7 article 78 of the tax code of the Russian Federation. Tenth Arbitration Court of Appeal

OVERVIEW

practice of the Tenth Arbitration Court of Appeal

on the issue "The practice of applying Article 78 of the Tax Code of the Russian Federation"

Inaccurate code indication budget classification does not prevent the inspectorate from offsetting previously paid tax amounts.

In case No. A41-38516 / 09, the IP applied to the court to declare illegal the decision of the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region in terms of accruing arrears on the simplified tax system, fines for incomplete tax payment on the simplified tax system, penalties on the simplified tax system.

The amounts paid by the taxpayer were not accepted by the tax authority as payment, since they were paid as a single tax applied in connection with the application of the simplified taxation system (15% of the difference between income and expenses), and the audit found that the taxpayer had to pay single minimum tax(1% of the received revenue).

However, the inspectorate did not properly take into account that the amount of tax was actually paid by the entrepreneur. At the same time, the taxpayer allowed an inaccurate indication of the budget classification code.

This circumstance does not prevent the inspectorate from offsetting previously paid tax amounts when applying the simplified taxation system, since the offset in this case, taking into account the provisions of paragraph 5 of Art. 78 of the Tax Code of the Russian Federation, must be carried out by the inspection independently.

The Court of Appeal drew particular attention to the following.

The basis for the additional assessment of the disputed tax amount was that the taxpayer addressed tax authority a declaration was submitted on an outdated form, in connection with which the declaration was returned to the taxpayer. Subsequently, the postal item was returned to the inspection, due to non-receipt of it by the taxpayer. At the same time, the obligation to set off the previously paid amounts was not fulfilled by the tax inspectorate.

The obligation to return (offset) the amount of overpaid tax arises if circumstances are established that indicate that the taxpayer has no obligation to pay tax.

In case N A41-3669 / 09, the Company applied to the court to recognize as illegal the inaction of the tax authority, expressed in the failure to make a decision on the offset of the property tax of the organization overpaid by the applicant, the obligation of the Interdistrict Inspectorate of the Federal Tax Service of Russia for the Moscow Region to make a decision on the offset of the overpaid corporate property tax in the amount of future tax payments.

The audit organization that carried out the audit of the taxpayer expressed an opinion about the unlawful use by the Company of the specified special tax regime. The taxpayer has recalculated tax liabilities and submitted to the tax authority at the location of its location tax declarations on corporate property tax.

Along with this, the taxpayer, having independently established the illegality of this conclusion, guided by paragraph 2 of Art. 80 of the Tax Code of the Russian Federation, in accordance with which declarations (calculations) are not subject to submission to the tax authorities for those taxes for which taxpayers are exempted from the obligation to pay them, in connection with the application of special tax regimes, submitted a letter to the tax authority on the withdrawal of previously filed tax returns on the property tax of organizations, as well as an application for the return of the excess of the paid tax on the property of organizations on the basis of Art. 78 of the Tax Code of the Russian Federation.

By virtue of paragraph 6 of Article 78 of the Tax Code of the Russian Federation, a decision on the refund of the amount of overpaid tax must be made by the tax authority within 10 days from the date of receipt of the taxpayer's application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him if such a joint reconciliation has taken place.

The argument of the Inspectorate that the applicant did not file amended tax returns for corporate property tax, therefore, according to the data of the tax authority, he did not overpay this tax, is not based on the law. By virtue of paragraph 2 of Article 80 of the Tax Code, tax declarations (calculations) for those taxes for which taxpayers are exempted from the obligation to pay them due to the application of special tax regimes are not subject to submission to the tax authorities. Consequently, the applicant should not have submitted to the Inspectorate tax declarations on corporate property tax and other taxes, from payment of which the applicant was exempted in connection with the application of the special tax regime.

The applicant also had no obligation to submit amended corporate property tax returns, since the above provisions of paragraph 2 of Article 80 of the Tax Code exempt the taxpayer from submitting tax returns.

Sending a letter to the Inspectorate about the revocation of tax returns on property tax of organizations is a way that does not contradict the law to correct an error made when filing tax returns by a person using a special tax regime and exempted from filing such declarations.

Since the applicant did not have the obligation to pay corporate property tax and the erroneous submission of tax returns for this tax did not lead to an underestimation of the amounts of taxes payable to the budget, the applicant, and by virtue of this rule, did not have the obligation to submit revised tax returns for this tax.

Missing the deadline for applying to the tax authority with an application for the refund of the overpayment amount does not deprive the applicant of the right to apply to the court for the protection of violated rights within the general period limitation period.

In case N A41-27148 / 09, the taxpayer applied to the court to invalidate the decision of the Inspectorate of the Federal Tax Service of Russia to refuse to offset (refund) the tax, to oblige the tax authority to offset the overpaid tax on and accrue interest for late return Money.

According to the act of reconciliation of the taxpayer's calculations on taxes, fees and contributions as of February 15, 2007, the company became aware of the existing overpayment of taxes.

The presence of overpayment by the tax authority was not disputed and confirmed by subsequent acts of reconciliation of calculations. The taxpayer applied to the inspectorate with a statement about offsetting the overpayment.

The inspectorate refused the company to carry out the offset due to the missed three-year period from the date of payment. The refusal of the inspection to set off the amount of the overpayment is based on paragraph 7 of Art. 78 of the Tax Code of the Russian Federation (missing the deadline for applying to the tax authority with an application for the return of the overpayment amount). At the same time, the refusal of the tax authority does not deprive the applicant of the right to apply to the court for the protection of violated rights within the general limitation period established by Art. 196 of the Civil Code of the Russian Federation, which is confirmed by the Decision of the Constitutional Court of the Russian Federation of June 21, 2001 N 173-O and the Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 N 5, the Presidium of the Supreme Arbitration Court of the Russian Federation of November 8, 2006 N 6219/06, the Plenum of the Supreme Arbitration Court of the Russian Federation of December 18, 2007 N 65.

In particular, in the Ruling of the Constitutional Court of the Russian Federation dated June 21, 2001 N 173-O we are talking that from the content of the provisions of Art. 78 of the Tax Code of the Russian Federation in their interconnection it follows that the contested norm (clause 7 of article 78 of the Tax Code of the Russian Federation) is not aimed at infringing the rights of a taxpayer who made a mistake in calculating the amount of a tax payment for any reason, including due to ignorance of the tax law or conscientious error, but, on the contrary, allows him, within three years from the date of payment of the tax, to present reasonable and therefore subject to unconditional satisfaction claims to the tax authority, without resorting to judicial protection of his legitimate interests. At the same time, this norm does not prevent a citizen, if the specified period is missed, to apply to the court for the return of the overpaid amount from the budget in civil or arbitration proceedings, and in this case, general rules the calculation of the limitation period - from the day when the person found out or should have found out about the violation of his right (clause 1, article 200 of the Civil Code of the Russian Federation).

This principle, due to its universality, should be applied not only to citizens, but also to taxpayer organizations. Therefore, in this situation, the limitation period is to be calculated from the moment when entity found out about the overpayment.

According to paragraph 10 of Art. 78 of the Tax Code of the Russian Federation in the event that the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of the said article, the tax authority for the amount of overpaid tax that is not returned in set time, interest is charged, payable to the taxpayer, for each calendar day of violation of the return period.

As stated in the Ruling of the Constitutional Court of the Russian Federation of February 8, 2007 N 381-O-P, if the taxpayer overpays a certain amount of tax in the current tax period, all constitutional guarantees of property rights apply to this amount, since its payment in this case was made in the absence of a legal then the grounds. In connection with this, the Tax Code of the Russian Federation establishes the right of a taxpayer to a timely refund of an overpaid amount of tax or its offset against future payments on this or other taxes, except in cases where the taxpayer has a tax arrears or other debts to the budget. In such situations, the tax authority independently directs the amount of overpaid tax to pay off arrears and other debts in order to ensure the constitutional obligation of the taxpayer to pay the legally established, but not paid tax on time.

Therefore, the accrual of interest on untimely offset of the tax in this case is legitimate.

The offset or refund of the amount of overpaid tax can be carried out only if there are circumstances confirming the actual payment of the tax by the applicant.

In case N A41-15427 / 08, the Company applied to the court to recognize as unlawful the refusal of the Interdistrict Inspectorate of the Federal Tax Service of Russia to set off and oblige the tax authority to set off the overpaid land tax.

On 16.06.2004, by means of a payment order, the taxpayer paid the land tax to the budget through JSCB Promeximbank.

Having discovered that there was no obligation to pay land tax in the amount paid, the taxpayer applied to the tax authority with applications for offsetting the specified amount against future payments.

According to the taxpayer, the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 17 for the Moscow Region decided to refuse the offset (refund).

The Interdistrict Inspectorate of the Federal Tax Service of Russia N 17 for the Moscow Region submitted to the case materials a letter from the Interdistrict Inspectorate of the Federal Tax Service of Russia N 50 for Moscow stating that in the list of organizations whose funds were debited from the settlement account, but not transferred to the corresponding budget accounts in Due to the lack of funds on the correspondent account of JSCB Promsvyazbank, there is no taxpayer. When analyzing the register of outstanding payments, information about the taxpayer was not established.

This circumstance indicates the presence of signs of dishonesty of the taxpayer, expressed in the fact that the taxpayer did not take proper measures to fulfill the obligation to pay taxes and fees.

No payment order was received by the tax authority through CJSC JSCB "Promeximbank", funds were not reflected in the accounting accounts.

In addition, at the request of the Inspectorate for specific payment orders, the Moscow Main Territorial Department of the Central Bank of the Russian Federation reported that the movement of funds on the specified settlement documents on the taxpayer's account through the correspondent account of Promeximbank was not carried out.

In accordance with paragraph 7 of Article 78 of the Tax Code of the Russian Federation, an application for offset or refund of the amount of overpaid tax may be filed within three years from the date of payment of the said amount.

For each fact of obtaining information on amounts not transferred by the bank, the tax authority conducts a full range of control measures provided for guidelines on organizing the work of tax authorities to carry out control measures aimed at identifying and suppressing violations related to the execution by banks (branches) of settlement documents for the transfer of obligatory customer payments to the budget system of the Russian Federation, and methodological recommendations for organizing the work of tax authorities to identify and systematize signs bad faith of taxpayers when they make tax payments through insolvent banks.

The Court of Appeal took into account that bank statements confirming the existence of sufficient cash balance on the applicant's current account for the payment of taxes specified in payment order, are not certified by the bank, outstanding payments are not confirmed by the tax authority that conducted the audit of the bank in 2004.

Thus, evidence that at the time of payment of the amount claimed by the Company, the latter had sufficient funds in its account, was not presented to the court.

The presentation by the tax authority of counterclaims against the taxpayer does not prevent the return of overpaid tax. The tax authority is obliged to independently offset the amounts of tax overpayments in the presence of these facts.

In case N A41-11792/09, the taxpayer applied to the Arbitration Court of the Moscow Region with an application to invalidate the non-normative act issued by the Interdistrict Inspectorate of the Federal Tax Service and to oblige the tax authority to refund the overpaid income tax.

As follows from the materials of the case, the inspectorate received an application from the taxpayer for the return of the overpayment of income tax to the regional budget resulting from advance payments.

However, the company received a letter from the inspectorate, in which the tax authority informed the taxpayer about the presence of VAT debt (the amount of debt and the period of its formation were not indicated in the letter), in connection with which, with reference to Art. 78 of the Tax Code of the Russian Federation, actually announced the need to pay off this debt, suggesting that they contact the inspection to reconcile the calculations.

The taxpayer regarded this letter as a refusal to return the amount of the tax overpayment and went to court.

According to the explanations set out in paragraph 1 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 18, 2007 N 65, a taxpayer, applying to the court for the protection of his right, has the right to present as a claim not property nature- on challenging the decision (inaction) of the tax authority, and the claim of a property nature - on the reimbursement of the amount of VAT.

If the taxpayer simultaneously filed both claims with the court and, at the request of a non-property nature, the deadline established by Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation was missed, or the restoration of the missed deadline was refused, the court is obliged to consider the claim of a property nature on the merits, since in relation to paragraph 3 of the article 79 of the Tax Code of the Russian Federation, such a claim may be brought to court within three years from the date when the taxpayer learned or should have known about the violation of his right to VAT refund.

Despite the fact that the said Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation concerns VAT refunds, Court of Appeal sees no obstacles to the application of the separate explanations set forth in it, which are to a certain extent universal, and in relation to overpaid (refundable) income tax.

According to the bilateral act of reconciliation of calculations, as of 01.01.2009, the company had an overpayment of income tax to the regional budget, covering the declared debt. That is, at the time of the taxpayer's application to the tax authority, the latter knew (should have known) that there was an overpayment of income tax.

However, in violation of Art. 78 of the Tax Code of the Russian Federation, the tax authority did not issue a decision on the offset (refund) of tax amounts, or a decision on the refusal to offset (refund) the tax within the prescribed period. The tax authority was not deprived of the opportunity to independently offset the arrears against the overpayment, and timely refund the tax, in accordance with paragraphs 5, 6 of Article 78 of the Tax Code of the Russian Federation.

When calculating the limitation period for claims for the return of overpaid taxes, the fact that the taxpayer submitted revised declarations is subject as a fundamental circumstance.

In case No. А41-42518/09, the taxpayer applied to the Arbitration Court of the Moscow Region with an application for the obligation of the Interdistrict IFTS of Russia to return the overpaid income tax.

The taxpayer filed amended declarations, because when submitting primary tax declarations, the company did not take into account the costs associated with the acquisition and implementation software, non-exclusive rights to it (licenses) under the company's agreements.

According to the results of field trips tax audits Interregional IFTS of Russia for the largest taxpayers N 7 decisions were made in respect of the company on the additional charge of the amount of tax, penalties and fines for tax offenses. Additional taxes, fines and penalties were assessed and a demand was made for their payment.

During 2006-2008, the company challenged the judicial order specified non-normative legal acts Interregional IFTS of Russia for the largest taxpayers N 7.

By decisions of the Moscow Arbitration Court in case N A40-28715 / 06-142-211 and in case N A40-3666 / 08-129-15, non-normative legal acts of the Interregional IFTS of Russia for the largest taxpayers N 7 were declared invalid.

In the decision of the Supreme Arbitration Court Russian Federation dated February 25, 2009 N 12882/08 states that the issue of determining the moment when the taxpayer learned or should have known about the excessive payment of tax should be resolved taking into account the assessment of the totality of all circumstances relevant to the case, in particular, to establish the reason for which the taxpayer allowed overpayment of tax; the possibility for him to correctly calculate the tax according to the initial tax return, changes in the current legislation during the period under consideration tax period, as well as other circumstances that may be recognized by the court as sufficient for recognizing that the deadline for tax refund has not been missed.

The limitation period begins from the moment when the company found out about the presence of an overpayment on income tax credited to local budget, in the specified amount, in this case, from the moment the reconciliation report was drawn up.

Thus, before the filing of revised tax returns and the recognition by the tax authority of the adjustments indicated in them as lawful, before the resolution of the above litigation and payment of the additionally assessed amounts of tax and penalty, the company could not reliably know about the presence of an overpayment in the indicated amount.

In accordance with paragraph 5 of Art. 78 of the Tax Code of the Russian Federation, the taxpayer has the right to submit to the tax authority a written application for offsetting the amount of overpaid tax against arrears (debt on penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax against the arrears and debts on penalties, fines shall be made within 10 days from the date of receipt of the said application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.

Violation of the internal offset procedure does not affect the applicant's ability to exercise his right to offset the amounts of overpaid tax in various tax inspectorates.

In case N A41-22353/09, the Company applied to the court with an application to the Federal Tax Service of Russia for the city of Noginsk to invalidate the claim for tax payment.

As established by the courts, the parent organization of the applicant is registered with the Federal Tax Service of Russia N 43 for Moscow and the Federal Tax Service of Russia for the city of Noginsk, Moscow Region at the location of the branch.

At the time the disputed claim was made, the applicant had an overpayment of income tax on the head enterprise, covering the amount of the arrears on the branch.

Article 78 of the Tax Code of the Russian Federation provides for the possibility of offsetting by type of tax, and not by budget levels.

After examining and evaluating the evidence presented in the case file, the court concluded that after the applicant applied to the Federal Tax Service of Russia N 43 for Moscow, if there was an overpayment, she was obliged to report the relevant fact to the Federal Tax Service of Russia for the city of Noginsk, Moscow Region, in while the latter was obliged to make a decision on the set-off.

Thus, the IFTS of Russia for the city of Noginsk, Moscow Region, had no grounds for issuing a controversial claim to the applicant.

Satisfying the stated requirements, the court referred to the provisions of Art. 30 of the Tax Code of the Russian Federation and indicated that since the tax authorities of the Russian Federation constitute a single centralized system control over compliance with the legislation on taxes and fees, the failure of one body to fulfill the duties assigned to it cannot be a basis for exemption from the performance of the corresponding obligation by another tax body.

References in the appeal to the absence of a "notice of inter-regional set-off" cannot be accepted by the court as grounds for recognizing the disputed claim as legitimate, since the internal procedure for conducting the set-off does not affect the applicant's ability to exercise his right under Art. 78 of the Tax Code of the Russian Federation.

When a taxpayer transfers from tax accounting to another tax inspectorate (or upon approval of succession), the return of the overpaid is carried out by the tax authority at the last place of tax registration of the taxpayer (successor).

In case N A41-38705 / 09, the company applied to the court with a statement to the Interdistrict Inspectorate of the Federal tax service Russia on the recognition of illegal inaction, expressed in non-return to statutory term of overpaid tax, the obligation to return the overpaid tax to the company's settlement account.

The offset or refund of the amount of overpaid tax is made by the tax authority at the place of registration of the taxpayer, unless otherwise provided by the Tax Code of the Russian Federation, without accruing interest on this amount, unless otherwise established by this article.

As follows from the materials of the case, the legal successor of the taxpayer applied for the return of the overpayment of income tax.

In the Application for the refund of the overpayment for the purpose of transferring the overpaid income tax, the applicant's current account with JSB "ORGRESBANK" (OJSC) is indicated.

From the Extract from the Unified State Register of Legal Entities it follows that the applicant is registered with the Federal Tax Service of Russia N 31 in Moscow.

Consequently, the applications were to be sent to the place of registration of the applicant, to whose current account the funds are to be credited, i.e. in the Federal Tax Service of Russia N 31 in Moscow.

Since paragraph 2 of Art. 78 of the Tax Code of the Russian Federation provides for the refund of overpaid tax by the tax authority at the place of registration of the taxpayer, and the applicant was not registered with the MRI of the Federal Tax Service of Russia N 14 for the Moscow Region, the tax authority did not have the obligation and appropriate authority to accept within 10 days from the date of receipt of such applications (clause 8, article 78 of the Tax Code of the Russian Federation) of a decision on the return of the overpayment amount.

Due to the fact that the company was registered with the Federal Tax Service of Russia N 31 for Moscow, the tax authority did not have the necessary data on the applicant, which did not allow the inspectorate to verify the legality of the declared overpayment and make a positive decision.

The period for calculating the interest to be accrued on the amount of the tax amount unreasonably not returned by the tax authority does not change the fact of entry into force judicial act on the recognition of the actions of the tax authority to evade the return of overpaid tax as illegal.

In case No. A41-40900/09, the taxpayer applied to the court for the recovery of interest from the Interdistrict Inspectorate of the Federal Tax Service of Russia N 13 for the Moscow Region for the late return of value added tax.

As established by the courts, the decision of the Arbitration Court of the Moscow Region dated 04.12.2008 in case N A41-17725 / 08, which entered into force, imposed on the Inspectorate the obligation to return the amount of overpaid tax from the budget to the Company's settlement account.

Meanwhile, the court found that the application for a tax refund was filed by the Company on 07/01/2008, based on the reconciliation act, the tax authority only on 09/18/2009 decided to refund the overpaid VAT, on 09/23/2009 the disputed amount was received on the Company's settlement account.

The tax authority believes that the obligation to return interest to the Company for violation of the VAT refund arose only after the entry into force of the court decision dated 04.12.2008 in case No. A41-17725.

However, the refund of the amount of overpaid tax is made at the expense of the budget ( off-budget fund), in which the overpayment occurred, within one month from the date of filing an application for a refund, unless otherwise provided by this Code. In case of violation of the specified period, interest is accrued on the amount of overpaid tax that was not returned within the established period for each day of violation of the return period (clause 9 of article 78 of the Tax Code of the Russian Federation as amended by Federal Law of 09.07.1999 N 154-FZ).

In view of the foregoing, interest is accrued only on the amount to be returned to the taxpayer, and from the moment when it must be returned by virtue of law, if the tax authority had made an appropriate decision in a timely manner, as well as if there was a written application from the taxpayer for a tax refund.

1. The amount of overpaid tax is subject to offset against the taxpayer's forthcoming payments on this or other taxes, repayment of arrears on other taxes, arrears on penalties and fines for tax offenses or refund to the taxpayer in the manner prescribed by this article.

Set-off of amounts overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for penalties accrued on the relevant taxes and fees.

1.1. The amount of overpaid insurance premiums is subject to offset against the relevant budget of the state off-budget fund of the Russian Federation, to which this amount was credited, against the payer's forthcoming payments on this premium, debts on the relevant penalties and fines for tax offenses, or return to the payer of insurance premiums in the manner prescribed this article.

2. The offset or refund of the amount of overpaid tax shall be made by the tax authority at the place of registration of the taxpayer, unless otherwise provided by this Code, without charging interest on this amount, unless otherwise established by this article.

3. The tax authority is obliged to notify the taxpayer of each fact of excessive payment of tax and the amount of overpaid tax that has become known to the tax authority within 10 days from the date of discovery of such a fact.

In the event that facts are discovered that indicate a possible excessive payment of tax, at the suggestion of the tax authority or the taxpayer, a joint reconciliation of calculations for taxes, fees, insurance premiums, penalties and fines may be carried out.

The paragraph is invalid. - Federal Law of July 27, 2010 N 229-FZ.

4. The offset of the amount of overpaid tax against the taxpayer's forthcoming payments on this or other taxes is carried out on the basis of a written application (an application submitted in electronic form with enhanced qualified electronic signature via telecommunication channels or represented through Personal Area taxpayer) taxpayer by decision of the tax authority.

The decision to offset the amount of overpaid tax against the taxpayer's forthcoming payments is made by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.

5. The offset of the amount of overpaid tax against arrears on other taxes, arrears in penalties and (or) fines payable or recoverable in the cases provided for by this Code shall be carried out by the tax authorities independently.

In the case provided for by this paragraph, the decision on offsetting the amount of overpaid tax shall be made by the tax authority within 10 days from the date of discovery by it of the fact of excessive tax payment or from the date of signing by the tax authority and the taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out, or from the date of entry into force of the decision of the court.

The provision provided for by this paragraph does not prevent the taxpayer from submitting to the tax authority a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) on offsetting the amount of overpaid tax against the arrears (debts) penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax against the arrears and debts on penalties, fines shall be made within 10 days from the date of receipt of the said application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.

6. The amount of overpaid tax is subject to refund upon a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer within one month from the date of receipt by the tax authority of such an application.

The refund to the taxpayer of the amount of overpaid tax in the presence of arrears on other taxes of the corresponding type or debt on the relevant penalties, as well as fines subject to collection in the cases provided for by this Code, is made only after offsetting the amount of overpaid tax to pay off the arrears (debts) .

6.1. Refund of the amount of overpaid insurance premiums for mandatory pension insurance is not carried out if, according to the message of the territorial authority pension fund of the Russian Federation, information on the amount of overpaid insurance premiums for compulsory pension insurance is presented by the payer of insurance premiums as part of individual (personalized) accounting information and recorded on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) accounting in the compulsory pension insurance system .

7. An application for a credit or refund of the amount of overpaid tax may be filed within three years from the date of payment of the said amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees.

8. The decision to refund the amount of overpaid tax shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.

Before the expiration of the period established by paragraph one of this clause, an instruction for the return of the amount of overpaid tax, drawn up on the basis of a decision of the tax authority on the return of this amount of tax, shall be sent by the tax authority to territorial authority Federal Treasury for the purpose of making a refund to the taxpayer in accordance with the budgetary legislation of the Russian Federation.

9. The tax authority is obliged to inform the taxpayer of the decision taken to set off (refund) amounts of overpaid tax or the decision to refuse to set off (refund) within five days from the date of the relevant decision.

The specified message is transmitted to the head of the organization, an individual, their representatives personally against receipt or in another way confirming the fact and date of its receipt.

The amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible member of this group in the manner prescribed by this article.

In the event of termination of the agreement on the creation of a consolidated group of taxpayers, the amounts of overpaid tax on the profit of organizations for a consolidated group of taxpayers that are not subject to offset (uncredited) against the arrears available for this group are subject to offset (refund) by the organization that was the responsible participant in the consolidated group of taxpayers, according to her statement.

The refund to the responsible participant of the consolidated group of taxpayers of the amount of overpaid profit tax on the consolidated group of taxpayers shall not be made if he has a arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as on fines subject to collection in the cases provided for by this Code.

10. In the event that the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of this article, the tax authority shall accrue interest on the amount of overpaid tax that is not refunded within the established period, payable to the taxpayer, for each calendar day of violation of the deadline return.

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

11. The territorial body of the Federal Treasury that has refunded the amount of overpaid tax shall notify the tax authority of the date of the refund and the amount of money returned to the taxpayer.

12. If the interest provided for by paragraph 10 of this article has not been paid to the taxpayer in full, the tax authority shall decide on the return of the remaining amount of interest, calculated on the basis of the date of the actual return to the taxpayer of the amounts of overpaid tax, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the date of return and the amount of money returned to the taxpayer.

Before the expiration of the period established by paragraph one of this clause, an instruction for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, shall be sent by the tax authority to the territorial body of the Federal Treasury for the return.

13. The offset or refund of the amount of overpaid tax and the payment of accrued interest shall be made in the currency of the Russian Federation.

13.1. The amount of money paid to compensate for the damage caused budget system of the Russian Federation as a result of the crimes provided for by Articles 198 - 199.2 of the Criminal Code of the Russian Federation are not recognized as amounts of overpaid tax and are not subject to offset or refund in the manner prescribed by this article.

14. The rules established by this article shall also apply to the offset or refund of overpaid advance payments, fees, insurance premiums, penalties and fines and apply to tax agents, payers of fees, payers of insurance premiums and the responsible member of a consolidated group of taxpayers.

Provisions of this article with regard to the refund or credit of overpaid amounts state duty are applied subject to the specifics established by Chapter 25.3 of this Code.

The rules established by this article shall also apply to the offset or refund of the amount of value added tax subject to reimbursement by decision of the tax authority, in the case provided for by paragraph 11.1 of Article 176 of this Code.

The rules established by this article shall also apply to the offset or return of the amounts of interest paid in accordance with paragraph 17 of Article 176.1 of this Code.

15. The fact that a person is indicated as the nominal owner of property in a special declaration submitted in accordance with federal law"On voluntary declaration individuals assets and accounts (deposits) in banks and on amendments to certain legislative acts Russian Federation" and the transfer of such property to its actual owner are not in themselves grounds for recognizing as overpaid amounts of taxes, fees, penalties and fines paid by the nominal owner in respect of such property.

16. The rules established by this article shall also apply to amounts of overpaid value added tax subject to refund or offset. foreign organizations- taxpayers (tax agents) specified in paragraph 3 of Article 174.2 of this Code. The refund of the amount of overpaid value added tax to such organizations is carried out to an account opened with a bank.

17. The rules on the refund of amounts of overpaid taxes established by this article shall also apply to the refund of amounts of previously withheld corporate profit tax that are subject to refund to a foreign organization in the cases provided for by paragraph 2 of Article 312 of this Code, taking into account the specifics established by this paragraph.

The decision to refund the amount of previously withheld corporate income tax is made by the tax authority at the place of registration of the tax agent within six months from the date of receipt from a foreign organization of an application for the refund of previously withheld tax and other documents specified in paragraph 2 of Article 312 of this Code.

The amount of previously withheld corporate income tax is subject to refund within one month from the date of the decision by the tax authority to refund the amount of previously withheld tax.

Tax Code, N 146-FZ | Art. 78 Tax Code of the Russian Federation

Article 78 of the Tax Code of the Russian Federation. Offset or refund of overpaid tax, dues, insurance premiums, penalties, fines ( current edition)

The offset of 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 penalties accrued on the relevant taxes and fees.

The paragraph is invalid. - Federal Law of July 27, 2010 N 229-FZ.

4. The offset of the amount of overpaid tax against the taxpayer's forthcoming payments for this or other taxes is carried out on the basis of a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer by decision of the tax authority .

6.1. The refund of the amount of overpaid insurance premiums for mandatory pension insurance is not made if, according to the information of the territorial management body of the Pension Fund of the Russian Federation, information on the amount of overpaid insurance premiums for mandatory pension insurance is presented by the payer of insurance premiums as part of the information of individual (personalized) accounting and taken into account on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) registration in the system of compulsory pension insurance.

Before the expiration of the period established by the first paragraph of this clause, an instruction for the refund of the amount of overpaid tax, issued on the basis of a decision of the tax authority to refund this amount of tax, is subject to direction by the tax authority to the territorial body of the Federal Treasury for the refund to the taxpayer in accordance with the budget legislation of the Russian Federation .

The specified message is transmitted to the head of the organization, an individual, their representatives personally against receipt or in another way confirming the fact and date of its receipt.

The amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible member of this group in the manner prescribed by this article.

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

13. The offset or refund of the amount of overpaid tax and the payment of accrued interest shall be made in the currency of the Russian Federation.

13.1. The amounts of money paid to compensate for damage caused to the budgetary system of the Russian Federation as a result of the crimes provided for in Articles 198-199.2 of the Criminal Code of the Russian Federation are not recognized as amounts of overpaid tax and are not subject to offset or refund in the manner prescribed by this article.

The provisions of this article in relation to the return or offset of overpaid amounts of state duty shall be applied subject to the specifics established by Chapter 25.3 of this Code.

The rules established by this article shall also apply to the offset or return of the amounts of interest paid in accordance with paragraph 17 of Article 176.1 of this Code.

15. The fact of specifying a person as the nominal owner of property in a special declaration submitted in accordance with the Federal Law "On the Voluntary Declaration of Assets and Bank Accounts (Deposits) by Individuals and on Amendments to Certain Legislative Acts of the Russian Federation", and the transfer of such property to its actual owner are not in themselves grounds for recognizing as overpaid amounts of taxes, fees, penalties and fines paid by the nominal owner in respect of such property.

16. The rules established by this article shall also apply to amounts of overpaid value added tax subject to refund or offset to foreign organizations - taxpayers (tax agents) specified in paragraph 3 of Article 174.2 of this Code. The amount of overpaid value added tax to such organizations shall be refunded to an account opened with a bank.

The amount of previously withheld corporate income tax is subject to refund within one month from the date of the decision by the tax authority to refund the amount of previously withheld tax.

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Commentary on Art. 78 Tax Code of the Russian Federation

In pp. 5 p. 1 art. 21 of the Tax Code of the Russian Federation enshrines the right of the taxpayer to timely set off or return the amounts of overpaid or overcharged taxes, penalties, fines. When offsetting, the amount of overpaid tax is offset against the taxpayer's forthcoming payments on this or other taxes or on the repayment of arrears. The refund involves the payment to the taxpayer of the amount of the excess tax paid by him.

The commented article allows for the offset and refund of amounts of overpaid taxes and penalties by the customs authorities, which in this case are obliged to report to the tax authority at the place of registration of the taxpayer within ten days about all overpaid taxes that were offset against future taxes or were returned by them.

An overpayment is formed if the taxpayer has paid a large amount tax, penalties, fines than required by law.

In practice, this situation occurs frequently. The reasons for overpayment can be very different:

firstly, the incorrect calculation of taxes: inaccuracy in the calculation tax base, applying the wrong tax rate, etc. Moreover, the payment is recognized as overpaid if the taxpayer himself, without the participation of the tax authority, incorrectly calculated the amount of the payment (Determination of the Constitutional Court of the Russian Federation of December 27, 2005 N 503-O, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 24, 2012 N 16551 / 11, dated July 27, 2011 N 2105/11);

secondly, errors in filling out payment orders for the payment of taxes, penalties, fines, which led to their transfer to the budget in an excessive amount. For example, this may be caused by the indication by the taxpayer in the payment of an overestimated amount payable, an incorrect budget classification code;

Thirdly, changes to tax law which apply to previous periods. For example, a tax overpayment may result from the introduction of a benefit that is applied from the beginning of the current year;

fourthly, according to the results of the tax period, the amount of tax to be reduced was calculated;

Fifthly, changing the taxation regime, etc.

Both the taxpayer and the tax office. If the tax authority independently revealed the overpaid amounts, it is obliged to inform you about them within 10 working days from the date of establishing this fact (clause 6, article 6.1, clause 3, article 78 of the Tax Code of the Russian Federation). The form of such a notice was approved by the Order of the Federal Tax Service of Russia dated December 25, 2008 N MM-3-1 / [email protected]

The Tax Code of the Russian Federation establishes a mandatory administrative (pre-trial) procedure for a taxpayer to apply for a set-off or refund of overpaid tax amounts by filing a taxpayer with an appropriate application to the tax authority.

The tax authority that discovered the fact of excessive payment of tax is obliged to inform the taxpayer about each fact of excessive payment of tax and the amount of overpaid tax that has become known to him within 10 days from the date of discovery of such a fact.

In practice, the tax authorities rarely report such facts. However, if the taxpayer has evidence that the tax authority knew about the fact of excessive payment of a tax or fee, but did not inform the taxpayer about it, then the latter may appeal against such actions (inaction) of the tax authority in a higher tax authority or in court.

If facts are discovered that indicate a possible overpayment of tax, at the proposal of the tax authority or the taxpayer, a joint reconciliation of calculations for taxes, fees, penalties and fines can be carried out, which is drawn up relevant act joint reconciliation, signed by the taxpayer and the tax authority. The amount of tax overpaid by the taxpayer can be:

Set off against future payments of the taxpayer for this or other taxes;

Set off against the payment of arrears on other taxes, debts on penalties and fines for tax offenses;

returned to the taxpayer.

The Tax Code of the Russian Federation provides for the possibility of either offsetting (on account of forthcoming payments or on account of repayment of arrears / debts), or the return of overpaid tax.

At the same time, if the taxpayer has arrears on other taxes of the corresponding type or arrears on the relevant penalties, as well as fines, the offset of the overpaid tax against future payments or the return of the overpaid tax to the taxpayer is carried out by the tax authority only after offsetting the amount of the overpaid tax towards repayment of the arrears ( debt) of the taxpayer.

Thus, the Tax Code of the Russian Federation provides for successively offsetting the amount of overpaid tax towards repayment of arrears (debts), and then the remaining excess amount tax is subject to either offset against future payments of the taxpayer, or returned to the taxpayer.

In accordance with paragraph 4 of the commented article, offset or refund of overpaid tax is made on the basis of a written decision of the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.

A joint reconciliation of taxes, penalties, fines and interest paid to the budget is carried out by the taxpayer and the tax authority.

During the reconciliation, data on settlements for tax payments which the inspectorate has are compared with the information of the organization or individual entrepreneur payment of taxes, penalties and fines. This allows you to identify overpayments, as well as arrears in payments to the budget.

Judicial practice under Article 78 of the Tax Code of the Russian Federation:

Decision of the Supreme Court: Ruling N 301-KG17-5881, Judicial Collegium for Economic Disputes, cassation
Refusing to satisfy the stated requirements, the court of first instance, having assessed the evidence presented in the case file and guided by the provisions of Article 65 of the Arbitration Procedure Code of the Russian Federation, Articles 21, 23, 32, 52, 78 of the Tax Code, the explanations set out in paragraph 79 of the decision of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On Certain Issues Arising from the Application by Arbitration Courts of Part One of the Tax Code of the Russian Federation”, came to the conclusion that the applicant missed the three-year period established for applying to the arbitration court with a claim for the return of overpaid tax .. .
Decision of the Supreme Court: Ruling N 305-KG17-3764, Judicial Collegium for Economic Disputes, cassation
Having assessed the evidence presented in the case file in accordance with the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, the court, guided by the provisions of Articles 21, 78, 79 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code) and taking into account the legal position set forth in the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25 .2009 No. 12882/08, acknowledged that the taxpayer missed the deadline established by paragraph 7 of Article 78 of the Tax Code for filing an application for the refund of overpaid tax, and therefore refused to satisfy the application ...
Decision of the Supreme Court: Ruling N 305-KG16-10426, Judicial Collegium for Economic Disputes, cassation
In such circumstances, guided by the provisions of Articles 54, 78, 81, 247, 272, 287, 289 of the Tax Code of the Russian Federation, the courts concluded that the contested decision of the tax authority was legal, and therefore refused to satisfy the stated requirements ...

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