Request for taxpayer documents as a tax control tool - Lawyer Susher

The procedure for tax authorities to request documents from taxpayers has remained virtually unchanged since 2011. The only innovation is that tax authorities now do not have the right to repeatedly request documents from the taxpayer about his counterparties if he has already submitted these documents as part of a desk or field tax audit conducted in relation to the taxpayer himself. Let's look at the current procedure.

Tax authorities have the right to request documents from the taxpayer as part of a tax audit of this person (desk or field), as well as during other tax control activities. The procedure for requesting documents in these cases is established by Articles 93 and 93.1 of the Tax Code of the Russian Federation. At the same time, the right of tax authorities to request necessary documents is limited:

the circle of persons in respect of whom such a right is granted;
specific cases directly provided for by the legislation on taxes and fees;
type (nature) of the requested documents.

What documents (information) and from which persons are tax authorities entitled to request?

Persons obliged to submit documents at the request of tax authorities are taxpayers, payers of fees and tax agents

(clause 1 of article 31 of the Tax Code of the Russian Federation).
In addition, documents (information) about the activities of the taxpayer being inspected (fee payer, tax agent) may be requested from its counterparties
or other persons who have these documents or information (Article 93.1 of the Tax Code of the Russian Federation). Such persons may be bodies of state power and local self-government (for example, bodies registering individuals at the place of residence, bar associations of constituent entities of the Russian Federation, bodies responsible for maintaining cadastral records), institutions, organizations and officials specified in Article 85 of the Tax Code of the Russian Federation .

The legislation on taxes and fees provides for four cases

, in which tax authorities have the right to request documents (information):

when conducting a desk tax audit;
during an on-site tax audit;
as part of additional tax control measures provided for in paragraph 6 of Article 101 of the Tax Code of the Russian Federation (during the consideration of a case of a tax offense identified as a result of a tax audit);
if necessary, outside the scope of tax audits.

Documentation

, which the tax authorities have the right to request, can be divided into two types (subclause 1, clause 1, article 31 of the Tax Code of the Russian Federation):

documents serving as the basis for the calculation and payment (withholding and transfer) of taxes and fees. They must be compiled according to approved (unified) forms and (or) executed electronically in established formats;
documents confirming the correctness of calculation and timely payment (withholding and transfer) of taxes and fees.

Please note: the law does not establish restrictions on requesting documents as part of field trips

tax audits.
At the same time, when requesting documents, in all cases there is a restriction on their repeated
request, enshrined in paragraph 5 of Article 93 of the Tax Code of the Russian Federation. This limitation is described in more detail below.

Features of requesting documents during desk tax audits

If a tax authority requests documents as part of a desk tax audit, it is obliged to take into account the restrictions provided for in Article 88 of the Tax Code of the Russian Federation. Thus, as part of a desk audit, the tax authority does not
have the right to request
additional information and documents from the taxpayer, with the exception of documents that:

confirm the taxpayer’s right to use tax benefits (clause 6 of Article 88 of the Tax Code of the Russian Federation);
must, in accordance with the provisions of the Tax Code, be attached to the tax return (calculation) provided that they were not submitted together with this declaration or calculation (clause 7 of Article 88 of the Tax Code of the Russian Federation);
confirm the legality of applying VAT tax deductions, provided that the submitted VAT return declares the right to a tax refund (clause 8 of Article 88 of the Tax Code of the Russian Federation).

Let us recall that the Constitutional Court of the Russian Federation in its Determination No. 266-O dated July 12, 2006 indicated: the provisions of Article 88 and other norms of the Tax Code of the Russian Federation do not oblige the taxpayer, at the same time as filing a VAT return, to submit documents confirming the correct application of tax deductions for this tax. This obligation will arise for the taxpayer from the moment the tax authority receives a request to submit the specified documents.

Features of requesting documents on taxes related to the use of natural resources

When conducting desk tax audits on taxes related to the use of natural resources, tax authorities have the right to additionally request other documents

, which are the basis for the calculation and payment of such taxes (clause 9 of Article 88 of the Tax Code of the Russian Federation). What taxes are we talking about?

The Tax Code does not contain an answer to this question. Let us turn to Article 1 of the Federal Law of January 10, 2002 No. 7-FZ “On Environmental Protection”. It states that natural resources are components of the natural environment, natural objects and natural-anthropogenic objects that are used or can be used in economic and other activities as sources of energy, production products and consumer goods and have consumer value. Based on the above concept of natural resources, we can conclude that the use of natural resources is associated with water tax, mineral extraction tax, land tax, fee for the use of fauna, fee for the use of aquatic biological resources, Unified Agricultural Tax, UTII (in terms of certain types of entrepreneurial activity) and taxes paid upon implementation of an agreement providing for the conditions for the division of produced products in accordance with paragraph 1 of Article 8 of the Federal Law of December 30, 1995 No. 225-FZ “On Production Sharing Agreements”.

Requesting taxpayer documents as a tax control tool

The current tax legislation gives the tax authorities very extensive powers in the field of obtaining information about the economic activities of taxpayers; one of the main tax control measures used by tax inspectorates is the request for documents and information by sending relevant requests and instructions. We will highlight some aspects of the legal regulation of this type of powers of tax authorities in this article.

In accordance with Art. 31 of the Tax Code (Tax Code) of the Russian Federation, tax authorities have the right to demand, in accordance with the legislation on taxes and fees, from a taxpayer, fee payer or tax agent, documents in forms and (or) formats in electronic form established by state bodies and local government bodies, which serve as the basis for calculation and payment (withholding and transfer) of taxes, fees, as well as documents confirming the correctness of calculation and timely payment (withholding and transfer) of taxes, fees.

The Tax Code provides that documents can be requested as part of a tax audit : a tax official conducting a tax audit has the right to request from the person being audited the documents necessary for the audit (Article 93 of the Tax Code of the Russian Federation). Likewise, outside the framework of a tax audit: a tax official conducting a tax audit has the right to request these documents (information) from the counterparty or other persons who have documents (information) relating to the activities of the taxpayer being inspected (fee payer, tax agent). (Article 93.1 of the Tax Code of the Russian Federation).

Let's consider each of these options.

1.) Request for documents as part of a tax audit:

In accordance with Art. 93 of the Tax Code of the Russian Federation, the requirement to provide documents can only be sent by the person conducting the tax audit as part of this tax audit. In accordance with Art. 87 of the Tax Code of the Russian Federation, tax authorities conduct the following types of tax audits of taxpayers, fee payers and tax agents: 1) desk tax audits; 2) on-site tax audits.

In accordance with Art. 88 of the Tax Code of the Russian Federation, a desk tax audit is carried out by authorized officials of the tax authority in accordance with their official duties without any special decision of the head of the tax authority within three months from the date the taxpayer submits a tax return (calculation).

The Ministry of Finance of Russia in Letter dated April 15, 2010 N 03-02-08/24 reports that specified in paragraph 2 of Art. 88 of the Tax Code of the Russian Federation, the period for a desk audit is maximum. In addition, as noted in the Letter of the Ministry of Finance of Russia dated February 18, 2009 N 03-02-07/1-75, since the Tax Code of the Russian Federation does not provide for the extension of a desk tax audit, therefore, the maximum period for its implementation is set at three months from the date of submission to the tax authority tax return (calculation).

The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 10349/09 dated November 17, 2009 in case No. A40-53471/08-118-252, indicated that within the three-month period established for conducting a desk tax audit, the tax authority is obliged to carry out verification activities in relation to the tax authority adopted by it declarations.

Thus, tax legislation directly stipulates that the period of a desk tax audit is limited to three months from the moment the taxpayer submits the relevant declaration, during which control measures can be carried out (including requesting documents).

In accordance with Art. 89 of the Tax Code of the Russian Federation, an on-site tax audit is carried out on the territory (premises) of the taxpayer based on the decision of the head (deputy head) of the tax authority. An on-site tax audit cannot last more than two months . This period may be extended up to four months , and in exceptional cases - up to six months . During this time, tax officials must carry out all tax control activities.

Carrying out tax control activities outside the on-site audit period in some cases leads to the fact that the evidence obtained during these activities is considered unacceptable (clause 4 of Article 101 of the Tax Code of the Russian Federation). According to paragraphs. 11 clause 1 art. 21 of the Tax Code of the Russian Federation, taxpayers have the right not to comply with unlawful acts and demands of tax authorities, other authorized bodies and their officials that do not comply with the Tax Code of the Russian Federation or other federal laws.

Accordingly, requests for the provision of documents sent by tax authorities outside the period for conducting a desk or field tax audit, in the absence of a decision on additional tax control measures adopted in accordance with clause 6 of Art. 101 of the Tax Code of the Russian Federation are illegal.

Clause 7 of Art. 88 of the Tax Code of the Russian Federation provides that when conducting a desk audit, the tax authority does not have the right to request additional information and documents from the taxpayer, unless otherwise provided by this article of the Code or if the submission of such documents along with the tax return is not provided for by the Code. Thus, when conducting a desk audit, the tax authority has the right to request additional information and documents from the taxpayer only in the cases provided for in Art. 88 Tax Code.

The list of such cases is established by paragraphs 6, 8, 9, 11 of Art. 88 Tax Code of the Russian Federation:

documents confirming the right of taxpayers to tax benefits
documents confirming, in accordance with Article 172 of the Tax Code of the Russian Federation, the legality of applying tax deductions.
documents that serve as the basis for the calculation and payment of taxes related to the use of natural resources
when conducting a desk tax audit of the tax return (calculation) for corporate income tax, personal income tax of a participant in an investment partnership agreement, information about the period of his participation in such an agreement, about his share of the profits (expenses, losses) of the investment partnership.
when conducting a desk tax audit on a consolidated group of taxpayers

According to paragraph 12 of Art. 89 of the Tax Code of the Russian Federation, when conducting an on-site tax audit, the taxpayer may be required to submit the documents necessary for the audit in the manner prescribed by Art. 93 Tax Code of the Russian Federation. In accordance with Art. 93 of the Tax Code of the Russian Federation, the requirement to submit documents can be transferred to the head (legal or authorized representative) of an organization or an individual (his legal or authorized representative) personally against signature or transmitted electronically via telecommunication channels. If the request for the submission of documents cannot be transmitted using the specified methods, it is sent by registered mail and is considered received after six days from the date of sending the registered letter.
Documents that were requested during a tax audit are submitted within 10 days (20 days for a tax audit of a consolidated group of taxpayers) from the date of receipt of the corresponding request.

If the taxpayer does not submit the requested documents, or does not submit them within the established time limits, then this is recognized as a tax offense, which entails liability under Art. 126 of the Tax Code of the Russian Federation (two hundred rubles for each document not submitted). In addition, in this case, the tax official conducting the tax audit has the right to seize the necessary documents in the manner prescribed by Art. 94 of the Tax Code of the Russian Federation (clause 4 of Article 93 of the Tax Code of the Russian Federation).

During a tax audit or other tax control activities, tax authorities do not have the right to request from the person being inspected documents that were previously submitted to the tax authorities during desk or field tax audits of the person being inspected. This restriction does not apply to cases where documents were previously submitted to the tax authority in the form of originals, which were subsequently returned to the person being inspected, as well as to cases where documents submitted to the tax authority were lost due to force majeure (clause 5 of Article 93 of the Tax Code of the Russian Federation ).

2.) Request for documents outside the scope of a tax audit

If a tax audit is not carried out, but the tax authorities need to obtain information regarding a specific transaction, then the tax authority official has the right to request this information from the participants in this transaction or from other persons who have information about this transaction.

Based on Art. 93.1 of the Tax Code of the Russian Federation, tax authorities may request any previously unsubmitted documents regarding a specific transaction. List of documents that the tax authority has the right to request in accordance with Art. 93.1 of the Tax Code of the Russian Federation, is not limited by the legislator. At the same time, in Art. 93.1 of the Tax Code of the Russian Federation there are no restrictions on obtaining information outside of verification and for the period to which this information relates.

In paragraph 3 of Art. 93.1 of the Tax Code of the Russian Federation establishes that the tax authority carrying out tax audits or other tax control activities sends a written order to request documents (information) relating to the activities of the taxpayer being inspected (fee payer, tax agent) to the tax authority at the place of registration of the person who the specified documents (information) must be requested.

At the same time, the order indicates during which tax control event the need to submit documents (information) arose. And when requesting information regarding a specific transaction, information that allows it to be identified is also indicated.

Judicial practice proceeds from the fact that in this case it is mandatory to indicate in the order to request documents (information) to obtain information on a specific transaction information that makes it possible to identify this transaction. If the requirement to provide documents (information) does not contain indications of a specific transaction regarding which information is requested, such a requirement is illegal. (Resolution of the Federal Antimonopoly Service of the North-Western District dated March 10, 2010 N A56-41688/2009, Determination of the Supreme Arbitration Court of the Russian Federation dated June 11, 2010 N VAS-7438/10).

Requesting documents is an extremely important power of the tax authorities and one of the most effective tax control measures, both in terms of frequency of use and in terms of obtaining the information necessary for the tax authorities. Taxpayers should approach the issue of providing documents to tax authorities with special attention, since the requirements of tax authorities are not always legal and enforceable.

Requirement to submit documents (information)

The form of the request for the submission of documents (information) was approved by order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/ [email protected] It is used when requesting documents as part of a tax audit (desk or field) in relation to the taxpayer himself (payer of fees) , tax agent), and when requesting documents (information) about his counterparties in the manner prescribed by Article 93.1 of the Tax Code of the Russian Federation.

The request must include detailed information

, allowing you to identify the requested documents and determine their quantity. Such data, in particular, are:

simultaneous indication of the name of the document and its details (date of preparation, number, name of the organization or surname, name, patronymic of the person on whose behalf the document was drawn up);
simultaneous indication of the name of the document and its other individualizing features. If the law provides for maintaining (filling out) a specific document for a certain period of time (such as a purchase book or a sales book), as another individualizing feature of the document, the request may indicate the period to which the document relates.

If documents or information relating to relations with a counterparty are requested, the request must additionally indicate:

name of the person (counterparty) about whom information is requested, his tax identification number and checkpoint;
tax control event, during which there was a need to request documents (information);
details of the order of the relevant tax authority (the tax authority conducting the inspection of the counterparty itself) to request documents (information). A copy of this order to request documents (information) must be attached to the request for the submission of documents (information) sent to the taxpayer (clause 4 of Article 93.1 of the Tax Code of the Russian Federation).

Rights and obligations of tax authorities when requesting information about a taxpayer

The rights of tax authorities are set out in Article 31 of the Tax Code of the Russian Federation, which contains a voluminous list of rights when conducting tax control activities (in particular tax audits).

In relation to the procedure for requesting documents (information) about a taxpayer, fee payer or tax agent or a specific transaction, tax authorities have the right, if necessary, to familiarize themselves with the originals of the requested documents. If such a measure is applied as part of an on-site tax audit, then familiarization with the originals of such documents is carried out strictly on the territory of the taxpayer being inspected (see Article 89 of the Tax Code of the Russian Federation).

It is worth noting that the Tax Code of the Russian Federation does not provide for the obligation of tax authorities to return copies of documents about the taxpayer submitted to their request (see Letter of the Federal Tax Service of Russia dated 12.07.2007 № 03-02-07/1-327).

Original documents, copies of which were provided by the person being inspected to the tax authority, may be seized by the latter on the basis of Article 94 of the Tax Code of the Russian Federation (but only in cases expressly provided for in paragraph 8 of Article 94 of the Tax Code of the Russian Federation).

The tax authority is obliged in its request to indicate the detailed name and number of documents requested from the taxpayer related to the subject of the audit, because the amount of the fine for failure to submit a document is imposed for each document not submitted by the taxpayer, and in the aggregate consists of the total number of documents not submitted.

Methods of serving a request for documents (information)

The requirement to submit documents can be served on the head (legal or authorized representative) of an organization or an individual (his legal or authorized representative) in person against signature or transmitted electronically via telecommunication channels (clause 1 of Article 93 of the Tax Code of the Russian Federation).

The procedure for sending a request for the submission of documents (information) and the procedure for submitting documents (information) at the request of the tax authority in electronic form via telecommunication channels were approved by Order of the Federal Tax Service of Russia dated February 17, 2011 No. ММВ-7-2/ [email protected]

If the request for the submission of documents cannot be delivered to the taxpayer in person or transmitted electronically, it is sent to him by registered mail and is considered received after six days from the date of sending the registered letter (clause 1 of Article 93 of the Tax Code of the Russian Federation). Let us recall that until September 2, 2010, when requesting documents as part of a tax audit of the taxpayer (fee payer, tax agent), the only acceptable way to send this request was exclusively by delivering it. At the same time, when requesting documents from counterparties, it was necessary to send such a request, that is, hand it over in person or send it by mail.

Form for submitting required documents

The current tax legislation of the Russian Federation, in addition to the procedure and grounds for submitting additional documents within the acceptable time frame, also establishes the possible forms in which these papers can be submitted.

The most common forms are written, with a personal visit to the tax authorities, and electronic. The written form allows the transfer of absolutely any documents required by the tax authorities. The electronic form, in turn, only applies to certain types of tax papers.

The taxpayer can send documents included in the list of acceptable documents in electronic form, if these documents comply with all established requirements and provided formats.

In addition, the electronic form of submission also requires the presence of an appropriate electronic signature. As a rule, an electronic signature at an enterprise or institution is assigned to accounting employees or other authorized persons. They are the ones who can transfer the electronic document to the tax authority that requested it.

Mandatory written form is established for certain documents, the list of which was approved by the relevant regulatory legal act.

This means that the legal transfer of this document can be carried out only by visiting the relevant tax office within the prescribed period.

In cases where a certain document provides for the possibility of its submission to the tax authorities in electronic form, but it was compiled and executed without complying with established formats, the only available form of transmission will remain written.

If the usual form of document submission was chosen, the taxpayer personally, or through his official representative or tax agent, must submit the document to the appropriate department of the tax inspectorate within the prescribed period. At the same time, he must be given a mark of acceptance of the document, which can confirm its timely submission.

Submission of requested documents

Documents that were requested during an on-site or desk tax audit (that is, in accordance with Article 93 of the Tax Code of the Russian Federation) must be submitted to the tax authority within 10 days

from the date of receipt of the corresponding request (clause 3 of article 93 of the Tax Code of the Russian Federation).

A person who has received a request to provide documents (information) about a counterparty is obliged to fulfill it within five days

from the date of receipt (clause 5 of article 93.1 of the Tax Code of the Russian Federation). If the specified person does not have the requested documents (information), he must inform the tax authority about this within five days from the date of receipt of the request.

How to obtain a deferment in the submission of requested documents

Often the volume of requested documents is so large that the taxpayer does not have time to submit them within the established 10-day or 5-day period. In such a situation, he has the right to apply for a deferment. To do this, during the day following the day of receipt of the request to submit documents (information), it is necessary to notify officials of the tax authority in writing about the impossibility of submitting documents within the established time frame. In addition, you should indicate the reasons why the requested documents cannot be submitted within the agreed time frame, and indicate the time frame when the taxpayer will be able to submit them (clause 3 of Article 93 and clause 5 of Article 93.1 of the Tax Code of the Russian Federation).

Within two days from the date of receipt of such notification, the head (deputy head) of the tax authority has the right to extend the deadline for submitting documents or refuse to extend the deadline. The decision made is documented in the appropriate document and brought to the attention of the taxpayer.

When considering the issue of extending the deadline for submitting documents, the head (deputy head) of the tax authority takes into account the following factors:

the reasons indicated by the taxpayer for which he cannot submit the requested documents within the established time frame;
volume (number) of requested documents (taking into account the practice of submitting documents by this taxpayer during previous tax audits);
the deadlines proposed by the taxpayer within which he will be able to submit the specified documents;
facts of improper fulfillment of duties by the taxpayer during this tax audit and previous audits.

Please note: even if the head (deputy head) of the tax authority decides to extend the deadline for submitting documents, he is not obliged to provide a deferment for exactly the period requested by the taxpayer.

If the on-site tax audit is suspended

The head (deputy head) of the tax authority has the right to suspend the conduct of an on-site visit

tax audit to obtain information from foreign government bodies, translate documents drawn up in foreign languages into Russian, request documents from counterparties of the inspected person, conduct examinations and other necessary activities.

During the period for which an on-site tax audit is suspended, the tax authority does not have the right to request any documents from the taxpayer being audited (clause 9 of Article 89 of the Tax Code of the Russian Federation). Moreover, the tax authority is obliged to return to this taxpayer all original documents requested during the audit (with the exception of documents received during the seizure) and to suspend all its actions on the territory and premises of the taxpayer related to the tax audit.

Thus, during the period of suspension of the on-site tax audit, the deadline for fulfilling the requirement to submit documents (information), which had not expired at the beginning of the suspension, is also suspended until a decision is made to resume the on-site tax audit.

If the deadline for a tax audit has expired

Let’s say that the taxpayer under audit (fee payer, tax agent) received a request to submit documents (information) shortly before the end of the office or field visit.

tax audit. If by the time the tax audit is completed, the deadline for submitting documents specified in the request has not yet expired, after completion of the audit such requirement is not subject to execution.

Similarly, a taxpayer (fee payer, tax agent) in respect of whom a tax audit is being conducted has the right not to comply with the requirement to submit documents (information) in the following cases:

if the tax authority requests documents to conduct a desk tax audit, but the deadline for conducting this audit has already expired;
if the deadline for conducting an on-site tax audit established in paragraph 6 of Article 89 of the Tax Code of the Russian Federation has expired. An on-site tax audit cannot last more than two months. This period may be extended to four months, and in exceptional cases - to six months.

In what form and how to submit documents

The requested documents can be submitted to the tax authority in person or through a representative, sent by registered mail or transmitted electronically via telecommunication channels (TCS). This is stated in paragraph 2 of Article 93 of the Tax Code of the Russian Federation. In any of the listed ways, documents (information) are also provided by those persons from whom information about their counterparties is requested (paragraph 3, paragraph 5, article 93.1 of the Tax Code of the Russian Federation).

Submission of documents on paper.

In response to a request for the submission of documents (information), the taxpayer (payer of fees, tax agent) transfers to the tax authority not the originals, but
certified copies of
the requested documents. Copies of documents are certified by the person being verified (the person from whom information about the relationship with the counterparty is requested). If necessary, the tax authority has the right to familiarize itself with the original documents (paragraph 5, paragraph 2, article 93 of the Tax Code of the Russian Federation).

Let us note that before September 2, 2010, directly in paragraph 2 of Article 93 of the Tax Code of the Russian Federation it was indicated how organizations

copies of documents submitted to the tax authority should have been certified. Copies of documents were certified by the signature of the head (deputy head) or other authorized person and the seal of the organization. Despite the exclusion of this norm from the Tax Code of the Russian Federation, nothing has changed in the procedure for certifying copies of documents submitted at the request of the tax authority. Moreover, a similar rule on how organizations can certify copies of documents has been preserved in the form of a requirement to submit documents (information).

As before, tax authorities cannot require that copies of submitted documents be certified by a notary if such certification is not provided for by the legislation of the Russian Federation (paragraph 2, paragraph 2, article 93 of the Tax Code of the Russian Federation).

Submission of documents in electronic form.

If the documents requested from the taxpayer (payer of fees, tax agent) are compiled in electronic form in established formats, he can send them to the tax authority in electronic form using the TKS (paragraph 3, paragraph 2, article 93 of the Tax Code of the Russian Federation). This opportunity became available on September 2, 2010. At the same time, established formats should be understood as formats of documents in electronic form, which are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, that is, the Federal Tax Service of Russia.

As soon as the Procedure for sending a request for the submission of documents (information) and the Procedure for submitting documents (information) at the request of the tax authority in electronic form via telecommunication channels, approved by order of the Federal Tax Service of Russia dated February 17, 2011 No. ММВ-7-2/ [email protected] , will come into force and formats of documents in electronic form will be established, taxpayers will be able to choose the method of submitting the requested documents - on paper (in the form of certified copies) or in electronic form. Moreover, it is the taxpayer (fee payer, tax agent) who will have the choice. Tax authorities do not have the right to require a taxpayer (fee payer, tax agent) to submit documents exclusively in electronic form.

note

How to certify a copy of a multi-page document?

The Tax Code does not provide a direct answer to this question. Based on the practice of tax authorities, there are two acceptable options for certifying copies of multi-page documents:

certify each page of a copy of such document;
stitch the entire document, number all its sheets sequentially and certify the document as a whole (indicating the total number of sheets in the stitched bundle).

However, when choosing the second option, you should take into account the thickness of the pack, the quality of the paper and the strength of the material used for stitching (twine, twine, etc.). After all, tax officials will work with a copy of such a document, including familiarizing themselves with its contents, copying or scanning it. Thus, when flashing a copy of a multi-page document, you must:

ensure the ability to freely read all the details of the document (including resolutions, visas and other notes in the margins);
exclude the possibility of mechanical destruction (unstitching) of the stitched pack when working with it;
provide the ability to freely copy (scan) each sheet of a document in a stitched bundle

However, taxpayers will be able to submit the required documents in electronic form (for example, invoices) only after the procedure for issuing and receiving invoices electronically via TKS using an electronic digital signature (EDS) has been approved and comes into effect. This procedure should be established by the Ministry of Finance of Russia (clause 9 of Article 169 of the Tax Code of the Russian Federation).

(Article 93.1 of the Tax Code of the Russian Federation)

As noted at the very beginning of the discussion on the topic of requesting documents (information) about the taxpayer, payer of fees, payer of insurance premiums and tax agent or information about specific transactions, the procedure for completing the request procedure is regulated by Article 93.1 of the Tax Code of the Russian Federation.

The need to request documents (information) about the taxpayer arises when considering the materials of a tax audit and on the basis of the decision of the head of the tax inspectorate, who appointed additional tax control measures.

As already noted at the beginning of the topic under consideration, the tax authority must send an order to request documents and information about a taxpayer or a specific transaction to the tax office at the place of registration of the taxpayer, which carries out a tax audit. From the moment of receipt of such an order, the tax inspector is obliged to send the audited taxpayer a request for documents (information) within five days. The request must be accompanied by a copy of the order to request documents (information).

Often, tax authorities serve a demand for documents (information) against the signature of the taxpayer to whom such a demand is addressed. Article 93 of the Tax Code of the Russian Federation does not contain any special instructions on the method of serving a demand on the taxpayer.

In accordance with the tax legislation of the Russian Federation, a document sent by the tax authority by post is considered received six days from the date of its sending, and this rule applies only in cases specifically specified by the Tax Code of the Russian Federation (see, for example, paragraph 3 , paragraph 3 of Art. 46, paragraph 5, article 68, paragraph 2, paragraph 6, article 69, paragraph 2, paragraph 5, article 100 of the Tax Code of the Russian Federation ). Article 93 of the Tax Code of the Russian Federation does not contain such a clause.

The taxpayer, having received such a requirement, is obliged to fulfill it within five working days, or within the same period can report the impossibility of submitting the requested documents (information), as stated in clause 5 of Article 93.1 of the Tax Code of the Russian Federation. The tax authority has the right to extend the deadline for submitting the requested documents on the basis of a corresponding application from the taxpayer. Documents required by the tax authority are provided by the taxpayer in the form of certified copies, including the signature of the head of the legal entity being inspected by the taxpayer and a seal.

The requested documents (information) are provided to the tax authority either personally by the taxpayer being verified or through a representative, and are also sent by registered mail. Tax legislation allows for the submission of requested documents (information) in electronic form via telecommunication channels or through the taxpayer’s personal account.

If the taxpayer provides documents on paper, he must submit to the tax authority copies of the requested documents certified by the taxpayer being audited. It is not legal for the tax authority to require the submission of notarized copies of the requested documents. The sheets of documents submitted on paper are numbered and stitched in accordance with the requirements contained in Letters of the Federal Tax Service of Russia dated 02.08.2005 No. 01 2 04/1087 and the Ministry of Finance of the Russian Federation dated 01.02.2010 No. 03 02 07/1-35.

If the taxpayer provides the requested documents in electronic form, they must be sent via telecommunication channels or through the taxpayer’s personal account. The requested documents prepared by the taxpayer on paper can be scanned and submitted to the tax authority in electronic form and also through telecommunication channels or through the taxpayer’s personal account. If the taxpayer sends the requested documents prepared in electronic form to the tax authority, they must be certified with an electronic digital signature of the taxpayer being checked or his representative. After receiving copies of the requested documents from the taxpayer, the tax authority is obliged to check them for presence and content, and, if necessary, has the right to familiarize itself with the originals of such documents. By the way, according to Letter No. 03 02 07/1-327 of the Federal Tax Service of Russia dated July 12, 2007, the tax authority is not obliged to return to the taxpayer the copies of the requested documents submitted by it.

It should be noted that unlawful failure to report (untimely reporting) of the requested information may be considered a tax offense and may entail liability for the taxpayer in accordance with Article 129.1 of the Tax Code of the Russian Federation (see paragraph 2, paragraph 6, Article 93.1 of the Tax Code of the Russian Federation).

Order of the Federal Tax Service of Russia dated December 25, 2006 No. SAE-Z-06/ [email protected] “On approval of document forms used when conducting and processing tax audits; Grounds and procedure for extending the period for conducting an on-site tax audit; The procedure for interaction between tax authorities in carrying out orders to request documents; requirements for drawing up a tax audit report" determines the procedure for interaction between tax authorities in carrying out orders to request documents (information) about a taxpayer.

Responsibility for failure to provide requested documents

Responsibility of the person being inspected.

Refusal of the audited person (taxpayer, payer of fees, tax agent) to submit
documents
requested during a tax audit, or failure to submit these documents within the established time frame is recognized as a tax offense (clause 4 of Article 93 of the Tax Code of the Russian Federation). For committing such an offense, liability is provided in the form of a fine in the amount of 200 rubles. for each document not submitted (clause 1 of Article 126 of the Tax Code of the Russian Federation).

Since a fine is levied for each document not submitted, the taxpayer (fee payer, tax agent) is held accountable only if the exact number of documents requested can be clearly established from the requirement to submit documents (information). Otherwise (for example, if the wording in the request does not allow one to accurately determine which documents are being requested), the taxpayer cannot be held liable under paragraph 1 of Article 126 of the Tax Code of the Russian Federation.

Refusal of the audited taxpayer (fee payer, tax agent) to provide additional information and explanations

, drawn up in any form in the form of various calculations, lists, lists, summary tables, etc., as well as their untimely submission cannot be the basis for bringing the taxpayer to tax liability on the basis of paragraph 1 of Article 126 of the Tax Code of the Russian Federation.

Responsibility of the counterparty.

Failure to provide the tax authority with information about the taxpayer, expressed in the refusal
of the organization

documents
in its possession containing information about another taxpayer, entails a fine of 10,000 rubles. (clause 2 of article 126 of the Tax Code of the Russian Federation). A fine of 10,000 rubles. Penalties are also imposed for evading the submission of specified documents or submission of documents with knowingly false information. These liability measures apply to counterparties - legal entities from whom the tax authority requests documents on the activities of another audited taxpayer (payer of fees, tax agent) in accordance with Article 93.1 of the Tax Code of the Russian Federation.

of information by a counterparty or other person

about the activities of the inspected taxpayer (payer of fees, tax agent), which in accordance with the Tax Code of the Russian Federation he must report to the tax authority, entails liability in the form of a fine in the amount of 5,000 rubles. (clause 1 of article 129.1 of the Tax Code of the Russian Federation). For repeated commission of the same offense within a calendar year, an increased fine is provided - 20,000 rubles. (clause 2 of article 129.1 of the Tax Code of the Russian Federation).

Administrative responsibility.

In addition to the liability provided for in the Tax Code of the Russian Federation, officials (usually the head) of the offending organization are also subject to administrative liability.
They can be fined from 300 to 500 rubles. (Part 1 of Article 15.6 of the Code of Administrative Offenses of the Russian Federation). The specified fine is collected for failure to submit to the tax authorities within the prescribed period (refusal to provide, provision in incomplete or distorted form) documents and (or) other information
necessary for tax control. Consequently, this measure of administrative liability is applied both in a situation where the requested documents were not provided by the taxpayer being inspected (fee payer, tax agent), and in a situation where the requested documents or information were not provided by the counterparty or other person in possession of such documents (information).

Rights and obligations of the taxpayer when requesting documents

Considering the rights of a taxpayer, we can come to the conclusion that the Tax Legislation as such does not contain any grounds for refusing to comply with the requirement to obtain documents. However, the taxpayer has the right to refuse to provide the tax authority with those documents that are not related to the subject of the audit. Impose a fine on the taxpayer under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, in this case the tax authority will not succeed . Also, the taxpayer has the right not to comply with the request of the tax authority if the exact number of requested documents is not specified. But such “rights” can rather be called the ability of the taxpayer to justify his refusal to comply with the received requirement, since the current Tax Code of the Russian Federation contains quite strict requirements for the execution of demands, instructions and requests from tax authorities, non-compliance with which may affect the result of a tax audit.

The main responsibility of the taxpayer, upon receiving any request from the tax authority to provide documents, is its execution. The Tax Code does not contain any grounds for not complying with such a requirement. In turn, clause 1 of Art. 126 of the Tax Code of the Russian Federation provides for the liability of the taxpayer for failure to provide the requested documents: 50 rubles. for each document not submitted, and 5,000 rubles. – for refusing their representation in general.

Restrictions on re-requesting documents

Starting from 2010, during a tax audit and other tax control activities, tax authorities do not have the right to re-request from the person being inspected documents that he has already submitted to the tax authorities during the investigation against him.

desk or field tax audits (clause 5 of article 93 of the Tax Code of the Russian Federation). The restriction does not apply to two situations:

if the inspected person submitted original documents to the tax authority, which the tax authority subsequently returned to the inspected person;
if the documents submitted to the tax authority were lost due to force majeure circumstances.

From January 1, 2011, the restriction on re-requesting documents also applies to documents that, at the request of the tax authority, are submitted by counterparties and other persons who have documents about the taxpayer being inspected (paragraph 3, clause 5, article 93.1 of the Tax Code of the Russian Federation). This restriction applies to documents submitted to the tax authorities after January 1, 2011.

Consequently, in 2011, a counterparty or other person who has documents on the activities of the taxpayer being inspected has the right not to submit documents at the request of the tax authority, if the counterparty has already submitted these documents as part of a desk or field tax audit conducted in relation to the counterparty itself as a taxpayer

(payer of fees, tax agent). It turns out that the restriction on re-requesting documents does not apply to cases where documents were previously submitted to the tax authority upon a request issued in accordance with Article 93.1 of the Tax Code of the Russian Federation.

At the same time, the category of counterparties and other persons who have documents (information) about the activities of the taxpayer being audited (payer of fees, tax agent) is quite artificial. Apart from Article 93.1 of the Tax Code of the Russian Federation, it is not mentioned in other articles of the Tax Code, that is, it is rather of a technical nature and was used for the convenience of presenting this norm. Therefore, this category can be reduced to the following groups of persons:

taxpayers (payers of fees, tax agents);
bodies of state power and local self-government (for example, bodies that register individuals at the place of residence, bar associations of constituent entities of the Russian Federation, bodies responsible for maintaining cadastral records), institutions, organizations and officials specified in Article 85 of the Tax Code of the Russian Federation.

Thus, in the author’s opinion, in order to apply the restriction on re-requesting documents, the quality in which the person who has already submitted the requested document was not important - whether he presented the documents as an inspected person or as a counterparty about another inspected taxpayer.

We provide reporting: for how long?

In accordance with the Tax Code, the taxpayer is required to store the documents used to prepare tax reports for 1095 days from the date of their submission. The category of such documents includes:

primary papers
accounting registers
documents with financial statements
and other documents that record the calculation and payment of taxes, the maintenance of which is provided for by law/li>

After the 1095th day, even documents that have not been destroyed cannot form the basis for a decision by the tax commission, and therefore there is no point in storing them longer than required. The only exceptions are cases when the “expiration date” of documents expires during an appeal against a decision made on them or during a trial. In this case, it is worth postponing the procedure for destroying documents and waiting for a possible tax audit.

When planning to get rid of any papers, check whether you will need them for a tax audit

Extension of tax audit

In general, an on-site tax audit lasts 2 months. In some cases, this period can be increased to 4 months, and in accordance with paragraph 6 of Art. 89 of the Tax Code of the Russian Federation – up to 6 months. But there must be good reasons for this.

The Federal Tax Service of Russia dated December 25, 2006 N SAE-3-06/ [email protected] names the following circumstances as grounds for extending the inspection period:

conducting audits of major taxpayers
obtaining, during an on-site (repeated on-site) tax audit, information that indicates that the taxpayer has violated the legislation on taxes and fees and requires additional verification
the presence of force majeure circumstances (flooding, flooding, fire, etc.) in the territory where the inspection is being carried out.

Checking general documents

The list of general documents that need to be requested, checked and analyzed during the inspection is given in the Methodological recommendations for organizing on-site inspections of insurance premium payers, approved by order of the Pension Fund of Russia board of May 11, 2010 No. 127R. The list is quite impressive.

Constituent documents are necessary in order to determine whether the audited preferential activities (IT companies, organizations of disabled people, etc.) apply. Also, based on the constituent documents, controllers will study the procedure for paying dividends (they, as is known, are not subject to insurance contributions, since they are not related to either labor or civil law relations (Article 7 of Law No. 212-FZ)).

In addition, the name of the company and its address will be checked based on the constituent documents.

The accounting policy in force during the reporting period is necessary to establish a list of documents on the basis of which accounting is kept, as well as accounting and tax accounting registers. During an inspection, inspectors may request them.

Calculations of accrued and paid insurance premiums for compulsory pension and health insurance for the period under review. Controllers will verify the information contained in the reports and also compare it with the available primary documents.

Special rules
Law No. 212-FZ does not say what specific documents will be required from the person being inspected to conduct an on-site inspection. However, it has been determined that fund employees have the right to request documents an unlimited number of times. While during tax on-site audits, officials cannot request documents that have already been submitted.

Books of accounting of income and expenses and business transactions for the audited period. As you know, “simplified workers” have been paying insurance premiums for compulsory insurance since 2010, so these register books will confirm the accrual and payment of remuneration to employees who have entered into employment or civil law contracts with an employer company that uses the simplified tax system.

The accounting statements of the payer of insurance premiums for the audited period are necessary to compare information about the company's debt to extra-budgetary funds reflected in the balance sheet and reports to the funds. Also, we should not forget that the financial statements include annual reports, explanatory notes to them, and audit reports. From these documents you can glean a lot of useful information about payments to staff along with accruals. For example, a component of information about related parties disclosed in the explanatory note to the financial statements in accordance with PBU 11/2008 “Information about related parties” is information on payments to key management personnel and accruals for these payments (clause 12 of PBU 11/2008) .

Accounting and tax registers for the audited period, including general ledgers, business transaction journals, order journals, statements, analytical cards. The controllers will request all of these documents, drawing a list of them from the accounting policy and relying on the standard document flow that is formed with the automated method of accounting. In these registers, auditors will study and analyze information in search of methods to avoid charging insurance premiums (“salary schemes”).

Employment contracts - first of all, dates of employment, as well as salaries, allowances and bonuses are checked. This information is necessary to verify the completeness of accrual and timely transfer of insurance premiums. If any payments are not specified in the employment contract, this is not a basis for avoiding the calculation of contributions. Please note that all payments made within the framework of labor relations are subject to insurance premiums (Article 7 of Law No. 212-FZ).

Civil agreements (contracts) with individuals that were in force during the audited period. In such contracts, in addition to the amounts of remuneration, the subject of the contract will be carefully studied: does it relate to contracts for the provision of services (performance of work) or to the transfer of property rights, for example, a lease agreement. If the subject of the agreement is the rental of a car with a crew, then the amount of remuneration must be divided into two parts: one part is the rental itself, and the second is the remuneration for the crew. If this is not done, then contributions will be accrued for the entire amount (letter of the Ministry of Health and Social Development of Russia dated March 12, 2010 No. 550-19).

In addition, controllers will look for an opportunity to reclassify a civil contract into an employment contract. This is possible if the subject of the contract is spelled out incorrectly. Namely: the contract was concluded not for the performance of a specific service (prepare financial statements, write a report, etc.), but for the performance of functions (keep accounting records, perform the duties of a press secretary, etc.). In accordance with subparagraph 2 of paragraph 3 of Article 9 of Law No. 212-FZ, payments made under civil contracts are not subject to insurance contributions payable to the Social Insurance Fund.

Sometimes, along with civil contracts, controllers require a list of all persons working on the basis of such contracts. It should be noted that the company is not obliged to maintain such a list. Therefore, the company does not face punishment for its absence. But if the enterprise performs a large volume of work or services on the basis of contract agreements, then it is better to have such a list. Based on the list, it is easy to independently monitor both the correctness of closing such contracts and the timeliness of accruals on them.

Dangerous moment
In practice, during inspections, funds may request documents that they either do not have the right to request or do not exist at all. For example, along with civil contracts, controllers require a list of all persons working on the basis of such contracts. The company is not required to maintain such a list. Therefore, the company does not face punishment for its absence. After all, inspectors do not have the right to demand the preparation of analytical tables and other documents that do not serve for the calculation and payment of contributions.

Acceptance certificates for completed work (rendered services) are necessary to confirm the amount of remuneration, as well as the date of delivery and acceptance of completed work (rendered services).

Bank and cash documents for the audited period: bank statements, instructions, orders, cash book, cashier-operator's journal, cashier's reports, X-reports, Z-reports, etc. In these documents, fund specialists will look for methods of avoiding official salaries . Studying the flow of funds through the current account and cash register is a way to identify transactions with “one-day” transactions. Working with such companies is a certificate of payment of salaries “in envelopes” with a corresponding reduction in insurance premiums.

Primary accounting documents confirming the facts of the enterprise’s economic activities. The list of documents is not specified and is therefore quite extensive. After all, almost all documents that are generated in the process of document flow in a company can be classified as primary documents. But here we must keep in mind that auditors can only require documents in the forms established by government bodies (subclause 1, clause 1, article 29 of Law No. 212-FZ).

As a rule, controllers are interested in documents on accountable amounts (advance reports with documents attached to them; travel certificates, tickets, hotel bills, cash register receipts, receipts, etc.). The purpose of checking these documents is to determine the completeness of the report for advances issued and try to calculate contributions for the difference. By analogy with tax audits, there is a very successful arbitration practice, which allows us to conclude that untimely reporting on accountable amounts does not lead to income for the employee (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 3, 2009 No. 11714/08).

There is a different approach to checking travel expenses. If local regulations establish living standards, then actual consumption is subject to verification. Only actual expenses are exempt from the calculation of insurance premiums, and not the norms approved by the company (letter of the Ministry of Health and Social Development of Russia dated November 11, 2010 No. 3416-19).

The general principle applies to daily allowances: they are not subject to insurance premiums in the amount approved by the company.

In addition to the documents listed in the Methodological Recommendations, fund specialists require personnel documents: work books and documents on personnel accounting and movement.

Work books are necessary to compare the dates of hiring, dismissal, transfer, promotion indicated in them with the dates entered in other personnel documents.

Important
Fund specialists, in addition to general documents, have the right to demand personnel documents: work books and documents on personnel accounting and movement. Work books are necessary to compare the dates of hiring, dismissal, transfer, promotion indicated in them with the dates entered in other personnel documents. Primary HR records are required to verify the dates of hiring, dismissal, payment of bonuses and salaries. Tax officials, conducting an on-site inspection under the Unified Social Tax, did not have such powers.

Primary documents for personnel records (form T-1 - employment order, form T-2 - personal card, form T-3 - staffing table, form T-5 and T-5a - transfer order, forms T-6 and T-6a - leave order, form T-8 - order to terminate the employment contract, form T-11 - order of promotion, form T-12 - report card, form T-49 - payroll), and other documents are required to verify the dates of hiring, dismissal, payment of bonuses and salaries. Sometimes, when checking personnel documents, orders are also discovered regarding employees with whom civil contracts have been drawn up. This fact indicates evasion of payment of insurance premiums in full.

The amounts of accrued payments and rewards in favor of individuals, as well as related insurance premiums, are kept in personal cards (clause 6 of Article 15 and subclause 2 of clause 2 of Article 28 of Law No. 122-FZ). Therefore, personal cards are also the object of study by inspectors. The joint letter of the Pension Fund of the Russian Federation dated January 26, 2010 No. AD-30-24/691, FSS of the Russian Federation dated January 14, 2010 No. 02-03-08/08-56P recommended the form of an individual accounting card for the amounts of accrued payments (other remunerations) and insurance contributions. But a company can also use a card whose form has been developed independently.

In any case, whatever documents the controllers require, they must match each other. Therefore, it is necessary to check for comparability and correctness of execution all documents that are involved in accounting for insurance premiums before starting the audit.

What types of checks exist

The legislation of the Russian Federation provides for 2 main types of tax audits: desk and field. Let's look at what their main features are and how they differ from each other.

On-site inspection.

It is carried out at the location of your company. That is, inspectors come to you. The Federal Tax Service makes a decision that the inspection will be carried out and creates a group of inspectors.

During such audits, they examine how correctly tax payments are calculated and paid. They most often check information for the last three years of your company’s activity.

Desk check.

It is carried out directly at the tax department. Moreover, you may not even know about it.

In this case, declarations, financial and tax reporting will be analyzed. If any shortcomings or errors are found during the inspection, you will be notified and asked to correct everything.

Time for on-site inspections

To carry out inspections, the Pension Fund and the Social Insurance Fund develop annual plans for on-site inspections of insurance premium payers (clause 3 of Article 33 of Law No. 212-FZ). The funds have already developed a schedule of on-site inspections, but it is not publicly available.

At the same time, we must not forget that the billing period for insurance premiums in accordance with Art. 10 of Law No. 212-FZ, the calendar year is recognized. An on-site inspection for the current period can be organized no earlier than the next calendar year; accordingly, an on-site inspection for 2010 can be carried out in 2011 (letter of the Ministry of Health and Social Development of Russia dated May 26, 2010 No. 1344-19).