Article 333.40 of the Tax Code of the Russian Federation. Grounds and procedure for refund or offset of state duty (current version)

Commentary on Article 333.40 of the Tax Code of the Russian Federation

If previously, in order to return an overpaid (or collected) amount of state duty, the payer was required to submit an application to the tax authority at the place of the action for which it was paid (or collected), but now the application is submitted to the body or official who is authorized to perform relevant legally significant actions. Now it is this body (official) that makes the decision on return. The exception is cases of refund of state fees in cases considered in courts, as well as by magistrates. In such cases, applications must still be submitted to the tax authority at the location of the court in which the case was heard. Direct refund of the overpaid (collected) amount of state duty is carried out by the Federal Treasury.

In this regard, the list of documents that must be submitted simultaneously with the return application has been simplified. When contacting the relevant authority or official, only payment documents are needed (original if the refund is full, copies if the refund is partial). The tax authority will also require payment documents and decisions, rulings, and court certificates about the circumstances that became the basis for the refund of state duty.

An application for the return of an overpaid (collected) amount of state duty may be submitted within three years from the date of payment of the specified amount. Refunds of the overpaid (collected) amount of state duty are made at the expense of the budget into which the overpayment was made, within one month from the date of filing the relevant application.

If the arbitration court has not yet made a decision on the case, and the parties have entered into a settlement agreement, then half of the paid state duty will be returned. Please note that this rule does not apply if the settlement agreement was concluded during the execution of a judicial act of the arbitration court. The paid state duty is not refunded even if the defendant voluntarily satisfied the plaintiff’s demands after the latter applied to the arbitration court and issued a ruling to accept the statement of claim for proceedings, as well as upon approval of the settlement agreement by a court of general jurisdiction.

The grounds for refusal of state registration of rights and the procedure for termination of state registration of rights are established by Art. 20 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it.” Depending on the grounds for refusal, the amount of state duty paid in advance by the applicant remains in full or in part with the state.

If individual documents provided for by the mentioned Law do not comply in form or content with the requirements of the current legislation, then the registration chamber has every reason to refuse state registration of rights. In this case, the paid state fee is not refunded. A notice of refusal of state registration and its reason is sent to the applicant in writing within no more than five days after the end of the period established for consideration of the application.

In case of timely cancellation of the transaction (registration of the agreement) at the request of the parties, the procedure for refunding the fee is slightly different. Before a record is made in the Unified State Register about a transaction, about a right or about a limitation (encumbrance) of a right, or before a decision is made to refuse state registration of a right, consideration of documents submitted for state registration may be terminated on the basis of statements from the parties. The state registrar is obliged to notify applicants in writing about the termination of state registration of rights, indicating the date of this decision. Upon termination of state registration on the basis of relevant statements of the parties to the agreement, the applicant is refunded half of the paid state duty.

The payer of the state duty also has the right to offset the overpaid (collected) state duty against a future payment for a similar action. That is, for example, if the plaintiff mistakenly filed a statement of claim that is not within the jurisdiction of the court of his choice, and the state fee was paid, then it can be offset in another court when filing a new statement of claim. Keep in mind that this is only possible if three years have not passed since the refusal was received. Otherwise, you will have to pay the state fee again.

Attention! Amounts of taxes, fees, penalties, fines overpaid (collected) before January 1, 2007 and subject to refund in accordance with Art. 333.40 (as amended by Federal Law No. 137-FZ of July 27, 2006), are returned to the taxpayer (tax agent, fee payer) in the manner in force before the day the above Law came into force.

Another comment on Art. 333.40 Tax Code of the Russian Federation

Clause 1 of Article 333.40 of the Tax Code establishes an exhaustive list, according to which the paid state duty for carrying out legally significant actions provided for by Chapter 25.3 of the Tax Code is subject to partial or full refund.

Based on this list, the basis for the return (offset) of the paid state duty for performing legally significant actions provided for in Article 333.33 of the Tax Code is only the payment by the applicant to the authorized body of the state duty in a larger amount than provided for in Chapter 25.3 of the Tax Code, as well as the refusal of persons who have paid the state fee, from committing a legally significant action to contacting the authorized body (official) performing (performing) this legally significant action.

According to the Ministry of Finance of Russia, an incorrectly specified budget classification code in a payment order is not an obstacle to the return of overpaid state duty if the payer can submit to the body performing legally significant actions for which the state duty was paid confirmation from the Federal Treasury authority about the receipt of this fee to the budget system of the Russian Federation (see, for example, letter dated November 10, 2009 N 03-05-04-03/28).

As indicated in the letter of the Ministry of Finance of Russia dated September 14, 2009 N 03-05-06-03/46, in order to return the overpaid amount of state duty, you must submit an application to the tax authority at the location of the magistrate who heard the case, and, accordingly, submit decision, determination and (or) certificate of the magistrate about the circumstances that are the basis for a full refund of the overpaid (collected) amount of state duty, as well as a genuine payment order.

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