1. Failure to submit fixed time the taxpayer (fee payer, insurance premium payer, tax agent) submits documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees to the tax authorities, if such an act does not contain signs of tax offenses, provided for in articles 119, 129.4, 129.6, 129.9 - 129.11 of this Code, as well as paragraphs 1.1 and 1.2 of this article,

entails a fine of 200 rubles for each document not submitted.

1.1. Failure to submit to the tax authority the documents provided for in paragraph 5 of Article 25.15 of this Code, expressed in the refusal of the controlling person to submit the documents in his possession, as well as other evasion from the submission of such documents or the submission of documents with deliberately false information

entails a fine from the controlling person in the amount of 100,000 rubles.

1.2. Failure by the tax agent to submit income tax calculations within the prescribed period individuals, calculated and withheld by the tax agent, to the tax authority at the place of registration

entails the collection of a fine from tax agent in the amount of 1000 rubles for each full or less than a month from the date fixed for its submission.

2. Failure to submit information about the taxpayer (payer of insurance premiums) to the tax authority within the prescribed period, refusal of a person to submit the documents in his possession, provided for by this Code, with information about the taxpayer (payer of insurance premiums) upon request tax authority or submission of documents with knowingly false information, if such an act does not contain signs of violations of the legislation on taxes and fees provided for in Articles 126.1 and 135.1 of this Code,

entails the collection of a fine from an organization or individual entrepreneur in the amount of ten thousand rubles, from an individual who is not individual entrepreneur, - in the amount of one thousand rubles.

Commentary to Art. 126 Tax Code of the Russian Federation

Article 126 of the Tax Code of the Russian Federation consists of 2 points.

Clause 1 of Art. 126 of the Tax Code of the Russian Federation provides for liability in the form of a fine in the amount of 200 rubles. for each document not submitted. IN in this case the list of documents and information submitted to the tax authority must be established by the Tax Code of the Russian Federation, and the deadline for their submission must also be determined.

Failure to submit may be expressed in the form of a refusal to submit available documents, or in the form of evasion from submitting such documents, or in the form of submitting documents with knowingly false information. It is important to note that this article provides for the presentation of information only in the form of documents.

The subject of this article, as follows from the above, is the taxpayer (payer of the fee, tax agent).

The direct object of the act provided for in paragraph 1 of the commented article. 126 of the Tax Code of the Russian Federation are the established procedure and deadlines for submitting documents and other information to the tax authority.

Moreover, such an act does not contain signs of tax offenses provided for in Art. Art. 119 and 129.4 of the Tax Code of the Russian Federation.

An act can be committed in the form of both action and inaction.

The offense provided for in paragraph 2 of the commented article. 126 of the Tax Code of the Russian Federation, is evident only insofar as it does not contain signs of an act provided for in Art. 135.1 of the Tax Code of the Russian Federation (it establishes the bank’s liability for failure to provide information about the bank’s client to the tax authority).

Bringing an organization to justice under Art. 126 of the Tax Code of the Russian Federation does not exempt persons performing managerial functions in it (if there are appropriate grounds) from administrative, criminal or other provided by law responsibility.

The subjective side of this act can be characterized both by the presence of intent (and when submitting documents with obviously false information - only direct intent), and by a careless form of guilt.

The guilt of the organization (when committing this offense) is determined depending on the guilt of its leader (other persons performing management functions in the organization) or its representatives, whose actions (inaction) led to the commission tax offense(clause 4 of article 110 of the Tax Code of the Russian Federation).

According to paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, liability arises for failure to provide the tax authority with information about the taxpayer, expressed in the person’s refusal to submit the documents in his possession, provided for by the Tax Code of the Russian Federation, with information about the taxpayer at the request of the tax authority, as well as other evasion from submitting such documents or submitting documents knowingly false information, if such an act does not contain signs of violation of the legislation on taxes and fees, provided for in Art. 135.1 of the Tax Code of the Russian Federation, and entails a fine from an organization or individual entrepreneur in the amount of 10,000 rubles, from an individual who is not an individual entrepreneur - in the amount of 1,000 rubles.

Clause 2 of the commented article. 126 of the Tax Code of the Russian Federation provides for the liability of a person for failure to provide information about the taxpayer at the request of the tax authority. Failure to submit may be expressed in the form of a refusal to submit available documents, or in the form of evasion from submitting such documents, or in the form of submitting documents with knowingly false information. It is important to note that this article provides for the presentation of information only in the form of documents. Moreover, the person is obliged to provide the tax authority only with information that contains information about the taxpayer being audited, and not any documents required by the tax authority.

The subject of this article, as follows from the above, is not only an organization, but also an individual (including an individual entrepreneur).

The amount of the fine may be reduced or increased according to the rules of Art. 112 and paragraphs 3, 4 art. 114 Tax Code of the Russian Federation.

So, paragraph 1 of Art. 126 of the Tax Code of the Russian Federation provides that failure by a taxpayer (payer of a fee, tax agent) to submit to the tax authorities documents and (or) other information provided for by the Tax Code of the Russian Federation and other acts of legislation on taxes and fees, if such an act does not contain signs of tax offenses , provided for in Art. Art. 119, 129.4 and 129.6 of the Tax Code of the Russian Federation, as well as clause 1.1 of Art. 126 of the Tax Code of the Russian Federation, entail a fine of 200 rubles. for each document not submitted.

Secondly, the composition of the acts for which tax liability measures are provided in accordance with Art. 126 of the Tax Code of the Russian Federation, expanded from January 1, 2015.

So, clause 1.1 of Art. 126 of the Tax Code of the Russian Federation (as amended by the Federal Law of November 24, 2014 N 376-FZ “On Amendments to Parts One and Two of the Tax Code Russian Federation(in terms of taxation of profits of controlled foreign companies and income of foreign organizations)") provides that failure to submit to the tax authority the documents provided for in paragraph 5 of Art. 25.15 of the Tax Code of the Russian Federation, expressed in the refusal of a controlling person to submit documents in his possession, as well as other evasion from submitting such documents or submitting documents with knowingly false information entails a fine from the controlling person in the amount of 100,000 rubles.

In addition, from January 1, 2015, the composition of the tax offense provided for in paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, amended.

Clause 2 of Art. 126 of the Tax Code of the Russian Federation, from January 1, 2015, provides for liability for failure to submit information about the taxpayer to the tax authority within the prescribed period, refusal of a person to submit documents in his possession, provided for by the Tax Code of the Russian Federation, with information about the taxpayer at the request of the tax authority, or submission of documents with deliberately false information , if such an act does not contain signs of violation of the legislation on taxes and fees provided for in Art. 135.1 Tax Code of the Russian Federation.

Provisions of paragraph 2 of Art. 126 of the Tax Code of the Russian Federation (as amended by Law No. 347-FZ) apply to documents the deadline for submitting to the tax authorities occurred after the day Law No. 347-FZ entered into force (clause 6 of Article 5 of Law No. 347-FZ).

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M.N. Akhtanina, lawyer

Fines for failure to provide documents and information to tax authorities

When and what fine can be charged for late submission of documents or information to the inspectorate?

Since last fall, fines under Articles 126 and 129 of the Tax Code have increased significantly. Therefore, everyone needs to know what exactly liability is established for under these articles and when it can be applied. Let's start with the most common fine - for failure to submit and late submission of documents.

Fine under paragraph 1 of Article 126 of the Tax Code

Violation under paragraph 1 of Art. 126 of the Tax Code is expressed in failure to submit taxpayers (payers of fees) or tax agents within the period of documents or other information that, according to tax legislation:

Penalty for failure to submit on time by the taxpayer (payer of the fee, tax agent) to the tax authorities of documents or information provided for tax legislation, is:

• <если>The deadline for submitting documents expired on 09/02/2010 or earlier - 50 rubles. for each document T clause 1 art. 126 of the Tax Code of the Russian Federation (as amended, valid until 09/03/2010);
• <если>The deadline for submitting documents expired on 09/03/2010 or later - 200 rubles. for each document T clause 1 art. 126 Tax Code of the Russian Federation.

• <или>required by the tax authority from the person in respect of whom it is carried out office or away examination. Everything is more or less clear with this O pp. 6, 8, 9 tbsp. 88, paragraph 12 art. 89, paragraph 1, art. 93 Tax Code of the Russian Federation;
• <или>organization or entrepreneur must represent to the tax authorities independently due to the fact that they are taxpayers or tax agents.

Therefore, under this rule, you cannot be fined for failure to submit (late submission) of documents or information requested as part of a counter-inspection And pp. 1, 2 tbsp. 93.1 Tax Code of the Russian Federation.

What documents should taxpayers submit independently?

These are, in particular:

• opening or closing messages separate divisions organization, as well as messages about changes in address, name or head of the EP (forms No. S-09-3-1 and No. S-09-3- 2Letter of the Federal Tax Service of Russia dated September 3, 2010 No. MN-37-6/10623@)subp. 3, 3.1 clause 2 art. 23 Tax Code of the Russian Federation;
• financial statements of organizations (except for organizations using the simplified tax system )subp. 5 p. 1 art. 23 Tax Code of the Russian Federation;
• tax calculations on advance payments for property tax of an organization th approved By Order of the Ministry of Finance of Russia dated February 20, 2008 No. 27n; clause 1 art. 386 Tax Code of the Russian Federation;
• reports of participation in Russian or foreign organization, that is, on the acquisition of shares or a share in the authorized capital of an LLC (form No. S-09- 2 )subp. 2 p. 2 art. 23 Tax Code of the Russian Federation;
• messages about the decision taken by the organization on reorganization or liquidation (form No. S-09- 4approved By Order of the Federal Tax Service of Russia dated April 21, 2009 No. MM-7-6/252@)subp. 4 p. 2 tbsp. 23 Tax Code of the Russian Federation.

Please note that if the Tax Code establishes special liability for failure to submit a specific document, then the fine should be imposed according to a special norm, and not according to paragraph 1 of Art. 126 NK. Such documents include:

• application for tax registration on the grounds provided for by the Tax Code (for example, application for registration of an organization as UTII payer(Form No. UTII- 1approved By Order of the Federal Tax Service of Russia dated January 14, 2009 No. MM-7-6/5@)clause 2 art. 346.28 Tax Code of the Russian Federation) ;
• messages about opening or closing a bank account (form No. S-09- 1approved By Order of the Federal Tax Service of Russia dated April 21, 2009 No. MM-7-6/252@)subp. 1 item 2 art. 23 Tax Code of the Russian Federation;
• tax returns And clause 1 art. 80 Tax Code of the Russian Federation.

Responsibility for failure to submit these documents is established by Articles 116, 118 and 119 of the Tax Code of the Russian Federation, respectively.

You cannot be fined under clause 1 of Art. 126 of the Tax Code even when the obligation to submit any documents or information to the tax authority is established not by tax legislation, but by some other legislation. It is likely that failure to provide them will result in administrative penalty, but definitely not tax.

For example, a change in the head of an organization must be reported to the tax office Yu subp. "l" clause 1 art. 5, paragraph 5 art. 5 of the Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs”. For failure to fulfill this obligation, an administrative fine may be imposed on the new manager. f Part 3 Art. 14.25 Code of Administrative Offenses of the Russian Federation.

Tax agents are fined for failure to submit what documents?

Organizations and entrepreneurs - tax agents must independently submit to the Federal Tax Service:

• VAT returns, even if the tax agent himself is not a payer of this tax I clause 5 art. 174 Tax Code of the Russian Federation;
• tax calculations for income tax (on income paid in the form of dividends by organizations that do not pay this tax )clause 1 art. 289 Tax Code of the Russian Federation;
• information on the amounts of income paid to foreign organizations and taxes withheld V approved By order of the Ministry of Taxes and Taxes of Russia dated April 14, 2004 No. SAE-3-23/286@; clause 4 art. 310 Tax Code of the Russian Federation;
• information on income paid to individuals, amounts of personal income tax calculated, withheld and transferred to the budget (form 2-NDF L approved By Order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ-7-3/611@)clause 2 art. 230 Tax Code of the Russian Federation;
• messages about the impossibility of withholding tax from income paid to an individual (form 2-NDFL )clause 5 art. 226 Tax Code of the Russian Federation; clause 2 of the Order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ-7-3/611@.

When you cannot be fined for failure to provide documents upon request

For information on what documents you may not present to tax authorities during a desk audit without fear of a fine, read: 2010, No. 19, p. 18

The powers of tax officials to request documents during an on-site or desk audit are not unlimited. During a desk check, they are quite strictly limited by Art. 88 Tax Code of the Russian Federation. And even during an on-site audit, you can only request documents related to the tax and period being audited. Hence the conclusion: if the tax authority has requested documents that it does not have the right to demand, you have every right not to submit them and you cannot be fined for this I. For example, you cannot be fined for failure to submit:

Attention

If you are asked for documents that you already submitted copies of during an audit in 2010 and later, you do not need to submit them again.

• invoices requested during a desk audit of a VAT return in which the tax was not claimed for reimbursement Yu pp. 7, 8 tbsp. 88 Tax Code of the Russian Federation;
• invoices issued in 2009, requested during the on-site inspection according to VAT for 2010;
• any documents, copies of which have already been submitted to the tax authority during tax audit starting from 01/01/201 0clause 5 art. 93 Tax Code of the Russian Federation; Resolution of the Federal Antimonopoly Service dated December 14, 2010 No. A68-3284/10-135/18.

Another limitation is that the tax authority does not have the right to request documents from the person being inspected outside the framework of an on-site or desk audit. And clause 1 art. 93 Tax Code of the Russian Federation. After all, there is simply no procedure for requesting documents for such a situation in the Tax Code. For example, on July 20, 2010, you filed a VAT return claiming the right to a tax refund. During a desk audit of this declaration, the inspectorate has the right to request from you documents confirming the right to deduct VAT on this declaration. And clause 8 art. 88, paragraph 1, art. 172 Tax Code of the Russian Federation. But if the requirement to submit these documents is issued after October 20, 2010 (outside the three-month period allotted for conducting desk audits And clause 2 art. 88 Tax Code of the Russian Federation), you have the right not to respond to it and to fine you under paragraph 1 of Art. 126 NK is not allowed. This conclusion is confirmed by VA WITH Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2009 No. 10349/09, and the Ministry of Finance n Letter of the Ministry of Finance of Russia dated November 24, 2008 No. 03-02-07/1-471.

Attention

If the tax authority does not have the right to demand any document, then it cannot be fined for failure to submit it.

Also note that in paragraph 1 of Art. 126 of the Tax Code talks about liability only for failure to submit documents provided for by tax legislation. That is, if a document is not mentioned in tax legislation, then you cannot be fined for failure to submit it. I clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106. And the courts, as a rule, come to the conclusion that it is impossible to fine under Art. 126 of the Tax Code for failure to submit documents not provided for by either accounting or tax legislation, as well as documents that you can draw up, but are not required to do. In particular, the courts declared it illegal to hold people accountable for failure to provide e clause 1 art. 126 Tax Code of the Russian Federation:

• lists of fixed assets related to different types activities, lists of rented real estate, calculations of the distribution of income and expenses for different types of activities And Resolution of the Federal Antimonopoly Service of the Moscow Region dated 03/09/2010 No. KA-A40/1571-10;
• certificates and declarations of conformity of manufactured products with GOST requirements, copies of letters from Rosstat confirming the code according to All-Russian classifier foreign economic activity And Resolution of the Federal Antimonopoly Service of the Northern Territory of September 24, 2009 No. A42-5230/2006;
• economic justification calculation rental payments, details of negotiations with mobile phones and orders establishing a limit on expenses for mobile communications, calculations confirming the feasibility of refusing to exercise the option and the feasibility of acquiring financial instruments urgent matter To Resolution of the Federal Antimonopoly Service of October 27, 2009 No. A48-973/2009;
• operator and dispatch lists V Resolution of the Federal Antimonopoly Service of Ukraine dated February 20, 2008 No. Ф09-11449/07-С2;
• copies of issued bills th Resolution of the Federal Antimonopoly Service of Ukraine dated December 17, 2009 No. Ф09-10019/09-С3;
• staffing table I Resolution of the Federal Antimonopoly Service of April 22, 2008 No. A55-11630/07.

The next question: is it possible to be fined for failure to submit documents that were not drawn up, although they should have been? It seems that the answer is obvious. Failure to fulfill the obligation to draw up a document should not exempt from liability for failure to submit it. After all, no one is trying to challenge a fine for failure to submit a tax return. And Art. 119 Tax Code of the Russian Federation simply because they didn’t have time to compile it on time.

There are also courts that point to the legality of the fine under paragraph 1 of Art. 126 Tax Code in case of failure to submit documents due to the fact that they were not drawn up s Resolution of the Federal Antimonopoly Service ZSO dated 06/01/2009 No. Ф04-3216/2009(7623-А03-37); FAS UO dated March 24, 2008 No. Ф09-1746/08-С3. True, oddly enough, they are in the minority. And most courts take the position that there can be no fine in such a situation. The logic is simple: since the document was not drawn up, it could not be submitted on time, required, for objective reasons. For example, the courts indicated that it is impossible to fine for uncomposed and unsubmitted:

• certificates in form 2-NDF L Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 04/07/2008 No. A29-5357/2007;
• books of accounting of income and expenses of organizations and individual entrepreneurs using a simplified taxation system I Resolution of the Federal Antimonopoly Service of the North-Western Territory of February 20, 2009 No. A42-3046/2008; FAS North Caucasus Region dated August 27, 2009 No. A32-13466/2006-12/295;
• shopping books and sales books and Resolution of the Federal Antimonopoly Service of Ukraine dated 09.04.2009 No. Ф09-1830/09-С3;
• orders on accounting policies e Resolution of the Federal Antimonopoly Service of the Central Election Commission dated February 15, 2010 No. A35-9027/08-S21.

Of course, if the decision to prosecute has already been made, any arguments that allow you to challenge it are good. And taxpayer-friendly practices can and should be used.

At the same time, keep in mind: when justifying during the inspection the failure to provide mandatory primary documents and invoices, due to the fact that they were not drawn up, you can “get” a fine under Art. 120 NK.

In addition, it is natural that the courts recognize the fines under paragraph 1 of Art. 126 of the Tax Code, if documents are not submitted due to the fact that they:

• <или>kidnapped s Resolution of the Federal Antimonopoly Service of the Central Election Commission dated October 23, 2008 No. A36-686/2008; FAS UO dated July 28, 2008 No. Ф09-1296/08-С3;
• <или>seized by another government agency (in particular, the police )Resolution of the Federal Antimonopoly Service of May 22, 2009 No. A57-11985/06; FAS NWO dated June 18, 2009 No. A21-8111/2008; FAS UO dated December 15, 2009 No. Ф09-3586/09-С3;
• <или>lost for other reasons (for example, in an accident or natural disaster )Resolution of the Federal Antimonopoly Service of the North-West District dated 09/03/2010 No. A56-47676/2009; FAS VVO dated 06/08/2009 No. A17-7256/2008; FAS PO dated August 31, 2009 No. A06-2877/08.

As you understand, this is due to the fact that in such circumstances there is no fault of the organization or entrepreneur in failure to provide documents. And without guilt there is no responsibility And Art. 106 Tax Code of the Russian Federation, paragraph 2 of Art. 109 Tax Code of the Russian Federation. For the same reason, the courts recognize as unlawful a fine for failure to submit documents due to the fact that an organization or entrepreneur did not receive a request from the tax authority sent to them by mail. e clause 2 of the motivational part of the Determination of the Constitutional Court of the Russian Federation dated 04/08/2010 No. 468-О-О; Resolution of the Federal Antimonopoly Service of the Moscow Region dated January 11, 2009 No. KA-A41/12621-08; FAS PO dated March 23, 2010 No. A65-26274/2009; FAS UO dated 02.08.2010 No. Ф09-5912/10-С2. Moreover, it is the tax authority that must prove receipt of the request. n clause 6 art. 108 Tax Code of the Russian Federation; Part 5 Art. 200 APC of the Russian Federation.

Can I be fined for incorrectly submitting documents?

The rules for submitting documents at the request of the tax authority are simple s pp. 2, 3 tbsp. 93 Tax Code of the Russian Federation:

• documents for on paper presented in person or sent by mail by registered mail in the form of copies certified by the signature of the inspected entrepreneur or the signature of the manager and the seal of the inspected organization;
• documents drawn up in in electronic format according to established formats, can be presented through telecommunication channels;
• documents must be submitted within 10 working days from the date of receipt of the request. This period may be extended at the written request of the organization or entrepreneur. Such a request must be submitted on the next business day after the day the request was received. I clause 6 art. 6.1 Tax Code of the Russian Federation.

There is no doubt that for violating the deadline for submitting documents you can be fined; this is directly stated in the Code e clause 4 art. 93, paragraph 1, art. 126 Tax Code of the Russian Federation.

But is it possible to be fined if an organization or entrepreneur filed a petition to extend the period, but the inspection did not satisfy it? Currently, most courts answer this question in the negative. O Resolution of the Federal Antimonopoly Service of the Moscow Region dated December 8, 2010 No. KA-A40/14679-10; FAS NWO dated 09/03/2010 No. A56-47676/2009; FAS UO dated December 8, 2010 No. Ф09-10096/10-С3.

Of course, in order for the court to take your side in such a situation, the request to extend the period for submitting documents must be motivated. That is, it must indicate the reasons why you objectively cannot submit documents within the usual time frame. It could be a large number of requested documents or the need to deliver them from another locality (for example, when during an inspection of a branch, documents located at the company’s head office are requested). It will also be in your favor that you submit at least some of the documents required by the tax authority on time.

If there is even the slightest risk of not submitting the documents requested by the inspection on time, you need to submit a petition to extend the deadline. Even if the inspection does not extend it, and we cannot submit the documents on time, the very fact of filing such a petition will help to challenge the fine under paragraph 1 of Art. 126 NK.

The next question is: can you be fined for submitting uncertified (or improperly certified) copies of requested documents on time? Formally, such an act constitutes an offense under paragraph 1 of Art. 126 NK, does not form. Once the Federal Antimonopoly Service of the Ural District agreed with this A Resolution dated September 15, 2008 No. Ф09-6550/08-С3. However, keep in mind that rather than penalizing uncertified copies, the tax authority may simply refuse to accept them. The legality of such a refusal was recognized by the FAS Moscow District A Resolution dated November 5, 2009 No. KA-A41/11390-09. And if, as a result, duly certified copies of documents are submitted by you in violation of the deadline, the tax authorities will undoubtedly fine you for this. And, unfortunately, it is not a fact that the court will recognize such a fine as illegal.

Sometimes tax authorities impose fines under paragraph 1 of Art. 126 Tax Code for submitting documents filled out incorrectly. But, as you understand, this is illegal. Therefore, the chances of challenging such a fine in court are very high. And Resolution of the Federal Antimonopoly Service of August 22, 2006 No. A09-1974/06-12; FAS MO dated January 15, 2010 No. KA-A40/14964-09; FAS SKO dated November 21, 2007 No. Ф08-7689/2007-2870А. Including in the event that documents were submitted electronically, and errors in them led to the fact that the incoming control protocol indicated that the documents were not accepted s Resolution of the Federal Antimonopoly Service ZSO dated March 20, 2008 No. F04-1001/2008(669-A67-19); FAS MO dated September 14, 2009 No. KA-A40/9158-09; FAS NWO dated November 22, 2010 No. A56-7553/2010.

How is the fine calculated under paragraph 1 of Article 126 of the Tax Code?

The fine is set at 200 rubles. for each document not submitted or submitted late T clause 1 art. 126 Tax Code of the Russian Federation. It seems that the arithmetic is simple: if you didn’t submit one document - a fine of 200 rubles, if you didn’t submit 100 documents - a fine of 20,000 rubles. Thus, to calculate the fine, you just need to know exactly how many documents the organization or entrepreneur did not submit.

When the documents, albeit late, are nevertheless submitted, the tax authority will be able to simply count their number. And to determine the amount of the fine for failure to submit documents, ideally the tax authorities’ request should indicate their exact number. For example, the requirement says: “Provide the invoice issued by Leshy OJSC for the shipment of cranberries in September 2010 - 1 piece.” However, in practice this does not happen. Because the tax authority simply does not have data on the number of invoices received by the taxpayer. And then he writes in the request: “Provide invoices for goods (work, services) purchased in the third quarter of 2010.”

And in this case, how to calculate the amount of the fine if the taxpayer did not submit an invoice? It is impossible to calculate the fine by eye, this was explained to the tax authorities by the VA 3 years ago WITH Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/08/2008 No. 15333/07. Therefore, in order to calculate the fine, the tax authority can and must obtain data that allows it to determine the exact number of unsubmitted documents. And he can do this in two ways.

Method one: establish the number of unsubmitted documents based on the results of counter checks, within the framework of which documents will be received from the counterparties of the inspected person, copies of which must be in the possession of this person. Such documents can be invoices, contracts, delivery notes. That is, any documents that are drawn up in two copies or that have a detachable part that is transferred to the counterparty. So, about the existence of an income cash order(form KO-1) approved Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88 Tax authorities can find out by receiving a copy of the receipt to the PC ABOUT Instructions... approved. Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88.

The second method is to determine the number of unsubmitted documents based on the results of seizure of documents from the person being inspected. If 100 invoices received for the purchase of goods (work, services) in the third quarter of 2010 are seized, then the fine should be calculated based on this number. True, the tax authority can use this method only during an on-site audit. e clause 4 art. 93, paragraph 1, art. 94 Tax Code of the Russian Federation.

Conclusion

The correctness of calculating the amount of the fine under paragraph 1 of Art. 126 of the Tax Code must be supported by documents that make it possible to establish the exact number of documents not submitted (untimely submitted) by the taxpayer or tax agent. It could be:

• <или>a list of documents submitted in violation of the deadline;
• <или>requirement for the submission of documents, which indicates the exact number of documents requested V;
• <или>seizure protocol or inventory of documents seized during the seizure;
• <или>a list of documents presented by the counterparties of the inspected person during the counter inspection.

When a fine by tax authorities is calculated by eye, the decision to prosecute is worth appealing. Of course, the administration of the Federal Tax Service for a constituent entity of the Russian Federation may leave it in force. But the chances of winning in court are very high And Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 29, 2010 No. KA-A41/10263-10; FAS DVO dated June 25, 2010 No. F03-3822/2010; FAS PO dated December 25, 2009 No. A12-7578/2009; FAS NWO dated 10/07/2009 No. A56-55048/2008; FAS North Caucasus Region dated July 23, 2010 No. A32-42199/2009-51/745.

The main thing is to remember to point out to the court that it is impossible to determine the amount of the fine. After all, sometimes taxpayers lose such disputes, so to speak, through their own fault. For example, challenging a fine on any other grounds and not stating the impossibility of determining the amount of the fine. Or agreeing in a court hearing with the calculation made by the inspectorate th Resolution of the Federal Antimonopoly Service of the North-West District dated July 7, 2009 No. A52-4907/2008; FAS VSO dated August 28, 2008 No. A58-7613/07-F02-4173/08.

Fine under paragraph 2 of Article 126 of the Tax Code

The main difference between violations, liability for which is established in paragraphs. 1 and 2 tbsp. 126 of the Tax Code is that the subjects (that is, the persons who can be fined for these violations) are different.

Clause 2 of Art. 126 of the Tax Code established a fine not for taxpayers (fee payers) or tax agents, but for some third organization from which the tax authority requests documents with information about the taxpayere; Resolution of the FAS VSO dated January 28, 2010 No. A19-8589/09. That is, a violation can be said to have been committed only if three conditions are met: th clause 2 art. 126, Art. 106 Tax Code of the Russian Federation, paragraph 2 of Art. 109 Tax Code of the Russian Federation:

Penalty for failure by an organization to submit at the request of a tax document authority, provided for by the Tax Code, with information about another taxpayer or their presentation with deliberately false information is equal to:

• <если>offense committed before 09/03/2010 - 5000 rubles .clause 2 art. 126 of the Tax Code of the Russian Federation (as amended, valid until 09/03/2010);
• <если>offense committed after 09/02/2010 - 10,000 rubles .clause 2 art. 126 Tax Code of the Russian Federation

• the tax authority demanded from the organization certain documents with information about another taxpayer;
• the organization has these documents;
• the organization did not submit these documents or submitted them with deliberately false information.

The only thing that is clear from this is that a fine under paragraph 2 of Art. 126 Tax Codes can only organize. But which one? A tax authority may request any documents containing information about taxpayers from third parties only in the manner established by Art. 93.1 NK. There is simply no other procedure. So that means, according to paragraph 2 of Art. 126 of the Tax Code, can you fine an organization that has not submitted the documents requested during the “counter meeting”? But no! After all, there is a special rule according to which a person’s refusal to submit documents requested during an “oncoming meeting” or their failure to submit them on time entails liability under Art. 129.1 N TO clause 1 art. 93.1, paragraph 6 of Art. 93.1 Tax Code of the Russian Federation. Therefore, to prosecute for failure to provide documents during an oncoming meeting under clause 2 of Art. 126 Tax Code is currently not possible. This position is also shared by many courts. s Resolution of the Federal Antimonopoly Service ZSO dated 03/02/2009 No. F04-623/2009(1322-A75-49); FAS VSO dated March 17, 2009 No. A33-9821/08-F02-942/09; FAS North Caucasus Region dated May 18, 2009 No. A20-957/2008; FAS Central Election Commission dated December 22, 2008 No. A36-2108/2008; FAS MO dated March 26, 2009 No. KA-A40/2089-09.

From authoritative sources

Judge of the Supreme Arbitration Court of the Russian Federation, Candidate of Legal Sciences

“By virtue of the direct instructions of clause 6 of Art. 93.1 of the Tax Code of the Russian Federation, an organization that has not submitted within the prescribed period (including refusing to submit) documents containing information about the taxpayer, requested from it by the tax authority during a tax audit, must be held liable under Art. 129.1 Tax Code of the Russian Federation.”

Why are the tax authorities trying to fine for failure to provide documents in the event of an oncoming traffic collision under paragraph 2 of Art. 126, and not according to paragraph 1 of Art. 129.1 NK, you can understand. After all, the first fine is twice as large. But such a fine can and should be challenged. After all, incorrect classification of an offense by the tax authority is the basis for canceling the decision to prosecute And clause 18 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 No. 71.

As you can see, it turns out that now, according to paragraph 2 of Art. 126 of the Tax Code can only be fined by an organization that, at the request of the tax authority, has submitted documents with deliberately false information about the taxpayer. Although, of course, it is almost impossible to identify and prove deliberate unreliability of information.

True, there are several decisions in which the courts came to the conclusion that an organization that did not submit documents when faced with an oncoming traffic collision should be fined precisely under clause 2 of Art. 126 N TO Resolution of the FAS VSO dated 03/06/2008 No. A33-13491/07-F02-679/08; FAS VVO dated 05/08/2008 No. A43-5565/2007-35-117.

By the way, “residents” of the tax inspectorates of Moscow and the Moscow region should know that the FAS of the Moscow District believes that a fine under clause 2 of Art. 126 of the Tax Code is required not just for failure to present documents in the event of an oncoming meeting, but specifically for refusal to present them I Resolutions of the Federal Antimonopoly Service of the Moscow Region dated November 16, 2009 No. KA-A40/11998-09, dated January 30, 2008 No. KA-A40/12590-07. Although, let us recall, clause 6 of Art. 93.1 of the Tax Code directly indicates that the responsibility established by Art. 129.1 NK.

Fine under Article 129.1 of the Tax Code

This fine is applied in case of failure to submit (late submission) to the tax authority:

• information that a person is obliged to provide by virtue of the direct instructions of Art. 85 Tax Code of the Russian Federation. This applies to such organizations as, for example, the bodies of the Federal Migration Service of Russia, the bodies of the State Traffic Safety Inspectorate and the State Technical Supervision Authority, the bodies of Ros-re-est-ra, and departments of civil registry offices. It is clear that this basis for a fine has nothing to do with ordinary organizations and entrepreneurs, so we will not consider it further;
• documents or information relating to the activities of the taxpayer being inspected (fee payer, tax agent) requested during tax audits And clause 1 art. 93.1, paragraph 6 of Art. 93.1 Tax Code of the Russian Federation;
• information on a specific transaction requested by the tax authority outside the scope of audits And clause 2 art. 93.1 Tax Code of the Russian Federation.

Let's look at the last two cases.

Firstly, the tax authority conducting a desk or field audit of any taxpayer (tax agent) has the right to require you to provide available documents or information (information) relating to its activities. He can do this:

• during the inspection itself And clause 1 art. 93.1 Tax Code of the Russian Federation;
• after its completion, if, when considering the audit materials, the head of the tax authority decides to request such documents or information as part of additional tax control measures I clause 6 art. 101 Tax Code of the Russian Federation.

Secondly, outside of a tax audit, you may be required to provide available information about a specific transaction if the tax authority has a reasonable need to obtain such information. And clause 2 art. 93.1 Tax Code of the Russian Federation.

When you can't fine

As you can see, we are always talking about documents or information that you have. Therefore, if you do not provide documents or information for the reason that you do not have them, then you will be fined under Art. 129.1 NK will not be allowed I ; FAS CO dated May 12, 2009 No. A09-12352/2008; FAS MO dated July 7, 2009 No. KA-A40/6137-09; FAS PO dated July 29, 2008 No. A12-2895/08.

But you should not abuse it and respond to any request from the tax authority with a letter stating that the requested documents or information are not available. After all, if you still have documents and the tax authorities can prove this O Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 05/08/2008 No. A43-5565/2007-35-117, then you will not only pay a fine, but also tarnish your reputation.

If you do not have the requested documents or information, then you need to inform the inspectorate about this within 5 working days from the date of receipt of the request. Documents or information, if available, shall be submitted within the same period. Please note: you can be fined for violating the deadline for submitting documents or information, but not for being late in reporting their absence. t the fine will be: K Resolution of the Federal Antimonopoly Service dated January 22, 2009 No. A55-8517/2008; FAS Northwestern District dated November 17, 2010 No. A05-3437/2010.

Please note: often, as part of a counter audit, tax authorities request documents that are not related to the activities of the taxpayer being inspected, relating exclusively to the activities of its counterparty. For example, when checking OJSC Leshy from its supplier - Domovoy LLC - they may request a service agreement concluded between Domovoy LLC and Vodyanoy JSC, which is the buyer of Leshy OJSC products. Or they may require some internal documents Domovoy LLC itself. But tax officials do not have the right to demand anything, whenever they want. O Art. 93.1 Tax Code of the Russian Federation. Therefore, if you do not submit documents on such requirements, the court will most likely support you T Resolution of the Federal Antimonopoly Service of the Eastern Military District dated October 19, 2009 No. A43-12345/2009-6-321; FAS ZSO dated December 14, 2010 No. A46-6519/2010; FAS NWO dated January 24, 2011 No. A56-14074/2010; FAS PO dated January 15, 2009 No. A12-10258/2008; FAS Central Election Commission dated May 26, 2010 No. A54-5047/2009C13.

At the same time, you should not ignore the demands of tax officials to submit documents just because they are not directly related to the activities of the taxpayer being audited. Still, some documents, albeit indirectly, may relate to his activities. For example, when checking a principal, such a document may be a delivery agreement concluded by its commission agent in pursuance of a commission order. However, in this case, the tax authority must explain in its request why this document is being requested and how it relates to the activities of the principal. Otherwise, the requirement will appear arbitrary, and this will allow the buyer or supplier not to comply with it legally.

Let us remind you that from this year you have the right not to submit documents requested during a counter inspection if you submitted copies of these documents to your inspection as part of an on-site or desk inspection starting from 01/01/201 1clause 5 art. 93, paragraph 5 of Art. 93.1 Tax Code of the Russian Federation. Accordingly, you cannot be fined for failure to submit such documents.

Document and information - feel the difference

Everything is more or less clear when it comes to requesting documents during oncoming traffic. Significantly more questions arise regarding the right of tax authorities to request from any persons information about specific transactions outside the framework of audits. And clause 2 art. 93.1 Tax Code of the Russian Federation.

The problem is that in practice, tax authorities often, citing this right, demand that documents (invoices, contracts, invoices, payment slips, and so on) be presented to them. Meanwhile, the word “document” in paragraph 2 of Art. 93.1 NK is not even mentioned. But the concepts of “information” and “document” are not identical. They are clearly separated in the text of Art. 93.1 Tax Code, and in the forms of instructions to request documents (information )Appendix No. 6 to the Order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338@ and requirements for the submission of documents (information )Appendix No. 5 to the Order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338@.

Information - This is any information, regardless of the form in which it is presented. That is, you can, in principle, provide the requested information orally (for example, by telephone), and in writing, and on magnetic media, and by e-mail. 2 tbsp. 93. That is, at a minimum, the requirement must indicate the name of the counterparty, the period of the transaction, the type of transaction (purchase and sale, lease, etc.). If the requirement does not contain references to a specific transaction, then a fine for failure to provide information cannot be imposed. I Resolution of the Federal Antimonopoly Service of the North-West District dated November 23, 2010 No. A56-4647/2010; FAS CO dated 08/09/2010 No. A68-13557/09.

Of course, no one wants to once again conflict with tax office, but if the requirements for the presentation of documents are clearly illegal, then they can not be fulfilled without fear of fines.

During desk, on-site and counter audits, tax authorities have the right to require individual entrepreneurs and organizations to submit documents confirming the correct calculation and timely payment (withholding and transfer) of taxes. Those being inspected, in turn, are required to submit the required documents (subclause 5 of Article 23, subclause 1 of clause 1 of Article 31, Article 88, Article 93 of the Tax Code of the Russian Federation). In addition, in a number of cases, taxpayers and tax agents are required to submit the necessary information and documents without any requirements from the tax authorities - due to the fact that this is directly stated in the Tax Code of the Russian Federation. For example, organizations and individual entrepreneurs paying income to citizens submit, within strictly defined deadlines, to the tax authorities at the place of their registration information about the amount of such income and the amount of accrued and withheld tax on personal income (clause 2 of Article 230 of the Tax Code of the Russian Federation). Responsibility for failure to submit documents and information to the tax authority is established by paragraphs 1 and 2 of Article 126 of the Tax Code of the Russian Federation. According to paragraph 1, failure by the taxpayer (tax agent) to submit documents and (or) other information to the tax authorities within the prescribed period entails a fine of 50 rubles for each unsubmitted document. And paragraph 2 provides for the collection of a fine in the amount of 5,000 rubles for failure to provide information about the taxpayer to the tax authority, expressed in the refusal of the organization to provide the documents it has, provided for by the Tax Code of the Russian Federation, with information about the taxpayer at the request of the tax authority, as well as other evasion from providing such documents or provision of documents with deliberately false information, if such an act does not contain signs of a violation provided for in Article 135.1 of the Tax Code of the Russian Federation (Article 135.1 of the Tax Code of the Russian Federation provides for the liability of banks for failure to provide information on financial economic activity taxpayers - bank clients). Everyone knows that tax authorities strive to collect as much taxes as possible. Sometimes, for this purpose, all irremovable doubts, contradictions and ambiguities are interpreted not in favor of taxpayers, but in favor of the budget. Therefore, it turns out that if the taxpayer is guilty of something, penalties “grow” by hook or by crook. Visual confirmation: the application of Article 126 of the Tax Code of the Russian Federation in practice. If the offense falls under paragraph 1, but the fine is small (not many documents not submitted), the offense is qualified under paragraph 2. Another example: collection of a fine not in accordance with Article 126, but in accordance with Article 129.1 of the Tax Code of the Russian Federation. There are cases when, along with Article 126 of the Tax Code of the Russian Federation, Article 119 of the Tax Code of the Russian Federation is also applied, which provides for liability for failure to submit declarations. Article 126 of the Tax Code of the Russian Federation: paragraph 1 or paragraph 2? According to paragraph 1 of Article 126 of the Tax Code of the Russian Federation, the fine is 50 rubles for each unsubmitted document. Under paragraph 2, a fine is collected in the amount of 5,000 rubles, and it doesn’t matter how many documents are not submitted, one is enough. Let’s assume that an organization is undergoing a tax audit, during which five acts confirming the provision of services are requested._Documents are not submitted. What sanctions should follow in this case - under paragraph 1 or paragraph 2? Under paragraph 1, the fine will be 250 rubles. (5 documents x 50 rub.); according to point 2 - 5000 rubles. It’s not difficult to guess which of the two paragraphs of Article 126 of the Tax Code of the Russian Federation will be applied: Let’s figure it out. In this case, the taxpayer is checked and he has the obligation to submit the requested documents that relate to his activities. Therefore, paragraph 1 of Article 126 of the Tax Code of the Russian Federation should be applied, which provides for liability for "failure to submit on time taxpayer(tax agent) documents and (or) other information to the tax authorities: ". The disposition of the norm set out in paragraph 2 of Article 126 of the Tax Code of the Russian Federation gives reason to believe that it deals with those cases when information about the taxpayer is not provided by a third party, and not by the taxpayer himself: “failure to provide the tax authority with information about the taxpayer, expressed in the organization’s refusal to provide the documents it has: with information about the taxpayer:” _In this case, the organization that has not provided information not about itself, but about the person whose activities are of interest to the tax authorities must respond._Clause 1 and 2 of Article 126 of the Tax Code of the Russian Federation are stated quite clearly and clearly, and there should be no doubt which of the they should be applied in a given situation. However, there are many examples showing the opposite. Where the situation falls under paragraph 1, tax authorities quite often classify the actions of the perpetrators under paragraph 2. But if taxpayers, not agreeing with such qualifications, turn to arbitration courts, the latter, as a rule, take their side. "Taxpayers and tax agents are the subject of the act provided for in paragraph 2 of Article 126 Tax Code Russian Federation are not", - indicates the Federal Antimonopoly Service of the West Siberian District in a resolution dated February 26, 2001 in the case NF04/539-64/A70-2001. "In accordance with the specified norm(meaning paragraph 2 of Article 126 of the Tax Code of the Russian Federation. - Note author) subject of the offense<...>is not a taxpayer<...>and an organization that has information (documents) about the taxpayer and is obliged, in accordance with the Tax Code of the Russian Federation, to submit such documents", - the same court concludes in its ruling dated 02/05/01 in the case NF04/323-19/A70-2001.

“From the meaning of paragraph 2 of Article 126 of the Tax Code of the Russian Federation, it follows that the elements of an offense under this rule of law exist in the case where the organization refused to give out information about a third party.”, - the judges of the Federal Antimonopoly Service of the Moscow District share the opinion of their colleagues in the ruling dated November 28, 2001 in the case NKA-A40/6905-01. “The defendant provided false information about himself, and not about a third party.”, - indicates the same court in its ruling dated January 24, 2001 in the case NKA-A40/6387-00 and concludes that holding the taxpayer accountable on the basis of paragraph 2 of Article 126 of the Tax Code of the Russian Federation is illegal, since it contradicts the norms of substantive law.

The FAS of the Volga District reasoned in a similar way in a resolution dated 05/29/01 in case NА55-13505/00-37, the FAS Central District in a resolution dated 02/28/01 in case NA14-7575-00/177/24, FAS North-Western District in the decision dated July 16, 2001 in case NА42-5599/00-23.

But it cannot be said that all judges are completely unanimous on this issue. A unique interpretation of paragraph 2 of Article 126 of the Tax Code of the Russian Federation was given by the Federal Antimonopoly Service of the North-Western District in a resolution dated 02/11/02 in case NА56-23564/01: "Responsibility under paragraph 2 of Article 126 of the Tax Code of the Russian Federation arises for failure to provide information about the taxpayer to the tax authority<...>in the event of failure by any person, including the taxpayer himself, to provide information about the taxpayer.”

Article 126 or 129.1?

According to paragraph 1 of Article 129.1 of the Tax Code of the Russian Federation, a fine of 1000 rubles is charged for unlawful failure to report ( untimely message ) by a person information that, in accordance with the Tax Code of the Russian Federation, this person must report to the tax authority, in the absence of signs of a tax offense provided for in Article 126 of the Tax Code. And for the same act, committed again within a calendar year, a fine of 5,000 rubles is imposed. At first glance, Articles 126 and 129.1 are not much different from each other. In both cases, we are talking about failure to provide or report information to the tax authority. For this reason, tax authorities sometimes apply not Article 126, but Article 129.1 of the Tax Code of the Russian Federation to taxpayers guilty of failure to provide information and documents. Meanwhile, there is a difference, and it is more than significant. The subject of the offense provided for in Article 129.1 of the Tax Code of the Russian Federation is a person who has not reported to the tax authority the information that is required to be reported in accordance with the Tax Code of the Russian Federation. Such a person may be the taxpayer himself or other persons. However, paragraph 1 of Article 129.1 mentions the absence of signs of an offense provided for in Article 126 of the Tax Code of the Russian Federation. One of the signs of an offense provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation is the subject of the offense - the taxpayer (tax agent) who has not provided information to the tax authorities. Consequently, if the subject of the offense is a taxpayer (tax agent), Article 129.1 cannot be applied. A sign of an offense provided for in paragraph 2 of Article 126 of the Tax Code of the Russian Federation is the refusal of an organization to provide the documents it has at the request of the tax authority. Thus, according to paragraph 2 of Article 126 of the Tax Code of the Russian Federation, firstly, a request from the tax authority must be received, and secondly, the request must be refused. Therefore, if there was a request and a refusal, Article 129.1 of the Tax Code of the Russian Federation also cannot be applied. Thus, an act can be qualified under Article 129.1 of the Tax Code of the Russian Federation if, firstly, the subject of such an act is a person who is not a taxpayer (tax agent), and secondly, information must be provided not by virtue of the requirement of the tax authority, but by virtue of the law. The specified criteria are met by cases of failure by state bodies to report the facts of registration of organizations and individual entrepreneurs, places of residence of individuals, civil status, accounting and registration of property and transactions with him. Let us recall that the relevant information must be submitted to the tax authorities by virtue of Article 85 of the Tax Code of the Russian Federation. Examples of arbitration practice confirm this. The conclusion that it is not taxpayers, but other persons who can be held liable under Article 129.1 of the Tax Code of the Russian Federation, was made by the FAS of the Far Eastern District in decisions dated 12/05/01 in case NF03-A51/01-2/2517 and dated 02/28/01 on case NF03-A51/01-2/227, FAS North-Western District in a resolution dated 01.23.02 in case NA56-27480/01.

“The subjects of a tax offense in this case may be the bodies that register organizations and individual entrepreneurs, places of residence of individuals, acts of civil status, etc.”, - indicated the FAS of the Far Eastern District in a resolution dated December 19, 2001 in the case NF03-A73/01-2/2587. A similar conclusion is contained in the resolution of the Federal Antimonopoly Service of the North-Western District dated November 6, 2001 in case N3732, in the resolution of the Federal Antimonopoly Service of the Central District dated November 30, 2001 in case NА54-2661/01-С7 and dated November 30, 2001 in case NА54-2324/01-С7 .

Articles 126 and 119: what to choose? The provision of paragraph 1 of Article 126 of the Tax Code of the Russian Federation is similar not only to the norm contained in Article 129.1 of the Tax Code of the Russian Federation, but also to the norm set out in Article 119 of the Tax Code of the Russian Federation, which provides for liability for failure to submit declarations. Compare: paragraph 1 of Article 126 of the Tax Code of the Russian Federation provides for liability for failure by the taxpayer to submit documents and (or) other information to the tax authorities within the prescribed period, and Article 119 of the Tax Code of the Russian Federation - liability for failure to submit a declaration to the tax authority within the period established by law. The declaration is a document. Apparently, tax authorities are guided by this consideration, when taxpayers are sometimes held accountable for late submission of declarations not under Article 119 of the Tax Code of the Russian Federation, but under paragraph 1 of Article 126 of the Tax Code of the Russian Federation. In some cases, the fine under paragraph 1 of Article 126 of the Tax Code of the Russian Federation may be much less than under Article 119 of the Tax Code of the Russian Federation. Therefore, for those taxpayers who do not want to argue with the tax authority once again, such an error will be beneficial, since they will have to pay less. For those who are not afraid of disputes, such an error can serve an even more beneficial service - the guilty taxpayer, with a certain degree of probability, may even be released from liability for late submission of the declaration. This is explained as follows. After making a decision to prosecute, the tax authority will offer the taxpayer to pay the fine on a voluntary basis. After the deadline for voluntary payment of the fine has expired, the tax authority will be forced to appeal to the arbitration court. When defending his interests in court, the taxpayer must declare that the tax inspectorate qualified his actions (inaction) under paragraph 1 of Article 126 of the Tax Code of the Russian Federation as a mistake. How the arbitration court will resolve the dispute in a given case cannot be predicted, however, based on examples of arbitration practice in On this issue, we can assume that the court will not satisfy the tax authority’s claim. Thus, you will not have to pay any fine at all. Considering the cassation appeal of the tax authority, the FAS North Caucasus District in the resolution dated 02.21.01 in the case NF08-444/2001-140A indicated: “The defendant’s actions do not constitute a tax offense provided for in Article 126 of the Tax Code of the Russian Federation. The conclusion of the tax authority is that Article 126 of the Tax Code of the Russian Federation provides for liability for the taxpayer’s failure to submit within the period established by the legislation on taxes and fees tax return to the tax authority at the place of registration, seems erroneous". Let us clarify that the tax authority's appeal to the court was caused by the fact that the taxpayer did not submit tax returns on time. The tax authority qualified this offense under Article 126 of the Tax Code of the Russian Federation and applied to the arbitration court to collect the fine. However, the court of first instance rejected the tax authority's claim, and the cassation instance rejected the cassation appeal. There are cases when tax authorities, if they fail to submit declarations on time, hold taxpayers accountable under two articles at once - under Article 119 and under Article 126 of the Tax Code of the Russian Federation. Wherein established by clause 2 of Article 108 of the Tax Code of the Russian Federation, the prohibition on repeated prosecution for committing the same offense is ignored. The courts do not agree with the tax authorities in such cases. For example, one of the district inspectorates of the Kursk region brought the organization to justice under both Article 119 and paragraph 1 of Article 126 of the Tax Code of the Russian Federation for failure to submit declarations. However, the courts of the first, appeal and cassation instances, considering such actions to be unlawful, sided with the taxpayer. Resolving this dispute, the cassation instance indicated: “The fine imposed on the basis of Part 1 of Article 126 of the Code was imposed by the plaintiff unlawfully, since the plaintiff holds the defendant accountable for the same violation in the same form for which he has already been held accountable in accordance with Article 119 of the Tax Code of the Russian Federation.”(resolution of the Federal Antimonopoly Service of the Central District dated June 26, 2001 in case_NA35-5867/00-С2). The Federal Antimonopoly Service of the Northwestern District, issuing a resolution dated June 9, 2001 in case NА26-5158/00-02-03/395, also considered that to attract for failure to submit tax returns simultaneously under two articles (Articles 119 and 126 of the Tax Code of the Russian Federation) is prohibited.

Ask something, I don’t know what. And how many

The amount of the fine established by paragraph 1 of Article 126 of the Tax Code of the Russian Federation is directly proportional to the number of unsubmitted documents. On this basis, we can conclude that if the tax authority issues a requirement to the taxpayer (tax agent) to submit documents, then it must clearly indicate which documents and in what quantity must be submitted. Otherwise, if the taxpayer does not send or issue documents, it will not be possible to calculate the amount of the fine. But it is impossible to hold the taxpayer accountable under such circumstances.

There are several examples of arbitration practice where courts reasoned in this way. Refusing the tax authority to satisfy the cassation appeal, the Federal Antimonopoly Service of the Moscow District concluded that the defendant did not have the right to hold the plaintiff accountable, since the letter containing the requirement to submit documents did not indicate what specific documents the plaintiff must submit and their number (resolution dated August 20, 2001 in case NKA-A40/4293-01).

The same FAS of the Moscow District reasoned in a similar way when issuing a resolution dated February 13, 2001 in the case NKG-A40/249-01. If there is no specific list of required documents and their number is not indicated, there are no grounds for holding the taxpayer liable. The court also indicated that_ “the law does not allow prosecution for failure to submit documents, the number of which is determined by calculation”.

Considering a similar case, the Federal Antimonopoly Service of the North-Western District came to the conclusion that “The obligation to submit documents, formulated abstractly by the inspectorate, not only disorients the taxpayer in its execution, but also does not allow establishing the amount of the fine to be collected for this tax offense, since it is determined depending on the number of documents requested but not submitted.”(resolution dated May 14, 2001 in case NА42-4625/00-5).

Number of employees or number of floppy disks?

I would like to pay special attention to the problem of holding tax agents accountable in accordance with paragraph 1 of Article 126 of the Tax Code of the Russian Federation in the event of failure to submit to the tax authorities information about income paid to individuals and taxes withheld.

As is known, such information in most cases should be presented on magnetic media (floppy disks). How should the fine be calculated if the tax agent does not provide the relevant information in a timely manner: based on the number of individuals or based on the number of floppy disks?

Most federal arbitration courts believe that the fine is calculated based on the number of individuals. “The amount of the fine established by clause 1 of Article 126 of the Tax Code of the Russian Federation for improper performance by a tax agent of the duties assigned to him must be calculated based on the number of persons whose information was not submitted to the inspectorate or was submitted untimely.”, - indicates the FAS of the Central District in a resolution dated January 11, 2001 in case NА35-2431/00-С2. The FAS of the West Siberian District believes that "regardless of the type of presentation of information - on paper or magnetic media - information on paid income is presented for each individual in the form of a separate certificate". Based on this, the court found it lawful for the tax authority to collect a fine, the amount of which was determined based on the number of employees (resolution dated February 21, 2001 in case NF04/503-81/A27-2001). Taking the side of the tax authority, the Federal Antimonopoly Service of the Ural District determined that "When applying liability under clause 1 of Article 126 of the Tax Code of the Russian Federation, it is necessary to proceed from the fact that each document (certificate) relating to a specific taxpayer is a separate document regardless of the method of submitting it to the tax authority: on paper or magnetic media"(resolution dated 06/14/01 in case NF09-1159/01-AK. A similar position is taken by the FAS Volga District (resolution dated 01/11/01 in case N6823/00-7), FAS Far Eastern District (resolution dated 07/11/01 in case NF03- A51/01-2/1285).However, sometimes there are cases when federal arbitration courts resolve such disputes in favor of tax agents. For example, the Federal Antimonopoly Service of the Far Eastern District, issuing a resolution dated 04/18/01 in case No. F03-A73/01-2/514 , considered that the fine should be calculated not based on the number of employees for whom information was not submitted in a timely manner, but based on the number of floppy disks (2 pieces) and the number of registers attached to them (2 pieces). The FAS of the Ural District reasoned in a similar way when issuing a resolution dated 05.18.01 in the case NF09-915/01-AK. The same opinion was shared by the judges of the Federal Antimonopoly Service of the Far Eastern District in the resolution dated 05.11.01 in the case NF03-A51/01-2/751, with the only difference that when calculating the fine Only the number of floppy disks was taken as a basis.

When is there no guilt?

According to paragraph 2 of Article 109 of the Tax Code of the Russian Federation, the absence of guilt of a person in committing a tax offense is a circumstance that excludes prosecution.

What facts may indicate absence of guilt? Practice shows that arbitration courts usually believe that a taxpayer is not subject to liability due to lack of guilt in the following circumstances:

• documents are lost (decision of the Federal Antimonopoly Service of the North-Western District dated 07.16.01 in case NА26-3922/00-02-04/213, FAS Moscow District dated 05.14.01 in the case NKA-A40/2174-01 and dated 06.09.01 in the case NKA-A40/2731-01);
• documents were seized by law enforcement agencies (resolution of the FAS Volga-Vyatka District dated 02/15/01 on NА29-5847/00A, FAS West Siberian District dated 10/22/01 on case NF04/3230-938/A46-2001);
• the taxpayer did not receive the request of the tax authority to submit documents (resolution of the FAS Moscow District dated 04/02/01 in case NKA-A40/1303-01, FAS Northwestern District dated 10/01/01 in case NА26-2644/01-02-10/140 );
• documents were submitted in violation of the deadline established by law due to the fact that upon initial timely submission, errors were discovered in them and the documents were returned for revision (resolution of the FAS Volga District dated February 15, 2001 in case NA65-8217/2000-SA1-29, FAS Far Eastern District dated July 11, 2001 in case NF03-A51/01-2/1285).

But the subjective factor is not taken into account by the courts. If at the time of receiving the request there is no director of the organization, the documents can be issued by another employee ( Chief Accountant). Therefore, the absence of a manager cannot be taken into account as a circumstance excluding the taxpayer’s guilt, believes the FAS of the Far Eastern District (resolution dated October 24, 2001 in case NF03-A59/01-2/2144). The Federal Antimonopoly Service of the Central District is of the opinion that if the former head of the organization did not transfer accounting documents to the new head, this is also not a valid reason (resolution dated November 29, 2001 in case NА54-2300/01-С1).

Extenuating circumstances

Some circumstances, although not recognized as circumstances excluding guilt in committing a tax offense expressed in failure to submit documents, can nevertheless be used by the taxpayer to reduce the amount of fines as mitigation

It is not at all necessary that certain real facts be named in the law as mitigating circumstances. By virtue of subparagraph 3 of paragraph 1 of the Tax Code of the Russian Federation, they can be recognized by the court. And this, in turn, will entail a reduction in the size of the fine by at least two times.

Performance balance sheet one day late, according to the Federal Antimonopoly Service of the North-Western District, is a mitigating circumstance (resolution of June 26, 2001 in case N1278). The FAS Volga-Vyatka District, issuing a resolution dated November 13, 2001 in case NА29-4058/01A, recognized a power outage as a mitigating circumstance. The court considered that this entailed the impossibility of using technology to compile the necessary information on income paid to individuals on magnetic media.

From the resolution of the Federal Antimonopoly Service of the North-Western District dated July 17, 2001 in case NА26-5260/00-02-03/407 it follows that mitigating circumstances are the transfer of documents for verification to audit firm until the organization receives a request to submit documents, as well as the illness of the chief accountant during this period. As mitigating circumstance lack of funding may also be recognized budgetary organization. Funds were not allocated for a computer, and there was nothing to produce the information necessary for submission to the tax authority (resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 16, 2001 in case NF03-A16/01-2/807).

Taxation

CONTROVERSIAL ISSUES OF BRINGING TAX RESPONSIBILITY UNDER ARTICLE 126 OF THE TAX CODE OF THE RF

Y. M. LERMONTOV, consultant to the Ministry of Finance of Russia

According to paragraph 1 of Art. 93 Tax Code of the Russian Federation executive The tax authority conducting the tax audit has the right to request from the person being inspected the documents necessary for the audit by delivering to this person (his representative) a request for the presentation of documents.

In paragraph 4 art. 93 of the Tax Code of the Russian Federation states that the refusal of the person being inspected to submit the documents requested during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under Art. 126 of the Tax Code of the Russian Federation.

If a taxpayer (fee payer, tax agent) fails to submit documents and (or) other information provided for by the Tax Code of the Russian Federation and other acts of legislation on taxes and fees to the tax authority within the prescribed period, then he will be fined in the amount of 50 rubles. for each document not submitted (clause 1 of Article 126 of the Tax Code of the Russian Federation).

The information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 No. 71 states that the sanction provided for in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, cannot be applied for failure to submit a document, which, although named in the normative legal act as mandatory for submission, but is an attachment to the tax return (tax calculation).

For failure to provide the tax authority with information about the taxpayer, expressed in the refusal of the organization to provide the documents it has, provided for by the Tax Code of the Russian Federation, with information about the taxpayer at the request of the tax authority, as well as other evasion from providing such documents or providing documents with knowingly false information, if such an act does not contain signs of violation of the legislation on taxes and fees provided for in Art. 135.1 of the Tax Code of the Russian Federation, entails a fine in the amount of 5 thousand rubles. (clause 2 of article 126 of the Tax Code of the Russian Federation).

Article 135.1 of the Tax Code of the Russian Federation establishes liability for the bank’s failure to submit certificates (statements) on transactions and accounts to the tax authority.

Based on the direct interpretation of this norm, the subject of a tax offense, the liability for which is provided for in clause 2 of Art. 126 of the Tax Code of the Russian Federation, there can only be an organization.

The validity of this conclusion is also evidenced by the following provisions.

Based on Art. 106 of the Tax Code of the Russian Federation, a tax offense is recognized as an unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons, for which the Tax Code of the Russian Federation establishes liability.

By virtue of paragraph 1 of Art. 108 of the Tax Code of the Russian Federation, no one can be held accountable for committing a tax offense other than on the grounds and in the manner provided for by the Tax Code of the Russian Federation.

Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 16 Information letter dated March 17, 2003 No. 71 when considering the case on the procedure for applying Art. 122 of the Tax Code of the Russian Federation, indicating the onset of liability in case of non-payment or incomplete payment of tax amounts, indicated that in a situation where we are talking about an advance payment of tax, this liability cannot be applied. Thus, in the process of law enforcement practice it is unacceptable to expand the scope of the rules on tax liability.

These conclusions of the Presidium of the Supreme Arbitration Court can be taken into account when arguing the position of the taxpayer - an individual entrepreneur in this case.

Taking into account this position, extend the effect of clause 2 of Art. 126 of the Tax Code of the Russian Federation in the absence of the possibility enshrined in this norm is unlawful.

There is no single position in judicial practice on this issue.

Thus, the FAS of the Central District, in resolution dated October 19, 2006 No. A35-1328/06-C11, considered a situation in which the tax authority, as part of a counter tax audit, requested from an individual entrepreneur documents relating to his financial and economic relationships with another individual entrepreneur, in relation to where the main events are held tax control. As the court indicated, refusal to submit or other evasion from submitting such documents or submission of documents with knowingly false information entails liability under paragraph 2 of Art. 126 of the Tax Code of the Russian Federation.

Other courts take the position that an individual entrepreneur cannot be the subject of a tax offense provided for in paragraph 2 of Art. 126 of the Tax Code of the Russian Federation.

Thus, the Federal Antimonopoly Service of the North-Western District, in its resolution dated September 25, 2008 No. A13-3145/2007, came to the conclusion that, based on the systemic interpretation of the disposition of clause 2 of Art. 126 of the Tax Code of the Russian Federation, the subjects of this offense are only organizations, that is, legal entities formed in accordance with the legislation of the Russian Federation. An entrepreneur cannot be held liable on the basis of clause 2 of Art. 126 of the Tax Code of the Russian Federation.

The FAS Volga-Vyatka District, in its resolution dated March 16, 2006 No. A82-4818/2005-28, also supported the position according to which an individual entrepreneur cannot be held liable under clause 2 of Art. 126 of the Tax Code of the Russian Federation, since it is not the subject of this tax offense. As the court indicated, the tax authority held the individual entrepreneur liable

information according to clause 2 of Art. 126 of the Tax Code of the Russian Federation in the absence of the corresponding offense.

Thus, an individual entrepreneur cannot be the subject of a tax offense, the liability for which is provided for in clause 2 of Art. 126 of the Tax Code of the Russian Federation. At the same time, taking into account the approach and judicial practice used by local tax authorities, in the event of a dispute with a tax authority that has brought an individual entrepreneur to justice under clause 2 of Art. 126 of the Tax Code of the Russian Federation, the taxpayer will obviously have to prove the illegality of such a decision in court.

Based on clause 2 of Art. 126 of the Tax Code of the Russian Federation, an organization that has information about a taxpayer being inspected by a tax authority is held liable if this organization has not fulfilled the obligation to submit documents based on a request from the tax authority. In the context of paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, the subject of the offense is not the taxpayer subject to a tax audit, but a third party who has documents containing information about the taxpayer of interest to the tax authority, including during a counter audit.

In addition, the objective side of the offense provided for in paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, is expressed in refusal or evasion from submitting documents (information) or submitting documents with obviously false information at the request of the tax authority.

Persons, in accordance with the provisions of tax legislation, are obliged to provide information to the tax authority without any request from the tax authority (in the case under consideration, such an obligation is provided for in paragraph 2 of Article 230 of the Tax Code of the Russian Federation). Failure to provide information about the taxpayer, as well as reporting false information about the taxpayer, does not constitute an offense under paragraph 2 of Art. 126 NKRF.

These conclusions are also confirmed by arbitration practice (for example, decisions of the FAS of the North-Western District dated September 25, 2008 No. A13-3145/2007, FAS of the Ural District dated June 13, 2007 No. F09-4360/07-S2, FAS of the Volga District dated April 26, 2007 No. A72-8739/06-14/319, FAS East Siberian District dated March 16, 2004 No. A78-4391/03-S2-28/176-F02-707/04-S1).

Thus, bringing the organization to responsibility provided for in paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, for failure to provide information about income paid to its employees is unlawful. Responsibility for non-compliance by the person being inspected

the tax agent requests the tax authority to submit documents to the tax authority, provided for by law on taxes and fees and those necessary for the calculation and payment of tax, occurs on the basis of clause 1 of Art. 126 of the Tax Code of the Russian Federation.

In paragraph 7 art. 88 of the Tax Code of the Russian Federation formulates a general rule according to which, when conducting a desk tax audit, the tax authority does not have the right to request additional information and documents from the taxpayer, unless otherwise provided by Art. 88 of the Tax Code of the Russian Federation or if the submission of such documents along with the tax return (calculation) is not provided for by the Tax Code of the Russian Federation.

At the same time, in paragraphs. 6, 8, 9st. 88 of the Tax Code of the Russian Federation establishes “exceptions” from general rule. Thus, requesting documents is allowed in the following cases:

When conducting desk tax audits, tax authorities also have the right to request, in accordance with the established procedure, from taxpayers using tax benefits, documents confirming the right of these taxpayers to these tax benefits (clause bet. 88 of the Tax Code of the Russian Federation);

When filing a tax return for value added tax, in which the right to a tax refund is declared, the tax authority has the right to request from the taxpayer documents confirming in accordance with Art. 172 of the Tax Code of the Russian Federation, the legality of applying tax deductions (clause 8 of article 88 of the NKRF);

When conducting a desk tax audit on taxes related to the use of natural resources, tax authorities have the right, in addition to the documents specified in paragraph 1 of Art. 88 of the Tax Code of the Russian Federation, request from the taxpayer other documents that are the basis for the calculation and payment of taxes (clause 9 of Article 88 of the Tax Code of the Russian Federation). At the law enforcement level there is

the question of the right of the tax authority to hold the taxpayer accountable under clause 2 of Art. 126 of the Tax Code of the Russian Federation for failure to provide documents as part of a counter-inspection, if the requested documents are submitted incompletely.

The provisions of paragraph 2 of Art. 126 of the Tax Code of the Russian Federation contain such a tax offense as “other evasion from submitting documents.”

The incomplete submission of documents within the framework of a counter-inspection should be considered precisely as “another evasion from the submission of documents.”

Thus, the tax authority has the right to hold the organization accountable under clause 2 of Art. 126 of the Tax Code of the Russian Federation for failure to provide documents as part of a counter-inspection, if requested

documents are presented incompletely.

The taxpayer cannot be held liable under Art. 126 of the Tax Code of the Russian Federation, if the request to provide documents was not received by him. Failure to comply with this requirement entails the cancellation of the decision to impose a fine for failure to provide the tax authority with the requested documents. These conclusions are confirmed arbitrage practice(see, for example, resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 11, 2006 No. A82-1990/2005-27, resolution of the Federal Antimonopoly Service of the East Siberian District dated January 26, 2006 No. A19-17553/05-52-F02-7102/05- C1, resolution of the Federal Antimonopoly Service of the Far Eastern District dated September 28, 20050 No. F03-A04/05-2/2907, resolution of the Federal Antimonopoly Service of the Northwestern District dated January 30, 2002 No. A56-23560/01).

Responsibility under Art. 126 of the Tax Code of the Russian Federation is subject to application for failure to provide each requested document. Consequently, the taxpayer cannot be held accountable if the number of documents not submitted by him is not reliably determined by the tax authority.

Arbitration courts also share the stated conclusions.

According to the official position of the Supreme Arbitration Court of the Russian Federation, a taxpayer cannot be held accountable if the number of documents not submitted by him is not reliably determined by the tax authority. Establishing the amount of the fine based on the taxpayer’s presumable availability of at least one of the requested types of documents is unacceptable (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 8, 2008 No. 15333/07).

The lower courts support the position of the Supreme Arbitration Court of the Russian Federation, pointing out, among other things, that if the number of unsubmitted documents is not reliably determined by the tax authority, then this indicates that the tax authority has not proven the amount of the fine (decision of the Moscow Arbitration Court dated June 20, 2008 No. A40-14873/08 -107-50, resolution of the Federal Antimonopoly Service of the Ural District dated November 17, 2008 No. Ф09-7534/08-СЗ, Federal Antimonopoly Service of the West Siberian District dated July 17, 2008 No. Ф04-4512/2008(8603-А46-31), Federal Antimonopoly Service of the Far Eastern District dated 05.09 .2008 No. Ф03-А59/08-2/2247 and dated 06/07/2008 No. Ф03-А80/08-2/1623).

Thus, the taxpayer cannot be held liable under Art. 126 of the Tax Code of the Russian Federation, if the number of documents not submitted by him is not reliably determined by the tax authority.

Article 129.1 of the Tax Code of the Russian Federation establishes a similar article. 126 of the Tax Code of the Russian Federation, the composition of a tax offense is unlawful failure to report information to the tax authority.

However, in the event that the person being inspected refuses to submit the documents requested during a tax audit or fails to submit them within the established time frame, Art. 126 Tax Code of the Russian Federation

The point is that Art. 126 of the Tax Code of the Russian Federation establishes liability for failure to provide the tax authority with information necessary for tax control.

Clause 1 of Art. 126 of the Tax Code of the Russian Federation applies only to taxpayers and tax agents. Responsibility under clause 2 of Art. 126 of the Tax Code of the Russian Federation occurs if the information is not provided due to a request from the tax authority, and not due to a direct indication in the Tax Code of the Russian Federation.

Article 129.1 of the Tax Code of the Russian Federation establishes liability for unlawful failure to report (untimely communication) by a person of information that, in accordance with the Tax Code of the Russian Federation, this person must report to the tax authority, in the absence of signs of a tax offense under Art. 126 of the Tax Code of the Russian Federation. That is, the subjects of this tax offense are participants in tax legal relations other than the taxpayer

and tax agent. For example, item Zet. 85 of the Tax Code of the Russian Federation establishes the obligation of bodies carrying out state registration of rights to real estate and transactions with it, report to the tax authorities information about real estate located on the territory under their jurisdiction within 10 days from the date of corresponding registration.

On the illegality of application of Art. 129.1 of the Tax Code of the Russian Federation, in the event of a refusal by the person being inspected to submit the documents requested during a tax audit or failure to submit them within the established time frame, judicial practice also indicates (see, for example, resolutions of the Federal Antimonopoly Service of the Moscow District dated April 21, 2004 No. KA-A40/6066-04, FAS East Siberian District dated March 23, 2006 No. A19-35754/05-15-F02-1166/06-S1).

Bibliography

Notification to the tax authority about changes in the constituent documents outside the 10-day period established by clause 3 of Art. 84 of the Tax Code of the Russian Federation, qualifies as a tax offense under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service UO dated February 23, 2001 N F09-246/2001-AK).

The taxpayer, by virtue of sub. 4 paragraphs 1 art. 23 of the Tax Code of the Russian Federation is obliged to provide financial statements to the tax authority in accordance with Federal law"About accounting". Therefore, failure to submit the relevant financial statements qualifies as a tax offense under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the FAS VSO dated December 14, 2001 N A33-10909/01-S3-F02-3111/01-S1).

Failure by a taxpayer (tax agent) to provide information requested by the tax authority for the purpose of conducting a counter tax audit entails liability under clause 2 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service NWZ dated November 20, 2001 N A56-21709/01).

In case of failure to comply with the tax authority's request to provide accounting documents, declared by virtue of Art. 93 of the Tax Code of the Russian Federation, due to their actual absence, the taxpayer should be held accountable not for failure to provide the tax authority with the information necessary to carry out tax control, under Art. 126 of the Tax Code of the Russian Federation, and under Art. 120 of the Tax Code of the Russian Federation for gross violation of the rules for accounting for income and expenses and objects of taxation (Resolution of the Federal Antimonopoly Service UO dated 05.02.2002 N F09-165/02-AK).

Taxpayers, payers of fees and tax agents cannot be held liable for failure to provide the tax authority with the information necessary to carry out tax control under clause 2 of Art. 126 of the Tax Code of the Russian Federation, since it applies only to other persons who have information about the taxpayer (Resolution of the Federal Antimonopoly Service NWZ dated July 30, 2001 N A05-2205/01-129/19).

Organizations that are not employers in relation to a private notary and to entrepreneurs from whom goods are purchased do not bear the obligation to calculate, withhold and contribute amounts to the budget income tax from the income paid to them, as well as from the payment of state fees to the notary for performing notarial acts. Therefore, they do not have the duties of a tax agent to submit relevant information to the tax office, which excludes the possibility of applying liability under Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service TsO dated 01/08/2002 N A68-175/13-01).

The requirement to provide documents was not made as part of tax control, but after an on-site audit (after the decision was made). In this connection, there are no grounds for collecting a fine under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, for failure to provide information necessary for tax control (Resolution of the Federal Antimonopoly Service ZSO dated 01/08/2002 N FO4/15-910/A70-2001).

The loss by a taxpayer of documents not retained for four years (subclause 8, clause 1, article 23 of the Tax Code of the Russian Federation), necessary for the calculation and payment of taxes, is not a basis for releasing him from liability for their failure to submit them at the request of the tax authorities under clause 1 of article . 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service NWZ dated July 11, 2001 N A42-7956/00-15-2105/01).

The tax office's requirement to provide documents is based on the assumption of their availability. This assumption was made based on the legislation on accounting and analysis of documents seized by the tax police. However, the assumption cannot be the basis for applying liability under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, since this liability can be applied only on the basis of the fact that these documents exist with the taxpayer (Resolution of the Federal Antimonopoly Service UO dated November 1, 2001 N F09-2759/01-AK).

The taxpayer is not obliged to notify the tax authority about changes to the statutory documents relating to changes in the composition of the company's participants and the redistribution of shares in the authorized capital, since these changes are not named in Art. 84 of the Tax Code of the Russian Federation, which excludes the possibility of prosecution under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolutions of the Federal Antimonopoly Service UO dated March 11, 2002 N F09-431/02-AK).

Collection of a fine for late submission of the balance sheet under clause 1 of Art. 126 of the Tax Code of the Russian Federation is justified (Resolution of the Federal Antimonopoly Service of the North Caucasus Region of June 13, 2001 N F08-1653/2001-507A).

Late submission documents by organization (Institution of Justice for state registration rights to real estate and transactions with it in the territory Sverdlovsk region), which is obliged in accordance with the Tax Code of the Russian Federation to provide such documents to the tax authority, is not an evasion from providing documents, and there are no grounds for bringing the organization to justice under clause 2 of Art. 126 of the Tax Code of the Russian Federation is not available (Decision dated February 21, 2002 and Resolution dated April 23, 2002 of the Arbitration Court of the Sverdlovsk Region).

The Tax Inspectorate sent a request for the submission of registers accounting and all primary documents. The volume of the requested documents is about sixteen thousand sheets, so the taxpayer could not organize the copying of documents and the submission of certified copies to the tax office in accordance with paragraph 1 of Art. 93 Tax Code of the Russian Federation. Bringing him to justice under Art. 126 of the Tax Code of the Russian Federation is illegal (Resolution of the Federal Antimonopoly Service of the Northern Territory of December 19, 2000 N 3362).

For failure to submit to the tax authority within the established time frame a special notice of transactions and settlements with partners in 1996, the equivalent of which for each transaction exceeded $100,000, the taxpayer is liable under clause 1 of Art. 126 of the Tax Code of the Russian Federation, since the requirements of paragraph 5 of Decree of the President of the Russian Federation No. 1212 are established for the purpose of tax control, and their failure to comply is a tax offense. Liability under Decree No. 1212 should not be applied by virtue of clause 3 of Art. 5 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service UO dated 04/05/2001 N F09-614/01-AK).

The taxpayer did not present as part of the financial statements audit report. The Inspectorate of Taxation applied a fine under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation. However, the court indicated that between the Law on Accounting (Article 15 - 90 days) and the Law on joint stock companies(subparagraph 11, paragraph 1, article 48 and paragraph 1, article 47 - no earlier than two months and no later than six months after the end financial year) there are inconsistencies and contradictions regarding reporting deadlines. In this regard, the fine was applied unlawfully, since in accordance with paragraph 6 of Art. 108 of the Tax Code of the Russian Federation, all irremovable doubts about a person’s guilt are interpreted in his favor (Resolution of the Federal Antimonopoly Service of the Moscow Region dated November 6, 2001 N KA-A40/6358-01).

The tax authority has the right to require the taxpayer to provide only those documents that are provided for by tax legislation. Requirement of the tax authority to provide information on the amount of income from the provision of rental services and the monthly breakdown of tax on users highways, separately for the Federal and Territorial Road Funds is illegal, because such documents current legislation are not provided for, the imposition of a fine under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation is unlawful (Resolution of the Federal Antimonopoly Service of the Northern Territory of October 16, 2001 N A42-4475/01-27).

Calculation additional payments for income tax (clause 2 of article 8 of the Law on Income Tax) is not a tax return, and its failure to submit entails the taxpayer’s liability under clause 1 of art. 126 of the Tax Code of the Russian Federation, and not under Art. 119 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service NWZ dated April 3, 2002 N A05-10876/01-579/10).

The sanction provided for in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation cannot be applied for failure to submit a document, which, although named in the regulatory legal act as mandatory for submission, is an appendix to the tax return (Resolution of the Federal Antimonopoly Service UO dated February 27, 2004 N FO9-518/04-AK).

The deadline for submitting information on making a decision on the reorganization of a taxpayer (clause 2 of Article 23 of the Tax Code of the Russian Federation) is calculated not from the moment of state registration of the relevant changes in the constituent documents, but from the date of such decision. This requirement is intended to ensure the right of the tax authority to intervene in them before the completion of these procedures in order to exercise tax control. Fine under Art. 126 of the Tax Code of the Russian Federation was applied reasonably (Resolution of the Federal Antimonopoly Service UO dated 05/07/2002 N F09-880/02-AK).

Obligation to submit calculations average annual cost property and a certificate on the procedure for determining the data reflected in line 1 of the calculation of tax on actual profit is provided for by the Instructions of the Ministry of Taxes of the Russian Federation, which do not relate to acts of legislation on taxes and fees, which excludes the taxpayer being held liable under clause 1 of Art. 126 of the Tax Code of the Russian Federation for their failure to submit them within the time period established by the above Instructions (Resolution of the Federal Antimonopoly Service UO of April 10, 2002 N F09-654/02-AK).

Art. 129-1 of the Tax Code of the Russian Federation provides for special responsibility for persons who are obliged to independently provide information about taxpayers. In connection with the above, the taxpayer’s untimely communication of information about its participation in other organizations should not be qualified under Art. 129-1 of the Tax Code of the Russian Federation, and according to paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service VSO dated January 22, 2002 N A33-12022/01-C3/FO2-3467/2001-C1).

According to paragraph 2 of Art. 23 of the Tax Code of the Russian Federation, taxpayers-entrepreneurs are required to notify in writing the tax authority at the place of registration of a change in their location or place of residence no later than ten days from the date of such change. Failure by the taxpayer to comply with the deadline established by clause 3 of Art. 84 of the Tax Code of the Russian Federation, reporting information about a change of place of residence by an individual entrepreneur entails the application tax sanction according to paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service ZSO dated January 30, 2002 N F04/356-7/A46-2002)

The taxpayer cannot be held liable under clause 1 of Art. 126 of the Tax Code of the Russian Federation, since he could not submit those requested by the tax authority in accordance with Art. 93 Tax Code of the Russian Federation cash books, invoice journals, sales and purchase books, cash accounting records due to the fact that the head of the taxpayer did not receive them from his predecessor, which indicates that the taxpayer’s guilt in committing this offense has not been proven (Resolution of the Federal Antimonopoly Service of the North-West District dated 05/07/2002 N A05-12781/01-694/13).

The mere absence in the Tax Code of the Russian Federation of a direct indication of drawing up an act and sending it to the taxpayer when bringing him to justice under Art. 126 of the Tax Code of the Russian Federation does not mean that the procedure for bringing to responsibility should not be observed. The tax authority must comply with this procedure by sending notices, notices, etc.

Moreover, due to comparative analysis Art. 1, 3, 4 Tax Code of the Russian Federation and Art. 126 of the Tax Code of the Russian Federation, the list of documents that a tax authority can request from a taxpayer is limited. If the request for documents does not specify any reporting periods, nor the type of payment, which excludes the possibility of their execution. The presence or absence of primary accounting documents is established during an on-site tax audit, and the possibility of calculating tax base in their absence, by calculation, clause 7 of Art. 31 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service UO dated July 29, 2002 N F09-1549/02-AK).

Within the meaning of Art. 89 of the Tax Code of the Russian Federation, an on-site tax audit is carried out at the location of the taxpayer. In violation of this article, the tax authority conducting an on-site tax audit sent the taxpayer a request to submit documents to the tax authority for inspection.

The court, on the basis of paragraph 1. Art. 108 of the Tax Code of the Russian Federation, refused to hold the taxpayer liable under Art. 126 of the Tax Code of the Russian Federation for failure to submit the specified documents to the tax authority, since no one can be held accountable for committing a tax offense other than on the grounds provided for by the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service NWZ dated May 27, 2002 N A56-30435/01).

The requirement of the tax authority addressed to the entrepreneur to submit documents confirming income received and expenses incurred for a certain period was recognized by the court as quite specific. Failure to provide the specified list of documents, in the opinion of the court, entailed justified prosecution of the entrepreneur under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service VSO dated 06.06.2002 N A19-213/02-15-F02-1432/02-S1).

If the taxpayer does not have the documents required by the tax authority, liability cannot be applied to him under clause 1 of Art. 126 of the Tax Code of the Russian Federation, regardless of the reason for their absence. The specified actions of the taxpayer in this case are qualified under Art. 120 of the Tax Code of the Russian Federation, as a gross violation by the organization of the rules for accounting for income and (or) expenses and (or) objects of taxation (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated June 24, 2002 N A29-401/02A).

The tax authority did not indicate in the request for the submission of documents the exact number of documents requested. In the relevant act and in the decision to prosecute under Art. 126 of the Tax Code of the Russian Federation, the tax authority also did not indicate the number of documents not submitted by the taxpayer and determined the amount of sanctions based on the minimum number of accounting units.

The court indicated that determining the amount of penalties in this manner cannot be considered lawful (Resolution of the Federal Antimonopoly Service of the Moscow Region dated July 29, 2002 N KA-A40/5054-02).

Since the tax authority’s request to submit documents for an on-site tax audit was sent to the taxpayer by registered mail by mail without taking into account the time for the passage of mail (clause 4 of Article 100 and clause 5 of Article 101 of the Tax Code of the Russian Federation), the time for the taxpayer to prepare and submit the requested documents , and the actual availability of the specified documents on the taxpayer was not checked by the tax authority, then bringing him to tax liability under Art. 126 of the Tax Code of the Russian Federation for violating the five-day deadline for submitting documents Art. 93 of the Tax Code of the Russian Federation, unlawful (Resolution of the Federal Antimonopoly Service of the Moscow Region dated October 25, 2002 N KA-A40/7033-02).

Bringing the taxpayer to responsibility under Art. 126 of the Tax Code of the Russian Federation for failure to provide documents at the location of the tax authority for conducting an on-site tax audit is unlawful, since this requirement contradicts the meaning of Art. 89 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service NWZ dated October 24, 2002 N A56-21066/02).

Failure by the taxpayer to provide the tax authority with the documents required by it during additional tax control measures is grounds for bringing the taxpayer to liability under Art. 126 of the Tax Code of the Russian Federation only if the requested documents were not the subject of consideration by the tax authority when it conducted an on-site tax audit (Resolution of the Federal Antimonopoly Service UO dated November 5, 2002 N F09-2322/02-AK).

The taxpayer did not inform the tax authority at the place of registration about his participation in the Russian organization. The tax authority qualified this offense under paragraph 2 of Art. 129-1 Tax Code of the Russian Federation. The court indicated that this offense should be qualified under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, since the obligation of the taxpayer to report such information to the tax authority is directly provided for by the Tax Code of the Russian Federation, Art. 129-1 of the Tax Code of the Russian Federation applies only in cases where the taxpayer’s actions do not contain the provisions of Art. 126 of the Tax Code of the Russian Federation (Resolution of the FAS VSO dated September 19, 2002 N A33-3669/02-S3-F02-2729/02-S1).

Responsibility under Art. 126 of the Tax Code of the Russian Federation occurs if the taxpayer (tax agent) fails to submit documents within the prescribed period, the submission of which is required by law. The Tax Code does not oblige the taxpayer to submit to the tax authority letters from their counterparties, certificates and document inspection reports (Resolution of the Federal Antimonopoly Service of the North Caucasus Region of April 29, 2003 N F08-1294/2003-491A).

The decision of the tax authority to prosecute under Art. 126 of the Tax Code of the Russian Federation was declared illegal, since the request of the tax authority did not initially indicate a specific list of required documents.

The contested decision of the tax authority also does not contain data on how many and what documents were requested from the taxpayer (Resolution of the Federal Antimonopoly Service dated September 11, 2003 N A12-2607/03-C36).

The court found that in order to properly fulfill the tax authority’s requirement to submit documents, due to the specifics of the taxpayer’s production, financial and economic activities (the territorial distance of separate divisions from the parent organization), the taxpayer needed more time to collect documents than was provided by the tax authority. Taking into account this circumstance, the court indicated that the tax authority did not provide sufficient evidence of the taxpayer’s guilt in committing the tax offense charged to him, provided for in Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Central Election Commission of October 7, 2003 N A09-2954/03-17).

Arbitration court when considering the issue of bringing an organization to tax liability under clause 1 of Art. 126 of the Tax Code of the Russian Federation (for failure to submit to the tax authority documents and other information provided for by the legislation on taxes and fees) proceeded from the fact that since this organization was not a tax agent in relation to individuals for whom it did not provide information on income to the tax authority , then there are no grounds for bringing to tax liability (Resolution of the Federal Antimonopoly Service of the Moscow Region dated August 19, 2003 N KA-A40/5643-03, Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 29, 2003 N F03-A73/03-2/2118).

Since, taking into account the specifics gambling business in accordance with the Tax Code of the Russian Federation, the calculation and payment of tax upon receipt of winnings paid by the organizers of lotteries, sweepstakes and other risk-based games is carried out by individuals themselves, and not by the organizers of lotteries, sweepstakes and other risk-based games, the court came to the conclusion that that the requirement of the Tax Inspectorate for the need for representation by the company in accordance with paragraph 2 of Art. 230 of the Tax Code of the Russian Federation, information about the income of individuals received from lotteries is unfounded, and, therefore, bringing him to tax liability under Art. 126 of the Tax Code of the Russian Federation for their failure to submit is illegal (Resolution of the Federal Antimonopoly Service of the Northern Territory of February 20, 2004 N A05-6751/03-18).

Funds paid by a pawnshop to individuals who have not fulfilled their obligation to repay the loan amount taken from the pawnshop are the cash equivalent movable property pledged to the pawnshop (minus the amounts at the expense of which the pawnshop satisfies the claims against the pledgor (debtor).

There is no economic benefit in this case, so cash, received by individual pledgors from a pawnshop, are not income included in the tax base for personal income tax.

A pawnshop is not a tax agent - a source of payment of income to the taxpayer, therefore bringing it to justice by the tax inspectorate, according to paragraph 1 of Art. 126 of the Tax Code of the Russian Federation for failure to provide information about the income of individuals to the tax authority unlawfully (Resolution of the Federal Antimonopoly Service VSO dated February 12, 2004 N A33-12961/03-С3-Ф02-271/04-С1).

The Ministry of Taxes and Taxes of the Russian Federation is authorized federal body executive power, carrying out state registration since 07/01/2002 legal entities(Resolution of the Government of the Russian Federation dated May 17, 2002 N 319). Therefore, the submission by an organization to the tax authority of the documents necessary for state registration of changes excludes the possibility of recognizing it as a tax offense under clause 1 of Art. 126 of the Tax Code of the Russian Federation the fact of the absence of repeated notification of the inspection about these changes(Resolution of the Federal Antimonopoly Service UO dated April 26, 2004 N F09-1661/04-AK).

For failure to provide the information and explanations specified in the request within the prescribed period, the liability provided for in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation. Since, based on the meaning of this norm, this responsibility applies for failure to provide specific information, the mandatory provision of which is provided for by other articles of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service UO dated April 28, 2004 N F09-1604/04-AK).

Since it is impossible to establish from the tax authority’s request to provide documents for what taxable period it is necessary to submit the specified documents, bringing the taxpayer to responsibility under Art. 126 of the Tax Code of the Russian Federation for their failure to provide them unreasonably (Resolution of the FAS ZSO dated June 30, 2004 N F04/3483-545/A70-2004).

To bring to justice under Art. 126 of the Tax Code of the Russian Federation, it is necessary that the taxpayer refuses to present the documents in his possession requested by the tax authority. Since the fact that the taxpayer received the demands of the tax authority has not been established, prosecution was refused (Resolution of the Federal Antimonopoly Service ZSO dated June 21, 2004 N F04/3439-415/A67-2004).

Accounting documents, including books of purchases and sales, statements analytical accounting accounts 68, 062, 090 reflect and register the facts of economic activity of both the business organization itself and its counterparties in transactions. In this case, the company’s refusal to submit these documents to the tax authority in the manner of conducting a counter audit does not constitute a tax offense provided for in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service ZSO dated August 26, 2004 N F04-5785/2004 (A70-3625-35)).

The fact that the documents requested by the tax authority to confirm the right to deduct VAT, but not presented by the taxpayer during the desk audit, were presented to him as part of the trial, is not a basis for exemption from tax liability and additional tax assessment (Resolution of the Federal Antimonopoly Service dated 20.08. 2004 N A54-2593/03-C18-C21).

The tax agent did not submit personal income tax cards to the Internal Revenue Service due to their absence. The Inspectorate of Taxation brought the agent to justice under Art. 126 of the Tax Code of the Russian Federation. As the court indicated, in order to apply liability under Art. 126 of the Tax Code of the Russian Federation, it is necessary that the requested documents be kept by the tax agent. Meanwhile, the organization did not keep these cards, which it reported to the tax authority in its objections. In such circumstances, holding the organization liable under Art. 126 of the Tax Code of the Russian Federation is unlawful (Resolution of the Federal Antimonopoly Service of the Northern Territory of June 28, 2004 N A42-9938/03-31).

The court recognized the bringing of the taxpayer to liability in accordance with Art. 126 of the Tax Code of the Russian Federation is unlawful due to the absence of the taxpayer’s fault:

the request for the submission of documents was received later than the deadline established in it for the submission of documents;

the taxpayer notified the tax authority in a letter about the impossibility of timely submission due to the large number of requested documents and the accounting staff being on vacation;

The taxpayer does not have some of the requested documents, since he can keep accounting records according to international standards as a representative office of a foreign organization (Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 14, 2004 N KA-A40/8105-04).

Failure by the company to provide copies of documents previously submitted to the Tax Inspectorate “for the convenience of writing an inspection report” is not a tax offense and does not entail liability under clause 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service NWZ dated September 30, 2004 N A26-2358/04-21).

The tax authority's request for documents was returned by the post office with a stamp - "the company is not listed." As the court pointed out, since the company did not receive the demand and did not know about the obligation to submit documents on the said request, the Tax Inspectorate unlawfully held the taxpayer liable for tax liability for an offense, liability for which is provided for in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, due to the absence of a tax offense (Article 109 of the Tax Code of the Russian Federation) (Resolution of the Federal Antimonopoly Service NWZ dated October 21, 2004 N A56-16509/04).

Based on the provisions of sub. 1 clause 1 art. 31 of the Tax Code of the Russian Federation, when conducting an audit, tax authorities have the right to demand documents on the basis of which the organization calculated and paid taxes. However, bring the taxpayer to liability under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, it is possible in case of violation of the deadline for submitting only those documents that are provided for by the legislation on taxes and fees. Thus, the tax authority unlawfully held the organization liable for failure to provide a transcript of line 180 of the VAT declaration and explanations to line 374 of this declaration (Resolution of the Federal Antimonopoly Service NWZ dated 04/10/2003 N A05-11796/02-630/22).

In the process of conducting a desk inspection, the enterprise instead of the documents requested by the inspection ( loan agreement with the bank, annexes to the agreement) sent extracts from them, from which it is impossible to verify the correctness of attributing expenses for bank services to the enterprise’s expenses.

This circumstance is the basis for bringing the enterprise to liability under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated November 25, 2004 N A82-4523/2004-15).

During the desk audit of the submitted VAT return, the tax authority requested from the company invoices and payment documents, respectively, 1039 and 1039 documents, sending it a corresponding request.

The company's argument that the tax authority had no grounds to request primary accounting documentation through a desk audit was rejected by the court and the company was held liable under clause 1 of Art. 126 of the Tax Code of the Russian Federation Resolution of the Federal Antimonopoly Service of the Eastern Military District dated October 20, 2004 N A29-1094/2004a).