FTS letters are mandatory for use by tax authorities. Letters from the Federal Tax Service and other clarifications with regulatory properties

How to return (offset) an overpayment of personal income tax to an organization - a tax agent? What is the procedure for the return of tax, which is excessively withheld from the income of an individual and transferred to the budget? In what order is the overpayment for personal income tax that has arisen for other reasons returned (read off)?

Employees of the regulatory authority issued a Letter dated 06.02.2017 No. GD-4-8 / [email protected], in which they gave clarifications on the issue of offsetting (refunding) overpaid amounts of personal income tax. In this letter, officials drew attention to the fact that the procedure for the return (offset) of overpaid personal income tax depends on whether these amounts are recognized by the tax itself. Let's take a closer look at these explanations in this article.

Let us first recall that, according to paras. 1 p. 3 art. 24 of the Tax Code of the Russian Federation, tax agents are required to correctly and timely calculate, withhold from the funds paid to taxpayers, and transfer to budget system RF to the relevant accounts of the Federal Treasury taxes.

In accordance with paragraph 1 of Art. 226 of the Tax Code of the Russian Federation for the purpose of applying Ch. 23 "Income tax individuals» Tax Code of the Russian Federation Russian organizations from which or as a result of relations with which the taxpayer received the income specified in paragraph 2 of this article.
In addition, they are obliged to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Art. 224 of the Tax Code of the Russian Federation, taking into account the features provided for by Art. 226 of the Tax Code of the Russian Federation.

Also, Russian organizations that transfer amounts allowance, payroll, wages, other remuneration (other payments) to military personnel and civilian personnel (federal state civil servants and employees) of the Armed Forces of the Russian Federation (clause 7.1 of article 226 of the Tax Code of the Russian Federation).

Withheld personal income tax must be transferred to the budget within the time limits established by paragraphs 1, 2 of Art. 223, paragraph 6 of Art. 226 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of the Russian Federation of February 1, 2017 No. 03 04 06/5209, of July 25, 2016 No. 03 04 06/43463, 03 04 06/43479, of the Federal Tax Service of the Russian Federation of May 26, 2014 No. BS-4-11 / [email protected]).

Note, paragraph 9 of Art. 226 of the Tax Code of the Russian Federation establishes that the payment of tax at the expense of tax agents is not allowed. Consequently, the transfer to the budget of an amount exceeding the amount of personal income tax actually withheld from the income of individuals is not a payment of tax.

Thus, personal income tax transferred to the budget ahead of time payment of income, tax officials do not recognize tax. In this case, the obligation of the tax agent to transfer of personal income tax is not fulfilled. Accordingly, the organization - tax agent is obliged to re-pay the tax in full. Such clarifications are provided in the letters of the Ministry of Finance of the Russian Federation of September 16, 2014 No. 03 04 06/46268, the Federal Tax Service of the Russian Federation of February 6, 2017 No. GD-4-8 / [email protected], dated 29.09.2014 No. BS-4-11/ [email protected] In addition, personal income tax paid ahead of time cannot be offset against future payments, it can only be returned from the budget (Letter of the Federal Tax Service of the Russian Federation of September 29, 2014 No. BS-4-11 / [email protected]).

How to return (offset) the overpayment of personal income tax to an organization - a tax agent?

According to paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application for the offset or return of overpaid personal income tax can be filed within three years from the date of payment of the specified amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees. Note that the procedure for the organization - tax agent depends on the cause of the overpayment:

• Personal income tax was excessively withheld from the income of an individual and transferred to the budget;
• overpayment of personal income tax arose for other reasons, for example, due to an error in the payment order or transfer of tax earlier than the date payment of personal income tax to the budget (thereby it is not recognized as a tax).

Let us consider in detail the procedure for returning personal income tax in each of the above cases.

The procedure for the return of personal income tax, which is unduly withheld from the income of an individual and transferred to the budget.

A situation where an organization-tax agent has excessively withheld personal income tax from the income of an individual and transferred it to the budget may arise, for example, when providing an employee with property or social deduction not since the beginning of the year. In this case, according to paragraph 1 of Art. 231 of the Tax Code of the Russian Federation, the amount of tax excessively withheld by a tax agent from the taxpayer's income is subject to refund by the tax agent on the basis of a written application of the taxpayer. At the same time, the organization is obliged to inform the taxpayer about each fact of excessive tax withholding and the amount of excessive tax withheld within 10 days from the date of discovery of such a fact that has become known to him.

Note:

Refund of the amount of tax to the taxpayer in the absence of a tax agent (for example, in the event of liquidation of an organization) or in connection with the recalculation at the end of the tax period in accordance with the status acquired by him tax resident The Russian Federation is produced by the tax authority in which it was registered at the place of residence (place of stay), and not by the organization - tax agent (clauses 1 and 1.1 of article 231 of the Tax Code of the Russian Federation).

The return to the employee-taxpayer of the excessively withheld amount of tax is made by the organization - tax agent at the expense of the amounts of this tax to be transferred to the budget system of the Russian Federation on account of future payments both for the specified taxpayer and for other taxpayers, from whose income the tax agent withholds tax, within three months from the date of receipt by the tax agent of the corresponding application of the taxpayer. Such a refund can only be made by transferring funds to the taxpayer's bank account indicated in his application (Article 231 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of the Russian Federation of July 18, 2016 No. BS-4-11 / [email protected], the Ministry of Finance of the Russian Federation dated May 16, 2011 No. 03 04 06 / 6-112 (p. 2)).

Let us give examples of the return of excessively withheld and transferred personal income tax to the budget.

If the amount of upcoming personal income tax payments is greater than the amount that must be returned to the employee.

Example 1.

On February 20, 2017, the employee filed an application for the return of the overdeducted amount of personal income tax in the amount of 23,000 rubles. The amount of tax to be transferred to the budget from all income paid by the organization to individuals was:

– as of April 10, 2017 – 18,000 rubles.

How to set off personal income tax in this case?

As already mentioned, first you need to transfer the amount of excess personal income tax withheld to the employee’s account indicated in the refund application. Then, by the amount of the returned tax, it is necessary to reduce the amount of current payments for personal income tax, calculated from payments to all individuals who received income from the organization, until the returned amount is fully credited.

The entire amount of tax withheld excessively from the income of an employee in the amount of 23,000 rubles. transferred to his card on the day of salary payment - 03/10/2017. Part of the returned tax in the amount of 18,000 rubles. the organization will count towards the reduction of personal income tax to be transferred on 03/10/2017. Thus, the organization will not transfer personal income tax to the budget on March 10, 2017.

For the remainder of the personal income tax returned to the employee in the amount of 5,000 rubles. (24,000 - 18,000) the organization will reduce the personal income tax payable on 04/10/2017. As a result, the organization will pay a tax in the amount of 13,000 rubles to the budget. (18,000 - 5,000).

Example 2

On February 20, 2017, the employee submitted an application for the return of the overdeducted amount of personal income tax in the amount of 63,000 rubles. The amount of tax to be transferred to the budget from all income paid by the organization to individuals is equal to:

– as of March 10, 2017 – 18,000 rubles;
– as of April 10, 2017 – 18,000 rubles;
– as of May 10, 2017 – 18,000 rubles.

How to set off personal income tax in this case?

It follows from the conditions of the example that the amount of personal income tax to be returned to the employee is greater than the upcoming payments for this tax, since the excessively withheld personal income tax must be returned within three months from the date the tax agent receives the corresponding application from the taxpayer. In this case, return excessive personal income tax organization should contact its tax office. To do this, within 10 working days from the date of receipt from the employee of an application for the return of excess personal income tax, the organization must be submitted to the tax office (clause 1 of article 231 of the Tax Code of the Russian Federation, Letter of the Federal Tax Service of the Russian Federation of September 20, 2013 No. BS-4-11 / 17025):

1) an application for the return of an excessively withheld amount of tax;
2) an extract from tax register for personal income tax for the period when the tax was excessively withheld;
3) certificate 2-NDFL for this person for the period when the tax was excessively withheld. If an organization applies for return of personal income tax, excessively withheld in previous years, two certificates must be submitted: primary and corrected;
4) documents confirming the excessive transfer of tax (for example, payment order, extract).

Within a month from the date of submission of these documents, the regulatory authority must return the overpayment of personal income tax to the organization's settlement account (clause 6, article 78 of the Tax Code of the Russian Federation).

If the tax agent did not transfer the excessively withheld personal income tax to the employee on time.

So, if the refund of the excessively withheld amount of tax is carried out by the tax agent in violation of the deadline established by Art. 231 of the Tax Code of the Russian Federation (within three months from the date of receipt by the tax agent of the corresponding application of the taxpayer), the tax agent for the amount of excess tax withheld, which was not returned to the taxpayer in set time, is obliged to accrue interest, which is also payable to the taxpayer, for each calendar day of violation of the return period.

For your information:

The interest rate is taken equal to the refinancing rate of the Central Bank of the Russian Federation, which was in force on the days of violation of the repayment period.

If the amount of personal income tax that needs to be transferred to the budget is less than the amount that needs to be returned to the employee.

If the amount of tax to be transferred by the tax agent to the budget system of the Russian Federation is not enough to return to the taxpayer the amount of tax excessively withheld and transferred to the budget system of the Russian Federation within the period established by Art. 231 of the Tax Code of the Russian Federation, the tax agent, within 10 days from the date of submission by the taxpayer of the corresponding application to him, sends to the tax authority at the place of his registration an application for the return to the tax agent of the amount of tax excessively withheld by him.

In addition to the application, the tax agent organization must submit to the tax authority an extract from the register tax accounting for the relevant tax period and documents confirming the excessive withholding and transfer of the amount of tax to the budget system of the Russian Federation.

Further, the return to the tax agent of the amount of tax transferred to the budget system of the Russian Federation is carried out by the tax authority in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation (we will consider the return under this article in detail later).

Note:

Prior to the return from the budgetary system of the Russian Federation to the tax agent of the amount of tax excessively withheld from the income of the taxpayer and transferred to the budgetary system of the Russian Federation, the tax agent has the right to make such a refund at his own expense.

The procedure for the return of personal income tax overpayments that arose for other reasons.

According to paragraphs 1 and 2 of Art. 78 of the Tax Code of the Russian Federation offset the amounts of overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for accrued penalties. The offset or refund of the amount of overpaid tax is carried out by the tax authority at the place of registration of the taxpayer.

Paragraph 5 of Art. 78 of the Tax Code of the Russian Federation provides that the offset of the amount of overpaid personal income tax against the payment of arrears on other taxes, arrears in penalties and (or) fines payable or recoverable in cases provided for by the Tax Code of the Russian Federation is made tax authorities on one's own.

By virtue of paragraph 14 of Art. 78 of the Tax Code of the Russian Federation, the rules established by this article apply to tax agents, payers of fees and a responsible member of a consolidated group of taxpayers.

Employees of the tax department, as already mentioned, believe that the transfer to the budget of an amount exceeding the amount of personal income tax actually withheld from the income of individuals is not a payment of tax. This amount is considered by them as funds erroneously transferred to the budget. In this regard, the controllers can return the tax to the tax agent in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation, provided that such a tax agent should not have debts for other federal taxes. In this case, the tax agent has the right to apply to the tax authority with an application for the return to the current account of the amount that is not personal income tax and erroneously transferred to the budget system of the Russian Federation. Note that the fact of the erroneous transfer of amounts according to the details of the payment of personal income tax, as well as the fact of excessive withholding and transfer of tax, is confirmed on the basis of an extract from the tax accounting register for the corresponding tax period and payment documents in accordance with par. 8 p. 1 art. 231 of the Tax Code of the Russian Federation.

The procedure for offsetting personal income tax overpayments that arose for other reasons.

As for the offset of the overpaid amount of personal income tax against future payments on this tax, employees of the regulatory authority noted that, in accordance with paragraph 9 of Art. 226 of the Tax Code of the Russian Federation, payment of tax at the expense of tax agents is not allowed. Consequently, the transfer to the budget of an amount exceeding the amount of personal income tax actually withheld from the income of individuals is not a payment of tax.

Accordingly, as the employees of the tax inspectorate pointed out, erroneously listed according to the payment details personal income tax amount can be set off against repayment of debts on taxes of the corresponding type, as well as against future payments on other taxes of the corresponding type. Other taxes are federal taxes except for VAT.

Such clarifications are provided in the Letter of the Federal Tax Service of the Russian Federation dated February 6, 2017 No. GD-4-8 / [email protected]

From the editor:

With the full text of the Letter of the Federal Tax Service of the Russian Federation No. GD-4-8 / [email protected] You can find it in the journal “Payment in a state (municipal) institution: acts and comments for an accountant” (No. 4, 2017).

It should be noted that before this letter, the tax authorities only indicated the possibility of returning to the tax agent the amount that is not personal income tax and erroneously transferred to the budget system of the Russian Federation.

In the new letter, the regulatory authority already allows for a set-off, in particular, against future payments for other taxes of the corresponding type. Thus, organizations that have transferred the amount that is not a tax withheld from personal income by the details of personal income tax can be set off this the amount against future payments on other taxes of the relevant type. To do this, you must submit an appropriate application to the inspection.

For your information:

The offset (refund) of excessively or erroneously paid amounts of personal income tax for the period up to 01/01/2016 is carried out in the manner described above. This is also stated in the Letter of the Federal Tax Service of the Russian Federation dated February 6, 2017 No. GD-4-8 / [email protected]

In conclusion, we state the following:

1) for the return of an unduly withheld from the income of an individual personal income tax organization- the tax agent is obliged to inform the employee in writing about excessive retention tax. This must be done within 10 working days from the day the error was discovered. Next, you need to receive from the employee an application for the return of the excessively withheld amount of personal income tax, indicating the details bank account to transfer money. Return personal income tax in cash in cash it is forbidden. The employee must submit such an application before the expiration of a three-year period from the date of payment of the excess withheld tax to the budget;

2) if the amount of personal income tax to be returned to the employee is greater than the upcoming payments for this tax (excessively withheld personal income tax must be returned within three months from the date the tax agent received the corresponding application from the taxpayer), the organization must apply to the tax office with the appropriate application and supporting documents (for example, with payment order, statement). After that, in accordance with paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, within a month from the date of submission of such documents, the regulatory authority must return the overpayment of personal income tax to the organization's settlement account;

3) if the organization mistakenly transferred, according to the details of the payment of personal income tax, an amount that is not a tax withheld from the income of individuals, it can be set off against future payments for other taxes of the corresponding type or returned in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation.

M.N. Volkova, expert of the journal

"Payment in a state (municipal) institution", April, 2017

Federal Tax Service of Russia
Letter
dated 23.09.11 No. ED-4−3/ [email protected]
"On clarifications of the Federal Tax Service of Russia"

Taking into account the requirements of subparagraph 5 of paragraph 1 of Article 32 of the Tax Code, which prescribes to be guided by written explanations of the Ministry of Finance of the Russian Federation on the application of the legislation of the Russian Federation on taxes and fees, explanatory letters of the Federal Tax Service of Russia agreed with the Ministry of Finance of Russia, or containing a legal position similar to that set out in the written explanations issued by the Ministry of Finance of Russia in accordance with paragraph 1 of Article 34.2 of the Tax Code to tax authorities, taxpayers, payers of fees and tax agents on the application of the legislation of the Russian Federation on taxes and fees.

The Federal Tax Service of Russia draws attention to the need for strict application by the tax authorities in the exercise of their powers of the provisions of the letters of the Federal Tax Service of Russia posted in the specified section of the website of the Federal Tax Service of Russia, and informs that in relation to the legal position set out in these letters, the provisions of paragraphs 9, 10 of the letter of the Federal Tax Service of Russia dated 09/14/2007 N ШС-6−18/716 do not apply.

If the application of the clarifications of the Federal Tax Service of Russia led to the cancellation judiciary adopted tax decisions based on the results tax audits, departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation and interregional inspections of the Federal Tax Service of Russia for the largest taxpayers inform the Taxation Department of the Federal Tax Service of Russia about these facts in order to adjust the performance indicators of the tax authority.

Tax authorities in the performance of the state function of free information (including writing) taxpayers, payers of fees and tax agents about applicable taxes and fees, the legislation on taxes and fees and the normative legal acts, the procedure for calculating and paying taxes and fees, the rights and obligations of taxpayers, payers of fees and tax agents, the powers of tax authorities and their officials, as well as the submission of forms of tax declarations (calculations) and an explanation of the procedure for filling them out, are also guided by the legal position set forth in the relevant clarifications of the Federal Tax Service of Russia.

If the Federal Tax Service of Russia cancels the relevant clarification, in relation to taxpayers, payers of fees and tax agents who were guided by this clarification during the period of its validity in the performance of duties stipulated by the legislation on taxes and fees, by virtue of the provisions of paragraph 8 of Article 77, subparagraph 3 of paragraph 1 of Article 111 of the Tax Code, penalties are not charged on the amount of the resulting arrears and no liability measures are applied for the commission of tax offenses (these circumstances are established if there is an explanation, in terms of the meaning and content relating to the tax (reporting) periods for which the arrears were formed, as well as to tax periods in committed tax offense, regardless of the date of publication of the clarification).

The departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation are instructed to bring this letter to the attention of lower tax authorities and ensure its application.

The Supreme Arbitration Court of the Russian Federation has adopted a decision that will make it much easier for firms to avoid tax liability if in their work they were guided by the explanations of officials.

Maria Kuzmina,
financial law expert

If the company in its activities relied on the clarifications tax legislation that were given authorized body power (or its official) to her personally or to an indefinite circle of persons, she is exempted from liability. For example, if as a result the tax amount was calculated incorrectly.
The Supreme Arbitration Court of the Russian Federation: letters from the Ministry of Finance - official clarifications Judicial practice on the application of clarifications from the Ministry of Finance of Russia as a kind of indulgence is rather contradictory. But recently there was a decision of the Supreme Arbitration Court of the Russian Federation No. 4350/10, thanks to which it will become easier for companies in such cases to “shift responsibility” onto officials of the financial department. The judges, considering the dispute on the additional charge of taxes, penalties and fines to the company, took into account that when forming tax base according to the UST, it was guided by letters from the Russian Ministry of Finance. These letters were sent in response to inquiries received by the department from organizations and published in various media and legal reference systems. The Supreme Arbitration Court of the Russian Federation recognized this fact as a circumstance excluding the company's guilt in the incorrect calculation of tax.
Prior to this, the Supreme Arbitration Court of the Russian Federation had already expressed a similar opinion. In the decision, which was adopted in 2009, the judges indicated: since, when calculating the tax, the company was guided by the explanations of the Ministry of Finance of Russia, which were published in the commonly used information system"Code", she is released from liability. But unlike Decree No. 4350/10, the 2009 judgment did not indicate that “the interpretation of legal norms contained therein is generally binding and is subject to application when considering similar cases by arbitration courts.” This means that now there is every reason to believe that the outcome of litigation on the application of officials' explanations will become more predictable. But keep in mind: in this decision we are talking only about the letters of the Ministry of Finance of Russia, about the explanations of the tax authorities, nothing is said there. By the way, Decree No. 4350/10 is also interesting because it contains an important conclusion for companies. About what financial assistance can be taken into account in expenses when calculating income tax, and which - no. But we will tell you more about this in the next issue of AB.

Explain or inform?

The duty to clarify the provisions of tax legislation is assigned to the Ministry of Finance of Russia, and the task of the Federal Tax Service of Russia is to inform citizens and organizations on general issues of applying tax legislation and to provide clarifications on filling out tax reporting. These clarifications may be individual or directed to an indefinite circle of persons.
And here the greatest number of disputes arises over what is an explanation for an indefinite circle of people. Can the letters of officials that are published and are in the public domain (in the media, legal reference systems, etc.) be attributed to them? The Ministry of Finance of Russia believes that no. These letters are for informational and explanatory purposes only and should be read in conjunction with other publications by tax professionals. The answers they contain are prepared at the request of specific applicants and are addressed to them, therefore, other companies can extend the opinions and conclusions expressed in these letters to other cases only under their own responsibility. In other words, according to the financial department, such letters do not apply to written explanations for an indefinite circle of persons. This means that they will not protect the company from tax liability in the form of penalties and fines. The letters of the Ministry of Finance of Russia for the tax authorities have a completely different status. Employees of the tax authorities in their work are required to take into account the opinion of the Ministry of Finance of Russia. It's straight set tax code. Therefore, during inspections, tax authorities should be guided by written explanations that express the position of the financial department on specific or general issues contained in individual or collective appeals of citizens and organizations. Moreover, we are not talking about all the letters of the financial department, but only about those that are specifically addressed to the Federal Tax Service of Russia.

Explanations of the Federal Tax Service and the Ministry of Finance - what is the difference?

From document

<...>The Ministry of Finance of the Russian Federation, being, in accordance with paragraph 1 of Article 34.2 of the Code, the body authorized to give written explanations to taxpayers on the application of the legislation of the Russian Federation on taxes and fees<...>gave an appropriate explanation (letter dated 18.08.2006 No. 03-03-04/1/637), which, when considering the case in court, the company referred to in support of its position.<...>

Compared to the Ministry of Finance of Russia, the tax department has less powers - it is not given the right to explain the rules of tax legislation, if we are not talking about the procedure for filling out reports. But there is arbitrage practice, which confirms that in some cases, the explanations of the tax authorities can exempt the company from unnecessary additional charges in the form of penalties and fines. For example, if the company made a mistake because it was guided by written explanations from the tax authorities on the procedure for applying VAT benefits, which were issued to the company in response to its request. Or the entrepreneur unlawfully applied the UTII tax special regime based on a report from the inspection that he is a UTII payer. Please note that these positive judgments refer to individual written consultations. As for the letters of the Federal Tax Service of Russia, which are posted in legal reference systems, the Internet, etc., there is a high risk that the court decision will not be in favor of the company. An example is judgment. When calculating the transport tax, the company was guided by a letter from the Federal Tax Service of Russia, which is in the public domain. The court concluded that it was not an explanation addressed to an indefinite circle of persons. In addition, because transport tax- regional, then only the territorial tax authority in which the company is registered should give explanations about its calculation. Also keep in mind: the Ministry of Finance of Russia recently expressed the opinion that the explanations of officials of the tax authorities, published as a result of seminars, conferences, etc., are not always official. For example, if employees of the Federal Tax Service of Russia participate in seminars that are not held at the initiative of the tax authorities and are not organized by them, then lecturers at such events act as independent experts, and do not represent tax service. Their explanations at such a seminar are not explanations of authorized officials of the tax authorities, given within their competence. That is, the company can follow them only at its own peril and risk.

If opinions are divided

What to do in a situation where officials have two different opinions on the same issue? Which one to follow?
This issue is also controversial. Some courts believe that the most recent of them should be guided. For example, in one such decision, the judges did not support the company due to the fact that the case concerned additional accruals for income tax for 2005, and the company, when calculating the tax base, was guided by a letter from the Ministry of Finance of Russia of 2002, despite the fact that in 2005 the financial department issued a letter expressing a different opinion on the matter. In addition, the judges considered the old letter from the financiers not an explanation, but an answer to a private question.
But there is another opinion: the firm can be guided by any of the letters of the Ministry of Finance of Russia, since the Tax Code establishes that all doubts should be interpreted in its favor. True, in the court case, which contains these conclusions favorable for companies, both letters of the Russian Ministry of Finance with opposing opinions related to income tax (i.e., the tax period is a year) and were issued in the same year with a difference of about 3 months.

Natalia Ageshkina,
legal expert

The publication date of the document does not matter.

Fulfillment by the company of written explanations on the application of legislation on taxes and fees, which are given to it or to an indefinite circle of persons by the body state power within its competence, is one of the circumstances excluding the company's guilt in committing a tax offense. These circumstances are established if there is an appropriate document of this body, which, in meaning and content, relates to the tax periods in which the tax offense was committed, regardless of the date of publication of such a document . This position is confirmed by the position of the Supreme Arbitration Court RF (clause 35 of the post. Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5), which determined that the company has the right to regard a written explanation given by the head of the tax authority or his deputy as an explanation of a competent official. Such clarifications also include written clarifications from the heads of federal ministries, departments, other authorized officials (for example, the Ministry of Finance of Russia, its structural divisions- departments in the main areas of activity of the Ministry of Finance of Russia, the Minister of Finance of the Russian Federation, his deputies, the director of the Department of Tax and Customs Tariff Policy and his deputies). Particular attention should be paid to the fact that in this case it does not matter whether the clarification is addressed directly to the company - party to the dispute or to an indefinite circle of persons. Explanations given to an indefinite circle of persons will be considered as such if they do not contain indications of a certain person or persons to whom these explanations are addressed. In the case of managing explanations on the application of tax laws, companies should take into account that these explanations must be based on complete and reliable information, taking into account current changes in legislation. And if on the same issue there are clarifications with opposing points of view, it is better to use the latest of them.

With the entry into force of the Law of June 29, 2004 N 58-FZ, the procedure for conducting explanatory work has been changed. Taxpayers have the right to receive information from the tax authorities (including in writing):

on applicable taxes and fees;

on legislation on taxes and fees and on normative legal acts adopted in accordance with it;

on the procedure for calculating and paying taxes and fees;

on the rights and obligations of taxpayers, the powers of tax authorities and their officials;

on the procedure for filling out the forms of documents submitted to the tax authorities.

Informing - bringing to the attention of the taxpayer (reproducing) the information contained in the legislation on taxes and fees and normative legal acts adopted in accordance with it.

In this way, when evaluating legal nature regulations in the field of taxes and fees should be guided by the principle of "substance over form", which in this case means that non-formal features (name, required details, state registration, official publication, etc.), and the semantic content of the act should be taken as the basis for establishing its normative or non-normative nature.

This conclusion is confirmed by the Ministry of Finance and the Federal Tax Service - Letters of the Ministry of Finance of the Russian Federation dated November 7, 2013 No. 03-01-13 / 01 / 47571 and the Federal Tax Service of Russia dated November 26, 2013 No. GD-4-3 / 21097 "On the formation of a unified law enforcement practice" clarified that in the case when the written explanations of the Ministry of Finance of Russia (recommendations, clarifications of the Federal Tax Service of Russia) on the application of the legislation of the Russian Federation on taxes and fees are not consistent with the decisions, resolutions, information letters of the Supreme Arbitration Court of the Russian Federation, as well as decisions, resolutions, letters of the Supreme Court RF, tax authorities, starting from the date of placement in full of these acts and letters of courts on their official websites on the Internet or from the day of their official publication in the prescribed manner, when exercising their powers, they are guided by the indicated acts and letters of the courts.

Clarifications of the Federal Tax Service, mandatory for use by tax authorities

By his Letter dated September 23, 2011 N ED-4-3 / [email protected] The Federal Tax Service informed about the placement of the "" section on the website of the Federal Tax Service of Russia www.nalog.ru (the formation and rules for its organization are regulated by Order of the Federal Tax Service of November 14, 2012 N ММВ-7-3 / [email protected]), containing information letters of the Federal Tax Service of Russia on the procedure for filling out tax returns, calculating and paying taxes and fees, the rights and obligations of taxpayers, payers of fees and, the powers of tax authorities and their officials, addressed to tax authorities, as well as taxpayers, payers of fees and tax authorities in accordance with subparagraph 4 of paragraph 1 of Article 32 of the Tax Code.

According to this clarification, explanatory letters of the Federal Tax Service of Russia, agreed with the Ministry of Finance of Russia, or containing a legal position similar to those set out in those issued by the Ministry of Finance of Russia, addressed to tax authorities, taxpayers, payers of fees and tax agents on issues of application of the legislation of the Russian Federation on taxes and fees.

The electronic service "Explanations of the Federal Tax Service of Russia, mandatory for use by tax authorities", posted on the website www.nalog.ru, is updated regularly. How can a taxpayer track whether the agreed opinion of the Ministry of Finance of Russia and the Service has changed on an issue of interest to him?

Deductions without a base

(letter of the Federal Tax Service of Russia dated 07.12.2012 No. ED-4-3/ [email protected], which brought clarifications from the Ministry of Finance of Russia dated November 19, 2012 No. 03-07-15 / 148)

The Russian Ministry of Finance explains that the absence of a tax base in a tax period cannot be grounds for refusing to accept VAT for deduction. The opinion of the financial department was formed on the basis of the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.05.2006 No. 14996/05.

In it, the court concluded that the absence of a tax base for VAT in the relevant tax period should not be a reason for refusing to accept the tax for deduction.

The Ministry of Finance of Russia draws attention to the fact that the tax authorities should not refuse taxpayers to apply tax deductions if there is evidence of their good faith in the absence of a VAT tax base, as well as to taxpayers who were guided by his explanations on the application of tax deductions in tax periods in which the tax base arises. Corporate income tax.

Application of reduced tax rates in the annexed territories

(letter of the Federal Tax Service of Russia dated December 25, 2012 No. ED-4-3/ [email protected])

Corporate income tax payable to the revenue side of the budgets of constituent entities of the Russian Federation is calculated at the tax rates in force in the territories where the organization and its separate subdivisions are located. Taxpayers who themselves and (or) their separate subdivisions are located in the territories annexed to Moscow since 01.07.2012, are entitled to apply reduced tax rates when determining the amount of advance payments of income tax for the half year (6 months) of 2012, provided that the conditions are met, statutory Moscow region.

If these taxpayers meet the conditions for the application of reduced tax rates for income tax established by the laws of Moscow, then from 01.07.2012 they calculate advance payments and tax at these reduced rates from the tax base determined as the difference between the tax base formed for the following six months (6 months) reporting and tax periods, and the tax base for the half year (6 months) of 2012. If these conditions are not met, advance payments and tax are subject to calculation in full. tax rate from the same tax base.

In 2012, 11 consolidated taxpayer groups (hereinafter referred to as CGTs) were created and operated in the Russian Federation, and since 2013 4 new groups have joined them. In addition, the composition of the old groups has been updated, and other changes have taken place. Currently, the number of organizations united in the CGTs is 313.