pay the tax, for example, through Sberbank, in which the company’s current account was also opened.

According to the judges, the fact that the organization knew about the bank’s problems, but nevertheless transferred the tax through this bank, and ahead of schedule, indicates its dishonesty.

As a result, the arbitration judges did not recognize the obligation to pay the “simplified” tax as fulfilled and ordered the organization to re-pay the tax payment that had not been received into the budget.