Repeated tax audit - procedure and cases of carrying out

We will look at when tax authorities conduct a repeat tax audit.

To begin with, you should know that a repeated desk audit has no right to be carried out (Article 88 of the Tax Code of the Russian Federation, Resolution of the Federal Antimonopoly Service of the North-Western District dated September 26, 2008 No. A66-594/2008). But if the company submits a clarification (for example, regarding VAT), then the fiscal authorities can check the same tax period as part of a new cameral.

A repeated on-site inspection can be carried out in two cases (paragraphs 5, 6, paragraph 10, article 89 of the Tax Code of the Russian Federation). Firstly, if the company provides a clarification for the reduction. Secondly, if a higher authority decides to supervise a lower-level inspection and analyze the quality of its inspection. In this regard, it would be useful to understand what risks arise during such control and how to avoid them.

In what cases is a re-inspection carried out?

On-site re-inspection is carried out by these authorities:

• Higher tax authority. A repeat audit is carried out to check the work of the tax authority that carried out the first event.
• The tax authority carrying out the first audit. The event is held only by decision of the authority. It is assigned when the payer sends an updated tax return with a reduced tax amount. The subject of the audit is exclusively the circumstances that led to a reduction in the amount of accrued tax.
• Main tax authority. He can also organize events during the liquidation or reorganization of a company.

As a rule, control activities are carried out by a higher authority.

Content

• Possible grounds for conducting a repeat tax audit
• The regional inspectorate checks the local
• You have submitted an updated tax reduction return
• You are undergoing liquidation or reorganization
• Desk and field tax audits
• How to find out whether there will be a repeat on-site inspection

A repeated tax audit is carried out only for those taxes and periods that have already been audited as part of a regular on-site audit. The rule of two inspections per year no longer applies here - there can be as many of them as you like. So if tax officials have already been to your office twice during the current year, you are not immune from additional visits.

A consoling circumstance is the fact that the inspectorate has only two reasons for repeated inspections. These points are detailed in Article 89 of the Tax Code.

What exactly can be checked

When repeating the event, specialists must comply with these conditions:

• The findings of the courts regarding a current tax return should not be overestimated.
• Only those circumstances that led to the clarification of the tax return are checked. In particular, to reduce accrued taxes.

When carrying out a repeated inspection, violations may be discovered that were not identified during the first event. In this case, sanctions will not be applied to the company. An exception is made for offenses that arose as a result of a conspiracy between the payer and an official representing the tax office (based on paragraph 10 of Article 89 of the Tax Code).

What to do if the results of the previous check are not yet available

Based on the results of the inspection, a report is drawn up. It takes some time to compile it. Is a repeat event held if the results of the previous one are not yet available? Paragraph 10 of Article 89 of the Tax Code of the Russian Federation states that a re-inspection is carried out with the aim of analyzing the productivity, legality and validity of decisions of a lower structure. This approach is confirmed, among other things, by paragraph 5 of Resolution No. 5-P of the Constitutional Court Resolution.

That is, the higher authority does not check the results, but the process of the control event. Therefore, the presence or absence of an act does not matter. Even if the test results are not ready, the subject of the repeated event is present. In addition, the article of the Tax Code of the Russian Federation does not indicate that the second inspection should be carried out based on the results of the first.

Possible grounds for conducting a repeat tax audit

The head of a higher tax authority may decide to check how well the local tax representatives have worked. Such measures help prevent collusion between inspectors and auditees.

It is important to understand that no one will choose you without reason - and if the choice falls on you, it means that the tax office has questions about the legality of your transactions.

The regional inspectorate checks the local

For such an inspection, certain rules apply that must be strictly followed by the inspection, otherwise the visit will violate your rights as a legal entity:

• The commission may include inspectors from the local Federal Tax Service, but it cannot consist entirely of “locals”. Otherwise, the whole meaning and legality of such a check is lost;
• The period that can be re-checked is limited to three calendar years. Inspectors do not have the right to request documents that are four years old or older. For example, if a repeat GNP is carried out in 2021, the commission can analyze documents for 2021, 2021 and 2015. For 2014, documents are considered “closed”;
• You cannot be fined if errors and arrears are discovered. After a thorough audit, tax authorities may discover discrepancies, you may be charged additional tax, but penalties are applicable only if the information was hidden due to collusion with the first inspectors;
• The decision on the first inspection was appealed in court. In this case, new decisions as a result of a repeated GNP should not conflict with the court ruling.

You have submitted an updated tax reduction return

It is possible that for a certain period the tax office has already carried out a tax return on you, and you have submitted an update for the already verified period. In this case, tax officials have the right to come to you with a repeat GNP.

This type of check also has its own characteristics:

• In such a declaration, the tax amount is less than in the primary one. In addition, the tax office will want to check you if in the clarification you declared a larger loss than it was initially;
• The review period is not limited to the last three years. If your return relates to a period outside this time range, the tax office has the right to check it;
• You can only check the data that has been corrected. All non-relevant information will not be considered. For example, you had GNP for income tax for 2021. Later, you brought it to the tax office, where you declared an additional expense. Then the visiting inspection will examine documents only for this expense;
• If at the same time the tax office discovers any errors in a document that is not related to your adjustment, they do not have the right to change the decision based on this data;
• You may have a court decision on your hands on the first inspection. This will not prevent the tax authorities from coming for a second visit, but, as in cases with an audit from a higher-level Federal Tax Service, they cannot overestimate the judicial findings and change the tax burden on the enterprise.

For example, the tax authorities did not recognize your expenses for one of the suppliers, citing the unreality of the transaction with him. You challenged this decision in court. Later, you submit an updated declaration, where you declare even greater expenses for the transaction with this counterparty.

In this case, the commission will come with a second inspection only to check for increased costs. The issue of invalidity of the transaction will no longer be considered.

It is important to know that you can avoid repeated GNP, even if you have submitted an amendment to reduce the tax base. This is possible if you noticed an error and corrected it while it was being identified.

You are undergoing liquidation or reorganization

In these circumstances, tax audits are completely repetitive in terms of the powers of the inspectors and the procedure for conducting them. The inspection is of particular interest in the fact of the merger of an unprofitable and prosperous company. Given the chaos that occurs when reshaping organizations, it is very easy to hide part of the profit in the connecting balance sheet and evade taxes.

Whatever the reason for the inspectors’ visit, you are obliged to facilitate the inspection. This is expressed in the timely (within ten days) provision of the requested documents.

The tax office has the right to request from you:

• Documents that you have already provided to the inspection in original form, but then they were returned to the organization;
• Papers that you once provided during previous audits, but which were lost by the tax authorities due to force majeure;
• Other documents related to the activities of the enterprise.

It should be remembered that the inspection does not have the right to conduct another desk audit using the same data - it does not exist, just as the concept itself does not exist.

In relation to re-inspections, you have the right to challenge the inspection decision, although it is believed that you have little chance of doing so.

How is the check carried out?

The repeated event has a number of restrictions. In particular, only papers related to the calculation and payment of taxes are checked (clause 12 of Article 89 of the Tax Code of the Russian Federation). Specialists can request documents for a period not exceeding 3 years. The repeated nature of the event does not affect the order of its holding.

The results of the second check may not coincide with the results of the first. For example, a higher authority may detect other violations. However, sanctions will not be imposed for them. An exception is the discovery of falsification of the results of the first control event, which arose as a result of a conspiracy between the company and tax representatives. In this case, organizations may impose penalties, arrears, and penalties. The corresponding provision is contained in paragraph 10 of Article 89 of the Tax Code of the Russian Federation.

Can specialists, as part of a repeat event, request papers that were previously provided to inspectors? Paragraph 5 of Article 93 states that a company may not transfer those documents that were previously provided as part of desk and on-site inspections. However, this provision is relevant only for papers that were transferred to the inspection after January 1, 2010 (based on paragraph 15 of Article 7 of Federal Law No. 137 of July 27, 2006).

The inspector has the right to re-request these papers:

• Documents previously submitted in the form of originals, which the company later took back.
• Papers submitted to the inspection that were lost due to force majeure.

The relevant provisions are specified in paragraph 5 of Article 93 of the Tax Code of the Russian Federation. They are relevant for both regular and repeat inspections.

Can a higher authority inspect a company if there is a decision?

Let's consider the situation. An initial event was carried out, based on the results of which a decision was made. It was assessed by the court and entered into legal force. Can a repeat action be carried out by a higher authority in this case? Maybe, but the inspector does not have the right to make decisions that change the conclusions of the judicial act.

The Tax Code of the Russian Federation does not directly prohibit a repeat inspection when the results of the previous one were assessed in court. However, sometimes control measures contradict the Constitution. In particular, this happens when a new decision comes into conflict with a judicial act. The corresponding provision is contained in the decision of the Constitutional Court No. 5-P of March 17, 2009.

Procedure and presentation of results

The repeated nature of the on-site inspection does not affect the general procedure for its conduct and presentation of the results. For more information about this, see What powers does the tax inspectorate have during an on-site tax audit, What is the maximum period for conducting an on-site tax audit, and How should the results of an on-site tax audit be documented.

Decisions on initial and re-inspections may not be the same. During a re-inspection, inspectors may discover violations that were not previously identified. In this case, they will determine the amount of arrears arising due to violations and charge a penalty on it. However, the inspectorate will not be able to fine the organization for newly identified violations. The exception is the case when, during a repeat inspection, inspectors discover that the decision on the previous inspection was falsified as a result of a conspiracy between the organization and the inspectors. In such a situation, the organization will be presented not only with arrears and penalties, but also with penalties. This follows from the provisions of paragraph 7 of paragraph 10 of Article 89 of the Tax Code of the Russian Federation.

Situation: can the inspectorate, when conducting a repeat tax audit, require from the organization documents that have already been submitted to the tax office?

The answer to this question depends on the composition of the documents that are requested during the re-inspection.

As a general rule, an organization is not obliged to re-submit to the inspection documents that have already been transferred to it as part of desk or on-site inspections (clause 5 of Article 93 of the Tax Code of the Russian Federation). But this rule applies only to those documents that were transferred to the inspection after January 1, 2010 (clause 15 of Article 7 of the Law of July 27, 2006 No. 137-FZ). If the documents were submitted to the tax office before the specified date, then during the re-inspection the inspectorate has the right to request them again. If the documents requested during the initial inspection were submitted by the organization after January 1, 2010, the inspectorate does not have the right to demand these documents during the repeated inspection.

In addition, the inspection may re-request:

• documents that were previously submitted to the inspection in the form of originals and then returned to the organization;

• documents that were previously submitted to the inspection, but were lost due to force majeure.

Such features are provided for in paragraph 5 of Article 93 of the Tax Code of the Russian Federation, and they apply to any documents, regardless of the date of their initial submission to the inspectorate.

Situation: can a higher tax authority conduct a repeat inspection in order to monitor the activities of a lower-level inspectorate? The decision on the initial tax audit was assessed by the court. The court's decision entered into legal force.

Answer: yes, it can. At the same time, the inspection does not have the right to make decisions that change the conclusions made in the judicial act.

On the one hand, the Tax Code of the Russian Federation does not prohibit conducting a second audit if the decision on the initial audit was assessed in court.

On the other hand, in some cases, conducting repeated inspections may contradict the Constitution of the Russian Federation. In particular, this will happen if, following a repeat audit, the tax inspectorate revises the results of the initial audit and makes a decision that contradicts the judicial act. This approach is unacceptable. Based on the results of the repeated audit, the tax inspectorate cannot make decisions that change the conclusions made in the judicial act. This does not correspond to the totality of norms prescribed in Articles 46, 57 and 118 of the Constitution of the Russian Federation. This conclusion is confirmed by decisions of the Constitutional Court of the Russian Federation dated March 17, 2009 No. 5-P, FAS North-Western District dated August 11, 2009 No. A05-12796/2008, North Caucasus District dated June 26, 2009 No. A32-27563 /2008-63-426 and Volga District dated March 6, 2008 No. A55-5793/2007.

Thus, a re-examination that does not affect the conclusions already assessed by the court is completely legal. If a re-inspection allows for the possibility of revising decisions assessed by the court, its conduct is unconstitutional (Resolution of the Constitutional Court of the Russian Federation of March 17, 2009 No. 5-P).

Situation: can the inspectorate conduct an on-site inspection at a branch? During the same period, the branch was already inspected as part of a general on-site inspection of the organization.

The answer to this question depends on what taxes the inspectorate checked as part of a general on-site inspection.

If, as part of a general inspection of an organization, the inspectorate conducted a comprehensive audit of all taxes: federal, regional, and local, then the appointment of a separate on-site inspection for the same period for a branch is unlawful (paragraph 4, paragraph 10 and paragraph 5, article 89 of the Tax Code of the Russian Federation ).

If, as part of a general on-site inspection, the inspectorate verified the correctness of the calculation and payment of only certain taxes (for example, federal), then in the future an independent on-site inspection may be assigned to the branch, which will not affect those taxes, the payment of which has already been verified. Such a check is not repeated (paragraph 1, clause 10, article 89 of the Tax Code of the Russian Federation). In arbitration practice there are examples of court decisions confirming the legitimacy of such a conclusion (see, for example, the resolution of the Federal Antimonopoly Service of the North-Western District dated April 27, 2009 No. A56-27517/2008).

Attention: during on-site inspections of branches and representative offices, the tax inspectorate can monitor the correctness of the calculation and payment of only regional and local taxes (paragraph 2, paragraph 7, article 89 of the Tax Code of the Russian Federation).

Verifying the correctness of the calculation and payment of federal taxes in a branch (representative office) is possible only as part of a general audit of the organization. In arbitration practice there are examples of court decisions confirming the legitimacy of such a conclusion (see, for example, the resolution of the Federal Antimonopoly Service of the North-Western District of December 24, 2008 No. A56-11379/2008).

Situation: can the inspectorate, based on the results of a repeated audit of one tax, require an organization to submit an updated declaration for another tax?

Answer: yes, it can.

During a repeated audit for one tax, the inspectorate may discover unrecorded or incompletely reflected information, as well as errors that lead to an underestimation of the amount of another tax. In this case, the organization is obliged to recalculate this tax, reflect the changes in the updated declaration and submit it to the tax office (clause 1 of Article 81 of the Tax Code of the Russian Federation). If the organization does not submit the updated declaration on its own, then the inspection will require this to be done (subclause 8, clause 1, article 31 of the Tax Code of the Russian Federation). Similar explanations are contained in the letter of the Ministry of Finance of Russia dated December 21, 2009 No. 03-02-07/2-209.

Additional questions

Is the right to take an event relevant in relation to the branches of the company if a general inspection has been carried out before? It all depends on what taxes were the subject of the previous procedure. If a comprehensive analysis of all federal, state and local taxes has been ordered, an on-site audit will be illegal. The basis is paragraph 4 of paragraph 10 and paragraph 5 of Article 89 of the Tax Code of the Russian Federation.

If the subject was individual taxes, it is possible to organize an additional on-site event. Its subject is unverified taxes. Such an event is not considered repeated (based on clause 10 of Article 89 of the Tax Code of the Russian Federation).

IMPORTANT! On-site inspections can only concern regional and local payments to the treasury.

Based on the results of an audit of one tax, can an inspector request an updated declaration for another payment? Yes. During the repeated procedure, unrecorded data and errors that underestimate the tax may be discovered. In this case, you need to recalculate the latter. The company itself must submit the updated declaration. Otherwise, the inspectorate will take over the matter. The relevant rules are contained in paragraph 1 of Article 31 of the Tax Code of the Russian Federation and letter of the Ministry of Finance No. 03-02-07/2-209 dated December 21, 2009.

Possible number of re-checks

Even if two events were carried out in a year for different taxes and periods, if there are sufficient grounds, an unlimited number of audits can be carried out.

Decision to conduct an on-site tax audit

A written decision to conduct an on-site tax audit is the main documentary basis that makes these activities truly lawful and legal, eliminating the risk of violations and objections.

Situations often arise when tax inspectors neglect their immediate responsibility for the early preparation and preparation of this decision and its timely delivery to the taxpayer at the place of his registration.

However, these actions constitute a great risk and are a gross violation, which leads to the fact that all results obtained after such an event will be considered invalid, including violations found, objections and other criteria.

The decision to conduct an on-site tax audit can be drawn up and adopted only by the tax inspectorate whose competence falls within the jurisdiction of a particular taxpayer at the place of registration, otherwise there is a risk of violation.

Such documents must contain all the required data and information regarding individuals, legal bodies, as well as individual entrepreneurs - taxpayers.

The list of information may include: data on the location of the object and subject of control, risk and analysis of the subject of inspection and an indication of the composition of individuals who are part of the manager’s inspection group.

The decision to conduct an on-site tax audit at a facility must necessarily contain the information of the manager. It must bear the signature of the head of the tax authority or another person with appropriate authority.

The decision to conduct an on-site inspection of a facility must fully comply with the existing form and provisions established by the Tax Code of the Russian Federation and other rules of law.

Repeated measures during liquidation or reorganization

Repeated inspections during liquidation and reorganization are regulated by paragraph 11 of Article 89 of the Tax Code of the Russian Federation. The procedure is almost completely similar to standard repeated measures. The decision to conduct it is made by the head of the inspectorate to which the company is a member.

Is it possible to schedule a repeat desk audit? No, since its subject is tax reporting. It is impossible to check the same papers twice, without sufficient grounds. The corresponding position is set out in the resolution of the Federal Antimonopoly Service of the North-Western District No. A66-594/2008 dated September 26, 2008. Exceptions are cases when the company has submitted updated reports with a reduced tax amount. The accuracy of the organization's calculations is double-checked by inspectors.

FOR YOUR INFORMATION! Based on the results of the repeated event, as with the standard procedure, a report is drawn up with its results. It indicates the defects found or their absence.

Suspension of on-site tax audit

Suspension of an on-site tax audit, in accordance with the provisions of the Tax Code of the Russian Federation, means a temporary suspension of the actions of the authorized tax authority to conduct research and study of the internal activities of an organization, as well as the selection of documents at the place of inspection.

Suspension of an inspection, as a legal procedure, also has its own permissible deadlines, procedures, rules, criteria, forms and other nuances. A general suspension can be carried out for a period not exceeding six months from the first day of the suspension.

The permissible period may be extended by three additional months in special cases, by order of the manager.

For example, if the tax authority sent a written request to a foreign organization, but, during the established period, for some reason, did not receive a response from the manager at the place of the request.

The exact period for which the suspension is carried out is determined by the order of the head of the tax authority, which takes into account the reasons, objectives, goals, assessments, possibility of risk, and other criteria by which this suspension became necessary.

All acceptable grounds, types, assessment analysis and other criteria are specified in the Tax Code of the Russian Federation, these include:

• actions to request the necessary documents for selection from other persons or bodies, the receipt of which requires a certain time and needs to be extended, for example, LLC declaration, etc.;
• obtaining information from a foreign institution or enterprise on a taxable object;
• carrying out the necessary examinations, assessments, the results and types of which are very important for the competent implementation of inspection and risk control;
• translation of documents and selection, the provision of which was carried out by the taxpayer, into Russian, for example, a declaration of an LLC or a foreign institution, if it is being reorganized;
• other actions, analysis, types, tasks and criteria that occupy a certain time period and lead to the suspension of the inspection of a particular object.

A completed on-site tax audit report for an object, for example, an LLC, must always be handed over to the taxpayer, in accordance with the norms of the Tax Code of the Russian Federation.