New procedure for appealing non-normative acts of tax authorities

Not all legal entities always agree with the results of tax audits. In this case, Russian legislation gives enterprises and organizations the right to challenge them, but only in the manner established by the legislation of the Russian Federation.

In some cases, appealing tax audit reports (TAA) allows companies to avoid unnecessary additional taxes, as well as fines and penalties.

Procedure for appealing the results of a tax audit

Expert opinion

The procedure for appealing acts of tax authorities consists of four successive stages, but it is not always necessary to use each of them. If a solution is acceptable to the company at any stage, the rest are not required.

Objection to the tax audit report

So, the fiscal authorities conducted an audit, a report was drawn up, but the company does not agree with the results of the audit, what to do? Draw up written objections to the tax audit report and send the document to the head of the service that carried out the procedure. According to paragraph 6 of Art. 100 of the Tax Code of the Russian Federation, the ANP can be appealed either as a whole or as a separate part.

The legislation establishes a deadline for filing an objection - no more than one month after receiving the inspection report and documents confirming the violations stated in the report. Within a month, the tax service must make a decision on the filed objection; in some cases, when there are objective reasons, the deadline for making a decision may be extended, but not more than a month.

In accordance with paragraph 7 of Art. 101 of the Tax Code of the Russian Federation, the head of the fiscal service reviews the act and objections to it and makes a decision:

• on bringing to responsibility;
• on refusal to be held liable for violation of tax laws.

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The company receives a corresponding decision, which comes into force after a month from the date of its receipt. An enterprise has the right not to wait until the decision comes into force and to begin implementing it in whole or in part, or, if it disagrees with the decision of the tax authority, to proceed to the next stage of appealing the decision based on the results of the audit to a higher tax authority.

Challenging a tax decision

If the company is not satisfied with the tax decision made based on the results of consideration of objections, the Tax Code of the Russian Federation gives the taxpayer the opportunity to challenge it (paragraph 3, clause 1, article 138 of the Tax Code of the Russian Federation). It is important to remember that the decision of the territorial tax authority comes into force after one month has passed from the date of delivery of the decision. That is, a company can file a complaint and challenge a decision that has not yet entered into legal force; such a complaint, according to the Tax Code of the Russian Federation, is called an appeal. To do this, the company draws up an appeal addressed to a higher authority, but it should be submitted to the inspectorate that made the controversial decision. Employees of the territorial tax authority themselves, within three days after receiving the appeal, are obliged to transfer it to a higher tax authority.

The complaint is considered without the participation of representatives of the appellant company. An exception to this rule is those situations when, when examining the audit materials, a higher authority discovered that the audit data does not correspond to the documents submitted by the organization when challenging the tax audit report.

It happens that a company does not have time to file an appeal before the expiration of the period specified by the Tax Code and the decision of the fiscal authorities comes into force. In this case, the enterprise has another opportunity to challenge the decision of the tax authorities - drawing up a complaint and sending it to a higher authority in the same way as an appeal.

The decision on the complaint (appeal) must be made by a higher tax authority no later than one month from the date of receipt of the complaint by the Federal Tax Service. The decision of the higher tax authority, in accordance with clause 6 of Art. 140 of the Tax Code of the Russian Federation, comes into force from the moment of its adoption.

Based on the results of consideration of a complaint against the decision of the Federal Tax Service on a tax audit, a higher tax authority may (clause 3 of Article 140 of the Tax Code of the Russian Federation):

1. leave the complaint (appeal) unsatisfied;
2. cancel the decision of the tax authority in whole or in part;
3. cancel the decision of the tax authority completely and make a new decision on the case;

According to paragraph 2 of Art. 101.2 of the Tax Code of the Russian Federation, a new decision on an objection to a tax audit report comes into force immediately after its adoption. In cases where a higher fiscal authority refuses to satisfy an appeal, the initial decision also immediately enters into force.

Complaint to the Federal Tax Service

If the company received a response to the appeal from the Federal Tax Service for an entity that did not satisfy it, it, according to paragraph. 3 p. 2 art. 139 of the Tax Code of the Russian Federation, can file a complaint directly with the Federal Tax Service. Moreover, even if the organization missed the deadline for filing a complaint, but for a good reason, it, in accordance with paragraph 4 of the same article of the Tax Code of the Russian Federation, can apply to the tax authority with a petition for its restoration.

Going to court

The fourth stage of appealing the ANP is going to court. This is only possible if the mandatory pre-trial procedure for appealing to a higher tax authority is followed. The statement of claim is filed with the court within three months from the moment the response to the complaint (appeal) was received.

The organization also has the right to go to court if the fiscal services have not made any decision in response to an appeal against the decision of the Federal Tax Service within the time limits established by law.

Pre-trial procedure for challenging

Clause 6 Art. 100 of the Tax Code of the Russian Federation states that a taxpayer who does not agree with the facts and conclusions set out in a tax audit report may submit objections regarding the content of the entire report or part of it.

Objections are sent to the body that conducted the tax audit. Documents substantiating the taxpayer’s case are attached to the objections. Objections can be submitted in person, sent by mail or via the Internet, for example through the taxpayer’s personal account.

Appeal to a higher authority

It is not the tax audit report that is appealed to a higher tax authority, but the decision of the tax inspectorate made on its basis. A complaint may first be an appeal (if the decision has not entered into force), and then an ordinary one (against a decision that has entered into force).

The procedure for filing such complaints is generally similar. According to Art. 139 and 139.1 of the Tax Code of the Russian Federation, both a complaint and an appeal are filed through the body that made the decision. The tax authority, upon receiving a complaint, is obliged to send a response to the addressee within three days.

Complaints can be submitted in person, by mail or online.

Requirements for a complaint

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The complaint is drawn up in free form. There are no forms provided by law for such cases. However, the list of mandatory details and requirements for the content of the complaint are listed in paragraph 2 of Art. 139.2 Tax Code of the Russian Federation. Accordingly, it must indicate:

• initials, address of the citizen or name and address of the organization;
• details of the decision being appealed;
• name of the inspection whose decision is being appealed;
• the reasons with which the person substantiates his disagreement;
• taxpayer requirements;
• method of receiving a response (by mail or via the Internet).

Sample complaint

You can download a sample complaint in the “Documents and Forms” section at the beginning of the article.

Appealing the desk inspection report

A desk audit, unlike an on-site audit, is carried out without notifying the organization being audited. In cases where violations of tax legislation are detected, based on the results of the audit, a tax audit report is drawn up, which is transferred to the taxpayer company no later than 10 days after the completion of the desk audit.

There are cases when an organization does not receive an inspection report. In this case, if the company’s management can prove that the reason for not receiving the document is valid, for example, the fiscal authority did not notify that after an inspection of the enterprise an act was drawn up, and the postal item was lost, they have the opportunity to restore the deadline for challenging the act. If the taxpayer was deprived of the opportunity to submit objections to the audit report due to the fault of the tax authority, this may become a basis for canceling the tax authority’s decision on such an audit.

There are often cases when taxpayer organizations avoid receiving the report in every possible way. That is, they know that such an act has been drawn up, but they do not pick it up themselves and avoid receiving the mail. In this case, the date of receipt of the act will be considered the sixth day after sending it by registered mail. As a result, the tax audit report is considered delivered and comes into force within the time limits established by law.

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But even in this case, the company can challenge the decision that has entered into force by appealing to a higher organization with an appeal within a month from the date of receipt of the decision or with a regular complaint - within a year after the inspection decision is made.

Possibility of challenging decisions based on the results of a desk audit

So, you can challenge decisions based on the results of an audit, actions or inaction of officials in a strict manner determined by the Tax Code of the Russian Federation.

Important! It is necessary to follow the out-of-court procedure for appealing the results of a desk audit.

This means that you can go to court only after you have completed the pre-trial dispute resolution procedure. This procedure includes: appealing the decision and filing a complaint through your Federal Tax Service to a higher authority . That is, all types of complaints are initially submitted to the Federal Tax Service that made the decision based on the results of the inspection, and it then forwards them to a higher authority.

Moreover, both a decision that has not entered into force based on the results of an audit, and one that is already in force, are subject to challenge. As evidenced by para. 2 p. 2 art. 139 of the Tax Code, the period for challenging the current decision is longer.

Pre-trial settlement of disputes does not require the payment of state fees, and also involves the prompt consideration of complaints and the implementation of decisions taken on them.

After going through all the specified stages of appeal, if a negative decision is received from a higher-level Federal Tax Service, the declarant has the right to file a claim in court. A three-month period has been allotted for this.

Non-standard situations

When appealing an inspection decision, a company does not always get the result it was striving for, especially in cases where the dispute has reached the court. There are often situations when fiscal services, as an interim measure, petition the court to prohibit the use of property and monetary assets of an enterprise until a court decision is made. In other words, all the company’s accounts are frozen until the court’s decision on the company’s claim to appeal the tax audit acts comes into force.

Our company's lawyers have positive experience in these types of cases. But, it is easier to prevent any trouble than to correct its consequences later. Practical experience shows that a company, when appealing a tax audit decision, without involving specialists, may miss important nuances and make mistakes when forming an evidence base, which will be difficult to correct in the future.

Appeal procedure

When appealing the results of an inspection, a statement of claim can be filed in court within three months from the day when the business entity became aware of a violation of its rights and legitimate interests (Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation). If the taxpayer misses the specified deadline for a good reason, it may be reinstated by the court. To do this, you must submit a corresponding petition to the judge. The arbitrators' decision on a request to restore the deadline will depend on how convincing the taxpayer's arguments about the reasons for missing the deadline are. If the arguments seem valid to the court, it will restore the period of appeal; if not, it will refuse to satisfy the petition and demands of the applicant. For example, in the Resolution of the Federal Antimonopoly Service of the North Caucasian Region dated 05/06/2010 N A63-3011/2009, the arbitrators came to the conclusion that the absence of a lawyer on the staff of the organization and the dismissal of the chief accountant may indicate a valid reason for the taxpayer missing the three-month deadline for judicial appeal of the decisions of the tax authority , provided for in Part 4 of Art. 198 Arbitration Procedure Code of the Russian Federation. It should also be noted the Resolution of the Federal Antimonopoly Service of the Central Election Commission dated March 31, 2010 N A48-2665/2009. As follows from the case materials, the inspectorate considered that the taxpayer missed the deadline for appealing the decision provided for in Part 4 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, since he learned about the violation of his rights at the time he received the decision of the tax authority to collect the tax, the direction of which is confirmed by a postal receipt dated September 26, 2007, and filed an application to the court to invalidate the inspection decision on June 9, 2009. However, the court recognized the position of the tax authority as unlawful, pointing out that the postal receipt available in the case materials does not confirm the receipt of registered mail, since it does not follow from this receipt that the disputed decision was sent to the taxpayer, and also that the postal item sent to the business entity according to the submitted receipts they received. We draw your attention to the fact that the three-month period established by Part 4 of Art. 198 of the Arbitration Procedure Code of the Russian Federation does not apply to property (claims by nature) claims arising from tax legal relations (for example, the obligation to pay interest for late VAT refunds - clause 4 of Article 176 of the Tax Code of the Russian Federation), and can be submitted to the court for consideration regardless of challenging a non-normative act or actions (inaction) of the tax authority. The right of this point of view to exist is confirmed by the Plenum of the Supreme Arbitration Court of the Russian Federation (Resolution No. 65 of December 18, 2007). He pointed out that demands for the collection of interest for late return of tax payments and reimbursement of expenses caused by unlawful actions of the tax authority, although they arise from public legal relations, are of a property nature and do not fall under the category of cases considered according to the rules of Chapter. 24 of the Arbitration Procedure Code of the Russian Federation, including with the use of Art. 198 of the Arbitration Procedure Code of the Russian Federation (see also Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 31, 2006 N 9316/05, FAS MO dated June 17, 2008 N KA-A40/5212-08, FAS SZO dated September 10, 2007 N A56-40634/2006). After the taxpayer’s application is registered by the office, it is considered officially received by the court. From this moment, a two-month period is counted during which the arbitration court must respond to the application (Part 1 of Article 200 of the Arbitration Procedure Code of the Russian Federation). The applicant, the head of the body that made the decision based on the results of the inspection, as well as their representatives take part in the consideration of the dispute in the courtroom. Moreover, other interested parties may also participate in the case (sometimes the initiator of the dispute is the prosecutor) (Part 2 of Article 198 of the Arbitration Procedure Code of the Russian Federation). According to Part 2 of Art. 200 of the Arbitration Procedure Code of the Russian Federation, the arbitration court notifies the parties to the dispute about the time and place of the court hearing, and cases of failure of the specified persons (duly notified) are not an obstacle to the consideration of the case. At the same time, in certain cases, consideration of a dispute in the absence of its participants, in the opinion of the court, is a waste of time, therefore, failure to appear at a hearing when summoned by the court may become the basis for the imposition of a fine (Part 3 of Article 200 of the Arbitration Procedure Code of the Russian Federation). Moreover, this applies to both business entities and tax authorities. In accordance with Part 1 of Art. 119 of the Arbitration Procedure Code of the Russian Federation, disobedience to a court requirement may entail a fine for officials in the amount of 5,000 rubles, for organizations - up to 100,000 rubles.

If the court did not properly notify the participant in the dispute about the time and place of the court hearing, then the imposition of a fine will be illegal (Resolution of the Federal Arbitration Court ZSO dated 01.08.2006 N F04-4884/2006(25094-A27-3)). In accordance with Part 4 of Art. 200 of the Arbitration Procedure Code of the Russian Federation, when considering cases of challenging a decision made based on the results of an audit, the judge’s task is to verify the contested decision and establish whether the result of the application of a non-normative act of the regulatory authorities really violates the rights of the business entity (applicant). Moreover, the latter is not obliged to prove in court the illegality of the inspection decisions made, since on the basis of Part 5 of Art. 200 of the Arbitration Procedure Code of the Russian Federation, such an obligation is assigned to the regulatory authorities that adopted them. In this case, the applicant only needs to substantiate the facts of violation of his rights and legitimate interests. If the regulatory authorities do not provide the court with the evidence necessary to consider the case and make a decision, the arbitration court may request it on its own initiative (Part 6 of Article 200 of the Arbitration Procedure Code of the Russian Federation).

How we can help your business

We can help any company even before the tax authorities begin an audit. Our company offers comprehensive assistance and support for your business with:

• checking the reliability of your counterparties;
• legal support of all ongoing and already concluded transactions;
• consulting all employees of the organization before the start of the fiscal audit;
• support of on-site tax audit;
• support of desk tax audit;
• appealing the results of an inspection already carried out if they do not suit the enterprise.

In each specific case, we develop a separate strategy to help the business, depending on the current situation at the time of contacting us and the client’s wishes.

Under what conditions is it possible to challenge a tax act?

To appeal a tax audit report, certain grounds are required. If you file a complaint without such grounds, it will be rejected, in most cases - without even consideration. Therefore, it is very important to know under what conditions it is possible to file a complaint. Here are the most common grounds for challenge:

• tax inspectors committed certain violations during the audit - quite often you can encounter situations where inspectors violate the law during business inspections. Violations can be either very serious or minor, however, even the most insignificant violation (for example, they forgot to indicate the date of the inspection, did not put a signature or seal, etc.), if it is recorded on time and correctly, makes it possible to challenge the final inspection report or parts of it. Therefore, it is very important that during the inspection there is a lawyer present who can monitor compliance with the law by inspectors;
• the deadlines for conducting audits have been violated - both desk and field tax audits have legally limited periods of implementation. However, in practice, deadlines are often violated, which makes it possible to challenge the tax audit report. It does not matter of fundamental importance whose fault the delay occurred: if the deadlines are violated, you can file a complaint, because the law has already been violated;
• unlawful or groundless application of sanctions - almost any inspection, especially an on-site inspection, ends with the imposition of penalties or additional tax payments. However, there are not always sufficient reasons for this. If you find out that additional tax assessments, fines or other restrictive actions on the part of the Federal Tax Service (for example, blocking of accounts) were applied without proper grounds, this may serve as grounds for challenging such a tax audit act. But in order to discover the groundlessness of the sanctions, one cannot do without consulting a professional tax lawyer ;
• other violations that could in one way or another affect the result of the audit - this includes more rare situations, for example, when third-party organizations are involved in the audit that do not have the appropriate certification, if documents and equipment were seized that are not related to the current audit, if they were used information that does not correspond to reality, etc. All this information, with proper preparation, can be used as arguments to challenge the results of a tax audit.

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When preparing to challenge, pay enough attention to preparing the justification, because often it is the insufficient motivational part that serves as the reason for refusing to satisfy the complaint. support of tax audits is also very important - this increases the likelihood that all violations will be recorded.

TRIAL

If the organization and the tax inspectorate were unable to resolve disputes at the pre-trial stage, then the resolution of the issue can be transferred to the court. A taxpayer who does not agree with the decision may appeal it in accordance with clause 3 of Article 138 of the Tax Code and part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation.

According to Article 135 of the APC and paragraph 4 of Article 138 of the Tax Code, the organization must file a claim to invalidate the decision of the tax inspectorate with the arbitration court at the place of registration of the tax authority that made the decision.

When applying to arbitration, you need to remember that in the vast majority of cases the decision is made in favor of the tax authorities and you need to soberly weigh your chances. However, in fairness, we note that in legal practice there are examples of how taxpayers defended their violated rights.

How to sue the tax authorities based on the results of an audit?

Going to court is the final stage of challenging a tax audit report. The statement of claim is submitted to the arbitration court at the place of registration of the company. The defendant is the Federal Tax Service department, whose decision is being challenged. The text of the claim must indicate the specific inspection report, the date of the audit, and all identified violations. In addition, it must be indicated that the complaint procedure for resolving the dispute was followed - complaints were filed against the actions of the tax authorities. The claim is accompanied by documents that can confirm the plaintiff’s position.

The documents are then submitted to the court for review. A copy must be sent to the Federal Tax Service in order to notify them of the filing of a lawsuit. During the hearings, the main goal is to convince the court that violations actually occurred and could affect the decisions made based on the results of the audit. In this case, the judge may satisfy the applicant's demands and cancel the act or its individual provisions. An experienced tax lawyer can help you prepare and file your claim and can represent your company during the claim.

Conclusion

If a tax audit act violates the rights of your company, imposes unreasonable penalties, or violations were committed during the tax audit, you can file a complaint and have the Federal Tax Service’s decision reversed. There are pre-trial and judicial options for resolving the dispute, and going to court without the pre-trial stage is impossible. A competent, specialized lawyer will help with the appeal and ensure that the dispute is resolved in your favor.

Appeal against a decision of the Federal Tax Service that has not entered into force

Under these circumstances, an appeal is filed with the Federal Tax Service, which made the contested decision, in any available way. Then, within three days, it is forwarded to an authorized higher authority for consideration.

To draw up a complaint, the Federal Tax Service of the Russian Federation suggests using the sample posted on its official website. The person filing the complaint must provide the following information:

1. Details of the tax office that made the contested decision (name, address).
2. Your data (name, place of residence (location), TIN).
3. No., the date of the decision against which the appeal is filed.
4. The actual decision (prosecution or refusal to do so).
5. Your arguments, reasons for disagreement with the said decision of the Federal Tax Service.
6. Petition (request to cancel the decision completely or in a specific part).
7. Ways to receive a response to an appeal (on paper, electronically, through your personal account).
8. Attached documents that confirm the applicant’s arguments, as well as the powers of his representative (if any).
9. Dating, personal signature.

Based on the results of consideration, such an appeal may be granted (in whole or in part) or not. If the answer is positive, the effect of the contested decision is canceled (in whole or in part). If it is cancelled, a new decision may also be made. The higher-level Federal Tax Service has the right to recognize the actions of the responsible persons as illegal and make a decision on the merits.

If the response to the complaint is negative, the contested decision of the Federal Tax Service will take effect. After this, it can be appealed in the manner provided for filing a complaint against an already valid decision (described below).

For information, if for some reason the declarant did not have time to file an appeal, and the decision has already entered into force, then he has the right to file a complaint against the current decision, bypassing the appeal stage.