When and how tax authorities inspect the taxpayer's territories and premises

What premises are being inspected?

Tax inspectors have the right to inspect the premises (territories) of an organization during an on-site tax audit, as well as during a desk audit of a VAT declaration (subclause 6, clause 1, article 31, clause 1, article 82, clause 13, article 89, p. 2, Article 91, Article 92 of the Tax Code of the Russian Federation).

Tax inspectors will definitely conduct an inspection if they have the following data:

– the organization received inventory items, but did not reflect them in accounting;

– the organization has capacities and resources that it uses in activities not stated in the constituent documents;

– the organization did not report or reflected in an underestimated amount the revenue from the sale of manufactured products.

This is stated in paragraph 6.5 of the letter of the Federal Tax Service of Russia dated July 17, 2013 No. AS-4-2/12837.

Production, warehouse, retail and any other premises and territories that the organization uses in its activities are subject to inspection (subclause 6, clause 1, article 31, clause 13, article 89 of the Tax Code of the Russian Federation). At the same time, inspection access to residential premises without the consent of residents is prohibited. The exception is cases when the inspection is granted such access on the basis of federal laws or a court decision (Clause 5 of Article 91 of the Tax Code of the Russian Federation).

For more information on the legality of conducting inspections of premises (territories) during desk tax audits, see What powers does the tax inspectorate have during desk audits.

What can be inspected and what cannot?

In accordance with sub. 6 clause 1 art. 31, paragraph 13 art. 89 of the Tax Code of the Russian Federation, tax authorities can inspect premises: production, warehouse, retail and any others, as well as territories that the taxpayer uses to generate income or that are related to objects of taxation, regardless of their location.

Inspection, in accordance with clause 2 of Art. 91, art. 92 of the Tax Code of the Russian Federation, documents and objects, including taxable items belonging to the taxpayer, may also be subject to taxation.

Find out whether inspectors can inspect computers and the software installed on them here .

NOTE! Illegal refusal (obstruction) of access to a tax authority official conducting an audit (inspection) is recognized as an administrative offense and entails liability under Art. 19.7.6 of the Code of Administrative Offenses of the Russian Federation in the form of a fine in the amount of 10,000 rubles.

It is prohibited for representatives of the tax authority to enter the residential premises of individuals who are not individual entrepreneurs without their permission and against the will of the residents (Clause 5 of Article 91 of the Tax Code of the Russian Federation). The exception is if the inspectors have a court decision (clause 1 of the letter of the Federal Tax Service of the Russian Federation dated May 23, 2013 No. AS-4-2/9355).

Assess the likelihood of your company being included in the inspection plan of the Federal Tax Service Inspectorate using the material “Tax audits in 2021 - list of organizations.”

Reason for inspection

To conduct an inspection of premises and territories during an on-site tax audit, you do not need to issue a special decision from the inspectorate. To gain access to the territory or premises of the inspected organization, the inspectorate employees directly conducting the tax audit need only present their official IDs and the decision to conduct an on-site audit.

If inspectors decide to conduct an inspection as part of a desk audit of a VAT return, then in addition to their official identification documents, they are required to present a special document - a reasoned resolution. This resolution must be approved by the head (deputy) of the inspection.

This follows from the provisions of paragraph 1 of Article 91 of the Tax Code of the Russian Federation.

Controversial letter

First, let us present the content of the contested provision.
Paragraph seven of letter No. SD-4-3/18072 states: “In order to collect the most complete evidence base aimed at establishing the presence or absence of facts of the taxpayer receiving an unjustified tax benefit, the tax authorities carry out tax control measures in accordance with Articles 86, 90, 92 , 93.1, 95, 96, 97 of the Code in relation to counterparties of the taxpayer being audited, as well as third parties - participants in the transaction , the results of which may reveal circumstances that are significant for making an informed decision based on the results of a desk tax audit.”

At the same time, the article of the Tax Code “Inspection” says the following:

“A tax official conducting an on-site or desk audit on the basis of a VAT return ... has the right to inspect the territories, premises of the person in respect of whom the tax audit is being carried out, documents and objects.”

Check the counterparty for signs of a shell company and the presence of disqualified persons

Inspection Notice

Situation: is the inspection obliged to notify the organization about the time and place of the inspection?

On the one hand, the Tax Code does not provide for a requirement for the inspection to notify the organization about the time and place of the inspection (Article 92 of the Tax Code of the Russian Federation).

On the other hand, representatives of the inspected organization have the right to participate in the inspection (clause 3 of Article 92 of the Tax Code of the Russian Federation). But in order to exercise this right in practice, the organization must be notified of the time and place of the inspection. Based on this, we can conclude that the inspection is still obliged to notify the organization about the time and place of the inspection. In arbitration practice there are examples of court decisions that confirm the legitimacy of this conclusion (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated August 19, 2009 No. KA-A41/8084-09, the Central District dated July 11, 2008 No. A64-6856 /07-19).

Denial of access to inspectors

If during an inspection (on-site or desk for VAT) an organization prevents inspection employees from accessing its territories and premises (with the exception of residential premises), the head of the inspection team draws up a report on this in the form approved by order of the Federal Tax Service of Russia dated March 6, 2007 No. MM -3-06/106. The act must be signed on both sides: by the head of the inspection team and by a representative of the organization being inspected. If a representative of the organization refuses to sign the act, the head of the inspection group will make an appropriate entry about this in the act. This follows from the provisions of paragraph 3 of Article 91 of the Tax Code of the Russian Federation.

In addition, the inspection will have the right to independently determine the amount of tax to be paid (paragraph 2, paragraph 3, article 91 of the Tax Code of the Russian Federation). In this case, in its calculations, the inspection will not rely on the actual data that it could obtain during the inspection, but on other information available to it. For example, the inspection may use information obtained from other organizations similar to the one being inspected. This follows from the provisions of paragraph 2 of paragraph 3 of Article 91 of the Tax Code of the Russian Federation.

The tax inspectorate also has the right to fine the organization and its officials.

When and how do tax authorities conduct inspections?

Tax officials have the right to inspect any production, warehouse, retail and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects, regardless of their location (clause 6, clause 1, article 31 of the Tax Code of the Russian Federation).

For the purpose of conducting an inspection, the tax authority requires access to the territory or premises of the taxpayer.

In what cases is it possible to inspect the territory and premises of a taxpayer?

As a general rule, tax control is carried out by officials of tax authorities within their competence through tax audits, obtaining explanations from taxpayers, tax agents and fee payers, checking accounting and reporting data, inspecting premises and territories used to generate income (profit), as well as in other forms provided for by the Tax Code of the Russian Federation (clause 1 of Article 82 of the Tax Code of the Russian Federation).

Tax inspection of territories and premises can be carried out:

when conducting an on-site tax audit (except for the period of suspension of the audit);

An inspection of the territories, premises of the taxpayer in respect of whom a tax audit is being carried out, documents and items has the right to be carried out by an official of the tax authority conducting an on-site tax audit in order to clarify circumstances that are important for the completeness of the audit (Clause 1 of Article 92 of the Tax Code of the Russian Federation).

when conducting a desk tax audit in certain cases;

From January 1, 2015, tax authorities, as part of a desk audit, are allowed to conduct inspections of the taxpayer’s territory and premises in the following cases:

submission of a tax return with the presented amount of VAT for reimbursement;
identifying contradictions and inconsistencies in the submitted VAT return, specified in clause 8.1 of Article 88 of the Tax Code of the Russian Federation, which indicate an understatement of the amount of VAT payable or an overstatement of the amount of VAT to be reimbursed.

The corresponding changes were made by Law No. 134-FZ to clause 1 of Article 91 of the Tax Code of the Russian Federation and clause 1, clause 2 of Article 92 of the Tax Code of the Russian Federation.

outside the scope of an on-site tax audit.

Inspection of documents and items outside the framework of an on-site tax audit is permitted if the documents and items were received by an official of the tax authority as a result of previously performed actions to implement tax control or with the consent of the owner of these items to conduct their inspection. A protocol is drawn up on the inspection (clause 2, clause 5 of Article 92 of the Tax Code of the Russian Federation).

Is it possible to inspect the premises of an individual during a tax audit?

Individuals, exercising the right to a property tax deduction, submit to the tax authority documents confirming the expenses incurred (receipts for receipt orders, bank statements about the transfer of funds from the buyer’s account to the seller’s account, sales and cash receipts, acts on the purchase of materials from individuals persons indicating the address and passport details of the seller and other documents).

Thus, a property tax deduction is provided in the amount of expenses actually incurred by the taxpayer for new construction, not exceeding 2 million rubles. At the same time, the actual costs of new construction of a residential building may also include costs for the purchase of construction and finishing materials (clause 3 of Article 220 of the Tax Code of the Russian Federation).

An on-site tax audit of an individual, including one who is not an individual entrepreneur, is carried out in the manner established by Article 89 of the Tax Code of the Russian Federation. The decision to conduct an on-site tax audit of an individual is made by the tax authority at the place of residence of this person (Letter of the Ministry of Finance of the Russian Federation dated August 31, 2017 No. 03-02-08/55972).

The tax authority may, based on the results of an on-site audit, deny the taxpayer the right to a previously granted property deduction.

As already noted, access of tax officials to the territory or premises of the person being inspected is carried out in accordance with Article 91 of the Tax Code of the Russian Federation. However, access of tax officials conducting tax audits to residential premises, in addition to or against the will of the individuals living in them, is not allowed (Clause 5 of Article 91 of the Tax Code of the Russian Federation).

Important!

Unlike on-site tax audits of companies, it is possible to inspect an individual’s residential premises from the inside only if he/she wishes.

The legislation contains restrictions on the access of tax officials to residential premises, and therefore an individual is not obliged to allow tax officials into the house to conduct an inspection (for example, to determine the costs of finishing materials).

Thus, an on-site tax audit of an individual will be carried out at the location of the tax authority.

In this case, the tax authority has the right:

request documents necessary for verification;
inspect the property of the inspected individual located in his non-residential premises;
interrogate as witnesses individuals who may be aware of any circumstances relevant to tax control;
attract specialists and experts;
request from persons who have documents (information) relating to the activities of the individual being inspected, these documents or information.

How do tax authorities conduct an inspection?

Access to the territory or premises of the person being inspected by tax officials directly conducting a tax audit is carried out:

upon presentation by these officials of official identification and a decision of the head (his deputy) of the tax authority to conduct an on-site tax audit of this person;
upon presentation of service certificates and a reasoned resolution of an official of the tax authority carrying out a desk tax audit on the basis of a tax return for value added tax, to conduct an inspection in the cases provided for in clauses 8 and 8.1 of Article 88 of the Tax Code of the Russian Federation. The specified resolution is subject to approval by the head (deputy head) of the tax authority (clause 1 of Article 91 of the Tax Code of the Russian Federation).

Inspection of documents and objects on the territory or premises of the taxpayer is possible outside the framework of tax audits with the consent of the taxpayer to conduct such an inspection.

Important!

Should tax authorities notify the taxpayer in advance about the inspection? Tax authorities may notify the taxpayer in advance, indicating the date of the inspection. But the provisions of the Tax Code of the Russian Federation do not contain warning obligations about the upcoming inspection of premises and territories.

Inspection of the territory and premises must be carried out during working hours. Accordingly, conducting an inspection outside of working hours, determined in accordance with internal labor regulations, is considered a violation of the rights of the taxpayer and the taxpayer’s refusal to conduct such an inspection does not contradict the law.

However, if the taxpayer did not object to the extension of the inspection beyond his established working hours, then the inspection report (in the absence of other violations) will be admissible evidence.

Tax officials can take photographs, film, video record, make copies of documents or other actions provided for by law.

There are no restrictions on specific items to be examined. Tax officers can inspect any documents and items that are important for the completeness of the audit (Article 92 of the Tax Code of the Russian Federation).

Moreover, according to clause 5 of Article 99 of the Tax Code of the Russian Federation, photographic photographs and negatives, films, videos and other materials obtained during the inspection must be attached to the protocol.

The form of the Protocol for the inspection of territories, premises, documents, objects was approved by Order of the Federal Tax Service of the Russian Federation dated May 8, 2015 No. ММВ-7-2/ [email protected]

Do tax officials have the right to inspect programs on a computer?

An inspection of a personal computer includes an inspection of the software installed on it, since due to its functional purpose, only in this way can it be established what tasks this personal computer solves, as well as determine what technological and software processes were carried out by the taxpayer on this equipment.

As the senior judges indicated, the inspection provided for in Article 92 of the Tax Code of the Russian Federation, as one of the actions carried out by the tax authority in order to clarify circumstances relevant to the completeness of the audit, involves the detection, visual perception and direct examination of material objects containing information. Since information can be contained not only on paper, but also be presented in electronic digital form and contained in an automated data storage system, conducting an inspection without studying the data contained in the computer would not meet the purpose of its implementation, since the computer itself, as a technical device, does not carry information.

Important!

Therefore, the judges came to the conclusion that the actions of the tax authorities regarding the inspection of computer software were legal (Determination of the Supreme Court of the Russian Federation dated July 17, 2017 No. 302-KG17-8315).

By virtue of Art. 98 of the Tax Code of the Russian Federation, inspection of premises and territories is carried out in the presence of:

inspection officials;
witnesses.

If the court finds that the inspection by tax officials was carried out in the absence of witnesses, then the evidence obtained during its conduct will be declared inadmissible by virtue of clause 3 of Article 64 of the Arbitration Procedure Code of the Russian Federation. At the same time, the courts, having assessed this evidence (i.e., agreeing with the taxpayer’s argument that the tax authority, in violation of paragraph 3 of Article 92 of the Tax Code of the Russian Federation, conducted an inspection without the participation of witnesses), may recognize as appropriate the conclusions of the inspectorate about the unreality of carrying out the activity in question. counterparty (Resolution of the Fourth Arbitration Court of Appeal dated September 6, 2017 No. A19-21556/2016).

Consequences of denial of access

Obstructing the access of officials to the territory or premises of a taxpayer consists of illegally denying access to an official of the tax authority conducting a tax audit to inspect production, warehouse, trading and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable objects ( subparagraph 7, paragraph 1, article 31 of the Tax Code of the Russian Federation, article 19.7.6 of the Code of Administrative Offenses of the Russian Federation).

In this case, the head of the inspection group (team) draws up an act signed by him and the person being inspected.

In addition to an administrative fine on officials in the amount of 10 thousand rubles, tax authorities have the right, based on the data they have about the person being inspected or by analogy, to independently determine the amount of tax payable to the budget (Clause 3 of Article 91 of the Tax Code of the Russian Federation, Determination of the Supreme Court of the Russian Federation dated October 24 .2017 No. 308-KG17-15031). And this may entail serious additional taxes for the company, the legality of which will be difficult to challenge in court.

Irina Starodubtseva, group auditor-expert (RosCo)

Source: www.klerk.ru

Past issues:

Issue No. 168 of January 7, 2021 Tax authorities have become more interested in “physicists”
Issue No. 167 of January 31, 2021 Pre-audit analysis for tax audit
Issue No. 166 of January 17, 2021 Increasing reasons for business inspection in 2021

Participants of the inspection

Inspection of premises and territories during a tax audit (on-site or desk for VAT) must be carried out by inspection staff in the presence of witnesses (clause 3 of Article 92 of the Tax Code of the Russian Federation). Their presence is necessary to confirm the content and results of the inspection, as well as the facts revealed during the inspection (clause 5 of Article 98 of the Tax Code of the Russian Federation). Inspectors can invite any uninterested persons as witnesses (clause 2 of Article 98 of the Tax Code of the Russian Federation). For example, inspectors do not have the right to involve other inspection employees as witnesses (clause 4 of Article 98 of the Tax Code of the Russian Federation). At least two witnesses must participate in the inspection (clause 2 of Article 98 of the Tax Code of the Russian Federation). Violation of these requirements on the part of the inspectorate (for example, conducting an inspection without witnesses or in the presence of one witness) may become the basis for the fact that the results of the inspection will not be taken into account as evidence when considering the inspection materials.

In addition to witnesses, the following may participate in the inspection:

– representatives of the audited organization;

– specialists invited by the inspection.

This is stated in paragraph 3 of Article 92 of the Tax Code of the Russian Federation.

If necessary, during the inspection, inspection staff can conduct photography, filming, video recording and other actions at their discretion (Clause 4 of Article 92 of the Tax Code of the Russian Federation).

Is it possible to inspect the premises of an individual during a tax audit?

The tax authority may, based on the results of an on-site audit, deny the taxpayer the right to a previously granted property deduction.

Important!

Unlike on-site tax audits of companies, it is possible to inspect an individual’s residential premises from the inside only if he/she wishes.

Thus, an on-site tax audit of an individual will be carried out at the location of the tax authority.

Registration of results

Based on the results of the inspection of premises and territories, inspectors draw up a protocol in the form approved by order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338 (clause 5 of Article 92 of the Tax Code of the Russian Federation).

The protocol is drawn up in Russian (clause 1 of Article 99 of the Tax Code of the Russian Federation) and must contain the following data:

– name of the protocol (for example, protocol for inspection of the premises at the address...);

– place and date of compilation;

– start and end times of the inspection;

– position, full name the inspector who drew up the protocol;

– information about the persons who participated in the inspection (their full name, address, citizenship, etc.);

– information about the objects of inspection (premises, territories) and their location;

– a detailed description of the inspection results.

This is stated in paragraph 2 of Article 99 of the Tax Code of the Russian Federation.

The protocol is signed by all persons who took part in the inspection. At the same time, witnesses, representatives of the organization, and specialists invited by the inspection can add their comments to the protocol or attach their comments to it. This is stated in paragraph 3 of Article 99 of the Tax Code of the Russian Federation.

If during the inspection photography and video shooting, video recording or other actions were carried out, then photographs, negatives, films, video recordings and other materials obtained during the inspection must be attached to the protocol (clause 5 of Article 99 of the Tax Code of the Russian Federation).

Inspection Features

Inspection by tax authorities, as a legal procedure, may have its own characteristics, types and established rules. An important document here will be the inspection protocol. Its execution is within the competence of the tax inspector carrying out this audit.

The inspection report must include all types of information related in one way or another to this inspection.

For example, the date of drawing up the protocol and the inspection, the name of the organization in respect of which it is being carried out, information about the legal basis of this procedure, as well as other nuances that will be important. In addition, the protocol must also reflect information about the tax inspector himself - his full name, position.

Regarding the objects of inspection, they should be described in detail in the document. The protocol must be signed by absolutely all persons who were directly involved in this procedure, including invited specialists and official representatives of a legal entity - organization, institution, enterprise, etc.

The final point of the protocol is always a description of the results obtained during the inspection, indicating violations, if any.

The tax inspector cannot use evidence found as a result of an audit if this evidence was obtained illegally, in violation of established norms and inspection procedures.

The proven fact of these violations entails the complete cancellation of all results of the inspection.

Author of the article

Irregularities during examination

Situation: does the inspectorate have the right, when considering tax audit materials, to use the results of the inspection (inspection protocol) as evidence? The inspection was carried out in violation of legal requirements (for example, without the participation of witnesses).

Answer: no, you have no right.

When considering tax audit materials, the use of evidence obtained in violation of the Tax Code of the Russian Federation (paragraph 2, paragraph 4, article 101 of the Tax Code of the Russian Federation) is not allowed.

The Tax Code of the Russian Federation defines the rules for conducting an inspection (Article 92 of the Tax Code of the Russian Federation) and the procedure for drawing up an inspection protocol (Article 99 of the Tax Code of the Russian Federation). Violation of these norms gives reason to believe that the inspection results (inspection protocol) were obtained in violation of the Tax Code of the Russian Federation. Consequently, the inspectorate does not have the right to use them as evidence when considering tax audit materials. Arbitration practice confirms the validity of this conclusion. Thus, courts do not recognize the results of an inspection (inspection protocols) as evidence when considering tax audit materials if the inspection:

– conducted an inspection without the participation of witnesses (see, for example, resolutions of the Federal Antimonopoly Service of the Central District dated May 25, 2009 No. A48-3866/08-17, Moscow District dated July 24, 2009 No. KA-A41/6959-09, dated 20 April 2009 No. KA-A41/2243-09, dated January 28, 2008 No. KA-A41/14543-07, Volga District dated February 17, 2009 A55-9574/2008, Northwestern District dated March 27, 2007 No. A05-9810/2006-34);

– conducted an inspection with the participation of one witness, as evidenced by the only signature of the witness in the protocol (see, for example, resolutions of the Federal Antimonopoly Service of the North-Western District dated July 26, 2007 No. A21-409/2007, dated November 29, 2006 No. A56- 58556/2005, dated November 2, 2006 No. A56-15090/2006);

- attracted interested parties as witnesses - inspection employees or employees of the inspected organization (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation dated November 21, 2007 No. 15627/07, resolution of the Federal Antimonopoly Service of the North-Western District dated September 13, 2007 No. A05-419 /2007, dated June 6, 2007 No. A21-7086/2006, dated March 27, 2007 No. A05-9810/2006-34, West Siberian District dated June 28, 2007 No. F04-4058/2007(35465- A46-27));

– made corrections to the protocol that were not certified by the signatures of witnesses (see, for example, the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 29, 2004 No. A79-3216/2004-SK1-3262);

– did not draw up an inspection report (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated January 28, 2008 No. KA-A41/14543-07).