An appeal to a higher tax authority or in court against an inspection decision that does not suit the taxpayer is provided for in Art. 138 Tax Code of the Russian Federation. At the same time, the applicant cannot immediately appeal the decision in court, that is, go there directly - his application will simply not be accepted. Decisions of the tax office or its officials can be appealed to a higher tax authority or to the same authority that issued the tax act.
You can appeal to a higher tax authority any documents that are signed by the head or deputy head of the tax authority.
You can appeal to the same tax authority that issued the tax act documents signed by other employees of the tax authority, for example, an inspector or the head of a department.
The procedure for appealing a tax decision can include from one to three stages.
Drawing up an objection to claims contained in a tax audit report
First, the taxpayer must draw up objections to the claims contained in the tax audit report and send them to the Federal Tax Service within a month from the date of receipt of the tax audit report. You can submit written objections to the specified act as a whole or to its individual provisions.
The date of receipt of the act is considered to be the date that the taxpayer himself indicated when receiving it, so you need to make sure that the actual date of delivery is indicated in the act, and not an earlier date, otherwise the period for filing objections may be reduced. If the act was sent by mail, then the date of its delivery is considered to be the 6th day from the date the Federal Tax Service Inspectorate sent the registered letter. In objections, you must indicate the number and date of the audit report and state in as much detail as possible why the taxpayer does not agree with the act as a whole or with its individual provisions, and, if possible, support your arguments with documents. Subsequently, when filing a claim in court, this will be evidence that the taxpayer actively defended his position. Also, each attached document must be indicated in the list of attachments to avoid disputes about the composition of the application.
The taxpayer is informed where and when the audit and objection report will be considered - he can be present, give oral explanations and submit supporting documents. In this case, the taxpayer’s arguments must be indicated in the protocol, which is kept during the consideration (clause 4 of Article 101 of the Tax Code of the Russian Federation).
As a rule, based on the results of consideration of the act and objections, one of the following decisions is made:
- on holding the taxpayer accountable;
- on refusal of liability;
- about additional control.
Decisions to prosecute and refuse can be appealed to a higher tax authority and later in court. And the results of additional tax control measures may themselves be the subject of filing objections (clause 6.1 of Article 101 of the Tax Code of the Russian Federation).
A sample objection to a tax audit report can be downloaded from the Federal Tax Service Information “Submission of objections to tax audit reports.”
What should the head of the tax authority do before considering the tax audit materials in accordance with clause 3 of Art. 101 Tax Code of the Russian Federation:
- announce who is involved in the case, the materials of which tax audit will be considered;
- establish the fact of attendance of persons invited to participate in the consideration;
- if necessary, check the powers of the representative of the person in respect of whom the tax audit was carried out;
- explain to those involved in the procedure their rights and obligations (Articles 21, 23 of the Tax Code of the Russian Federation);
- make a decision to postpone the consideration of materials if a person whose participation is important does not appear.
If the tax authority does not reject the claim, its decision can be appealed to a higher tax authority and later in court.
How to file an objection:
- to the office of the tax authority or the window for receiving documents of the tax authority;
- by mail;
- personally or through a representative.
Where to send?
To the tax authority that drew up the act. But for this you will need the number, address and details of this tax office. The necessary details can be found using the “Address and payment details of your inspection” service.
If the request contains inaccurate information
However, the new approach of the Plenum of the Supreme Arbitration Court of the Russian Federation does not make it impossible to appeal such a document as a requirement to pay tax. However, it is now safer to use not only procedural violations by the tax authorities, but also to appeal the claim on its merits. Let us explain what we mean.
So, the company received a requirement to pay tax (penalties). First of all, you need to make sure that this document has a real basis, i.e. the taxpayer actually has arrears in taxes or penalties. By the way, the fact that a claim containing false information about arrears is invalid is stated in the already mentioned information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation (clause 13 of information letter No. 79).
Despite the fact that this letter is devoted to issues of compulsory pension insurance, arbitration courts are guided by this approach when considering tax disputes. Thus, the Federal Antimonopoly Service of the Moscow District declared illegal a demand that contained false information about the amount of arrears. The fact is that at the time of receipt of this document, the decision based on the results of the tax audit regarding the tax (penalties, fines) for the amount of which the claim was made was canceled (see resolution of the Federal Antimonopoly Service of the Moscow District dated January 23, 2013 No. A40-12057/12 -90-57).
It also often happens that the demand for tax payment includes amounts that are not indicated in the decision based on the results of the tax audit. In this case, the claim is declared invalid by the court (see, for example, the resolution of the Federal Antimonopoly Service of the West Siberian District dated December 21, 2012 No. A27-13595/2011). And it also happens that the debt specified in the request has already been repaid through offset (see resolution of the Federal Antimonopoly Service of the East Siberian District dated December 7, 2012 No. A19-7442/2012).
The Tax Code does not provide any explanation as to what document confirms that the taxpayer has an arrears. The Plenum of the Supreme Arbitration Court of the Russian Federation in one of its resolutions indicated that arrears can be confirmed by a reconciliation act on the personal account (clause 22 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 25). But the personal account card itself, according to the judges, is not such evidence (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 18, 2003 No. 8156/02, Resolution of the Federal Antimonopoly Service of the Moscow District dated January 15, 2013 No. A40-57014/12-20 -316).
Filing a complaint or appeal
A complaint is filed when acts of the tax authority or actions/inactions of its officials have already entered into force and violate the rights of the taxpayer. It can be sent within a year to a higher tax authority through the same authority, whose decision must be appealed.
An appeal is filed if the tax authority’s decision to prosecute a person for a tax offense has not yet entered into force. The filing deadline is within 10 days from the moment the tax authorities’ decision is received. At the end of this period it comes into force (clause 2 of article 101.2 of the Tax Code of the Russian Federation).
A complaint can be submitted in writing or electronically, including through the taxpayer’s personal account. It must be signed by the manager or representative. If it is filed by authorized representatives of the taxpayer, a power of attorney must be submitted along with the complaint.
Only legal representatives of an organization (general director, manager, chairman) or an individual (parents, guardians, trustees) can represent the interests of a taxpayer without a power of attorney.
An authorized representative of a taxpayer (individual or legal entity) can represent the interests of the taxpayer on the basis of a power of attorney (Articles 185-189 of the Civil Code of the Russian Federation). To represent the interests of an individual entrepreneur, you need to notarize the power of attorney (Clause 3, Article 29 of the Tax Code of the Russian Federation).
There are decisions that cannot be appealed on appeal, but only in court. We are talking about decisions made by the federal executive body authorized for control and supervision in the field of taxes and fees.
Information to be included in the complaint and appeal
This information is specified in Art. 139.2 Tax Code of the Russian Federation:
- Full name and address of the applicant or name and address of the applicant organization;
- the act being appealed against, actions or inactions of its officials;
- name of the tax authority whose actions are being appealed;
- the grounds on which the applicant’s rights were violated;
- requirements of the person filing the complaint;
- method of obtaining a decision on a complaint: on paper, electronically or through the taxpayer’s personal account.
In addition, it is permissible to include additional circumstances in the complaint that may mitigate or eliminate the taxpayer’s liability. The complaint may also indicate other information necessary for timely consideration of the complaint, including telephone numbers, fax numbers, email addresses, etc.
The deadline for making a decision on a complaint is within a month after filing (clause 6 of Article 140 of the Tax Code of the Russian Federation), but it can be extended by another 15 days if the head or deputy head of the tax authority decides so.
Within another three working days, the taxpayer will be informed of the decision made. From the day the decision on the appeal is made, the decision of the tax authority based on the results of the audit comes into force.
The appeal is filed with the same tax authority that made the decision. He must transfer the complaint to a higher tax authority within 3 days. While the complaint is being considered by a higher tax authority, accrued payments are not collected.
A decision of a tax authority that has entered into force, which has not been appealed, may be appealed to a higher tax authority in the general manner within a year from the date of the appealed decision.
If you missed the deadline for filing a complaint for a good reason, you can restore it by filing a petition with the tax authority.
Why do you need to file a complaint?
- so that your application is subsequently considered by the court;
- it's free;
- it is simple and does not require the help of lawyers;
- you do not need to be present at the hearing of the complaint;
- if an appeal is denied, you can understand why this happened and prepare more thoroughly to defend your position in court;
- If the decision of the tax authorities or officials has been appealed to a higher tax authority, it will be suspended.
How to file a complaint
A complaint can be filed against the decision of the tax authority as a whole, or against its individual parts. The complaint must indicate the reasons why you do not agree with the tax office’s decision and state your demand - for a complete or partial cancellation of the decision, an additional audit or a change in the decision, otherwise it will not be accepted.
A sample complaint can be downloaded from the Federal Tax Service website.
What claims cannot be challenged?
What does the new approach to filing a tax claim mean in practice? It makes it impossible to appeal this document in situations in which taxpayers previously easily sought its cancellation. For example, due to incorrect - that is, not in strict accordance with the Tax Code - indication in the tax request for which there is arrears. Previously, the courts recognized such documents as illegal, noting that the decision on the basis of which the demand for tax payment was made cannot compensate for the shortcomings of the disputed demand (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated October 11, 2007 No. KA-A40/10293-07) .
Also, it will now be difficult to achieve the cancellation of a requirement that does not contain the provisions of the Tax Code establishing the taxpayer’s obligation to pay tax. The fact is that references to the relevant norms will most likely be contained in the decision based on the results of a tax audit or in a tax notice. So the chances of challenging a tax payment claim on this basis remain only in relation to claims made on the basis of a tax return. In this case, the taxpayer can refer to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 11, 2004 No. 79 (hereinafter referred to as information letter No. 79). Paragraph 13 of this information letter states that the request for payment of tax and penalties must contain detailed information on the grounds for levying the tax, as well as a reference to the provisions of the tax law that establish the taxpayer’s obligation to pay the tax. But this information is not included in the declaration.
Filing a claim in court
If the taxpayer does not agree with the decision of the higher tax authority or the higher tax authority did not consider the complaint within the prescribed period, you can file a claim in court (Clause 2 of Article 138 of the Tax Code of the Russian Federation). To do this, you need to pay a fee of 3,000 rubles. (Article 333.21 of the Tax Code of the Russian Federation).
Information to be included in the claim
- name of the arbitration court to which the claim is filed;
- for organizations - name of the plaintiff, location; for individual entrepreneurs - place of state registration, telephone number and e-mail;
- the name of the body or person that adopted the contested act and the higher tax authority;
- name, number and date of adoption of the contested act;
- the cost of the claim (if the claim is subject to assessment);
- what rights of the applicant were violated;
- references to laws and regulations that do not comply with the decision of the tax authority;
- the applicant's demand to recognize a non-normative legal act as invalid, decisions and actions (inaction) of officials as illegal.
How to behave in court
A representative with a legal background may participate in the court hearing. But the Constitutional Court in Resolution No. 37-p dated July 17, 2020 explained that in tax and similar disputes, along with a representative with a legal background, a company official who does not have a legal background but has the necessary information (for example, an accountant, executive director) may be present and so on).
And although, according to the law, it is the tax authority that must prove that the decisions it makes are legal and do not violate the rights of the taxpayer, the outcome of the case largely depends on the active position of the taxpayer.
Submit evidence, requests to obtain evidence, objections to inspection reviews, requests to call witnesses, use the possibility of notarized evidence (for example, electronic correspondence).
What is a complaint and how is it filed?
A complaint is a document drawn up in writing for the purpose of protesting actions/inactions or papers issued by tax authorities. This is how this concept is interpreted. There are several ways to file a complaint :
- to the window for receiving documents from the tax authority;
- to the tax office.
The first two methods involve filing a complaint in person. Contact the department that conducted the inspection. :
- by mail;
- online on the Federal Tax Service website;
- using telecommunication channels.
The complaint procedure is valid for 90 days from the moment the violation was discovered. But if the taxpayer does not meet the deadline, he has the right to request an extension for compelling reasons (evidence required). The procedure for submitting and reviewing a document generally takes up to 33 days. The first three days are spent on acceptance and registration of the document, the remaining 30 days are spent on consideration. The deadline for making a decision on a complaint may be extended by another 30 days, of which the taxpayer must be notified in advance.
Important! If the taxpayer considers the decision made following the appeal to be incorrect, in accordance with legislative norms, he can challenge it in court within the next 10 days.
Who is required to accept a complaint about the tax structure?
According to , a complaint against the Federal Tax Service is filed in the name of a higher tax authority, but is sent to the inspectorate that committed an unlawful action (inaction) or made an unfounded decision. After submitting the application, the responding party forwards the document to a higher authority. In other words, when violations committed by regional branches are recorded, the application is initially submitted to the local authority, and then the complaint is received by the Federal Tax Service Office for the city (the Federal Tax Service).
Also accepts complaints:
- Court . The authority has the right to make a decision on any claims from any applicants. Filing an application to the court has one significant drawback - the length of the procedure. Therefore, it is resorted to in 97% of cases by legal entities, not individuals;
- Prosecutor's office . The government body of the Russian Federation monitors the correct operation of all government agencies. But its activities extend only to offenses of a criminal nature. Therefore, the government rarely intervenes in tax disputes.
Important! It is worth contacting the prosecutor's office or court if an appeal to a higher authority of the Federal Tax Service did not give the desired result. When submitting an application, the taxpayer must be confident that he is right and have in his hands irrefutable evidence of the offense. Consideration of the case in court will last at least 90 days according to legal norms. In difficult situations, a decision will take at least 6 months.
