Tax secret. What information is related to tax secrets Types of violations of the tax secrecy regime

In accordance with paragraph 3 of Art. 7 of the Law of the Russian Federation "On tax authorities of the Russian Federation", tax authorities and their employees are obliged to keep commercial secrets and the secrecy of information about the deposits of individuals and organizations. Section 102 Tax Code The Russian Federation introduces a concept that is new in content than a commercial secret - tax secret.

Article 102. Tax secret. tax code Russian Federation(RF Tax Code)

  • 1. Tax secrets are any received tax authority, the internal affairs bodies, the body of the state extra-budgetary fund and the customs body information about the taxpayer, with the exception of information:
  • 1) disclosed by the taxpayer independently or with his consent;
  • 2) about identification number taxpayer;
  • (excluded - Federal Law of 09.07.1999 N 154-FZ);
  • 3) on violations of the legislation on taxes and fees and measures of responsibility for these violations; (as amended by Federal law dated 09.07.1999 N 154-FZ)
  • 4) provided to tax (customs) or law enforcement authorities of other states in accordance with international treaties (agreements), one of the parties to which is the Russian Federation, on mutual cooperation between tax (customs) or law enforcement agencies (in terms of information provided to these authorities).
  • (as amended by Federal Law of 09.07.1999 N 154-FZ)
  • 2. Tax secrets are not subject to disclosure by tax authorities, internal affairs bodies, state bodies. extrabudgetary funds and customs authorities, their officials and hired specialists, experts, with the exception of cases stipulated by federal law.
  • (as amended by Federal Laws of 09.07.1999 N 154-FZ, of 02.01.2000 N 13-FZ, of 30.06.2003 N 86-FZ)

Disclosure of tax secrets includes, in particular, the use or transfer to another person of industrial or commercial secrets of a taxpayer, which has become known to an official of a tax authority, an internal affairs body, a state non-budgetary fund body or a customs authority, a specialist or expert involved in the performance of their duties.

  • (as amended by Federal Law of 30.06.2003 N 86-FZ)
  • 3. Information constituting a tax secret received by tax authorities, internal affairs bodies, bodies of state extra-budgetary funds or customs authorities has a special storage and access regime.
  • (as amended by Federal Laws of 09.07.1999 N 154-FZ, of 02.01.2000 N 13-FZ, of 30.06.2003 N 86-FZ)

Access to information constituting tax secrets is available to officials determined, respectively, by the federal executive body authorized for control and supervision in the field of taxes and fees, the federal executive body authorized in the field of internal affairs, the federal executive body authorized to control and supervision in the field of customs.

  • (as amended by Federal Law of June 29, 2004 N 58-FZ)
  • 4. The loss of documents containing information constituting a tax secret, or the disclosure of such information entails liability provided for by federal laws.

Tax secrecy concept

The legal definition of the concept of "tax secret" is given in paragraph 1 of Art. 102 of the Tax Code of the Russian Federation, according to which: "Tax secrets are any information received by the tax authority, the internal affairs bodies, the state non-budgetary fund authority and the customs authority about the taxpayer, with the exception of information: (see clause 1 of Art. 102 of the Tax Code of the Russian Federation)."

With regard to information constituting a tax secret, there may be various legal relationships associated with the collection, receipt, storage, distribution, protection of such information, as well as liability for its illegal disclosure and use. The institution of tax secrecy is complex, including the norms of not only tax, but also information, administrative, criminal and other branches of law.

According to Art. 102 of the Tax Code of the Russian Federation, tax secrets are any information about the taxpayer. From the established Art. 102 of the Tax Code of the Russian Federation, it follows that information can be, first of all, any form - it can be any written (electronic) information about a taxpayer that has become known to an official of a tax authority in the exercise of his legal powers: a document, a magnetic disk, a video recording, photo and film shooting (Article 92 of the Tax Code of the Russian Federation). In terms of its content, information can also be any, that is, include not only information directly related to taxation issues, but also other information, the legal protection of which is provided for by various regulatory legal acts(for example, personal, family, commercial secrets).

One of essential signs the object of tax secrecy is that the information constituting it is only information about the person (taxpayer), i.e. it can be any information related to a specific person. The literature provides a classification of confidential information according to the subject who possesses them on "their" secrets and "other people's" secrets. "Own" secrets are information relating to a specific person, while "alien" secrets mean information entrusted to persons in connection with the implementation of professional activity(such persons may be, for example, doctors, lawyers, auditors). Tax secrets within the meaning of Art. 102 of the Tax Code of the Russian Federation consists only of information relating to a specific taxpayer, who is granted the right to demand secrecy in relation to this information (Article 21 of the Tax Code of the Russian Federation). Other persons are not granted this right. Consequently, “alien” secrets cannot be an object of tax secrets, the safety of such information is ensured in the regime of other secrets provided for by legislation, in particular, in the regime of professional secrecy. The guarantee of the safety of such information in tax legislation is the norm provided for by Art. 82 of the Tax Code of the Russian Federation, according to which, in the course of tax control, the collection, storage, use and dissemination by tax authorities of information about a taxpayer constituting a professional secret, in particular a lawyer's secret, an audit secret, is recognized as unacceptable.

The main feature of information constituting a tax secret, which distinguishes it from other types of secrets, is that information about the taxpayer must be obtained by the tax authority in the exercise of its powers. Information about a taxpayer received by an official not in connection with the exercise of his powers is not a tax secret. In this case, there is no very reason for classifying the information as a tax secret, since any third party in the same way can obtain such information about the taxpayer without any obstacles.

The receipt by the tax authority of information about the taxpayer is carried out within the framework of legal relations arising from the Tax Code of the Russian Federation, which have a public legal character and based on the imperious subordination of one side to the other. In these legal relations, the tax authority, acting on behalf of the state, has the power to demand the necessary information (Article 31 of the Tax Code of the Russian Federation), and the taxpayer is obliged to provide it (Article 23 of the Tax Code of the Russian Federation).

In accordance with Art. 82 of the Tax Code of the Russian Federation, tax control is carried out by officials of tax authorities within the limits of their authority through tax audits, receiving explanations from taxpayers, tax agents and payers of fees, checking accounting and reporting data, examining premises and territories used to generate income (profit), as well as the same in other forms provided for by the Tax Code of the Russian Federation. Any of the listed forms of tax control involves the receipt by the tax authorities of various information about the taxpayer, the source of which is not necessarily the taxpayer himself. Any information received by officials of tax authorities as part of the exercise of their powers to tax control are subject to tax secrets.

Art. 24, 85, 86, 90, 93 of the Tax Code of the Russian Federation establishes the obligation of certain individuals and organizations to provide information about the taxpayer known to them. Such an obligation is established, for example, for tax agents, banking organizations, witnesses. Failure to provide information to the tax authorities entails liability in accordance with Art. 129 of the Tax Code of the Russian Federation. The information received from these persons is protected in the tax secret regime, but only to the extent that it concerns the taxpayer directly.

Art. 102 of the Tax Code of the Russian Federation provides for a list of information that is not a tax secret (see above). In connection with this list, the decree of the Federal Antimonopoly Service of the West Siberian District of 12/14/2007 is interesting in the case in which the IFTS refused to provide the taxpayer with information about the good faith of his counterparties, deciding that such a refusal is legitimate, since this information constitutes a tax secret and has a special access regime.

As indicated by the court, recognizing the position of the IFTS unlawful, Art. 102 of the Tax Code of the Russian Federation contains an exhaustive list of information that does not belong to tax secrets, according to which information on violations of legislation on taxes and fees and measures of responsibility for these violations does not belong to tax secrets. The requested information does not apply to tax secrets.

Thus, from this decision, a practical conclusion can be drawn - for any taxpayer there is an opportunity to request information on the good faith of the counterparty from the IFTS.

In addition, the refusal of the Federal Tax Service Inspectorate affects the rights of the organization as a taxpayer to receive tax benefits, including when calculating VAT payable to the budget, taking into account the taxpayer's obligation to confirm due diligence and caution when choosing a counterparty - according to established practice, the tax authorities are very reluctant to reimburse VAT to taxpayers, whose counterparties, being dishonest, did not pay this tax. As a rule, even in the light of the Ruling of the Chamber of the European Court of Human Rights of January 22, 2009, where the Court indicated that: due diligence taxpayers-buyers in certain circumstances (special diligence) and cannot be reduced to a refusal to deduct for any tax non-performance of the supplier ”, the Russian tax authorities are very skeptical about reimbursement under these circumstances.

Foreign organizations, also recognized as taxpayers, are granted the right to observe and maintain tax secrets in full, on a par with Russian organizations.

Importance of the institution of tax secrecy

The legal significance of tax secrets is that it protects the rights and legitimate interests of taxpayers in relation to information classified as tax secret by law.

The legal institution closely intersects with the institute bank secrecy, which entails both certain advantages for the taxpayer - since financial institutions are in no hurry to part with the information they own, as well as certain disadvantages - legal grounds the tax authorities still have the banks to claim a certain amount of information.

Persons with access to tax secrets. The ability to provide information constituting a tax secret by tax authorities

Courts of general jurisdiction of the Russian Federation and arbitration courts of the Russian Federation have access to tax secrets. In proceedings on cases arising in connection with challenging non-normative acts, decisions and actions (inaction) of tax authorities and tax officials, in proceedings on administrative offenses, referred to the jurisdiction of the respective courts (Article 29 of the APC; Article 22 of the Code of Civil Procedure), there may be a need to involve information about the taxpayer as evidence. In these cases, materials containing this information are provided by the tax authority upon a reasoned written request from the judge directly to the court (Article 66 of the Arbitration Procedure Code of the Russian Federation; Article 57 of the Code of Civil Procedure of the Russian Federation).

The information necessary for the compulsory execution of the collection is provided to the bailiffs (civil servants who, in accordance with Article 4 of the Federal Law No. 119-FZ "On enforcement proceedings»Perform judicial acts and acts of other bodies). Order of the Ministry of Taxes of the Russian Federation and the Ministry of Justice of the Russian Federation of July 25, 2000 N VG-3-10 / 265/215 approved the Procedure for interaction between the tax authorities of the Russian Federation and the service bailiffs bodies of justice of the constituent entities of the Russian Federation on the compulsory execution of decisions of tax authorities and other executive documents... In the absence of information about the debtor necessary for compulsory execution, the bailiff sends a reasoned written request to the tax authority about the TIN, account numbers, the name and location of banks and credit institutions in which these accounts are located. Such information constitutes an object of tax secrecy. However, at the request of the bailiff-executor, it must be provided by the tax authority within three days (Article 46 of the Federal Law of July 21, 1997 No. 119-FZ; 3.1 of the Procedure approved by the Order of the Ministry of Taxes and Duties of Russia and the Ministry of Justice of Russia dated July 25, 2000 No. VG-3-10 / 265/215).

Information about the presence of the debtor Money and other valuables in accounts and in deposits or in storage in banks and other credit organizations can be provided to the recoverer at his request if he has writ of execution with not expired statute of limitations (Art. 46 of the Federal Law of 21.07.1997 No. 119-FZ; clause 2 of the Order of the Ministry of Taxes and Duties of the Russian Federation of 23.01.2003 No. BG-3-28 / 23 "On approval of the procedure for providing information to the claimant by tax authorities"). However, such account information is not provided in full. Thus, information on the debtor's open accounts cannot be provided in accordance with the Decision of the Supreme Arbitration Court of the Russian Federation of 03.03.2004.

At the level of federal legislation, other cases are provided for the provision of information constituting a tax secret by tax authorities (customs service, the Accounts Chamber, at the request of a member of the Federation Council, the State Duma, etc.). In all cases of such provision, the persons who received this information are obliged on observance and preservation of tax secrets.

Tax publicity principle

Despite the fact that the institution of tax secrecy is important for protecting the rights of taxpayers, in many countries (Sweden, Norway, France, Italy), along with the obligation of tax authorities and their officials not to disclose information about taxpayers, there is a legislatively enshrined possibility of publishing certain tax information, the so-called tax publicity. Legal basis tax publicity in these countries constitutes the constitutional right of everyone to familiarize themselves with the documents and materials of the authorities state power directly affecting his rights and freedoms. Proceeding from the fact that the obligation to pay taxes is of a public nature, failure to fulfill it by an individual taxpayer violates the rights and interests of all citizens. Therefore, some tax information, the list of which is strictly regulated, are recognized as publicly available, thereby giving all taxpayers the right to control the execution of each tax obligation. The obligation to provide such information is carried out through their annual publication.

Tax secrecy - a special regime for access and use of the aggregate of confidential information about taxable persons, which has become known to the tax administration and internal affairs bodies, as provided for by the legislation on taxes and fees.

Tax secrets are any information about the taxpayer received by the tax authority, internal affairs bodies, the body of the state non-budgetary fund and the customs authority, with the exception of information:

1) disclosed by the taxpayer independently or with his consent;

2) about the taxpayer identification number;

3) on violations of legislation on taxes and fees and measures of responsibility for these violations;

4) provided tax (customs) or law enforcement agencies of other states in accordance with international contracts (agreements), one of the parties of which is the Russian Federation, on mutual cooperation between tax (customs) or law enforcement authorities (in terms of information provided to these authorities).

Tax secrets are not subject to disclosure tax authorities, internal affairs bodies, bodies of state extra-budgetary funds and customs authorities, their officials and attracted specialists, experts. The loss of documents containing information constituting tax secrets, or the disclosure of such information entails liability provided for by federal laws.

According to paragraph 1 of Art. 102 of the Tax Code of the Russian Federation tax secrets are any information about the taxpayer received by the tax authority, internal affairs authorities, investigative authorities, the state non-budgetary fund authority and the customs authority, with the exception of the information directly indicated in this article.

As follows from the Definition of the Constitutional Court of the Russian Federation of September 30, 2004 N 317-O, the special legal status of information constituting a tax secret is enshrined in Art. 102 of the Tax Code of the Russian Federation based on the interests of taxpayers and taking into account the principle of balance between public and private interests in this area, since in the process of exercising the functions of the tax authorities of the Russian Federation established by the Tax Code of the Russian Federation and other federal laws, they have at their disposal a significant amount of information about the property status of each taxpayer, the dissemination of which may harm both the interests of individual citizens, whose private life is inviolable and protected by law, and legal entities, whose commercial and other interests may be violated in the event of arbitrary dissemination of confidential information that is significant for business in a competitive or criminal environment. The decision of the Supreme Arbitration Court of the Russian Federation of March 3, 2004 N 15527/03 explains that, by its nature and purpose, the institution of tax secrecy is of a public nature and means the protection of information by the tax authority, the disclosure of which may violate the rights of citizens and organizations.


But it should be noted dos rather controversial norm of sub. 3 p. 1 art. 102 of the Tax Code of the Russian Federation, according to which the tax secrecy regime does not apply to information on violations of legislation on taxes and fees and measures of responsibility for these violations ... Accordingly, such facts as the presence of a taxpayer in arrears (clause 2 of article 11 of the Tax Code of the Russian Federation), bringing him to responsibility for tax violations (Chapter 16, 18 of the Tax Code of the Russian Federation) do not formally belong to tax secrets. Moreover, information on the measures of responsibility for violations of general rule must be open to the realization of the possibility of crime prevention. However, the problem is that, based on the known amount of taxpayer's arrears for a specific tax, publicly available information and the rules of the Tax Code of the Russian Federation on the calculation of this tax, it is quite possible to calculate a certain parameter already related to tax secrecy. Thus, the arrears of VAT for a certain tax period make it possible to roughly estimate the amount of the taxpayer's proceeds from which this tax has not been paid. Perhaps for this reason, in practice, it is extremely difficult to obtain information from the tax authorities about the debt of a certain person for taxes (fines, sanctions).

A rather ambiguous position is given in the letter of the Ministry of Finance of the Russian Federation dated June 4, 2012 N 03-02-07 / 1-134: it actually approved the approach according to which information on the fulfillment by taxpayers of their obligations to pay taxes is not a tax secret.

Interestingly, the tax secrecy regime is optional. tax legislation any country. So, A.V. Bryzgalin gives the example of Finland, in which there is no tax secret: every citizen can go to tax office, find out how much any people interested in him earn and pay in taxes. This approach, according to tax officials, forms tax solidarity, and citizens themselves monitor each other's tax obligations.<170>... The tax secrecy regime in Russia, as well as the prohibitions of clause 1 of Art. 24 and Art. 25 of the Constitution of the Russian Federation, apparently, are explained not only by the reaction to the criminogenic situation in Russia, but also are the result of the denial of the hypertrophied and unclear powers of the state to control the personal life of citizens, which were formed in the Soviet period. According to A. Chaillot, constitutions are born out of fear of the former despotism. They perpetuate freedom as a denial of the institutions of recent tyranny.


48. Field tax audits: concept, principles and procedure.

Exit tax audit - an audit, the subject of which is the correctness of the calculation and the timeliness of payment of taxes carried out on the territory (premises) of the taxpayer on the basis of the decision of the head (deputy head) of the tax authority at the location of the organization or at the place of residence natural person.

Basic provisions on the procedure for determining the subject of a field tax audit .

1 ... An on-site tax audit in respect of one taxpayer can be carried out on one or more taxes.

2 ... As part of an on-site tax audit, it can be checked a period not exceeding three calendar years, preceding the year in which the decision was made to conduct the audit.

3. The tax authorities are not entitled to conduct two or more field tax audits. for the same taxes for the same period.

4. Tax authorities not entitled to conduct in relation to one taxpayer more than two visiting tax inspections during a calendar year, except for cases when the head of the Federal Tax Service makes a decision on the need to conduct an on-site tax audit of a taxpayer in excess of the specified limit.

5 . When determining the quantity field tax audits of a taxpayer the number of independent on-site tax audits is not taken into account its branches and representative offices.

An on-site tax audit is carried out on the basis of the decision of the head (his deputy) of the tax authority at the location of the organization or the place of residence of an individual. At the same time, the decision to conduct an on-site tax audit of an organization classified as the largest taxpayers, is taken out by the tax authority that has registered this organization as the largest taxpayer.

Self-service field tax audit of a branch or representative office is carried out on the basis of the decision of the tax authority at the location of the separate subdivision.

The decision to conduct an on-site tax audit must contain the following information:

Full and abbreviated name or surname, name, patronymic of the taxpayer;

The subject of the audit, that is, taxes, the correctness of the calculation and payment of which is subject to verification;

The periods for which the check is carried out;

Positions, surnames and initials of the tax authority employees entrusted with the audit.

Head decision form ( deputy head) of the tax authority on conducting an on-site tax audit is approved by the federal executive body authorized to control and supervise taxes and fees (Order of the Ministry of Taxes and Duties of Russia dated October 8, 1999 No. tax audits ").

An on-site tax audit cannot last more than two months ... The term is calculated from the date of the decision on the appointment of an inspection and until the day of drawing up a certificate of the inspection carried out.

The inspection period can be extended up to 4 months, and in exceptional cases - up to 6 months.

Suspension of the inspection period is possible for:

1) requesting documents(information) from counterparties or from other persons who have documents (information) concerning the DT-ty of the taxpayer being audited (tax payer, tax agent).

2) obtaining information from foreign government agencies within the framework of international treaties of the Russian Federation;

3) conducting expert examinations;

4) translation of documents into Russian submitted by the taxpayer in a foreign language.

The suspension of the verification period is carried out based on the decision of the head of the tax authority.

The total period of suspension cannot exceed six months... An exception is the case of suspension of the inspection on the basis of receiving information from foreign government agencies within the framework of international treaties of the Russian Federation, if the tax authority was unable to receive the requested information within six months. The period of suspension of the said inspection may be extended by three months.

For the period of validity of the suspension of the field tax audit, are suspended actions of the tax authority to request documents from the taxpayer, to whom, in this case, all originals requested during the audit are returned, with the exception of documents obtained during the seizure, and also the actions of the tax authority on the territory (in the premises) of the taxpayer related to the specified audit are suspended ...

Repeated field tax audit - on-site tax audit, carried out regardless of the time of the previous check for the same taxes and for the same period.

A repeated field tax audit of a taxpayer can be carried out in two cases:

1) a higher tax authority- in order to control the Dt-ty of the tax authority that conducted the audit;

2) the tax authority, previously verified , on the basis of the decision of its head (deputy head) - if the taxpayer submits a revised tax declaration, which indicates the amount of tax in an amount less than the previously declared one.

If during the repeated field tax audit revealed the fact of by a taxpayer of a tax offense that was not detected during the initial on-site tax audit, to the taxpayer do not apply tax sanctions (if it is not the result of collusion)

On the last day of the inspection the examiner draws up verification certificate , in which the subject of the audit and the timing of its conduct are recorded, and hands it over to the taxpayer or his representative.

Based on the verification results regardless of whether violations of the legislation on taxes and fees were identified or not, within 2 months from the date of drawing up a certificate of an on-site tax audit, authorized officials of tax authorities draw up tax audit report.

The tax audit act is signed by persons who carried out the relevant check, and the person in respect of whom this check was carried out (or his representative). On the refusal of the person in respect of whom the tax audit was carried out, or his representative to sign the act, a corresponding entry is made in the tax audit act.

Tax secret (Article 102 of the Tax Code of the Russian Federation)- any information about the taxpayer received by the tax authority, internal affairs bodies, investigative bodies, the body of the state extra-budgetary fund and the customs authority, with the exception of information:

1. that are publicly available, including those that have become such with the consent of their owner - the taxpayer;

2. on the taxpayer identification number;

3. on violations of the legislation on taxes and fees and measures of responsibility for these violations;

4. provided to tax (customs) or law enforcement agencies of other states, in accordance with international treaties (agreements);

5. information provided to election commissions in accordance with the electoral legislation based on the results of inspections by the tax authority on the size and sources of income of the candidate and his spouse, as well as on property owned by the candidate and his spouse.

Disclosure of tax secrets is, in particular, the use or transfer to another person of information constituting a trade secret (production secret) of a taxpayer and became known to an official of a tax authority, an internal affairs body, an investigative body, a state non-budgetary fund body or a customs body, a specialist or expert involved in the performance of their duties. It is not a disclosure of tax secrets that a tax authority provides a responsible member of a consolidated group of taxpayers with information about members of this group constituting a tax secret.

Received by the tax authorities, internal affairs bodies, investigative bodies, bodies of state extra-budgetary funds or customs authorities information constituting tax secrets, have a special storage and access mode. The loss of documents containing information constituting a tax secret, or the disclosure of such information entails liability provided for by federal laws.

Access to information, constituting a tax secret, in the state body to which such information was received in accordance with the legislation of the Russian Federation on combating corruption, have officials appointed by the head of this state body.

Considering the legal regime of tax secrets, we note that the regime for restricting access to information is established by Art. 9 ФЗ dated July 27, 2006 No. 149-ФЗ " About information, information technology and on the protection of information ”. Hence, legal regulation tax secrecy is carried out not only by the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation), where its definition is given, but also by the named Law. Clause 4 of Art. 9 of Law No. 149-FZ, tax secret is included in the concept of “other secret”, in respect of which the information confidentiality regime is applied. The named article also contains a blanket rule of law, according to which the conditions for classifying information as information constituting such a secret, the obligation to observe confidentiality in relation to it, as well as responsibility for its disclosure are established by federal laws.

The lists of officials who have access to information classified as tax secrets shall be established accordingly Federal Tax Service (FTS), Federal Customs Service (FCS) and the Ministry of Internal Affairs of Russia (clause 3 of article 102 of the Tax Code of the Russian Federation).

The procedure for access of state bodies, LSG bodies, organizations, authorized persons and other users to confidential information of tax authorities, constituting a tax secret, is established by order of the Ministry of Taxes and Duties. The named information is provided only on the basis of a request made in writing on forms established form, and sent by feldsvyaz, mail, couriers, couriers or in electronic format via telecommunication channels with the details allowing to identify the fact of the user's appeal to the tax authority. The signature of the official who has the right to send inquiries to the tax authorities is confirmed by the seal of the user's office.

SECRET TAX - tax secrets are any received by the tax authority, authorities tax police, the body of the state non-budgetary fund and the customs body, information about the taxpayer, with the exception of information: disclosed by the taxpayer independently or with his consent; taxpayer identification number; on violations of legislation on taxes and fees and measures of responsibility for these violations; provided to tax (customs) or law enforcement agencies of other states in accordance with international treaties (agreements), one of the parties to which is the Russian Federation, on mutual cooperation between tax (customs) or law enforcement agencies (in terms of information provided to these authorities). Tax secrets are not subject to disclosure by tax authorities, tax police, state extra-budgetary funds and customs authorities, their officials and hired specialists, experts, with the exception of cases provided for by federal law. Disclosure of tax secrets includes, in particular, the use or transfer to another person of industrial or commercial secrets of a taxpayer, which has become known to an official of a tax authority, tax police, state non-budgetary fund or customs authority, a specialist or expert involved in the performance of their duties. Information constituting a tax secret received by the tax authorities, tax police, state extra-budgetary funds or customs authorities has a special storage and access regime. The loss of documents containing information constituting a tax secret, or the disclosure of such information entails liability provided for by federal laws.

47. The concept and basis of tax liability. Place of tax and legal responsibility in the system of legal responsibility

Preventive measures and preventive measures applied to taxpayers in the financial sector, as a rule, precede the implementation of measures of financial and legal responsibility for committing tax violations, i.e., they are ahead of the implementation of financial sanctions, the imposition of administrative and disciplinary action, the application of criminal punishment.

The problem of legal liability in the field of taxation (liability for violations of tax legislation10) is currently very relevant and attracts the attention of both legal scholars "and economists.

tov12. Doesn't stay aloof from analysis and research judicial practice on the application of measures of financial responsibility and the Supreme Arbitration court Russian Federation 13. Of course, this topic does not leave indifferent the taxpayers themselves (individuals and legal entities).

The problem of liability for tax violations is complex and should be resolved through analysis and improvement of the current administrative, financial, criminal and civil legislation.

^ The basis for legal responsibility is an offense characterized by all the features characteristic of such a legal phenomenon (wrongfulness, guilt, the presence of a causal link between the illegal action and its immediate negative consequences, the punishability of an action or inaction).

The types of legal responsibility differ depending on the type and nature of the offense. Traditionally, in the theory of law, administrative, criminal, disciplinary, civil and material liability are distinguished.

A very important issue is the basis of liability in the tax area - in the case of a tax violation. Violations of tax legislation may serve as grounds for attracting an individual or legal entity to different types legal responsibility. Consequently, there is a system of legislative and other normative acts that establish the financial, administrative, criminal and disciplinary liability of taxpayers for tax violations committed by them:

The Law of the Russian Federation "On the Basics of the Tax System in the Russian Federation" dated December 27, 1991 "(with subsequent amendments and additions);

Law of the Russian Federation “On the State Tax Service of the Russian Federation” dated March 21, 199115 (with subsequent amendments and additions);

The RSFSR Code of Administrative Offenses;

The Criminal Code of the RSFSR;

The Customs Code of the Russian Federation of June 18, 1993 (contains more than 30 articles in which the legislator establishes responsibility for violations of the procedure for calculating and paying taxes, duties and fees).

In this area, there are also other laws on individual taxes, decrees of the President of the Russian Federation

tions, other bylaws containing clarifications on the application of sanctions and the procedure for the implementation of measures of legal responsibility for tax violations16.

According to the Law of the Russian Federation "On the Fundamentals of the Tax System in the Russian Federation", the basis for the liability of the taxpayer and the body of the State Tax Service is the offense committed by them, consisting in non-fulfillment or improper fulfillment by the taxpayer of obligations to the budget, or in violation of the rights of the body (officials) of the State Tax Service and interests of the taxpayer (clause 7, article 11).

Tax secrets are not subject to disclosure, with the exception of cases that are provided for by federal law (clause 2 of article 102 of the PC RF).

The legislator has provided for a limited mode of access to information constituting tax secrets by establishing an exhaustive list of entities that, by virtue of the law, have the right to apply to tax authorities for providing information constituting tax secrets for the purposes specified in the law. Officials have access to information constituting tax secrets in accordance with the approved lists. So, at present, the procedure for accessing confidential information of tax authorities, state bodies, local authorities, organizations, authorized persons and other users is carried out in accordance with the order of the Ministry of Taxes and Duties of Russia dated 03.03.2003 No. BG-3-28 / 96. The list of such persons is determined by federal laws, interdepartmental agreements and other acts named in the previous paragraph.

The practice of applying the norms of legislation on tax secrecy is quite complex and varied.

Thus, the provision by the tax authority of the relevant information to the investigating authorities is a legitimate interaction of the regulatory and law enforcement authorities within their competence and cannot be recognized as disclosing tax secrets (see Resolution of the Seventeenth Arbitration Court appellate court dated 19.07.2011 No. 17 AP-1737/201 l-AK).

However, requests that do not meet the established requirements in form and content are not subject to execution. For example, the request of the prosecutor's office must contain a justification for the specific purpose of obtaining information from the tax authority, determined by the subject of supervision and the powers of the prosecutor in accordance with the Federal Law "On the Prosecutor's Office of the Russian Federation". In the opinion of the Federal Tax Service of Russia, requests from the prosecution authorities for the provision of information and materials classified as confidential information by the legislation of the Russian Federation that do not contain justification at all or in fact without justification, in the opinion of the Federal Tax Service of Russia, should be left by the tax authorities without execution, as they do not comply with the specified Law, the Tax Code of the Russian Federation, the Federal the law "On information, information technologies and information protection", the Procedure for access to confidential information of tax authorities, approved by order of the Ministry of Taxes and Tax Collection of Russia dated 03.03.2003 No. BG-3-28 / 96. Such a decision should be made if the request is directed:

  • - to conduct an unidentified check (not to establish violations of certain persons and not in connection with the information received by the prosecutor's office about the facts of violation of laws requiring the prosecutor to take action);
  • - for planning and organizing supervisory activities;
  • - to analyze the state of legality or for other derivative requests.

Federal Law of November 21, 2011 No. 329-FZ "On Amendments to Certain legislative acts Of the Russian Federation in connection with the improvement government controlled in the field of combating corruption, the Law of the Russian Federation "On the tax authorities of the Russian Federation" was supplemented by article 7.1, which determines that the tax authorities, in accordance with the regulatory legal acts of the Russian Federation on combating corruption, present information they have about income, property and liabilities property nature at the request of heads and other officials of federal state bodies, the list of which is determined by the President of the Russian Federation, and top officials of the constituent entities of the Russian Federation (heads of the highest executive bodies of state power of the constituent entities of the Russian Federation).

The list of officials of federal state bodies authorized to request this information has not yet been determined by the President of the Russian Federation. Prior to the approval of the specified list by the President of the Russian Federation, the following should be followed.

According to the provisions of Art. 7.1 of the Law "On the Tax Authorities of the Russian Federation" information on income, property and liabilities of a property nature is submitted by tax authorities in accordance with the regulatory legal acts of the Russian Federation on combating corruption.

The category of these acts includes Federal Law No. 273-FZ of December 25, 2008 "On Combating Corruption", which stipulates that verification of the accuracy and completeness of information is carried out in the manner prescribed by the President of the Russian Federation (Article 8), and the Decree of the President of the Russian Federation of September 21. 2009 № 1065 "On verification of the accuracy and completeness of information submitted by citizens applying for positions in the federal public service, and federal civil servants, and compliance by federal civil servants with the requirements for official conduct."

The regulation on verifying the accuracy and completeness of information submitted by citizens applying for positions in the federal civil service and federal civil servants, and compliance by federal civil servants with the requirements for official conduct, approved by Decree No. 1065 dated 09.21.2009, provides that the right to send relevant requests are possessed only by the persons listed in the Regulation.

In accordance with clause 20 of the Regulation, the heads of state bodies and organizations to which the request was received are obliged to organize the execution of the request in accordance with federal laws and other regulatory legal acts of the Russian Federation and submit the requested information. Taking into account the above, during the audit in accordance with Decree No. 1065 dated September 21, 2009, the federal state body carrying out the audit has the right to access information constituting tax secrets. At the same time, the consent of the inspected person to provide this information in accordance with paragraph 2 of Art. 102 of the PC RF and Art. 7.1 of the Law "On the tax authorities of the Russian Federation" is not required.

Information received by state bodies in accordance with the legislation of the Russian Federation on combating corruption constitutes a tax secret. In this regard, the provisions of paragraph 6 of Art. 102 PK RF.

A similar position is reflected in the letters of the Ministry of Finance of Russia dated 25.07.2012 No. 03-02-07 / 2-107 and the Federal Tax Service of Russia dated 31.08.2012 No. ЕД-4-3 / 14509® "On the Submission of Information about the Taxpayer by the Tax Authorities".

In accordance with paragraph 7 of Art. 102 of the Tax Code of the Russian Federation, the provisions of this article regarding the prohibition on disclosure of information constituting tax secrets, requirements for a special regime for storing said information and access to it, liability for the loss of documents containing this information, or for disclosing such information apply to information on the size and sources of income of employees (their spouses and minor children) of organizations with state participation submitted to state bodies in accordance with the regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation. Access to the specified information constituting tax secrets in state bodies, which received such information in accordance with the regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, have officials designated by the heads of these state bodies.

The provisions of Art. 102 of the Tax Code of the Russian Federation in terms of determining the composition of information about taxpayers constituting a tax secret, a prohibition on disclosing said information, requirements for a special regime of storage and access to said information, as well as liability for the loss of documents containing this information, or the disclosure of such information applies to information on taxpayers received by organizations subordinate to the federal executive body authorized for control and supervision in the field of taxes and fees, which enter and process data on taxpayers, as well as on employees of these organizations.

In order to improve the organizational, technical and information support of the activities of the Federal Tax Service of Russia and its territorial bodies By order of the Government of the Russian Federation of December 21, 2011 No. 2293-r, a federal state institution "Tax-Service" of the Federal Tax Service of Russia was created, the subject and objectives of which are organizational, technical and information support for the activities of the Federal Border Service of Russia and its territorial bodies, as well as the implementation of additional professional education of federal state civil servants of the system of tax authorities of the Russian Federation. The main activities of FKU "Nalog-service" are as follows:

  • - centralized input of information from tax returns and accounting statements submitted by the taxpayer on paper and electronic media, as well as through telecommunication channels;
  • - centralized input of information from other documents submitted to the tax authorities on a planned basis, including in accordance with Art. 85 of the Tax Code of the Russian Federation;
  • - centralized entry of documents of variable structure (invoices, books of purchases / sales, bank statements), which are received by the tax authorities as a result of the reclamation procedure;
  • - centralized printing and (or) mass mailing to taxpayers tax documents on property taxes, including in electronic form via telecommunication channels;
  • - administration of technical, software and information support for automated information system FTS of Russia (LIS Tax);
  • - provision of Contact Center services, including analysis of user requests and updating information support for the Contact Center;
  • - centralized archival storage in paper and electronic form of documents received or generated as a result of the activities of tax authorities;
  • - formation of archival funds, accounting, storage of scientific and technical processing of archival documents formed as a result of the activities of tax authorities;
  • - provision of measures for the protection of information;
  • - provision of reference and bibliographic, methodological (methodological) services.

All these services are outsourced by the Federal Tax Service of Russia. Employees of FKU "Nalog-Service" do not have the status of a civil servant and are not employees of tax authorities. At the same time, by the nature of their activities, they often work with information constituting a tax secret. In this regard, paragraph 5 of Art. 102 of the Tax Code of the Russian Federation extends the provisions of Art. 102 of the Tax Code of the Russian Federation for information about taxpayers received by organizations subordinate to the federal executive body authorized for control and supervision in the field of taxes and fees, which enter and process data on taxpayers, as well as on employees of these organizations. It should be borne in mind that federal laws do not provide for the possibility of tax authorities submitting information classified by the Tax Code of the Russian Federation as tax secret:

  • - Plenipotentiaries of the President of the Russian Federation for federal districts(see letter of the Federal Tax Service of Russia dated 11.06.2009 No. MN-22-6 / [email protected]"On the provision of information");
  • - to the Ministry of Industry and Energy of the Russian Federation (for the purpose of preparing a report to the Government of the Russian Federation on the results of the implementation of production sharing agreements; see the letter of the Ministry of Finance of Russia dated 25.08.2009 No. 03-06-03-06 / 1);
  • - lawyers (see Determination of the Constitutional Court of the Russian Federation of 30.09.2004 No. 317-0 "On refusal to accept for consideration the complaint of citizen Alexander Ivanovich Lambin on violation of his constitutional rights by Article 102 of the Tax Code of the Russian Federation");
  • - to journalists (see letter of the Federal Tax Service of Russia dated 20.10.2011 No. PA-3-12 / 3437).

Complexity is the criterion of the motivation of the request. The fact is that all requests from the tax authority addressed to third parties (and vice versa) for the provision of information about the taxpayer must at the same time be motivated and meet the criteria of tax secrecy. And, accordingly, the permitted motivation of the request should be correlated with the observance of the tax secrecy regime and the safety of information about the taxpayer in relation to which the request is sent. So, for example, such a requirement is provided for when the tax authority requests banks in accordance with paragraph 2 of Art. 86 of the Tax Code of the Russian Federation of certificates on the presence of accounts in the bank, on the balances of funds in the accounts, data on transactions in the accounts of organizations ( individual entrepreneurs), data on electronic money balances and electronic money transfers.

However, according to judiciary, the content of the term "motivated" in the sense of paragraph 2 of Art. 86 of the Tax Code of the Russian Federation should be disclosed in a systemic connection with the provisions of clause 1 of Art. 102 of the Tax Code of the Russian Federation ("tax secret"). Any information about the specific content of the control activities cannot be contained in the reasoning for the request addressed to the bank, since it falls under the tax secret regime (Article 102 of the Tax Code of the Russian Federation), the disclosure of which is prohibited by law, including to banks. Consequently, the bank has no right to demand from the tax authority an additional decryption of the reasoning for the request.

There are also cases in which the disclosure of tax secrets is possible and not a violation. For example, the possibility of disclosing tax secrets is allowed, for example, in cases stipulated by the Federal Law "On Enforcement Proceedings" (see, for example,

Resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District dated 09.11.2009 No. А43-12945 / 2009-31-360).

When submitting information by the tax authority, these persons should be guided by the norms of clauses 8 and 9 of Art. 69 of the Federal Law "On Enforcement Proceedings" (letter of the Ministry of Finance of Russia dated November 26, 2008 No. 03-02-07 / 2-207).

Thus, but at the request of the bailiff-executor, the tax authority is also obliged to provide information about the current account indicated by the taxpayer in the application for VAT refund (see the resolution of the FAS of the North Caucasus District of 12/14/2010 on case No. A53-8277 / 2010) ...

  • - use or transfer to another person of trade secrets (the mention of this concept is excluded from paragraph 2 of clause 2 of article 102 of the PC RF);
  • - provision by the tax authority to the responsible member of the consolidated group of taxpayers of information about the members of this group constituting tax secrets (clause 2.1 of article 102 of the PC RF).

Tax secrets are not subject to disclosure, with the exception of cases provided for by federal law (clause 2 of article 102 of the Tax Code of the Russian Federation).

In accordance with the Tax Code of the Russian Federation the tax secrecy regime is removed:

  • - in relation to any information about the taxpayer from his written application for classifying information about him as publicly available;
  • - in relation to information about financial condition the debtor, from the date of publication in the media of information on declaring the debtor bankrupt and on the commencement of bankruptcy proceedings (Articles 126 and 128 of the Federal Law "On Insolvency (Bankruptcy)");
  • - in relation to the annual financial statements of joint-stock companies from the date of publication of the annual financial statements in the media (clause 1 of article 97 and clause 1 of article 103 of the Civil Code of the Russian Federation, clause 1 of article 48, clause 3 of article 88 and clause . 1 article 92 of the Federal Law of December 26, 1995 No. 208-FZ "On joint stock companies", letter of the Ministry of Finance of Russia dated 07.12.2007 No. 07-05-06 / 311);
  • - in a relationship annual reports and balance sheets of limited liability companies that publicly placed bonds and other equity securities after their publication (Article 49 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies"), as well as other disclosed information about their activities provided for federal laws and adopted in accordance with them regulations(Federal Law of 22.04.1996 No. 39-FZ "On the Market valuable papers");
  • - in relation to information on income, property and property obligations, as well as income, property and property obligations of their spouse and minor children (in the amount established by the legislation of the Russian Federation) from the date of posting on the information and telecommunications network Internet on official websites of federal state bodies, state bodies of the constituent entities of the Russian Federation, local self-government bodies, public corporations, The Pension Fund RF, Fund social insurance RF, Federal Fund obligatory health insurance, other organizations created by the Russian Federation on the basis of federal laws, or publication in the media (Article 8 of the Federal Law of December 25, 2008 No. 273-FZ "On Combating Corruption", Decree of the President of the Russian Federation of July 08, 2013 No. 613 "Issues of Counteraction corruption ");
  • - with regard to information on the size and sources of income of the candidate and his spouse, as well as on property owned by the candidate and his spouse, in the amount established by the legislation of the Russian Federation on elections, from the date of publication in the media (placement on the stands) ( Article 102 of the PC RF, clause 3 of Article 61 of the Federal Law of 12.06.2002 No. 67-FZ "On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation", Clause 5 of Article 39 of the Federal Law of 10.01. 2003 No. 19-FZ "On the elections of the President of the Russian Federation", clause 9 of article 44 of the Federal Law of 18.05.2005 No. 51-FZ "On the election of deputies of the State Duma of the Federal Assembly of the Russian Federation"),
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