Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation”

A comment

The Plenum of the Supreme Arbitration Court of the Russian Federation adopted Resolution No. 57 dated July 30, 2013 (hereinafter referred to as the Resolution), in which it explained to the courts some provisions of Part One of the Tax Code of the Russian Federation.

Some of the explanations presented were first sounded as the position of the Plenum of the Supreme Arbitration Court of the Russian Federation, while others were a repetition or development of opinions expressed earlier.

Please note that this resolution invalidates:

• dated 02.28.2001 No. 5 “On some issues of application of part one of the Tax Code of the Russian Federation”;
• Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 30 “On some issues of application of Article 103.1 of the Tax Code of the Russian Federation in terms of regulating the extrajudicial procedure for collecting amounts of tax sanctions”;
• Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 26, 2007 No. 47 “On the procedure for calculating the amounts of penalties for late payment of advance payments for taxes and insurance contributions for compulsory pension insurance.”

Let us dwell in more detail on the explanations regarding the collection of taxes by force.

Deadlines for sending a tax payment request to the taxpayer (clause 50 of the Resolution)

A demand for payment of arrears is sent to the taxpayer either in the event of actual non-payment of the amount specified in the declaration (calculation), or in the event of an additional tax amount being assessed based on the results of an audit.

In the second case, the deadline for submitting a claim is clearly defined in paragraph 2 of Art. 70 of the Tax Code of the Russian Federation – 20 days from the date of entry into force of the decision on additional tax assessment. But the beginning of the period for filing a claim in the first case is not so clearly indicated - the day the arrears are identified (clause 1 of Article 70 of the Tax Code of the Russian Federation).

The Plenum of the Supreme Arbitration Court of the Russian Federation clarified that the day of detection of arrears should be considered the next day after the due date for tax payment (advance payment). If the tax return (calculation of the advance payment) was submitted in violation of the deadlines, the arrears are considered to be identified the next day after the submission of these documents.

Let us note that disputes about the date of detection of arrears arose quite often. The tax authorities believed that since the Tax Code of the Russian Federation does not specifically define this day, the period for identifying arrears for the inspection is not limited. However, the courts sided with the taxpayer, arguing the opposite (resolution of the Federal Antimonopoly Service of the Moscow District dated June 17, 2011 No. KA-A41/5753-11). Some even came to almost the same conclusion as the Plenum of the Supreme Arbitration Court of the Russian Federation: the day the arrears were identified is the date of tax payment (resolution of the Ninth Arbitration Court of Appeal dated February 28, 2013 No. 09AP-1313/2013 in case No. A40-103826/12-20-542).

Deadlines for sending a request to the taxpayer to pay penalties (clause 51 of the Resolution)

Thus, the Plenum of the Supreme Arbitration Court of the Russian Federation established the maximum period during which a notice of payment of penalties can be sent. Therefore, sending a claim outside the specified period is unlawful.

The absence of the required information in the tax payment request does not entail its invalidity (clause 52 of the Resolution)

At the same time, the Federal Antimonopoly Service of the North-Western District indicated that formal violations of the provisions of Art. 69 of the Tax Code of the Russian Federation in themselves cannot serve as a basis for invalidating a claim. A demand for payment of taxes and penalties may be declared invalid if it does not correspond to the actual obligation of the taxpayer to pay them (resolution dated May 16, 2008 No. A56-18067/2005).

A tax payment request sent by mail is considered received regardless of whether it is actually received or not (clause 53 of the Resolution)

If the taxpayer does not pay the tax on time or does not pay it in full, then the arrears can be recovered from the funds in his bank accounts and from his electronic funds (clause 1 of Article 46 of the Tax Code of the Russian Federation).

Tax collection is carried out by decision of the tax authority by sending an order to the bank to write off and transfer the necessary funds to the budget of the Russian Federation.

The Plenum of the Supreme Arbitration Court of the Russian Federation noted that if orders for the transfer of tax are presented simultaneously to several accounts, then the total amount of tax indicated in these orders should not exceed the amount of arrears subject to collection based on the decision of the inspectorate.

For example, a taxpayer has two bank accounts: one contains 7,000 rubles, and the other contains 5,000 rubles. At the same time, he did not pay 10,000 rubles to the budget on time, and the inspectorate is going to write off the specified amount from the funds in his bank accounts.

In this case, the tax authority cannot send two collection orders to the bank, each of which requires the transfer of 10,000 rubles. The inspection must distribute these 10,000 rubles so that the values ​​​​indicated in the orders add up to 10,000. For example, one collection order may indicate 7,000 rubles, and another – 3,000 rubles.

It is worth noting that a similar opinion was previously expressed by the Russian Ministry of Finance in letter dated June 14, 2005 No. 03-02-07/1-144.

Collection of tax at the expense of the taxpayer’s property (clause 55 of the Resolution)

As mentioned above, unpaid or incompletely paid amounts of tax can be recovered from the taxpayer’s funds that are in his bank accounts (Clause 1 of Article 46 of the Tax Code of the Russian Federation).

If there is no money in the accounts or there is not enough money, or there is no information about the accounts themselves, then the inspectorate has the right to collect tax at the expense of other property of the taxpayer in accordance with Art. 47 Tax Code of the Russian Federation. This is stated in paragraph 7 of Art. 46 Tax Code of the Russian Federation.

Based on these norms, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the tax authority has the right to proceed to the collection of tax at the expense of other property only after taking appropriate measures to collect the arrears at the expense of the taxpayer’s funds. Therefore, if the inspection did not make a decision on time to collect the tax at the expense of funds or did not take measures to implement it, then it cannot make a decision to collect the tax at the expense of other property or go to court to collect the arrears in accordance with paragraph. 3 p. 1 art. 47 Tax Code of the Russian Federation. A similar opinion was reflected in judicial practice earlier (see, for example, the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 29, 2011 No. 7551/11, FAS East Siberian District dated 05.12.2012 No. A69-944/2012, FAS Moscow District dated January 15, 2013 No. A40-41578/12-115-223).

At the same time, the Plenum of the Supreme Arbitration Court of the Russian Federation noted that there is an exception to this rule. So, according to paragraph 3 of Art. 46 of the Tax Code of the Russian Federation, the decision to collect tax at the expense of the taxpayer’s funds 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. If during this period there is an enforcement proceeding initiated on the basis of previously issued decisions on the collection of tax at the expense of other property, this means that there are insufficient funds in the taxpayer’s accounts or there are no funds at all. Consequently, the tax authority has the right, within the specified period, to immediately make a decision to collect tax at the expense of other property, if on the date of its adoption the enforcement proceedings were not completed (terminated).

In addition, the inspectorate may immediately decide to collect tax at the expense of other property if it does not have information about the taxpayer’s accounts.

Foreclosure of property in the use of third parties (clause 56 of the Resolution)

Let us repeat once again that forced collection of tax can be carried out at the expense of other property of the taxpayer. In this case, collection can be made, in particular, at the expense of property transferred under an agreement for the possession, use or disposal of other persons without transfer of ownership rights to them. However, such collection is possible if, to ensure payment of the tax, these agreements are terminated or declared invalid in the prescribed manner (clause 5, clause 5, article 47 of the Tax Code of the Russian Federation).

According to the Plenum of the Supreme Arbitration Court of the Russian Federation, the need to foreclose on specific property is not a sufficient basis for the termination or invalidity of these agreements. This follows from chapters 9 and 29 of the Civil Code of the Russian Federation. Thus, the taxpayer is not obliged to terminate contracts under which certain property is transferred to third parties just because this property may be foreclosed on. A similar conclusion was made in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 41, the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 No. 9.

At the same time, in the commented resolution, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that, by virtue of Ch. 8 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”, the existence of agreements with third parties does not prevent foreclosure on property transferred to them. We note that in accordance with Art. 77 of this law, as a general rule, only a court can foreclose on such property.

Consequently, the tax can be collected from property held by a third party on the basis of an agreement that has not been terminated or declared invalid, if the possibility of such collection is certified by the court.

Penalties can be collected only if the deadlines for collecting the tax itself are met (clause 57 of the Resolution)

According to the Plenum of the Supreme Arbitration Court of the Russian Federation, the inspectorate can collect penalties only if it has timely taken measures to force the collection of the amount of the corresponding tax. In this case, penalties are accrued on the day of actual repayment of the arrears.

In reaching this conclusion, the Plenum of the Supreme Arbitration Court of the Russian Federation once again confirmed the opinion formed in judicial practice and among regulatory authorities (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 20, 2009 No. 10707/08, letter from the Ministry of Finance of Russia

As you know, a requirement to pay debts that were not identified as part of an audit can be made no later than 3 months from the date the arrears were identified. However, nowhere in the Tax Code of the Russian Federation does it say what the date of detection of arrears is.

When arrears arise Let us recall that arrears are the amount of tax not paid within the period established by the Tax Code. From this definition it follows that it can arise only when the amount of tax is accrued, but is not paid to the budget on time. The tax authority must be informed that the tax has not been paid the next day after the payment deadline. And he learns about the amount of accrued tax from the tax return. This means that the arrears can only be detected after you: - have submitted a declaration with the amount of tax to be paid, - have missed the deadline for paying the tax. Let us illustrate what has been said. The last day for paying UTII for the first quarter is April 25, the tax was not paid on time. OPTION 1. The taxpayer submitted the UTII return for the first quarter on April 20 or earlier. Until April 25, you don’t have to pay the tax and there will be no arrears. We can talk about its availability only from April 26th. From the same day, the 3-month period for submitting a claim will begin to count. Thus, the last day of its display will be July 26th. OPTION 2. The UTII declaration for the first quarter was submitted in violation of the deadline - April 24. In this case, the deadline for issuing a claim will flow in the same way as in option 1. OPTION 3. The UTII declaration for the first quarter was submitted in violation of the deadline - April 30. Before submitting the declaration, the tax office cannot make a demand, since it will not know the amount of the arrears. Therefore, the deadline for submitting a claim under this declaration will begin on May 1 and its last day will be July 31. Inspectors have their own approach However, in practice, tax authorities often count the deadline for issuing a claim not from the date specified by us, but from any moment of detection of arrears in their internal documents and databases. And this approach sometimes finds support. Note. If arrears are identified outside the framework of a tax audit, the tax inspectorate draws up a document identifying the arrears from the taxpayer (fee payer) or tax agent. From the date of drawing up this document, it begins to count down the period for issuing a claim. However, the prevailing opinion in judicial practice is that the discovery by the tax authority of data in its internal documents cannot indicate either the presence of arrears or the presence of overpayments, since such data completely depend on the actions of its employees. And the courts refuse to collect arrears on claims submitted in violation of the deadlines. For example, in one of the court decisions the following situation was considered. The inspectorate made a mistake when reflecting tax accruals on the entrepreneur's personal account card. Having corrected it after 2 years, she made a demand for additional tax payment within 3 months from the moment she discovered her error and made corrections to the card. But the court refused to collect this arrears, arguing it as follows. The tax arrears arose not as a result of unlawful (guilty) actions of the entrepreneur, but because of an inspection error. And the inspection had the opportunity to timely identify the arrears and send a demand to the entrepreneur, but did this only 2 years later. This means that she lost the right to collect the disputed amount of tax. *** I would like to wish you not to forget about the deadlines for paying taxes. And if you receive a demand for payment of arrears that were not revealed as a result of an audit, treat it carefully: check both the basis and the timing of its submission. If there are violations, the claim can be challenged either in a higher tax authority or in court. First published in the journal "Glavnaya Kniga" 2010, N 5 Kononenko A.

When an arrears are identified from a taxpayer (fee payer, insurance premium payer, tax agent) (including in the event of loss of the right to restructure debt on taxes, fees, insurance premiums and debt on accrued penalties, termination of a deferment, installment plan, termination of an investment agreement tax credit), the tax authority generates with software a document on identifying arrears, according to the form approved by Order of the Federal Tax Service of Russia dated February 13, 2017 No. ММВ-7-8/179@ “On approval of document forms on identifying arrears, requirements for payment of taxes, fees, insurance contributions, penalties, fines, interest, as well as documents used by tax authorities when applying interim measures and collecting debt on these payments" (registered by the Ministry of Justice of Russia on March 15, 2017 No. 45958), which is stored in the tax authority.

According to the position of the Supreme Arbitration Court of the Russian Federation, set out in the Resolution of the Plenum of July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation,” the day of detection of arrears should be understood as the next day after the deadline for paying the tax (advance payment) payment), and in the case of submitting a tax return (calculation of an advance payment) in violation of the established deadlines - the next day after its submission.

It is necessary to take into account that information on funds received into the budget system of the Russian Federation is submitted by the Federal Treasury authorities to the Federal Tax Service of Russia, as a rule, after 4 days from the day the taxpayer deposits funds into the bank.

And, accordingly, a document identifying arrears from taxpayers (payers of fees, payers of insurance premiums, tax agents) - organizations, individual entrepreneurs or a responsible participant in a consolidated group of taxpayers (hereinafter - CTG), individuals who are not individual entrepreneurs, is formed no later than 5 working days from the date of payment of taxes, fees, and insurance premiums.

If a tax return (calculation) is not received within the deadline established by the legislation on taxes and fees, a document identifying the arrears is generated no later than 5 working days from the date of receipt of the tax return (calculation) by the tax authority.

After generating a document on identifying arrears, the tax authority analyzes data from the local level information resource “Settlements with the Budget” about the taxpayer’s overpayment and debt for one type of taxes, as well as penalties and fines in order to confirm the presence of amounts of overpaid mandatory payments and carry out offsets in in accordance with paragraph 5

Tax arrears areoverdue debts of legal entities and individuals on payments to the budget. In our article, we will consider in detail what this is a tax arrears, as well as what negative consequences it entails for organizations and entrepreneurs.

What is tax arrears?

If a legal entity or individual entrepreneur misses the deadline for paying taxes or insurance premiums, thereby violating tax legislation (paragraph 2, paragraph 1, article 45 of the Tax Code of the Russian Federation), then he will develop a debt to the budget. This is arrears in taxes (insurance contributions), that is, in this case, debt (clause 2 of article 11 of the Tax Code of the Russian Federation).

Read about what violations entail liability and what its extent is in the article .

In addition, there are situations when, while checking a taxpayer, inspectors discover an excessive amount of taxes reimbursed to him from the budget, for example, for VAT. And this is a tax arrears too.

The following taxes can be reimbursed from the budget:

• VAT, when the amount of deductions exceeds the amount of calculated tax, including taking into account the amounts of tax subject to restoration (clause 2 of Article 173 of the Tax Code of the Russian Federation);
• excise taxes, when the amount of tax deductions is greater than the amount of excise tax calculated on transactions with excisable goods - objects of taxation under Art. 182 of the Tax Code of the Russian Federation (clause 1 of Article 203 of the Tax Code of the Russian Federation).

Read about illegal VAT refunds and subsequent liability for this in the material .

When does a tax arrear arise?

Tax arrears arise the very next day after the violation of the deadline established by law for paying taxes to the budget.

If an excessively refunded amount of tax is recognized as arrears, then the day of its formation will be (paragraph 4, paragraph 8, article 101 of the Tax Code of the Russian Federation):

• the day on which the taxpayer actually received the refunded amount of tax from the budget, in the case of transferring funds from the budget to the current account;
• the day on which the decision was made to offset the tax amount, in the event of a tax offset.

What are the consequences of arrears?

You must always remit taxes on time, otherwise there may be consequences - tax arrears, as well as the accrual of penalties.

The arrears can be repaid by the taxpayer voluntarily. However, in addition to the tax itself, you will also need to transfer penalties to the budget, calculated taking into account the number of days of late payment.

If the taxpayer does not independently pay off his debt in the form of tax arrears and penalties to the budget, then the tax authorities will collect these amounts by force.

If it is impossible to collect arrears of taxes and penalties from the taxpayer, the tax authorities may write off this debt as bad.

What is the procedure for collecting arrears by tax authorities?

Let's consider the procedure for collecting debt to the budget from a taxpayer step by step.

Step 1. If a tax arrears are detected, the tax authority must issue a demand to the debtor to pay taxes, penalties, fines, and interest within the following terms:

• If a tax arrears are identified during a tax audit, then no later than 20 working days from the moment when the decision made based on the results of the audit came into force (clause 6 of Article 6.1, clauses 2, 3 of Article 70, clause 1 Article 87, paragraphs 7, 9 of Article 101 of the Tax Code of the Russian Federation).
• If the arrears are identified outside the scope of the taxpayer’s audits, then the deadline for sending the demand will depend on the amount of the debt (clauses 1, 3, article 70, clause 10, article 101.4 of the Tax Code of the Russian Federation). So, with a debt of 500 rubles. or more, the demand must be sent within 3 months from the date of discovery of the arrears, and if the debt is less than 500 rubles. - within 1 year from the date of discovery of the arrears.

Step 2. The taxpayer must fulfill the requirement within the period specified therein (clause 6, article 6.1, paragraph 4, clause 4, article 69 of the Tax Code of the Russian Federation). The minimum period within which he must meet the repayment of arrears on taxes, penalties, etc. is 8 working days from the date of receipt. If the debtor does not fulfill the demand, then:

• According to paragraph 3 of Art. 46 of the Tax Code of the Russian Federation, no later than 2 months after the deadline for fulfilling the requirement, the tax authority makes a decision to collect the debt from the debtor’s accounts opened with banking and credit institutions. Let us note that if we are talking about a consolidated group of taxpayers, then the period for making this decision by the tax authority is extended to 6 months from the moment when the deadline for fulfilling the requirement sent to the responsible member of the group has expired (subclause 5, clause 11, article 46 of the Tax Code of the Russian Federation). The procedure for collecting debt from taxpayer accounts is regulated by Art. 46 Tax Code of the Russian Federation. If there are no funds in bank accounts or there are not enough funds to pay off the debt, you must proceed to step 3.

Read about from which taxpayer accounts debts on taxes and fees can be collected .

• After 2, but no later than 6 months after the end of the deadline for fulfilling the demand for payment of arrears, penalties, fines, etc., the tax authority has the right to submit an application to the arbitration court in order to recover the required amount of debt from the taxpayer. The deadline for filing an application regarding the collection of debt from members of a consolidated group of taxpayers is extended to 6 months after the expiration of the 6-month period for indisputable collection of debt from the bank accounts of these persons (subclause 5, clause 11, article 46 of the Tax Code of the Russian Federation). Please note that if the inspectorate, for good reason, missed the deadline for filing this application, the court can reinstate it (paragraph 1, paragraph 3, subparagraph 5, paragraph 11, article 46 of the Tax Code of the Russian Federation, article 117 of the Arbitration Procedure Code of the Russian Federation).
• No later than 6 months after the end of the deadline for fulfilling the requirement, the tax authority submits an application to the arbitration court in order to recover from the taxpayer the necessary amount of debt in those cases that are provided for in subsection. 1-4 p. 2 tbsp. 45 of the Tax Code of the Russian Federation. In accordance with the provisions of sub-clause. 2 p. 2 art. 45 of the Tax Code of the Russian Federation in this case, tax authorities have the right to go to court only if the arrears are identified during a tax audit and are registered with the debtor for more than 3 months. Indisputable collection of arrears in such situations is impossible.

Step 3. If it is not possible to collect the debt at the expense of the debtor’s funds, then:

• The inspectorate, no later than 1 year after the deadline for fulfilling the demand for payment of the debt, makes a decision on its collection at the expense of the taxpayer’s property (clause 7 of article 46, clause 1 of article 47 of the Tax Code of the Russian Federation). Collection of arrears, penalties, etc. at the expense of property is carried out in the manner prescribed by Art. 47 Tax Code of the Russian Federation.
• In the period from 1 to 2 years after the expiration of the deadline for fulfilling the requirement, tax authorities apply to the court with an application to collect the required debt from the taxpayer. If the inspection, for good reason, misses the deadline for filing the said application, then the court can reinstate it (paragraph 3, paragraph 1, article 47 of the Tax Code of the Russian Federation, article 117 of the Arbitration Procedure Code of the Russian Federation).

Read more about the collection procedure.

When is it possible to write off tax arrears?

If the statute of limitations for debt to the budget has expired, then the tax authorities will not be able to oblige the debtor to pay the arrears, despite the fact that the debt will still be registered with him. However, if such a debt is deemed uncollectible, it may be excluded from the card for settlements with the budget.

According to sub. 1-4.1 clause 1 art. 59 of the Tax Code of the Russian Federation, a debt is recognized as uncollectible in the following cases:

• upon liquidation of the company;
• when an individual entrepreneur is declared bankrupt;
• in the event of the death of an individual, if he was a debtor for taxes and fees;
• if there is a court decision, according to which the tax authorities do not have the right to demand payment of arrears of taxes, penalties, etc. from the debtor;
• when a bailiff makes a decision to complete proceedings on an executive document with the return of such a document to the claimant (clauses 3, 4, part 1, article 46 of the federal law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”), provided that a this debt is more than 5 years ago, in the following cases:

• the amount of debt is equal to or lower than the amount of claims against the debtor established by the legislation of the Russian Federation on insolvency (bankruptcy) for initiating bankruptcy proceedings;
• the court returns the application for declaring the debtor bankrupt or terminates the bankruptcy proceedings due to the lack of funds necessary to compensate for legal costs for the procedures applied in the bankruptcy case.

Results

Arrears on tax payments arise if the deadlines for payment are missed. It is recognized from the first day following the date determined as the deadline for payment. The consequence is penalties accrued for each day of delay.

If the taxpayer does not pay off the arrears and penalties voluntarily, the Federal Tax Service will resort to a forced collection procedure. In certain situations, debt is considered uncollectible.

It is obvious that tax not paid on time should sooner or later stop hanging like a sword of Damocles over the taxpayer. This is necessary, first of all, to ensure business stability. And such a period is provided for in the Tax Code of the Russian Federation. However, the fact that the inspectorate will no longer be able to collect the debt does not mean that the taxpayer will not have problems. Read about why it is undesirable to have “overdue” debt on your personal account, at what point it arises and how to get rid of it.

In practice, the following situation often arises: there is an arrears on the taxpayer’s personal account, but the period for collecting it has expired. But the inspectorate is in no hurry to exclude such arrears from the personal account. The fact is that the procedure for maintaining personal accounts of taxpayers is established by order of the Federal Tax Service of Russia dated March 16, 2007 No. MM-3-10/138@. And it does not contain a provision according to which arrears, the collection period for which has been missed, must be written off from the personal account.

As a result, the old debt continues to be registered with the taxpayer. And this is not at all a harmless entry on a computer. Firstly, the arrears will appear in the certificate on the status of settlements with the budget (the form was approved by order of the Federal Tax Service of Russia dated May 23, 2005 No. MM-3-19/206@). This certificate is needed not only when obtaining bank loans, but also in order to be able to participate in state and municipal auctions. Secondly, the danger of a “stuck” arrear is that tax authorities may decide to pay it off using overpayments of taxes that arise later.

How is the period during which controllers can collect arrears determined?

Thus, it is obvious that leaving “overdue” debt on a personal account is unprofitable. So what to do? Before answering this question, let's figure out this: how much time does the inspectorate have to collect the arrears?

To determine this period, you need to know a number of other deadlines. Thus, Article 46 of the Tax Code of the Russian Federation provides for a period after which tax authorities lose the right to indisputably write off arrears. It is equal to two months, and is counted from the day indicated in the tax payment request as the deadline for voluntary repayment of the arrears. If tax officials have missed the deadline for indisputably writing off a taxpayer’s debt, they can go to court. They are given six months to do this, also counted from the moment the deadline for fulfilling the requirement expires (although the court can restore the missed deadline).

The main difficulty in determining the exact “lifespan” of arrears is as follows. The main starting point for the above deadlines is the date of voluntary tax payment specified in the request. In this case, the demand itself is sent to the taxpayer within three months from the date of discovery of the arrears (clause 1 of Article 70 of the Tax Code of the Russian Federation). The date of detection of arrears is recorded by the inspectorate in a special document (Appendix No. 3 to the order of the Federal Tax Service of Russia dated December 1, 2006 No. SAE-3-19/825@). That is, the beginning of all the listed periods depends on the date the arrears were identified. This means that formally, a reconciliation carried out in 2010 can become the basis for collecting arrears for any of the periods included in it.

The situation is similar with arrears identified during a tax audit. True, in this case, the period for issuing a demand is only 10 working days from the date of entry into force of the inspection decision (Clause 2 of Article 70 of the Tax Code of the Russian Federation). However, the inspections themselves, especially on-site inspections, can take quite a long time.

There is one more nuance that must be taken into account when calculating the maximum period allotted to tax authorities for collecting arrears. A necessary element of the calculation is the time specified in the request for voluntary payment of tax. But often tax authorities do not make this requirement at all, although they should do so. In this case, the calculation is carried out as follows. From the period when the inspection was obliged to issue a demand (three months or 10 working days), 10 calendar days are counted - the minimum period for voluntary repayment of arrears specified in paragraph 4 of Article 69 of the Tax Code of the Russian Federation. And after these 10 calendar days, the deadlines for indisputable and then for judicial collection of the arrears are determined.

Maximum period for collecting arrears discovered outside the scope of the audit

Date of identification of arrears + time before issuing a demand + period for voluntary payment specified in the demand (if the demand was not issued, then 3 months + 10 calendar days) + 2 months for undisputed write-off of funds + 6 months for going to court.

Maximum period for collecting arrears discovered during an inspection

Date of entry into force of the inspection decision + time before issuing a demand + period for voluntary payment specified in the demand (if the demand was not issued, then 10 working days + 10 calendar days) + 2 months for undisputed write-off of funds + 6 months for going to court .

As you can see, the “lifetime” of arrears can be quite long. Therefore, if during a desk audit of a declaration with errors, the tax authorities for some reason did not identify any violations, and several years have passed since its filing, this does not mean that the company’s debt will not be collected. After all, the period for which the declaration was filed may also be subject to on-site inspection.

I note that if the arrears are already reflected in the taxpayer’s personal account, it will not be difficult to determine the period during which the tax authorities have the right to collect it. After all, the date of detection of such debt is immediately visible.

You can only get rid of debt stuck on your personal account through the court

Let us now move on to the main question: how to ensure that the “overdue” arrears do not hang on the account? Unfortunately, it will not be possible to resolve this issue without going to court. After all, as already mentioned, the current procedure for maintaining personal accounts does not allow tax authorities to write off debts that have expired. And although Article 59 of the Tax Code of the Russian Federation directly states that arrears, the collection of which is impossible on legal grounds, are considered hopeless and must be written off, inspectors do not apply this rule. At the same time, they refer to the provision of the same Article 59 of the Tax Code of the Russian Federation, which states that the procedure for writing off bad debts on federal taxes is determined by the Government of the Russian Federation. Currently, this procedure is approved by Decree of the Government of the Russian Federation dated February 12, 2001 No. 100. And this document does not say a word about debt, the collection of which is impossible for legal reasons. And since the procedure has not been approved, then, according to the auditors, it cannot be written off.

Thus, the only way to get rid of “overdue” arrears is to go to court. However, it is pointless to submit an application requesting to exclude bad debts from your personal account. The fact is that back in 2005, the Presidium of the Supreme Arbitration Court of the Russian Federation came to a generally fair conclusion that the mere entry on a personal account about the presence of arrears does not violate the rights of the taxpayer (Resolution dated May 11, 2005 No. 16507/04). Therefore, the court will not satisfy such a statement (see also the ruling of the Supreme Arbitration Court of the Russian Federation dated August 12, 2009 No. VAS-9893/09).

Accordingly, we need to do things differently. The procedure depends on why the taxpayer needs to exclude the “stuck” debt from his personal account.

Let's assume that in order to participate in a competition, a company needs a certificate about the status of its settlements with the budget. In this case, the company, having received a certificate from the inspectorate that mentions an “overdue” debt, can request in writing that the tax authorities make a note in this certificate about the impossibility of collecting the debt. If the tax authorities refuse, or do not respond to this request at all within a month, the company has every reason to go to court. You need to appeal the refusal to make changes to the certificate or the inspection’s inaction. It is advisable to indicate in the application that the absence in the certificate of information that the tax authorities have lost the opportunity to collect the debt violates the taxpayer’s right to receive reliable information (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.09.09 No. 4381/09).

Another case: the inspectorate independently credited the company’s recent overpayment of taxes against the “stuck” arrears. In this situation, an application is submitted to the court to invalidate the decision to carry out the offset. This can be done within three months from the date of receipt of a copy of this decision (clause 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation).