Writing objections to a tax audit report - sample

What exactly is an objection to a tax audit report used for?

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.

What you shouldn't complain 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:

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

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.

Objections to the claim of the tax authority for the recovery of tax arrears (sample)

A sample of objections to a claim by the tax authority for the collection of tax arrears , penalties for late payment of taxes and fines for committing tax offenses.

In this particular case, the court of first instance made a decision not in favor of the taxpayer, but the appellate court overturned this decision, agreeing with the arguments set out below about the tax authority missing the preemptive deadline for filing a similar claim in court, and made a new decision to refuse the tax authority in meeting the stated requirements.

To the Pervomaisky District Court of Novosibirsk 630046, Novosibirsk, st. Shmidta, 2a judge ____________

from the Defendant: Ivan Sergeevich Ivanov 630046, Novosibirsk, st. Pervomayskaya, ___, apt. __

Plaintiff: Interdistrict Inspectorate of the Federal Tax Service of Russia No. 13 for Novosibirsk 630128, Novosibirsk, st. Kutateladze, 16a

OBJECTIONS to the claim of the MIFTS of Russia No. 13 against Ivanov I.S. on the collection of taxes, penalties and fines

MIFNS of Russia No. 13 in Novosibirsk filed a lawsuit against Ivanov I.S. on debt collection for the single tax on imputed income, transport tax, penalties and tax sanctions. The claim is based on the decision of the Deputy Head of the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 13 for Novosibirsk No. __ dated “__” August 2012, which entered into legal force, to bring Ivan Sergeevich Ivanov (TIN ________) to tax liability for committing tax offenses provided for in paragraph 1 Art. 122 and art. 119 of the Tax Code of the Russian Federation. The plaintiff's demands boil down to recovery from the defendant Ivanov I.S. debt in the total amount of 797,365 rubles. 48 kopecks, including: UTII debt in the amount of 629,072 rubles. 58 kopecks, penalties for late payment of UTII in the amount of 101,146 rubles. 70 kopecks, a fine under UTII in the amount of 63,933 rubles. 10 kopecks, transport tax in the amount of 112 rubles. 50 kopecks, a fine for transport tax in the amount of 60 kopecks, a fine for UTII distributed among the levels of the budget system in the amount of 1,100 rubles, a fine for the tax levied on a taxpayer who has chosen income without expenses as an object of taxation in the amount of 1,000 rubles, personal income tax fine in the amount of 1000 rubles.

The defendant’s side does not fully agree with the stated claim due to the following.

Indeed, by the decision of the Deputy Head of the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 13 for Novosibirsk No. ____ dated “__” August 2012 to involve the defendant Ivanov I.S. (TIN ______) the defendant is held tax liable for committing tax offenses under paragraph 1 of Art. 122 and art. 119 of the Tax Code of the Russian Federation and he was sentenced to a fine in the total amount of 67,033 rubles. 10 kopecks By the said decision Ivanov I.S. penalties were also accrued for late payment of UTII as of the date of its issuance (“__” August 2012) for a total amount of 101,146 rubles. 70 kopecks and it was proposed to pay the arrears on UTII in the total amount of 639,331 rubles. This decision was made based on the results of an on-site tax audit conducted in relation to the defendant Ivanov I.S. from “__” _______ 2012 to “__” _________ 2012 MIFTS of Russia No. 13 for Novosibirsk.

The procedure for collection by the tax authority of arrears of taxes and penalties for late payment from an individual is clearly regulated by the Tax Code of the Russian Federation. So, in accordance with paragraph 4 of Art. 69, paragraph 2 of Art. 70 of the Tax Code of the Russian Federation, if a taxpayer has a tax arrears, the tax authority is obliged to send to him a demand for tax payment containing information about the amount of tax debt, the amount of penalties accrued at the time of sending the demand, the deadline for paying the tax, the deadline for fulfilling the demand, as well as measures to collect tax and ensure the fulfillment of the obligation to pay tax, which are applied in the event of failure to comply with the requirement by the taxpayer. The requirement to pay tax based on the results of a tax audit must be sent to the taxpayer within 10 days from the date of entry into force of the relevant decision.

In accordance with paragraph 2 of Art. 101.2 of the Tax Code of the Russian Federation, decision of the Deputy Head of the MIFTS of Russia No. 13 No. 13/8 dated June 29, 2012 came into force from the date of its approval by a higher tax authority - September 10, 2012 (decision of the Federal Tax Service of Russia on VAT dated September 10, 2012 is attached to review).

The date of sending the demand for payment of taxes, penalties, and fines is also linked to the pre-trial period established by law for the tax authority to file a corresponding claim in court. The application for collection is submitted to a court of general jurisdiction by the tax authority within six months from the date of expiration of the deadline for fulfilling the requirement to pay taxes, fees, penalties, fines (clause 2 of Article 48 of the Tax Code of the Russian Federation). If the tax authority submitted an application for the issuance of a court order, but the order was canceled by the court, the demand for the collection of taxes, fees, penalties, fines at the expense of the property of an individual may be presented by the tax authority in the manner of claim proceedings no later than six months from the date of the court’s ruling on cancellation of a court order (clause 3 of Article 48 of the Tax Code of the Russian Federation).

Bearing in mind that this deadline is preemptive, if it is missed, the court refuses to satisfy the demands of the tax authority.

Court order No. 2-__/2013 dated " " ______ 2013 on the recovery from the defendant Ivanov I.S. all the above-mentioned payments were canceled by the Justice of the Peace of the 1st judicial district of the Pervomaisky district of Novosibirsk on February 20, 2013 (the corresponding determination of the Justice of the Peace was presented by the plaintiff along with the statement of claim). Thus, based on the above provisions of the law, the deadline for MIFNS No. 13 to file a claim in court against the defendant Ivanov I.S. expired August 20, 2013. Meanwhile, the claim was filed after missing this deadline, which is grounds for refusal of the claim.

In accordance with paragraph 2 of Art. 48 of the Tax Code of the Russian Federation, the deadline for filing an application for recovery missed for a good reason can be restored by the court, but the plaintiff has not even announced the restoration of the deadline for filing a claim in court. In the situation under consideration, there are no valid reasons for the tax authority to miss the deadline for going to court, despite the fact that the Pervomaisky District Court, when accepting the application of Ivanov I.S. to challenge the above-mentioned decision of the Ministry of Financial Taxation No. 13, its effect as interim measures was suspended. As the plaintiff correctly pointed out, by the decision of the court of appeal Ivanov I.S. the request to recognize this decision as invalid was refused. More than four months have passed since the court of appeal issued the said decision (appeal ruling dated April 25, 2013).

The Plenum of the Supreme Arbitration Court of the Russian Federation in its Resolution No. 57 of July 30, 2013 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” noted that the need for coordination with a higher authority cannot be considered as valid reasons for missing the specified deadlines (by another person) the question of the tax authority filing a corresponding application with the court, the presence of a tax authority representative on a business trip (vacation), personnel changes, change of the head of the tax authority (his stay on a long business trip, vacation), as well as other internal organizational reasons that resulted in untimely filing an application (clause 9 of the Resolution).

On the basis of the above,

ASK:

MIFTS No. 13 of Russia for the city of Novosibirsk refuses to satisfy the requirements to Ivan Sergeevich Ivanov for the collection of debt on the single tax on imputed income, transport tax, penalties and tax sanctions in full.

September 25, 2013

defendant Ivanov I.S. _________________

How to justify an objection

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.

It will be difficult for tax authorities to argue with well-founded arguments; moreover, if something happens, they will become the evidence base when the company goes to court (if, of course, it comes to that). It should also be noted here that in court it will be possible to raise only those points of the tax audit report that were previously appealed to a higher tax office.

Formulation and content of objections

Objections must be made in writing - as prescribed by Article 139.2 of the Tax Code, introduced by Law No. 153-FZ of July 2, 2013. There are no other requirements for this document in the Tax Code of the Russian Federation. Article 139.2 of the Tax Code defines a list of information that must be reflected in the complaint, which can also be applied to objections.

Although there are no regulatory requirements for stating objections on organization letterhead, this can be recognized as a business custom.

The objections themselves can be divided into three parts:

introductory (the shortest part of the objection, usually consisting of 1 – 3 paragraphs);
descriptive (the main part of the objections);
resolutive.

The introductory part contains information about the audit itself, the grounds for its conduct, its actual period of conduct, the composition of the inspectors, which tax audit report is being objected to, indicating the date and number of this document. The wording could be as follows:

“In the period from _____ to ____, the Federal Tax Service Inspectorate conducted an on-site tax audit in the ______________ district of the _________ region, as a result of which act No. ____ dated __.__.____ was drawn up.

Based on the results of this act, the Company (individual entrepreneur) was asked to pay arrears of taxes (fees) in the amount of ..., penalties accrued on it in the amount of ..., as well as fines in the amount of .... These proposals are based on the inspection materials and conclusions reflected in the report.

The taxpayer does not agree with the facts set out in the tax audit report, as well as with the conclusions and proposals of the inspectors, and therefore, on the basis of paragraph 6 of Article 100 of Part One of the Tax Code of the Russian Federation, he submits his objections to the tax audit report. ... ".

The descriptive part of the objections sets out all the arguments and arguments of the taxpayer. Here you can indicate any arguments (both indisputable and controversial and dubious) - this is the right of the taxpayer, but first you need to understand which violations reflected in the act actually occur, and which are speculations of tax officials.

Next, it is necessary to assess whether the organization will challenge those comments that actually occur. This can be done by eliminating the comments identified by the tax authorities, i.e. submit updated tax returns that reflect both the amount of additional tax assessed and the amount of unaccounted expenses or unaccepted deductions. All this will reduce the amount of fines and penalties.

In addition, if the company has the opportunity to restore missing documents or correct shortcomings in existing documents, then it is also worth taking care of this and submitting corrected or restored documents along with objections. In this part, the tax authority will also have to reduce the amount of additional tax assessed, taking into account the corrections made.

It is better to present your arguments in detail, indicating the disputed paragraph of the act and explaining why the organization acted this way and not differently.

It is advisable that your arguments are supported by references to laws, clarifications of the Ministry of Finance and the Federal Tax Service of the Russian Federation, judicial practice and documentation of the taxpayer himself (with its attachment) - it will be difficult for tax authorities to argue with such arguments.

It is also necessary to indicate:

errors in the inspectors’ calculations (if any occur in the report);
situations related to incorrect assessment of documents and facts
errors or distortions, incorrect interpretation of the taxpayer’s business transactions.

It is better to present your arguments according to the text of the act consistently.

All violations can be divided into 2 groups:

violation of the inspection process (i.e. the order and procedure for its conduct);
violation of substantive law (i.e. interpretation by the tax authority of the content of regulations)

If an organization challenges an act of a tax authority only in terms of the procedure for conducting an audit, then the head of the tax authority may make a decision to carry out additional control measures, which will allow the tax authority to eliminate procedural omissions. Therefore, it is better to draw up objections to the tax audit report based not only on procedural shortcomings, but also on the omissions that the tax authorities made on the merits of the audit.

It should be remembered that an organization has the right to appeal the decision to bring it to tax liability in court only in that part that was appealed to a higher tax authority because only in this case will the mandatory pre-trial procedure for resolving the dispute be observed (this conclusion follows from the systemic interpretation of clause 5 of Article 101.2 of the Tax Code of the Russian Federation and sub-clause 2 of clause 1 of Article 148 of the Arbitration Procedure Code of the Russian Federation).

The content of the descriptive part of the objections may look like this:

The facts stated in the tax audit report do not correspond to the following circumstances: _____________________________ (circumstances are stated with reference to documents confirming them).

Thus, the inspectors’ conclusions do not correspond to __________________ (laws and other regulatory legal acts are indicated, which, in the taxpayer’s opinion, the inspectors’ conclusions do not correspond to

The operative part of the objections summarizes the results and indicates the total amount of additionally assessed taxes, with which the organization does not agree, broken down by periods and amounts (or the amount of tax, the refund of which was refused).

The wording of the operative part may be as follows:

Taking into account the above, in accordance with Articles 100, 101 of the Tax Code of the Russian Federation, based on the results of consideration of the tax audit materials, I ask:

1) make a decision to refuse to prosecute for committing a tax offense;

2) do not charge additional taxes and do not charge penalties for late payment.

Also in the operative part (in order not to give tax authorities an extra reason to consider objections without you), it is better to write that the organization asks to notify it of the date, place and time of consideration of objections, indicating the contact person, address (location of the organization), telephone, fax (if This information differs from that indicated on the organization’s letterhead).

If copies of supporting documents are attached to objections, then they must be listed in the “Appendices” section of the objections themselves (indicating the names, details and number of sheets) or an inventory of them must be compiled. Copies must be certified by the signature of an authorized person and the seal of the organization. As the Ministry of Finance of the Russian Federation explained in its letter No. 03-02-07/1-122 dated May 11, 2012, each copy of the document must be certified, and not their filing.

Objections signed by an authorized person are sent to the tax office, which carried out the audit and drew up the report.

Where and how to file an objection

The objection should be submitted to the address of the territorial tax service, whose specialists carried out the audit. The document can be transferred:

personally “hand to hand”,
by sending it by registered mail with return receipt requested.

Both of these methods ensure that tax authorities receive the objection in a timely manner.

Today, another proven option for document delivery has become widespread: through electronic services , but only on condition that the organization has an officially registered digital signature.

What is the deadline for filing objections?

Organizations and individuals submit objections to the act within one month from the date of receipt, responsible participants of consolidated groups - within thirty days (Clause 6 of Article 100 of the Tax Code of the Russian Federation).

A person in respect of whom a tax audit was carried out (his representative), in case of disagreement with the facts set out in the tax audit report, as well as with the conclusions and proposals of the inspectors, within one month from the date of receipt of the tax audit report, has the right to submit written objections to the relevant tax authority on the said act as a whole or on its individual provisions. In this case, the person in respect of whom the tax audit was carried out (his representative) may attach to the written objections or, within the agreed period, submit to the tax authority documents (certified copies thereof) confirming the validity of the objections.
in ed. Federal laws dated July 23, 2013 No. 248-FZ, dated July 3, 2016 No. 243-FZ

As you can see, the Tax Code of the Russian Federation clearly and specifically describes situations in which a taxpayer can express his disagreement with the actions of tax inspectors, as well as challenge the conclusions they made based on the results of an audit. The deadline for filing objections is also clearly defined - 1 month from the date of receipt of the relevant act.

Objections are presented:

taxpayers;
fee payers;
payers of insurance premiums;
tax agents;
consolidated groups.

The same rules apply to representatives: they can submit their objections to the act within thirty days.

Written objections to the tax audit report of a consolidated group of taxpayers (CTG) are submitted by the responsible member of this group within 30 days from the date of receipt of the said report. In this case, the responsible participant in the consolidated group of taxpayers has the right to attach documents confirming the validity of their actions to written objections.
Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation)
paragraph 6 of article 100

The date of signing the act by the person being verified or the sixth day after sending it by registered mail is considered the date of delivery (clause 5 of Article 100 of the Tax Code of the Russian Federation).

Example 1: the organization received the act on February 9, 2021 - objections can be submitted until March 9, 2021 inclusive.

Example 2: the responsible AMG participant received an act on February 9, 2017 - objections must be submitted until March 27, 2021.

According to the current rules, a period of 1 month expires on the corresponding date of the next month; the period calculated in days is calculated in working days by default (Article 6.1 of the Tax Code of the Russian Federation).

If objections are not submitted on time, they are presented at the time of consideration of the inspection materials. There is no liability for this (clause 4 of Article 101 of the Tax Code of the Russian Federation).

The diagram shows the deadlines for submitting objections upon delivery of the act on February 9, 2021.

Differences in deadlines for filing objections depending on the persons being inspected

Main nuances in drawing up an objection

To date, there is no strictly established sample of an objection to a tax audit report. Employees of enterprises and organizations can draw up a document in any form, based on their understanding of it.

In this case, it is advisable to take into account some office work norms and rules for writing business documentation. In particular, the objection must indicate:

addressee, i.e. the name, number and address of the exact tax office to which the objection is sent,
sender information (company name and address),
number of the objection and the date of its preparation.

In the main part it should be indicated

the act in respect of which an objection is being drawn up,
describe in detail the essence of the claim, including all available reasons and arguments.

The document must refer to the laws that confirm the correctness of the author of the objection and indicate all additional papers attached to it (marking them as a separate attachment).

Appealing a tax claim

Based on the results of the tax audit of the declaration, if inspectors find inaccuracies in it that lead to an underestimation of the tax base, the taxpayer is sent a request to pay the tax. A company or individual entrepreneur can receive a similar document if there are arrears for past periods, including if we are talking about debts on fines and penalties.

Request for payment of tax

A sample request for tax payment was approved by order of the Federal Tax Service of Russia dated February 13, 2021 No. ММВ-7-8/ [email protected] Appendix No. 2 to this document contains a form that all inspectorates are required to use when issuing demands for repayment of arrears of taxes and fees , fines and penalties.

The document must contain information about the amount of debt and the amount of penalties as of the date the claim was made. The deadline for fulfilling the requirement to pay tax or other amounts is also specified separately.

Article 69 of the Tax Code obliges controllers to also indicate in the request the grounds for levying tax and references to the relevant articles of the Tax Code, which establish the obligation to transfer a particular amount to the budget.

The deadline for fulfilling the tax payment request is 8 days from the date of its receipt. However, the document itself may establish a different period, which, if specified, has priority.

The deadlines within which controllers can issue demands to the taxpayer are also established by law. In this case, they will depend on the situations in which the arrears arose (Article 70 of the Tax Code of the Russian Federation).

All of the above aspects of filing a tax payment request must be strictly observed by inspectors when drawing up the document. Any flaw in this process may itself be grounds for appealing the claim.

Right to appeal a claim

It must be said that demands for payment of taxes are essentially fair, that is, controllers do not demand payment of non-existent debts.

Quite often, when receiving a request, the problem lies in the untimely transfer of some taxes and fees, delays in filing reports, or other violations that lead to fines.

Sometimes situations occur when a taxpayer mistakenly indicates an inflated tax in a report, but transfers the correct amount to the budget - in this case, upon receipt of a request, it is necessary to adjust the previously submitted declaration.

However, if there are no apparent reasons for additional taxes or sanctions, and the taxpayer does not agree with the requirements put forward, then he is given the opportunity to defend his point of view about the correctness of the transferred tax amounts or the absence of debts.

Procedure for appealing a tax payment requirement

The possibility of appealing against acts of tax authorities is enshrined in Article 137 of the Tax Code.

In principle, any non-normative act, action or inaction of officials that violates the rights of the taxpayer can be challenged. A tax demand that is considered an illegal act can also be appealed.

This can be done by appealing to two authorities: with a complaint to a higher tax authority and with an appeal to the court.

A company or individual entrepreneur who has received an unfair claim, in their opinion, can choose the option that is most suitable for them, or file both options simultaneously to object to the tax payment requirement. The template established by law is not provided for such a case.

The taxpayer simply states in the complaint his disagreement with the content of the demand, referring to the current provisions of the law, as well as, if necessary, to the documents he has that confirm the correctness of his calculations with the budget - for example, he can provide copies of bills for the transfer of tax amounts that allegedly were not paid.

When drawing up an appeal, it is worth presenting the situation in a little more detail and, as they say, from the very beginning. When considering the case, the judges must be clear as to why the tax authority’s demand was made, what exactly the taxpayer does not agree with, and what evidence he has of the unfairness of the claims made by the tax authorities.

The choice of the method of appealing the claim remains at the discretion of the businessman himself. But here you need to understand that each option has its pros and cons.

When appealing a claim to a higher tax authority, you need to understand that while the complaint is being considered, the validity of the original claim will not be suspended.

If at the same time the controllers want to collect a significant amount of debt from the taxpayer, then this can seriously affect his business: the amount will either be blocked in the current account or simply written off by sending a collection request to the bank.

You can apply to the court to suspend the execution of the appealed requirement. In this case, until the end of the consideration of the case, the Federal Tax Service will not be able to forcibly collect the amount of the disputed debt.

Source: https://spmag.ru/articles/obzhalovanie-trebovaniya-ob-uplate-naloga

What to pay attention to when preparing a document

Neither the Federal Tax Service in its acts nor the law regulates the filing of an objection in any way. That is, it can be written by hand or printed on a computer on an ordinary A4 sheet or on company letterhead.

It is strictly important to comply with only one condition: the objection must be signed by the head of the enterprise or an employee authorized to create such documents. If the form is endorsed by a proxy, it must also indicate the number and date of the power of attorney.

It is not necessary to certify an objection with a stamp today, since starting from 2021, enterprises and organizations have every right not to use stamped products in their work (unless this norm is prescribed in the local regulations of the company).

The document should be drawn up in two copies , one of which should be submitted to the tax office, the second, after the tax specialist has marked the acceptance of the document, should be kept.

Where and how are they presented?

Objections to any tax audit report are submitted to the inspectorate that carried out the audit activities. There are two ways to deliver objections:

directly to the tax office
by mail.

Submitting objections directly to the tax office

Before submitting it to the tax office, a covering letter is drawn up in the form of an application in two copies. It says that they are sending objections to the tax audit report No. __ dated (date) with attachments on ___ sheets. They put the date of the letter, position - official, signature, transcript of the signature and seal (if any). On each copy, an authorized inspector usually puts a stamp on acceptance of the document, indicates on it the date of acceptance, and the entry number. One copy of the covering letter along with the objections remains with the inspectorate, the second - with the objector.

Sending documents by mail

When sending by mail, fill out an inventory in two copies on a postal form, and indicate the data provided in the form in the inventory. On each copy, the postal worker indicates the identification number of the postal item, puts a postal stamp with the date of acceptance and signs. One copy of the inventory is included in the letter, the second remains with the sender along with the payment receipt. A sample inventory is shown in the photograph.

An inventory of the contents in the envelope when sending objections to a tax audit report is required

To confirm the fact of receipt of a registered letter, the addressee fills out a notification of delivery of the postal item, which contains an identification number corresponding to the number on the inventory and on the envelope. A sample notice is provided below.

The notification of delivery will confirm the fact of sending objections and the timeliness of this event

When sending objections by mail, the date of their sending is considered to be the date of the stamp on acceptance of the postal item.

It is in the interests of the person being inspected to submit objections before the end of the established period in such a way that they clarify and do not confuse the circumstances set out in the act.