KS: Independent elimination of a tax violation should lead to release from liability

The Constitutional Court published Resolution No. 6-P of February 6, 2018 in the case of verifying the provisions of paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation. Their constitutionality was challenged by TAIF PSC, which, based on the results of an on-site tax audit for the period from January 1, 2011 to December 31, 2012, was brought to tax liability for untimely transfer to the budget of withheld amounts of personal income tax. In accordance with Art. 123 The company was fined almost 300 thousand rubles, and a penalty was also charged.

The arbitration court declared the decision of the tax authority invalid regarding the fine in the amount of about 60 thousand rubles. At the same time, the Company referred to the fact that the untimely transfer of personal income tax amounts, which it committed as a tax agent, was eliminated independently, long before the end of the tax period and before the deadline for submitting the relevant calculations to the tax authorities, and also paid late fees, but the court did not take this into account and refused to grant relief from tax liability in another part of the fine. The court considered that the provisions of paragraph 4 of Art. 81 of the Tax Code of the Russian Federation binds the exemption from the fine provided for in its Art. 123, with the submission of an updated declaration or calculation, as well as with the payment of the missing amount of tax and penalties accrued for late payments, while the company submitted to the tax authority a calculation for the personal income tax immediately without errors and did not clarify it subsequently, which does not allow applying the exemption from tax liability.

The Court of Appeal and the District Court upheld the first instance decision. The judge of the Supreme Court of the Russian Federation refused to transfer the Company's cassation appeal for consideration at a court session of the Judicial Collegium for Economic Disputes, with which the Deputy Chairman of the Supreme Court of the Russian Federation also agreed.

The company appealed to the Constitutional Court. In her opinion, paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation contradict the Constitution, since they allow a tax agent to be released from tax liability (fine) for untimely transfer to the budget of the amounts of personal income tax withheld by him only if he submits updated tax reporting; Since this condition cannot be fulfilled if the reporting is initially correctly drawn up, only tax agents who have submitted inaccurate tax reporting can enjoy exemption from tax liability for such delay.

The society separately substantiated its position regarding the unconstitutionality of Art. 123 of the Tax Code of the Russian Federation, indicating that the fine established by this article for failure to transfer withheld tax amounts is collected from tax agents in the same amount - regardless of the fact that the delay in payment of tax could have been insignificant and was independently eliminated long before the end of the tax period with the payment of penalties in compensation for damage to the treasury.

The court noted that it had repeatedly spoken out regarding this article in its decisions of March 19, 2003 No. 3-P, of March 13, 2008 No. 5-P, of May 27, 2008 and others. He pointed out that the application of penalties without proper consideration of the circumstances characterizing the person guilty of committing the act, which have an objective and reasonable justification, contradicts the constitutional prohibition of discrimination and the ideas of justice and humanism expressed in the Constitution of the Russian Federation, and is also incompatible with the principle of individualization of responsibility for offenses. “Measures of legal liability and the rules for their application must not only correspond to the nature of the offense, its danger to values protected by law, but also ensure that the reasons and conditions for its commission are taken into account, as well as the identity of the offender and the degree of his guilt, thereby guaranteeing the adequacy of the consequences generated for the person held accountable, the harm caused as a result of the offense, avoiding excessive state coercion and ensuring a balance of the fundamental rights of the individual (legal entity) and the general interest, which consists in protecting the individual, society and the state from offenses,” the Constitutional Court emphasized.

The Constitutional Court indicated that a tax agent held accountable for failure to fulfill the obligation to withhold and (or) transfer taxes, in any case, has the right to count on the possibility of establishing in his case significant circumstances that determine the individualization of the punishment, in particular, taking into account mitigating circumstances. Thus, the Constitutional Court did not see any uncertainty in the issue of the constitutionality of regulating the amount of the fine provided for in Art. 123 Tax Code of the Russian Federation.

The court referred to its Resolution No. 9-P of July 14, 2005, where it noted that the taxation system is based on information about income provided by the taxpayer himself. From this understanding, which implies the reliability of tax declarations, comes sub-clause. 2 clause 4 art. 81 of the Tax Code of the Russian Federation, according to the meaning of which, the release from liability of a taxpayer who has submitted an updated tax return after an on-site tax audit, which did not reveal errors and violations in his reporting, is not even conditioned by his payment of the missing amounts of tax and penalties, but only by the correction of the relevant information.

According to the Constitutional Court, this legal provision, without canceling the tax obligation, directly encourages taxpayers and tax agents to maintain reliability in tax reporting. Moreover, Art. 119 and 126 of the Tax Code of the Russian Federation provide for liability specifically for failure to submit tax reports to the tax authority, and its Art. 126.1 – for the submission by a tax agent of documents containing false information. From this, according to the Court, it follows that the tax law recognizes the importance of the requirement for the reliability of tax reporting in maintaining fiscal law and order. “Accordingly, its compliance cannot impede the use of fiscal incentive measures, especially since neither the tax law itself nor the practice of its application can encourage the persistence of unreliability in tax reporting, conditioning exemption from tax liability solely on the presence of errors (inaccurate information) in tax returns or calculations, both taken into account in the objective and subjective side of the offense, and accompanying a tax tort in a conditionally neutral sense,” the resolution says.

The Constitutional Court noted that also Art. 123 of the Tax Code of the Russian Federation provides for liability in the form of a fine not for violations committed by the tax agent in terms of the reliability of the submitted calculations, but for arrears, regardless of the reasons for their occurrence. With this definition of the composition of a tax offense, the Constitutional Court believes, the tax agent, as a responsible person obliged by virtue of the tax law to accurately declare taxes, has reason to believe that it is the failure to pay tax and penalties, regardless of whether the tax reporting submitted by him is erroneous or flawless, that entails refusal in exemption from tax liability. Moreover, if the arrears were paid voluntarily by him and compensated with penalties before he became aware of the discovery by the tax authority of the fact of late payment of tax or the appointment of an on-site tax audit, it was allowed without distortion of tax reporting and unintentionally.

The Constitutional Court noted that in judicial practice it is possible to exempt a tax agent who has timely submitted reliable tax reporting from liability for unlawful non-withholding and non-transfer of taxes, which is consistent with the legal position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 18, 2014 No. 18290/13 in relation to to the intended purpose of exemption from tax liability provided for in Art. 81 Tax Code of the Russian Federation. This is also indicated in the letter sent to the Constitutional Court in the framework of this case by the Deputy Chairman of the Supreme Court of the Russian Federation, who believes that tax agents who missed the deadline for paying taxes, but compensated for the delay by voluntarily paying penalties, are put in a worse position compared to those who who committed a more serious violation by distorting tax reporting, resulting in incomplete payment of tax. At the same time, the letter notes that under circumstances similar to those established in relation to the Company, in order to release the tax agent from tax liability for untimely transfer of withheld tax, made without distortion of tax reporting, there is formally no set of all the conditions provided for in clauses 3 and 4 of Art. . 81 Tax Code of the Russian Federation.

Thus, the Court decided to recognize the contested provisions as not contradicting the Constitution, to recognize the revealed meaning as generally binding, and to review the decisions made in relation to the Company.

In a commentary to AG, Deputy Head of Tax Law Practice Maxim Voloboev emphasized that situations similar to the one that happened to the applicant occur quite often. “The tax authorities, on formal grounds, refuse to grant exemption from liability, despite the fact that the arrears have been repaid and the budget has received compensation in the form of a penalty. Apparently, this is not enough for the tax authorities and they want to squeeze everything they can out of taxpayers. However, the Constitutional Court stood up to protect not only the interests of taxpayers, but also established, from the point of view of fairness and equality of taxation, as well as the proportionality of the deed, the actual meaning of the provisions of Art. 81 and 123 of the Tax Code of the Russian Federation,” the expert indicated.

Maxim Voloboev believes that henceforth taxpayers and tax authorities will adhere to the position of the Constitutional Court of the Russian Federation, since by virtue of paragraph 2 of the operative part of the resolution, the revealed meaning of the norms is generally binding. He added that, in addition, in recent years, regulatory authorities have been paying attention to judicial practice; The Federal Tax Service of the Russian Federation issues quarterly review letters of practice of the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation and district courts.

The head of the legal department of Heads Consuling, Diana Maklozyan, pointed out that since the disputed article specifically indicates a list of circumstances under which the taxpayer is exempt from liability in the form of a fine, it does not give the tax authority any reason for reflection. “Accordingly, in all such cases, the tax authorities were obliged to assess a fine. A violation in the form of untimely transfer of personal income tax to the budget by the tax authority could only be established as part of an on-site tax audit,” the expert explained.

She also noted that the Constitutional Court, having considered a specific case, made a binding conclusion that if a tax agent transfers untimely personal income tax to the budget and pays a penalty, tax liability in the form of a twenty percent fine does not arise. “Now similar decisions in cases for previous periods can be appealed by taxpayers on the basis of this resolution of the Constitutional Court of the Russian Federation based on newly discovered circumstances within the time limits established by the Arbitration Procedure Code of the Russian Federation,” added Diana Maklozyan. At the same time, she noted that the Tax Code contains a fairly large number of contradictions and ambiguities, so it would be logical, based on the resolution, to make changes to the relevant part of the Tax Code of the Russian Federation.

Tax lawyer at Egorov, Puginsky, Afanasiev and Partners Law Firm Torez Kulumbegov emphasized that now all similar disputes should be resolved in favor of the tax agent (except for cases where non-transfer of tax was the result of deliberate actions), since the Constitutional Court of the Russian Federation has directly indicated that the identified they have the constitutional and legal meaning of the interrelated provisions of paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation is generally binding, which excludes any other interpretation in law enforcement practice. “Thus, similar disputes should no longer arise without making appropriate changes to the Tax Code of the Russian Federation. However, such changes would certainly make tax agents more informed about their rights, since they are not always aware of the decisions of the Constitutional Court of the Russian Federation, and local tax authorities may continue to impose fines in such cases,” the expert explained.

Lawyer of the Freitak and Sons Bureau of Attorneys Aleksey Smirnov, on the contrary, believes that legal disputes on the circumstances considered by the Constitutional Court of the Russian Federation arose quite rarely. “It is obvious that after the adoption of the resolution in question, the practice of applying these norms in the courts will change, or rather, disputes should stop altogether. In general, the significance and importance of the subject of the dispute considered by the Constitutional Court is not so great due to the insignificance of the issues and only exposes the formal approach to the enforcement of the norms of the Tax Code of the Russian Federation,” the expert concluded.

Tax refund and desk tax audit

Does the tax inspectorate have the right to refuse a taxpayer a refund to the current account of an overpaid single tax levied on taxpayers using the simplified tax system who have chosen income as an object of taxation, citing as the reason for the refusal the fact that they carried out a desk audit of the updated tax return submitted by the entrepreneur under the simplified tax system?

The fact of an overpayment as of the date of application to the tax authority is confirmed by a certificate of the status of tax payments. The inspectorate does not dispute the existence of an overpayment. Is the right of a taxpayer to a refund of overpaid taxes related to the conduct of a desk tax audit against him?

According to Art. 88 of the Tax Code of the Russian Federation, desk tax audit

carried out at the location of the tax authority on the basis of tax returns (calculations) and documents submitted by the taxpayer, as well as other documents on the activities of the taxpayer available to the tax authority.

Desk tax audit is carried out

by authorized officials of the tax authority in accordance with their official duties
without any special decision
of the head of the tax authority
within three months from the date the taxpayer submitted a tax return
(
calculation
).

Clause 1 Art. 81 Tax Code of the Russian Federation

It has been established that
if a taxpayer discovers

inaccurate
in the tax return submitted to the tax authority
do not lead to an understatement of the amount

the taxpayer has the right to make the necessary changes to
the tax return and submit an updated tax return to the tax authority.

If, before the end of the desk tax audit, the taxpayer submits an updated tax return

(calculation) in the manner provided for
in Art.
81 of the Tax Code of the Russian Federation , a desk tax audit of a previously submitted declaration (calculation) is terminated and
a new desk tax audit begins
on the basis of an updated tax return (calculation) (
clause 9.1 of Article 81 of the Tax Code of the Russian Federation
).

Procedure for credit or return

amounts of overpaid taxes, fees, penalties, fines are regulated
by Art.
78 Tax Code of the Russian Federation .

The tax authority is obliged to inform the taxpayer about each fact of excessive payment of tax that has become known to the tax authority and the amount of overpaid tax within 10 days from the date of discovery of such a fact.

If facts are discovered indicating a possible excessive payment of tax, at the proposal of the tax authority or taxpayer, a joint reconciliation of calculations for taxes, fees, penalties and fines

Decision on refund of overpaid tax

accepted by the tax authority
within 10 days from the date of receipt of the taxpayer’s application for a refund
of the amount of overpaid tax
or from the date of signing by the tax authority
and this taxpayer of
the act of joint reconciliation
of the taxes paid by him, if such a joint reconciliation was carried out.

The tax authority is obliged to inform the taxpayer in writing about the decision made

on the offset (refund) of the amounts of overpaid tax or the decision to refuse to carry out the offset (refund) within five days from the date of adoption of the corresponding decision.

The amount of overpaid tax is subject to refund upon written application.

(application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels) of the taxpayer
within one month from the date the tax authority received such an application
.

Procedure for calculating the return period

(offsetting) the amount of overpaid tax was set out in the Information Letter
of the Presidium of the Supreme Arbitration Court of the Russian Federation
dated December 22, 2005 No. 98.

The court indicated that Art. 78 Tax Code of the Russian Federation

, regulating the procedure for returning (offset) the amount of overpaid tax, does not define the procedure for recognizing the corresponding amounts as overpaid, and also
does not establish the time frame during which the tax authority must verify
the taxpayer’s statement about the presence of an overpaid amount of tax.

Within the meaning of paragraph 6 of Art. 78 Tax Code of the Russian Federation

, which provides for the calculation of the refund period from the date the taxpayer submits the corresponding application, in this case those situations are regulated
when the fact of excessive payment of certain amounts and their amount has already been established by the tax authority at the time of filing the application
for the return (offset) of these amounts.

In this case, a month period is given to the tax authority to check the existence of arrears.

for other taxes and fees and the mandatory offset of the amount of overpaid tax towards its repayment.

Establishment of fact

excessive payment of tax
could be carried out by the tax authority during a desk tax audit
.

If this fact is established based on the results of a desk audit, taking into account the presence of an application

taxpayer about a refund (offset), the tax authority will be obliged to do so within the period specified in
clause 6 of Art.
78 of the Tax Code of the Russian Federation , carry out a mandatory offset of the overpaid amount of tax to pay off arrears on other taxes and fees, and return the remaining amount to the taxpayer.

Therefore, the return period

(offsetting) the amount of overpaid tax, defined
in paragraph 6 of Art.
78 of the Tax Code of the Russian Federation ,
begins to be calculated from the date of filing the application for a refund, but not earlier than from the moment of completion of the desk tax audit
for the corresponding tax period or from the moment when such an audit should have been completed according to the rules
of Art.
88 Tax Code of the Russian Federation .

The regulatory authorities are still guided by this position of the Presidium of the Supreme Arbitration Court of the Russian Federation (letter of the Ministry of Finance of the Russian Federation dated July 3, 2013 No. 03-02-08/25502).

All of the above in relation to your situation means the following

If the fact of overpayment

the tax was established (a reconciliation report was drawn up)
before the start of the desk tax audit
(before the filing of the tax return), then the tax authority is obliged to refund the tax amounts
within one month from the date of receipt of the application for refund
.

If the fact of overpayment of tax was established during a desk tax audit

, then the period for refunding the amount of overpaid tax begins to be calculated from the date of filing the application for refund, but
not earlier than from the moment of completion of the desk tax audit
for the corresponding tax (reporting) period or from the moment when such an audit should have been completed according to the rules
of Art.
88 Tax Code of the Russian Federation .

What is the fact of identifying a tax offense for the purposes of applying paragraph 4 of Art. 81 of the Tax Code of the Russian Federation?

On October 10, Judge of the Supreme Court of the Russian Federation T.V. Zavyalova the question was considered of whether the taxpayer is subject to liability for non-payment of tax in the event of payment of arrears and penalties, as well as the submission of “clarifications” after receiving messages from the tax authority about the discovery of errors and drawing up reports of desk tax audits ( Decision of the Supreme Court of the Russian Federation dated 10.10.2016 No. 305-KG16-12558 in case No. A40-178057/2015 ).

Fable : by decisions of the tax authority, the taxpayer is brought to tax liability for incomplete payment of excise tax under clause 1 of Art. 122 of the Tax Code of the Russian Federation in the form of a fine in the total amount of 55,088,610 rubles. The basis for the adoption of controversial decisions was the tax authority’s conclusion that the taxpayer’s branches deliberately and systematically understated in excise tax returns data on the volume of shipped alcoholic products of their own production to the domestic market in comparison with the data on its shipments reflected in the Unified State Automated Information System for recording production volumes and turnover of ethyl alcohol, alcoholic and alcohol-containing products. The taxpayer paid the disputed amount of tax and penalties and submitted updated tax returns after receiving notifications from the tax authority about the discovery of errors and drawing up reports of desk tax audits.

However, in the opinion of the taxpayer, he complied with the conditions for exemption from tax liability established by subsection. 1 clause 4 art. 81 of the Tax Code of the Russian Federation, since the taxpayer learned about the violations established by the audit no earlier than the date of receipt of the tax audit report.

Arbitration courts, refusing to satisfy the taxpayer's stated demands, proceeded from the fact that the taxpayer corrected errors in calculating the tax base only after the fact of committing an offense was identified by the tax authority and documented (corresponding messages about the identified discrepancies were sent to the taxpayer), due to that his actions cannot be recognized as an independent correction of errors, and do not meet the conditions for release from liability established by subsection. 1 clause 4 art. 81 Tax Code of the Russian Federation.

The judge of the Supreme Court of the Russian Federation agreed with the position of the lower courts and refused to allow the taxpayer to transfer the cassation appeal for consideration at a court hearing by the SKES of the Supreme Court of the Russian Federation.

My own lawyer

Official text: Article 81. Amendments to the tax return 1. If the taxpayer discovers in the tax return submitted to the tax authority that information is not reflected or is incompletely reflected, as well as errors leading to an underestimation of the amount of tax payable, the taxpayer is obliged to make the necessary changes in the tax return and submit an updated tax return to the tax authority in the manner prescribed by this article.

If a taxpayer discovers inaccurate information in the tax return submitted to the tax authority, as well as errors that do not lead to an underestimation of the amount of tax payable, the taxpayer has the right to make the necessary changes to the tax return and submit an updated tax return to the tax authority in the manner established by this article . In this case, an updated tax return submitted after the expiration of the established deadline for filing the return is not considered submitted in violation of the deadline. 2. If an updated tax return is submitted to the tax authority before the deadline for filing a tax return, it is considered submitted on the day the updated tax return is submitted. 3. If an updated tax return is submitted to the tax authority after the expiration of the deadline for filing a tax return, but before the expiration of the deadline for paying the tax, then the taxpayer is released from liability if the updated tax return was submitted before the moment when the taxpayer learned that the tax authority had discovered the fact of non-reflection or incompleteness of information in the tax return, as well as errors leading to an underestimation of the amount of tax payable, or the appointment of an on-site tax audit. 4. If an updated tax return is submitted to the tax authority after the expiration of the deadline for filing a tax return and the deadline for paying the tax, then the taxpayer is released from liability in the following cases: 1) submission of an updated tax return before the moment when the taxpayer learned that the tax authority has discovered a non-reflection or incomplete reflection information in the tax return, as well as errors leading to an underestimation of the amount of tax payable, or the appointment of an on-site tax audit for a given tax for a given period, provided that before submitting an updated tax return, he paid the missing amount of tax and the corresponding penalties; 2) submission of an updated tax return after an on-site tax audit for the corresponding tax period, the results of which did not reveal non-reflection or incompleteness of information in the tax return, as well as errors leading to an understatement of the amount of tax payable. 5. The updated tax return is submitted by the taxpayer to the tax authority at the place of registration. The updated tax return (calculation) is submitted to the tax authority in the form that was in force during the tax period for which the corresponding changes are made. 6. If a tax agent discovers in the calculation submitted by him to the tax authority that information is not reflected or is incompletely reflected, as well as errors leading to an understatement or overestimation of the amount of tax to be transferred, the tax agent is obliged to make the necessary changes and submit to the tax authority an updated calculation in in the manner prescribed by this article. The updated calculation submitted by the tax agent to the tax authority must contain data only in relation to those taxpayers in respect of whom facts of non-reflection or incomplete reflection of information, as well as errors leading to an understatement of the tax amount, were discovered. The provisions provided for in paragraphs 3 and 4 of this article regarding exemption from liability also apply to tax agents when they submit updated calculations. 6.1. If the participant in the investment partnership agreement is the managing partner responsible for maintaining tax accounting (hereinafter in this article - the managing partner responsible for maintaining tax accounting), provided the participants in the investment partnership agreement with a copy of the updated calculation of the financial result of the investment partnership, taxpayers paying the tax on the profits of organizations, income tax for individuals in connection with their participation in an investment partnership agreement, are required to submit an updated tax return (calculation). The updated tax return (calculation) must be submitted to the tax authority at the place of registration of the participant in the investment partnership agreement no later than fifteen days from the day on which he was given a copy of the updated calculation of the financial result of the investment partnership. Moreover, if the updated tax return (calculation) is submitted to the tax authority within the time limits specified in paragraph two of this paragraph, the participant in the investment partnership agreement who is not the managing partner responsible for maintaining tax records is released from liability. If a participant in an investment partnership agreement appeals acts or decisions of the tax authority that changed the financial results of the investment partnership, he is obliged to submit an updated tax return (calculation) no later than fifteen days from the day when the higher tax authority made a decision based on the results of consideration of his complaint. 7. The rules provided for in this article also apply to updated calculations of fees and apply to payers of fees. Lawyer's comment: Clause 1 of this article provides for the taxpayer's obligation to make additions and changes to the tax return if he discovers non-reflection or incomplete reflection of information, as well as errors leading to an understatement of the amount of tax payable. The specified additions and changes are made by submitting to the tax authority, to which the tax return was previously submitted, an application for its addition and change (updated tax return). An updated declaration for the reporting period to which the error relates is submitted to the tax authority; if the tax is calculated on an accrual basis, then the updated declaration is also submitted for all reporting periods, starting from the period to which the error relates. Clause 2 establishes that the date of submission of a tax return is the day of filing an application for its addition and amendment, if the said application is submitted before the deadline for filing a tax return. In this case, tax liability does not apply. Paragraph 3 provides for the release of the taxpayer from liability if an application for additions and changes to the tax return is submitted after the deadline for filing it, but before the deadline for paying the tax, subject to certain conditions. The taxpayer is exempt from liability if the specified application was submitted before the moment when he learned about the discovery by the tax authority of the circumstances provided for in paragraph 1 of this article. In paragraph 26 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5, it is noted that when applying the provisions of Article 81 of the Tax Code of the Russian Federation, which provide for the release of the taxpayer from liability in the event of independently discovering and correcting in the manner established by these norms errors made when preparing a tax return, courts must proceed from the fact that in this case we are talking about liability provided for in Article 120 and Article 122 of the Tax Code.

Tax Code of the Russian Federation 2022

Chapter 13 Tax return

Article 80. Tax return, calculations (as amended by Federal Law dated July 3, 2016 N 243-FZ)
(as amended by Federal Law dated July 27, 2006 N 137-FZ)

1. A tax return is a written statement or statement of the taxpayer, compiled in electronic form and transmitted via telecommunication channels using an enhanced qualified electronic signature or through the taxpayer’s personal account, about the objects of taxation, about income received and expenses incurred, about sources of income, about tax base, tax benefits, the calculated amount of tax and (or) other data serving as the basis for the calculation and payment of tax. (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 29, 2012 N 97-FZ, dated November 4, 2014 N 347-FZ) A tax return is submitted by each taxpayer for each tax payable by this taxpayer, unless otherwise provided for by the legislation on taxes and fees. The calculation of the advance payment is a written statement or application of the taxpayer, compiled in electronic form and transmitted via telecommunication channels using an enhanced qualified electronic signature or through the taxpayer’s personal account, about the calculation base, about the benefits used, the calculated amount of the advance payment and (or) about other data serving as the basis for calculating and paying the advance payment. The calculation of the advance payment is presented in the cases provided for by this Code in relation to a specific tax. (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 29, 2012 N 97-FZ, dated November 4, 2014 N 347-FZ) The calculation of the fee is a written statement or statement of the fee payer, compiled in electronic form and transmitted via telecommunication channels using an enhanced qualified electronic signature or through the taxpayer’s personal account, about the objects of taxation, the taxable base, the benefits used, the calculated amount of the fee and (or) about other data serving as the basis for the calculation and payment of the fee, unless otherwise provided herein Code. The calculation of the fee is presented in the cases provided for in part two of this Code in relation to each fee. (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 29, 2012 N 97-FZ, dated November 4, 2014 N 347-FZ) The tax agent submits to the tax authorities the calculations provided for in part two of this Code. These calculations are presented in the manner established by part two of this Code in relation to a specific tax. The calculation of the amounts of personal income tax calculated and withheld by the tax agent is a document containing generalized information by the tax agent on all individuals who received income from the tax agent (a separate division of the tax agent), on the amounts of income accrued and paid to them, provided tax deductions, calculated and withheld tax amounts, as well as other data serving as the basis for calculating tax. (paragraph introduced by Federal Law dated 02.05.2015 N 113-FZ) Calculation of insurance premiums is a written application or application of the payer of insurance premiums, drawn up in electronic form and transmitted via telecommunication channels using an enhanced qualified electronic signature or through the taxpayer’s personal account, about the object of taxation of insurance premiums, about the basis for calculating insurance premiums, about the calculated amount of insurance premiums and about other data that serves as the basis for the calculation and payment of insurance premiums, unless otherwise provided by this Code. Calculation of insurance premiums is presented in cases provided for in Chapter 34 of this Code. (paragraph introduced by Federal Law No. 243-FZ dated July 3, 2016) 2. Tax returns (calculations) for those taxes for which taxpayers are exempt from the obligation to pay them in connection with the application of special tax regimes, in part activities, the implementation of which entails the application of special tax regimes, or property used to carry out such activities. (as amended by Federal Law No. 229-FZ of July 27, 2010) A person recognized as a taxpayer for one or more taxes, who does not carry out transactions that result in the movement of funds in his bank accounts (at the organization’s cash desk), and does not have for these taxes, the objects of taxation, submits a single (simplified) tax return for these taxes. The form of a single (simplified) tax return and the procedure for filling it out are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Ministry of Finance of the Russian Federation. (as amended by Federal Law No. 229-FZ of July 27, 2010) The unified (simplified) tax return is submitted to the tax authority at the location of the organization or place of residence of the individual no later than the 20th day of the month following the expired quarter, half-year, 9 months, calendar year. (clause 2 as amended by Federal Law No. 268-FZ of December 30, 2006) 3. The tax return (calculation) is submitted to the tax authority at the place of registration of the taxpayer (fee payer, insurance premium payer, tax agent) in the prescribed form on paper or in established formats in electronic form along with documents that, in accordance with this Code, must be attached to the tax return (calculation). Taxpayers and payers of insurance premiums have the right to submit documents that, in accordance with this Code, must be attached to the tax return (calculation), in electronic form. (as amended by Federal Laws dated June 29, 2012 N 97-FZ, dated July 3, 2016 N 243-FZ) Tax returns (calculations) are submitted to the tax authority at the place of registration of the taxpayer (tax payer, insurance premium payer, tax agent) according to the established formats in electronic form via telecommunication channels through an electronic document management operator that is a Russian organization and meets the requirements approved by the federal executive body authorized to exercise control and supervision functions in the field of taxes and fees, if the procedure for presenting information classified as state secret is different, is not provided for by the legislation of the Russian Federation, the following categories of taxpayers (payers of insurance premiums): (as amended by Federal Laws dated June 28, 2013 N 134-FZ, dated July 3, 2016 N 243-FZ) taxpayers (payers of insurance premiums), the average number of employees of which for the previous calendar year exceeds 100 people; (paragraph introduced by Federal Law dated June 28, 2013 N 134-FZ; as amended by Federal Law dated July 3, 2016 N 243-FZ) by newly created (including during reorganization) organizations whose number of employees exceeds 100 people; (paragraph introduced by Federal Law No. 134-FZ of June 28, 2013) by taxpayers (payers of insurance premiums) not specified in paragraphs three and four of this paragraph, for whom such an obligation is provided for by part two of this Code in relation to a specific tax (insurance premiums). (paragraph introduced by Federal Law dated June 28, 2013 N 134-FZ; as amended by Federal Law dated July 3, 2016 N 243-FZ) Information on the average number of employees for the previous calendar year is presented by the organization (individual entrepreneur who hired employees during the specified period) to the tax authority no later than January 20 of the current year, and in the case of creation (reorganization) of an organization - no later than the 20th day of the month following the month in which the organization was created (reorganized). The specified information is submitted in a form approved by the federal executive body authorized for control and supervision in the field of taxes and fees to the tax authority at the location of the organization (at the place of residence of the individual entrepreneur). (as amended by Federal Law dated July 23, 2013 N 248-FZ) Taxpayers classified as the largest in accordance with Article 83 of this Code submit all tax returns (calculations) that they are required to submit in accordance with this Code to the tax authority at the place of registration as the largest taxpayers in established formats in electronic form, unless a different procedure for presenting information classified as state secret is provided for by the legislation of the Russian Federation. (as amended by Federal Law No. 97-FZ of June 29, 2012) Tax declaration (calculation) forms are provided by tax authorities free of charge. (clause 3 as amended by Federal Law No. 268-FZ of December 30, 2006) 4. A tax return (calculation) can be submitted by a taxpayer (fee payer, insurance premium payer, tax agent) to the tax authority personally or through a representative, sent to in the form of a postal item with a description of the attachment, transmitted in electronic form via telecommunication channels or through the taxpayer’s personal account. (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 29, 2012 N 97-FZ, dated November 4, 2014 N 347-FZ, dated July 3, 2016 N 243-FZ) The tax authority does not have the right to refuse to accept a tax declaration (calculation) submitted by the taxpayer (payer of fees, payer of insurance premiums, tax agent) in the established form (established format), unless otherwise provided by this Code, and must be entered at the request of the taxpayer (payer of fees, payer of insurance contributions, tax agent) on a copy of the tax return (copy of the calculation), a mark of acceptance and the date of its receipt upon receipt of the tax return (calculation) on paper, or transfer to the taxpayer (payer of the fee, payer of insurance premiums, tax agent) a receipt of acceptance in electronic form - upon receipt of the tax return (settlements) via telecommunication channels or through the taxpayer’s personal account. (as amended by Federal Laws dated December 30, 2006 N 268-FZ, dated June 29, 2012 N 97-FZ, dated November 4, 2014 N 347-FZ, dated July 3, 2016 N 243-FZ) When sending a tax return (calculation) by mail, the day of its submission is considered to be the date of sending the postal item with an inventory of the contents. When transmitting a tax return (calculation) via telecommunication channels or through the taxpayer’s personal account, the day of its submission is considered the date of its dispatch. (as amended by Federal Law No. 347-FZ of November 4, 2014) The paragraph is no longer valid. — Federal Law of July 27, 2010 N 229-FZ. 5. The tax return (calculation) is submitted indicating the taxpayer identification number, unless otherwise provided by this Code. The taxpayer (tax payer, insurance premium payer, tax agent) or his representative signs the tax return (calculation), confirming the accuracy and completeness of the information specified in the tax return (calculation). (as amended by Federal Law No. 243-FZ dated July 3, 2016) If the accuracy and completeness of the information specified in the tax return (calculation), including with the use of an enhanced qualified electronic signature when submitting a tax return (calculation) in electronic form, is confirmed by authorized representative of the taxpayer (fee payer, insurance premium payer, tax agent), the tax return (calculation) indicates the basis of the representation (the name of the document confirming the authority to sign the tax return (calculation). In this case, a copy of the document is attached to the tax return (calculation) , confirming the authority of the representative to sign a tax return (calculation). (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 29, 2012 N 97-FZ, dated July 3, 2016 N 243-FZ) When submitting a tax return ( calculation) in electronic form, a copy of the document confirming the authority of the representative to sign the tax return (calculation) can be submitted in electronic form via telecommunication channels. (paragraph introduced by Federal Law dated July 27, 2010 N 229-FZ, as amended by Federal Law dated June 29, 2012 N 97-FZ) 6. The tax return (calculation) is submitted within the deadlines established by the legislation on taxes and fees. 7. The forms and procedure for filling out forms of tax returns (calculations), as well as the formats and procedure for submitting tax returns (calculations) and documents attached to them in accordance with this Code in electronic form are approved by the federal executive body authorized for control and supervision in the region taxes and fees, in agreement with the Ministry of Finance of the Russian Federation. (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 29, 2012 N 97-FZ) The paragraph is no longer valid. — Federal Law of July 27, 2010 N 229-FZ. The federal executive body authorized for control and supervision in the field of taxes, fees, insurance premiums does not have the right to include in the tax return (calculation) form, and the tax authorities do not have the right to require taxpayers (payers of fees, payers of insurance premiums, tax agents) to include in the tax return (calculation) of information not related to the calculation and (or) payment of taxes, fees, insurance contributions, with the exception of:

(as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated July 3, 2016 N 243-FZ) 1) type of document: primary (corrective); 2) name of the tax authority; 3) location of the organization (its separate division) or place of residence of an individual; 4) last name, first name, patronymic of an individual or full name of the organization (its separate division); 5) contact telephone number of the taxpayer, payer of insurance premiums; (as amended by Federal Law No. 243-FZ dated July 3, 2016) 6) information to be included in the tax return in accordance with Chapter 21 of this Code. (Clause 6 introduced by Federal Law dated June 28, 2013 N 134-FZ)

8. Lost force on January 1, 2011. — Federal Law of November 27, 2010 N 306-FZ. 9. The specifics of submitting tax returns when implementing production sharing agreements are determined by Chapter 26.4 of this Code. 10. The specifics of fulfilling the obligation to submit tax returns by paying a declaration payment are determined by the federal law on the simplified procedure for declaring income by individuals. (Clause 10 introduced by Federal Law No. 265-FZ of December 30, 2006) 11. The specifics of submitting a tax return for a consolidated group of taxpayers to the tax authority are determined by Chapter 25 of this Code. (clause 11 introduced by Federal Law No. 321-FZ of November 16, 2011) 12. The rules provided for by this article also apply to other persons who are responsible for submitting a tax return (calculation) in accordance with part two of this Code. (Clause 12 introduced by Federal Law dated June 28, 2013 N 134-FZ)

Article 81. Amendments to the tax return, calculations (as amended by Federal Law No. 243-FZ of July 3, 2016)

(as amended by Federal Law dated July 27, 2006 N 137-FZ)

1. If a taxpayer discovers in the tax return submitted by him to the tax authority that information is not reflected or is incompletely reflected, as well as errors leading to an underestimation of the amount of tax payable, the taxpayer is obliged to make the necessary changes to the tax return and submit to the tax authority an updated tax return in in the manner prescribed by this article. If a taxpayer discovers inaccurate information in the tax return submitted to the tax authority, as well as errors that do not lead to an underestimation of the amount of tax payable, the taxpayer has the right to make the necessary changes to the tax return and submit an updated tax return to the tax authority in the manner established by this article . In this case, an updated tax return submitted after the expiration of the established deadline for filing the return is not considered submitted in violation of the deadline. 2. If an updated tax return is submitted to the tax authority before the deadline for filing a tax return, it is considered submitted on the day the updated tax return is submitted. 3. If an updated tax return is submitted to the tax authority after the expiration of the deadline for filing a tax return, but before the expiration of the deadline for paying the tax, then the taxpayer is released from liability if the updated tax return was submitted before the moment when the taxpayer learned that the tax authority had discovered the fact of non-reflection or incompleteness reflection of information in the tax return, as well as errors leading to an underestimation of the amount of tax payable, or the appointment of an on-site tax audit. 4. If an updated tax return is submitted to the tax authority after the deadline for filing a tax return and the deadline for paying the tax, the taxpayer is released from liability in the following cases:

1) submission of an updated tax return before the taxpayer learns that the tax authority has discovered non-reflection or incompleteness of information in the tax return, as well as errors leading to an understatement of the amount of tax payable, or about the appointment of an on-site tax audit for a given tax for a given period, provided that before submitting an updated tax return, he paid the missing amount of tax and the corresponding penalties; 2) submission of an updated tax return after an on-site tax audit for the corresponding tax period, the results of which did not reveal non-reflection or incompleteness of information in the tax return, as well as errors leading to an understatement of the amount of tax payable.

5. The updated tax return is submitted by the taxpayer to the tax authority at the place of registration. The updated tax return (calculation) is submitted to the tax authority in the form that was in force during the tax period for which the corresponding changes are made. 6. If a tax agent discovers in the calculation submitted to the tax authority the fact that information is not reflected or is incompletely reflected, as well as errors leading to an understatement or overestimation of the amount of tax to be transferred, the tax agent is obliged to make the necessary changes and submit to the tax authority an updated calculation in the manner established by this article. The updated calculation submitted by the tax agent to the tax authority must contain data only in relation to those taxpayers in respect of whom facts of non-reflection or incomplete reflection of information, as well as errors leading to an understatement of the tax amount, were discovered. The provisions provided for in paragraphs 3 and 4 of this article regarding exemption from liability also apply to tax agents when they submit updated calculations. 6.1. If the participant in the investment partnership agreement is the managing partner responsible for maintaining tax accounting (hereinafter in this article - the managing partner responsible for maintaining tax accounting), provided the participants in the investment partnership agreement with a copy of the updated calculation of the financial result of the investment partnership, taxpayers paying the tax on the profits of organizations, income tax for individuals in connection with their participation in an investment partnership agreement, are required to submit an updated tax return (calculation). The updated tax return (calculation) must be submitted to the tax authority at the place of registration of the participant in the investment partnership agreement no later than fifteen days from the day on which he was given a copy of the updated calculation of the financial result of the investment partnership. Moreover, if the updated tax return (calculation) is submitted to the tax authority within the time limits specified in paragraph two of this paragraph, the participant in the investment partnership agreement who is not the managing partner responsible for maintaining tax records is released from liability. If a participant in an investment partnership agreement appeals acts or decisions of the tax authority that changed the financial results of the investment partnership, he is obliged to submit an updated tax return (calculation) no later than fifteen days from the day when the higher tax authority made a decision based on the results of consideration of his complaint. (clause 6.1 introduced by Federal Law No. 336-FZ of November 28, 2011) 7. The rules provided for in this article also apply to updated calculations of fees and insurance premiums and apply to payers of fees and payers of insurance premiums. (as amended by Federal Law dated July 3, 2016 N 243-FZ)

How can a tax agent avoid fines for late payment of taxes?

A tax agent may be exempt from liability under Art. 123 of the Tax Code of the Russian Federation for untimely withholding and (or) transfer of tax only in the case of submitting an updated tax calculation (clauses 4, 6 of Article 81 of the Tax Code of the Russian Federation). However, in practice, the need to provide an updated calculation does not always arise.

For example, if personal income tax is not transferred on time, a reliable calculation in Form 6-NDFL may subsequently be submitted within the prescribed period, which does not need to be specified. The Constitutional Court recognized in Resolution No. 6-P dated 02/06/2018 that in such a situation the tax agent is not liable for untimely transfer of the tax amount to the budget.

This position is now enshrined in law. Federal Law No. 546-FZ dated December 27, 2018 “On Amendments to Part One of the Tax Code of the Russian Federation” established in Art. 123 of the Tax Code of the Russian Federation the following conditions for releasing a tax agent from liability for untimely withholding and (or) transfer of tax:

the tax calculation (tax calculation) is submitted to the inspectorate within the prescribed period;
in the calculation there is no non-reflection (incompleteness of reflection) of information and (or) there are no errors leading to an underestimation of the amount of tax payable;
Before the tax agent became aware of the discovery by the inspectorate of an untimely transfer of the tax amount or of the appointment of an on-site tax audit for this tax for the corresponding tax period, he independently paid the amount of tax not transferred on time and the corresponding penalties.

These conditions must be met simultaneously.

These changes took effect on January 28, 2022.

We note that according to clause 3 of Art. 5 of the Tax Code of the Russian Federation, acts of legislation on taxes and fees that eliminate or mitigate liability for violation of legislation on taxes and fees or establish additional guarantees for the protection of the rights of taxpayers, tax agents, etc., have retroactive effect. Consequently, the new version of Art. 123 of the Tax Code of the Russian Federation, among other things, will apply to cases of untimely withholding and (or) transfer of tax that occurred before January 28, 2019.

Source: 1C:ITS.

UrDela.ru

Part 1. If the taxpayer discovers in the tax return submitted by him to the tax authority that information is not reflected or is incompletely reflected, as well as errors leading to an underestimation of the amount of tax payable, the taxpayer is obliged to make the necessary changes to the tax return and submit to the tax authority an updated tax return. declaration in the manner prescribed by this article.

Part 2. If an updated tax return is submitted to the tax authority before the deadline for filing a tax return, it is considered submitted on the day the updated tax return is submitted.

Part 3. If an updated tax return is submitted to the tax authority after the expiration of the deadline for filing a tax return, but before the expiration of the deadline for paying the tax, then the taxpayer is released from liability if the updated tax return was submitted before the moment when the taxpayer learned that the tax authority had discovered the fact of non-reflection or incomplete reflection of information in the tax return, as well as errors leading to an underestimation of the amount of tax payable, or the appointment of an on-site tax audit.

Part 4. If an updated tax return is submitted to the tax authority after the deadline for filing a tax return and the deadline for paying the tax, the taxpayer is released from liability in the following cases:

1) submission of an updated tax return until the taxpayer learns that the tax authority has discovered non-reflection or incompleteness of information in the tax return, as well as errors leading to an understatement of the amount of tax payable, or about the appointment of an on-site tax audit for a given tax for a given period, provided that before submitting the updated tax return, he paid the missing amount of tax and the corresponding penalties;

2) submission of an updated tax return after an on-site tax audit for the corresponding tax period, the results of which did not reveal non-reflection or incompleteness of information in the tax return, as well as errors leading to an understatement of the amount of tax payable.

Part 5. The updated tax return is submitted by the taxpayer to the tax authority at the place of registration.

The updated tax return (calculation) is submitted to the tax authority in the form that was in force during the tax period for which the corresponding changes are made.

Part 6. If a tax agent discovers in the calculation submitted by him to the tax authority the fact of non-reflection or incomplete reflection of information, as well as errors leading to an understatement or overestimation of the amount of tax to be transferred, the tax agent is obliged to make the necessary changes and submit an updated calculation to the tax authority in the manner prescribed by this article.

The updated calculation submitted by the tax agent to the tax authority must contain data only in relation to those taxpayers in respect of whom facts of non-reflection or incomplete reflection of information, as well as errors leading to an understatement of the tax amount, were discovered. The provisions provided for in paragraphs 3 and 4 of this article regarding exemption from liability also apply to tax agents when they submit updated calculations.

Part 7. The rules provided for in this article also apply to updated calculations of fees and apply to payers of fees.
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