Tax penalties are collected indisputably. Undisputed collection of arrears and fines

The obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees. The taxpayer has the right to fulfill the obligation to pay taxes ahead of schedule.

Failure to perform or improper execution the obligation to pay tax is the basis for sending by the tax authority, a body of a state extra-budgetary fund or customs authority taxpayer demands to pay tax.

In case of non-payment or incomplete payment of tax in fixed time The tax is collected from the funds in the taxpayer’s bank accounts, as well as by collecting the tax from other property of the taxpayer.

Tax collection from organizations is carried out in an indisputable manner, unless otherwise provided by this Code. Collection of tax from an individual is carried out in.

judicial procedure

Tax collection from an organization cannot be carried out in an indisputable manner if the obligation to pay tax is based on a change by the tax authority:

1) legal qualification of transactions concluded by the taxpayer with third parties;

2) legal qualification of the status and nature of the taxpayer’s activities. In case of non-payment or incomplete payment of the tax within the established period, the obligation to pay the tax is compulsorily fulfilled by foreclosure on the taxpayer’s funds or tax agent

in bank accounts. Tax collection is carried out by decision of the tax authority by sending to the bank in which the accounts of the taxpayer or tax agent are opened, a collection order (instruction) for write-off and transfer to the appropriate budgets ( off-budget funds ) necessary Money

from the accounts of the taxpayer or tax agent. The decision on collection is made after the expiration of the period established for fulfilling the obligation to pay tax, but no later than two months after the expiration of the deadline for fulfilling the requirement to pay tax. The decision on collection made after the expiration, is considered invalid and cannot be enforced. In this case, the tax authority may apply to the court to collect from the taxpayer or tax agent the amount of tax due (the application can be submitted within six months after the expiration of the deadline for fulfilling the requirement to pay the tax).

The decision on collection is brought to the attention of the taxpayer (tax agent) within six days after the decision on the collection of the necessary funds is made. If it is impossible to deliver the decision against receipt or in another way confirming the date of its receipt, the decision is sent by registered mail and is considered received six days after the date of sending registered letter.

Collection order (instruction) for the transfer of tax amounts to budget system RF is sent to the bank where the accounts of the taxpayer, fee payer or tax agent are opened, and is subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation,

The collection order (instruction) of the tax authority for the transfer of tax must contain an indication of those accounts of the taxpayer or tax agent from which the tax should be transferred and the amount to be transferred.

Tax collection can be made from ruble settlement (current) and (or) foreign currency accounts of the taxpayer or tax agent, with the exception of loan and budget accounts.

A collection order (instruction) from the tax authority to transfer tax is executed by the bank no later than one business day following the day it receives the said order(instructions) if the tax is collected from ruble accounts, and no later than two business days if the tax is collected from foreign currency accounts, since this does not violate the order of priority of payments established civil law RF.

If there is insufficient or absence of funds in the accounts of the taxpayer or tax agent on the day the bank receives an order (instruction) from the tax authority to transfer the tax, the order is executed as funds are received in these accounts no later than one business day from the day following the day of each such receipt on ruble accounts, and no later than two business days, from the day following the day of each such receipt to foreign currency accounts, since this does not violate the order of priority of payments established by the civil legislation of the Russian Federation.

If there is insufficient or no funds in the accounts of the taxpayer or tax agent tax authority has the right to collect tax using electronic funds. In this case, the tax authority’s order to transfer electronic money is sent to the bank where the electronic money is located. The tax can be collected from the balances of electronic money in rubles, and if they are insufficient, from the balances of electronic money in foreign currency. The order of the tax authority for the transfer of electronic funds is executed by the bank no later than one business day following the day it receives the specified order (instruction), if the tax is collected from the balances of electronic funds in rubles, and no later than two business days, if the tax is collected at the expense of electronic money balances in foreign currency.

If there are insufficient funds or electronic funds in the taxpayer's accounts, the tax authority has the right to collect tax at the expense of other property.

Tax collection from the property of a taxpayer-organization or a tax agent-organization is carried out sequentially in relation to:

Cash;

Property not directly involved in the production of products (goods), in particular valuable papers, currency valuables, non-production premises, passenger vehicles, office space design items;

Finished products (goods), as well as other material assets not participating and (or) not intended for direct participation in production;

Raw materials and supplies intended for direct participation in production, as well as machines, equipment, buildings, structures and other fixed assets;

Property transferred under an agreement for the possession, use or disposal of other persons without transferring ownership of this property to them, if in order to ensure the fulfillment of the obligation to pay tax, such agreements are terminated or declared invalid in the prescribed manner;

Other property.

If a tax is collected at the expense of the property of a taxpayer-organization or a tax agent-organization, the obligation to pay the tax is considered fulfilled from the moment the property of the taxpayer-organization or tax agent-organization is sold and the debt of the taxpayer-organization or tax agent-organization is repaid from the proceeds.

Collection of tax at the expense of the property of a taxpayer-organization or a tax agent-organization is carried out by decision of the head (his deputy) of the tax authority by sending the corresponding resolution to the bailiff for execution within three days from the date of such decision. The resolution on tax collection is signed by the head of the tax authority (his deputy) and certified official seal tax authority. Executive actions must be completed, and the requirements contained in the resolution must be fulfilled by the bailiff within two months from the date of receipt of the said resolution.

O.V. Motherland,
Rostov-on-Don

1. General provisions

In accordance with paragraph 2 of Art. 31 Tax Code Russian Federation(Tax Code of the Russian Federation), tax authorities conduct tax audits, the results of which can make decisions to hold the taxpayer accountable and impose tax sanctions.

With the entry into force on January 1, 2006 of the Federal Law of November 4, 2005 N 137-FZ “On Amendments to Some legislative acts of the Russian Federation and the repeal of certain provisions of legislative acts of the Russian Federation in connection with the implementation of measures to improve administrative procedures settlement of disputes" (hereinafter referred to as the Law of November 4, 2005 N 137-FZ), which amended the Tax Code of the Russian Federation and the federal law dated December 15, 2001 N 167-FZ "On mandatory pension insurance in the Russian Federation" (hereinafter referred to as Law No. 167-FZ), major changes have occurred in the procedure for collecting tax arrears, penalties and fines in relation to legal entities And individual entrepreneurs.

The main purpose of the adoption of the Law of November 4, 2005 N 137-FZ is to relieve judicial system, free arbitration courts from the mass of similar small cases and thereby improve the quality of consideration of more complex issues. Indeed, arbitration courts were simply overwhelmed with cases of minor tax fines. After all, tax inspectorates, before the adoption of Law No. 137-FZ dated November 4, 2005, did not have the right to collect tax fines, as well as arrears and penalties (in relation to individual entrepreneurs) without going to court. Of course, budget money was spent, great amount employees. For example, the cost of one arbitration process of first instance for the state is more than 3,000 rubles. At the same time, the amounts recovered are often significantly less, and consideration of such cases in arbitration court from the point of view of replenishing the budget loses all meaning.

If the Law of November 4, 2005 N 137-FZ set as its goal to reduce costs only government agencies in terms of reducing the number lawsuits, then there is a very high probability that they will not only not decrease, but will even increase.

Indeed, in accordance with Art. 137 of the Tax Code of the Russian Federation, the taxpayer has the right to appeal any non-normative acts tax office(decisions, requirements). Collection decision tax sanction is no exception. The organization can either file a complaint with higher authority, or with a statement of claim to the arbitration court. Of course, organizations (individual entrepreneurs) will bear legal costs, which may exceed the amount of the sanctions themselves, and, probably, the payer may wonder whether it makes sense to go to court.

But, given the fact that Art. 103.1 of the Tax Code of the Russian Federation, which loses its force on January 1, 2007, is formulated very vaguely and many questions arise regarding the methodology for calculating and collecting taxes, penalties and fines, all larger number Taxpayers can appeal decisions of tax authorities, including in arbitration courts.

Before January 1, 2006, circumstances mitigating liability for committing tax offense, were established both by the court and the tax authority considering the case. However, only arbitration courts had the opportunity to take them into account when imposing sanctions for tax offenses, since, according to paragraph 7 previous edition Art. 114 of the Tax Code of the Russian Federation, tax sanctions could be collected from the taxpayer only in court.

From January 1, 2006, the right to take into account extenuating circumstances when establishing the amount of tax sanctions to be collected from the taxpayer, it is provided to the tax authority itself, however, only if the amount of the fine imposed on an individual entrepreneur does not exceed 5,000 rubles, and that imposed on an organization - 50,000 rubles. for each unpaid tax for taxable period and (or) for other violation of legislation on taxes and fees.

As practice shows, amendments to legislative acts are not always fully developed. Innovations raise many questions and are replete with inaccuracies and contradictions with existing regulations and legislative acts. The innovations introduced into part one of the Tax Code of the Russian Federation by Law dated November 4, 2005 N 137-FZ, which were also clarified and supplemented by Federal Law dated July 27, 2006 N 137-FZ “On Amendments to Part One and Part Two”, were no exception. Tax Code of the Russian Federation and certain legislative acts of the Russian Federation in connection with the implementation of measures to improve tax administration" (hereinafter referred to as Law No. 137-FZ of July 27, 2006). However this Law will come into force on January 1, 2007, therefore, all ambiguities and inaccuracies that appeared after the adoption of the Law of November 4, 2005 N 137-FZ, can be interpreted differently until December 31, 2006 by both tax inspectors, judicial authorities, and taxpayers .

Let us analyze how the procedure for collecting taxes, penalties and fines is changing, as well as what the nature of the innovations is for taxpayers, tax inspectors And judiciary.

2. Changes made Law of November 4, 2005 N 137-FZ in order to collect tax arrears, penalties and fines

The changes introduced by Law No. 137-FZ dated November 4, 2005 can be presented in the following generalized form:

1) if earlier in accordance with Art. 47 of the Tax Code of the Russian Federation, tax authorities were obliged to go to court to collect taxes, penalties, and penalties from individual entrepreneurs, then from January 1, 2006, the procedure for the indisputable collection of tax sanctions and taxes, provided for in Art. 46 of this Code is only for organizations; it also applies to individual entrepreneurs. Currently, mandatory judicial procedure for collecting taxes, penalties and fines is established only for individuals who are not individual entrepreneurs.

2) the rules for collecting fines are equal to the rules for collecting arrears and penalties. New order the imposition and collection of tax sanctions solely on the basis of a decision of the tax authority is regulated by Art. 103.1 of the Tax Code of the Russian Federation, according to which the powers of tax authorities to indisputably collect penalties are limited by the amount of the fine: no more than 50,000 rubles. - for organization and no more than 5,000 rubles. - for an individual entrepreneur. In addition, the taxpayer retains the right to appeal the actions of the tax authorities both to a higher tax authority and to an arbitration court. In this case, in the first case, the collection of the imposed fine is suspended, in the second - it is suspended in the presence of a corresponding decision of the arbitration court. However, from January 1, 2007 this article The Tax Code of the Russian Federation loses its force in accordance with the Law of July 27, 2006 N 137-FZ and the procedure for the indisputable collection of fines is equal to the procedure for the collection of taxes and penalties. Provisions of Art. 45-47 of the Tax Code of the Russian Federation, regulating the procedure for the indisputable collection of taxes and penalties, will also be applied from January 1, 2007 when collecting fines (clause 8 of Article 45, clause 10 of Article 46 of the Tax Code of the Russian Federation as amended by the Law of July 27, 2006 N 137-FZ);

3) from January 1, 2006, territorial bodies Pension Fund of the Russian Federation (PFR) carry out indisputable collection of arrears, penalties, as well as fines in relation to individual entrepreneurs, if the amount due for payment (including arrears, penalties and fines) does not exceed 5,000 rubles, as well as in relation to organizations, if the amount due The amount due does not exceed RUB 50,000. Previously, in accordance with paragraph 2 of Art. 25 of Law No. 167-FZ (as amended in force until January 1, 2006), collection of arrears on insurance premiums and penalties was carried out by the Pension Fund of Russia bodies only in court.

In accordance with Art. 3 of the Law of November 4, 2005 N 137-FZ, the above changes came into force on January 1, 2006, but claims filed by tax authorities in arbitration courts (for collection mandatory payments and amounts of sanctions) and not considered by the courts before the end of 2005, must be considered exclusively in accordance with the Arbitration Rules procedural code Russian Federation (APK RF). In other words, the above changes retroactive effect do not have, and if the amount of the claim is lower than the amount of the fine provided for in Art. 103.1 of the Tax Code of the Russian Federation, tax authorities do not have the right to withdraw a claim and make a decision (on imposing a fine) independently.

After January 1, 2007, if the decision of the tax authority on tax sanctions for violation of the legislation on taxes and fees was made before January 1, 2007, then fines will be levied in the manner that was in force before the entry into force of the Law of July 27, 2006 N 137-FZ ( Clause 18 of Article 7 of this Law).

3. The procedure for forced collection by tax authorities of tax arrears and penalties

Unlike fines, tax arrears and penalties are collected by the tax authorities in an indisputable manner, regardless of their amount. The exception is the situations listed in paragraph 1 of Art. 45 of the Tax Code of the Russian Federation (as amended in force until December 31, 2006) or clause 2 of Art. 45 of the Tax Code of the Russian Federation (as amended, taking into account the changes introduced by law N 137-FZ dated July 27, 2006). The procedure for collecting tax arrears and penalties is established by Art. 45-48 Tax Code of the Russian Federation. From January 1, 2006, the norms of Art. 45-47 of the Tax Code of the Russian Federation also apply to individual entrepreneurs. As for individuals who are not individual entrepreneurs, nothing has changed for them: taxes, penalties and fines, as before, are collected only through the court in the manner established by Art. 48 Tax Code of the Russian Federation.

According to the results desk audit or execution of an act tax audit(after on-site control) [from January 1, 2007 in accordance with Art. 100 of the Tax Code of the Russian Federation (as amended by Law dated July 27, 2006 N 137-FZ), within 10 days after the end of the desk tax audit, a tax audit report is also issued] a decision is made to attract the taxpayer to tax liability, which indicates and justifies the accrued amounts of taxes, penalties, as well as the application of financial sanctions. This document is the basis for the tax authority to present a demand to the taxpayer to pay tax (clause 10 of Article 101.1 of the Tax Code of the Russian Federation, and from 01.01.2007 - clause 3 of Article 101.3 of the Code). The request for tax payment must contain information about the amount of tax debt, the amount of penalties accrued at the time the request was sent, the deadline for paying the tax, established by law on taxes and fees, the deadline for fulfilling the requirement, as well as on measures to collect tax and ensure the fulfillment of the obligation to pay tax, which are applied in the event of failure to fulfill the requirement by the taxpayer (clause 4 of Article 69 of the Tax Code of the Russian Federation).

According to Art. 70 of the Tax Code of the Russian Federation, if a demand for tax payment is sent to a taxpayer based on the results of a tax audit (desk or field), then it must be sent within ten days from the date of the tax authority’s decision. Wherein we're talking about about 10 calendar days. The countdown begins on the day following the date of the decision.

If the taxpayer does not comply with the requirement to pay the tax within the specified period, the tax authority makes a decision to collect the tax.

Law of July 27, 2006 N 137-FZ, clause 4, art. 69 of the Tax Code of the Russian Federation is supplemented with a paragraph in which deadline approved fulfillment of the requirement to pay taxes and fees. Thus, from January 1, 2007, the obligation to pay taxes, penalties and fines must be fulfilled by the taxpayer within ten days from the date the taxpayer receives the request to pay the tax, provided that a longer period of time for payment is not specified in this request. The same article of the Tax Code of the Russian Federation also specifies the procedure for serving a taxpayer with a demand for tax payment. According to paragraph 6 of Art. 69 of the Tax Code of the Russian Federation (as amended by Law No. 137-FZ of July 27, 2006), the requirement to pay tax can be transferred to the manager (legal or authorized representative) organization or to an individual(to his legal or authorized representative) in person against receipt or in another way confirming the fact and date of receipt of this demand. If it is impossible to serve the tax payment request using the above methods, it is sent by registered mail and is considered received after six days from the date of sending the registered letter.

And most importantly, from January 1, 2007, the rules provided for in Art. 69 of the Tax Code of the Russian Federation, also apply to requirements for the payment of fines (clause 8 of Article 69 of the Code).

In accordance with paragraph 3 of Art. 46 of the Tax Code of the Russian Federation (as amended in force until January 1, 2007), the decision to collect a tax (and from January 1, 2007 - a fine) is made after the expiration of the period established for the fulfillment of the obligation to pay the tax, but no later than 60 days after the expiration of the deadline for fulfillment tax payment requirements. This decision must be brought to the attention of the taxpayer within five days. According to paragraph 3 of Art. 46 of the Tax Code of the Russian Federation (as amended by Law No. 137-FZ of July 27, 2006) from January 1, 2007, the period for making a decision on collection is not 60 days, but two months. Law No. 137-FZ dated July 27, 2006 clarified the procedure and deadline for serving a decision on collection. Thus, from January 1, 2007, the decision on collection must be communicated to the taxpayer not within five days, but within six days, and if the decision cannot be delivered to the taxpayer in person, it will be sent by registered mail and will be considered received after six days. Currently, this procedure is not specified in the Tax Code of the Russian Federation.

If the tax authority violates the deadline for making a decision, it is considered invalid and cannot be executed, that is, the tax authority loses the right to indisputably collect the tax. To collect the tax, the tax authority will have to apply to the arbitration court with a corresponding claim.

The deadline for the tax authority to appeal to the arbitration court in the Tax Code of the Russian Federation as amended, valid until January 1, 2007, has not been established. However, according to the explanation contained in paragraph 12 of the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5 “On some issues of application of part one of the Tax Code of the Russian Federation”, an application for the collection of tax at the expense of taxpayer funds held in bank accounts may be filed by the tax authority with the court within six months from the moment from which the tax authority lost the right to forcibly collect the arrears out of court. From January 1, 2007, in paragraph 3 of Art. 46 of the Tax Code of the Russian Federation (as amended by Law No. 137-FZ of July 27, 2006) already clearly stipulates that an application can be filed with the court within six months after the expiration of the deadline for fulfilling the requirement to pay the tax. In addition, the court may restore the deadline for filing an application if it is missed. good reason.

Example.

Fortuna LLC did not pay VAT calculated according to tax return for February 2006 (payment deadline - March 20, 2006). On April 10, 2006, the tax inspectorate sent a request to Fortuna LLC, which specified the deadline voluntary payment tax - April 30, 2006. The taxpayer did not comply with the request. The decision on forced collection of the tax could be made by the tax authority no later than June 29, 2006. If the tax office is late with forced collection arrears, she has the right to apply to the arbitration court with an application for tax collection until December 29, 2006 inclusive.

Example.

LLC "Fortuna" did not pay the VAT calculated on the tax return for February 2007 (payment deadline - March 20, 2007). On April 10, 2007, the tax inspectorate sent a request to Fortuna LLC, stating that the deadline for voluntary tax payment was April 30, 2007. The taxpayer did not comply with the request. The decision on forced collection of tax may be made by the tax authority no later than June 30, 2007. If the tax inspectorate is late in forcibly collecting the arrears, it has the right to apply to the arbitration court with an application for tax collection up to December 30, 2007 inclusive.

Please note that the above procedure for collecting tax arrears currently also applies to penalties and applies to not only organizations, but also individual entrepreneurs. Since January 1, 2007 this order collection of tax arrears and penalties also applies to fines.

In accordance with Art. 46 of the Tax Code of the Russian Federation, in the event of non-payment or incomplete payment of the tax within the specified period, the collection of tax and penalties is carried out forcibly by sending to the bank in which the taxpayer’s accounts are opened, a collection order for the transfer of the necessary funds from the taxpayer’s accounts to the appropriate budgets.

Tax collection can be made from ruble settlement (current) and (or) foreign currency accounts of the taxpayer, with the exception of loan and budget accounts. Tax collection is not made from the taxpayer's deposit account if the deposit agreement has not expired (clause 5 of Article 46 of the Tax Code of the Russian Federation as amended by Law No. 137-FZ of July 27, 2006).

If on the day the bank receives a collection order from the tax authority, there are insufficient funds in the taxpayer’s accounts or none at all, then the order is executed as money is received in the order of priority of payments established by the civil legislation of the Russian Federation (Clause 6 of Article 46 of the Tax Code of the Russian Federation as amended by the Law dated 07.27.2006 N 137-FZ).

According to paragraph 7 of Art. 46 of the Tax Code of the Russian Federation (as amended by Law No. 137-FZ of July 27, 2006) if collection orders are not executed due to the lack of funds in the current account, the tax authority has the right to collect tax at the expense of other property of the taxpayer in accordance with Art. 47 of the Tax Code of the Russian Federation (as amended by Law No. 137-FZ of July 27, 2006). Tax collection from the taxpayer's property is carried out by decision of the head of the tax authority. Within three days from the date of such a decision, the corresponding resolution is sent to the bailiff for its execution in the manner prescribed by Federal Law of July 21, 1997 N 119-FZ “On enforcement proceedings"(hereinafter referred to as Law No. 119-FZ). The resolution is executed by the bailiff within two months from the date of receipt of the said resolution.

According to paragraph 5 of Art. 47 of the Tax Code of the Russian Federation (as amended by Law dated July 27, 2006 N 137-FZ) from January 1, 2007, collection of taxes, fees, as well as penalties and fines at the expense of other property of the taxpayer (tax agent) - organization, individual entrepreneur is carried out consistently in relation to :

1) cash and funds in banks that have not been foreclosed on in accordance with Art. 46 Tax Code of the Russian Federation;

2) property not directly involved in the production of products (goods), in particular securities, currency values, non-production premises, passenger vehicles, office premises design items;

3) finished products(goods), as well as other material assets that are not involved and (or) not intended for direct participation in production;

4) raw materials and materials intended for direct participation in production, as well as machines, equipment, buildings, structures and other fixed assets;

5) property transferred under an agreement for the possession, use or disposal of other persons without the transfer of ownership of this property to them, if in order to ensure the fulfillment of the obligation to pay tax, such agreements are terminated or declared invalid in the prescribed manner;

6) other property, with the exception of those intended for everyday personal use by an individual entrepreneur or members of his family, determined in accordance with the legislation of the Russian Federation.

4. Indisputable collection procedure tax penalties

Let's look at the procedure for collecting fines in 2006. Let us note that during 2006, the procedure for collecting a tax sanction based on a decision of the tax authority is determined by Art. 103.1 Tax Code of the Russian Federation. From January 1, 2007, this article of the Tax Code of the Russian Federation loses force in accordance with the Law of July 27, 2006 N 137-FZ. If a tax violation is detected, the inspection must make a decision in accordance with paragraph 1 of Art. 103.1 of the Tax Code of the Russian Federation, a decision to hold a taxpayer accountable for committing a tax offense.

The decision to hold the taxpayer accountable is sufficient for the tax authority to send the organization a demand for the collection of taxes and penalties (clause 4 of Article 101 of the Tax Code of the Russian Federation). However, in order to fine the violating organization, the tax inspectorate must make a decision to impose a tax sanction (Clause 1 of Article 103.1 of the Tax Code of the Russian Federation). The legislator has not set a deadline for its adoption. However, the letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia dated April 12, 2006 N 03-02-07/1-90 states that the provisions of Art. 46 of the Tax Code of the Russian Federation are also applied when collecting penalties for late payment taxes and fines in cases provided for by this Code.

After this, the tax inspectorate must also send the organization a request for voluntary payment of a fine (clauses 2, 3 of Article 103.1 of the Tax Code of the Russian Federation). Before the decision to collect a tax sanction is submitted for enforcement, the tax authority is obliged to offer the taxpayer to voluntarily pay the appropriate amount of the tax sanction.

After receiving such a request, the taxpayer must either pay the tax penalties imposed on him or appeal the decision to collect the fine. And he must do this before the expiration of the period specified in the requirement.

If the taxpayer voluntarily fails to pay the amount of the tax penalty within the period specified in the request for its payment, the decision to collect the tax penalty comes into force legal force and turns to forced execution (clause 3 of Article 103.1 of the Tax Code of the Russian Federation).

The deadline for voluntary payment of the fine will be the date the decision to collect the tax sanction comes into force. After this date, the tax inspectorate sends a resolution to the bailiff to execute the decision to collect a fine that has entered into force within five days after the decision enters into legal force. Moreover, the period within which the tax inspectorate must send the decision to collect a tax sanction to the organization has not been established. In paragraph 7 of Art. 103.1 of the Tax Code of the Russian Federation contains only an indication that the tax inspectorate sends the organization a copy of the resolution on the execution of the decision. At the same time, from Art. 103.1 of the Tax Code of the Russian Federation, it is not entirely clear whether the organization will receive the text of the decision itself. She is guaranteed to receive a decision to prosecute her and a requirement to voluntarily pay a fine. Bailiffs act upon receipt of a tax inspection decision in accordance with Law No. 119-FZ (clause 7 of Article 103.1 of the Tax Code of the Russian Federation), that is, the same as before, with one significant difference: before the Law of November 4, 2005 No. 137 came into force -FZ bailiffs acted upon availability writ of execution, issued on the basis of a court decision to collect a fine, and in 2006 they are guided by the decision of the head of the tax inspectorate to collect a tax sanction and the decision of the same inspectorate on its execution.

From January 1, 2007 Art. 103.1 of the Tax Code of the Russian Federation loses force. Starting from this date, the procedure for making decisions by tax authorities is regulated by Art. 101, and the undisputed collection of a fine - Art. 46-47 of the Tax Code of the Russian Federation (clause 10 of article 46, clause 8 of article 47 of the Tax Code of the Russian Federation). The deadline for submitting a request to pay a fine will remain the same as for a request to pay tax and penalties (clause 3 of Article 70 of the Tax Code of the Russian Federation), that is, 10 days from the date the decision of the tax authority comes into force. Just as when collecting a tax, the decision to collect a fine is made after the expiration of the period for voluntary payment specified in the request for payment, but no later than two months after the expiration of the specified period (Clause 3 of Article 46 of the Tax Code of the Russian Federation). After expiration given period the decision is considered invalid, and the fine can only be collected in court. To do this, the tax authority must, within six months after the expiration of the deadline for fulfilling the payment requirement, apply to the court with a claim to collect a fine from the taxpayer. Moreover, according to Art. 46 of the Tax Code of the Russian Federation allows the court to restore the deadline for filing an application with the tax authority, but only if there is a good reason for missing it.

From January 1, 2007, the deadline for serving the taxpayer with a decision to collect a fine has also been established. Thus, this decision must be brought to the attention of the taxpayer within six days after it is made (clause 3 of Article 46 of the Tax Code of the Russian Federation). If it turns out to be impossible to deliver the decision to the taxpayer against a receipt or in another way indicating the date of receipt, then the decision is sent by registered mail and is considered received after six days from the date of sending the registered letter (clause 3 of Article 46 of the Tax Code of the Russian Federation).

In case of failure to pay tax sanctions within the prescribed period, the tax authorities send to the bank in which the taxpayer’s accounts are opened, collection orders for writing off and transferring the necessary funds to the budget system of the Russian Federation. In other words, they act in the same way as when collecting taxes and penalties, guided by Art. 46-47 Tax Code of the Russian Federation.

5. Appealing the decision of the tax inspectorate to collect financial sanctions

Currently, if a taxpayer does not agree with the fine assessed to him, then he must take timely action to appeal the decision to collect the fine before it enforcement. The taxpayer has the right to appeal the decision to collect financial sanctions to a higher tax authority (higher official) or to an arbitration court (Article 138 of the Tax Code of the Russian Federation). If the decision is appealed to a higher tax authority, execution this decision is suspended automatically (clause 4 of article 103.1 of the Tax Code of the Russian Federation).

If the decision to collect a fine is appealed to the arbitration court, then the issue of the possibility of suspending its execution is resolved arbitration court in the manner established by the arbitration procedural legislation(clause 4 of article 103.1 of the Tax Code of the Russian Federation). To do this, the taxpayer must submit an application to the arbitration court for acceptance interim measures and pay state fee. In this case, the judge may refuse to suspend the execution of the decision or leave the application without progress. Therefore, the taxpayer should, in our opinion, appeal the decision to collect a fine both to a higher tax authority and to the court at the same time.

To appeal a decision to collect a fine to a higher tax authority, the taxpayer must submit a complaint, the form of which tax legislation is not installed, so it is fed into free form. The only requirement presented when filing a complaint - simultaneously with filing the complaint, the taxpayer must send a copy of it to the tax authority that made the decision to impose financial sanctions (clause 6 of Article 103.1 of the Tax Code of the Russian Federation).

Since the decision to collect a fine is made on the basis of a decision made to bring the taxpayer to tax liability, it is advisable for the taxpayer to file two complaints:

1) for recognition invalid decision on bringing to tax liability (main decision);

2) on illegal decision on the collection of financial sanctions.

The decision on the amount of financial sanctions to be collected will depend on the extent to which the decision to impose tax liability is appealed.

If a decision to bring tax liability is appealed, and the taxpayer does not ask to suspend the actions of lower tax authorities while the complaint is being considered, then in accordance with Art. 141 of the Tax Code of the Russian Federation, filing a complaint does not suspend the execution of the act being appealed. Article 141 of the Tax Code of the Russian Federation grants the right to a higher tax authority if there is sufficient grounds fully or partially suspend the execution of the act being appealed. In this case, a corresponding decision must be issued.

In turn, appealing a decision on the collection of financial sanctions without appealing a decision on bringing to tax liability does not suspend the effect of the first decision on which financial sanctions are collected.

When filing a lawsuit statements of claim When appealing decisions of tax authorities, the taxpayer should keep in mind that tax authorities suspend their actions only on the basis of a decision of the arbitration court. The decision to collect financial sanctions is automatically canceled when the decision to impose tax liability is cancelled.

In accordance with paragraph 2 of Art. 139 of the Tax Code of the Russian Federation, a complaint to a higher tax authority is filed within three months from the day the taxpayer learned or should have learned about the violation of his rights. In paragraph 2 of Art. 139 of the Tax Code of the Russian Federation also contains a rule according to which, if the deadline for filing a complaint is missed for a good reason, this deadline, at the request of the person filing the complaint, can be restored accordingly by higher-ranking officials. official tax authority or a higher tax authority.

In this situation, under the date from which the calculation begins three month period, means the date when the taxpayer became aware of the decision taken on the collection of tax penalties.

The period for appealing a decision to an arbitration court is also three months from the moment the taxpayer became aware of the decision made (clause 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation).

If the taxpayer initially appealed the decision to collect a tax penalty in higher authority and received a refusal, and then appeals in court, the period for appealing the above decision to the arbitration court is calculated from the day when the taxpayer became aware of the decision by a higher tax authority.

Although maximum term for an appeal - three months, the taxpayer must strive to complete all actions to appeal the decision before the expiration of the period established in the request for payment of the fine, since if the fine has already been collected, and subsequently the decision to collect the fine is canceled by a higher tax authority or court, then return the collected amount the amount of the fine will be very difficult. The fact is that the procedure for returning fines already collected is established by Art. 78, 79 of the Tax Code of the Russian Federation, but this procedure comes into force on January 1, 2007.

From January 1, 2007 Art. 103.1 of the Tax Code of the Russian Federation loses its force, and the procedure for appealing a tax authority’s decision to prosecute a tax offense or a decision to refuse such prosecution is regulated by Art. 101.2 of the Tax Code of the Russian Federation, according to which the above decision, which has not entered into force, can be appealed to appeal procedure by filing appeal.

If the higher tax authority considering the appeal does not cancel the decision of the lower tax authority, it will come into force from the date of its approval by the higher tax authority.

If a higher tax authority considering an appeal changes the decision of a lower tax authority, it will take into account changes made will come into force on the date of adoption of the corresponding decision by a higher tax authority.

Let us note that from January 1, 2009, a taxpayer will be able to appeal the decision of the tax authority in court only after appealing it to a higher tax authority (clause 5 of Article 101.2 of the Tax Code of the Russian Federation).

The procedure and time frame for considering a complaint by a higher tax authority and making a decision on it are determined in the manner provided for in Art. 139-141 Tax Code of the Russian Federation. Law of July 27, 2006 N 137-FZ supplemented Art. 139 of the Tax Code of the Russian Federation with rules regulating the procedure and deadlines for filing an appeal against a tax authority’s decision to hold people accountable for committing a tax offense. Thus, an appeal against a decision of a tax authority must be filed with the tax authority that made this decision (clause 3 of Article 139 of the Tax Code of the Russian Federation) before the entry into force of the appealed decision (clause 2 of Article 139 of the Tax Code of the Russian Federation). In this case, the tax authority is obliged to send it with all materials to a higher tax authority within three days from the date of receipt of the appeal (clause 3 of Article 139 of the Tax Code of the Russian Federation). If the decision of the tax authority has entered into legal force and has not been appealed, then the complaint is filed within one year from the date of entry into force of the appealed decision (Clause 2 of Article 139 of the Tax Code of the Russian Federation).

According to paragraph 2 of Art. 140 of the Tax Code of the Russian Federation, based on the results of consideration of an appeal against a decision of a tax authority, a higher tax authority has the right to:

1) leave the decision of the tax authority unchanged and the complaint without satisfaction;

2) cancel or change the decision of the tax authority in whole or in part and make a new decision on the case;

3) cancel the decision of the tax authority and terminate the proceedings.

Article 140 of the Tax Code of the Russian Federation also establishes that the decision of a higher tax authority on a complaint is made within one month from the date of its receipt. From January 1, 2007, this period may be extended by the head (deputy head) of a higher tax authority to obtain documents (information) necessary for consideration of the complaint from lower tax authorities, but not more than for 15 days. Moreover, within three days the person who filed the complaint must be in writing the decision was notified (clause 3 of Article 140 of the Tax Code of the Russian Federation).

The procedure for collecting taxes and fees, arrears on insurance premiums, as well as penalties and fines from funds or property of organizations and individual entrepreneurs has changed since January 1, 2006 (). Let's see how it turns out arbitration practice based on the example of decisions of the Supreme Arbitration Court of the Russian Federation and the Federal Arbitration Court of the North-Western District.

Collection without court

Let us recall that on January 1, 2006, the Federal Law of November 4, 2005 No. 137-FZ “On amendments to certain legislative acts of the Russian Federation and the recognition as invalid of certain provisions of legislative acts of the Russian Federation in connection with the implementation of measures to improve administrative procedures for resolving disputes” came into force " This Law provides out-of-court procedure collection of taxes, insurance premiums and sanctions. Within established limits, they are subject to recovery by decision of the tax authorities or territorial bodies Pension Fund without going to court.

Thus, if the amount of the fine imposed on the organization does not exceed 50 thousand rubles for each unpaid tax for the tax period and (or) other violation of the legislation on taxes and fees, the decision to impose a sanction is made by the tax authority. For an entrepreneur, the amount should be no more than 5 thousand rubles. Collection of arrears of insurance premiums, penalties and fines is carried out by the Pension Fund of the Russian Federation if the amount due for payment does not exceed 50 thousand rubles for legal entities, and 5 thousand rubles for individuals.

IN Information letter The Supreme Arbitration Court of the Russian Federation dated February 20, 2006 No. 105 () clarified a number of issues related to the entry into force of Law No. 137-FZ. In the event of an appeal from the tax authorities, Pension Fund bodies to arbitration courts after January 1, 2006 with applications for the collection of mandatory payments and sanctions that are collected by these bodies independently, such applications are returned by the arbitration court. And if the applications are accepted, the proceedings are subject to termination.

Law No. 137-FZ stipulates that forms of demands for payment and decisions to collect arrears of insurance premiums, penalties and fines are approved by the Ministry of Finance in agreement with the Pension Fund of the Russian Federation. These forms were approved by order of the Ministry of Finance of Russia dated January 30, 2006 No. 18n. According to the position of the Supreme Arbitration Court of the Russian Federation, the absence of forms in the period from January 1, 2006 until the moment of their approval is not a basis for the Pension Fund of Russia bodies to apply to the court for the collection of arrears, penalties and fines, which may be collected by decision of these bodies.

To challenge the requirements of the Pension Fund authorities for formal grounds can be used judicial practice to challenge the demands of the tax authorities on the same grounds. Scroll necessary information which must be contained in the request of the tax authority are set out in paragraph 4 of Article 69 of the Tax Code of the Russian Federation (). Its formal violations are not grounds for invalidating the claim. A requirement may be invalidated if it does not comply actual duty taxpayer for payment of tax or compiled with significant violations this rule of law (decrees of the Federal Antimonopoly Service of the North-West District dated January 19, 2006 in case No. A42-8672/03-27, dated December 21, 2005 in case No. A05-1531/05-26, dated December 20, 2005 in case No. A05-7986/2005- 12).

Appealing decisions

As before, the decision of the tax authorities can be appealed to a higher tax authority or to court. At the same time, the decision to hold a taxpayer (another person) accountable for committing a tax offense may provide not only for penalties (fine), but also for the collection of tax arrears and penalties, for which a request is also sent to the taxpayer. Therefore, it is necessary to note that mandatory suspension collection of arrears and penalties in the event of an appeal against the decision to prosecute a tax offense to a higher tax authority is not provided.

At the same time, appealing a decision to hold a taxpayer (another person) accountable for committing an offense to a higher authority means appealing, inter alia, a decision to collect a tax sanction and entails a mandatory suspension of the execution of the decision to collect a tax sanction (Clause 4 of Article 103.1 of the Tax Code RF ()). If the decision is appealed to arbitration, the court may (but is not obliged) to suspend the execution of the decision on the basis of Part 3 of Article 199 of the Arbitration Procedure Code ().

Deadline for collection

Article 47 of the Tax Code of the Russian Federation () gives tax authorities the right to make decisions on the collection of taxes at the expense of the property of the payer (tax agent), but does not establish a deadline for making a decision. At the same time, Article 46 of the Tax Code of the Russian Federation () determines that the decision to collect tax from funds in the taxpayer’s bank accounts is made no later than 60 days after the expiration of the deadline for fulfilling the requirement to pay the tax.

According to the judicial authorities, the 60-day period is applicable to the entire procedure for the forced, undisputed collection of taxes and penalties, both at the expense of funds and at the expense of other property of the taxpayer (tax agent). IN in this case The only thing that has changed is the method of executing the decision to collect taxes in an indisputable manner. A different interpretation of the law would lead to the possibility of the tax authority making a decision to collect tax at the expense of the taxpayer’s property without a time limit (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2006 No. 10353/05, resolution of the Federal Antimonopoly Service of the North-West District dated January 19, 2006 in case No. A42-8672/03 -27, dated 12/08/05 in case No. A56-38928/04).

Revocation of collection orders

In practice, the question has often arisen whether the tax authority should revoke collection orders from banks before making a decision to collect tax from other property of the taxpayer. Point at this issue put by YOU RF. The court indicated that the revocation of collection orders is not a necessary condition for the tax authority to make a decision to collect tax at the expense of property, and the very presence of collection orders issued to the taxpayer’s account cannot be a basis for declaring this decision invalid (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 19, 2005 No. 853/05).

It should be borne in mind that the tax authority has the right to collect arrears and penalties from the taxpayer’s property only in the event of insufficiency or absence of funds in the latter’s accounts. Thus, if a taxpayer has several accounts open in different banks, and the tax authorities do not have information about the presence or absence of funds in these accounts, the decision to collect debts and penalties at the expense of the property is declared invalid (resolution of the Federal Antimonopoly Service of the North-West District dated 02.13.06 in case No. A26-5146/2005-213).

Evgeny Tulubensky, lawyer