Application for refund of overpayment A tax refund is considered income in case of tax

Overpayment may occur due to the following circumstances:

- During the year, the IP on the simplified tax system "income" paid advance payments on income. All contributions for the year were paid in December and their amount is greater than the tax payable for the year

- Insurance premiums were also paid during the year, but the amount of all advance payments based on the results of the 1st quarter, half a year and 9 months turned out to be more than the amount of tax for the entire year (for example, on the simplified tax system "income-expenses", if there was little income in the 4th quarter , and the costs are many).

- An error in the payment or calculations. Perhaps, when calculating advance payments, the accountant made a mistake and counted an extra advance on tax payable. Or an error could occur during the formation of the payment.

Taxpayers applying the simplified tax system must pay single tax at the end of the year until March 31, 2015 (for organizations) or until April 30, 2015 (for individual entrepreneurs). But what to do if the tax is already overpaid?

In this situation, the reason for the overpayment does not matter. Another thing is important - how to deal with the overpayment.

First of all, you need to make an act of reconciliation with tax office. You can request a reconciliation report through many programs designed to send reports.

You can also conduct a reconciliation directly at the inspection by writing an application.

The application form is free, most often a sample can be found at the information stands of the inspection. In the application, we write everything that we want to know: for how long we check, for what taxes, do not forget to indicate the CBC along with the name of the tax. Also indicate the method of receiving documents - in person or by mail.

The inspectorate prepares its copy of the reconciliation act and gives it to you for verification. It is possible that the IFTS will not agree with your data. For example, a payment for 9 months could be erroneously transferred to another CCC. In case of discrepancies in the data, the cause of the discrepancy should be established and eliminated.

After confirming the fact of the overpayment, the taxpayer has 2 options on how to dispose of the overpayment:

- set off against future payments (clause 4, article 78 of the Tax Code of the Russian Federation),

- return to the current account (clause 6, article 78 of the Tax Code of the Russian Federation). This option is possible only if the company has no debts to the tax authorities for other taxes (penalties, fines). If there are arrears, the IFTS will independently set off the tax overpayment under the simplified tax system against the taxpayer's debts to the budget (clause 5, article 78 of the Tax Code).

Overpayment offset against future payments

It is carried out on the basis of the application of the taxpayer. It can be transferred both in paper form and in electronic form, assuring the EDS (electronic digital signature), through TCS (telecommunication channels).

The application is written in free form. Do not forget to specify the details of the organization, the period of occurrence of the overpayment, the tax for which the overpayment was formed, and also how you want to offset the amount.

Refund of overpayment from the IFTS

Refunds are also made at the request of the taxpayer. Be sure to indicate Bank details for which payment is due.

What is the best thing to do if there is an overpayment on the simplified tax system?

It's up to the taxpayer to decide, of course. However, there are a few things to keep in mind:

- The IFTS does not like to return money if it is a significant amount. If you plan to return a large amount, get ready for additional checks.

- When making settlements, some banks charge a commission for each payment. Calculate whether you will lose extra money if you first return the overpayment from the budget, and after a few months transfer the money to the budget again as advance payment according to USN. This is especially true for small overpayments.

If, due to errors made in the calculation of taxes, errors or typos in payment documents, or for other reasons, you paid or withheld from you the amount of tax in a larger amount than required by law, you can return the overpayment amount (clause 5 clause 1 article 21, clause 1 article 78, articles 231, 231.1 of the Russian Tax Code).

1. How to find out about overpayment

If an overpayment of tax or excessive withholding from your income the amount of personal income tax discovered by the tax authority or tax agent, then within 10 working days from the date of establishing this fact, you must be notified of the amount of the overpaid amount (clause 6 of article 6.1, clause 3 of article 78, clause 4 of article 79, clause 1 article 231 of the Tax Code of the Russian Federation).

Message tax authority may be handed to you personally against receipt, sent by registered mail or delivered to electronic form, in particular, through Personal Area taxpayer (clause 4, article 31 of the Tax Code of the Russian Federation). The tax agent can also choose any method of notification.

The amount of personal income tax withheld from your income can be found from the 2-personal income tax certificate requested from the tax agent (clause 3 of article 230 of the Tax Code of the Russian Federation; article 62 of the Labor Code of the Russian Federation). You can also find out about this on the website of the Federal Tax Service of Russia in the personal account of the taxpayer (if you have access). Information about certificates for the past year appears in your personal account after five months, that is, after June 1 of the next year. At the same time, you can independently check the correctness of the accounting by the tax agent of your income and the calculations and deductions of personal income tax made by him and identify errors.

2. Who makes the offset or refund of the overpayment

If, for one reason or another, you transferred an excess amount of tax to the budget, the offset or refund of the overpaid amount is made by the tax authority. If the excess amount of tax (personal income tax) from your income was withheld by a tax agent, then according to general rules he himself must return this amount (Article 78, Paragraph 4, Clause 2, Article 219, Paragraph 6, Clause 8, Article 220, Clause 1, Article 231 of the Tax Code of the Russian Federation).

You should apply to the tax authority for the return of excessively withheld personal income tax if (paragraph 10, clause 1, clause 1.1, article 231, clause 1, article 231.1 of the Tax Code of the Russian Federation):

1) the tax agent who withheld the excess tax ceased to exist at the time the overpayment was discovered (for example, due to the liquidation of an organization or individual entrepreneur);

2) the overpayment arose in connection with the acquisition by the taxpayer during the expired tax period of the status of a tax resident of the Russian Federation;

3) the tax agent withheld an excess amount of personal income tax from certain incomes, namely:

pensions under contracts of non-state pension provision concluded by employers with NPFs, pension contributions for which prior to 01.01.2005 were paid by him with deduction and payment of personal income tax;
income in connection with the payment for you by the employer until 01.01.2008 not in full of contributions under voluntary long-term life insurance contracts concluded by him before the specified date.

How to return the overpayment through the tax authority

If you apply to the tax office for a refund of the overpaid amount of tax, we recommend that you follow the following algorithm.

Step 1. Submit an application to the tax authority

An application for a tax refund is submitted to the tax authority at the place of your registration. The application can be submitted personally or through your representative directly to the tax authority, sent by mail or transmitted in electronic form, in particular through the taxpayer's personal account (clause 1, article 26, clauses 2, 4, article 78 of the Tax Code of the Russian Federation).

Attach to the application documents confirming the overpayment of tax, for example, payment documents, documents confirming the availability of tax benefits, etc. To return the excessively withheld personal income tax, it may be necessary to submit a 3-NDFL declaration to the tax authority (paragraph 10, clause 1, clause 1.1 article 231 of the Tax Code of the Russian Federation).

The deadline for filing an application for the return of an overpayment is three years from the date of payment of the excess amount (clause 7, article 78 of the Tax Code of the Russian Federation).

For the return of personal income tax amounts recognized as overpaid in accordance with Art. 231.1 of the Tax Code of the Russian Federation, you can apply within three years from 06/24/2014 (clauses 1, 3, article 3 of the Law of 06/23/2014 N 166-FZ).

Step 2. Wait for the decision of the tax authority and return Money to your bank account

Within 10 working days from the date of receipt of an application for a tax refund or from the date of signing by the tax authority and the taxpayer of the act of joint reconciliation of taxes paid, if such a joint reconciliation was carried out, the tax inspectorate must decide on the refund of the amount of overpaid / withheld tax. Then, within five working days, the tax office will send you a message about decision. The refund of the overpayment to your bank account must be made within one month from the date of receipt of the above application (clause 6, article 6.1, clauses 6, 8, 9, article 78 of the Tax Code of the Russian Federation).

If you filed an application for a personal income tax refund at the same time as the tax return, the specified monthly period begins to be calculated not from the day you submit the declaration along with the application, but from the day the tax inspectorate makes the appropriate decision based on the results of a desk audit or from the moment the deadline for a desk audit expires (Letter of the Federal Tax Service of Russia dated 26.10.2012 N ED-4-3 / 18162@; paragraph 11 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 22.12.2005 N 98).

Example. Personal income tax return period

If you applied to the inspectorate with a 3-NDFL declaration and an application for a tax refund in January 2017, then you can return the amount overpaid for February - March 2017 only in May 2017.

If you have debts on other taxes of the appropriate type, penalties and fines, the tax inspectorate independently (without your application) will count the overpaid amount of tax towards repayment of this debt. In this case, the amount remaining after the offset will be returned to your bank account (clauses 1, 5, 6, article 78 of the Tax Code of the Russian Federation).

In case of untimely return of the overpayment, the tax inspectorate, in addition to the overpaid amount, must pay you interest for each calendar day of delay in the amount of the refinancing rate of the Bank of Russia that was in effect on the days of delay. When returning personal income tax, overpaid in accordance with Art. 231.1 of the Tax Code of the Russian Federation, interest is paid from the day following the day of deduction, until the day the overpayment is actually returned in the amount of the refinancing rate of the Bank of Russia that was in force during this period (clause 10, article 78, clause 2, article

Overpayment of taxes IP USN 6%

231.1 of the Tax Code of the Russian Federation).

Help.Refinancing rate

From 01/01/2016, the value of the refinancing rate of the Bank of Russia is equal to the value of the key rate of the Bank of Russia and from 30/10/2017 it is 8.25% (Instruction of the Bank of Russia dated 11/12/2015 N 3894-U; Information of the Bank of Russia dated 27/10/2017).

2.2. How to return an overpayment through a tax agent (in terms of personal income tax)

As a general rule, a withholding agent who has unduly withheld from your personal income tax, is obliged to make a return independently (clause 14, article 78, clause 1, article 231 of the Tax Code of the Russian Federation; clause 34 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57). In particular, the tax agent makes a refund of the amount of personal income tax that he withheld excessively from your income due to an error. For example, the accounting department withheld personal income tax from income that is not subject to taxation.

To return the amount of personal income tax withheld by the tax agent, we recommend that you follow the following algorithm.

Step 1. Apply to the withholding agent

The application is submitted to free form. However, it is imperative to indicate a bank account for transferring funds to you, since the refund of the overpayment is made by the employer only in non-cash form(Clause 1, Article 231 of the Tax Code of the Russian Federation).

The application deadline is three years from the date when the employer transferred the overdeducted amount to the budget (clause 7, article 78 of the Tax Code of the Russian Federation).

In this case, the dismissal of an employee does not affect the obligation former employer— the tax agent to return the overpayment of tax.

Step 2. Receive the overdeducted amount of personal income tax to the account specified in the application

The amount of personal income tax withheld in excess must be credited to the bank account you specified within three months from the date your employer received your application for a tax refund. If this deadline is violated, you must be paid interest for each calendar day of delay in the amount of the refinancing rate of the Bank of Russia that was in effect on the days of such delay (paragraphs 3, 5, clause 1, article 231 of the Tax Code of the Russian Federation).

Don't have a cottage yet?

Construction of houses in Pereslavl-Zalessky.

huge lake
pine forests
hunting and fishing
1.5 hours from Moscow

learn more

Very often, when calculating the tax, mistakes are made and in rare cases “in their favor”, paying the amount more than required.

How to confirm overpayment

As soon as it is discovered that an overpayment has occurred on the tax, you need to understand exactly how it was formed. If an error was made due to incorrect settlement operations (for example, calculating the tax base, benefits), then the refund of the overpayment of taxes must begin with the submission of a “clarification”.

Declaration - a statement on the amount of tax payable (Article 80 of the Tax Code of the Russian Federation).

Overpayment under the simplified tax system for the year - how to set off and return?

And if the amount of N rubles is indicated in the declaration, then it should be received. Therefore, before applying for an overpayment, it is necessary to correct the information in the declaration, i.e. make sure that the amount payable is really less than the amount received and reflected in his personal taxpayer account.

Filing a “clarification” is one of the ways how you can return an overpayment of taxes. There are other options, we will consider them below.

An overpayment will be detected during a desk or on-site audit, as a rule, this is an incorrect filling of the declaration and arithmetic errors. The Federal Tax Service notifies in writing about each error, this notice and confirms the overpayment.

According to the act of reconciliation. If this document exists and is signed by employees of the Federal Tax Service, then there is no need to submit a “clarification”. Reconciliation can be initiated by both the tax authority and the payer.

If the tax overpayment is confirmed in court (Decree of the FAS UO dated 02.07.08 No. Ф09-5218 / 07-С3)

How to deal with tax overpayments

When the overpayment is documented, it is necessary to decide what to do with it.

The returned amount of the overpayment can cover arrears, penalties or fines. But arrears can only be covered by taxes of the same type, for example, surpluses by federal taxes(eg income tax) can be used to pay off arrears on the same federal taxes (eg VAT). According to the regional, distribute only to the regional. Local to local. The same goes for fines and penalties.

Overpayment offset against future payments, but also only within the same tax type.

Return of funds to the organization.

How to make a choice

After you have decided what to do with the overpayment, you need to inform the Federal Tax Service of your decision by submitting an application. It needs to specify:

Amount to be refunded
What confirms the overpayment
What tax was overpaid
What will you do with the overpayment (refund or offset)
- If return. Specify the account to which you want to transfer the surplus
- If offset. Indicate for which tax payment

It is also possible to "split" the surplus. For example, a part to pay off the arrears, a part to be offset against subsequent payments, and a part to be returned to the company's account. For such a division, an application must be submitted within 3 days from the date of payment of the surplus.

The application is submitted in 2 copies, the tax stamp is put on the second. After that, a decision is made within 10 days.

In the case of a refund, the money is credited to the current account no later than 1 month from the date of application. If the money did not come, penalties are charged, just for this you need to keep the 2nd copy.

P.S. According to Art. 78 of the Tax Code of the Russian Federation, the tax authority itself can calculate and set off the overpayment against the existing arrears. If you care about the arrears for which the overpayment will be credited, you need to submit an application.

Overpayment for USN tax for 2012, is it possible to set off

Dear clerks, good afternoon! Tell me, please, in this situation: during the reconciliation with the tax authorities, I confirmed the presence of an overpayment on the simplified tax system (income) since 2012 (overpaid for the 4th quarter of 2011). I understand that the term limitation period passed, but they paid for the same KBK that is valid now (this was also confirmed in the tax office). The amount is small, 606 rubles, but it "dangles" on the account, only now it's time to deal with it: o. The tax inspector tells me that I can not pay additional tax on this amount to the simplified tax system for the 1st quarter of 2017. If I draw up a documented offset, then they will refuse me (the deadline has passed) and they will send me through the courts to return the amount of the overpayment. I don’t see the point of going to court.) Tell me, please, is it really possible without consequences (without penalties) not to pay extra tax on the same CCC against the overpayment of past periods?

Dear clerks! Has anyone experienced the situation above? What to do with the overpayment, if it is impossible to read out for real periods, then how to write off the amount of the overpayment? Or will she just hang out on the account?

In general, in theory, they should not be credited against the payment of tax for the 1st quarter of this year, the deadline has passed. But anything happens

Message from Khodyreva Svetlana

how to write off the overpayment amount?

There's no way you can write off, only the IRS can do that

When paying tax on the STS in 2015, the amounts were incorrectly sent to the old kbk, which were before 2011. Debts for new kbk in this regard, no, they always put more than necessary. How is the process of returning or transferring funds from the old kbk to the new one? Is reconciliation necessary, will there be a desk audit?

Hope, thanks for your reply! I had a question: if I take a chance and reduce the amount of tax for the 1st quarter of 2017 by the amount of the overpayment for 2012, and then it turns out that in fact it is impossible to do this and the tax authorities will consider the underpayment. What is the amount of fines and penalties we face for incomplete payment of tax for 2017?

serg66, each declaration submitted by you is subject to a cameral check. And when returning or offsetting, there is nothing to camera, everything has been camera-recorded for a long time. Write a request for a refund or offset.

Tax overpayment under the simplified tax system for the year - how to offset?

Message from Khodyreva Svetlana

What is the amount of fines and penalties

For non-payment of advances there are only penalties

Nadezhda, I understand correctly that this will become clear only after the declaration for 2017 is submitted by March 31, 2018. and only after a desk audit, the tax can set penalties without a fine?

Tax will not specify where more than a year is a large sum?
Is it necessary to do a reconciliation, or do we simply write a request in an arbitrary form to transfer from one kbk to another due to the reason that the kbk was not correctly indicated at the time? What date will it fall on the new kbk and how quickly? Is the deadline for 2016 coming to an end if they don't make it by April 25th? Cameras definitely will not be?

Hope, thank you very much for your replies!

Message from serg66

Cameras definitely will not be?

Declarations are chambered. Do you have something to camera?

Nadezhda, what number should I ask them to count? I'm afraid they will not count until April 25 (the tax payment deadline), or do we have time? Copies of payments and reasons for overpayments must be indicated?

I don’t know how long it will take for the tax authorities to realize whether this amount can be credited or not.

Please tell me, now, in 2017, can the tax on the simplified tax system (overpayment) be credited only within the aisles of one kbk?

Where do you want to put it?

Can be credited

Over.K, Thank you very much for your answer!
And the overpayment from the simplified tax system min. tax KBK 18210501050011000110 and interest on it on the simplified tax system income without expenses (KBK 18210501021011000110) against future payments?

Tell me, how to indicate in the application (if the overpayment on the simplified tax system income without expenses (KBK 18210501021011000110) is credited to the simplified tax system income (KBK 18210501011011000110) and advances on the simplified tax system income in 2017 were not paid) to pay off the arrears or on account of upcoming payments?

For future payments. There are no arrears on advance payments yet, until the declaration is submitted

Over.K, Thank you!

Message from talya

Overpayment on the simplified taxation system income without expenses (KBK 18210501021011000110) to offset partly for penalties for the same type and partly for simplified income tax (KBK 18210501011011000110), because. The company moved from 2017 on the simplified tax system - income

43 The Federal Tax Service Inspectorate in Moscow does not credit the overpayment of tax (USN income-expenses) on the debt for penalties for the same tax (((
Overpayment of tax from "income-expenses" to "income" was credited
Apparently, only tax-tax, penalties, penalties can be set off

Message from talya

does not set off the overpayment of tax (STS income-expenses) on the debt for penalties for the same tax (((

Write a complaint about them

Hello. USN (6%). In the 1st quarter of 2017, 1% was paid from the excess for 2016 of 2400 rubles. And taxes for the 1st quarter, 1st half of the year and 9 months of 2017 were paid without deducting this amount (1%). Is it possible for 2400 rubles. reduce the tax (STS 6%) for 2017, which I want to pay in December? Do I need to write an application for offsetting upcoming payments?

Payment of advance payments

What to do. If you did not pay advance payments during the year? If you find an underpayment, you can immediately pay the entire accrued advance payment for 9 months, as well as a late fee. But if you want to save money, we recommend doing the following.

You must: how to return the overpayment of tax

Calculate the "simplified" tax for the year. Then calculate the amount to be paid at the end of the year, taking into account the advances listed earlier for the first quarter and half a year. If this amount turned out to be less than the advance payment for 9 months, then transfer to the budget not the entire amount of the advance payment, but only the amount of the surcharge, as well as penalties from it. In this case, you will not have to count or return the difference. And if the amount of the surcharge is generally negative, then you do not need to transfer anything to the budget. Since you have already paid as much as required - according to the results of the first quarter and half a year. But in a situation where the surcharge is greater than or equal to the advance payment for 9 months, then transfer the entire advance payment and penalties as soon as possible. Calculate them based on 1/300 of the refinancing rate of the Central Bank of the Russian Federation and the number of days of delay.

Tax under the simplified tax system must be transferred four times a year. Advance payments - no later than April 25, July 25 and October 25. And the tax calculated at the end of the year - no later than March 31 of the next year, if you are an organization. Or no later than April 30, if you are an entrepreneur (clause 7 of article 346.21 of the Tax Code of the Russian Federation).

Now December is the end of the year, and it is quite possible that you could not transfer the advance payment for 9 months. For example, due to the fact that with an object of income minus expenses, you expected losses in the IV quarter. Or you simply did not have free funds for advance payments. Accordingly, the question arises: what to do now, when you can already determine the amount of tax for the year: pay an advance for 9 months or immediately pay the annual tax amount?

The easiest option is to pay the entire accrued advance amount now. However, if the tax for the year is less than the advance for 9 months, you will have an overpayment at the end of the year. Subsequently, you can set it off or return it from the budget, but this is extra work and money withdrawn from circulation for a while. Therefore, we offer you an action plan that will help you not to overpay extra amounts, but pay exactly as much as you need.

1. Calculate the total amount of tax for 2015

After you write down all the indicators for 2015 in the Book of Income and Expenses, calculate the tax for the year. So if you work on the simplified tax system with the object of taxation income, then calculate the amount of tax accrued by multiplying all your receipts by the rate of 6%. And then reduce the tax on the listed for the year insurance premiums and issued benefits for temporary disability (clause 3.1 of article 346.21 of the Tax Code of the Russian Federation). But not more than 50%. Or completely - if you are an entrepreneur without employees. If you are registered in Moscow and paid a sales tax, you can also reduce the tax by its amount. Moreover, without restrictions (letter of the Ministry of Finance of Russia dated 02.10.2015 No. 03-11-11 / 56492).

If your object of taxation is income minus expenses, first calculate the tax for the year at the regular rate - 15% or at a reduced rate provided for by regional law.

Also, do not forget that you have the right to reduce tax base for the year for past losses and last year's difference between the minimum and "simplified" taxes, if you had to pay the minimum (clauses 6 and 7 of article 346.18 of the Tax Code of the Russian Federation). Next, calculate the minimum tax for the current year, as 1% of the amount of income received (clause 6 of article 346.18 of the Tax Code of the Russian Federation). Compare the calculated indicators of the minimum and "simplified" taxes. The value that is greater will be the amount payable at the end of the year.

2. Determine the amount of tax payable

Your further actions will be the same regardless of your object of taxation. So, calculate the amount of tax that you need to pay extra for the year, taking into account the advance payments paid earlier for the first quarter and six months. The formula is:

3. Compare the amount of the co-payment with the advance payment for 9 months

Situation No. 1. The amount to be paid was less than the advance payment for 9 months. Here you can transfer to the budget not the entire accrued advance payment for 9 months, but only the amount of the surcharge, which was calculated based on annual indicators. You will also need to pay penalties - but not from the entire amount of the accrued advance payment for 9 months, but only from the amount that needs to be transferred based on the amount of the annual tax (letters of the Ministry of Finance of Russia dated January 22, 2010 No. 03-03-06 / 1/15, and also the Federal Tax Service of Russia dated November 11, 2011 ED-4-3 / 18934 and dated November 13, 2009 No. 3-2-06 / 127). That is, just from the amount of the surcharge that you transfer. Since in this situation the penalties are subject to a commensurate reduction (letters of the Ministry of Finance of Russia dated February 24, 2015 No. 03-11-06 / 2/9012 and dated May 12, 2014 No. 03-11-11 / 22105 and clause 14 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30. 2013 No. 57).

Example. Calculation of tax under the simplified tax system for additional payment at the end of the year

AAA LLC applies the simplified tax system with the object of income minus expenses and pays tax at a rate of 15%. For 9 months of 2015, the organization was supposed to transfer an advance payment in the amount of 38,000 rubles, but did not. The listed advance payments for the first quarter and half of 2015 amounted to 54,000 and 74,000 rubles. At the end of the year, the amount of accrued tax at a rate of 15% is 156,000 rubles, the amount of the minimum tax is 148,000 rubles. Let's figure out how much "simplified" tax LLC "AAA" should transfer to the budget.

The tax at a rate of 15% turned out to be more than the minimum, therefore, for 2015, AAA LLC must transfer the usual “simplified” tax to the budget - 156,000 rubles. For the first quarter and six months, the company has already paid 128,000 rubles. (54,000 rubles + 74,000 rubles), so it remains to transfer only 28,000 rubles. (156,000 rubles - 128,000 rubles). This amount is less than the accrued advance payment for 9 months of 38,000 rubles, which AAA LLC did not transfer on time. Therefore, the organization may not pay the entire advance, but only the amount to be paid - 28,000 rubles. And it is from this amount that AAA LLC will pay penalties calculated for the period from October 27 to the date of transfer. The tax authorities will have to proportionately reduce the accrued penalties from the amount of the untimely transferred advance payment for 9 months.

For those who take into account expenses, at the end of the year it is necessary to calculate the tax at the usual rate and the minimum tax (clause 6 of article 346.18 of the Tax Code of the Russian Federation). The one with the higher amount will be paid.

Situation #2.

The amount to be paid is negative. It turns out that for the year you have to transfer the "simplified" tax less than you have already paid for the first quarter and half a year. Then you can not transfer the advance accrued for 9 months at all.

As for penalties, following the recommendations of the Ministry of Finance noted above, in this situation they should be reduced to zero. After all, the annual amount of tax is less than advance payments for the first quarter and six months. And you paid them without delay. However, keep in mind that the order in which tax authorities reduce penalties is not clearly regulated. It is unlikely that inspectors will automatically reduce the amount of penalties. Therefore, find out this issue in the inspection as soon as you hand over the annual declaration on the simplified tax system. And be prepared for the fact that you will have to submit additional applications and argue with the inspectors, defending your case.

Situation No. 3. The surcharge is greater than or equal to the accrued advance payment for 9 months. Then transfer the entire accrued advance payment for 9 months as soon as possible. Because late fees are increasing daily. And you can transfer the rest of the amount to be paid later - until the end of March next year, if you keep records in the company. Or until the end of April, if you work for an individual entrepreneur (clause 7 of article 346.21 of the Tax Code of the Russian Federation). List the late fees along with the advance payment. Calculate the amount of penalties using the formula:

Calculate the number of days late. The first day is October 27 (since the deadline for paying the advance payment for 9 months is October 26, since the 25th is a day off). The last day is the day you made the advance payment.

Please note: since September 14, 2012, the refinancing rate of 8.25% has been in effect (Instruction of the Central Bank of the Russian Federation of September 13, 2012 No. 2873-U). And so far she hasn't changed. Therefore, in the calculation, use it.

tax or filling

If an error occurred in the calculation of the tax, then Article 81 of the Tax Code requires filing an amended declaration for this tax if the error led to an underestimation of the tax. In case of overpayment of tax, filing a “clarification” is a right and not an obligation.

In accordance with Article 78 of the Tax Code, overpayment can be:

offset against the subsequent payment of the relevant type of tax;
set off against the repayment of debts on the relevant types of taxes, fines;
return to the company's bank account.

In order for the tax authorities to credit the overpayment against further payments for the same or other taxes, the company must submit an application in the form approved by Order No. ММВ-7-8/90@ dated March 3, 2015. Upon receipt of this document, the tax authorities within 10 days will make a decision on the offset. Five more days are given to the inspection in order to inform the firm of its decision.

Here is a sample application for a “simplified” tax offset:

If you want to pay off the arrears on one tax by overpaying on another, you do not need to apply.

The inspectors will decide on such offset independently. They will do this within 10 days after they discover the overpayment, or after your company and the inspectorate sign a joint reconciliation act.

Having made a decision, the tax authorities are obliged to inform you about it within five days. However, this does not mean that, having discovered an overpayment on your own, you should wait until the tax authorities do it.

Having found the "extra" payment before the inspectors, the company can apply for a set-off of arrears. The refund of overpaid tax must be made by the tax authority within one month from the date of receipt of the application.

However, this will happen after the overpayment is credited against your debt to other taxes of the corresponding type.

As a result (if you have such a debt), the difference between the overpayment and the repaid debt will “return” to the current account (unless, of course, the amount of overpaid tax turned out to be sufficient).

If the tax office violates this deadline, it will have to pay you interest for each day of delay based on the refinancing rate

On March 4 of the current year, Passive LLC brought to the tax office an application for a refund of an overpayment of tax in the amount of 20,000 rubles.

The monthly return period expired on April 4, but the money was credited to the account only on April 20, that is, the delay was 16 days.

The refinancing rate all this time was equal to 10.5% per annum.

The tax inspectorate must pay interest to the "Liability" in the amount of:

20 000 rub. × 10.5% : 365 days × 16 days = 92 rubles.

You can set off overpaid amounts only within the limits of taxes of one type (clause 1, article 78 of the Tax Code of the Russian Federation). For example, you can offset federal taxes only against federal taxes, regional taxes against regional taxes, and local taxes against local taxes. It will not work to send an overpayment of federal tax to the expense of regional or local tax, and vice versa. For example, the simplified tax system, personal income tax are federal taxes, and land taxes are local taxes (Articles 13 and 15 of the Tax Code of the Russian Federation). So, send an overpayment under the simplified tax system to pay off the arrears on land tax it is impossible (letter dated December 13, 2011 No. 03-05-06-01 / 86).

By the way, it is allowed to offset the overpayment of tax to one budget and the underpayment of the same tax to another budget.

If the overpayment is not credited or returned, you can go to court.

Often, the tax authorities refuse to set off or refund the overpayment, since its amount, due to fault, did not go to the budget or an off-budget fund.

They are wrong: the tax is considered paid from the moment when the bank accepted from you payment order for his listing. Of course, provided that there was enough money in the account.

About what actions an organization or entrepreneur should take in order to set off the “simplified” tax, read in the “STS in practice” beator

Refund of overpaid tax

The procedure for the return of overpaid "simplified" tax is no different from the procedure for the return of any other tax "overpaid" to the budget.

note

Currently, there are standard samples of applications for offset and tax refund. They were approved by Order of the Federal Tax Service of March 3, 2015 No. ММВ-7-8/90@. Until that time, we recall that companies and entrepreneurs filed applications for crediting or refunding tax payments in a free form.

You can return the overpayment of the simplified tax tax in two cases:

if you yourself overpaid the tax;
if the tax authorities made additional charges to you, and you challenged them in the Federal Tax Service or in court and proved that they are illegal.

In such situations, you can return the overpaid amounts only to the current account. Overpayments are not refunded in cash.

And entrepreneurs have the right to indicate in the application for a tax refund the account of their personal bank card(determination of the Supreme Arbitration Court of the Russian Federation dated September 17, 2013 No. VAS-12390/13). At the same time, three years should not elapse from the moment the excess amount of taxes was paid (clause 7, article 78 of the Tax Code of the Russian Federation). Calculate three years from the date of filing the declaration for a year, but no later than the deadline for its submission (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 28, 2011 No. 17750/10, letter of the Ministry of Finance of Russia of June 15, 2012 No. 03-03-06 / 1/309).

To return the overpayment, submit an application to the IFTS in the form approved in Appendix No. 8 to the order of the Federal Tax Service of Russia dated March 3, 2015 No. ММВ-7-8 / 90@.

In the application, indicate the name of the inspection and your details: the name of the company or the surname, name, patronymic of the entrepreneur.

Also fill in the basis for the return - the article of the Tax Code, in accordance with which the return is made. For overpaid amounts, this is article 78 of the Tax Code, and for overcharged amounts - article 79. And mark the type of overpayment - what amount you want to return: overpaid or overcharged.

Then indicate the tax for which the overpayment was formed, and the period to which it relates, KBK and OKTMO, as well as the amount you are asking for a refund, in full rubles, in numbers and in words.

Here is a sample application for a "simplified" tax refund:

Inspectors will return the overpayment only to the current account. Therefore, be sure to indicate in the application the details of this account, to which the tax authorities must transfer money to you: the name of the bank, correspondent account, BIC, TIN, KPP, the account number of the company or businessman itself. In addition, be sure to underline in the application who exactly returns the overpayment - the taxpayer, the payer, or Put the date and signature of the person who returns the overpayment.

Submit the application to the IFTS on paper or in electronic form (clauses 4, 6 of article 78 of the Tax Code of the Russian Federation). Within 10 days from the date of receipt of your application for a tax refund or from the date of signing the act of joint reconciliation of taxes paid, if such a joint reconciliation was carried out, the tax inspectorate must decide on the return of the overpaid or collected tax (clause 8 of article 78 of the Tax Code of the Russian Federation) . Within five working days from the date of the decision, the tax authorities are obliged to inform you of the decision (clause 9, article 78 of the Tax Code of the Russian Federation).

The inspection will return the overpayment within a month after it receives an application from you (clause 6, article 78 of the Tax Code of the Russian Federation). But if you have tax arrears identified during the tax reconciliation, then they will be paid off first of all. And the controllers will return the rest of the funds to you. If the tax inspectors violate the monthly deadline, then you are entitled to interest for the delay in the return. They are charged for each calendar day of delay based on the refinancing rate of the Bank of Russia (clause 10, article 78 of the Tax Code of the Russian Federation).

How to return an overpayment for a “simplified” tax to a current account, read in the “STS in practice” berator

What to do if the tax office erroneously charged you

The Tax Inspectorate can indisputably collect unpaid taxes, penalties and fines from the accounts of firms.

It may happen that the tax office deducted money from your company's account by mistake (for example, you paid the tax, but for some reason the tax office did not receive a payment order, and it considered you a debtor).

If this happens, the tax authorities must return to you the overcharged amount and the interest accrued on it (clause 5, article 79 of the Tax Code of the Russian Federation).

If you have debts to the budget to which the tax was collected, you must return the part of the deducted amount that remains after it was set off to pay off the debts.

To return the money excessively collected by the tax authorities, submit an application to the tax office in the form approved by order of the Federal Tax Service of Russia dated March 3, 2015 No. ММВ-7-8/90@.

We gave an example of filling out an application for the return of a “simplified” tax from the budget in the situation “Return of overpaid tax”

The application must be submitted within one month from the date when you became aware of the debiting of the excess amount from your company's account.

In practice, this period is counted from the day following the day the money is debited from the account.

If you miss the monthly deadline, you will have to apply for a refund in the arbitration court. You can do this within three years from the day you became aware of the write-off.

The tax office must make a decision on your application within 10 working days from the date of its receipt. Within a month, starting from the same moment, the tax authorities must return the money to you.

That is, a month is the period no later than which the money should be in your account.

All the time, from the day the money is debited to the day they are returned, inclusive, interest is accrued in the amount of the refinancing rate of the Bank of Russia.

On September 5, the tax authority returned the money back to the company's account, that is, 36 days have passed since the write-off.

The tax office must pay interest to the company in the amount of:

60 000 rub. × 10.5% × 36 days : 365 days = 621.37 rubles.

If the overpayment is not returned to you on time, you can apply to the arbitration court.

What to do if the tax office erroneously collected tax from you, read in the “USN in practice” berator

In carrying out its activities, an economic entity must, in the presence of a tax base, calculate and pay mandatory payments to the budget. Sometimes the situation develops in such a way that either he himself allows an overpayment on any tax, or the IFTS removes the tax without acceptance. At the same time, the legislation provides for the refund of overpaid tax.

If the subject sees an overpayment on mandatory payments, then first you need to figure out how it arose.

This may be the case if:

An error has been made in the payment of tax.
If the advance payments for the year ended up being more than in the annual declaration (for example, an overpayment of income tax or an overpayment of the simplified tax system is reflected according to the results of the year in).
The use of tax benefits when the tax is paid by the legal entity and withdrawn by the decision of the Federal Tax Service, etc. at the same time.

Overpayment of taxes can be returned only when the tax authorities agree with this fact. The Tax Code of the Russian Federation establishes that the IFTS must inform the payer about this within 10 days from the moment the excess payment is discovered so that he can make an appropriate decision. But in practice this is very rare.

However, the taxpayer himself has the right, upon detection of an overpayment, to apply for a refund of the amount of overpaid tax. Before that, it is advisable for him to conduct a reconciliation with the IFTS according to the calculations. This may not be done, then the inspectors of the Federal Tax Service, if questions arise, will be asked to provide a number of documents that confirm the fact of overpayment.

buchproffi

Important! The taxpayer must also remember that the refund of overpaid tax is possible only if three years have not passed since the overpayment.

If the overpayment arose due to the fault of the tax authorities, then this amount of tax can be returned within one month from the moment the taxpayer learned about it, or from the date of entry into force judgment.

However, in the latter case, the IFTS may take advantage of the time within three months to verify the fact of the overpayment and make a decision on the return.

In which case it is not possible to return the money

There are also situations when the IFTS issues a refusal to refund the overpayment of tax. Quite often, this is due to the fact that taxpayers miss the statute of limitations established by law in the form of three years - if the tax overpayment arose through the fault of the enterprise, one month - when the inspection itself is to blame.

Here, proof of the time of discovery of the fact of overpayment of tax is of great importance. If the taxpayer has the opportunity to submit them, and they do not go beyond the established deadlines, then through legal proceedings it is possible to achieve the return of the overpaid tax.

Attention! A refusal to refund an overpayment of tax can be obtained if the company has arrears to the budget. Indeed, in this case, the IFTS is given the right to conduct an offset without acceptance.

Return or offset - which is better

In addition to the tax refund, the taxpayer has the right to ask the IFTS to offset the amounts of the resulting tax overpayment against the company's existing obligations to the budget.

However, when counting excess tax restriction applies. It can be produced only on taxes within the same budget (federal, regional or local).

In most cases, the decision to return or set off is made only by the taxpayer (in the absence of tax debts). Therefore, each business entity decides on its own whether it is better to offset or refund, assessing the current situation in specific conditions, as well as the amount of the amount of overpaid tax.

Attention! The tax authorities always give preference to offset, as this will allow them not to return the money. Therefore, the offset procedure is much faster and requires fewer documents than a refund. Taxpayers should also take this fact into account when making decisions about it.

In addition, it matters in what status the tax overpayment occurred. After all, if an excessive payment was made by a tax agent, then he cannot take these amounts into account for obligations where he acts as a taxpayer. Only returns are possible here.

A special form KND 1150058 has been developed for it. It was updated in 2017, and now it looks more like a declaration. The application must indicate the name of the company, the amount of the overpayment, the CCC for tax, the details of the taxpayer's current account.

The completed document is transferred to the Federal Tax Service in several ways:

In paper form personally by the taxpayer or his representative by proxy;
Postage with acknowledgment of receipt;
In electronic form via the Internet, but this will require.

The tax refund process can be divided into several stages:

Determine if an overpayment has occurred. This can be done, for example, by requesting a tax reconciliation act from the Federal Tax Service. From the document it will be clear for what tax and in what amount there was an excessive transfer of funds.
Submit a return request. It must contain information about the company, the amount to be returned and the details of the bank account to which this must be done;
Submit an application to the tax office in person or through a representative, by mail or via the Internet;
After 10 days, receive the result of the consideration of the application. If the authority unlawfully refuses to return, prepare documents for taking the case to court;
Within a month from the date of filing the application, the Federal Tax Service must return the funds to the current account;
If the time is up, but the enrollment has not been made, write a complaint to the higher inspection and prepare documents to take the case to court.

How to offset overpaid tax

If the taxpayer decides not to make a refund of the overpaid tax, he can offset it:

On account of further payment of the same tax;
To pay off a debt on other unpaid tax.

When making an offset, it is necessary to follow the rule - a payment can only be offset within the budget of the same level. Those. an overpayment on a federal tax will be credited only to another federal tax, on a regional one - to another regional tax, etc.

The Federal Tax Service has the right, upon detection of an overpayment, to independently make an offset with an underpayment for another tax. The consent of the company in this case is not required for it.

To make an offset, it is necessary to submit a special form of KND 1150057.

Attention! You can make an offset within 3 years from the date of the overpayment.

Terms of return and offset

If the company wants to offset the excess amount of tax against future payments, it is necessary to submit an application to the Federal Tax Service. Tax officials must review the document within 10 days and then, within another 5 days, inform the taxpayer of the decision.

If the tax authority independently decides to set off the overpayment of one tax against the underpayment of another tax, the inspector must do this within 10 days from the fact of the discovery of the overpayment. And also, within 5 days, the body must report the decision.

If the amount of the overpayment is greater than the amount of the underpayment, then the tax authority must make a set-off and return the balance of the overpayment to the current account within 1 month. If this period is violated, the taxpayer is entitled to interest.

Attention! If you only need a refund of the overpayment of taxes, then you need to submit an application using a special form. The body considers it within the same time frame (10 days), after which it returns it within a month. If the terms are violated, but it is necessary to sue, and demand not only the return of the overpayment, but also interest. You can sue within 3 years.

What to do if the tax was written off by mistake

The tax authority is entitled to withdraw unpaid amounts of taxes, fines or penalties from the taxpayer without the approval of the taxpayer.

Sometimes such actions are performed by mistake - for example, the authority did not receive a payment order, or the taxpayer himself made a mistake and indicated the wrong details, CCC number, etc.

If such an event nevertheless occurred, then the tax office is obliged to return the illegally withheld amount. If the company has debts for any other taxes, then part of this payment can be used to pay them off, and the remaining funds are returned.

To make a refund, you must submit a written application to the Federal Tax Service in free form. In it, you need to state the circumstances of the case, attach a supporting document (payment with tax transfer), indicate bank details for the refund.

buchproffi

Important! The application must be submitted within 1 month from the date of the illegal write-off. If this period is missed, then it will be possible to return the amount only through a trial. Three years are allotted for this.

It takes 10 days to process the submitted application. Further, 1 month is given to the body to return the amount to the current account.

The tax office does not want to make a refund - what to do

The tax authority may delay the processing of the submitted application and not issue a refund. In this case, you should not sit waiting for the payment, but move on to active actions.

First you need to make sure that the correct details for the refund were indicated in the application. This can be done on a copy of the document that the submitter has left.

If the tax inspector refuses to accept the application, which he does not have the right to do, you can send it by registered mail with notification, or via the Internet. In the latter case, it is necessary to have a qualified digital signature.

When talking with an employee of the Federal Tax Service, it is necessary to refer to the fact that the Tax Code sets a tax refund deadline within a month from the date of receipt of the application. There is no mention of any verification.

If, after the time allotted by law for processing the application and refunding the overpaid tax, the tax authority does not take any action, it is necessary to start writing complaints. This must be done only in writing and sent by mail with notification. By law, the body is obliged to respond to the request also in writing.

Calling and verbally trying to resolve the issue is not worth it. Such appeals are not recorded anywhere, you can promise anything over the phone, but during the trial it will not be possible to connect this to the case.

Attention! If all deadlines have expired, but there is still no return, it is necessary to issue statement of claim and go to court. In it, it is necessary to demand the return of not only the excessively transferred tax, but also interest for late payment.

It should be noted that almost all such proceedings end in favor of the taxpayer. The court takes the side of the body only in cases of violations in the execution of submitted documents.

“How many times have they told the world ...” Such words come to mind when for the next “th” time you get the question of what to do if advance payments were paid on the simplified tax system more than they should during the year. It seems to be in our own interests to prevent this, isn't it? Why lend to the budget completely free of charge. But from year to year the situation repeats itself again - and hello again, overpayment under the simplified tax system.

Where the overpayment under the simplified tax system comes from: the leaders of the "hit parade"

Hit parade leader situation like:

During the year, the IP on the simplified tax system "income" paid advance payments on income. All contributions for the year were paid in December and their amount is greater than the tax payable for the year (how to pay contributions to prevent this overpayment is mandatory).

On the 2nd and 3rd place of the hit parade "Overpayment on the simplified tax system" the following situations:

Insurance premiums were also paid during the year, but the amount of all advance payments based on the results of the 1st quarter, half a year and 9 months turned out to be more than the amount of tax for the entire year (for example, on the simplified tax system "income-expenses", if there was little income in the 4th quarter, and the costs are many).
Error in payment or calculations. Perhaps, when calculating advance payments, the accountant made a mistake and counted an extra advance on tax payable. Or an error could occur during the formation of the payment.

Taxpayers applying the simplified tax system must pay a single tax at the end of the year by March 31 of the next year (for organizations) or until April 30 (for individual entrepreneurs). But what to do if the tax is already overpaid?

In this situation, the reason for the overpayment does not matter. What matters is what to do next. But first, a small example on the topic (we take the simplest numbers - for clarity, and in another article read how it is done for both objects of taxation).

Overpayment under the simplified tax system on an example

Let's take a look at an example we've already looked at. IP Sumkina is engaged in retail trade in Chinese suitcases through an online store, is located on the simplified tax system with the object "income". There are no workers. Revenues for the current year are summarized in the table:

Suppose that in our example, an individual entrepreneur on the simplified tax system pays insurance premiums as follows: the entire fixed part was paid in December - 27990 rubles, and contributions from the excess - in January 9100 rubles.
Then advance tax payments would be made in full, without reduction:

For the 1st quarter: 250,000 * 6% = 15,000 rubles.
According to the results of the half year: 600,000 * 6% - 15,000 = 21,000 rubles.
Based on the results of 9 months: 980,000 * 6% - 15,000 - 21,000 = 22,800 rubles.

At the end of the year: 1,210,000 * 6% - 27,990 - 15,000 - 21,000 - 22,800 = - 14,190 rubles.

A minus according to the results of calculations means that there is an overpayment under the simplified tax system. What to do with her?

What to do with tax overpayment?

First of all, you need to do Act of reconciliation with the tax office. You can request a reconciliation report through many programs designed to send reports. You can also conduct a reconciliation directly at the inspection by writing an application.

After confirming the fact of the overpayment, the taxpayer has 2 options on how to dispose of the overpayment:

set off against future payments(clause 4, article 78 of the Tax Code of the Russian Federation),
return to account(clause 6, article 78 of the Tax Code of the Russian Federation). This option is possible only if the company has no debts to the tax authorities for other taxes (penalties, fines). If there are arrears, the IFTS will independently set off the tax overpayment under the simplified tax system against the taxpayer's debts to the budget (clause 5, article 78 of the Tax Code).

How to offset the overpayment on the simplified tax system against future payments

The offset of the overpayment is carried out on the basis of the application of the taxpayer. It can be transmitted both in paper form and in electronic form, certified by an EDS (electronic digital signature), through TCS (telecommunication communication channels).

The application is written in free form. Do not forget to indicate the details of the organization or individual entrepreneur, the period of occurrence of the overpayment, the tax for which the overpayment was formed, and also how you want to offset the amount - against which tax and for what period. The tax authority is obliged to offset the overpayment under the simplified tax system against future payments within 10 days from the date of receipt of the taxpayer's application.

Refund of overpayment under the simplified tax system from the IFTS

Refunds are also made at the request of the taxpayer. In addition to the data provided in the application for offset, be sure to indicate the bank details to which the payment should be received.

The refund of the overpayment under the simplified tax system is made within 1 month, which is counted from the date of filing an application for a refund (clause 6, article 78 of the Tax Code). However, this period may turn out to be longer, because before returning the tax, the IFTS will check the fact of excessive payment. This happens during a camera check. tax return, which is made within 3 months from the date of filing the declaration (Article 88 of the Tax Code). Therefore, the total return period can be up to 4 months in total.

What is the best thing to do if there is an overpayment of taxes on the simplified tax system?

It's up to the taxpayer to decide, of course. However, there are a few things to keep in mind:

The IFTS does not like to return money if it is a significant amount. If you plan to return a large amount, get ready for additional checks and requests documents.
When making payments, some banks take commission for each payment. Calculate whether you will lose extra money if you first return the overpayment from the budget, and after a few months again transfer the money to the budget as an advance payment under the simplified tax system. This is especially true if you have a small overpayment on taxes on the simplified tax system.

If you need advice on calculating insurance premiums, calculating tax, or help with filing an application, write to me on the page. Find out how I can help Internet entrepreneurs, take a look at the page.

Illustration: Irina Grigorieva / Clerk.ru

The main industry event of the autumn can be considered the adoption, which introduced large-scale amendments to tax code. One of these amendments - a change in the procedure for offsetting and returning overpayments, became the subject of consideration of a topical issue. About what's new new law in the procedure for offsetting or refunding tax, as well as what difficulties an organization may encounter if the tax authorities refuse to offset or refund overpaid taxes, is set out in our material. Examples given judicial practice will help to optimally dispose of the overpayment, taking into account the experience of other taxpayers.

Four innovations in the order of offset or refund of overpayment

Article 78 of the Tax Code of the Russian Federation on the offset or refund of amounts of overpaid taxes, dues, insurance premiums, penalties, fines has been amended. So, from 01.10.2020, the following amendments come into force.

The provision that offsetting overpayments is made exclusively against the same type of tax: federal against federal, regional - against regional, local - against local is completely invalidated. This innovation will allow taxpayers to manage their funds rationally.

It turns out that from 01.10.2020 it will be possible to set off, for example, an overpayment of income tax against transport tax arrears, despite the fact that transport tax is regional, and the overpayment arose from federal tax. That is, it will be possible to offset the overpayment of taxes of any kind. It can also be set off against penalties and fines relating to any type of tax.

Another positive innovation is an amendment that allows offsetting or refunding overpayments by any tax authority, and not only at the place of registration of the taxpayer (paragraph “b”, paragraph 22, article 1 of the law). This innovation will simplify the set-off procedure, however, an application for set-off and return will have to be submitted, as before, to the inspection at the place of registration of the company (clauses “g”, clause 22, article 1 of the law).

These positive innovations resulted in tougher requirements for tax refunds. It will be possible if there is no arrears on any tax and related penalties and fines. Today, the absence of arrears in the same type of tax is sufficient (paragraphs “e”, paragraph 22, article 1 of the law). Thus, with the adoption of the amendment, it will become even more difficult to return the overpayment from the budget.

In addition, from 10/29/2019, a new regulation has come into force on the deadline for making a decision on offsetting or refunding overpayments during a desk audit. This period will depend on:

from the date of completion of the check;
from the entry into force of the decision thereon.

This period will be counted:

after 10 days from the day following the day of completion of the audit, or the day when it was supposed to end;
from the day following the day of entry into force of the decision on the inspection that revealed violations (paragraphs "and" paragraph 22 of article 1 of the law).

Overpayment: how to return or set off

For both offset and tax refund, you must contact the IFTS with an application. If the reason for the overpayment was an error in the declaration, then you must first submit an amended declaration with the corrected error. Only then can you apply for a refund or offset of the overpayment.

The application deadline is general. It is three years from the date of payment or excess payment of tax. If we are talking about the return of overpayment due to the excess of advance payments to the amount of tax for the year, three years are counted from the date of filing the annual declaration - clause 7 of Art. 78 of the Tax Code of the Russian Federation.

The term for making a decision on both the return and offset of the tax is 10 working days from the date of receipt of the application or the end of the desk audit on the revised declaration - clause 8 of Art. 78 of the Tax Code of the Russian Federation. If the inspection proposes to undergo a reconciliation of calculations, then from the date of signing the reconciliation report. The IFTS is obliged to inform about the decision to return or set off within five days - clause 9 of Art. 78 of the Tax Code of the Russian Federation.

The term for the return of the overpayment is one month from the date of receipt of the application, even in the case of reconciliation of calculations. If the overpayment is revealed according to the revised declarations - a month after the end of the "camera house" - clause 6 of Art. 78 of the Tax Code of the Russian Federation, .

Violation of the deadline for the return of the overpayment threatens the IFTS with the payment of interest - clause 10 of Art. 78 of the Tax Code of the Russian Federation. With regard to untimely offset, no interest is accrued on the amount of the offset. The only thing that remains is to appeal against the inaction of the inspection.

If the inspectorate refuses to refund the overcharged tax, then it will inform about its decision, indicating the reason for the refusal.

A refusal to return or set off can be appealed first to a higher tax authority, and then in court (Article 137, paragraphs 1, 2 of Article 138 of the Tax Code of the Russian Federation,). The term for appeal is one year from the moment when the taxpayer knew or should have known about the violation of his rights.

The deadline for filing a claim with the court for the refund of overcharged tax is three years from the date when the taxpayer found out or should have found out about the violation of his right to a refund or offset (clause 1, article 196, clause 1, article 200 of the Civil Code of the Russian Federation). Such a day may be, for example, the date when the inspection announced the decision to refuse the return (Resolution of the AC of the North-Western District of July 27, 2017 No. Ф07-6490 / 2017).

In court, it is necessary to prove that the three-year period has not yet expired, and also that the organization really has amounts of excessively collected taxes. Otherwise, the return will be refused.

Personal income tax can be offset against future payments, but only for other types of taxes

The Ministry of Finance spoke about the possibility of set-off erroneously transferred amount according to the details for personal income tax to pay off the debt on the simplified tax system.

Office, referring to Art. 78 of the Tax Code of the Russian Federation, confirmed that such a set-off is possible, but for taxes of the corresponding type, that is federal taxes. In this case - at the expense of the USN.

Editor's note:
Thus, the amount of the personal income tax overpayment can be offset against the payment of other federal taxes. These include VAT and income tax. The same conclusion follows from the letter, which states that the personal income tax offset is feasible:
in repayment of debt - for taxes of the corresponding type (federal);
on account of future payments - for other taxes.

Summary: it is difficult to return or set off personal income tax, but it is possible. First you need to determine how the overpayment arose, further actions will depend on this. If it was formed due to excessive payment, for example, as a result of an error in a payment, you can either return it from the budget or set it off against arrears or future payments on other federal taxes. To do this, you must submit an application for a refund or offset to the inspection. Refunds are made in the following cases:
if the tax is withheld, listed and for its return own funds company is missing.
the tax is withheld correctly, but transferred to the budget in a larger amount.

Payment can be made to:
arrears or future payments on other federal taxes;
arrears in interest on federal taxes, as well as tax penalties.

The impossibility of offsetting overpaid personal income tax against future payments is explained by the fact that payment of this tax should occur exclusively at the expense of individuals, and not the company as a tax agent (clauses 1, 14, article 78, clause 9, article 226 of the Tax Code of the Russian Federation) . From 01.01.2020 from this rule there is an exception in the situation when the tax is additionally assessed (collected) on the basis of tax audit if personal income tax is not unlawfully withheld (withheld not in full) (clause "c", clause 16, article 2 of the Federal Law of September 29, 2019 No. 325-FZ). So, from next year, the additional accrued personal income tax can be paid at the expense of own funds. This will make it possible to reduce the size of the penalties.

If the overpayment was formed due to the withholding of a tax from an individual in a larger amount than necessary, it can only be returned in a special order.

In addition, it must be remembered that it is possible to return or set off an overpayment for personal income tax within three years after its transfer to the budget.

The reconciliation act does not oblige the tax authority to return the overpayment

On March 15, 2018, an individual entrepreneur applied to the IFTS with an application for a refund of overpaid tax for 2013. The overpayment was discovered based on the results of the submission of an updated declaration on August 14, 2017 and the subsequent reconciliation of calculations with the tax authority. Referring to the missed three-year deadline for filing an application from the date of payment of the tax, the Federal Tax Service refused to refund.

The court recognized this decision as correct. The fact is that nothing prevented the taxpayer from assessing their tax liabilities in a timely manner. The disputed amount of overpaid tax was paid by the entrepreneur in 2014, that is, four years passed from the moment of payment to the filing of an application for a refund.

The applicant's reference to the reconciliation act as the moment from which he learned about the fact of the overpayment was rejected by the court. The signing of a reconciliation act is not an act of recognizing a debt to a taxpayer, since the taxpayer can apply for a reconciliation act after any period of time, and the tax authority will be required to draw up and sign the corresponding act. The reconciliation act does not testify to the unconditional obligation of the tax authority to return the overpayment, and the date of its compilation is not the moment for starting the countdown of the limitation period for filing a lawsuit.

Statement of settlements with the budget - insufficient proof of overpayment

The IFTS refused to refund the company's overpayment of taxes. The courts upheld this position for the following reasons:

the applicant did not submit documents confirming the existence of an overpayment;
the tax periods for which the disputed overpayment of taxes was formed have not been determined.

The court pointed out that the right to a refund is directly related to the presence of an overpayment of tax amounts to this budget and the absence of tax arrears credited to the same budget, which is confirmed by certain evidence:

payment orders of the taxpayer;
collection orders (orders) of the IFTS;
information on the fulfillment by the taxpayer of the obligation to pay taxes contained in the database of the tax authority.

The presence of an overpayment is revealed by comparing the amounts of tax payable for a certain taxable period, with payment documents related to the same period, taking into account information about the taxpayer's settlements with budgets.

Submission of a statement on the state of settlements with the budget cannot be considered as sufficient proof that the taxpayer has overpaid tax.

Reorganization does not increase the repayment period

Chemical Engineering Plant LLC applied to the arbitration court to declare illegal the decision of the Federal Tax Service Inspectorate to refuse to set off the overpayment of corporate income tax in the amount of 3.6 million and to oblige to set off the specified overpayment of income tax against current payments. The first instance of the taxpayer supported. The decision was overturned by the county court. The Supreme Court found no grounds for reviewing the colleagues' verdict.

The fact is that the overpayment went to the plant from another organization in the order of succession as a result of the reorganization. The reason for the refusal was the missed three-year period for applying for a credit (refund) of the amount of overpaid tax.

The specified period is calculated from the date of filing by the legal predecessor of the company of the declaration on income tax for 2013. At the same time, the subsequent transfer to the company as the legal successor of the right to offset (refund) the overpaid tax did not affect the procedure for calculating the period.

The plant's arguments that before the reorganization it did not know about the presence of an overpayment and could not declare a refund until the completion of the accession process, the court rejected, indicating that the period should be calculated from the day when the predecessor filed a declaration. The transfer of the right to set off or return upon reorganization does not affect the determination of the term.

Overpayment does not arise if it is paid through a problem bank

The Supreme Court of the Russian Federation refused to review the dispute in which the company demanded the return of the overpayment of personal income tax.

The organization had to pay the tax twice, because the first payment did not go through due to lack of funds in the bank's correspondent account. The second payment was successfully credited to the budget.

The courts of lower instances agreed with the inspection that there were no reasons for the return of funds, because for the first time the money was actually not received by the budget. And if so, then there is no overpayment.

The courts indicated that the organization should have known about the problems of the bank.

Moreover, even in situations where the courts recognize the obligation to pay as fulfilled, it is very difficult to return the overpayment.

Editor's note:

Since in such a situation it will not be possible to return or offset the overpayment, the only way to return the money is to contact the problem bank with an application for the return of the missing amounts and, in case of refusal, sue.

The moment of reporting is not the starting point for counting the tax refund period

The IFTS did not return the excessively transferred personal income tax to LLC due to the expiration of the deadline for filing an application for a tax refund.

According to the company, the tax authority refused unlawfully, since the final tax base is formed precisely at the time of filling out the 2-personal income tax forms and therefore the period should be counted from it, and not from the moment the funds are transferred.

The court stated that the transfer to the budget of an amount that actually exceeds the amount of personal income tax withheld is not a payment of personal income tax at all, but is considered as an erroneously transferred amount. This circumstance is confirmed by the calculation of the amount of tax withheld and transferred, provided by the tax agent. Therefore, in this case, the return of the erroneously transferred amount is carried out according to the general rules of Art. 78 of the Tax Code of the Russian Federation.

Since the deadline for filing an application for the return of the disputed amount was missed by the company, the court recognized the refusal of the tax authority to return part of the amount as legitimate.

The results of checking the countdown of the three-year period for the return of overpayment do not change

An on-site tax audit in relation to Khlebozavod JSC in August 2014 revealed an overpayment of personal income tax in the amount of 2 million rubles. Reflecting this fact in the act, the inspectors pointed to specific payment orders for January 2012. In addition, the company was asked to apply for a refund. Moreover, the wording of the refund was qualified not as a tax, but as an amount that is not personal income tax and erroneously transferred to the budget. The organization challenged the decision on the inspection, made on September 30, 2014, on an occasion not related to the tax refund, in court (03/23/2016), but lost. And only after that, already on 04/01/2016, the company applied to the Federal Tax Service with an application for the return of 2 million rubles of personal income tax overpayment.

The inspectorate returned part of the tax, part of it was credited, the refund of the balance in the amount of 1.6 million rubles was denied to the company on April 13, 2016 due to the expiration of a 3-year period from the moment the tax was transferred.

The society failed to challenge the refusal. The thing is, the deadline for going to court has expired. The payments were made in January 2012, the application was filed with the court on March 23, 2017, that is, five years later.

The arguments of the company that it became known to him reliably about the amount of the overpayment from the act of the on-site tax audit (in September 2014) and from the court decision (03/23/2016), the court rejected - three years must be counted from the date of payment orders.

The silence of the inspectorate about the overpayment does not affect the three-year period for its return.

According to the certificate on the status of settlements with the budget dated December 6, 2017, the entrepreneur had an overpayment of tax in the amount of 434 thousand rubles. By decisions of the tax authority dated December 15, 2017, the IP was denied a refund of taxes due to the expiration of a three-year period from the date of their payment, provided for in paragraph 7 of Art. 78 of the Tax Code of the Russian Federation.

The overpayment was formed in connection with the submission by the entrepreneur of an updated VAT return for the 2nd quarter of 2011, according to which the taxpayer adjusted the amounts of tax previously accrued for payment in the amount of 434 thousand rubles.

The court concluded that the applicant missed the three-year deadline for applying for a refund of overpaid tax, since the applicant found out (should have found out) about the excessive payment of tax in 2011 - at the time of its transfer to the budget.

The norm of paragraph 3 of Art. 78 of the Tax Code of the Russian Federation on the obligation of the inspection to report each fact of excessive payment of tax within 10 days from the date of its discovery does not apply in this case. The fact is that the taxpayer knew about the overpayment. This confirms the fact that he submitted a primary and revised declaration and voluntary payment of tax.

Thus, failure to inform the taxpayer by the tax authorities does not affect the three-year period for the return of the overpayment.

Determination of the Supreme Court of the Russian Federation of March 19, 2019 No. 304-ES19-1659

You can return the overpayment of insurance premiums to the Pension Fund of the Russian Federation if the individual entrepreneur paid them for himself

For an individual entrepreneur managed to challenge the denial pension fund in the return of overpayments on insurance premiums to the Pension Fund for 2014, 2015 in the amount of 59 thousand rubles.

The fund's argument that the refund of the amount of overpaid insurance premiums is not made if the information about the contributions is already reflected in the accounting data and posted to the individual personal account of the insured person, the court rejected. The reason is that based on the provisions of paragraph 6.1 of Art. 78 of the Tax Code of the Russian Federation, as well as the provisions of the Law of April 1, 1996 No. 27-FZ “On Accounting”, restrictions on the return of overpayment of insurance premiums are established in relation to insurance premiums accounted for in relation to individuals who are employees of the entrepreneur. In the situation under consideration, it was about contributions paid by the entrepreneur for himself personally. Therefore, the restriction does not apply in this case.

If the overpayment is confirmed by a court decision, the three-year period for its return is counted from it

Based on the results of an on-site tax audit in July 2014, the JSC was assessed additional property tax for 2010-2011.

The basis for the additional accrual was the conclusion of the inspectors about the incorrect revaluation of fixed assets carried out by the company as of 01/01/2010, as a result of which the value of the company's property was underestimated. In 2016, the court recognized the additional tax assessment as legal.

Since, on the basis of par. 1 p. 1 art. 264 of the Tax Code of the Russian Federation, the amounts of property tax are related to expenses taken into account when calculating income tax, the company adjusted its income statements for 2012 and 2013. The revised reports were accepted and registered by the inspectorate, but they were not included in the budget settlement card in the electronic data processing system due to the expiration of the statute of limitations. Therefore, according to the reconciliation act as of 01/01/2016:

according to the taxpayer - the overpayment of corporate income tax amounted to 5.8 million rubles;
according to the tax authority, the overpayment of corporate income tax amounted to 0.56 kopecks.

The company applied for a refund of income tax to the IFTS on April 19, 2017, and to the court on July 26, 2017.

The court, satisfying the taxpayer's claims, indicated that until the court's decision in 2016, the company had no reason to believe that it had incorrectly determined the property tax. The taxpayer was mistaken in good faith, taking into account incorrect data on the revaluation of fixed assets for calculating the tax. At the time of paying income tax in 2012, 2013 and when submitting the initial tax return, the company could not know about its excessive payment. Therefore, it is the adoption of a judicial act in 2016 that is the moment from which the three-year period for the return of overpayment of tax begins to run.

The three-year period is not missed if the reason for the delay is the settlement of disputes with counterparties

The company managed to challenge the refusal of the IFTS to offset (refund) the amount of tax and oblige to return the overpayment of income tax for 2013.

In December 2016 and March 2017, the company submitted an updated income tax return for 2013, in which the amount of tax payable was reduced. In December 2017, the company applied for a refund of the resulting overpayment of tax for 2013. The Inspectorate, referring to the fact that the company missed the three-year period for the return of the tax, established by paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, she refused to return the overpayment. As a result, the organization went to court.

All three instances supported the society. The fact is that the issue of the procedure for calculating the period for filing an application for the return of an overpayment to the court should be resolved in accordance with paragraph 2 of Art. 79 of the Tax Code of the Russian Federation. That is, taking into account the fact that such an application must be filed within three years from the date when the person knew or should have known about the fact of the overpaid tax.

The overpayment of income tax arose from the company in connection with a decrease in the previously declared amount of income for the following reasons:

settlement of disagreements with contractors in court and pre-trial order;
receive damages;
return of state duty;
an increase in previously reported costs for third party services.

These circumstances became known to the public after the filing of the initial declaration and payment of taxes, and the validity of the application for reducing the amount of tax payable was confirmed by the Federal Tax Service at the end of a desk audit of the last revised tax return. Therefore, the company actually found out about the overpayment only in December 2016 and March 2017, therefore, the company did not miss the three-year period for filing a claim for the return of the overpayment in court.

From what moment to calculate interest for the late return of the overpayment

In April 2017, the company applied to the Pension Fund of the Russian Federation for a refund of the overpayment of contributions, but did not receive a response to its application.

The court ordered the officials to return the money to the company, which they did in January 2018.

The company demanded to recover interest from the offenders for the time that had passed from the month following the appeal to the fund until the transfer was made. Officials retorted that since there was no decision to refuse the return, interest should accrue from the entry into force of the court verdict.

Three instances, including the district cassation, recognized the company's calculation as reasonable. Themis indicated that relations on insurance premiums for periods up to 01/01/2017 are regulated federal law dated July 24, 2009 No. 212-FZ. According to its provisions, the overpayment is refunded within a month from the date of receipt of the policyholder's application, and if this period is violated, interest is charged. Therefore, the date of the judgment in this matter is irrelevant.

Editor's note:

From 01/01/2017, the administration of insurance premiums is carried out in accordance with the norms of the Tax Code of the Russian Federation. Article 78 of the Code contains provisions similar to those applied by the judges in the ruling in question. According to paragraph 1.1 of this article, they also apply to the return of overpayments on insurance premiums.