Request for payment of taxes and fees

Referral conditions

According to the current tax legislation, a demand for payment of taxes and fees is a notice expressed in written or electronic form from the tax authority, which is sent to the payer-debtor.

The tax authority is given a period of three months to send a claim to the payer-debtor. This issue is regulated by Article 70 of the Tax Code. Moreover, if the payer’s debt to the state budget does not exceed 500 rubles, then the period for submitting the claim increases to one year.

The demand is always sent only if the organization has arrears, since this is precisely what is provided for by the current tax legislation, regardless of whether the payer-debtor is held accountable or not.

In cases where the tax authority has every reason to believe that the payer-debtor may be held liable for tax offenses, regardless of whether it is criminal or administrative liability, this point is indicated in the requirement.

The tax authority notifies the payer that he may be held liable for offenses and crimes committed in case of failure to comply with the requirement.

According to established standards, the deadline for fulfilling the requirement is set at eight calendar days, however, in some cases, the tax authority can independently set the deadline for fulfilling the requirements.

Conventionally, there are two main conditions for putting forward a demand on the payer by the tax authority:

failure to pay or not pay in full on the part of the payer of the tax or fee;
a decision to hold the payer accountable for crimes or offenses in the tax sphere.

Desk audit requirements

What the inspection requests:

Documents in addition to those submitted along with the reporting.

For example, when checking a VAT return that reflects an export shipment. Or when checking a property tax return, which reflects a credit for tax paid abroad. If the inspectors do not have enough documents provided with the declaration, they have the right to demand that the missing ones be provided for tax control.

Documents confirming the benefit declared in the declaration or calculation.

Benefits for taxes and fees are recognized as advantages provided to certain categories of taxpayers compared to others, including the opportunity not to pay tax or to pay it in a smaller amount (Article 56 of the Tax Code of the Russian Federation).

For example, an entrepreneur declared a 0% rate in his declaration under the simplified tax system. This is a benefit because it is provided to a certain category of taxpayers. In this case, the tax authority has the right to request documents confirming the right to apply a reduced tax rate.

If, for example, an organization applied a depreciation bonus on acquired fixed assets, or an increasing depreciation rate, then this is not a benefit - after all, any taxpayer can take advantage of this opportunity. And tax authorities do not have the right to demand documents confirming the legality of applying ordinary provisions of the law.

Supporting documents, if the amount to be reimbursed is declared in the VAT return.

In this case, the tax authority has the right to request documents from the taxpayer in accordance with Art. 172 of the Tax Code of the Russian Federation to check the legality of applying tax deductions.

Explanations and, if necessary, documents if in the VAT return the information on reflected transactions contradicts each other or does not correspond to the data on the same transactions contained:

in a VAT return submitted by another taxpayer, another person obliged to file a VAT return in accordance with Chapter 21 of the Tax Code of the Russian Federation;
in the log of received and issued invoices submitted to the tax authority by a person for whom Chapter 21 of the Tax Code of the Russian Federation provides for such an obligation.

Also, during the camera room, you may be asked for documents:

confirming reduced insurance premium rates or non-taxable payments;
according to the declared deductions in the excise tax declaration in connection with the return of sold excisable goods;
if an updated declaration is submitted to reduce the tax payable to the budget, if such a declaration is submitted two years or more after the deadline for filing reports;
if you applied tax deductions within the tax-free system in your VAT return. Documents will be requested provided that the information in the VAT return does not correspond to the information available to the tax authority;
if an investment deduction is claimed in the income tax return;
if an audit is carried out of the income tax return of a participant in an investment partnership agreement.

In other cases, the tax authority does not have the right to demand documents, since the list of these situations is closed and cannot be expanded. They may only require explanations. In this case, the taxpayer has the right, on a voluntary basis, to provide documents confirming the accuracy of the data included in the tax return (calculation).

What should you do if the tax inspectorate sent a request for documents or explanations on the declaration (calculation) for previous reporting (tax) periods, the deadline for the desk audit for which has already expired? It is clear that such requirements are illegal and the taxpayer is not obliged to respond to them.

If the tax inspector wants to receive clarification (we are not talking about providing documents for such belated requests at all), then he can call the taxpayer to the inspectorate to give clarification. Please note - explanations only. In this case, the taxpayer is not required to provide any documents.

What is included in the requirement

A request for payment of a tax, fee, penalty or fine, which is sent by the tax authority, must necessarily contain the following information:

amount of tax debt;
penalties that were assessed for late payment of taxes;
the grounds on which the tax was applied;
references to regulations governing the issue of taxation and collection of taxes.

In some cases, additional requirements may be specified that are optional:

individual deadline for fulfilling the requirement;
measures according to which collection will be made from the debtor;
the deadline for paying the tax for which there was a delay.

Please note: the notification form regarding the impossibility of providing documentation has been updated.

Last year, or more precisely in June 2022, the Federal Tax Service changed the form for notification of the impossibility of submitting documents within the prescribed period. Changes have been made to both the paper form of the notification and the electronic form. The changes are associated with the legislative norm introduced in 2022, according to which you do not have to send documents to the Federal Tax Service again.

The form provides three “scenarios”:

the first block is filled in if there is a specific reason for extending the deadline,
the second block is filled in if documents are lost or they are transferred to auditors,
the third block in case the requested documents have already been submitted to the Federal Tax Service.

Form, order, method of transmitting the requirement

Responsibilities for sending a claim to the payer are assigned to the tax authority with which the payer-debtor is registered.

Regardless of whether the debtor is an individual, a legal entity, or a member of a consolidated group. In the latter case, the request is sent to the authorized responsible member of this group.

There are several ways to transfer a claim to the payer:

personally;
by sending a postal item;
through the taxpayer’s account on the official website;
via the Internet in electronic form.

Moreover, if the debtor is an organization, then the claim is transferred to the manager or the person who represents him. If the debtor is an individual, then the claim is transferred to him or his legal representative. The postal item is a registered letter, which is considered delivered after six days from the date of dispatch.

The procedure for sending a request electronically consists of the initial generation of a document in writing, the subsequent generation of the same document in electronic form, and its signing with an enhanced qualified signature of the responsible person (usually the head of the tax authority or the one who replaces him).

An electronic demand is sent to the payer’s address via the Internet with the date of departure recorded.

The tax authority that sent the notification electronically must receive, no later than the next day, through the same channels as the request was sent (for example, via email), the following data:

clarification and confirmation of the correctness of the dispatch date;
acceptance or refusal of acceptance by the payer, confirmed by a qualified electronic signature.

That is, the payer, for his part, is obliged to notify the tax authority whether he received the request, whether he accepted it or not. If there are no grounds for refusal, then the payer’s refusal is considered unlawful and the payer-debtor is subject to liability. The exchange file must be in XML format.

When a tax authority discovers an arrears on the part of the payer, it sends him a demand for payment in any way within three months or a year (in some cases).

Article 69 of the Tax Code of the Russian Federation. Request for payment of tax, fee, insurance premiums (current version)

In Resolution dated 05/08/2008 N A55-17952/2007, the FAS Volga District came to the conclusion that without indicating the date of arrears and the amount of such arrears, as well as documentary evidence of its formation, it is impossible to verify the calculation of penalties, as well as the tax authority’s compliance with the deadlines established by the Tax Code RF to collect penalties.

The FAS Moscow District, in Resolution No. KA-A40/11050-08 dated November 24, 2008, established that the demand was made by the tax authority in violation of the provisions of Article 69 of the Tax Code of the Russian Federation, since it does not allow determining for which arrears penalties were accrued, for what payment period, accrual period and the penalty rate.

Under these circumstances, the taxpayer is deprived of the opportunity to verify the validity of the accrual of penalties.

As noted by the FAS Moscow District, these conclusions are consistent with the legal position of the Supreme Arbitration Court of the Russian Federation, set out in Resolution of the Plenum of February 28, 2001 N 5 “On some issues of application of part one of the Tax Code of the Russian Federation”, which states that pre-trial settlement of a dispute regarding the collection of arrears, penalties consists of the tax authority indicating in a request previously sent to the taxpayer the amount of arrears, the date from which penalties begin to accrue, and the rate of penalties.

The tax authority's reference to the fact that the data from tax returns and personal accounts of the taxpayer confirms the correctness of the calculation of penalties was not accepted by the court, since admissible evidence in the case can only be the request of the tax authority itself, containing all the information provided for in Article 69 of the Tax Code of the Russian Federation.

In practice, the question of the validity of a tax payment requirement if a facsimile is affixed to it instead of a signature is controversial.

The Ministry of Taxes and Taxes of Russia in a letter dated 04/01/2004 N 18-0-09/000042 “On the use of facsimile signatures” explained that the use of facsimile reproduction of a signature using mechanical or other copying means, an electronic digital signature or another analogue of a handwritten signature is not established by current legislation . In addition, facsimiles are not allowed to be used on powers of attorney, payment documents, or other documents that have financial implications. Thus, the Ministry of Taxes and Taxes of Russia prohibited the use of facsimiles of signatures of tax officials in their core activities.

As noted by the Federal Antimonopoly Service of the North Caucasus District in Resolution No. A63-11860/2011 dated 09/07/2012, since the requirement to pay a tax is a non-normative act of the tax authority and the legislation on taxes and fees does not provide for the possibility of putting a tax, fee, penalty on the request for payment, fine facsimile signature of the head (deputy head) of the tax authority, the requirement as an unsigned non-normative legal act of the tax authority does not give rise to legal consequences of its non-fulfillment. From the moment the demand is sent, the stage of forced execution of the obligation to pay a tax or fee begins, therefore the submission of a demand is an integral part of the procedure for the forced execution by the taxpayer of the obligation to pay the tax.

In Resolution dated July 14, 2010 N A58-9855/09, the Federal Antimonopoly Service of the East Siberian District found untenable the tax authority’s argument that a facsimile is an exact reproduction of the graphic original signature, and therefore is equated to a person’s signature in his own hand. A facsimile stamp presupposes its use by other persons and cannot clearly indicate the consent of the relevant official to its affixing. The case materials do not contain any demands with handwritten signatures of the head of the tax authority (his deputies).

The letter from the Ministry of Finance of Russia explains that, as a general rule, a requirement to pay a tax, fee, penalty or fine is signed by the head (deputy head) of the tax authority in his own hand and sealed with the seal of the tax authority.

In the case of sending a request for payment of a tax, fee, penalty, fine to the taxpayer electronically via telecommunication channels, the specified requirement is in accordance with the Procedure for sending a request to the taxpayer to pay a tax, fee, penalty, fine in electronic form via telecommunication channels, approved by the Order of the Federal Tax Service Russia dated 09.12.2010 N ММВ-7-8/ [email protected] , signed with an electronic digital signature of an authorized official of the tax authority.

At the same time, the Resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 10, 2012 N F03-4512/2012 indicates the opposite position.

As the court noted, tax legislation does not contain rules providing for the possibility of using a facsimile stamp or other analogue of reproducing the signature of a manager (deputy manager) when signing non-normative legal acts. However, these norms do not contain a direct prohibition.

In addition, the court’s reference to the letter of the Ministry of Taxes and Taxes of Russia dated 01.04.2004 N 18-0-09/ [email protected] “On the use of a facsimile signature”, given as a legal justification for the ban on the use of a facsimile stamp, cannot be considered valid, since it is a non-normative legal act , based on part 1 of Article 198 of the Arbitration Procedure Code of the Russian Federation, may be declared invalid or assessed as illegal if it does not comply with the law or other legal act to which this letter does not apply.

Recognizing the presence of a facsimile stamp of the manager’s signature on these requirements as a circumstance that does not give rise to legal consequences of their non-fulfillment, the lower courts, in the opinion of the Federal Antimonopoly Service of the Far Eastern District, did not take into account that the requirement to pay tax can be assessed as illegal and unenforceable if it is not corresponds to the taxpayer’s actual obligation to pay tax and if violations of the requirements for its content are significant. In turn, violations are considered significant, which exclude the possibility of establishing, on the basis of this requirement, the grounds for the occurrence of a tax liability and its amount.

The court did not establish such circumstances.

Consequently, taking into account the factual circumstances of the case under consideration, indicating that the entrepreneur has a real obligation to pay the tax payments specified in the demands, which is not disputed by the taxpayer, sending demands to the entrepreneur with a facsimile reproduction of the signature of the head of the tax authority, as noted by the FAS of the Far Eastern District, is not may be regarded as a significant violation of the rights and legitimate interests of the applicant.

The provisions of Articles 52 and 69 of the Tax Code of the Russian Federation, establishing a presumption of receipt of a tax notice (demand) by its addressee on the sixth day from the date of sending, cannot be considered as violating the constitutional rights of taxpayers.

This conclusion is contained in the Determination of the Constitutional Court of the Russian Federation dated October 27, 2015 N 2430-O.

The Constitutional Court of the Russian Federation in the said Determination also noted that the fact of receiving a tax notice (demand) by registered mail on the sixth day after sending can be refuted when considering the relevant dispute in court, including a claim by the tax authority for the recovery of tax arrears (Definitions dated April 8, 2010 N 468-О-О and dated March 24, 2015 N 735-О).

In paragraph 53 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57, it is noted that according to paragraph one of paragraph 6 of Article 69 of the Tax Code of the Russian Federation, if a request for tax payment is sent by registered mail, it is considered received after six days from the date of sending the registered letter.

When considering disputes, the courts must proceed from the fact that, by virtue of the direct instructions of the law, the corresponding tax procedure is recognized as being complied with regardless of the actual receipt by the taxpayer (his representative) of a demand for tax payment sent by registered mail.

In paragraph 4 of the letter of the Federal Tax Service of Russia dated 03/09/2011 N YAK-4-8/ [email protected] it is stated that the deadline for fulfilling the requirement to pay a tax, fee, penalty, fine sent to organizations and individual entrepreneurs electronically via telecommunication channels, must be at least 20 calendar days, and for individuals who are not individual entrepreneurs - at least 30 calendar days.

By virtue of paragraph 19 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On some issues of application of part one of the Code,” the request sent to the taxpayer must contain data that allows him to verify the validity of the accrual of penalties.

Collection of arrears at the expense of cash or at the expense of the taxpayer’s property should be carried out only after the expiration of the period specified in the request sent to the taxpayer. Otherwise, the taxpayer is deprived of the right to voluntarily fulfill the requirement.

This conclusion is due to the fact that submitting a claim is an integral part of the procedure for compulsory execution of the obligation to pay tax.

The adoption by the tax authority of a decision to collect the arrears at the expense of the taxpayer’s property before the expiration of the period for voluntary fulfillment of the requirement to pay the tax is a significant violation of the procedure for the forced execution of the obligation to pay the tax, entailing the recognition of such a decision as invalid.

This position is well-established in judicial practice (see Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 29, 2005 N 13592/04, FAS Volga District dated September 30, 2008 N A57-22547/07, dated April 30, 2008 N A57-2811/07).

Unaccepted demand

Tax legislation provides for cases when a claim is considered rejected by the payer or the tax authority. Thus, a requirement is considered unfulfilled by the tax authority if the payer-debtor did not fulfill it within the prescribed period, fulfilled it partially (not in full), did not accept the requirement for execution, refused it in writing or electronically, or ignored the requirement.

For this, tax legislation provides for the use of legal and approved methods of ensuring compliance with the norms contained in the requirement. In this case, the payer may be additionally subject to both criminal and administrative prosecution by tax authorities for violation of current tax legislation.

The payer may not accept the claim if it is drawn up in violation of the current legislation, contains errors, corrections or distorted information.

In this case, along with the refusal to accept the request, the payer sends and submits reliable information to the tax authority.

So, for example, if a payer is required to pay a tax that has already been paid, then the payer, along with the refusal to accept, sends a document or a copy of a document that confirms the payment of this tax (for example, a check slip or a bank statement).

If errors are made, the tax authority corrects them and sends a corrected request to the payer for execution. The payer-debtor does not have the right to refuse in cases where the demand is drawn up correctly and is also of a reliable nature.

All actions of a payer who does not want to pay a tax or fee legally applied to him are considered unlawful and are subject to liability.

When a requirement is not a requirement

The form for the requirement to submit documents (information) is approved by Appendix No. 17 to the Order of the Federal Tax Service of Russia dated November 7, 2018 N ММВ-7-2/ [email protected]

The requirement to provide documents (information) must contain:

the basis for requesting documents (information) and the deadline for submission;
Title of the document;
the period to which it relates;
details or other individualizing features of documents (if any).

But it happens that tax authorities send taxpayers a document that differs in form from the approved request form.

Such a document may be called: an information letter, notification or message. Considering that the Tax Code of the Russian Federation does not establish a form for the requirement and there is no indication that such a form should be developed and approved by the tax service, then formally the taxpayer has no reason not to comply with the received document. But only if this document has all the mandatory details required by the requirement, and the basis for requesting the documents is indicated.

As a rule, tax authorities send such information letters, notifications or messages when they no longer have the right to request documents as usual . For example, the deadline for a desk audit has expired. This has already been mentioned earlier. The organization has the right not to execute such a document.

But it is not recommended to completely ignore such a letter. In any case, it needs to be answered. It is enough to indicate the reasons for refusal in the answer.

Enforcement methods

Tax legislation provides for several ways to ensure compliance with requirements for the payment of taxes, penalties and fees:

secured by property;
under the responsibility of the guarantor;
fines;
seizure of property;
freezing transactions on a bank account.

A collateral agreement is drawn up between the payer-debtor or his representative and the tax authority.

In this case, the amount of the collateral may exceed the amount of the debt, but it cannot be less than it.

If the payer fails to comply with the request, the tax authority may sell the debtor’s property at market value, withholding from the proceeds the funds necessary for repayment, and then returning the difference from the sale to the payer. This measure applies not only to organizations - legal entities and individual entrepreneurs, but also to individuals.

The guarantor can fulfill the obligations of the payer against whom the claim is made in full and not in part. Moreover, this practice is most often used in relation to organizations for which another organization acts as a guarantor, the activities of which are closely related to the activities of the debtor. The return of funds paid upon request is negotiated in this case individually between the guarantor and the debtor.

The tax authority has the right to freeze the movement of funds in the debtor’s bank account only on the basis of a relevant decision.

In this case, the bank cannot refuse to execute the decision. The debtor's funds are frozen, and then the funds necessary to repay the debt are transferred to the state budget.

Seizure of property, as one of the extreme measures to fulfill a claim, is applied on the basis of a decision of both the tax authority and the court. Seized property may be returned to the debtor if he promptly fulfills the requirement applied to him. Otherwise, the property will be sold at market value to pay off the debt to the state budget.

Penalties are added to the principal amount of the debt and are indicated in the request, which is sent to the payer-debtor. The obligation to pay penalties is mandatory, since even if a tax, fee or fine is paid off, if the penalties are not paid, they will continue to accumulate.

A change in the obligation to pay tax, as well as its application to the payer, occurs only on the basis of the current tax legislation, which includes not only the Tax Code, but also other regulations that regulate taxation issues, the application of a particular tax, including including regional and local laws and regulations.

Payment obligations arise for the taxpayer when the established tax subject to payment is applied to him.

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Sanctions for violators of the deadlines and procedures for providing documentation in response to the requirements of the Federal Tax Service

If the payer is obliged to submit a report to the Federal Tax Service in electronic form, but has not ensured the possibility of receiving electronic documents from the tax authority, then his bank accounts may be blocked at the request of the Federal Tax Service. The same sanctions will be applied by tax authorities to the payer if they do not send them a receipt for receiving an electronic demand ( subclause 1.1 and subclause 2 of clause 3 of Article 76 of the Tax Code of the Russian Federation ).

For refusal to submit the requested documents on time, the taxpayer may be fined in accordance with paragraph 1 of Article 126 of the Tax Code of the Russian Federation . In this case, the fine will be 200 rubles for each document not submitted. In case of refusal to provide documentation by the counterparty, the fine provided for in paragraph 2 of Article 126 of the Tax Code of the Russian Federation will be 10,000 rubles . An unjustified refusal to provide information about a specific transaction will entail a fine of 5,000 rubles , according to clause 1 of Article 129.1 of the Tax Code of the Russian Federation , and a repeated refusal within 1 year will result in a fine of 20,000 rubles (clause 2 of Article 129.1 of the Tax Code of the Russian Federation) .