When preparing reporting documents, an accountant must process a large volume of primary papers and does not always manage to avoid errors. In addition, numerous suppliers and buyers are often in no hurry to send their documents to the partner. Added to this list are negligent accountants who completed their tasks, but did not take care of the completeness and correctness of the paperwork. Nevertheless, it is necessary to submit a tax report, then the accounting specialist decides to send the declaration in the form in which it was generated, and only then, if errors are found, send a “clarification”.
Neglect of overpayment
The procedure for submitting updated declarations is regulated by Article 81 of the Tax Code of the Russian Federation, which obliges an accountant to submit a document if he discovers in the paper he previously submitted the fact of non-reflection or incomplete reflection of information, as well as errors leading to an understatement of the tax amount. But if the amount is too high, it is not necessary to submit a “clarification.”
On a note
When adjusting primary information, you need to take into account some subtleties of the law. The “update” is submitted in the same form as the first declaration. In this case, on the title page in the “Adjustment number” field, you must put the number 1 if this is the first version of the amended document.
This happens in cases where the accountant has discovered documents confirming expenses for the period in which the declaration has already been submitted. The tax was transferred to the budget based on the inflated tax base, and all documents were filed and archived. Filing an amended return will result in expenses that reduce the basis and the amount of the fee. An overpayment of tax is generated on the personal account at the inspectorate. The company does not face any penalties. Why not return the money? However, accountants are not always in a hurry to provide “clarification” in such situations. They first assess the situation and decide whether it is worth “fencing the garden” because of a possibly small amount. Accounting specialists remember that the submission of each declaration is accompanied by a desk audit and is fraught with surprises. Inspectors have the right to request documents during a control event and may find errors in them that were not noticed when checking the initial declaration. In addition, if an organization submits an updated declaration with the amount of tax to be reduced, auditors have the right to conduct a second on-site inspection (clause 10 of Article 89 of the Tax Code of the Russian Federation).
Are intermediate “clarifications” needed?
There is another pressing question regarding the identified errors: is it possible to limit oneself to submitting one general “clarification” for the year or is it necessary to clarify the corresponding reporting periods within the year?
This question is relevant in relation to “incremental” taxes, that is, those taxes that are calculated on an accrual basis from the beginning of the year and for which there are reporting periods within the tax period. This is, for example, income tax, Unified Agricultural Tax, property tax (in relation to objects taxed at the average annual value).
There is an opinion among some experts that since such taxes are still calculated for the year as a whole, we can limit ourselves to submitting one general “clarification” for the year. We believe that if an error was made for the previous year, it is still necessary to submit interim updated declarations (calculations) for reporting periods within the year.
From what provisions does this follow? From paragraph 1 of Article 54 of the Tax Code of the Russian Federation. It says that “if errors (distortions) are detected in the calculation of the tax base relating to previous tax (reporting) periods in the current tax (reporting) period, the tax base and tax amount are recalculated for the period in which these errors (distortions) were made )".
As you can see, this paragraph also talks about reporting periods. However, it is not specifically stated that it is necessary to clarify the reporting periods only if an error was made in the current year, that is, when the year has not yet been completed. In addition, penalties are due for non-payment of advance payments due for reporting periods. And it is obvious that by clarifying its tax obligations only for the year as a whole, the organization will distort the data, and this will lead to the accrual of an incorrect amount of penalties.
What position do officials adhere to? Unfortunately, there are no new clarifications on this matter. But if you are guided by old letters, you can be sure that officials are also in favor of taxpayers submitting intermediate “clarifications” (letters from the Ministry of Finance dated April 11, 2006 No. 03-06-01-04/83 (on property tax), Federal Tax Service on Moscow dated March 4, 2005 No. 20-12/14626 (on income tax)).
Reduced tax
When filing an amended return to correct errors that led to an understatement of the amount of tax payable, several situations may arise.
First. The accountant noticed an error in the declaration in the current reporting period, immediately after its submission, but before the deadline for submission established in the Tax Code. If he manages to submit an “adjustment” before the end of this period, then it is considered submitted on the day the updated declaration is submitted. In this case, there is no penalty for violating the deadlines. In addition, if the amount of additionally assessed tax is not paid, only penalties are charged on the arrears (clause 2 of Article 81 of the Tax Code of the Russian Federation).
Second situation. The accounting specialist noticed the error after the deadline. In this case, in order to avoid penalties, when submitting corrective information, you need to calculate and pay the amount of penalties for the period from the date of the established deadline for submitting documents to the date of filing the “clarification”. Only after making sure that penalties have been paid can you send an updated declaration. What is the mystery of this particular sequence of actions? If penalties are paid and a return is filed on the same day, the money will not have time to get into the taxpayer’s card. The declaration will be registered as submitted without payment of sanctions, that is, in violation of the procedure. This threatens the company with a fine of 20 percent of the amount of additional tax accrued (clause 1, clause 4, article 81 of the Tax Code of the Russian Federation).
We take into account the nuances
When adjusting primary information, you need to take into account some subtleties of the law. The “updated statement” is submitted in the same form as the first declaration (clause 5 of article 81 of the Tax Code of the Russian Federation). In this case, on the title page in the “Adjustment number” field, you must put the number 1 if this is the first version of the amended document.
The updated declaration includes not only the corrected data, but also all other indicators, including those that were initially correct.
On a note
The accountant noticed an error in the declaration in the current reporting period, immediately after its submission, but before the deadline for submission established in the Tax Code. If he manages to submit an “adjustment” before the end of this period, then it is considered submitted on the day the updated declaration is submitted.
If the adjustment in the document does not lead to an increase in the amount of tax, then such a declaration filed after the expiration of the established filing deadline is not considered to be submitted in violation of the deadline. Moreover, the company has the right to file a return for any tax period, even exceeding the statute of limitations of three years. But the law does not provide for the return of the overpayment amount, since the statute of limitations has expired. Such clarifications are given in Letters of the Federal Tax Service dated December 12, 2006 No. CHD-6-25/ [email protected] and the Ministry of Finance dated August 24, 2004 No. 03-02-07/15.
But the Tax Code does not limit the period for recalculating the base in the event of errors or distortions that led to its increase and an increase in the tax. Therefore, the company has the right to submit a “clarification” to increase the amount of the fee and pay it at any time (Letters of the Ministry of Finance dated 08/04/2010 No. 03-03-06/2/139, dated 04/08/2010 No. 03-02-07/ 1-152).
In practice, sending a “clarification” is preceded by receiving a decision from the tax office to conduct an on-site audit. Accounting begins to urgently “clean up its tails” and discovers errors. Is it possible to send an amended declaration in this case? Yes, there is time from the date of receipt of the decision to the start date of the inspection.
It is also allowed to submit a “clarification” during the audit. The fact is that in this case the declaration will also be checked by “travelers” and the changes made will be taken into account when drawing up the inspection report. If the amount of tax liabilities in the “clarification” increases, then inspectors will not assess additional tax based on the results of the control event. But you still have to pay the fine. If the company independently pays the tax and penalties, then it can count on a reduction in the fine on the basis of subparagraph 3 of paragraph 1 of Article 112 of the Tax Code of the Russian Federation, if the voluntary submission of an “adjustment” and additional payment of the tax are recognized as mitigating circumstances.
Hot questions when filing amended tax returns
An updated declaration must be filed for any tax in the event that the taxpayer independently discovered an error in a previously submitted declaration, which led to an underestimation of the amount of tax payable, as well as when the taxpayer applies a simplified taxation system, if the organization sold the fixed asset before the expiration of the deadline. , established by clause 3 of Art. 346.16 Tax Code of the Russian Federation. In all other cases and inaccuracies in the data presented, filing an updated tax return is the right of the taxpayer, but not his obligation.
The updated declaration is submitted in the same form in which the original declaration was submitted. The updated declaration must include not only the corrected data, but also all other indicators, including those that were initially correct.
At the same time, do not forget that if an error has led to an underestimation of the amount of tax payable, and the payment deadline has already passed, then before filing an updated return, you must pay not only the amount of the arrears itself (the delta between the updated and original tax data) , but also the amount of penalties accrued for the corresponding period. Otherwise, the taxpayer will be subject to a fine of 20% of the amount of unpaid tax. It is also possible that advance payment of the amounts due will not relieve liability (if the tax authority discovers the error before the taxpayer, or an on-site tax audit is scheduled).
Let's look at specific situations that may arise in reality.
What are the deadlines for filing updated declarations?
In practice, it is widely believed that a “clarification” can only be submitted for a period not exceeding three years. However, this is not entirely true. According to paragraph 1 of Art. 81 of the Tax Code of the Russian Federation, if a taxpayer discovers inaccurate information in the declaration submitted by him, as well as errors that do not lead to an understatement of the amount of tax payable, the taxpayer has the right to make the necessary changes to the tax declaration and submit an updated declaration to the tax authority in the manner established in this article. In this case, an updated tax return submitted after the expiration of the established deadline for filing the return is not considered submitted in violation of the deadline.
However, in accordance with paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application for offset or refund of the amount of overpaid tax can be submitted within three years from the date of payment of the specified amount, unless otherwise provided by the legislation of the Russian Federation.
Thus, filing an “update” can be done outside the 3-year period, but a refund of overpaid tax is possible only within this period. This rule also applies to the return (offset) of overpaid advance payments (Clause 14, Article 78 of the Tax Code of the Russian Federation).
So, the grounds for refunding the overpayment begin from the date the taxpayer submits an updated declaration for the corresponding year, but no later than the deadline established for its submission to the tax authority. This conclusion was made in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 28, 2011 No. 17750/10.
An application for a refund of the amount of overpaid tax can be submitted by the taxpayer within 3 years, starting from the date of actual submission of the tax return for the corresponding tax period, but no later than the deadline established for its submission to the tax authority (i.e. the deadline may be only earlier than legally established). The date of actual submission of the tax return is confirmed by a report from the operator through which tax reporting is submitted electronically.
How do we determine whether we face liability for presenting a “clarification”?
The legislation encourages the intention of taxpayers (payers of fees, tax agents) to independently identify distortions in their reporting and eliminate them. So, clause 3 and clause 4 of Art. 81 of the Tax Code of the Russian Federation provide for conditions for exemption from tax liability when submitting a “clarification” for additional payment if the following conditions are met:
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when the updated declaration is submitted after the expiration of the deadline for filing the declaration, but before the expiration of the tax payment deadline, provided that the updated declaration was submitted before the moment when the taxpayer learned about the discovery by the tax authority of the fact of non-reflection or incomplete reflection of information in the tax return, as well as errors leading to to understate the amount of tax payable, or to order an on-site tax audit;
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when an updated declaration is submitted to the tax authority after the deadline for filing a tax return and the deadline for paying the tax, provided that the following requirements are simultaneously met:
- the updated declaration was submitted before the taxpayer learned that the tax authority had discovered non-reflection or incompleteness of information in the tax return, as well as errors leading to an understatement of the amount of tax payable, or about the appointment of an on-site tax audit for this tax for a given period;
- Before submitting the updated declaration, the taxpayer paid the missing amount of tax and the corresponding penalties.
It should be noted that, according to numerous explanations, the very fact of submitting an updated declaration with the amount of tax subject to additional payment does not yet indicate that the taxpayer has underestimated the tax base. In any case, in order to bring a person to justice, the appropriate elements of a tax offense must be established (Letter of the Ministry of Finance of Russia dated 02/04/2013 No. 03-02-07/1/2279; Resolution of the Federal Antimonopoly Service of the North-West District dated 01/21/2014 No. A05-1380/2013).
In addition, it is possible that for the corresponding tax, according to the “Settlements with the Budget” (CRSB) card, the taxpayer has an overpayment that was formed even before the updated period, the amount of which fully covers the amount of the arrears according to the “adjustment” and accrued penalties, in this case no fine should be assessed. Indeed, in accordance with clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57, the tax authority has the right to independently offset the overpayment against the underpaid amount of tax.
In general, everything is clear and simple: before submitting the “clarification” (after the due date), you need to pay the amount of tax and penalties or confirm that the amount of overpayment for the relevant tax is enough to cover the resulting arrears, you need to make sure that in relation to your organization (individual entrepreneur ) an on-site tax audit has not been scheduled (and it is quite difficult not to know about this, since the tax authority always notifies of such an event in a timely manner and using all the resources available to it), and we receive an exemption from penalties. It would seem that everything is extremely clear, but what to do with the vague wording “... until the moment when the taxpayer learned about the discovery by the tax authority of non-reflection or incomplete reflection of information...”.
Here is a situation where you may face penalties.
During a desk audit, the tax authority sent the taxpayer a request to provide explanations and make corrections, from which it clearly follows that the inspectors identified some inconsistencies, distortions, or errors in the declaration (for example, a frequently common phenomenon is the issue of discrepancies in the volume of revenue according to the declaration on income tax and VAT return data). Of course, such a requirement does not mean that the taxpayer must necessarily submit a “clarification”; most likely, the questions asked are understandable. But if there is an understanding that the indicators in the declaration really need to be corrected, “clarification” will be required. And then the issue of calculating penalties will become relevant. Moreover, if a desk inspection report has already been received, where the corresponding error was identified, then penalties cannot be avoided. But if such a report is not received, then the situation will look quite controversial, because the tax authority probably knew about the mistake when it sent the corresponding request for explanations. It is quite difficult to predict how further events will develop; everything will depend on the specific circumstances of the case.
In any case, it is worth remembering that in order to be held accountable under Art. 122 of the Tax Code of the Russian Federation, it is necessary to have circumstances established during an on-site or desk tax audit that indicate that the taxpayer has committed unlawful actions or unlawful inaction, which resulted in an illegal understatement of the tax base for a tax for a certain tax period, which, in turn, resulted in his non-payment for this period.
How will filing an updated declaration affect the course of the tax audit?
If the updated declaration is submitted before the end of the desk tax audit for the same period, then the taxpayer must take into account the following:
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verification of the initial (previous “clarification”) is terminated, as are all control activities carried out within its framework;
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a new verification of the submitted declaration begins, and accordingly, the deadlines for its implementation are updated;
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The tax authority may use in a new audit those documents and information that it received as part of a terminated audit, this also applies to the results of control measures carried out;
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even if the previous inspection, during which the request for information was received, was terminated, the requested documents and explanations should still be provided, otherwise you risk being held accountable in the form of a fine of 200 rubles. for each document not submitted. After all, Art. 88 and art. 93 of the Tax Code of the Russian Federation does not contain provisions on the withdrawal by the tax authority of a previously issued requirement in the event that the taxpayer submits a “clarification”. The courts share the same opinion (Definitions of the Supreme Court of the Russian Federation dated November 12, 2015 No. 306-KG15-14509, dated April 12, 2016 No. 306-KG16-2522).
If the updated declaration is submitted before the end of the on-site tax audit for the period included in the audited period, then, of course, no one will finish the inspection, but the consequences will depend on the exact moment at which the “updated” declaration is submitted.
The most painless option is to submit a “clarification” during the inspection, i.e. until the taxpayer is given a certificate of an on-site tax audit. In this case, the updated data will be taken into account by the inspectors in the results of such an audit.
Keep in mind that the tax authority treats the submission of “clarifications” during inspections with increased attention. Most likely, in this case, a requirement will be issued to provide documents and explanations for the amount of clarifications. Requested documents and explanations must be submitted within 10 working days. To confirm the data entered in the tax return, the taxpayer can additionally submit accounting certificates, extracts from tax and (or) accounting registers and (or) other documents, as well as give written explanations in free form on the questions asked to confirm the legitimacy of his position .
The question remains unclear what will happen if the updated declaration is submitted after the audit. For example, after the taxpayer receives an on-site tax audit report or even a decision to prosecute for committing a tax offense. Of course, there is no need to say that such a “clarification” will be analyzed during the audit, because the audit will already be completed. Thus, the tax authority will have the right to choose one of the following actions:
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carrying out additional tax control measures after an on-site tax audit (if a decision has not yet been made to prosecute a tax offense);
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scheduling a repeat on-site tax audit, the subject of which will be the updated data on the declaration;
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conducting a desk tax audit if the appointment of an on-site audit is considered inappropriate.
Be careful!
Please keep in mind that the submission of an updated declaration may trigger the appointment of an on-site tax audit for the adjusted period, incl. repeated. As part of this re-on-site audit, the period for which the revised tax return was submitted is reviewed. In this case, the norm in paragraph. 6 clause 10 art. 89 of the Tax Code of the Russian Federation does not exclude the possibility of conducting a repeat on-site audit of updated tax returns for income tax, in which the amount of the initially declared loss has been increased.
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And more about the nuances
Filing an updated VAT and excise tax return during a desk audit has its own characteristics. According to the explanations that the Federal Tax Service gave in Letter No. AS-4-2/12705 dated July 16, 2013, the law requires the mandatory conduct of an independent “camera study” of the updated declaration. During an on-site audit, inspectors cannot take into account updated data. In addition, if the initial VAT return declares tax to be refunded, and then, before the desk audit report is delivered, an amendment is submitted (also with a refund), then the report on the initial declaration will still be issued. Moreover, if the amount of compensation in the “clarification” is less than in the original document, the companies will reimburse the smaller amount.
Elena Seledtsova
, for the magazine "Calculation"
How to save on VAT without violating the tax code
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