Article 75 of this Code

1. Penalty is recognized established by this article sum of money, which the taxpayer must pay in case of payment of the due amounts of taxes, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, at a later date than established by the legislation on taxes and fees.

2. The amount of the relevant penalties shall be paid in addition to the amounts of tax due and regardless of the application of other measures to ensure the fulfillment of the obligation to pay tax, as well as measures of liability for violation of the legislation on taxes and fees.

3. Penalty is accrued for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day following the tax payment date established by the legislation on taxes and fees, unless otherwise provided by this Article and Chapters 25 and 26.1 of this Code.

Penalties shall not be charged on the amount of arrears, which the taxpayer (a member of the consolidated group of taxpayers, against which, in accordance with Article 46 of this Code, measures were taken to enforce the collection of tax) could not be paid due to the fact that, by decision tax authority the property of the taxpayer was seized or, by a court decision, interim measures were taken in the form of suspension of operations on the accounts of the taxpayer (a member of the consolidated group of taxpayers, to which, in accordance with Article 46 of this Code, measures were taken to enforce the collection of tax) in the bank, seizure of cash or property of a taxpayer (a member of a consolidated group of taxpayers). In this case, penalties are not charged for the entire period of the specified circumstances. Submission of an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of interest on the amount of tax payable.

4. Penalty for each day of delay is determined as a percentage of the unpaid tax amount.

The interest rate of the penalty is assumed to be equal to one three hundredth of the refinancing rate in effect at that time. Central Bank Russian Federation.

The paragraph is excluded. - Federal Law of 09.07.1999 N 154-FZ.

4.1. Legislative (representative) body of state power of the subject of the Russian Federation, on the territory of which the procedure for determining tax base on property tax individuals based cadastral value objects of taxation, has the right to adopt a law establishing that the amount of arrears in property tax of individuals payable for the tax period of 2015, the fine is accrued starting from May 1, 2017.

5. Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in in full.

6. Penalties may be collected compulsorily at the expense of Money taxpayer on bank accounts, as well as at the expense of other property of the taxpayer in the manner provided for in articles 46 - 48 of this Code.

Enforced collection of fines from organizations and individual entrepreneurs is carried out in the manner prescribed by Articles 46 and 47 of this Code, and from individuals who are not individual entrepreneurs - in the manner prescribed by Article 48 of this Code.

Enforced collection of fines from organizations and individual entrepreneurs in the cases provided for by subparagraphs 1 - 3 of paragraph 2 of Article 45 of this Code is carried out in a judicial proceeding.

7. The rules provided for by this article also apply to fees, insurance premiums and apply to fee payers, insurance premium payers, tax agents and a consolidated group of taxpayers.

8. Penalties are not charged on the amount of arrears that a taxpayer (fee payer, payer of insurance premiums, tax agent) has incurred as a result of the implementation of written explanations on the procedure for calculating, paying tax (fee, insurance premiums) or on other issues of applying tax legislation and fees given to him or an indefinite circle of persons by financial, tax or other authorized body state authority (authorized official of this body) within its competence (these circumstances are established if there is an appropriate document of this body, which, in terms of meaning and content, relates to the tax (reporting, settlement) periods for which the arrears were formed, regardless of the date of publication of such a document), and (or) in as a result of the implementation by the taxpayer (payer of the fee, payer of insurance premiums, tax agent) of the reasoned opinion of the tax authority sent to him in the course of tax monitoring.

The provision provided for by this paragraph shall not apply if the specified written explanations, the reasoned opinion of the tax authority is based on incomplete or inaccurate information provided by the taxpayer (payer of the fee, tax agent).

1. Penalty is recognized as the amount of money established by this article, which the taxpayer must pay in case of payment of due amounts of taxes, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, at a later date than those established by the legislation on taxes and fees. terms.

Penalties are not charged for the amount of arrears, which the taxpayer (a member of the consolidated group of taxpayers, to which, in accordance with Article 46 of this Code, measures were taken to enforce the collection of tax) could not be paid due to the fact that, by decision of the tax authority, the property of the taxpayer was seized or by a court decision, interim measures were taken in the form of suspension of operations on the accounts of the taxpayer (a member of the consolidated group of taxpayers, to which, in accordance with Article 46 of this Code, measures were taken to enforce the collection of tax) in the bank, seizure of funds or property of the taxpayer (participant of the consolidated group of taxpayers). In this case, penalties are not charged for the entire period of the specified circumstances. Submission of an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of interest on the amount of tax payable.

4. Penalty for each day of delay is determined as a percentage of the unpaid tax amount.

The penalty interest rate is assumed to be one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation.

The paragraph is excluded. - Federal Law of 09.07.1999 N 154-FZ.

4.1. The legislative (representative) body of state power of the constituent entity of the Russian Federation, in whose territory the procedure for determining the tax base for the property tax of individuals based on the cadastral value of objects of taxation, is entitled to adopt a law establishing that the amount of arrears in property tax of individuals subject to payment for the tax period of 2015, the interest is charged starting from May 1, 2017.

5. Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

6. Penalties may be forcibly collected at the expense of the taxpayer's funds in bank accounts, as well as at the expense of other property of the taxpayer in the manner prescribed by Articles 46-48 of this Code.

7. The rules provided for by this article also apply to fees, insurance premiums and apply to fee payers, insurance premium payers, tax agents and a consolidated group of taxpayers.

8. Penalties are not charged on the amount of arrears that a taxpayer (fee payer, payer of insurance premiums, tax agent) has incurred as a result of the implementation of written explanations on the procedure for calculating, paying tax (fee, insurance premiums) or on other issues of applying tax legislation and fees given to him or an indefinite circle of persons by a financial, tax or other authorized body of state power (an authorized official of this body) within its competence (these circumstances are established if there is an appropriate document of this body, which, in meaning and content, relates to tax (reporting, settlement) periods for which the arrears were formed, regardless of the date of issuance of such a document), and (or) as a result of the implementation by the taxpayer (payer of the fee, payer of insurance premiums, tax agent) of the reasoned opinion of the tax authority sent to it in the course of tax monitoring.

The provision provided for by this paragraph shall not apply if the specified written explanations, reasoned opinion of the tax authority are based on incomplete or unreliable information provided by the taxpayer (payer of the fee, tax agent).

The penalty is recognized as established this article the amount of money that the taxpayer must pay in case of payment of due amounts of taxes, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, at a later date than established by the legislation on taxes and fees.

The amount of the relevant penalties shall be paid in addition to the amounts of tax due and regardless of the application of other measures to ensure the fulfillment of the obligation to pay the tax, as well as measures of liability for violation of the legislation on taxes and fees.

A fine is accrued, unless otherwise provided by this Article and Chapters 25 and 26.1 of this Code, for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day following the tax payment obligation established by the legislation on taxes and fees until the day of fulfilling the obligation to pay it, inclusive. The amount of penalties accrued for arrears cannot exceed the amount of this arrears.

The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid tax amount.

The penalty interest rate is taken equal to:

for individuals, including individual entrepreneurs - one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation;
for organizations:
for delay in fulfilling the obligation to pay tax for up to 30 calendar days (inclusive) - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time;
for delay in fulfilling the obligation to pay tax for a period of more than 30 calendar days - one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, effective for a period up to 30 calendar days (inclusive) of such delay, and one hundred and fiftieth of the refinancing rate of the Central Bank of the Russian Federation, effective in the period starting from 31st calendar day of such delay.

The legislative (representative) body of state power of the constituent entity of the Russian Federation, on the territory of which the procedure for determining the tax base for the property tax of individuals is applied based on the cadastral value of objects of taxation, has the right to adopt a law establishing that penalties are charged on the amount of arrears in property tax of individuals :

1) for the tax period of 2015 - starting from May 1, 2017;
2) for the tax period of 2016 - starting from July 1, 2018;
3) for the tax period of 2017 - starting from July 1, 2019.

Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full.

Penalties can be collected forcibly at the expense of cash ( precious metals) the taxpayer on bank accounts, as well as at the expense of other property of the taxpayer in the manner prescribed by Articles 46-48 of this Code.

Enforced collection of penalties from organizations and individual entrepreneurs is carried out in the manner prescribed by Articles of this Code, and from individuals who are not individual entrepreneurs - in the manner prescribed by Article 48 of this Code.

The rules provided for by this article shall also apply to fees, insurance premiums and apply to fee payers, insurance premium payers, tax agents and a consolidated group of taxpayers.

Penalties are not charged on the amount of arrears that a taxpayer (fee payer, payer of insurance premiums, tax agent) has incurred as a result of the implementation of written explanations on the procedure for calculating, paying tax (fee, insurance premiums) or on other issues of applying the legislation on taxes and fees given to him or an indefinite circle of persons by a financial, tax or other authorized body of state power (an authorized official of this body) within its competence (the indicated circumstances are established if there is an appropriate document of this body, in the sense and content related to tax (reporting, settlement) periods for which the arrears were formed, regardless of the date of issuance of such a document), and (or) as a result of the implementation by the taxpayer (payer of the fee, payer of insurance premiums, tax agent) of a reasoned opinion of the tax authority sent to it in the course of tax monitoring.

1. Penalty shall be recognized as the amount of money established by this article, which the taxpayer must pay in case of payment of the due amounts of taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, at a later date than those established by the legislation on taxes. and due dates.

2. The amount of the relevant penalties shall be paid in addition to the amounts of tax or fee due and regardless of the application of other measures to ensure the fulfillment of the obligation to pay the tax or fee, as well as measures of liability for violation of the legislation on taxes and fees.

3. Penalty is accrued for each calendar day of delay in fulfilling the obligation to pay a tax or fee, starting from the day following the tax or fee payment established by the legislation on taxes and fees, unless otherwise provided by Chapters 25 and 26.1 of this Code.

4. Penalty for each day of delay is determined as a percentage of the unpaid tax or fee.

The penalty interest rate is assumed to be one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation.

5. Penalties shall be paid simultaneously with the payment of the amounts of tax and duty or after the payment of such amounts in full.

6. Penalties may be collected forcibly at the expense of the taxpayer's funds in bank accounts, as well as at the expense of other property of the taxpayer in the manner prescribed by Articles 46-48 of this Code.

Enforced collection of fines from organizations and individual entrepreneurs in the cases provided for by subparagraphs 1-3 of paragraph 2 of Article 45 of this Code shall be carried out in a judicial proceeding.

7. The rules provided for by this article also apply to fee payers, tax agents and a consolidated group of taxpayers.

8. Penalties shall not be accrued on the amount of arrears that a taxpayer (fee payer, tax agent) has incurred as a result of his fulfillment of written explanations on the procedure for calculating, paying a tax (fee) or on other issues of applying the legislation on taxes and fees given to him or an unspecified to a circle of persons by a financial, tax or other authorized body of state power (an authorized official of this body) within its competence (the indicated circumstances are established if there is an appropriate document of this body, which, in meaning and content, relates to the tax (reporting) periods for which the arrears were formed, regardless of the date of issue of such a document), and (or) as a result of the implementation by the taxpayer (payer of the fee, tax agent) of the reasoned opinion of the tax authority sent to it in the course of tax monitoring.
The provision provided for by this paragraph shall not apply if the specified written explanations, reasoned opinion of the tax authority are based on incomplete or unreliable information provided by the taxpayer (payer of the fee, tax agent).

Commentary on Article 75 of the Tax Code of the Russian Federation

The commented article regulates the accrual of penalties.

Penalties are subject to payment by the taxpayer in the event that he has an arrears, i.e. unpaid in statutory tax period.

Clause 57 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 "On Certain Issues Arising from the Application by Arbitration Courts of Part One of the Tax Code of the Russian Federation" states that a penalty is charged for each calendar day of delay in fulfilling the obligation to pay a tax or fee.

The forced collection of penalties from organizations and individual entrepreneurs is carried out in the manner prescribed by Articles 46 and 47 of the Tax Code of the Russian Federation.

When applying these norms, the courts must proceed from the fact that penalties can be collected only if the tax authority took timely measures to enforce the collection of the amount of the relevant tax. In this case, the accrual of penalties is carried out on the day of the actual repayment of the arrears.

Paragraph 51 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 notes that when checking whether the tax authority complies with the deadlines for sending a request for the payment of penalties, the courts should take into account the provisions of clause 5 of Article 75 of the Tax Code of the Russian Federation, according to which penalties are paid simultaneously with the payment of taxes and fees or upon payment of such amounts in full.

It follows from the above norm that the claim for the payment of penalties accrued on the amount of arrears arising as a result of a specific tax (reporting) period is sent by the said body on the basis of paragraph 1 of Article 70 of the Tax Code of the Russian Federation no later than three months from the date of payment by the taxpayer of the entire amount of arrears (in in case of repayment of the arrears in parts - from the moment of payment of the last part of it).

As explained in paragraph 61 of the said Decree, in cases where the requirements of the tax authority include a requirement for the collection of penalties and by the time the tax authority applies to the court, the arrears have not been repaid by the taxpayer, the said authority, in the course of the trial, has the right, on the basis of Article 49 of the Arbitration Procedure Code of the Russian Federation, to increase the amount of claims for the recovery of penalties.

When the taxpayer repays the arrears before the court makes a decision on the application of the tax authority, the amount of penalties to be collected is indicated in the court decision in a fixed amount.

If at the time of making the decision the amount of the arrears has not been paid by the taxpayer, the court decision on the collection of penalties from the taxpayer must contain the following information: the amount of the arrears on which the penalties were charged; the date from which interest is charged; interest rate penalties subject to the provisions of Article 75 of the Tax Code of the Russian Federation; an indication that penalties are subject to accrual on the day the arrears are actually paid.

It should be borne in mind that penalties are also charged for non-payment of advance payments. The procedure for calculating penalties does not depend on whether the relevant advance payments are made during or at the end of the reporting period, whether they are calculated on the basis of the tax base determined in accordance with Articles 53 and 54 of the Tax Code of the Russian Federation and reflecting real financial results activities of the taxpayer.

Penalties for non-payment of advance tax payments within the established time limits are subject to calculation before the date of their actual payment or, in case of non-payment, before the due date for payment of the relevant tax.

If as a result tax period the amount of the calculated tax turned out to be less than the amounts of advance payments payable during this tax period, the courts must proceed from the fact that penalties accrued for non-payment of these advance payments are subject to a proportional reduction.

This procedure should also be applied if the amount of advance tax payments calculated at the end of the reporting period is less than the amount of advance payments payable during this reporting period (paragraph 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

The provisions of paragraph 6 of Article 48 of the Tax Code of the Russian Federation, which regulates the procedure for collecting tax at the expense of the property of a taxpayer - an individual who is not an individual entrepreneur, the rules established by paragraph two of paragraph 3 of Article 75 of the Tax Code of the Russian Federation are specified in relation to the collection of tax at the expense of property (not related to monetary funds) carried out on the basis of the effective judicial act. In accordance with this legal provision, the accrual of penalties to a taxpayer - an individual who does not have the status of an individual entrepreneur, is not made from the date of seizure of property and until the day the proceeds are transferred to budget system Russian Federation.

Thus, this norm of the Tax Code of the Russian Federation, taking into account its content, is aimed at establishing additional guarantees for the protection of the rights of taxpayers - individuals who are not individual entrepreneurs, in the event that tax is collected from them at the expense of property, and therefore, as acting in a systemic relationship with the second paragraph of clause 3 of Article 75 of this Code, cannot be regarded as violating the constitutional rights of the applicant.

This conclusion is contained in the ruling of the Constitutional Court of the Russian Federation of February 25, 2013 N 152-O.

The Decree of the Federal Antimonopoly Service of the Northwestern District dated June 3, 2013 in case N A26-7579 / 2012, in particular, reflects that, since the property belonging to the entrepreneur was seized and the entrepreneur could not pay off the tax debt by selling his property, which penalties are accrued, this, by virtue of Article 75 of the Tax Code of the Russian Federation, excludes the possibility of accruing penalties.

The Resolution of the Nineteenth Arbitration Court of Appeal dated April 13, 2009 N A35-6391 / 08-C15 provides the following interpretation.

Based on articles 72 and 75 of the Tax Code of the Russian Federation, a fine is not a measure tax liability.

Penalties are a law enforcement measure of state coercion, which is compensatory in nature for late payment of taxes to the budget.

The concept of a tax sanction is provided for in paragraphs 1, 2 of Article 114 of the Tax Code of the Russian Federation, according to which tax sanctions are a measure of responsibility for the commission of a tax offense and are applied in the form monetary penalties(fines) in the amounts provided for by Chapters 16 and 18 of the Tax Code of the Russian Federation.

Consequently, tax sanctions and penalties have a different legal nature.

Clause 18 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 41/9 dated 11.06.99 "On Certain Issues Related to the Enactment of Part One of the Tax Code of the Russian Federation" clarifies that, by virtue of Articles 106, 108, 109 of the Tax Code of the Russian Federation, wine is mandatory a condition for holding a person liable for a tax offense, in connection with which it must be borne in mind that the release of a taxpayer and a tax agent from liability for committing a tax offense exempts them only from the collection of fines, but not penalties, since the latter is not a measure of tax liability.

Considering that the penalties accrued in accordance with Article 75 of the Tax Code of the Russian Federation are a measure of the compensatory nature of budget losses, and not a measure of tax liability, and based on the meaning of Article 114 of the Tax Code and paragraph 18 of the said Decree, the exemption of the taxpayer from liability due to the lack of guilt in committing A tax offense is possible only in relation to the collection of fines, but not penalties.

In the Decree of the Presidium of Tomsk regional court dated 21.03.2012 N 44g-8/2012 clarified that the main purpose of the tax penalty is to ensure the proper fulfillment by taxpayers, payers of fees and tax agents of the public legal obligation to pay tax payments on time.

According to the legal position of the Constitutional Court of the Russian Federation, formulated in Resolution No. 20-P of December 17, 1996, a fine is a type of remedial measures of state-legal coercion aimed at filling the arrears and compensating for property losses to the treasury caused by late payment of tax.

In Decision Arbitration Court Sverdlovsk region dated 10/18/2012 N A60-26469 / 2012 it is noted that penalties are a payment derived from the amount of the principal debt, and cannot be collected in the absence of grounds for collecting the amount of tax (fee) on which they are charged.

FAS North Caucasus District in the Decree of 17.01.2013 N A53-8011 / 2012 noted that penalties are a legal restoration measure of state coercion, which is compensatory in nature for late payment of tax to the budget, and should be applied to the subject of tax legal relations, which is entrusted with such an obligation. At the same time, it should be borne in mind that the obligation to pay to the budget personal income tax agent arises as a general rule earlier than a similar obligation arises for the taxpayer. Consequently, the collection of penalties not from the tax agent, but from the taxpayer (in the event of non-withholding of tax from him by the tax agent) would not provide full compensation for damage to the state from untimely and incomplete payment of tax. Under such circumstances, the inspectorate rightfully charged the organization.

As noted in the Decree of the Federal Antimonopoly Service of the Moscow District dated March 28, 2012 N A40-60722 / 10-107-327, clarifications on tax payment issues can be the basis for exemption from payment of penalties. The notification on the possibility of applying the simplified taxation system is not an explanation on the application of the law. Consequently, there are no grounds for exempting the taxpayer from paying interest on taxes with reference to the notification on the possibility of applying the simplified taxation system.

The Constitutional Court of the Russian Federation in the Ruling of 04.07.2002 N 202-O indicated that the penalty is additional payment aimed at compensating for the losses of the state treasury as a result of shortfalls in tax amounts on time in case of late tax payment.

At the same time, non-payment of tax on time in the presence of an overpayment in the amount covering the arrears, subject to the rules established by the state in the Tax Code of the Russian Federation for their offsets, prevents damage to the treasury (the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the treasury municipality) and, accordingly, the need to compensate him by accruing penalties.

A similar position is set out in the Decree of the Federal Antimonopoly Service of the North-Western District of July 30, 2012 N A56-48850/2011.

The Resolution of the Nineteenth Arbitration Court of Appeal of November 21, 2012 N A48-2528 / 2012 indicates that penalties are a way to ensure the fulfillment of the obligation to pay tax, which means that a change in the obligation to pay tax entails a change in the consequences of non-payment of tax, including penalties .

The Federal Antimonopoly Service of the Moscow District in Decree N A40-136136 / 11-91-559 dated 05.12.2012 draws attention to the fact that since the penalty fee is not included in the tax, there are no grounds to apply to it the provisions on the inadmissibility of collecting tax at the expense of own funds tax agent.

In accordance with the legal position set forth in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 20, 2011 N 5317/11, the tax authority, in the event of non-withholding and non-transfer to the budget of the tax amount due from the tax agent, has the right to hold him liable under Article 123 of the Tax Code of the Russian Federation, as well as has the right to accrue penalties, since the penalty is a way to ensure the fulfillment of the obligation to pay taxes.

Based on the provisions contained in Articles 46, 72, 75 of the Tax Code of the Russian Federation, the payment of penalties should be considered as an additional obligation of the taxpayer in addition to the obligation to pay tax, performed simultaneously with the obligation to pay tax or after the latter has been fulfilled. The fulfillment of the obligation to pay interest cannot be considered in isolation from the fulfillment of the obligation to pay tax. Therefore, after the expiration of the preemptive period for collecting tax arrears, penalties cannot serve as a way to ensure the fulfillment of the obligation to pay tax and from that moment are not subject to accrual.

The conclusion about this is given in the Resolution of the Seventh Arbitration Court of Appeal dated 02.05.2012 N 07AP-2709/12.

In the Appellate Ruling of the Volgograd Regional Court dated March 29, 2012 N 33-3177 / 2012, it is noted that the delay by the tax authority of the deadlines for collecting tax arrears prevents the collection and penalties for violating the deadlines for paying these taxes, since, by virtue of Article 72 of the Tax Code of the Russian Federation, the accrual of penalties is only a way to ensure the fulfillment of the obligation to pay taxes, and Article 75 of the Tax Code of the Russian Federation establishes the rule on the payment of penalties simultaneously with the payment of tax or after it has been paid in full.

If the tax is credited to the budgets of different entities and the decision to set off the amount of overpaid tax against future payments on this tax is made by the tax authority within the time limits established by Article 78 of the Tax Code of the Russian Federation, but after due date payment of tax, from the day following the established day of payment of tax, until the day such a decision is made by the tax authority, penalties will be charged on the amount of the resulting arrears.

The Tax Code of the Russian Federation does not provide for the recalculation of the amounts of penalties accrued before the decision by the tax authority to set off the amounts of overpaid tax.

A similar conclusion is set out in the Letter of the Ministry of Finance of Russia dated 02.08.2011 N 03-02-07 / 1-273.

In the event of a violation of the cut-off deadline for collecting tax arrears, penalties cannot act as a way to ensure the fulfillment of the obligation to pay it, their accrual and collection under such circumstances will be contrary to the Tax Code of the Russian Federation.

In addition, the accounting in the base of settlements with the budget, maintained by the tax authority, of overdue or unreasonably calculated amounts of arrears and penalties for the taxpayer, as well as the accrual of penalties on these amounts, not only their collection, but also deprives the taxpayer of the right to set off or return overpaid amounts to the budget, since, in accordance with paragraph 6 of Article 78 of the Tax Code of the Russian Federation, if the taxpayer has an arrears in paying taxes or arrears in penalties (which are established on the basis of the RSB), the return to the taxpayer of the overpaid amount of tax is made only after the specified amount is offset against the arrears (debts).

In view of the foregoing, based on the need to maintain a balance of private and public interests and reflect objective information on the state of settlements with the budget in the certificate, the certificate should contain not only information about the actual and confirmed debt, but also an indication of the loss by the tax authority of the possibility of its collection.

This conclusion is supported judicial practice(see Decree of the Federal Antimonopoly Service of the Moscow District dated September 4, 2012 N A41-5671 / 12).

Penalties are a legal restoration measure of state coercion, which is of a compensatory nature, for late payment of tax to the budget and must be collected from the subject of tax legal relations, which is entrusted with such an obligation. Since, in certain cases of the Tax Code of the Russian Federation, the obligation to transfer to the budget the amount of tax withheld from the income of the taxpayer is assigned to tax agents, in case of non-payment to the budget of the tax subject to withholding and transfer to the budget tax agent penalties are charged.

The legitimacy of the accrual of penalties by the tax authority on the amount of tax unpaid by the tax agent was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 5317/11 of 20.09.2011.

A similar position is reflected in the Decree of the Federal Antimonopoly Service of the North-Western District of 06/01/2012 N A44-219 / 2010.

In the cassation ruling Supreme Court Republic of Buryatia dated November 16, 2011 N 33-3420 fixed the approach according to which the fine (the obligation to pay it) is established by the norms of the legislation on taxes and fees governing relations based on administrative subordination, and does not have a civil law nature attached to it in the sense Article 333 of the Civil Code of the Russian Federation, in particular, the requirements of Article 331 of the Civil Code of the Russian Federation on the mandatory written form of the penalty do not apply to the said penalty.

This position is developed in the Resolution of the Presidium of the Tomsk Regional Court dated March 21, 2012 N 44g-8/2012.

The court noted that under civil law, a penalty is a way to ensure the fulfillment of civil obligations (Article 329 of the Civil Code of the Russian Federation) and a measure of property liability for their non-fulfillment or improper fulfillment (). The right to reduce the penalty is granted to the court by Article 333 of the Civil Code of the Russian Federation in order to eliminate its obvious disproportion to the consequences of a breach of obligations. However, the specified norm of the substantive law is applied in relations of a private law nature, the subjects of which are equal, independent in property, and also possessing other features specified in Articles 1, 2 of the Civil Code of the Russian Federation. Tax legal relations are based on the imperious subordination of one party to the other, therefore, disputes over non-fulfillment of a tax obligation are of a public, not civil nature, and therefore the norms of the Civil Code of the Russian Federation, including Article 333 of the Civil Code of the Russian Federation, cannot be applied to these legal relations.

By virtue of the direct indication in paragraph 3 of Article 3 of the Civil Code of the Russian Federation, the absence in the Tax Code of the Russian Federation of a norm allowing the application of civil law norms to tax legal relations, a reduction in the amount of fines on the basis of Article 333 of the Civil Code of the Russian Federation is unacceptable, contrary to the norms of tax and civil legislation.

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Official text:

Article 75

Penalties are not charged for the amount of arrears, which the taxpayer (a member of the consolidated group of taxpayers, to which, in accordance with Article 46 of this Code, measures were taken to enforce the collection of tax) could not be paid due to the fact that, by decision of the tax authority, the property of the taxpayer was seized or, by a court decision, interim measures were taken in the form of suspension of operations on the accounts of the taxpayer (a member of the consolidated group of taxpayers, to which, in accordance with Article of this Code, measures were taken to enforce the collection of tax) in the bank, seizure of funds or property of the taxpayer ( member of a consolidated group of taxpayers). In this case, penalties are not charged for the entire period of the specified circumstances. Submission of an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of interest on the amount of tax payable.

4. Penalty for each day of delay is determined as a percentage of the unpaid tax or fee.

The penalty interest rate is assumed to be one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation.

The paragraph is excluded. - Federal Law of 09.07.1999 N 154-FZ.

5. Penalties shall be paid simultaneously with the payment of the amounts of tax and duty or after the payment of such amounts in full.

Enforced collection of penalties from organizations and individual entrepreneurs is carried out in the manner prescribed by Articles 46 and 47 of this Code, and from individuals who are not individual entrepreneurs - in the manner prescribed by Article of this Code.

Enforced collection of fines from organizations and individual entrepreneurs in the cases provided for by subparagraphs 1 - 3 of paragraph 2 of Article of this Code shall be carried out in a judicial proceeding.

7. The rules provided for by this article also apply to fee payers, tax agents and a consolidated group of taxpayers.

Lawyer's comment:

This article consolidated a new interpretation, an understanding of the legal nature of penalties compared to the previously existing tax legislation. Thus, in accordance with the Law on the Fundamentals tax system in the Russian Federation, which was in force before the entry into force of the Tax Code, the fine was recognized as a measure of responsibility. From the date of entry into force Tax Code In the Russian Federation, the penalty is not attributed by the legislator to the measures of responsibility for tax offenses, but is a way to ensure the fulfillment of the public law obligation of the taxpayer, the payer of fees and the tax agent. Penalty is a compensatory measure designed to compensate for budget losses caused as a result of untimely performance by taxpayers and other persons of their duties and, accordingly, non-receipt or untimely receipt of funds to budgets of different levels. Thus, a penalty is recognized as the amount of money established by this article, which the taxpayer, the payer of fees or the tax agent must pay in case of payment of the due amounts of taxes or fees at a later date than the time limits established by the legislation on taxes and fees.

When deciding on the legal nature the legislator relied on the legal position expressed by the Constitutional Court of the Russian Federation in a number of its Resolutions and rulings (Decree: dated December 17, 1996, No. 20-P in the case of checking the constitutionality of paragraphs 2 and 3 of part 1 of Article 11 of the Law of the Russian Federation of June 24, 1993 "ABOUT federal bodies tax police"; dated July 15, 1999 No. 11-P on the case of checking the constitutionality of certain provisions of the Law of the RSFSR "On the State tax service RSFSR" and the Laws of the Russian Federation "On the Fundamentals of the Tax System in the Russian Federation" and "On the Federal Tax Police Bodies", which was confirmed in the ruling of July 4, 2002 No. 202-0 state enterprise"Road Repair and Construction Department No. 7" for violation of constitutional rights and freedoms by the provisions of paragraph 1 of Article 122 of the Tax Code of the Russian Federation. "As indicated Constitutional Court Russian Federation, within the meaning of Article 57 of the Constitution of the Russian Federation, a tax obligation consists in the obligation of a taxpayer to pay a certain tax established by law.

Failure to pay the tax on time should be compensated by the repayment of the debt on tax liability, full refund damage incurred by the state as a result of untimely payment of tax. Therefore, the legislator has the right to add an additional payment to the amount of the tax that was not paid on time (arrears) as compensation for the losses of the state treasury as a result of shortfall in tax amounts on time in the event of a delay in tax payment. Penalty as an interim measure can be applied to a wide range of persons. It can be applied both to the taxpayer and to the payer of fees and the tax agent. The special nature of the penalties is determined by the fact that the amount of the relevant penalties is paid in addition to the amounts of the tax or fee due and regardless of the application of other measures to ensure the fulfillment of the obligation to pay the tax and fee (seizure of property, suspension of operations on bank accounts), as well as measures of responsibility for violation of the legislation on taxes and fees. Features of the penalty are shown in the order of its accrual.

Penalty is accrued for each calendar day of delay in fulfilling the obligation to pay taxes and fees, starting from the day following the day of payment of taxes and fees established by the legislation on taxes and fees. When determining the tax payment deadline, one should be guided by the procedure for calculating the deadlines established by the legislation on taxes and fees provided for in Article 61 of the Tax Code of the Russian Federation. Since the penalty is not a measure of liability for a tax offense committed, the fault of the taxpayer or other obligated person is not a necessary condition for its calculation and payment. The penalty is determined as a percentage of the unpaid tax or fee. The interest rate is taken equal to one three hundredth current rate CBR refinancing. It should be noted that the size of the interest rate for the calculation of fines has been repeatedly changed during the period of the legislation on taxes and fees before the adoption of the Tax Code.

The procedure for calculating penalties was also changed in the second edition of part one of the Tax Code, adopted by Federal Law No. 154-FZ of July 9, 1999. So, in the first edition of the first part of the Tax Code, adopted on July 31, 1998. Federal Law No. 147-FZ, the interest rate was also taken equal to one three hundredth of the CBR refinancing rate. However, a limit of no more than 0.1% per day was set. In accordance with Article 8 of the Introductory Law to Part One of the Tax Code, the amounts of penalties accrued as of January 1, 1999, but not paid by the taxpayer (payer of fees) by the time Part One of the Code came into force, were paid by the taxpayer (payer of fees) in the amount accrued as of January 1, 1999, but not more than the unpaid amount of tax (fee). The specified limitation on the amount of interest paid was valid from January 1, 1999 until the entry into force federal law dated July 9, 1999 No. 154-FZ.

Due to the fact that the original version of the Tax Code also contained a restriction on total amount accrued penalties - not more than the unpaid amount of tax, for the period of validity of the first edition of the Tax Code, when collecting penalties, one should be guided by this norm. Since the accrual of interest is a consequence late payment tax and fee, then penalties are paid simultaneously with the payment of the amounts of tax and fee or after payment of these amounts in full. Thus, the legislator clearly established the sequence of these payments. First of all, it is the tax and fee that is paid, and then the penalty. At the same time, in connection with the repayment of tax and collection arrears, the amount of the penalty fee from this moment should not increase. In case of non-payment on a voluntary basis of the amounts of the tax liability and penalties, they can be forcibly recovered at the expense of the taxpayer's money or the payer of the fee on bank accounts, as well as at the expense of other property of the taxpayer in general order provided by Article 46 and Article 48 of the Tax Code of the Russian Federation.

Penalty inextricably follows the unpaid amount of tax and fee, therefore, similarly to the procedure established for the collection of tax, two methods of forced collection of penalties are defined. They are collected from organizations in an indisputable manner, from individuals, including entrepreneurs without education. legal entity, - judicially.