In this case, I can not pay this fine voluntarily, because the deadline for the desk audit has been violated, but wait until the tax office files a lawsuit? In this case, the limitation period for a claim in court of 6 months is calculated from 01/13/2017 or from 07/25/2016 + 3 months = 10/25/2016 + 10 days for drawing up an inspection report = from 11/05/2016
Rosalia Rafaelevna
You first need to find out when the desk audit was carried out (after all, we don’t have the report) and request a tax audit report from the Federal Tax Service.
If the tax office conducted a desk audit, the statute of limitations for a claim to collect tax sanctions in court is counted from November 5, 2016
And violating the deadline for a desk audit cannot have any consequences for you, since it is not allowed to extend the deadline for a desk audit
Letter of the Ministry of Finance of Russia dated February 18, 2009 No. 03-02-07/1-75
Question:
LLC asks for clarification whether the Federal Tax Service inspection has the right to demand the provision of documents to verify the correctness of tax calculations after three months after filing the declaration (Article 88 of the Tax Code of the Russian Federation)? Can an organization, if it does not receive a request for a desk audit, consider the declaration approved by the tax authority after three months?
Ministry of Finance of the Russian Federation
DEPARTMENT OF TAX AND CUSTOMS TARIFF POLICY LETTER dated February 18, 2009 No. 03-02-07/1-75
[On the procedure for the tax authority to request documents from the taxpayer after three months after filing a tax return in accordance with Article 88 of the Tax Code of the Russian Federation]
The Department of Tax and Customs Tariff Policy reviewed a letter on the issue of the procedure for the tax authority to request documents from a taxpayer after three months after filing a tax return in accordance with Article 88 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) and reported the following. According to subparagraph 2 of paragraph 1 of Article 31 of the Code, tax authorities have the right to conduct tax audits in the manner established by the Code. Paragraph 2 of Article 88 of the Code as amended by Federal Law No. 224-FZ of November 26, 2008, which entered into force on January 1, 2009 (with the exception of its individual provisions), establishes that a desk tax audit is carried out by authorized officials of the tax authority within three months from the date the taxpayer submits a tax return (calculation).
Since the Code does not provide for the extension of a desk tax audit, therefore, the maximum period for conducting it is from 01/01/2009 established within three months from the date of submission of the tax return (calculation) to the tax authority.A desk tax audit is carried out on the basis of a tax return (calculation) and documents submitted by the taxpayer, as well as other documents on the activities of the taxpayer available to the tax authority (clause 1 of Article 88 of the Code). In addition, when conducting a desk tax audit, the tax authority requests from the taxpayer explanations and documents in accordance with paragraphs 3, 6, 7, 8 and 9 of Article 88 of the Code. Thus, the tax authority has the right to request documents necessary for conducting a desk tax audit only during its conduct. However, it should be noted that in If violations of the legislation on taxes and fees are detected during a desk tax audit, the tax authority officials conducting the said audit must draw up a tax audit report (clause 1 of Article 100 of the Code). In accordance with clause 6 of Article 101 of the Code, the head (deputy head) The tax authority, if it is necessary to obtain additional evidence to confirm the fact of violations of the legislation on taxes and fees or the absence thereof, has the right to make a decision on carrying out additional tax control measures, in particular, to request documents in accordance with Articles 93 and 93.1 of the Code.
Deputy Director
Department
S.V. Razgulin
I am attaching a court decision, which states that a desk audit cannot hold the taxpayer accountable at all
FEDERAL ARBITRATION COURT OF THE MOSCOW DISTRICT DECISION of the cassation instance on checking the legality and validity of decisions (rulings, resolutions) of arbitration courts that entered into legal force on October 23, 2000 Case No. KA-A41/4820-00 (extract) The claim was filed by the Inspectorate of the Ministry of Taxes and Taxes of the Russian Federation for Vidnoe about the recovery of 53,471,703 rubles from Mezhregiongaz LLC. fine due to incomplete payment of value added tax by the latter. By the decision of May 29, 2000, upheld by the decision of August 10, 2000, the claim was rejected. The legality of judicial acts is verified in accordance with Art. 171 of the Arbitration Procedure Code of the Russian Federation in connection with the cassation appeal of the Inspectorate of the Ministry of Taxes of the Russian Federation for the city of Vidnoye, in which the plaintiff asks to cancel judicial acts, citing a violation by the court of substantive law. According to the case materials, the head of the Tax Inspectorate of the Russian Federation for the city of Vidnoye, on October 15, 1999, issued Resolution No. 404 on bringing Mezhregiongaz LLC to tax liability based on a desk audit. Due to the fact that the defendant voluntarily did not pay the penalties, the plaintiff filed a claim in the arbitration court. Refusing to satisfy the claims, the court indicated that the tax authority filed the claim outside the statute of limitations, which is preemptive and cannot be restored. Judicial acts in the case are legal and justified for the following reasons. In accordance with Art. 87 of the Tax Code, tax authorities conduct desk and field tax audits of taxpayers. According to Art. 88 of the Code, a desk audit is carried out at the location of the tax authority on the basis of tax returns and documents submitted by the taxpayer. This article does not provide for the right of the tax authority to make any decision or issue a resolution to hold the taxpayer liable for tax liability based on the results of a desk audit. Such a right does not follow from the meaning of Art. 101 of the Tax Code of the Russian Federation, according to which only based on the materials of an on-site tax audit, the head (deputy head) of the tax authority has the right to make a decision on bringing the taxpayer to tax liability. In addition, based on the evidence presented by the parties, the court found that the claim for the collection of tax sanctions was brought by the inspectorate to the court outside the statute of limitations, which is preemptive and cannot be restored in accordance with Art. 115 of the Tax Code of the Russian Federation. Based on the above, there are no grounds for canceling judicial acts. Guided by Art. Art. 171, 173 - 177 of the Arbitration Procedure Code of the Russian Federation, the court DECIDED: the decision of 05.29.2000 and the resolution of 08.10.2000 of the Arbitration Court of the Moscow Region in case No. A41-K2-4738/2000 is left unchanged, and the cassation appeal of the Inspectorate of the Ministry of Taxes of the Russian Federation for the city of Vidnoye - without satisfaction.
However, he did not submit an application to the inspectorate for registration as a UTII payer. Do tax authorities have the right to fine an entrepreneur for failure to submit this application if he is registered with the same inspectorate on a different basis? Yes, you have the right, according to the Federal Tax Service. Details are in the letter of the Federal Tax Service of Russia dated March 29, 2016 No. SA-4-7/5366.
Let us remind you that according to Article 346.28 of the Tax Code, organizations and individual entrepreneurs who have expressed a desire to switch to paying UTII are required to register as payers of this tax: - at the place of business activity; - at the location of the organization or place of residence of the individual entrepreneur - according to the types of business activities specified in subparagraphs 5, 7 (in terms of distribution and peddling retail trade) and in subparagraph 11 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation.
To do this, it is necessary to submit an application to the inspectorate for registration as a single tax payer within five days from the date of application of the “imputation”. Violation of the deadline for filing an application for registration is punishable by a fine in the amount of 10 thousand rubles (clause 1 of Art. Tax Code of the Russian Federation). Taking into account these norms, the authors of the letter draw the following conclusion: if an organization or entrepreneur violates the deadline for filing an application for registration as a UTII payer, inspectors will have the right to hold such a violator accountable under paragraph 1 of Article of the Tax Code of the Russian Federation. At the same time, officials believe that the fine is legal even if the taxpayer is already registered with this tax office on another basis. To support their position, Federal Tax Service specialists cited examples from arbitration practice. The courts point out that the taxpayer’s obligation to register as a “imputed person” does not depend on whether he is registered with the same Federal Tax Service on another basis (resolution of the Federal Antimonopoly Service of the North-Western District dated April 10, 2013 No. A56-32161/2012 and FAS Volga District dated September 27, 2011 No. A06-7317/2010).
As for the court decisions made in favor of taxpayers, they were based on paragraph 39 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5. This paragraph stated: taxpayers who are registered with the inspectorate on one of the grounds provided for in the article of the Tax Code of the Russian Federation cannot be fined for failure to submit an application for tax registration with the same tax authority on another basis. At the same time, officials remind that the mentioned resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02.28.01 No. 5 lost force due to the publication of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07.30.13 No. 57, which does not contain similar conclusions.
Taking into account the position of the Federal Tax Service and negative arbitration practice, it is safer to submit an application for registration as an “imputed person,” even if an entrepreneur or organization is already registered with the same Federal Tax Service on a different basis.
KBK is a 20-digit digital code that determines the type of payment and the direction of its transfer. This code is entered into the payment documentation when paying taxes, arrears and recalculation amounts, accrued penalties, interest and penalties for various violations. In order for the payment to go in the right direction, it is necessary to correctly enter the current BCC into the payment documentation.
ATTENTION! Starting with reporting for the fourth quarter of 2018, a new tax return form for the single tax on imputed income will be used, approved by Order of the Federal Tax Service of Russia dated June 26, 2018 N ММВ-7-3/414@. You can generate a UTII declaration without errors through, which has a free trial period.
What is KBC?
This abbreviation stands for budget classification code. This classification divides all payments by codes for more convenient and efficient tracking of the direction of their movement. BCCs allow you to control the movement of taxpayers' funds, separate them by type of tax obligations, and separate tax payments from the payment of fines and penalties.
Each entity making tax payments is required to enter the BCC into payment forms. A company on UTII is no exception. When paying a tax, fine, penalty, or interest, the person responsible must indicate the codes corresponding to the applicable tax regime, as well as the type of payment.
If the code is entered incorrectly, the payment may go in the wrong direction and get lost, and the payer will encounter problems returning it and waste time. Every time you transfer any amount of money to the budget, it is necessary to track the actual BCC values at the current moment for specific payments.
The BCC for each year is established by the Russian Ministry of Finance, which approves a special order for this. Not the entire 20-digit digital code can change, but its last four digits – from 14 to 17.
The specified 4 digits are accepted as the following values when making various payments in the imputed mode:
- 1000 – for tax payments;
- 2100 – for payment of penalties;
- 2200 – by percentage;
- 3000 – for fines.
KBK for UTII
For the imputed tax regime in relation to the payment of a special tax, the BCC is provided for the transfer of the single tax itself, penalties for late payment, as well as various types of fines for violation of the law.
KBK for payment of a special tax of the imputed regime: 182 1 05 02010 02 1000 110 (current for 2016).
According to the specified BCC, not only the calculated special tax payable for the quarter is transferred, but also arrears, tax debt, and recalculation amounts.
BCC for penalties for UTII
Penalties in the imputed regime are accrued if the single tax is not transferred on time. The deadline for transfer is the 25th day of the month following each quarter. If this deadline is violated, penalties should be charged for each day of delay in payment.
The calculated penalties must be paid by filling out a payment document, for example, an order. The payment slip indicates the BCC corresponding to the payment of penalties for UTII. Since 2015 There are different classification codes for interest and penalties.
BCC for payment of penalties for UTII: 182 1 05 02010 02 2100 110 (this value is relevant for 2016)
Interest on a special tax is paid separately; the KBK is entered into the payment documentation: 182 1 05 02010 02 2200 110.
KBC on fines for UTII
A monetary fine may be imposed on the person imputed if he did not submit a UTII declaration in a timely manner, if the tax was calculated incorrectly, as a result of which the base for calculating the tax was underestimated.
Therefore, they will be very interested to know about what fines await entrepreneurs on UTII and how to avoid them. As is known, penalties are imposed only if an offense has been committed in relation to the tax inspectorate. Moreover, some of them may have even more serious consequences than imposing a fine, for example, administrative liability for the entrepreneur or owner of the organization.
Fines for UTII - basic principles.
If an enterprise violates or untimely fulfills its debt obligations, then this can be considered an offense on its part, which, in turn, is subject to penalty deductions. For three years after the offense was committed, government authorities have the right to bring the offender to justice. What is the UTII fine for?1. An entrepreneur who plans to organize the operation of his business on the basis of tax on imputed income does not register with the relevant tax authorities longer than is allowed by the rules. The rules establish that the payer must register within five days in the UTII system, but if this does not happen, he is subject to a fine of ten thousand rubles;
2. An entrepreneur who operates without registering his enterprise with the tax service will have to pay ten percent of the profit received as compensation for a fine. Regardless of the size of a businessman’s income, the payment cannot be less than forty thousand rubles.
3. It is necessary to report to the tax authorities all information about the opening of current accounts in a banking organization, as well as about their closure. If such information is not provided within the framework established by law, the entrepreneur will have to pay a fine on UTII in the amount of five thousand rubles;
4. The fine for late delivery is assessed on the defaulter on a monthly basis and according to certain rules. Thus, for each month of delay - regardless of whether the month is fully or partially unpaid - five percent of the amount of tax that is not paid on time is assessed as a fine. However, the total amount of the fine cannot exceed the established limit of thirty percent and be less than one thousand rubles. If a taxpayer has a zero tax return, and at the same time did not submit it on time, then he will be charged a thousand rubles as a fine;
5. Violation of a gross nature, which concerns the established rules and the system of monitoring and accounting for all income and expenditure processes throughout the entire tax period, is subject to a fine of ten thousand rubles. Violations of a gross nature, according to the established rules of the tax authorities, include:
The entrepreneur lacks the necessary primary;
lack of primary documentation;
entering erroneous data regarding transactions carried out in accounting or tax accounting;
errors in reporting.
In other words, all those violations that relate to accounting, as well as PBUs, can be classified as gross;
6. If, over several periods of tax accounting, gross violations of the rules established by law for monitoring expenditure and income items systematically occurred, this violation is subject to fines on UTII in the amount of thirty thousand rubles;
7. If an entrepreneur has violated any accounting laws for income or expense statements, and this has led to a general decrease in the tax base, then he must pay twenty percent of the amount that he did not take into account in the documents as a penalty liability. The amount of the fine cannot be less than forty thousand rubles;
8. Also, twenty percent of the unpaid amount of tax assessments is imposed on the entrepreneur if the tax base on the basis of which he formed the amount of tax payments was calculated incorrectly. The reason for this could be incorrect tax calculations, inaction or unlawful actions of the entrepreneur;
9. Entrepreneur is taxed a fine on UTII in the amount of forty percent from the unpaid amount of tax, if he knowingly and willfully fails to pay tax obligations or pays less than is necessary according to established standards;
10. The entrepreneur did not provide the necessary one or more documents about his activities, which are required in order to carry out tax control. For each document not submitted - a fine of two hundred rubles.
If we talk about what fines entrepreneurs face on UTII, in addition to those listed above, we can take into account the following:
A fine for the fact that a person does not come to the tax office while being a witness in any case;
For providing false information or refusing to testify;
A fine is imposed if the translator refuses to translate the speech of a participant in the argument;
If experts refuse to take part in the process.
If there is documentary evidence of the presence of mitigating circumstances, the amount of the fine can be reduced by at least two times. But if the entrepreneur has already been prosecuted for this violation, and repeated it again, then he will have to pay a fine twice as large as the last time.
The tax system also provides tools that allow you to reduce the amount of penalties, or even avoid them in principle, on completely legal grounds. A common offense is late filing of declarations, which occurs due to the fact that the accountant simply does not have time to enter all the data before the deadline. In order to avoid delays, you can submit a zero declaration, and after the necessary data has been entered, submit a document containing clarifications. Such actions are not subject to any penalties, but you may have to pay a penalty for the fact that the tax was not paid on time.
What is a penalty?
Penalties are the amount of money established officially that a person must pay if he is late with any payments or has not made them at all. This also applies to tax payments and various fees and other payments to the state. According to the established format, to calculate the penalty, the Central Bank refinancing rate is taken into account. 1/300 its established value from the defaulter’s debt is accrued to him daily as a penalty.In order to receive payment of an overdue fine or penalty from a tax agent, the inspectorate must issue a request indicating the payment deadline and the amount of the debt. The tax authority may request a specified amount of money from the taxpayer's current account on a compulsory basis if the required amount of funds is available in the account. If there is no money in the account, then the order of the tax inspectorate will be in the bank, and as soon as any amount arrives at the specified account, it will be seized and transferred as payment of penalties or fines to the client. Therefore, it is better to transfer all the necessary payments yourself and in a timely manner, so as not to think twice about it later. what fines await entrepreneurs on UTII and how to avoid transferring money to checking bank accounts.
All organizations and individual entrepreneurs that use UTII are required to submit single tax reporting. The deadlines and procedure for filing it are determined by the Tax Code. Failure to submit a UTII return on time leads to the possibility of blocking the taxpayer's current account.
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When should the declaration be submitted?
It is necessary to report on the results of the tax period; for UTII it is 1st quarter. The declaration must be submitted by the 20th day of the month following the end of the quarter in accordance with clause 3 of Art. 346.32 Tax Code of the Russian Federation. When the last day of the deadline falls on a holiday or weekend, you can submit reports on the first working day after the weekend.
Important!
If a taxpayer has ceased to use UTII, he is obliged to submit reports and pay tax for the period when he was considered “imputed.”
In the event that no activity subject to UTII was carried out during the tax period, it is still necessary to submit a declaration. Suspension or termination of the imputed activity does not mean that there is no need to pay tax. To cancel this obligation, you must submit an application to the inspectorate and deregister.
Where to take it
Read:As a general rule, reports are submitted at the taxpayer’s place of registration. In practice, imputators often operate in several municipalities at once. In this case, you should be guided by the explanations of the Federal Tax Service and the Ministry of Finance:
- Activities are carried out within the same city, but in different districts, each of which has a tax office. Then the UTII declaration should be submitted in the division in which the subject was first registered.
- If the imputation officer works in different cities or regions, then reporting must be submitted separately for each municipality. But if they are served by one tax office, then they need to submit one return.
What are the sanctions for violating deadlines?
Responsibility for failure to comply with the procedure for submitting a declaration is determined by Art. 119 NK. The taxpayer is charged 5% of the amount of tax not paid on time. In this case, both full and partial months of non-submission of reports are taken into account. The maximum amount of recovery can reach 30% of the calculated tax, and the minimum is 1000 rubles. For an official Art. 15.5 of the Tax Code provides for administrative liability in the form of up to 500 rubles or.
If a taxpayer submitted a return using the old form or filled it out with errors, for example, did not sign on one sheet, the inspectorate has no right to hold him accountable.
The inspectorate may suspend operations on the organization’s accounts on the basis of Art. 76 Tax Code, if the deadline for delivery is missed by more than 10 working days.