Request for documents for previous periods during a desk audit. For what period can a tax audit be carried out Are on-site audits that cover a period of more than three years possible

What period can be covered by a tax audit, it is important for accountants, lawyers and company managers to know in order to be able to timely and reasonably respond to the claims of the tax authorities. What periods are subject to control for different types of inspections, you will learn from our article.

The Tax Code of the Russian Federation delegates to the Federal Tax Service of Russia the authority to carry out verification procedures in relation to taxpayers in order to control the accuracy, timeliness and completeness of tax payments (Article 31 of the Tax Code of the Russian Federation).

Verification activities are carried out:

cameral control - at the location of the FTS branch;
exit - at the address of the audited taxpayer.

At the same time, the Constitutional Court of the Russian Federation explains that it does not provide for duplication of control measures in the process of carrying out office and field procedures, therefore, when performing an on-site inspection, the likelihood of detecting violations that were not revealed during the implementation of office control is not excluded (determination of the Constitutional Court of the Russian Federation "On refusal to accept ... "dated 03/10/2016 No. 571-O).

Based on the results of the verification activities carried out, an act is drawn up in the form corresponding to the norms of the order of the Federal Tax Service of Russia dated 05/08/2015 No. ММВ-7-2 / [email protected](Appendix No. 23), listing the violations identified during the inspection. In this case, the taxpayer can draw up written objections to the act, which will also be considered by the tax service.

Period of a cameral tax audit

When carrying out a tax office audit, control measures are carried out on the basis of an analysis of the documentation at the disposal of the Federal Tax Service. At the same time, cameral verification activities can be carried out exclusively in relation to the period for which the taxpayer provided the documents. That is, in the event that an enterprise has sent a VAT return for the 2nd quarter of 2017, within the framework of in-house verification procedures, the Federal Tax Service can verify the correctness of the calculation of the tax in question only for this quarter. At the same time, FTS specialists have the right to use data from other reporting periods to carry out verification activities.

If, based on the results of cameral audit procedures, the tax service makes an opinion that does not relate to the period for which the declaration or calculation was sent, this is a violation and a reason to file objections to the FTS inspection report. Such a decision based on the results of verification procedures should be canceled in the part that goes beyond the period allowed for the verification.

For what period can they be inspected during an on-site inspection?

On-site verification procedures are carried out at the location of the company, in connection with which the auditors have access to more documentation. In this case, any time intervals of the firm's activities are subject to control, which, according to the standard rule, cannot exceed 3 years preceding the year of the decision to carry out field verification activities (paragraph 2, clause 4, article 89 of the Tax Code of the Russian Federation).

By analogy, the issue of the checked time stage is resolved in the case of:

Implementation of repeated field verification activities. This procedure is introduced for the purpose of control by the higher subdivisions of the Federal Tax Service of the lower structures. When conducting repeated verification activities, regardless of the time of the initial on-site inspection, the accuracy of the calculation for the same taxes and for the same periods is analyzed, which also cannot go beyond 3 years (paragraph 3, clause 10, article 89 of the Tax Code of the Russian Federation).
Exit control of a reorganized or liquidated enterprise. It is carried out regardless of the time and subject of past field verification activities for a period of not more than 3 years (clause 11, article 89 of the Tax Code of the Russian Federation).

On-site inspections for a period of more than 3 years

The current tax legislation provides for a number of exceptions for cases when the period for which field verification procedures are carried out exceeds the stipulated 3 years. These exceptions include:

Preparation by the audited entity of a clarifying tax declaration within the framework of the relevant field events (paragraph 3, clause 4, article 89). In this situation, the specialists of the Federal Tax Service have the right to go beyond the 3-year period and check the period of time that goes beyond the period for which the clarifying declaration documents were prepared (letter of the Federal Tax Service of the Russian Federation of 05/29/2012 No. AS-4-2 / 8792).
Preparation by the subject of clarifying declaration documents with a reduced amount of tax (subparagraph 2 of paragraph 10 of article 89 of the Tax Code of the Russian Federation). The case in question grants the Federal Tax Service the right to conduct repeated verification activities covering a period of more than 3 years.
Implementation of verification measures in relation to a resident removed from the unified register of residents of a special economic zone in the Kaliningrad region (clause 16.1 of article 89). The control of such taxpayers is carried out on the basis of the norms of Art. 288.1 and Art. 385.1 of the Tax Code of the Russian Federation.
Implementation of an on-site control procedure in relation to a taxpayer using a special tax regime (when executing production sharing agreements), in accordance with Ch. 26.4 of the Tax Code of the Russian Federation.

It is necessary to pay attention to the fact that the situations when the decision was made by the tax inspectorate in one year (for example, at the end of 2016), but received by the taxpayer in another (for example, at the beginning of 2017) are not related to violations of the procedure during the on-site audit.

Thus, the answers to the question about the period for which a field tax audit is carried out are unambiguous, but it is important to take into account that the legislation also provides for exceptional situations. As for in-house audits, the audited period covers only the time period for which the declaration is submitted.

The timing of tax audits depends on their type. For on-site inspection, the period to be inspected is limited to three calendar years, excluding the year of inspection. However, there are exceptions to this rule.

According to legal statistics, the vast majority of tax audits end with additional taxes or fines.

But if a businessman knows the laws well, he can make his life much easier. In particular, it is important to have information on how long the company's activity can be checked by the tax authority. This knowledge will provide an opportunity to collect arguments and, if necessary, apply them to protect your business.

As a rule, having learned about the check, entrepreneurs in a hurry begin to collect documents, raise all the archives. Should I do it? Let's try to figure it out.

The period of a tax audit depends on its type. In a global sense, tax inspection is of two types:

office (the inspector checks the documents of a businessman without going to his office);
exit (the tax officer comes directly to the company to the businessman and performs all the control procedures there).

How is the period covered by the office verification? Only the one for which the entrepreneur has submitted accounting documents. In other words, if a businessman filed a declaration for the 2nd quarter of 2018, then the tax inspector has the right to check the correctness of the calculations only for this period of work. Any attempts to deviate from this period violate the rights of the entrepreneur.

But there is one nuance here. The tax officer has the right to request data from other reporting periods from the organization, if he needed them for the accuracy of control measures.

But there is no need to be afraid of this: the inspector has no right to write out the violation revealed in the reports, which he does not check now. If such a misunderstanding arises, the organization should confidently challenge the decision. Arbitration in this situation will be on the side of the businessman.

For on-site inspection, the period is limited to three calendar years. The key word here is calendar. That is, if now it is 2018, then the reporting can only be checked for the period from the beginning of 2015 to the end of 2017.

The current year is not subject to verification. At the same time, absolutely any period can be checked within three years. Relatively speaking, the inspector has the right to request reporting documents even for one day of the organization's work.

What to do if during the inspection a violation is revealed that was committed earlier? Don't worry about this. The tax officer does not have the right to do this, so the organization does not face additional taxes and fines in this case. Does the inspector disagree with this argument? A businessman can safely go to court.

There is one catch here. The inspector can ask the businessman for a "clarification" for this period.

If an entrepreneur fell for this provocation and submitted an updated declaration, the tax officer has every right to conduct an additional check on it and, if violations are found, apply sanctions.

Are on-site inspections possible over a period of more than three years?

So, the law establishes the maximum time limit for the audited period of the company's activities during an on-site audit - this is 36 calendar months. However, in exceptional cases, this period may be increased. This means that the tax officer has the right to apply sanctions for violations that were committed more than three years ago.

What are the exceptions?

The audit period may exceed three years for companies that are subject to a special tax regime and individual tax calculation.
If an on-site tax audit is already underway, and the entrepreneur decided to submit an updated tax return.
If the check is carried out due to the fact that the businessman has submitted a "revision", which indicates a smaller amount of tax payment than previously announced.

General provisions on tax audits

What is the main danger of tax audits? In the effect of surprise. The Inspectorate is not obliged to warn the company either about the fact of upcoming control measures, or about the timing of their implementation. However, under certain circumstances, it is still possible to prepare in advance for the inspector's visit by paying attention to a number of details.

The inspection came to one of the partners of the company. This means that there is a high probability that the check will overtake you.
You should also be alerted by inquiries from tax authorities or law enforcement officers regarding the activities of your business partner and your joint economic operations.
A request for information about your organization has been received by the bank with which you cooperate (of course, you can only find out about this request if you have established a trusting relationship with someone from the bank's employees).
If you know that you have unfair competitors (in legal practice, cases when information is "leaked" to tax authorities from competitors of companies are quite frequent).

How many years do you need to keep accounting and tax documents?

The storage periods vary depending on the type of documents. If a businessman, for some reason, deleted data from the archive earlier than the deadline established by law, he may face sanctions. This can be revealed, for example, during a check.

According to the norms of the tax code, organizations are obliged to keep documents on tax accounting for at least 4 years.
The term for storing primary accounting documents in the archives is longer - at least 60 months.

No organization or company can completely avoid tax audits. Even if the entrepreneur works as conscientiously as possible.

But in the absence of "gray schemes" in doing business there is an obvious plus: a businessman does not have to worry about the results of a tax inspection and possible financial losses due to fines.

It is also important whether the entrepreneur knows his legal rights, since often even stable companies can be sanctioned due to the actions of inspectors who are aimed at finding a violation in any possible way.

Tax audit in more than three years

In some cases, the law allows for the possibility of inspections and prosecution for violations of the law, even if the period subject to control within the framework of an on-site tax audit exceeds three calendar years.

Article 87 of the Tax Code of the Russian Federation provides that in order to monitor compliance by a taxpayer, payer of levies or a tax agent with legislation on taxes and levies, tax authorities have the right to conduct field and office audits.

Clause 1 of Art. 88 of the Tax Code of the Russian Federation states that within the framework of an in-house audit, the period specified in the declaration filed by the taxpayer and the documents submitted by the taxpayer is subject to control.

The period to be monitored as part of the on-site inspection is established by clause 4 of Art. 89 of the Tax Code of the Russian Federation. It should not exceed three calendar years preceding the year in which the decision was made to conduct an audit, unless otherwise provided by Art. 89 of the Tax Code of the Russian Federation.

In this article, we propose to consider the very "other" cases, upon the occurrence of which the tax authorities have the right to control the correctness of the calculation and the timeliness of payment of taxes for periods exceeding the established three years from the date of the decision to conduct an on-site audit.

The decision to conduct an on-site tax audit of Iks LLC was made on December 29, 2012. The taxpayer received this decision on 11.01.2013. What can be set the limits of the period subject to control by the tax authority in the framework of this on-site tax audit? According to the literal interpretation of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authorities have the right to check the correctness of the calculation and the timeliness of the payment of taxes by the taxpayer LLC "X" for the period starting from January 01, 2009.

Please note that the fact that the decision to conduct an audit was received by the taxpayer not in the year in which it was made, but in the next, does not in any way affect the three-year limitation period to be verified.

This conclusion is confirmed by the materials of judicial practice (resolution of the Federal Antimonopoly Service of the North-West District of June 22, 2012 No. A05-14239 / 2010).

You should also take into account the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation (paragraph 2 of paragraph 27 of the resolution dated 28.02.2001 No. 5), according to which the norm of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation establishes only limitations on limitation when the tax authority determines the period of the taxpayer's past activity, which may be covered by an audit, and does not contain a ban on audits of tax periods of the current calendar year.

An exception to the general rule on the period that may be covered by an on-site tax audit, provided for in Art. 89 of the Tax Code of the Russian Federation, contained in para. 3, clause 4 of this article is the case when the taxpayer submits a revised declaration within the framework of the relevant field tax audit. This exception exempts the supervisory authority from the maximum three-year prescription of the audited period and grants the right to conduct an on-site audit for an arbitrarily long period for which the revised declaration is submitted.

It should be noted that the wording of the norm under consideration - "within the framework of the relevant field tax audit" - allows certain options for the behavior of the taxpayer and allows the company to try to limit the possibility of expanding the boundaries of the audited period. So, from the literal interpretation it follows that the exception can be applied only if the "revision" was filed directly during the on-site tax audit.

The tax authorities themselves, according to the explanations of the Federal Tax Service of Russia, presented in the letter dated May 29, 2012 No. AS-4-2 / 8792, believe that the moment of submission of the revised declaration (during the on-site tax audit, before it, after it), for the application of the norm does not matter, and an on-site audit can be carried out for the period specified in the "revision", exceeding three years from the date of the decision to conduct an audit, unless the relevant period was previously covered by an on-site tax audit. At the same time, there is judicial practice when the courts of several instances took the side of the taxpayer.

Practical example:

“On August 24, 2009, the head of the Inspectorate made a decision No. 58/28 to conduct an on-site tax audit of LLC MSP“ ROSSBAN ”on the issues of correctness of calculation and timeliness of payment (withholding, transfer) of all types of taxes and fees paid by them, as well as insurance premiums for OPS - for the period from January 01 to December 31, 2008.

The revised income tax declaration No. 3 for the 1st quarter of 2005 was submitted by the company to the Inspectorate on March 12, 2008, that is, three months before the start of the on-site tax audit of 2005-2007, appointed by decision No. 31 of June 25, 2008. At the same time, the decision No. 58/28 (with amendments and additions) does not contain instructions on conducting an on-site tax audit in relation to the 2005 tax period, including the first quarter of 2005.

In such circumstances, the court of first instance came to a reasonable conclusion that the disputed revised declaration was subject to examination and assessment during a desk tax audit of the declaration or during an on-site audit of the period to which it relates (2005), and as a consequence of the absence of the tax authority of the legal grounds for the audit of the first quarter of 2005 as part of the audit for the period from January 01 to December 31, 2008 "(Resolution of the Thirteenth Arbitration Court of Appeal dated May 30, 2011 No. A21-8116 / 2010).

Another "exceptional case" specified in Art. 89 of the Tax Code of the Russian Federation, is the submission by the taxpayer of a revised declaration, in which the amount of tax is adjusted downward (subparagraph 2 of paragraph 10 of article 89 of the Tax Code of the Russian Federation).

Thus, when submitting a revised declaration with the amount of tax to be reduced, the tax authorities have the right to conduct a repeated field tax audit, in which the period specified in the “revision” may be covered, exceeding the three-year limitation period.

Also, residents excluded from the unified register of residents of the Special Economic Zone in the Kaliningrad Region fall under an exception to the general rule. The specifics of conducting field tax audits in relation to them are determined by Art. 288.1 and 385.1 of the Tax Code of the Russian Federation (clause 16.1 of Art.89 of the Tax Code of the Russian Federation).

The three-year limitation in conducting audits also does not apply to taxpayers and payers of fees paid when applying the special tax regime established by Ch. 26.4 of the Tax Code of the Russian Federation, when performing production sharing agreements. This feature is directly enshrined in Art. 346.42 of the Tax Code of the Russian Federation, which states that an on-site tax audit can cover any period during the entire period of the production sharing agreement starting from the year the agreement entered into force.

Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:

P / p No.	Exceptions	Foundations
1	Submission by the taxpayer of a revised tax return as part of the relevant field tax audit.	Paragraph 3, clause 4 of Art. 89 of the Tax Code of the Russian Federation
2	Repeated on-site inspection in connection with the submission of a revised tax return by the taxpayer, which indicates the amount of tax in an amount less than the previously declared one.	Subparagraph 2 of clause 10 of Art. 89 of the Tax Code of the Russian Federation
3	Conducting an on-site inspection of a resident excluded from the register of the Special Economic Zone in the Kaliningrad Region in terms of income tax and property tax of organizations, provided that the decision on the appointment of such an inspection was made no later than three months from the date of payment by the resident of the relevant tax.	Clause 16.1 of Art. 89 of the Tax Code of the Russian Federation
4	Conducting an on-site audit of a taxpayer who applies a special tax regime when executing a production sharing agreement.	Clause 1 of Art. 346.42 of the Tax Code of the Russian Federation

Verification of individual entrepreneurs who have already ceased their activities

Due to the doubling of the amount of contributions to the Pension Fund since January 2013, many individual entrepreneurs decided to cease their activities. They believe that if they received certificates of termination, deregistration with the IFTS and an extract from IGRIP, then the regulatory authorities will never again bother them about the correctness and timeliness of paying taxes (fees) for the period of their activity as an individual entrepreneur. However, it is not. Despite the fact that an individual no longer has the status of an individual entrepreneur, he continues to be a taxpayer and his obligation to pay taxes and fees when leaving an individual entrepreneurial activity does not stop.

The grounds for the emergence, change and termination of the obligation to pay tax or due are established by Art. 44 of the Tax Code of the Russian Federation. According to clause 3 of this article, the obligation to pay tax and (or) due is terminated:

with the payment of tax and (or) levy by a taxpayer, payer of the levy and (or) a member of a consolidated group of taxpayers in cases stipulated by the Tax Code of the Russian Federation;
with the death of an individual - a taxpayer or declaring him deceased in accordance with the procedure established by the civil procedural legislation of the Russian Federation;
with the liquidation of the taxpaying organization after all settlements with the budgetary system of the Russian Federation in accordance with Art. 49 of the Tax Code of the Russian Federation;
with the emergence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.

As you can see, this rule does not provide for the fact of the termination of individual entrepreneurial activity as the basis for the termination of the obligation to pay tax (due).

Moreover, pp. 8 p. 1 art. 23 of the Tax Code of the Russian Federation provides for the obligation of taxpayers for four years to ensure the safety of accounting and tax accounting data and other documents necessary for calculating and paying taxes, including documents confirming the receipt of income, the implementation of expenses (for organizations and individual entrepreneurs), as well as payment ( withholding) taxes. Termination of entrepreneurial activity does not relieve the former entrepreneur from this obligation.

The taxpayer has the right to reconcile the calculations with the tax authority for a period that exceeds three years.
The loss of the status of an entrepreneur does not mean that the tax authorities will never again be able to check the correctness of the calculation of taxes for the period of the entrepreneurial activity by a former individual entrepreneur.

The Inspectorate has the right to conduct an on-site inspection for a period that has not been previously inspected and for which a "revision" has been submitted, even if more than three years have passed. Therefore, when submitting a "clarification", it is necessary to calculate the timing.
In practice, not everyone is checked with the same regularity: some are checked annually, and some are checked every few years. And yet, the tax authorities try to avoid "dead zones", that is, situations when the company has not been audited for more than three years and there are periods that the tax authorities are no longer entitled to check. Therefore, if you have not been checked for more than three years, wait for an on-site check.

Yulia Vasilieva
head of the group for accreditation of foreign representations

Tax audit in more than three years

Example

The decision to conduct an on-site tax audit of Iks LLC was made on December 29, 2012. The taxpayer received this decision on January 11, 2013. What limits can be set for the period subject to control by the tax authority within the framework of this on-site tax audit? According to the literal interpretation of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authorities have the right to check the correctness of the calculation and the timeliness of payment of taxes by the taxpayer LLC "X" for the period starting from January 01, 2009.

This conclusion is confirmed by the materials of judicial practice (resolution of the Federal Antimonopoly Service of the North-West District of June 22, 2012 No. A05-14239 / 2010).

Practical example:

“On August 24, 2009, the head of the Inspectorate made a decision No. 58/28 to conduct an on-site tax audit of ROSSBAN LLC on the issues of correctness of calculation and timeliness of payment (withholding, transfer) of all types of taxes and fees paid by them, as well as insurance premiums for OPS - for the period from January 01 to December 31, 2008.

Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:

P / p No.	Exceptions	Foundations
1	Submission by the taxpayer of a revised tax return as part of the relevant field tax audit.	Paragraph 3, clause 4 of Art. 89 of the Tax Code of the Russian Federation
2	Repeated on-site inspection in connection with the submission of a revised tax return by the taxpayer, which indicates the amount of tax in an amount less than the previously declared one.	Subparagraph 2 of clause 10 of Art. 89 of the Tax Code of the Russian Federation
3	Conducting an on-site inspection of a resident excluded from the register of the Special Economic Zone in the Kaliningrad Region in terms of income tax and property tax of organizations, provided that the decision on the appointment of such an inspection was made no later than three months from the date of payment by the resident of the relevant tax.	Clause 16.1 of Art. 89 of the Tax Code of the Russian Federation
4	Conducting an on-site audit of a taxpayer who applies a special tax regime when executing a production sharing agreement.	Clause 1 of Art. 346.42 of the Tax Code of the Russian Federation

Verification of individual entrepreneurs who have already ceased their activities

with the payment of tax and (or) levy by a taxpayer, payer of the levy and (or) a member of a consolidated group of taxpayers in cases stipulated by the Tax Code of the Russian Federation;
with the death of an individual - a taxpayer or declaring him deceased in accordance with the procedure established by the civil procedural legislation of the Russian Federation;
with the liquidation of the taxpaying organization after all settlements with the budgetary system of the Russian Federation in accordance with Art. 49 of the Tax Code of the Russian Federation;
with the emergence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.

As you can see, this rule does not provide for the fact of the termination of individual entrepreneurial activity as the basis for the termination of the obligation to pay tax (due).

Important in work:

The taxpayer has the right to reconcile the calculations with the tax authority for a period that exceeds three years.
The loss of the status of an entrepreneur does not mean that the tax authorities will never again be able to check the correctness of the calculation of taxes for the period of the entrepreneurial activity by a former individual entrepreneur.

There is an opinion:

The Inspectorate has the right to conduct an on-site inspection for a period that has not been previously inspected and for which a "revision" has been submitted, even if more than three years have passed. Therefore, when submitting a "clarification", it is necessary to calculate the timing.
In practice, not everyone is checked with the same regularity: some are checked annually, and some are checked every few years. And yet, the tax authorities try to avoid "dead zones", that is, situations when the company has not been audited for more than three years and there are periods that the tax authorities are no longer entitled to check. Therefore, if you have not been checked for more than three years, wait for an on-site check.

In general, the audited period of the on-site tax audit is three previous years. Read in what cases and by how much controllers can expand the scope of validation.

As a general rule, inspectors can inspect three years preceding the year in which the on-site inspection is ordered. There are exceptions to this rule. Firstly, tax authorities can check not only previous, but also the current year. Secondly, the Tax Code of the Russian Federation names a number of conditions under which controllers can go deeper into even earlier periods. Let's talk about everything in detail.

What is the period covered by a field tax audit?

The period covered by the on-site tax audit is defined in clause 4 of article 89 of the Tax Code of the Russian Federation. As a general rule, inspectors can review information and documents for three calendar years preceding the year in which the decision to conduct an inspection was made.

Example

The decision to conduct an audit was made on December 5, 2018. This means that inspectors can check the completeness of the calculation and payment of taxes for 2015, 2016 and 2017.

Also, the period of the on-site tax audit may affect the current year. The fact is that the Tax Code of the Russian Federation limits the lower limit, and the upper revision limit is not limited. Consequently, inspectors can inspect the activities of the company up to the date of the inspection decision.

Example

Returning to the previous example, let's supplement the answer: not only 2015-2017 can be checked, but also the period from January 1 to December 4, 2018.

The legality of this approach is confirmed by judicial practice, for example:

Determination of the Supreme Court of the Russian Federation dated September 9, 2014 No. 304-KG14-737,
Resolution of the Federal Antimonopoly Service of the Volga District of December 6, 2012 No. A72-2607 / 2012,
Resolution of the Federal Antimonopoly Service of the Moscow District dated April 15, 2009 No. KA-A40 / 3000-09-P,
Resolution of the Federal Antimonopoly Service of the East Siberian District of January 29, 2009 No. A19-3295 / 08-50-F02-7091 / 08.

For the previous three years, inspectors can check any taxes and fees. And for the current year, they usually check the completeness and correctness of the charge:

Advance payments for taxes, for which the tax period is a calendar year, for example, income tax or property tax of legal entities,
Taxes with a short tax period, such as VAT, for which the tax period is limited to one quarter.

It is not at all necessary that the tax authorities will fully check all three previous years. They can choose to audit any periods within the previous three years. The period to be checked will be indicated in the decision to conduct an on-site audit, which is signed by the head of the tax authority or his deputy.

Example

The decision to conduct an audit was made on December 5, 2018. Based on clause 4 of article 89 of the Tax Code of the Russian Federation, tax authorities can check 2015, 2016, 2017 and 2018. The decision to conduct an audit specifies the audited period: from July 1, 2016 to December 31, 2017.

Please note: the depth of coverage is not affected by the year in which the taxpayer learned about the audit. For example, if the decision was made in December 2018, and the taxpayer was informed about it already in 2019, the period from 2015 to 2018 is subject to audit:

Three years preceding the year in which the judgment was rendered, i.e. 2015, 2016 and 2017,
The year in which the decision was made, i.e. 2018.

Due to the fact that the taxpayer learned about the audit in 2019, the depth of coverage will not change. Only the year in which the decision was made is important, this is also confirmed by judicial practice (Resolution of the Federal Antimonopoly Service of the North-Western District of 22.06.2012 No. A05-14239 / 2010).

When a period of more than three years is checked

An on-site tax audit does not always cover a three-year period, there are exceptions.

At first, tax authorities will be able to go beyond the three-year period if, as part of the on-site audit, the taxpayer submits an updated tax return. Controllers will be able to cover the period for which the declaration is submitted (paragraph 3, clause 4, article 89 of the Tax Code of the Russian Federation).

Secondly, the three-year rule does not apply to re-checks initiated in connection with the filing of a revised tax reduction return. In this case, just as in the previous one, the inspectors will control the period for which the taxpayer submitted the revision (clause 2, clause 10, article 89 of the Tax Code of the Russian Federation).

Thirdly, the rule of three years is not observed during the on-site inspection of an organization excluded from the register of residents of the Special Economic Zone in the Kaliningrad Region. To go beyond the three-year period, inspectors must fulfill two conditions (clause 16.1 of article 89 of the Tax Code of the Russian Federation):

Check income tax and property tax of legal entities,
Initiate an audit no later than three months after payment of the applicable tax.

Fourth, when inspecting an organization that applies a special tax regime when executing a production sharing agreement, inspectors can capture any periods during the term of the agreement. Including periods older than three years (clause 1 of article 346.42 of the Tax Code of the Russian Federation).

Review of the latest changes in taxes, contributions and salaries

You have to restructure your work due to numerous amendments to the Tax Code. They affected all major taxes, including income tax, VAT and personal income tax.

Inspections carried out by regulatory authorities (scheduled and unscheduled inspections)

Federal Law of December 26, 2008 No. 294-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" (hereinafter - Federal Law No. 294-FZ, Law on Inspections) establishes, in particular :

1) the procedure for organizing and conducting inspections of legal entities, individual entrepreneurs by bodies authorized to exercise state control (supervision), municipal control;

2) the procedure for interaction of bodies authorized to exercise state control (supervision), municipal control, in organizing and conducting inspections;

3) the rights and obligations of the bodies authorized to exercise state control (supervision), municipal control, their officials during inspections;

4) the rights and obligations of legal entities, individual entrepreneurs in the implementation of state control (supervision), municipal control, measures to protect their rights and legitimate interests.

Organization and conduct of scheduled inspections

The subject of a scheduled inspection is the compliance by a legal entity, an individual entrepreneur in the process of carrying out activities with a set of mandatory requirements and requirements established by municipal legal acts, as well as the compliance of the information contained in the notification of the start of certain types of entrepreneurial activity with the mandatory requirements.

Scheduled inspections are carried out on the basis of annual plans developed and approved by state control (supervision) bodies, municipal control bodies in accordance with their powers.

The annual consolidated plan for scheduled inspections is formed by the General Prosecutor's Office of the Russian Federation and posted on the official website of the General Prosecutor's Office of the Russian Federation on the Internet until December 31 of the current calendar year. The consolidated audit plan for 2017 is available at: http://plan.genproc.gov.ru/plan2017/.

Scheduled inspections are carried out no more than once every 3 years, except for the following cases:

carrying out activities in the field of health care, education, in the social sector, in the field of heat supply, in the field of electricity, in the field of energy conservation and energy efficiency. Regarding legal entities, individual entrepreneurs operating in the above areas, scheduled inspections can be carried out at least 2 times every 3 years.

The list of activities, in relation to the implementation of which scheduled inspections are carried out with the established frequency, is approved by the Decree of the Government of the Russian Federation of 23.11.2009 N 944.

carrying out activities for which a risk-based approach is applied. In this case, the frequency of scheduled inspections is established by the Regulations on a specific type of control (supervision), depending on the classification of the object of control (supervision) to a certain risk category or a certain hazard class.

The basis for including the audit in the annual plan is the expiration of 3 years from the date:

state registration of a legal entity, individual entrepreneur;
completion of the last scheduled inspection of a legal entity, individual entrepreneur;
the beginning of a legal entity, individual entrepreneur of entrepreneurial activity in accordance with the submitted notification of the start of certain types of entrepreneurial activity in the event of the performance of work or the provision of services requiring the submission of the specified notification.

The list of works and services as part of certain types of entrepreneurial activity, the form and procedure for submitting a notification 11 and 12 of the Law on inspections. approved by the Decree of the Government of the Russian Federation of July 16, 2009 N 584 (as amended on 03/04/2017) "On the notification procedure for the commencement of certain types of entrepreneurial activity."

The regulation on a specific type of supervision (control) may provide for the obligation to use checklists (lists of checklists), the requirements for which are approved by the Decree of the Government of the Russian Federation of 13.02.2017 No. N 177.

Checklists include lists of questions, the answers to which clearly indicate compliance or non-compliance by a legal entity, individual entrepreneur with the mandatory requirements that are the subject of verification. The approved forms of checklists are subject to publication on the official websites of the regulatory authorities.

A legal entity, individual entrepreneur is notified of a scheduled inspection by a state control (supervision) body, a municipal control body no later than 3 working days before its start by sending a copy of the order or order of the head, deputy head of the supervisory body about the start of a scheduled inspection by registered mail with a receipt acknowledgment and (or) by means of an electronic document signed with a strengthened qualified electronic signature and sent to the e-mail address of a legal entity, individual entrepreneur, if such an address is contained in the Unified State Register of Legal Entities, USRIP or was previously submitted by a legal entity, individual entrepreneur to the state control (supervision) body ), the body of municipal control, or in another accessible way.

Organization and conduct of unscheduled inspections

The subject of an unscheduled inspection is compliance by a legal entity, individual entrepreneur in the process of carrying out activities with mandatory requirements and requirements established by municipal legal acts, compliance with the instructions of state control (supervision) bodies, municipal control bodies, taking measures to prevent harm to life, health of citizens, harm to animals, plants, the environment, objects of cultural heritage of the peoples of the Russian Federation, museum items and museum collections included in the Museum Fund of the Russian Federation, especially valuable, including unique, documents of the Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance included in the composition of the national library fund, to ensure the security of the state, to prevent the occurrence of natural and man-made emergencies, to eliminate the consequences of such harm.

Grounds for an unscheduled inspection:

The expiration of the term for the execution by a legal entity, individual entrepreneur of a previously issued order to eliminate the revealed violation of mandatory requirements and (or) requirements established by municipal legal acts.
- Submission to a state control (supervision) body, a municipal control body of an application from a legal entity or individual entrepreneur for the provision of legal status, a special permit (license) for the right to carry out certain types of activities or permission (approval) to carry out other legally significant actions.
motivated presentation of the official of the controlling body based on the results of the analysis of the results of control measures without interaction with entrepreneurs, consideration or preliminary verification of applications and applications received by the controlling bodies from citizens, individual entrepreneurs, legal entities, information from public authorities, local government bodies, from the media about the following facts:

a) the emergence of a threat of harm to life, health of citizens, harm to animals, plants, the environment, objects of cultural heritage of the peoples of the Russian Federation, items of the Museum Fund of the Russian Federation, especially valuable documents of the Archival Fund of the Russian Federation, documents of the national library fund, state security, as well as the threat of emergency situations natural and technogenic character;

b) causing harm to the above objects, as well as the occurrence of natural and man-made emergencies;

An unscheduled field check of legal entities, individual entrepreneurs on the grounds specified in subparagraphs "a" and "b" is carried out by state control (supervision) bodies, municipal control bodies after agreement with the prosecutor's office at the place of operation of such legal entities, individual entrepreneurs.

c) violation of consumer rights (in the case of an appeal to the body exercising federal state supervision in the field of consumer protection, citizens whose rights have been violated, provided that the applicant applied for the protection (restoration) of his violated rights to the entrepreneur and such an appeal was not considered or the applicant's claims were not satisfied);

2.1) identification, during activities without interaction with entrepreneurs in the implementation of types of control (supervision), in relation to which a risk-oriented approach is applied, the parameters of the entrepreneur's activities, the compliance with which or deviation from which, according to the approved risk indicators, is the basis for an unscheduled inspection.

an order (order) of the head of the state control (supervision) body, issued in accordance with the instructions of the President of the Russian Federation, the Government of the Russian Federation and on the basis of the request of the prosecutor to conduct an unscheduled inspection as part of the supervision of the implementation of laws on the materials and appeals received by the prosecutor's office.

Anonymous requests cannot serve as a basis for an unscheduled check. If there are reasonable doubts about the authorship of the appeal or statement, the official of the controlling body is obliged to take reasonable measures to identify the person who applied.

When considering applications and applications, the results of consideration of previously received similar applications and applications, as well as the results of previously conducted control measures in relation to the relevant legal entities, individual entrepreneurs, should be taken into account.

In the absence of reliable information about the person who violated the mandatory requirements, sufficient data on the violation of the mandatory requirements, a preliminary verification of the information received may be carried out. During the preliminary check, the following measures are taken:

request for additional information and materials from persons who sent applications, appeals, who provided information;
consideration of documents of a legal entity, individual entrepreneur, available at the disposal of the controlling body;
if necessary, control measures are carried out without interaction with entrepreneurs and without imposing on these persons the obligation to provide information and fulfill the requirements of regulatory bodies;
a request from entrepreneurs for clarifications regarding the information received, but the submission of such explanations and other documents is optional.

An unscheduled inspection is carried out in the form of a documentary and (or) on-site inspection.

As a general rule, a legal entity, an individual entrepreneur is notified by a state control (supervision) body, a municipal control body about an unscheduled inspection at least 24 hours before the start of its conduct by any available means, including through an electronic document signed with an enhanced qualified electronic signature and sent to the e-mail address of a legal entity, individual entrepreneur, if such an address is contained in the Unified State Register of Legal Entities, EGRIP, or was previously submitted to the supervisory authority.

The inspected persons are not notified of the start of an unscheduled on-site inspection in the following cases:

if, as a result of the entrepreneur's activities, harm to the life and health of citizens, harm to animals, plants, the environment, cultural heritage of the peoples of the Russian Federation, museum items and museum collections included in the Museum Fund of the Russian Federation, especially valuable, including unique, documents Archival fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, state security, as well as emergencies of natural and man-made nature that have arisen or may arise;
when organizing and carrying out measures for state supervision in the field of ensuring the quality and safety of food products, materials and products in relation to entrepreneurs engaged in the production of food products, and (or) circulation of food products, and (or) the provision of catering services (part 2 of Art. 13 Federal Law of 02.01.2000 N 29-FZ "On the quality and safety of food products");
in the event that officials of the antimonopoly body reveal violations as a result of monitoring compliance with mandatory requirements (part 6 of article 35.1 of the Federal Law of 13.03.2006, N 38-FZ "On Advertising");
in other cases established by law.

Inspection period

The term for each of the checks (documentary and field) cannot exceed 20 working days.

In relation to one small business entity, the total period for conducting scheduled field inspections cannot exceed:

50 hours per year - for a small business;
15 hours a year - for a micro-enterprise.

In exceptional cases (if it is necessary to carry out complex and (or) lengthy studies, tests, special examinations and investigations on the basis of motivated proposals of officials of the controlling body conducting an on-site scheduled inspection), the period for conducting an on-site scheduled inspection may be extended by the head of such a body:

no more than 20 working days;
no more than 50 hours for small businesses;
for no more than 15 hours for micro-enterprises.

The period for conducting documentary and field inspections in relation to a legal entity that operates in the territories of several constituent entities of the Russian Federation is set separately for each branch, representative office, separate structural unit of the legal entity, while the total period for conducting an audit cannot exceed 60 working days.

Entrepreneur's rights when conducting an audit

The head, another official or an authorized representative of a legal entity, individual entrepreneur, his authorized representative during the inspection have the right to:

be directly present during the inspection, give explanations on issues related to the subject of the inspection;
receive from the state control (supervision) body, the municipal control body, their officials, information related to the subject of the audit and the provision of which is provided for by this Law on inspections;
get acquainted with documents and (or) information received by state control (supervision) bodies, municipal control bodies within the framework of interdepartmental information interaction from other state bodies, local self-government bodies or organizations subordinate to state bodies or local self-government bodies, which have these documents at their disposal and (or) information;
submit documents and (or) information requested within the framework of interdepartmental information interaction to the state control (supervision) body, the municipal control body on its own initiative;
to get acquainted with the results of the inspection and indicate in the inspection report about his acquaintance with the results of the inspection, consent or disagreement with them, as well as with individual actions of officials of the state control (supervision) body, municipal control body;
to appeal against actions (inaction) of officials of a state control (supervision) body, a municipal control body, which entailed a violation of the rights of a legal entity, an individual entrepreneur during an inspection, in an administrative and (or) judicial procedure in accordance with the legislation of the Russian Federation;
to involve the Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs or the commissioner for the protection of the rights of entrepreneurs in the constituent entity of the Russian Federation to participate in the audit;
other rights in accordance with chapter 3 of the Law on inspections.

Limitations of the inspection

When conducting an inspection, officials of a state control (supervision) body, a municipal control body are not entitled to:

check the fulfillment of the mandatory requirements and requirements established by municipal legal acts, if such requirements do not relate to the powers of the state control (supervision) body, the municipal control body on behalf of which these officials act;

1.1) check the fulfillment of the requirements established by the regulatory legal acts of the executive authorities of the USSR and the RSFSR, as well as the fulfillment of the requirements of regulatory documents, the mandatory application of which is not provided for by the legislation of the Russian Federation;

1.2) check the fulfillment of mandatory requirements and requirements established by municipal legal acts that are not published in the established legislation of the Russian Federation;

carry out a planned or unscheduled on-site inspection in the absence of a head, another official or an authorized representative of a legal entity, individual entrepreneur, his authorized representative during it, except for the case:
checks on the fact of causing harm to life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, state security;
checks upon the occurrence of natural and man-made emergencies;
verification of compliance with the requirements of land legislation in cases of proper notification of owners of land plots, land users, land owners and tenants of land plots;
require the submission of documents, information, product samples, samples of inspection of environmental objects and objects of the production environment, if they are not objects of inspection or do not relate to the subject of inspection, as well as seize the originals of such documents;
take samples of products, samples of examination of environmental objects and objects of the production environment for their research, testing, measurements without drawing up protocols on the selection of these samples, samples in the prescribed form and in an amount exceeding the norms established by national standards, rules for sampling, samples and methods of their research, testing, measurements, technical regulations or other normative technical documents and rules and methods of research, testing, measurements in force until the day of their entry into force;
disseminate information obtained as a result of the audit and constituting state, commercial, official, other secrets protected by law, except for cases provided for by the legislation of the Russian Federation;
exceed the established deadlines for the inspection;
issue orders or proposals to legal entities, individual entrepreneurs to carry out control measures at their expense;
require a legal entity, individual entrepreneur to submit documents and (or) information, including permits, at the disposal of other state bodies, local self-government bodies or organizations subordinate to state bodies or local self-government bodies included in the list determined by the Government of the Russian Federation;
require a legal entity, an individual entrepreneur to submit documents, information before the start date of the inspection. The state control (supervision) body, the municipal control body, after the adoption of an order or order to conduct an inspection, has the right to request the necessary documents and (or) information within the framework of interdepartmental information interaction.

The procedure for registering the results of the check

Based on the results of the inspection, the officials of the state control (supervision) body, the municipal control body conducting the inspection, draw up an act in the established form in 2 copies.

The inspection report specifies:

date, time and place of drawing up the inspection report;
the name of the state control (supervision) body or the municipal control body;
date and number of the order or order of the head, deputy head of the state control (supervision) body, municipal control body;
surnames, first names, patronymics and positions of the official or officials who carried out the inspection;
the name of the audited legal entity or the surname, name and patronymic of the individual entrepreneur, as well as the surname, name, patronymic and position of the head, other official or authorized representative of the legal entity, authorized representative of the individual entrepreneur, who were present during the audit;
date, time, duration and place of the inspection;
information on the results of the audit, including the violations of the mandatory requirements and requirements established by municipal legal acts, their nature and the persons who committed these violations;
information on familiarization or refusal to familiarize with the act of verification of the head, another official or an authorized representative of a legal entity, individual entrepreneur, its authorized representative, who were present during the verification, on the presence of their signatures or refusal to make a signature, as well as information on entering into the journal accounting of checks of the record on the check carried out or on the impossibility of making such a record due to the absence of the specified journal in the legal entity, individual entrepreneur;
signatures of the official or officials who carried out the verification.

Attached to the verification act are:

protocols of sampling of products, samples of inspection of environmental objects and objects of the production environment;
protocols or conclusions of studies, tests and examinations carried out;
explanations of employees of a legal entity, employees of individual entrepreneurs who are responsible for violation of mandatory requirements or requirements established by municipal legal acts;
a checklist completed based on the results of the check (checklist), if the check was carried out using a checklist (checklist);
instructions on elimination of detected violations and other documents related to the results of the audit or their copies.

The inspection report is drawn up immediately after its completion in 2 copies, one of which with copies of applications is handed to the head, another official or an authorized representative of a legal entity, individual entrepreneur, its authorized representative on receipt of familiarization or refusal to familiarize with the inspection report. The verification report can also be sent by registered mail or in the form of an electronic document signed with an enhanced qualified electronic signature.

In exceptional cases (if, in order to draw up an inspection report, it is necessary to obtain conclusions based on the results of research, tests, special investigations, examinations), an inspection report is drawn up within a period not exceeding 3 working days after the completion of control measures.

Inspection log

Legal entities, individual entrepreneurs have the right to keep a register of inspections according to the standard form approved by Order of the Ministry of Economic Development of the Russian Federation of April 30, 2009 N 141.

In the logbook of inspections by officials of the state control (supervision) body, the municipal control body, a record is made of the inspection carried out, containing the following information:

name of the state control (supervision) body, municipal control body;
start and end date of the inspection;
the time of the inspection;
legal basis;
goals, objectives and subject of verification;
revealed violations and issued orders;
surnames, first names, patronymics and positions of the official or officials conducting the check, his or their signatures.

The audit log must be stitched, numbered and certified with the seal of a legal entity, individual entrepreneur (if there is a seal). If there is no audit log, a corresponding entry is made in the audit report.

Objections to the inspection report

In case of disagreement with the facts, conclusions, proposals set out in the inspection report, or with the issued order to eliminate the identified violations, the legal entity (IE), within 15 days from the date of receipt of the inspection report, has the right to submit to the appropriate state control (supervision) body, municipal control in writing of objections to the inspection report and (or) the issued order to eliminate the identified violations in general or its individual provisions. In this case, the entrepreneur has the right to attach to such objections documents confirming the validity of such objections, or their certified copies.

Appealing the results of the check

The results of an inspection carried out by a state control (supervision) body, a municipal control body in gross violation of the requirements for organizing and conducting inspections established by the Law on Inspections, cannot be evidence of a violation by a legal entity, individual entrepreneur of the mandatory requirements and requirements established by municipal legal acts, and are subject to cancellation a higher authority of state control (supervision) or a court on the basis of an application from a legal entity, individual entrepreneur.

Gross violations are (part 2 of article 20 of the Law on inspections):

lack of grounds for a scheduled inspection;
violation of the deadline for notification of the inspection;
involvement of legal entities, individual entrepreneurs and citizens not certified in accordance with the established procedure, in carrying out control measures;
absence of grounds for an unscheduled on-site inspection;
lack of coordination with the prosecutor's office of an unscheduled on-site inspection in relation to a legal entity, individual entrepreneur;
violation of the terms and time of scheduled on-site inspections in relation to small businesses;
conducting an inspection without an order or order of the head, deputy head of the state control (supervision) body, municipal control body;
the requirement of documents not related to the subject of inspection;
exceeding the established deadlines for conducting inspections;
failure to submit an inspection report;
conducting scheduled inspections not included in the annual plan for conducting scheduled inspections;
participation in conducting inspections of experts, expert organizations that are in civil and labor relations with legal entities and individual entrepreneurs, in respect of which inspections are carried out.

check period

See what a "check period" is in other dictionaries:

check period - The time interval during which a check is carried out for the presence of a useful signal at the input Topics ... ... Technical translator's guide

trial; verification period - A judicial procedure during which a will is approved and an executor or administrator is appointed to fulfill the will of the deceased ... Financial and Investment Explanatory Dictionary

period - 2.18 period: The length of time. Source: GOST ISO 8601 2001: System of standards for information, librarianship and publishing. Presented ... Dictionary-reference book of terms of normative and technical documentation

Repeated tax audits - it is prohibited by the tax authorities to conduct repeated field tax audits for the same taxes payable or paid by the taxpayer (payer of the fee) for the already audited tax period, except in cases ... ...

measurement period - 3.3 measurement period: The time interval during which continuous collection of data on vibration of the building is carried out. Source: GOST R 52892 2007: Vibration and shock. Vibration of buildings. Measurement of vibration and assessment of its impact on the structure ... Dictionary-reference book of terms of normative and technical documentation

The act of the field tax audit - the act of the tax audit must indicate the documented facts of tax violations revealed during the audit, or the absence of such, as well as the conclusions and proposals of the inspectors to eliminate the identified violations and links to ...

ACT OF EXIT TAX CHECK - drawn up in accordance with the procedure established by the Instruction of the Ministry of the Russian Federation for Taxes and Duties dated April 10. 2000 № 60 "On the procedure for drawing up an act of field tax audit and proceedings in the case of violations of legislation on taxes and fees." ... ... Financial and credit encyclopedic dictionary

loopback test - The test sequence used in the plausibility evaluation in loopback mode. Reliability is assessed by comparing the transmitted and received sequence and counting the number of errors detected over the entire period ... ... Technical translator's guide

audit program (s) 3.9.2 en audit Source: GOST R ISO 9000 2001: ... ... Dictionary-reference book of terms of normative and technical documentation

Tax inspection - (Tax inspection) The concept of the tax inspection, the system of tax authorities, taxation Information about the concept of the tax inspection, the system of tax authorities, taxation Contents Contents The development of taxation in Historical chronicle ... ... Investor encyclopedia

Checked period

According to Art. 89 of the Tax Code, an on-site audit can cover any periods in the last three calendar years preceding the year of the audit.

Example. For example, in January 2010 tax authorities can check the correctness of calculations with the income tax budget for 2007, 2008 and 2009. They no longer have the right to control the calculations of this tax for 2006 and previous years.

If the tax inspectorate has checked the period, which is not entitled to check, and decided to fine the company, go to court: you will win the case.

Example. In April 2005, the tax inspectorate conducted an on-site inspection of one of the joint-stock companies in the city of Yaroslavl. The inspectorate found that the company had not fully paid personal income tax in the period before January 1, 2002. According to the results of the audit, the tax authorities fined the company a large sum and demanded to pay arrears. The firm did not agree with the decision of the inspectors and appealed to the arbitration court. The judges satisfied the claim, since the inspectorate did not have the right to charge additional tax and collect a fine from arrears that arose outside the audited period (Resolution of the FAS of the Volgo-Vyatka District of April 24, 2006 N A82-4687 / 2005-15).

Please note: it is prohibited to carry out repeated field inspections for the same taxes for the same tax period (Article 89 of the Tax Code of the Russian Federation).

The prohibition on repeated checks for the same taxes for the same period does not apply to three cases. A second check on the same issues can be carried out:

- if it is caused by the liquidation or reorganization of the company;

- if it is carried out by a higher tax authority to control the work of subordinates;

- if the company has submitted a revised declaration, in which the tax amount was less than the previously declared one.

Checking procedure

The tax office has come to check with you. What should you pay attention to first of all?

First of all, on the basis of Art. 91 of the Tax Code, you have the right to deny the inspection staff access to your premises if they do not show you their identity cards and a decision to conduct an inspection.

An on-site inspection is carried out on the basis of the decision of the head or deputy head of the tax inspectorate. The form of the decision was approved by Order of the Federal Tax Service of Russia dated December 25, 2006 N SAE-3-06 / [email protected]

Here's an example solution:

SOLUTION N ——

on conducting an on-site tax audit

————————- —————

(place of compilation) (date)

Based on article 89 of the Tax Code of the Russian Federation

head (deputy head)

Inspectorate of the Federal Tax Service N 12 of the city of Serpukhov

(name of the tax authority)

Andreev A.A.

(surname, initials)

Societies

1. Appoint an on-site tax audit ———————

with limited liability "Passive" (LLC "Passive"),

(full and abbreviated name of the organization, TIN / KPP

or full and abbreviated name of the organization and branch

(representative office) of the organization, INN / KPP; FULL NAME. physical

persons, TIN)

in accordance with paragraph 1 of Art. 89 of the Tax Code of the Russian Federation

(the basis for the on-site tax audit is indicated

in accordance with article 89 of the Tax Code of the Russian

Federation in the event of a repeated exit tax

checks: “in accordance with subparagraph I of paragraph 10 of Article 89

Of the Tax Code of the Russian Federation in the order of control

the higher tax authority for the activities of ________________

(the name of the tax authority that conducted

verification) "or" in accordance with subparagraph 2 of paragraph 10 of Article 89

Of the Tax Code of the Russian Federation in connection with the submission

updated __________________ (the name of the tax

declaration), which indicates the amount of tax in an amount less

previously declared ", or in the case of an exit tax

inspections in connection with the reorganization or liquidation of the organization:

"In connection with the reorganization of the organization" or "in connection with the liquidation

organizations ")

on the issues of correctness of calculation and timeliness of payment

(deductions, transfers) taxes and fees: ______________________

on value added tax

(the list of taxes and fees to be inspected or an indication of

to conduct an on-site tax audit "for all taxes

and fees ")

01.01.2008 01.12.2008

for the period from ————— to ——————.

(date) (date)

senior state

2. Instruct the inspection ——————————

tax inspector Petrova O.I. (supervisor)

(positions, full names of tax authority employees, indicating

the head of the inspection group (brigade) and employees of the body

internal affairs)

and state tax inspector Ivanov I.AND.

Head (deputy head)

state advisor

civil service

Russian Federation 1st class Andreev Andreev Andrey Andreevich

—————————— ——— ————————

(class rank) (signature) (full name)

Place of printing

I am familiar with the decision to conduct an on-site tax audit:

General Director of LLC "Passive" Vasilyev Vasily Vasilyevich

(position, full name of the head of the organization (its branch or

representation) or full name natural person)

(Name of their representative)

————— —————

(date) (signature)

Any inconsistencies in the presented decision with the established form give you the right not to let the inspectors into your premises. If possible, make copies of the submitted documents. If you doubt their authenticity, call the tax office to find out if its employees are really in front of you.

Attention! If you have refused admission to the inspectors, the tax authorities have the right to independently determine the amount of taxes that you must pay. This is done on the basis of the data they have about your activities or by analogy with other taxpayers (Article 31 of the Tax Code of the Russian Federation).

In addition, the tax authorities can draw up a protocol on an administrative violation and send it to a district or magistrate judge.

Attention! The judge has the right to fine the head of the company or entrepreneur in the amount of 1,000 to 2,000 rubles, other employees - in the amount of 500 to 1,000 rubles. (Clause 1 of Article 19.4 of the Code of Administrative Offenses of the Russian Federation).

From the moment the tax inspectorate employees are admitted to your premises, they have the right to perform all the actions provided for during the on-site inspection:

- inspect any premises;

- to interrogate witnesses;

- require the submission of the necessary documents;

- carry out the seizure of documents and objects;

- carry out an inventory of property;

- to appoint an examination.

The Tax Code of the Russian Federation establishes the rules for the implementation of all these actions. Evidence obtained by the tax office in violation of the rules cannot be used in court.

Tax audit in more than three years

Yulia Vasilieva
head of the group for accreditation of foreign representations

Tax audit in more than three years

This conclusion is confirmed by the materials of judicial practice (resolution of the Federal Antimonopoly Service of the North-West District of June 22, 2012 No. A05-14239 / 2010).

Practical example:

Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:

P / p No.	Exceptions	Foundations
1	Submission by the taxpayer of a revised tax return as part of the relevant field tax audit.	Paragraph 3, clause 4 of Art. 89 of the Tax Code of the Russian Federation
2	Repeated on-site inspection in connection with the submission of a revised tax return by the taxpayer, which indicates the amount of tax in an amount less than the previously declared one.	Subparagraph 2 of clause 10 of Art. 89 of the Tax Code of the Russian Federation
3	Conducting an on-site inspection of a resident excluded from the register of the Special Economic Zone in the Kaliningrad Region in terms of income tax and property tax of organizations, provided that the decision on the appointment of such an inspection was made no later than three months from the date of payment by the resident of the relevant tax.	Clause 16.1 of Art. 89 of the Tax Code of the Russian Federation
4	Conducting an on-site audit of a taxpayer who applies a special tax regime when executing a production sharing agreement.	Clause 1 of Art. 346.42 of the Tax Code of the Russian Federation

Verification of individual entrepreneurs who have already ceased their activities

with the payment of tax and (or) levy by a taxpayer, payer of the levy and (or) a member of a consolidated group of taxpayers in cases stipulated by the Tax Code of the Russian Federation;
with the death of an individual - a taxpayer or declaring him deceased in accordance with the procedure established by the civil procedural legislation of the Russian Federation;
with the liquidation of the taxpaying organization after all settlements with the budgetary system of the Russian Federation in accordance with Art. 49 of the Tax Code of the Russian Federation;
with the emergence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.

As you can see, this rule does not provide for the fact of the termination of individual entrepreneurial activity as the basis for the termination of the obligation to pay tax (due).

Important in work:

The taxpayer has the right to reconcile the calculations with the tax authority for a period that exceeds three years.
The loss of the status of an entrepreneur does not mean that the tax authorities will never again be able to check the correctness of the calculation of taxes for the period of the entrepreneurial activity by a former individual entrepreneur.

There is an opinion:

The Inspectorate has the right to conduct an on-site inspection for a period that has not been previously inspected and for which a "revision" has been submitted, even if more than three years have passed. Therefore, when submitting a "clarification", it is necessary to calculate the timing.
In practice, not everyone is checked with the same regularity: some are checked annually, and some are checked every few years. And yet, the tax authorities try to avoid "dead zones", that is, situations when the company has not been audited for more than three years and there are periods that the tax authorities are no longer entitled to check. Therefore, if you have not been checked for more than three years, wait for an on-site check.

WHO IS CHECKED

Who will they come to first?

Rostrud assigns an organization or an individual entrepreneur to a certain risk category. The higher the risk category, the more often checks will be carried out:

As you can see, most often organizations that belong to a high risk category will be checked. The list of employers whose activities are classified as high risk is posted on the Rostrud website.

Before conducting a scheduled inspection, officials of the state control (supervision) body are obliged to explain the content of the provisions of Art. 26.1 of the Federal Law of December 26, 2008 No. 294-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" (as amended on April 18, 2018; hereinafter - Federal Law No. 294-FZ).

To whom won't the GIT come?

From January 1, 2016 to December 31, 2018, scheduled inspections are not carried out in relation to legal entities, individual entrepreneurs, classified in accordance with the provisions of Art. 4 of the Federal Law of 24.07.2007 No. 209-FZ "On the Development of Small and Medium-Sized Businesses in the Russian Federation" to small businesses (hereinafter referred to as SMEs), with the exception of legal entities, individual entrepreneurs engaged in activities under Part 9 of Art. 9 of Federal Law No. 294-FZ (social sphere, healthcare, education, heat supply, electric power industry, energy saving and energy efficiency increase).

In the case of submission to officials of the state control (supervision) body, municipal control body during a scheduled inspection of documents confirming the attribution of a legal entity, an individual entrepreneur, in respect of which a planned inspection is being carried out, to the SMP, and in the absence of grounds provided for in Part 2 of Art. 26.1 of Federal Law No. 294-FZ, the scheduled inspection is terminated, and a corresponding act is drawn up.

Note!

Conducting a scheduled inspection in violation of the requirements of Art. 26.1 of the Federal Law No. 294-FZ in relation to the NSR is a gross violation of the requirements of the legislation on state control (supervision) and municipal control and entails the invalidity of the results of the inspection as carried out with gross violations.

Will the GIT inspections be affected by the project to extend the moratorium on scheduled inspections until 2022 for medium-sized entrepreneurs?

Currently, a project is being prepared to extend the moratorium on scheduled inspections in respect of not only small but also medium-sized businesses until 2022, but this change will only affect those inspections that will be carried out without using a risk-based approach. Therefore, the moratorium will not apply to inspections of the GIT, since scheduled inspections from 2018 are carried out using a risk-based approach.

Can the labor inspector conduct a routine inspection of the organization related to the EMS?

Yes, maybe, in a case clearly defined by law:

If earlier in relation to the employer:

- a decree that entered into legal force was issued on the appointment of an administrative penalty for committing a gross violation, determined in accordance with the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), or an administrative penalty in the form of disqualification or administrative suspension of activities;

- either a decision was made to suspend and (or) revoke the license issued in accordance with Federal Law No. 99-FZ dated 04.05.2011 “On licensing certain types of activities”;

If less than three years have passed since the date of the end of the inspection, based on the results of which such a decision was made or such a decision was made.

Note!

When forming the annual plan for conducting inspections, the state control (supervision) body has the right to decide on the inclusion of inspections in relation to such employers in the annual plan for conducting scheduled inspections on the grounds provided for in Part 8 of Art. 9 of Federal Law No. 294-FZ, as well as other federal laws establishing the specifics of organizing and conducting inspections.

At the same time, the annual plan for conducting scheduled inspections will contain information about the said decree or decision, the date of their entry into force and the date of the end of the inspection, based on the results of which a decision was made or a decision was made.

For your information

These conditions apply regardless of the area in which the violation was committed (that is, it is not necessarily a violation of labor laws), which entailed such severe penalties.

Can an organization be excluded from the audit plan?

Employers have the right to submit an application to the territorial body of Rostrud to exclude the organization from the annual plan for scheduled inspections, if they believe that it is included in the annual plan in violation of the provisions of Art. 26.1 of Federal Law No. 294-FZ.

The rules for filing and considering an application to exclude an inspection in relation to a legal entity, an individual entrepreneur from the annual plan for conducting scheduled inspections were approved by Decree of the Government of the Russian Federation No. 1268 dated November 26, 2015. These Rules establish:

the procedure for submitting an application;
a list of documents attached to it, confirming the attribution of a legal entity, an individual entrepreneur to the SMP;
the procedure for considering this application, appealing the inclusion of an inspection in the annual plan for conducting scheduled inspections;
the procedure for excluding the corresponding check from the annual plan.

How to lower the risk category?

To reduce the risk category, the employer must apply to the territorial office of Rostrud with a corresponding statement. And if the risk category is downgraded from medium to low, there will be no scheduled verification for such an employer. For example, due to the change in the risk category from medium to low, by the Order of the State Labor Inspectorate in the Ryazan Region, the planned inspection in relation to the PPO of PJSC Krasnoe Znamya Plant was excluded from the Plan of Scheduled Inspections for 2018.

Note!

Even those employers with respect to whom, during the previous year, there are rulings that have entered into legal force in cases of an administrative offense provided for by the hh, can reduce the risk category. 2, 5 and 7 Art. 5.27 and part 5 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation, that is, those who committed similar offenses, which does not quite correspond to the stated goals of the risk-based approach.

In accordance with clause 13 of the Criteria for assigning the activities of legal entities and individual entrepreneurs who are employers to a certain risk category, the employer's risk category can be reduced only if, during the previous year, there has been no ruling on an administrative offense under the hh. 1, 3, 4 and 6 st. 5.27 and hh. 1-4 st. 5.27.1 of the Code of Administrative Offenses of the Russian Federation in relation to the employer. We hope that in the near future this loophole for employers who repeatedly violate labor laws will disappear.

How are changes made to the audit plan?

In accordance with clause 41 of the Administrative Regulations for the execution by the Federal Service for Labor and Employment of the state function of exercising federal state supervision over the observance of labor legislation and other normative legal acts containing labor law norms, approved by Order of the Ministry of Labor of Russia dated 30.10.2012 No. 354n (as amended by . of 11/08/2017; hereinafter referred to as the Administrative Regulations), amendments to the approved annual audit plan are allowed in the following cases:

Exclusion of verification from the annual plan due to:

- the impossibility of conducting a scheduled audit of the activities of a legal entity due to its liquidation, the impossibility of conducting an audit of an individual entrepreneur due to the termination of an individual's activities as an individual entrepreneur;

- the adoption by the state control (supervision) body of a decision to exclude the relevant inspection from the annual plan in the cases provided for in Art. 26.1 of Federal Law No. 294-FZ;

- the onset of force majeure circumstances;

Changes to the information on a legal entity or individual entrepreneur specified in the annual plan due to:

- change of the address of the location or the address of the actual implementation of the activities of a legal entity or individual entrepreneur;

- reorganization of a legal entity;

- changing the name of a legal entity, as well as changing the last name, first name and patronymic of an individual entrepreneur.

Changes to the annual plan are made by the decision of the territorial body of Rostrud. Information about the changes made to the annual plan is sent within 3 working days from the date of their introduction to the relevant prosecutor's office on paper (with an attached copy in electronic form) by registered mail with a receipt acknowledgment or in the form of an electronic document signed with an electronic signature, and are also posted on the official website of Rostrud in the information and telecommunications network "Internet" within 5 working days from the date of changes.

Is a legal entity or individual entrepreneur excluded from the audit plan during reorganization?

When reorganizing a legal entity, as well as in connection with a change in the address of the location or address of the actual implementation of the activities of a legal entity or an individual entrepreneur, in connection with a change in the name of a legal entity, as well as a change in the last name, first name and patronymic of an individual entrepreneur, changes are made to the plan, and the legal a person or self-employed person is not excluded from the plan. This is important, since a cursory reading of this provision gives the employer the impression that changing the name of a legal entity will help to avoid a routine inspection. This is not true.

Can an inspector, during a scheduled on-site inspection, request documents held by another authority?

It should be noted that there is a slight conflict in the legislation between the two normative provisions - clause 8 of Art. 15 of Federal Law No. 294-FZ and clause 51 of the Administrative Regulations - in terms of establishing one of the restrictions during inspections. Federal Law No. 294-FZ prohibits demanding information and documents from the employer that are at the disposal of other state bodies, local authorities or organizations subordinate to them during any inspections, and the Administrative Regulations - only when carrying out documentary inspections.

According to Part 4 of Art. 1 of Federal Law No. 294-FZ, the specifics of inspections in relation to federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms are established by federal laws, and not by-laws. Therefore, this restriction applies to all inspections carried out by labor inspectors. It should be added that the law does not prohibit the submission of such documents on a voluntary basis.

HOW TO CHECK

How will the employer be screened in 2018?

When conducting scheduled inspections of all employers - legal entities and individual entrepreneurs - state labor inspectors use checklists (checklists) from July 1, 2018, and during routine inspections of employers belonging to the moderate risk category - from January 1, 2018 . (actually from February 4, 2018). The subject of a routine inspection of all employers is limited to the list of questions included in the checklists.

Among all the supervisory authorities, Rostrud has the largest number of checklists - 107 (for comparison: Rosprirodnadzor has 7 of them, Rospotrebnadzor and the Ministry of Emergency Situations have 3 each, Rosreestr has 1). In the near future there will be even more of them - Rostrud has prepared a draft order approving 28 more checklists. Among them - issues related to the material responsibility of the employee, the organization of vocational education and training, as well as compliance with labor protection requirements in the coal industry.

How do I prepare for the audit?

Based on clause 7 of the general requirements for the development and approval of checklists (lists of checklists), approved by the Decree of the Government of the Russian Federation of 13.02.2017 No. 177, questions from the checklists can be used for self-checking. And by letter dated 03/07/2018 No. 837-TZ Rostrud sent Methodological Recommendations for employers on voluntary internal control (self-control) of compliance with labor legislation and other regulatory legal acts containing labor law norms.

Not everything is so simple with regard to the unambiguousness of the answers to the questions posed in the checklists. Here are some examples:

What specific checklists will be checked? How many reviewers will there be? What should be available for inspection?

In practice, when conducting scheduled inspections of the State Inspectorate for the majority of the organizations being inspected, on average, 36–37 first in the list of checklists are used, plus checklist No. 100.

Occupational safety checklists will be used depending on the specifics of the organization's activities. Some of the questions specified in the checklists are used if the employer has an appropriate type of economic activity according to the Federal Tax Service, real estate objects and equipment on which this type of work is carried out, professions and positions in the staffing table performing this type of work. In some regions, a tendency has already emerged when employers en masse apply to the Federal Tax Service with an application to exclude additional OKVED.

The order for the inspection must indicate the specific numbers of the checklists, which will be used when conducting a routine inspection in relation to a particular employer.

Note!

It is unacceptable to indicate all checklists in an inspection order and may negatively affect the transparency of supervisory activities.

In addition, several officials may be specified in the order. As a rule, this is a labor inspector and a legal inspector. The number of inspectors is actually limited only by the size of the respective territorial body of Rostrud. And if the inspector, due to temporary incapacity for work, being on vacation, business trip, dismissal and other valid reasons, could not go to the inspection, then the appropriate changes are made to the inspection order, drawn up by order.

Recently, the orders have also indicated a QR code, in which the link to the site of the Unified Register of Checks is encrypted. By dialing the check account number indicated in the checklist or by scanning the QR code, you can subsequently familiarize yourself with the results of the check, see information about the execution of the order and find out whether the guilty persons have been brought to administrative responsibility.

What documents should the organization receive after verification?

Upon completion of the inspection, the employer will receive an inspection report with copies of the completed checklists attached to it.

If violations are found - also an order to eliminate violations of labor legislation, and in case of violations in terms of labor protection training - an order to remove from work persons who have not undergone training in safe methods and techniques for performing work in the prescribed manner, instruction on labor protection, internship at workplaces and testing of knowledge of labor protection requirements.

How will the checklist and the verification act be filled in during verification?

By law, checklists include lists of issues affecting the most significant mandatory requirements of labor legislation and other regulatory legal acts containing labor law standards applicable to employers.

The columns "Account number of the check" and "Date of entry into the unified register of checks" of the check sheet must be filled in, for example: No. 0018000xxxxxx dated 08.02.2018.

According to Part 11.5 of Art. 9 of Federal Law No. 294, the checklist is filled out based on the results of the inspection and attached to the inspection act. However, the article does not specify which one.

According to clause 61 of the Administrative Regulations, the inspection act is drawn up by an authorized official of the territorial body of Rostrud immediately after its completion in two copies having the same legal force, one of which with copies of attachments is handed to the authorized representatives of the inspected person against a receipt for familiarization.

The original of the checklist is attached to the inspection report held by the labor inspector, and copies of the checklists are attached to the inspection report handed to the employer (his representative).

Is it possible to receive a verification report and checklist in electronic form?

The regulation on the type of federal state control (supervision) provides for the possibility of issuing checklists in the form of an electronic document signed with an enhanced qualified electronic signature in accordance with the Federal Law "On Electronic Signature" (clause 5 of the Decree of the Government of the Russian Federation of 13.02.2017 No. 177 "On approval general requirements for the development and approval of checklists (checklists) ".

However, the Regulations on Federal State Supervision of Compliance with Labor Laws and other regulatory legal acts containing labor law norms do not currently provide for the possibility of issuing a checklist in the form of an electronic document. The employer, even if desired, will not be able to receive the verification report in the form of an electronic document, since it is impossible to attach a checklist on paper to the act in the form of an electronic document.

Does the inspection act specify the number of employees in relation to whom violations have been identified?

The questions posed on the checklists vary in the number of subjects. For example, checklist # 2 asks questions about an employee, while checklist # 22 asks questions about workers. The situation is similar with regard to the employment contract.

However, the act (in the event of a violation) will indicate that a similar violation of the requirements of the regulatory legal act was committed, for example, with respect to 5 employees with their names indicated, so there is no difficulty in this.

Are checklists used as evidence in an administrative offense case?

Yes, they are. As an example, we can cite the decision in the case of an administrative offense dated 03.28.2018 No. 80 / 5-186 / 2018, issued by the magistrate of the judicial district No. 80 of the Oktyabrsky district of Kirov, in which checklists are given as evidence of violations of labor protection requirements ... Since the person brought to administrative responsibility did not dispute the essence of the alleged violations under Part 1 of Art. 5.27.1 of the Administrative Code of the Russian Federation, the court applied an administrative penalty in the form of a warning.

Can I appeal against a prescription?

It will become more difficult to appeal against orders issued as a result of a scheduled inspection carried out using checklists, since they are issued in case of an obvious violation of labor laws, and the answers to the questions posed in the checklists unambiguously (and therefore obviously) must indicate the presence or no violation.

A separate layer of court decisions will be formed on appealing the results of inspections using checklists related to compliance with labor protection requirements, since some of the checklists contain references to documents that are recommendatory, not mandatory, for example, Resolution of the Ministry of Labor of Russia dated December 17, 2002 No. 80 "On the approval of Methodological recommendations for the development of state regulatory requirements for labor protection."

Will consolidated checklists be used when conducting joint inspections of Rostrud and Rospotrebnadzor?

When conducting joint scheduled inspections, consolidated checklists (checklists), developed and approved by several state control (supervision) bodies, can be used.

For example, when conducting a joint scheduled inspection of Rostrud and Rospotrebnadzor, a consolidated checklist may be approved regarding the verification of the provision of personal protective equipment for workers whose activities are associated with a high risk of contracting infectious diseases. We remind you that the employer is obliged to provide employees belonging to occupational risk groups with special clothing and repellents.

There are currently no approved summary checklists.

Will the labor inspector fill out checklists on the first day of the inspection?

Employers should not be afraid of the new procedure for conducting scheduled inspections, since checklists are drawn up upon completion of the inspection, that is, personnel documentation, documents on wages and labor protection, labor inspectors will study in the same order as before, setting out the results of the inspection in the act with reference to the relevant provisions of the checklists.

Rostrud letter dated 12.04.2017 No. ТЗ / 1330-11-2.

Companies often have disputes with tax authorities about the periods that the latter are entitled to check as part of an on-site tax audit. Based on judicial practice and explanations of officials, we will consider in which cases companies have a chance to defend their case, and in which they do not.

An on-site tax audit is carried out on the basis of the decision of the head (deputy head) of the tax authority (clause 1 of article 89 of the Tax Code of the Russian Federation). Within its framework, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made (clause 4 of article 89 of the Tax Code of the Russian Federation) can be checked.

How to count three years

In practice, there are situations when several months pass between the decision to conduct an inspection and the inspection itself, and it takes place already next year. In such cases, some companies consider that the three-year period should be counted from the year in which the audit is actually carried out. But the courts do not support them.

Thus, the CA of the Ural District, in a resolution dated July 17, 2017 in case No. A60-47352 / 2016, considered the following situation. The company underwent an on-site tax audit in 2016, during which the tax authorities checked the periods from April 2012 to December 2014 inclusive. The company believed that since the audit was conducted in 2016, the tax authority had the right to audit 2015, 2014 and 2013. And the inclusion in the audit of 2012 contradicts the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation.

The court found the company's arguments erroneous. He noted that in accordance with paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, a three-year period is counted from the year in which the decision was made to conduct an audit, and not from the year in which it was actually carried out. The decision to conduct an on-site tax audit was made by the head of the inspectorate on June 30, 2015. So, on the basis of the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authority could audit the period from 2012 to 2014, and the controllers did not go beyond the three-year limit of the audit period.

Another example is the dispute considered by the CA of the West Siberian District in a resolution dated December 25, 2018 in case No. A75-918 / 2017. The tax authority made a decision to conduct an on-site tax audit on December 28, 2015, which actually took place in 2016. The court recognized that the inspection carried out by the inspectorate for 2012, 2013 and 2014 was lawful.

Please note: in such cases, the earliest year covered by a tax audit goes beyond the three-year limitation period (Article 196 of the Civil Code of the Russian Federation). In this regard, some companies believe that tax authorities are not entitled to charge additional tax. For example, the Federal Antimonopoly Service of the Volga District, in its resolution dated 19.03.2013 in case No. А06-3630 / 2012, considered the situation when the decision to conduct an on-site audit was made by the tax inspectorate on December 26, 2011, and the audit itself took place already in 2012. the period from January 1, 2008 to December 31, 2010 was checked. The Company tried to challenge the additional tax assessment for 2008 due to the expiration of the statute of limitations. But the court rejected this argument. He indicated that the additional accrual was made lawfully, since according to paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, as part of an on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct the audit was made can be checked. At the same time, the arbitrators noted that the company was not reasonably fined for non-payment of tax in 2008, since the statute of limitations for tax liability had expired. Let us remind you that according to clause 1 of Art. 113 of the Tax Code of the Russian Federation, a person cannot be held liable for a tax offense if three years (limitation period).

Verification period when submitting a revision

In paragraph 4 of Art. 89 of the Tax Code of the Russian Federation states that when a taxpayer submits a revised tax return within the framework of an appropriate on-site tax audit, the period for which the revised tax declaration is submitted is checked.

Explaining the procedure for applying this norm, the Federal Tax Service of Russia in letters dated 25.07.2013 No. AS-4-2 / [email protected] and dated 29.05.2012 No. AS-4-2 / 8792 indicated that:

1) the norm is an exception to the general rule on the period that may be covered by the on-site inspection;

2) the norm applies if the taxpayer submits a revised tax return for a period exceeding three calendar years preceding the year in which such a declaration was submitted;

3) the norm grants the tax authority the right to conduct an on-site audit for the period for which the revised tax return is submitted;

4) the specified on-site tax audit can be carried out if the relevant period was not previously covered by the on-site tax audit;

5) the moment of submission of the revised tax return (during the on-site tax audit, before it, after it) does not matter for the application of the norm.

And in a letter dated 03.09.2010 No. AS-37-2 / [email protected] Specialists of the Federal Tax Service of Russia noted that if an updated tax return is submitted, the period for which it was submitted is checked, including if the specified period is outside the three calendar years preceding the year in which the decision to conduct the audit was made.

Thus, when submitting a revised declaration, the tax authorities can check a period that goes beyond the three-year limit. The courts confirm this.

In the dispute considered in the resolution of the CA of the North Caucasus District of 13.08.2014 in case No. A53-11519 / 2013, the tax inspectorate in 2012 conducted an on-site tax audit for 2009 and 2010. At the same time, in the course of control over the correctness of the calculation and payment of income tax for 2009, the tax authority examined, among other things, the revised income tax returns for 2008 and 2009, filed in October 2010. The Company considered that the inspectorate had no right to check the correctness of the calculation of income tax for the tax period preceding the audit period.

But the courts of three instances judged differently. They indicated that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation provides for an exception to the general rule on the three-year depth of tax audit. If a company has submitted a revised declaration, the tax authorities have the right to check the period for which such a declaration was submitted when conducting an on-site audit for the period the indicators of which were influenced by the revised declaration data. It does not matter that the specified period is outside the three calendar years preceding the year in which the decision to conduct the audit was made. By the ruling of the Supreme Court of the Russian Federation of November 28, 2014 No. 308-KG14-4417, it was refused to transfer the case to the Judicial Collegium for Economic Disputes of the Armed Forces of the Russian Federation.

Rechecking when submitting a revision

A repeated on-site inspection may be appointed if the taxpayer has submitted a revised declaration, which indicates the amount of tax in an amount less than the previously declared one. The subject of such a repeated field tax audit is the correctness of the tax calculation based on the changed indicators of the revised tax declaration, which entailed a decrease in the previously calculated amount of tax (increase in loss) (subparagraph 2 of paragraph 10 of article 89 of the Tax Code of the Russian Federation).

When conducting a repeated field tax audit, a period not exceeding three calendar years preceding the year in which the decision was made to conduct a repeated field tax audit can be checked (clause 10, article 89 of the Tax Code of the Russian Federation). The question arises: is the tax authority entitled to conduct a repeated field tax audit if the period for which the revised tax return is filed exceeds three calendar years preceding the year in which the tax authority made a decision to conduct a repeated field tax audit?

Officials believe they have the right. In a letter dated 19.04.2013 No. 03-02-07 / 1/13473, the Ministry of Finance of Russia indicated that within the framework of a repeated field tax audit, appointed in connection with the submission of a revised declaration, the period for which it was submitted is checked. Therefore, the period checked during the said repeated on-site inspection may exceed three calendar years preceding the year in which the decision to conduct it was made. A similar conclusion is contained in the letter of the Federal Tax Service of Russia dated July 25, 2013 No. AS-4-2 / 13622.

The Supreme Court is of the same opinion. In the Decision No. 305-KG15-606 dated 05.03.2015, he considered the situation when the company on December 26, 2011 submitted revised declarations for June, August and December 2009, which reflected the amounts of excise taxes paid for import the territory of the Russian Federation, and the amount of tax is indicated in an amount less than previously declared. In 2013, the tax inspectorate conducted a second on-site audit of the period for which the revised declarations were submitted. The company considered that the tax authorities exceeded the three-year period established by paragraph 10 of Art. 89 of the Tax Code of the Russian Federation.

The courts of three instances indicated that the start date of the inspection is the day of the decision to conduct the inspection (December 29, 2012), therefore the disputed period (2009) does not go beyond the three-year period established in paragraph 10 of Art. 89 of the Tax Code of the Russian Federation. They also noted that tax legislation provides for the possibility of filing a revised declaration for a period that is beyond three years. In this regard, the possibility of a repeated tax audit outside the specified period is consistent with the principles and objectives of tax regulation and does not violate the balance of private and public interests.

Please note: in the Definition of March 16, 2018 No. 305-KG17-19973, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation expressed its legal position that a repeated field tax audit cannot be initiated by the tax authority without taking into account the assessment of the reasonableness of the period that has passed since the submission of the updated tax declaration. When assessing the reasonableness of the timing of the appointment of a repeated on-site inspection, all circumstances related to ensuring a balance of private and public interests should be taken into account, in particular:

the tax authority has the ability to timely identify circumstances indicating the groundlessness of changes in the calculation of tax declared in the revised declaration;

the ability of the taxpayer, in the event of an 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, a four-year storage period for documents required for calculating and paying taxes;

the presence or absence of signs of opposition to tax control in the actions of the taxpayer (provision of inaccurate and (or) incomplete documents to the tax authority, etc.).

In this case, a repeated on-site tax audit was scheduled 1 year and 10 months after the submission of a revised tax return to the tax authority, which the arbitrators recognized as a significant period. In this regard, the judicial board sent the case for a new examination, instructing the courts to assess the reasonableness of the timing of the appointment of an on-site tax audit, to adopt legal and substantiated judicial acts.

The legal position of the Supreme Court is used by the courts when making decisions. So, taking into account this legal position, the CA of the North-Western District, in its resolution of 08.20.2018 in case No. А21-10802 / 2017, recognized the decision to conduct an on-site audit, taken 2 years 11 months after the submission of the revised tax return, as violating the rights and legitimate interests companies.

Checking the current period

Disputes often arise over whether tax authorities can control the current period as part of an on-site tax audit.

Tax officials and financiers believe that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not contain a prohibition on conducting field tax audits for the reporting periods of the current calendar year in which a decision was made to conduct a tax audit (letters of the Ministry of Finance of Russia dated July 26, 2018 No. 03-02-07 / 1/52519, FTS of Russia dated April 17. 2019 No. ЕД-4-2 / 7305). This conclusion is confirmed by judicial practice.

In the Decision dated 09.09.2014 No. 304-KG14-737, the Supreme Court of the Russian Federation considered the following situation. The tax authority on March 30, 2012 decided to conduct an on-site tax audit in the company for the period from January 1, 2009 to February 29, 2012. Based on the results of the audit, the company was held liable under Art. 123 of the Tax Code of the Russian Federation for the period from September 2, 2010 to December 31, 2011 and for January, February 2012.

The court of first instance found it unlawful to bring the company to justice for January and February 2012. In its opinion, from the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not directly follow that the check can cover the current calendar year. A broad interpretation of the provisions contained in the law, or their extension to cases not specified in it, is unacceptable. In addition, according to paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer. Thus, the on-site tax audit for January and February 2012 does not comply with the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation.

But the courts of appeal and cassation did not agree with this conclusion. They indicated that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not contain a prohibition on conducting field inspections for the reporting periods of the current calendar year. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 No. 5 "On some issues of application of the first part of the Tax Code of the Russian Federation" clarified that tax legislation does not contain a prohibition on auditing the periods of the current calendar year. From this, the courts concluded that the audit of the reporting periods of the current year as part of an on-site tax audit does not violate the norms of tax legislation. The Supreme Court upheld this conclusion.

The fact that the inspection of an on-site tax audit of the reporting periods of the current year does not contradict the norms of the Tax Code and does not violate the rights and legitimate interests of the taxpayer is stated in the resolutions of the CA of the West Siberian District of 05/10/2017 in case No. A45-28037 / 2015, Vostochno- Siberian District of April 19, 2017 in case No. A33-8287 / 2016, Moscow District of 11/12/2015 in case No. A41-32783 / 2015, FAS of the Far Eastern District of February 26, 2013 No. F03-453 / 13 (By definition of the Supreme Arbitration Court of the Russian Federation dated April 26 2013 No. VAS-4862/13 refused to transfer the case for review).

Exit over a three-year period

Sometimes, as part of an on-site tax audit, inspectors make additional charges on transactions related to periods beyond a three-year period. The courts consider such actions unlawful.

An example is the resolution of the CA of the North Caucasus District of 06/27/2018 in case No. A63-11808 / 2017. In 2016, the Inspectorate conducted an on-site inspection of the timeliness of the transfer of personal income tax by an individual entrepreneur to the budget for the period from January 1, 2013 to February 29, 2016, as a result of which additional tax was charged to the businessman. The reason was that the entrepreneur received real estate in 2012 as compensation. The ownership of this property was registered for him in court in 2013. The controllers considered that the businessman received the real estate only from the moment of state registration of the transfer of ownership to it. In this regard, the income from the transaction should be recorded in 2013.

But the courts of three instances did not agree with this. They pointed out that the procedure for determining the date of receipt of income by individuals does not depend on the fact of state registration of the transfer of ownership of the property. The date of receipt of income in this case is the date of the transfer act (October 15, 2012). And since the deal was completed in 2012, its tax implications are related to this tax period. Therefore, the inspectorate did not have the right to accrue personal income tax for 2013 on transactions made in 2012. The controllers went beyond the statutory period for conducting an on-site tax audit (no more than three calendar years preceding the year in which the decision to conduct an audit was made).

In practice, there are situations when the tax authorities, based on the results of the audit, make additional charges, taking into account the accounts payable formed beyond the three-year period. The courts consider this to be outside the scope of the audit (decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05/29/2012 No. 17259/11, FAS of the Central District of 11/21/2012 in case No. A35-439 / 2012, the Ural District of 10/12/2012 in case No. A60-613 / 2012).

So, in a dispute considered in the resolution of the CA of the North Caucasus District of 08/22/2018 in case No. A01-2762 / 2017, the company had tax debts as of January 1, 2014. During the on-site tax audit conducted in 2017, the tax authorities checked the period from January 1, 2014 to March 31, 2017. They additionally charged the company with tax taking into account its accounts payable as of January 1, 2014.

The court canceled the additional accruals. He pointed out that the tax inspectorate does not have the right to check the activities of the taxpayer (tax agent) beyond the three-year period established by paragraph 4 of Art. 89 of the Tax Code of the Russian Federation. The disputed debt was formed outside the audited period. Tax legislation does not provide for the inclusion in the results of field tax audits of all credit balances available on the personal account of the taxpayer (tax agent) as of the date of the beginning of the audited period, as well as the inclusion of such balances in the results of audits.

Exit beyond the verification period specified in the decision on its conduct

It happens that tax authorities check taxes within the framework of the three-year period established by law, but at the same time go beyond the dates indicated in the decision to conduct an on-site audit. The courts consider this a violation and cancel additional charges.

In the resolution of the FAS of the Ural District of 15.09.2009 on case No. А71-13315 / 2008А19, the situation was considered when the tax authorities, as part of an on-site audit, accrued penalties on arrears in 2004 for income tax and VAT. The court ruled that the accruals were unjustified, since, according to the decision to conduct an on-site tax audit, the period from January 1, 2005 to December 31, 2006 was subject to control.

And in the situation considered by the Nineteenth AAC in Resolution No. 19AP-2131/09 of May 28, 2009, in the decision to conduct an on-site tax audit, the controlled period was limited to 2006 and 2007. However, according to the results of the audit, the inspectors made additional charges for 2005 as well. was printed "January 1, 2006".

The court declared the additional charges for 2005 unlawful. He pointed out that since at the time of the audit there was no application to clarify the audited period, the tax authorities were obliged to conduct an audit for the period from January 1, 2006 to December 31, 2007. In this regard, the tax authority did not have the right to verify the correctness and timeliness payment of taxes for 2005