7 Article 101.4 of the Tax Code of the Russian Federation. An exception

1. If facts are discovered indicating violations of the legislation on taxes and fees, liability for which is established by this Code (with the exception of tax offenses, cases of detection of which are considered in the manner established by article of this Code), an official of the tax authority within 10 days from day of detection of the specified violation must be drawn up in in the prescribed form an act signed by this official and the person who committed such a violation. The refusal of a person who has committed a violation of the legislation on taxes and fees to sign the act is made by a corresponding entry in this act.

2. The act must indicate documented facts of violation of the legislation on taxes and fees, as well as the conclusions and proposals of the official who discovered the facts of violation of the legislation on taxes and fees, to eliminate the identified violations and apply tax sanctions.

3. The form of the act and the requirements for its preparation are established federal body executive power, authorized for control and supervision in the field of taxes and fees.

4. The act is handed over to the person who committed the tax offense against a receipt or transferred in another way indicating the date of its receipt. If the specified person evades receiving the specified act, the tax authority official makes a corresponding note in the act and the act is sent to this person by mail by registered mail. If the specified act is sent by registered mail, the date of delivery of this act is considered to be the sixth day counting from the date of its sending.

5. A person who has committed a tax offense has the right, in case of disagreement with the facts set out in the act, as well as with the conclusions and proposals of the official who discovered the fact of a tax offense, to submit written objections to the act to the relevant tax authority within one month from the date of receipt of the act in general or according to its individual provisions. In this case, the specified person has the right to attach to written objections or, within the agreed period, submit to the tax authority documents (their certified copies) confirming the validity of the objections.

6. Upon expiration of the period specified in paragraph 5 of this article, within 10 days, the head (deputy head) of the tax authority reviews the act, which records facts of violation of the legislation on taxes and fees, as well as documents and materials submitted by the person who committed the tax offense.

7. The act is considered in the presence of the person held accountable or his representative. The tax authority shall notify the person who has committed a violation of the legislation on taxes and fees in advance of the time and place of consideration of the act. The failure of a duly notified person held accountable for committing a tax offense, or his representative, does not deprive the head (deputy head) of the tax authority of the opportunity to consider the act in the absence of this person.

When considering the act, the drafted act and other materials of the events may be read out. tax control, as well as written objections of the person held accountable for committing a tax offense. The absence of written objections does not deprive this person of the right to give his explanations at the stage of consideration of the act.

When considering the act, explanations of the person held accountable are heard and other evidence is examined. It is not permitted to use evidence obtained in violation of this Code, as well as evidence obtained from a special declaration submitted in accordance with the Federal Law "On Voluntary Declaration" individuals assets and accounts (deposits) in banks and on making changes to individual legislative acts Russian Federation", and (or) documents and (or) information attached thereto. If the documents (information) were submitted by the person held accountable to the tax authority in violation of the deadlines established by this Code, then the received documents (information) will not be considered received in violation of this Code.

When reviewing materials tax audit A protocol is being kept.

During the consideration of the act and other materials of tax control activities, a decision may be made to attract, if necessary, a witness, expert, or specialist to participate in this consideration.

During the consideration of the act and other materials, the head (deputy head) of the tax authority:

1) establishes whether the person in respect of whom the act was drawn up committed violations of the legislation on taxes and fees;

2) establishes whether the identified violations constitute tax offenses contained in this Code;

3) establishes whether there are grounds for holding the person in respect of whom the act was drawn up liable for committing a tax offense;

4) identifies circumstances that exclude a person’s guilt in committing a tax offense, or circumstances that mitigate or aggravate responsibility for committing a tax offense.

8. Based on the results of consideration of the act and the documents and materials attached to it, the head (deputy head) of the tax authority makes a decision within the period provided for in paragraph 6 of this article:

1) on bringing a person to justice for a tax offense;

2) refusal to hold a person accountable for a tax offense.

9. The decision to hold a person accountable for a tax offense sets out the circumstances of the offense committed, indicates documents and other information that confirm these circumstances, the arguments brought by the person held accountable in his defense, and the results of checking these arguments, the decision to bring persons to liability for specific tax offenses, indicating the articles of this Code providing for liability for these offenses, and the penalties applied.

The decision to bring to responsibility for committing a tax offense indicates the period during which the person in respect of whom the specified decision was made has the right to appeal this decision, the procedure for appealing the decision to a higher tax authority, and also indicates the name of the body, its location, and other necessary intelligence.

10. Based on the decision made to hold a person accountable for a tax offense (on the refusal to hold a person accountable for a tax offense) to this person tax authority who has identified the relevant offense, is sent a demand for payment (transfer) of tax (fees, insurance contributions), penalties and fines in the manner and within the time limits established by articles , , and of this Code, unless otherwise provided by this article.

11. Lost power. - the federal law dated July 23, 2013 N 248-FZ.

12. Failure by officials of tax authorities to comply with the requirements established by this Code may be grounds for the cancellation of a tax authority’s decision by a higher tax authority or court.

Violation of the essential conditions of the procedure for considering the act and other materials of tax control measures is grounds for the cancellation of the decision of the tax authority by a higher tax authority or court. Such essential conditions include ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the process of considering materials personally and (or) through his representative and ensuring the opportunity for this person to provide explanations.

Grounds for canceling a tax authority's decision by a higher tax authority or court may be other violations of the procedure for considering materials, if only such violations led or could lead to the adoption of an incorrect decision.

13. Based on violations of the legislation on taxes and fees identified by the tax authority, for which persons are subject to administrative liability, an authorized official of the tax authority draws up a protocol on administrative offense. The consideration of cases of these offenses and the application of administrative sanctions against persons guilty of committing them are carried out by tax authorities in accordance with the legislation of the Russian Federation on administrative offenses.

Judicial practice under Article 101.4 of the Tax Code of the Russian Federation

Determination of the Constitutional Court of the Russian Federation dated July 17, 2018 N 1683-O

SECOND OF POINT 7 OF ARTICLE 101.4 OF THE RUSSIAN TAX CODE

FEDERATION, AND ALSO PART OF THE FIRST ARTICLE 6 OF THE FEDERAL

LAW "ON OPERATIVE-SEARCH ACTIVITIES"

The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,

Ruling of the Supreme Court of the Russian Federation dated October 23, 2018 N 301-KG18-16434 in case N A29-12698/2017

Guided by articles , 101.4 , , , , , , , Tax Code of the Russian Federation, article 855 Civil Code Russian Federation, Regulations on the procedure for sending to the bank individual documents tax authorities, as well as sending the bank to the tax authority of individual bank documents in electronic form in cases provided for by the legislation of the Russian Federation on taxes and fees, approved Central Bank Russian Federation 06.11.2014 N 440-P, taking into account the explanations contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.07.2013 N "On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation", the courts came to the conclusion that there are no grounds for declaring the appealed decisions of the tax authorities illegal.

Ruling of the Supreme Court of the Russian Federation dated July 23, 2018 N 305-KG18-9859 in case N A40-76129/2017

Having examined the circumstances of the case and assessed the available evidence in accordance with Articles 65, 71, 198, 200, 201 of the Arbitration Procedural Code of the Russian Federation, guided by Articles 101.4 of the Tax Code of the Russian Federation, the courts found the decision of the tax authority legal and justified, made in compliance with the established law procedures.

Ruling of the Supreme Court of the Russian Federation dated June 14, 2019 N 305-ES19-8251 in case N A40-115668/18-20-3515

In refusing to satisfy the demands, the courts were guided by articles 93.1, 101.4, 135.1 of the Tax Code of the Russian Federation, the provisions of the Federal Law of December 2, 1990 N 395-1 “On Banks and banking"and proceeded from the legality of the inspectorate’s actions in requesting documents and information from the bank regarding the activities of Ermakovich I.N., did not establish significant violations of the terms of the procedure for considering tax audit materials and came to the conclusion that the bank was lawfully brought to tax liability, in connection with which it was recognized the challenged decision of the inspectorate is legal and justified.

Determination of the Constitutional Court of the Russian Federation dated April 20, 2017 N 790-O

In turn, a violation by a tax authority of the deadlines for considering tax audit materials does not prevent it from making one or another final decision and cannot in itself predetermine its legality, which does not allow such a procedural violation to be recognized as an unconditional basis for canceling the final decision of the tax authority on within the meaning of paragraph 14 of article

The procedure occurs in accordance with a certain order. According to Art. 100.1 of the Tax Code of the Russian Federation allows two different procedures for considering cases of tax offenses:

Cases of tax offenses identified during a desk or field tax audit are considered in the manner prescribed by Art. 101 Tax Code of the Russian Federation;

Cases of tax offenses identified during other tax control activities (with the exception of offenses provided for in Articles 120, 122 and 123 of the Tax Code of the Russian Federation) are considered in the manner prescribed by Art. 101.4 Tax Code of the Russian Federation.

Thus, it is possible to identify elements of tax offenses that can be detected exclusively as a result of tax audits and the proceedings for which take place strictly in accordance with Art. 101 Tax Code of the Russian Federation:

Gross violation of the rules for accounting for income and expenses and objects of taxation - Art. 120 Tax Code of the Russian Federation;

Non-payment or incomplete payment of tax (fee) - Art. 122 Tax Code of the Russian Federation;

Failure of a tax agent to fulfill the obligation to withhold and (or) transfer taxes - Art. 123 Tax Code of the Russian Federation.

Proceedings for all other types of tax offenses are possible in accordance with the procedure established by Art. 101.4 of the Tax Code of the Russian Federation, and in accordance with Art. 101 Tax Code of the Russian Federation. This issue is not very clearly regulated in the law, which cannot be considered correct.

The procedure for the proceedings will be determined by the type of control measures during which signs of an offense were identified (tax audits or other tax control measures).

As rightly noted by A.N. Borisov, when brought to tax liability in accordance with Art. 101.4 of the Tax Code of the Russian Federation “it does not matter whether the person who committed a tax offense is a taxpayer, a fee payer, a tax agent or not.”

Thus, bringing to tax liability in accordance with Art. 101.4 of the Tax Code of the Russian Federation does not depend on legal status the person involved. It is only necessary to note that persons who have a different status are brought to tax liability exclusively in the manner established by Art. 101.4 Tax Code of the Russian Federation.

These are, in particular, specialists, experts, witnesses, translators. Of course, this rule applies if these persons are held accountable for offenses against witnesses, specialists, experts, and translators.

According to the team of authors led by Professor A.A. Yalbulganov, production procedures established in Art. 101 of the Tax Code of the Russian Federation and Art. 101.4 of the Tax Code of the Russian Federation, differ not so much in essential parameters as in formal ones.

Bringing to tax liability in accordance with Art. 101.4 of the Tax Code of the Russian Federation, as a rule, occurs when there is no need to conduct a tax audit to identify a tax offense committed. In particular, if there are signs of the following offenses:

Violation of the deadline for registration with the tax authority - Art. 116 Tax Code of the Russian Federation;

Evasion of registration with the tax authority - Art. 117 Tax Code of the Russian Federation;

Violation of the deadline for submitting information about opening and closing a bank account - Art. 118 Tax Code of the Russian Federation;

Failure to comply with the procedure for possession, use and (or) disposal of property that has been seized - Art. 125 Tax Code of the Russian Federation;

Failure to provide the tax authority with information necessary for tax control - Art. 126 Tax Code of the Russian Federation;

Violation of the procedure for registering objects gambling business- Art. 129.2 Tax Code of the Russian Federation.

In addition, in the manner established by Art. 101.4 of the Tax Code of the Russian Federation, an act is drawn up by the tax authority for offenses committed by special entities within the framework of tax relations:

Responsibility of a witness - Art. 128 Tax Code of the Russian Federation;

Responsibility of the expert, translator and specialist - Art. 129 Tax Code of the Russian Federation;

Responsibility of the bank - Ch. 18 Tax Code of the Russian Federation.

Bringing banks, as special entities, to liability is possible in the manner prescribed by Art. 101 of the Tax Code of the Russian Federation, if relevant offenses are revealed as a result of tax audits of banks.

Articles 101 and 101.4 of the Tax Code of the Russian Federation establish the procedure for considering a case of a tax offense. Consideration of a case of a tax offense in violation of the established procedure will become an independent basis for declaring the decision made to bring to tax liability illegal.

“The cassation court supports the conclusions of the courts of first and appellate instances that the proceedings in the case of a tax offense, expressed in the failure to submit documents necessary for carrying out desk audit, must be carried out in accordance with Art. 100.1 of the Tax Code of the Russian Federation, and not in accordance with Art. 101.4 of the Tax Code of the Russian Federation.

At the same time, the cassation court considers correct the opinion of the appellate court that the procedural violation committed by the tax authority is the basis for declaring the contested decision invalid.

Clause 14 of Art. 101, paragraph 12 of Art. 101.4 of the Tax Code of the Russian Federation stipulates that violation of the essential conditions of the procedure for considering tax audit materials is grounds for the cancellation by a higher tax authority or court of the tax authority’s decision to bring the person to justice for committing a tax offense.

From the case materials it follows that the tax authority, in accordance with Art. 101.4 of the Tax Code of the Russian Federation adopted the contested decision four months after the event of the tax offense - the expiration of the period specified in the requirements for the provision of documents. At the same time, in the case materials there is no evidence of other tax control measures that would allow the application of Art. 101.4 of the Tax Code of the Russian Federation, during which the Inspectorate discovered facts about the commission of a tax offense.

In addition, in violation of paragraph 12 of Art. 101.4 of the Tax Code of the Russian Federation, the tax authority did not ensure the opportunity for the person in respect of whom the act was drawn up to participate in the process of considering materials personally and (or) through his representative and ensuring the opportunity for this person to provide explanations."

Article 101 of the Tax Code of the Russian Federation regulates in more detail the procedure for considering cases of tax offenses discovered by the tax authority during an on-site (desk) tax audit. In production in accordance with Art. 101.4 of the Tax Code of the Russian Federation, tax authorities are deprived of certain powers in comparison with the powers specified in Art. 101 Tax Code of the Russian Federation:

Art. 101.4 of the Tax Code of the Russian Federation does not allow the tax authority to appoint additional tax control measures;

Art. 101.4 of the Tax Code of the Russian Federation does not provide for the right of the tax authority to postpone consideration of the act of committing a tax offense and the attached materials and documents;

Art. 101.4 of the Tax Code of the Russian Federation does not contain the right tax service apply interim measures to enforce the decision made to bring to tax liability.

According to paragraph 1 of Art. 101.4 of the Tax Code of the Russian Federation, when signs of a tax offense are detected, an official of the tax authority must draw up an act in the prescribed form, signed by this official and the person who committed such a tax offense.

The taxpayer has the right to refuse to sign the document drawn up. Drawing up a tax violation act marks the beginning of bringing to tax liability. It is necessary to distinguish between an act drawn up in accordance with the rules of Art. 101.4 of the Tax Code of the Russian Federation, and a tax audit report drawn up in accordance with the provisions of Art. 101 Tax Code of the Russian Federation.

The fact of committing a tax offense is established by the head (deputy) of the tax authority in the process of considering the act, other materials and documents according to the rules of Art. 101.4 Tax Code of the Russian Federation.

“During the consideration of the act and other materials, the head (deputy head) of the tax authority:

1) establishes whether the person in respect of whom the act was drawn up committed violations of the legislation on taxes and fees;

2) establishes whether the identified violations constitute tax offenses contained in this Code;

3) establishes whether there are grounds for holding the person in respect of whom the act was drawn up liable for committing a tax offense;

4) reveals circumstances that exclude a person’s guilt in committing a tax offense, or circumstances that mitigate or aggravate responsibility for committing a tax offense,” - clause 7 of Article 101.4 of the Tax Code of the Russian Federation.

Identification of signs of any tax offense occurs in the process of implementing tax control measures, which are a form of implementation of tax control. In accordance with paragraph 1 of Art. 82 of the Tax Code of the Russian Federation: “Tax control is carried out by officials of tax authorities within their competence through tax audits, obtaining explanations from taxpayers, tax agents and payers of the fee, verification of accounting and reporting data, inspection of premises and territories used to generate income (profit), as well as in other forms provided for by this Code."

Analysis of paragraph 1 of Art. 101.4 of the Tax Code of the Russian Federation and clause 1 of Art. 82 of the Tax Code of the Russian Federation allows us to draw the following conclusions:

Detection of signs of a tax offense is possible only within the framework of tax control activities carried out by the tax service;

Tax service employees who conduct control activities, who are obliged to draw up an act.

Violation of these requirements will be grounds for the court to declare the decision to impose tax liability illegal. It should be noted that the decision made in accordance with Art. 101.4 of the Tax Code of the Russian Federation, is not subject to appeal, i.e. It is possible to immediately go to court.

“...the basis for the application of Article 101.4 of the Code is the independent identification by the tax authority of the facts of the commission of tax offenses by the taxpayer and recording it in the act.

In the case under consideration, the courts of first and appellate instances found that the Company’s failure to submit a tax return single tax on imputed income for individual species activities for the fourth quarter of 2005 was discovered by employees of a higher tax authority - Interregional Inspectorate of the Federal Tax Service for the largest taxpayers No. 8 during an on-site tax audit of the Company conducted for the period from 01.01.2004 to 31.12.2005.

In accordance with the procedure established in Art. 101 of the Tax Code of the Russian Federation, decision dated November 8, 2007 N 13-12/01, the Interregional Inspectorate of the Federal Tax Service for the largest taxpayers N 8 reflected that the Company during 2004, 2005. did not submit tax returns for the single tax on imputed income. The Company submitted these declarations on 10/05/2007 and paid tax and penalties according to them to the budget, in connection with which it was refused to bring Avtodizel OJSC to tax liability.

The courts also established that the Inspectorate did not verify the tax return submitted by the taxpayer for the single tax on imputed income for the fourth quarter of 2005 or other tax control measures provided for by the Tax Code of the Russian Federation. The contested decision was made by the Inspectorate on 02/01/2008, that is, after on-site inspection, conducted by the Interregional Inspectorate of the Federal Tax Service for the largest taxpayers No. 8.

Taking into account the above, the courts came to the correct conclusion that the Inspectorate did not have legal grounds for making the decision in accordance with Art. 101.4 of the Tax Code of the Russian Federation of the contested decision to bring the Company to tax liability under clause 2 of Art. 119 of the Code. Current legislation There is no provision for the possibility of making two decisions on the same tax offense.

Under such circumstances, the courts rightfully satisfied the stated requirement and recognized invalid decision Inspections dated 02/01/2008 N 889".

The form of the tax violation act and the requirements for its preparation are established by the federal executive body authorized for control and supervision in the field of taxes and fees - clause 3 of Art. 101.4 Tax Code of the Russian Federation. The form of the act and the Requirements for its execution are approved by Order of the Federal Tax Service of Russia dated December 13, 2006 N SAE-3-06/860@.

Article 101.4 of the Tax Code of the Russian Federation does not establish a period within which an act on a tax offense must be drawn up. On the day signs of an offense were discovered or at another time? The Russian Ministry of Finance spoke on this matter. In a letter dated January 22, 2009 N 03-02-08-7, the financiers came to the conclusion that if clause 1 of Art. 101.4 of the Tax Code of the Russian Federation, the deadline for drawing up the act is determined by the event of discovery of facts indicating tax violations, then it must be drawn up no later than one working day from the moment of their discovery. It seems that this period should be established in law.

Article 101.4 of the Tax Code of the Russian Federation does not establish a period during which the act must be delivered to the taxpayer. Clause 4 of Art. 101.4 of the Tax Code of the Russian Federation only indicates that in case of evasion of receiving the act, the tax authority sends the act by mail. If the specified act is sent by registered mail, the date of delivery of this act is considered to be the sixth day counting from the date of its sending.

Article 101.4 of the Tax Code of the Russian Federation also does not establish a special period after which the decision of the tax authority is considered to have entered into force. This allows us to conclude that the decision made in accordance with Art. 101.4 of the Tax Code of the Russian Federation, comes into force at the time of adoption.

Based on the results of consideration of the act and the documents and materials attached to it, the head (deputy head) of the tax authority makes a decision:

On bringing a person to justice for a tax offense;

On refusal to hold a person accountable for a tax offense.

According to paragraph 11 of Art. 101.4 of the Tax Code of the Russian Federation, copies of the decision are handed over to the taxpayer or transferred in another way indicating the date of their receipt by this person (his representative), but the law again does not establish a deadline for transferring the decision to the taxpayer.

According to paragraph 12 of Art. 101.4 Tax Code of the Russian Federation decision subject to cancellation in the following cases:

Failure of tax officials to comply with the requirements established by the Tax Code of the Russian Federation;

Violation of the essential conditions of the procedure for considering the act and other materials of tax control measures;

Other violations of the procedure for considering materials, unless such violations led or could lead to the adoption of an incorrect decision.

The essential conditions for the procedure for considering an act and other materials of tax control measures by law include:

Ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the process of reviewing materials personally and (or) through his representative;

Enabling to this person present your explanations.

The person held accountable has the right to provide explanations in writing or orally. Explanations represent objections to the act as a whole or to its individual provisions and are one of the types of evidence in the case.

Written objections and documents attached to them can be submitted by the taxpayer within 10 days from the date of receipt of the act - clause 5 of Art. 101.4 of the Tax Code of the Russian Federation, violation of this deadline will not be an obstacle to the inclusion of these documents in the case materials - clause 7 of Art. 101.4 Tax Code of the Russian Federation.

When considering the act, explanations of the person held accountable are heard and other evidence is examined. The use of evidence obtained in violation of the Tax Code of the Russian Federation is not allowed - this provision was introduced on January 1, 2009 and is aimed at protecting the interests of the person held accountable.

Based on the decision made to bring tax liability to the offender, a demand is sent to pay penalties and fines - clause 10 of Art. 101.4 Tax Code of the Russian Federation. The decision to bring to tax liability (to refuse to bring to tax liability), made in accordance with Art. 101.4 of the Tax Code of the Russian Federation, is not subject to mandatory pre-trial (appeal) appeal to a higher tax authority.

The decision to bring to responsibility for committing a tax offense indicates the period during which the person in respect of whom the specified decision was made has the right to appeal this decision, the procedure for appealing the decision to a higher tax authority (to a higher official), and also indicates the name of the body, place its location and other necessary information.

The procedure for bringing to tax liability in accordance with Art. 101.4 of the Tax Code of the Russian Federation is a mechanism that allows tax authorities to more quickly compared to the procedure established by Art. 101 of the Tax Code of the Russian Federation, initiate and consider cases of tax offenses committed in the tax sphere.

At the same time, it is necessary to regulate some procedural issues in more detail. So, in particular, in Art. 101.4 of the Tax Code of the Russian Federation should clearly establish:

Deadline for drawing up a tax violation report;

Deadline for delivery of the completed tax violation report;

The term and procedure for the entry into force of a decision made in accordance with Art. 101.4 Tax Code of the Russian Federation;

The procedure for appealing adopted in accordance with Art. 101.4 Tax Code of the Russian Federation decisions.

New edition of Art. 101.4 Tax Code of the Russian Federation

1. If facts are discovered indicating violations of the legislation on taxes and fees, liability for which is established by this Code (with the exception of tax offenses, cases of detection of which are considered in the manner established by Article 101 of this Code), an official of the tax authority within 10 days from the date of detection of the specified violation, an act must be drawn up in the prescribed form, signed by this official and the person who committed such a violation. The refusal of a person who has committed a violation of the legislation on taxes and fees to sign the act is made by a corresponding entry in this act.

2. The act must indicate documented facts of violation of the legislation on taxes and fees, as well as the conclusions and proposals of the official who discovered the facts of violation of the legislation on taxes and fees to eliminate the identified violations and apply tax sanctions.

3. The form of the act and the requirements for its preparation are established by the federal executive body authorized for control and supervision in the field of taxes and fees.

4. The act is handed over to the person who committed the tax offense against a receipt or transferred in another way indicating the date of its receipt. If the specified person evades receiving the specified act, the tax authority official makes a corresponding note in the act and the act is sent to this person by registered mail. If the specified act is sent by registered mail, the date of delivery of this act is considered to be the sixth day counting from the date of its sending.

6. After the expiration of the period specified in paragraph 5 of this article, within 10 days the head (deputy head) of the tax authority considers the act which records facts of violation of the legislation on taxes and fees, as well as documents and materials submitted by the person who committed the tax offense .

When considering the act, explanations of the person held accountable are heard and other evidence is examined. It is not permitted to use evidence obtained in violation of this Code, as well as evidence obtained from a special declaration submitted in accordance with the Federal Law "On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation ", and (or) documents and (or) information attached to it. If documents (information) were submitted by the person held accountable to the tax authority in violation of the deadlines established by this Code, then the received documents (information) will not be considered received in violation of this Code.

When reviewing tax audit materials, a protocol is kept.

2) establishes whether the identified violations constitute tax offenses contained in this Code;

10. Based on a decision made to hold a person accountable for a tax offense (refusal to hold a person accountable for a tax offence), the tax authority that identified the relevant offense sends a demand to this person to pay (transfer) a tax (fee, insurance premiums) , penalties and fines in the manner and within the time limits established by Articles 60, 69 and 70 of this Code, unless otherwise provided by this article.

11. Lost power.

13. Based on violations of the legislation on taxes and fees identified by the tax authority, for which persons are subject to administrative liability, an authorized official of the tax authority draws up a protocol on the administrative offense. The consideration of cases of these offenses and the application of administrative sanctions against persons guilty of committing them are carried out by tax authorities in accordance with the legislation of the Russian Federation on administrative offenses.

Commentary on Article 101.4 of the Tax Code of the Russian Federation

In accordance with paragraph 1 of Art. 101.4 of the Tax Code of the Russian Federation, upon discovery of facts indicating tax offenses provided for by the Code (with the exception of tax offenses provided for in Articles 120, 122 and), an official of the tax authority must draw up in the prescribed form an Act signed by this official and the person who committed such a tax violation. A corresponding entry is made in this act regarding the refusal of the person who committed a tax offense to sign the act.

The procedure for drawing up such an act is somewhat different from the procedure for drawing up acts drawn up based on the results of desk and field tax audits, for example, there is no clear fixed time drawing up such an act.

Example. On February 8, 2007, the taxpayer submitted an application to the tax authority to open a bank account, in violation of the deadline established. The specified violation was detected by a tax authority employee processing and entering into Information Systems tax authorities, applications for opening (closing) bank accounts.

Since this violation was detected outside the framework of a desk or field tax audit, the report must be drawn up in accordance with Art. 101.4 of the Tax Code of the Russian Federation, that is, without limiting the timing of drawing up the act.

In paragraph 2 of Art. 101.4 of the Tax Code of the Russian Federation establishes how information should be reflected in the act, namely:

Documented facts of violation of legislation on taxes and fees;

Conclusions and proposals of the official who discovered facts of violation of the legislation on taxes and fees, to eliminate the identified violations and apply sanctions for tax violations.

In paragraph 3 of Art. 101.4 of the Tax Code of the Russian Federation establishes that the form of the act and the requirements for its preparation are established by the federal executive body authorized for control and supervision in the field of taxes and fees.

Clause 4 of Art. 101.4 of the Tax Code of the Russian Federation establishes that the act is handed over to the person who committed the tax offense against a receipt or transferred in another way indicating the date of its receipt. If the specified person evades receiving the specified act, the tax authority official makes a corresponding note in the act and the act is sent to this person by registered mail. If the specified act is sent by registered mail, the date of delivery of this act is considered to be the sixth day counting from the date of its sending.

In paragraph 5 of Art. 101.4 of the Tax Code of the Russian Federation establishes a mechanism for submitting objections to an act drawn up based on the results of other tax control measures other than tax audits. It is similar to the procedure for submitting objections to acts of on-site and desk tax audits established in paragraph 6 of Art. 100 of the Tax Code of the Russian Federation, with the exception that the period for submitting objections is 10 days (instead of 15 days established in paragraph 6 of Article 100 of the Tax Code of the Russian Federation).

In paragraph 6 of Art. 101.4 of the Tax Code of the Russian Federation established that after the expiration of the period specified in clause 5 of Art. 101.4 of the Tax Code of the Russian Federation, within 10 days the head (deputy head) of the tax authority reviews the act, which records facts of violation of the legislation on taxes and fees, as well as documents and materials submitted by the person who committed the tax offense.

Clause 7 of Art. 101.4 of the Tax Code of the Russian Federation regulates the procedure for considering an act drawn up based on the results of other tax control measures other than tax audits.

Thus, it is established that the act is considered in the presence of the person held accountable or his representative. The tax authority shall notify the person who has committed a violation of the legislation on taxes and fees in advance of the time and place of consideration of the act. The failure of a duly notified person held accountable for committing a tax offense, or his representative, does not deprive the head (deputy head) of the tax authority of the opportunity to consider the act in the absence of this person.

When considering the act, the drafted act, other materials of tax control measures, as well as written objections of the person held accountable for committing a tax offense may be disclosed. The absence of written objections does not deprive this person of the right to give his explanations at the stage of consideration of the act.

When considering the act, explanations of the person held accountable are heard and other evidence is examined.

During the consideration of the act and other materials, the head (deputy head) of the tax authority:

1) establishes whether the person in respect of whom the act was drawn up committed violations of the legislation on taxes and fees;

2) establishes whether the identified violations constitute tax offenses contained in the Tax Code of the Russian Federation;

3) establishes whether there are grounds for holding the person in respect of whom the act was drawn up liable for committing a tax offense;

4) identifies circumstances that exclude a person’s guilt in committing a tax offense, or circumstances that mitigate or aggravate responsibility for committing a tax offense.

Thus, the procedure for considering an act drawn up based on the results of other tax control measures other than tax audits is essentially similar to the procedure for considering acts drawn up based on the results of tax audits, which is established in paragraphs 4 - 5 of Art. 101 Tax Code of the Russian Federation.

In paragraph 8 of Art. 101.4 of the Tax Code of the Russian Federation establishes that based on the results of consideration of the act and the documents and materials attached to it, the head (deputy head) of the tax authority makes a decision:

1) on bringing a person to justice for a tax offense;

2) refusal to hold a person accountable for a tax offense.

According to paragraph 9 of Art. 101.4 of the Tax Code of the Russian Federation (as amended by Law N 137-FZ), the decision to hold a person accountable for violating the legislation on taxes and fees sets out the circumstances of the offense committed, indicates documents and other information that confirm these circumstances, the arguments given by the person brought to justice liability, in their own defense, and the results of verification of these arguments, the decision to hold a person accountable for specific tax offenses, indicating the articles of the Tax Code of the Russian Federation providing for liability for these offenses, and the penalties applied.

The decision to bring to responsibility for committing a tax offense indicates the period during which the person in respect of whom the specified decision was made has the right to appeal this decision, the procedure for appealing the decision to a higher tax authority (to a higher official), and also indicates the name of the body, place its location and other necessary information.

Paragraphs 10 - 13 of Art. 101.4 of the Tax Code of the Russian Federation regulates the legal consequences of a decision made by the head of a tax authority based on the results of consideration of an act drawn up during other tax control activities other than tax audits.

So, according to paragraph 10 of Art. 101.4 of the Tax Code of the Russian Federation, on the basis of a decision made to hold a person accountable for violating the legislation on taxes and fees, this person is sent a demand to pay penalties and a fine.

In accordance with paragraph 11 of Art. 101.4 of the Tax Code of the Russian Federation, a copy of the decision of the head of the tax authority and the request for payment of penalties and fines are handed over to the person who committed the tax offense against a receipt or transferred in another way indicating the date of their receipt by this person (his representative). If the person held accountable or his representatives avoid receiving copies of the said decision and demand, these documents are sent by registered mail and are considered received six days after the day they were sent by registered mail.

Clause 12 of Art. 101.4 of the Tax Code of the Russian Federation, failure by officials of tax authorities to comply with the requirements established by the Tax Code of the Russian Federation may be grounds for the cancellation of the decision of the tax authority by a higher tax authority or court.

According to paragraph 13 of Art. 101.4 of the Tax Code of the Russian Federation, on violations of the legislation on taxes and fees identified by the tax authority, for which persons are subject to administrative liability, an authorized official of the tax authority draws up a protocol on the administrative offense. The consideration of cases of these offenses and the application of administrative sanctions against persons guilty of committing them are carried out by tax authorities in accordance with the legislation on administrative offenses.

Information on the practice of applying Art. 101, 101.4 of the Tax Code of the Russian Federation*

Federal Law of 01.01.01 “On amendments to parts one and two of the Tax Code of the Russian Federation and to certain legislative acts of the Russian Federation in connection with the implementation of measures to improve tax administration» changes have been made to the procedure for bringing to tax liability. In particular, from January 1, 2007, two types of proceedings in cases of tax offenses are provided. In accordance with Art. 100.1 of the Tax Code of the Russian Federation, cases of tax offenses identified during a desk or field tax audit are considered in the manner prescribed by Art. 101 Tax Code of the Russian Federation; cases of tax offenses identified during other tax control activities (with the exception of offenses provided for in Articles 120, 122 and 123 of the Tax Code of the Russian Federation) are considered in the manner prescribed by Art. 101.4 Tax Code of the Russian Federation.

The differences between the two procedures can be summarized in the following table.

	Tax audit report (Article 100 of the Tax Code of the Russian Federation)		Act on the discovery of facts indicating the commission of a tax offense (during other tax control activities) (Article 101.4 of the Tax Code of the Russian Federation)

	The act is handed over against receipt or transmitted in another way indicating the date of its receipt. If a person avoids receiving the act, a corresponding note is made in the act and the act is sent by registered mail, the date of delivery of the act is the sixth working day counting from the date of its sending.

	The person in respect of whom the audit was carried out (his representative), in case of disagreement with the facts set out in the tax audit report, as well as the conclusions and proposals of the inspectors, within 15 days from the date of receipt of the tax audit report, has the right to submit written objections to the relevant tax authority (p 6 Article 100 of the Tax Code of the Russian Federation).		A person who has committed a tax offense has the right, in case of disagreement with the facts set out in the act, as well as the conclusions and proposals of the official who discovered the fact of a tax offense, to submit written objections within 10 days from the date of receipt of the act (clause 5 of Article 101.4 of the Tax Code of the Russian Federation ).

	After the expiration of the period specified in clause 6 of Art. 100 of the Tax Code of the Russian Federation, the tax audit report must be reviewed by the head (deputy head) of the tax authority within 10 working days. The period for consideration of a tax audit report may be extended, but not more than by one month.		After the expiration of the period specified in paragraph 5 of Art. 101.4 of the Tax Code of the Russian Federation, the act must be reviewed by the head (deputy head) of the tax authority within 10 working days.

	The person in respect of whom the act was drawn up is notified of the time and place of consideration of the act. The failure of a duly notified person held accountable for committing a tax offense, or his representative, does not deprive the head (deputy head) of the tax authority of the opportunity to consider the act in the absence of this person.

	If it is necessary to obtain additional evidence to confirm the fact of violations of the legislation on taxes and fees or the absence thereof, the head (deputy head) of the tax authority has the right to make a decision to carry out additional tax control measures within a period not exceeding one month. Additional tax control measures may include requesting documents, questioning a witness, and conducting an examination (clause 6 of Article 101 of the Tax Code of the Russian Federation).		During the consideration of the act and other tax control materials, a decision may be made to involve, if necessary, a witness, expert, specialist to participate in this consideration (clause 7 of Article 101.4 of the Tax Code of the Russian Federation)

	Based on the results of consideration of the act, the head (deputy head) makes a decision (clause 7 of article 101, clause 8 of article 101.4 of the Tax Code of the Russian Federation): 1) on bringing a person to justice for a tax offense; 2) refusal to hold a person accountable for a tax offense.

	A copy of the decision is handed to the person against a receipt or transferred in another way indicating the date of its receipt. If the person held accountable or his representatives avoid receiving it, a copy of the decision is sent by registered mail and is considered received six working days after the day it was sent (clause 13 of article 101, clause 11 of article 101.4 of the Tax Code RF).

	Decisions to bring or refuse to bring to justice for committing a tax offense come into force after 10 working days from the date of delivery to the person (his representative) in respect of whom the corresponding decision was made. In case of filing an appeal against the decision of the tax authority in the manner provided for in Art. 101.2 of the Tax Code of the Russian Federation, the specified decision comes into force from the date of its approval by a higher tax authority in whole or in part (clause 9 of Article 101 of the Tax Code of the Russian Federation).		With regard to decisions made during the procedure of Art. 101.4 of the Tax Code of the Russian Federation does not provide for an appeal, therefore, decisions to bring and refuse to bring to justice for a tax offense come into force from the moment they are signed by the head (deputy head) of the tax authority.

Decisions to bring or refuse to bring to justice for committing a tax offense can be appealed to judicial procedure only after appealing the decision to a higher tax authority. In the event of an appeal against such a decision in court, the period for applying to the court is calculated from the day when the person in respect of whom this decision was made became aware of its entry into force (clause 5 of Article 101.2 of the Tax Code of the Russian Federation. This norm applies to legal relations arising from January 1, 2009). An appeal against a tax authority’s decision to hold or refuse to hold accountable for committing a tax offense must be filed before the decision being appealed comes into force. A complaint against a decision of a tax authority that has entered into legal force, which has not been appealed, is submitted to a higher tax authority within one year from the date of the appealed decision (paragraph 3, 4, paragraph 2, article 139 of the Tax Code of the Russian Federation).		Decisions to prosecute or refuse to prosecute for a tax offense can be appealed to a higher tax authority or to court. Filing a complaint to a higher tax authority does not exclude the right to simultaneous or subsequent filing of a similar complaint with the court (Clause 1 of Article 138 of the Tax Code of the Russian Federation). A complaint to a higher tax authority is filed within three months from the day the person learned or should have learned about the violation of his rights (paragraph 1, paragraph 2, article 139 of the Tax Code of the Russian Federation). An application to challenge the decision of the tax authority can be filed with the arbitration court within three months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests (Part 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation).

	Violation of the essential conditions of the procedure for considering the act is grounds for canceling the decision of the tax authority by a higher tax authority or court. Such essential conditions include ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the process of considering materials personally and (or) through his representative and ensuring the opportunity for this person to provide explanations. Grounds for canceling a decision of a tax authority by a higher tax authority or court may be other violations of the procedure for considering materials, if only such violations led or could lead to the adoption of an incorrect decision (clause 14 of Article 101, clause 12 of Article 101.4 of the Tax Code of the Russian Federation).

In practice, the question arose in what cases cases of tax offenses are considered in accordance with Art. 101 of the Tax Code of the Russian Federation, and in what cases in the manner established by Art. 101.4 Tax Code of the Russian Federation.

The Tax Code establishes requirements for processing the results of a tax audit and the procedure for making a decision (Articles 100, 101 of the Tax Code of the Russian Federation). Based on the results of consideration of the report of a desk or field tax audit, either a decision is made to prosecute for committing a tax offense, or a decision to refuse to prosecute for committing a tax offense. That is why tax offenses identified during a desk or field tax audit are subject to consideration in accordance with the procedure specifically provided for in Art. 101 of the Tax Code of the Russian Federation for consideration of tax audit materials.

In addition, according to the rules of Art. 101 of the Tax Code of the Russian Federation are subject to consideration of offenses provided for in Art. 120, 122, 123 Tax Code of the Russian Federation. The identification by the legislator of these offenses does not seem to be accidental, since these tax offenses can only be identified as part of a tax audit.

Based on the above, we can come to the following conclusions. If a tax offense is discovered during a tax audit conducted in accordance with Art. 88 or 89 of the Tax Code of the Russian Federation, then the procedure for making a decision based on the results of consideration of tax audit materials, which is established by Art. 101 Tax Code of the Russian Federation. If a tax offense is detected during other tax control measures and is not qualified under Art. 120, 122, 123 of the Tax Code of the Russian Federation, tax violation proceedings are conducted according to the rules of Art. 101.4 Tax Code of the Russian Federation.

At the same time, in the practice of the Arbitration Court of the Sverdlovsk Region there are examples when the court applies to offenses discovered during other tax control measures and not related to the offenses listed in paragraph 2 of Art. 100.1 of the Tax Code of the Russian Federation, the procedure for bringing to responsibility, intended for making a decision based on the results of consideration of materials from a desk or field tax audit.

In case No. A/07, the decision of the tax authority to bring to tax liability under paragraph 1 of Art. 129.2 of the Tax Code of the Russian Federation for violation of the procedure for registering slot machines with tax authorities. The violation was discovered during an audit of compliance with legislation on the organization and conduct of gambling, carried out by the tax authority together with the internal affairs department. Despite the fact that the offense was discovered not as a result of a desk or field tax audit, but during other tax control measures, the courts of first and appellate instances, when considering the case, assessed the actions of the tax inspectorate in complying with the procedure for bringing to tax liability according to the rules of Art. 101 Tax Code of the Russian Federation.

In another case /08, the courts of first and cassation instances did not take into account the applicant’s argument that the tax authority did not comply with the procedure for bringing to justice for committing a tax offense under Art. 135.1 of the Tax Code of the Russian Federation, while the court of first instance indicated that consideration of the act on an offense identified during other tax control activities in the manner established by Art. 101 NK, and not in accordance with Art. 101.4 of the Tax Code of the Russian Federation is not a significant violation of the procedure for bringing to tax liability, since the person in respect of whom the act was drawn up was not deprived of the opportunity to participate in the process of considering the audit materials personally and (or) through his representative, and was provided with the opportunity to provide explanations.

However, this approach, available in judicial and arbitration practice, raises doubts.

According to paragraph 1 of Art. 108 of the Tax Code of the Russian Federation, no one can be held accountable for committing a tax offense except on the grounds and in the manner provided for by this Code.

Despite the external similarity of the two procedures (10-day review period; the need to properly notify the person about the time and place of the decision; types of decisions made based on the results of consideration of acts; the same consequences in the form of cancellation of the decision for violation of the essential conditions of the procedure for its adoption), the procedure for attracting liability for committing a tax offense identified during a desk or field tax audit and as a result of other forms of tax control is distinguished by many provisions, namely:

The deadline for submitting written objections, from which the period for consideration of the inspection report and materials is calculated;

The moment of entry into force of the decision;

The possibility of extending the period for consideration of the case in accordance with Art. 101 Tax Code of the Russian Federation;

Appeal procedure: the decision on the act of discovery of facts indicating the commission of a tax offense is appealed in the manner and within the time limits provided for in Chapter. 19 Tax Code of the Russian Federation; a decision made on the basis of tax audit materials is appealed in the manner prescribed by Chapter. 19 of the Tax Code of the Russian Federation, taking into account the features provided for in Art. 101.2 Tax Code of the Russian Federation; decisions made in accordance with Art. 101 of the Tax Code of the Russian Federation after January 1, 2009, are subject to mandatory pre-trial appeal to a higher tax authority (clause 5 of Article 101.2 of the Tax Code of the Russian Federation), for decisions made in accordance with Art. 101.4 of the Tax Code of the Russian Federation, the Tax Code does not provide for a mandatory pre-trial appeal procedure.

The problem of choosing the appropriate procedure for bringing to responsibility (Article 101 or Article 101.4 of the Tax Code of the Russian Federation) also arises when considering acts drawn up by territorial bodies off-budget funds during inspections on compliance with legislation on compulsory pension and social insurance.

The procedure for holding policyholders liable in the form of fines (financial sanctions) is not provided for by the legislation on compulsory pension and social insurance, therefore holding policyholders accountable is carried out by the bodies of extra-budgetary funds in a manner similar to the procedure established by the Tax Code for bringing liability for tax offenses.

Analysis of the practice of application of Art. 101, 101.4 of the Tax Code of the Russian Federation showed that in almost all cases, law enforcement agencies used the provisions of Art. 101 Tax Code of the Russian Federation.

At the same time, in judicial and arbitration practice there is another approach, according to which the procedure for bringing to responsibility, provided for by law on compulsory pension and social insurance, is regulated by the provisions of Art. 101.4 Tax Code of the Russian Federation.

Thus, in cases /08, A60-9695/08, the appellate court found incorrect the conclusion of the trial court that the body had violated Pension Fund the procedure for bringing to responsibility established by Art. 101 Tax Code of the Russian Federation. According to the court of appeal, when considering the materials of the audit on facts of violation by policyholders of the deadlines for submitting information on individual (personalized) accounting in the mandatory system pension insurance by virtue of clause 2 of Art. 100.1 of the Tax Code of the Russian Federation are subject to the application of the provisions of Art. 101.4 Tax Code of the Russian Federation. The appellate court came to the conclusion that there were no violations of the procedure for bringing to justice, since the person was properly notified of the time and place of consideration of the inspection materials, he was provided with the opportunity to present his explanations regarding the fact of the offense, the decision to bring to justice was made on time , established by Art. 101.4 Tax Code of the Russian Federation.

This approach seems to be the most correct.

In accordance with paragraph 1 of Art. 88 of the Tax Code of the Russian Federation, a desk tax audit is carried out at the location of the tax authority on the basis of tax returns (calculations) and documents submitted by the taxpayer, as well as other documents on the activities of the taxpayer available to the tax authority. According to paragraph 1, 3 of Art. 89 of the Tax Code of the Russian Federation, an on-site tax audit is carried out on the territory (premises) of the taxpayer based on the decision of the head (deputy head) of the tax authority. The subject of an on-site tax audit is the correctness of calculation and timely payment of taxes.

Thus, the procedure provided for in Art. 100, 101 of the Tax Code of the Russian Federation, is special in relation to the procedure established by Art. 101.4 of the Tax Code of the Russian Federation, and applies only to those offenses that were revealed during a desk or field tax audit, which do not include inspections carried out by bodies of extra-budgetary funds to comply with legislation on compulsory pension and social insurance.

Another controversial point when considering cases related to the application of Art. 101, 101.4 of the Tax Code of the Russian Federation, is a different assessment by the courts of the protocol for considering the act and other tax control materials.

The procedure for bringing to justice for committing a tax offense, established by Art. 101 and 101.4 of the Tax Code of the Russian Federation, does not provide for the possibility of drawing up a protocol on the consideration of a tax audit report or a report on the discovery of facts indicating the commission of a tax offense. Meanwhile, the tax authorities and the Pension Fund authorities submit such protocols to the court to justify the fact that the date indicated in the decision to prosecute is the date of its production, and the protocol on the consideration of the act indicates that the act and other inspection materials were considered precisely in the day about which the taxpayer or policyholder was notified.

There are two positions on this issue in practice.

According to one point of view, based on the results of consideration of the act and other inspection materials, one of the decisions provided for in Art. 101 and 101.4 NK. In addition, the protocol on the consideration of the inspection report, in the absence of information about the preparation of this protocol in the decision to prosecute, does not prove the fact that the decision on the act was made on the day to which the person was invited.

According to another point of view, the preparation by the tax authority, the Pension Fund body of a protocol for considering the audit materials, is not aimed at violating the procedure for bringing to responsibility, but at ensuring the rights and legitimate interests of taxpayers and policyholders.

Based on the analysis of judicial acts, which evaluate the protocols for considering inspection materials, we can come to the conclusion that the above points of view are not inherently opposing. Registration of a decision after the date of actual consideration of the act and other inspection materials in the presence of a protocol and evidence of proper notification of the place and time of consideration of the inspection materials cannot be a violation of the procedure for bringing to responsibility if the decision is made within the time limit established by Art. 101, 101.4 Tax Code of the Russian Federation. However, in this situation, another question is controversial: is a violation of the deadlines for consideration of audit materials a significant violation that entails the cancellation of the decision of the tax authority?

Considering that the review period provided for in paragraph 1 of Art. 101, PTC of the Russian Federation, is not preemptive, the Tax Code does not provide for the consequences of violating this deadline, it can be assumed that the violation of this deadline itself does not entail the cancellation of the decision on unconditional grounds.

The basis for canceling the decision in any case is violations committed by law enforcement agencies of the essential conditions of the procedure for considering inspection materials, provided for in paragraph 14 of Art. 101, paragraph 12 of Art. 101.4 Tax Code of the Russian Federation. These violations consist of the failure to provide the opportunity for the person in respect of whom the tax audit was carried out (the person in respect of whom the act was drawn up) to participate in the process of reviewing the materials personally and (or) through his representative and the failure to provide this person with the opportunity to provide explanations.

Often, tax authorities, taking advantage of the opportunity provided to them by the Tax Code to extend the period for consideration of tax audit materials, make a decision to carry out additional tax control measures. Then the decision to prosecute or to refuse to prosecute for committing a tax offense is made taking into account materials obtained as a result of additional tax control measures, without notifying the taxpayer. In judicial and arbitration practice, such decisions are regarded as illegal, since they were made in violation of the essential conditions of the procedure for considering tax audit materials.

Thus, in case No. A/07, in support of objections regarding the violation of the essential conditions of the procedure for considering tax audit materials, the tax authority stated that failure to notify the taxpayer about the consideration of audit materials based on the results of additional tax control measures carried out is not a violation of his rights, since according to the results of additional tax control measures control of violations was not established; additional accrued amounts were reduced tax payments. The courts of the first and appellate instances rejected this argument of the tax authority, since the procedure for drawing up and making a decision based on the results of additional tax control measures is regulated by the provisions of Art. 100, 101 of the Tax Code of the Russian Federation, accordingly, the taxpayer must be familiar with the data obtained as a result of additional tax control measures and notified of the time and place of consideration of the audit materials.

Thus, when re-examining the audit materials based on the results of additional tax control measures, the procedure for bringing to responsibility established by Art. 101 Tax Code of the Russian Federation.

Another significant violation of the procedure for considering audit materials is improper notification of the time and place of consideration of the tax audit report or the report on the discovery of a fact indicating the commission of a tax offense.

According to paragraph 2 of Art. 101 of the Tax Code of the Russian Federation, the head (deputy head) of the tax authority notifies the person in respect of whom the audit was carried out of the time and place of consideration of the tax audit materials. The failure of the person in respect of whom the tax audit was carried out (his representative), duly notified of the time and place of consideration of the tax audit materials, is not an obstacle to the consideration of the tax audit materials, except in cases where the participation of this person is recognized by the head (deputy head ) tax authority is required to consider these materials.

In accordance with paragraph 7 of Art. 101.4 of the Tax Code of the Russian Federation, the act is considered in the presence of the person held accountable or his representative. The tax authority shall notify the person who has committed a violation of the legislation on taxes and fees in advance of the time and place of consideration of the act.

As a rule, the time and place of consideration is indicated in the inspection report, which is handed to the person in respect of whom the inspection was carried out, or his representative against a signature, or transmitted in another way indicating the date of its receipt. If a person evades receipt, this fact is reflected in the act, and the act is sent by registered mail to the location of the organization ( separate division) or place of residence of an individual.

Thus, in case /07, the appellate court found that the notice of consideration of the inspection materials was sent to the taxpayer in a simple letter and at the time of consideration of the case the inspectorate had no information about the notification to the taxpayer, and therefore the tax authority’s argument about proper notification was considered unfounded.

In case /07, the courts of first and appellate instances also concluded that the taxpayer was notified by the tax authority improperly. Notification of the time and place of consideration of the materials of the desk audit was sent only to the address at which the company corresponded with the tax inspectorate. Failure to send notice to the address specified in the Unified state register legal entities, and the company’s failure to receive a notice at an address known to the tax authority indicates a violation of the taxpayer’s rights.

It should be borne in mind that a notice of consideration of inspection materials sent only to the address contained in the Unified State Register of Legal Entities, under certain circumstances, may also be considered improper.

Thus, in case No. A/07, the tax authority sent a copy of the decision made based on the results of consideration of the tax audit materials to the address contained in the Unified State Register of Legal Entities. At the same time, the tax authority knew another address of the taxpayer at which the tax audit was carried out. The appellate court, overturning the decision of the trial court, proceeded from the following. Failure by the tax authority to send a copy of the decision based on the results of consideration of the tax audit materials to the location of the actual location of the taxpayer known to the tax authority, due to the absence of an addressee at the legal address, indicates the failure of the tax authority to take appropriate measures to serve the taxpayer with a decision on bringing to tax liability and violation of the requirements of Art. 100, 101 Tax Code of the Russian Federation.

Another point regarding the concept of proper notification is related to the presence on the date of consideration of evidence of delivery to the person in respect of whom tax control measures were carried out, notice of the time and place of consideration of the audit materials.

In several similar cases, the court of first instance rejected the taxpayer’s argument that the tax authority violated the essential conditions of the procedure for considering the materials of a desk tax audit. The court came to the conclusion that the tax authority provided the taxpayer with the opportunity to participate in the process of considering the audit materials and provide explanations, since the audit report, together with a notice of consideration of the desk tax audit materials on May 30, 2008, was sent to the taxpayer on April 28, 2008 by registered mail with notification . At the court hearing, the tax authority presented a response to the taxpayer’s application, to which it attached a notice of delivery of registered mail and a letter from the post office containing information that the notice sent on April 28, 2008 was delivered to the taxpayer’s employee on May 4, 2008, i.e. before the date of consideration of the inspection materials.

The cassation court came to the opposite conclusion, namely, that the taxpayer was not given the opportunity to participate in the consideration of the tax audit materials and provide explanations, since at the time of consideration of the audit materials the notification of delivery of registered mail was tax office was not returned.

Thus, proper notice is considered to be a notice of the date of consideration of the inspection materials, which is delivered in advance against signature directly to the person in respect of whom the act was drawn up, or to his representative; if the notification occurs by mail, the notification of consideration of the inspection materials is sent by registered mail to the location or place of residence of the person, as well as to addresses known to the tax authority, and on the date of consideration of the inspection materials, the tax authority must have information about the delivery of the notification.

In addition, the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 000/07 dated January 1, 2001, indicated that the legislator, taking measures to improve tax administration, including providing for an extrajudicial procedure for collecting amounts of tax sanctions, proceeded from the need to maintain guarantees of protection the rights of taxpayers and other persons subject to tax control, at least to the extent provided for by previously applicable legislation. One of such guarantees in the judicial collection of tax sanctions is the provision by the court to a person of the opportunity to participate personally and (or) through his representative in a court hearing. Violation of this requirement in accordance with clause 2, part 4, art. 270 and paragraph 2, part 4, art. 288 of the Arbitration Procedure Code of the Russian Federation in any case is the basis for the cancellation of a judicial act. Consequently, failure to provide the person subject to a tax audit with the opportunity to participate in the process of reviewing its materials personally and (or) through his representative is grounds for declaring the inspection’s decision illegal.

Summarizing the study of the issues reflected in this certificate, we can come to the following conclusion. Provisions of Art. 101 and 101.4 of the Tax Code of the Russian Federation are aimed at protecting the rights and legitimate interests of taxpayers and other persons held accountable for committing tax offenses, non-compliance with which serves as grounds for canceling acts of law enforcement agencies.

*Certificate prepared by the Chairman of the Arbitration Court Sverdlovsk region, – Deputy Head of the Analysis and Generalization Department judicial practice in accordance with the work plan of the Arbitration Court of the Sverdlovsk Region for the second half of 2008 using judicial acts for 2 years. G.

Practical tax encyclopedia. Volume 18. Tax audits (edited by G.G.) // System GARANT Platform F1.

Other forms of tax control include obtaining explanations from taxpayers, tax agents and fee payers, checking accounting and reporting data, inspecting premises and territories used to generate income (profit), as well as other forms provided for by the Tax Code (Article 82 of the Tax Code of the Russian Federation ).

This conclusion is confirmed in judicial arbitration practice (see the resolution of the Federal arbitration court Northwestern District dated June 4, 2008 in case /2007).

Decision of the Arbitration Court of the Sverdlovsk Region dated 01.01.01 in case No. A/2007-C8, resolution of the Seventeenth Arbitration Court of Appeal dated March 4, 2008 No. 17AP-1018/2008-AK.

Decision of the Arbitration Court of the Sverdlovsk Region dated 01/01/01 in case /2008-С6, resolution of the Federal Arbitration Court of the Ural District dated 01/01/01 /08-С3.

See, decisions of the Federal Arbitration Court of the Ural District dated 01/01/01/08-С1, the Seventeenth Arbitration Court of Appeal dated May 8, 2008 No. 17AP-2638/2008-AK, dated 01/01/01 No. 17AP-6416/2008- AK, decisions of the Arbitration Court of the Sverdlovsk Region dated March 5, 2008 in case No. A/2007-C9, dated 01/01/01 in case No. A/2008-C8. It should be noted that the question of the correct application of Art. 101 or 101.4 of the Tax Code of the Russian Federation in judicial acts was not considered. The courts examined the circumstances of compliance by the bodies of the Pension Fund, the Fund social insurance requirements of Art. 101 of the Tax Code of the Russian Federation when making a decision to hold a person accountable for violating the legislation on compulsory pension and social insurance.

Resolutions of the Seventeenth Arbitration Court of Appeal dated 01.01.01 No. 17AP-5583/2008-AK in case /2008-C9, dated 01.01.01 No. 17AP-5565/2008-AK in case /2008-C9.

Decisions of the Arbitration Court of the Sverdlovsk Region dated 01.01.01 in case No. A/2008-C8, dated 01.01.01 in case No. A/2008-C8, dated 01.01.01 in case No. A/2008-C8, dated 01.01.01 in case No. A/2008-C8.

See, the decision of the Arbitration Court of the Sverdlovsk Region dated February 4, 2008 in case No. A/2007-C10, upheld by the decisions of the Seventeenth Arbitration Court of Appeal dated April 8, 2008 No. 17AP-1812/2008-AK, the Federal Arbitration Court of the Ural district of July 7, 2008 /08-С3; resolutions of the Seventeenth Arbitration Court of Appeal dated 01.01.01 No. 17AP-6416/2008-AK, dated 01.01.01 No. 17AP-6403/2008-AK.

See, decisions of the Arbitration Court of the Sverdlovsk Region of May 6, 2008 in case /2008-С8, of 01/01/01 in case No. A/2007-С9, of 01/01/01 in case No. A/2007-С6 , dated 01/01/01 in case No. A/2007-C10.

The decision of the court of first instance dated 01/01/01 in case No. A/2007-C9, left unchanged by the decision of the Seventeenth Arbitration Court of Appeal dated 01/01/01 No. 17AP-1110/2008-AK.

Resolution of the Seventeenth Arbitration Court of Appeal dated January 1, 2001 No. 17AP-4668/2008-AK in case /2007-C8.

Decision of the Arbitration Court of the Sverdlovsk Region dated May 2, 2007 in case /2007-С8, decision of the Seventeenth Arbitration Court of Appeal dated January 1, 2001 No. 17AP-4370/2007-AK.

Resolution of the Seventeenth Arbitration Court of Appeal dated January 1, 2001 No. 17AP-554/2008-AK in case No. A/2007-C9.

Decisions of the Arbitration Court of the Sverdlovsk Region dated January 1, 2001 in case No. A/2008-C8; dated 01.01.01 on cases No. A/2008-C8, A/2008-C8, A/2008-C8, A/2008-C8, A/2008-C8.

Resolutions of the Federal Arbitration Court of the Ural District dated December 1, 2008 /08-С3, Ф09-8937/08-С3, Ф09-8944/08-С3, Ф09-8938/08-С3, Ф09-8939/08-С3, from December 3, 2008 /08-С3.

1. If facts are discovered indicating violations of the legislation on taxes and fees, liability for which is established by this Code (with the exception of tax offenses, cases of detection of which are considered in the manner established by this Code), an official of the tax authority within 10 days from the date detection of the specified violation, an act must be drawn up in the prescribed form, signed by this official and the person who committed such a violation. The refusal of a person who has committed a violation of the legislation on taxes and fees to sign the act is made by a corresponding entry in this act.

2. The act must indicate documented facts of violation of the legislation on taxes and fees, as well as the conclusions and proposals of the official who discovered the facts of violation of the legislation on taxes and fees to eliminate the identified violations and apply tax sanctions.

3. The form of the act and the requirements for its preparation are established by the federal executive body authorized for control and supervision in the field of taxes and fees.

4. The act is handed over to the person who committed the tax offense against a receipt or transferred in another way indicating the date of its receipt. If the specified person evades receiving the specified act, the tax authority official makes a corresponding note in the act and the act is sent to this person by registered mail. If the specified act is sent by registered mail, the date of delivery of this act is considered to be the sixth day counting from the date of its sending.

6. After the expiration of the period specified in paragraph of this article, within 10 days the head (deputy head) of the tax authority considers the act which records facts of violation of the legislation on taxes and fees, as well as documents and materials submitted by the person who committed the tax offense.

When considering the act, explanations of the person held accountable are heard and other evidence is examined. It is not permitted to use evidence obtained in violation of this Code, as well as evidence obtained from a special declaration submitted in accordance with the Federal Law "On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation ", and (or) documents and (or) information attached to it. If documents (information) were submitted by the person held accountable to the tax authority in violation of the deadlines established by this Code, then the received documents (information) will not be considered received in violation of this Code.

When reviewing tax audit materials, a protocol is kept.

During the consideration of the act and other materials, the head (deputy head) of the tax authority:

1) establishes whether the person in respect of whom the act was drawn up committed violations of the legislation on taxes and fees;

2) establishes whether the identified violations constitute tax offenses contained in this Code;

3) establishes whether there are grounds for holding the person in respect of whom the act was drawn up liable for committing a tax offense;

4) identifies circumstances that exclude a person’s guilt in committing a tax offense, or circumstances that mitigate or aggravate responsibility for committing a tax offense.

8. Based on the results of consideration of the act and the documents and materials attached to it, the head (deputy head) of the tax authority makes a decision within the time period specified in paragraph of this article:

1) on bringing a person to justice for a tax offense;

2) refusal to hold a person accountable for a tax offense.

10. Based on a decision made to hold a person accountable for a tax offense (refusal to hold a person accountable for a tax offence), the tax authority that identified the relevant offense sends a demand to this person to pay (transfer) a tax (fee, insurance premiums) , penalties and fines in the manner and within the time limits established by articles and of this Code, unless otherwise provided by this article.

11. Lost power. - Federal Law of July 23, 2013 N 248-FZ.

13. Based on violations of the legislation on taxes and fees identified by the tax authority, for which persons are subject to administrative liability, an authorized official of the tax authority draws up a protocol on the administrative offense. The consideration of cases of these offenses and the application of administrative sanctions against persons guilty of committing them are carried out by tax authorities in accordance with the legislation of the Russian Federation on administrative offenses.

The provisions of Article 101.4 of the Tax Code of the Russian Federation are used in the following articles:

Notice of participation in foreign organizations and notification of controlled foreign companies. The procedure for recognizing taxpayers as controlling persons
11. Executive The tax authority is obliged to consider the explanations and documents submitted by the taxpayer. If, after considering the provided explanations and documents, or in their absence, the tax authority establishes the fact of a violation of the legislation on taxes and fees, liability for which is provided for in Article 129.6 of the Tax Code of the Russian Federation, the proceedings on the case of such a tax offense are carried out by the tax authority in the manner prescribed by Article 101.4 of the Tax Code of the Russian Federation.
The procedure for considering cases of tax offenses
2. Cases of tax offenses identified during other tax control activities (except for offenses provided for in articles 120, 122 and 123 of the Tax Code of the Russian Federation) are considered in the manner prescribed by Article 101.4 of the Tax Code of the Russian Federation.
Consideration of a complaint (appeal)
A higher tax authority, having established, based on the results of consideration of a complaint against a decision made in the manner provided for in Article 101.4 of the Tax Code of the Russian Federation, a violation of the essential conditions of the procedure for considering materials of other tax control measures, has the right to cancel such a decision, consider the specified materials, documents confirming the arguments of the person filing the complaint , additional documents, presented during the consideration of the complaint, and materials presented by the lower tax authority, in the manner provided for in Article 101.4 of the Tax Code of the Russian Federation, and make a decision provided for in paragraph 3 of this article.