Article 87 of the Tax Code of the Russian Federation. Tax audits (current version)

Tax audit concept

The Federal Tax Service's control over the correct and timely calculation and payment of taxes is called a tax audit.
In this case, the Federal Tax Service takes as a basis the tax returns provided by payers during a certain period (for which the audit is carried out). The audit is based on the Tax Code and legislation of the Russian Federation. Tax audit is one of the methods of tax control (Article 82 of the Tax Code of the Russian Federation) along with:

• with receipt of explanations;
• checking accounting and reporting data;
• inspection of premises and territories used for profit;
• other control procedures provided for by the Tax Code of the Russian Federation.

Whether tax monitoring helps you avoid tax audits, find out from the publications:

• “Tax control in the Russian Federation: forms, methods and types”;
• “Is tax monitoring possible not for all, but only for individual taxes?”

There are several types of tax audits.

Officially, the term “counter audit” has not been used since 2007, but in practice accountants still use it now.

If you have access to ConsultantPlus, find out how an on-site inspection differs from a desk inspection . If you don't have access, get trial of online legal access.

Rights of tax authorities when exercising tax control

Forms of tax control consist of the rights of tax authorities established by the Tax Code of the Russian Federation:

• require from the taxpayer or tax agent documents in the forms established by state bodies and local governments, which serve as the basis for the calculation and payment (withholding and transfer) of taxes, as well as explanations and documents confirming the correctness of calculation and timely payment (withholding and transfer) of taxes;
• to seize documents during tax audits from a taxpayer or tax agent that indicate the commission of tax offenses, in cases where there are reasonable grounds to believe that these documents will be destroyed, hidden, altered or replaced;
• to summon, on the basis of a written notification to the tax authorities, taxpayers, fee payers or tax agents to give explanations in connection with their payment (withholding and transfer) of taxes or in connection with a tax audit, as well as in other cases related to their compliance with tax legislation and fees;
• inspect (examine) any production, warehouse, trading and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects, regardless of their location, and conduct an inventory of property owned by the taxpayer;
• control the compliance of large expenses of individuals with their income;
• attract specialists, experts and translators to carry out tax control;
• call as witnesses and persons who may know any circumstances relevant to tax control;
• create tax posts in the manner established by the Tax Code of the Russian Federation.

On-site inspection

When carrying out this type of inspection, the Federal Tax Service monitors how the payer fulfills the obligations reflected in the contracts, as well as the availability and compliance with protocols, orders and other internal documents. Cash discipline, accrual of personal income tax from wages, accounting of income, expenses and economic feasibility of business transactions are subject to verification, that is, almost all activities of the payer for a certain period.

The main distinctive features of an on-site tax audit (Article 89 of the Tax Code of the Russian Federation):

• place of conduct - the territory of the taxpayer or the tax authority (if the person being inspected cannot provide the inspectors with premises);
• verification period – no more than 2 months. (but can be extended up to 4 months, and in exceptional cases - up to 6 months);
• inspection period - no more than 3 years preceding the year the decision to conduct the inspection was made (unless otherwise provided by the Tax Code of the Russian Federation).

On-site inspections may include several subtypes:

Regulations on the type of control - what is it?

The regulation on the type of control from 2022 is a document establishing the procedure for organizing and conducting inspections by federal, regional and municipal controllers. Such a Regulation is being drawn up according to the new rules introduced by the Federal Law “On State Control (Supervision) and Municipal Control in the Russian Federation” dated July 31, 2020 No. 248-FZ. The law provides that executive authorities are obliged to adopt such a Regulation for each type of state control (supervision) and municipal control, to provide for the specifics of a particular type of control in the context of its inherent verification activities and actions.

Other innovations of Law No. 248-FZ, including those that came into force on July 1, 2021, include the extension of the moratorium on scheduled inspections for small businesses, the emergence of remote inspections and a new form of control “inspection visit.”

Regulations on types of regional state control (supervision) and regulations on types of municipal control must be approved before 01/01/2022. Until this date, the Federal Law “On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control...” dated December 26, 2008 No. 294 and the regulations adopted in accordance with it are in force.

Control agencies have the right to formulate plans for conducting scheduled inspections only after approval of the relevant Regulations on the type of control.

Thus, how businessmen will be checked and how often they should expect inspectors from a specific control and supervisory authority will become clear from the provisions on a specific type of control.

Desk inspection

A desk audit is carried out regarding the correctness of the calculation and payment of a particular tax and the reflection of this data in the declaration submitted by the taxpayer.

The main distinctive features of a desk tax audit:

• venue - within the walls of the Federal Tax Service with the payer providing copies of the documents requested by the inspectors;
• duration of inspection – no more than 3 months (VAT returns – 2 months);
• audit period – the reporting (tax) period for a specific tax (based on tax returns submitted by taxpayers).

It is carried out by inspectors without special approval from the head of the Federal Tax Service. This type of tax audit begins immediately after filing a tax return. Its main task is to identify inconsistencies in reporting, late reporting of business transactions and payment of taxes, and incorrect completion of declarations. If inspectors discover violations in the calculation of taxes, the taxpayer will be charged additional amounts, as well as fines and penalties.

Counter check

Almost every taxpayer faces a counter audit, although it is not separately designated in the Tax Code of the Russian Federation as one of the types of tax audits. Rather, it can be called one of the tax control procedures.

A counter check can be carried out (Article 93.1 of the Tax Code of the Russian Federation):

• as an element of an on-site or tax audit during their conduct;
• an additional measure of tax control (outside the scope of the above tax audits).

Her goal:

• check the actual existence of your counterparty for transactions that interest tax authorities;
• check the reality of transactions reflected in accounting;
• compare data on transactions between you and the counterparty (according to his accounting and yours).

The counter-check is carried out on the basis of any specific documents - delivery notes, invoices. At the same time, their identity is checked between the buyer and the seller: there should be no discrepancies in the documents regarding dates, names, quantities of goods, amounts, etc. If inspectors find discrepancies, this will mean that one of the parties to the transaction is hiding income and understating the tax base.

ConsultantPlus experts spoke about the nuances of the counter-check. Get trial access to the system and move on to the Ready-made solution.

For more details, see the material “Features of conducting a counter tax audit” .

Main types of control

The purpose of tax control is to determine whether the organization calculated taxes correctly and paid them on time. Most often, the Federal Tax Service resorts to the following measures for this:

• Desk audit – examination of tax returns received from entrepreneurs. The inspector checks whether the document is filled out correctly and the tax is calculated. In case of doubt, the specialist may request additional documents: invoices, acts, contracts, etc.
• On-site audit – carried out in relation to companies with a high tax risk. To do this, inspectors come directly to the office, warehouse or retail outlet to check primary documents, inspect the premises and interview employees.

As part of the on-site inspection, the powers of inspectors have been expanded. For example, they can:

• call the head or employees of the organization for questioning;
• carry out an inventory;
• seize documents;
• inspect the premises;
• appoint an examination of documents, etc.

We will tell you in more detail about such additional control measures.

Inventory

Conducted on the basis of clause 13 of Art. 89 Tax Code of the Russian Federation. Tax authorities can check anything - fixed assets and inventory, intangible assets and cash, accounts payable and receivable. During the inventory, inspectors compare the data specified in the documents with the real state of affairs.

Refusal to take inventory or an attempt to interfere with inspectors entails a fine: depending on the situation, its size ranges from 5 to 100 thousand rubles.

Inspection

This control measure is regulated by articles and the Tax Code of the Russian Federation. For inspection, the inspector can select any territories or premises that are used to generate income:

• offices and administrative buildings;
• production shops and workshops;
• warehouses;
• shops, sales departments;
• fields, agricultural buildings;
• board a vessel (for example, a fishing vessel), etc.

The inspection is carried out in the presence of a reasoned resolution of the Federal Tax Service and in the presence of at least two witnesses. During the inspection, inspectors have the right to take photographs and videos, make copies of documents, etc.

Request for information and documents

Conducted on the basis of Art. and 93.1 of the Tax Code of the Russian Federation. If there are doubts about the correctness of calculations or filling out papers, the Federal Tax Service may request additional information from the company or individual entrepreneur being inspected:

• documents on completed transactions;
• papers confirming expenses or income;
• information confirming compliance with salary levels;
• information about personal income tax payment, etc.

The deadline for submitting the requested papers for individual entrepreneurs and legal entities is 10 days.

Removal of objects or documents

The basis for the event is Art. 94 Tax Code of the Russian Federation. If there is a reasoned decision, inspectors can seize documents, PC system units, laptops and other items. All events are carried out in the presence of individual entrepreneurs or representatives of the organization, as well as witnesses.

Before forced seizure, the inspector must invite responsible persons to voluntarily hand over the required items or information. In case of refusal, inspectors can even open the room where the documents are stored. The results of the seizure are recorded in the protocol.

Expertise

In accordance with Art. 95 of the Tax Code of the Russian Federation, if difficulties or doubts arise, the inspector may involve a third-party expert in the work. The specialist studies the documents, after which he prepares an expert opinion: it may include not only the results of calculations, but also the expert’s own conclusions.

The taxpayer has the right:

• challenge in case of doubts about the competence or independence of the expert;
• provide your list of experts - in this case, tax authorities can appoint a specialist from among the specified persons;
• give explanations and explanations;
• get acquainted with the results of examinations and final documents.

Translators can also act as experts, for example, when it comes to checking documentation for export or import transactions.

Interrogation

Art. 90 of the Tax Code of the Russian Federation allows inspectors to call any individual to testify - directors, accountants, employees, including dismissed ones. Failure to appear without a valid reason entails a fine of 1,000 rubles, and refusal to testify – a fine of 3,000 rubles.

A summons for questioning is issued with a summons - the document must indicate the full name of the person invited to the interview. If you wish, you can come to the Federal Tax Service with a lawyer or a tax lawyer - this right is enshrined in Art. 49 of the Constitution of the Russian Federation.

To prepare for the interrogation, it is advisable to collect basic information in advance about the number of employees, property on the organization’s balance sheet, prepare information about contractors and tax deductions, average salary, etc. It will also be useful to study the list of questions that the inspector may ask during the conversation.

Reasons for the increased interest of the Federal Tax Service in the organization

We have previously talked in detail about tax risks and the reasons for interest from tax authorities. As a rule, inspectors resort to various tax control measures if a company:

• works with scammers, shell companies and other unreliable counterparties: by the way, you can check your partners in advance using the corresponding Federal Tax Service website;
• works with resellers or a chain of intermediaries;
• enters into transactions between related organizations or persons;
• uses individual entrepreneurs to cash out funds;
• massively transfers employees to the number of “self-employed”;
• has debts to the budget;
• pays less taxes than other companies on the industry average: a tax calculator will help you calculate this indicator - it analyzes industry statistics for previous years;
• incurs losses during the last 2 years;
• does not submit reports;
• pays employees a salary at or close to the minimum wage, or a salary significantly lower than the industry average;
• works with former employees who are currently individual entrepreneurs or heads of legal entities. persons;
• constantly reaches the maximum values ​​within the limits for special modes;
• is actively engaged in production and trade, but does not have any property or fixed assets on its balance sheet.

Nuances of tax audits taking into account the requirements of the new art. 54.1 Tax Code of the Russian Federation

Since July 2022, a new article has appeared in the Tax Code of the Russian Federation. 54.1 “Limits for the exercise of rights to calculate the tax base and (or) the amount of tax, fee, insurance premiums.”

More details about the contents of Art. 54.1 of the Tax Code of the Russian Federation, learn from the material “Presumption of good faith of the taxpayer - a new article in the Tax Code of the Russian Federation.”

Taking into account the norms of Art. 54.1 of the Tax Code of the Russian Federation, during tax audits, tax authorities will be even more careful:

• collect evidence indicating the taxpayer’s deliberate evasion of taxes;
• refute the actual execution of specific transactions (collect and document facts confirming the absence of a real possibility of delivery of goods, confirmation of delivery of goods, participation of counterparties in the movement of goods, etc.).

Tax officials will collect such evidence during desk and field audits. The taxpayer can only worry in advance about collecting the necessary documents and other evidence indicating the use of legal tax optimization schemes, due diligence when choosing counterparties, etc.

Get a complete understanding of how inspectors will now justify their position in disputes with taxpayers, taking into account Art. 54.1 of the Tax Code of the Russian Federation, and an analytical review prepared by ConsultantPlus experts will help you prepare for such disputes. Get trial access to the system for free and proceed to the material.

Tax audits in 2021

The main trend is that inspections are becoming risk-oriented. It is impossible to check all companies, but you can sort them by the level of possible violations and fees to the budget. Inspectors must manage their time as efficiently as possible, so they will not go to an individual entrepreneur with two employees when there are “suspects” with billions of dollars in turnover and business fragmentation schemes.

To search for potential objects of inspection, 14 criteria are used. We talked about them in detail in the article. Special programs help analyze data - for example, the very well-known ASK VAT-2, which builds chains of counterparties and helps identify VAT evasion. In general, it is believed that the tax office is the most technically advanced regulatory body.

Check whether your company meets the tax risk criteria. One of the most important is the tax burden. It should not be significantly below the industry average.

Results

The Tax Code of the Russian Federation provides for 2 types of tax audits: field and desk. An on-site inspection is carried out on the territory of the taxpayer and cannot last more than 2 months. (with the possibility of extension up to 4 or 6 months), and the desk inspection takes place at the inspectorate, and its duration is no more than 3 months.

A counter audit is an element of an on-site or desk tax audit or an additional measure of tax control.

Sources: Tax Code of the Russian Federation

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Request for documents

In contrast to this procedure, during an on-site inspection, the list of grounds for requesting documents during a desk inspection, named by the Tax Code of the Russian Federation, is closed. Let's just dwell on a few points.

The tax authority has the right to request documents confirming the right to tax benefits. In this case, questions arise only when the Tax Code of the Russian Federation does not directly name them for a particular tax, for example, regarding VAT. Therefore, here it is necessary to focus on the definition of benefits given in the Tax Code of the Russian Federation and on judicial practice: benefits are transactions that are exempt from tax only for certain categories of taxpayers, but are taxed for others.

In case of VAT refund or application of excise tax deductions, the tax authority may only require documents confirming the legality of the application of tax deductions. And nothing more.

Misconception: The tax authority can repeatedly request the same copies of documents.

Copies of documents are provided once. Except for the case when they were lost due to force majeure circumstances. For example, if there was a fire at the tax office that destroyed the documents you previously submitted, they must be resubmitted. But only if the tax service confirms their loss due to this circumstance.

Be sure to keep confirmation of receipt of copies of documents by the tax authority with their inventory, so as not to do double work.