With the help of tax control, the Federal Tax Service monitors compliance with tax legislation by organizations and entrepreneurs. This control involves a number of different measures to identify violations by taxpayers. From this article you will learn what types and forms of tax control there are, and what methods are used by tax authorities to achieve the main goals - ensuring timely and complete receipt of taxes and payments to the state treasury.

Concept, forms and methods of tax control

Tax control is the activity of authorized government agencies (FTS) to monitor the implementation of tax legislation by taxpayers, carried out using certain means and methods. At the same time, tax control can be defined as a type of financial control of the state with its own objects, methods and forms of implementation, because tax revenues are one of the most important sources of replenishment of the state budget.

General provisions on tax control are contained in Art. 82 of the Tax Code of the Russian Federation. The implementation of control functions is entrusted to officials - employees of tax authorities.

Forms of tax control may be as follows:

• Tax audits, which are divided into office and away.
  • desk audits carried out by inspectors on the territory of the INFS based on tax reporting or documents received from the taxpayer. Duration: no more than 3 months. Only the tax or fee for which reporting was received is checked.
  • on-site inspections are carried out by inspectors directly on the territory of the taxpayer and may relate to any tax payments.
• Receiving explanations– can be carried out on any questions regarding tax reporting, documents, etc. Forms of tax control include both receiving oral and written explanations from the taxpayer.
• Checking accounting and reporting data– carried out in relation to tax and accounting documents, which the taxpayer must provide within 10 days at the request of the Federal Tax Service. It is checked whether the taxpayer keeps records correctly and whether the reporting is compiled correctly.
• Inventory– one of the forms of tax control used during on-site audits. Carried out in relation to the obligations and property of the taxpayer. The procedure was approved by order of the Ministry of Finance of the Russian Federation No. 20n and the Ministry of Taxes of the Russian Federation No. GB-3-04/39 dated March 10, 1999.
• Inspection of the territory, premises, documents and items related to the taxpayer’s receipt of income– carried out during the inspection, in the presence of witnesses and documented in a protocol (Article 92 of the Tax Code of the Russian Federation).
• Monitoring - a relatively new concept and form of tax control, since 2015 applied only to large taxpayers. Possible exclusively on a voluntary basis, at the request of the taxpayer and the decision of the Federal Tax Service (Article 105.26 of the Tax Code of the Russian Federation). When monitoring is introduced, tax authorities gain access to the payer’s information bases, or all the necessary information and documents are received from him in electronic form, thus tax control is carried out constantly and continuously.

Tax control methods - these are techniques and methods used to check the legality of business operations, whether they are correctly reflected in documents and tax registers, how fully taxes have been accrued and paid to the budget, and whether the taxpayer’s actions do not contain signs of violations.

It is obvious that the forms and methods of tax control are closely intertwined and it is quite difficult to separate them. All methods used by tax authorities can be divided into several groups:

1. Basic control methods.

• Documentary:
  • requisition and seizure of documents and accounting registers,
  • checking the correctness of preparation and reliability of reporting,
  • checking for compliance with legal norms,
  • arithmetic check,
  • checking the validity of the operations performed;
• Actual:
  • property inventory,
  • expertise,
  • checking the actual volume of paid work (counter check),
  • analysis of the quality of raw materials and materials,
  • test purchase, etc.

1. Additional methods of tax control.

• Calculation and analytical:
  • economic data analysis,
  • technical calculations,
  • logical assessment,
  • pricing control, etc.
• Informative:
  • requesting and receiving explanations from taxpayers,
  • requesting written information,
  • clarification of current legislation.

This is an approximate classification of forms and methods of tax control. The Tax Code of the Russian Federation does not contain a clear list of them.

Types of tax control in the Russian Federation

Tax legislation is also silent about what types of tax control exist. In practice, they can be grouped depending on various factors, for example:

• in the area where the inspection is being carried out– desk (on the territory of the Federal Tax Service) and on-site (on the territory of the taxpayer);
• by sources– documentary (based on information from documents) and factual (based on testimony, inspection, audit, test purchase, etc. actions);
• in order– primary and repeated (carried out twice within one year on the same taxes);
• by degree of planning– planned (planned in advance according to the schedule) and sudden (carried out unscheduled, due to a need);
• obligatory for the taxpayer types of tax control are divided into mandatory (for example, during the liquidation of a legal entity) and initiative;
• by volume of documents checked– continuous (all primary documents and registers are checked for the entire audited period) and selective (only part of the primary documents and registers are checked for a shorter period of time);
• by time of implementation– preliminary (precedes the execution of audited business operations), current (check of business operations during the reporting period), subsequent (check of transactions for past reporting periods).

All of the listed forms, types and methods of tax control contribute to the achievement of its main objectives: ensuring the full and timely receipt of taxes, fees and insurance contributions to the budget, identifying tax offenses and suppressing them, promoting the correct maintenance of tax and accounting records.

Recently, two main areas of control work of tax authorities have emerged. The first is desk and on-site audits of taxpayers. Decisions on such checks are made in accordance with Art. 101 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

The second area is all other control measures carried out by the tax service (checking compliance with the procedure for registration with the tax authority, deadlines for submitting accounting and tax reporting, etc.). These tax control activities are carried out in the manner prescribed by Art. 101.4 Tax Code of the Russian Federation.

Of course, it is impossible to consider all areas of application of tax control in one article. Therefore, we will pay attention to some of the most important points in the development of the control work of tax authorities and analyze situations associated with the risks for organizations of ending up in the area of ​​close attention of regulatory authorities.

The article will be useful to employees of financial and economic services, since the information presented will help to avoid possible problems and negative consequences that may arise due to insufficient information awareness and changes in tax legislation.

Theoretically, tax control should perform not only control, but also distribution and social functions. For now, it is predominantly fiscal in nature. Emphasis is placed on identifying violations and bringing those responsible to justice, compensation for damage caused to the state; application of high fines for tax violations. For example, criteria for legal and illegal tax optimization were established, which contributed to strengthening the analytical component of tax control (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On the assessment by arbitration courts of the validity of taxpayers receiving tax benefits”).

In recent years, tax authorities have been working to legalize the tax base and combat unprofitable enterprises. Corresponding commissions were created in the tax authorities and administrations of the constituent entities of the Federation. At the same time, the number of tax disputes remains consistently high. We believe that objectively this is due, in particular, to the fact that Russian tax legislation does not have clear criteria for distinguishing between economically justified and unreasonable costs. In addition, the current legislation does not contain a unified list of evidence that can be used when considering tax disputes.

Since the selection of taxpayers to be called to various control commissions is carried out on the basis of the concept of risks, in our opinion, reducing tax risks should become one of the priorities in planning and analyzing the financial activities of organizations.

The selection of organizations to carry out tax control activities is carried out by inspections taking into account the following developed for this purpose:

• recommendations for conducting on-site tax audits (letter of the Federal Tax Service of Russia dated July 25, 2013 No. AS-4-2/13622);
• recommendations for conducting desk tax audits (letter of the Federal Tax Service of Russia dated July 16, 2013 No. AS-4-2/12705);
• recommendations for carrying out tax control measures (letter of the Federal Tax Service of Russia dated July 17, 2013 No. AS-4-2/12837).

Note!

These letters from the Federal Tax Service of Russia reveal not only the principles for selecting taxpayers, but also the methods and procedure for conducting tax control activities, including desk and field tax audits. Therefore, studying the information contained in the recommendations provided by the Federal Tax Service of Russia will help reduce tax risks in cases of implementing tax control measures.

Tax control measures- these are a kind of tools with the help of which the regulatory authority checks compliance with tax legislation and identifies violations (Chapter 14 of the Tax Code of the Russian Federation). Methods of obtaining information for verification are requesting documents from the taxpayer and his counterparties, interviewing witnesses, inspecting the territory (premises), seizing documents (items), examination, engaging specialists and translators.

Let's consider what major changes in legislation have occurred regarding the use of the listed tools when implementing tax control measures.

Pre-trial procedure for consideration of tax disputes

Federal Law No. 153-FZ of July 2, 2013 introduced a number of positive amendments to the Tax Code of the Russian Federation (came into force on January 1, 2014), the purpose of which, firstly, is to create favorable conditions for resolving disputes between the tax service and taxpayers without recourse to court, and secondly, to reduce the burden on the courts by ensuring consistency between the pre-trial and judicial stages of resolving tax disputes.

One of the amendments provides for the pre-trial appeal of decisions of tax authorities of all inspections, without exception, for which additional charges were identified or fines were imposed. That is, before going to court, a taxpayer who does not agree with the decision made is obliged to appeal the decision of the tax authorities to a higher tax authority. In the future, such innovations may have undeniable advantages due to the rapid resolution of disputes. In addition, pre-trial settlement definitely reduces the taxpayer’s costs - there is no need to pay state fees, representatives’ services, or incur other expenses.

Thus, from 01.01.2014, non-normative acts of tax authorities, actions or inactions of their officials are considered in court only after they are appealed to a higher tax authority.

Prohibition on the preparation of documents for imaginary and feigned transactions

Since 01/01/2014, a ban has been established on the acceptance for accounting of documents that document facts of economic activity that have not taken place, including those underlying imaginary and sham transactions.

The Federal Law of December 6, 2011 No. 402-FZ “On Accounting” introduced the concepts of imaginary and feigned accounting objects.

Under an imaginary object accounting is understood as a non-existent object reflected in accounting only for appearance; under the pretend object- reflected in accounting instead of another object in order to cover it up. Differences between imaginary and feigned transactions according to Art. 170 of the Civil Code of the Russian Federation are presented in Fig. 1.

Rice. 1. Differences between imaginary and feigned transactions

Note!

In accordance with those introduced in paragraph 3 of Art. 9 of Federal Law No. 402-FZ, as amended, individuals authorized by the organization to sign primary documents are recognized as guilty of committing imaginary and feigned transactions, on the basis of which the corresponding objects of financial accounting will subsequently be recognized.

The person responsible for registration of the fact of economic life ensures the timely transfer of primary accounting documents for registration of the data contained in them in the accounting registers, as well as the reliability of this data. Thus, the person entrusted with accounting, and (or) the person with whom an agreement has been concluded for the provision of accounting services, are not responsible for the compliance of primary accounting documents compiled by other persons with accomplished facts of economic life.

Now let's look at the practical side of the issue of qualifying imaginary and feigned transactions.

Situation 1

The organization did not carry out current repairs of the building, but the accountant received documents confirming its completion under contract. Payment was made to satisfy the obligation. The accountant reflected the expense in accounting and in the financial statements.

In this situation, expense and obligation are imaginary objects. In this case, the guilty parties are the employees who signed the relevant documents.

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For your information

Reserves, funds provided for by the legislation of the Russian Federation, and the costs of their creation are not imaginary objects of accounting (Part 2 of Article 10 of Federal Law No. 402-FZ).

Consequence of making an imaginary transaction is the so-called two-way restitution(Clause 2 of Article 167 of the Civil Code of the Russian Federation), namely: each of the parties to the transaction is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (when what was received is expressed in the use of property, work performed or service provided) - to compensate its value in money, unless other consequences of the invalidity of the transaction are provided for by law.

Consequences of making a sham transaction different from the consequences of making an imaginary transaction.

Arbitrage practice

The Federal Antimonopoly Service of the East Siberian District, in its Resolution dated September 20, 2010 in case No. A33-2586/2010, recognized the executed agreements of donation and purchase and sale of shares as feigned, since they were concluded with the aim of covering up a single agreement for the sale and purchase of 20 shares and depriving other shareholders of the opportunity to benefit its pre-emptive right to acquire alienated shares. In this case, the shares were actually alienated in violation of the preemptive right of the plaintiffs-shareholders to purchase shares, therefore the court recognized the transaction as sham and decided to transfer the rights and obligations of the acquirers of shares to the plaintiffs.

When establishing the fact of an understatement of the tax base as a result of an imaginary or sham transaction, the tax authority, guided by subparagraph. 3 p. 2 art. 45 of the Tax Code of the Russian Federation, has the right to independently change the legal qualification of the transaction and go to court with a demand for the recovery of additional taxes (accrued penalties, fines).

The legality of this position has been confirmed by court decisions (clause 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 10, 2008 No. 22).

Important!

If the tax authority makes a decision to bring an organization to tax liability, which is based on the re-qualification of transactions (recognizing the transaction as imaginary or sham) and recognized by the court as lawful, the tax authorities have the right to collect accrued taxes (penalties, fines) and out of court (to make a demand for payment taxes and collect them from funds in the bank). This conclusion is confirmed by the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 16, 2013 No. 3372/13 in case A33-7762/2011.

Expanding the list of transactions recognized controlled

The concept of “controlled transactions” has been introduced into the Tax Code of the Russian Federation since 2012. Controlled transactions- these are transactions whose prices the tax authorities have the right to check for compliance with market prices (Article 105.14 of the Tax Code of the Russian Federation). Controlled transactions are transactions between related parties and transactions that are equivalent to such.

In paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation provides a list of persons who are clearly recognized as interdependent. In particular, these include persons related by family ties (subclause 11, clause 2, article 105.1) an individual and his relatives:

• spouse;
• parents (including adoptive parents);
• children (including adopted children);
• full and half brothers and sisters;
• guardian (trustee) and ward.

Interdependent for tax purposes are:

• organization if one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25 percent;
• an individual and an organization if such an individual directly and (or) indirectly participates in such an organization and the share of such participation is more than 25 percent;

For your information

The share of participation of an individual in an organization is recognized as the total share of participation of this individual and his relatives (clause 3 of Article 105.1 of the Tax Code of the Russian Federation).

Previously, the correct application of prices in transactions between counterparties was checked as part of desk and on-site inspections. After the introduction of Ch. 14.5 verification of the application of prices in transactions between related parties for compliance with market prices occurs in a special manner. This is due to the specifics of submitting additional documents for their implementation. Thus, taxpayers are required to notify the tax authorities about controlled transactions completed by them in the calendar year. The notification deadline is no later than May 20 of the year following the calendar year in which the controlled transactions were carried out.

Let us give a classic example of a controlled transaction between related parties.

Example

The sole founder and director of the LLC sells the building belonging to the organization to his son, an entrepreneur. An LLC and its sole founder, who is also a director, are interdependent persons, since the director’s share of participation is more than 25% (subclause 2, clause 2, article 105.1 of the Tax Code of the Russian Federation). The director and his son are also interdependent persons, since the share of participation of an individual in the organization is recognized as the total share of himself and his interdependent persons (subclause 11, clause 2, article 105.1, clause 3, article 105.1 of the Tax Code of the Russian Federation).

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Thus, significant influence and control may occur due to (clause 8 of the Accounting Regulations “Information on Related Parties” (PBU 11/2008), approved by Order of the Ministry of Finance of Russia dated April 29, 2008 No. 48n):

• participation in the authorized (share) capital;
• provisions of the constituent documents;
• concluded agreement;
• participation in the supervisory board;
• other circumstances.

Let's consider another situation to determine the presence of interdependence between the participants in a trade transaction (in this case, the resale of goods.

Situation 2

An organization that applies the general tax regime is engaged in wholesale trade. All its customers purchase goods for subsequent resale. At the same time, the organization sets a markup of 7% for large partners, and from 7 to 20% for medium and small partners. One of the major partners is a co-founder of the seller organization with a 45% share in the seller’s authorized capital. Both the seller organization and the buyer - its co-founder - apply a common taxation system.

In this situation, the tax authorities have the right to check prices for transactions between the selling organization and its co-founder, since these transactions are carried out between interdependent persons. The Russian Federal Tax Service may adjust the tax base for a transaction with a related party if its commercial and financial terms differ from the terms of comparable transactions between parties that are not related. That is, the general principle applies - comparison of conditions in analyzed and comparable transactions (clause 1 of article 105.3, clause 1 of article 105.5 of the Tax Code of the Russian Federation).

If an organization sells to non-related persons the same (identical or homogeneous) goods (Article 105.9 of the Tax Code of the Russian Federation) as its founder, and these transactions are comparable in terms or can be comparable using adjustments (for example, terms of payment, quantity of goods), then they will be compared with the analyzed transaction. Moreover, to apply the comparable market prices method, only one completely comparable transaction is sufficient.

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The list of controlled transactions has been expanded since 01/01/2014. Such transactions are now also recognized as:

• transactions between interdependent persons, if at least one of the parties to the transaction is a resident of a SEZ (special economic zone), the tax regime in which provides special benefits for income tax, while the other party to the transaction is not a resident of such a special economic zone (subclause 5 p. 2 Article 105.14 of the Tax Code of the Russian Federation);
• transactions with an organization holding a license to use a subsoil plot (in accordance with the conditions established by subparagraph 6, paragraph 2, article 105.14 of the Tax Code of the Russian Federation);
• transactions with a participant in a regional investment project applying a tax rate for corporate income tax subject to credit to the federal budget in the amount of 0% and (or) a reduced tax rate for tax subject to credit to the budget of a constituent entity of the Russian Federation (subclause 7, clause 2, art. 105.14 Tax Code of the Russian Federation);
• a set of transactions for the sale of goods (performance of work, provision of services) made with the participation (through mediation) of payers of the unified agricultural tax or UTII (subclause 1, clause 1, article 105.14 of the Tax Code of the Russian Federation).

Thus, an organization that has identified a controlled transaction must independently send a notification about it to the tax office at its location. The deadline for fulfilling this obligation is May 20 of the year following the reporting year. That is, controlled transactions based on the results of 2013 must be reported no later than May 20, 2014 (Article 105.16 of the Tax Code of the Russian Federation). If the organization violates this deadline, a fine of 5,000 rubles is possible. (Article 129.4 of the Tax Code of the Russian Federation). The tax inspectorate will forward the information received about controlled transactions to the Federal Tax Service of Russia. The analysis of prices applied by the organization will be carried out by specialists from the central office (Article 105.17 of the Tax Code of the Russian Federation). The methods they will use are presented in Chap. 14.3 Tax Code of the Russian Federation. In fact, this is another type of tax control (in addition to desk, on-site and counter audits).

To determine whether a transaction is controlled and whether an organization should submit a notification for the past calendar year, you can use the following algorithm (Fig. 2).

Rice. 2. Algorithm for determining a controlled transaction

In March 2014, Rosfinmonitoring submitted for discussion to the government the provisions of the National Plan to Combat Tax Evasion and Concealment of Beneficial Owners of Companies, designed to tighten the regime of mandatory disclosure of beneficiaries of any companies, introduce into legislation a ban on abuse of rights when paying taxes, and declare everyone controlled transactions with offshore companies. At the same time, the Plan itself is only a preparation for a broad discussion and development of the Concept for the development of a system for combating the legalization (laundering) of proceeds from crime, which is being prepared by a whole group of departments - Rosfinmonitoring, the Ministry of Internal Affairs, the Ministry of Finance, the Federal Drug Control Service, the FSB, etc.

The concept of “beneficial owner” is disclosed in Art. 3 of Federal Law No. 115-FZ of July 25, 2002 (as amended on July 21, 2014) “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism.” So, beneficial owner is an individual who directly or through third parties owns more than 25% of a legal entity or has the ability to control its actions.

According to this Federal Law, banks are required to identify the entire chain of real owners of the money brought to them, and clients are required to report the presence of beneficiaries.

Note!

When disclosing information about beneficial owners, information is provided that allows them to be unambiguously identified (Appendix to Letter of the Ministry of Finance of Russia dated January 29, 2014 No. 07-04-18/01).

If the company does not disclose its beneficiaries, then interest income on Russian securities recorded in the depositary is subject to a 30% income tax. Such changes have already been made to the Tax Code of the Russian Federation (clause 4.2 of Article 284 of the Tax Code of the Russian Federation). Further, it is planned to limit access to government procurement and any types of state support for firms with a foreign beneficiary. This will also affect firms with opaque ownership structures;

In addition, amendments to the Tax Code of the Russian Federation currently being prepared provide for the payment of tax on the income of foreign companies controlled from Russia. It is expected that Russian taxpayers who directly or indirectly own more than 10% of the capital of a foreign company will be required to report this to the Russian tax authorities. The mere fact of such ownership does not cause tax consequences. But they will appear if it becomes known that a company controlled from the Russian Federation does not distribute dividends among its owners, that is, it is used to divert profits from taxation. In this case, the corresponding share of this income will be “attributed” to the owners in the Russian Federation, and they will have to pay tax at standard rates - presumably 20% for companies and 13% for citizens (versus the current dividend tax rate of 9% for both categories of taxpayers) . The point of the innovations proposed by the Russian Ministry of Finance is to oblige companies formally registered abroad, but managed from Russia, to pay income tax in accordance with Russian legislation.

So in the near future:

• is supposed to introduce the concept of “tax resident of the Russian Federation” for organizations. So, for example, if a foreign organization is recognized as such, it will be required to pay taxes in Russia. The residency criteria may be as follows: the owner (beneficiary) is located in Russia, the company is managed from the Russian Federation, production is carried out on the territory of the Russian Federation, etc. In this case, double taxation agreements will not be terminated. Obviously, taxes paid in another country can be taken into account if such an agreement is in place;
• organizations will have to pay income tax on the income of Russian-controlled foreign companies in the event that they do not distribute profits and do not transfer dividends to owners in the Russian Federation. The preferential tax rate on dividends will not apply.

Changes in the procedure for serving documents related to tax control

In conclusion, a short overview of the main trends in tax control activities, it is worth paying attention to changes in the procedure for serving documents related to tax control.

Documents that are used by tax authorities in the exercise of their powers (such as a decision on an audit, a requirement to submit documents, a certificate of completion of an audit, a notice of summoning of a taxpayer, an audit report, a decision to prosecute for committing a tax offense) can be sent to the addressee (or his representative) by registered mail.

If such documents are sent by mail, they will be sent:

• organizations - exclusively for the so-called legal address, that is address specified in the Unified State Register of Legal Entities;
• individual entrepreneur - to the address of his place of residence(place of stay) or to the address provided to the tax authority for sending documents contained in the Unified State Register of Real Estate.

These changes are already in effect in connection with the introduction of amendments to Art. 31 of the Tax Code of the Russian Federation (the norm is supplemented by clause 5). Therefore, if the organization is actually located at a different address and therefore does not receive postal correspondence, all risks associated with its non-receipt will be borne directly by the organization. And the inspectorate has the right to liquidate an organization that does not respond to tax letters for a long time through the court. The Plenum of the Supreme Arbitration Court agreed with this in Resolution No. 61 dated July 30, 2013.

E. N. Selyanina, auditor, Ph.D. econ. sciences

In world practice, there are various options for organizing tax authorities and their subordination. In some countries they have an independent status (Australia, China, Japan), in others they are structural divisions of financial authorities (Italy, France, Switzerland, USA) or are subordinate to an authorized body in charge of state revenues (Kazakhstan). In some countries, there is a division of tax administrations along the lines of direct and indirect taxes, for example, in Thailand, along with the Tax Department, there is an Excise Department. It is possible to divide the powers to collect taxes between tax administrations at different levels. In Canada, the Quebec Ministry of Revenue collects federal taxes along with provincial taxes in the province, while taxes in the rest of the country are collected by the Canada Customs and Revenue Agency. In some countries, for example in Austria, there are no tax authorities themselves, so taxes are collected by financial directorates and services, which are structural divisions of the Ministry of Finance.

The structures of tax administrations for the most part include units that are responsible for: accounting for taxpayers, monitoring the timeliness and completeness of tax payments, collecting tax arrears, informing about tax legislation and advising on its application, considering disputes arising in connection with taxation, personnel, financial, information support. Thus, the General State Administration of Taxation of China has a number of departments and offices in its structure. In particular, there is the Department of Tax Collection and Management, Department of Financial Management, Department of Control, Main Directorate, Department of Tax Policy and Tax Legislation, Department of Planning and Statistics, Department of Turnover Taxes, Department of Income Taxes (Income), Department of Local Taxes, Department of agricultural taxes, Office of International Taxation, Office of Export and Import Taxation, Office of Tax Investigations, Office of Personnel Management. In turn, each of the main divisions includes several departments. For example, the Tax Collection and Management Department includes: a tax propaganda department, a department for processing and maintaining invoices, and a marketing department. The Department of Tax Policy and Tax Legislation includes: a general department, a tax reform department, legislative and appellate departments. In addition, the tax administration system includes the Institute for Scientific Research in the Field of Taxes, the Tax Workers Training Center, the Tax Agent Management Center, and the Tax College.

At the same time, in the world practice of tax control, three stages of development can be distinguished.

Each subsequent stage differed from the previous one primarily in the further improvement of tax mechanisms and the increasing importance of taxes as sources of government revenue, as well as the development of the system of government bodies and tax control as their component part.

The first stage is characterized by fragmentation of all elements of tax control as a result of insufficient development of the state structure and, accordingly, the mechanism of public administration. Tax and financial control is carried out without any systematic approach or the identification of a clear mechanism for its regulation.

At the first stage (the period of early states), the establishment of the first, quite primitive and predominantly natural taxes, as well as their unsystematic collection without the use of a special tax apparatus, occurred. In fact, within the state there is no specialized body responsible on an ongoing basis for replenishing the state treasury. However, this is also explained by the absence of a government apparatus in general. In many ways, this is directly related to the fact that the state’s treasury at this stage is almost inextricably linked with the personal property of the monarch (sovereign) who heads the state. This, first of all, is connected with the very mechanism of exercising state power, which at that time was still at the stage of its inception and formation, and could not fully fulfill the tasks that are assigned to it and expected of it today. However, already at that time it was revealed that in many aspects of life, the effectiveness of the state, its role and significance in its historical era are largely determined by the system of public administration existing in it, its strength and effectiveness.

At the second stage, as the state apparatus develops and strengthens, tax control is centralized and strengthened. Specialized bodies of the state apparatus are beginning to be created, the state is beginning to consider tax control as one of the ways to ensure its financial and political independence, strengthen the state structure and suppress separatist sentiments in certain territories.

The second stage in the development of taxation is characterized by an increased role of taxes in state revenues and the relative harmony of the system for their collection. It was during this period that the world's first modern tax systems were formed. It is no coincidence that at one time the famous Russian tax expert N.I. Turgenev noted that “all tax systems that now exist in various European countries have their origins in the Middle Ages.”

At the third stage of development of tax control, a transition to decentralization of the system of bodies implementing it was identified if the state has a federal system of government and administration. This stage is characterized by the empowerment of regional and local authorities with bodies that allow them to independently control the collection of regional and local taxes to be credited to the budget of the subject or region. This aspect allows regional and local authorities to generate budget revenues independently, without attracting support from the central government.

Mechanisms for monitoring information provided for the purposes of calculating and paying taxes are beginning to take shape. For example, in the 12th century. In German cities, for the purpose of taxation, citizens were required to report under oath the value of their property. To ensure that the size of the property was not underestimated, the authorities were given the right of priority to purchase it at the announced price.

This stage dates back to the 19th century. It is distinguished by the streamlining and improvement of taxation mechanisms based on the historical experience gained and scientific research in the field of finance and law. It was during this period that purposeful and gradual reform of tax systems and tax authorities as an element of state financial control was carried out in various countries of the world

The most significant thing at this stage is the further development of the institution of income taxation and its role as an element of social regulation. Moreover, on new principles associated with a differentiated approach to determining the amount of tax not on the basis of the origin or social status of the payer, but on the basis of his real income.

To summarize, it can be noted that the tax authorities constitute a single centralized system of control over compliance with legislation on taxes and fees, the correctness of calculation, completeness and timeliness of payment (transfer) of taxes and fees to the budget system of the Russian Federation. The tax authorities of the Russian Federation have a three-tier system, headed by the Federal Tax Service. The organization of tax authorities is characterized by a vertical structure of subordination.

Tax authorities act within their competence and in accordance with the legislation of the Russian Federation. The rights and obligations of tax authorities are regulated by the Tax Code of the Russian Federation.

The control function performed by the tax authorities is the most important, since thanks to it the fiscal policy of the state is implemented. Tax control recognizes the activities of authorized bodies to monitor compliance by taxpayers, tax agents and payers of fees with legislation on taxes and fees in the manner established by this Code.

The Tax Code defines the following forms of tax control:

• 5) tax audits;
• 6) obtaining explanations from taxpayers and other obligated persons;
• 7) verification of accounting and reporting data;
• 8) inspection of premises and territories used to generate income (profit).

Methods of tax control are understood as techniques, methods or means of its implementation. Tax control methods differ depending on whether tax control is documentary or factual.

As for foreign experience in tax control, three stages of development can be distinguished. The first stage is characterized by fragmentation of all elements of tax control as a result of insufficient development of the state structure and, accordingly, the mechanism of public administration. At the second stage, as the state apparatus develops and strengthens, tax control is centralized and strengthened. The third stage is characterized by the empowerment of regional and local authorities with bodies that allow them to independently control the collection of regional and local taxes to be credited to the budget of the subject or region.

GRADUATE QUALIFYING WORK

Legal problems of tax control in the Russian Federation

Introduction

§1. Legal status of executing subjects of tax control

§2. The concept and types of tax audits carried out by the tax authorities of the Russian Federation

§3. Offenses identified during tax audits and responsibility for their commission

Conclusion

Introduction

Relevance of the research topic. At the present stage of economic development of the Russian Federation, the problem of timely replenishment of the budget, its balance in income and expenses, reducing the deficit and external debt, and ensuring financing of federal and regional needs is particularly relevant. Taxes are the main source of government revenue.

World practice shows that the results of the tax system of any state depend on the quality of tax control. With its low efficiency, taxpayers will seek methods of evading taxes and fees in full, which will lead to a sharp decrease in tax revenues to the budget, failure of the state to implement social programs, and increased social tension in society.

Practical significance of the research topic. The role of taxes in a modern state is invaluable. They form the basis of the state’s revenue, which allows it to carry out its functions in full: maintain the army, build roads, carry out social programs, etc. However, the implementation of tax control in Russia is complicated by the fact that the Russian tax system was created almost anew, with minimal continuity in relation to the Soviet era and significant use of Western experience. Tax control proceedings are fundamentally different from pre-reform times.

This circumstance gave rise to many problems. The Tax Code contains gaps and contradictions due to both the variability of economic relations and errors and inaccuracies made in the process of adopting laws. The tax system at the present stage is characterized by the absence of a unified conceptual approach to the organization of tax control, therefore there are large reserves in the study from the standpoint of regulating the complex of relationships between tax authorities and taxpayers, the procedure for carrying out tax audits and the application of tax liability measures.

The relevance of the problem of increasing the efficiency of tax control in Russia, the insufficient development of ways to solve these problems in the economic and organizational aspects determined the choice of the topic of this thesis and predetermined the concept of this scientific work, the purpose, objectives and objects of research

Degree of knowledge of the problem:

Despite the fairly large volume of scientific work devoted to the study of tax legal relations in the field of tax control, it cannot be admitted that all problems in the study of legal regulation have been solved. Most of the works are devoted to the characteristics of tax legislation, consideration of the subject, methods of tax control, analysis of tax legal relations, and study of the legal regime for collecting individual taxes. Tax administration issues are among the least developed in domestic and foreign literature.

In connection with the adoption of the Tax Code and a fundamentally new approach to the implementation of tax control, interest in studying the problems of tax control has increased. In the late 90s, tax control became a constant object of research by scientists and practitioners. A wide range of scientific and educational literature is devoted to the development of tax control methodology. This thesis would be impossible without studying the theoretical developments of the problems of tax control. The basic principles of tax theory contained in the classic works of A. Smith, D. Riccardo, C. Montesquieu, W. Petty, J. Sismondi are relevant for this study. Among the representatives of domestic science involved in the theory of taxes and taxation, one should name N. Turgenev, I. Ozerov. Important provisions of the theory of taxes and tax law that meet the conditions of modern Russia were formulated in the works of scientists: L. Bryzgalin, O. Gorbunova, I. Gorsky, V. Gureev, P. Kozyrin, L. Okuneva, S. Pepelyaev, G. Petrova , V. Pushkareva, G. Tolstopyatenko, N. Khimicheva, D. Chernik, I. Peronko, S. Shatalin, V. Parygina, A. Tedeev, L. Yavich and others.

Research confirms the presence of certain gaps in the norms of the Tax Code (hereinafter referred to as the Tax Code) of the Russian Federation governing the conduct of tax audits and the implementation by tax authorities of effective tax control. Tax legislation is controversial; organizational procedures for tax control and the practice of their application have given rise to many problems, the need to solve which requires a comprehensive and in-depth study. This paper makes an attempt to consider the main problems that arise when implementing tax control.

The purpose of this work is to analyze the theory and practice of tax control in Russia and abroad and, on this basis, to develop practical recommendations for improving the tax control system as the main function of tax administration.

The purpose of the study is determined by the need to solve the following theoretical and practical problems:

Based on the evolution of taxation, explore the concepts of the content of tax control, identify patterns of development of forms and methods of tax control in the context of reforming the tax system;

Determine the main forms of tax control, the legal status of its participants and the procedure for bringing to tax liability based on its results;

Research the regulatory framework for tax control, analyze court decisions and propose measures to improve tax legislation;

The object of the study is the totality of tax relations between the state and taxpayers of the Russian Federation.

The subject of this study is the rules of law governing the implementation of tax control in the Russian Federation.

The normative basis of the work was the Constitution of the Russian Federation, federal laws, laws of constituent entities of the Russian Federation, regulatory legal acts of the President and the Government of the Russian Federation, ministries and departments, decisions and resolutions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, federal arbitration courts of districts, arbitration courts subjects of the Russian Federation and others.

The theoretical basis of the work was the work of Russian scientists A.A. Isaeva, V.A. Lebedeva, D.I. Lvova, I.Kh. Ozerova, E.G. Osokina, K.I. Rovinsky, N.I. Turgenev, Soviet scientists: A.A. Sokolova, S.D. Tsypkina; Russian legal scholars: A.V. Bryzgalina, D.V. Vinnitsky, A.N. Kozyrina, T.L. Komarova, I.I. Kucherova, O.A. Nogina, S.G. Pepelyaeva, E.V. Porollo; economists: A.V. Bachurina, G.L. Rabinovich, T.F. Yutkina; practical workers: V.V. Gusevoy, D.G. Blueberry. The work used publications in scientific journals, materials of scientific and practical conferences, abstracts of dissertations.

The informational and empirical base of the study was formed on the basis of materials from the Federal Tax Service of Russia for the Bryansk Region, the Statistics Committee of the Bryansk Region, the Ministry of Finance of the Russian Federation, and publications in the domestic and foreign press.

The methodological basis of the study was general scientific methods of cognition, including historical, formal-logical methods, as well as analysis, synthesis, observation and comparison.

Provisions for defense:

1. It is necessary to add paragraph. 2 clause 8 art. 88 of the Tax Code of the Russian Federation and state it in the following wording: “

2. Paragraph should be changed. 4 clause 9 art. 89 of the Tax Code of the Russian Federation and state it in the following wording: “The period for the taxpayer to provide documents requested from him before the date of the decision to suspend the on-site tax audit is also suspended.”

3. Add clause 2 of Art. 93 of the Tax Code of the Russian Federation and state it in the following wording: “The requested documents are presented in the form of copies certified by the person being verified or, at the request of taxpayers, in the form of originals with the obligation of tax authorities to subsequently return the verified documents to the taxpayer.”

Scope and structure of the study. The thesis consists of an introduction, two chapters, including six paragraphs, a conclusion, a list of references and applications on the research topic. The work is presented on 83 pages of main text. The structure of the work reflects the general idea and logic of the study.

Chapter 1. Legal characteristics of tax control

§1. The evolution of taxation and tax control in the Russian Federation

Tax control is one of the most important areas of state financial control. Its priority is due to the importance of taxes and fees, which are the main source of income for budgets at all levels. Improving tax control is impossible without understanding its legal essence, studying the stages of development and the mechanism of action of tax control, its forms, types and methods, as well as assessing the effectiveness of tax control in the Russian Federation.

In the gradually reforming Russian economy, which has moved from a planned economic system to market financial and economic regulation of commodity and cash flows, a special place is occupied by the system of state control, including tax control, which is one of the factors of its development and stabilization. Taxes are the main source of government revenue. Taxes account for 78.5% of the federal budget. Moreover, only half of the taxpayers in the country actually pay taxes. The number of taxpayers who do not submit reports to the tax authorities or submit “zero” reports, as of the beginning of 2007. amounted to 1,458,725 organizations and 967,691 individual entrepreneurs.

1. Therefore, the issue of clear, without ambiguities and ambiguities, legal regulation of the relationship between tax authorities and taxpayers (payers of fees, tax agents) arising during the implementation of tax control, was and currently remains one of the main issues of building a rule of law state and the possibility of further continuation of economic reforms. Ideally, the legal regulation of the tax control system should create acceptable conditions for the holistic, consistent, rational and successful performance by this system of its inherent functions in the specific economic environment existing in Russia. The legal regulation of tax control remains poorly understood today. At the same time, the study of this issue has both theoretical (in order to identify ways to further improve legislation) and practical (to protect the rights of taxpayers and the interests of the state) necessity. Taxation problems have constantly occupied the minds of philosophers, economists, and statesmen of various eras. The organization of effective tax control was one of the most important tasks solved by the Roman emperor Augustus Octavian. To carry it out, he created financial institutions in all the provinces of Ancient Rome, whose competence, in addition to control over the timing of tax receipts, included the assessment and determination of community tax contributions. Analyzing the evolution of taxation, it should be noted that from the beginning of taxation to the present time, the main problem in establishing taxes was the problem of the size of the established tax and control over its payment. S. Montesquieu believed that “not a single state question requires such wise and prudent consideration as the question of what part should be taken from the subjects and what part should be left to them. State income should be measured not by what the people can give, but by what they must give. But if the people are left with only what is needed to sustain life, then the slightest disproportion will lead to the most disastrous phenomena. In imposing a tax, the state must “proportionate its wealth to the wealth of individuals.”

S. Montesquieu posed the question: “Will the state begin to enrich itself through the ruin of its subjects, or will it wait until its subjects, who have achieved material well-being, enrich it?” In the 19th century the tax began to be seen as an instrument for the redistribution of social wealth: the stronger shoulders should bear a heavier burden, the very weak should be freed from the burden of taxes, the weak should be supported by the taxes collected. A. Smith believed that only those who have income can pay taxes. The main three sources to which the type of income corresponded: land - rent, capital - profit, labor - wages. All other types of income (for example, artists, writers, etc.) are secondary and are formed from the three named incomes. This phenomenon was described in the 18th century. and is associated with the introduction of a new tax on profits.

The main merit of A. Smith is that he developed the legal and economic basis of financial management. His scientific recommendations began to be used in the legislative practice of European states. A. Smith's teachings continue to be developed by his student D. Riccardo. A follower of the ideas of A. Smith, J. Sismondi saw the goal of tax policy as a significant improvement in the lives of the people by reducing indirect taxes, establishing a tax-free minimum, and demanded progressiveness in taxation. He believed that “those who use these services, the wealthy, and not the poor, should pay for state services with taxes.” The progressive views of J. Sismondi were used by the governments of many European states in the second half of the 19th century.

The teachings of Smith, Riccardo and Sismondi made it possible to take a step forward in the doctrine of state and law, including tax law. They began to demand from the state that it recognize as inviolable the personal dignity of a citizen, his rights and freedoms. The theory of the physiocrat W. Peggy and the views of I. Kant served as the basis for the concept of the rule of law.

Under the influence of new theories in the field of philosophy, law and government, conceptual models of tax systems changed depending on the economic policy of the state. A theoretical view of taxes began to take shape relatively recently, posing the following questions: what is the internal nature of taxes as a legal phenomenon, how do various taxes affect the country’s economy, how do taxes affect different segments of the population, what is the effectiveness of certain taxes for the state treasury.

In Russia, the prototype of a unified tax service took shape in the reign of Ivan III with the advent of the financial management of the state order. During the reign of Alexei Mikhailovich, the number of orders in charge of collecting taxes increased significantly, and only in 1718 they were abolished by Peter I in connection with the establishment of a chamber collegium, whose responsibilities were “supervision and management of salary and non-salary income.”

During the time of Catherine II, by decree of October 24, 1710, an expedition for state revenues was established. A year later, it was divided into four independent expeditions: the first dealt with income, the second with expenses, the third with auditing accounts, and the fourth with collecting arrears, shortfalls and surpluses. All four expeditions were subordinate to the Prosecutor General. By that time, the Petrine Collegiums had been abolished, and their financial management functions were transferred to the treasury chambers. On September 8, 1802, the Ministry of Finance was created, the main task of which was to manage the treasury and state money needed by the government for its maintenance. Locally, issues of the tax system were resolved by the Treasury Chamber, subordinate to the Ministry of Finance. In 1885, the positions of tax inspectors were established under the jurisdiction of the treasury chambers, who monitored the correct collection of taxes in their areas. Tax inspectors studied the real state of affairs in the economic activities of the population and the amount of income received. They also investigated the facts of abuses to conceal tax income and tax evasion.

February bourgeois-democratic revolution of 1917 did not make any serious changes to the system and structure of tax authorities. Radical changes began only at the end of 1918. On October 31, the Council of People's Commissars adopted a Decree on the organization of financial departments of provincial and district committees of the Soviets of Workers', Peasants' and Red Army Deputies. From an instrument of financial policy and a regulator of market relations, taxes were turned into a weapon of class struggle, a means of economic suppression of a large number of people belonging to the middle class. For example, the ten-billion-dollar emergency tax adopted in 1918 was openly confiscatory in nature.

The civil war and economic devastation led to the policy of war communism, when private trade was completely prohibited, a planned supply of the population with essential goods (ration card system), labor conscription, and surplus appropriation were introduced. Food detachments carrying out food appropriation were given broad powers by the Sami. The surplus appropriation plan implied the confiscation of all surpluses received by the peasant. These changes were illegal and inhumane. Only in March 1921. the surplus appropriation system was replaced by a tax in kind. 1

In 1925 The NKF of the USSR adopted the Regulations on external tax supervision, which defined the rights, functions, tasks and responsibilities of financial inspectors, their assistants and financial agents. External tax supervision was entrusted with examining taxpayers, studying the sources of their income, and objects of taxation. Salary accounting (arrears cards, books, reporting sheets, etc.) was transferred to cash authorities, and collection of payments was transferred to tax agents. Of exceptional importance was the control over the collection of taxes by higher financial authorities.

According to the regulations on the collection of taxes, in order to carry out their tax control functions, financial agents were vested with the broadest powers to conduct audits. When forced to collect taxes, financial authorities had the right to inventory, seize and sell at public auction property and buildings belonging to the debtor, and to levy penalties on amounts due to the debtor from third parties or on current accounts in credit institutions. Consequently, the state exercised strict tax control. The Criminal Code of the RSFSR (1922) had a number of articles (Articles 78, 79, 79a, 80, 139a, 108) providing for liability for tax offenses and crimes against taxation procedures. The number of people convicted under these articles was significant. So in 1923 - 20,572 people were punished for tax evasion, and in 1925. the number of people convicted under these articles has already reached 26,152 people. In addition, tax crimes in those years also acquired a political overtones, i.e. were seen as hidden opposition to Soviet power.

It should be noted that the huge number of tax offenses has led to the need to create tax courts. For example: In Leningrad, in accordance with the Resolution of the Leningrad Provincial Court, a special chamber of the people's court for tax cases was created, and later it was created under the Moscow Financial Department. In our opinion, today there is a ripe need to create tax courts, which is spoken about not only by scientists and tax service specialists, but also by the judicial authorities themselves. It is important to note that the methods of tax evasion used in the 20s are still relevant today. Thus, some of the common methods of tax evasion were such as liquidation of an enterprise at the time of tax payment, the creation of cooperatives that enjoyed tax benefits, trading in goods purchased through dummies with patents, and maintaining double accounting books.

In addition, tax crimes in those years also acquired a political overtones, i.e. were seen as hidden opposition to Soviet power. It should be noted that the huge number of tax offenses has led to the need to create tax courts. For example: In Leningrad, in accordance with the Resolution of the Leningrad Provincial Court, a special chamber of the people's court for tax cases was created, and later it was created under the Moscow Financial Department. In our opinion, today there is a ripe need to create tax courts, which is spoken about not only by scientists and tax service specialists, but also by the judicial authorities themselves. It is important to note that the methods of tax evasion used in the 20s are still relevant today. Thus, some of the common methods of tax evasion were such as liquidation of an enterprise at the time of tax payment, the creation of cooperatives that enjoyed tax benefits, trading in goods purchased through dummies with patents, and maintaining double accounting books.

Economic and legal reform in Russia led to the emergence of the concept of “tax control” in legislation. For the first time, this category was enshrined in Article 1 of the Law of the Russian Federation of March 21, 1991 No. 943-1 “On the State Tax Service of the Russian Federation” by defining the State Tax Service of the Russian Federation (now the Ministry of Taxes of the Russian Federation) as a unified system for monitoring compliance with tax legislation and the correctness of calculations , completeness and timely payment of taxes and other obligatory payments established by the legislation of the Russian Federation and the legislation of the constituent entities of the Russian Federation into the relevant budget.

In accordance with Decree of the President of the Russian Federation No. 1635 of December 23, 1998. The State Tax Service of the Russian Federation was transformed into the Ministry of Taxes and Duties of the Russian Federation. However, it should be noted that the change in the status of tax authorities did not actually occur.

In accordance with Decree of the President of the Russian Federation No. 1176 of August 14, 1996 "On the system of federal executive bodies", the Ministry of the Russian Federation is a federal executive body that carries out public policy and carries out management in the established field of activity, and the federal service of the Russian Federation is considered as a federal body executive power, carrying out special (executive, control, licensing, regulatory and other) functions in established areas of jurisdiction. From the definition of the Ministry of the Russian Federation it is clearly clear that it is a body that directly manages a certain range of objects related to a given branch of management and subordinate to them. Unlike the ministries of the Russian Federation, which have mainly sectoral specialization, federal services are called upon to carry out intersectoral functions and do not have powers for direct operational management. Subordination can only be present in some special relationship.

Considering the issues of such a distinction, a well-known specialist in the field of tax law Ayvazyan G.A. noted that the intersectoral, controlling, as well as coordination and regulatory nature of activity is the special feature that distinguishes functional bodies from sectoral ones. Publications on tax law rightly note the functional and controlling nature of the Ministry of Taxes of the Russian Federation. However, such assessments of the essence of tax control bodies are not always clearly interpreted in the specialized and educational literature. There are statements that “through tax control, the legality and expediency of the activities carried out, the timeliness of payment of taxes and fees are checked.” Conclusions are drawn about tax control as a method of guiding the competent government body over compliance by taxpayers with the requirements of tax legislation. We cannot agree with this approach. Neither the Tax Code of the Russian Federation nor other acts of tax legislation contain norms indicating the possibility of control by the tax authorities of the appropriateness of the activities of taxpayers and tax agents. Such powers are typical for sectoral rather than functional and control bodies. Accordingly, the definition of tax control as a management method seems inappropriate. However, it should be taken into account that only Federal Law No. 137-FZ of July 27, 2006 “On Amendments and Additions to the Tax Code of the Russian Federation” introduced the concept of tax control. Until this time, this definition was absent in the legislation. Having studied the history of the development of tax control, let us analyze its essence and significance in more detail.

§2. The concept and significance of tax control

As noted above, until recently the legislation did not contain the concept of tax control. The Tax Code was limited to indicating that tax control is carried out by officials of tax authorities within their competence through tax audits, obtaining explanations from taxpayers, tax agents and fee payers, checking accounting and reporting data, inspecting premises and territories used to generate income ( arrived). Making an attempt to formulate the concept of tax control, one cannot fail to note the definitions that were encountered before 2008. in scientific literature. So, T.F. Yutkina writes that “tax control is an element of financial control and the tax mechanism. Tax control permeates the economy vertically and horizontally, ensuring compliance with the rules of accounting and reporting, and the legislative framework of taxation.” Alekhin A.P. points out the specialized nature of tax control, determining that such control is formed in the form of organizationally and legally independent government bodies.

I.I. Kucherov only says that tax control is one of the most important areas of financial control, it belongs to the type of financial and economic control, correlating with state financial control as the particular with the general.

According to A.V. Bryzgalin and V. Zaripov, tax control consists not only of checking compliance with the legislation on taxes and fees, but also of checking the correctness of calculation, completeness and timeliness of payment of taxes and fees, as well as eliminating identified violations. In general, tax control was defined by these authors as: “a set of techniques and methods of verification established by law, carried out by tax authorities and ensuring the completeness and timeliness of payment of taxes and fees, as well as the fulfillment of other obligations of taxpayers and other obligated persons.”

Currently, the concept of tax control contains Art. 82 of the Tax Code of the Russian Federation. Tax control recognizes the activities of authorized bodies to monitor compliance by taxpayers, tax agents and payers of fees with legislation on taxes and fees in the manner established by the Tax Code. Tax control is carried out by officials of tax authorities within their competence through tax audits, obtaining explanations from taxpayers, tax agents and fee payers, checking accounting and reporting data, inspecting premises and territories used to generate income (profit), as well as in other forms. The specifics of tax control during the implementation of production sharing agreements are determined by Chapter 26.4 of the Tax Code. Tax authorities, customs authorities, authorities of state extra-budgetary funds and internal affairs authorities, in the manner determined by agreement between them, inform each other about the materials they have about violations of the legislation on taxes and fees and tax crimes, about the measures taken to suppress them, about tax audits carried out by them, and also exchange other necessary information in order to perform the tasks assigned to them.

The phenomenon of tax control is much broader and more voluminous than the idea of ​​it as the simplest mechanism for implementing the fiscal function of taxation. Objectively, tax control, as an independent state-legal institution, is subject to existing social and economic realities. Therefore, when defining the concept of “tax control”, one cannot limit oneself to a descriptive approach, but it is necessary to consider its internal essence, internal content.

The problem of studying the internal essence of tax control as an independent state legal institution (Tikhomirov Yu.A. understands by state institution a relatively independent structural and legal element of a state organization, formalized in organizational and legal terms and intended to solve certain state problems), requires research into it legal nature, determining the place of tax control in the tax system.

The nature of tax control is clearly revealed in its main manifestations as a function of managing the state taxation system. In accordance with the provisions of the Lima Declaration of Guiding Principles of Control, control is not an end in itself, but an integral part of the national system for regulating public relations, revealing deviations from accepted standards and violations of the principles of legality, efficiency and economy in the use of material resources at an earlier stage, with in order to be able to take appropriate corrective measures, and, if necessary, bring the perpetrators to justice, recover the damage caused to the state, and at the same time develop and implement measures aimed at preventing the occurrence of similar violations in the future (Article I). The legal literature rightly notes that the content of control includes 1:

a) monitoring the functioning of controlled objects, obtaining objective information about their compliance with rules and instructions, their condition;

b) analysis of collected information, identification of trends, causes of violations, development of forecasts;

c) taking measures to prevent violations of the law and discipline, harmful consequences, damage, inappropriate actions and expenses;

d) taking into account specific violations, identifying their causes and conditions;

e) identifying those responsible and bringing them to justice.

The specificity of any control as a control element is that you can only control what already objectively exists, really exists (or at least should exist). Tax control is in itself an element of the organization of any financial activity. The purpose of tax control is the elimination and prevention of errors and violations, as well as the qualitative improvement of tax accounting and reporting. 2

The state exercises tax control, primarily for such purposes as replenishing the budget and extra-budgetary public funds. The activities of non-governmental organizations and private entrepreneurs are subject to state tax control only in terms of compliance with financial discipline. In order to objectively assess the role and essence of tax control, its concept should be considered in two aspects: narrow and broad. In a broad aspect, tax control is a set of government regulation measures that ensure, in order to implement an effective state financial policy, the economic security of Russia and compliance with state and municipal fiscal interests. In a narrow aspect, tax control is the control of the state, represented by the competent authorities, over the legality and appropriateness of actions in the process of introducing, paying or collecting taxes and fees. Tax control, like control in general, is a special way of ensuring legality in tax law and is carried out at all stages of the financial and economic activities of fiscally liable persons. Since tax control is a type of state control, it carries all the essential features of the latter. At the same time, tax control has some specific features that distinguish it from other areas of control activity and consist in the characteristics of its object and subject, the composition of subjects of control and controlled persons, goals and objectives, as well as forms and methods. The specifics of tax control depend on the areas of financial and economic activity of taxpayers, types of taxes, legal status of the taxpayer, etc. The objects of tax control are the movement of funds in the process of accumulating public funds, as well as material, labor and other resources of taxpayers. The subject of tax control is currency and cash transactions, enterprise estimates, tax returns, the use of tax benefits, accounting documentation, etc.

The subjects of tax control are tax authorities, bodies of state extra-budgetary funds, and customs authorities. The Accounts Chamber of the Russian Federation and the Ministry of Finance of the Russian Federation have separate control powers regarding the sphere of taxation. Controlled entities are organizations and individuals who are responsible for paying legally established taxes and fees. In the system of legal relations developing in the field of tax control, these subjects become recipients of government regulations, which necessitates monitoring the implementation of established rules of behavior. The purpose of tax control can be defined as ensuring the legality and efficiency of taxation. This is most clearly expressed in checking compliance with special tax regimes. Tax control over legality also extends to the commission of actions (operations) established not only by prohibitory norms. For example, requirements to provide tax authorities with information necessary to monitor the correctness of calculation and complete payment of taxes are subject to control.

The main task of tax control is carried out by solving certain tasks that depend on the financial policy pursued by the state:

Ensuring the economic security of the state during the formation of public centralized and decentralized monetary funds;

Ensuring proper control over the formation of state revenues and their rational use;

Improving interaction and coordination of the activities of control authorities in the Russian Federation;

Verification of the fulfillment of financial obligations to the state and municipalities by organizations and individuals;

Checking the intended use of tax benefits;

Suppression and prevention of offenses in the tax sphere.

The scope of tax control does not include checking the fulfillment of financial requirements and rules of an economic rather than legal nature, which, although they affect the fiscal interests of the state, do not relate to financial and legal regulation (securities portfolio management, profit planning in a commercial enterprise, compliance with export regulations). and import quotas, etc.). 1

Tax control over the private sector of the economy affects only the sphere of fulfillment of monetary obligations to the state (payment of taxes and other obligatory payments), compliance with the legality and targeted use of tax benefits, compliance with accounting rules established by the state, as well as compliance with the legal requirements of authorized state bodies regarding the provision of -or financial documentation.

When exercising tax control, the collection, storage, use and dissemination of information about a taxpayer (fee payer, tax agent) obtained in violation of the provisions of the Constitution of the Russian Federation, the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), federal laws, as well as in violation of the principle of safety information constituting the professional secret of other persons, in particular attorney-client secret, audit secret. 2

The effectiveness of tax control largely depends on the quality of organization of accounting and tax accounting at enterprises.

Let us consider in more detail the forms and types of tax control.

§3. Forms and types of tax control

The implementation of tax control is carried out through the procedural activities of tax authorities, the basis of which is justified and adapted specific techniques, means or methods used in the implementation of control functions.

A form of tax control is a way of specifically expressing and organizing control actions. The form of tax control can also be understood as individual aspects of the manifestation of the essence of control, depending on the time of control activities.

The main forms of tax control are 1:

Checks;

Obtaining explanations from taxpayers, tax agents and fee payers;

Checking accounting and reporting data;

Inspection of premises and territories used to generate income (profit).

Control over the activities of taxpayers can be carried out in other forms provided for by the Tax Code of the Russian Federation.

Forms of tax control are of great importance, since the achievement of the final result and the effectiveness of control depend on the correct choice of specific actions and procedures by controlling entities. On the other hand, adequate application of tax control techniques and methods guarantees compliance with the rights and legitimate interests of controlled entities and allows not to interfere with the normal functioning of their financial and economic activities.

The presence of various goals and objectives for tax control also determines differentiated approaches to solving them, i.e., the need to use certain methods of inspections, assessments and analysis of the financial condition of controlled entities. The use of a certain form also depends on other factors: the legal status and characteristics of the activities of regulatory authorities; objects of control; grounds for the emergence of tax control legal relations; features of accounting; financial and legal regime of income and expenses of a controlled entity, etc.

Tax control is classified on various grounds into several groups.

Based on the time of implementation, tax control is divided into preliminary, current and subsequent.

Preliminary tax control is carried out before the reporting period for a specific type of tax or before the issue of providing the taxpayer with tax benefits, changing the deadlines for paying taxes, etc. is resolved. For example, a mandatory condition for granting a tax credit is a preliminary audit of the taxpayer’s financial condition by an authorized government body.

Ex-ante control is important when assessing the economic, legal and political consequences of tax bills; upon the introduction of new financial and legal norms regulating the taxation of business entities. The preliminary implementation by control bodies of their functions is of great importance for the prevention of crime and helps strengthen financial discipline.

Externally, the results of preliminary tax control can be formalized in the form of expert opinions on draft agreements on the provision of tax benefits, tax credits, deferment or installment payment of taxes, etc.

Current tax control is carried out during the reporting tax period. A feature of current tax control is its implementation during the implementation of business or financial transactions, in the process of daily work of taxpayers. Therefore, current tax control is otherwise called operational. This type of control is based on accounting and tax accounting, primary documents, inventories, and the procedure for conducting cash transactions, which allows both regulatory authorities and controlled entities to quickly respond to changes in financial activities, prevent violations of tax legislation and thus prevent financial losses of state or municipal treasury. 1

Subsequent tax control is carried out after the end of the reporting period through analysis and audit of accounting and financial documentation. The main goal of subsequent tax control is to assess the timeliness and completeness of the fulfillment of tax obligations on the part of fiscally obligated persons. The main criterion for subsequent tax control should be considered the maximum completeness of coverage by inspections, audits and other methods of all aspects of the financial and economic activities of the controlled entity.

In the course of tax control at the end of the reporting tax period, the state of financial discipline is determined, tax offenses are identified, and ultimately the basis is laid for further improvement of state and municipal financial activities. Subsequent tax control is characterized by an in-depth analysis of the financial and economic activities of a fiscally obligated person for a certain period and allows one to determine the degree of effectiveness of previously carried out preliminary and current control.

Tax control is a type of financial activity and at the same time a type of management activity of the state in the tax sphere, therefore, depending on the subjects, control is distinguished:

a) tax authorities;

b) customs authorities;

c) bodies of state extra-budgetary funds.

Depending on the location of the tax control, tax control is distinguished:

a) on-site - at the location of the taxpayer;

b) office - at the location of the tax authority.

For the purpose of tax control, organizations and individuals are subject to registration with the tax authorities, respectively, at the location of the organization, the location of its separate divisions, the place of residence of an individual, as well as at the location of the real estate and vehicles owned by them and on other grounds, provided for by the Tax Code of the Russian Federation.

An organization that includes separate divisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate divisions, if this organization is not registered with the tax authority at the location of this separate division on the grounds provided for Tax Code of the Russian Federation.

The Ministry of Finance of the Russian Federation has the right to determine the specifics of registration of major taxpayers, as well as foreign organizations and foreign citizens. Features of accounting for taxpayers when implementing production sharing agreements are determined by Chapter 26.4 of the Tax Code of the Russian Federation. Registration of organizations and individual entrepreneurs with the tax authority is carried out regardless of the presence of circumstances with which the Tax Code of the Russian Federation associates the emergence of an obligation to pay a particular tax or fee.

Registration of an organization or individual entrepreneur with the tax authority at the location or place of residence is carried out on the basis of information contained, respectively, in the unified state register of legal entities, the unified state register of individual entrepreneurs, in the manner established by the Government of the Russian Federation.

When an organization carries out activities in the Russian Federation through a separate division, an application for registration of such an organization is submitted within one month from the date of creation of a separate division to the tax authority at the location of this separate division, if the specified organization is not registered on the grounds provided for by the Tax Code of the Russian Federation, with the tax authorities on the territory of the municipality in which this separate division was created. If several separate divisions of an organization are located in the same municipality in territories under the jurisdiction of different tax authorities, the organization can be registered by the tax authority at the location of one of its separate divisions, determined by the organization independently. If taxpayers have difficulty determining the place of registration, a decision based on the data they provide is made by the tax authority. Tax authorities, based on available data and information about taxpayers, are obliged to ensure their registration.

Each taxpayer is assigned a single taxpayer identification number for all types of taxes and fees, including those payable in connection with the movement of goods across the customs border of the Russian Federation, and throughout the entire territory of the Russian Federation. The tax authority indicates the taxpayer identification number in all notifications sent to it. 1

Each taxpayer indicates his identification number in the declaration, report, application or other document submitted to the tax authority, as well as in other cases provided for by law, unless otherwise provided by this article. The procedure and conditions for assigning, applying, and changing a taxpayer identification number are determined by the Ministry of Finance of the Russian Federation. Individuals who are not individual entrepreneurs have the right not to indicate taxpayer identification numbers in tax returns, applications or other documents submitted to the tax authorities, while indicating their personal data provided for in paragraph 1 of Article 84 of the Tax Code of the Russian Federation. Based on accounting data, the federal executive body authorized for control and supervision in the field of taxes and fees maintains the Unified State Register of Taxpayers in the manner established by the Government of the Russian Federation. Information about a taxpayer from the moment he is registered with the tax authority is a tax secret, unless otherwise provided by Article 102 of the Tax Code of the Russian Federation.

Banks open accounts for organizations and individual entrepreneurs only upon presentation of a certificate of registration with the tax authority. The bank is obliged to report the opening or closure of an account, or a change in the account details of an organization (individual entrepreneur) to the tax authority at its location within five days from the date of the corresponding opening, closure or change in the details of such an account. The procedure for the bank to inform about the opening or closing of an account, about changes in account details in electronic form is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees. Banks are required to issue tax authorities with certificates about the availability of bank accounts and (or) cash balances in the accounts, statements of transactions on the accounts of organizations (individual entrepreneurs) in accordance with the legislation of the Russian Federation within five days from the date of receipt of a reasoned request from the tax authority.

Certificates about the availability of accounts and (or) cash balances in the accounts, as well as statements of transactions on the accounts of organizations (individual entrepreneurs) in the bank may be requested by the tax authorities in cases of tax control measures being carried out from these organizations (individual entrepreneurs).

The specified information may be requested by the tax authority after a decision is made to collect the tax, as well as in the event of decisions to suspend operations or cancel the suspension of operations on the accounts of an organization (individual entrepreneur). 1

Thus, having mastered the concept of tax control given by the legislator and leading legal scholars in the field of tax law, having studied the essence of this, the main types of tax control, methods of registering taxpayers, we will move on to the analysis of the main forms of tax control - tax audits, and also study the rights and responsibilities of the bodies implementing them.

Chapter 2. Tax audit as the main form of tax control

§1. The concept and types of tax audits carried out by the tax authorities of the Russian Federation

The study of tax control will be incomplete without studying the main forms of its implementation, the legal basis for conducting tax audits, the concept and essence of tax obligation, as well as the rights and responsibilities of the bodies exercising tax control.

A tax audit is the main form of tax control, which is a set of procedural actions of authorized bodies for monitoring compliance with legislation on taxes and fees and is carried out by comparing the reporting data of taxpayers with the actual state of its financial and economic activities.

Carrying out inspections of the financial and economic transactions of taxpayers is the main task of the tax authorities, the right to implement which is granted to them by Art. 31 Tax Code of the Russian Federation. The exercise by tax authorities of the granted control powers is possible only in the manner established by the Tax Code of the Russian Federation. Detailed legal regulation of control procedures is carried out through regulatory legal acts of the Ministry of Finance of the Russian Federation.

Tax audits occupy a leading place among other forms of tax control. Through a tax audit, it is possible to compare the data provided by the taxpayer to the tax authority and those facts identified by the tax authority. The main purpose of tax audits is to monitor compliance by fiscally obligated persons with the legislation on taxes and fees, timeliness and completeness of payment of due mandatory payments.

Tax legislation provides for the following general rules for conducting tax audits. The statute of limitations for conducting a tax audit is three calendar years of activity of the taxpayer, fee payer or tax agent preceding the year of the audit. This period is correlated with the statute of limitations for bringing to responsibility for violations of legislation on taxes and fees, which is also three years. As a general rule, it is prohibited to conduct repeated on-site tax audits on the same object - tax payable or paid by the taxpayer for a previously audited reporting period. There are two exceptions to this rule:

1) conducting a tax audit in connection with the reorganization or liquidation of the taxpayer organization;

2) conducting a tax audit by a higher tax authority in order to control the activities of the tax authority that conducted the initial audit.

If the tax authority needs to obtain information about the activities of third parties related to the taxpayer being inspected, it is permitted to request from these persons documents that are important for identifying the actual financial and economic activities of the inspected entity. Such procedural actions are called counter tax audits. The concept of “counter check” was enshrined by the legislator in the Tax Code of the Russian Federation before amendments were made to it by Federal Law No. 137 of July 27, 2008. After the amendments, such a concept is absent in the Tax Code of the Russian Federation, but essentially the Tax Code of the Russian Federation presupposes its existence.

Thus, clause 2 of Article 93.1 of the Tax Code of the Russian Federation states that if, outside the framework of tax audits, the tax authorities have a justified need to obtain information regarding a specific transaction, a tax authority official has the right to request this information from the participants in this transaction or from other persons who have information about this transaction.

The guarantee of compliance with the rights of taxpayers during tax audits is established by Art. 103 of the Tax Code of the Russian Federation the principle of inadmissibility of causing unlawful harm. This principle provides controlled entities with legal protection from arbitrary actions of tax authorities carrying out control activities. When conducting audits, tax legislation prohibits causing harm to the taxpayer, fee payer, tax agent or their representatives, as well as property in their possession, use or disposal. The implementation of the principle of inadmissibility of causing unlawful harm is ensured through compensation for losses caused by such actions. Unlawful actions of tax authorities should be considered actions committed in excess of legally established competence or in the abuse of granted rights.

Losses caused by unlawful actions are subject to compensation in full, including lost profits (lost income), and the form of guilt contained in the actions of tax officials does not matter. Compensation to the taxpayer for unlawfully caused damage is made at the expense of the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the municipal treasury.

Tax audits are divided into two types: office and on-site. A desk tax audit is carried out at the location of the tax authority on the basis of tax returns (calculations) and documents submitted by the taxpayer, as well as other documents on the activities of the taxpayer available to the tax authority.

This type of checks is carried out in relation to all types of taxpayers and without any special decision of the head of the tax authority, since the fact that the taxpayer has submitted a tax assessment automatically acts as a legal fact to verify its accuracy. Conducting a desk tax audit upon submission of financial documentation also determines the frequency of this type of control, i.e., as reports are submitted. A desk tax audit must be carried out within no more than three months from the date the taxpayer submits to the tax authority the documents that are the objects of tax control . Extension of the period for conducting a desk audit is not allowed. If the tax authority did not have time to compare the data from the taxpayer’s financial statements, then an on-site tax audit may be scheduled.

The object of a desk tax audit is the financial and economic activities of the audited entity for the reporting tax period. When conducting a desk audit, the tax authority has the right not to limit itself to the documents provided by the taxpayer and to request additional information, receive explanations and documents indicating that the taxpayer has fulfilled his tax obligations in good faith. The main method of desk verification is the selective method, which involves reconciliation of a precisely defined range of financial documents.

A desk tax audit is carried out by authorized officials of the tax authority in accordance with their official duties without any special decision of the head of the tax authority within three months from the date the taxpayer submits a tax return (calculation) and documents that, in accordance with the Tax Code of the Russian Federation, must be attached to the tax declaration (calculation), unless the legislation on taxes and fees provides for other deadlines.

Clause 3 art. 88 of the Tax Code of the Russian Federation states that if a desk tax audit reveals errors in the tax return (calculation) and (or) contradictions between the information contained in the submitted documents, or inconsistencies are identified between the information provided by the taxpayer and the information contained in the documents held by the tax authority, and received by him during tax control, the taxpayer is informed about this with the requirement to provide the necessary explanations within five days or make appropriate corrections within the prescribed period.

In some disputes, tax authorities expressed the opinion that the above provision is not binding, but only provides the tax authority with the right to bring identified errors or contradictions to the attention of the taxpayer. However, this position has not found support in judicial practice. Very characteristic in this regard is the Resolution of the Federal Antimonopoly Service of the West Siberian District dated August 24, 2005. in case No. F04-5532/2005 (14267-A27-15), where it is stated that since the inspection, having violated the procedure for conducting a desk audit (Article 88 of the Tax Code of the Russian Federation), did not provide the taxpayer with the opportunity to confirm the expenses incurred, the court rightfully came to the conclusion on the illegality of the inspection decision being appealed by the taxpayer.

A taxpayer who submits to the tax authority explanations regarding identified errors in the tax return (calculation) and (or) contradictions between the information contained in the submitted documents, has the right to additionally submit to the tax authority extracts from tax and (or) accounting registers and (or) other documents confirming the accuracy of the data entered in the tax return (calculation).

The person conducting the desk tax audit is obliged to consider the explanations and documents submitted by the taxpayer. If, after considering the submitted explanations and documents, or in the absence of explanations from the taxpayer, the tax authority establishes the fact of a tax offense or other violation of the legislation on taxes and fees, tax authority officials are required to draw up an inspection report in the manner prescribed by Article 100 of the Tax Code of the Russian Federation.

Requesting all primary documents to confirm the compliance of tax reporting with the actual state of affairs means turning desk audits into on-site audits, and the tax inspector does not need to check documents on the territory of the taxpayer and be there during the audit period: the enterprise itself will submit to the tax authority the documents necessary for the audit ( see on this issue the decisions of the Federal Antimonopoly Service of the North-Western District dated December 26, 2005 No. A42-2859/2005, dated June 3, 2005 in case No. A26-12618/04-29, dated April 21, 2005 in case No. A42-8825 /04-26, dated July 1, 2004 in case No. A66-9798-03, dated June 15, 2004 in case No. A56-28520/03; FAS Volga District dated March 3, 2006 in case No. A55-10425/05- 51; FAS Volga-Vyatka District dated April 14, 2005 in case No. A29-6147/2004a).

Indeed, substitution of tax audits would lead to non-compliance with the guarantees established by the Tax Code of the Russian Federation for taxpayers related to the procedure for conducting an on-site tax audit, regulated by Art. 89 and 100.

Unfortunately, the essentially correct conclusions of the judicial authorities did not find support from the Supreme Arbitration Court of the Russian Federation, which considered the controversial situation without taking into account the legitimate interests of the taxpayer (see resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 23, 2006 No. 14766/05, dated May 16, 2006 No. 14873/ 05).

It seems that after these decisions of the Supreme Arbitration Court of the Russian Federation, the courts will draw a conclusion about turning a desk audit into an on-site audit only if the tax authority requests an unreasonably large number of tax and accounting documents, including those clearly not related to the subject of the audit. Even after setting out the position of the Supreme Arbitration Court of the Russian Federation, the FAS of the West Siberian District in its resolution of July 6, 2006 No. F04-3944/2006 (2399b-A46-7) in case No. 14-1072/05 noted that tax legislation distinguishes between the concepts of desk and field tax inspections, as well as the grounds and methods for conducting them, substitution of one form of tax control for another is not allowed.

When conducting desk tax audits, tax authorities also have the right to request, in accordance with the established procedure, from taxpayers using tax benefits, documents confirming the right of these taxpayers to these tax benefits.

Introduced into the Tax Code of the Russian Federation by Federal Law No. 137 of July 27, 2006. The changes significantly limited the rights of tax authorities. So, clause 7 of Art. 88 of the Tax Code of the Russian Federation, limits the rights of tax authorities to request documents from the taxpayer.

If previously, before the changes were made, the tax authority had the right to request all the documents necessary to carry out the audit, now the tax authorities, when conducting a desk tax audit, do not have the right to request additional information and documents from the taxpayer, with the exception of:

1. documents confirming the right to tax benefits of the taxpayer using such benefits (clause 6 of Article 88 of the Tax Code of the Russian Federation),

2. documents that, in accordance with the provisions of the Tax Code of the Russian Federation, must be attached to the tax return (calculation), if they were not submitted with the declaration (calculation),

3. documents confirming the legality of tax deductions when filing a VAT return in which the right to a tax refund is declared (clause 8 of Article 88 of the Tax Code of the Russian Federation),

4. if an audit is carried out on taxes related to the use of natural resources, the tax authority has the right to request other documents that are the basis for the calculation and payment of such taxes (clause 9 of Article 88 of the Tax Code of the Russian Federation).

However, the following restrictions apply:

Tax authorities do not have the right to demand documents that have already been requested,

The desk audit does not have to be on-site.

According to paragraph 8 of Art. 88 of the Tax Code of the Russian Federation, when filing a tax return for value added tax, in which the right to a tax refund is declared, a desk tax audit is carried out taking into account the features provided for in this paragraph, on the basis of tax returns and documents submitted by the taxpayer in accordance with the Tax Code of the Russian Federation.

The tax authority has the right to request from the taxpayer documents confirming, in accordance with Article 172 of the Tax Code of the Russian Federation, the legality of applying tax deductions.

As an analysis of judicial practice shows, when observing this norm, sometimes ambiguities arise. So, for example, according to the definition dated September 18, 2008. No. 11997/08 Supreme Arbitration Court of the Russian Federation, individual entrepreneur Lavrukhin A.Yu. appealed to the Moscow Arbitration Court with a statement to recognize as illegal the decision of the Federal Tax Service Inspectorate to bring him to tax liability on the basis of Art. 126 of the Tax Code of the Russian Federation.

The basis for bringing the entrepreneur to tax liability was the incomplete submission of documents within the deadline established by the inspection request during a desk tax audit of the VAT return for March 2007.

The court of first instance satisfied Lavrukhin's claim, based on the fact that the right to VAT refund for March 2007 was confirmed by inspection decision No. 23/17, the entrepreneur, by virtue of paragraph 11 of Art. 21 of the Tax Code of the Russian Federation could not fulfill the requirement of the tax authority, which does not comply with the law.

By the decision of the Ninth Arbitration Court of Appeal, the decision of the first instance court was canceled and the invalidation of the inspection decision disputed in the case was refused. At the same time, the court indicated that the tax authority has the right to request from the taxpayer any primary documents related to business transactions and which are the basis for the application of tax deductions.

However, the cassation court agreed with the conclusions of the first instance court and pointed out that the documents requested by the inspection were not considered mandatory by the said norm and their failure to submit did not entail the impossibility of applying a tax deduction. The Federal Arbitration Court of the Moscow District upheld the decision of the trial court without change.

As the analysis showed, tax authorities encounter difficulties when conducting desk tax audits of VAT returns, when the taxpayer calculates the minimum amount of tax to be paid to the budget, while tax deductions on the declaration amount to several million rubles. Tax authorities are deprived of the right, when conducting desk audits, to verify the correctness and validity of tax deductions when calculating taxes to the budget.

The tax authority has the right to request from the taxpayer additional information and documents confirming the correctness of tax calculations and the legality of applying tax deductions.”

Desk audits of VAT declarations at a rate of 0% have certain specifics. Clause 4 of Art. 176 of the Tax Code of the Russian Federation establishes that within a three-month period from the date the taxpayer submits a declaration and supporting documents, the tax authority must make a decision regarding the tax refund amounts declared in the declaration. During this period, the tax authority checks the validity of applying the 0% rate and tax deductions. In principle, we can say that the provision of paragraph 4 of Art. 176 of the Tax Code of the Russian Federation obliges the tax authority to conduct a desk audit of each VAT return at a rate of 0%, and such an audit acts as a necessary prerequisite for resolving the issue of tax refund.

The result of a desk tax audit is the conclusion of the controlling official of the tax authority about the reliability, doubtfulness or unreliability of the information contained in the reporting financial documents. If a tax audit reveals errors in filling out documents or contradictions between the information provided, the taxpayer is informed about this with a requirement to make the necessary changes or additions within a specified period. If the inspector identifies a tax arrear, the taxpayer is also required to pay the missing amount of taxes (fees).

The above provisions of the Tax Code of the Russian Federation allow you to begin a desk audit without notifying the taxpayer of its conduct. The Tax Code of the Russian Federation also does not establish norms obliging the tax authority to report cases when an audit was started, completed, but did not reveal any violations. This state of affairs does not seem entirely justified. Indeed, in terms of the degree of significance of the results obtained, desk tax audits are not much inferior to on-site tax audits. In this regard, informing the taxpayer of information about a desk tax audit (regardless of what results are obtained) is essentially one of the guarantees of compliance with the rights of the taxpayer.

If, during the commencement of a desk audit, it becomes necessary to conduct a counter audit, the taxpayer’s counterparty should be informed about what kind of audit is being conducted against the taxpayer. Otherwise, the counterparty may rightfully refuse to provide the requested information to the tax authority. This results in a paradox: the counterparty who is undergoing a counter audit must be notified of the desk audit of the taxpayer, but the taxpayer himself may be in the dark about its conduct and the results obtained.

An on-site tax audit is carried out on the territory (premises) of the taxpayer based on the decision of the head (deputy head) of the tax authority.

If the taxpayer does not have the opportunity to provide premises for conducting an on-site tax audit, an on-site tax audit may be carried out at the location of the tax authority. 1

The decision to conduct an on-site tax audit is made by the tax authority at the location of the organization or at the place of residence of an individual, unless otherwise provided by the Tax Code of the Russian Federation. An independent on-site tax audit of a branch or representative office is carried out on the basis of a decision of the tax authority at the location of the separate division.

The decision to conduct an on-site tax audit must contain the following information: 2

Full and abbreviated name or last name, first name, patronymic of the taxpayer;

The subject of the audit, that is, taxes, the correctness of calculation and payment of which is subject to verification;

The periods for which the audit is carried out;

Positions, surnames and initials of the tax authority employees who are entrusted with carrying out the audit.

The form of the decision of the head (deputy head) of the tax authority to conduct an on-site tax audit is approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

An on-site tax audit in relation to one taxpayer can be carried out on one or more taxes. The subject of an on-site tax audit is the correctness of calculation and timely payment of taxes. As part of an on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct the audit was made.

Tax authorities do not have the right to conduct two or more on-site tax audits on the same taxes for the same period.

Tax authorities do not have the right to conduct more than two on-site tax audits in relation to one taxpayer during a calendar year, except in cases where the head of the federal executive body authorized for control and supervision in the field of taxes and fees makes a decision on the need to conduct an on-site tax audit of the taxpayer in excess of the specified restrictions.

When determining the number of on-site tax audits of a taxpayer, the number of independent on-site tax audits of its branches and representative offices is not taken into account.

An on-site tax audit cannot last more than two months. This period may be extended to four months, and in exceptional cases - to six months. The grounds and procedure for extending the period for conducting an on-site tax audit are established by the federal executive body authorized for control and supervision in the field of taxes and fees.

As part of an on-site tax audit, the tax authority has the right to inspect the activities of branches and representative offices of the taxpayer.

The tax authority has the right to conduct an independent on-site tax audit of branches and representative offices regarding the correctness of calculation and timely payment of regional and (or) local taxes.

A tax authority conducting an independent on-site audit of branches and representative offices does not have the right to conduct two or more on-site tax audits on the same taxes for the same period in relation to a branch or representative office.

The tax authority does not have the right to conduct more than two on-site tax audits in relation to one branch or representative office of a taxpayer within one calendar year.

When conducting an independent on-site tax audit of branches and representative offices of the taxpayer, the audit period cannot exceed one month.

The period for conducting an on-site tax audit is calculated from the day the decision to order the audit is made and until the day the certificate of the audit is drawn up.

The head (deputy head) of the tax authority has the right to suspend an on-site tax audit for:

1) requesting documents (information) in accordance with paragraph 1 of Article 93.1 of the Tax Code of the Russian Federation;

2) receiving information from foreign government bodies within the framework of international treaties of the Russian Federation;

3) conducting examinations;

4) translation into Russian of documents submitted by the taxpayer in a foreign language.

Suspension of an on-site tax audit on the basis specified in subparagraph 1 of clause 9 of Art. 89 of the Tax Code of the Russian Federation, is allowed no more than once for each person from whom documents are requested.

The suspension and resumption of an on-site tax audit is formalized by a corresponding decision of the head (deputy head) of the tax authority conducting the said audit.

The total period of suspension of an on-site tax audit cannot exceed six months. If the inspection was suspended on the basis specified in subparagraph 2 of paragraph 9 of Art. 89 of the Tax Code of the Russian Federation, and within six months the tax authority was unable to obtain the requested information from foreign government bodies within the framework of international treaties of the Russian Federation, the period of suspension of this inspection may be increased by three months.

This paragraph must be supplemented in order to avoid controversial situations between tax authorities and taxpayers.

A repeated on-site tax audit of a taxpayer is an on-site tax audit conducted regardless of the time of the previous audit on the same taxes and for the same period.

When scheduling a repeat on-site tax audit, the restrictions specified in paragraph 5 of Art. 89 of the Tax Code of the Russian Federation do not apply.

When conducting a repeat on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct a repeat on-site tax audit was made.

A repeated on-site tax audit of a taxpayer can be carried out: 1

1) by a higher tax authority - in order to control the activities of the tax authority that conducted the audit;

2) by the tax authority that previously conducted the audit, on the basis of a decision of its head (deputy head) - in the event that the taxpayer submits an updated tax return, which indicates the amount of tax in an amount less than that previously declared. As part of this repeated on-site tax audit, the period for which the updated tax return was submitted is checked.

If, during a repeated on-site tax audit, it is revealed that the taxpayer has committed a tax offense that was not identified during the initial on-site tax audit, tax sanctions are not applied to the taxpayer, except for cases where the failure to identify a tax offense during the initial tax audit was the result of a conspiracy between taxpayer and tax authority official.

An on-site tax audit carried out in connection with the reorganization or liquidation of a taxpayer organization can be carried out regardless of the time and subject of the previous audit. In this case, a period not exceeding three calendar years preceding the year in which the decision to conduct the inspection was made was verified. The taxpayer is obliged to ensure that tax officials conducting an on-site tax audit have the opportunity to familiarize themselves with documents related to the calculation and payment of taxes.

When conducting an on-site tax audit, the taxpayer may be required to provide the documents necessary for the audit in the manner established by Article 93 of the Tax Code of the Russian Federation.

According to Article 93 of the Tax Code of the Russian Federation, a tax authority official conducting a tax audit has the right to request from the person being inspected the documents necessary for the audit by delivering to this person (his representative) a request for the presentation of documents.

The requested documents are presented in the form of copies certified by the person being checked. Copies of an organization's documents are certified by the signature of its head (deputy head) and (or) other authorized person and the seal of this organization, unless otherwise provided by the legislation of the Russian Federation.

It is not permitted to require notarization of copies of documents submitted to the tax authority (official), unless otherwise provided by the legislation of the Russian Federation. If necessary, the tax authority has the right to familiarize itself with the original documents.

In the decisions of the Federal Antimonopoly Service of the East Siberian District dated September 29, 2005 in case No. A19-4553/05-20-F02-4711/05-S1, dated April 20, 2006 No. A19-4554/05-44-45-F02-1680 /06-C1 in case No. A19-4554/05-44-45, a situation was considered when the tax authorities tried to bring the taxpayer to justice under clause 1 of Art. 126 of the Tax Code of the Russian Federation for failure to provide the requested documents in the form of duly certified copies, without taking into account the fact that the taxpayer submitted the original documents to the tax authority. The court, supporting the taxpayer, indicated that from the literal interpretation of the rule set out in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, it follows that the presentation of original documents requested by the tax authority instead of duly certified copies of them is not a basis for bringing the person who presented them to tax liability.

In its ruling dated November 8, 2005 No. 438-O, the Constitutional Court of the Russian Federation noted that the Tax Code of the Russian Federation provides a mechanism to minimize the costs associated with tax control. The Constitutional Court of the Russian Federation indicated, in particular, that taxpayers have the right to submit tax returns by mail and electronically via telecommunication channels (clause 2 of Article 80). But the main thing in this definition is an indication of the admissibility of minimizing the taxpayer’s costs associated with the implementation of tax control.

In this regard, it is necessary to eliminate this gap in the legislation and supplement clause 2 of Art. 93 of the Tax Code of the Russian Federation and state it in the following wording: “The requested documents are presented in the form of copies certified by the person being verified or, at the request of taxpayers, in the form of originals with the obligation of tax authorities to subsequently return the verified documents to the taxpayer.”

Documents that were requested during the tax audit are presented within 10 days from the date of delivery of the relevant request.

If the inspected person is unable to submit the requested documents within 10 days, he, within the day following the day of receipt of the request for the submission of documents, notifies in writing the inspecting officials of the tax authority about the impossibility of submitting documents within the specified time frame, indicating the reasons for in which the requested documents cannot be submitted within the established time limits, and about the time period within which the inspected person can submit the requested documents.

Within two days from the date of receipt of such notification, the head (deputy head) of the tax authority has the right, on the basis of this notification, to extend the deadline for submitting documents or to refuse to extend the deadline, for which a separate decision is made.

The inspected person’s refusal to submit the documents requested during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under Article 126 of the Tax Code of the Russian Federation.

In the event of such a refusal or failure to submit the specified documents within the established time frame, the tax official conducting the tax audit shall seize the necessary documents in the manner prescribed by Article 94 of the Tax Code of the Russian Federation.

During a tax audit, tax authorities do not have the right to request from the inspected person documents that were previously submitted to the tax authorities during desk or field tax audits of this inspected person. This restriction does not apply to cases where documents were previously submitted to the tax authority in the form of originals, which were subsequently returned to the person being inspected, as well as to cases where documents submitted to the tax authority were lost due to force majeure.

The tax authority official conducting the tax audit has the right to request these documents (information) from the counterparty or other persons who have documents (information) relating to the activities of the taxpayer being inspected (fee payer, tax agent).

Request for documents (information) relating to the activities of the taxpayer being inspected (fee payer, tax agent) may also be carried out when considering tax audit materials on the basis of a decision of the head (deputy head) of the tax authority when assigning additional tax control measures.

If, outside the framework of tax audits, the tax authorities have a justified need to obtain information regarding a specific transaction, a tax authority official has the right to request this information from the participants in this transaction or from other persons who have information about this transaction.

The tax authority carrying out tax audits or other tax control activities sends a written order to request documents (information) relating to the activities of the taxpayer being inspected (fee payer, tax agent) to the tax authority at the place of registration of the person from whom the specified documents should be requested ( information).

At the same time, the order indicates during which tax control event the need to submit documents (information) arose, and when requesting information regarding a specific transaction, information allowing the identification of this transaction is also indicated.

Within five days from the date of receipt of the order, the tax authority at the place of registration of the person from whom the documents (information) is requested sends this person a request for the submission of documents (information). A copy of the order to request documents (information) is attached to this requirement.

A person who has received a request to provide documents (information) fulfills it within five days from the date of receipt or within the same period informs that he does not have the requested documents (information).

If the requested documents (information) cannot be submitted within the specified period, the tax authority, at the request of the person from whom the documents are requested, has the right to extend the deadline for submitting these documents (information). The requested documents are presented taking into account the provisions provided for in paragraph 2 of Article 93 of the Tax Code of the Russian Federation.

A person’s refusal to submit the documents requested during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under Article 129.1 of the Tax Code of the Russian Federation.

However, this article contains a condition under which it is subject to application, namely, if the specified offense does not contain signs of a tax offense under Art. 126 of the Tax Code of the Russian Federation.

In accordance with paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, failure to provide the tax authority with information about the taxpayer, expressed in the refusal of the organization to provide the documents it has, provided for by the Tax Code of the Russian Federation, with information about the taxpayer at the request of the tax authority, as well as other evasion from providing such documents or providing documents with deliberately false information, if such an act does not contain signs of violation of the legislation on taxes and fees, provided for in Article 135.1 of the Tax Code of the Russian Federation, entails a fine in the amount of five thousand rubles.

Thus, the distinctive features of a tax offense under clause 2 of Art. 126 of the Tax Code of the Russian Federation are:

1) failure to provide information about the taxpayer to the tax authority, but not untimely submission;

2) the subject of this offense can only be an organization (legal entity).

It should also be noted: in connection with the intersection of the compositions of Art. 129.1 of the Tax Code of the Russian Federation and clause 2 of Art. 126 of the Tax Code of the Russian Federation, there are different interpretations regarding the application of these rules of law. So, Bryzgalin A.V., Bernik V.R., Golovkin A.N. in the article “Theory and practice of application of Ch. 14 of the Tax Code of the Russian Federation” note that from January 1, 2007, persons who do not submit information about the taxpayer on time at the request of the tax authorities are brought to tax liability only under Art. 129.1 Tax Code of the Russian Federation. And they justify their conclusion, including the amount of penalties, since the fine under clause 1 of Art. 129.1 of the Tax Code of the Russian Federation 1000 rubles, which is significantly less than the fine established by clause 2 of Art. 126 of the Tax Code of the Russian Federation (5000 rubles).

Well-known specialist in the field of tax law Bryzgalin A.V. believes that clause 2 of Art. 126 was in effect during the transition period before the entry into force of Federal Law No. 137-FZot on July 27, 2006. However, clause 2 of Article 126 of the Tax Code of the Russian Federation has still not lost force. The procedure for interaction between tax authorities in carrying out orders to request documents is established by the federal executive body authorized for control and supervision in the field of taxes and fees. Familiarization of tax authorities with original documents is allowed only on the territory of the taxpayer, with the exception of cases of conducting an on-site tax audit at the location of the tax authority, as well as cases provided for in Article 94 of the Tax Code of the Russian Federation. If necessary, authorized officials of tax authorities carrying out an on-site tax audit may conduct an inventory of the taxpayer’s property, as well as inspect production, warehouse, trading and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects, in the manner established Article 92 of the Tax Code of the Russian Federation. If the officials carrying out the on-site tax audit have sufficient grounds to believe that documents evidencing the commission of offenses may be destroyed, hidden, altered or replaced, these documents are seized in the manner prescribed by Article 94 of the Tax Code of the Russian Federation. On the last day of an on-site tax audit, the inspector is obliged to draw up a certificate of the audit, which records the subject of the audit and the timing of its conduct, and hand it over to the taxpayer or his representative. If the taxpayer (his representative) avoids receiving a certificate of the audit, the said certificate is sent to the taxpayer by registered mail.

A person in respect of whom a tax audit was carried out (his representative), in case of disagreement with the facts set out in the tax audit report, as well as with the conclusions and proposals of the inspectors, within 15 days from the date of receipt of the tax audit report, has the right to submit written objections to the relevant tax authority on the said act as a whole or on its individual provisions. In this case, the taxpayer has the right to attach to written objections or, within the agreed period, submit to the tax authority documents (certified copies thereof) confirming the validity of his objections.

As noted by the judge of the Constitutional Court of the Russian Federation A.L. Kononov in a dissenting opinion on the resolution of the Constitutional Court of the Russian Federation of July 16, 2004 No. 14-P, “tax audit as an authoritative instrument of administrative control, detection and suppression of tax offenses significantly affects the rights and interests of the taxpayer, creates a problematic situation for him, in a certain way interferes with his economic activity, burdens him with a number of additional responsibilities before the tax inspection authority, which is especially typical for on-site tax audits directly on the taxpayer’s territory.” The legislator abandoned the concept of “motivated resolution” (Article 87 as amended by Federal Law No. 137-FZ of July 27, 2006), which certainly reduces the guarantees of the legitimate interests of the taxpayer and the possibility of challenging these resolutions. As noted by the Constitutional Court of the Russian Federation in Resolution No. 12-P of June 17, 2004, legal norms, including financial ones, exert their regulatory impact on budgetary relations, as well as tax relations, not on their own, but in connection with the goals of the state economic policies, including financial policies. In his Address to the Federal Assembly dated April 25, 2005, the President of Russia noted that “tax authorities do not have the right to “terrorize” business by repeatedly returning to the same problems. They must work rhythmically, respond in a timely manner to violations committed, while paying primary attention to inspections current period. ... The priority in their activities should be checking the implementation of tax legislation, and not the implementation of any “plans” for the collection of taxes and duties.” The motivation is an expression of the legality of the decision, since the corresponding requirement is included in the procedural rules. Since motivation means the justification of conclusions, in this sense it is an expression of the validity of procedural decisions. The significance of the requirement to motivate decisions lies not so much in their external persuasiveness, but in their internal validity, in the need to make just such decisions and not others.

The Tax Code of the Russian Federation establishes a system of norms aimed at ensuring the stability of the economic situation of taxpayers. This system includes, in particular, rules defining: the validity of acts on taxes and fees in time (Article 5), the period for making a decision on the collection of taxes, fees, penalties from the taxpayer’s funds in bank accounts (Article 3 Art. 46); deadline for filing a claim for tax recovery (clause 3 of article 48, taking into account clause 12 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On some issues of application of part one of the Tax Code of the Russian Federation”); deadline for sending a demand for tax payment (Article 70); deadline for refund (offset) of overpaid taxes, fees, penalties (Articles 78, 79); the period that may be covered by a tax audit (Articles 88, 89); inadmissibility of repeated tax audits (Article 89); limitation of bringing to tax liability (Article 113); limitation of collection of tax sanctions (Article 115); provisions of the Tax Code of the Russian Federation defining the timing and procedure for conducting tax audits, etc.

Unfortunately, it must be admitted that this system is not always effective. For example, by virtue of the direct instructions of Art. 87 of the Tax Code of the Russian Federation (as amended in force until January 1, 2007 - see Federal Law No. 137-FZ of July 27, 2006), the resolution of a higher tax authority, on the basis of which a repeat on-site tax audit is carried out, must be motivated. Clause 4 of the Procedure for appointing on-site tax audits (appendix to the order of the Ministry of Taxes of Russia dated October 8, 1999 No. AP-3-16/318) explains this concept: this resolution should set out the circumstances that necessitate the appointment of a repeat on-site tax audit.

Higher tax authorities usually ignored the provisions of Art. 87 of the Tax Code of the Russian Federation and did not in any way motivate the resolution on a repeat on-site tax audit. Taxpayers appealed such decisions to the court (an example is the decisions of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 4, 2006 in case No. A29-12639/2005a, dated December 19, 2005 in case No. A11-2141a/2005-K2-23/140; FAS North Caucasus District dated August 23, 2005 No. F08-3831/2005-1526A in case No. A25-2761/2004-8; FAS Moscow District dated August 14, 2006, August 21, 2006 No. KA-A40/7581-06 in case No. A40-79154/05-114-672; FAS Far Eastern District dated August 17, 2005, August 10, 2005 No. FOZ-A16/05-2/2391 in case No. A16-150/2005-2, etc.) .

When refusing to satisfy a taxpayer's application, courts, as a rule, justify their refusal by the absence of violated rights and legitimate interests of the taxpayer. This is the case when the courts do not distinguish between subjective rights and legitimate interests of the taxpayer. Despite the fact that the legislator has made significant changes to the procedure for ordering repeated tax audits, which came into force on January 1, 2007, the taxpayer can appeal those decisions of a higher tax authority that were made before January 1, 2007, precisely from the position of protecting the legitimate interests of the taxpayer .

Clause 3 art. 93 of the Tax Code of the Russian Federation states that documents that were requested during a tax audit are presented within 10 days from the date of delivery of the relevant request.

If the inspected person is unable to submit the requested documents within 10 days, he, within the day following the day of receipt of the request for the submission of documents, notifies in writing the inspecting officials of the tax authority about the impossibility of submitting documents within the specified time frame, indicating the reasons for in which the requested documents cannot be submitted within the established time limits, and about the time period within which the inspected person can submit the requested documents. Within two days from the date of receipt of such notification, the head (deputy head) of the tax authority has the right, on the basis of this notification, to extend the deadline for submitting documents or to refuse to extend the deadline, for which a separate decision is made.

This norm should be changed, since at the enterprise the secretary receives mail, therefore, it reaches the addressee with a delay, sometimes significant. The legislator should set reasonable deadlines for taxpayers so that they can fulfill their responsibilities in a timely manner.

In this regard, paragraph 3 of Art. should be amended. 93 of the Tax Code of the Russian Federation and adopted in the following wording: “If the inspected person is not able to submit the requested documents within 10 days, he, within three days following the day of receipt of the request for the provision of documents, notifies in writing the inspection officials of the tax authority about impossibility of providing documents within the specified time frame indicating the reasons.”

§2. Legal status of executing subjects of tax control

The tax authorities of the Russian Federation constitute a unified system of control over compliance with the legislation of the Russian Federation on taxes and fees, the correctness of calculation, completeness and timeliness of taxes and other obligatory payments being entered into the relevant budget, as well as control over compliance with currency legislation carried out within the competence of the tax authorities.

Tax authorities carry out their functions and interact with federal executive authorities, executive authorities of constituent entities of the Russian Federation, local government bodies and state extra-budgetary funds through the exercise of powers provided for by the Tax Code of the Russian Federation and other regulatory legal acts of the Russian Federation.

Tax authorities have the right:

1) require from the taxpayer or tax agent documents in the forms established by state bodies and local government bodies, which serve as the basis for the calculation and payment (withholding and transfer) of taxes, as well as explanations and documents confirming the correctness of calculation and timely payment (withholding and transfer) taxes;

2) conduct tax audits in the manner established by the Tax Code of the Russian Federation;

3) to seize documents during tax audits from a taxpayer or tax agent that indicate the commission of tax offenses, in cases where there are reasonable grounds to believe that these documents will be destroyed, hidden, altered or replaced;

4) to summon, on the basis of a written notification to the tax authorities, taxpayers, fee payers or tax agents to give explanations in connection with their payment (withholding and transfer) of taxes or in connection with a tax audit, as well as in other cases related to their implementation of legislation on taxes and fees;

5) suspend transactions on the accounts of taxpayers, fee payers and tax agents in banks and seize the property of taxpayers, fee payers and tax agents in the manner prescribed by the Tax Code of the Russian Federation;

6) inspect (survey) any production, warehouse, retail and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects, regardless of their location, and conduct an inventory of property owned by the taxpayer. The procedure for conducting an inventory of a taxpayer's property during a tax audit is approved by the Ministry of Finance of the Russian Federation;

7) determine the amount of taxes to be paid by taxpayers to the budget (extra-budgetary funds), by calculation based on the information they have about the taxpayer, as well as information about other similar taxpayers in cases of the taxpayer’s refusal to allow officials of the tax authority to inspect (survey) production facilities, warehouse, trading and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects, failure to submit to the tax authority for more than two months the documents necessary for calculating taxes, lack of accounting for income and expenses, accounting for taxable objects or keeping records in violation of the established a procedure that led to the impossibility of calculating taxes;

8) demand from taxpayers, tax agents, and their representatives to eliminate identified violations of the legislation on taxes and fees and monitor compliance with these requirements;

9) collect arrears of taxes and fees, as well as collect penalties and fines in the manner established by this Code;

10) control the compliance of large expenses of individuals with their income;

11) demand from banks documents confirming the execution of payment orders of taxpayers, fee payers and tax agents and collection orders (orders) of tax authorities to write off taxes, penalties and fines from the accounts of taxpayers, fee payers and tax agents;

12) attract specialists, experts and translators to conduct tax control;

13) call as witnesses persons who may be aware of any circumstances relevant to the conduct of tax control;

14) submit petitions for cancellation or suspension of licenses issued to legal entities and individuals for the right to carry out certain types of activities;

15) create tax posts in the manner established by the Tax Code of the Russian Federation;

16) bring claims to courts of general jurisdiction or arbitration courts:

On the collection of tax sanctions from persons who have committed violations of the legislation on taxes and fees;

On invalidating the state registration of a legal entity or the state registration of an individual as an individual entrepreneur;

On the liquidation of an organization of any organizational and legal form on the grounds established by the legislation of the Russian Federation;

On early termination of a tax credit agreement and an investment tax credit agreement;

On the collection of debts on taxes, fees, corresponding penalties and fines to budgets (extra-budgetary funds), which are owed for more than three months by organizations that, in accordance with the civil legislation of the Russian Federation, are dependent (subsidiary) companies (enterprises), from the corresponding main (prevailing, participating) ) companies (partnerships, enterprises), when the latter’s bank accounts receive proceeds for the goods (work, services) sold by 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 (partnerships, enterprises), from dependent (subsidiary) companies (enterprises), when their bank accounts receive proceeds for goods sold (work, services) of the main (predominant, participating) companies (partnerships, enterprises).

Higher tax authorities have the right to cancel decisions of lower tax authorities if these decisions do not comply with the legislation on taxes and fees.

The duties of the tax authorities, according to Art. 32 of the Tax Code of the Russian Federation include the following:

1) comply with the legislation on taxes and fees;

2) monitor compliance with the legislation on taxes and fees, as well as regulatory legal acts adopted in accordance with it;

3) keep records of organizations and individuals in accordance with the established procedure;

4) inform free of charge (including in writing) taxpayers about current taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, the rights and obligations of taxpayers, the powers of tax authorities and their officials, as well as provide tax reporting forms and explain the procedure for filling them out;

5) carry out a refund or offset of overpaid or overcharged amounts of taxes, penalties and fines in the manner prescribed by the Tax Code of the Russian Federation,

6) maintain tax secrecy;

7) send to the taxpayer or tax agent copies of the tax audit report and the decision of the tax authority, as well as in cases provided for by the Tax Code of the Russian Federation, a tax notice and a requirement to pay taxes and fees;

8) provide at the request of a state or municipal customer, at the request of a federal executive body, an executive body of a constituent entity of the Russian Federation, a local government body authorized in accordance with the Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods , performance of work, provision of services for state and municipal needs" for the implementation of functions of placing orders for the supply of goods, performance of work, provision of services for state or municipal needs for state or municipal customers, information on the existence of debt of a legal entity or individual for accrued taxes, fees and other obligatory payments to budgets of any level or state extra-budgetary funds for the past calendar year, on appealing the existence of such debt and on the results of consideration of complaints no later than ten days from the date of receipt of such a request.

Tax authorities, when identifying circumstances that suggest a violation of the legislation on taxes and fees containing elements of a crime, are obliged to send materials to the internal affairs bodies within ten days from the date of discovery of these circumstances to resolve the issue of initiating a criminal case.

According to Art. 33 of the Tax Code of the Russian Federation, tax officials are obliged to:

1) act in strict accordance with the Tax Code of the Russian Federation and other federal laws;

2) implement, within their competence, the rights and obligations of tax authorities;

3) treat taxpayers, their representatives and other participants in tax legal relations correctly and carefully, and not humiliate their honor and dignity.

Customs authorities enjoy the rights and bear the responsibilities of tax authorities to collect taxes when moving goods across the customs border of the Russian Federation in accordance with the customs legislation of the Russian Federation, the Tax Code of the Russian Federation, other federal laws on taxes, as well as other federal laws.

The powers of financial authorities in the field of taxes and fees are determined by Art. 32.4 Tax Code of the Russian Federation. The Ministry of Finance of the Russian Federation provides written explanations on the application of the legislation of the Russian Federation on taxes and fees, approves tax calculation forms and tax return forms mandatory for taxpayers, as well as the procedure for filling them out.

The executive authorities of the constituent entities of the Russian Federation and local self-government bodies authorized in the field of finance provide written explanations on the issues of applying, respectively, the legislation of the constituent entities of the Russian Federation on taxes and fees and regulatory legal acts of local government bodies on local taxes and fees. Tax and customs authorities are responsible for losses caused to taxpayers as a result of their unlawful actions (decisions) or inaction, as well as unlawful actions (decisions) or inaction of officials and other employees of these bodies in the performance of their official duties.

Losses caused to taxpayers are compensated from the federal budget in the manner prescribed by this Code and other federal laws. For unlawful actions or inaction, officials and other employees of tax authorities are liable in accordance with the legislation of the Russian Federation.

The powers of internal affairs bodies in the field of tax law are determined by Art. 36 Tax Code of the Russian Federation. At the request of tax authorities, internal affairs bodies participate together with tax authorities in on-site tax audits conducted by tax authorities. If circumstances are identified that require the commission of actions classified by the Tax Code of the Russian Federation as the powers of tax authorities, internal affairs bodies are obliged to send materials to the appropriate tax authority within ten days from the date of identification of these circumstances to make a decision on them. Internal affairs bodies are responsible for losses caused to taxpayers as a result of their unlawful actions (decisions) or inaction, as well as unlawful actions (decisions) or inaction of officials and other employees of these bodies in the performance of their official duties. Losses caused to taxpayers during events are reimbursed from the federal budget in the manner prescribed by the Tax Code of the Russian Federation and other federal laws.

For unlawful actions or inaction, officials and other employees of internal affairs bodies are liable in accordance with the legislation of the Russian Federation.

According to Art. 137 of the Tax Code of the Russian Federation, every person can appeal against non-normative acts of tax authorities, actions or inactions of officials, if, in the opinion of this person, such acts, actions or inactions violate his rights. This rather simple formulation hides one important question. Which acts of the tax authority can be appealed? After all, the concept of “acts of a non-normative nature” is quite general. For the first time, the Plenum of the Supreme Arbitration Court of the Russian Federation tried to answer this question in 2001 (Resolution No. 5 of February 28, 2001). He indicated that an act of a non-normative nature, subject to appeal, should be understood as a document of any name (demand, decision, resolution, letter, etc.), signed by the head of the tax authority and relating to a specific taxpayer. Consequently, the taxpayer can appeal the demand for payment of tax, penalties and fines, regardless of whether he challenged the decision of the tax authority on the basis of which the demand was made.

The Constitutional Court of the Russian Federation went even further (Determination No. 418-O dated December 4, 2003). He established that any act signed by any official of the tax authority (and not just the manager) can be appealed. So, it turns out that you can appeal any act (decision, letter, etc.) signed by any official of the tax authority. However, we should not forget about the wording of the Tax Code of the Russian Federation: “if acts ... violate his rights.” From this phrase it follows that:

The act violates the rights of the taxpayer. The list of taxpayer rights is enshrined in Article 21 of the Tax Code of the Russian Federation (not exhaustive).

A person may appeal an act affecting him. For example, a taxpayer cannot appeal an instruction from the head of a tax authority addressed to officials of a tax authority. Here, however, a question arises. What if this instruction violates the rights of the taxpayer in some way? It seems that then the taxpayer will be able to appeal the act issued by the official on the basis of this instruction.

What, for example, can be appealed against in a decision to refuse to prosecute (which is made based on the results of consideration of the materials of an on-site tax audit)? This decision may indicate the amount of arrears and penalties. This decision cannot provide for the payment of a fine, since a fine is a measure of responsibility. But the taxpayer may not agree with the amount of arrears and penalties, or even with the fact that he must pay these arrears and penalties. In this case, the taxpayer will challenge the arrears and penalties.

What actions and inactions of tax officials can be appealed? Art. 32 and 33 of the Tax Code of the Russian Federation establish the responsibilities of tax authorities and their officials. The list is open: tax authorities also bear other responsibilities provided for by the Tax Code and other laws. The acts and omissions complained of must be related to these duties. If the tax authorities do not have an obligation to perform any actions or, conversely, to refrain from performing them, the taxpayer will not be able to challenge the action of the tax official that he does not like.

In this regard, paragraph 3 of Art. is very interesting. 33 of the Tax Code of the Russian Federation, which provides for the obligation of officials to treat taxpayers correctly and carefully, and not to humiliate their honor and dignity. If taxpayers appealed against all actions of tax officials indicating incorrect and inattentive attitude, the courts would be overwhelmed with such cases.

Sanctions in a broad sense are understood as an element of a tax rule that provides for adverse consequences of non-fulfillment or non-compliance with tax obligations formulated in the dispositions of tax rules. This type of sanctions includes fines, collection of arrears, and penalties. The institution of tax sanctions in the narrow sense is enshrined in Art. 114 of the Tax Code of the Russian Federation, according to which a tax sanction is expressed as a fine and is a measure of responsibility for committing a tax offense. The presence of a legitimate definition of a tax sanction is important because it shows the logical completion of the development of the institution of tax liability.

§ 3. Offenses detected during tax audits and responsibility for their commission

According to Art. 106, a tax offense is defined as a committed unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons, for which the Tax Code has established liability.

At the same time, for violation of tax legislation (depending on the specific legal fact), liability is established by the Tax Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, and the Criminal Code of the Russian Federation.

In accordance with this, a violation of tax legislation is characterized by the presence of a combination of the following elements:

1. this is an unlawful guilty act or omission;

2. it is aimed at violating the norms of tax legislation (Tax Code of the Russian Federation or other regulatory legal acts in the field of taxation);

3. there is liability for its commission, and it does not matter whether liability for its commission is established by tax, administrative or criminal legislation.

The absence of at least one of the listed signs means that the act is not a violation of tax law.

In addition, the main difference between a tax offense and a violation of tax legislation is the factor of the legal nature of liability. In this case, the regulatory legal source is important, in which the procedure for applying the measures of state responsibility provided for such an unlawful act is legally established: the Tax Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Criminal Code of the Russian Federation.

The composition of a tax offense is formed by four elements: subject, subjective side, object, objective side.

Entities subject to liability for committing tax offenses include organizations and individuals. In this case, an individual can be held accountable for committing tax offenses from the age of sixteen.

The subjective side of a tax offense represents a set of signs that reflect the internal side of an unlawful act (action or inaction) and characterize the internal mental processes occurring in the mind of the offender regarding the act and its consequences. 1

The objective side of tax offenses is a set of signs of illegal acts provided for by the norms of tax law and characterizing the outward reflection (manifestation) of tax offenses in reality. The grounds for prosecution for tax offenses, as well as for violations by banks of the legislation on taxes and fees, are established by the Tax Code of the Russian Federation. The object of a tax offense is social relations protected by law that develop in the tax sphere. The object of the offense is what it encroaches on, what it causes or may cause any harm to.

In accordance with the Tax Code of the Russian Federation, tax violations include:

1. Violation of the deadline for registration with the tax authority (Article 116 of the Tax Code of the Russian Federation).

2. Evasion of registration with the tax authority (Article 117 of the Tax Code of the Russian Federation).

3. Violation of the deadline for providing information on opening and closing a bank account (Article 118 of the Tax Code of the Russian Federation).

4. Failure to submit a tax return (Article 119 of the Tax Code of the Russian Federation).

4. Gross violation of the rules for accounting for income and expenses and objects of taxation (Article 120 of the Tax Code of the Russian Federation).

5. Non-payment or incomplete payment of tax (fee) amounts (Article 122 of the Tax Code of the Russian Federation).

6. Failure of a tax agent to fulfill the obligation to withhold and (or) transfer taxes (Article 123 of the Tax Code of the Russian Federation).

7. Failure to comply with the procedure for ownership, use and (or) disposal of property that has been seized (Article 125 of the Tax Code of the Russian Federation).

8. Failure to provide the tax authority with information necessary to carry out tax control (Article 126 of the Tax Code of the Russian Federation).

9. Wrongful failure to report information to the tax authority (Article 129.1 of the Tax Code of the Russian Federation).

Controversial situations often arise. For example, ZRGO LLC applied to the court to recognize the illegality of the decision of the Federal Tax Service of the Russian Federation No. 3 of the Kursk Region. As established by the court, the tax authority, during an on-site tax audit, identified discrepancies between the amounts of taxes indicated by the company in its tax returns and the amounts of taxes established during the audit. 1

Paragraph 42 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001. No. 5 explains that if in the previous period the taxpayer had an overpayment of a certain tax, which covered or was equal to the amount of the same tax, underestimated in the subsequent period and subject to payment to the same budget (extra-budgetary fund), and the specified overpayment was not offset against other debts, then the offense under Art. 122 of the Tax Code of the Russian Federation, absent.

At the previous moments when the offenses were committed (August 2004, September 2004), the taxpayer had an overpayment that covered the amount of tax that was underestimated in the subsequent period and was not offset against other payments.

The presence of overpayments in all audited periods can also be traced from the calculation of VAT penalties drawn up by the tax authority for the on-site tax audit report.

The court considered that the tax authority did not prove the existence of an offense in the form of non-payment of VAT, provided for in paragraph 1 of Article 122 of the Tax Code of the Russian Federation.

The Tax Code of the Russian Federation contains articles that establish liability for offenses that cannot be fully called tax offenses, although they, one way or another, affect the norms of legislation on taxes and fees:

1st Art. 128, establishing liability for failure to appear or evasion of appearance without good reason of a person called as a witness in a tax offense case;

2. Art. 129, which establishes liability for the unlawful refusal of a witness to testify, as well as for giving knowingly false testimony; an expert, translator or specialist for refusing to participate in a tax audit, giving a knowingly false conclusion by an expert, or making a knowingly false translation by a translator;

3. art. 129 1 NK; RF, which establishes the liability of a person for unlawful failure to report (late reporting) of information that this person must report to the tax authority.

Of course, these offenses impede the implementation of tax legislation, but are directed, first of all, against the order of management and justice.

According to paragraph 1 of Art. 115 of the Tax Code of the Russian Federation, tax authorities may apply to the court with a claim for the collection of fines from an organization and an individual entrepreneur in the manner and within the terms provided for in Articles 46 and 47 of the Tax Code of the Russian Federation, from an individual who is not an individual entrepreneur, in the manner and within the terms provided for in Article 48 Tax Code of the Russian Federation.

A statement of claim for the collection of a fine from an organization or individual entrepreneur in the cases provided for in subparagraphs 1 - 3 of paragraph 2 of Article 45 of the Tax Code of the Russian Federation may be filed by the tax authority within six months after the expiration of the deadline for fulfilling the requirement to pay the fine. The deadline for filing the specified statement of claim missed for a valid reason may be restored by the court.

Art. 46 of the Tax Code of the Russian Federation states that collection of taxes, fees, as well as penalties and fines is carried out at the expense of funds in the accounts of the taxpayer (fee payer) - organization, individual entrepreneur.

The decision on collection is made after the expiration of the period established in the requirement to pay the tax, but no later than two months after the expiration of the specified period. A decision on collection made after the expiration of the specified period is considered invalid and cannot be executed. In this case, the tax authority may apply to the court with a claim to recover from the taxpayer (tax agent) - an organization or individual entrepreneur - the amount of tax due for payment. The application may be filed with the court within six months after the expiration of the deadline for fulfilling the requirement to pay the tax. A deadline for filing an application missed for a valid reason may be reinstated by the court.

The decision on collection is brought to the attention of the taxpayer (tax agent) - organization or individual entrepreneur - within six days after the decision is made.

If it is impossible to deliver the decision on collection to the taxpayer (tax agent) against receipt or transfer in another way indicating the date of its receipt, the decision on collection is sent by registered mail and is considered received after six days from the date of sending the registered letter.

Provisions of Art. 46 of the Tax Code of the Russian Federation are also used when collecting fines and penalties for late payment of taxes.

Clause 2 of Art. 48 of the Tax Code of the Russian Federation states that a statement of claim for the collection of tax at the expense of the property of a taxpayer - an individual who is not an individual entrepreneur, may be filed with a court of general jurisdiction by a tax authority (customs authority) within six months after the expiration of the deadline for fulfilling the requirement to pay the tax. A deadline for filing an application missed for a valid reason may be reinstated by the court. Previously, this period for going to court was preemptive and could not be restored by the court due to omission.

Sometimes controversial situations arise related to the calculation of procedural deadlines. Thus, the Inspectorate of the Federal Tax Service of the Russian Federation No. 2 for Moscow appealed to the Moscow Arbitration Court with a statement to ZAO Abitare to collect tax sanctions for committing a tax offense provided for in paragraph 1 of Art. 122 of the Tax Code of the Russian Federation.

The Moscow Arbitration Court refused to satisfy the stated requirements, since the Inspectorate missed the six-month deadline established by clause 1 of Art. 115 of the Tax Code of the Russian Federation, to file a claim in court for the collection of tax sanctions.

The tax authority referred to the fact that the deadline for filing an application to collect a tax sanction from the Company should be calculated according to the rules provided for in paragraph 2 of Art. 115 of the Tax Code of the Russian Federation, since a resolution was issued against the general director of Abitare CJSC to refuse to initiate a criminal case, which was received by the tax authority on January 23, 2007, therefore, from the specified date the six-month period for filing the said claim should be calculated.

The courts found that the on-site tax audit report was drawn up by the tax authority on September 28, 2006, therefore, the six-month period for filing a claim for the collection of a tax sanction expired on March 28, 2007, while the application for the collection of sanctions under the audit report was sent by the Inspectorate to the arbitration court by mail on July 23, 2007 , that is, with a significant missed deadline established by law.

In this regard, the courts came to the correct conclusion that the Inspectorate missed the deadline established in paragraph 1 of Art. 115 of the Tax Code of the Russian Federation (as amended before amendments were made by Federal Law No. 137-FZ of July 27, 2006).

At the same time, the appellate court proceeded from the legal positions set out in paragraph 38 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5, according to which the fact that the issue of criminal prosecution was being decided against an official of the taxpayer organization, is not a basis for applying special rules for calculating the statute of limitations for tax sanctions against an organization.

Responsibility for violation of tax laws is also provided for by the Code of Administrative Offenses. In Art. 15.3.-15.9, 15.11 Code of Administrative Offenses contains the legal elements of offenses encroaching on public relations in the field of taxation:

Violation of the deadline for registration with the tax authority;

Violation of the deadline for submitting information about opening and closing an account with a bank or other credit institution;

Violation of deadlines for submitting a tax return;

Failure to provide information necessary for tax control;

Violation of the procedure for opening an account for a taxpayer;

Violation of the deadline for executing an order to transfer a tax or fee (contribution);

Failure by the bank to comply with the decision to suspend transactions on the accounts of the taxpayer, fee payer and tax agent;

Gross violation of the rules of accounting and presentation of financial statements (a gross violation of the rules of accounting and presentation of financial statements is understood as: distortion of the amounts of accrued taxes and fees by at least 10%; distortion of any article (line) of the accounting reporting form by at least 10 %).

Tax liability is one of the main categories of tax law; its design largely determines the place and role of legal regulation of tax relations in the legal system. 1

Tax liability by its nature, subject and method of regulation is an integral part of financial and legal responsibility and is implemented in state-authority relations that develop regarding the establishment and collection of mandatory payments.

The legislator has established a number of conditions for bringing to justice for committing a tax offense: 1

Prosecution for committing a tax offense is carried out on the grounds and in the manner provided for by the Tax Code of the Russian Federation;

Repeated prosecution for committing the same tax offense is not allowed;

The liability provided for by the Tax Code of the Russian Federation for an act committed by an individual occurs if this act does not contain elements of a crime provided for by the criminal legislation of the Russian Federation;

Bringing an organization to justice for committing a tax offense does not relieve its officials, if there are appropriate grounds, from administrative, criminal or other liability provided for by the laws of the Russian Federation;

Bringing a person to justice for committing a tax offense does not relieve him of the obligation to pay the due amount of tax (fee) and penalties;

A person is considered innocent of committing a tax offense until his guilt is proven in the manner prescribed by federal law;

A person held accountable is not required to prove his innocence of committing a tax offense. This responsibility rests with the tax authorities. Irremovable doubts about the guilt of the person held accountable are interpreted in favor of that person.

The Tax Code of the Russian Federation establishes the possibility of using circumstances that mitigate and aggravate liability for committing a tax offense. The list of circumstances mitigating and aggravating liability for committing a tax offense is enshrined in Art. 112 of the Tax Code of the Russian Federation.

The Tax Code of the Russian Federation establishes circumstances that exclude a person’s guilt in committing a tax offense. They recognize:

1. committing an act containing signs of a tax offense as a result of a natural disaster or other extraordinary and insurmountable circumstances;

2. the commission of an act containing signs of a tax offense by a taxpayer - an individual who was in a state in which this person could not be aware of his actions or manage them due to a painful condition;

3. execution by the taxpayer (fee payer, tax agent) of 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 state body (authorized by an official person of this body) within its competence;

4. other circumstances that may be recognized by the court or tax authority considering the case as excluding the person’s guilt in committing a tax offense.

In accordance with this norm, there are the following main circumstances mitigating liability:

1. commission of an offense due to a combination of difficult personal or family circumstances;

2. committing an offense under the influence of threat or coercion or due to financial, official or other dependence;

3. difficult financial situation of an individual held accountable for committing a tax offense;

4. other circumstances that may be recognized by the court or tax authority considering the case as mitigating liability.

Circumstances mitigating or aggravating liability for committing a tax offense are established by the court or tax authority considering the case and are taken into account when applying tax sanctions. This norm (clause 4 of Article 112 of the Tax Code of the Russian Federation) was introduced by Federal Law dated 07/09/1999 N 154-FZ.

In addition to circumstances mitigating liability for committing a tax offense, the Tax Code establishes circumstances aggravating tax liability.

According to paragraph 2 of Art. 112 of the Tax Code of the Russian Federation, an aggravating circumstance is recognized as the commission of a tax offense by a person who was previously held accountable for a similar offense (a sign of repetition). A person is considered to have been brought to tax liability within 12 months from the date of entry into force of a court or tax authority decision to apply a sanction for a similar violation of tax legislation.

Circumstances mitigating and aggravating responsibility for committing a tax offense are important in determining the measure of influence on the offender and are applied by the court. The facts considered do not have any impact on the qualification of the act as a tax offense.

Compliance with tax law is ensured by the ability of the state to apply coercive measures for violation of obligations provided for by the legislation on taxes and fees. Responsibility for tax offenses is expressed in the corresponding part of the rule of law, called a sanction. A tax sanction is a form of government response to a violation of tax legislation and is an external material expression of state coercion for committing a tax offense.

Sanctions in tax law can be considered in two aspects: broad and narrow. Sanctions in a broad sense are understood as an element of a tax rule that provides for adverse consequences of non-fulfillment or non-compliance with tax obligations formulated in the dispositions of tax rules. This type of sanctions includes fines, collection of arrears, and penalties.

The institution of tax sanctions in the narrow sense is enshrined in Art. 114 of the Tax Code of the Russian Federation, according to which a tax sanction is expressed as a fine and is a measure of responsibility for committing a tax offense.

The amount of tax sanctions is provided for by special articles of the Tax Code, established and applied in the form of monetary penalties (fines) against a person found guilty of committing a tax offense. In conclusion, I would like to emphasize that a taxpayer brought to tax liability has the right to challenge the collection of sanctions of any kind and to participate in tax proceedings to investigate the circumstances of the offense.

At the present stage, the tax system of the Russian Federation is imperfect; tax administration reform is ongoing. The tax system of the Russian Federation is characterized by the presence of potential opportunities for tax evasion, which encourages the development of the shadow sector of the economy, the system of tax control mechanisms is insufficiently effective, and there is often a lack of ensuring the legal rights and interests of taxpayers. Having analyzed the tax legislation, we came to the conclusion that it has gaps, namely: the legislator significantly limits the rights of tax authorities when conducting desk tax audits; they do not have the right to request documents from the taxpayer being inspected, which creates numerous controversial situations. All this points to the need to improve the tax control mechanism. Evidence of this is the numerous changes in the Tax Code of the Russian Federation. Some of the most significant changes were introduced by the Federal Law of November 4, 2005. No. 137-FZ and Federal Law of July 27, 2006 No. 137-FZ “On amendments to parts one and two of the Tax Code of the Russian Federation and to certain legislative acts of the Russian Federation in connection with the implementation of measures to improve tax administration.”

One of the most important elements of reform is the constant improvement of tax control, since it is aimed at collecting taxes and timely replenishment of the state budget.

Conclusion

Legal regulation of tax control is one of the most pressing problems in the field of taxation in our country. This problem acquires particular significance during the period of transition from one taxation system to another. According to Art. 82 of the Tax Code of the Russian Federation, tax control recognizes the activities of authorized bodies to monitor compliance by taxpayers, tax agents and payers of fees with legislation on taxes and fees in the manner established by the Tax Code.

Tax control is carried out through the implementation by government bodies of special measures called forms of tax control. The forms and methods of tax control differ in significant specificity. There are such forms of tax control as audit, verification of accounting and reporting data and supervision. The main form of tax control is audits.

In accordance with the Tax Code of the Russian Federation, the subjects authorized to conduct tax audits are tax and customs authorities. Customs authorities are authorized to conduct tax audits only in relation to taxes payable when moving goods across the customs border of the Russian Federation. Thus, only tax authorities are full-fledged entities that have all the rights to conduct tax audits in relation to all fiscally obligated persons and to pay all types of taxes.

Tax audits are divided into two types: office and on-site. A desk tax audit is carried out at the location of the tax authority by officials of that authority. An on-site tax audit is carried out for one or more taxes based on a decision of the tax authority. Tax authorities also carry out counter audits if, outside the framework of tax audits, the tax authorities have a justified need to obtain information regarding a specific transaction. Having analyzed the tax legislation, we came to the conclusion that it has gaps, namely: the legislator significantly limits the rights of tax authorities when conducting desk tax audits; they do not have the right to request documents from the taxpayer being inspected, which creates numerous controversial situations.

As the analysis showed, tax authorities encounter difficulties when conducting desk tax audits of VAT returns, when the taxpayer calculates the minimum amount of tax to be paid to the budget, while tax deductions on the declaration amount to several million rubles. Tax authorities are deprived of the right, when conducting desk audits, to verify the correctness and validity of tax deductions when calculating taxes to the budget. Therefore, it is necessary

Thus, it is necessary to supplement clause 8 of Art. 88 of the Tax Code of the Russian Federation and state it in the following wording: “When submitting a tax return for value added tax, which declares the right to a tax refund, a desk tax audit is carried out taking into account the features provided for in this paragraph, on the basis of tax returns and documents submitted by the taxpayer in accordance with this Code.

The tax authority has the right to request from the taxpayer documents confirming, in accordance with Article 172 of this Code, the legality of applying tax deductions.

The tax authority has the right to request from the taxpayer additional information and documents confirming the correctness of tax calculations and the legality of applying tax deductions.”

During the period of suspension of the on-site tax audit, the actions of the tax authority to request documents from the taxpayer are suspended, to whom in this case all originals requested during the inspection are returned, with the exception of documents received during the seizure, and the actions of the tax authority in the territory are also suspended (on the premises) of the taxpayer related to the specified audit.

However, the Tax Code of the Russian Federation does not stipulate whether the deadlines for the provision of documents by the taxpayer are suspended for the period of suspension of the audit, if the request for the provision of documents is served on the taxpayer one day before the decision on suspension is made. In practice, cases of ambiguity arise whether the deadline for providing documents by the taxpayer is suspended or whether the taxpayer must submit documents on the very first day after the decision to resume the audit is made. Paragraph should be changed. 4 clause 9 art. 89 of the Tax Code of the Russian Federation and state it in the following wording: “During the period of suspension of an on-site tax audit, the actions of the tax authority to request documents from the taxpayer are suspended, to whom in this case all originals requested during the audit are returned, with the exception of documents received during carrying out a seizure, and the actions of the tax authority on the territory (premises) of the taxpayer related to the specified inspection are suspended. The deadline for the taxpayer to provide documents requested from him before the date of the decision to suspend the on-site tax audit is also suspended.”

As a rule, tax authorities, when conducting an on-site tax audit, require a very large volume of documents, since they require documents for 3 years. Taxpayers in accordance with Art. 93, 100, 165 and other articles of the Tax Code of the Russian Federation annually produce millions of copies of primary and other accounting documents for the tax authorities. Notaries alone certified more than 17 million copies in 2007, although notarization is not required. To make copies, the taxpayer not only needs a large amount of time, but also needs to incur significant material costs for copying documents (for copying equipment and paper). In this regard, there are often requests from taxpayers to be allowed to provide originals rather than copies.

In connection with the above, clause 2 of Art. 93 of the Tax Code of the Russian Federation and state it in the following wording: “The requested documents are presented in the form of copies certified by the person being verified or, at the request of taxpayers, in the form of originals with the obligation of tax authorities to subsequently return the verified documents to the taxpayer.”

The tax system of the Russian Federation is characterized by the presence of potential opportunities for tax evasion, which encourages the development of the shadow sector of the economy, the system of tax administration mechanisms is insufficiently effective, and there is no provision for the legal rights and interests of taxpayers. All this points to the need to improve the tax administration mechanism.

List of used literature

Regulatory acts

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5. Resolution of the Federal Antimonopoly Service of the Moscow District dated August 14, 2006, August 21, 2006 No. KA-A40/7581-06 in case No. A40-79154/05-114-672; // Bulletin of the Supreme Arbitration Court of the Russian Federation No. 6, 2007, pp. 234-237

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7. Resolution of the Federal Arbitration Court of the Moscow District of April 28, 2008 N KA-A40/3299-08 // Bulletin of the Supreme Arbitration Court of the Russian Federation No. 91, 2007, pp. 86-88

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TAX INSPECTIONS AT THE PRESENT STAGE OF DEVELOPMENT OF THE TAX CONTROL SYSTEM IN THE RUSSIAN FEDERATION (BASED ON THE EXAMPLE OF THE RUSSIA MIFTS FOR THE LARGEST TAXPAYERS IN THE PRIMORSKY TERRITORY)

Fedorov Denis Romanovich 1, Vodopyanova Valentina Aleksandrovna 2
1 Vladivostok State University of Economics and Service, 5th year student of the specialty “Taxes and Taxation”
2 Vladivostok State University of Economics and Service, senior lecturer at the Department of Finance and Taxes

annotation
The main and most effective form of tax control is tax audits. As a result of their implementation, most problems can be successfully solved: to identify, suppress and prevent tax offenses. In this regard, the article discusses one of the main issues of developing a set of practical recommendations aimed at improving tax control in order to increase the effectiveness of tax audits. Creating an approach to improve tax control aims to increase its efficiency by clearly regulating the consideration of the interests of all participants in tax legal relations and to bring more clarity and predictability for taxpayers to the actions of tax authorities in the course of their control activities.

TAX AUDITS AT THE PRESENT STAGE OF DEVELOPMENT OF SYSTEM OF TAX CONTROL IN THE RUSSIAN FEDERATION (ON THE EXAMPLE OF MIFNS OF RUSSIA ON THE LARGEST TAXPAYERS ACROSS PRIMORSKY KRAI)

Fedorov Denis Romanovich 1, Vodopopyanova Valentina Aleksandrovna 2
1 Vladivostok State University of Economy and Service, Student of the 5th course of the specialty "Taxes and Taxation"
2 Vladivostok State University of Economy and Service, Senior Teacher of Chair Finance and Taxes

Abstract
The main and most effective form of tax control are tax audits. As a result of their carrying out it is possible to solve the majority of tasks successfully: to reveal, stop and warn tax offenses. In this regard in article one of the main issues of development of a complex of the practical recommendations submitted on improvement of tax control, for increase of productivity of carrying out tax audits is considered. Approach creation on improvement of tax control, sets before itself the purpose to increase its efficiency by an accurate regulation of the accounting of interests of all participants of tax legal relationship and to clear up more and predictabilities for taxpayers actions of tax authorities during implementation of control activity by them.

Bibliographic link to the article:
Fedorov D.R., Vodopyanova V.A. Tax audits at the present stage of development of the tax control system in the Russian Federation (using the example of the Russian Federation MIFTS for the largest taxpayers in the Primorsky Territory) // Modern scientific research and innovation. 2014. No. 6. Part 2 [Electronic resource]..03.2019).

From the practice of tax authorities, it follows that it is difficult to reduce the negative impact of shortcomings in tax legislation on the results of the control work of tax authorities only by administrative methods - it is much easier to achieve this goal by introducing amendments to the Tax Code of the Russian Federation. By reforming tax legislation in order to introduce provisions to prevent evasion of taxes and fees.

It must be admitted that the legislator is constantly working to improve tax legislation. Proof of this is the changes made every year to the Tax Code of the Russian Federation and the legislation of the constituent entities of the Russian Federation on taxes and fees, as well as the explanatory work of the Ministry of Finance of Russia and the Federal Tax Service of Russia.

At the same time, the collection of taxes and fees remains at an insufficiently high level due to the following reasons: low efficiency of control work when tax authorities carry out desk tax audits; the still ongoing evasion of certain categories of taxpayers from paying taxes and fees and the lack of tools allowing tax authorities to take appropriate measures to bring non-law-abiding taxpayers to tax liability; weak organization of interaction between tax authorities and law enforcement agencies; lack of clear algorithms and methods of control work, in particular methods of conducting on-site tax audits on specific taxes and fees; insufficient level of collection of additional amounts of taxes and fees identified during tax control.

Solving the above problems will ensure proper efficiency of the control work of tax authorities. The relevance of the problems associated with the process of improving the control work of tax authorities to ensure the revenue side of the country's budget, in order for the state to fulfill the tasks facing it, necessitates the search for effective ways to solve them, both in economic and organizational aspects.

The purpose of the work is to study current problems in the tax control system, having both a theoretical and practical nature of their legal regulation, as well as organizing tax audits, identifying shortcomings in legal regulation and formulating a set of proposals aimed at improving tax control.

Based on the formulated purpose of the study, the author set the following tasks, the solution of which determined the scientific novelty and practical significance of the work:

Explore the essence of the control and analytical work of tax authorities and develop reasonable proposals for improving the control work carried out by tax authorities;

Assess the current state of the tax control system and identify factors that influence its effectiveness;

Determine priorities in the system of organizing tax audits and ways to improve it, as well as highlight problems in the practice of its application.

Tax control is the oldest form of state control and an element of the state management system, which largely determines the methods and effectiveness of regulating the economy and social sphere. Only through tax control does the tax system ensure the fulfillment of its main goal, namely ensuring the revenue side of budgets at various levels.

Tax control is the activity of authorized bodies to monitor compliance by taxpayers, tax agents and payers of fees with legislation on taxes and fees in the manner established by the Tax Code of the Russian Federation.

The current forms of tax control are tax audits and taxpayer registration.

The main form of tax control is tax audits, through which control is exercised over the timeliness, completeness and correctness of taxpayers' payment of taxes and fees. Registration of taxpayers as a form of tax control serves as an auxiliary means of tax control and can be used to collect evidence on tax offenses identified during tax audits and appearing in the audit report. The choice of certain methods of control work, determination of their combination and sequence of application are within the competence of the tax authority itself and depend on the specifics of the taxpayer’s activities and the goals pursued in the implementation of tax control.

Tax control is carried out by a tax authority or another body exercising powers of tax administration, within its competence, with a visit to the site or premises of the relevant body.

Let's consider the indicators of control activities based on the departmental reporting of the MIFTS of Russia for the largest taxpayers in the Primorsky Territory, which most indicatively evaluates the work of the inspectorate, because The largest taxpayers play a special role in budget formation; their tax payments for several years have exceeded 60% of the total receipts of federal taxes and fees in Russia; some relative indicators have been calculated that characterize the effectiveness of the control work of tax authorities, table 1.

Table - 1 Dynamics of additional charges based on the results of the control work of the Russian Federal Tax Service for the largest taxpayers in the Primorsky Territory for 2011-2013.

Index				Absolute change		Growth rate, %
						2012 by 2011	2013 by 2012
Total additional charges
Including:
For entry tax audits
According to desk tax audits

The data given in table. 1 show that the main amount of additional charges based on the results of the control work was formed due to on-site tax audits, increasing every year.

A sharp increase in additional accrued amounts based on the results of control work in 2012. (further decrease in 2013) is due to the fact that in the 3rd quarter of 2012. an on-site tax audit was conducted of the largest taxpayer engaged in air transportation in the Russian Far East, as a result of which an additional 503,761 thousand rubles were assessed, including a tax of 378,955 thousand rubles. and the following violations were established:

The duties of a tax agent have not been fulfilled:

When operating aircraft that were purchased from foreign companies on the basis of financial lease (leasing) agreements, the amount of VAT is not transferred to the budget.

When determining the tax base for personal income tax for 2009-2010. the tax agent has not calculated, withheld or transferred personal income tax.

To reduce additional charges based on the results of desk tax control for 2013. in comparison with the same period last year, it is mainly influenced by the availability of VAT tax returns, the result of which is “refundable”. So according to report 2-VAT 2013. Desk audits of VAT tax returns were completed with a negative result for 176 returns, which is 25% more than the same period in 2012. As a result, the indicators of control work on desk audits regarding the validity of compensation have increased.

It should be noted that if accruals are reduced, compensation based on the results of 2013 was denied. desk audits in the amount of 645,938 rubles. (for 2012, compensation of 284,189 rubles was denied)

One of the main factors when analyzing the control work of the tax inspectorate is the effectiveness of field and desk tax audits, Table 2.

Table 2 – Analysis of the effectiveness of desk and on-site tax audits carried out by the Ministry of Taxation and Taxation of Russia for the largest taxpayers in the Primorsky Territory for 2011-2013.

Index				Absolute change		Growth rate, %
						2012 by 2011	2013 by 2012
Number of desk checks
Including:
- using additional documents
- effective desk audits
Number of on-site inspections
Including:
- effective on-site inspections

According to the data in Table. Level 2 effectiveness of desk audits in 2011. – 0.7%, 2012 – 1.5%, 2013 – 1.6%.

In 2012 There has been a decrease in the total number of desk audits, including those requiring documents, due to the deregistration of 9 organizations.

In addition, taxpayers in 2012 The information provided on licenses received for objects of aquatic biological resources is 73 or 9% less than in 2011.

Level of effectiveness of on-site inspections for 2012 was 100%.

In 2013 There is an increase in the total number of inspections by 4.3%, with a decrease in inspections requiring documents - by 9%.

The decrease in the number of desk audits requiring documents was due to taxpayers submitting mineral extraction tax declarations in smaller quantities than in similar previous periods due to the deregistration of 4 taxpayers. In addition, information on received licenses for objects of aquatic biological resources was provided by 11.7% (85 declarations) more than in 2012. which are subject to desk checks without requiring documents.

Level of effectiveness of on-site inspections for 2013 amounted to 95%.

The main factors identified during the study that negatively affect the effectiveness of tax control are:

Inaction of the norm of tax legislation (clause 3 of Article 122 of the Tax Code of the Russian Federation), which establishes holding a taxpayer liable for tax liability for intentional tax evasion;

The absence of measures providing for the punishment of persons for the creation and use of so-called fly-by-night companies for the purpose of tax evasion;

Lack of methodological support for conducting on-site tax audits on specific taxes and fees and, accordingly, a unified approach to their implementation;

Limitation of the rights of tax authorities that they could use during desk tax audits;

Lack of control over taxpayers submitting amended tax returns, through which taxpayers reduce tax liabilities;

Limited time frame for conducting a desk tax audit.

An analysis of the current tax legislation shows the imperfection of tax control in terms of conducting desk tax audits, in connection with which it is proposed to transform the desk tax audit into the main type of tax control due to the impossibility of covering all taxpayers with on-site tax audits, as well as to expand the rights of tax authorities when conducting desk tax control .

It is also necessary to consider the issue of expanding the rights of tax authorities when conducting desk audits in order to exercise tax control over a separate group of taxpayers using tax evasion schemes using shell companies. Currently, there is practically no tax control over taxpayers engaged in economic activities within three years from the date of registration.

The number of such organizations registered with the tax authorities exceeds half of the total number of taxpayers, and there is no control over them.

Identification of relationships with such taxpayers in recent years is one of the main items on the list of issues that are considered when planning and conducting on-site tax audits.

However, at present, firms specifically created for the use of tax evasion schemes and existing for less than three years are not fully controlled by the tax authorities, since there are no tools that allow tax control during tax audits.

Thus, it is necessary to expand the rights of tax authorities granted to them during desk tax audits for the purpose of tax control over this group of taxpayers. The possibilities of tax control are significantly limited by the fact that, according to Art. 88 of the Tax Code of the Russian Federation, the tax authority is given only three months from the date the taxpayer submits a tax return to carry out a desk tax audit. It is important to consider the possibility of introducing changes to tax legislation so that the tax authority has the opportunity to immediately begin an audit from the moment of filing tax returns with the simultaneous submission of supporting documents by the taxpayer.

Analysis of the effectiveness of on-site tax audits showed a positive trend in the growth of tax control efficiency. However, the lack of a unified system of approach to conducting on-site tax audits on specific taxes and fees negatively affects the organization of the work of tax authorities.

The effectiveness of the control activities of tax authorities depends, among other things, on the quality of the methods used by tax inspectors during tax audits. Due to the current lack of a unified system of approach to conducting on-site tax audits, it is proposed to develop a methodology for conducting on-site tax audits on specific taxes and fees. The audit program is designed to solve this problem and ensure the efficient use of the time of the on-site tax audit by the inspectors. This program should be compiled by tax inspectors conducting an on-site tax audit of the taxpayer, based on the available information. It should be based on pre-audit analysis data and detail the work of the tax inspector in collecting evidence on possible facts of violation of tax legislation. In order to establish a uniform practice of applying the right of the tax authority to determine the amount of tax by calculation and eliminate the shortcomings that currently exist taking into account the existing practice of arbitration courts, the Tax Code of the Russian Federation proposes to introduce a uniform method for calculating taxes by calculation for all participants in tax relations (subclause 7 Clause 1 of Article 31 of the Tax Code of the Russian Federation).

This will not only limit the ability of unscrupulous taxpayers to exploit gaps in tax legislation by failing to submit documents for inspection, but will also significantly increase the efficiency of control work.

Also, an analysis of the current legislation shows the ineffectiveness of the existing tax control mechanism for updated tax returns that reduce tax liabilities, and therefore it is proposed to adjust the procedure for conducting such audits by excluding from Art. 89 of the Tax Code of the Russian Federation the right to conduct repeated on-site inspections on such declarations.

Tightening control over companies that use shell companies to evade taxes and duties should be a priority for tax authorities. Among the measures to combat fly-by-night companies, an effective mechanism can be the suspension of transactions on accounts at the request of a person, voluntary blocking of an account by decision of the taxpayer due to the failure to carry out real economic activities of the organization, while funds frozen in the accounts are subject to credit to the budget of the Russian Federation.

Also today, the most widespread practice is tax evasion using various schemes in order to reduce the tax burden, i.e. tax evasion with obvious intent.

In order to combat unscrupulous taxpayers who deliberately use illegal schemes to minimize taxes and fees, it is necessary to establish an increased amount of penalties for tax offenses by increasing the amount of penalties from 40 to 100%.

Thus, the practical implementation of proposals to improve control work should lead to incentives for taxpayers to voluntarily renounce the use of illegal tax minimization schemes and establish a clearer procedure for conducting tax control in the form of desk and field audits, which will make the control work of tax authorities more understandable for taxpayers.