Article 76 of the Tax Code of the Russian Federation. Suspension of transactions on bank accounts, as well as electronic money transfers of organizations and individual entrepreneurs

Article 76 of the Tax Code of the Russian Federation regulates the procedure for blocking a taxpayer’s account by tax authorities. Let's look at the questions it raises and answer them in this article.

• Art. 76 of the Tax Code of the Russian Federation - who is it intended for?
• What is the idea behind account blocking?
• What circumstances may lead to blocking?
• What accounts can be frozen?
• How is an account blocked under clause 2 of Article 76 of the Tax Code of the Russian Federation?
• What amount can be blocked?
• The “blocking” decision has been made. What follows?
• Bank actions
• Features of account blocking under clause 3 of Article 76 of the Tax Code of the Russian Federation for failure to file a declaration
• In what cases is blocking under sub. 1 clause 3 art. 76 of the Tax Code of the Russian Federation is illegal
• What is needed to cancel the suspension?
• What other reasons could there be for unblocking an account?
• Is it possible to punish controllers for delaying unlocking?

Article 76 of the Tax Code of the Russian Federation - who is it intended for?

Suspension of transactions on accounts is one of the methods designed to ensure the fulfillment of the obligation to pay taxes, fees, and, from 2021, insurance premiums, which are regulated by the Tax Code.

Article 76 of the Tax Code of the Russian Federation prescribes this procedure in detail for taxpayer organizations. These are the ones that will be discussed in this article, but it should be borne in mind that, according to paragraph 11 of Article 76 of the Tax Code of the Russian Federation, these rules also apply in relation to:

• organizations - tax agents, payers of fees, insurance premiums;
• individual entrepreneurs - taxpayers, tax agents, payers of fees and insurance premiums;
• organizations and entrepreneurs who are not taxpayers /tax agents, but are still required to submit tax returns. This category includes, for example, “simplified” people who issued VAT invoices or calculations for insurance premiums;
• private notaries and lawyers who have established law offices - taxpayers\tax agents and payers of insurance premiums.

In addition, the Tax Code also affects the responsibilities of banks. It also applies to tax authorities, since when blocking an account, they must strictly follow the established procedure.

Article 76 of the Tax Code of the Russian Federation unlawfully suspends transactions on taxpayer accounts

A.A. Evseev, Deputy Director of Kuzminykh and Partners LLC

The provisions of Article 76 of the Tax Code of the Russian Federation, in the part in which they allow the tax authority to suspend all expenditure transactions on the taxpayer’s current account, contradict the Constitution of the Russian Federation as disproportionate to the actual violation of the rights of taxpayers and the legitimate interests of the state.

As one of the stages of the tax debt collection procedure, the legislator calls the suspension of debit transactions on the taxpayer’s bank accounts.

According to paragraph 1 of Article 76 of the Tax Code of the Russian Federation, “suspension of transactions on the accounts of a taxpayer-organization in a bank means the termination by the bank of all debit transactions on this account , unless otherwise provided by this article.”

Suspension of transactions on bank accounts is used to ensure the execution of the decision to collect a tax or fee, while the decision to suspend transactions is made in the event of failure by the taxpayer-organization to fulfill the obligation to pay the tax within the established time frame (Clause 2 of Article 76 of the Tax Code of the Russian Federation). In addition, the suspension of operations may be caused by the taxpayer’s failure to submit a tax return to the tax authority within two weeks after the expiration of the established deadline for submitting such a declaration, as well as in the case of refusal to submit tax returns by a taxpayer-organization and a taxpayer-individual entrepreneur (clause 2 of Art. 76 of the Tax Code of the Russian Federation).

As follows from paragraph two of paragraph 1 of Article 76 of the Tax Code of the Russian Federation, the restriction on conducting expense transactions “does not apply to payments, the order of execution of which, in accordance with the civil legislation of the Russian Federation, precedes the fulfillment of the obligation to pay taxes and fees.”

Article 855 of the Civil Code of the Russian Federation is devoted to regulating the priority of fulfillment of requirements for writing off amounts from a person’s bank account, according to which payments to the budget and extra-budgetary forms are written off in fourth place after the fulfillment of this obligation for the following creditors:

• citizens on writs of execution for compensation for harm caused to life and health, as well as on claims for alimony;

• citizens under executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages to persons working under an employment contract, including under a contract for the payment of remuneration under an author's agreement;

• citizens according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), as well as for contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and compulsory medical insurance funds.

Thus, the repayment of claims of other creditors, for example, legal entities under business contracts, occurs after the requirements of the tax authority are satisfied, and therefore, the write-off of amounts on claims to such creditors at the time the bank executes the decision to suspend all debit transactions on the taxpayer’s accounts does not occur.

It should be noted that, according to paragraph 5 of Article 76 of the Tax Code of the Russian Federation, “suspension of transactions of a taxpayer-organization on its bank accounts is effective from the moment the bank receives the decision of the tax authority to suspend such transactions and until this decision is canceled.”

Thus, a situation may arise in which all debit transactions on the taxpayer’s accounts are suspended due to tax arrears, for example, in the amount of 1 ruble. In this case, the taxpayer’s accounts may contain an amount of 1 million rubles. This million could be intended to pay creditors standing in line behind the tax authority.

Taking into account the provisions of paragraph 6 of Article 76 of the Tax Code of the Russian Federation, the penalty for one day of late payment is 1 million rubles. will amount to 333 rubles. at a bank refinancing rate of 12% (Instruction of the Bank of Russia dated December 23, 2005 No. 1643-U), which in this case is more than 300 times the tax arrears.

It is obvious that the suspension of transactions on the taxpayer’s current accounts is a type of restriction of a person’s property rights (Resolution of the Constitutional Court of the Russian Federation of July 14, 2005 No. 9-P in the case “On verification of the constitutionality of the provisions of Article 113 of the Tax Code of the Russian Federation in connection with the complaint of citizen G.A. Polyakova and a request from the Federal Arbitration Court of the Moscow District"), related to the need to ensure timely payment of taxes and minimize budget losses.

As noted in paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 1996 No. 6 “On the results of consideration by the Presidium of the Supreme Arbitration Court of the Russian Federation of certain issues of judicial practice,” “it should be borne in mind that the adoption of such a measure as the seizure of funds, stored in the defendant’s account, simultaneously affects the legally protected rights and interests of third parties (other creditors of the defendant).” The consequences of suspending a transaction on a current account for creditors who are in line with the tax authority are essentially identical, which means that the opinion of the Supreme Arbitration Court of the Russian Federation can be extended to them. That is, the suspension of all expenditure transactions, even for those amounts that will not be written off to the budget, violates the rights of third parties - creditors, to whom the blocked amounts were intended to be transferred.

By suspending transactions on the taxpayer's current account, the state applies a legal restoration measure related to ensuring the constitutional obligation to pay taxes and indirectly compensating for budget losses in terms of suspending transactions in the amount of penalties (Resolution of the Constitutional Court of the Russian Federation of July 15, 1999 No. 11-P in the case “On checking the constitutionality of certain provisions The Law of the RSFSR “On the State Tax Service of the RSFSR” and the laws of the Russian Federation “On the Fundamentals of the Tax System in the Russian Federation” and “On the Federal Tax Police Bodies”).

Actually, compensation for the state's losses is solved in other ways, that is, through penalties and fines.

Thus, the goal pursued by the state by suspending transactions on a current account is to ensure the payment of tax in a strictly defined amount and indirectly the collection of penalties, the amount of which is also known at the time the decision is made.

According to Part 3 of Article 55 of the Constitution of the Russian Federation, “the rights and freedoms of man and citizen may be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and security of the state."

Analyzing the provisions of Article 55, the Constitutional Court of the Russian Federation derived the principle of proportionality of restrictions on rights to state interests, the rights of other persons, etc. Thus, the Constitutional Court of the Russian Federation in Resolution No. 11-P dated July 15, 1999 in the case “On checking the constitutionality of certain provisions of the Law of the RSFSR “ On the State Tax Service of the RSFSR” and the laws of the Russian Federation “On the Fundamentals of the Tax System in the Russian Federation” and “On the Federal Tax Police Bodies”” indicated the following: “According to Article 57 of the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees. In order to ensure the fulfillment of this public duty and compensation for damage incurred by the treasury as a result of its failure, the legislator has the right to establish coercive measures in connection with non-compliance with the legal requirements of the state.

When establishing liability for violations of the legislation on taxes and fees, the legislator must also proceed from the fact that restriction of rights and freedoms is possible only if it is proportionate to the goals directly specified in the Constitution of the Russian Federation (Article 55, Part 3).

The principle of proportionality, expressing the requirements of justice, presupposes the establishment of public legal responsibility only for a guilty act and its differentiation depending on the severity of the act, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that determine individualization when applying a penalty. The specified principles of holding liable apply equally to individuals and legal entities.”

The Constitutional Court of the Russian Federation also about (Resolution of the Constitutional Court of the Russian Federation of July 16, 2004 No. 14-P in the case “On checking the constitutionality of certain provisions of part two of Article 89 of the Tax Code of the Russian Federation in connection with complaints from citizens A.D. Egorov and N.V. Chuev” ).

Thus, the requirement to limit the rights of persons and the proportionality of interim measures can be the basis for distinguishing the legality and illegality of the provisions of Article 76 of the Tax Code of the Russian Federation.

As we have already noted, the suspension of all debit transactions on a taxpayer’s accounts may be due to both tax arrears and failure to submit tax returns.

The accrual of penalties for tax arrears can cause damage to the taxpayer that is many times greater than the amount of arrears. Suspension of all transactions, including for amounts many times greater than the arrears, does not meet the principle of proportionality and excessively limits the taxpayer’s property rights. A restriction in this form does not correspond to the goals of collecting taxes and compensating the state for losses caused by tax arrears.

Thus, in the author’s opinion, in this part the provisions of Article 76 of the Tax Code of the Russian Federation do not correspond to Part 3 of Article 55 of the Tax Code of the Russian Federation.

The legislator established liability for failure to submit tax returns in Article 119 of the Tax Code of the Russian Federation. The elements of the offense are established regardless of the tax arrears. The decision of the Supreme Arbitration Court of the Russian Federation dated 02/03/2004 No. 16125/03 states that “the absence of a taxable object and (or) amount of tax payable by a taxpayer based on the results of a specific tax period does not in itself relieve him of the obligation to submit a value added tax return.” . Even if failure to submit a declaration did not entail any consequences, and the amount indicated in the declaration is zero, the taxpayer is still held accountable in the form of a fine of 100 rubles. (clause 1 of article 119 of the Tax Code of the Russian Federation).

The taxpayer is not released from liability if he pays the full amount of tax on time, but submits a tax return late. Similar arguments are set out in the decisions of the Federal Antimonopoly Service of the West Siberian District dated May 4, 2005 No. Ф04-1277/2005(9407-А70-7) and dated October 10, 2005 No. Ф04-6999/2005(15444-А27-6), the Federal Antimonopoly Service of the East Siberian District dated October 18, 2005 in case No. A33-2810/2005-F02-5200/05-S1.

Consequently, the legislator established the degree of danger of this offense.

Thus, the suspension of all expenditure transactions in the event of failure to submit tax returns must be recognized as a disproportionate infringement of the rights of a person, which contradicts the provisions of Part 3 of Article 55 of the Constitution of the Russian Federation.

Key words: Article 76 of the Tax Code of the Russian Federation, protection of rights, suspension of account transactions, taxpayer rights

What is the idea behind account blocking?

Suspension of account transactions means the cessation of all debit transactions.

Exceptions

The following types of payments are exceptions:

1. Payments with the order of execution preceding the order of tax payments. The taxes collected are of 3rd priority, and, therefore, even from a blocked account the bank has the right to make payments:
   for enforcement documents related to compensation for harm caused to life and health and claims for the collection of alimony - 1st stage;
2. according to executive documents for calculations for the payment of severance pay\salaries to resigning employees and for the payment of remuneration to the authors of the results of intellectual activity - 2nd stage;
3. according to payment documents that provide for the transfer or payment of wages, if they were received by the bank before the decision on suspension was made.
4. Transfer to the budget of taxes (advance payments) and fees, insurance premiums and penalties/fines on them (according to the letter of the Ministry of Finance of Russia dated 06/03/2010 No. 03-02-07/1-266).

The tax office may also suspend electronic money transfers - all operations that entail a decrease in the balance of funds in the current account.

Clause 2.1 of Article 76 of the Tax Code of the Russian Federation

Decisions to suspend transactions on bank accounts and electronic money transfers in order to ensure obligations to pay taxes, fees, and insurance contributions by a party to an investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax accounting), in connection with the implementation of the investment partnership agreement, are accepted by the head (deputy head) of the tax authority at the location of such managing partner. (As amended by Federal Law dated July 3, 2016 No. 243-FZ)

In order to ensure the obligations for the payment of taxes, fees, insurance premiums by the managing partner responsible for maintaining tax accounting, in connection with the implementation of the investment partnership agreement (with the exception of corporate income tax arising in connection with the participation of this partner in the investment partnership agreement) in the first place operations on bank accounts and transfers of electronic funds of the investment partnership are suspended. (As amended by Federal Law dated July 3, 2016 No. 243-FZ)

If there are no funds in the accounts of the investment partnership or there are insufficient funds, a decision to suspend operations on bank accounts and electronic money transfers may be made in relation to the accounts of the managing partners. In this case, first of all, such a decision is made in relation to the accounts of the managing partner responsible for maintaining tax records.

If there are no or insufficient funds in the accounts of the managing partners, a decision to suspend transactions on bank accounts and transfers of electronic funds of the partners may be made in relation to the accounts of the partners in an amount proportional to the share of each of them in the common property of the partners, determined on the date the debt arose.

A decision to suspend transactions on bank accounts and electronic money transfers of managing partners and associates may be made no earlier than a decision to collect tax from funds in the bank accounts of these persons.

(Clause introduced - Federal Law dated November 28, 2011 No. 336-FZ)

What circumstances may lead to blocking?

Article 76 of the Tax Code of the Russian Federation contains a complete list of grounds for blocking an account. Such grounds include paragraphs. 2 and 3 tbsp. 76 Tax Code of the Russian Federation

Reasons for blocking

• non-payment of taxes, fees and insurance premiums;
• failure to submit a declaration;
• failure to transmit a tax receipt confirming the acceptance of the request for the submission of documents/explanations or notifications in accordance with clause 5.1 of Art. 23 Tax Code of the Russian Federation;
• ensuring the execution of decisions based on the results of a tax audit.

The issue of blocking an account for failure to submit calculations of insurance premiums to the Federal Tax Service has not yet been regulated by law and, at first, caused disagreements even among officials. As a result, the financial and tax departments agreed that before appropriate changes are made to the text of Art. 76 of the Tax Code of the Russian Federation, blocking is considered unlawful.

Clause 12, Article 76 of the Tax Code of the Russian Federation

If there is a decision to suspend operations on the accounts of a taxpayer-organization and transfers of its electronic funds in a bank, as well as on the accounts of persons specified in paragraph 11 of this article, banks do not have the right to open accounts, deposits, deposits for this organization and these persons and provide this organizations have the right to use new corporate electronic means of payment for electronic money transfers, with the exception of special election accounts, special referendum fund accounts. (As amended by federal laws dated July 27, 2010 No. 229-FZ; dated June 27, 2011 No. 162-FZ; dated July 23, 2013 No. 248-FZ; dated November 4, 2014 No. 347-FZ; dated April 26, 2016 No. 110-FZ)

The procedure for informing banks about the suspension of operations and about the lifting of the suspension of operations on the accounts of a taxpayer-organization and transfers of his electronic funds in the bank, as well as on the accounts of persons specified in paragraph 11 of this article, is established by the federal executive body authorized for control and supervision in area of ​​taxes and fees, in agreement with the Central Bank of the Russian Federation. (Paragraph introduced - Federal Law dated July 23, 2013 No. 248-FZ)

What accounts can be frozen?

Tax authorities can only block accounts opened under a bank account agreement, i.e. current accounts - ruble and foreign currency.

The following accounts are not blocked:

• transit currency account - letter of the Ministry of Finance of Russia dated April 16, 2013 No. 03-02-07/1/12722, Federal Tax Service of Russia dated March 21, 2013 No. AS-4-2/4846;
• loan accounts - according to the resolution of the Federal Antimonopoly Service of the Moscow District dated 08/18/2005, 08/15/2005 No. KA-A41/7704-05;
• deposit accounts;
• collateral accounts.

Clause 13, Article 76 of the Tax Code of the Russian Federation

The rules established by this article are applied taking into account the specifics provided for by this paragraph in relation to ensuring payment of corporate income tax for a consolidated group of taxpayers.

The suspension of transactions of participants of a consolidated group of taxpayers on bank accounts is carried out in the same sequence in which the tax authority carries out the procedure for foreclosure on funds (precious metals) in bank accounts in accordance with paragraph 11 of Article 46 of this Code. (As amended by Federal Law No. 343-FZ dated November 27, 2017)

Decisions to suspend transactions on the bank accounts of a responsible participant in a consolidated group of taxpayers and other participants in this group may also be made in the manner provided for by this article in the event of failure to submit a tax return on corporate income tax for a consolidated group of taxpayers to the tax authority within 10 days. expiration of the deadline for submitting such a declaration. In this case, decisions to suspend transactions on bank accounts can be made simultaneously to all participants in this group.

(Clause introduced - Federal Law No. 321-FZ dated November 16, 2011)
←Article 75 of the Tax Code of the Russian Federation, Article 77 of the Tax Code of the Russian Federation→

What amount can be blocked?

The blocking applies only to the amount specified in the decision. You can spend funds in excess of this amount without restrictions - letter of the Ministry of Finance of Russia dated 04/15/2010 No. 03-02-07/1-167, dated 07/09/2008 No. 03-02-07/1-268, resolution of the Federal Antimonopoly Service of the North-Western District dated 09/13/2010 No. A56-75387/2009.

If a foreign currency account has been suspended, then the currency equivalent of the amount specified in the decision is frozen at the exchange rate of the Central Bank of the Russian Federation on the date the suspension began, in accordance with clause 2 of Art. 76 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated December 30, 2008 No. 03-02-07/1-542, dated April 15, 2009 No. 03-02-07/1-186, dated September 21, 2009 No. 03-02-07/1- 434.

Clause 9.2 of Article 76 of the Tax Code of the Russian Federation

If the tax authority violates the deadline for canceling the decision to suspend transactions on the accounts of a taxpayer-organization in a bank or the deadline for sending to the bank a decision to cancel the suspension of transactions on the accounts of a taxpayer-organization in a bank for the amount of funds in respect of which the suspension regime was in effect (for precious metals , in respect of which the suspension regime was in effect), interest is accrued to be paid to the taxpayer for each calendar day of violation of the deadline. (As amended by federal laws dated June 29, 2012 No. 97-FZ; dated November 27, 2017 No. 343-FZ)

In the event of an unlawful decision by the tax authority to suspend transactions on the accounts of a taxpayer-organization in a bank on the amount of funds in respect of which the specified decision was in effect (for precious metals in respect of which the specified decision was in effect) of the tax authority, interest is accrued and payable to the specified taxpayer -organizations for each calendar day, starting from the day the bank receives a decision to suspend operations on the taxpayer’s accounts until the day the bank receives a decision to cancel the suspension of operations on the accounts of the taxpayer-organization. (Paragraph introduced - Federal Law dated July 27, 2010 No. 229-FZ; as amended by Federal Law dated November 27, 2017 No. 343-FZ)

The interest rate is taken equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days of the unlawful suspension of transactions on the accounts of a taxpayer-organization, violation by the tax authority of the deadline for canceling the decision to suspend transactions on the accounts of the taxpayer-organization in the bank, or the deadline for sending to the bank a decision to cancel the suspension of transactions on taxpayer-organizational bank accounts. In this case, the cost of precious metals is determined based on the accounting price for precious metals established by the Central Bank of the Russian Federation on the date of unlawful suspension of transactions on the accounts of the taxpayer-organization, violation by the tax authority of the deadline for canceling the decision to suspend transactions on the accounts of the taxpayer-organization in the bank or the deadline for sending to bank decision to cancel the suspension of transactions on the accounts of a taxpayer-organization in the bank. (As amended by federal laws dated July 27, 2010 No. 229-FZ; dated June 29, 2012 No. 97-FZ; dated November 27, 2017 No. 343-FZ)

(Clause introduced - Federal Law dated November 26, 2008 No. 224-FZ)

The “blocking” decision has been made. What follows?

The tax authorities must transfer a copy of the decision to suspend transactions on the account to the taxpayer no later than the business day following the day the decision was made. This decision is submitted against signature or in another way that allows you to attest to the date of receipt - clause 4 of Art. 76 of the Tax Code of the Russian Federation, one of these methods is TKS or the taxpayer’s personal account.

If you have not received a copy of this decision, you can try to appeal the blocking of your current account. In this case, it is worth considering that in the practice of arbitration courts there is still no consensus on this issue.

You can find decisions where the courts sided with the taxpayers, recognizing this circumstance as a basis for lifting the suspension of account transactions, based on the resolution of the Federal Antimonopoly Service of the Moscow District dated May 20, 2011 No. KA-A40/4435-11 in case No. A40-85562/10-20- 435, FAS of the West Siberian District dated March 11, 2009 No. F04-1374/2009(1902-A46-34) in case No. A46-15309/2008.

True, there are also decisions in favor of controllers, for example, the resolution of the Federal Antimonopoly Service of the East Siberian District dated September 4, 2012 in case No. A10-3116/2011. It is fair to say that in the last case, with the support of the court, the tax authority took the necessary steps to serve the decision at the taxpayer’s known address, having exhausted all available possibilities for this.

The tax inspectorate sends the decision to the bank in electronic form - clause 4 of Art. 76 of the Tax Code of the Russian Federation, although the deadline for sending to Art. 76 of the Tax Code of the Russian Federation is not defined, but, usually, the decision reaches its destination quite quickly.

Clause 4 of Article 76 of the Tax Code of the Russian Federation

The decision to suspend transactions of a taxpayer-organization on his bank accounts and transfers of his electronic funds is sent by the tax authority to the bank in electronic form. (As amended by federal laws dated June 27, 2011 No. 162-FZ; dated June 29, 2012 No. 97-FZ)

The decision to cancel the suspension of transactions on the accounts of a taxpayer-organization and transfers of its electronic funds is sent to the bank in electronic form no later than the day following the day such a decision was made. (As amended by Federal Law No. 97-FZ dated June 29, 2012)

The procedure for sending to the bank in electronic form a decision of the tax authority on the suspension of transactions on the accounts of a taxpayer-organization in the bank and transfers of its electronic funds or a decision to cancel the suspension of transactions on the accounts of the taxpayer-organization in the bank and transfers of its electronic funds is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees. (As amended by federal laws dated June 27, 2011 No. 162-FZ; dated June 29, 2012 No. 97-FZ)

The forms of the tax authority's decision to suspend transactions on the accounts of a taxpayer-organization in a bank and transfers of its electronic funds and the decision to lift the suspension of transactions on the accounts of a taxpayer-organization in a bank and transfers of its electronic funds are approved by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these decisions are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation. (As amended by Federal Law No. 97-FZ dated June 29, 2012)

A copy of the decision to suspend transactions on the accounts of a taxpayer-organization in a bank and transfers of its electronic funds or the decision to cancel the suspension of transactions on the accounts of a taxpayer-organization in a bank and transfers of its electronic funds is transferred to the taxpayer-organization against a receipt or in another way indicating the date receipt by the taxpayer-organization of a copy of the relevant decision no later than the day following the day such a decision was made. (As amended by federal laws dated November 26, 2008 No. 224-FZ; dated June 27, 2011 No. 162-FZ)

Bank actions

Having received a decision to block, the bank must do the following:

• Inform the tax authorities how much is in the frozen account.
• Proceed with the execution of the decision , what should be done until the decision to cancel the blocking is received, in accordance with clause 7 of Art. 76 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated June 11, 2010 No. 03-02-07/1-276. If the decision indicates several taxpayer accounts at the same time, then the bank must block all account data within the amount specified in the sent decision - letter of the Ministry of Finance of Russia dated January 14, 2013 No. 03-02-07/1-6.
• Do not open new accounts and corporate means of payment, deposits and deposits for the client . Thus, the bank does not have the right to open a new account even if a decision to suspend was received in relation to accounts that had already been closed at the time of blocking - according to the letter of the Ministry of Finance of Russia dated December 17, 2008 No. 03-02-07/1-517 , resolution of the Federal Antimonopoly Service of the East Siberian District dated 02/01/2013 in case No. A19-12728/2012.
• Do not close the account while there is money on it - letter of the Ministry of Finance of Russia dated May 11, 2007 No. 03-02-07/1-225. If there are no funds in the account in respect of which there is a decision to suspend for 2 years, then the bank is allowed to close the account independently - letter of the Ministry of Finance of Russia dated 01.08.2008 No. 03-02-07/1-334.

In the event that, before the decision on suspension was received, the bank received settlement documents from the organization, but did not have time to execute them, it has the right to do this only in relation to payments to which the blocking does not apply, according to the letter of the Ministry of Finance of Russia dated November 10, 2008 No. 03-02 -07/1-459, dated 04/15/2008 No. 03-02-07/1-149.

Clause 9, Article 76 of the Tax Code of the Russian Federation

If the total amount of funds of a taxpayer-organization located in accounts on which transactions are suspended on the basis of a decision of the tax authority exceeds the amount specified in this decision, this taxpayer has the right to submit to the tax authority an application to cancel the suspension of transactions on his bank accounts indicating the accounts in which there are sufficient funds to comply with the decision to collect the tax.

The tax authority is obliged, within two days from the date of receipt of the taxpayer’s application specified in paragraph one of this paragraph, to make a decision to cancel the suspension of transactions on the accounts of the taxpayer-organization in terms of excess of the amount of funds specified in the decision of the tax authority to suspend transactions on the bank accounts of the taxpayer-organization .

If the taxpayer does not attach documents to the said application confirming the availability of funds in the accounts specified in this application, the tax authority has the right, before making a decision to lift the suspension of transactions on the accounts, within the day following the day of receipt of such an application from the taxpayer, send the bank in which the accounts indicated by the taxpayer are opened, a request for cash balances in these accounts. A message about the balance of funds in the taxpayer’s bank accounts is sent by the bank in electronic form in the established format no later than the next day after the day of receipt of the tax authority’s request. (As amended by federal laws dated July 27, 2010 No. 229-FZ; dated June 29, 2012 No. 97-FZ)

After receiving information from the bank about the availability of funds in the taxpayer’s bank accounts in an amount sufficient to execute the decision on collection, the tax authority is obliged to make a decision within two days to cancel the suspension of transactions on the accounts of the taxpayer-organization in terms of excess of the amount of funds specified in the decision of the tax authority to suspend transactions on the bank accounts of the taxpayer-organization.

The provisions of this paragraph also apply in the event of suspension of operations on accounts in precious metals. In this case, the cost of precious metals is determined based on the accounting price for precious metals established by the Central Bank of the Russian Federation on the date the tax authority made a decision to lift the suspension of transactions on an account in precious metals. (Paragraph introduced - Federal Law dated November 27, 2017 No. 343-FZ)

In what cases is blocking under sub. 1 clause 3 art. 76 of the Tax Code of the Russian Federation is illegal

Blocking on this basis applies only in case of non-submission of declarations, including by tax agents - letter of the Federal Tax Service of Russia dated August 22, 2014 No. SA-4-7/16692.

Blocking does not apply to cases of failure to submit:

• calculation of the advance payment , according to the letter of the Ministry of Finance of Russia dated July 12, 2007 No. 03-02-07/1-324, the Federal Tax Service of Russia dated December 11, 2014 No. ED-4-15/25663, the determination of the Armed Forces of the Russian Federation dated March 27, 2017 No. 305-KG16- 16245 and the resolution of the FAS of the East Siberian District dated July 24, 2012 in case No. A78-9435/2011, and it does not matter what it is called - calculation or declaration;
• information on the average number of employees - according to the resolution of the Federal Antimonopoly Service of the Moscow District dated March 12, 2009 No. KA-A40/1265-09 in case No. A40-52546/08-116-129;
• calculation submitted by the tax agent - according to clause 23 of the resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57;
• accounting statements - letter of the Ministry of Finance of Russia dated July 4, 2013 No. 03-02-07/1/25590, dated July 12, 2007 No. 03-02-07/1-324;
• certificate 2-NDFL - resolution of the Federal Antimonopoly Service of the Moscow District dated February 14, 2008 No. KA-A40/235-08 in case No. A40-28497/07-118-155;
• documents that are necessary when conducting a tax audit - Resolution of the Federal Antimonopoly Service of the West Siberian District dated 08/09/2007 No. F04-5130/2007(37098-A46-32) in case No. A46-20897/2006.

In addition, they do not have the right to freeze a current account due to an error in the declaration that does not entail a refusal to accept it - letter of the Ministry of Finance of Russia dated July 4, 2013 No. 03-02-07/1/25589 or signing of the declaration by an unauthorized person - resolution of the Federal Antimonopoly Service of the Ural District dated 05/06/2013 No. F09-3372/13 in case No. A60-31906/12, FAS of the West Siberian District dated 02/20/2012 in case No. A45-8704/2011.

It should be noted that filing a declaration using an outdated or outdated form is not a reason for blocking!

Clause 9.1 Article 76 of the Tax Code of the Russian Federation

The suspension of transactions on the bank accounts of a taxpayer-organization is canceled in the cases specified in paragraph 3.1, paragraph two of paragraph 3.2, paragraphs 7 - 9 of this article and in paragraph 10 of Article 101 of this Code, as well as on the grounds provided for by other federal laws. (As amended by federal laws dated June 28, 2013 No. 134-FZ; dated May 2, 2015 No. 113-FZ)

If the suspension of transactions on the bank accounts of a taxpayer-organization is lifted on the grounds provided for by other federal laws, the tax authority is not required to make a decision to cancel the suspension of such transactions.

(Clause introduced - Federal Law dated November 26, 2008 No. 224-FZ; as amended by Federal Law dated July 27, 2010 No. 229-FZ)

What is needed to cancel the suspension?

First of all, eliminate the violations for which you were punished. Thus, the suspension should be lifted in the following cases:

• When repaying or collecting arrears - the next day after the inspection receives documents or copies thereof that confirm the fact of collection of a tax, penalty or fine - clause 8 of Art. 76 Tax Code of the Russian Federation. To speed up the process, submit these documents yourself along with the unlocking application. These documents can be drawn up in any form, and a copy of the “blocking” decision can be attached to the application.
• After submitting the declaration - the next day after its submission to the tax authority - sub. 1 clause 3.1 art. 76 Tax Code of the Russian Federation. In this case, you should also not be idle, since time is money, and the application will help save a lot of it.
• When fulfilling the duty, which is enshrined in clause 5.1 of Art. 23 Tax Code of the Russian Federation . You can submit a receipt to the Federal Tax Service regarding the receipt of electronic documents from it. It is enough to submit the requested documents/explanations, or come when called from the tax office. The next day the blocking must be lifted according to subsection. 2 clause 3.1 art. 76 Tax Code of the Russian Federation.

In a situation where controllers have blocked several accounts at once and the amount frozen in the account exceeds the amount specified in the decision on suspension, it is worth filing an application to cancel this suspension, simply indicating in it the accounts in which there are enough funds to execute the decision to collect the tax, and the accounts you want to unblock. Excessively blocked money must be released within 2 days - clause 9 of Art. 76 Tax Code of the Russian Federation. It is necessary to attach to the application documents confirming the amount of cash balances in the accounts. In this case, the tax authorities will not have to waste extra time requesting information about bank balances, which will proportionally reduce the unlocking time.

In all of the above cases, an appropriate decision is made to cancel the tax suspension. It is sent to the bank, and a copy of this decision is sent to the taxpayer.

Clause 5, Article 76 of the Tax Code of the Russian Federation

The bank is obliged to report to the tax authority in electronic form information about the balances of funds (precious metals) of the taxpayer-organization in bank accounts, operations on which are suspended, as well as about the balances of electronic funds, the transfer of which is suspended, within three days after the day of receipt a decision of this tax authority to suspend transactions on the bank accounts of a taxpayer-organization. The formats for the bank to report information on the balances of funds (precious metals) on the accounts of the taxpayer-organization in the bank and on the balances of electronic funds and the procedure for the bank to send the specified message in electronic form are approved by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees. (As amended by federal laws dated July 27, 2010 No. 229-FZ; dated November 3, 2010 No. 287-FZ; dated June 27, 2011 No. 162-FZ; dated June 29, 2012 No. 97-FZ; dated November 27, 2017 No. 343-FZ)

What other reasons could there be for unblocking an account?

The grounds that can be used to lift the suspension of account transactions may also be contained in individual federal laws. In this case, a decision from the tax office is not required to unblock the account.

Such cases, in particular, include:

• Liquidation of the organization - letter of the Ministry of Finance of Russia dated September 16, 2013 No. 03-02-08/38179. If an individual loses his individual entrepreneur status, the decision to suspend transactions on his bank accounts continues to be in effect, according to the letter of the Ministry of Finance of Russia dated July 24, 2012 No. 03-02-07/1-187;
• Declaration of a tax agent bankrupt by an arbitration court \ opening of bankruptcy proceedings against him - letter of the Ministry of Finance of Russia dated November 16, 2010 No. 03-02-07/1-534.

It is worth noting that the suspension cannot be canceled due to reorganization. After completion of this procedure, the decision continues to apply to the accounts of the assignee - letter of the Ministry of Finance of Russia dated July 24, 2012 No. 03-02-07/1-187.

Clause 2 of Article 76 of the Tax Code of the Russian Federation

The decision to suspend transactions of a taxpayer-organization on his bank accounts and transfers of his electronic funds is made by the head (deputy head) of the tax authority who sent the request for payment of tax, penalties or fines in the event of failure of the taxpayer-organization to comply with this requirement. (As amended by Federal Law dated June 27, 2011 No. 162-FZ)

In this case, the decision to suspend transactions of a taxpayer-organization on his bank accounts and transfers of his electronic funds may be made no earlier than the decision to collect the tax. (As amended by Federal Law dated June 27, 2011 No. 162-FZ)

Suspension of transactions on the bank accounts of a taxpayer-organization in the case provided for by this paragraph means the termination by the bank of debit transactions on this account within the amount specified in the decision to suspend transactions of the taxpayer-organization on bank accounts, unless otherwise provided by paragraph three of paragraph 1 of this article.

Suspension of electronic money transfers of a taxpayer-organization in the case provided for by this paragraph means the termination by the bank of operations entailing a decrease in the balance of electronic money within the amount specified in the decision of the tax authority. (Paragraph introduced - Federal Law dated June 27, 2011 No. 162-FZ)

Suspension of transactions of a taxpayer-organization on his foreign currency account with a bank in the case provided for by this paragraph means the termination by the bank of debit transactions on this account within the amount in foreign currency equivalent to the amount in rubles specified in the decision to suspend transactions of the taxpayer-organization on accounts in bank, at the rate of the Central Bank of the Russian Federation established on the date of commencement of the suspension of operations on the foreign currency account of the specified taxpayer. (Paragraph introduced - Federal Law of November 26, 2008 No. 224-FZ)

Suspension of transfers of electronic funds in foreign currency of a taxpayer-organization in the case provided for by this paragraph means the termination by the bank of operations entailing a decrease in the balance of electronic funds, within the amount in foreign currency equivalent to the amount in rubles specified in the decision of the tax authority at the exchange rate of the Central Bank of the Russian Federation, established on the effective date of the suspension of the transfer of electronic funds in foreign currency of the specified taxpayer. (Paragraph introduced - Federal Law dated June 27, 2011 No. 162-FZ)

Suspension of operations of a taxpayer-organization on his account in precious metals in a bank in the case provided for by this paragraph means the termination by the bank of debit transactions on this account within the limits of the value of precious metals, equivalent to the payment amount in rubles specified in the decision to suspend operations of the taxpayer-organization on bank accounts. In this case, the cost of precious metals is determined based on the discount price for precious metals established by the Central Bank of the Russian Federation on the date of commencement of the suspension of transactions on the account in precious metals. (Paragraph introduced - Federal Law dated November 27, 2017 No. 343-FZ)

Is it possible to punish controllers for delaying unlocking?

This possibility exists, because the deadlines for making a decision on unblocking accounts and sending it to the bank are directly stated in Art. 76 Tax Code of the Russian Federation. Violation of these deadlines allows you to recover interest from the Federal Tax Service under clause 9.2 of Art. 76 Tax Code of the Russian Federation. Their payment is due for each calendar day of delay in making/sending a decision to the bank for the amount that was frozen.

In case of illegal blocking, interest is also accrued for the entire period from the moment the bank receives the decision on suspension until it receives the decision on its cancellation.

Interest is calculated based on the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days of delay or illegal blocking.

If there were no funds in the blocked account, then interest is not accrued - resolution of the FAS Moscow District dated 02/13/2013 No. A40-59298/12-99-342, FAS North Caucasus District dated 01/13/2012 No. A53-9126/2011.

Our company’s specialists are ready to advise you on all issues related to promptly unblocking your current account.

Clause 7, Article 76 of the Tax Code of the Russian Federation

The suspension of transactions of a taxpayer-organization on his bank accounts and transfers of his electronic funds is effective from the moment the bank receives a decision of the tax authority to suspend such operations, such transfers and until the bank receives a decision of the tax authority to cancel the suspension of transactions on the accounts of the taxpayer-organization in the bank and transfers of his electronic funds, the decision of the tax authority to lift the suspension of transfers of his electronic funds. (As amended by federal laws dated November 26, 2008 No. 224-FZ; dated June 27, 2011 No. 162-FZ)

When a decision is sent to the bank to suspend transactions on the accounts of a taxpayer-organization in the bank and transfers of its electronic funds in electronic form, the date and time of its receipt by the bank are determined in the manner established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees. (As amended by federal laws dated June 27, 2011 No. 162-FZ; dated June 29, 2012 No. 97-FZ)

If, after making a decision to suspend transactions on the accounts of a taxpayer-organization in a bank, the name of the taxpayer-organization and (or) the details of the account of the taxpayer-organization in the bank, operations on which were suspended by this decision of the tax authority, have changed, this decision is also subject to execution by the bank in relation to a taxpayer-organization that has changed its name, and transactions on an account with changed details. (Paragraph introduced - Federal Law dated July 27, 2010 No. 229-FZ)

If, after a decision was made to suspend electronic money transfers of a taxpayer-organization, the name of the taxpayer-organization and (or) the details of the corporate electronic means of payment of the taxpayer-organization, the transfers of electronic funds using which were suspended by this decision of the tax authority, have changed in the bank, this decision is subject to execution by the bank also in relation to a taxpayer-organization that has changed its name, and electronic money transfers using a corporate electronic means of payment that has changed details. (Paragraph introduced - Federal Law dated June 27, 2011 No. 162-FZ)

Blockage detected. What to do?

Most often, blocking occurs due to non-payment of mandatory payments . At the same time, theoretically, the taxpayer should have a demand from the inspectorate about the need to repay the debt. That is, he must know that arrears have been identified. But in practice this does not always happen. Therefore, information about account blocking often comes as a surprise to the taxpayer. For example, a typical situation: restrictions are imposed on the account due to an underpayment of several rubles.

What should a taxpayer do? As you can see, the Federal Tax Service service provides information about the number of the decision to suspend operations on the account . You should contact your tax office and find out why this decision was made. Mistakes happen, and often. For example, the payment was made on time, but the Federal Tax Service did not receive information about it. By the way, to avoid such misunderstandings, it is recommended to periodically reconcile with the tax authority.

If in the end it turns out that the blocking was not imposed without reason, then the arrears must be paid . It is better to do this voluntarily, but you can wait until the money appears in the account and the amount will be debited automatically.

Grounds for suspending account transactions

The list of grounds for the tax inspectorate to make a decision to suspend transactions on bank accounts, as well as transfers of electronic funds of a taxpayer, is exhaustive, and today it consists of the following points: