Arrears on personal income tax

New criteria for the deadline for sending a tax request

From 04/01/2020, inspectors received the right to send tax demands in the amount of 500 to 3,000 rubles to the debtor during the year. That is, when the amount of arrears from an organization or individual entrepreneur does not exceed 3,000 rubles. In this case, tax authorities will be able to issue a demand for payment no later than 1 year from the date of detection of the arrears.

Please note that until April 1, 2021, this period is valid if the tax arrears are less than 500 rubles. The usual deadline for submitting a claim is 3 months from the date of discovery of the arrears.

Thus, legislators increased the amount of tax debt to 3,000 rubles (new edition of paragraph 1, clause 1, article 70 of the Tax Code of the Russian Federation). Simply put, everything that is less than this amount from 04/01/2020 is not a priority for tax authorities in order to quickly collect it in favor of the budget.

The corresponding changes to the Tax Code of the Russian Federation were made by Federal Law No. 325-FZ of September 29, 2019, with numerous amendments and additions to the Code.

Also see “The court allowed the collection of company debts from accountants (it’s true).”

Collection of arrears of taxes from individuals

The tax service, if it discovers arrears during a desk audit, sends the taxpayer a request for its payment. The demand is transmitted to the debtor by mail or sent electronically via TKS. The document specifies the period for voluntary repayment of the debt. If a business entity does not voluntarily transfer the arrears to the budget within the specified period, then preparations for forced collection begin.

Collection of arrears of taxes from individuals and enterprises can be implemented in the following ways:

Undisputed recovery. In this case, debt repayment is carried out without legal proceedings. The amount of arrears is withdrawn from the current account of the business entity on the basis of an order submitted by the tax authorities to the bank to write off the money. Additionally, a measure of influence may be applied to the taxpayer in the form of suspension of movement on accounts. If there are not enough cash resources in the current accounts of an enterprise or individual entrepreneur, the Federal Tax Service initiates collection of tax at the expense of the debtor’s property.
Collection based on a court decision. This option is used in situations where the period for undisputed write-off has expired, and the Federal Tax Service applies to the arbitration court.

If it is impossible to reimburse the amount of arrears to the budget, the debt may be considered uncollectible. Such debts are subject to write-off. This is typical for the following situations:

the tax authority discovered the arrears after the statute of limitations on the debt had expired;
the business entity has ceased its activities through liquidation;
death of the individual who was responsible for the debt;
the entrepreneur has been granted bankruptcy status;
termination of enforcement proceedings by court decision.

The amount of the company's arrears on tax obligations is equal to 2.9 million rubles. The bailiffs assessed the company’s property, the data of which coincided with the organization’s balance sheet indicators:

accounts receivable in the amount of 3.2 million rubles;
cost of equipment – 300 thousand rubles;
volume of finished products – 122 thousand rubles;
MPZ – 150 thousand rubles.

The debt will be repaid using accounts receivable (Article 47 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of the Russian Federation dated January 19, 2007 No. 03-02-07/1-15). If the amount of the arrears exceeded the value of the receivables, the company would have to give up part of its property as compensation, which could lead to the cessation of the company’s activities.

New rules for collecting small debts

From April 1, 2021, the deadline for making a decision on collection depends on two criteria:

amounts of arrears;
prescription of arrears.

Thus, if the amount of arrears does not exceed 3,000 rubles, the Federal Tax Service Inspectorate makes a decision on collection within 2 months from the date that occurs first:

the total amount of the payer’s debt to the budget exceeds 3,000 rubles;
3 years will pass after the earliest outstanding claim has expired.

Please note that if the amount of arrears is from 3,000 rubles, the period remains the same - 2 months after the expiration of the deadline for fulfilling the payment requirement.

These are new provisions of paragraph 3 of Art. 46 of the Tax Code of the Russian Federation, introduced by Law of September 29, 2019 No. 325-FZ.

KEEP IN MIND
All of the above applies to the collection of not only taxes, but also fees, insurance premiums, penalties, fines (the total amount of mandatory payments).

Also see “When the collection of debts from pensions and benefits will be prohibited.”

Tax arrears

This is a debt to the budget of any level, which is formed in the absence of timely payment of obligations. Debt can also be formed as a result of receiving an erroneous tax refund in an inflated amount.

A legal or natural person has arrears:

on the day following the established date for payment of obligations;
at the time of actual crediting of excess funds to the current account as compensation;
on the day the decision is made to offset tax liabilities, the amount of which is determined incorrectly.

Arrears are the amount of a tax or fee, as well as an insurance premium, which was not repaid by the taxpayer on time (Article 11 of the Tax Code of the Russian Federation). For each type of tax, the legislation sets the deadline for payment. The norm applies to all types of federal and local taxes and insurance premiums. The amount of accrued fines and penalties does not add up to the arrears.

Taxpayers who have a debt to the budget may be subject to the following penalties:

penalty;
penalty;
measures of influence of criminal law (used in case of particularly large amounts of damage caused to the budget, in case of systematic repetition of the offense).

Tax arrears are an amount that may also arise due to an understatement of the tax base when preparing a tax return and calculating the liability for payment. In this situation, the taxpayer will be required to pay a fine in the amount of 20% of the amount of the debt (clause 1 of Article 122 of the Tax Code of the Russian Federation).

A penalty is charged in situations where the declaration forms were submitted on time and the results of the desk audit revealed no errors, but the tax was not transferred to the budget.

A large arrear is an amount of tax, for evasion of which criminal penalties may be applied to the taxpayer. Art. 199 of the Criminal Code of the Russian Federation provides for a fine of 100 to 300 thousand rubles, forced labor and even imprisonment. If the offense is committed for the first time and the guilty person has repaid the debt, the measures of Art. 199 of the Criminal Code of the Russian Federation may not be applied. A large amount of arrears is considered to be a debt to the budget in the amount of 15 million rubles, and a particularly large debt is considered to be a debt of 45 million rubles or more (without additional conditions).

New rules for large arrears

From April 1, 2021, when collecting large arrears, tax officials will have more powers.

If the tax authority has made a decision to collect arrears in the amount of more than 1 million rubles and it is not executed within 10 working days, then it has the right (new edition of Article 92 of the Tax Code of the Russian Federation):

inspect, with consent, the territory, premises, documents and property of the organization;
outside the inspection, request documents (information) about the property, property rights and obligations of the company (their list is regulated by the order of the Federal Tax Service).

This amendment was also introduced by Law No. 325-FZ of September 29, 2019.

Arrears of personal income tax and insurance premiums as grounds for forced bankruptcy

In some cases, underpayment or non-payment of personal income tax and insurance contributions to the budget may cause the company to go bankrupt.

Bankruptcy cases are considered by the arbitration court. Based on Art. 6 of the Federal Law of October 26, 2002 No. 127-FZ (as amended on July 3, 2016) “On Insolvency (Bankruptcy)”, bankruptcy proceedings may be initiated by an arbitration court, provided that the claims against the debtor - a legal entity in the aggregate do not amount to less than three hundred thousand rubles, and in relation to the debtor - an individual - no less than five hundred thousand rubles.

This means that any debt of three hundred thousand rubles can serve as grounds for filing a bankruptcy claim in court.

At the same time, special norms are named both in the Tax Code and in the Federal Law of July 24, 2009 No. 212-FZ (as amended on July 3, 2016) “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Fund insurance."

GOOD TO KNOW
By virtue of the Bankruptcy Law, the debtor, the bankruptcy creditor, and the authorized bodies have the right to apply to the arbitration court to declare the debtor bankrupt. Tax authorities, as stated above, are endowed with a similar right by virtue of clause 2 of Decree of the Government of the Russian Federation of May 29, 2004 No. 257.

The tax authority can collect arrears from the property without bankruptcy proceedings. According to paragraph 7 of Art. 46 of the Tax Code of the Russian Federation, the tax authority has the right to collect tax at the expense of property, including at the expense of the cash funds of the taxpayer (tax agent) - organization or individual entrepreneur, within the limits of the amounts specified in the request for tax payment, and taking into account the amounts in respect of which collection.

In addition, the tax authority may file for bankruptcy of a company in accordance with the generally established procedure determined by the Bankruptcy Law. The right to appeal to the arbitration court arises from the authorized body for mandatory payments after 30 days from the date of the decision specified in paragraph. 2 p. 3 art. 6 of Law No. 127-FZ. But there is no clear procedure for initiating bankruptcy in the Tax Code, so bankruptcy can be carried out on a general basis, that is, in accordance with the Bankruptcy Law.

The tax authority may also hold a taxpayer who fails to file for bankruptcy liable. If the management of a company or an individual entrepreneur, if there are grounds, has not filed for bankruptcy, the tax authorities have the right to independently hold the violator accountable in the form of a fine (Part 5 of Article 14.13, Article 23.5 of the Code of Administrative Offenses of the Russian Federation):

for citizens – from 1000 to 3000 rubles;
for officials - from 5,000 to 10,000 rubles.

ORIGINAL SOURCE
To determine whether a subject has signs of debtor bankruptcy, the amount of mandatory payments is taken into account without taking into account fines (penalties) and other financial sanctions established by the legislation of the Russian Federation.
— Paragraph 3, paragraph 2, art. 4 of the Bankruptcy Law.

However, in some cases, for example, in case of personal income tax debt, the courts refuse to make a decision to introduce bankruptcy proceedings. Thus, in the resolution of the Arbitration Court of the West Siberian District dated November 11, 2015 No. F04-25980/2015, the court refused to declare the company bankrupt, since the requirement of the authorized body for payment by a debtor - a legal entity of personal income tax withheld and not transferred to the budget is subject to the regime of claims of creditors of the second priority, and the amount of obligations to be satisfied in the second place is not subject to accounting for the purpose of determining the signs of bankruptcy.

In paragraph 10 of Art. 29 of Law No. 212-FZ states that the supervisory authority has the right to apply in the prescribed manner with an application to declare the payer of insurance premiums insolvent (bankrupt) in connection with his failure to fulfill his obligation to pay insurance premiums, but specific cases of bankruptcy are not indicated. But the courts proceed from two grounds for bankruptcy:

presence of debt;
existence of facts of absence of a legal entity, regardless of debt.

According to Art. 227 of the Bankruptcy Law, if a legal entity has actually ceased its activities, is absent or it is not possible to establish its location, an application to declare the absent debtor bankrupt can be filed by the authorized body, regardless of the size of the accounts payable. However, the courts do not always agree with the bankruptcy of a company on this basis (resolution of the Nineteenth Arbitration Court of Appeal dated July 31, 2013 No. A64-1025/2013).

But if there is arrears, the courts introduce bankruptcy proceedings (resolution of the Twentieth Arbitration Court of Appeal dated February 27, 2013 No. A54-8175/2012). Considering the issue of the validity of the application of the Federal Tax Service to recognize RyazanAvtoagregat LLC as insolvent (bankrupt), the court of first instance established the existence of an outstanding debt of the debtor to the creditor in the amount of more than one hundred thousand rubles (not disputed by the debtor), overdue for more than three months, and also that that the procedure for forced collection of debt was followed, as a result of which the regional court came to the conclusion that the debtor has signs of insolvency and there are all grounds for introducing bankruptcy proceedings against the debtor - supervision.

GOOD TO KNOW
After the bailiff receives a copy of the arbitration court decision declaring the debtor bankrupt and opening bankruptcy proceedings, it is possible to challenge the actions of the inspectors if:
the debt does not exceed the amount established by law;
unless the company is missing;
if the payment is not a mandatory payment.

What is a mandatory payment?

Mandatory payments - taxes, fees and other obligatory contributions paid to the budget of the corresponding level of the budget system of the Russian Federation and (or) state extra-budgetary funds in the manner and under the conditions determined by the legislation of the Russian Federation, including fines, penalties and other sanctions for non-compliance or improper fulfillment of the obligation to pay taxes, fees and other obligatory contributions to the budget of the corresponding level of the budget system of the Russian Federation and (or) state extra-budgetary funds, as well as administrative fines and fines established by criminal law.

Clause 1 of Art. 8 of the Tax Code of the Russian Federation stipulates that a tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of funds belonging to them by right of ownership, economic management or operational management for the purpose of financial support for the activities of the state and (or) municipalities.

Based on paragraph 1 of Art. 207 of the Tax Code of the Russian Federation, personal income tax payers are recognized as individuals who are Russian tax residents, as well as individuals who receive income from sources in the Russian Federation who are not Russian tax residents. However, the obligation to calculate, withhold from the taxpayer and pay the tax by virtue of clause 1 of Art. 226 of the Tax Code of the Russian Federation is entrusted to the organization - the tax agent from which or as a result of relations with which the taxpayer received income.

Personal income tax is not a mandatory payment levied on an organization in the form of alienation of funds owned by it. Personal income tax is calculated and paid by tax agents; debt for this type of tax does not fall under the provisions of Art. 2 and 4 of Law No. 127-FZ the concept of mandatory payment and cannot be qualified as a requirement to pay mandatory payments.

But insurance premiums fall under the concept of mandatory payments, since they are directly named as such, because these are contributions paid to state extra-budgetary funds, which are established by the relevant law. But even with regard to insurance premiums, there is little judicial practice on declaring companies and entrepreneurs bankrupt.

GOOD TO KNOW
The presence of an entity's arrears in taxes (in particular, personal income tax) or insurance premiums, the amount of which exceeds 300,000 rubles, may formally become a reason for the authorized body (tax authorities or auditors from extra-budgetary funds) to apply to the arbitration court with an application for recognition of this entity bankrupt.

If there is arrears on personal income tax?

It is now much easier for the tax authority to identify arrears on personal income tax than it was before. The fact is that starting from 2021, a requirement for quarterly reporting has been introduced. Desk audits of declarations (calculations) submitted by a tax agent are carried out in accordance with the general procedure (clauses 1–2, 10, Article 88 of the Tax Code of the Russian Federation). Accordingly, the tax authority can compare personal income tax receipts and form 6-NDFL. If arrears are discovered during a desk audit, the controlling authority may:

call the taxpayer to the salary commission;
close accounts if the company does not timely submit Form 6-NDFL.

Also, if a desk tax audit reveals errors in the tax return (calculation) and/or contradictions between the information contained in the submitted documents, or inconsistencies in the information are identified, the taxpayer is informed about this with the requirement to provide the necessary explanations within five days or make appropriate corrections to the established term.

If violations of the legislation on taxes and fees are identified during a desk tax audit, the tax authority officials conducting the audit must draw up a tax audit report in the prescribed form within 10 days after the end of the desk tax audit. Based on the act, an appropriate decision is made.

If the debt is more than 300,000 rubles. or the company is missing, the tax authority may file for bankruptcy of the taxpayer.

But, fortunately for taxpayers, favorable judicial practice has now developed, according to which the courts, in the case of personal income tax debt, refuse to file a claim for bankruptcy of the taxpayer.

POSITION OF THE COURT
The debt of a tax agent to transfer personal income tax to the budget is not a mandatory payment for the purposes of applying Law No. 127-FZ.
— Resolution of the Arbitration Court of the Central District dated December 7, 2015 No. F10-4681/2015.