Научная статья на тему 'PECULIARITIES OF DESK TAX AUDITS'

PECULIARITIES OF DESK TAX AUDITS Текст научной статьи по специальности «Экономика и бизнес»

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Ключевые слова
TAX CONTROL / DESK TAX AUDIT / TERM OF DESK TAX AUDIT / RIGHTS OF TAXPAYERS / TAX LITIGATIONS

Аннотация научной статьи по экономике и бизнесу, автор научной работы — Goncharov K.D., Pakkar A.A.

Significant growth of registered organizations in recent years causes the need of effective ongoing tax control by the relevant tax authorities. Current tax control in Russia Federation is performed in the form of desk tax audits. The article discusses the concept, focus and significance of a desk tax audit, the existing problems of current tax control in law enforcement practice are reflected.

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Предварительный просмотрDOI: 10.24412/2411-0450-2022-5-1-186-189
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Текст научной работы на тему «PECULIARITIES OF DESK TAX AUDITS»

PECULIARITIES OF DESK TAX AUDITS

K.D. Goncharov, Graduate Student A.A. Pakkar, Graduate Student Saint Petersburg State University (Russia, Saint Petersburg)

DOI:10.24412/2411-0450-2022-5-1-186-189

Abstract. Significant growth of registered organizations in recent years causes the need of effective ongoing tax control by the relevant tax authorities. Current tax control in Russia Federation is performed in the form of desk tax audits. The article discusses the concept, focus and significance of a desk tax audit, the existing problems of current tax control in law enforcement practice are reflected.

Keywords: tax control, desk tax audit, term of desk tax audit, rights of taxpayers, tax litigations.

Tax control in Russia is determined as the activity of authorized bodies to control the compliance with the legislation on taxes and fees in accordance with Tax Code of the Russian Federation (hereinafter - the Russian Tax Code) [1, 2]. Tax control is carried out by officials of the tax authorities within their competence by conducting tax audits, obtaining explanations and documents from taxpayers, tax agents and payers of fees, insurance premiums. Tax control is carried out in order to identify violations of tax laws and ensure the completeness of tax revenues.

Despite the existing mechanisms of law protection, at present there is still legal uncertainty related to the fact that the tax authorities miss the deadlines for the implementation of tax control. In this article issues regulatory and legal issues that in practice characterize the conduct of current tax control, carried out in the form of cameral tax audits, are discussed.

A desk audit is conducted by authorized officials of the tax authority in accordance with their official duties without any special permission from the head of the tax authority upon submission by the taxpayer of a tax return. At the same time, at the end of the audit, if the taxpayer does not violate the tax legislation, the tax authority does not notify the taxpayer, the audit act will not be sent to the taxpayer.

In accordance with paragraph 2 of art. 88 of the Russian Tax Code, if before the end of the desk tax audit of the documents available

to the tax authority, the taxpayer submits a revised tax return, the in-house audit is terminated and a new desk tax audit begins on the basis of the submitted revised declaration. This means that the tax authority terminates all verification activities in relation to the previous tax return (other information submitted), but this information can be used by the tax authority in process of exercising tax control over the taxpayer.

During conduction of a desk tax audit, the tax authority has the right to demand from the taxpayer the necessary explanations about transactions (property). The tax authority also has the right to demand from the taxpayer the necessary explanations if the taxpayer filed a revised tax return in which the amount of tax payable to the budget was reduced (paragraph 2, clause 3, article 88 of the Russian Tax Code).

General rules for the period of conducting a desk tax audit are defined in clause 3 of Art. 88 of the Russian Tax Code: the tax authority must carry out all verification activities within three months from the date of the tax return submission (calculation) by the taxpayer. At the same time, the Federal Tax Service of Russia clarifies that the three-month period for conducting a desk tax audit begins from the day the tax authority receives the tax return (calculation) [3]. If a tax return is submitted by a foreign entity registered on the basis of the provision of services in electronic form, the place of sale of which is the territory of the Russia (i.e. the organization is rec-

ognized as a taxpayer for value added tax -except for cases where the obligation to tax is assigned to a tax agent), a desk tax audit is conducted within six months from the date of a tax return submission by such entity.

As a general rule, abovementioned period includes the time (five days for each event) that is given to the taxpayer to provide relevant explanations when required by the tax authority:

- in case of detection of errors and inaccuracies in the tax return (calculation) (clause 3 of article 88 of the Russian Tax Code);

- when conducting a desk tax audit of a tax return in which the taxpayer declared the amount of the loss received in the relevant reporting (tax) period (paragraph 3, clause 3, article 88 of the Russian Tax Code);

- when a taxpayer conducts operations involving the use of tax benefits (clause 6, article 88 of the Russian Tax Code).

Upon completion of the desk tax audit procedures, the tax authority formalizes the results of the audit and makes a decision based on the results of consideration of the audit materials. According to the requirements established by paragraph 5 of Art. 100 of the Russian Tax Code, in case of violations of the Russian Tax legislation found during a desk audit by the tax authority, a tax audit act must be drawn up within 10 days. This act must be handed over to the person in respect of whom the audit was carried out within five days. The act may be handed over to the representative of the person against signature or transferred in another way, indicating the date of its receipt by the specified person (his representative). Written objections of the audited person in case of disagreement with the facts set forth in the audit report may be sent to them within one month from the date of receipt of the tax audit report.

Paragraph 2 p. 1 Art. 101 of the Russian Tax Code provides for additional measures prior to the issuance of a decision based on the results of consideration of desk tax audit materials. Written objections submitted by the audited person (his representative), as well as the act and other materials of the desk tax audit, during which violations of the Russian tax legislation were revealed, must be considered by the head (deputy head) of the tax authority.

At the same time, the term for consideration of tax audit materials and the issuance of an appropriate decision may be extended by one month.

Thus, in addition to the three months allotted, in accordance with the requirements of Art. 88 of the Tax Code of the Russian Federation, the period of a desk audit may be extended by at least 1 month, during which the person being audited has the right to submit written objections to the act of the audit conducted against him, then by 10 days, during which the head (deputy head) of the tax authority that conducted check, the act, the materials of the check and the submitted objections are considered, after which for another 1 month according to the general rule provided for in paragraph 1 of Art. 101 Tax Code of the Russian Federation.

According to the Federal Tax Service, set out in the letter of the Federal Tax Service of Russia from May 23, 2013 N AS-4-2/9355, violation of these deadlines in itself is not a significant violation of the procedure for reviewing audit materials and an unconditional basis for recognizing the decision of the tax authority, in accordance with the requirements of paragraph 2 p. 14 st. 101 of the Russian Tax Code. According to the requirements of this standard, the unconditional basis for cancellation of decision is a violation of essential conditions of the procedure for review of inspection materials:

1) ensuring the right of the audited taxpayer to participate in the process of consideration of tax audit materials;

2) ensuring the taxpayer's right to submit explanations.

The Federal Tax Service points out that, within the meaning of the provisions established by norms of Art. 101 of the Russian Tax Code, the observance by inspectors of the norms enshrined in this article is aimed at ensuring the rights and legitimate interests of the taxpayer, guaranteed to him when tax control measures are taken against him and the results are formalized. Thus, the repeated postponement of consideration of materials of the audit is associated with providing the taxpayer an opportunity to be acquainted with all the materials of the audit and participate in their consideration by the tax authority [4].

Nevertheless, the tax authorities often miss the three-month deadline established by the requirements of Article 88 of the Russian Tax Code, as a result the deadline is extended. At the same time, the tax authorities make appropriate decisions based on the results of these audits. From the taxpayers' perspective, this violates the deadline established by the Russian Tax Code for desk audit, which results in illegal additional charges of tax payments. The courts support the position of the tax authorities. In 2003, the Supreme Arbitration Court has explained that cameral audit beyond the period provided by Art. 88 of the Russian Tax Code itself cannot lead to refusal to satisfy the tax authorities to recover tax, penalties and fines.

Applying the norm of paragraph 2 of Art. 88 of the Russian Tax Code, according to the position of the Supreme Arbitration Court of the Russia, the fact that the period established by it is not restrictive and its expiration does not prevent the identification of facts of non-payment of tax and the adoption of measures, including its enforcement [5]. The judges note that the procedure for fixing the deadline for the end of a desk audit is not provided for by the Russian Tax Code, which is why the end of this period does not entail practical consequences, since this period is not specified in Art. 88 as a preventive and its consequences are not provided for by the Russian Tax Code. Thus, courts point out that its expiration does not prevent the identification of the facts of non-payment of tax and the adoption of measures, including its compulsory collection.

At the same time, arbitration courts recognize the fact that the mere violation of this term cannot lead to recognition of actions of tax authorities as invalid. Consequently, taxpayers cannot substantiate a violation of any rights and legitimate interests by the contested actions of tax authorities [6].

The authors support position of taxpayers in terms of violation of their legitimate interests by repeatedly postponing consideration of tax audit materials, because these violations are direct interference in the process of their business activities. These findings indicate a contradiction between the focus of the Federal Tax Service to protect the rights of taxpayers and their actual implementation in terms of providing an opportunity to familiarize taxpayers with the audit materials and their participation in the consideration of materials in the tax authority [7]. Thus, according to requirements of paragraph. 1 of Art. The head (deputy head) of the tax authority should consider 101 of the Russian Tax Code, the act and materials of tax audit in conjunction with objections submitted by taxpayer within 10 days from the date of expiry of period provided for the submission of written objections by taxpayer [8].

If the tax authority reveals violations of the requirements of the legislation on taxes and fees by the taxpayer, the act of a desk tax audit must be delivered to the auditee within five days from the date of the act. In case of impossibility of personal delivery of the act to the taxpayer, this act is sent to him by registered mail with a mark of receipt by the taxpayer along with notice of the time and place of consideration of materials of the audit [9]. At the same time, the Russian Tax Code does not provide for consequences of violation of this term by the tax authority or the postal service, which is responsible for the delivery of this information to the taxpayer. Violation of this term entails a reduction in the time legally allotted to the taxpayer by the provisions of paragraph. 6 of Article 100 of the Russian Tax Code.

The lack of liability stipulated in respect of tax authorities for missing the deadline for a desk audit is also a violation of the rights of taxpayers.

References

1. The Tax Code of Russian Federation (Part I): Federal law from July 31, 1998 N 146-FL // Collection of Russian legislation - 1998. - N 31. - art. 3824. - (am. from April 1, 2020).

2. The Tax Code of Russian Federation (Part II): Federal law from August 5, 2000 N 117-FL // Collection of Russian legislation - 2000. - N 32. - art. 3340. - (am. from April 1, 2020).

3. About tax audits [Electronic source]: Letter of Federal Tax service of Russia from September 13, 2012 N AC-4-2/15309@ // Legal reference system "Consultant Plus". - URL: http://www.consultant.ru/ (18 May, 2022).

4. About tax control events [Electronic source]: Letter of Federal Tax service of Russia from May 23, 2013 N AC-4-2/9355 // Legal reference system "Consultant Plus". - URL: http://www.consultant.ru/ (18 May, 2022).

5. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation from March 17, 2003 N 71 [Electronic source]: Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2003. - N 5.

6. Resolution of the Ninth Arbitration Court of Appeal from July 25, 2013 in case N 09An-21611/2013 [Electronic source] // Arbitration files. - URL: https://kad.arbitr.ru/ (May 18, 2022).

7. Saprykina I.A. Legal facts mediating tax procedural relations // Financial law. - 2012. -N 12.

8. About recommendations on field tax audits conduction [Electronic source]: Letter of Federal Tax service of Russia from July 25, 2013 N AC-4-2/13622 // Legal reference system "Consultant Plus". - URL: http://www.consultant.ru/ (18 May, 2022).

9. Imyshkenova E.A. Taxes and fees: some classification issues // Nalogoved. - 2006. - N 9. - P. 2-5.

ОСОБЕННОСТИ КАМЕРАЛЬНЫХ НАЛОГОВЫХ ПРОВЕРОК

К.Д. Гончаров, магистрант А.А. Паккарь, магистрант

Санкт-Петербургский государственный университет (Россия, г. Санкт-Петербург)

Аннотация. Существенный рост числа зарегистрированных организаций в последние годы обусловливает необходимость эффективного текущего налогового контроля со стороны соответствующих налоговых органов. Текущий налоговый контроль в Российской Федерации осуществляется в форме камеральной налоговой проверки. В статье анализируются понятие, направленность и значение камеральной налоговой проверки, отражаются существующие проблемы текущего налогового контроля в правоприменительной практике.

Ключевые слова: налоговый контроль, камеральная налоговая проверка, срок камеральной проверки, права налогоплательщиков, налоговые споры.

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