Objections to an on-site tax audit report - sample

Desk inspection: there are violations

Based on the results of the desk audit, the inspectors came to the conclusion that the organization violated the legislation on insurance premiums. In this case, they will record the results of the event in a report (Part 1, Article 38 of Law No. 212-FZ of July 24, 2009). Each regulatory agency has its own forms of acts. They are in the appendices to the Resolution of the Board of the Pension Fund of the Russian Federation dated January 11, 2016 N 1p, Order of the Federal Social Insurance Fund of the Russian Federation dated January 11, 2016 N 2.

Employees of the Pension Fund of the Russian Federation draw up an act in form 7-PFR, and the Federal Social Insurance Fund of Russia draws up an act in form 17-FSS.

Situation: is it possible to cancel the decision of inspectors from an extra-budgetary fund, made based on the results of a desk audit, if they did not draw up a report on the violations found?

Yes, you can.

After all, if, based on the results of a desk audit, the inspectors came to the conclusion that the organization violated the legislation on insurance premiums, then they are obliged to draw up a report (Part 1, Article 38 of the Law of July 24, 2009 No. 212-FZ). This document is one of the main materials of the desk audit of insurance premiums, after consideration of which the inspectors make a final decision based on the results of the event (Part 1, 8, Article 39 of the Law of July 24, 2009 No. 212-FZ).

If there is no report, it means that the inspectors thereby violated the terms of the procedure for considering the materials of the desk audit. And this may become a basis for canceling the inspection decision.

How to file an objection to the Pension Fund regarding fines

The company has 15 days after receiving the inspection report to file an objection to the fine under SZV-M. After the end of this period, the Pension Fund has 10 days to make a decision on the inspection. When making a decision, the regulatory body must consider the organization's point of view. The policyholder has the right to be present at the hearing.

As practice shows, when making a decision, the Pension Fund of the Russian Federation rarely waives a fine or reduces its amount. But if the organization can clearly defend its point of view and the Fund’s management sees the hopelessness of the trial, the fine may be canceled.

If this does not happen, the organization can always challenge the unlawful decision in court.

Desk inspection: drawing up an act

The legislation on insurance premiums establishes clear requirements for the execution of desk audit reports (Part 1, Article 38 of the Law of July 24, 2009 No. 212-FZ).

Employees of the Pension Fund of the Russian Federation and the Social Insurance Fund of Russia must draw up a desk inspection report no later than 10 working days after its completion (Part 1, Article 38 of Law No. 212-FZ of July 24, 2009).

For more details on the timing of desk audits of insurance contributions by the Pension Fund of the Russian Federation and the Social Insurance Fund of Russia:

• How inspections are carried out by the Pension Fund of the Russian Federation;

• How inspections are carried out by the FSS of the Russian Federation.

The inspectors draw up two copies of the report: one of them remains in storage in an extra-budgetary fund (Pension Fund of the Russian Federation, Social Insurance Fund of Russia), the other is handed over to the inspected organization.

Desk audit of the FSS

Open the document in your ConsultantPlus system: “Commentary to the Federal Law of July 24, 1998 N 125-FZ “On compulsory social insurance against accidents at work and occupational diseases” (Peshkova (Belogortseva) H.V., Bondareva E.S. ., Gimazova E.N., Kuropatskaya E.G., Lysenko T.I., Menkenov A.V., Gusev A.Yu., Rothko S.V., Timoshenko D.A., Tlitova I.A., Chernus N.Yu., Belyaev M.A.) (Prepared for the ConsultantPlus system, 2019) Meanwhile, the policyholder had a document confirming the fact of payment of a lump sum benefit for the birth of a child and could have been received by the Social Insurance Fund during a desk audit with proper control of receipt by the policyholder notifications about consideration of inspection materials. The court came to the conclusion that during the desk inspection of the FSS, the necessary and sufficient measures were not taken to properly notify the insured of the time and place of consideration of the inspection materials, as a result of which, taking into account the circumstances of the insured’s failure to receive the request for the submission of documents, the applicant did not have an objective opportunity to take advantage of the right to submit additional documents in support of its application for the allocation of funds for the payment of insurance coverage (see the decision of the Arbitration Court of the Republic of Karelia dated October 22, 2021 in case No. A26-8218/2018).

Desk audit: delivery of the organization’s act

Inspectors must hand over a copy of the act to the organization within five working days from the date of signing the act (Part 4 of Article 38 of the Law of July 24, 2009 No. 212-FZ).

Inspectors can transfer the act to the inspected organization:

• personally to the legal or authorized representative of the organization against signature;

• in electronic form via telecommunication channels;

• in another way indicating the date of receipt of the act by the organization (for example, through a courier service).

This follows from Part 4 of Article 38 of the Law of July 24, 2009 No. 212-FZ.

Similar clarifications are contained in the letter of the FSS of Russia dated February 10, 2012 No. 15-03-11/08-1395.

Desk inspection: sending the report by mail

If an organization (its representative) avoids receiving a desk inspection report, the inspector reflects this fact in the report and sends it by registered mail to the organization (separate unit). In this case, the act is considered received after six working days from the date of dispatch. In this case, the countdown of the six-day period begins from the day following the day of dispatch (it is indicated on the stamp). This follows from the provisions of Part 4 of Article 38, Part 2 of Article 4 of the Law of July 24, 2009 No. 212-FZ.

Similar clarifications are contained in the letter of the Federal SSR of Russia dated February 10, 2012 No. 15-03-11/08-1395.

Desk inspection: objections to the inspection report

If you do not agree with the inspectors’ conclusions reflected in the report, then you can formalize your written objections and submit them to the fund that conducted the inspection (Pension Fund of the Russian Federation, Social Insurance Fund of Russia). This must be done within 15 working days from the day you received the act. Supporting documents (certified copies thereof) can be attached to objections. For example, copies of payment orders. This follows from the provisions of Part 5 of Article 38 of the Law of July 24, 2009 No. 212-FZ.

When objections to an inspection report are submitted

Upon completion of the on-site inspection, the tax authority draws up a report containing facts, if any, of violations of tax legislation by the taxpayer being inspected.
Read about what tax monitoring is and why it allows you to avoid tax audits here.

However, it happens that the person being inspected does not agree with the inspector’s arguments given in the report. In this case, the taxpayer has the right to submit to the tax office his explanations on the audit report (subclause 7, clause 1, article 21 of the Tax Code of the Russian Federation) or objections to it (clause 6, article 100 of the Tax Code of the Russian Federation). With the help of objections, the taxpayer can influence the decision of the tax authority based on the results of the audit.

For information on how the taxpayer’s explanations on tax audit materials are provided, read the article “How tax authorities request explanations from the taxpayer .

When filing objections, observe the deadlines established for this (clause 6 of Article 100 of the Tax Code of the Russian Federation):

• objections are submitted no later than 1 month from the date of receipt of the inspection report;
• the moment of receipt of the act is the date of receipt of the taxpayer (or his representative) on receipt of the act (or the 6th day from the date of sending the postal item with the act, clause 5 of Article 100 of the Tax Code of the Russian Federation).

Considering that submitting objections is not an obligation, the taxpayer may not submit them to the inspectorate. This will not prevent him from participating in the consideration of the materials of the inspection carried out and giving his explanations (paragraph 1, paragraph 4, article 101 of the Tax Code of the Russian Federation).

What should you do if you did not meet the one-month deadline and did not submit written objections within the prescribed period? The answer to this question is available in the ConsultantPlus ready-made solution. Get trial access to the system and study the material for free.

Desk inspection: decision on the inspection report

Based on all available inspection materials (desk inspection report, written objections of the organization to the act, documents requested from the organization or its counterparties), fund employees make a final decision and formalize it. They are given 10 working days for this. In some cases, the 10-day period may be extended, but not by more than one month. The decision is signed by the head of the fund branch (Pension Fund of the Russian Federation or FSS of Russia). This follows from the provisions of parts 1, 8 of Article 39 of the Law of July 24, 2009 No. 212-FZ.

Depending on the conclusions made, the head of the control body (his deputy) decides on the results of the audit:

• or a decision to hold the organization accountable for committing a violation of the legislation on insurance premiums;

• or a decision to refuse to hold the organization liable.

This follows from the provisions of Part 8 of Article 39 of the Law of July 24, 2009 No. 212-FZ.

In the first case, the Pension Fund of the Russian Federation draws up a decision in Form 18-PFR, and the Federal Social Insurance Fund of Russia draws up a decision in Form 20-FSS.

In the second case, the Pension Fund of the Russian Federation draws up a decision in Form 19-PFR, and the Federal Social Insurance Fund of Russia draws up a decision in Form 21-FSS.

Based on the results of reviewing all the necessary inspection materials, the head of the control body (his deputy) makes a number of consistent conclusions:

• whether the organization violated the legislation on insurance premiums;

• does the legislation on insurance premiums provide for liability for detected violations;

• Are there any circumstances that exempt the organization from liability (lack of guilt, expiration of the statute of limitations).

This is stated in Part 6 of Article 39 of the Law of July 24, 2009 No. 212-FZ.

Important: when holding the policyholder liable, the fund cannot take into account circumstances mitigating his guilt. This is not provided for by Law No. 212-FZ of July 24, 2009. However, ignoring mitigating circumstances contradicts the position of the Constitutional Court of the Russian Federation, which declared unconstitutional the exception to the provisions on mitigation of liability from the Law of July 24, 2009 No. 212-FZ (Resolution of the Constitutional Court of the Russian Federation of January 19, 2021 No. 2-P).

Moreover, the Constitutional Court of the Russian Federation obliged legislators to either restore the previous norms or make similar amendments to the law. Until such amendments are adopted, this law must be applied taking into account the position of the Constitutional Court of the Russian Federation (clause 2 of the resolution of January 19, 2021 No. 2-P).

Thus, if an organization has mitigating circumstances, then it is possible to achieve a reduction in the amount of the fine by challenging the decision based on the results of the audit in court. Taking into account the position of the Constitutional Court of the Russian Federation, the chances of winning the dispute are 100 percent. For example, an organization submitted its RSV-1 calculation one day later than the due date. The violation is obvious. But the court recognized the short delay as a mitigating circumstance and reduced the fine by half (resolution of the Moscow District Arbitration Court dated April 1, 2021 No. A41-30902/2015).

Do not contact the higher branches of the funds - they will not help you. By law, they cannot consider and take into account mitigating circumstances. This is the prerogative of the arbitration court (clause 5 of the resolution of January 19, 2021 No. 2-P).

For information that must be included in the decision, see the table below.

Challenging the results of an on-site inspection

The inspection report, written objections thereto and other inspection materials are considered by the head (deputy head) of the body monitoring the payment of insurance premiums that conducted the inspection, and a decision is made within 10 days from the date of expiration specified in paragraph 5 of Art. 38 of Federal Law No. 212-FZ [3]. This period may be extended, but not more than by one month ( clause 1, article 39 of Federal Law No. 212-FZ ).
If you have any questions, you can consult for free via chat with a lawyer at the bottom of the screen or call by phone (consultation is free), we work around the clock.

During the consideration of the audit materials, the head (deputy head) of the body monitoring the payment of insurance premiums:

• establishes whether the person in respect of whom the inspection report was drawn up violated the legislation of the Russian Federation on insurance premiums;
• establishes whether the identified violations constitute an offense under Federal Law No. 212-FZ;
• establishes whether there are grounds for holding a person accountable for committing an offense defined by the said law;
• identifies circumstances that exclude a person’s guilt in committing an offense provided for by Federal Law No. 212-FZ.

Based on the results of consideration of the inspection materials, the head (deputy head) of the body for control over the payment of insurance premiums in the form approved by the body for control over the payment of insurance premiums in agreement with the federal executive body exercising the functions of developing state policy and legal regulation in the field of social insurance, makes a decision ( clause 8, article 39 of Federal Law No. 212-FZ ):

1. on bringing to justice for committing an offense;
2. refusal to hold such liability.

The decision to prosecute for committing an offense or the decision to refuse to prosecute comes into force after 10 days from the date of delivery to the person in respect of whom the corresponding decision was made (his authorized representative) (Clause 12, Article 39 of the Federal Law No. 212-FZ ). Such a person, if he has objective reasons, has the right to disagree with the decision of the control body and go to court in order to prove in court the legality of his actions.

Desk inspection: delivery of the decision

Within five working days after the decision is made and formalized based on the results of the inspection, the fund must deliver it to the organization. The period is counted from the day following the date when the decision was signed (Part 13, Article 39 of the Law of July 24, 2009 No. 212-FZ). For example, if the decision on the inspection was made on March 7, 2014 (Friday), then the fund must deliver it to the organization no later than March 17, 2014.

Employees of the extra-budgetary fund can convey the decision in the following ways:

• personally to the legal or authorized representative of the organization against signature;

• by registered mail;

• in electronic form via telecommunication channels.

A decision sent by registered mail is considered received after six business days from the date of mailing. In this case, the countdown of the six-day period begins from the day following the day of dispatch (it is indicated on the stamp).

This follows from the provisions of Part 13 of Article 39 and Part 2 of Article 4 of the Law of July 24, 2009 No. 212-FZ.

As a general rule, the inspection decision comes into force 10 days from the date it is delivered to the organization (Part 12, Article 39 of the Law of July 24, 2009 No. 212-FZ).

After this, the extra-budgetary fund, within 10 working days, will send to the organization a demand to pay arrears on insurance premiums, penalties and fines accrued based on the results of the audit (Part 3 of Article 22, Part 14 of Article 39 of the Law of July 24, 2009 No. 212 -FZ). This requirement must be fulfilled within 10 working days after receiving it. Although the requirement itself may set a longer period (Part 5 of Article 22 of the Law of July 24, 2009 No. 212-FZ).

If you do not agree with the inspection decision or with the additional amounts accrued therein, you can appeal it (Article 53 of Law No. 212-FZ of July 24, 2009). The decision of the territorial branch of the fund can be appealed to the regional branch or in court. Moreover, this can be done both simultaneously and sequentially (Part 2 of Article 54 of the Law of July 24, 2009 No. 212-FZ).

We object after the check is completed

Objections are submitted after the inspection, when you are given the certificate. It must be compiled. 6 tbsp. 4, part 1, 2 art. 38 of Law No. 212-FZ:

• <if a desk audit was carried out that revealed violations of the law, then no later than 10 working days from the date of expiration of 3 months from the date of submission of the calculation by the payer of insurance premiums. 2 tbsp. 34 of Law No. 212-FZ;
• <if an on-site inspection was carried out, then no later than 2 months from the date of drawing up the certificate of the inspection.

STEP 1. Receive an inspection report

• <or>the act will be handed over to a company representative against receipt. Surely, it is not the head of the company who will go to the fund to collect the document, so the person who is sent there must be given a power of attorney to receive such documents. 8 tbsp. 5.1 of Law No. 212-FZ; Art. 85 Civil Code of the Russian Federation. He will have to sign on the last page of the act and indicate the date of its receipt;
• <or>the act will be sent by registered mail. Regardless of when you actually receive it, it will be deemed received 6 business days from the date the registered letter is sent to you. By the way, even if your company does not shy away from receiving the act handed to it, inspectors have the right to send it by mail;
• <or>the act will be sent electronically via telecommunications channels (TCS).

STEP 2. We study the inspection report and draw up objections to it

Read the act carefully and try to find errors by the inspectors - procedural (made by the inspectors during the process of conducting and completing the inspection) or substantive. State them in objections, which must be submitted to the fund no later. 4, 5 tbsp. 38, part 6 art. 4 of Law No. 212-FZ:

• <if the act arrived by mail - then 21 working days from the date the fund sent you the act;
• <if>the act was delivered to a representative of the company or received under the TKS - then 15 working days from the date of delivery or receipt of the act under the TKS.

Objections to the on-site inspection report dated June 26, 2015 No. 304

According to the on-site inspection report dated June 26, 2015 No. 304 (a copy of the report was handed over to the representative of the insurance premium payer on June 29, 2015), it is proposed to charge additional insurance premiums and hold the insurance premium payer accountable in the form of a fine for violating the legislation on insurance premiums (Part 1, Article 47 Federal Law No. 212-FZ of July 24, 2009 (hereinafter referred to as Law No. 212-FZ)) - for incomplete payment of insurance premiums as a result of the unlawful application in 2014 of the reduced insurance premium rate provided for in Part 3.4 of Art. 58 of Law No. 212-FZ.

Flashka.ru LLC does not agree with the facts stated in the inspection report, as well as with the conclusions and proposals of the inspectors, and therefore, on the basis of Part 5 of Art. 38 of Law No. 212-FZ Support all your arguments with references. In addition to links to laws and regulations, these may be links to: letters from the Pension Fund of Russia or the Social Insurance Fund confirming the legitimacy of your position; for judicial practice. Try to select the latest solutions or at least those adopted no more than 3 years ago. Arrange links to judicial practice in the following sequence: acts of the Armed Forces of the Russian Federation, the Supreme Arbitration Court of the Russian Federation (decrees of the Plenum, Presidium, information letters, definitions) → decisions of the Court of Justice of your district → acts of lower courts in your region → acts of courts of other regions presents its objections to the inspection report.

The organization has the right to apply a reduced tariff established by Part 3.4 of Art. 58 of Law No. 212-FZ, since the following conditions are met: - the organization has been applying the simplified tax system since 2013 (Fleshka.ru LLC was registered and registered for tax purposes on 08/06/2012); — the main type of activity of the organization is the type of activity given in subparagraph. “i.7” clause 8, part 1, art. 58 of Law No. 212-FZ. The main type of activity is recognized if the share of income from the sale of products and (or) services provided for it is at least 70% of the total income (Part 1.4 of Article 58 of Law No. 212-FZ; Article 346.15 of the Tax Code of the Russian Federation). At the end of 2014, the amount of income of Flashka.ru LLC for 2014 amounted to 3,166,064 rubles. Flashka.ru LLC carries out the activities specified in the constituent documents - software development and consulting in this area (code 72.20 OKVED). In 2014, the share of income from this type of activity in total income was 100%.

Thus, Flashka.ru LLC lawfully applied in 2014 the reduced rate of insurance premiums provided for in Part 3.4 of Art. 58 of Law No. 212-FZ. Consequently, we consider it unlawful: - additional accrual of insurance premiums to Fleshka.ru LLC in the amount of 37,500 rubles. and penalties in the amount of RUB 3,453; — a proposal to hold accountable for non-payment or incomplete payment of insurance premiums as a result of understating the base for calculating insurance premiums.

If you have several comments on the inspection report, you can break the objections into points. For example, like this: “1. On the issue of unlawful application of the reduced tariff of insurance premiums provided for in Part 3.4 of Art. 58 of Federal Law No. 212-FZ. … 2. Regarding the content of the on-site inspection report. When drawing up inspection report No. 304, the inspectors did not indicate in the descriptive and motivational parts of the report the circumstances of the commission of the violation imputed to the company: not all documents inspected were listed; are indicated as unsubmitted documents that were not requested from the policyholder. Therefore, it is impossible to draw a conclusion from the act about the investigation, establishment and proof of the guilt of the company. As a rule, courts cancel inspection decisions made on the basis of an act that does not contain a description of the offense charged to the payer of insurance premiums (Chapter 5 of Law No. 212-FZ; Resolution of the AS UO dated November 26, 2014 No. F09-7363/14).”

Considering the above, in accordance with Articles 38 and 39 of Law No. 212-FZ, I ask:

Based on the results of the consideration of the materials of the on-site inspection of Flashka.ru LLC, make a decision to refuse to prosecute for committing an offense and not to collect arrears on insurance premiums and penalties for late payment of insurance premiums.

Appendices 1. Copy of the notice of the transition of Flashka.ru LLC to the simplified tax system (form No. 26.2-1). 2. A copy of the tax return for the tax paid in connection with the application of the simplified tax system for 2014. 3. A copy of the book of income and expenses for 2014: the title page and the section “Income and expenses” for the fourth quarter with the total for the year. 4. A copy of the certificate confirming the main type of economic activity dated April 14, 2015. 5. Copy of the power of attorney for the chief accountant of Fleshka.ru LLC dated June 25, 2015 No. 14.

Representative of Flashka.ru LLC by proxy

06.07.2015

You can send your objections by mail in a valuable letter with a list of attachments. But it is better to bring two copies of the text to the office of the fund branch so that your copy can be marked as accepted.

If for some reason you do not have time to submit objections to the inspection report on time, prepare them for the day of consideration of the inspection materials, to which you must be invited. They must also accept your written objections.

STEP 3. Participate in the review of inspection materials

The fund department is obliged to notify you about the time and place of consideration of the audit materials. 2 tbsp. 39 of Law No. 212-FZ. The legislation does not establish a special form for such notification. Therefore, you may simply be given a paper from the fund indicating the date, time and place where you need to appear.

ADVICE

If you are notified of the consideration of the act not in writing, but by telephone, then:

• If you are sure that you are right, come to the meeting. Suppose the inspectors made some obvious error (for example, an arithmetic one) and you know that you can get a decision made in your favor in whole or in part;
• There is no confidence in your position - you don’t have to show up for the meeting. And then appeal the inspection decision to a higher authority or in court as made in violation of the procedure. After all, it was accepted in the absence of the fee payer, who was not properly notified of the place and time of consideration of the inspection materials. Resolution of the Federal Antimonopoly Service of the Eastern Military District dated February 10, 2014 No. A11-9/2013.

When reviewing your inspection materials, take with you:

• passport and power of attorney for a company representative if the director is not attending the meeting;
• a copy of your written objections;
• a copy of the inspection report;
• documents that you plan to refer to as evidence of your case.

Think about your speech and argument in advance so that you can, in particular:

• present your arguments consistently and completely;
• focus on important points. For example, how a controversial issue has been resolved in judicial practice, what explanations are available on it from the Pension Fund of Russia or the Social Insurance Fund.

***

Recall that the verification solution should be:

• accepted within 10 working days from the date of expiration of 15 working days given to you for submitting objections. 5 tbsp. 38, part 1 art. 39 of Law No. 212-FZ;
• transferred to your organization within 5 working days after the day of its acceptance. 13th century 39 of Law No. 212-FZ:

• <or>handed to a representative of your company or sent via TKS;
• <or>sent by registered mail. In this case, the decision will be considered received after 6 working days from the date of its sending.

If your explanations or objections were not taken into account by the inspectors or were partially taken into account and a decision was made against your company to collect arrears, penalties and (or) a fine, it will be executed from the date it comes into force. That is, after 10 working days from the date of delivery of such a decision, you may receive a demand for payment of arrears, penalties, fines, appendices 7, 8 to Order of the Ministry of Labor dated November 27, 2013 No. 698n; part 12 art. 39, art. 22 of Law No. 212-FZ.

To avoid undisputed write-off of money and not to miss the opportunity to appeal a decision that you think is unlawful, do not delay in filing a complaint with the regional office of the fund. And do not forget to indicate in your complaint the procedural violations of the inspectors that you were able to collect when preparing objections to the inspection report.

Other articles from the magazine "MAIN BOOK" on the topic "Reporting to the Pension Fund of Russia / reporting to the Social Insurance Fund":

On-site inspection: certificate of completion of the inspection

On the last day of the on-site inspection of insurance premiums, the head of the inspection team (Pension Fund of the Russian Federation, Social Insurance Fund of Russia) draws up a certificate of the inspection carried out (Part 23, Article 35 of the Law of July 24, 2009 No. 212-FZ, clause 9.1 of the Methodological recommendations approved by the order Board of the Pension Fund of the Russian Federation dated February 3, 2011 No. 34r). The forms of certificates about the inspection carried out are given in the appendices to the Resolution of the Board of the Pension Fund of the Russian Federation dated January 11, 2016 N 1p, Order of the Federal Social Insurance Fund of the Russian Federation dated January 11, 2016 N 2.

For information on the timing of an on-site inspection of insurance contributions by the Pension Fund of the Russian Federation and the Social Insurance Fund of Russia, see:

• How inspections are carried out by the Pension Fund of the Russian Federation;

• How inspections are carried out by the FSS of the Russian Federation.

The Pension Fund of the Russian Federation draws up a certificate in form 15-PFR, the Federal Social Insurance Fund of Russia draws up a certificate in form 13-FSS.

If the fund’s employees have drawn up a certificate, then the verification can be considered completed. At the same time, representatives of extra-budgetary funds no longer have the right to be on the territory of the organization, request documents and carry out any control measures (part 14 of article 35 of the Law of July 24, 2009 No. 212-FZ, paragraph 3 of clause 6.1 of the Methodological Recommendations, approved by the order of the Board of the Pension Fund of the Russian Federation dated February 3, 2011 No. 34r).

On-site inspection: presentation of a certificate

The funds must hand over a certificate of the inspection to a representative of the organization on the day of preparation (i.e., on the last day of the inspection). You will need to sign that you have received the certificate. If you refuse, the inspectors will send the document to the organization’s address by registered mail. In this case, the certificate is considered received after six working days from the date of sending the registered letter. In this case, the countdown of the six-day period begins from the day following the day of dispatch (it is indicated on the stamp). This follows from the provisions of part 23 of article 35, part 2 of article 4 of the Law of July 24, 2009 No. 212-FZ, paragraph 3 of clause 9.1 of the Methodological recommendations approved by the order of the Board of the Pension Fund of the Russian Federation of February 3, 2011 No. 34r.

On-site inspection: inspection report

No later than two months from the date of issuing the certificate, the inspectors draw up an on-site inspection report (Part 2, Article 38 of Law No. 212-FZ of July 24, 2009, clause 9.2 of the Methodological Recommendations approved by the order of the Board of the Pension Fund of the Russian Federation dated February 3, 2011 city ​​No. 34r). The forms of on-site inspection reports are given in the appendices to the Resolution of the Board of the Pension Fund of the Russian Federation dated January 11, 2016 N 1p, Order of the Federal Social Insurance Fund of the Russian Federation dated January 11, 2016 N 2.

The Pension Fund of the Russian Federation draws up an act in form 16-PFR, the Federal Social Insurance Fund of Russia draws up an act in form 18-FSS.

Inspectors must draw up a report, even if the results of the inspection did not reveal any violations. In this case, the controllers also describe everything that they checked and record in the report that no violations were found (part 2 of article 38 of the Law of July 24, 2009 No. 212-FZ, clause 9.2 of the Methodological recommendations approved by order of the Board of the Pension Fund RF dated February 3, 2011 No. 34r).

The fund's employees must draw up an on-site inspection report strictly according to the established rules. In this they should be guided by Part 2 of Article 38 of the Law of July 24, 2009 No. 212-FZ and the relevant appendices to the Resolution of the Board of the Pension Fund of the Russian Federation dated 01.11.2016 N 1p, Order of the Federal Social Insurance Fund of the Russian Federation dated 01.11.2016 N 2.

The inspectors draw up two copies of the report in Form 18-FSS: one of them remains in storage at the branch of the FSS of Russia, the other is handed over to the inspected organization. The act in form 16-PFR is drawn up in three copies: one remains in storage at the branch of the Pension Fund of the Russian Federation, the second - with the audited organization, the third is handed over to the tax inspectorate, which participated in the audit. Such rules are established by Resolution of the Board of the Pension Fund of the Russian Federation dated January 11, 2016 N 1p and Order of the Federal Social Insurance Fund of the Russian Federation dated January 11, 2016 N 2.

On-site inspection: delivery of the organization’s act

Inspectors must hand over a copy of the act to the organization within five working days from the date of signing the act (part 4 of article 38 of the Law of July 24, 2009 No. 212-FZ, clause 9.2 of the Methodological Recommendations approved by the order of the Board of the Pension Fund of the Russian Federation of February 3 2011 No. 34r).

Inspectors can transfer the report to an inspected organization:

• personally to the legal or authorized representative of the organization against signature;

• in electronic form via telecommunication channels;

• in another way indicating the date of receipt of the act by the organization (for example, through a courier service).

This follows from Part 4 of Article 38 of the Law of July 24, 2009 No. 212-FZ, paragraph 9.2 of the Methodological Recommendations approved by Order of the Board of the Pension Fund of the Russian Federation of February 3, 2011 No. 34r.

Similar clarifications are contained in the letter of the FSS of Russia dated February 10, 2012 No. 15-03-11/08-1395.

On-site inspection: sending the report by mail

If the organization (its representative) does not sign for receipt of the on-site inspection report, the inspector will reflect this fact in the report and send it by registered mail to the organization (separate unit). In this case, the act is considered received after six working days from the date of dispatch. In this case, the countdown of the six-day period begins from the day following the day of dispatch (it is indicated on the stamp). This follows from the provisions of Part 4 of Article 38, Part 2 of Article 4 of the Law of July 24, 2009 No. 212-FZ, paragraph 9.2 of the Methodological Recommendations approved by the order of the Board of the Pension Fund of the Russian Federation of February 3, 2011 No. 34r.

Similar clarifications are contained in the letter of the FSS of Russia dated February 10, 2012 No. 15-03-11/08-1395.

Procedure for conducting an on-site inspection

On-site inspections are characterized by strict adherence to the approved plan for monitoring the activities of policyholders. Inspection activities are carried out directly on the employer’s premises. In exceptional cases, if it is impossible for the inspected enterprise to provide employees of the executive bodies of the Social Insurance Fund with accommodation while they are working on documentation, the inspection can be carried out on the basis of the fund with the condition that all necessary documentation is supplied.

The inspection period is no more than 3 years. The frequency of inspections is maximum 1 time every 3 years.

REFERENCE! An exception to the frequency of inspection activities can be made for cases of reorganization or liquidation of an enterprise - an inspection is scheduled upon the occurrence of one of these events and does not correlate with the date of previous monitoring.

Duration – up to 2 months, and when monitoring performance indicators of separate units – up to 1 month.

On-site inspection: objections to the act

If an organization does not agree with the inspectors, it can file written objections and submit them to the fund that conducted the inspection (Pension Fund of the Russian Federation, Social Insurance Fund of Russia). This must be done within 15 working days from the date of receipt of the act. In this case, the organization has the right to attach supporting documents (their certified copies) to such objections. For example, copies of payment orders. This follows from the provisions of Part 5 of Article 38 of the Law of July 24, 2009 No. 212-FZ, paragraph 9.2 of the Methodological Recommendations approved by the order of the Board of the Pension Fund of the Russian Federation of February 3, 2011 No. 34r.

Objection to the report of a desk or field inspection of the Pension Fund of Russia or the Social Insurance Fund

» » After conducting a desk or on-site inspection, if violations of the legislation on insurance contributions are detected, the Pension Fund or Social Insurance Fund issues an act against a legal entity or individual entrepreneur.

But if you do not agree with the opinion of the regulatory authorities, then you have the opportunity to file an objection to the report of a desk or field inspection within 15 working days. Federal Law 212-FZ defines a certain procedure after the issuance of the act.

So, after issuing a desk or field inspection report, the Pension Fund or Social Insurance Fund is obliged to invite you to sign and receive the inspection report. The inspection report must be delivered to the payer within 5 working days. If it is not possible to receive an inspection report, a legal entity or individual entrepreneur can apply in writing to the control authorities with a request to send the report by mail.

In addition, with the inspection report, the control authorities must give you a notice of the date of consideration of the desk or on-site inspection report and the adoption of a decision on bringing to justice. From the next day after receiving the act, the payer begins counting 15 working days for filing objections.

Objections to the report of a desk or field inspection are submitted in writing and transmitted to the Pension Fund or Social Insurance Fund by mail or by hand, with a mark of acceptance on the second copy. After receiving objections, control bodies are obliged to consider them before making a decision; based on the results of consideration of objections, a commission protocol is drawn up.

This protocol indicates the fact that objections were received, the essence of the objections filed, and the decision of the commission on these objections. Consideration of objections must take place in the presence of the payer, and he must be notified in advance of the date of consideration of the decision.

In most cases, the Pension Fund and the Social Insurance Fund reject the payer’s arguments and do not take into account the objections.

But, at certain points, the reason for this refusal is insufficient knowledge of the law and the inability to defend one’s position. A correctly developed position and well-written documents are the basis for the successful protection of the rights of the insurance premium payer. As a result, you will be able to prove your position without going to trial.

The Legal Bureau of E. Romanova is ready to provide highly qualified assistance and analyze documents, prepare objections to the report of a desk or field inspection and represent your interests when considering objections. Prices for the services of lawyers and advocates depend on the tasks. Call now! Let's help!

On-site inspection: decision on the report

Based on all available inspection materials (on-site inspection report, written objections of the organization to the act, documents requested from the organization or its counterparties), the inspectors make a final decision based on the results of the on-site inspection and formalize it. This follows from the provisions of parts 1, 8 of Article 39 of the Law of July 24, 2009 No. 212-FZ, paragraph 9.3 of the Methodological Recommendations approved by the order of the Board of the Pension Fund of the Russian Federation of February 3, 2011 No. 34r.

When making a decision based on the results of the inspection, the head of the fund’s department (his deputy) is obliged to find out whether there are circumstances that exempt the organization from liability (lack of guilt, expiration of the statute of limitations) (Clause 4, Part 6, Article 39 of the Law of July 24, 2009 No. 212-FZ). In addition, in court it is possible to prove that the insured has circumstances that mitigate his liability (resolution of the Constitutional Court of the Russian Federation of January 19, 2021 No. 2-P).

The timing, procedure and rules for drawing up a decision based on the results of an on-site inspection of insurance premiums are similar to the procedure for drawing up a decision based on the results of a desk audit.

Who to write objections to the on-site inspection report of the PFR NPO

Free legal consultation: All Russia An objection to a tax audit report is a document that any organization subject to tax control has the right to write. FILESDownload a blank form of objection to the tax audit report .docobjections to the tax audit report .doc An objection drawn up on behalf of the company allows its management to appeal any actions, results and conclusions of the tax authorities who carried out the tax audit. There are two main types of violations committed by tax authorities:

• procedural (i.e. errors in the order of the event);
• violations related to substantive law (i.e. incorrect interpretation of any documents, incomplete accounting of provided papers, etc.).

The tax office is obliged to respond to a written objection, regardless of which of these types of violations it is written about.

Everything related to the company’s activities in terms of documents, finance, accounting and taxes can and should be appealed in case of disagreement. But there are some points against which it is not advisable to file an objection with the tax office.

This:

1. inaccuracies in the preparation of the protocol,
2. minor procedural violations.
3. timing of the verification procedure (start and end dates),

All these minor details should be ignored at this stage, focusing on the essence of the claim. Here the mark “at this stage” means that they should be reserved for the court, where, if something happens, they can try to discredit the act (i.e., declare it illegal). In addition, it should be borne in mind that an objection drawn up in accordance with all the rules, with all the necessary papers attached, regarding the audit procedure may well lead to additional control measures on the part of the tax authorities.

And their results, in turn, can easily reveal more serious errors and violations in the activities of the enterprise.

Before “starting a discussion” with the tax authorities, it is advisable to stock up on one hundred percent arguments and a set of convincing documents certifying the correctness of the organization, which must be added to the objection. To do this, it is necessary to carefully study the tax audit report, and recheck all identified controversial points several times. If, at the time of writing the tax audit report, the company for some reason lacked some documents, but it managed to restore them as soon as possible or was able to correct minor inaccuracies in the existing papers, this must be reflected in the objection.

This will reduce the amount of additional tax assessed, if any, and also avoid all kinds of fines and penalties. All your arguments must be carefully and thoroughly explained, indicating the circumstances that led to this or that shortcoming and referring to the legislation of the Russian Federation in the field of taxes, civil law, judicial practice and company regulations.

How to appeal a decision of an extra-budgetary fund

You can appeal the decision either to a higher department of the fund or in court. Unlike decisions of tax inspectorates, complaints can be filed simultaneously: to go to court, you do not need to wait for the conclusion of a higher department of the fund (Article 54 of the Law of July 24, 2009 No. 212-FZ). The period for appeal is three months from the date of the decision (part 4 of article 198 of the Arbitration Procedure Code of the Russian Federation, paragraph 2 of article 55 of the Law of July 24, 2009 No. 212-FZ).

Situation: how to appeal the decision of the territorial branch of the Pension Fund of the Russian Federation or the Federal Social Insurance Fund of Russia to hold the policyholder liable?

The decision of the territorial branch of an extra-budgetary fund to prosecute can be appealed both to a higher branch of the fund and in court. Moreover, you can go to court and to a higher department of the fund at the same time (Part 2 of Article 54 of the Law of July 24, 2009 No. 212-FZ).

Appeal to a higher department of the fund

You will see the name of the higher authority where you can file a complaint and its location in the decision itself. The decision comes into force after 10 days from the moment when the representative of the organization received it personally. But you can file a complaint after this period. The main thing is, no later than three months from the moment the policyholder (i.e., your organization) learned that his rights were violated. As a rule, this happens after receiving a decision. This is stated in parts 11, 12 of Article 39, part 2 of Article 55 of the Law of July 24, 2009 No. 212-FZ.

Make a complaint to a higher department of the fund in writing. Please indicate in it:

• which fund conducted the audit;

• information about the applicant, that is, about your organization;

• the reason for the complaint;

• arguments to substantiate objections;

• requirements for the higher department of the fund.

This procedure, in particular, is provided for in paragraph 55 of the Administrative Regulations, approved by Order of the Ministry of Labor of Russia dated September 18, 2013 No. 467n.

You can send a complaint by mail, electronically (including through the government services portal) or personally take it to the fund’s branch. The Fund will review it within a month. Then he will make one of the following decisions:

• will leave the complaint unsatisfied;

• will overturn the decision of the lower branch in whole or in part;

• will change the decision of the lower branch or make a new decision.

The higher department of the fund must report the decision in writing within three days from the date of its adoption.

This procedure is set out in Part 1 of Article 55 and Parts 2–4 of Article 56 of the Law of July 24, 2009 No. 212-FZ.