Art. 231 Tax Code of the Russian Federation (2017): questions and answers

How can I find out about an overpayment?

A taxpayer who knows how to correctly calculate his tax obligations may himself discover that the tax is withheld in a larger amount. Then he will contact the tax agent with a request to return or offset the overpayment.

But, as a rule, the taxpayer learns about excessive deductions from the tax agent (paragraph 2, paragraph 1, article 231 of the Tax Code of the Russian Federation).

For example, on June 30, 2017, specialists from the accounting service of Vizit LLC discovered excessively withheld personal income tax from the income received by labor safety engineer P. N. Vasiliev. To implement your duties under Art. 231 of the Tax Code of the Russian Federation, Visit LLC issued a letter to P. N. Vasiliev, in which it notified its employee of the overpayment.

IMPORTANT! The taxpayer is given 10 business days to notify the taxpayer from the moment the tax agent discovered the overpayment. The method of transmitting information is not regulated by anyone, and you can choose any one (send a notification by mail, report via electronic communication channels, etc.) - this is the position of officials (letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-06/6-112) .

For information on how to correctly calculate personal income tax and pay it to the budget, read the article “General procedure for calculating and paying personal income tax .

Article 231 of the Tax Code of the Russian Federation. Procedure for collection and refund of tax (current version)

Article 231 of the Tax Code of the Russian Federation establishes the procedure for the collection and return of personal income tax by a tax agent.

Federal Law of July 27, 2010 N 229-FZ “On amendments to part one and part two of the Tax Code of the Russian Federation and some other legislative acts of the Russian Federation, as well as on the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation in connection with with the settlement of debts for the payment of taxes, fees, penalties and fines and some other issues of tax administration" (hereinafter referred to as Law No. 229-FZ), paragraph 1 of Article 231 of the Tax Code of the Russian Federation is set out in a new wording.

These changes came into force on January 1, 2011.

Before the amendments were made to paragraph 1 of Article 231 of the Tax Code of the Russian Federation, neither the procedure nor the deadlines for returning personal income tax from the budget were prescribed.

Now, paragraph 1 of Article 231 of the Tax Code of the Russian Federation sets out in detail the procedure for returning the excessively withheld amount of personal income tax.

Paragraph 1 of paragraph 1 of the commented article is valid as amended by Federal Law dated June 23, 2014 N 166-FZ “On Amendments to Article 78 of Part One and Part Two of the Tax Code of the Russian Federation.”

Paragraph 1 of paragraph 1 of Article 231 of the Tax Code of the Russian Federation establishes that the amount of tax excessively withheld by a tax agent from the taxpayer’s income is subject to refund by the tax agent on the basis of a written application from the taxpayer, unless otherwise provided by Chapter 23 of the Tax Code of the Russian Federation.

Official position.

The letter of the Federal Tax Service of Russia dated October 2, 2012 N ED-4-3/ [email protected] “On the provision of a property deduction” explains that the refund of personal income tax is made at the expense of the amounts of this tax subject to transfer to the budget in the month in which the taxpayer provided confirmation of the right to a property tax deduction, and in subsequent months.

A similar conclusion is also contained in the letter of the Ministry of Finance of Russia dated October 18, 2013 N 03-04-06/43608.

Important!

It is necessary to note that the provisions of the Tax Code of the Russian Federation do not provide for notification of the tax authority about the refund of the excessively withheld amount of tax.

Official position.

The letter of the Ministry of Finance of Russia dated June 26, 2013 N 03-04-06/24288 states that if the amount of tax to be transferred by the tax agent to the budget system of the Russian Federation is not enough to return the amount of tax that was excessively withheld and transferred to the budget system of the Russian Federation to the taxpayer within the period established by paragraph 1 of Article 231 of the Tax Code of the Russian Federation, the tax agent, within 10 days from the date the taxpayer submits the corresponding application to him, sends to the tax authority at the place of his registration an application for the return to the tax agent of the amount of tax that was excessively withheld by him.

Official position.

The letter of the Ministry of Finance of Russia dated 03/07/2013 N 03-04-06/7028 considered the following situation: the organization unnecessarily withheld personal income tax when dismissing employees. Some workers died. No personal income tax refund was issued. Does an organization have the right to return excessively withheld personal income tax to the heirs of deceased former employees?

The Ministry of Finance of Russia, in relation to this situation, indicated that the provisions of Article 231 and part one of the Tax Code of the Russian Federation do not provide for the return of these amounts in a different order and to persons other than the taxpayer, including the heirs of the taxpayer.

Law No. 229-FZ supplemented Article 231 of the Tax Code of the Russian Federation with clause 1.1, which provides for the procedure for refunding personal income tax in the event of recalculation if an individual has acquired the status of a tax resident of the Russian Federation.

In a letter dated October 28, 2010 N 03-04-06/6-258, the regulatory authority explained that starting from January 1, 2011, the refund of the tax amount to the taxpayer in connection with a change in his tax status is made by the tax authority with which he was registered at the place of residence (place of stay), when submitting a tax return at the end of the tax period and documents confirming the status of a tax resident in a given tax period.

A similar position is contained in the letter of the Ministry of Finance of Russia dated March 21, 2011 N 03-04-06/6-48.

The letter of the Ministry of Finance of Russia dated January 16, 2013 N 03-04-06/4-11 explains that in accordance with paragraph 1.1 of Article 231 of the Tax Code of the Russian Federation, if an employee of an organization acquires the status of a tax resident of the Russian Federation, recalculation and refund of the tax amount are made based on the results of the tax period tax authority when the taxpayer submits a tax return and conducts a desk tax audit in the prescribed manner.

Analyzing paragraph 2 of Article 231 of the Tax Code of the Russian Federation, the Ministry of Finance of Russia explained that, on the basis of paragraph 2 of Article 231 of the Tax Code of the Russian Federation, sending a notification by a tax agent about the impossibility of withholding personal income tax does not terminate its obligations to withhold tax amounts.

Arbitrage practice.

The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” states that if special rules in this regard do not follow from the norms of part two of the Tax Code of the Russian Federation (for example, from paragraph 2 of Article 231 of the Tax Code of the Russian Federation), forced fulfillment of the duties of a tax agent by collecting from him untransferred amounts of tax, as well as corresponding amounts of penalties, is possible in the case where the tax agent withheld the amount of tax from the taxpayer, but was not transferred to the budget.

If the bank pays the taxpayer any other income, for example interest on a deposit, personal income tax on income in the form of a prize exceeding 4,000 rubles must be withheld by the bank when paying these incomes and at the expense of them.

Considering that personal income tax is withheld by the tax agent from the amounts of the taxpayer’s income upon their actual payment, the bank is obliged to withhold tax from the amounts of interest on the deposit before they are credited to the client’s current account (see letter dated February 20, 2009 N 03-04-06 -01/37).

In a letter dated March 19, 2007 No. 03-04-06-01/74, the regulatory authority explained that a notification to the tax authority about the impossibility of withholding tax and the amount of the taxpayer’s debt does not relieve the company from the duties of a tax agent. This obligation remains until the end of the relevant tax period in which the company paid income to the individual.

Arbitrage practice.

The Resolution of the Fifteenth Arbitration Court of Appeal dated October 13, 2013 N 15AP-14415/2013 draws attention to the fact that the tax authority does not have the right to independently withhold from the taxpayer the amounts of tax required for payment to the budget. The functions of calculating, withholding from taxpayers and paying tax amounts are assigned to tax agents, therefore the tax authority has the right to invite organizations to perform these actions.

Comment source:

“ARTICLE-LINE COMMENTARY TO CHAPTER 23 OF THE TAX CODE OF THE RUSSIAN FEDERATION “INDIVIDUALS INCOME TAX” (UPDATED)

Yu.M. Lermontov, 2014

When can I get my overpaid tax refunded?

Let's continue with the example. P. N. Vasiliev took a letter from his company from his mailbox, and the fate of this overpayment was entirely in his hands.

On the same day, he contacted the accounting department with a written statement in which he asked to transfer the excessively withheld amount to his bank card. LLC "Visit" remembered about their employee's application only in November, although no more than 3 months were allotted for the transfer from the date of receipt of the application.

P. N. Vasiliev, due to late payment, has the right to count on additional compensation in the form of interest (paragraphs 3–5, paragraph 1, article 231 of the Tax Code of the Russian Federation).

The accountant of Visit LLC will have to not only correctly calculate the interest, but also withhold personal income tax when paying it (letter of the Ministry of Finance of Russia dated August 22, 2013 No. 03-04-05/34450).

Where to send the application?

Let's imagine a situation: P. N. Vasiliev received a message that last year personal income tax on his income was calculated and withheld in a larger amount than required. Since the employee did not trust his employer, he took the application directly to the tax office. But there they refused to accept his application and sent him back to Vizit LLC.

IMPORTANT! The taxpayer’s application for offset or refund of the overpayment must first go to the company’s accounting department, and not to the tax authorities (Decision of the Constitutional Court dated February 17, 2015 No. 262-O).

It happens that the employee decided to return the overpayment, but did not find the tax agent (paragraph 10, paragraph 1, article 231 of the Tax Code of the Russian Federation). In this case, you cannot do without the tax authorities. Anyone wishing to return the overpayment will have to go to the inspectorate and submit an application along with a tax return (letter of the Ministry of Finance of Russia dated December 27, 2012 No. 03-04-06/4-370).

An employee quits his job: how can he get back the overpayment?

Sometimes the fact of excessive withholding of tax on the income of an employee who has already resigned is discovered. In this case, the provisions of Art. 231 of the Tax Code of the Russian Federation remains in force for him: he has the right to return the overpayment. And it doesn’t matter whether the employee is working for the same employer at that moment or not (letter of the Ministry of Finance of Russia dated December 24, 2012 No. 03-04-05/6-1430).

The taxpayer's procedure will be the same: the former employee will be required to write a statement and bring it to the company's accounting department.

If the company refuses to return the overpayment, then the court will be on the employee’s side. Read more about this in the material “You can force an agent to return personal income tax through the court .

In this situation, the accountant should remember that the tax can be returned to the former employee only through upcoming personal income tax payments from the income of other employees (letters of the Ministry of Finance of Russia dated July 2, 2012 No. 03-04-06/6-193, dated July 31, 2012 No. 03- 04-05/1-901).

If the company sent a message to the resigned employee about the overpayment, and his relative came with a request for a refund (due to the death of the former employee), the excess cannot be paid (letter of the Ministry of Finance of Russia dated 03/07/2013 No. 03-04-06/7028).

Article 231. Procedure for collection and refund of tax

Tax Code Part 2 Section VIII. Chapter 23. Article 231

1. The amount of tax excessively withheld from the taxpayer’s income by a tax agent is subject to refund by the tax agent on the basis of a written application from the taxpayer, unless otherwise provided by this chapter.

The tax agent is obliged to inform the taxpayer about each fact of excessive tax withholding and the amount of excessive tax withheld within 10 days from the date of discovery of such a fact.

The refund of the overly withheld amount of tax to the taxpayer is made by the tax agent at the expense of the amounts of this tax subject to transfer to the budget system of the Russian Federation on account of upcoming payments both for the specified taxpayer and for other taxpayers from whose income the tax agent withholds such tax, within three months from the date of receipt by the tax agent of the relevant application from the taxpayer.

The return to the taxpayer of excessively withheld tax amounts is made by the tax agent in non-cash form by transferring funds to the taxpayer's bank account specified in his application.

If the refund of an overly withheld tax amount is carried out by a tax agent in violation of the deadline established by paragraph three of this paragraph, the tax agent shall accrue interest payable to the taxpayer for each calendar day of violation on the amount of overly withheld tax that is not returned to the taxpayer within the established period. return period. The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the repayment deadline was violated.

If the amount of tax to be transferred by the tax agent to the budget system of the Russian Federation is not enough to return the amount of tax that was excessively withheld and transferred to the budget system of the Russian Federation to the taxpayer within the period established by this paragraph, the tax agent within 10 days from the date the taxpayer submits the corresponding application to him sends to the tax authority at the place of its registration an application for a refund to the tax agent of the amount of tax withheld in excess.

The return of the tax amount transferred to the budget system of the Russian Federation to the tax agent is carried out by the tax authority in the manner established by Article 78 of this Code.

Together with the application for the return of the amount of tax that was excessively withheld and transferred to the budgetary system of the Russian Federation, the tax agent submits to the tax authority an extract from the tax accounting register for the corresponding tax period and documents confirming the excessive withholding and transfer of the amount of tax to the budgetary system of the Russian Federation.

Prior to the return from the budget system of the Russian Federation to the tax agent of the amount of tax that was excessively withheld and transferred to the budget system of the Russian Federation from the taxpayer, the tax agent has the right to return such amount of tax at his own expense.

In the absence of a tax agent, the taxpayer has the right to submit an application to the tax authority for the return of the tax amount that was excessively withheld from him and transferred to the budget system of the Russian Federation earlier by the tax agent simultaneously with the submission of a tax return at the end of the tax period.

1.1. The refund of the tax amount to the taxpayer in connection with the recalculation at the end of the tax period in accordance with his acquired status of tax resident of the Russian Federation is made by the tax authority in which he was registered at the place of residence (place of stay), when the taxpayer submits a tax return at the end of the specified tax period. period, as well as documents confirming the status of a tax resident of the Russian Federation in this tax period, in the manner established by Article 78 of this Code.

2. Amounts of tax not withheld from individuals or not fully withheld by tax agents shall be collected by them from individuals until these persons fully repay the tax debt in the manner prescribed by Article 45 of this Code.

3. Lost power.

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We suggest that you familiarize yourself with Article 231 of the Tax Code of the Russian Federation, Chapter 23 “Procedure for collection and refund of tax.” Information is current as of 2016. If you think that Article 231 of the Tax Code of the Russian Federation is outdated and not relevant, we ask you to write about this to the editors of the site using the feedback form.

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An employee's status has changed: what to do to get a tax refund?

A company employee can become a tax resident within a year if he lives and works in our country for more than 183 days. Then he will automatically overpay personal income tax, since the income tax rate is reduced from 30 to 13%.

Such cases are also provided for by law - in paragraph 1.1 of Art. 231 Tax Code of the Russian Federation. The company's specialists will recalculate the tax from the beginning of the year at a rate of 13% and will count the resulting amount of overpayment against the amount of tax that the tax agent is obliged to withhold at this rate from all employee income for the year. And if by the end of the year the overpayment is not offset in full, the employee himself will have to apply for a refund to the tax authorities (letter of the Ministry of Finance of Russia dated October 3, 2013 No. 03-04-05/41061).

This will require more documents. In addition to the application and income statement, you will need documents confirming your tax resident status (clause 1.1 of Article 231 of the Tax Code of the Russian Federation). This can be a copy of the employee’s passport (with border crossing marks) or a certificate from the place of work (letter of the Ministry of Finance of Russia dated April 26, 2012 No. 03-04-05/6-557).

For more information on how to correctly recalculate personal income tax when changing your tax status, read the article “How to recalculate personal income tax in the case when a non-resident has become a resident (using the example of a citizen of Ukraine)” .

Article 231 of the Tax Code of the Russian Federation. Procedure for collection and refund of tax. Terminological comment

Clause 1 of Article 231 of the Tax Code of the Russian Federation.

1) The amount of tax excessively withheld by a tax agent from the taxpayer’s income is subject to refund by the tax agent on the basis of a written application from the taxpayer, unless otherwise provided by this chapter.

The tax agent is obliged to inform the taxpayer about each fact of excessive tax withholding and the amount of excessive tax withheld within 10 days from the date of discovery of such a fact.

The return to the taxpayer of excessively withheld tax amounts is made by the tax agent in non-cash form by transferring funds to the taxpayer's bank account specified in his application.

The return of the tax amount transferred to the budget system of the Russian Federation to the tax agent is carried out by the tax authority in the manner established by Article 78 of this Code.

Clause 1 of Article 231 of the Tax Code of the Russian Federation.

1)1. The refund of the tax amount to the taxpayer in connection with the recalculation at the end of the tax period in accordance with his acquired status of tax resident of the Russian Federation is made by the tax authority in which he was registered at the place of residence (place of stay), when the taxpayer submits a tax return at the end of the specified tax period. period, as well as documents confirming the status of a tax resident of the Russian Federation in this tax period, in the manner established by Article 78 of this Code.

Clause 2 of Article 231 of the Tax Code of the Russian Federation.

2) Lost force on January 1, 2016. – Federal Law dated May 2, 2015 N 113-FZ.

Clause 3 of Article 231 of the Tax Code of the Russian Federation.

3) Invalid as of January 1, 2011. – Federal Law of July 27, 2010 N 229-FZ.

Results

An individual, like any taxpayer, has the right to a refund of excess tax withheld from his income.
Typically, such a return is made by the employer at the request of the employee, and this is true even for relationships that have already ended. If it is impossible to return the tax through the employer, this can be done by contacting the Federal Tax Service. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.