Clause 2 of Art. 55 of the Tax Code of the Russian Federation on the peculiarities of the tax period for new organizations

Article 55 Tax period

1. A tax period is understood as a calendar year or another period of time in relation to individual taxes, at the end of which the tax base is determined and the amount of tax payable is calculated.
A tax period may consist of one or more reporting periods. 2. If an organization was created after the beginning of the calendar year, the first tax period for it is the period from the date of its creation to the end of the given year. In this case, the day of creation of the organization is recognized as the day of its state registration. When an organization is created on a day falling within the time period from December 1 to December 31, the first tax period for it is the period from the date of creation to the end of the calendar year following the year of creation. The rules provided for by this paragraph do not apply to determining the first tax period for corporate income tax for foreign organizations that independently recognized themselves as tax residents of the Russian Federation in the manner established by this Code, and whose activities on the date of such recognition did not lead to the formation of a permanent establishment in the Russian Federation .

Article 55. Tax period

If an organization was liquidated (reorganized) before the end of the calendar year, the last tax period for it is the period from the beginning of this year until the day the liquidation (reorganization) was completed. If an organization created after the beginning of a calendar year is liquidated (reorganized) before the end of this year, the tax period for it is the period from the date of creation to the day of liquidation (reorganization). If an organization was created on a day falling within the time period from December 1 to December 31 of the current calendar year, and was liquidated (reorganized) before the end of the calendar year following the year of creation, the tax period for it is the period from the date of creation to the day of liquidation ( reorganization) of this organization.

The rules provided for in this paragraph do not apply to organizations from which one or more organizations are separated or joined. 4. The rules provided for in paragraphs 2 and 3 of this article do not apply to those taxes for which the tax period is established as a calendar month or quarter. In such cases, when creating, liquidating, or reorganizing an organization, changes in individual tax periods are made in agreement with the tax authority at the place of registration of the taxpayer.

5. Repealed 6. If a tax resident of the Russian Federation independently recognizes itself as a foreign organization, the activities of which on the date of such recognition did not lead to the formation of a permanent representative office in the Russian Federation, the determination of the first tax period for corporate income tax is carried out in the manner established by this paragraph. If a foreign organization independently recognized itself as a tax resident of the Russian Federation from January 1 of the calendar year in which it submitted an application to recognize itself as a tax resident of the Russian Federation, the first tax period for corporate income tax for it is the period from January 1 of the calendar year in which the said application has been submitted by the end of this calendar year. If a foreign organization independently recognized itself as a tax resident of the Russian Federation from the date of submission to the tax authority of an application for recognition of itself as a tax resident of the Russian Federation, the first tax period for corporate income tax for it is the period from the date of submission of the specified application to the tax authority until the end of the calendar year , in which the said statement is presented. Moreover, if the application of a foreign organization, specified in paragraph three of this paragraph, to recognize itself as a tax resident of the Russian Federation is submitted on a day falling on the period from December 1 to December 31, the first tax period for corporate income tax for it is the period from the date of submission of the said application to the tax authority before the end of the calendar year following the year in which the said application was submitted.

2. If an organization was created after the beginning of the calendar year, the first tax period for it is the period from the date of its creation to the end of the given year. In this case, the day of creation of the organization is recognized as the day of its state registration.

When an organization is created on a day falling within the time period from December 1 to December 31, the first tax period for it is the period from the date of creation to the end of the calendar year following the year of creation.

The rules provided for by this paragraph do not apply to determining the first tax period for corporate income tax for foreign organizations that independently recognized themselves as tax residents of the Russian Federation in the manner established by this Code, and whose activities on the date of such recognition did not lead to the formation of a permanent establishment in the Russian Federation .

Change in the Tax Code: tax period

If an organization created after the beginning of a calendar year is liquidated (reorganized) before the end of this year, the tax period for it is the period from the date of creation to the day of liquidation (reorganization).

If an organization was created on a day falling within the time period from December 1 to December 31 of the current calendar year, and was liquidated (reorganized) before the end of the calendar year following the year of creation, the tax period for it is the period from the date of creation to the day of liquidation ( reorganization) of this organization.

The rules provided for in this paragraph do not apply to organizations from which one or more organizations are separated or joined.

4. The rules provided for in paragraphs 2 and 3 of this article do not apply to those taxes for which the tax period is established as a calendar month or quarter. In such cases, when creating, liquidating, or reorganizing an organization, changes in individual tax periods are made in agreement with the tax authority at the place of registration of the taxpayer.

5. Lost power

6. If a tax resident of the Russian Federation independently recognizes itself as a foreign organization, the activities of which on the date of such recognition did not lead to the formation of a permanent representative office in the Russian Federation, the determination of the first tax period for corporate income tax is carried out in the manner established by this paragraph.

If a foreign organization independently recognized itself as a tax resident of the Russian Federation from January 1 of the calendar year in which it submitted an application to recognize itself as a tax resident of the Russian Federation, the first tax period for corporate income tax for it is the period from January 1 of the calendar year in which the said application has been submitted by the end of this calendar year.

If a foreign organization independently recognized itself as a tax resident of the Russian Federation from the date of submission to the tax authority of an application for recognition of itself as a tax resident of the Russian Federation, the first tax period for corporate income tax for it is the period from the date of submission of the specified application to the tax authority until the end of the calendar year , in which the said statement is presented.

Moreover, if the application of a foreign organization, specified in paragraph three of this paragraph, to recognize itself as a tax resident of the Russian Federation is submitted on a day falling on the period from December 1 to December 31, the first tax period for corporate income tax for it is the period from the date of submission of the said application to the tax authority before the end of the calendar year following the year in which the said application was submitted.

Distortions in accounting

Some innovations are likely to make things worse for taxpayers. Thus, after August 19, 2017, during desk and field audits, the tax authorities are aimed at identifying distortions in the taxpayer’s accounting and reporting of information about the facts of economic life and objects of taxation. If such facts are revealed, the inspectors will have to recognize the tax benefit as unfounded and deny the taxpayer the right to take into account tax expenses and apply deductions (Clause 1, Article 54.1, Clause 5, Article of the Tax Code of the Russian Federation).

Recommendations for the application of Art. 54.1 of the Tax Code of the Russian Federation, nuances of due diligence. See the analysis of these and other topics in the recordings of Kontur.Conference-2018.

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In paragraph 1 of Art. 54.1 of the Tax Code of the Russian Federation, distortions in accounting, including accounting, and reporting are not actually divided into intentional and unintentional. Moreover, if the distortion is recognized as intentional, that is, aimed at non-payment of tax, the tax liabilities arising as a result of such actions are adjusted in full. One can only hope that in practice, a tax benefit will be recognized as unjustified only in the case of deliberate actions of the taxpayer (letter of the Federal Tax Service of the Russian Federation dated August 16, 2017 No. SA-4-7 / [email protected] ).

Let's explain the situation with an example. During the tax audit of Pervotsvet LLC, two facts of distortion in accounting and reporting were revealed:

The company included in tax expenses the cost of goods purchased under an agreement with a one-day supplier, while the tax authorities proved the formal nature of the transaction, as well as the LLC’s intention to reflect transactions with one-day in accounting for the purpose of understating income taxes.
The company applied a VAT deduction on the transaction in an amount exceeding the amount on the invoice issued by the supplier by 100 rubles. The error arose due to the carelessness of the accountant who reflected the transaction in accounting. However, the tax authority did not establish that the transaction was fictitious.

As a result, the tax authority withdrew the expenses of Pervotsvet LLC for the one-day transaction in full (clause 1), and also refused to deduct VAT for the overstated amount - 100 rubles (clause 2). That is, if the data on the amount of the deduction were distorted, the tax authority did not refuse to apply the deduction in full, since the taxpayer’s intent to understate VAT was not proven.

Contour.VAT+

Verify all information provided on invoices, including discrepancies in VAT number and amount.
Check the reliability of counterparties, as well as the correctness of their TIN. Essential facts about the company are highlighted in the appropriate color:
Red - the company has been liquidated, is in the process of liquidation, or bankruptcy has been reported.
Yellow—facts have been discovered about the company that are worth paying attention to.
Green - signs of activity of the organization over the past 12 months have been found.
Formulate responses to discrepancy requirements.
Check the declaration for errors and compliance with control relations.

To learn more

The rules for determining the tax period have been clarified

The rules provided for in this paragraph do not apply to organizations from which one or more organizations are separated or joined.

5. The clause has lost force since January 1, 2007 - Federal Law of July 27, 2006 N 137-FZ.

A little theory

According to the ideas of the general theory of law, any legal act is valid only for the future, i.e. forward. However, in the presence of certain circumstances and under certain conditions, the new provisions (norms) of a regulatory legal act may be given retroactive effect.

The retroactive effect of a legal norm in time is understood as the extension of its regulatory effect to relations that arose before the official adoption and entry into force of this norm. However, the retroactive force of the law is subject to severe restrictions in legislation and law.

In legal theory, it is generally accepted that a normative legal act does not have retroactive effect (this legal axiom was formulated by ancient Roman jurists). The regulatory document is valid only in relation to those circumstances and cases that arose after its entry into force. This rule is a necessary factor of legal stability: citizens and legal entities must be confident that their legal situation will not be worsened by the entry into force of a new act.

This issue is particularly fundamentally resolved in tax law, and at the level of the Constitution of the Russian Federation.

In accordance with Art. 57 of the Constitution of the Russian Federation: “Everyone is obliged to pay legally established taxes and fees. Laws that establish new taxes or worsen the situation of taxpayers do not have retroactive effect.”

It should be noted that the provision on non-retroactivity of laws is not specific to tax legislation. It is characteristic of many other branches of law (see Article 54 of the Constitution of the Russian Federation, paragraph 2 of Article 4 and Article 422 of the Civil Code of the Russian Federation, Article 6 of the Federal Law of August 3, 2021 No. 289-FZ “On customs regulation in the Russian Federation and introducing amendments to certain legislative acts of the Russian Federation", clause 1 of article 10 of the Criminal Code of the Russian Federation, clause 2 of article 1.7 of the Code of Administrative Offenses, part 3 of article 12 of the Labor Code of the Russian Federation).

The essence of this requirement is that changes made to legislation (primarily tax legislation) should not adversely affect the stability of relations between subjects of law and should not undermine citizens’ confidence in the stability of their legal and economic situation, and in the strength of the rule of law.

The development of this provision is also reflected in the Russian legislation on taxes and fees, in particular, in paragraph 2 of Article 5 of the Tax Code of the Russian Federation - “The validity of acts of legislation on taxes and fees over time”, it is stated:

“Acts of legislation on taxes and fees, establishing new taxes, fees and (or) insurance premiums, increasing tax rates, fees and (or) insurance premium rates, establishing or aggravating liability for violation of legislation on taxes and fees, establishing new obligations or otherwise worsening the position of taxpayers, fee payers and (or) insurance premium payers, as well as other participants in relations regulated by the legislation on taxes and fees, do not have retroactive effect.”

In the science of tax law, there is an opinion that this norm is nothing more than an interpretation of the constitutional expression “worsening the situation of taxpayers.”

In this regard, it should be noted that situations (cases) of deterioration of the taxpayer’s position can be divided into normative ones , i.e. directly provided for by the legislation on taxes and fees, and others that must be determined for each specific situation.

the following to be standard situations (cases) of deterioration of the taxpayer’s situation:

establishment of new taxes, fees and/or insurance premiums;
increases in tax rates, fees and/or insurance premium rates;
establishment of new types of liability for violation of legislation on taxes and fees;
tightening (increase) of already existing (introduced) types of liability for violation of legislation on taxes and fees;
establishment of new obligations of taxpayers, payers of fees and/or payers of insurance premiums, as well as other participants in tax relations.

However, the legislator’s use of the “otherwise” gives reason to believe that the inadmissibility of giving retroactive effect to acts of legislation on taxes and fees that worsen the position of taxpayers and other obligated persons actually concerns such deterioration “in any way .

We also note that it is obvious that the list of possible ways and options for worsening the taxpayer’s situation is formulated as open-ended, which leaves the taxpayer the opportunity to prove the deterioration of his situation in other cases.

Thus, with regard to “other” situations (cases), it can be argued that despite a certain subjective aspect of their assessment, nevertheless, the final conclusions about the nature of certain consequences for the taxpayer and/or other obligated person (“worsening/improving” ), must be done in each specific case independently, based on the specific circumstances of the case.

Commentary on Article 55 of the Tax Code of the Russian Federation

The commented article establishes the concept of a tax period and reporting periods, and also establishes the rules for determining the first tax period for organizations that were created after the beginning or at the end of the tax period, as well as for organizations that were liquidated (reorganized) before the end of the tax period.

The special rules established by Article 55 of the Tax Code of the Russian Federation apply only to organizations. They do not apply to individual entrepreneurs.

This is indicated in the Letter of the Ministry of Finance of Russia dated July 27, 2011 N 03-11-11/195.

The date of occurrence of the obligation to pay tax is the date of the end of the tax period for taxes, the tax period for which consists of several reporting periods, based on the results of which advance payments are made; when deciding on the qualification of claims, the end dates of reporting periods are also taken into account.

This legal position is enshrined in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 24, 2012 N 17331/11.

For the tax period, consider the following example.

The first reporting period for an organization created in December 2015 is the period from the date of registration of the organization to March 31, 2021. Accordingly, if an organization calculates monthly advance payments based on the profit actually received, then the first reporting period in this case will be the period from the date of registration of the organization to January 31, 2021.

The first tax period for corporate income tax for an organization created in December 2015 will be the period from the date of registration of the organization to December 31, 2021.

Federal Law dated February 15, 2016 N 32-FZ added provisions to the commented article on determining the first tax period for corporate income tax when independently recognizing itself as a foreign organization, the activities of which on the date of such recognition did not lead to the formation of a permanent representative office in the Russian Federation, tax authorities a resident of the Russian Federation determines the first tax period for corporate income tax in accordance with the procedure established by this paragraph.

2.1. "Improvement":

Situation 1: the inspection was scheduled after 08/19/2017. The provisions of Article 54.1 of the Tax Code of the Russian Federation, which improve the situation of the taxpayer, may apply to tax periods before August 19, 2021, if these tax periods are subject to a tax audit, which is scheduled after the entry into force of Article 54.1 of the Tax Code of the Russian Federation (i.e. after until August 19 2021).

In fact, taking into account the provisions of paragraph 2 of paragraph 4 of Article 89 of the Tax Code of the Russian Federation that, as part of an on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made, the above provision of Art. .54.1 The Tax Code of the Russian Federation may apply to 2021, as well as to 2014, 2015, 2021.

Situation 2: the inspection is scheduled until 08/19/2017. The provisions of Article 54.1 of the Tax Code of the Russian Federation, which improve the situation of the taxpayer, cannot apply to tax periods before August 19, 2017, if these tax periods are subject to a tax audit, which was scheduled before the entry into force of Article 54.1 of the Tax Code of the Russian Federation (i.e. before August 19 2021).

The above conclusions can be drawn based on the legal position of the Constitutional Court of the Russian Federation, which was made in its rulings dated May 29, 2018 No. 1152-O, dated July 17, 2018 No. 1717-O , which stated that Federal Law No. 163-FZ came into force after 1 month from the date of its official publication, i.e. from August 19, 2021. At the same time, the regulatory provisions governing the general provisions on tax control (Article 82 of the Tax Code of the Russian Federation taking into account Article 54.1 of the Tax Code of the Russian Federation) apply to desk tax audits of tax returns submitted to the tax authority after the day the said Federal Law came into force, as well as on-site tax audits and audits of the completeness of calculation and payment of taxes in connection with transactions between related parties, decisions on the appointment of which were made by tax authorities after the day this Federal Law entered into force and thereby relate to the tax periods covered by these audits.

Also, the Constitutional Court of the Russian Federation indicated that it must be taken into account that the applicant appealed to the Constitutional Court of the Russian Federation with a complaint that the arbitration courts in his case did not allow him to take advantage of the provisions of Article 54.1 of the Tax Code of the Russian Federation, which improved his situation. That is why the Constitutional Court of the Russian Federation recognized that the provisions on the entry into force of Article 54.1 of the Tax Code of the Russian Federation do not in themselves entail violations of the constitutional rights and freedoms of the applicant in the aspect indicated by him (it must be understood, in the aspect of improving his situation).

In this regard, in a number of cases, the approach of the courts (Resolution 13 AAS dated September 13, 2017 No. A56-28927/2016, Decision of the AS SO dated November 23, 2017 in case No. A60-43335/2017) that the provisions of Article 54.1 of the Tax Code of the Russian Federation provide additional guarantees for the protection of the rights of the taxpayer and therefore, taking into account Part 2 of Art. 54 of the Constitution of the Russian Federation have retroactive force, did not stand up to criticism from higher courts.

However, from my point of view, the above conclusion of the Constitutional Court of the Russian Federation is far from indisputable. It turns out that the protection of the taxpayer’s rights depends on the “date of appointment of the audit,” which, in the context of the universality of the provisions of Article 57 of the Constitution of the Russian Federation and Article 5 of the Tax Code of the Russian Federation, is at least strange. Moreover, we do not see any restrictions or additional conditions in the same paragraph 2 of Article 5 of the Tax Code of the Russian Federation.

Maybe the Constitutional Court of the Russian Federation had something different than how we understood it, but so far it looks like this.

We can only hope that, after all, in its “refusal” ruling, the Constitutional Court of the Russian Federation did not try to formulate any final position, and, in the event of consideration of some other specific case at its plenary session, it will justify its position in more detail or even make some other conclusion about this whole not very clear situation.