The taxpayer is required to submit an “adjustment” only if an error was discovered in the declaration due to which the tax amount was underestimated. In all other cases, this is only the right of the taxpayer, but not an obligation (clause 1 of Article 81 of the Tax Code of the Russian Federation, letters of the Ministry of Finance dated July 17, 2012 No. 03-03-06/1/339, dated June 20, 2012 No. 03-04-05/ 8-751). Moreover, errors in calculating income tax or tax under the simplified tax system can be corrected in the declaration for the current period (when an error is identified) if:
- on the date of filing the declaration for the current period, 3 years have not passed since the date of payment of the tax on the declaration with an error;
- The error resulted in an overpayment of tax.
This position is set out in letters of the Ministry of Finance dated 02/08/2016 No. 03-03-06/1/6383, dated 04/23/2014 No. 03-02-07/1/18777. In this case, officials refer to paragraph 1 of Article 54 of the Tax Code of the Russian Federation.
One way or another, if you submit a “clarification”, you need to fill it out according to the form that was in force in the period for which this “clarification” is being submitted (clause 5 of Article 81 of the Tax Code of the Russian Federation).
Clarification with the amount of tax to increase
If you submit a “clarification” due to the fact that you previously underestimated the tax amount, then this “clarification” will increase the tax amount. However, such a “clarification” in itself is not yet a basis for collecting a fine from you under paragraph 1 of Article 122 of the Tax Code of the Russian Federation.
note
In a special position regarding the verification, there are “clarifications” with the amount of VAT to be reimbursed (Articles 176, 176.1 of the Tax Code of the Russian Federation). An independent “camera examination” is always carried out on such a declaration, even if it was submitted during an on-site verification.
Let us recall that, according to this provision, non-payment or incomplete payment of tax amounts as a result of underestimation of the tax base or other incorrect calculation of tax entails a fine in the amount of 20 percent of the unpaid tax amount. However, to do this, the tax authorities still have to prove the fact of underestimation of the base and the presence of arrears. They do not have the right to simply charge a fine for the amount of the difference between the initial declaration and the “clarification” (letter of the Ministry of Finance 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 particular, this means that the accrual of a fine is unlawful if you have an overpayment of taxes that occurred before the period being adjusted. In this case, there is no debt to the budget, and tax authorities have the right to independently offset the overpayment against the underpaid amount of tax (clause 20 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).
In addition, even if you do not overpay, you can avoid a fine if (clauses 3, 4 of Article 81 of the Tax Code of the Russian Federation):
- submit the “clarification” before you learn that the tax authorities have discovered an error or that an on-site audit has been scheduled for you for the period in which the tax was underestimated;
- pay the missing amount of tax and the corresponding penalties before submitting the “clarification”.
When to submit a clarification
It is mandatory to submit an amended return if errors made in the initial report led to underestimation or non-payment of tax. You need to correct information in tax reporting if:
- in the original version, the information was incomplete or inaccurate, which led to the payment of less tax, and you discovered this yourself;
- the inspection identified errors and sent a request to correct the indicators and provide explanations.
Income tax update
served in the following cases:
- inaccuracy in the figures for the previous period led to underestimation of expenses and overpayment, but in the current period you received a loss;
- An error was discovered in calculating the tax base in the “unprofitable” income tax return. In addition, it is necessary to provide an update for the previous period with the increased expenses indicated therein;
- in case of recalculation of the tax base due to a decrease in the cost of low-quality goods or services. Updated declarations must be submitted for the periods in which the costs of their acquisition were taken into account.
VAT update
, except in cases of detection of shortcomings in the primary reporting by the taxpayer or the Federal Tax Service, is submitted if they did not manage to collect within the prescribed period a full package of supporting documents for transactions that are taxed at a zero VAT rate.
If errors in the data did not lead to non-payment or a reduction in the payment amount, it is not necessary to submit an amendment, but you have the right to do so. For example, when they independently discovered incorrect information that did not affect the amount of the fee paid, or if they were identified by the Federal Tax Service.
If shortcomings caused an overpayment, the excess money can be credited or returned. The opportunity is available for three years from the date of overpayment. You must first submit an updated declaration, which will be subject to a desk audit.
It is worth considering that filing an adjusted report may trigger a tax audit for the corrected period, even if it ended more than three years ago. Before sending the clarification, pay the arrears and penalties on taxes - this will help avoid a fine.
The updated declaration is filled out in the same form as the primary one, but the adjustment code is indicated on the title page. You need to send the document to the Federal Tax Service office where you are registered.
Clarification during desk check
Tax authorities conduct a desk audit in relation to each declaration that they receive. They do not need to make any decision for this. The period of such verification is 3 months. After this time, tax officials must draw up a desk audit report recording its results, but only if any violations are identified. If the declaration does not raise any questions, there will be no act (clause 5 of Article 88 of the Tax Code of the Russian Federation; clause 1 of the Federal Tax Service letter No. ED-18-15/1693 dated December 18, 2014).
During the camera meeting, you may be sent a request to provide explanations and make corrections (clause 3 of Article 88 of the Tax Code of the Russian Federation, Appendix No. 1 to the order of the Federal Tax Service of Russia dated May 8, 2015 No. ММВ-7-2 / [email protected] ). This requirement does not mean that you must pass the “clarification” test. If you are confident in the data reflected in the declaration, simply provide written explanations of where such figures come from. If there is an understanding that the indicators really need to be corrected, “clarification” will be required. If the corrections are related to an understatement of the tax amount, before submitting the “clarification”, pay the tax and penalties. As already mentioned, the document recording the violations that were identified during the “camera camera” is the inspection report. Therefore, tax authorities cannot fine you for errors corrected before drawing up such an act, subject to additional payment of tax and penalties.
Moreover, having received the “clarification” before the expiration of 3 months, tax authorities must stop all actions to verify the initial declaration and begin checking the “clarification”. Similarly, the Federal Tax Service recommends not drawing up an audit report (not serving it) if the “clarification” is submitted before the office report is delivered to the taxpayer. Unless, of course, we are talking about checking the declaration with the amount of VAT to be reimbursed (clause 3 of the Federal Tax Service letter dated November 21, 2012 No. AS-4-2 / [email protected] ).
But there is no particular point in submitting a “clarification” after the desk inspection report has been delivered. According to the Federal Tax Service, such a “clarification” no longer affects the consideration of materials from checking the initial declaration and making a decision based on its results (letter of the Federal Tax Service of Russia dated November 20, 2015 No. ED-4-15/20327). And judicial practice on this matter is contradictory. Some courts indicate that the “chamber room” ends only with the adoption of the final decision. And if before such a decision is made, a “clarification” is submitted, the verification of the initial declaration must stop (Resolution of the Federal Antimonopoly Service of the North-West District dated January 14, 2013 No. A81-1421/2012). However, others point out that this interpretation allows the taxpayer to avoid liability for violations identified by the audit by simply paying additional taxes and penalties accrued in the act and submitting a “clarification” before the final decision is made (FAS Resolution UO dated April 4, 2013 No. F09-2044/13).
Rules for filing updated declarations - detailed instructions for taxpayers from the Federal Tax Service of Russia
The norms of the Tax Code (hereinafter referred to as the Tax Code of the Russian Federation), regulating the rights and obligations of taxpayers when clarifying their tax obligations, do not determine the procedure for actions of tax authorities depending on the moment at which the taxpayer submitted an updated declaration.
At the same time, the answer to the question whether the tax authority will take into account the data of the updated declaration in the decision based on the results of a desk or field audit
is very important for taxpayers, since the amount of arrears, penalties and fines payable as a result of such audits directly depends on this.
In this regard, the Federal Tax Service of Russia has issued clarifications that are binding on all territorial tax authorities. According to these clarifications, the procedure for the actions of tax officials
directly
depends on the moment of receipt of the taxpayer’s updated declaration.
In Letter of the Federal Tax Service of Russia N AS-4-2/19576 dated 11/21/12 ,
First of all, it is clarified that the proposal to the taxpayer indicated in the decision based on the results of the tax audit to make the necessary corrections to the accounting and tax records
does not mean the taxpayer is obligated to submit updated tax returns.
Further, the Federal Tax Service of Russia explains the consequences of filing an updated tax return and the procedure for action by the tax authorities, depending on the moment at which the taxpayer submitted it.
Situation No. 1. You submit an updated declaration during a desk tax audit of the primary declaration.
Procedure for the tax office: checking the primary
declaration
is terminated
,
a new desk tax audit
based on the updated tax return.
Consequently, the decision based on the results of the desk audit will be made on the basis of the updated data provided by you.
Situation No. 2. You submitted an updated declaration during an on-site tax audit (before drawing up a certificate of completion of the audit).
In this case, the updated tax return must be verified as part of an on-site audit
,
except for
those cases when an updated declaration is submitted for
VAT or excise taxes with the amount to be reimbursed from the budget
(for such declarations an independent desk audit must be carried out)
.
But, pay attention!
The explanations of the Federal Tax Service of Russia indicate that if the submission of an updated declaration
shortly before the end of an on-site tax audit
limits the tax authority in the time required to carry out tax control activities (receiving explanations from the taxpayer, requesting documents, conducting an examination, etc.) in order to establish all significant circumstances related to the clarification of tax obligations, then
such a declaration is verified as part of an independent desk tax audit.
Essentially this phrase means
that when submitting
any updated declaration
during an on-site tax audit, the tax authority may
or may not take into account the data of the updated tax return in the decision based on the results of the on-site tax audit AT ITS DISCRETION.
This right of the tax authorities follows from the wording of the letter in question from the Federal Tax Service of Russia “submission of an updated declaration SHORTLY before the end of the on-site tax audit.” Not long - how long? Three days before the end of the inspection or a week, or maybe some other period? There is no answer in the clarifications of the Federal Tax Service of Russia under consideration.
Situation No. 3. You submit an updated declaration AFTER the completion of the desk tax audit of the primary declaration, but BEFORE the preparation or delivery (sending) of the desk tax audit ACT to you.
Please note that the moment the desk tax audit is completed
is the expiration of a three-month period from the date the taxpayer submits a tax return or the moment of its end, determined by the date specified in the tax audit report, whichever comes first.
The Federal Tax Service of Russia explains that in this situation, the tax office has the RIGHT not to compile or not to serve
report on the initial inspection and conduct a new desk inspection.
This formulation means that the opposite situation is also possible, namely, the decision on the initial desk audit will be made without taking into account the data of the updated declaration
. Consequently, it is difficult to predict in advance what decision the tax authorities will make in this case.
There is relative certainty only if you have submitted updated tax returns for VAT or excise taxes with the amount to be reimbursed from the budget, since here
the tax office MUST
stop the initial desk audit and conduct
a new desk audit
on the updated declarations.
Situation No. 4. You submit an updated declaration AFTER the delivery (direction) to you of an ACT of a desk inspection of the primary declaration or an on-site inspection report, but BEFORE A DECISION is made based on the results of the inspection.
According to the Federal Tax Service of Russia, in this situation, the taxpayer can make corrections to the declaration:
a) taking into account the violations reflected in the tax audit report (in whole or in part);
b) not related to violations established as a result of a tax audit, for which supporting documents were simultaneously presented to them or such documents were not presented.
At the same time, the indicators of the updated tax return are taken into account when making a decision based on the results of the audit only if
that the changes made by the taxpayer
by the tax authority have been verified
and documented.
Consequently, taking into account the data of the updated declaration in the decision on the result of the audit in this case is the RIGHT of the tax authorities
. This means that, as in the previous situation, everything depends on the discretion of a particular tax official.
Data from updated VAT or excise tax returns with the amount to be reimbursed from the budget
–
will not be taken into account in the
audit decision, since in these cases
the tax office is OBLIGATED to conduct a new desk audit on the updated declarations.
Situation No. 5. You submitted an updated declaration AFTER A DECISION was made based on the results of consideration of the materials of the corresponding desk (on-site) tax audit
.
According to the Federal Tax Service of Russia, tax authorities need to be guided by the provisions of the letter of the Federal Tax Service of Russia dated October 12, 2011 N AS-5-2/1222dsp@. Since this letter is a document for official use, one can only guess about its contents.
However, in this case, it is necessary to remember that for such an updated tax return a repeated on-site audit is possible (clause 10 of Article 89 of the Tax Code of the Russian Federation), and a new desk audit of the updated declaration will be carried out in any case (clause 1 of Article 88 of the Tax Code of the Russian Federation) .
In conclusion, I would like to share with you my own impressions from reading these clarifications of the Federal Tax Service of Russia.
Despite such detailed instructions on updated tax returns, after studying it there is no clear answer to the question of what to expect from the tax office in the event of independent clarification of tax obligations during a tax audit or until a final decision is made based on its results.
Will the clarification of your tax obligations be taken into account in the audit decision, will the amounts of arrears, penalties and fines be recalculated? Unfortunately, even a careful study of the explanations of the Federal Tax Service of Russia does not give unambiguous answers to these questions.
The procedure for action by the tax authorities in a given case depends on the discretion of the specific official conducting the tax audit. In addition, such formulations as “the tax authority has the RIGHT not to draw up a report/not to serve a report” or “submission of an updated tax return SHORTLY before the end of the audit” do not contribute to the uniform application of the norms of the Tax Code of the Russian Federation, and therefore - new legal disputes between taxpayers and tax authorities on these issues inevitable.
I would also like to draw your attention to the fact that there is an opposite
in the opinion of the Federal Tax Service of Russia,
judicial practice on the issue of clarifying tax obligations by a taxpayer during the period of a tax audit.
According to arbitration courts, a taxpayer has the right to submit updated declarations both during an on-site/desk audit and after it, and
the tax authority must establish the taxpayer’s actual obligation to pay tax.
On this basis, many decisions of tax authorities based on the results of audits, made without taking into account these updated declarations, were successfully challenged in court.
Professional assistance from a lawyer in tax disputes (with the possibility of providing services remotely, via the Internet)
Recommendations for taxpayers on actions in controversial situations
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Clarification during on-site inspection
The conditions for exemption from fines given in subparagraph 1 of paragraph 4 of Article 1 of the Tax Code do not apply to cases where a clarifying declaration is filed during an on-site inspection. Does this mean that there is no point in providing a “clarification” during an on-site inspection?
Situation 1.
You independently identified an error that understated the amount of tax in the period being checked by the tax authorities, and the on-site inspection report has not yet been drawn up. In this case, there are three options:
- submit a “clarification”, paying the tax and penalties, and insist on a reduction in the fine;
- Tell the reviewers about the error at your own peril and risk. Perhaps the tax authorities will no longer look for other violations;
- just wait until the end of the audit in the hope that the tax authorities themselves will not find this error. Tax authorities no longer have the right to fine you for errors not identified during the audit, but there is no particular point in “clarification” (subclause 2, clause 4, article 81 of the Tax Code of the Russian Federation).
Situation 2.
You have already received an on-site inspection report. In this case, it all depends on whether you agree with the additional assessments made by the tax authorities or are going to challenge them. If you do not intend to argue with the Federal Tax Service, then submitting a “clarification” and voluntary repayment of arrears and penalties can be considered as a mitigating circumstance to reduce the fine. If you do not agree with the additional charges, you should not submit a “clarification”. This can be qualified as one of the evidence of a tax offense, a kind of voluntary recognition (Resolution of the Central Election Commission of August 27, 2015 No. F10-2516/2015).
Clarification with the amount of tax to be reduced
If you exercised your right to submit an amended declaration, then such an “amendment” either does not change the amount of tax on the original declaration or reduces it. The second option means that after checking and approving the “clarification” indicators, you will have an overpayment, which you can return from the budget. It is quite clear that the tax authorities will not just hand it over and the declaration will be verified with particular passion (clause 2 of Article 88, clause 6 of Article 78 of the Tax Code of the Russian Federation; clause 3.5 of the letter of the Federal Tax Service dated July 16, 2013 No. AS-4-2/ 12705).
As for submitting such a “clarification” at the desk, the procedure for tax officials is the same as when submitting a declaration with the amount of tax to be increased, with the only difference being that in any case there cannot be any fine.
note
If before submitting the “clarification” you pay off only the amount of the arrears, but do not pay the penalty, you will not be released from the fine (decision of the Constitutional Court dated December 7, 2010 No. 1572-О-О, resolution of the AS SZO dated December 18, 2014 No. A56-15646/2014; AS UO dated October 3, 2014 No. F09-6030/14).
If you submit such a “clarification” during an on-site audit, the tax authorities will conduct a camera review of it, taking into account the materials of the on-site audit. That is, violations regarding this tax identified by an on-site inspection will be recorded by a cameral act. The fact is that after 3 months after submitting the “clarification”, you can already submit an application for a tax refund, and the on-site inspection at this moment may not yet be completed (clause 2 of Article 88, clause 6 of Article 78 of the Tax Code of the Russian Federation; clause 3.5 of the letter of the Federal Tax Service dated July 16, 2013 No. AS-4-2/12705). If, by the time you submit the “clarification”, you have already been given a certificate of the field audit, most likely the tax authorities will not take its data into account when drawing up the report and making a decision. However, it is worth recalling it in your objections to the on-site inspection report.
Tax authorities will take into account the “clarification” data, which is presented after drawing up the on-site inspection report, only if they are verified by the Federal Tax Service and confirmed by documents. And then they have the right not to take them into account at all. In doing so, they can:
- carry out additional tax control measures;
- schedule a further on-site inspection in the future.
But if the Federal Tax Service did not do this and did not take into account these “clarifications” when making a decision, such a decision can be challenged as not taking into account the real tax obligations of the taxpayer (Resolution of the Federal Antimonopoly Service of the Moscow Region dated May 13, 2014 No. F05-3977/14).
Conclusions of the judicial act
The Supreme Court of the Russian Federation supported the conclusion of lower courts that there is no limit on the depth of a repeat on-site tax audit in the event of filing an updated declaration .
The court indicated that the absence of a deadline limiting the taxpayer’s right to file an updated tax return excludes the application of a three-year limit on the depth of an on-site tax audit. At the same time, as part of such an on-site inspection, the period for which the updated declaration was submitted is checked.
At the same time, the Supreme Court indicated that the above rule does not mean that a tax audit can be carried out at any time after filing an amended return. Consideration must be given to the reasonableness of the timing of the inspection .
The court also indicated that when assessing the reasonableness of the period for ordering a second on-site inspection, all circumstances relevant to ensuring a balance of private and public interests must be taken into account, including:
- the existence of the tax authority's ability to timely identify circumstances indicating the unfoundedness of changes in tax calculations declared in the updated declaration;
- the ability of the taxpayer, in the event of a repeat on-site inspection, to ensure the protection of his rights after the expiration of the established paragraph 1 of Art. 23 of the Tax Code of the Russian Federation for a four-year storage period for documents necessary for the calculation and payment of taxes;
- the presence or absence in the taxpayer’s actions of signs of resistance to tax control (providing the tax authority with unreliable and (or) incomplete documents, etc.).
The burden of proving the reasonableness of the deadlines lies with the tax authority.
The Supreme Court concluded that since in the case under consideration the courts did not assess the reasonableness of the timing of the inspection, their conclusions about the legality of the inspection cannot be considered legitimate . The case was sent for a new trial.
VAT update
In a special position regarding the verification, there are “clarifications” with the amount of VAT to be reimbursed (Articles 176, 176.1 of the Tax Code of the Russian Federation).
An independent “camera examination” is always carried out on such a declaration, even if it was submitted during an on-site verification. It will be checked by “cameramen”, and “travelling officers” will not take into account these “clarifications”, unless the desk inspection is completed before the end of the field inspection (clause 3.5 of the letter of the Federal Tax Service dated July 16, 2013 No. AS-4-2/12705).
Tax expert
Oksana Dobrova
