1. If, at the end of the tax period, the amount of tax deductions exceeds the total amount of tax calculated for transactions recognized as an object of taxation in accordance with subparagraphs 1 - 3 of paragraph 1 of Article 146 of this Code, then the resulting difference is subject to compensation (offset, refund) to the taxpayer in accordance with the provisions of this article.

2. The specified amount is allocated within three calendar months following the expired tax period to fulfill the taxpayer’s obligations to pay taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Russian Federation, to pay penalties, repay arrears, amounts tax penalties awarded to the taxpayer, subject to credit to the same budget.
Tax authorities carry out offsets independently, and for taxes paid in connection with the movement of goods across the customs border of the Russian Federation, in agreement with the customs authorities and within ten days after the offset, they inform the taxpayer about it.

3. After three calendar months following the expired tax period, the amount that was not offset shall be returned to the taxpayer upon his written application.
The tax authority, within two weeks after receiving the said application, makes a decision to return the specified amount to the taxpayer from the relevant budget and, within the same period, sends this decision for execution to the relevant body of the Federal Treasury. The refund of these amounts is carried out by the Federal Treasury.
The refund of amounts is carried out by the Federal Treasury authorities within two weeks from the date of receipt of the specified decision of the tax authority. If such a decision is not received by the relevant body of the Federal Treasury after seven days, counting from the day of sending by the tax authority, the date of receipt of such a decision is recognized as the eighth day, counting from the day of sending such a decision by the tax authority.
If the deadlines established by this paragraph are violated, interest is accrued on the amount to be returned to the taxpayer based on one three hundred sixtieth of the refinancing rate of the Central Bank of the Russian Federation for each day of delay.

4. The amounts provided for in Article 171 of this Code in relation to operations for the sale of goods (work, services) provided for in subparagraphs 1 - 6 and 8 of paragraph 1 of Article 164 of this Code, as well as tax amounts calculated and paid in accordance with paragraph 6 of the article 166 of this Code are subject to compensation by offset (refund) on the basis of a separate tax return specified in paragraph 6 of Article 164 of this Code and documents provided for in Article 165 of this Code.
Reimbursement is made no later than three months, counting from the day the taxpayer submits the tax return specified in paragraph 6 of Article 164 of this Code and the documents provided for in Article 165 of this Code.
During the specified period, the tax authority checks the validity of the application of the 0 percent tax rate and tax deductions and makes a decision on compensation by means of offset or return of the corresponding amounts or on refusal (in whole or in part) of compensation.
If the tax authority makes a decision to refuse (in whole or in part) a refund, it is obliged to provide the taxpayer with a reasoned conclusion no later than 10 days after the said decision is made.
If the tax authority does not make a decision on refusal within the established period and (or) the specified conclusion is not presented to the taxpayer, the tax authority is obliged to make a decision on compensation for the amount for which the decision on refusal was not made and notify the taxpayer of the decision made in within ten days.
If the taxpayer has arrears and penalties on taxes, arrears and penalties on other taxes and fees, as well as debts on awarded tax sanctions that are subject to credit to the same budget from which the refund is made, they are subject to offset as a matter of priority by decision of the tax authority .
Tax authorities carry out this offset independently and inform the taxpayer about it within 10 days.
If the tax authority makes a decision on reimbursement, if there is a tax arrears that arose in the period between the date of filing the declaration and the date of reimbursement of the corresponding amounts and does not exceed the amount subject to reimbursement by the decision of the tax authority, a penalty is not charged on the amount of the arrears.
If the taxpayer does not have arrears and penalties for taxes, arrears and penalties for other taxes, as well as debts on awarded tax sanctions subject to credit to the same budget from which the refund is made, the amounts subject to reimbursement are counted against current tax payments and (or) other taxes and fees payable to the same budget, as well as taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the implementation of work (services) directly related to the production and sale of such goods, in agreement with the customs authorities or are subject to return to the taxpayer upon his application.
No later than the last day of the period specified in paragraph two of this paragraph, the tax authority makes a decision on the return of tax amounts from the relevant budget and, within the same period, sends this decision for execution to the relevant body of the Federal Treasury.
Refunds are made by the Federal Treasury authorities within two weeks after receiving the decision of the tax authority. If such a decision is not received by the relevant body of the Federal Treasury after seven days, counting from the day of sending by the tax authority, the date of receipt of such a decision is recognized as the eighth day, counting from the day of sending such a decision by the tax authority.
If the deadlines established by this paragraph are violated, interest is accrued on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation.

/"Arbitration Disputes", 2007, N 4/
N.G. KUZNETSOVA

Kuznetsova N.G., judge of the Federal Arbitration Court of the North-Western District.

The norms of Article 176 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), dedicated to the reimbursement of value added tax from the budget (by offset or refund), the accrual and payment of interest for violation of the deadlines for the return of value added tax from the budget, over the past years with confidence can be considered one of the most frequently assessed and studied by courts. This is explained by the fact that, perhaps, there are no issues that would be sufficiently clearly and unambiguously resolved by the norms of the said article.

However, before discussing these issues, it is necessary to recall the special nature of the legal relations discussed in Article 176 of the Tax Code of the Russian Federation.

The special nature of legal relations

As a general rule, the Tax Code of the Russian Federation regulates the relationship between the state and persons who are responsible for paying taxes and tax payments to the budget. Organizations and citizens, including those with the status of individual entrepreneurs, if there are objects of taxation, calculate and pay taxes to the budget system, and the state, represented by authorized bodies, monitors compliance by these persons with the legislation on taxes and fees.

Taxpayers may make excessive payments, and tax authorities may unjustifiably collect taxes from the budget. In this case, Articles 78 and 79 of the Tax Code establish the procedure and deadlines for returning from the budget overpaid (collected) amounts. For violation of the deadlines for the return of taxes overpaid (collected) to the budget, the taxpayer is paid interest according to the rules defined by Articles 78 and 79 of the Tax Code of the Russian Federation.

The above rules concern the consequences of untimely return to the taxpayer of what he paid or was collected from him directly to the budget.

At the same time, in a number of cases specifically provided for by the Tax Code of the Russian Federation, the taxpayer has the right to a refund from the budget of tax amounts that he did not pay to the budget.

One of them is given in Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation.

In accordance with Article 173 of the said chapter of the Code, taxpayers calculate the amount of value added tax payable to the budget in the following order: the total amount of tax calculated at the end of each tax period according to the rules of Article 166 of the Code is reduced by the amount of tax deductions provided for in Article 171 of the Tax Code of the Russian Federation . The difference is subject to payment to the budget.

In this case, often the amount of tax deductions (which refers to the amount of tax presented to the taxpayer by sellers of goods (works, services), as well as property rights on the territory of the Russian Federation or paid by the taxpayer when importing goods into the customs territory under the customs regimes listed in paragraph 2 of Article 171 Tax Code of the Russian Federation) exceeds the amount of tax calculated based on the results of a specific tax period in relation to all transactions recognized as an object of taxation.

A positive difference is formed in favor of the taxpayer, and Chapter 21 of the Tax Code of the Russian Federation determines the procedure for handling such a difference.

The term "reimbursement"

Paragraph 2 of Article 173 of the Tax Code of the Russian Federation states that the positive difference is subject to compensation to the taxpayer in the manner and under the conditions provided for in Article 176 “Procedure for tax refund” of the Tax Code of the Russian Federation.

Moreover, Article 176 as amended, in force until January 1, 2007, provided for two different procedures for the formation of such a “positive difference”.

In accordance with paragraph 1 of Article 176 of the Tax Code of the Russian Federation, which relates to the procedure for tax reimbursement according to the declaration for the domestic market, a positive difference arises when the amount of tax deductions exceeds the total amount of tax calculated for transactions recognized as the object of taxation.

Clause 4 of Article 176 of the Tax Code of the Russian Federation, which regulated the procedure for tax refunds on transactions of sale of goods (works, services) taxed at a tax rate of 0 percent, provided for the refund of tax amounts recognized as tax deductions that relate to transactions taxed at a tax rate of 0 percent, and also the amounts of tax paid in accordance with subparagraph 6 of Article 166 of the Tax Code of the Russian Federation. That is, since the proceeds from such sales of goods (works, services) are taxed at a tax rate of 0 percent, there is no amount calculated from the proceeds from such operations; accordingly, the entire amount of tax paid to suppliers of goods, works, services (the amount of tax deductions) is presented for reimbursement from the budget.

Paragraph 1 of Article 176 of the Tax Code of the Russian Federation indicates two ways to compensate for such a positive difference - offset and refund.

Since the legislator introduces the special term “reimbursement” when a taxpayer has a positive difference in value added tax, thereby emphasizing the special nature of its occurrence, since we are not talking about an excessive payment by the taxpayer to the budget of the tax calculated in accordance with Article 166 of the Tax Code of the Russian Federation, and concerns the amounts of tax paid to other persons in a different manner - to suppliers of goods (works, services), at customs as part of customs payments, etc., when returning or crediting tax on the basis of Article 176 of the Tax Code of the Russian Federation, the following phrases are used in judicial acts: "reimbursement tax by way of refund from the budget", "offset by way of tax refund".

The Supreme Arbitration Court of the Russian Federation, in its Resolution adopted back in 2000 (dated 06/06/2000 N 9107/99), distinguished between the concepts of “excess payment”, “overpayment of value added tax” and “reimbursement of value added tax paid to suppliers of goods” (works, services)".

The Resolution states that, in accordance with Article 78 of the Tax Code of the Russian Federation, the amount of overpaid tax is subject to refund to the taxpayer from the budget (non-budgetary fund) into which the overpayment occurred. If the refund deadline is violated, interest is accrued on the amount of overpaid tax not returned within the prescribed period for each day the refund deadline is violated. That is, the basis for applying this rule is the overpayment of tax to the budget (non-budgetary fund). Payment of taxes in accordance with Article 58 of the Tax Code of the Russian Federation is made in cash or non-cash form. The payment of tax in accordance with Articles 45 and 60 of the Tax Code of the Russian Federation is understood as an order from the taxpayer to the bank, subject to certain conditions, to transfer the tax to the relevant budgets.

Clause 3 of Article 7 of the Law of the Russian Federation “On Value Added Tax” (as well as Article 176 of the Tax Code of the Russian Federation, in force since 2001) provides for reimbursement to the taxpayer from the budget of the amount of tax paid by him to suppliers. This norm regulates the relationship not regarding the payment of tax to the budget and its return in case of overpayment, but the specific, characteristic of this particular tax, relationship regarding the reimbursement of the amount of tax paid to suppliers of material assets, that is, other business entities that are payers of this tax.

Taking into account the above, the Supreme Arbitration Court of the Russian Federation recognized that there are no grounds for considering these amounts as overpaid to the budget and applying the provisions of Article 78 of the Tax Code of the Russian Federation relating to the calculation of interest to disputed legal relations.

Two tax refund procedures before 2007

Until 2007, taxpayers in the presence of transactions for the sale of goods (work, services) taxed at a tax rate of 0 percent were required to submit two separate declarations: 1) for transactions for the sale of goods (work, services) taxed at tax rates exceeding 0 percent (10%, 18%), most often referred to as a declaration for the internal market or a general declaration, and 2) for transactions involving the sale of goods (works, services) taxed at a tax rate of 0 percent.

Accordingly, Article 176 of the Tax Code of the Russian Federation contained two independent procedures for tax reimbursement: for transactions of sale of goods (work, services) on the domestic market and for transactions of sale of goods (work, services) taxed at a tax rate of 0 percent.

The first regulated the norms of paragraphs 1 - 3, and the second - the norms of paragraph 4 of Article 176 of the Tax Code of the Russian Federation.

The main differences between these orders were as follows.

Firstly, the period of emergence of the right to use in the interests of the taxpayer (offset or refund) of the tax amount declared in the declaration for reimbursement is defined differently.

Cash in the amount of the positive difference that a taxpayer had on the value added tax return on the domestic market immediately after the taxpayer filed such a declaration was recognized as the taxpayer’s cash, as evidenced by the norm of paragraph 2 of Article 176 of the Tax Code of the Russian Federation, as amended in force until 2007 This indicates the obligation of the tax authority to direct the amount of the positive difference reflected in the declaration received by the tax authority within three calendar months to fulfill the taxpayer’s obligations to pay taxes and fees, penalties, repayment of arrears, and amounts of tax sanctions subject to credit to the same budget. .

Consequently, the tax authority, within three months after receiving the declaration, had the right and was obliged to independently offset the amount of tax presented in the declaration for reimbursement against the taxpayer’s debt for taxes, penalties and tax sanctions, as well as the fulfillment of the taxpayer’s current tax obligations, but at the end of three calendar months, the amount that was not offset was subject to return to the taxpayer upon his written application.

The Code did not provide for special confirmation by the tax authority of the taxpayer’s right to such a positive difference.

This issue was resolved differently for transactions involving the sale of goods (works, services) taxed at a tax rate of 0 percent.

Clause 4 of Article 176 of the Tax Code of the Russian Federation provided for tax reimbursement no later than three months, counting from the date of submission of the declaration with the documents provided for in Article 165 of the Tax Code of the Russian Federation. During this period, the tax authority was obliged to check the validity of the application of the 0 percent tax rate and tax deductions and, based on the results of the check, make a decision on compensation by offsetting or returning the corresponding amounts or on refusal (in whole or in part) of compensation. If the taxpayer had arrears and penalties on taxes, as well as debts on awarded sanctions that were to be credited to the same budget, the tax authority was obliged to carry out an offset. In the absence of such debts, the amounts to be reimbursed were subject to offset against current tax payments of the same budget level or to be returned to the taxpayer upon his application.

That is, until the tax authority makes a decision on reimbursement or until the expiration of the three-month period allotted for checking the declaration and the documents submitted with it, the amount of tax indicated in the declaration for reimbursement is not considered subject to reimbursement to the taxpayer in any way.

Understanding this has been a certain difficulty for taxpayers for quite a long time, as evidenced by numerous Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation (dated 10/17/2006 N 5370/06, dated 02/27/2006 N 10606/05, dated 02/07/2006 NN 11608/05, 13644 /05, 11626/05, 7308/05, 7299/05, dated 12/14/2004 N 3521/04).

Taxpayers, when simultaneously filing a return on the internal market and a return on transactions taxed at a tax rate of 0 percent, and having the first amount of tax payable, and the second amount of tax subject to reimbursement from the budget, paid only the difference between the amounts or did not pay tax at all , if the amount to be reimbursed significantly exceeded the amount of tax indicated for payment under the declaration for the domestic market.

Taxpayers disputed the demands of the tax authorities to pay the full amount of tax on the return on the internal market in arbitration courts. In applications to the court, taxpayers argued that the amount of tax liabilities is determined based on the results of each tax period and is calculated for all taxable transactions reflected in both declarations. Therefore, before the inspectorate makes a decision to refuse a refund of value added tax on a tax return at a tax rate of 0 percent, the taxpayer has the right to offset the amounts of value added tax payable under the tax return on the domestic market for the same tax period when calculating the amount of tax obligations in the aggregate arising on the basis of Article 171 of the Tax Code of the Russian Federation.

The Supreme Arbitration Court of the Russian Federation did not agree with the position of taxpayers, indicating that for transactions subject to value added tax at a tax rate of 0 percent by virtue of subparagraphs 1 - 6 and 8 of paragraph 1 of Article 164 of the Tax Code of the Russian Federation, deductions are made in the form of compensation on the basis of a separate tax return and after checking by the tax inspectorate the documents submitted by the taxpayer with the declaration for compliance with their requirements of Article 165 of the Tax Code of the Russian Federation.

Secondly, the purpose of the three-month period established by paragraph 2 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, as well as the start date of its calculation, are different.

According to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, within a three-month period, the tax authority sends the amount of tax to be reimbursed to the taxpayer for the fulfillment of his tax obligations.

In this case, a three-month period is considered to be three calendar months following the expired tax period.

The three-month period provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation is established for the tax authority to check “the validity of applying the 0 percent tax rate and tax deductions.”

These three months, in contrast to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, are calculated from the date the taxpayer submits the tax return and documents provided for in Article 165 of the Tax Code of the Russian Federation.

Tax authorities often do not take this difference into account and, when determining the period of delay in tax refund on a return on the domestic market, the beginning of the three-month tax refund period mistakenly considers the date of filing the return, and not the day following the end date of the tax period for which the value added tax return was submitted. cost (Resolution of the Federal Arbitration Court of the North-Western District dated June 29, 2006 in case No. A56-54145/2005).

Thirdly, there is a different order of offset of payments depending on their type (it should be remembered that offset is carried out only in relation to payments subject to credit to the same budget).

In paragraph 2 of Article 176 of the Tax Code of the Russian Federation, payments for the payment of which the amount to be reimbursed is allocated are given in the following sequence:

• fulfillment of the obligation to pay taxes and fees (including taxes paid in connection with the movement of goods across the customs border of the Russian Federation);
• payment of penalties;
• repayment of arrears;
• the amount of tax penalties awarded to the taxpayer.

And paragraph 4 of Article 176 of the Tax Code of the Russian Federation provides for a different ranking order:

• arrears and penalties for value added tax;
• arrears and penalties for other taxes and fees;
• debt on awarded sanctions;
• current payments for value added tax and (or) other taxes and fees, as well as taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the implementation of work (services) directly related to the production and sale of such goods .

Even a quick comparison of the above lists allows you to see significant differences in them.

It is difficult to say to what extent the tax authorities took these discrepancies into account when carrying out offsets under paragraphs 1 - 3 and paragraph 4 of Article 176 of the Tax Code of the Russian Federation, based on existing judicial practice.

Fourthly, the deadline for filing a tax refund application is regulated differently.

Both procedures provide for two methods of tax refund - offset and refund, however, the right to a tax refund is conditional on the presence of a refund application submitted by the taxpayer.

Moreover, not all courts considered the presence of a tax refund application submitted by the taxpayer to the tax authority as a condition for its reimbursement by returning it to the current account.

The Supreme Arbitration Court of the Russian Federation in Resolutions dated November 28, 2006 N 9355/06, dated November 29, 2005 N 7528/05, dated December 21, 2004 N 10848/04 confirmed the need to submit such an application, indicating that before receiving the taxpayer’s application, which contains his express will to return the tax amounts to him, the tax authority has no obligation to return the tax subject to reimbursement.

But the will of the taxpayer can be expressed and must be taken into account not only when submitting an application for a refund directly to the tax authority. In Resolution No. 1363/06 dated 06.06.2006, the Supreme Arbitration Court of the Russian Federation recognized the taxpayer as having fulfilled the requirement of Article 176 of the Tax Code of the Russian Federation to submit an application for a refund as a condition for tax reimbursement by way of a refund when the taxpayer sets out this requirement in an application submitted to the arbitration court. The organization, in addition to the demand to invalidate the tax inspectorate’s decision to refuse to refund the tax on the declaration at a tax rate of 0 percent, asked to oblige the tax authority to refund the tax by returning it to the current account. Previously, an application for a tax refund had not been submitted directly to the tax authority. The Supreme Arbitration Court of the Russian Federation recognized that the purpose of the taxpayer's appeal to the court is to reimburse the tax by returning funds not paid to him due to the unlawful inaction of a state body. The will to reimburse the tax from the budget through a refund can be expressed in an application to the court.

The resolution resolved the long-standing issue of the obligation to first, before going to court, demand an obligation to reimburse the tax in accordance with Article 176 of the Tax Code of the Russian Federation by returning it and submitting an application to the tax authority. The Supreme Arbitration Court of the Russian Federation confirmed the right of a taxpayer to put forward a claim for a tax refund in an application submitted to the court, and in cases where an application for tax refund through a refund was not submitted to the tax authority.

Article 176 of the Tax Code of the Russian Federation does not clearly define the date (term, period) of filing an application for a tax refund to the tax authority.

Thus, in paragraph one of paragraph 3 of Article 176 of the Tax Code of the Russian Federation it is stated that after three calendar months following the expired tax period, the amount that was not offset shall be returned to the taxpayer upon his application.

Does this mean that the taxpayer can submit such an application before the expiration of the three-month period in order to shorten the period for returning the tax amount to the current account?

From the second paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, it follows that the tax authority, within two weeks after receiving the application, makes a decision on the return of the amount of tax from the relevant budget and, within the same period, sends the decision for execution to the relevant body of the federal treasury.

And if the taxpayer submitted an application for a tax refund two weeks before the expiration of the three-month period, does the right to a tax refund arise on the first day following it or is it necessary to add two weeks to the three-month period?

In the Federal Arbitration Court of the Northwestern District, there are two opposing points of view, and their supporters do not deny that the taxpayer has the right to submit an application for a tax refund before the expiration of the three-month period.

According to the first point of view, when submitting an application before the expiration of the three-month period (no later than two weeks, including simultaneously with the declaration), two weeks for making a decision on return are not added, since “the two-week period for making a decision on return is absorbed by the three-month period, established by the first paragraph of paragraph 3 of Article 176 of the Tax Code of the Russian Federation" (Resolutions of the Federal Arbitration Court of the North-Western District dated 09/21/2006 N A05-4743/2006-13, dated 08/24/2006 N A56-40874/2005, dated 02/20/2006 N A56- 40107/04).

A different position is set out in the Resolution of the Federal Arbitration Court of the North-Western District dated April 26, 2006 N A56-39759/2005. The court indicated that “since the application for a tax refund was submitted simultaneously with the tax return, the maximum period for the return of value added tax in the domestic market is equal to three months established for the desk tax audit of the declaration, plus two weeks for making a decision on the return of the specified amount and direction decisions for execution to the relevant body of the federal treasury, plus eight days allotted for the treasury to receive the decision of the tax authority, plus two allotments allotted to the treasury for transferring the corresponding amounts to the taxpayer’s account.”

This issue was not brought up for consideration by the Presidium of the Supreme Arbitration Court of the Russian Federation.

But I would like to once again draw attention to two norms of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, given in paragraphs one and two of paragraph 3 of Article 176 of the Tax Code of the Russian Federation.

The first paragraph of paragraph 3 states that after three calendar months following the expired tax period, the amount that was not offset shall be returned to the taxpayer upon his written application.

That is, it is expressly stated that the uncredited amount will be returned after three months.

At the same time, paragraph two provides for the duty of the tax authority, within two weeks after receiving the application, to make a decision on returning the tax to the taxpayer and, within the same period, to send the conclusion for execution to the relevant federal treasury body.

Should a two-week period be established not only for making a decision, but also for sending the conclusion to the appropriate body of the federal treasury?

If this is so, then the two weeks provided for in paragraph two of paragraph 3 of Article 176 of the Tax Code of the Russian Federation may increase the period for tax refund, regardless of when the application for its refund is submitted, since even if a decision on refund is made simultaneously with the decision on tax refund in the last day of the three-month period, the tax authority has the right to forward this decision to the treasury authority within two weeks.

There is even less certainty in the legal regulation of the deadline for filing an application for a refund of tax reimbursed under the declaration for transactions taxed at a tax rate of 0 percent.

Paragraph 4 of Article 176 of the Tax Code of the Russian Federation also does not establish the date (period) for sending an application for the return of the tax subject to refund.

From paragraph nine of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, it follows that in the absence of grounds for offset, the amounts subject to reimbursement are subject to return to the taxpayer upon his application. And in the next, tenth, paragraph it is stated that the tax authority, no later than the last day of the three-month period, must make a decision on the return of tax amounts from the relevant budget and, within the same period, send this decision for execution to the relevant body of the federal treasury.

Taxpayers' understanding of the provisions of these two paragraphs is different.

Some believe that the application for a refund should be with the tax office at the time the audit is completed and the tax authority makes a decision. Since three months is the maximum period for conducting an audit and the tax authority can complete it much earlier (judicial practice knows many examples when tax authorities conduct an audit and make decisions within a month), such taxpayers submit an application simultaneously with the declaration or after a short period of time.

Other taxpayers believe that there is no point in filing an application for a tax refund before receiving a decision from the tax authority on a tax refund.

At the same time, it is not taken into account that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain rules regulating the actions of tax authorities when a taxpayer submits an application for a refund after the tax authority makes a decision.

However, this problem was resolved by the Presidium of the Supreme Arbitration Court of the Russian Federation.

In Resolution No. 7528/05 dated November 29, 2005, the Supreme Arbitration Court of the Russian Federation confirmed that, within the meaning of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, a taxpayer’s application for a tax refund must be submitted before the expiration of the three-month period established for a desk audit of a tax return. At the same time, the Supreme Arbitration Court of the Russian Federation drew attention to the fact that this paragraph does not contain a prohibition on the taxpayer filing an application for a tax refund even after this period; therefore, the taxpayer is not deprived of the opportunity to submit such an application, even if by the time it is submitted the tax authority made a decision to offset the tax, did not make a decision on compensation, or made a decision to refuse compensation, since the latter can be challenged in arbitration court.

The court also concluded that the period for consideration by tax authorities of tax refund applications submitted by taxpayers outside the three-month period for verifying a tax return is not established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation. Therefore, for the purpose of determining the initial moment of accrual of interest for late tax refund on a declaration at a tax rate of 0 percent, paragraph 3 of Article 176 of the Tax Code of the Russian Federation can be applied, obliging the tax authority to make a decision on tax refund within two weeks after receiving the application and send it within the same period it for execution by the federal treasury body.

I would like to remind you of the need to verify the credentials of the person who signed the application sent to the tax authority for tax reimbursement through a refund.

The tax authorities have information about the head and chief accountant of organizations, as well as about individual entrepreneurs, and their personal signatures, therefore they check the authority of the persons who signed the applications received by the tax authority.

In judicial practice, there are disputes arising due to the signing of submitted applications for offset or refund of value added tax by unauthorized persons.

Thus, in February 2006, the Federal Arbitration Court of the North-Western District considered a cassation appeal in case No. A42-6647/04-26, initiated at the request of an individual entrepreneur to invalidate the decision of the tax authority to refuse compensation by returning the amounts of value added tax , paid to suppliers. During the consideration of the inspectorate's complaint, the court found that the tax authority's refusal to reimburse the taxpayer from the budget for taxes through a refund was justified by the fact that the application for tax refund was signed by an unauthorized person. The Federal Arbitration Court of the Northwestern District agreed with the tax authority. The court recognized that a written statement from the taxpayer is a mandatory documentary basis for a refund of value added tax. The court also indicated that, due to the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation, the participation of a taxpayer - an individual in tax relations through an authorized representative is possible only on the basis of a notarized power of attorney or a power of attorney equivalent to that in accordance with the civil legislation of the Russian Federation. A power of attorney, in accordance with paragraph 1 of Article 185 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), is recognized as a written authority issued by one person to another person for representation before third parties. The validity of a power of attorney may be terminated due to the cancellation of the power of attorney by the person who issued it. The person who issued the power of attorney may at any time revoke the power of attorney or sub-power of attorney, and the person to whom the power of attorney was issued may revoke it. Thus, within the meaning of the provisions of Articles 185 and 188 of the Civil Code of the Russian Federation, a representative can exercise his powers only if they are confirmed by a written power of attorney. Since in the case under consideration, the taxpayer’s application, signed by an authorized representative, did not indicate on the basis of which document (power of attorney) the representative exercises his powers, the cassation court rejected the entrepreneur’s reference to the fact that the application was signed by a duly authorized person.

Fifthly, the rule on the amount of interest accrued to the taxpayer for violating the deadlines for returning taxes in the form of a refund is formulated differently.

Paragraph 3 of Article 176 of the Tax Code of the Russian Federation states that if the deadlines for tax reimbursement by refund are violated, the taxpayer is charged and paid interest based on 1/360 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay.

In paragraph 4 of Article 176 of the Tax Code of the Russian Federation, the size of the refinancing rate of the Central Bank of the Russian Federation, based on which interest is calculated, is not limited.

This circumstance cannot but give rise to disputes between tax authorities and taxpayers.

Tax authorities believe that interest should be calculated based on 1/365 of the refinancing rate of the Central Bank of the Russian Federation.

The courts do not agree with this position of the tax authorities, pointing out that paragraph 4 of Article 176 of the Tax Code of the Russian Federation does not contain an indication of the required number of days used in calculating interest. Applying the provisions of Article 11 of the Tax Code of the Russian Federation, as well as being guided by the explanations contained in the joint Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation dated 08.10.98 N 14/13 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of others money", the courts proceed from the fact that interest for violation of the tax refund deadlines provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation is accrued based on the amount established by paragraph 3 of Article 176 of the Tax Code of the Russian Federation - 1/360 of the refinancing rate of the Central Bank of the Russian Federation (Resolution of the Federal Arbitration Court Court of the Moscow District dated 07.11.2006 N KA-A40/10666-06, dated 22.06.2006 N KA-A40/5338-06).

New tax refund procedure from January 1, 2007

From January 1, 2007, taxpayers submit a single declaration for all transactions involving the sale of goods, works, and services, regardless of the applicable tax rate.

Accordingly, a unified tax refund procedure has been established.

First of all, there is a mandatory desk audit of value added tax declarations for which the amount of tax deductions exceeds the total amount of tax recognized as subject to value added tax.

It should be noted that Article 176 of the Tax Code of the Russian Federation since 2007 contains a direct indication that the inspection is desk-based and is carried out in the manner established by Article 88 of the Tax Code of the Russian Federation. And paragraph 8 of Article 88 of the Tax Code of the Russian Federation (as amended in force on January 1, 2007) provides for the right of the tax authority, when a taxpayer submits a tax return for value added tax, which states the right to a tax refund, to request from the taxpayer documents confirming the in accordance with Article 172 of the Tax Code of the Russian Federation, the legality of applying tax deductions.

That is, only if the amount of tax deductions exceeds the amount of tax calculated for transactions recognized as subject to value added tax, and the taxpayer’s right to reimbursement of the difference from the budget arises in accordance with Article 176 of the Tax Code of the Russian Federation, the tax authority has the right to demand the submission of documents provided for in Article 172 of the Tax Code RF.

According to paragraph 2 of Article 88 of the Tax Code of the Russian Federation, a desk audit is carried out within three months from the date the taxpayer submits a tax return and documents that, in accordance with the Code, must be attached to the tax return.

According to the new rule, upon completion of the inspection, within seven days, the tax authority is obliged to make a decision on the reimbursement of the appropriate amounts, if no violations of the legislation on taxes and fees have been identified.

This is a period that was not in the previous version of Article 176 of the Tax Code of the Russian Federation.

Refunds will be made by credit or refund.

As before 2007, if the taxpayer has arrears on taxes, other federal taxes (that is, the type of tax is now determining, and not the level of the budget to which it is credited), arrears on the corresponding penalties and (or) fines, the tax authority independently offsets the amount of tax to be reimbursed against their repayment.

If there are no grounds for the tax authority to carry out an offset, the amount of tax subject to reimbursement by decision of the tax authority is returned at the request of the taxpayer to the bank account specified by him.

The addition about the need for the taxpayer to indicate a bank account in the application appeared only in 2007, however, even before its introduction, tax authorities often justified the legality of non-refund of tax amounts to the taxpayer by the absence of such information in the taxpayer’s application.

The courts did not recognize such an explanation as a valid reason for the inaction of the tax authority, citing the fact that, due to the obligation of taxpayers established by subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation to inform the tax authorities about the opening or closing of accounts, the tax authorities know information about all of their accounts. Therefore, the tax authority must return the tax amount to any known account.

Unfortunately, given the presence of numerous judicial practices indicating the position of the tax authorities not to return value added tax from the budget under any pretext, the introduction by the legislator of a rule to indicate a bank account in the tax refund application will lead to additional disputes. After all, the obligation of taxpayers established by subparagraph 1 of paragraph 2 of Article 23 of the Tax Code of the Russian Federation has not been canceled, therefore, the tax authority always has information about the taxpayer’s accounts. Therefore, in the absence of an indication of a specific bank account in the taxpayer’s application, in principle, nothing prevents the tax authority from making a decision on a tax refund, and in the tax refund order issued on the basis of the decision, sent to the territorial body of the federal treasury, indicate any known account taxpayer.

In connection with the mention of an application for a tax refund, I would like to draw attention to one circumstance that may also cause controversy.

A quick glance at the new edition of the provisions of Article 176 of the Tax Code of the Russian Federation creates the impression that the filing by a taxpayer of an application for a tax refund is not recognized as a mandatory condition for the reimbursement of tax by means of a refund:

• according to paragraph 2 of Article 176 of the Tax Code of the Russian Federation, after completing the inspection, within seven days, the tax authority is obliged to make a decision on tax refund;
• in accordance with paragraph 7, the decision on offset or refund is made simultaneously with the decision on refund of the tax amount;
• paragraph 10 states that if the deadline for the refund of the tax amount is violated, starting from the 12th day after the completion of the desk tax audit, which resulted in a decision on the refund (full or partial) of the tax amount, interest is accrued;
• Clause 6 provides for the refund of tax at the request of the taxpayer to the bank account specified by him.

It is possible that the purpose of introducing in paragraph 6 of Article 176 of the Tax Code of the Russian Federation the rule that the amount subject to reimbursement by decision of the tax authority is returned at the request of the taxpayer to the bank account specified by him, is solely to legally consolidate the right of the taxpayer to give the tax authority mandatory instructions on the details accounts in a specific bank to which funds are to be transferred.

Indeed, in accordance with paragraph 7 of Article 176 of the Tax Code of the Russian Federation, the tax authority is obliged to make a decision on offset or refund simultaneously with the adoption of a decision on refund of the tax amount (in whole or in part). Consequently, taking into account the provisions of paragraph 2 of the same article on the deadline for making a decision on a tax refund, in the absence of grounds for an offset, the tax authority is obliged to make a decision on a tax refund within seven days after the end of the desk audit, regardless of the availability of the taxpayer’s application for a tax refund.

In this case, if an application indicating account details is not submitted by the taxpayer, the tax authority has the right to indicate in the payment order sent to the treasury any account for which it has information.

If the tax authority has a taxpayer’s application for a tax refund to a specific bank account, it does not have the right to issue a payment order otherwise. Violation of this rule may be grounds for holding the tax authority liable for losses caused to the taxpayer on the basis of Article 35 of the Tax Code of the Russian Federation.

In addition, while it is recognized that it is mandatory for a taxpayer to submit an application for a refund even after January 1, 2007, the issue of the procedure and time frame for consideration of applications for a tax refund submitted after the tax authority has made a decision on a tax refund remains unresolved. Article 176 of the Tax Code of the Russian Federation no longer contains norms that can be applied by analogy, as was possible before 2007 (Resolution of the Supreme Arbitration Court of the Russian Federation dated November 29, 2005 N 7528/05).

Most likely, this issue will be submitted to the judicial authorities for resolution.

According to the new edition of Article 176 of the Tax Code of the Russian Federation, the next day after the tax authority makes a decision on a tax refund, it draws up and sends an order for a tax refund to the territorial body of the Federal Treasury.

It also establishes the obligation of the tax authority to inform the taxpayer in writing about the decision made:

• about compensation (in whole or in part);
• on the offset (refund) of the tax amount subject to reimbursement;
• about refusal of compensation -

within five days from the date of adoption of the relevant decision.

The norm of Article 176 of the Tax Code of the Russian Federation in the new edition, like its previous edition, obliges the tax authority only to report the decision made. But since the form and content of such a message are not defined by the Code, local tax authorities have different attitudes towards the fulfillment of this obligation. In a number of cases, taxpayers are notified that a corresponding decision has been made on such and such a date. In other cases, a copy of the decision is sent. But there are often cases of failure by the tax authority to fulfill the above obligation, and then taxpayers learn about the decision made by the tax authority when conducting reconciliations in court hearings during the consideration of tax disputes.

Apparently, in order to eliminate this violation of taxpayers’ rights, the legislator, in the new wording of Article 176 of the Tax Code of the Russian Federation (clause 9), established a rule according to which a written message about the decision made must be transferred to the head of the organization, an individual entrepreneur, and their representatives (whose powers must be executed in accordance with the requirements of Articles 26 and 29 of the Tax Code of the Russian Federation) in person against receipt or in another way confirming the fact and date of its receipt.

The new tax refund procedure outlined above applies to cases where the tax authority did not identify, during a desk audit, violations by the taxpayer of the legislation on taxes and fees.

If violations are detected, the tax authority draws up a tax audit report in accordance with Article 100 of the Tax Code of the Russian Federation. This act, along with other audit materials, as well as the taxpayer’s objections, is considered by the head of the tax authority and a decision must be made on it in accordance with Article 101 of the Tax Code of the Russian Federation. Simultaneously with the decision to hold the taxpayer accountable or to refuse to hold the taxpayer accountable, paragraph 3 of Article 176 of the Tax Code of the Russian Federation provides for the issuance by the tax authority of a decision to reimburse (in whole or in part) the amount of tax declared for reimbursement, or a decision to refuse to reimburse the amount of tax declared for reimbursement.

Obviously, tax refunds in such a situation are more complex and time-consuming.

From Article 176 of the Tax Code of the Russian Federation in the new edition, the rule that raised difficult questions was excluded, contained in paragraph five of clause 4, according to which, if the tax authority does not make a decision to refuse a tax refund within the established period and (or) the tax authority is not presented to the taxpayer reasoned conclusion, the tax authority is obliged to make a decision on compensation for the amount for which a refusal decision has not been made, and notify the taxpayer of the decision within ten days.

One of the main questions was how formally should this rule be applied?

Does the court have the right to oblige the inspectorate to make a decision on tax reimbursement through a refund or offset without checking the primary documents, or should the court give the tax authority an additional period to check them?

Does the inspection have the right, after a court has made a decision imposing on it the obligation to reimburse the taxpayer a specific amount of tax (regardless of the method of reimbursement), to check documents or is it obliged to make a decision on reimbursement without checking them?

Should the court request the documents listed in Article 165 of the Tax Code of the Russian Federation, as well as those provided for in Articles 171 and 172 of the Tax Code of the Russian Federation, confirming the taxpayer’s right to a tax refund? Does the court need to evaluate such documents, including if the taxpayer himself attached them to the application to the court?

If we literally interpret the rule in paragraph five of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, then it does not follow from it that the court or tax authority is obliged to examine documents confirming the taxpayer’s right to reimbursement of the amount specified in the declaration.

This rule represents the negative consequences of failure to fulfill the duties assigned to the state-authorized body - the tax inspectorate - to make a decision within the established (and considerable!) time frame, draw up and send a reasoned conclusion to the taxpayer on its basis.

The Constitutional Court of the Russian Federation, in Ruling No. 456-O dated December 21, 2004, also clarified that the norm in paragraph five of clause 4 of Article 176 of the Tax Code of the Russian Federation “does not provide for the possibility of tax authorities making a decision to refuse reimbursement of value added tax after the expiration of the deadlines established by the Code.”

The Resolution of the Supreme Arbitration Court of the Russian Federation dated February 13, 2007 N 12943/06 draws the attention of the courts to the unlawful disregard by the tax authority of the violation of the three-month period established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation and the issuance of a decision to refuse tax reimbursement outside its borders after the taxpayer applies to court demanding to oblige the inspectorate to reimburse the tax. Unfortunately, from the contents of the Resolution it is not clear the position of the Supreme Arbitration Court of the Russian Federation regarding the presence or absence of the court’s obligation to examine the documents submitted to the court by the taxpayer, since the case was sent for a new trial to the court of first instance, and was not resolved by the Supreme Arbitration Court of the Russian Federation on the merits on the basis of the now cancelled, but in 2005 (when the tax authority missed the deadline) rule.

At the same time, in Resolution No. 13661/06 of 06.03.2007, the Supreme Arbitration Court of the Russian Federation confirmed the legality of the decision of the appellate instance, which, recognizing the actions of the inspectorate in refusing to return the amount of tax deductions as unlawful, referred to the norm of paragraph five of paragraph 4 of Article 176 of the Tax Code of the Russian Federation. The appellate court did not agree with the conclusion of the first instance court that the tax inspectorate, if the three-month deadline is missed, cannot make a decision on tax refund without analyzing the primary documents, as well as documents confirming the taxpayer’s right to tax deductions.

From the materials of this case, it followed that on April 20, 2005, the organization sent to the tax office a value added tax declaration at a tax rate of 0 percent for the first quarter of 2005 by registered mail with a list of attachments. In the application dated 06/09/2005, the taxpayer requested a refund of the tax by way of a refund to his bank account. After the organization applied on July 15, 2005 with a request to report on the results of consideration of the application, the inspectorate, in a letter dated June 22, 2005, notified of the refusal to return the amount claimed for reimbursement, justifying this decision by the fact that the taxpayer’s declaration for the first quarter of 2005 was not considered, since presented in an inappropriate (previously approved) form.

The taxpayer appealed the actions of the inspectorate, which resulted in the refusal to return the amount of tax due for reimbursement, and asked the court to oblige the inspectorate to return the disputed amount to the bank account.

The court of first instance confirmed that the inspectorate had no legal grounds for not accepting the organization’s declaration with documents for consideration; nevertheless, it rejected the taxpayer’s demands. The court referred to the fact that without analyzing primary documents, as well as documents confirming the right to a tax deduction, the tax inspectorate does not have the right to make a decision on tax reimbursement from the budget. The cassation court agreed with the court of first instance, additionally pointing out that the taxpayer is not deprived of the opportunity to re-submit documents to the inspectorate in the manner and within the time limits established by tax legislation.

The Supreme Arbitration Court overturned the decision of the court of first instance and the Resolution of the cassation instance and upheld the Resolution of the appellate court to satisfy the taxpayer's claims.

At the same time, the Supreme Arbitration Court of the Russian Federation proceeded from the following. Since the courts of three instances confirmed that the tax authority in the case under consideration had no legal grounds not to accept the taxpayer’s declaration with the documents attached to it, “the court of first instance should have obliged the inspectorate to consider the submitted documents in the manner established by Article 88 of the Code and make a decision based on the results their consideration, thereby obliging the inspectorate to eliminate the violation it committed.” The Supreme Arbitration Court of the Russian Federation recognized that the courts of the first and cassation instances violated the provisions of part four of Article 200 of the Arbitration Procedural Code of the Russian Federation on the right of the taxpayer to present, and the duties of the courts to examine, documents that are the basis for obtaining a tax deduction, regardless of whether these documents were requested and examined by the tax authorities authority when deciding on the provision of a tax deduction. The courts wrongfully did not take into account the refusal of the tax authority, at the request of the court, to examine and evaluate the documents submitted by the taxpayer to the court, which the inspectorate justified by the fact that the Tax Code of the Russian Federation does not provide for a desk audit during court proceedings. In addition, the Supreme Arbitration Court considered it unlawful for the courts of first and cassation instances to not apply the interrelated provisions of Article 88, paragraphs 1 and 2 of Article 171, paragraph 2 of Article 172 and Article 176 of the Tax Code of the Russian Federation, from the content of which it follows that “the tax authority does not have the right to refuse the taxpayer tax deduction if the corresponding check was not carried out by him.”

The new edition of Article 176 of the Tax Code of the Russian Federation, as well as the previous edition of its paragraph 4, does not indicate the size of the refinancing rate of the Central Bank of the Russian Federation (clause 10). Apparently, disputes will again arise in the courts over the amount of interest to be paid.

In the second paragraph of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, a norm appeared that was not previously in Article 176 of the Tax Code of the Russian Federation. According to this norm, the interest rate is taken equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the reimbursement period was violated.

This rule is not new for participants in tax legal relations, since a similar rule was provided for in Articles 78 and 79 of the Tax Code of the Russian Federation, in force since 1999.

A fundamentally new duty of the tax authority is established in paragraph 11 of Article 176 of the Tax Code of the Russian Federation.

According to this paragraph, if interest is not paid to the taxpayer in full, the tax authority makes a decision to return the remaining amount of interest, calculated based on the date of actual return to the taxpayer of the amount of tax to be reimbursed, within three days from the date of receipt of the notification from the territorial body of the federal treasury about date of return and the amount of money returned to the taxpayer.

An order for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, must be sent by the tax authority the next day after the adoption of this decision to the territorial body of the federal treasury.

Despite the fact that the new version of Article 176 of the Tax Code of the Russian Federation, as before, does not define the procedure for paying interest, the provisions of paragraph 11, which establishes the procedure for “additional payment of interest,” can provide answers to some of the questions that arise in judicial practice.

Firstly, the accrual and payment of interest is made by decision of the tax authority.

Secondly, based on this decision, the tax authority sends an order to the relevant authority to pay interest.

Thirdly, the order to pay interest must be sent the next day after the decision is made.

At the same time, the answer to the question about the date until which interest is calculated still has not been legally established. Clause 11 of Article 176 of the Tax Code of the Russian Federation indicates the payment of interest calculated based on the date of actual return to the taxpayer of the amount of tax to be reimbursed.

This issue was the subject of litigation in the Federal Arbitration Court of the North-Western District in case No. A56-11690/2005 (Resolution dated 08/29/2005). The Federal Arbitration Court of the North-Western District recognized that Article 176 of the Tax Code of the Russian Federation does not determine until what point interest should be accrued. However, paragraph 4 of Article 79 of the Tax Code of the Russian Federation states that interest on the amount of excessively collected tax is accrued from the day following the day of collection until the day of the actual refund. Since Article 79 of the Tax Code of the Russian Federation regulates legal relations similar to legal relations regulated by Article 176 of the Tax Code of the Russian Federation, the cassation court considered it possible to apply an analogy of the law and indicated in the Resolution that interest accrued on the amount of value added tax subject to refund to the taxpayer is accrued on the day of the actual refund tax In addition, the FAS NWO referred to a similar position in relation to Articles 78 and 79 of the Tax Code of the Russian Federation, set out in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5. The Resolution dated February 28, 2001 No. 5 does not directly address the issue of calculating interest, but in It specifies the criterion for determining the moment of fulfillment of the obligation to return the corresponding amounts to the taxpayer by transferring them by bank transfer to the recipient's account: when determining this moment, one should be guided by the general rule, according to which the taxpayer is recognized as having fulfilled his obligation from the moment the corresponding amount is received by the bank indicated by the recipient of the funds. Therefore, the court recognized that a tax refund in accordance with Articles 78, 79, 176 of the Tax Code of the Russian Federation can be considered made at the moment when the funds are actually transferred to the taxpayer’s account. Therefore, violation of the tax refund deadline, in connection with which interest is subject to accrual, ends at the time of the actual transfer of funds to the taxpayer’s account.

The Supreme Arbitration Court of the Russian Federation, in Resolution No. 7528/05 of November 29, 2005, determined the end date of the tax refund delay period differently. The court indicated that the period of delay lasts until the day preceding the date of the actual transfer by the Treasury of the relevant amounts to the taxpayer. The legal basis for this conclusion is not provided in the Resolution. The resolution concerns the interpretation of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, as amended, in force until 01/01/2007. Judicial practice will show whether this conclusion of the Supreme Arbitration Court of the Russian Federation will be applied when interpreting the corresponding norm of the new edition of Article 176 of the Tax Code of the Russian Federation.

Calculation of tax refund deadlines

By submitting an application to the tax authority for the refund of the refundable amount of value added tax to the current account, each taxpayer expects to receive the amount specified in the application as soon as possible.

How to determine the maximum period after which the tax amount should be credited to the taxpayer’s current account?

When returning tax under a domestic market declaration, funds were to be credited to the taxpayer’s account no later than the last day of the aggregate of the following periods: three months (calculated from the first day of the month following the period for which the declaration was submitted) plus two weeks (if the application was not submitted later than two weeks before the expiration of the three-month period, whether or not to add these two weeks depends on the position taken on this issue) plus eight days (the period for the treasury to receive the decision of the tax authority) plus two weeks (the period for the treasury authorities to transfer the corresponding amounts to the account taxpayer).

When returning tax on a return at a tax rate of 0 percent:

• if the application for a tax refund is submitted within the three-month period provided for in paragraph two of paragraph 4 of Article 176 of the Tax Code of the Russian Federation - three months (counted from the date of submission of the declaration) plus eight days plus two weeks;
• If an application for a tax refund is submitted after the expiration of a three-month period, the period of delay begins on the next day after the expiration of the refund period provided for in paragraph 3 of Article 176 of the Tax Code of the Russian Federation (two weeks plus eight days plus two weeks), calculated from the moment the application is submitted (Resolution of the Supreme Arbitration Court Russian Federation dated November 29, 2005 N 7528/05).

After January 1, 2007, Article 176 of the Tax Code of the Russian Federation established a single maximum tax refund period.

The new edition of Article 176 of the Tax Code of the Russian Federation provides for the following types of deadlines:

• three months of conducting a desk audit, calculated from the date the taxpayer submits a tax return and documents that, in accordance with the Code, must be attached to the tax return;
• seven days is the period for the tax authority to make a decision on the reimbursement of the corresponding amounts, if no violations of the legislation on taxes and fees have been identified, as well as the decision on the refund adopted simultaneously;
• the next day after the decision on the refund is made - the deadline for the tax authority to send to the treasury an order for the refund of the tax amount issued on the basis of such a decision;
• five days is the period for transferring the tax amount by the Treasury to the taxpayer’s bank account. Please note that these five days are calculated from the day the Treasury receives the tax authority’s order. At the same time, the deadline for its delivery (as was the case in the previous version of Article 176 of the Tax Code of the Russian Federation for the decision) has not been established.

When adding up the above deadlines for the tax authority to make a decision, send an order to the treasury authority and transfer the amount of tax to the taxpayer's account by the treasury authority, a discrepancy arises between the result obtained and the maximum period established in paragraph 10 of Article 176 of the Tax Code of the Russian Federation.

According to this paragraph, the tax amount must be returned within 11 days after the completion of the desk audit, which resulted in a decision on refund (full or partial), and from the 12th day the tax refund deadline is considered violated.

This discrepancy may lead to disputes and the need for judicial resolution.

/"Arbitration Disputes", 2008, N 1/

Calculation of the tax refund period when submitting updated returns

Article 81 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) provides for the filing by taxpayers of updated declarations, which amend a previously filed tax return upon discovery of the fact of non-reflection or incomplete reflection of information, as well as errors made, both leading and not leading to an understatement of the amount tax

If the taxpayer is subject to a refund of one amount according to the initially submitted value added tax return, and another amount according to the updated one, is the tax refund procedure established by Article 176 of the Tax Code of the Russian Federation subject to re-applying?

How do the originally filed and amended declarations compare? Is it possible to recognize an updated declaration as a new independent declaration for the previous tax period, canceling a previously sent declaration, or only amending the originally submitted declaration?

The provisions of Article 176 of the Tax Code of the Russian Federation in the current version provide for the mandatory conduct of a desk audit of the validity of the amount of tax claimed for reimbursement in accordance with Article 88 of the Tax Code of the Russian Federation.

Does this mean that in all cases of filing an updated declaration, the three-month period for its verification will be recalculated from the moment such a declaration is received by the tax authority?

In the judicial practice of applying the previous version of Article 176 of the Tax Code of the Russian Federation, the answer to this question depended on whether the amount of tax deductions changed when taxpayers filed updated returns at a tax rate of 0 percent.

If the amount of tax deductions, that is, the amount of tax indicated for reimbursement, did not change, the courts found no grounds for extending the set of deadlines for tax refunds (Resolution of the Federal Arbitration Court of the North-Western District dated January 23, 2007 N A56-34919/2005, Federal Arbitration Court of the West -Siberian District dated 09/06/2006 N F04-5383/2006(25723-A27-42)).

When the amount of tax claimed for reimbursement in the amended declaration changed, the courts recognized the right of the tax authority to check this declaration again in the manner established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation (Resolution of the Federal Arbitration Court of the North-Western District of June 20, 2006 N A56-40107/04 ).

Another question arises when filing an amended declaration.

Is it possible to re-submit an application for a refund of a different, adjusted amount of tax? Does the solution to this issue depend on the amount of tax claimed for reimbursement: is it less or more than that indicated in the originally submitted declaration?

The relevance of a uniform solution to this issue when applying the relevant provisions of Article 176 of the Tax Code of the Russian Federation in the new edition will remain in the event that filing an application for a tax refund is recognized as a necessary condition for the reimbursement of value added tax through a refund.

Consequences of failure to comply with tax refund deadlines

As already indicated, Article 176 of the Tax Code of the Russian Federation, both in the old and new editions, establishes two methods of tax reimbursement - credit and refund. The same article defines the deadlines for offset and return.

However, payment of interest to the taxpayer is provided only in case of violation of the deadlines for returning the amount of value added tax to be reimbursed. Failure to timely carry out an offset by the tax authority does not entail the accrual of interest provided for in Article 176 of the Tax Code of the Russian Federation.

This conclusion was reached by the Supreme Arbitration Court of the Russian Federation in Resolution No. 5351/04 dated October 5, 2004. The subject of the dispute in this case was two demands: recognition as illegal of the inaction of the tax authority, expressed in the failure to offset the refundable amount of value added tax, and imposition on the tax authority of the obligation to accrue interest provided for in Article 176 of the Tax Code of the Russian Federation. The court of first instance, having satisfied the first requirement, rejected the second as unlawful and not based on the norms of Chapter 21 of the Tax Code of the Russian Federation. The court found that the taxpayer submitted declarations to the tax inspectorate in which more than 12 million rubles were claimed for reimbursement. The tax authority did not offset the tax amount subject to reimbursement within the period established by Article 176 of the Tax Code of the Russian Federation. Two years later, the taxpayer submitted a written application to the inspectorate to offset this amount against the payment of tax debt, and the tax authority executed it on the same day. Since no application was made for tax refund by way of refund, the court found no basis for charging interest.

The cassation instance overturned the court's decision on the second claim, concluding that there were grounds for paying the taxpayer the interest provided for in Article 176 of the Tax Code of the Russian Federation, since “interest on the amount of untimely refunded tax is subject to accrual regardless of the method of compensation (by offset or refund).”

The Supreme Arbitration Court of the Russian Federation did not agree with the cassation court and confirmed the legality of the decision of the first instance court. The Supreme Arbitration Court of the Russian Federation indicated that, in accordance with Article 176 of the Tax Code of the Russian Federation, interest on tax amounts subject to reimbursement is accrued only if the tax authority violates the tax refund deadlines in the presence of a written application from the taxpayer. Since the taxpayer did not apply to the tax office with a written application for a tax refund, interest is not subject to accrual. The conclusion of the cassation court on the accrual of interest for the inspection's violation of the deadlines for the offset of value added tax was recognized by the Supreme Arbitration Court of the Russian Federation as unlawful.

But in all cases, does the taxpayer not have the right to compensation for material losses caused by untimely reimbursement of value added tax by the tax authority, by receiving interest provided for in Article 176 of the Tax Code of the Russian Federation, if ultimately the tax is reimbursed by offset rather than refund?

Judicial practice gives a negative answer to this question.

In February 2007, the Presidium of the Supreme Arbitration Court of the Russian Federation considered two cases (Resolutions dated February 27, 2007 N 11484/06 and N 13584/06), decisions in which the taxpayer was paid interest for violating the tax refund deadline in situations where the tax amount was not credited to the taxpayer’s account, but was credited by the tax authority at his request towards the fulfillment of his obligation to pay taxes.

It is necessary to pay attention to a number of special circumstances in these cases.

When considering the application for review by way of supervision of the Resolution in case No. A56-1786/2005, the Supreme Arbitration Court of the Russian Federation found that on November 20, 2003, the organization filed a declaration at a tax rate of 0 percent for value added tax for October 2003, according to which she was subject to reimbursement from the budget of a certain amount of tax. Along with the declaration, the tax authority received an application for the refund of the amount of tax to be refunded to the taxpayer's bank account. Before the expiration of the three-month period for checking this declaration, on 02/09/2004, the organization filed an updated value added tax return for October 2003, in which the amount of tax deductions was increased. By decision of May 7, 2004, the tax authority refused to refund the tax. The taxpayer appealed this decision in the arbitration court. The arbitration court, by decision dated July 6, 2004, declared the tax authority’s decision invalid and ordered the inspectorate to make a decision on tax refunds and ensure its execution by sending it to the federal treasury authorities. The tax authority did not execute the court decision until December 1, 2004. For this reason and in connection with the emergence of an obligation to pay taxes, on December 1, 2004, the organization sent to the tax authority an application for offset of the amount to be reimbursed, which was executed by the inspectorate on December 3, 2004.

At the same time, the taxpayer rightly believed that a change in the method of execution of the court decision (due to its long-term non-execution by the tax authority), which confirmed his right specifically to return the amount of value added tax subject to reimbursement from the budget, and not offset, cannot prevent the accrual and payment him the interest provided for in paragraph twelve of paragraph 4 of Article 176 of the Tax Code of the Russian Federation, if there are grounds for receiving them. Therefore, he went to court with a demand to oblige the tax authority to accrue and ensure payment of interest established by paragraph 4 of Article 176 of the Tax Code of the Russian Federation, calculated from the moment the right to a refund arose, if the tax authority had initially made a legal decision, and until the date of filing the application for offset.

The Supreme Arbitration Court of the Russian Federation confirmed that the taxpayer in the above case has the right to receive interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. In Resolution No. 11484/06 dated 27.02.2007, the Court indicated that the legislation of the Russian Federation in the field of taxes and fees is aimed at establishing a balance of private and public interests in the field of taxation and links the payment of interest for late receipt of tax benefits with illegal delays on the part of tax authorities in payment deductions due. The interest provided for by the Tax Code is compensation for the taxpayer’s material and intangible losses from late receipt of tax benefits due to the untimely performance by the Federal Tax Service of the functions of refunding tax deductions. The refusal of the tax authorities to pay interest as compensation for late payments due violates the fair balance that must be maintained between the interests of individuals (taxpayers) and the interests of society.

In another case (Resolution dated February 27, 2007 N 13584/06), the Supreme Arbitration Court of the Russian Federation, confirming the taxpayer’s right to receive interest in similar circumstances, proceeded from the fact that the organization’s application to the tax authority with an application for tax offset (if there was a previously submitted together with the declaration of the application for its return) was a forced measure due to unlawful actions of the tax authority. The tax authority, despite the presence of all the grounds for refunding the tax through a refund, confirmed by a court decision, did not return the tax, including in pursuance of a court decision. By a decision made a year after the court hearing based on the results of an audit of another declaration, the tax authority assessed additional tax, the payment of which, at the request of the taxpayer (which was sent involuntarily, due to the need for a certificate of absence of arrears), included the amount to be reimbursed. But this decision of the inspectorate was also illegal; it was subsequently declared invalid by the court.

The Supreme Arbitration Court of the Russian Federation came to the conclusion that if there are other grounds for tax refund, one of the criteria is the will of the taxpayer. His subsequent application to change the tax refund method is valid for the future and does not apply to the previous period when the refund deadline was already violated. Within the meaning of Article 176 of the Tax Code of the Russian Federation, the mere fact of a delay in tax refund is the basis for the accrual of interest, regardless of whether the tax was returned in violation of the deadline or the obligation to return it was subsequently terminated.

Thus, from the above Resolutions we can conclude that if the tax authority fails to timely fulfill the obligation to return to the taxpayer the amount of tax to be reimbursed, if there are grounds for its return, the taxpayer has the right to receive the interest provided for in Article 176 of the Tax Code of the Russian Federation even in the case when Due to changed circumstances, in the presence of a previously submitted decision on a tax refund, he is forced to submit an application for offset.

In this case, interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation is subject to accrual for the period from the moment the right to a refund arises, if the tax authority had initially made a legal decision, and until the date of filing the application for offset. That is, only for the period during which the taxpayer was entitled to a tax refund.

After the Presidium of the Supreme Arbitration Court of the Russian Federation issued the above two Resolutions, some experts hastened to declare a change in the previously expressed position regarding the lack of legal grounds for calculating interest in the event of untimely offset by the tax authority under paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended in force until 01.01.2007 ). Whether this is really true is difficult to say. But it should be remembered that the norm of paragraph 10 of Article 176 of the Tax Code of the Russian Federation, in force since January 1, 2007, directly indicates the accrual of interest “if the deadline for returning the tax amount is violated.”

Grounds for refusal by tax authorities to pay interest

In the practice of the Federal Arbitration Court of the Northwestern District, it is difficult to recall a case when the tax authority recognized the taxpayer’s demands for the accrual and payment of interest provided for in Article 176 of the Tax Code of the Russian Federation. And this despite the fact that the tax authorities are authorized by the state to ensure compliance with the legislation on taxes and fees by all its participants, which include the tax authorities themselves.

The denial of the obligation to accrue and ensure payment of interest is justified by the following circumstances:

1. The tax authority promptly, within the three-month period established by Article 176 of the Tax Code of the Russian Federation, made a decision to refuse reimbursement of value added tax.

Referring to the timely adoption of a decision to refuse tax refund through a refund, the tax authorities ignore the fact that the taxpayer asks to pay interest, as a rule, after the court has declared the inspector’s decision to refuse a tax refund invalid.

In one of the first decisions related to the formation of judicial practice of calculating interest under Article 176 of the Tax Code of the Russian Federation, the Federal Arbitration Court of the North-Western District, rejecting this argument of the inspectorate, indicated the following.

If the deadlines established in paragraph 4 of Article 176 of the Tax Code of the Russian Federation are violated, interest is accrued on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation. Moreover, from this norm it follows that the accrual of these interests does not depend on the reasons for violating the established deadlines for tax refunds. The specified interest is compensation for the taxpayer's losses for untimely return from the budget of funds due to him. The court's recognition as invalid of the tax inspectorate's decision to refuse (in whole or in part) to reimburse the taxpayer for the tax from the budget and the imposition on the tax authority of the obligation to reimburse the tax by refunding it from the budget indicates the failure of the tax authority to fulfill the obligation to make a legal and justified decision within the prescribed period. A systematic interpretation of the norms of the Tax Code of the Russian Federation, including the provisions of subparagraph 1 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation on the unconditional obligation of tax authorities to comply with the legislation on taxes and fees, allows us to conclude that paragraph 4 of Article 176 of the Tax Code of the Russian Federation deals only with legal and justified decision of the tax authority. If the decision made by the tax inspectorate is recognized by the court as invalid and the inspection is entrusted with the obligation to return the tax from the budget, this means that the tax authority did not within the prescribed period make the decision provided for in paragraph 4 of Article 176 of the Tax Code of the Russian Federation - a decision to return the amount of tax from the budget (Resolution dated 03/18/2002 N A52/3287/01/2).

The Supreme Arbitration Court of the Russian Federation, in Resolution No. 14471/05 dated April 19, 2006, confirmed the right of taxpayers to appeal to an arbitration court with a claim for payment of interest, regardless of whether the tax authority’s decision to refuse tax reimbursement through a refund is challenged or not.

In the case considered by the Supreme Arbitration Court, the organization appealed to the court with demands to declare illegal the inaction of the tax inspectorate, which was expressed in the failure to reimburse the value added tax on the declaration at a rate of 0 percent, that is, in the failure to make a decision on the reimbursement (refund) of the tax and the failure to send it to the federal body. Treasury, as well as the obligation of the inspectorate to reimburse the tax through a refund from the federal budget and pay interest for violating the tax refund deadline. The court of first instance satisfied the organization's demands. The cassation instance changed the court's decision, rejecting the applicant's demands to declare the inaction of the tax authority illegal and to pay interest under paragraph 4 of Article 176 of the Tax Code of the Russian Federation. The decision adopted by the cassation court is justified by the fact that there is no fact of inaction of the tax authority, since it made a decision to refuse tax refund within a three-month period. This decision of the inspectorate was not challenged by the taxpayer, therefore, interest should not be accrued on the amount to be reimbursed.

The conclusion of the cassation court of the Supreme Arbitration Court of the Russian Federation was found erroneous.

The Supreme Arbitration Court of the Russian Federation indicated that, within the meaning of the provisions of paragraph twelve of clause 4 of Article 176 of the Tax Code of the Russian Federation, the basis for calculating interest on the amount to be returned is a violation of the deadline for its return. The accrual of interest in this case does not depend on the fulfillment by the tax authority of the obligation to make an appropriate decision (on the refund of tax amounts or on the refusal to refund). If the court confirms that the taxpayer has the right to a refund of value added tax, the fact that there is no challenge to the said decision of the tax authority is not a basis for refusing to satisfy the taxpayer’s claim to collect interest on the amount to be refunded.

1. The Tax Code does not define the procedure for paying interest. There are no provisions in the Code that impose an obligation on the tax authority to pay interest.

This argument, in terms of the prevalence of its application by tax authorities, occupies, perhaps, second place.

The courts reject it, citing the fact that the absence in Article 176 of the Tax Code of the Russian Federation of the procedure for calculating interest for violation of the deadlines for reimbursement of value added tax through a refund cannot deprive the taxpayer of the right to receive it. In addition, within the meaning of the provisions of Article 176 of the Tax Code of the Russian Federation, interest for untimely returned tax is paid in the same manner as those subject to reimbursement by returning the amount of value added tax. The tax authority is obliged to make a decision (conclusion) on the payment of interest and send it to the federal treasury authorities for execution by paying the amounts due to the taxpayer from budget funds. The courts also draw the attention of tax authorities to a document that is binding on them - the procedure for paying interest for late tax refunds, provided for in Article 176 of the Tax Code of the Russian Federation. This procedure was established by the joint Order of the Ministry of the Russian Federation for Taxes and Duties and the Ministry of Finance of the Russian Federation dated September 12, 2001 N BG-3-10/345; 74n “On the procedure for accounting for interest accrued for late return of an overpaid (collected) amount of tax (fee), as well as interest accrued for untimely reimbursement of value added tax amounts” (Resolution of the Federal Arbitration Court of the North-Western District dated 02/19/2007 N A52-2993/2006/2).

The original argument was put forward by the tax authority in a cassation appeal against judicial acts in case No. A56-32236/2006, filed with the Federal Arbitration Court of the North-Western District. The tax authority referred to “its lack of obligation to pay interest, since it acts in relations with the taxpayer not as a legal entity against which another legal entity makes property claims, but as a public regulatory body that does not have its own funds” (Resolution of the Federal Arbitration Court Court of the Northwestern District dated February 12, 2007).

Unfortunately, tax authorities often ignore the fact that when confirming the taxpayer’s right to receive interest provided for in Article 176 of the Tax Code of the Russian Federation, the court makes a decision not to collect the corresponding amount of interest from the tax authority, but imposes the obligation to accrue interest provided for in Article 176 of the Tax Code of the Russian Federation and provide their payment from the budget or accrue interest and send a conclusion on their payment to the territorial body of the federal treasury.

1. The taxpayer did not apply to the tax authority for payment of interest.

Neither the old nor the new editions of Article 176 of the Tax Code of the Russian Federation provide for the taxpayer to send an application for the payment of interest if the deadline for returning the amount to be reimbursed is violated. Therefore, the courts reject as not based on the norms of the Tax Code of the Russian Federation the argument of the tax authorities, put forward to justify inaction, about the absence of a taxpayer’s application for the payment of interest when considering cases of appealing the inaction of the tax authority, expressed in the non-calculation of interest and the failure to indicate their amount in the conclusion sent to the treasury for payment of untimely refunded value added tax.

1. The taxpayer does not have the right to claim payment of interest, since he changed the methods of compensation: first he asked for an offset, then he applied for a refund, and vice versa.

The position of the Supreme Arbitration Court of the Russian Federation on this issue is set out on pp. 87 - 89.

1. The taxpayer incorrectly determined the start date and end date of interest payments.

From what moment are the interests provided for in Article 176 of the Tax Code of the Russian Federation accrued?

If the taxpayer has submitted, along with the declaration, an application for tax reimbursement by way of a refund, and the tax inspectorate unlawfully refused to reimburse the tax (which is confirmed by a court decision, by which the inspectorate’s decision to refuse a tax refund was declared invalid), then interest is subject to accrual from the day on which the tax period expired. together the terms established by Article 176 of the Tax Code of the Russian Federation.

This conclusion of the courts is justified by the fact that the tax authority did not make a decision within the prescribed period, which should be made if the inspection complies with the norms of the Tax Code of the Russian Federation.

That is, the accrual of interest in the case under consideration depends on the legality of the decision made by the inspectorate, which imposes on the courts the obligation to very carefully assess the legality of the tax authority’s decision to refuse a refund of value added tax, because the court’s decision affects whether the taxpayer receives interest and its period accruals.

Judicial practice knows different cases of appealing decisions of tax authorities to refuse a tax refund:

1. the decision to refuse a tax refund was made in the presence of documents confirming the right to deductions, which the tax authority unlawfully recognized as insufficient and (or) improperly executed;
2. the decision to refuse a tax refund was made due to the taxpayer’s failure to submit, along with the declaration, documents confirming the right to tax deductions, and the tax authority did not request them;
3. the decision to refuse a tax refund was made due to the failure to receive documents from the taxpayer confirming the right to tax deductions, when the request for their direction was not received by the taxpayer (see, for example, Resolution of the Supreme Arbitration Court of the Russian Federation of February 18, 2006 N 1744/06 - the taxpayer received a request by fax the next day after the inspection made a decision to refuse a tax refund; Resolution of the Supreme Arbitration Court of the Russian Federation dated February 13, 2007 N 14137/06 - the tax inspectorate indicated in the request not the month for which it needed documents, the taxpayer fulfilled it, but another requirement. was not sent to him);
4. the decision to refuse a tax refund was made due to the failure to receive documents from the taxpayer confirming the right to tax deductions, when the request for their submission was received by the taxpayer, but not fulfilled (this option does not apply to cases where the taxpayer refuses to submit documents to the tax authority, citing their his absence, for example, due to loss - Resolution of the Supreme Arbitration Court of the Russian Federation of January 30, 2006 N 10963/06).

It is obvious that in the situations listed in paragraphs 1, 2, 3, the courts have every reason to invalidate the inspection decision, since such a decision is illegal at the time of its making. Accordingly, the taxpayer can claim to receive interest calculated in such a way as if no decision had been made by the tax authority.

But how lawful is it to invalidate the inspector’s decision to refuse a refund of value added tax in cases where the taxpayer submitted to the tax authority improperly executed documents confirming the right to tax deductions, and the tax authority did not have legal grounds to confirm the right to tax deductions, and Did the taxpayer send correctly completed documents to the court?

The Supreme Arbitration Court of the Russian Federation has repeatedly drawn the attention of the courts to the need to verify the legality of the inspection decision on the date of its issuance (Resolutions dated May 16, 2006 N 14874/05, dated April 18, 2006 N 16470/05; dated September 21, 2005 N 4152/05; dated 06.07 .2004 N 1200/04).

Thus, in Resolution No. 4152/05 of the Supreme Arbitration Court of the Russian Federation dated September 21, 2004, it is stated that if the taxpayer made a request to recognize the decision of the tax inspectorate as invalid, then the assessment of the legality of this decision should be carried out by the court based on those documents required to be submitted by force of law, which at the time its findings were submitted to the tax office in order to confirm the right to a 0 percent tax rate and tax deductions on export transactions. In particular, invoices attached by the taxpayer to the response to the application for review of judicial acts by way of supervision, sent to the Supreme Arbitration Court of the Russian Federation, cannot indicate the illegality of the decision of the tax inspectorate.

And according to the Resolution of the Supreme Arbitration Court of the Russian Federation dated April 18, 2006 N 16470/05, the submission of a complete package of documents, defined by Article 165 of the Tax Code of the Russian Federation, to confirm the right to apply a tax rate of 0 percent directly to the court is not a reason for the court to make a decision to declare the inspectorate’s refusal of compensation illegal tax, since the verification of the legality of the decision on the taxpayer’s right to apply a tax rate of 0 percent is carried out taking into account only those documents that it had.

Despite the fact that the examples given concern documents confirming the taxpayer’s right to apply a tax rate of 0 percent, can it be argued that the court’s conclusion about the need to assess the legality of the inspectorate’s decision to refuse a refund of value added tax at the time of its issuance applies to only one component - documents listed in Article 165 of the Tax Code of the Russian Federation?

Resolutions of the Supreme Arbitration Court of the Russian Federation dated May 16, 2006 N 14874/05 and N 14873/05 contain a negative answer to this question. When considering cases on the taxpayer's application to invalidate the tax inspectorate's decision to refuse a tax refund and the inspection's obligation to reimburse the amount of tax indicated in the declaration, the following was established. The taxpayer, at the request of the inspectorate, did not provide documents confirming the acquisition and posting of inventory items, as well as their payment, including the amount of value added tax claimed for reimbursement under the declaration at a tax rate of 0 percent. The taxpayer believed that he was not obligated to submit these documents during a desk audit, since the tax authority did not identify errors or contradictions in the submitted declaration, and the primary documents required by the inspectorate could only be the subject of an on-site audit, not a desk audit. The taxpayer brought the documents requested by the tax authority to the court. The courts satisfied the applicant's demands, but the Supreme Arbitration Court of the Russian Federation overturned the decisions taken in the case. The Supreme Arbitration Court did not agree with the taxpayer’s lack of obligation, when conducting a desk audit, to present the primary documents requested by the tax authority confirming the right to tax deductions. With regard to the documents presented by the applicant, it is stated that “the documents submitted by the company to the court cannot indicate the illegality of the inspectorate’s decision.”

The said Resolutions also explain to the taxpayer that refusal to reimburse amounts of value added tax at a tax rate of 0 percent in a specified tax period does not deprive him of the right to re-submit the appropriate documents to the inspectorate in a different tax period within the period established by law.

It seems that a similar approach should be taken when the taxpayer submits to the tax authority improperly executed documents confirming the right to a tax refund (tax deductions).

Rejection by the courts of the taxpayer's demands to invalidate the inspectorate's decision to refuse a tax refund on the grounds of its legality on the date of issue will actually prevent the unjustified payment from the budget of interest provided for in Article 176 of the Tax Code of the Russian Federation.

But this applies only to cases where the tax authority has fully complied with the rules for conducting a desk audit and making a decision to refuse a tax refund, namely: the taxpayer is informed about questions that have arisen regarding the correct calculation and payment of tax, about errors discovered when filling out documents, additional information, explanations and documents confirming the correctness of calculation and timely payment of taxes were requested, and the taxpayer provided explanations, made corrections to the documents drawn up with errors and, together with additional documents, submitted them to the inspectorate, when the taxpayer was notified in advance of the date and place of consideration of the materials by the desk tax office inspection by the head of the tax authority.

Moreover, the taxpayer’s right to a tax refund will not remain unprotected, since the taxpayer has the right, in accordance with Article 81 of the Tax Code of the Russian Federation, to submit to the tax authority an updated value added tax return for the same tax period for the amount of tax deductions for which compensation was previously denied to him due to lack of proof of the right to receive it. If necessary, the updated declaration must be accompanied by an application for the return of the refundable tax to the current account.

The taxpayer can also apply to the court with a claim for reimbursement from the budget by offsetting or returning the corresponding amount of value added tax, regardless of the tax authority’s earlier decision to refuse a tax refund. This right of the taxpayer was confirmed by the Supreme Arbitration Court of the Russian Federation in Resolution No. 12943/06 dated February 13, 2007. The Supreme Arbitration Court of the Russian Federation recognized the position of the courts on the impossibility of satisfying the taxpayer’s demands for the obligation to reimburse him for the amount of value added tax, if the applicant did not challenge the decision to refuse to reimburse the corresponding amount of tax, as not based on the norms of the law.

In this case, the taxpayer, in accordance with the rules of parts three and four of Article 65, part one of Article 66, subparagraph 5 of part two and part three of Article 125 of the Arbitration Procedural Code of the Russian Federation must submit to the court documents confirming the right to reimbursement of value added tax, as well as send copies of these documents to the tax authority as a person participating in the case as a defendant.

The stated approach to solving the problem of assessing the legality of a tax authority’s decision is also consistent with the position of the Constitutional Court of the Russian Federation, reflected in Determination No. 267-O dated July 12, 2006. The Constitutional Court indicated that the powers of the tax authority provided for in Articles 88 and 101 of the Tax Code of the Russian Federation are of a public law nature, which does not allow the tax authority to arbitrarily waive the need to request additional information, explanations and documents confirming the correctness of calculation and timely payment of taxes. When carrying out the function assigned to it to identify tax offenses, the tax authority, in all cases of doubt about the correctness of payment of taxes, is obliged to use the authority granted to it to request the necessary information from the taxpayer. Accordingly, the taxpayer has the right to assume that if the tax authority does not contact him for explanations or documents confirming the declared taxes, then the tax authority has no doubts about the correctness of the payment of taxes. Otherwise it would mean a violation of the principle of legal certainty and would lead to the arbitrariness of the tax authorities.

According to part four of Article 200 of the Arbitration Procedural Code of the Russian Federation, the arbitration court, when considering in court cases challenging non-normative legal acts, decisions and actions (inactions) of tax authorities, their officials, verifies the contested act or its individual provisions, contested decisions and actions ( inaction) and establishes their compliance with the law or other normative legal act, establishes the authority of the body or person who adopted the contested act, decision or performed the contested actions (inaction), and also establishes whether the contested act, decision and actions (inaction) violate the rights and legitimate interests of the applicant in the field of business and other economic activities.

Based on the above norm, the Constitutional Court believes that checking for compliance with the law or other regulatory legal act of a tax authority’s decision, adopted based on the results of a desk tax audit, in terms of its validity, consists of the court’s obligation to check the compliance of the tax authority’s conclusions not only with the materials used by the tax authority available at the time of the inspection. Judicial protection of the rights and legitimate interests of taxpayers cannot be ensured if the courts, when deciding on the legality of refusing to provide the declared tax deductions, proceed from the mere lack of documents from the tax authority confirming the correctness of their application. Therefore, the taxpayer has the right to present, and arbitration courts are obliged to investigate, establish, evaluate all documents that are important for the correct resolution of the case, confirming factual circumstances, which, in accordance with tax legislation, must be taken into account when deciding on the possibility of providing tax deductions, regardless of whether these documents were requested and examined by the tax authority when deciding on the provision of a tax deduction.

Taking into account the above, it appears that if the tax authority decides to refuse a taxpayer a refund of value added tax due to the fact that at the time the decision is made, the taxpayer does not have documents (duly executed documents) giving the right to deductions for a declaration for a specific tax period, despite provided the taxpayer with the opportunity to submit (correct) them, the taxpayer has no legal grounds to appeal such a decision, and the court has no grounds to declare it invalid.

It would be more correct to send an updated return to the tax authority for the same tax period.

Otherwise, in case of illegal inaction of the taxpayer and a lawful decision of the tax authority on the date of its adoption, the taxpayer will subsequently receive the right to pay the interest provided for in Article 176 of the Tax Code of the Russian Federation.

We must not forget about the right of the taxpayer to go to court with a demand for reimbursement of the corresponding amount of value added tax from the budget by returning it to the current account without appealing the decision of the tax authority.

In this case, the taxpayer’s right to payment of interest if the tax authority fails to comply with the court decision within the established time frame will arise from the moment it enters into legal force (Resolution of the Supreme Arbitration Court of the Russian Federation dated 06.06.2006 N 1363/06).

If, in the situation described above, the taxpayer applies to the court with a statement containing two demands - to invalidate the inspectorate’s decision to refuse to reimburse the tax from the budget by way of a refund and to oblige the inspectorate to reimburse the tax by returning it to the current account, the court, having refused to satisfy the first requirement, may, upon presentation by the taxpayer of documents confirming the right to tax deductions, satisfy the second.

A similar approach is contained in the Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05/08/2007 N 16367/06, dated 02/13/2007 N 12943/06, dated 12/05/2006 N 8689/06.

The proposed solution to the problem under study will ensure a balance of public and private interests, which is constantly drawn to the attention of the courts in decisions of the highest judicial bodies of the Russian Federation.

The issue of invalidating the inspector's decision to refuse a refund of value added tax in the situation set out in paragraph 4, when the tax authority decides to refuse a tax refund due to the failure to receive documents from the taxpayer confirming the right to tax deductions upon receipt, but failure to comply with the relevant inspection requirements can also hardly be classified as simple.

In fact, the tax authority denies the taxpayer the right to a tax refund not because it has indisputable evidence that the taxpayer lacks legal grounds for applying tax deductions and (or) documents confirming them.

The only reason for refusal is the taxpayer’s failure to provide documents confirming the right to the amount of tax deductions indicated in the declaration.

But the consequences of failure to comply with the inspection’s requirements to submit documents are determined by the Tax Code of the Russian Federation. In accordance with Article 93 of the Tax Code of the Russian Federation, a taxpayer’s refusal to submit the requested documents or their 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. It also provides that the tax official conducting the tax audit (there are no restrictions for desk audits) seizes the necessary documents in the manner prescribed by Article 94 of the Tax Code of the Russian Federation. That is, the tax authority must take measures to obtain documents confirming the tax deductions declared in the declaration.

Only if it is proven that the taxpayer does not have the necessary documents, the tax authority’s decision to refuse a tax refund will be legal and justified.

Neither Article 93 nor the provisions of Chapter 21 of the Tax Code of the Russian Federation provide for other consequences of a taxpayer’s failure to provide documents confirming tax deductions.

It should be noted that the wording of Article 93 of the Tax Code of the Russian Federation, in force since January 1, 2007, allows for the request of documents solely by serving the person being inspected with a request for the production of documents. There is no such requirement for sending by mail.

1. The taxpayer incorrectly calculated the amount of interest.

When rejecting a taxpayer's claims for payment of interest on this basis, the tax authority may have in mind:

• incorrect determination by the taxpayer of the start date of the delay in tax refund;
• incorrect determination of the return date;
• incorrect application of refinancing rates of the Central Bank of the Russian Federation that were in effect during the period of delay;
• incorrect determination of the size - 1/360 or 1/365 of the refinancing rate.

1. The tax authority actually failed to fulfill the obligation to return the tax to the taxpayer in accordance with Article 176 of the Tax Code of the Russian Federation.

Judicial practice knows many cases when the tax authority considers it unlawful to impose on it the obligation to pay interest under Article 176 of the Tax Code of the Russian Federation, if the tax amount has not actually been returned to the taxpayer, has not been credited to his current account (regardless of whose decision to refund the tax has not been executed - the tax authority itself or the judicial authorities).

The courts, imposing in this case on the tax authority the obligation to pay interest, point out that the accrual of interest is not made by the Tax Code of the Russian Federation dependent on the tax authority actually returning the tax to its current account (Resolution of the Federal Arbitration Court of the North-Western District dated 21.02 .2007 N A56-1510/2006; Federal Arbitration Court of the Moscow District dated January 12, 2007 N KA-A40/13049-06).

1. The tax authority made a timely decision on tax refund.

As it turned out, tax authorities in a number of cases show misunderstanding regarding the scope of their responsibilities related to the return of value added tax amounts from the budget in the order of reimbursement.

Thus, when the Federal Arbitration Court of the North-Western District considered the cassation appeal of the tax inspectorate in case No. A52-3680/2006/2 on March 13, 2007, it was established that the tax authority timely made a decision to reimburse the taxpayer from the budget for the amount of value added tax on the declaration for April 2006 and sent this decision within the prescribed period to the head of the taxpayer’s organization. At this point, the tax authority considered its duties fulfilled.

Meanwhile, according to paragraph 4 of Article 176 of the Tax Code of the Russian Federation (as amended until January 1, 2007), the tax authority is obliged not only to make a decision on tax refund, but also, if there is a taxpayer’s application for tax refund, to make a decision on tax refund. In the case considered, the value added tax declaration at a tax rate of 0 percent was received by the tax authority on May 22, 2006. The decision to reimburse the taxpayer from the budget for the tax on the return for April 2006 was made on August 21, 2006. The decision to refund the tax from the budget to the organization’s current account was made by the tax authority only on 10/05/2006, and on the same day a conclusion on the execution of the decision on refund was drawn up and sent to the Federal Treasury Department of the Ministry of Finance of the Russian Federation for the Pskov Region, as a result of which the tax was returned only 05.10.2006.

Paragraph ten of paragraph 4 of Article 176 of the Tax Code of the Russian Federation states that the decision to return tax amounts from the budget is made no later than the last day of the three-month period. Within the same period (three months), a conclusion on the refund of the tax to the taxpayer must be sent to the relevant federal treasury body. The three-month period expired on August 22, 2006. The decision to return was made on October 5, 2006, that is, in violation of the established deadline. Since interest is subject to accrual if, when returning a tax, the set of deadlines determined by paragraph 4 of Article 176 of the Tax Code of the Russian Federation for tax authorities and federal treasury authorities is violated, the courts satisfied the taxpayer’s demands to impose on the tax authority the obligation to ensure the payment of interest provided for in Article 176 of the Tax Code of the Russian Federation.

1. The tax authority promptly sent the conclusion to the treasury.

Violation of the deadlines for tax refund to the taxpayer to his current account occurs in a number of cases due to the treasury’s untimely execution of the tax refund report received from the inspectorate.

Guided by the norms of the Tax Code, taxpayers reasonably apply to the tax authority with a demand to pay the interest provided for in Article 176 of the Tax Code of the Russian Federation.

The tax authorities unlawfully avoid making a decision on the payment of interest, citing the timely fulfillment of the duties imposed on them by Article 176 of the Tax Code of the Russian Federation for tax refunds and the fault of the treasury authorities.

This justification does not comply with the norms of Chapter 21 of the Tax Code of the Russian Federation. Interest under Article 176 of the Tax Code of the Russian Federation is paid to the taxpayer for violating the set of deadlines established therein, regardless of which body and at what stage the deadlines were violated. At the same time, without the inspection’s conclusion on the payment of interest calculated by it according to the rules of Article 176 of the Tax Code of the Russian Federation, the treasury authority cannot pay them.

1. Lack of information about the bank account to which the refundable tax amount is to be credited.

The courts' assessment of this argument of the tax authorities is set out on pp. 83 - 84 of the journal "Arbitration Disputes", No. 4(40)/2007.

In conclusion, I would like to recall the decision of the Supreme Arbitration Court of the Russian Federation on two quite pressing issues that arose in judicial practice.

The first is related to the problem of tax accounting, voluntary transfers and forced transfers of taxpayers from one tax office to another. In this case, often the decision to refuse a tax refund is made by one tax authority, and another tax authority executes the court decision, which declared such a decision invalid and the tax authority is obliged to return the tax with interest.

From the Resolutions of the Supreme Arbitration Court dated September 6, 2005 N 4083/05 and dated May 30, 2006 N 1334/06, it follows that the procedure for tax reimbursement when a taxpayer transfers and registers with a new inspectorate is not regulated by Article 176 of the Tax Code of the Russian Federation. But in the event that the decision of the tax inspectorate, with which the taxpayer was previously registered, to refuse a refund of value added tax is declared invalid by the arbitration court, the new tax authority where the taxpayer was registered is obliged to restore the rights of the taxpayer violated by the illegal decision of the previous one. inspections. The obligation to reimburse the tax not fulfilled by the previous inspection in this case does not cease or change. In this case, the taxpayer is not obliged to re-submit documents previously submitted to the previous inspection and assessed by the court. There is also no need to re-submit a tax refund application to a new inspectorate if it was previously submitted to the inspectorate where the taxpayer was registered with the tax authorities - it cannot be considered as not giving rise to legal consequences in connection with registration with another tax authority.

Thus, if the new tax authority does not return a tax, the reimbursement and return of which was previously illegally denied to the taxpayer, which is confirmed by a court decision, such a taxpayer has the right to go to court with a demand to recognize the inaction of the tax inspectorate, which resulted in the non-refund of tax from the budget, as illegal, and to oblige The tax authority will return the amount of tax with interest for violation of the tax refund deadline, accrued on the basis of Article 176 of the Tax Code of the Russian Federation.

The second decision concerns cases when courts, within the framework of one case, consider two claims filed against different tax authorities involved in the case as defendants. The taxpayer involves in the case both the tax authority, which made the decision contested in court to refuse a tax refund, and the tax authority, where the taxpayer was transferred to tax registration, which will execute the court decision on tax refund by returning it to the taxpayer’s bank account and paying interest when resolving a dispute in favor of the taxpayer.

How does the deadline established by paragraph 4 of Article 198 of the Arbitration Procedural Code of the Russian Federation apply in this case? Does it apply to claims for tax refunds from the budget and for the payment of interest under Article 176 of the Tax Code of the Russian Federation?

And this is the second question, the resolution of which by the Supreme Arbitration Court of the Russian Federation cannot be ignored.

The norm of part four of Article 198 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) stipulates that an application for invalidation of non-normative legal acts, illegal decisions and actions (inaction) of state bodies, local government bodies, other bodies, officials can be submitted to arbitration court within three months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests, unless otherwise established by federal law.

The Supreme Arbitration Court of the Russian Federation in Resolutions dated January 31, 2006 N 9316/05 and dated December 5, 2006 N 8689/06 concluded that the requirements for refund of tax, penalties, payment of interest provided for by the Tax Code of the Russian Federation, the provisions of paragraph 4 Article 198 of the Arbitration Procedure Code of the Russian Federation does not apply.

Thus, the Supreme Arbitration Court of the Russian Federation recognized that claims for the collection of interest for late return of tax payments caused by incorrect actions of the tax authority, although they arise from public legal relations, are of a property nature and do not fall under the category of cases considered according to the rules of Chapter 24 of the Arbitration Procedural Code of the Russian Federation. Federation, including with the application of Article 198 of the Arbitration Procedure Code of the Russian Federation. Taking into account the fact that Section III of the said Code does not establish the specifics of consideration of claims for the collection of interest and based on the provisions of Article 189 of the Arbitration Procedure Code of the Russian Federation, these claims must be considered according to the rules of claim proceedings.

Consequently, the rule on a three-month period for filing an application, established by Part 4 of Article 198 of the Code, does not apply to filing applications containing a claim for the refund of taxes, penalties, and payment of interest provided for by the Tax Code of the Russian Federation.

* * *

When starting this work, it was difficult to even imagine how many questions and problems could be hidden in just one and, to be honest, quite clearly stated at first glance article of the Tax Code of the Russian Federation.

Probably, the dream of every judge considering tax disputes will always be a stable Tax Code of the Russian Federation with clearly and understandably stated and unambiguously interpreted rules.

1. If, at the end of the tax period, the amount of tax deductions exceeds the total amount of tax calculated for transactions recognized as an object of taxation in accordance with subparagraphs 1 - 3 of paragraph 1 of Article 146 of this Code, then the resulting difference is subject to compensation (offset, refund) to the taxpayer in accordance with the provisions of this article.

2. The specified amount is allocated within three calendar months following the expired tax period to fulfill the taxpayer’s obligations to pay taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Russian Federation, to pay penalties, repay arrears, amounts tax penalties awarded to the taxpayer, subject to credit to the same budget.
Tax authorities carry out offsets independently, and for taxes paid in connection with the movement of goods across the customs border of the Russian Federation, in agreement with the customs authorities and within ten days after the offset, they inform the taxpayer about it.

3. After three calendar months following the expired tax period, the amount that was not offset shall be returned to the taxpayer upon his written application.
The tax authority, within two weeks after receiving the said application, makes a decision to return the specified amount to the taxpayer from the relevant budget and, within the same period, sends this decision for execution to the relevant body of the Federal Treasury. The refund of these amounts is carried out by the Federal Treasury.
The refund of amounts is carried out by the Federal Treasury authorities within two weeks from the date of receipt of the specified decision of the tax authority. If such a decision is not received by the relevant body of the Federal Treasury after seven days, counting from the day of sending by the tax authority, the date of receipt of such a decision is recognized as the eighth day, counting from the day of sending such a decision by the tax authority.
If the deadlines established by this paragraph are violated, interest is accrued on the amount to be returned to the taxpayer based on one three hundred sixtieth of the refinancing rate of the Central Bank of the Russian Federation for each day of delay.

4. The amounts provided for in Article 171 of this Code in relation to operations for the sale of goods (work, services) provided for in subparagraphs 1 - 6 and 8 of paragraph 1 of Article 164 of this Code, as well as tax amounts calculated and paid in accordance with paragraph 6 of the article 166 of this Code are subject to compensation by offset (refund) on the basis of a separate tax return specified in paragraph 6 of Article 164 of this Code and documents provided for in Article 165 of this Code.
Reimbursement is made no later than three months, counting from the day the taxpayer submits the tax return specified in paragraph 6 of Article 164 of this Code and the documents provided for in Article 165 of this Code.
During the specified period, the tax authority checks the validity of the application of the 0 percent tax rate and tax deductions and makes a decision on compensation by means of offset or return of the corresponding amounts or on refusal (in whole or in part) of compensation.
If the tax authority makes a decision to refuse (in whole or in part) a refund, it is obliged to provide the taxpayer with a reasoned conclusion no later than 10 days after the said decision is made.
If the tax authority does not make a decision on refusal within the established period and (or) the specified conclusion is not presented to the taxpayer, the tax authority is obliged to make a decision on compensation for the amount for which the decision on refusal was not made and notify the taxpayer of the decision made in within ten days.
If the taxpayer has arrears and penalties on taxes, arrears and penalties on other taxes and fees, as well as debts on awarded tax sanctions that are subject to credit to the same budget from which the refund is made, they are subject to offset as a matter of priority by decision of the tax authority .
Tax authorities carry out this offset independently and inform the taxpayer about it within 10 days.
If the tax authority makes a decision on reimbursement, if there is a tax arrears that arose in the period between the date of filing the declaration and the date of reimbursement of the corresponding amounts and does not exceed the amount subject to reimbursement by the decision of the tax authority, a penalty is not charged on the amount of the arrears.
If the taxpayer does not have arrears and penalties for taxes, arrears and penalties for other taxes, as well as debts on awarded tax sanctions subject to credit to the same budget from which the refund is made, the amounts subject to reimbursement are counted against current tax payments and (or) other taxes and fees payable to the same budget, as well as taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the implementation of work (services) directly related to the production and sale of such goods, in agreement with the customs authorities or are subject to return to the taxpayer upon his application.
No later than the last day of the period specified in paragraph two of this paragraph, the tax authority makes a decision on the return of tax amounts from the relevant budget and, within the same period, sends this decision for execution to the relevant body of the Federal Treasury.
Refunds are made by the Federal Treasury authorities within two weeks after receiving the decision of the tax authority. If such a decision is not received by the relevant body of the Federal Treasury after seven days, counting from the day of sending by the tax authority, the date of receipt of such a decision is recognized as the eighth day, counting from the day of sending such a decision by the tax authority.
If the deadlines established by this paragraph are violated, interest is accrued on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation.

1. If, at the end of the tax period, the amount of tax deductions exceeds the total amount of tax calculated for transactions recognized as an object of taxation in accordance with subparagraphs 1 - 3 of paragraph 1 of Article 146 of this Code, the resulting difference is subject to compensation (offset, refund) to the taxpayer in in accordance with the provisions of this article.

After the taxpayer submits a tax return, the tax authority verifies the validity of the amount of tax claimed for reimbursement when conducting a desk tax audit in the manner established by Article 88 of this Code.

2. Upon completion of the audit, within seven days, the tax authority is obliged to make a decision on the reimbursement of the appropriate amounts, if during the desk tax audit no violations of the legislation on taxes and fees were identified.

3. In case of detection of violations of the legislation on taxes and fees during a desk tax audit, authorized officials of tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.

The report and other materials of the desk tax audit, during which violations of the legislation on taxes and fees were identified, as well as objections submitted by the taxpayer (his representative), must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and a decision on them must be adopted in accordance with Article 101 of this Code.

Based on the results of consideration of the materials of the desk tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer accountable for committing a tax offense or to refuse to hold the taxpayer accountable for committing a tax offense.

At the same time as this decision, the following is made:

(see text in the previous edition)

a decision to partially reimburse the amount of tax claimed for reimbursement, and a decision to refuse to partially reimburse the amount of tax claimed for reimbursement.

4. If the taxpayer has arrears on taxes, other federal taxes, debts on the corresponding penalties and (or) fines subject to payment or collection in cases provided for by this Code, the tax authority shall independently offset the amount of tax subject to reimbursement towards the repayment of the specified arrears and debts on penalties and (or) fines.

5. If the tax authority has decided to reimburse the amount of tax (in whole or in part) in the presence of a tax arrears that arose in the period between the date of filing the declaration and the date of reimbursement of the corresponding amounts and does not exceed the amount subject to reimbursement by the decision of the tax authority, a penalty arrears are not accrued on the amount.

6. If the taxpayer does not have arrears on taxes, other federal taxes, arrears on the relevant penalties and (or) fines subject to payment or collection in cases provided for by this Code, the amount of tax subject to reimbursement by decision of the tax authority is returned at the request of the taxpayer to the bank account indicated by him. If there is a written application (application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels) of the taxpayer, the amounts to be refunded may be sent towards payment of upcoming tax payments or other federal taxes.

(see text in the previous edition)

7. The decision to offset (refund) the amount of tax is made by the tax authority simultaneously with the adoption of a decision to reimburse the amount of tax (in whole or in part).

8. An order for a refund of a tax amount, issued on the basis of a decision on a refund, must be sent by the tax authority to the territorial body of the Federal Treasury on the next day after the day the tax authority makes this decision.

The territorial body of the Federal Treasury, within five days from the date of receipt of the specified order, returns the amount of tax to the taxpayer in accordance with the budgetary legislation of the Russian Federation and, at the same time, notifies the tax authority of the date of return and the amount of money returned to the taxpayer.

9. The tax authority is obliged to inform the taxpayer in writing about the decision made on reimbursement (in whole or in part), about the decision made about offset (refund) of the amount of tax to be reimbursed, or about the refusal to reimburse it within five days from the date of adoption of the corresponding decision.

The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

10. If the tax refund deadlines are violated, starting from the 12th day after the completion of the desk tax audit, which resulted in a decision to refund (full or partial) the tax amount, interest is accrued based on the refinancing rate of the Central Bank of the Russian Federation.

The interest rate is assumed to be

Section IV. GENERAL RULES FOR THE EXECUTION OF THE OBLIGATION TO PAY TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law No. 243-FZ of July 3, 2016)

• Chapter 7. OBJECTS OF TAXATION
• Chapter 8. EXECUTION OF THE OBLIGATION TO PAY TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law dated July 3, 2016 N 243-FZ)
• Chapter 10. REQUIREMENT FOR PAYMENT OF TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law No. 243-FZ of July 3, 2016)
• Chapter 11. WAYS OF ENSURING FULFILLMENT OF OBLIGATIONS FOR PAYING TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law No. 243-FZ of July 3, 2016)
• Chapter 12. CREDIT AND REFUND OF OVER PAID OR OVER COLLECTED AMOUNTS

Section V. TAX DECLARATION AND TAX CONTROL (as amended by Federal Law No. 154-FZ of July 9, 1999)

• Chapter 13. TAX DECLARATION (as amended by Federal Law dated 07/09/1999 N 154-FZ)
• Chapter 14. TAX CONTROL

Section V.1. RELATED ENTITIES AND INTERNATIONAL GROUPS OF COMPANIES. GENERAL PROVISIONS ABOUT PRICES AND TAXATION. TAX CONTROL IN CONNECTION WITH TRANSACTIONS BETWEEN RELATED PERSONS. PRICING AGREEMENT. DOCUMENTATION ON INTERNATIONAL GROUPS OF COMPANIES (as amended by Federal Law dated November 27, 2017 N 340-FZ) (introduced by Federal Law dated July 18, 2011 N 227-FZ)

• Chapter 14.1. INTERDEPENDENT PERSONS. PROCEDURE FOR DETERMINING THE SHARE OF ONE ORGANIZATION IN ANOTHER ORGANIZATION OR AN INDIVIDUAL IN AN ORGANIZATION
• Chapter 14.2. GENERAL PROVISIONS ABOUT PRICES AND TAXATION. INFORMATION USED IN COMPARING THE TERMS OF TRANSACTIONS BETWEEN RELATED ENTITIES WITH THE TERMS OF TRANSACTIONS BETWEEN PERSONS THAT ARE NOT INTERDEPENDENTS
• Chapter 14.3. METHODS USED IN DETERMINING FOR TAXATION PURPOSES INCOME (PROFIT, REVENUE) IN TRANSACTIONS IN WHICH THE PARTIES ARE RELATED ENTITIES
• Chapter 14.4. CONTROLLED TRANSACTIONS. PREPARATION AND PRESENTATION OF DOCUMENTATION FOR TAX CONTROL PURPOSES. NOTICE OF CONTROLLED TRANSACTIONS
• Chapter 14.4-1. PRESENTATION OF DOCUMENTATION ON INTERNATIONAL GROUPS OF COMPANIES (introduced by Federal Law No. 340-FZ of November 27, 2017)
• Chapter 14.5. TAX CONTROL IN CONNECTION WITH TRANSACTIONS BETWEEN RELATED PERSONS
• Chapter 14.6. PRICING AGREEMENT FOR TAX PURPOSES

Section V.2. TAX CONTROL IN THE FORM OF TAX MONITORING (introduced by Federal Law dated November 4, 2014 N 348-FZ)

• Chapter 14.7. TAX MONITORING. REGULATIONS FOR INFORMATION INTERACTION
• Chapter 14.8. PROCEDURE FOR CONDUCTING TAX MONITORING. MOTIVATED OPINION OF THE TAX AUTHORITY

Section VI. TAX OFFENSE AND RESPONSIBILITY FOR THEIR COMMITMENT

• Chapter 15. GENERAL PROVISIONS ON LIABILITY FOR TAX OFFENSE COMMITMENT
• Chapter 16. TYPES OF TAX OFFENSE AND RESPONSIBILITY FOR THEIR COMMITMENT
• Chapter 17. COSTS ASSOCIATED WITH TAX CONTROL
• Chapter 18. TYPES OF VIOLATIONS OF THE BANK’S OBLIGATIONS PROVIDED BY THE LEGISLATION ON TAXES AND FEES AND RESPONSIBILITY FOR THEIR COMPLETION

Section VII. APPEALING ACTS OF TAX AUTHORITIES AND ACTIONS OR INACTIONS OF THEIR OFFICIALS

• Chapter 19. PROCEDURE FOR APPEALING ACTS OF TAX AUTHORITIES AND ACTIONS OR INACTIONS OF THEIR OFFICIALS
• Chapter 20. CONSIDERATION OF A COMPLAINT AND MAKING A DECISION ON IT

SECTION VII.1. IMPLEMENTATION OF INTERNATIONAL TREATIES OF THE RUSSIAN FEDERATION ON TAXATION ISSUES AND MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX AFFAIRS (introduced by Federal Law of November 27, 2017 N 340-FZ)

• Chapter 20.1. AUTOMATIC EXCHANGE OF FINANCIAL INFORMATION
• Chapter 20.2. INTERNATIONAL AUTOMATIC EXCHANGE OF COUNTRY REPORTS IN ACCORDANCE WITH INTERNATIONAL TREATIES OF THE RUSSIAN FEDERATION (introduced by Federal Law of November 27, 2017 N 340-FZ)

PART TWO

• Section VIII. FEDERAL TAXES
  • Chapter 21. VALUE ADDED TAX
  • Chapter 22. EXCISE TAXES
  • Chapter 23. INDIVIDUALS INCOME TAX
  • Chapter 24. UNIFORM SOCIAL TAX (ARTICLES 234 - 245) Lost force on January 1, 2010. - Federal Law of July 24, 2009 N 213-FZ.
  • Chapter 25. INCOME TAX OF ORGANIZATIONS (introduced by Federal Law dated 06.08.2001 N 110-FZ)
  • Chapter 25.1. FEES FOR THE USE OF WILDLIFE OBJECTS AND FOR THE USE OF OBJECTS OF AQUATIC BIOLOGICAL RESOURCES (introduced by Federal Law of November 11, 2003 N 148-FZ)
  • Chapter 25.2. WATER TAX (introduced by Federal Law dated July 28, 2004 N 83-FZ)
  • Chapter 25.3. STATE DUTIES (introduced by Federal Law dated November 2, 2004 N 127-FZ)
  • Chapter 25.4. TAX ON ADDITIONAL INCOME FROM PRODUCTION OF HYDROCARBONS RAW MATERIALS (introduced by Federal Law dated July 19, 2018 N 199-FZ)
  • Chapter 26. TAX ON MINERAL EXTRACTION (introduced by Federal Law of 08.08.2001 N 126-FZ)
• Section VIII.1. SPECIAL TAX REGIMES (introduced by Federal Law of December 29, 2001 N 187-FZ)
  • Chapter 26.1. TAX SYSTEM FOR AGRICULTURAL PRODUCERS (UNIFORM AGRICULTURAL TAX) (as amended by Federal Law No. 147-FZ of November 11, 2003)
  • Chapter 26.2. SIMPLIFIED TAX SYSTEM (introduced by Federal Law No. 104-FZ of July 24, 2002)
  • Chapter 26.3. TAX SYSTEM IN THE FORM OF A SINGLE TAX ON IMPLIED INCOME FOR SPECIFIC TYPES OF ACTIVITY (introduced by Federal Law No. 104-FZ of July 24, 2002)
  • Chapter 26.4. TAX SYSTEM WHEN IMPLEMENTING PRODUCTION SHARING AGREEMENTS (introduced by Federal Law No. 65-FZ of 06.06.2003)
  • Chapter 26.5. PATENT TAX SYSTEM (introduced by Federal Law dated June 25, 2012 N 94-FZ)
• Section IX. REGIONAL TAXES AND FEES (introduced by Federal Law of November 27, 2001 N 148-FZ)
  • Chapter 27. SALES TAX (ARTICLES 347 - 355) Lost force. - Federal Law of November 27, 2001 N 148-FZ.
  • Chapter 28. TRANSPORT TAX (introduced by Federal Law of July 24, 2002 N 110-FZ)
  • Chapter 29. TAX ON GAMING BUSINESS (introduced by Federal Law of December 27, 2002 N 182-FZ)
  • Chapter 30. PROPERTY TAX OF ORGANIZATIONS (introduced by Federal Law of November 11, 2003 N 139-FZ)
• Section X. LOCAL TAXES AND FEES (as amended by Federal Law dated November 29, 2014 N 382-FZ) (introduced by Federal Law dated November 29, 2004 N 141-FZ)
  • Chapter 31. LAND TAX
  • Chapter 32. PROPERTY TAX OF INDIVIDUALS (introduced by Federal Law dated October 4, 2014 N 284-FZ)
  • Chapter 33. TRADE FEE (introduced by Federal Law dated November 29, 2014 N 382-FZ)
• Section XI. INSURANCE PREMIUMS IN THE RUSSIAN FEDERATION (introduced by Federal Law dated July 3, 2016 N 243-FZ)
  • Chapter 34. INSURANCE PREMIUMS (introduced by Federal Law dated July 3, 2016 N 243-FZ)

Article 176.1 of the Tax Code of the Russian Federation. Application procedure for tax refund

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(introduced by Federal Law dated December 17, 2009 N 318-FZ)

1. The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of an offset (refund) of the amount of tax declared for reimbursement in a tax return, before the completion of a desk tax audit conducted in accordance with Article 88 of this Code on the basis of this tax return.

ConsultantPlus: note.

Clause 2 art. 176.1 applies to surety agreements that ensure payment of VAT after 07/01/2017 (Federal Law dated 11/30/2016 N 401-FZ).

2. The following have the right to apply the application procedure for tax refund:

1) taxpayers-organizations for whom the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid for the three calendar years preceding the year in which the application for application of the application procedure for tax refund is submitted, excluding the amount of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent is at least 2 billion rubles. These taxpayers have the right to apply the declarative procedure for tax refund if at least three years have passed from the date of creation of the relevant organization to the day of filing the tax return;

(as amended by Federal Laws dated November 27, 2010 N 306-FZ, dated December 29, 2015 N 397-FZ, dated August 3, 2018 N 302-FZ)

2) taxpayers who have provided, along with the tax return in which the right to a tax refund is stated, a valid bank guarantee providing for the bank’s obligation, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amounts of tax excess received by him (credited to him) as a result of the tax refund in application procedure, if the decision to reimburse the amount of tax claimed for reimbursement is canceled in whole or in part in the cases provided for in this article;

3) taxpayers - residents of the territory of rapid socio-economic development, who provided, along with the tax return in which the right to tax refund is declared, a guarantee agreement for a management company determined by the Government of the Russian Federation in accordance with the Federal Law "On Territories of Rapid Social and Economic Development in the Russian Federation" Federation" (copy of the guarantee agreement), providing for the obligation of the management company, on the basis of the request of the tax authority, to pay to the budget for the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax refund in a declarative manner, if the decision on the refund of the amount of tax declared for refund in a declarative manner, will be canceled in whole or in part in the cases provided for in this article. The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand;

(Clause 3 introduced by Federal Law dated November 29, 2014 N 380-FZ; as amended by Federal Law dated July 13, 2015 N 214-FZ)

4) taxpayers - residents of the free port of Vladivostok, who provided, along with the tax return in which the right to tax refund is stated, a guarantee agreement for the management company determined by the Federal Law "On the Free Port of Vladivostok" (a copy of the guarantee agreement), providing for the obligation of the management company based on the requirement tax authority to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax refund in a declarative manner, if the decision to reimburse the amount of tax declared for reimbursement in a declarative manner is canceled in whole or in part in the cases provided for by this article . The obligation of the management company to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of a tax refund in the application form arises if the taxpayer has not complied with the request of the tax authority to return the excessive amounts of tax received (credited to him) within 15 calendar days from the moment the tax authority issues a demand;

(Clause 4 introduced by Federal Law dated July 13, 2015 N 214-FZ)

5) taxpayers whose obligation to pay tax guaranteed in accordance with Article 74 of this Code, which provides for the obligation of the guarantor, based on the request of the tax authority, to pay to the budget on behalf of the taxpayer the amount of tax excessively received by him (credited to him) as a result of tax refund in a declarative manner, if the decision on the refund of the amount of tax declared for refund in application, will be canceled in whole or in part in the cases provided for in this article.

(Clause 5 introduced by Federal Law dated November 30, 2016 N 401-FZ)

ConsultantPlus: note.

Clause 2.1 art. 176.1 applies to guarantee agreements that ensure payment of VAT after 07/01/2017 (Federal Law of November 30, 2016 N 401-FZ).

1) be a Russian organization;

2) the total amount of value added tax, excise taxes, corporate income tax and mineral extraction tax paid by the guarantor during the three years preceding the year in which the application for concluding a guarantee agreement was submitted, excluding the amounts of taxes paid in connection with moving goods across the border of the Russian Federation and as a tax agent, amounts to at least 2 billion rubles;

3) the amount of the guarantor’s obligations under existing surety agreements (including the surety agreement specified in subparagraph 5 of paragraph 2 of this article, in relation to the taxpayer), concluded in accordance with this Code, on the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, does not exceed 50 percent of the value of the guarantor’s net assets, determined as of December 31 of the calendar year preceding the year in which the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 this article;

(as amended by Federal Law dated August 3, 2018 N 302-FZ)

4) the guarantor on the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, is not in the process of reorganization or liquidation;

5) in relation to the guarantor on the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, insolvency (bankruptcy) proceedings have not been initiated in accordance with the legislation of the Russian Federation on insolvency (bankruptcy);

6) the guarantor on the date of submission of the application for the conclusion of the guarantee agreement specified in subparagraph 5 of paragraph 2 of this article, has no arrears in paying taxes, fees, insurance premiums, penalties and fines.

(as amended by Federal Law dated August 3, 2018 N 302-FZ)

(clause 2.1 introduced by Federal Law dated November 30, 2016 N 401-FZ)

3. No later than the day following the day of issuing a bank guarantee (concluding a surety agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer about the fact of issuing a bank guarantee (concluding a surety agreement) in the manner determined by the federal executive body authorized on control and supervision in the field of taxes and fees.

(Clause 3 as amended by Federal Law dated November 29, 2014 N 380-FZ)

4. A bank guarantee must be provided by a bank included in the list of banks that meet the requirements established by Article 74.1 of this Code for accepting bank guarantees for tax purposes. The requirements established by Article 74.1 of this Code are applied to the bank guarantee, taking into account the following features:

1) the validity period of the bank guarantee must expire no earlier than 10 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared;

2) the amount for which the bank guarantee is issued must ensure the fulfillment of obligations to return to the budgets of the budget system of the Russian Federation in full the amount of tax claimed for reimbursement.

(Clause 4 as amended by Federal Law dated July 23, 2013 N 248-FZ)

ConsultantPlus: note.

Clause 4.1 art. 176.1 applies to guarantee agreements that ensure payment of VAT after 07/01/2017 (Federal Law of November 30, 2016 N 401-FZ).

4.1. TO guarantee agreement The requirements of the legislation of the Russian Federation on taxes and fees are applied, taking into account the following features:

1) the validity period of the guarantee agreement must expire no earlier than 10 months from the date of filing the tax return in which the amount of tax to be reimbursed is declared, and must not exceed one year from the date of conclusion of the guarantee agreement;

(Clause 1 as amended by Federal Law dated November 30, 2016 N 401-FZ)

2) the amount specified in the guarantee agreement must ensure the fulfillment of obligations to return to the budgets of the budget system of the Russian Federation in full the amount of tax claimed for reimbursement.

(clause 4.1 introduced by Federal Law dated November 29, 2014 N 380-FZ)

6.1. Bank guarantee (guarantee agreement) provided to the tax authority no later than the deadline stipulated paragraph 7 of this article to submit an application for application of the declarative procedure for tax refund.

(clause 6.1 introduced by Federal Law dated July 19, 2011 N 245-FZ, as amended by Federal Law dated November 29, 2014 N 380-FZ)

7. Taxpayers who have the right to apply the declarative tax refund procedure exercise this right by submitting to the tax authority no later than five days from the date of filing the tax return an application for the application of the declarative tax refund procedure, in which the taxpayer indicates the bank account details for transferring funds.

In the said application, the taxpayer undertakes to return to the budget the amounts received in excess (credited to him) in the application form (including interest provided for clause 10 of this article (if they are paid), as well as pay the interest accrued on the specified amounts in the manner established paragraph 17 of this article, in the event that the decision to reimburse the amount of tax claimed for reimbursement is canceled in whole or in part in the cases provided for by this article.

ConsultantPlus: note.

Clause 8 art. 176.1 applies

8. Within five days from the date of filing the application for application of the application procedure for tax refund, the tax authority verifies the taxpayer’s compliance with the requirements provided for points 2 , , 4.1 and this article, as well as whether the taxpayer has arrears on taxes, other taxes, debts on relevant penalties and (or) fines subject to payment or collection in cases provided for by this Code, and makes a decision on reimbursement of the amount of tax claimed for reimbursement, in declarative procedure or a decision to refuse to reimburse the amount of tax claimed for reimbursement in a declarative manner.

Simultaneously with the decision to reimburse the amount of tax claimed for reimbursement in a declarative manner, depending on the presence of debts of the taxpayer for the specified payments, the tax authority makes a decision to set off the amount of tax declared for reimbursement in a declarative manner and (or) a decision on refund (in full or partially) the amount of tax claimed for reimbursement in a declarative manner.

The tax authority is obliged to inform the taxpayer in writing about the decisions made within five days from the date of adoption of the relevant decision. At the same time, in the notification about the decision to refuse reimbursement of the amount of tax claimed for reimbursement, the norms of this article violated by the taxpayer are indicated in a declarative manner. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

Making a decision to refuse to reimburse the amount of tax claimed for reimbursement in an application form does not change the procedure and timing of conducting a desk tax audit of the submitted tax return. If a decision is made to refuse reimbursement of the amount of tax claimed for reimbursement, in the application form, tax reimbursement is carried out in the manner and within the time limits provided for Article 176 of this Code. Moreover, in the case specified in this paragraph, if there is a written request from the taxpayer, the tax authority returns the bank guarantee to him no later than three days from the date of receipt of such request.

(as amended by Federal Law dated November 24, 2014 N 366-FZ)

9. If the taxpayer has arrears on taxes, other taxes, debts on relevant penalties and (or) fines subject to payment or collection in cases provided for by this Code, the tax authority based on a decision to offset the amount of tax claimed for reimbursement in the application procedure, the amount of tax claimed for reimbursement is independently offset in a declarative manner to pay off the specified arrears and debts on penalties and (or) fines. In this case, the accrual of penalties for the specified arrears is carried out until the day the tax authority makes a decision to offset the amount of tax claimed for reimbursement in a declarative manner.

If the taxpayer does not have arrears on taxes, other taxes, arrears on the corresponding penalties and (or) fines subject to payment or collection in cases provided for by this Code, as well as if the amount of tax declared for reimbursement, in a declarative manner, exceeds the amounts of these arrears for taxes, other taxes, debts on relevant penalties and (or) fines, the amount of tax subject to reimbursement is returned to the taxpayer based on the decision of the tax authority to return (in whole or in part) the amount of tax claimed for reimbursement in a declarative manner.

10. An order for a refund of the tax amount is issued by the tax authority on the basis of a decision to return (in whole or in part) the amount of tax claimed for reimbursement in an application form and is subject to sending to the territorial body of the Federal Treasury on the next business day after the day the tax authority makes this decision.

Within five days from the date of receipt of the information specified in first paragraph of this paragraph of the instruction, the territorial body of the Federal Treasury shall refund the tax amount to the taxpayer in accordance with budget legislation of the Russian Federation and no later than the day following the day of return, notifies the tax authority of the date of return and the amount of funds returned to the taxpayer.

If the deadline for returning the tax amount is violated, interest is accrued on this amount for each day of delay starting from the 12th day after the day the taxpayer submits the application provided for paragraph 7 of this article. The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, valid during the period of violation of the repayment deadline.

If the interest provided for in this paragraph is not paid to the taxpayer in full, the tax authority, within three days from the date of receipt of the notification from the territorial body of the Federal Treasury about the date of return and the amount of funds returned to the taxpayer, makes a decision on payment of the remaining amount of interest and no later than the day following the day of adoption of this decision, sends to the territorial body of the Federal Treasury an order drawn up on the basis of this decision to pay the remaining amount of interest.

11. The validity of the amount of tax declared for reimbursement is checked by the tax authority when conducting, in the manner and within the time frame established by Article 88 of this Code, a desk tax audit on the basis of the tax return submitted by the taxpayer, in which the amount of tax to be reimbursed is declared.

ConsultantPlus: note.

Clause 12 art. 176.1 applies to surety agreements ensuring payment of VAT after 07/01/2017 (Federal Law of November 30, 2016 N 401-FZ).

12. If, during a desk tax audit, no violations of the legislation on taxes and fees were identified, the tax authority, within seven days after the end of the desk tax audit, is obliged to inform the taxpayer in writing about the completion of the tax audit and the absence of identified violations of the tax law and fees.

No later than the day following the day of sending to the taxpayer who provided the bank guarantee a message about the absence of identified violations of the legislation on taxes and fees, the tax authority is obliged to send to the bank that issued the specified bank guarantee a written application for the bank’s release from obligations under this bank guarantee, and If there is a written request from the taxpayer, the tax authority is also obliged to return the bank guarantee to him no later than three days from the date of receipt of such request.

(paragraph introduced by Federal Law dated July 19, 2011 N 245-FZ, as amended by Federal Law dated November 24, 2014 N 366-FZ)

No later than the day following the day of sending to the taxpayer, whose obligation to pay tax is secured by the guarantee provided for in this article, a message about the absence of identified violations of the legislation of the Russian Federation on taxes and fees, the tax authority is obliged to send to the guarantor a written application for the release of the guarantor from obligations under this agreement guarantees.

(as amended by Federal Law No. 401-FZ of November 30, 2016)

13. If violations of the legislation on taxes and fees are detected during a desk tax audit, authorized officials of the tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.

The report and other materials of the desk tax audit, during which violations of the legislation on taxes and fees were identified, as well as objections submitted by the taxpayer (his representative), must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and a decision on them must be adopted in accordance with Article 101 of this Code.

14. Based on the results of consideration of the materials of the desk tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer accountable for committing a tax offense or to refuse to hold the taxpayer accountable for committing a tax offense.

15. If the amount of tax reimbursed to the taxpayer in the manner provided for in this article exceeds the amount of tax subject to reimbursement based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of the appropriate decision provided for paragraph 14 of this article, makes a decision to cancel the decision to refund the amount of tax declared for reimbursement in a declarative manner, as well as the decision to return (in whole or in part) the amount of tax declared for reimbursement in a declarative manner and (or) the decision to set off the amount of tax declared for reimbursement, in a declarative manner in part of the amount of tax that is not subject to reimbursement based on the results of a desk tax audit.

16. The tax authority is obliged to inform the taxpayer in writing about the decisions made, specified in paragraphs 14 and this article, within five days from the date of adoption of the relevant decision. The specified message can be transmitted to the head of the organization, individual entrepreneur, their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

17. Simultaneously with the notification of the decision specified in paragraph 15 of this article, the taxpayer is sent a request for the return to the budget of the amounts excessively received by him (credited to him) in the application form (including interest provided for clause 10 of this article (if they are paid), in an amount proportional to the share of the excessively refunded amount of tax in the total amount of tax refunded in the application procedure) (hereinafter in this article - the refund requirement). Interest is calculated on amounts to be refunded by the taxpayer based on an interest rate equal to two times rate

20. The taxpayer is obliged to independently pay the amounts specified in the refund request within five days from the date of its receipt.

No later than three days from the date of receipt of the notification from the territorial body of the Federal Treasury about the return by the taxpayer who submitted the bank guarantee of the tax amounts specified in the refund request, the tax authority is obliged to notify the bank that issued the bank guarantee about the bank’s release from obligations under this bank guarantee, and also, if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than three days from the date of receipt of such request.

(paragraph introduced by Federal Law dated November 24, 2014 N 366-FZ)

22. Within ten days after the fulfillment of the obligation of the bank (guarantor - management company) to pay the amount of money under the bank guarantee (guarantee agreement), the tax authority sends the taxpayer an updated request for a refund indicating the amounts to be paid to the budget.

Moreover, if the tax authority violates the deadline for sending a request for a refund, the accrual of interest on the amounts payable by the taxpayer on the basis of the request for a refund is suspended until the date of actual receipt of this request by the taxpayer.

23. In case of non-payment or incomplete payment of the amounts specified in the refund request, within the prescribed period, by the taxpayer who applied the application procedure for tax refund without providing a bank guarantee, or by the taxpayer who received an updated refund request, as well as in the event of impossibility of sending a request for a refund to the bank payment of a sum of money under a bank guarantee due to the expiration of its validity period or in the event of the impossibility of sending a demand to the guarantor - management company for the payment of a sum of money under the guarantee agreement, the obligation to pay these amounts is compulsorily fulfilled by foreclosure on the funds in the accounts or otherwise property of the taxpayer by decision of the tax authority to collect the specified amounts, adopted after the taxpayer failed to comply with the requirement for a refund within the established period, in the manner and within the time limits established by Articles 46 and 47 of this Code.

(as amended by Federal Law No. 380-FZ dated November 29, 2014)

24. After the taxpayer submits the application provided for paragraph 7 of this article, before the end of the desk tax audit, an updated tax return is submitted in the manner prescribed by Article 81 of this Code, taking into account the specifics established by this paragraph.

If the updated tax return is filed by the taxpayer before the decision provided for first paragraph of paragraph 8 of this article, then such a decision on a previously filed tax return shall not be made.

If an updated tax return is filed by the taxpayer after the tax authority has made a decision to reimburse the amount of tax claimed for reimbursement in a declarative manner, but before the completion of a desk tax audit, then the specified decision on the previously filed tax return is canceled no later than the day following the day of filing the updated tax return. declarations. No later than the day following the day the decision was made to cancel the decision to reimburse the amount of tax claimed for reimbursement, in a declarative manner, the tax authority notifies the taxpayer about the adoption of this decision. Amounts received by the taxpayer (credited to the taxpayer) in the application form must be returned to them, taking into account the interest provided for paragraph 17 of this article, in the manner prescribed points 17 - this article.