Suspension of a tax audit: procedure, period, legal assistance

What is a suspension of verification?

Suspension of an inspection can only be carried out if there are grounds specified in the law. As a rule, the reason is the need for additional materials. That is, during the pause, tax representatives are not inactive. They send requests to foreign structures and counterparties. However, tax authorities suspend their activities on the territory of the company being inspected.

The standard period for an on-site inspection is 2 months. If a decision is made to suspend, this period is frozen. That is, in essence, the suspension is, in a sense, an extension of the inspection. However, this is not a full extension, since during the pause the company cannot be inspected. That is, the taxpayer will continue to operate. Therefore, suspension is more beneficial for him than extending the inspection period.

Timing of on-site activities

The duration of on-site events is stipulated in paragraph 6 of Article 89 of the Tax Code of the Russian Federation. In particular, it is 2 months. However, the timing may be different under the following circumstances:

Inspection of branches and representative offices. The period is reduced to one month.
There is a corresponding decision from the inspectors. Those conducting the inspection may decide to extend the event. This decision can be made up to two times. The maximum extension period is 2 months.

The longest duration of an inspection is 6 months (2 months is the standard period, 4 months is an extension based on two decisions of the inspectors). The period begins to count from the date of the decision to initiate an inspection on the basis of paragraph 8 of Article 89 of the Tax Code of the Russian Federation. It ends on the date the final inspection certificate is issued.

Judicial verdict: how many times can the inspectorate suspend an inspection?

The Supreme Court of the Russian Federation, in its ruling No. 307-ES20-12647 dated September 28, 2020, recognized that repeated suspension and extension of a tax audit does not indicate a deliberate delay in its deadlines and does not violate the rights of the taxpayers being audited.

Subject of dispute

: The tax inspectorate conducted an on-site tax audit of the organization for a whole year. During this period, the inspection was suspended six times and extended several times. Considering these actions illegal, the organization went to court and demanded that the decision to conduct a tax audit be canceled.

What were they arguing about?

: the possibility of repeatedly suspending a tax audit.

Who did win

: tax authorities.

In court, the organization noted that, in accordance with current legislation, an on-site inspection in any case cannot be carried out for more than 6 months. At the same time, the Tax Code of the Russian Federation does not provide for the possibility of repeatedly suspending an inspection.

According to the organization, in the controversial case, the suspension of the inspection was of a formal nature and was used by the inspectorate for the purpose of illegally extending the total period of its implementation. This is an abuse of rights on the part of the tax authority and a manifestation of excessive tax control, violating the rights and legitimate interests of the company.

The Supreme Court of the Russian Federation rejected the arguments stated by the organization and recognized the actions of the tax authorities as legal and justified.

The RF Supreme Court clarified that an on-site tax audit cannot last more than two months. This period can be extended up to four months, and in exceptional cases - up to six months (Clause 6, Article 89 of the Tax Code of the Russian Federation).

However, this does not mean that the specified period includes periods in which the tax audit was not carried out due to its suspension.

The period for conducting an on-site tax audit is calculated from the day the decision to order the audit is made and until the day the certificate of the audit is drawn up. The inspection period includes only those periods during which the inspectors are on the taxpayer’s territory.

At the same time, the Federal Tax Service has the right to suspend an on-site tax audit to request documents from the taxpayer’s counterparties in accordance with clause 1 of Art. 93.1 Tax Code of the Russian Federation.

Suspension of an on-site inspection on the specified basis is allowed no more than once for each counterparty from whom documents are requested. The legislation does not establish any other restrictions in this part.

Thus, the number of decisions to suspend an inspection is limited only by the number of counterparties from whom the necessary documents are requested.

In the controversial case, the number of suspensions of the inspection did not exceed the number of counterparties from whom documents were requested.

The actual number of calendar days spent by the inspectorate on conducting an on-site inspection, which does not include the period of suspension of the inspection, amounted to 180 days.

Thus, the RF Supreme Court concluded, the timing of the inspection, taking into account its repeated suspension by the inspectorate, was not violated.

Grounds for suspension

The grounds for suspension are stated in paragraph 9 of Article 89 of the Tax Code of the Russian Federation. Let's look at them:

The need to request information from foreign structures. Tax authorities may need to request data from government agencies in other countries. This is required, for example, to prevent double taxation. Sending a request and receiving a response to it is a lengthy process based on international agreements. Therefore the event is suspended.
The need to organize an examination. Sometimes tax authorities may require additional information. In this case, an examination is appointed, after which a professional opinion is issued. It is regulated by Article 95 of the Tax Code of the Russian Federation.
The need to contact translators. The documents being verified may be written in a foreign language. In this case, you need to resort to the services of a translator. The translation is performed on the basis of Article 97 of the Tax Code of the Russian Federation.
Need for additional documents. Sometimes tax authorities request papers (agreements, payments) from counterparties of the organization being audited. This stage is carried out on the basis of Article 93.1 of the Tax Code of the Russian Federation.

That is, the verification is suspended when it cannot be continued due to the lack of additional materials. To prevent downtime, the event is paused. During the suspension, tax authorities take all necessary additional actions.

IMPORTANT! Suspension can be carried out any number of times if there are grounds for it. However, if it is carried out on the basis of the need to request documents from counterparties, then it is impossible to stop the work of the tax authorities on the same basis again. However, you can pause the process when specialists turn to another counterparty. Suspension is assigned as many times as tax representatives need. However, its total duration cannot exceed 6 months.

Suspension of an on-site tax audit in 2021 is possible in the following cases (for the purposes of):

1) requesting documents (information) in accordance with paragraph 1 of Article 93.1 of the Tax Code of the Russian Federation (“counter check with counterparties”, check “in chains”); 2) obtaining information from foreign government bodies within the framework of international treaties of the Russian Federation (for example, agreements on the avoidance of double taxation); 3) conducting examinations; 4) translation into Russian of documents submitted by the taxpayer in a foreign language. Suspension of an on-site tax audit on the specified grounds is allowed no more than once for each person from whom documents are requested.

Duration of suspension

The total period of suspension cannot exceed 6 months. In some cases, the period may be extended for another 3 months. However, this is only possible if the tax authorities previously sent a request to foreign authorities and did not receive a response from them within six months.

The suspension is carried out on the basis of a relevant decision. It specifies the start date of the pause. The suspension ends when a decision is made to resume the event.

FOR YOUR INFORMATION! Sometimes the pause dates may be violated. However, it is difficult to hold tax authorities accountable for this, since the violation is considered minor.

Suspension period for on-site tax audit

The total period of suspension of a tax audit cannot exceed six months, but it can be extended by 3 months. There is only one reason for this: a request for documents was sent to a foreign country, but the response did not arrive for more than 6 months.

The decision to suspend a tax audit shall indicate the date from which the suspension period begins to run. The period is resumed by issuing a decision on the resumption of verification actions.

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In practice, there are violations of deadlines, but this is not an absolute basis for declaring verification activities illegal, since the violation is not considered significant.

Features of suspending an event

The procedure for suspension is specified in Article 89 of the Tax Code of the Russian Federation. The decision to pause is made by the head of the Federal Tax Service or his deputy. The form of this decision is contained in Appendix No. 5 to the Order of the Federal Tax Service No. ММВ-7-2 / [email protected] dated May 8, 2015. However, this form is not mandatory. If the document is drawn up in any form, this will not be an offense.

Paragraph 9 of Article 89 of the Tax Code of the Russian Federation states that suspension involves pausing these processes:

Request for documents. During the suspension process, the company returns all original papers that were sent for verification earlier. The exception is papers obtained during seizure.
Operations carried out on the territory of the audited company. All activities in the company area stop.

The law specifies only these actions. That is, all other operations can be carried out during the suspension process. They are carried out in a standard manner.

Formation of a solution

The decision to suspend shall indicate the full name of the head of the inspection object. He needs to be familiarized with the document. The decision must also indicate the start date of the shutdown and the date of resumption of work. The timing of the pause must be determined precisely. This requirement is necessary to protect the rights of the audited company.

Suspension of a tax audit and request for documents

On December 31, 2013, a decision was made to conduct an on-site tax audit for 2010, 2011, 2012. We signed the decision and the requirement to provide documents for three years, duly certified on 01/14/2014. On 01/15/2014, a decision on suspension was made.

Are we obliged to provide the documents required by the register dated January 14, 2014 during the suspension of the inspection? Should we copy and certify papers according to the required register, since the volume is very large and unrealistic? The inspector hasn't even come out to check yet.

Right to claim	Art. 93 of the Tax Code of the Russian Federation establishes that a tax authority official conducting a tax audit has the right to request from the person being inspected the documents necessary for the audit .
Deadline setting	Documents that were requested during the tax audit are submitted within 10 days from the date of receipt of the corresponding request.
Suspend laziness checks	According to clause 9 art. 89 Tax Code of the Russian Federation head (deputy head) of the tax authority has the right to suspend an on-site tax audit for : 1) requesting documents (information) in accordance with paragraph 1 of Art. 93.1 Tax Code of the Russian Federation . At the same time, suspension of an on-site tax audit on the specified basis is allowed no more than once for each person from whom documents are requested;
2) obtaining information from foreign government bodies within the framework of international treaties of the Russian Federation;
3 ) carrying out examinations;
4) translation into Russian of documents submitted by the taxpayer in a foreign language.
Solution	The suspension and resumption of an on-site tax audit is formalized by a corresponding decision of the head (deputy head) of the tax authority conducting the said audit.
6 months	The total period of suspension of an on-site tax audit cannot exceed 6 months .
During the period of suspension of the on-site tax audit, the actions of the tax authority to request documents from the taxpayer are suspended, to whom in this case all originals requested during the inspection are returned, with the exception of documents received during the seizure, and the actions of the tax authority in the territory are also suspended (on the premises) of the taxpayer related to the specified audit.
Arbitration	In paragraph 26 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” it is explained that the tax authority is not deprived of the right to carry out actions outside the territory (premises) of the taxpayer if they are not associated with requesting documents from the taxpayer .
!	In addition, the taxpayer is obliged to submit to the tax authority those documents that were requested before the suspension of the audit .
Position of officials	The regulatory authorities also indicate that the Tax Code of the Russian Federation does not provide for the suspension of the established deadline for fulfilling the tax authority’s requirement for the inspected person to submit documents handed over to this person before the suspension of the on-site tax audit, as well as the reduction of the on-site tax audit period for the period of preparation and submission by the inspected person to tax authority documents requested during this audit.
Taxpayer's obligation	Thus, the taxpayer is obliged to submit to the tax authority those documents that were requested before the suspension of the audit, within the time limits established in the requirement for the submission of documents (letter of the Federal Tax Service of the Russian Federation dated November 21, 2013 No. ED-3-2 / [email protected ] Ministry of Finance of the Russian Federation dated June 28, 2013 No. 03-02-07/1/24644).
Another opinion	To be fair, we note that FAS Ural District different opinion. In the resolution of May 27, 2013 No. F09-3997/13 The Ural arbitrators reported that the suspension of an on-site tax audit excludes not only the possibility of the tax authority carrying out any actions in relation to the inspected person, including verification of documents and other information requested by it from the inspected person, but also the obligation of the taxpayer to submit the documents requested by the tax authority .
However, taking into account the position of officials, the legality of failure to provide the requested documents in your situation will have to be proven in court.
Deadlines	In accordance with Art. 6.1 of the Tax Code of the Russian Federation a period defined in days is calculated in working days , if the period is not established in calendar days.
In this case, a working day is considered a day that is not recognized in accordance with the legislation of the Russian Federation as a weekend and (or) a non-working holiday.
An action for which a deadline has been set can be completed until 24 hours on the last day of the deadline.
If documents or funds were submitted to the communications organization before 24 hours of the last day of the deadline, then the deadline is not considered missed.
Your case	Therefore, the deadline for submitting documents in your case ends on January 21, 2014 .
Responsibility	The refusal of the person being inspected to submit the documents requested during a tax audit or failure to submit them within the established time limits is recognized as a tax offense and entails liability under Art. 126 of the Tax Code of the Russian Federation ( clause 4 of Article 93 of the Tax Code of the Russian Federation ).
Art. 126 of the Tax Code of the Russian Federation provides for the collection of a fine in the amount of 200 rubles for each unsubmitted document .
According to paragraph 2 of Art. 93 of the Tax Code of the Russian Federation, 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.
Copies	Submission of documents on paper is made in the form of copies certified by the person being verified .
!	It is not permitted to require notarization of copies of documents submitted to the tax authority (official), unless otherwise provided by the legislation of the Russian Federation.
In electron new form	If the documents requested from the taxpayer are compiled in electronic form in established formats, the taxpayer has the right to send them to the tax authority in electronic form via telecommunication channels.
If necessary, the tax authority has the right to familiarize itself with the original documents.
Copy	Clauses 2.1.29, 2.1.30 and 2.1.39 of the State Standard of the Russian Federation GOST R 51141-98 “ Record keeping and archiving. Terms and definitions”, approved by Decree of the State Standard of the Russian Federation of February 27, 1998 No. 28, stipulates that a copy of a document is a document that fully reproduces the information of the original document and all its external features or part of them, which has no legal force.
Certified copy	A certified copy of a document is a copy of the document, on which, in accordance with the established procedure, the necessary details are affixed, giving it legal force .
Document details are understood as a mandatory element of document execution.
Witness- naya inscription	In accordance with GOST R 6.30-2003 “Unified documentation systems. Unified system of organizational and administrative documentation. Requirements for the preparation of documents”, when certifying the compliance of a copy of a document with the original, below the “Signature” requisite, a certification inscription is affixed : “Correct”; position of the person who certified the copy; personal signature; decryption of the signature (initials, surname); certification date.
Seal	A copy of the document is certified by the seal of the organization .
Each copy	According to the Ministry of Finance of the Russian Federation, each copy of a document must be certified, and not the filing of these documents (letter dated May 11, 2012 No. 03-02-07/1-122).
Options from tax authorities	The Federal Tax Service of the Russian Federation, in a letter dated September 13, 2012 No. AS-4-2/ [email protected] certification of each individual sheet of a copy of a document, or stitching a multi-page document and certification, can be supported him in general .
At the same time, in case of certification of a copy of the document as a whole, it is necessary to take into account the thickness of the bundle and the material for stitching it (twine, twine, etc.).
In addition, when flashing a multi-page document, you must :
– ensure the ability to freely read the text of the document, all dates, visas, resolutions, etc. and so on.;
– exclude the possibility of mechanical destruction (embroidery) of the pack when studying a copy of the document;
– ensure the possibility of free copying of each individual sheet of a document in a stack using modern copying equipment (if it is necessary to submit a copy of the document to the court);
– carry out sequential numbering of all sheets in the bundle and, upon certification, indicate the total number of sheets in the bundle.
At the same time, this letter was communicated to lower tax authorities.
However	However, a little later, in a letter dated October 2, 2012 No. AS-4-2/16459, the Federal Tax Service of the Russian Federation, following the Ministry of Finance, announced that each copy of the document must be certified, and not the filing of these documents .