46 of the Tax Code of the Russian Federation of July 31, 1998. Arbitration Court of the Far Eastern District
Article 44
1. The obligation to pay a tax or fee arises, changes and terminates if there are grounds established by this Code or another act of legislation on taxes and fees.
2. The obligation to pay a specific tax or fee shall be imposed on the taxpayer and the payer of the fee from the moment the circumstances established by the legislation on taxes and fees occur, providing for the payment of this tax or fee.
3. The obligation to pay a tax and (or) a fee shall terminate:
1) with the payment of tax and (or) dues in the cases provided for by this Code;
11/16/2011 N 321-FZ, dated 11/30/2016 N 401-FZ)
3) with death individual- taxpayer or declaring him dead in the manner prescribed by civil procedural legislation Russian Federation. Tax debts specified in Articles 14 and 15 of this Code of a deceased person or a person declared dead shall be repaid by the heirs within the value of the inheritance property in the manner established by the civil legislation of the Russian Federation for payment by the heirs of the testator's debts;
(as amended by Federal Laws No. 229-FZ of July 27, 2010, No. 335-FZ of November 27, 2017)
4) with the liquidation of the taxpayer organization after all settlements with the budget system of the Russian Federation have been made in accordance with this Code;
5) with the occurrence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.
(Item 5 was introduced by Federal Law No. 137-FZ of July 27, 2006)
4. The provisions provided for by this article shall also apply to insurance premiums and apply to payers of insurance premiums.
(Clause 4 was introduced by Federal Law No. 243-FZ of July 3, 2016)
Article 45
07/03/2016 N 243-FZ)
(in ed. federal law dated July 27, 2006 N 137-FZ)
1. A taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees. The obligation to pay corporate income tax for a consolidated group of taxpayers shall be fulfilled by the responsible participant in this group, unless otherwise provided by this Code.
The obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees. The taxpayer has the right to fulfill the obligation to pay tax ahead of schedule.
11/30/2016 N 401-FZ)
Failure to fulfill or improper fulfillment of the obligation to pay tax is the basis for the tax authority or the customs authority to send a claim to the taxpayer for payment of tax.
(As amended by Federal Laws No. 321-FZ dated November 16, 2011, and No. 401-FZ dated November 30, 2016)
The tax may be paid for the taxpayer by another person.
11/30/2016 N 401-FZ)
Any other person shall not be entitled to demand the return from the budgetary system of the Russian Federation of the tax paid for the taxpayer.
(paragraph introduced by Federal Law No. 401-FZ of November 30, 2016)
2. Unless otherwise provided by paragraph 2.1 of this article, in the event of non-payment or incomplete payment of tax in set time tax is collected in the manner prescribed by this Code.
(as amended by Federal Law No. 150-FZ of June 8, 2015)
Collection of tax from an organization or an individual entrepreneur is carried out in the manner prescribed by this Code. Collection of tax from an individual who is not an individual entrepreneur is carried out in the manner prescribed by this Code.
Collection of tax in court is carried out:
1) from the personal accounts of organizations, if the collected amount exceeds five million rubles;
(clause 1 as amended by the Federal Law of November 4, 2014 N 347-FZ)
2) in order to recover the arrears arising from the results of the tax audit over three months old:
for organizations that, in accordance with the civil legislation of the Russian Federation, are dependent (subsidiary) companies (enterprises), - from the respective main (predominant, participating) companies (enterprises), when proceeds for goods (works, services) sold are received on their bank accounts dependent (subsidiary) companies (enterprises);
for organizations that, in accordance with the civil legislation of the Russian Federation, are the main (prevailing, participating) companies (enterprises), - from dependent (subsidiary) companies (enterprises), when their bank accounts receive proceeds for goods (works, services) sold by the main (prevailing, participating) companies (enterprises);
for organizations that, in accordance with the civil legislation of the Russian Federation, are dependent (subsidiary) companies (enterprises), - from the corresponding main (predominant, participating) companies (enterprises), if from the moment when the organization, which is responsible for the arrears, found out or should have learn about the appointment of an on-site tax audit or about the start of a desk tax audit, there has been a transfer Money, other property to the main (prevailing, participating) company (enterprise) and if such transfer led to the impossibility of collecting the said arrears;
for organizations that, in accordance with the civil legislation of the Russian Federation, are the main (prevailing, participating) companies (enterprises), - from dependent (subsidiary) companies (enterprises), if from the moment when the organization, which is responsible for the arrears, found out or should have found out on the appointment of an on-site tax audit or on the commencement of an in-house tax audit, there has been a transfer of funds, other property to a dependent (subsidiary) company (enterprise) and if such transfer has led to the impossibility of collecting the specified arrears.
If the tax authority in these cases establishes that the proceeds from the goods (works, services) sold are received on the accounts of several organizations, or if from the moment when the organization, which is responsible for the arrears, found out or should have found out about the appointment of an on-site tax audit or about the beginning of conducting a desk tax audit, there was a transfer of funds, other property to several main (predominant, participating) companies (enterprises), dependent (subsidiary) companies (enterprises), the collection of arrears is made from the relevant organizations in proportion to the share of the proceeds received by them for the goods (works, services), the share of transferred funds, the cost of other property.
The provisions of this subparagraph shall also apply if the tax authority establishes in these cases that the transfer of proceeds for goods (works, services) sold, the transfer of funds, other property to the main (prevailing, participating) companies (enterprises), dependent (subsidiary) companies ( enterprises) were made through a set of interrelated transactions, including if the participants in these transactions are not the main (predominant, participating) companies (enterprises), dependent (subsidiary) companies (enterprises).
The provisions of this subparagraph shall also apply if the tax authority in these cases establishes that the transfer of proceeds for goods (works, services) sold, the transfer of funds, other property are made to persons recognized by the court as otherwise dependent on the taxpayer, for whom the arrears are recorded.
(as amended by Federal Law No. 401-FZ of November 30, 2016)
When applying the provisions of this subparagraph, collection may be made within the limits of proceeds received by the main (predominant, participating) companies (enterprises), dependent (subsidiary) companies (enterprises), persons recognized by the court as otherwise dependent on the taxpayer, who is responsible for the arrears, proceeds for goods sold (work, services), transferred funds, other property.
(as amended by Federal Law No. 401-FZ of November 30, 2016)
The value of the property in the cases specified in this subparagraph is determined as the residual value of the property reflected in the accounting records of the organization at the time when the organization, for which the arrears are registered, found out or should have found out about the appointment of an on-site tax audit or about the beginning of an in-house tax audit;
(Item 2 as amended by Federal Law No. 134-FZ of June 28, 2013)
3) from an organization or an individual entrepreneur, if their obligation to pay tax is based on a change by the tax authority of the legal qualification of a transaction made by such a taxpayer, or the status and nature of the activity of this taxpayer;
4) from an organization or an individual entrepreneur, if their obligation to pay tax arose as a result of an audit by a federal body executive power authorized for control and supervision in the field of taxes and fees, completeness of calculation and payment of taxes in connection with transactions between related parties.
(Item 4 was introduced by Federal Law No. 227-FZ of July 18, 2011)
2.1. Tax collection is not carried out in case of non-payment or incomplete payment of tax by the declarant, recognized as such in accordance with the Federal Law "On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation", and (or) by another person, information about which is contained in a special declaration submitted in accordance with the said Federal Law.
Tax collection on the basis of this paragraph is not carried out if one of the following conditions is met:
(as amended by Federal Law No. 34-FZ of February 19, 2018)
1) if the obligation to pay such tax arose from the declarant and (or) another person as a result of transactions before January 1, 2015 related to the acquisition (formation of sources of acquisition), use or disposal of property (property rights) and (or) controlled foreign companies, information about which is contained in a special declaration submitted in the period from July 1, 2015 to June 30, 2016, or with the opening and (or) crediting of funds to accounts (deposits), information about which is contained in such a special declaration;
(Item 1 was introduced by Federal Law No. 34-FZ of February 19, 2018)
2) if the obligation to pay such tax arose for the declarant and (or) another person before January 1, 2018 as a result of operations related to the acquisition (formation of sources of acquisition), use or disposal of property (property rights) and (or) controlled foreign companies, information about which is contained in a special declaration submitted in the period from March 1, 2018 to February 28, 2019, or with the opening and (or) crediting of funds to accounts (deposits), information about which is contained in such a special declaration. At the same time, the provisions of this subparagraph do not apply to the obligation to pay taxes provided for in part two.
(Item 2 was introduced by Federal Law No. 34-FZ of February 19, 2018)
3) if the obligation to pay such tax arose for the declarant and (or) another person before January 1, 2019 as a result of operations related to the acquisition (formation of sources of acquisition), use or disposal of property (property rights) and (or) controlled foreign companies, information about which is contained in a special declaration submitted in the period from June 1, 2019 to February 29, 2020, or with the opening and (or) crediting of funds to accounts (deposits), information about which is contained in such a special declaration. At the same time, the provisions of this subparagraph do not apply to the obligation to pay taxes, provided for by part two of this Code, payable in respect of profits and (or) property of controlled foreign companies.
(Item 3 was introduced by Federal Law No. 111-FZ of May 29, 2019)
3. The obligation to pay tax shall be considered fulfilled by the taxpayer, unless otherwise provided by paragraph 4 of this article:
(As amended by Federal Laws No. 321-FZ dated November 16, 2011, and No. 401-FZ dated November 30, 2016)
1) from the moment an instruction is submitted to the bank for the transfer to the budget system of the Russian Federation to the appropriate account of the Federal Treasury of funds from the taxpayer's account (from the account of another person if he pays tax for the taxpayer) in the bank if there is a sufficient cash balance on it on the day of payment ;
(as amended by Federal Law No. 401-FZ of November 30, 2016)
1.1) from the moment an individual sends an instruction to a bank for transfer to the budget system of the Russian Federation to the appropriate account of the Federal Treasury without opening a bank account, funds provided to the bank by an individual, provided that they are sufficient for transfer;
(Clause 1.1 was introduced by Federal Law No. 162-FZ of June 27, 2011)
2) from the moment of reflecting on the personal account of the organization for which the personal account is opened, the operation to transfer the relevant funds to the budget system of the Russian Federation;
3) from the day an individual deposits cash into a bank, cash desk of a local administration, a federal postal organization or a multifunctional center for the provision of state and municipal services for their transfer to the budget system of the Russian Federation to the appropriate account of the Federal Treasury;
(as amended by Federal Law No. 232-FZ of July 29, 2018)
4) from the day the tax authority issues, in accordance with this Code, a decision on offsetting the amounts of overpaid or overcharged taxes, penalties, fines against the fulfillment of the obligation to pay the relevant tax;
5) from the day the tax amounts are withheld by the tax agent, if the obligation to calculate and withhold tax from the taxpayer's funds is assigned in accordance with this Code to the tax agent;
6) from the date of payment of the declaration fee in accordance with the federal law on the simplified procedure for declaring income by individuals;
(Item 6 was introduced by Federal Law No. 265-FZ of December 30, 2006)
7) from the date of presentation to the bank of an instruction to transfer funds to the budget system of the Russian Federation to the appropriate account of the Federal Treasury from the account of the taxpayer or from the account of another person in the bank if there is a sufficient cash balance on it as of the date of payment to compensate for damage caused to the budget system Russian Federation as a result of crimes for which Articles 198-199.2 of the Criminal Code of the Russian Federation provide for criminal liability. In this case, the offset of the amount of the specified monetary funds against the fulfillment of the corresponding obligation to pay tax is carried out in the manner established by the federal executive body authorized for control and supervision in the field of taxes and fees.
(Item 7 was introduced by Federal Law No. 401-FZ of November 30, 2016)
8) from the date of adoption by the tax authority in accordance with Article 45.1 of this Code of the decision to offset the amount of a single tax payment of an individual against the fulfillment of the obligation of a taxpayer - an individual to pay transport tax, land tax and (or) property tax of individuals.
(Item 8 was introduced by Federal Law No. 232-FZ of July 29, 2018)
4. The obligation to pay tax is not recognized as fulfilled in the following cases:
1) the withdrawal by the person who submitted the instruction to the bank for the transfer of funds to the budgetary system of the Russian Federation on account of the payment of tax, or the return by the bank to such person of the unfulfilled instruction for the transfer of the relevant funds to the budgetary system of the Russian Federation;
(as amended by the Federal Laws of November 30, 2016 N 401-FZ, of July 29, 2018 N 232-FZ)
2) withdrawal by the organization that opened a personal account, or return by the body of the Federal Treasury (another authorized body that opens and maintains personal accounts) to the organization of an unfulfilled instruction to transfer the appropriate funds to the budget system of the Russian Federation;
(as amended by Federal Law No. 401-FZ of November 30, 2016)
3) the return by the local administration, the organization of the federal postal service or the multifunctional center for the provision of state and municipal services to an individual of cash accepted for their transfer to the budget system of the Russian Federation;
(as amended by the Federal Laws of November 30, 2016 N 401-FZ, of July 29, 2018 N 232-FZ)
4) the taxpayer or another person who submitted an instruction to the bank to transfer funds to the budget system of the Russian Federation on account of tax payment for the taxpayer, incorrectly indicated in the instruction to transfer the amount of tax the account number of the Federal Treasury and the name of the recipient's bank, which resulted in the non-transfer of this amount to the budget system of the Russian Federation to the corresponding account of the Federal Treasury;
(as amended by Federal Law No. 401-FZ of November 30, 2016)
5) if, on the day a taxpayer (another person who has submitted an instruction to a bank for transferring funds to the budget system of the Russian Federation on account of tax payment for a taxpayer) submits an instruction to a bank (a body of the Federal Treasury, another authorized body opening and maintaining personal accounts) this taxpayer (another person) has other unfulfilled claims for the transfer of funds in payment of tax, which are presented to his account (personal account) and in accordance with the civil legislation of the Russian Federation are executed as a matter of priority, and if on this account (personal account) there is not enough balance to meet all requirements.
(as amended by Federal Law No. 401-FZ of November 30, 2016)
5. The obligation to pay tax is fulfilled in the currency of the Russian Federation, unless otherwise provided by this Code. The recalculation of the tax amount calculated in foreign currency in the cases provided for by this Code into the currency of the Russian Federation shall be carried out at the official rate of the Central Bank of the Russian Federation as of the tax payment date.
(As amended by the Federal Laws of November 24, 2008 N 205-FZ, of December 27, 2009 N 374-FZ)
6. Failure to fulfill the obligation to pay tax is the basis for the application of measures for the enforcement of the obligation to pay tax, provided for by this Code.
7. An order to transfer tax to the budget system of the Russian Federation is filled in in accordance with the rules established by the Ministry of Finance of the Russian Federation in agreement with central bank Russian Federation.
If a taxpayer (another person who has submitted an instruction to the bank to transfer funds to the budget system of the Russian Federation on account of paying tax on behalf of the taxpayer) discovers an error in drawing up an instruction to transfer tax that did not result in the non-transfer of the relevant funds to the budget system of the Russian Federation, the taxpayer within three years from the date of transfer of such funds to the budget system of the Russian Federation, the right to submit to the tax authority at the place of registration an application for clarification of the payment in connection with an error made with the attachment to it of documents confirming the payment of the relevant tax and its transfer to the budget system of the Russian Federation, with a request to clarify the basis, type and affiliation of the payment, the tax period, the status of the payer or the account of the Federal Treasury.
An application for clarification of payment may be submitted on paper or in electronic form with an enhanced qualified electronic signature via telecommunication channels or through Personal Area taxpayer.
The tax authority has the right to demand from the bank a hard copy of the instruction for the transfer of tax to the budget system of the Russian Federation, drawn up by the taxpayer or another person who has submitted an instruction to the bank for the transfer of funds to the budget system of the Russian Federation on account of tax payment for the taxpayer. The bank is obliged to submit to the tax authority a copy of the said order within five days from the date of receipt of the tax authority's request.
In the case provided for by this paragraph, on the basis of an application for clarifying the taxpayer's payment, the tax authority shall make a decision to clarify the payment as of the day the tax is actually paid to the budget system of the Russian Federation.
If a tax authority detects an error in issuing an order to transfer a tax that did not result in the non-transfer of the relevant funds to the budget system of the Russian Federation, the tax authority, within three years from the date of transfer of such funds to the budget system of the Russian Federation, independently decides to clarify the payment on the day of the actual payment of tax to the budget system of the Russian Federation.
The decision to clarify the payment is made in the cases provided for by this paragraph, if this clarification does not entail the taxpayer's arrears.
When clarifying a payment, the tax authority shall recalculate the penalties accrued on the amount of tax for the period from the day of its actual payment to the budget system of the Russian Federation until the day the tax authority makes a decision to clarify the payment.
The tax authority shall notify the taxpayer of the decision to clarify the payment within five days from the date of the decision.
The rules established by this paragraph shall also apply to the single tax payment of an individual.
(Clause 7 as amended by Federal Law No. 232-FZ of July 29, 2018)
8. The rules provided for by this article also apply to fees, penalties, fines and apply to fee payers, tax agents and the responsible member of a consolidated group of taxpayers.
(as amended by Federal Laws No. 321-FZ of November 16, 2011, No. 243-FZ of July 3, 2016, No. 401-FZ of November 30, 2016)
9. The rules provided for by this article also apply to insurance premiums and apply to payers of insurance premiums, subject to the provisions of this paragraph.
Clarification of payment in terms of the amount of insurance premiums for compulsory pension insurance is not made if, according to the information of the territorial body of the Pension Fund of the Russian Federation, information about this amount is recorded on the individual personal account of the insured person in accordance with the legislation of the Russian Federation on individual (personalized) accounting in the system compulsory pension insurance.
(Clause 9 was introduced by Federal Law No. 401-FZ of November 30, 2016)
Article 45.1. Single tax payment of an individual
(introduced by Federal Law No. 232-FZ of July 29, 2018)
1. A single tax payment of an individual shall be recognized as funds voluntarily transferred to the budget system of the Russian Federation to the appropriate account of the Federal Treasury by a taxpayer - an individual in fulfillment of the obligation to pay transport tax, land tax and (or) property tax of individuals.
2. Payment of a single tax payment of an individual may be made for the taxpayer by another person. At the same time, another person is not entitled to demand the return from the budget system of the Russian Federation of the unified tax payment of an individual paid for the taxpayer.
3. The single tax payment of an individual is transferred to the budget system of the Russian Federation at the place of residence of the taxpayer - an individual (place of stay - if such a person does not have a place of residence on the territory of the Russian Federation), and if the taxpayer - an individual does not have a place of residence and place of stay on the territory of the Russian Federation - at the location of one of the real estate objects belonging to such a person.
4. The offset of the amount of a single tax payment of an individual is carried out by the tax authority independently against the upcoming payments of the taxpayer - an individual for the taxes specified in paragraph 1 of this article, or against the payment of arrears on the specified taxes and (or) debt on the relevant penalties payable interest in accordance with this Code.
The decision to offset the amount of a single tax payment of an individual is made by the tax authority at the place of residence of this individual (place of stay - if such a person does not have a place of residence on the territory of the Russian Federation), and if the taxpayer - an individual does not have a place of residence and place of stay in the territory of the Russian Federation - by the tax authority at the location of one of the real estate objects belonging to such a person.
5. The amount of a single tax payment of an individual shall be offset against the forthcoming payments of a taxpayer - an individual for taxes specified in paragraph 1 of this article, within the established time limits for the payment of such taxes sequentially starting from a smaller amount of tax, unless otherwise provided by paragraph 6 of this article.
The tax authority is obliged to inform the taxpayer - an individual about the decision taken to set off the amount of the single tax payment of an individual within five days from the date of the due date for the payment of the relevant taxes specified in paragraph 1 of this article.
6. If a taxpayer - an individual has an arrears in taxes specified in paragraph 1 of this article, and (or) arrears on the relevant penalties payable in accordance with this Code, the offset of the amount of a single tax payment of an individual against the payment of such arrears and (or) the debt is paid no later than ten days from the date of receipt of a single tax payment of an individual in the budget system of the Russian Federation to the appropriate account of the Federal Treasury. The tax authority is obliged to inform the taxpayer - an individual about the decision taken to set off the amount of the single tax payment of an individual within five days from the date of its adoption.
If, as of the date the tax authority makes a decision on such a set-off, the balance of funds transferred to the budget system of the Russian Federation as a single tax payment of an individual is less than the total amount of the arrears and (or) debts indicated in paragraph one of this clause, the set-off is carried out sequentially starting with the arrears with a smaller amount. In the absence of tax arrears specified in paragraph 1 of this article, the offset is carried out sequentially starting from the debt on penalties with a smaller amount, and in the absence of debt on penalties - starting from the debt on interest payable in accordance with this Code, with a smaller amount. amount.
7. A taxpayer that is an individual has the right to a refund of funds transferred to the budget system of the Russian Federation as a single tax payment of an individual for which the tax authority has not made a decision on offset in accordance with paragraphs 5 and 6 of this article.
The return of the funds indicated in the first paragraph of this paragraph within their balance is carried out by the tax authority specified in paragraph 4 of this article, at the request of the taxpayer - an individual on the basis of a decision of the tax authority within one month from the date of receipt of such an application.
The decision to return (refuse to return) the funds transferred to the budget system of the Russian Federation as a single tax payment of an individual is made by the tax authority within ten days from the date of receipt of the relevant application.
Before the expiration of the decision on the return, the order for the return of funds, issued on the basis of such a decision of the tax authority, shall be sent by the tax authority to the territorial body of the Federal Treasury for the return in accordance with the budget legislation of the Russian Federation.
The tax authority is obliged to inform the taxpayer - an individual about the decision taken within five days from the date of such decision.
8. If the return of funds transferred to the budget system of the Russian Federation as a single tax payment of an individual is carried out in violation of the deadline established by paragraph 7 of this article, the tax authority in the amount of the balance of funds that was not returned to the individual within the established period, interest payable to this individual is calculated for each calendar day of violation of the return period.
The interest rate is taken equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days of violation of the repayment period.
9. The territorial body of the Federal Treasury that has returned the funds transferred to the budget system of the Russian Federation as a single tax payment of an individual shall notify the tax authority of the date of return and the amount of money returned to the individual.
10. If the interest provided for in paragraph 8 of this article has not been paid to the taxpayer - an individual in full, the tax authority shall decide to pay the remaining amount of interest calculated on the basis of the date of actual return to this person of the amounts of money transferred to the budget system of the Russian Federation as a single tax payment of an individual, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the date of return and the amount of funds returned to the specified person.
Before the expiration of the period established by paragraph one of this clause, an instruction for the payment of the remaining amount of interest, drawn up on the basis of a decision of the tax authority to pay this amount, shall be sent by the tax authority to the territorial body of the Federal Treasury for a refund.
11. Payment of a single tax payment of an individual, offset and (or) return of funds transferred to the budget system of the Russian Federation as a single tax payment of an individual, and payment to an individual of interest accrued in accordance with this article shall be made in the currency of the Russian Federation.
Article 46 , as well as at the expense of its electronic money
(As amended by the Federal Laws of 06/27/2011 N 162-FZ, of 07/03/2016 N 243-FZ, of 11/30/2016 N 401-FZ, of 11/27/2017 N 343-FZ)
(as amended by Federal Law No. 137-FZ of July 27, 2006)
1. In the event of non-payment or incomplete payment of tax within the established period, the obligation to pay tax shall be enforced by foreclosing money (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur in banks and his electronic money, with the exception of funds on special electoral accounts, special accounts of referendum funds.
(as amended by Federal Laws No. 162-FZ of 27.06.2011, No. 110-FZ of 26.04.2016, No. 343-FZ of 27.11.2017)
1.1. In case of non-payment or incomplete payment within the established period of tax payable by a participant in an investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax records), in connection with the implementation of the investment partnership agreement ( with the exception of corporate income tax arising in connection with the participation of this partner in an investment partnership agreement), the obligation to pay this tax is enforced by foreclosing money (precious metals) on the accounts of the investment partnership.
In the absence or insufficiency of funds (precious metals) on the accounts of the investment partnership, the recovery is made from the funds (precious metals) on the accounts of the managing partners. In this case, in the first place, the collection is levied on cash (precious metals) on the accounts of the managing partner responsible for maintaining tax records.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
In the absence or insufficiency of funds (precious metals) on the accounts of the managing partners, a penalty is levied on the funds (precious metals) on the accounts of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
2. Tax collection is carried out by the decision of the tax authority (hereinafter in this article - the decision on collection) by sending on paper or in electronic form to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, instructions of the tax authority to write-off and transfer to the budget system of the Russian Federation of the necessary funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur.
(as amended by Federal Laws No. 229-FZ of 27.07.2010, No. 97-FZ of 29.06.2012)
The form and procedure for sending to the bank an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or an individual entrepreneur to the budget the system of the Russian Federation on paper is established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these instructions are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.
(the paragraph was introduced by Federal Law No. 248-FZ of July 23, 2013)
The procedure for sending to the bank an instruction from a tax authority to write off and transfer funds to the budget system of the Russian Federation from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or individual of an entrepreneur in electronic form is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees.
(The paragraph was introduced by Federal Law No. 229-FZ of July 27, 2010, as amended by Federal Law No. 162-FZ of June 27, 2011, and No. 97-FZ of June 29, 2012)
3. The decision to collect shall be made after the expiration of the time period specified in the tax payment claim, but not later than two months after the expiration of the specified time period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization or individual entrepreneur the amount of tax due. An application may be filed with the court within six months after the expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court.
The decision to collect is brought to the attention of the taxpayer (tax agent) - an organization or an individual entrepreneur within six days after the said decision is made.
If it is impossible to hand over the decision on recovery to the taxpayer (tax agent) against receipt or otherwise transfer it, indicating the date of its receipt, the decision on recovery is sent by registered mail and is considered received after six days from the date of sending the registered letter.
3.1. In case of insufficiency or absence of funds on the accounts and electronic funds of the taxpayer (tax agent) - organization or in the absence of information about the accounts (details of corporate electronic means of payment used for electronic money transfers), the tax amount not exceeding five million rubles is collected in the manner prescribed by the budgetary legislation of the Russian Federation, at the expense of funds reflected in the personal accounts of the specified taxpayer (tax agent) - organization.
To collect tax in accordance with the first paragraph of this paragraph, the tax authority sends a decision on collection on paper or in electronic form to the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, at the place where the personal account of the taxpayer (tax agent) is opened .
If a taxpayer (tax agent) - organization fails to comply with the decision of the tax authority to recover within three months from the date of its receipt by the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation, this authority informs the tax authority that sent it decision on recovery, within ten days after the expiration of the specified period on paper or in electronic form.
The form, format and procedure for sending to the bodies that open and maintain personal accounts in accordance with the budgetary legislation of the Russian Federation, decisions on the recovery from the funds reflected in the personal accounts of the taxpayer (tax agent) - organization, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Federal Treasury.
The form, format and procedure for sending a notice of non-execution of a decision to recover at the expense of funds reflected in the personal accounts of the taxpayer (tax agent) by the bodies that open and maintain personal accounts in accordance with the budget legislation of the Russian Federation, to the tax authorities are approved by the Federal Treasury in agreement with federal executive body authorized to control and supervise taxes and fees.
(Clause 3.1 was introduced by Federal Law No. 347-FZ of November 4, 2014)
4. An instruction from a tax authority to transfer amounts of tax to the budgetary system of the Russian Federation shall be sent to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, and are subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.
4.1. The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is suspended:
upon the decision of the tax authority to suspend the operation of the relevant instruction when the tax authority makes a decision in accordance with Article 64 of this Code;
upon receipt from the bailiff-executor of the decision to seize the funds (electronic funds) of the taxpayer (tax agent) - an organization or an individual entrepreneur located in banks;
by decision of a higher tax authority in the cases provided for by this Code.
The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is resumed upon the decision of the tax authority to cancel the suspension of the relevant order.
The tax authorities shall decide on the withdrawal of unfulfilled (in whole or in part) instructions for debiting and transferring funds from the accounts of taxpayers (tax agents) - organizations or individual entrepreneurs or instructions for the transfer of electronic funds of taxpayers (tax agents) - organizations or individual entrepreneurs in the budget system of the Russian Federation in the following cases:
changing the deadline for paying taxes and fees, as well as penalties and fines in accordance with this Code;
fulfillment of the obligation to pay taxes, fees, penalties, fines, interest provided for by this Code, including in connection with the offset against arrears and debts on penalties and fines in accordance with this Code;
writing off arrears, arrears on penalties and fines, interest provided for, as well as Article 176.1 of this Code, recognized as uncollectible in accordance with this Code;
reduction of the amount of tax, fee, penalty interest according to the specified tax return submitted in accordance with this Code;
receipt by the tax authority from the bank of information on the balances of funds on other accounts (electronic money balances) of the taxpayer in accordance with both Articles 76 and Article 86 of this Code for the purpose of recovery under the decision on recovery adopted in accordance with paragraph 3 of this article.
The forms and procedure for sending to the bank the decisions of the tax authority specified in this paragraph on paper shall be established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these decisions are approved by the federal executive body authorized to control and supervise taxes and fees, in agreement with the Central Bank of the Russian Federation.
The procedure for sending the decisions of the tax authority specified in this paragraph to the bank in electronic form is approved by the Central Bank of the Russian Federation in agreement with the federal executive body authorized to control and supervise taxes and fees.
(Clause 4.1 was introduced by Federal Law No. 248-FZ of July 23, 2013)
5. An instruction from a tax authority to transfer tax must contain an indication of those accounts of the taxpayer (tax agent) - organization or individual entrepreneur, from which the tax must be transferred, and the amount to be transferred.
Tax collection can be carried out from ruble settlement (current) accounts, in case of insufficient or no funds in ruble accounts - from foreign currency accounts, and in case of insufficient or no funds in foreign currency accounts - from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur unless otherwise provided by this article.
The collection of tax from the currency accounts of a taxpayer (tax agent) - organization or individual entrepreneur is carried out in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of sale of the currency. When collecting tax from foreign currency accounts, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur and transfer of funds within the same period from the sale of foreign currency in the amount of the tax payable to the settlement (current) account of the taxpayer (tax agent). Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent).
Collection of tax from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur is based on the value of precious metals, equivalent to the amount of payment in rubles. In this case, the value of precious metals is determined on the basis of the accounting price for precious metals established by the Central Bank of the Russian Federation as of the date of sale of precious metals. When collecting tax from accounts in precious metals, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends the bank an order to sell, no later than the next day, the precious metals of the taxpayer (tax agent) - organization or individual entrepreneur in the amount necessary for execution instructions for the transfer of tax, and the transfer within the same period of funds from the sale of precious metals to the settlement (current) account of the taxpayer (tax agent). Expenses related to the sale of precious metals are covered by the taxpayer (tax agent).
Tax is not collected from the deposit account (deposit in precious metals) of the taxpayer (tax agent) if the term of the deposit agreement (bank deposit agreement in precious metals) has not expired.
If there is a deposit agreement, the tax authority has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the taxpayer (tax agent) after the expiration of the deposit agreement, if by this time the instruction of the tax authority sent to this bank for tax transfer.
If there is a bank deposit agreement in precious metals, the tax authority has the right to give the bank an instruction to sell precious metals in the amount necessary for the execution of the order to transfer tax, after the expiration of the said agreement and transfer funds from the sale of precious metals in the amount of the tax to be collected on the settlement account. (current) account of the taxpayer (tax agent), if by that time the order of the tax authority sent to this bank to transfer tax has not been executed.
Forms and formats of instructions from tax authorities to banks for the sale of foreign currency and precious metals by taxpayers (tax agents) - organizations, individual entrepreneurs are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.
(Clause 5 as amended by Federal Law No. 343-FZ of November 27, 2017)
6. The order of the tax authority to transfer the tax shall be executed by the bank no later than one business day following the day of receipt of the specified order by it, if the tax is collected from ruble accounts, no later than two business days if the tax is collected from foreign currency accounts, if this does not violate the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, if the tax is collected from accounts in precious metals.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an instruction from the tax authority to transfer tax, such an instruction is executed as funds (precious metals) are received into these accounts no later than one business day following the day of each such receipt to ruble accounts, no later than two business days following the day of each such receipt to foreign currency accounts, unless this violates the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, following the day of each such receipt on accounts in precious metals.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
6.1. If there is insufficient or no money on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur, the tax authority has the right to collect tax at the expense of electronic money.
Collection of tax at the expense of electronic money of a taxpayer (tax agent) - organization or individual entrepreneur is carried out by sending to the bank where electronic money is located, instructions from the tax authority to transfer electronic money to the account of the taxpayer (tax agent) - organization or individual entrepreneur in the bank.
The instruction of the tax authority for the transfer of electronic money must contain an indication of the details of the corporate electronic means of payment of the taxpayer (tax agent) - an organization or individual entrepreneur, using which the transfer of electronic money is to be carried out, an indication of the amount to be transferred, as well as the details of the account of the taxpayer (tax agent) - an organization or an individual entrepreneur.
Tax collection can be carried out at the expense of electronic money balances in rubles, and in case of their insufficiency, at the expense of electronic money balances in foreign currency. When collecting tax at the expense of electronic money balances in foreign currency and specifying in the instruction of the tax authority for the transfer of electronic money the currency account of the taxpayer (tax agent) - organization or individual entrepreneur, the bank transfers electronic money to this account.
When collecting tax at the expense of electronic money balances in foreign currency and indicating in the order of the tax authority to transfer electronic money the ruble account of the taxpayer (tax agent) - organization or individual entrepreneur, the head (deputy head) of the tax authority simultaneously with the order of the tax authority to transfer electronic sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur. Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent). The Bank transfers electronic money to the ruble account of a taxpayer (tax agent) - an organization or an individual entrepreneur in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of the transfer of electronic money.
If there is insufficient or no electronic money of a taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an order from the tax authority to transfer electronic money, such an order is executed as soon as the electronic money is received.
The tax authority's instruction to transfer electronic money shall be executed by the bank no later than one business day following the day it receives the said order, if the tax is collected at the expense of electronic money balances in rubles, and no later than two business days if the tax is collected at the expense of electronic money balances in foreign currency.
(Clause 6.1 was introduced by Federal Law No. 162-FZ of June 27, 2011)
7. In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or his electronic money or in the absence of information about the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or information about the details of his corporate electronic means of payment used for electronic money transfers, the tax authority is entitled to collect tax at the expense of other property of the taxpayer (tax agent) - organization or individual entrepreneur in accordance with this Code.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
With regard to corporate income tax for a consolidated group of taxpayers, the tax authority has the right to collect tax at the expense of other property of one or more participants in this group if there is insufficient or no money (precious metals) on the bank accounts of all participants in the specified consolidated group of taxpayers or their electronic money or in the absence of information about the accounts of these persons or information about the details of their corporate electronic means of payment used for electronic money transfers.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
The provisions of the first paragraph of this paragraph shall apply to a taxpayer (tax agent) - an organization upon receipt by the tax authority of a notification from the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, of the impossibility of executing the decision of the tax authority to recover at the expense of monetary funds, reflected on the personal accounts of the taxpayer (tax agent) - organization.
(paragraph introduced by Federal Law No. 347-FZ of November 4, 2014)
(Clause 7 as amended by Federal Law No. 162-FZ of June 27, 2011)
7.1. Foreclosure on the property of participants in an investment partnership agreement in accordance with this Code is allowed only in the absence or insufficiency of funds (precious metals) on accounts, electronic money balances in investment partnership banks, managing partners and partners.
(Clause 7.1 was introduced by Federal Law No. 336-FZ of November 28, 2011; as amended by Federal Law No. 343-FZ of November 27, 2017)
8. When tax is collected by a tax authority, in accordance with the procedure and under the conditions established by this Code, the suspension of operations on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur in banks or the suspension of electronic money transfers can be applied.
(As amended by Federal Law No. 162-FZ of June 27, 2011)
8.1. From the date of revocation of a banking license from a credit institution, the collection of tax at the expense of cash (precious metals) on accounts with such a credit institution is carried out taking into account the provisions of the Federal Law "On Banks and Banking Activity" and Federal Law No. 127 of October 26, 2002 -FZ "On Insolvency (Bankruptcy)".
(Clause 8.1 was introduced by Federal Law No. 144-FZ of July 28, 2012, as amended by Federal Laws No. 462-FZ of December 29, 2014, and No. 343-FZ of November 27, 2017)
9. The provisions of this Article shall also apply to the collection of penalties for late payment of taxes and insurance premiums.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
10. The provisions of this article shall also apply to the collection of fees, insurance premiums and fines in the cases provided for by this Code.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
11. The provisions of this article shall apply when collecting corporate income tax for a consolidated group of taxpayers, relevant penalties and fines at the expense of cash (precious metals) on bank accounts of participants in this group, taking into account the following features:
(as amended by Federal Law No. 343-FZ of November 27, 2017)
1) collection of tax at the expense of cash (precious metals) in bank accounts is primarily carried out at the expense of cash (precious metals) of the responsible member of the consolidated group of taxpayers;
(as amended by Federal Law No. 343-FZ of November 27, 2017)
2) in case of insufficiency (absence) of funds (precious metals) on bank accounts with the responsible member of the consolidated group of taxpayers to collect the entire amount of tax, the collection of the remaining uncollected amount of tax is carried out at the expense of funds (precious metals) in banks successively from all other participants in this groups, while the tax authority independently determines the sequence of such collection based on the information it has about taxpayers. The basis for the collection of tax in this case is the demand sent to the responsible member of the consolidated group of taxpayers. In case of insufficiency (absence) of funds (precious metals) on the bank accounts of a member of the consolidated group of taxpayers when tax is collected in the manner provided for in this subparagraph, the remaining uncollected amount shall be collected at the expense of funds (precious metals) in banks with any other participant in this groups;
(as amended by Federal Law No. 343-FZ of November 27, 2017)
3) when tax is paid, including in part, by one of the participants in the consolidated group of taxpayers, the collection procedure for the part paid is terminated;
4) a member of a consolidated group of taxpayers in respect of which a decision has been made to collect corporate profit tax for a consolidated group of taxpayers shall be subject to the rights and guarantees provided for by this article for taxpayers;
5) the decision on collection is made in accordance with the procedure established by this article, after the expiration of the period specified in the demand for the payment of tax sent to the responsible participant in the consolidated group of taxpayers, but not later than six months after the expiration of the specified period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court at the place where the responsible member of the consolidated group of taxpayers is registered with the tax authority with an application to collect tax simultaneously from all participants in the consolidated group of taxpayers. Such an application may be filed with the court within six months after the expiration of the period for collecting the tax established by this article. The deadline for filing an application missed for a good reason may be restored by the court;
6) the decision on recovery made in respect of the responsible participant or other member of the consolidated group of taxpayers, the actions or inaction of tax authorities and their officials in the implementation of the recovery procedure may be challenged by such participants on the grounds related to the violation of the procedure for the implementation of the recovery procedure.
Article 47
(as amended by Federal Law No. 243-FZ of July 3, 2016)
(as amended by Federal Law No. 137-FZ of November 4, 2005)
1. In the case provided for in Article 46 of this Code, the tax authority has the right to collect tax at the expense of property, including at the expense of cash of a taxpayer (tax agent) - an organization or an individual entrepreneur within the amounts specified in the tax payment claim, and taking into account the amounts in respect of which collection was made in accordance with this Code.
The collection of tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur is carried out by decision of the head (deputy head) of the tax authority by sending it on paper or in electronic form within three days from the date of issuance of such a decision of the relevant decision to the bailiff for execution in the manner prescribed by the Federal Law "On Enforcement Proceedings", taking into account the specifics provided for by this article.
(as amended by Federal Laws No. 137-FZ of 27.07.2006, No. 97-FZ of 29.06.2012)
The decision to collect tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur is made within one year after the expiration of the deadline for fulfilling the tax payment requirement. The decision to collect tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization or individual entrepreneur the amount of tax due. An application may be filed with the court within two years from the date of expiry of the deadline for fulfilling the claim for payment of the tax. The deadline for filing an application missed for a good reason may be restored by the court.
(The paragraph was introduced by Federal Law No. 137-FZ of July 27, 2006, as amended by Federal Laws No. 229-FZ of July 27, 2010, and No. 324-FZ of November 29, 2010)
2. The resolution on the collection of tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur must contain:
1) the surname, name, patronymic of the official and the name of the tax authority that issued the said resolution;
2) the date and number of the decision of the head (deputy head) of the tax authority on the collection of tax at the expense of the property of the taxpayer or tax agent;
(as amended by Federal Law No. 137-FZ of July 27, 2006)
3) the name and address of the taxpayer-organization or the tax agent-organization or the last name, first name, patronymic, passport data, address of the permanent place of residence of the taxpayer-individual entrepreneur or tax agent-individual entrepreneur whose property is foreclosed;
4) the operative part of the decision of the head (deputy head) of the tax authority on the collection of tax at the expense of the property of the taxpayer (tax agent) - organization or individual entrepreneur;
(as amended by Federal Law No. 137-FZ of July 27, 2006)
5) has expired. - Federal Law of June 29, 2012 N 97-FZ;
6) the date of issuance of the said resolution.
3. The resolution on the collection of tax is signed by the head (deputy head) of the tax authority and certified by the official seal of the tax authority.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
4. Executive actions must be committed and the requirements contained in the decision, executed by the bailiff within two months from the date of receipt of the specified decision.
5. Collection of tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur is carried out sequentially in relation to:
1) cash, cash and precious metals in banks that have not been levied in accordance with this Code;
(as amended by Federal Laws No. 137-FZ of 27.07.2006, No. 343-FZ of 27.11.2017)
2) property that is not directly involved in the production of products (goods), in particular securities, currency values, non-production premises, cars, office space design items;
3) finished products(goods), as well as other material assets not participating and (or) not intended for direct participation in production;
4) raw materials and materials intended for direct participation in production, as well as machine tools, equipment, buildings, structures and other fixed assets;
5) property transferred under an agreement to the possession, use or disposal of other persons without the transfer of ownership of this property to them, if such agreements are terminated or invalidated in accordance with the established procedure in order to ensure the fulfillment of the obligation to pay tax;
6) other property, with the exception of that intended for everyday personal use by an individual entrepreneur or members of his family, determined in accordance with the legislation of the Russian Federation.
5.1. Collection of tax payable by a participant in an investment partnership agreement - a managing partner responsible for maintaining tax records (hereinafter referred to in this article as a managing partner responsible for maintaining tax records), in connection with the implementation of an investment partnership agreement (with the exception of corporate income tax arising from in connection with the participation of this partner in the investment partnership agreement), is made at the expense of the common property of the partners.
In the absence or insufficiency of the common property of the partners, the collection is made at the expense of the property of the managing partners. In this case, first of all, the collection is levied on the property of the managing partner responsible for maintaining tax records.
In case of absence or insufficiency of the property of the managing partners, the recovery is levied on the property of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.
(Clause 5.1 was introduced by Federal Law No. 336-FZ of November 28, 2011)
6. In the event of tax collection at the expense of property that is not monetary (precious metals on which tax collection is levied in accordance with this Code), a taxpayer (tax agent) - an organization or an individual entrepreneur, the obligation to pay tax is considered fulfilled from the moment the property is sold taxpayer (tax agent) - organization or individual entrepreneur and repayment of the debt of the taxpayer (tax agent) - organization or individual entrepreneur at the expense of the proceeds.
(as amended by Federal Law No. 343-FZ of November 27, 2017)
7. Officials of tax authorities (customs authorities) shall not be entitled to acquire the property of a taxpayer (tax agent) - an organization or an individual entrepreneur, which is sold in the procedure for executing a decision on the collection of tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur.
8. The provisions provided for by this article shall also apply when collecting penalties for late payment of tax, insurance premiums, as well as fines in cases provided for by this Code.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
9. The provisions of this article shall also apply when collecting a fee (insurance premiums) at the expense of the property of the payer of the fee (payer of insurance premiums) - an organization or an individual entrepreneur.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
10. The provisions provided for by this article shall also apply when collecting taxes by customs authorities, subject to the provisions established by the customs legislation of the Customs Union and the legislation of the Russian Federation on customs affairs.
(as amended by Federal Law No. 306-FZ of November 27, 2010)
11. The provisions of this article shall apply when collecting corporate income tax on a consolidated group of taxpayers, relevant penalties and fines at the expense of the property of members of this group, taking into account the following features:
1) collection of tax at the expense of the property of participants in a consolidated group of taxpayers is primarily carried out at the expense of cash, money and precious metals in the banks of the responsible participant of this group, which were not levied in accordance with this Code;
(as amended by Federal Law No. 343-FZ of November 27, 2017)
2) if the responsible member of the consolidated group of taxpayers has insufficient (absence) cash, cash and precious metals in banks that have not been levied in accordance with this Code, tax is collected from other members of this group at the expense of cash , cash and precious metals in banks that have not been levied in accordance with this Code;
(as amended by Federal Law No. 343-FZ of November 27, 2017)
3) in case of insufficiency (absence) of cash, cash and precious metals in banks, which were not levied in accordance with this Code, the tax is collected at the expense of other property of the responsible participant of this group in the sequence, established by subparagraphs 2 - 6 of paragraph 5 of this article;
(as amended by Federal Law No. 343-FZ of November 27, 2017)
4) if the property of the responsible member of the consolidated group of taxpayers is insufficient to fulfill the obligation to pay corporate income tax for the consolidated group of taxpayers, relevant penalties and fines, the tax is collected at the expense of other property of other participants in this group in the sequence established by subparagraphs 2-6 of paragraph 5 of this articles.
(Clause 11 was introduced by Federal Law No. 321-FZ of November 16, 2011)
Article 48
(as amended by Federal Law No. 243-FZ of July 3, 2016)
(as amended by Federal Law No. 324-FZ of November 29, 2010)
1. If a taxpayer (payer of a levy, payer of insurance premiums) - an individual who is not an individual entrepreneur (hereinafter in this article - an individual) fails to fulfill the obligation to pay taxes, levies, insurance premiums, penalties, fines within the prescribed period (customs authority) that sent a request for payment of tax, fee, insurance premiums, penalties, fines , fines), has the right to apply to the court for the collection of tax, collection, insurance premiums, penalties, fines at the expense of property, including funds in bank accounts, electronic money, transfers of which are carried out using personalized electronic means of payment, precious metals on accounts (in deposits) in a bank, and cash, this physical whom of a person within the limits of the amounts specified in the demand for the payment of tax, dues, insurance premiums, penalties, fines, taking into account the specifics established by this article.
11/27/2017 N 343-FZ)
It is not allowed to collect taxes, fees, insurance contributions, penalties, fines at the expense of funds in special electoral accounts, special accounts of referendum funds.
(the paragraph was introduced by Federal Law No. 110-FZ of April 26, 2016; as amended by Federal Law No. 401-FZ of November 30, 2016)
An application for the collection of a tax, fee, insurance premiums, penalties, fines at the expense of the property of an individual (hereinafter in this article - an application for collection) is submitted in respect of all claims for the payment of tax, fee, insurance premiums, penalties, fines for which the deadline has expired execution and which are not executed by this natural person as of the date of submission by the tax authority (customs authority) of the application for recovery to the court.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
The specified application for recovery is submitted by the tax authority (customs authority) to the court if the total amount of the tax, due, insurance premiums, penalties, fines to be collected from an individual exceeds 3,000 rubles, except for the case provided for in paragraph three of clause 2 of this article .
(as amended by Federal Laws No. 20-FZ of March 4, 2013, No. 243-FZ of July 3, 2016)
A copy of the application for recovery no later than the day of its submission to the court shall be sent by the tax authority (customs authority) to the individual from whom taxes, fees, insurance premiums, penalties, fines.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
2. An application for recovery is filed with a court of general jurisdiction by a tax authority (customs authority) within six months from the date of expiration of the deadline for fulfilling a claim for payment of a tax, fee, insurance premiums, penalties, fines, unless otherwise provided by this paragraph.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
If within three years from the date of expiration of the deadline for fulfilling the earliest claim for the payment of tax, due, insurance premiums, penalties, fines, taken into account by the tax authority (customs authority) when calculating the total amount of tax, due, insurance premiums, penalties, fines to be collected from an individual, such an amount of taxes, fees, insurance premiums, penalties, fines exceeded 3,000 rubles, the tax authority (customs authority) applies to the court with an application for recovery within six months from the date when the specified amount exceeded 3,000 rubles.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
If within three years from the date of expiration of the deadline for fulfilling the earliest claim for the payment of tax, due, insurance premiums, penalties, fines, taken into account by the tax authority (customs authority) when calculating the total amount of tax, due, insurance premiums, penalties, fines to be collected from an individual, such an amount of taxes, fees, insurance premiums, penalties, fines did not exceed 3,000 rubles, the tax authority (customs authority) applies to the court with an application for recovery within six months from the date of expiration of the specified three-year period.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
3. Consideration of cases on the collection of taxes, dues, insurance premiums, penalties, fines at the expense of the property of an individual is carried out in accordance with the legislation on administrative proceedings.
(as amended by the Federal Laws of 08.03.2015 N 23-FZ, of 03.07.2016 N 243-FZ)
A claim for the collection of a tax, due, insurance premiums, penalties, fines at the expense of the property of an individual may be presented by the tax authority (customs authority) in the course of action proceedings no later than six months from the date the court issued a ruling to cancel the court order.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
The deadline for filing an application for recovery missed for a good reason can be restored by the court.
An application for recovery may be accompanied by a petition from the tax authority (customs authority) to seize the defendant's property in order to secure the claim.
4. The collection of tax, dues, insurance premiums, penalties, fines at the expense of the property of an individual on the basis of a judicial act that has entered into legal force is carried out in accordance with the Federal Law "On Enforcement Proceedings", taking into account the specifics provided for in this article.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
5. The collection of tax, dues, insurance premiums, penalties, fines at the expense of the property of an individual is carried out sequentially in relation to:
(as amended by Federal Law No. 243-FZ of July 3, 2016)
1) funds in bank accounts and electronic funds, transfers of which are carried out using personalized electronic means of payment, precious metals in accounts (in deposits) with a bank;
(as amended by Federal Laws No. 162-FZ of June 27, 2011, No. 343-FZ of November 27, 2017)
2) cash;
3) property transferred under an agreement to 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 taxes, fees, insurance premiums, penalties, fines, such agreements are terminated or declared invalid in in the prescribed manner;
(as amended by Federal Law No. 243-FZ of July 3, 2016)
4) other property, with the exception of that intended for everyday personal use by an individual or members of his family, determined in accordance with the legislation of the Russian Federation.
6. In case of collection of a tax, fee, insurance premiums, penalties, fines at the expense of the property of an individual that is not cash, the obligation to pay tax, fee, insurance premiums, penalties, fines shall be considered fulfilled from the moment of sale of such property and repayment of the debt for proceeds account. From the date of seizure of the said property and until the day of transfer of the proceeds to the budget system of the Russian Federation, penalties for late transfer of taxes, fees, insurance premiums are not accrued.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
7. Officials of tax authorities (customs authorities) are not entitled to acquire the property of an individual sold in the manner of execution of judicial acts on the collection of taxes, fees, insurance premiums, penalties, fines at the expense of the property of an individual.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
Article 49
(as amended by Federal Law No. 243-FZ of July 3, 2016)
1. The obligation to pay taxes, fees, insurance premiums (penalties, fines) of a liquidated organization shall be fulfilled by the liquidation commission at the expense of the funds of the said organization, including those received from the sale of its property.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
2. If the funds of a liquidated organization, including those received from the sale of its property, are not sufficient to fulfill in full the obligation to pay taxes, fees, insurance premiums, due penalties and fines, the remaining debt must be repaid by the founders (participants) of the said organization in within the limits and in the manner established by the legislation of the Russian Federation.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 243-FZ of July 3, 2016)
3. The sequence of fulfillment of obligations for the payment of taxes, dues, insurance premiums in the event of liquidation of an organization among settlements with other creditors of such an organization is determined by the civil legislation of the Russian Federation.
(as amended by Federal Law No. 243-FZ of July 3, 2016)
4. Amounts of taxes, fees (penalties, fines) overpaid by the organization being liquidated or excessively collected from this organization shall be subject to offset by the tax authority against repayment of arrears on other taxes, fees and debts of the organization being liquidated on penalties and fines in the manner established by this Code.
(as amended by Federal Laws No. 243-FZ of July 3, 2016, No. 401-FZ of November 30, 2016)
The offsetable amount of overpaid or overcharged taxes, fees (penalties, fines) is distributed in proportion to the arrears on other taxes, fees and debts of the liquidated organization for penalties, fines payable (collectible) to the budget system of the Russian Federation, control over the calculation and payment of which assigned to the tax authorities.
(as amended by Federal Laws No. 243-FZ of July 3, 2016, No. 401-FZ of November 30, 2016)
If the liquidated organization has no debt to fulfill the obligation to pay taxes, fees, as well as to pay penalties, fines, the amount of taxes, fees (penalties, fines) overpaid or overcharged by this organization is subject to return to this organization in the manner established by this Code, not later than one month from the date of filing the application of the organization.
(as amended by Federal Laws No. 243-FZ of July 3, 2016, No. 401-FZ of November 30, 2016)
The amounts of insurance premiums overpaid by an organization in liquidation or overcharged from this organization, relevant penalties, fines are subject to offset, refund by the tax authority in the manner established respectively by Articles 78 and Articles 79 of this Code.
(paragraph introduced by Federal Law No. 401-FZ of November 30, 2016)
(Clause 4 as amended by Federal Law No. 137-FZ of July 27, 2006)
5. The provisions provided for by this article shall also apply when paying taxes in connection with the movement of goods across the customs border of the Customs Union.
(clause 5 was introduced by the Customs Code of the Russian Federation of May 28, 2003 N 61-FZ, as amended by Federal Laws of July 29, 2004 N 95-FZ, of November 27, 2010 N 306-FZ)
Article 50
(as amended by Federal Laws No. 137-FZ of July 27, 2006, No. 243-FZ of July 3, 2016)
1. The obligation to pay taxes of a reorganized legal entity shall be fulfilled by its legal successor (successors) in accordance with the procedure established by this article.
2. Fulfillment of tax obligations of a reorganized legal entity shall be assigned to its legal successor (successors), regardless of whether the successor (successors) were aware of the facts and (or) circumstances of non-performance or improper performance by the reorganized legal entity of the specified obligations prior to the completion of the reorganization. In this case, the successor (successors) must pay all fines due for the duties transferred to him.
The successor (successors) of the reorganized legal entity shall also be obliged to pay the due amounts of fines imposed on the legal entity for committing tax offenses before the completion of its reorganization. The successor (successors) of the reorganized legal entity, in the performance of the obligations imposed on it by this article to pay taxes and fees, shall enjoy all the rights, perform all the duties in the manner prescribed by this Code for taxpayers.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
3. The reorganization of a legal entity does not change the terms for the fulfillment of its obligations to pay taxes by the legal successor (successors) of this legal entity.
4. In the event of a merger of several legal entities, the legal entity that has arisen as a result of such a merger shall be recognized as their legal successor in terms of fulfilling the obligation to pay taxes.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
5. When one legal entity is merged with another legal entity, the successor of the merged legal entity in terms of fulfilling the obligation to pay taxes is recognized as the legal entity that merged it.
6. Upon division, the legal entities resulting from such division shall be recognized as legal successors of the reorganized legal entity in terms of fulfilling the obligation to pay taxes.
7. If there are several legal successors, the share of participation of each of them in the performance of the duties of the reorganized legal entity for the payment of taxes is determined in the manner prescribed by the civil legislation.
If the separation balance sheet does not allow determining the share of the legal successor of the reorganized legal entity or excludes the possibility of fulfilling the obligations to pay taxes in full by any successor and such reorganization was aimed at non-fulfillment of the obligations to pay taxes, then by a court decision, the newly emerged legal entities may jointly and severally fulfill the obligation on payment of taxes of the reorganized entity.
(As amended by Federal Law No. 154-FZ of July 9, 1999)
8. When separating one or more legal entities from a legal entity, there is no succession in relation to the reorganized legal entity in terms of fulfilling its obligations to pay taxes (penalties, fines). If, as a result of the separation of one or more legal entities from the legal entity, the taxpayer is unable to fully fulfill the obligation to pay taxes (penalties, fines) and such reorganization was aimed at non-fulfillment of the obligation to pay taxes (penalties, fines), then by decision spun off legal entities may jointly and severally fulfill the obligation to pay taxes (penalties, fines) of the reorganized entity.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
9. When one legal entity is transformed into another, the legal successor of the reorganized legal entity in terms of fulfilling the obligations to pay taxes is recognized as a newly emerged legal entity.
10. The amount of tax (penalties, fines) overpaid by a legal entity or overcharged before its reorganization is subject to offset by the tax authority against the fulfillment by the successor (successors) of the obligation of the reorganized legal entity to pay arrears on other taxes and fees, debts on penalties and fines for a tax offence. Set-off is made no later than one month from the date of completion of the reorganization in the manner prescribed by this Code, taking into account the specifics provided for by this article.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
The offsetable amount of the tax, due (penalties, fines) overpaid by a legal entity or overcharged from it before the reorganization is distributed in proportion to the arrears on other taxes, dues and debts of the reorganized legal entity in respect of penalties and fines payable (collected) to the budget system of the Russian Federation , control over the calculation and payment of which is entrusted to the tax authorities.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
If the reorganized legal entity has no debt to fulfill the obligation to pay tax, as well as to pay penalties and fines, the amount of overpaid or overcharged tax (penalties, fines) by this legal entity shall be returned to its successor (successors) no later than one month from the date of filing the successor (successors) of the application in the manner prescribed by this Code. At the same time, the amount of overpaid tax (penalties, fines) by a legal entity or overcharged tax (penalties, fines) before its reorganization shall be returned to the successor (successors) of the reorganized legal entity in accordance with the share of each successor, determined on the basis of the separating balance sheet.
(as amended by Federal Laws No. 154-FZ of July 9, 1999, No. 137-FZ of July 27, 2006)
11. The rules provided for by this article shall also apply in the following cases:
1) when fulfilling the obligation to pay a fee, insurance premiums during the reorganization of a legal entity;
2) when determining the successor (successors) of a foreign organization reorganized in accordance with the legislation of a foreign state;
3) when paying taxes in connection with the movement of goods across the customs border of the Eurasian Economic Union;
4) in the performance of the duty of a tax agent for the payment of calculated and withheld personal income tax in the event of reorganization of a legal entity.
(Clause 11 as amended by Federal Law No. 335-FZ of November 27, 2017)
12 - 13. Lost their power. - Federal Law of November 27, 2017 N 335-FZ.
Article 51
(as amended by Federal Law No. 243-FZ of July 3, 2016)
1. The obligation to pay taxes and dues of a natural person recognized as missing by a court shall be performed by a person authorized by the body of guardianship and guardianship to manage the property of the missing person.
A person authorized by the body of guardianship and guardianship to manage the property of a missing person is obliged to pay the entire amount of taxes and fees unpaid by the taxpayer (payer of the fee), as well as penalties and fines due on the day the person was declared missing. The indicated amounts are paid at the expense of the funds of an individual recognized as missing.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
2. The obligation to pay taxes and dues of a natural person recognized by the court as legally incompetent shall be fulfilled by his guardian at the expense of the financial resources of this legally incompetent person. The guardian of an individual recognized by the court as legally incompetent is obliged to pay the entire amount of taxes and fees not paid by the taxpayer (payer of the fee), as well as penalties and fines due on the day the person was declared legally incompetent.
(Clause 2 as amended by Federal Law No. 154-FZ of July 9, 1999)
3. The fulfillment of the obligation to pay taxes and dues of individuals recognized as missing or incapacitated, as well as the obligation to pay due penalties and fines, is suspended by decision of the relevant tax authority in the event of insufficient (absence) of the funds of these individuals to fulfill the specified obligation.
When a decision is made in accordance with the established procedure to cancel the recognition of an individual as missing or incapacitated, the suspended fulfillment of the obligation to pay taxes and fees is resumed from the date of the adoption of the said decision.
4. Persons who, in accordance with this article, are charged with the obligation to pay taxes and fees of individuals recognized as missing or legally incompetent, enjoy all the rights, perform all duties in the manner prescribed by this Code for taxpayers and payers of fees, taking into account the specifics, provided for in this article. The said persons, in the course of fulfilling the duties assigned to them by this Article, and who in connection with this are called to account for guilty commission of tax offenses, shall not have the right to pay the fines provided for by this Code at the expense of the property of a person recognized as missing or legally incompetent, respectively.
(Clause 4 was introduced by Federal Law No. 154-FZ of July 9, 1999)
5. The provisions provided for by this article shall also apply when fulfilling the obligation to pay insurance premiums.
(Clause 5 was introduced by Federal Law No. 243-FZ of July 3, 2016)
Article 52
(as amended by Federal Law No. 243-FZ of July 3, 2016)
(as amended by Federal Law No. 229-FZ of July 27, 2010)
1. A taxpayer independently calculates the amount of tax payable for a tax period based on the tax base, tax rate and tax benefits, unless otherwise provided by this Code.
(as amended by Federal Law No. 321-FZ of November 16, 2011)
The payer of insurance premiums independently calculates the amount of insurance premiums payable for the billing period, based on the base for calculating insurance premiums and the tariff, unless otherwise provided by this Code.
(the paragraph was introduced by Federal Law No. 243-FZ of July 3, 2016)
2. In cases stipulated by the legislation of the Russian Federation on taxes and fees, the obligation to calculate the amount of tax may be assigned to a tax authority or a tax agent.
If the obligation to calculate the amount of tax is assigned to the tax authority, not later than 30 days before the due date for payment, the tax authority sends a tax notice to the taxpayer.
The tax payable by individuals in respect of real estate and (or) vehicles is calculated by the tax authorities for no more than three tax periods preceding the calendar year in which the tax notice is sent.
(the paragraph was introduced by Federal Law No. 52-FZ of April 2, 2014)
2.1. The recalculation of the amounts of previously calculated taxes specified in paragraph 3 of Article 14 and paragraphs 1 and 2 of Article 15 of this Code is carried out for no more than three tax periods preceding the calendar year of sending a tax notice in connection with the recalculation, unless otherwise provided by this paragraph.
The recalculation provided for by the first paragraph of this paragraph in respect of the taxes specified in paragraphs 1 and 2 of Article 15 of this Code shall not be carried out if it entails an increase in the previously paid amounts of these taxes.
(Clause 2.1 was introduced by Federal Law No. 334-FZ of August 3, 2018)
3. The tax notice must indicate the amount of tax payable, the object of taxation, the tax base, the tax payment deadline, as well as the information necessary to transfer the tax to the budget system of the Russian Federation.
(as amended by Federal Law No. 52-FZ of April 2, 2014, No. 546-FZ of December 27, 2018)
A tax notice may include details of more than one tax payable.
The form of a tax notice is approved by the federal executive body authorized to control and supervise taxes and fees.
4. A tax notice may be handed over to the head of an organization (its legal or authorized representative) or an individual (his legal or authorized representative) in person against receipt, sent by registered mail or transmitted electronically via telecommunication channels or through the taxpayer's personal account. If a tax notice is sent by registered mail, the tax notice shall be deemed received after six days from the date of sending the registered letter.
(As amended by Federal Laws No. 97-FZ dated June 29, 2012, No. 347-FZ dated November 4, 2014)
The formats and procedure for sending a tax notice to a taxpayer in electronic form via telecommunication channels are established by the federal executive body authorized to control and supervise taxes and fees.
(As amended by Federal Law No. 97-FZ of June 29, 2012)
If the total amount of taxes calculated by the tax authority is less than 100 rubles, the tax notice is not sent to the taxpayer, except for the case of sending a tax notice in a calendar year, after which the tax authority loses the opportunity to send a tax notice in accordance with paragraph three of clause 2 of this article.
(the paragraph was introduced by Federal Law No. 113-FZ of May 2, 2015)
5. The amount of corporate income tax calculated for a consolidated group of taxpayers shall be calculated by the responsible member of this group on the basis of the data available to him, including data provided by other members of the consolidated group.
(Clause 5 was introduced by Federal Law No. 321-FZ of November 16, 2011)
6. The tax amount is calculated in full rubles. A tax amount less than 50 kopecks is discarded, and a tax amount of 50 kopecks or more is rounded up to the full ruble.
(Clause 6 was introduced by Federal Law No. 248-FZ of July 23, 2013)
Article 53. Tax base and tax rate, fees
1. The tax base is the cost, physical or other characteristics of the object of taxation. The tax rate is the amount of tax charges per unit of measurement of the tax base. The tax base and the procedure for its determination, as well as the tax rates for federal taxes and the amounts of fees for federal fees, are established by this Code.
(as amended by Federal Law No. 127-FZ of November 2, 2004)
2. The tax base and the procedure for its determination for regional and local taxes are established by this Code. Tax rates for regional and local taxes are established by the laws of the constituent entities of the Russian Federation, regulatory legal acts of the representative bodies of municipalities, respectively, within the limits established by this Code.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
Article 54 General issues tax base calculation
1. Taxpaying organizations calculate the tax base at the end of each tax period based on register data accounting and (or) on the basis of other documented data on objects subject to taxation or related to taxation.
If errors (distortions) are found in the calculation of the tax base relating to previous tax (reporting) periods, in the current tax (reporting) period, the tax base and the amount of tax are recalculated for the period in which the indicated errors (distortions) were committed.
(as amended by Federal Law No. 137-FZ of July 27, 2006)
If it is impossible to determine the period of errors (distortions), the recalculation of the tax base and the amount of tax is carried out for the tax (reporting) period in which errors (distortions) are revealed. The taxpayer has the right to recalculate the tax base and the amount of tax for the tax (reporting) period in which errors (distortions) related to previous tax (reporting) periods were detected, also in cases where the errors (distortions) made led to the excessive payment of tax .
(the paragraph was introduced by Federal Law No. 137-FZ of July 27, 2006, as amended by Federal Law No. 224-FZ of November 26, 2008)
2. Individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices calculate the tax base for the results of each tax period on the basis of income and expense records and business transactions in the manner determined by the Ministry of Finance of the Russian Federation.
(As amended by the Federal Laws of 07/09/1999 N 154-FZ, of 06/29/2004 N 58-FZ, of 07/27/2006 N 137-FZ)
3. The remaining taxpayers - individuals calculate the tax base on the basis of information received in established cases from organizations and (or) individuals on the amounts of income paid to them, on objects of taxation, as well as data on their own accounting of income received, objects of taxation, carried out in arbitrary forms .
(as amended by Federal Law No. 137-FZ of July 27, 2006)
4. The rules provided for in paragraphs 1 and 2 of this article also apply to tax agents.
(Clause 4 was introduced by Federal Law No. 137-FZ of July 27, 2006)
5. In the cases provided for by this Code, the tax authorities calculate the tax base based on the results of each tax period based on the data they have.
(Clause 5 was introduced by Federal Law No. 137-FZ of July 27, 2006)
6. The provisions on the recalculation of the tax base provided for in paragraph 1 of this article shall also apply when recalculating the base for calculating insurance premiums, unless otherwise provided by Chapter 34 of this Code.
(Clause 6 was introduced by Federal Law No. 243-FZ of July 3, 2016)
Article 54.1. Limits on exercising the rights to calculate the tax base and (or) the amount of tax, fee, insurance premiums
(introduced by Federal Law No. 163-FZ of July 18, 2017)
1. It is not allowed for a taxpayer to reduce the tax base and (or) the amount of tax payable as a result of distorting information about the facts of economic life (the totality of such facts), about the objects of taxation subject to reflection in the tax and (or) accounting or tax reporting of the taxpayer.
2. In the absence of the circumstances provided for by paragraph 1 of this article, for the transactions (operations) that have taken place, the taxpayer has the right to reduce the tax base and (or) the amount of tax payable in accordance with the rules of the relevant chapter of part two of this Code, subject to the following conditions:
1) the main purpose of the transaction (operation) is not non-payment (incomplete payment) and (or) offset (refund) of the amount of tax;
2) the obligation under a transaction (operation) has been fulfilled by a person who is a party to an agreement concluded with a taxpayer and (or) by a person to whom the obligation to execute a transaction (operation) has been transferred under an agreement or law.
3. For the purposes of paragraphs 1 and 2 of this article, the signing of primary accounting documents by an unidentified or unauthorized person, violation by the taxpayer's counterparty of the legislation on taxes and fees, the possibility of the taxpayer obtaining the same result of economic activity when making other transactions (operations) not prohibited by law cannot be considered as an independent basis for recognizing the reduction by the taxpayer of the tax base and (or) the amount of tax payable as unlawful.
4. The provisions of this article also apply to fees and insurance premiums and apply to fee payers, insurance premium payers and tax agents.
Article 55. Tax period
1. A tax period is understood to mean a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. A tax period may consist of one or more reporting periods, taking into account the specifics established by this article.
(as amended by Federal Laws of 07/09/1999 N 154-FZ, of 07/27/2006 N 137-FZ, dated)
3. Upon termination of an organization through liquidation or reorganization (termination by an individual of activities as an individual entrepreneur), the last tax period for such an organization (such an individual entrepreneur) is the period of time from January 1 of the calendar year in which the organization was terminated (the state registration of an individual became invalid as an individual entrepreneur), until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
If an organization is created and terminated by liquidation or reorganization (the state registration of an individual as an individual entrepreneur has been completed and is no longer valid) within a calendar year, the tax period for such an organization (such an individual entrepreneur) is the period from the day the organization was established (the state registration of an individual as an individual entrepreneur) until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
If the organization was established (the state registration of an individual as an individual entrepreneur was completed) in the period from December 1 to December 31 of one calendar year and terminated through liquidation or reorganization (the state registration of an individual as an individual entrepreneur has become invalid) before the end of the calendar year following the year of establishment of an organization (state registration of an individual as an individual entrepreneur), the tax period for such an organization (such an individual entrepreneur) is the period of time from the day the organization was created (state registration of an individual as an individual entrepreneur) until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
(Clause 3 as amended by the Federal Law dated)
3.2. When an organization is terminated by liquidation or reorganization (termination by an individual of activities as an individual entrepreneur), the last tax period for such an organization (such an individual entrepreneur) is the period of time from the beginning of the quarter in which the organization was terminated (state registration of an individual as an individual entrepreneur became invalid ), until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
If an organization is created and terminated by liquidation or reorganization (the state registration of an individual as an individual entrepreneur has been completed and is no longer valid) in one quarter, the tax period for such an organization (such an individual entrepreneur) is the period of time from the day the organization was created (the state registration of an individual in as an individual entrepreneur) until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
If the organization was established (the state registration of an individual as an individual entrepreneur was completed) less than 10 days before the end of the quarter and terminated through liquidation or reorganization (the state registration of an individual as an individual entrepreneur has become invalid) before the end of the quarter following the quarter in which an organization was created (state registration of an individual as an individual entrepreneur was carried out), the tax period for such an organization (such an individual entrepreneur) is the period of time from the day the organization was created (state registration of an individual as an individual entrepreneur) until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
(Clause 3.2 was introduced by the Federal Law dated)
3.4. When an organization is terminated by liquidation or reorganization (termination by an individual of activities as an individual entrepreneur), the last tax period for such an organization (such an individual entrepreneur) is the period of time from the beginning of the calendar month in which the organization was terminated (the state registration of an individual as an individual entrepreneur became invalid). entrepreneur), until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
If an organization is created and terminated by liquidation or reorganization (the state registration of an individual as an individual entrepreneur is carried out and has become invalid) in one calendar month, the tax period for such an organization (such an individual entrepreneur) is the period from the date of the organization's creation (state registration of an individual as an individual entrepreneur) until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
(Clause 3.4 was introduced by the Federal Law dated)
3.5. In order to fulfill the duties of a tax agent for personal income tax and in order to determine the settlement period for insurance premiums, the start and end dates of the tax (calculation) period are determined subject to the provisions established by this paragraph.
When creating an organization (state registration of an individual as an individual entrepreneur), the first tax (calculation) period for such an organization (such an individual entrepreneur) is the period of time from the date of establishment of the organization (state registration of an individual as an individual entrepreneur) until the end of the calendar year, in in which the organization was created (state registration of an individual as an individual entrepreneur was carried out).
When registering with a tax authority a lawyer, mediator, notary engaged in private practice, arbitration manager, appraiser, patent attorney and other persons engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation, the first settlement period for such persons is the period from the date of registration for registration with the tax authority until the end of the calendar year in which such persons were registered with the tax authority.
When an organization is terminated by liquidation or reorganization (termination by an individual of activities as an individual entrepreneur), the last tax (calculation) period for such an organization (such an individual entrepreneur) is the period from the beginning of the calendar year until the day of state registration of the termination of the organization as a result of liquidation or reorganization ( loss of force of the state registration of an individual as an individual entrepreneur).
When a lawyer, mediator, notary engaged in private practice, arbitration manager, appraiser, patent attorney and other persons engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation are deregistered with the tax authority, the last settlement period for such persons is the period from the beginning of the calendar years before the date of deregistration with the tax authority of such persons.
If an organization is created and terminated by liquidation or reorganization (the state registration of an individual as an individual entrepreneur has been completed and has become invalid) within a calendar year, the tax (calculation) period for such an organization (such an individual entrepreneur) is the period from the day the organization (state registration of an individual as an individual entrepreneur) until the day of state registration of the termination of the organization as a result of liquidation or reorganization (loss of state registration of an individual as an individual entrepreneur).
If the registration and deregistration with the tax authority of a lawyer, mediator, notary engaged in private practice, insolvency practitioner, appraiser, patent attorney and other persons engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation are carried out during the calendar year, the billing period for such persons is the period of time from the date of registration with the tax authority until the day of deregistration of such persons with the tax authority.
(Clause 3.5 was introduced by the Federal Law dated)
Art. 46 Tax Code of the Russian Federation describes the mechanism by which the Federal Tax Service can directly write off funds from accounts in financial and credit institutions and from electronic wallets of organizations to cover debts on taxes, fees, penalties, fines. Its provisions quite often allow for a double interpretation, in connection with which numerous disputes arise between fiscal authorities and business entities.
List of actions regulated by Article 46 of the Tax Code of the Russian Federation (Law of July 31, 1998 No. 146-FZ)
Before studying all the subtleties and controversial points of the described article, it is necessary to study its content in more detail. IN Art. 46 NK The Russian Federation is considering rules, algorithms and restrictions, based on which representatives of the Federal Tax Service will demand from companies and individuals arrears in fiscal payments, as well as penalties and penalties by withdrawing funds available to the debtor in bank and electronic accounts.
To implement the described actions, the tax authorities present a collection order to the bank, in which they indicate the amount due to be transferred to the budget. But before this step, they need to follow certain rules and perform several mandatory preliminary procedures:
- After detecting tax underpayment, the inspectorate notifies the payer of this fact and offers to repay the discovered amount voluntarily before the agreed date. This is done by sending a demand to the debtor, which must indicate the period during which the funds must fall into the accounts of the treasury. If the debt is not repaid before the date indicated in it, after 2 months after the end of the allotted period, the Federal Tax Service may begin the collection process in accordance with Art. 46 Tax Code of the Russian Federation.
- Prior to the transfer of the collection order, the fiscal authorities must form a decision on collection in the form introduced by Appendix 4 to the order of the Federal Tax Service of the Russian Federation dated 03.10.2012 No. ะะะ-7-8/662.
For reclamation by means of a collection order, settlement or, if funds are insufficient, personal accounts of the debtor can be used.
NOTE! For some types of accounts there are restrictions on debiting amounts from them on a collection order.
What is not a resource to cover debts to the budget under the terms of Art. 46 Tax Code of the Russian Federation
The types of accounts from which money can be debited without acceptance are clearly indicated in Article 46 of the Tax Code RF:
- settlement;
- personal.
Based on this, is it correct to assume that there are no other sources for debt repayment in a similar manner?
The answer will be in the affirmative, in particular, the following types of accounts do not fall into the category of the following types of accounts available for collection:
- Metal - they are designed to store precious metals and funds are not placed on them. This is the reason for the impossibility of covering the debt at the expense of resources on them.
- Loan - their main purpose is related to the settlement of loan repayment.
- Transit - they are registered as auxiliary for currency accounts and are used exclusively for short-term placement of funds before their sale. These accounts are opened without additional contracts and information transfer to the tax authorities, in this regard, they cannot be used for the purpose of debiting funds from them on collection orders.
In addition, the requirement cannot be used for term deposits. However, at the end of the period of keeping funds on deposit, the Federal Tax Service has the right to demand their transfer to the current account, after which the debt to the budget can also be repaid according to the issued order.
Is it permissible to issue a collection order before the end of the period allotted for repayment of the debt
It is possible to issue a collection order before the end of the period allotted for paying the debt according to the requirement issued earlier by the tax authorities. No restrictions on this subject. 46 does not contain. However, in practice, many inspectorates, to the general displeasure of taxpayers, in addition to early processing, also carry out early transfer of a collection order to banking institutions, regularly use this interpretation of the provisions of the article. Do the actions of inspectors in such cases comply with the letter of the law?
The law enforcement practice of the courts in this matter is rather contradictory.
On the one hand, such actions of the tax authorities are recognized as inconsistent with legal norms. This is indicated by the Federal Antimonopoly Service of the East Siberian District in the resolution of August 31, 2012 No. A78-10449 / 2011, the Federal Antimonopoly Service of the Moscow District in the resolution of July 23, 2012 No. A40-12689 / 12-116-24. As a result, collection orders sent to the bank ahead of schedule were cancelled.
However, there are certain circumstances in which such conclusions would not be so obvious. In particular, the creation of a collection order earlier than the deadline for repaying the debt does not contradict the norms of the law, if no funds were withdrawn from the taxpayer's account. This position was expressed in the resolution dated March 1, 2013 No. ะ66-5703/2010 of the Federal Antimonopoly Service of the Northwestern District.
How funds are withdrawn to pay off debts from the accounts of a liquidated company
A lot of questions are raised by the forced repayment of debt to the budget and extra-budgetary funds by liquidated companies. For a more detailed consideration of this problem, it is imperative to take into account the decisions made by the judiciary.
The repayment of tax debts upon termination of the company's activities has the third priority according to the provisions of Art. 64 of the Civil Code of the Russian Federation. It turns out that until the claims of the debtors of the previous stage are fully satisfied, the tax authorities are not entitled to levy collection on the organization on the basis of Art. 46 Tax Code of the Russian Federation.
This approach has been confirmed by the Ministry of Finance of the Russian Federation for many years. In particular, in the clarifications given in the letter dated July 29, 2008 No. 03-02-07 / 1-319, it was stated that the requirement to close the resulting debt to the budget should be made only after the formation of the liquidation balance sheet, drawn up and approved by a specially created for this a group of specialists. Thus, representatives of the Federal Tax Service should not send a collection order to the bank until the liquidation balance is agreed upon and the debts of the first and second stages are paid.
However, not so long ago, the views of officials of the financial department have changed somewhat. The previous statement about the illegality of withdrawing funds from the company's accounts before the completion of all processes related to the termination of activities, remained in force. However, in a letter dated August 24, 2011 No. 03-02-07 / 1-303, the Ministry of Finance clarified that tax authorities are not prohibited from generating a collection order to collect the amount necessary to cover the existing budget debt from the resources available to the liquidation commission. Similarly, it became possible for the Federal Tax Service to send a collection order before drawing up the liquidation balance sheet and completing all liquidation processes.
How to file an appeal against the actions of the Federal Tax Service for issuing a collection order
The procedure for exercising the right to collect debts by fiscal authorities on the basis of Art. 46 NK includes 2 stages:
- sending the debtor a written notice of the need to pay the missing amounts as soon as possible;
- if the organization is unwilling to comply with the received order - the forced debiting of the necessary amounts from its accounts by issuing a collection order.
What should a taxpayer do if, for objective reasons, he does not agree with some specific actions of the tax authorities?
First of all, on the basis of paragraph 2 of Art. 138 of the Tax Code of the Russian Federation, any actions of tax authorities or, on the contrary, their inaction can be appealed by the company to a higher body of the Federal Tax Service. If such an appeal of the organization did not bring the desired result, it has the right to file a lawsuit in court. The number of positive decisions on such issues is quite significant.
In addition, in one of its resolutions (dated July 30, 2013 No. 57) Supreme Court The Russian Federation requires companies to defend their rights by filing a claim for the recognition of a collection order as invalid.
NOTE! As a justification for your disagreement with the requirements put forward, you can present, in particular, the discrepancy between the calculated amount of the claim and the data obtained on the basis of the documents available to the payer.
In addition, the resolution emphasizes that the current provisions of the Tax Code of the Russian Federation do not contain provisions requiring companies to resolve their differences out of court.
Substantiation of the complaint against the unlawful claim for recovery under Art. 46 Tax Code of the Russian Federation
The requirement received from the tax authorities on the need for short term pay off the resulting debt may be perceived by the company as inconsistent with the existing regulatory framework. In such cases, companies have the opportunity to go to court to challenge such a requirement. These actions are not regulated by existing regulations, and their final result depends on what the judges ultimately decide. The number of precedents for such decisions is quite large, while the arbitrators identified a fairly wide list of circumstances for canceling the requirements of the tax authorities:
- The absence of an indication in the operative part of the decision of the Federal Tax Service prior to the issuance of the claim, the amount of tax debt contained in the claim itself, may be one of the reasons for declaring it invalid. Such a decision was made in the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 28, 2012 No. A31-5137/2011. A similar position was also expressed in relation to penalties payable on the basis of Art. 46 of the Tax Code of the Russian Federation, in the resolution of the FAS of the East Siberian District of 04/07/2011 No. A58-5241 / 2010.
- Incorrectly specified name of the fiscal payment, on which the arrears arose, is also a reason for canceling the requirement. At the same time, even if in previous decisions made by the Federal Tax Service prior to filing a claim, the name of the payment is indicated correctly, this does not matter. Such a conclusion is contained in the resolution of the FAS of the East Siberian District dated March 12, 2007 No. A33-10002 / 06-F02-1037 / 07. At the same time, only the wrong name of the tax cannot be the only reason for refusing to satisfy the requirement, the company must have disagreements with the Federal Tax Service regarding the very fact of having a debt, this is indicated by the decision of the Federal Antimonopoly Service of the Urals District dated February 19, 2007 No. F90-669 / 07-SZ .
- The absence or incorrect indication of the legal norms on the basis of which the decision to collect arrears was made also serves as a basis for refusing to recognize the claim as legitimate. This was reported in the information letter of the Supreme Arbitration Court of the Russian Federation of August 11, 2004 No. 79.
It is not uncommon for a company to fail to cancel a claim in full, but it manages to mitigate its losses at the expense of penalties. Such an outcome is possible if the requirement does not formulate or incorrectly formulates justifications for their accrual. For example, it may be the absence of indications of the period for the payment of tax, during which sanctions are not applied. This position was stated by the judges in the decision of the Federal Antimonopoly Service of the Volga District dated January 29, 2013 No. A65-15962 / 2012. The absence of an indication of the Central Bank's refinancing rate, at which penalties were calculated, can also be a condition for a legal refusal to pay them.
Does the inspectorate have the right to claim a debt after the expiration of the allotted time for this?
The period during which the tax service can issue a collection order to the company for direct debiting of funds from the account is limited to two months after the deadline for the fulfillment of obligations specified in the request. If this time period is missed, forced collection becomes impossible. However, this circumstance does not deprive the tax authorities of the right to apply to the judicial authorities with a claim for the repayment of the resulting amount of debt. What are the prospects for such actions of the inspection?
The Supreme Court of the Russian Federation in Resolution No. 57 indicated that the tax authorities have the right to file a lawsuit with the court to recover the debt from the payer even after the expiration of 2 months reflected in the claim for recovery. At the same time, the arbitrators must make an informed decision on the merits of the dispute that has arisen, having considered all the available facts and having heard both sides of the conflict.
In addition, paragraph 3 of Art. 46 Tax Code of the Russian Federation it is possible to do this within 6 months after the deadline specified in the demand for the payment of the resulting amount of debt. Even if this opportunity is missed by the Federal Tax Service (that is, the allotted six-month period is missed), its representatives can send a request to the court to restore the deadline.
The Supreme Court of the Russian Federation allows the possibility of extending the period for filing a claim, but if there is a written request from representatives of the Federal Tax Service.
Another argument that can incline judges to the side of the tax authorities is the existence of a good reason for missing the deadline for filing a claim. However, these reasons cannot include the need to coordinate their actions with the higher body of the Federal Tax Service, the absence of the head due to a business trip or ongoing staff changes and other circumstances due to internal problems of the department. In this regard, the chances of the inspection to restore the time allotted for the claim are not so high.
What is the minimum amount of debt to be collected without acceptance?
The smallest amount of tax underpayment that can be claimed by the tax authorities is not defined in any way by the Tax Code of the Russian Federation. Based on this fact, it turns out that they can claim any debt, even a very small one, in the manner described in the previous sections. Is it so? The study of this aspect is of interest to small organizations or private entrepreneurs, this is due to the fact that the issuance of collection orders in relation to them is perceived by banks as a negative sign in assessing creditworthiness. It is possible that the arrears are scanty and they simply did not remember about it, for example, if the amount of the arrears is several rubles.
At the same time, in fact, the Tax Code of the Russian Federation contains provisions that partly regulate such situations. In particular, in paragraph 1 of Art. 70 states that the claim for payment of tax must be sent to the company no later than 3 months after the fact of underpayment is revealed. At the same time, if the amount of the debt does not exceed 500 rubles, this period may be extended to a year, if this does not contradict paragraph 2 of Art. 70 of the Tax Code of the Russian Federation. That is, a company that has incurred such a small debt, most likely, will have time to put its calculations with the budget in order and avoid possible negative consequences.
However, in practice, the situation is quite common when the management and the accountant, due to various circumstances, leave such amounts without due attention. If we rely on the opinion of officials, set out in the letter of the Federal Tax Service of the Russian Federation of 08/05/2015 No. ED-4-8 / 13673, then the Tax Code of the Russian Federation, and in particular Art. 46, does not contain any minimum limits on the amount of recoverable debt.
Based on this, the tax authorities are in no way limited in terms of the amount of debt forcibly collected from the company.
IT SHOULD BE NOTED! According to the tax authorities, only the Ministry of Finance of the Russian Federation can make a decision on establishing the minimum allowable volume of unpaid obligations, but this moment no acts on this issue have been adopted, and therefore the actions of the Federal Tax Service in this regard are legal.
How is the total amount claimed from several debtors
It is not uncommon for a tax or duty debt to arise from an association, a group of companies operating jointly in the form of an investment partnership, holding, or consortium. What is the procedure for recovering the arisen underpayments in accordance with Art. 46 Tax Code of the Russian Federation under similar circumstances?
With regard to partnerships, clause 1.1 of Art. 46 of the Tax Code of the Russian Federation, according to which the initial collection is levied on the accounts of the managing member who maintains tax records. If there are few funds in his bank accounts and they are not enough to cover the debt, the corresponding requirements are sent to all other partners. In this case, the remaining amount is divided based on specific gravity participation of each of them in the business of the partnership.
For other financial and industrial associations, there are clarifications set out in the letter of the Federal Tax Service dated 08/05/2015 No. ED-4-8 / 13673. It states that the initial collection of the amount of the debt is carried out from the funds of the responsible participant, and only in the event of a lack of resources to cover the obligation that has arisen, it can be addressed to the rest of the group members.
NOTE! The specific mechanism and sequence of foreclosure against a group of legal entities is determined by the Federal Tax Service at its discretion, based on the information it has.
How a claim for payment is presented to a member of a group of legal entities
A more detailed consideration requires the question of how a debt repayment requirement is made against a company that is a member of an association of legal entities if it does not have enough funds in its accounts.
If we literally interpret the provisions of the law No. 146-FZ Art. 46 Tax Code of the Russian Federation, then it does not contain any indications of the admissibility of issuing collection orders for bank accounts of third-party organizations. Nevertheless, if we turn to paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, it follows from its content that representatives of the Federal Tax Service can levy debt collection on the funds of another legal entity if the connection between it and the debtor is clearly proven during the court session. Based on the above, the following conclusion can be drawn: if the company was unable to pay off the arrears to the budget that it had incurred, then another company can be forced to do this, provided that their interdependence is established by the court.
At the same time, it is highly likely that the tax authorities will have to make the final settlement under Art. 47 of the Tax Code of the Russian Federation at the expense of various assets available to the taxpayer, and not just cash. For this, Art. 46 there are relevant instructions.
The sequence of collection of debt at the expense of property or cash
No less relevant for organizations is the question of whether the tax inspectorate can immediately resort to the provisions of Art. 47 of the Tax Code of the Russian Federation and use the company's property as a source of debt coverage, not taking into account the provisions of Art. 46, that is, without making an initial claim on bank accounts?
The main point of the existing regulatory framework is that, under any circumstances, the initial foreclosure must be carried out at the expense of monetary resources in the company's accounts. Only if there are few of them and it will not be possible to close the debt in this way, the Federal Tax Service should resort to the option of paying the amount of debt at the expense of the company's property.
If you turn to judicial practice, then the answer may not be as simple as it seems at first glance. The Supreme Court of the Russian Federation unequivocally determined in its resolution No. 57 that the use of the organization's material resources as a source of repayment of underpayment is permissible only if the inspection used all the possibilities to recover the debt from the funds in the accounts. In addition, if the tax authority has not made a decision to levy collection at the expense of the company's funds, it is not entitled to claim debt coverage at the expense of other types of its assets.
However, if at the time of the occurrence of arrears against the debtor, judicial proceedings were already underway to collect debts on other grounds, and more than one order was issued to repay them at the expense of funds in bank accounts, the Federal Tax Service has the right to immediately demand repayment of the debt at the expense of any property available to the company.
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The provisions of Art. 46 of the Tax Code of the Russian Federation, despite the fact that they have been used for a long time, still cause ambiguous interpretations - both with regard to the procedure for covering tax debts, and with regard to sources of repayment, as well as ways to appeal decisions of the Federal Tax Service, etc. On some aspects of emerging problems, in addition to the norms of the Tax Code, one has to be guided by numerous letters from the Federal Tax Service, decisions of the Supreme and arbitration courts. At the same time, it should be remembered that the tax authorities must first repay the existing claims from the funds in the accounts in accordance with Art. 46 of the Tax Code and only in case of their insufficiency to foreclose on other property of the organization.
Only a settlement and personal account can act as a source of resources to cover the debt, the use of other types of bank accounts is unacceptable. When collecting a debt from a financial-industrial association, the managing participant must bear the initial responsibility, all other members of the group participate in the repayment only if there are insufficient funds in his bank accounts.
1.1. In case of non-payment or incomplete payment within the established period of tax payable by a participant in an investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax records), in connection with the implementation of the investment partnership agreement ( with the exception of corporate income tax arising in connection with the participation of this partner in an investment partnership agreement), the obligation to pay this tax is enforced by foreclosing money (precious metals) on the accounts of the investment partnership.
In the absence or insufficiency of funds (precious metals) on the accounts of the investment partnership, recovery is made at the expense of funds (precious metals) on the accounts of the managing partners. In this case, in the first place, the collection is levied on cash (precious metals) on the accounts of the managing partner responsible for maintaining tax records.
In the absence or insufficiency of funds (precious metals) on the accounts of the managing partners, a penalty is levied on the funds (precious metals) on the accounts of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.
2. Tax collection is carried out by the decision of the tax authority (hereinafter in this article - the decision on collection) by sending on paper or in electronic form to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, instructions of the tax authority to write-off and transfer to the budget system of the Russian Federation of the necessary funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur.
The form and procedure for sending to the bank an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or an individual entrepreneur to the budget the system of the Russian Federation on paper is established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these instructions are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.
The procedure for sending to the bank an instruction from a tax authority to write off and transfer funds to the budget system of the Russian Federation from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or individual of an entrepreneur in electronic form is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees.
3. The decision to collect shall be made after the expiration of the time period specified in the tax payment claim, but not later than two months after the expiration of the specified time period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization or individual entrepreneur the amount of tax due. An application may be filed with the court within six months after the expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court.
The decision to collect is brought to the attention of the taxpayer (tax agent) - an organization or an individual entrepreneur within six days after the said decision is made.
If it is impossible to hand over the decision on recovery to the taxpayer (tax agent) against receipt or otherwise transfer it, indicating the date of its receipt, the decision on recovery is sent by registered mail and is considered received after six days from the date of sending the registered letter.
3.1. In case of insufficiency or absence of funds on the accounts and electronic funds of the taxpayer (tax agent) - organization or in the absence of information about the accounts (details of corporate electronic means of payment used for electronic money transfers), the tax amount not exceeding five million rubles is collected in the manner prescribed by the budgetary legislation of the Russian Federation, at the expense of funds reflected in the personal accounts of the specified taxpayer (tax agent) - organization.
To collect tax in accordance with the first paragraph of this paragraph, the tax authority sends a decision on collection on paper or in electronic form to the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, at the place where the personal account of the taxpayer (tax agent) is opened .
If a taxpayer (tax agent) - organization fails to comply with the decision of the tax authority to recover within three months from the date of its receipt by the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation, this authority informs the tax authority that sent it decision on recovery, within ten days after the expiration of the specified period on paper or in electronic form.
The form, format and procedure for sending to the bodies that open and maintain personal accounts in accordance with the budgetary legislation of the Russian Federation, decisions on the recovery from the funds reflected in the personal accounts of the taxpayer (tax agent) - organization, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Federal Treasury.
The form, format and procedure for sending a notice of non-execution of a decision to recover at the expense of funds reflected in the personal accounts of the taxpayer (tax agent) by the bodies that open and maintain personal accounts in accordance with the budget legislation of the Russian Federation, to the tax authorities are approved by the Federal Treasury in agreement with federal executive body authorized to control and supervise taxes and fees.
4. An instruction from a tax authority to transfer amounts of tax to the budgetary system of the Russian Federation shall be sent to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, and are subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.
4.1. The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is suspended:
By decision of the tax authority to suspend the operation of the relevant order when the tax authority makes a decision in accordance with paragraph 6 of Article 64 of this Code;
Upon receipt from the bailiff-executor of the decision to seize the funds (electronic money) of the taxpayer (tax agent) - an organization or an individual entrepreneur located in banks;
By decision of a higher tax authority in cases provided for by this Code.
The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is resumed upon the decision of the tax authority to cancel the suspension of the relevant order.
The tax authorities shall decide on the withdrawal of unfulfilled (in whole or in part) instructions for debiting and transferring funds from the accounts of taxpayers (tax agents) - organizations or individual entrepreneurs or instructions for the transfer of electronic funds of taxpayers (tax agents) - organizations or individual entrepreneurs in the budget system of the Russian Federation in the following cases:
Changes in the deadline for payment of taxes and fees, as well as penalties and fines in accordance with Chapter 9 of this Code;
Fulfillment of the obligation to pay taxes, fees, penalties, fines, interest provided for by this Code, including in connection with the offset against arrears and debts on penalties and fines in accordance with Article 78 of this Code;
Write-offs of arrears, arrears on penalties and fines, interest provided for in Chapter 9, as well as Article 176.1 of this Code, recognized as uncollectible in accordance with Article 59 of this Code;
Reducing the amount of tax, fee, penalty interest on the revised tax return submitted in accordance with Article 81 of this Code;
Receipts to the tax authority from the bank of information on cash balances on other accounts (electronic money balances) of the taxpayer in accordance with paragraphs 5 and 9 of Article 76 and paragraph 2 of Article 86 of this Code for the purpose of recovery under the decision adopted in accordance with paragraph 3 of this Article about recovery.
The forms and procedure for sending to the bank the decisions of the tax authority specified in this paragraph on paper shall be established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these decisions are approved by the federal executive body authorized to control and supervise taxes and fees, in agreement with the Central Bank of the Russian Federation.
The procedure for sending the decisions of the tax authority specified in this paragraph to the bank in electronic form is approved by the Central Bank of the Russian Federation in agreement with the federal executive body authorized to control and supervise taxes and fees.
5. An instruction from a tax authority to transfer tax must contain an indication of those accounts of the taxpayer (tax agent) - organization or individual entrepreneur, from which the tax must be transferred, and the amount to be transferred.
Tax collection can be carried out from ruble settlement (current) accounts, in case of insufficient or no funds in ruble accounts - from foreign currency accounts, and in case of insufficient or no funds in foreign currency accounts - from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur unless otherwise provided by this article.
The collection of tax from the currency accounts of a taxpayer (tax agent) - organization or individual entrepreneur is carried out in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of sale of the currency. When collecting tax from foreign currency accounts, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur and transfer of funds within the same period from the sale of foreign currency in the amount of the tax payable to the settlement (current) account of the taxpayer (tax agent). Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent).
Collection of tax from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur is based on the value of precious metals, equivalent to the amount of payment in rubles. In this case, the value of precious metals is determined on the basis of the accounting price for precious metals established by the Central Bank of the Russian Federation as of the date of sale of precious metals. When collecting tax from accounts in precious metals, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends the bank an order to sell, no later than the next day, the precious metals of the taxpayer (tax agent) - organization or individual entrepreneur in the amount necessary for execution instructions for the transfer of tax, and the transfer within the same period of funds from the sale of precious metals to the settlement (current) account of the taxpayer (tax agent). Expenses related to the sale of precious metals are covered by the taxpayer (tax agent).
Tax is not collected from the deposit account (deposit in precious metals) of the taxpayer (tax agent) if the term of the deposit agreement (bank deposit agreement in precious metals) has not expired.
If there is a deposit agreement, the tax authority has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the taxpayer (tax agent) after the expiration of the deposit agreement, if by this time the instruction of the tax authority sent to this bank for tax transfer.
If there is a bank deposit agreement in precious metals, the tax authority has the right to give the bank an instruction to sell precious metals in the amount necessary for the execution of the order to transfer tax, after the expiration of the said agreement and transfer funds from the sale of precious metals in the amount of the tax to be collected on the settlement account. (current) account of the taxpayer (tax agent), if by that time the order of the tax authority sent to this bank to transfer tax has not been executed.
Forms and formats of instructions from tax authorities to banks for the sale of foreign currency and precious metals by taxpayers (tax agents) - organizations, individual entrepreneurs are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.
6. The order of the tax authority to transfer the tax shall be executed by the bank no later than one business day following the day of receipt of the specified order by it, if the tax is collected from ruble accounts, no later than two business days if the tax is collected from foreign currency accounts, if this does not violate the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, if the tax is collected from accounts in precious metals.
In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an instruction from the tax authority to transfer tax, such an instruction is executed as funds (precious metals) are received into these accounts no later than one business day following the day of each such receipt to ruble accounts, no later than two business days following the day of each such receipt to foreign currency accounts, unless this violates the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, following the day of each such receipt on accounts in precious metals.
6.1. If there is insufficient or no money on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur, the tax authority has the right to collect tax at the expense of electronic money.
Collection of tax at the expense of electronic money of a taxpayer (tax agent) - organization or individual entrepreneur is carried out by sending to the bank where electronic money is located, instructions from the tax authority to transfer electronic money to the account of the taxpayer (tax agent) - organization or individual entrepreneur in the bank.
The instruction of the tax authority for the transfer of electronic money must contain an indication of the details of the corporate electronic means of payment of the taxpayer (tax agent) - an organization or individual entrepreneur, using which the transfer of electronic money is to be carried out, an indication of the amount to be transferred, as well as the details of the account of the taxpayer (tax agent) - an organization or an individual entrepreneur.
Tax collection can be carried out at the expense of electronic money balances in rubles, and in case of their insufficiency, at the expense of electronic money balances in foreign currency. When collecting tax at the expense of electronic money balances in foreign currency and specifying in the instruction of the tax authority for the transfer of electronic money the currency account of the taxpayer (tax agent) - organization or individual entrepreneur, the bank transfers electronic money to this account.
When collecting tax at the expense of electronic money balances in foreign currency and indicating in the order of the tax authority to transfer electronic money the ruble account of the taxpayer (tax agent) - organization or individual entrepreneur, the head (deputy head) of the tax authority simultaneously with the order of the tax authority to transfer electronic sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur. Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent). The Bank transfers electronic money to the ruble account of a taxpayer (tax agent) - an organization or an individual entrepreneur in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of the transfer of electronic money.
If there is insufficient or no electronic money of a taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an order from the tax authority to transfer electronic money, such an order is executed as soon as the electronic money is received.
The tax authority's instruction to transfer electronic money shall be executed by the bank no later than one business day following the day it receives the said order, if the tax is collected at the expense of electronic money balances in rubles, and no later than two business days if the tax is collected at the expense of electronic money balances in foreign currency.
7. In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or his electronic money or in the absence of information about the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or information about the details of his corporate electronic means of payment used for electronic money transfers, the tax authority has the right to collect tax at the expense of other property of the taxpayer (tax agent) - organization or individual entrepreneur in accordance with Article 47 of this Code.
With regard to corporate income tax for a consolidated group of taxpayers, the tax authority has the right to collect tax at the expense of other property of one or more participants in this group if there is insufficient or no money (precious metals) on the bank accounts of all participants in the specified consolidated group of taxpayers or their electronic money or in the absence of information about the accounts of these persons or information about the details of their corporate electronic means of payment used for electronic money transfers.
The provisions of the first paragraph of this paragraph shall apply to a taxpayer (tax agent) - an organization upon receipt by the tax authority of a notification from the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, of the impossibility of executing the decision of the tax authority to recover at the expense of monetary funds, reflected on the personal accounts of the taxpayer (tax agent) - organization.
7.1. Foreclosure on the property of participants in an investment partnership agreement in accordance with Article 47 of this Code is allowed only in the absence or insufficiency of funds (precious metals) on accounts, electronic money balances in investment partnership banks, managing partners and partners.
8. When tax is collected by a tax authority, in accordance with the procedure and under the conditions established by Article 76 of this Code, the suspension of operations on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur in banks or the suspension of electronic money transfers can be applied.
8.1. From the date of revocation of a banking license from a credit institution, the collection of tax at the expense of cash (precious metals) on accounts with such a credit institution is carried out taking into account the provisions of the Federal Law "On Banks and Banking Activity" and Federal Law No. 127 of October 26, 2002 -FZ "On Insolvency (Bankruptcy)".
9. The provisions of this Article shall also apply to the collection of penalties for late payment of taxes and insurance premiums.
10. The provisions of this article shall also apply to the collection of fees, insurance premiums and fines in the cases provided for by this Code.
11. The provisions of this article shall apply when collecting corporate income tax for a consolidated group of taxpayers, relevant penalties and fines at the expense of cash (precious metals) on bank accounts of participants in this group, taking into account the following features:
1) collection of tax at the expense of cash (precious metals) in bank accounts is primarily carried out at the expense of cash (precious metals) of the responsible member of the consolidated group of taxpayers;
2) in case of insufficiency (absence) of funds (precious metals) on bank accounts with the responsible member of the consolidated group of taxpayers to collect the entire amount of tax, the collection of the remaining uncollected amount of tax is carried out at the expense of funds (precious metals) in banks successively from all other participants in this groups, while the tax authority independently determines the sequence of such collection based on the information it has about taxpayers. The basis for the collection of tax in this case is the demand sent to the responsible member of the consolidated group of taxpayers. In case of insufficiency (absence) of funds (precious metals) on the bank accounts of a member of the consolidated group of taxpayers when tax is collected in the manner provided for in this subparagraph, the remaining uncollected amount shall be collected at the expense of funds (precious metals) in banks with any other participant in this groups;
3) when tax is paid, including in part, by one of the participants in the consolidated group of taxpayers, the collection procedure for the part paid is terminated;
4) a member of a consolidated group of taxpayers in respect of which a decision has been made to collect corporate profit tax for a consolidated group of taxpayers shall be subject to the rights and guarantees provided for by this article for taxpayers;
5) the decision on collection is made in accordance with the procedure established by this article, after the expiration of the period specified in the demand for the payment of tax sent to the responsible participant in the consolidated group of taxpayers, but not later than six months after the expiration of the specified period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court at the place where the responsible member of the consolidated group of taxpayers is registered with the tax authority with an application to collect tax simultaneously from all participants in the consolidated group of taxpayers. Such an application may be filed with the court within six months after the expiration of the period for collecting the tax established by this article. The deadline for filing an application missed for a good reason may be restored by the court;
Recovery of a tax, fee, as well as penalties, fines at the expense of funds on the accounts of a taxpayer (payer of fees) - an organization, an individual entrepreneur or a tax agent - an organization, an individual entrepreneur in banks, as well as at the expense of his electronic money
The commented article is devoted to the foreclosure of the taxpayer's bank account.
The procedure for the forced collection of arrears (penalties, fines) on the basis of a decision of the tax authority that has entered into legal force is regulated by the provisions of Articles 45, 46, 69, 70 of the Tax Code of the Russian Federation and boils down to the following steps:
1) within 10 days from the date of entry into force of the decision, a demand is sent to the taxpayer for payment of arrears (penalties, fines);
2) further along general rule the collection of arrears (penalties, fines) from organizations and individual entrepreneurs is carried out by the tax authority in an indisputable manner by deciding to levy collection at the expense of monetary funds and issuing a collection order to the taxpayer's current account (this decision must be made no later than two months from the date of expiration of the fulfillment of the requirement);
3) in case of insufficiency or absence of funds on the accounts of the taxpayer or in the absence of information about these accounts, the tax authority has the right to collect tax at the expense of other property, adopting an appropriate decision within a year after the expiration of the deadline for fulfilling the tax payment requirement and sending it for enforcement to the bailiff -performer.
Consequently, the question of the judicial procedure for collecting arrears (penalties, fines) from organizations and individual entrepreneurs arises only if the tax authority did not implement the procedure for collecting the identified debt in an indisputable manner within the above time limits or a violation of this procedure was committed, expressed in non-acceptance within the established period of time, decisions on levying execution at the expense of funds in bank accounts or at the expense of other property of the taxpayer.
The indisputable collection of debts is limited to a two-month period, after which the tax authority within six months has the right to collect in court.
According to the legal position formulated in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 11, 2010 N 17832/09, paragraph 2 of Article 45 and paragraph 3 of Article 46 of the Tax Code of the Russian Federation provide an exhaustive list of cases for the tax authority to go to court.
The Supreme Arbitration Court of the Russian Federation recognized that the possibility of tax authorities filing an application for the recovery of tax debts with an arbitration court not only in case of missing the deadline established by paragraph 3 of Article 46 of the Tax Code of the Russian Federation, but also in other cases of violation of the procedure for extrajudicial collection of taxes provided for in Articles 46 and 47 of the Tax Code of the Russian Federation, is not based on the norms of the current legislation.
Thus, the adoption by the tax authority of all measures established by the tax legislation for the extrajudicial collection of taxes from the taxpayer, despite the further recognition by the court of the decision on collection as invalid, prevents the tax authority from satisfying the claim of the tax authority for the collection of tax in court.
This conclusion is set out in the Decree of the Federal Antimonopoly Service of the Moscow District dated July 31, 2012 N A41-31821/11.
As noted in the Decrees of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 6, 2007 N 8241/07, of June 3, 2008 N 1868/08, the fulfillment of the obligation to pay penalties cannot be considered in isolation from the fulfillment of the obligation to pay tax. Therefore, after the expiration of the preemptive period for undisputed or judicial collection of tax debts, penalties cannot serve as a way to secure the obligation to pay tax and from that moment are not subject to accrual.
By virtue of paragraph 1 of Article 113 of the Tax Code of the Russian Federation, a person cannot be held liable for committing a tax offense if three years (statute of limitations) have expired from the date of its commission or from the next day after the end of the tax period during which this offense was committed.
In accordance with paragraph 12 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5 "On some issues of the application of part one tax code Russian Federation" states that the tax authority that has not exercised its powers to undisputedly collect arrears is limited to a six-month period for its judicial collection, and this period is precluded, i.e. not subject to recovery.
The issue of the legitimacy of the taxpayer's position that in the event of the expiration of the limitation period (3 years), the debt on taxes, penalties and fines is not recoverable and the tax authority is not entitled to take measures against the organization to collect this debt and reflect this debt in certificates and acts reconciliations on the status of settlements with the budget, discussed in the letter of the Ministry of Finance of Russia dated November 9, 2011 N 03-02-07 / 1-386.
As explained by the financial department, the Tax Code of the Russian Federation does not set a statute of limitations for the collection of arrears, as well as debts for the corresponding penalties and fines. The Tax Code of the Russian Federation establishes specific procedural deadlines for making a decision on the collection of taxes, penalties, fines.
Clause 1 of Article 59 of the Tax Code of the Russian Federation defines a list of grounds for declaring arrears and debts for penalties and fines as uncollectible.
So, in accordance with subparagraph 4 of paragraph 1 of Article 59 of the Tax Code of the Russian Federation, one of the grounds for declaring arrears and debts on penalties and fines owed to individual taxpayers as hopeless for collection is the adoption by the court of an act, according to which the tax authority loses the ability to collect these arrears, arrears on penalties and fines due to the expiration of the established period for their collection, including the issuance of a court ruling on the refusal to restore the missed deadline for filing an application with the court for the recovery of arrears, arrears on penalties and fines.
Taking into account the above, the Ministry of Finance of Russia came to the conclusion that until the arrears and debts on penalties and fines are recognized as uncollectible in accordance with the established procedure, these amounts are considered by the tax authorities as part of the taxpayer's debt and are not subject to exclusion from the information resources of the Federal Tax Service of Russia.
Thus, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization the amount of taxes, penalties and fines due to payment within six months after the expiration of the deadline for fulfilling the requirement for payment of taxes, penalties and fines, while missing for a good reason, the deadline for filing an application may be restored by the court.
Similar explanations are given in the letter of the Ministry of Finance of Russia dated June 29, 2010 N 03-02-07 / 1-300.
It follows from the norm of paragraph 3 of Article 46 of the Tax Code of the Russian Federation that the right to assess the circumstances declared by the organization as an obstacle to the timely execution of the relevant application to the arbitration court within the period established by law and to recognize the reason for missing the deadline indicated by the tax authority as valid belongs to the court.
Good reasons for missing the deadline include circumstances of an objective nature that are beyond the control of the tax authority and are beyond its control, provided that it observes the degree of care and discretion that was required of it in order to comply with the established procedure.
The courts come to such conclusions (see Resolutions of the Federal Antimonopoly Service of the Volga District of August 4, 2010 N A12-1538/2010, FAS of the Central District of July 12, 2010 N A64-6398/09).
In the Decree of 20.06.2012 N A26-4003 / 2011, the Federal Antimonopoly Service of the North-Western District indicates that it should be taken into account that in the system of current legislation, the statute of limitations and, in particular, the six-month limitation period for filing a tax authority with a court with an application for the recovery of arrears, arrears in penalties and fines, established by paragraph 3 of Article 46 of the Tax Code of the Russian Federation, are an independent legal institution, and do not belong to a variety of procedural terms. Therefore, when resolving the issue of restoring the limitation period by the court, the rules of arbitration procedural legislation governing the procedure and conditions for the restoration of procedural terms, including taking into account the maximum permissible terms, are not subject to application.
The provisions of paragraph 3 of Article 46 of the Tax Code of the Russian Federation make the possibility of restoring the missed six-month limitation period dependent on the discretion of the court, whose competence includes assessing the validity of the reasons for missing this period. At the same time, the question of the reasons for missing the deadline is decided by the court after the initiation of the case, that is, in court session and not at the stage of accepting the application for production.
Consequently, the result of consideration of the application of the tax authority for the restoration of the missed deadline, provided for in paragraph 3 of Article 46 of the Tax Code of the Russian Federation, is subject to reflection not in a separate ruling, but in a judicial act adopted in the case on the merits of the dispute.
As noted by the Federal Antimonopoly Service of the Moscow District in Resolution No. A40-12689 / 12-116-24 dated 23.07.2012, the provisions of paragraph 1 of Article 47 of the Tax Code of the Russian Federation in conjunction with paragraph 7 of Article 46 of the Tax Code of the Russian Federation indicate that the tax authority has the right to decide on the collection of arrears at the expense of the taxpayer's property only if there is insufficient or no money on the taxpayer's accounts, or in the absence of information about the taxpayer's accounts. That is, if the taxpayer has bank accounts, the tax authority, before making a decision on the collection of arrears at the expense of property, is obliged to make a decision in accordance with Article 46 of the Tax Code of the Russian Federation, send collection orders to banks and receive information about the impossibility of their execution due to the lack of funds on the taxpayer's accounts.
An analysis of the provisions of paragraphs 3 and 7 of Article 46 and paragraph 1 of Article 47 of the Tax Code of the Russian Federation allows us to conclude that the presentation of a demand for payment of tax is regarded by the Tax Code of the Russian Federation as necessary condition for the subsequent implementation of measures to enforce the collection of arrears, including for the tax authority to make a decision on collection at the expense of property, since in such a requirement the tax authority establishes the amount of the arrears, the deadline for its execution, with the expiration of which the Tax Code of the Russian Federation connects the emergence of the tax authority's right to implementation of compulsory collection in an indisputable or judicial manner of the debt indicated in this document.
The decision to recover at the expense of property is made by the tax authority on the basis of an unfulfilled claim. In this regard, the invalidity of the claim entails the invalidity of the decision to collect tax at the expense of the taxpayer's property.
An analysis of these provisions of the Tax Code of the Russian Federation indicates that the failure or improper performance by the taxpayer of the obligation to pay tax is the basis for the tax authority to send the taxpayer a demand for payment of tax, which is the beginning of the enforcement procedure in the manner provided for in Articles 46, 47 of the Tax Code of the Russian Federation. Sending a request for payment of tax is a mandatory stage preceding the decision to collect taxes and penalties from the funds in the taxpayer's accounts. At the same time, the decision to collect a tax, penalty, fine at the expense of the taxpayer's funds (Article 46 of the Tax Code of the Russian Federation) cannot be made before the expiration of the period for voluntary fulfillment of the claim, which, in accordance with clause 4 of Article 69 of the Tax Code of the Russian Federation, begins to flow from the date the taxpayer receives the claim.
In the situation considered by the court, the demand for tax payment dated 10/31/2011, on the basis of which the decision of the tax authority was made, was sent to the taxpayer on 11/28/2011, and received by the applicant on 12/02/2011, which is confirmed by Russian Post stamps on the postal envelope.
The decision to recover the arrears at the expense of funds in the taxpayer's accounts was made by the tax authority on November 25, 2011, i.ะต. before sending the taxpayer a demand for payment of tax and, therefore, before the expiration of the period for voluntary fulfillment of the demand, which is a violation of paragraph 4 of Article 69, paragraph 3 of Article 46 of the Tax Code of the Russian Federation and entails the invalidity of the decision of November 25, 2011 on the collection of tax at the expense of funds for taxpayer accounts. The invalidity of the decision to collect arrears at the expense of funds in the accounts entails the invalidity of the contested decision on the collection of tax at the expense of the taxpayer's property.
In the Decree of the Federal Antimonopoly Service of the Central District dated 10.10.2012 N A35-293/2012, it is noted that applying to the court within the period established by paragraph 1 of Article 47 of the Tax Code of the Russian Federation is possible only in the event of an untimely decision by the tax authority to collect a tax (penalty, fee or fine ) at the expense of the property of the taxpayer. The transition to collection at the expense of the taxpayer's property is possible only after the tax authority complies with the requirements established by Article 46 of the Tax Code of the Russian Federation. Non-observance by the tax authority of the procedure established by Article 46 of the Tax Code of the Russian Federation limits the right of the tax authority to apply to the court for recovery only by the period established by this provision of the law, and not by paragraph 1 of Article 47 of the Tax Code of the Russian Federation.
Article 46 , as well as at the expense of its electronic money
1. In the event of non-payment or incomplete payment of tax within the established period, the obligation to pay tax shall be enforced by foreclosing money (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur in banks and his electronic money, with the exception of funds on special electoral accounts, special accounts of referendum funds.
1.1. In case of non-payment or incomplete payment within the established period of tax payable by a participant in an investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax records), in connection with the implementation of the investment partnership agreement ( with the exception of corporate income tax arising in connection with the participation of this partner in an investment partnership agreement), the obligation to pay this tax is enforced by foreclosing money (precious metals) on the accounts of the investment partnership.
In the absence or insufficiency of funds (precious metals) on the accounts of the investment partnership, recovery is made at the expense of funds (precious metals) on the accounts of the managing partners. In this case, in the first place, the collection is levied on cash (precious metals) on the accounts of the managing partner responsible for maintaining tax records.
In the absence or insufficiency of funds (precious metals) on the accounts of the managing partners, a penalty is levied on the funds (precious metals) on the accounts of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.
2. Tax collection is carried out by the decision of the tax authority (hereinafter in this article - the decision on collection) by sending on paper or in electronic form to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, instructions of the tax authority to write-off and transfer to the budget system of the Russian Federation of the necessary funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur.
The form and procedure for sending to the bank an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or an individual entrepreneur to the budget the system of the Russian Federation on paper is established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these instructions are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.
The procedure for sending to the bank an instruction from a tax authority to write off and transfer funds to the budget system of the Russian Federation from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or individual of an entrepreneur in electronic form is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees.
3. The decision to collect shall be made after the expiration of the time period specified in the tax payment claim, but not later than two months after the expiration of the specified time period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization or individual entrepreneur the amount of tax due. An application may be filed with the court within six months after the expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court.
The decision to collect is brought to the attention of the taxpayer (tax agent) - an organization or an individual entrepreneur within six days after the said decision is made.
If it is impossible to hand over the decision on recovery to the taxpayer (tax agent) against receipt or otherwise transfer it, indicating the date of its receipt, the decision on recovery is sent by registered mail and is considered received after six days from the date of sending the registered letter.
3.1. In case of insufficiency or absence of funds on the accounts and electronic funds of the taxpayer (tax agent) - organization or in the absence of information about the accounts (details of corporate electronic means of payment used for electronic money transfers), the tax amount not exceeding five million rubles is collected in the manner prescribed by the budgetary legislation of the Russian Federation, at the expense of funds reflected in the personal accounts of the specified taxpayer (tax agent) - organization.
To collect tax in accordance with the first paragraph of this paragraph, the tax authority sends a decision on collection on paper or in electronic form to the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, at the place where the personal account of the taxpayer (tax agent) is opened .
If a taxpayer (tax agent) - organization fails to comply with the decision of the tax authority to recover within three months from the date of its receipt by the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation, this authority informs the tax authority that sent it decision on recovery, within ten days after the expiration of the specified period on paper or in electronic form.
The form, format and procedure for sending to the bodies that open and maintain personal accounts in accordance with the budgetary legislation of the Russian Federation, decisions on the recovery from the funds reflected in the personal accounts of the taxpayer (tax agent) - organization, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Federal Treasury.
The form, format and procedure for sending a notice of non-execution of a decision to recover at the expense of funds reflected in the personal accounts of the taxpayer (tax agent) by the bodies that open and maintain personal accounts in accordance with the budget legislation of the Russian Federation, to the tax authorities are approved by the Federal Treasury in agreement with federal executive body authorized to control and supervise taxes and fees.
4. An instruction from a tax authority to transfer amounts of tax to the budgetary system of the Russian Federation shall be sent to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, and are subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.
4.1. The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is suspended:
upon the decision of the tax authority to suspend the operation of the relevant instruction when the tax authority makes a decision in accordance with paragraph 6 of Article 64 of this Code;
upon receipt from the bailiff-executor of the decision to seize the funds (electronic funds) of the taxpayer (tax agent) - an organization or an individual entrepreneur located in banks;
by decision of a higher tax authority in the cases provided for by this Code.
The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is resumed upon the decision of the tax authority to cancel the suspension of the relevant order.
The tax authorities shall decide on the withdrawal of unfulfilled (in whole or in part) instructions for debiting and transferring funds from the accounts of taxpayers (tax agents) - organizations or individual entrepreneurs or instructions for the transfer of electronic funds of taxpayers (tax agents) - organizations or individual entrepreneurs in the budget system of the Russian Federation in the following cases:
changing the deadline for paying taxes and fees, as well as penalties and fines in accordance with Chapter 9 of this Code;
fulfillment of the obligation to pay taxes, fees, penalties, fines, interest provided for by this Code, including in connection with the offset against arrears and debts on penalties and fines in accordance with Article 78 of this Code;
write-offs of arrears, debts on penalties and fines, interest provided for in Chapter 9, as well as Article 176.1 of this Code, recognized as uncollectible in accordance with Article 59 of this Code;
reduction of the amounts of tax, fee, penalty interest on the amended tax declaration submitted in accordance with Article 81 of this Code;
receipt by the tax authority from the bank of information on cash balances on other accounts (e-money balances) of the taxpayer in accordance with paragraphs 5 and 9 of Article 76 and paragraph 2 of Article 86 of this Code for the purpose of recovery in accordance with the decision adopted in accordance with paragraph 3 of this Article about recovery.
The forms and procedure for sending to the bank the decisions of the tax authority specified in this paragraph on paper shall be established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these decisions are approved by the federal executive body authorized to control and supervise taxes and fees, in agreement with the Central Bank of the Russian Federation.
The procedure for sending the decisions of the tax authority specified in this paragraph to the bank in electronic form is approved by the Central Bank of the Russian Federation in agreement with the federal executive body authorized to control and supervise taxes and fees.
5. An instruction from a tax authority to transfer tax must contain an indication of those accounts of the taxpayer (tax agent) - organization or individual entrepreneur, from which the tax must be transferred, and the amount to be transferred.
Tax collection can be carried out from ruble settlement (current) accounts, in case of insufficient or no funds in ruble accounts - from foreign currency accounts, and in case of insufficient or no funds in foreign currency accounts - from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur unless otherwise provided by this article.
The collection of tax from the currency accounts of a taxpayer (tax agent) - organization or individual entrepreneur is carried out in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of sale of the currency. When collecting tax from foreign currency accounts, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur and transfer of funds within the same period from the sale of foreign currency in the amount of the tax payable to the settlement (current) account of the taxpayer (tax agent). Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent).
Collection of tax from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur is based on the value of precious metals, equivalent to the amount of payment in rubles. In this case, the value of precious metals is determined on the basis of the accounting price for precious metals established by the Central Bank of the Russian Federation as of the date of sale of precious metals. When collecting tax from accounts in precious metals, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends the bank an order to sell, no later than the next day, the precious metals of the taxpayer (tax agent) - organization or individual entrepreneur in the amount necessary for execution instructions for the transfer of tax, and the transfer within the same period of funds from the sale of precious metals to the settlement (current) account of the taxpayer (tax agent). Expenses related to the sale of precious metals are covered by the taxpayer (tax agent).
Tax is not collected from the deposit account (deposit in precious metals) of the taxpayer (tax agent) if the term of the deposit agreement (bank deposit agreement in precious metals) has not expired.
If there is a deposit agreement, the tax authority has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the taxpayer (tax agent) after the expiration of the deposit agreement, if by this time the instruction of the tax authority sent to this bank for tax transfer.
If there is a bank deposit agreement in precious metals, the tax authority has the right to give the bank an instruction to sell precious metals in the amount necessary for the execution of the order to transfer tax, after the expiration of the said agreement and transfer funds from the sale of precious metals in the amount of the tax to be collected on the settlement account. (current) account of the taxpayer (tax agent), if by that time the order of the tax authority sent to this bank to transfer tax has not been executed.
Forms and formats of instructions from tax authorities to banks for the sale of foreign currency and precious metals by taxpayers (tax agents) - organizations, individual entrepreneurs are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.
6. The order of the tax authority to transfer the tax shall be executed by the bank no later than one business day following the day of receipt of the specified order by it, if the tax is collected from ruble accounts, no later than two business days if the tax is collected from foreign currency accounts, if this does not violate the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, if the tax is collected from accounts in precious metals.
In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an instruction from the tax authority to transfer tax, such an instruction is executed as funds (precious metals) are received into these accounts no later than one business day following the day of each such receipt to ruble accounts, no later than two business days following the day of each such receipt to foreign currency accounts, unless this violates the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, following the day of each such receipt on accounts in precious metals.
6.1. If there is insufficient or no money on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur, the tax authority has the right to collect tax at the expense of electronic money.
Collection of tax at the expense of electronic money of a taxpayer (tax agent) - organization or individual entrepreneur is carried out by sending to the bank where electronic money is located, instructions from the tax authority to transfer electronic money to the account of the taxpayer (tax agent) - organization or individual entrepreneur in the bank.
The instruction of the tax authority for the transfer of electronic money must contain an indication of the details of the corporate electronic means of payment of the taxpayer (tax agent) - an organization or individual entrepreneur, using which the transfer of electronic money is to be carried out, an indication of the amount to be transferred, as well as the details of the account of the taxpayer (tax agent) - an organization or an individual entrepreneur.
Tax collection can be carried out at the expense of electronic money balances in rubles, and in case of their insufficiency, at the expense of electronic money balances in foreign currency. When collecting tax at the expense of electronic money balances in foreign currency and specifying in the instruction of the tax authority for the transfer of electronic money the currency account of the taxpayer (tax agent) - organization or individual entrepreneur, the bank transfers electronic money to this account.
When collecting tax at the expense of electronic money balances in foreign currency and indicating in the order of the tax authority to transfer electronic money the ruble account of the taxpayer (tax agent) - organization or individual entrepreneur, the head (deputy head) of the tax authority simultaneously with the order of the tax authority to transfer electronic sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur. Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent). The Bank transfers electronic money to the ruble account of a taxpayer (tax agent) - an organization or an individual entrepreneur in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of the transfer of electronic money.
If there is insufficient or no electronic money of a taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an order from the tax authority to transfer electronic money, such an order is executed as soon as the electronic money is received.
The tax authority's instruction to transfer electronic money shall be executed by the bank no later than one business day following the day it receives the said order, if the tax is collected at the expense of electronic money balances in rubles, and no later than two business days if the tax is collected at the expense of electronic money balances in foreign currency.
7. In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or his electronic money or in the absence of information about the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or information about the details of his corporate electronic means of payment used for electronic money transfers, the tax authority has the right to collect tax at the expense of other property of the taxpayer (tax agent) - organization or individual entrepreneur in accordance with Article 47 of this Code.
With regard to corporate income tax for a consolidated group of taxpayers, the tax authority has the right to collect tax at the expense of other property of one or more participants in this group if there is insufficient or no money (precious metals) on the bank accounts of all participants in the specified consolidated group of taxpayers or their electronic money or in the absence of information about the accounts of these persons or information about the details of their corporate electronic means of payment used for electronic money transfers.
The provisions of the first paragraph of this paragraph shall apply to a taxpayer (tax agent) - an organization upon receipt by the tax authority of a notification from the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, of the impossibility of executing the decision of the tax authority to recover at the expense of monetary funds, reflected on the personal accounts of the taxpayer (tax agent) - organization.
7.1. Foreclosure on the property of participants in an investment partnership agreement in accordance with Article 47 of this Code is allowed only in the absence or insufficiency of funds (precious metals) on accounts, electronic money balances in investment partnership banks, managing partners and partners.
8. When tax is collected by a tax authority, in accordance with the procedure and under the conditions established by Article 76 of this Code, the suspension of operations on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur in banks or the suspension of electronic money transfers can be applied.
8.1. From the date of revocation of a banking license from a credit institution, the collection of tax at the expense of cash (precious metals) on accounts with such a credit institution is carried out taking into account the provisions of the Federal Law "On Banks and Banking Activity" and Federal Law No. 127 of October 26, 2002 -FZ "On Insolvency (Bankruptcy)".
9. The provisions of this Article shall also apply to the collection of penalties for late payment of taxes and insurance premiums.
10. The provisions of this article shall also apply to the collection of fees, insurance premiums and fines in the cases provided for by this Code.
11. The provisions of this article shall apply when collecting corporate income tax for a consolidated group of taxpayers, relevant penalties and fines at the expense of cash (precious metals) on bank accounts of participants in this group, taking into account the following features:
1) collection of tax at the expense of cash (precious metals) in bank accounts is primarily carried out at the expense of cash (precious metals) of the responsible member of the consolidated group of taxpayers;
2) in case of insufficiency (absence) of funds (precious metals) on bank accounts with the responsible member of the consolidated group of taxpayers to collect the entire amount of tax, the collection of the remaining uncollected amount of tax is carried out at the expense of funds (precious metals) in banks successively from all other participants in this groups, while the tax authority independently determines the sequence of such collection based on the information it has about taxpayers. The basis for the collection of tax in this case is the demand sent to the responsible member of the consolidated group of taxpayers. In case of insufficiency (absence) of funds (precious metals) on the bank accounts of a member of the consolidated group of taxpayers when tax is collected in the manner provided for in this subparagraph, the remaining uncollected amount shall be collected at the expense of funds (precious metals) in banks with any other participant in this groups;
3) when tax is paid, including in part, by one of the participants in the consolidated group of taxpayers, the collection procedure for the part paid is terminated;
4) a member of a consolidated group of taxpayers in respect of which a decision has been made to collect corporate profit tax for a consolidated group of taxpayers shall be subject to the rights and guarantees provided for by this article for taxpayers;
5) the decision on collection is made in accordance with the procedure established by this article, after the expiration of the period specified in the demand for the payment of tax sent to the responsible participant in the consolidated group of taxpayers, but not later than six months after the expiration of the specified period. The decision on recovery, made after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court at the place where the responsible member of the consolidated group of taxpayers is registered with the tax authority with an application to collect tax simultaneously from all participants in the consolidated group of taxpayers. Such an application may be filed with the court within six months after the expiration of the period for collecting the tax established by this article. The deadline for filing an application missed for a good reason may be restored by the court;
6) the decision on recovery made in respect of the responsible participant or other member of the consolidated group of taxpayers, the actions or inaction of tax authorities and their officials in the implementation of the recovery procedure may be challenged by such participants on the grounds related to the violation of the procedure for the implementation of the recovery procedure.