The field tax audit covers the period. What period can be covered by a tax audit? For what period can the tax authority conduct an on-site audit

Julia Vasilyeva
head of the group for accreditation of foreign missions

Tax audit more than three years

The law in some cases allows for the possibility of conducting inspections and bringing to responsibility for violation of the law, even if the period subject to control within the framework of an on-site tax audit exceeds three calendar years.

Article 87 of the Tax Code of the Russian Federation provides that in order to control compliance by a taxpayer, payer of fees or tax agent with the legislation on taxes and fees, tax authorities have the right to conduct on-site and desk audits.

Paragraph 1 of Art. 88 of the Tax Code of the Russian Federation states that within the framework of desk audit the period specified in the taxpayer's declaration and documents submitted by the taxpayer is subject to control.

The period subject to control as part of an on-site inspection is established by paragraph 4 of Art. 89 of the Tax Code of the Russian Federation. It should not exceed three calendar years preceding the year in which the decision to conduct an audit was made, unless otherwise provided by Art. 89 of the Tax Code of the Russian Federation.

IN this article we propose to consider those very “other” cases, in the event of which the tax authorities have the right to control the correctness of the calculation and timeliness of tax payment for periods exceeding the established three years from the date of the decision to conduct an on-site audit.

Example

The decision to conduct an on-site tax audit of X LLC was made on 12/29/2012. The taxpayer received this decision on 11.01.2013. What limits can be set for the period subject to control by the tax authority within the framework of this on-site tax audit? According to the literal interpretation of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authorities have the right to check the correctness of the calculation and timeliness of the payment of taxes by the taxpayer LLC "X" for the period starting from January 01, 2009.

Please note that the fact that the decision to conduct an audit was received by the taxpayer not in the year in which it was made, but in the next, does not in any way affect the three-year limitation period subject to verification.

This conclusion is confirmed by the materials judicial practice(Resolution of the Federal Antimonopoly Service of the North-Western District dated June 22, 2012 No. А05-14239/2010).

You should also take into account the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation (paragraph 2, clause 27 of the resolution of February 28, 2001 No. 5), according to which the norm of clause 4 of Art. 89 of the Tax Code of the Russian Federation establishes only prescription restrictions when determining by the tax authority the period of the past activity of the taxpayer, which can be covered by an audit, and does not contain a ban on audits of tax periods of the current calendar year.

Exception from general rule on the period that may be covered by an on-site tax audit, provided for in Art. 89 of the Tax Code of the Russian Federation, is contained in par. 3, paragraph 4 of the said article and is the case when the taxpayer submits an amended declaration as part of the relevant on-site tax audit. This exception exempts the supervisory authority from the three-year limitation of the audited period and provides the right to conduct field check for an arbitrarily long period for which an updated declaration is submitted.

It should be noted that the wording of the norm under consideration - "within the framework of the relevant on-site tax audit" - allows for certain options for the taxpayer's behavior and allows the company to try to limit the possibility of expanding the boundaries of the audited period. So, from a literal interpretation it follows that the exception can be applied only if the “clarification” was submitted directly during the on-site tax audit.

The tax authorities themselves, according to the clarifications of the Federal Tax Service of Russia, presented in a letter dated May 29, 2012 No. AC-4-2 / 8792, believe that the time of submission of an updated declaration (during an on-site tax audit, before it, after it), for the application of the norm does not matter, and an on-site tax audit may be carried out for the period specified in the “clarification” that exceeds three years from the date of the decision to conduct an audit, unless the corresponding period was previously covered by an on-site tax audit. At the same time, there is judicial practice when courts of several instances took the side of the taxpayer.

Example from practice:

“On August 24, 2009, the head of the Inspectorate made decision No. 58/28 on conducting an on-site tax audit of LLC MSP ROSSBAN regarding the correctness of the calculation and timeliness of payment (withholding, transfer) of all types of taxes and fees paid by it, as well as insurance premiums for the OPS - for the period from January 01 to December 31, 2008.

The adjusted income tax return No. 3 for the 1st quarter of 2005 was submitted by the company to the Inspectorate on 12.03.2008, that is, three months before the start of the on-site tax audit for 2005-2007, appointed by decision No. 31 of 25.06.2008. No. 58/28 (as amended and supplemented) does not contain an instruction to conduct an on-site tax audit in respect of the tax period of 2005, including for the 1st quarter of 2005.

Under such circumstances, the court of first instance came to a reasonable conclusion that the disputed amended declaration was subject to examination and evaluation during an in-house tax audit of the declaration or during an on-site audit of the period to which it relates (2005), and as a result, the absence of tax authority of the legal grounds for the audit of the 1st quarter of 2005 within the framework of the audit for the period from January 01 to December 31, 2008” (Resolution of the Thirteenth Arbitration Court of Appeal dated May 30, 2011 No. A21-8116 / 2010).

Another "exceptional case" referred to in Art. 89 of the Tax Code of the Russian Federation, is the submission by the taxpayer of an updated declaration in which the amount of tax is adjusted downward (clause 2, clause 10, article 89 of the Tax Code of the Russian Federation).

Thus, when submitting an amended declaration with the amount of tax to be reduced, the tax authorities have the right to conduct a repeated field tax audit, which may cover the period specified in the “refined” that exceeds the limits of the three-year limitation period.

Also, residents excluded from the unified register of residents of the Special Economic Zone in the Kaliningrad Region are subject to an exception to the general rule. Features of conducting field tax audits in respect of them are determined by Art. 288.1 and 385.1 of the Tax Code of the Russian Federation (Clause 16.1 of Article 89 of the Tax Code of the Russian Federation).

The three-year limitation during inspections does not also apply to taxpayers and payers of fees paid when applying the special tax regime established by Ch. 26.4 of the Tax Code of the Russian Federation, when fulfilling production sharing agreements. This feature is expressly enshrined in Art. 346.42 of the Tax Code of the Russian Federation, which states that an on-site tax audit can cover any period during the entire period of the production sharing agreement, starting from the year the agreement enters into force.

Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:

No. p / p	Exceptions	Foundations
1	Submission by the taxpayer of an updated tax return as part of the relevant on-site tax audit.	Paragraph 3, paragraph 4 of Art. 89 Tax Code of the Russian Federation
2	Repeated on-site audit in connection with the submission by the taxpayer of an updated tax return, which indicates the amount of tax in an amount less than previously declared.	Subparagraph 2 of paragraph 10 of Art. 89 Tax Code of the Russian Federation
3	Carrying out an on-site audit of a resident excluded from the register of the Special Economic Zone in the Kaliningrad Region in terms of income tax and corporate property tax, provided that the decision to appoint such an audit was made no later than three months from the date of payment by the resident of the relevant tax.	Clause 16.1 of Art. 89 Tax Code of the Russian Federation
4	Conducting an on-site audit of a taxpayer who applies a special tax regime when fulfilling a production sharing agreement.	Paragraph 1 of Art. 346.42 of the Tax Code of the Russian Federation

Verification of individual entrepreneurs who have already ceased their activities

Due to the increase since January 2013 in the amount of contributions to Pension Fund twice many individual entrepreneurs decided to cease operations. They believe that if they have received certificates of termination, deregistration with the IFTS and an extract from IGRIP, then the regulatory authorities will never again bother them about the correctness and timeliness of paying taxes (fees) for the period of their activity as an individual entrepreneur. However, it is not. Despite the fact that an individual no longer has the status of an individual entrepreneur, he continues to be a taxpayer and his obligation to pay taxes and fees when leaving an individual entrepreneurial activity does not stop.

The grounds for the emergence, change and termination of the obligation to pay a tax or fee are established by Art. 44 of the Tax Code of the Russian Federation. According to paragraph 3 of the said article, the obligation to pay tax and (or) collection is terminated:

with the payment of a tax and (or) a fee by a taxpayer, a payer of a fee and (or) a member of a consolidated group of taxpayers in cases provided for by the Tax Code of the Russian Federation;
with the death of an individual taxpayer or declaring him dead in the manner prescribed by civil procedural legislation Russian Federation;clarification
with the liquidation of the taxpayer organization after all settlements with budget system Russian Federation in accordance with Art. 49 of the Tax Code of the Russian Federation;
with the occurrence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.

Apparently, this norm does not provide for the fact of the termination of individual entrepreneurial activity as a basis for the termination of the obligation to pay a tax (fee).

Moreover, pp. 8 p. 1 art. 23 of the Tax Code of the Russian Federation provides for the obligation of taxpayers to ensure the safety of accounting and tax accounting and other documents required for the calculation and payment of taxes, including documents confirming the receipt of income, expenses (for organizations and individual entrepreneurs), as well as the payment (withholding) of taxes. Termination of entrepreneurial activity does not release the former entrepreneur from this obligation.

Important at work:

The taxpayer has the right to reconcile calculations with the tax authority for a period that exceeds three years.
The loss of the status of an entrepreneur does not mean that the tax authorities will never again be able to verify the correctness of the calculation of taxes for the period of doing business by the former individual entrepreneur.

There is an opinion:

The Inspectorate has the right to conduct an on-site inspection for a period that has not been previously checked and for which a “clarification” has been submitted, even if more than three years have passed. Therefore, when submitting a “clarification”, it is necessary to calculate the deadlines.
In practice, not everyone is checked with the same regularity: someone annually, and someone every few years. And yet, the tax authorities are trying to avoid "dead zones", that is, such situations when the company has not been audited for more than three years and periods have appeared that the tax authorities are no longer entitled to check. Therefore, if you have not been checked for more than three years, wait for an on-site check.

IN general case the audited period of an on-site tax audit is three previous years. Read in which cases and by how much controllers can expand the scope of the check.

As a general rule, inspectors may inspect three years prior to the year in which the decision to conduct an on-site inspection was made. There are exceptions to this rule. Firstly, tax authorities can check not only previous, but also the current year. Secondly, the Tax Code of the Russian Federation names a number of conditions under which controllers can delve into even earlier periods. Let's talk about everything in detail.

What is the period covered by an on-site tax audit?

The period covered by an on-site tax audit is defined in paragraph 4 of Article 89 of the Tax Code of the Russian Federation. As a general rule, inspectors may consider information and documents for three calendar years preceding the year in which the decision to conduct an inspection was made.

Example

The decision to conduct an audit was made on December 5, 2018. This means that inspectors can check the completeness of the calculation and payment of taxes for 2015, 2016 and 2017.

Also, the period of an on-site tax audit may also affect the current year. The fact is that the Tax Code of the Russian Federation limits the lower limit, and the upper limit of the revision is not limited. Consequently, inspectors can inspect the activities of the company up to the date of the decision to inspect.

Example

Returning to the previous example, we will supplement the answer: not only 2015-2017 can be checked, but also the period from January 1 to December 4, 2018.

The legitimacy of this approach is confirmed judicial practice, For example:

Ruling of the Supreme Court of the Russian Federation of September 9, 2014 No. 304-KG14-737,
Decree of the Federal Antimonopoly Service of the Volga District of December 6, 2012 No. A72-2607 / 2012,
Decree of the Federal Antimonopoly Service of the Moscow District dated April 15, 2009 No. KA-A40 / 3000-09-P,
Decree of the FAS of the East Siberian District of January 29, 2009 No. A19-3295 / 08-50-Ф02-7091 / 08.

For the previous three years, inspectors can control any taxes and fees. And for the current year, they usually check the completeness and correctness of the accrual:

Advance payments for taxes for which the tax period is a calendar year, for example, income tax or property tax legal entities,
Taxes with a short tax period, such as VAT, for which the tax period is limited to one quarter.

It is not at all necessary that the tax authorities will check all three previous years in full. They may choose to audit any period within the previous three years. The audited period will be indicated in the decision to conduct an on-site audit, which is signed by the head of the tax authority or his deputy.

Example

The decision to conduct an audit was made on December 5, 2018. Based on clause 4 of article 89 of the Tax Code of the Russian Federation, tax authorities can check 2015, 2016, 2017 and 2018. The audit decision specifies the period to be audited: from July 1, 2016 to December 31, 2017.

Please note: the depth of coverage is not affected by the year in which the taxpayer learned about the audit. For example, if the decision was made in December 2018, and the taxpayer was familiarized with it already in 2019, the period from 2015 to 2018 is subject to verification:

The three years preceding the year in which the decision was made, i.e. 2015, 2016 and 2017,
The year in which the decision was made, i.e. 2018.

Due to the fact that the taxpayer learned about the audit in 2019, the depth of coverage will not change. Only the year in which the decision was made is important, this is also confirmed by judicial practice (Resolution of the Federal Antimonopoly Service of the North-Western District of June 22, 2012 No. А05-14239/2010).

When checking a period of more than three years

visiting tax audit does not always cover a three-year period, there are exceptions.

Firstly, the tax authorities will be able to go beyond the three-year period if, as part of an on-site audit, the taxpayer submits an updated tax return. Controllers will be able to cover the period for which the declaration is submitted (paragraph 3, clause 4, article 89 of the Tax Code of the Russian Federation).

Secondly, the three-year rule does not apply to re-audits initiated in connection with the submission of an amended declaration with a reduction in the amount of tax. In this case, just as in the previous one, the inspectors will control the period for which the taxpayer submitted the clarification (clause 2, clause 10, article 89 of the Tax Code of the Russian Federation).

Third, the rule of three years is not observed during an on-site inspection of an organization excluded from the register of residents of the Special Economic Zone in the Kaliningrad Region. In order to go beyond the three-year period, inspectors must fulfill two conditions (clause 16.1, article 89 of the Tax Code of the Russian Federation):

Check income tax and property tax of legal entities,
Initiate an audit no later than three months after payment of the relevant tax.

Fourth, when checking an organization that applies a special tax regime when implementing a production sharing agreement, inspectors can capture any periods during the term of the agreement. Including periods older than three years (clause 1 of article 346.42 of the Tax Code of the Russian Federation).

Overview of the latest changes in taxes, contributions and wages

You have to restructure your work due to numerous amendments to the Tax Code. They affected all major taxes, including income tax, VAT and personal income tax.

Inspections carried out by regulatory authorities (scheduled and unscheduled inspections)

federal law dated December 26, 2008 No. 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the implementation state control(supervision) and municipal control” (hereinafter referred to as Federal Law No. 294-FZ, the Law on Inspections) are established, in particular:

1) the procedure for organizing and conducting inspections of legal entities, individual entrepreneurs by bodies authorized to exercise state control (supervision), municipal control;

2) the procedure for the interaction of bodies authorized to exercise state control (supervision), municipal control, when organizing and conducting inspections;

3) the rights and obligations of the bodies authorized to exercise state control (supervision), municipal control, their officials during inspections;

4) the rights and obligations of legal entities, individual entrepreneurs in the exercise of state control (supervision), municipal control, measures to protect their rights and legitimate interests.

Organization and conduct of a scheduled inspection

The subject of a scheduled inspection is the compliance by a legal entity, an individual entrepreneur in the process of carrying out activities with a set of mandatory requirements and requirements established by municipal legal acts, as well as the compliance of the information contained in the notification of the commencement of implementation certain types entrepreneurial activity, mandatory requirements.

Scheduled inspections are carried out on the basis of annual plans developed and approved by state control (supervision) bodies, municipal control bodies in accordance with their authority.

Annual master plan scheduled inspections is formed by the Prosecutor General's Office of the Russian Federation and posted on the official website of the Prosecutor General's Office of the Russian Federation on the Internet until December 31 of the current calendar year. master plan inspections for 2017 is available at: http://plan.genproc.gov.ru/plan2017/.

Scheduled inspections are carried out no more than once every 3 years, except for the following cases:

carrying out activities in the field of healthcare, education, social sphere, heat supply, electric power industry, energy saving and energy efficiency. In relation to legal entities, individual entrepreneurs operating in the above areas, scheduled inspections can be carried out at least 2 times in 3 years.

The list of activities in respect of the implementation of which scheduled inspections are carried out at regular intervals is approved by Decree of the Government of the Russian Federation of November 23, 2009 N 944.

carrying out activities for which audits are carried out using a risk-based approach. In this case, the frequency of scheduled inspections is established by the Regulations on a specific type of control (supervision) depending on the assignment of the object of control (supervision) to a certain risk category or a certain hazard class.

The basis for including an audit in the annual plan is the expiration of 3 years from the date of:

state registration legal entity, individual entrepreneur;
completion of the last scheduled inspection of a legal entity, individual entrepreneur;
the commencement of entrepreneurial activities by a legal entity, individual entrepreneur in accordance with the submitted notice of the commencement of certain types of entrepreneurial activities in the event of the performance of work or the provision of services requiring the submission of the specified notice.

The list of works and services as part of certain types of business activities, the form and procedure for submitting a notice 11 and 12 of the Inspection Act. approved by Decree of the Government of the Russian Federation of July 16, 2009 N 584 (as amended on March 4, 2017) "On the notification procedure for the commencement of certain types of entrepreneurial activity."

The regulation on a specific type of supervision (control) may provide for the obligation to use, during a scheduled inspection, by an official of a state control (supervision) body, a municipal control body, checklists (lists of control questions), the requirements for which are approved by Decree of the Government of the Russian Federation of February 13, 2017 No. N 177.

Checklists include lists of questions, the answers to which unequivocally indicate compliance or non-compliance by a legal entity, individual entrepreneur with the mandatory requirements that are the subject of verification. The approved forms of checklists are subject to publication on the official websites of the regulatory authorities.

A legal entity, individual entrepreneur is notified of a scheduled inspection by a state control (supervision) body, a municipal control body no later than 3 working days before the start of its conduct by sending a copy of the order or order of the head, deputy head of the controlling body on the start of the scheduled inspection by registered mail with acknowledgment of receipt and/or electronic document signed with an enhanced qualified electronic signature and sent to the e-mail address of a legal entity, individual entrepreneur, if such an address is contained in the Unified State Register of Legal Entities, EGRIP or was previously submitted by a legal entity, individual entrepreneur to a state control (supervision) body, municipal control body, or other accessible way.

Organization and holding unscheduled inspection

The subject of an unscheduled inspection is compliance by a legal entity, individual entrepreneur in the process of carrying out activities with the mandatory requirements and requirements established by municipal legal acts, compliance with the instructions of state control (supervision) bodies, municipal control bodies, taking measures to prevent harm to life, health of citizens, harm to animals, plants, the environment, objects of cultural heritage of the peoples of the Russian Federation, museum items and museum collections included in the Museum fund of the Russian Federation, especially valuable, including unique, documents of the Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, to ensure the security of the state, to prevent the occurrence emergencies natural and man-made nature, to eliminate the consequences of causing such harm.

Grounds for conducting an unscheduled inspection:

Expiration of the deadline for the execution by a legal entity, individual entrepreneur of a previously issued order to eliminate the identified violation of mandatory requirements and (or) requirements established by municipal legal acts.
- Receipt to the body of state control (supervision), the body of municipal control of an application from a legal entity or individual entrepreneur for the provision legal status, a special permit (license) for the right to carry out certain types of activities or permission (approval) for the implementation of other legally significant actions.
reasoned presentation of the official of the controlling body based on the results of the analysis of the results of control measures without interaction with entrepreneurs, consideration or preliminary verification of appeals and applications received by the regulatory authorities from citizens, individual entrepreneurs, legal entities, information from state authorities, local authorities, from funds mass media about the following facts:

a) the emergence of a threat of causing harm to life, health of citizens, harm to animals, plants, the environment, objects of cultural heritage of the peoples of the Russian Federation, objects of the Museum Fund of the Russian Federation, especially valuable documents of the Archival Fund of the Russian Federation, documents of the national library fund, state security, as well as threats of emergency situations natural and man-made character;

b) causing damage to the above objects, as well as the occurrence of natural and man-made emergencies;

An unscheduled on-site inspection of legal entities, individual entrepreneurs on the grounds specified in subparagraphs "a" and "b" is carried out by state control (supervision) bodies, municipal control bodies after agreement with the prosecutor's office at the place of operation of such legal entities, individual entrepreneurs.

c) violation of consumer rights (in case of applying to the body exercising federal state supervision in the field of consumer protection, citizens whose rights are violated, provided that the applicant applied for the protection (restoration) of his violated rights to the entrepreneur and such an appeal was not considered or the applicant's claims were not satisfied);

2.1) when carrying out activities without interacting with entrepreneurs when exercising types of control (supervision), in respect of which a risk-based approach is applied, the parameters of the entrepreneur's activity, compliance with which or deviation from which, according to the approved risk indicators, is the basis for an unscheduled inspection.

an order (instruction) of the head of the state control (supervision) body, issued in accordance with the instructions of the President of the Russian Federation, the Government of the Russian Federation and on the basis of the request of the prosecutor to conduct an unscheduled inspection as part of supervision over the implementation of laws based on materials and appeals received by the prosecutor's office.

Anonymous appeals cannot serve as a basis for an unscheduled inspection. If there are reasonable doubts about the authorship of the appeal or application, the official of the controlling body is obliged to take reasonable measures to identify the person who applied.

When considering appeals and applications, the results of consideration of previously received similar appeals and applications, as well as the results of previously carried out control measures in relation to the relevant legal entities, individual entrepreneurs, should be taken into account.

In the absence of reliable information about the person who committed the violation of the mandatory requirements, sufficient data on the violation of the mandatory requirements, a preliminary check of the information received may be carried out. During the pre-screening, the following steps are taken:

request for additional information and materials from persons who sent applications, appeals, provided information;
consideration of documents of a legal entity, individual entrepreneur, available at the disposal of the regulatory authority;
if necessary, control measures are taken, carried out without interaction with entrepreneurs and without imposing on these persons the obligation to provide information and fulfill the requirements of regulatory authorities;
requesting explanations from entrepreneurs regarding the information received, but the submission of such explanations and other documents is not mandatory.

An unscheduled inspection is carried out in the form of a documentary and (or) field inspection.

As a general rule, a legal entity, an individual entrepreneur is notified by a state control (supervision) body, a municipal control body of an unscheduled inspection at least 24 hours before the start of its conduct in any accessible way, including by means of an electronic document signed with an enhanced qualified electronic signature and sent to at the e-mail address of a legal entity, individual entrepreneur, if such an address is contained in the Unified State Register of Legal Entities, EGRIP or was previously submitted to the regulatory authority.

Inspected persons are not notified of the start of an unscheduled on-site inspection in the following cases:

if as a result of the activity of an entrepreneur, harm has been or is being caused to life, health of citizens, harm to animals, plants, the environment, objects of cultural heritage of the peoples of the Russian Federation, museum objects and museum collections included in the Museum Fund of the Russian Federation, especially valuable, including unique, documents Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, state security, as well as emergencies of a natural and man-made nature have arisen or may arise;
when organizing and carrying out measures for state supervision in the field of ensuring the quality and safety of food products, materials and products in relation to entrepreneurs engaged in the production of food products, and (or) the circulation of food products, and (or) the provision of catering services (part 2 of Art. 13 of the Federal Law of 02.01.2000 N 29-FZ "On the quality and safety of food products");
in the event that officials of the antimonopoly body reveal violations as a result of monitoring compliance with mandatory requirements (part 6 of article 35.1 of the Federal Law of March 13, 2006 N 38-FZ "On Advertising");
in other cases established by law.

Time limit for the inspection

The term for each of the inspections (documentary and field) cannot exceed 20 working days.

For one small business entity general term scheduled on-site inspections cannot exceed:

50 hours per year - for a small business;
15 hours a year - for a micro-enterprise.

In exceptional cases (if it is necessary to conduct complex and (or) lengthy studies, tests, special examinations and investigations on the basis of motivated proposals from officials of the regulatory body conducting a scheduled on-site inspection), the term for conducting a scheduled on-site inspection may be extended by the head of such a body:

no more than 20 working days;
no more than 50 hours for small businesses;
no more than 15 hours for micro-enterprises.

The term for conducting documentary and on-site inspections in relation to a legal entity that operates in the territories of several constituent entities of the Russian Federation is established separately for each branch, representative office, separate structural unit legal entity, while the total period of the audit cannot exceed 60 working days.

The rights of the entrepreneur during the audit

The head, other official or authorized representative of a legal entity, individual entrepreneur, his authorized representative, during the audit, have the right to:

be directly present during the audit, give explanations on issues related to the subject of the audit;
receive from the state control (supervision) body, municipal control body, their officials information that relates to the subject of the inspection and the provision of which is provided for by this Law on inspections;
get acquainted with documents and (or) information received by state control (supervision) bodies, municipal control bodies within the framework of interdepartmental information interaction from other government agencies, bodies of local self-government or organizations subordinate to state bodies or bodies of local self-government, at the disposal of which these documents and (or) information are located;
submit documents and (or) information requested within the framework of interdepartmental information interaction to the state control (supervision) body, municipal control body on their own initiative;
get acquainted with the results of the inspection and indicate in the act of inspection about their familiarization with the results of the inspection, agreement or disagreement with them, as well as with certain actions of officials of the state control (supervision) body, municipal control body;
appeal against the actions (inaction) of officials of the state control (supervision) body, municipal control body, which entailed a violation of the rights of a legal entity, an individual entrepreneur during an audit, in an administrative and (or) judicial order in accordance with the legislation of the Russian Federation;
involve the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs or the Commissioner for the Protection of the Rights of Entrepreneurs in a constituent entity of the Russian Federation to participate in the audit;
other rights in accordance with chapter 3 of the Inspection Act.

Inspection Restrictions

When conducting an inspection, officials of a state control (supervision) body, a municipal control body shall not have the right to:

verify compliance with mandatory requirements and requirements established by municipal legal acts, if such requirements do not relate to the powers of the state control (supervision) body, municipal control body, on behalf of which these officials act;

1.1) verify compliance with the requirements established by regulatory legal acts of the executive authorities of the USSR and the RSFSR, as well as compliance with the requirements of regulatory documents, the mandatory application of which is not provided for by the legislation of the Russian Federation;

1.2) check the fulfillment of mandatory requirements and requirements established by municipal legal acts that are not published in the established legislation of the Russian Federation;

carry out a scheduled or unscheduled on-site inspection in the absence of a head, other official or authorized representative of a legal entity, individual entrepreneur, his authorized representative during the inspection, except for the case:
checks on the fact of causing harm to life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (monuments of history and culture) of the peoples of the Russian Federation, state security;
checks on the fact of the occurrence of natural and man-made emergencies;
verification of compliance with the requirements of land legislation in cases of proper notification of land owners, land users, land owners and tenants of land plots;
require the submission of documents, information, product samples, inspection samples of objects environment and objects of the production environment, if they are not objects of verification or do not relate to the subject of verification, as well as to withdraw the originals of such documents;
take product samples, inspection samples of environmental objects and objects of the production environment for their research, testing, measurements without issuing protocols on the selection of these samples, samples according to prescribed form and in an amount exceeding the norms established by national standards, rules for sampling, sampling and methods of their research, testing, measurement, technical regulations or other normative technical documents and rules and methods of research, testing, measurements that are valid until the day they come into force;
disseminate information obtained as a result of an audit and constituting a state, commercial, official, other secret protected by law, except for cases provided by law RF;
exceed the established deadlines for the inspection;
to carry out the issuance of orders or proposals to legal entities, individual entrepreneurs to carry out control measures at their expense;
require a legal entity, an individual entrepreneur to submit documents and (or) information, including permits, available at the disposal of other state bodies, local governments or organizations subordinate to state bodies or local governments, included in the list determined by the Government of the Russian Federation;
require a legal entity, an individual entrepreneur to submit documents, information before the start date of the audit. The state control (supervision) body, municipal control body, after the adoption of an order or an order to conduct an inspection, has the right to request the necessary documents and (or) information within the framework of interdepartmental information interaction.

The procedure for processing the results of the check

Based on the results of the inspection, the officials of the state control (supervision) body, the municipal control body conducting the inspection draw up an act in the prescribed form in 2 copies.

The verification report states:

date, time and place of drawing up the inspection report;
name of the state control (supervision) body or municipal control body;
date and number of the order or order of the head, deputy head of the state control (supervision) body, municipal control body;
last names, first names, patronymics and positions of the official or officials who conducted the inspection;
the name of the legal entity being checked or the surname, name and patronymic of the individual entrepreneur, as well as the surname, name, patronymic and position of the head, other official or authorized representative of the legal entity, an authorized representative of the individual entrepreneur who were present during the audit;
date, time, duration and place of the inspection;
information about the results of the inspection, including the identified violations of mandatory requirements and requirements established by municipal legal acts, their nature and the persons who committed these violations;
information on familiarization or refusal to familiarize with the act of verification of the head, other official or authorized representative of the legal entity, individual entrepreneur, his authorized representative who were present during the verification, on the presence of their signatures or on the refusal to sign, as well as information on entering into the journal accounting for audits of a record of the audit carried out or the impossibility of making such a record due to the lack of a specified journal by a legal entity, individual entrepreneur;
signatures of the official or officials who carried out the inspection.

Attached to the inspection report are:

protocols for the selection of product samples, samples of examination of environmental objects and objects of the production environment;
protocols or conclusions of the conducted studies, tests and examinations;
explanations of employees of a legal entity, employees of individual entrepreneurs who are held liable for violation of mandatory requirements or requirements established by municipal legal acts;
a checklist (list of checklists) completed based on the results of the check, if the check was carried out using a checklist (list of checklists);
orders to eliminate revealed violations and other documents related to the results of the inspection or their copies.

The audit report is drawn up immediately after its completion in 2 copies, one of which with copies of the annexes is handed over to the head, other official or authorized representative of the legal entity, individual entrepreneur, his authorized representative against receipt of familiarization or refusal to familiarize with the audit report. The verification report can also be sent by registered mail or in the form of an electronic document signed with an enhanced qualified electronic signature.

In exceptional cases (if in order to draw up an inspection report, it is necessary to obtain conclusions based on the results of studies, tests, special investigations, examinations), an inspection report is drawn up within a period not exceeding 3 working days after the completion of control measures.

Inspection log

Legal entities, individual entrepreneurs have the right to keep a log of inspections in a standard form approved by Order of the Ministry of Economic Development of the Russian Federation dated April 30, 2009 N 141.

In the register of inspections, officials of the state control (supervision) body, municipal control body make a record of the inspection, containing the following information:

name of the state control (supervision) body, municipal control body;
start and end date of the inspection;
the time of the inspection;
legal grounds;
goals, objectives and subject of verification;
detected violations and issued orders;
surnames, names, patronymics and positions of the official or officials conducting the check, his or their signatures.

The log of inspections must be stitched, numbered and certified by the seal of a legal entity, individual entrepreneur (if there is a seal). In the absence of a log of inspections, an appropriate entry is made in the inspection report.

Objections to the verification act

In case of disagreement with the facts, conclusions, proposals set forth in the inspection report, or with the issued order to eliminate the identified violations, a legal entity (IP) within 15 days from the date of receipt of the inspection report has the right to submit to the appropriate state control (supervision) body, municipal authority control in writing objections to the act of inspection and (or) the issued order to eliminate the identified violations in general or its individual provisions. At the same time, the entrepreneur has the right to attach to such objections documents confirming the validity of such objections, or their certified copies.

Appealing the results of the audit

The results of an inspection conducted by a state control (supervision) body, a municipal control body in gross violation of the requirements for organizing and conducting inspections established by the Law on Inspections, cannot be evidence of a violation by a legal entity, individual entrepreneur of the mandatory requirements and requirements established by municipal legal acts, and are subject to cancellation higher authority state control (supervision) or court based on the application of a legal entity, individual entrepreneur.

Gross violations are (Part 2, Article 20 of the Law on Inspections):

lack of grounds for a scheduled inspection;
violation of the deadline for notification of the inspection;
involvement in the implementation of measures to control legal entities not accredited in accordance with the established procedure, individual entrepreneurs and citizens not certified in accordance with the established procedure;
lack of grounds for conducting an unscheduled on-site inspection;
lack of coordination with the prosecutor's office of an unscheduled on-site inspection in relation to a legal entity, individual entrepreneur;
violation of the terms and time of scheduled on-site inspections in relation to small businesses;
conducting an inspection without an order or order of the head, deputy head of the state control (supervision) body, municipal control body;
requirement for documents that are not related to the subject of verification;
excess deadlines conducting inspections;
failure to submit an inspection report;
conducting a scheduled inspection not included in the annual plan for scheduled inspections;
participation in the inspections of experts, expert organizations that are in civil law and labor relations with legal entities and individual entrepreneurs in respect of which the inspections are carried out.

verification period

See what the "verification period" is in other dictionaries:

verification period - The time interval during which the presence of a useful signal is checked at the input Topics ... ... Technical Translator's Reference

trial; verification period - Judicial procedure, during which the will is approved and an executor (executor) or administrator (administrator) is appointed to fulfill the will of the deceased ... Financial and investment explanatory dictionary

period - 2.18 period: Length of time. Source: GOST ISO 8601 2001: System of standards for information, librarianship and publishing. Presented ... Dictionary-reference book of terms of regulatory and technical documentation

Repeated tax audits - it is prohibited for the tax authorities to conduct repeated field tax audits for the same taxes payable or paid by the taxpayer (payer of the fee) for the already audited tax period, except in cases ... ... Encyclopedic Dictionary of the head of the enterprise

measurement period - 3.3 measurement period: The time interval during which data on the vibration of a building are continuously collected. Source: GOST R 52892 2007: Vibration and shock. Vibration of buildings. Measurement of vibration and assessment of its impact on the structure ... Dictionary-reference book of terms of regulatory and technical documentation

An act of an on-site tax audit - the act of a tax audit must contain documented facts of tax offenses identified during the audit, or the absence of such, as well as the conclusions and proposals of the inspectors to eliminate the identified violations and links to ... Encyclopedic Dictionary-Reference of the head of the enterprise

THE ACT OF THE FIELD TAX INSPECTION - is drawn up in accordance with the procedure established by the Instruction of the Ministry of the Russian Federation on taxes and fees dated April 10. 2000 No. 60 “On the procedure for drawing up an act of an on-site tax audit and proceedings in a case of violations of the legislation on taxes and fees.” ... ... Financial and Credit Encyclopedic Dictionary

loopback test - The test sequence used when evaluating confidence in loopback mode. Reliability is assessed by comparing the transmitted and received sequence and counting the number of errors detected over the entire period ... ... Technical Translator's Reference

audit program 3.9.2 audit program (en audit; fr audit) set of one or more audits (checks) (3.9.1) planned for a specific period of time and aimed at achieving a specific goal Source: GOST R ISO 9000 2001: ... ... Dictionary-reference book of terms of regulatory and technical documentation

Tax inspection - (Tax inspection) The concept of tax inspection, the system of tax authorities, taxation Information about the concept of tax inspection, the system of tax authorities, taxation Contents Contents The development of taxation in the Historical chronicle ... ... Encyclopedia of the investor

Checked period

According to Art. 89 tax code An on-site inspection may cover any periods for the last three calendar years preceding the year of the inspection.

Example. For example, in January 2010, the tax authorities can check the correctness of the calculations with the budget for income tax for 2007, 2008 and 2009. They no longer have the right to control the calculations of this tax for 2006 and previous years.

If the tax inspectorate checked the period that they are not entitled to check, and decided to fine the company, go to court: you will win the case.

Example. In April 2005, the tax inspectorate carried out an on-site inspection of one of the joint-stock companies in Yaroslavl. The inspection established that the company had not fully paid personal income tax in the period up to January 1, 2002. Based on the results of the inspection, the tax authorities fined the company for a large sum and demanded to pay the arrears. The firm did not agree with the decision of the inspectors and turned to arbitration court. The judges satisfied the claim, since the inspectorate did not have the right to charge additional tax and collect a fine from the arrears that formed outside the audited period (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of April 24, 2006 N A82-4687 / 2005-15).

Please note: it is forbidden to conduct repeated field audits for the same taxes for the same tax period (Article 89 of the Tax Code of the Russian Federation).

The ban on repeated audits for the same taxes for the same period does not apply to three cases. Repeated checks on the same issues can be carried out:

- if it is caused by the liquidation or reorganization of the company;

- if it is carried out by a higher tax authority to control the work of subordinates;

- if the company has filed an updated declaration, in which the amount of tax turned out to be less than the previously declared one.

Inspection procedure

The tax inspectorate came to you with a check. What should you pay attention to first of all?

First of all, on the basis of Art. 91 of the Tax Code, you have the right to refuse inspection employees access to your premises if they do not show you their official IDs and a decision to conduct an inspection.

An on-site audit is carried out on the basis of a decision of the head or deputy head of the tax inspectorate. The decision form was approved by the Order of the Federal Tax Service of Russia dated December 25, 2006 N SAE-3-06 / [email protected]

Here is an example solution:

SOLUTION N ——

on conducting an on-site tax audit

————————- —————

(place of compilation) (date)

Based on Article 89 of the Tax Code of the Russian Federation

head (deputy head)

Inspections of the Federal Tax Service N 12, Serpukhov

(name of the tax authority)

Andreev A.A.

(surname, initials)

Society

1. Appoint an on-site tax audit ———————

With limited liability"Passive" (LLC "Passive"),

(full and abbreviated name of the organization, TIN/KPP

or full and abbreviated names of the organization and branch

(representative offices) of the organization, TIN/KPP; FULL NAME. physical

persons, TIN)

in accordance with paragraph 1 of Art. 89 of the Tax Code of the Russian Federation

(the grounds for conducting an on-site tax audit are indicated

in accordance with Article 89 of the Tax Code of the Russian

Federation in the event of a repeated field tax

checks: “in accordance with subparagraph I of paragraph 10 of Article 89

of the Tax Code of the Russian Federation in the order of control

higher tax authority for the activities of ________________

(indicate the name of the tax authority that conducted

verification)" or "in accordance with subparagraph 2 of paragraph 10 of Article 89

of the Tax Code of the Russian Federation in connection with the submission

specified __________________ (indicate the name of the tax

declaration), which indicates the amount of tax in an amount less than

previously declared”, or in the case of an on-site tax

checks in connection with the reorganization or liquidation of the organization:

"in connection with the reorganization of the organization" or "in connection with the liquidation

organizations")

on the correctness of the calculation and the timeliness of payment

(withholding, transfer) of taxes and fees: ______________________

value added tax

(a list of taxes and fees to be checked or an indication

to conduct an on-site tax audit “on all taxes

and fees")

01/01/2008 12/01/2008

for the period from ————— to ——————.

(date) (date)

senior state

2. Entrust the inspection ——————————

tax inspector Petrova O.I. (supervisor)

(positions, full name of employees of the tax authority indicating

the head of the inspection group (team) and employees of the body

internal affairs)

and state tax inspector Ivanov I.I.

Head (deputy head)

adviser to the state

civil service

Russian Federation 1st class Andreev Andreev Andrey Andreevich

—————————— ——— ————————

(class rank) (signature) (full name)

Place of printing

I am familiar with the decision to conduct an on-site tax audit:

General Director of Passiv LLC Vasiliev Vasily Vasilievich

(position, full name of the head of the organization (its branch or

representative office) or full name individual)

(Full name of their representative)

————— —————

(date) (signature)

Any inconsistencies of the presented decision with the established form give you the right not to let the inspectors into your premises. If possible, make copies of the submitted documents. If you doubt their authenticity, call the tax office to find out if its employees are really in front of you.

Attention! If you refused the inspectors admission, the tax authorities have the right to independently determine the amount of taxes that you must pay. This is done on the basis of the data they have about your activities or by analogy with other taxpayers (Article 31 of the Tax Code of the Russian Federation).

In addition, the tax authorities can draw up a protocol on an administrative violation and send it to a district or justice of the peace.

Attention! The judge has the right to fine the head of the firm or entrepreneur in the amount of 1000 to 2000 rubles, other employees - in the amount of 500 to 1000 rubles. (Clause 1, Article 19.4 of the Code of Administrative Offenses of the Russian Federation).

From the moment tax inspectorate employees are admitted to your premises, they have the right to perform all the actions provided for during an on-site audit:

- inspect any premises;

- interrogate witnesses;

- request submission required documents;

- seize documents and objects;

- to carry out an inventory of property;

- appoint an expert.

The Tax Code of the Russian Federation establishes the rules for the implementation of all these actions. Evidence obtained by the tax inspectorate in violation of the rules cannot be used in court.

Tax audit more than three years

Julia Vasilyeva
head of the group for accreditation of foreign missions

Tax audit more than three years

Paragraph 1 of Art. 88 of the Tax Code of the Russian Federation states that within the framework of a desk audit, the period specified in the declaration filed by the taxpayer and documents submitted by the taxpayer is subject to control.

In this article, we propose to consider those very “other” cases, in the event of which the tax authorities have the right to control the correctness of the calculation and the timeliness of paying taxes for periods exceeding the established three years from the date of the decision to conduct an on-site audit.

This conclusion is confirmed by the materials of judicial practice (Decree of the Federal Antimonopoly Service of the North-Western District of June 22, 2012 No. А05-14239/2010).

An exception to the general rule on the period that may be covered by an on-site tax audit, provided for in Art. 89 of the Tax Code of the Russian Federation, is contained in par. 3, paragraph 4 of the said article and is the case when the taxpayer submits an amended declaration as part of the relevant on-site tax audit. This exception exempts the supervisory authority from the three-year limitation of the audited period and provides the right to conduct an on-site audit for an arbitrarily old period for which an updated declaration is submitted.

It should be noted that the wording of the norm under consideration - “within the framework of the relevant on-site tax audit” - allows certain options for the taxpayer's behavior and allows the company to try to limit the possibility of expanding the boundaries of the audited period. So, from a literal interpretation it follows that the exception can be applied only if the “clarification” was submitted directly during the on-site tax audit.

Example from practice:

“On August 24, 2009, the head of the Inspectorate made decision No. 58/28 on conducting an on-site tax audit of LLC MSP ROSSBAN on the correctness of the calculation and timeliness of payment (withholding, transfer) of all types of taxes and fees paid by it, as well as insurance premiums for the OPS - for the period from January 01 to December 31, 2008.

Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:

No. p / p	Exceptions	Foundations
1	Submission by the taxpayer of an amended tax return as part of the relevant on-site tax audit.	Paragraph 3, paragraph 4 of Art. 89 Tax Code of the Russian Federation
2	Repeated on-site audit in connection with the submission by the taxpayer of an updated tax return, which indicates the amount of tax in an amount less than previously declared.	Subparagraph 2 of paragraph 10 of Art. 89 Tax Code of the Russian Federation
3	Carrying out an on-site audit of a resident excluded from the register of the Special Economic Zone in the Kaliningrad Region in terms of income tax and corporate property tax, provided that the decision to appoint such an audit was made no later than three months from the date of payment by the resident of the relevant tax.	Clause 16.1 of Art. 89 Tax Code of the Russian Federation
4	Conducting an on-site audit of a taxpayer who applies a special tax regime when fulfilling a production sharing agreement.	Paragraph 1 of Art. 346.42 of the Tax Code of the Russian Federation

Verification of individual entrepreneurs who have already ceased their activities

Due to the doubling of contributions to the Pension Fund since January 2013, many individual entrepreneurs have decided to stop their activities. They believe that if they have received certificates of termination, deregistration with the IFTS and an extract from IGRIP, then the regulatory authorities will never again bother them about the correctness and timeliness of paying taxes (fees) for the period of their activity as an individual entrepreneur. However, it is not. Despite the fact that an individual no longer has the status of an individual entrepreneur, he continues to be a taxpayer and his obligation to pay taxes and fees does not stop when leaving an individual entrepreneurial activity.

with the payment of a tax and (or) a fee by a taxpayer, a payer of a fee and (or) a member of a consolidated group of taxpayers in cases provided for by the Tax Code of the Russian Federation;
with the death of an individual taxpayer or declaring him dead in the manner prescribed by the civil procedural legislation of the Russian Federation;
with the liquidation of the taxpayer organization after all settlements with the budget system of the Russian Federation in accordance with Art. 49 of the Tax Code of the Russian Federation;
with the occurrence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.

Apparently, this norm does not provide for the fact of the termination of individual entrepreneurial activity as a basis for the termination of the obligation to pay a tax (fee).

Moreover, pp. 8 p. 1 art. 23 of the Tax Code of the Russian Federation provides for the obligation of taxpayers to ensure the safety of accounting and tax accounting data and other documents necessary for the calculation and payment of taxes, including documents confirming the receipt of income, expenses (for organizations and individual entrepreneurs), as well as payment ( withholding) taxes. Termination of entrepreneurial activity does not release the former entrepreneur from this obligation.

Important at work:

The taxpayer has the right to reconcile calculations with the tax authority for a period that exceeds three years.
The loss of the status of an entrepreneur does not mean that the tax authorities will never again be able to verify the correctness of the calculation of taxes for the period of doing business by a former individual entrepreneur.

There is an opinion:

The Inspectorate has the right to conduct an on-site inspection for a period that has not been previously checked and for which a “clarification” has been submitted, even if more than three years have passed. Therefore, when submitting a “clarification”, it is necessary to calculate the deadlines.
In practice, not everyone is checked with the same regularity: someone annually, and someone every few years. And yet, the tax authorities are trying to avoid "dead zones", that is, such situations when the company has not been audited for more than three years and periods have appeared that the tax authorities are no longer entitled to check. Therefore, if you have not been checked for more than three years, wait for an on-site check.

WHO IS CHECKED

Who will come first?

Rostrud refers an organization or an individual entrepreneur to a certain category of risk. The higher the risk category, the more often inspections will be carried out:

As you can see, organizations belonging to a high risk category will most often be checked. List of employers whose activities are categorized high risk posted on the Rostrud website.

Officials bodies of state control (supervision) before conducting a scheduled inspection are obliged to explain to the head, other official or authorized representative of a legal entity, an individual entrepreneur, his authorized representative the content of the provisions of Art. 26.1 of the Federal Law of December 26, 2008 No. 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control" (as amended on April 18, 2018; hereinafter - Federal Law No. 294-FZ).

To whom will the GIT not come?

From January 1, 2016 to December 31, 2018, scheduled inspections are not carried out in relation to legal entities, individual entrepreneurs classified in accordance with the provisions of Art. 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the Development of Small and Medium-Sized Businesses in the Russian Federation” to small businesses (hereinafter referred to as SMEs), with the exception of legal entities, individual entrepreneurs engaged in activities provided for by Part 9 of Art. 9 of Federal Law No. 294-FZ ( social sphere, healthcare, education, heat supply, electric power, energy saving and energy efficiency).

In the event that officials of a state control (supervision) body, a municipal control body, during a scheduled inspection, submit documents confirming the inclusion of a legal entity, an individual entrepreneur, in respect of which a scheduled inspection is being carried out, to the SMP, and in the absence of the grounds provided for in Part 2 of Art. 26.1 of Federal Law No. 294-FZ, the scheduled inspection is terminated, about which an appropriate act is drawn up.

Note!

Carrying out a scheduled inspection in violation of the requirements of Art. 26.1 of the Federal Law No. 294-FZ in relation to the SMP is a gross violation of the requirements of the legislation on state control (supervision) and municipal control and entails the invalidity of the results of the audit as carried out with gross violations.

Will the project to extend the moratorium on scheduled inspections until 2022 for medium-sized businesses affect the inspections of the State Inspectorate?

Currently, a draft is being prepared to extend the moratorium on scheduled inspections of not only small but also medium-sized businesses until 2022, however, this change will only affect those inspections that will be carried out without using a risk-based approach. Therefore, the moratorium will not apply to GIT inspections, since scheduled inspections from 2018 are carried out using a risk-based approach.

Can a labor inspector conduct a scheduled inspection of an organization belonging to the SME?

Yes, it can, in a case clearly defined by law:

If earlier in relation to the employer:

- a decision was issued that entered into force on the imposition of an administrative penalty for committing a gross violation, determined in accordance with the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), or an administrative penalty in the form of disqualification or administrative suspension of activities;

- or a decision was made to suspend and (or) annul the license issued in accordance with the Federal Law of May 4, 2011 No. 99-FZ “On Licensing Certain Types of Activities”;

If less than three years have passed from the date of completion of the audit, as a result of which such a decision was issued or such a decision was made.

Note!

When forming an annual plan for conducting inspections, the state control (supervision) body has the right to decide to include inspections in relation to such employers in the annual plan for conducting scheduled inspections on the grounds provided for in Part 8 of Art. 9 of Federal Law No. 294-FZ, as well as other federal laws establishing the features of organizing and conducting inspections.

At the same time, the annual plan for conducting scheduled inspections will contain information about the specified resolution or decision, the date of their entry into force and the end date of the inspection, the results of which the resolution or decision was made.

For your information

These conditions apply regardless of the area in which the violation was committed (i.e. it is not necessarily a violation of labor laws) that entailed such severe penalties.

Can an organization be excluded from the audit plan?

Employers have the right to submit to the territorial body of Rostrud an application to exclude an organization from the annual plan for scheduled inspections if they believe that it is included in the annual plan in violation of the provisions of Art. 26.1 of Federal Law No. 294-FZ.

The rules for filing and considering an application to exclude an inspection in respect of a legal entity, an individual entrepreneur from the annual plan for scheduled inspections were approved by Decree of the Government of the Russian Federation of November 26, 2015 No. 1268. Said Rules install:

the procedure for submitting an application;
a list of documents attached to it, confirming the attribution of a legal entity, an individual entrepreneur to the SMP;
the procedure for considering this application, appealing against the inclusion of an inspection in the annual plan for scheduled inspections;
the procedure for excluding the relevant audit from the annual plan.

How to reduce the risk category?

To reduce the risk category, the employer must apply to the territorial body of Rostrud with a corresponding application. And if the risk category is reduced from medium to low, a scheduled inspection will not be carried out in relation to such an employer. For example, in connection with a change in the risk category from medium to low by the Order State Inspectorate labor in the Ryazan region, the planned inspection in relation to the PPO PJSC Plant Krasnoye Znamya was excluded from the Schedule of Scheduled Inspections for 2018.

Note!

Even those employers can reduce the risk category, in respect of which during the previous year there are rulings on cases of administrative offense provided for by hh. 2, 5 and 7 st. 5.27 and part 5 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation, i.e. those who have committed similar offenses, which does not quite correspond to the stated goals of the risk-based approach.

In accordance with clause 13 of the Criteria for Classifying the Activities of Legal Entities and Individual Entrepreneurs Being Employers as a Certain Risk Category, the risk category of an employer can be reduced only if there is no ruling on an administrative offense case that has entered into force within the previous year, provided for in ch. 1, 3, 4 and 6 st. 5.27 and hh. 1–4 tbsp. 5.27.1 of the Code of Administrative Offenses of the Russian Federation in relation to the employer. We hope that in the near future this loophole for employers who repeatedly violate labor laws will disappear.

How are changes made to the audit plan?

In accordance with paragraph 41 of the Administrative Regulations for the execution Federal Service for work and employment state function on the implementation of federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms approved by Order of the Ministry of Labor of Russia dated October 30, 2012 No. the plan of checks is allowed in the following cases:

Exclusion of an audit from the annual plan due to:

- the impossibility of conducting a scheduled audit of the activities of a legal entity due to its liquidation, the impossibility of conducting an audit of an individual entrepreneur due to the termination of an individual's activity as an individual entrepreneur;

- adoption by the state control (supervision) body of a decision to exclude the relevant inspection from the annual plan in cases provided for in Art. 26.1 of Federal Law No. 294-FZ;

- the occurrence of force majeure circumstances;

Changes in the information about a legal entity or individual entrepreneur specified in the annual plan due to:

– change of the address of the location or the address of the actual implementation of the activities of a legal entity or an individual entrepreneur;

– reorganization of a legal entity;

– change of the name of the legal entity, as well as change of the surname, name and patronymic of an individual entrepreneur.

Changes to the annual plan are made by the decision of the territorial body of Rostrud. Information about the changes made to the annual plan shall be sent within 3 working days from the date of their introduction to the relevant prosecutor's office for hard copy(with a copy in electronic form attached) by registered mail with a return receipt or in the form of an electronic document signed with an electronic signature, and are also posted on the official website of Rostrud on the Internet information and telecommunication network within 5 working days from the date of making changes.

Is a legal entity or an individual entrepreneur excluded from the audit plan during reorganization?

When a legal entity is reorganized, as well as in connection with a change in the address of the location or address of the actual implementation of the activities of a legal entity or an individual entrepreneur, in connection with a change in the name of a legal entity, as well as a change in the last name, first name and patronymic of an individual entrepreneur, changes are made to the plan, and the legal a person or self-employed person is not excluded from the plan. This is important, since a cursory reading of this rule gives the employer the impression that changing the name of a legal entity will help to avoid a scheduled inspection. This is wrong.

Can an inspector during a scheduled on-site inspection request documents held by another body?

It should be noted that in the legislation there is a small conflict between the two regulations - paragraph 8 of Art. 15 of Federal Law No. 294-FZ and paragraph 51 of the Administrative Regulations - in terms of establishing one of the restrictions during inspections. Federal Law No. 294-FZ prohibits demanding from the employer information and documents that are at the disposal of other state bodies, local governments or organizations subordinate to them when conducting any inspections, and the Administrative Regulations - only when carrying out documentary inspections.

According to part 4 of Art. 1 of Federal Law No. 294-FZ, the specifics of conducting inspections in relation to federal state supervision of compliance with labor laws and other regulatory legal acts containing labor law norms are established by federal laws, and not by-laws. Therefore, this restriction applies to all inspections carried out by labor inspectors. It should be added that the law does not prohibit the submission of such documents on a voluntary basis.

HOW TO CHECK

How will employers be checked in 2018?

When conducting scheduled inspections of all employers - legal entities and individual entrepreneurs - state labor inspectors use checklists (checklists) from July 1, 2018, and when conducting scheduled inspections of employers belonging to the moderate risk category - from January 1, 2018 (actually from February 4, 2018). The subject of a scheduled inspection of all employers is limited to the list of questions included in the checklists.

Among all oversight bodies at Rostrud the largest number checklists - 107 (for comparison: Rosprirodnadzor has 7 of them, Rospotrebnadzor and the Ministry of Emergency Situations - 3 each, Rosreestr - 1). In the near future, there will be even more of them - Rostrud has prepared a draft order approving another 28 checklists. Among them are issues related to the liability of the employee, organization vocational education and advanced training, as well as compliance with labor protection requirements in the coal industry.

How to prepare for the test?

Based on paragraph 7 of the general requirements for the development and approval of checklists (lists of checklists), approved by Decree of the Government of the Russian Federation of February 13, 2017 No. 177, questions from the checklists can be used for self-examination. And by letter dated 07.03.2018 No. 837-TZ, Rostrud sent Methodological recommendations for employers on voluntary internal control (self-control) of compliance with labor laws and other regulatory legal acts containing labor law norms.

Not everything is so simple with regard to the unambiguity of answers to the questions posed in the checklists. Here are some examples:

What specific checklists will be checked? How many inspectors will there be? What should be available for verification?

In practice, when conducting scheduled inspections of the State Inspectorate for most of the organizations being inspected, on average, 36–37 of the first checklists in the list plus checklist No. 100 are used.

Checklists for labor protection will be used depending on the specifics of the organization. Some of the questions specified in the checklists are used if the employer has the appropriate type economic activity according to the Federal Tax Service, real estate and equipment on which this species jobs, professions and positions in the staff list performing this type of work. In some regions, there has already been a trend when employers massively apply to the Federal Tax Service with a statement about the exclusion of additional OKVED.

The inspection order must indicate the specific numbers of the checklists that will be used when conducting a scheduled inspection in relation to a particular employer.

Note!

Indication of all checklists in the inspection order is unacceptable and may adversely affect the transparency of supervisory activities.

In addition, the order may indicate several officials. As a rule, this is a labor protection inspector and a legal inspector. The number of inspectors is actually limited only by the size of the relevant territorial body of Rostrud. And if the inspector, due to temporary disability, being on vacation, a business trip, dismissal, and other good reasons, could not go to the inspection, then the appropriate changes are made to the inspection order, drawn up by the order.

Recently, orders also contain a QR code, which encodes a link to the website of the Unified Register of Inspections. By dialing the audit account number specified in the checklist or by scanning the QR code, you can later get acquainted with the results of the audit, see information about the execution of the order and find out whether the guilty persons have been brought to administrative responsibility.

What documents should the organization receive after verification?

Upon completion of the inspection, the employer will receive an inspection report with copies of the completed checklists attached to it.

If violations are found - also an order to eliminate violations of labor legislation, and in case of violations in terms of labor protection training - an order to remove from work persons who have not completed training in the prescribed manner safe methods and methods of performing work, briefing on labor protection, internships at the workplace and testing knowledge of labor protection requirements.

How will the checklist and the act of verification be filled out during the check?

By law, checklists include lists of issues affecting the most significant mandatory requirements labor legislation and other normative legal acts containing the norms of labor law applicable to employers.

The columns “Account number of the inspection” and “Date of entering into the unified register of inspections” of the verification sheet must be filled in, for example: No. 0018000xxxxxx dated 02/08/2018.

According to part 11.5 of Art. 9 of Federal Law No. 294, the checklist is filled out based on the results of the audit and is attached to the audit report. However, the article does not specify which one.

According to paragraph 61 of the Administrative Regulations, the inspection report is drawn up by an authorized official of the territorial body of Rostrud immediately after its completion in two copies of equal legal force, one of which with copies of the applications is handed over to the authorized representatives of the person being checked against receipt of familiarization.

The original checklist is attached to the inspection report held by the labor inspector, and copies of the checklists are attached to the inspection report handed over to the employer (his representative).

Is it possible to get an inspection certificate and a checklist in electronic form?

The regulation on the type of federal state control (supervision) provides for the possibility of issuing checklists in the form of an electronic document signed with an enhanced qualified electronic signature in accordance with the Federal Law "On electronic signature"(Clause 5 of Decree of the Government of the Russian Federation of February 13, 2017 No. 177 "On Approval of General Requirements for the Development and Approval of Checklists (Checklists)".

However, the Federal Regulations state supervision for compliance with labor legislation and other regulatory legal acts containing labor law norms, the possibility of issuing a checklist in the form of an electronic document on this moment not provided. The employer, even if desired, will not be able to receive the verification certificate in the form of an electronic document, since it is impossible to attach a hard copy of the checklist to the act in the form of an electronic document.

Does the inspection report specify the number of employees in relation to whom violations have been identified?

The questions formulated in the checklists differ in the number of subjects. For example, checklist #2 asks questions about an employee, and checklist #22 asks questions about employees. The situation is similar with respect to the employment contract.

However, the act (in the event of a violation) will indicate that a similar violation of the requirements of the regulatory legal act was committed, for example, in relation to 5 employees, indicating their names, so there are no difficulties in this.

Are checklists used as evidence in a case of an administrative offense?

Yes, they are used. As an example, we can cite the decision in the case of an administrative offense dated March 28, 2018 No. 80 / 5-186 / 2018, issued by the justice of the peace of the court district No. 80 of the Oktyabrsky district of Kirov, in which checklists are given as evidence of violations of labor protection requirements . Since the person brought to administrative responsibility did not dispute the essence of the imputed violations under Part 1 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation, the court applied an administrative penalty in the form of a warning.

Can an order be appealed?

It will become more difficult to appeal against orders issued as a result of a scheduled inspection conducted using checklists, since they are issued in case of an obvious violation of labor laws, and the answers to the questions posed in the checklists unequivocally (and therefore obviously) should indicate the presence or no violation.

Separate layer judgments will be formed by appealing the results of inspections using checklists regarding compliance with labor protection requirements, since some of the checklists contain references to documents that are advisory rather than mandatory, for example, Decree of the Ministry of Labor of Russia dated December 17, 2002 No. 80 “On approval methodological recommendations on the development of state regulatory requirements for labor protection”.

Will consolidated checklists be used during joint inspections by Rostrud and Rospotrebnadzor?

When conducting joint scheduled inspections, consolidated checklists (lists of checklists) developed and approved by several state control (supervision) bodies can be used.

For example, during a joint scheduled inspection by Rostrud and Rospotrebnadzor, a consolidated checklist may be approved regarding the verification of the provision of personal protective equipment for workers whose activities are associated with a high risk of contracting infectious diseases. We remind you that the employer is obliged to provide employees belonging to occupational risk groups with special clothing and repellents.

There are currently no approved summary checklists.

Will the labor inspector fill out checklists on the first day of the inspection?

Employers should not be afraid of a new procedure for conducting scheduled inspections, since checklists are drawn up upon completion of the inspection, i.e. labor inspectors will study personnel documentation, documents on remuneration and labor protection in the same manner as before, setting out the results of the inspection in the act with reference to the relevant provisions of the checklists.

Rostrud Letter No. ТЗ/1330-11-2 dated April 12, 2017.

Companies often have disputes with tax authorities about the periods that the latter are entitled to check as part of an on-site tax audit. Based on judicial practice and clarifications of officials, we will consider in which cases companies have a chance to defend their case, and in which they do not.

An on-site tax audit is carried out on the basis of the decision of the head (deputy head) of the tax authority (clause 1, article 89 of the Tax Code of the Russian Federation). Within its framework, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made (clause 4, article 89 of the Tax Code of the Russian Federation) can be checked.

How to count three years

In practice, there are situations when several months pass between the decision to conduct an inspection and the inspection itself, and it takes place as early as next year. In such cases, some companies consider that the three-year period should be based on the year in which the audit is actually carried out. But the courts do not support them.

Thus, the Arbitration Court of the Urals District, in its decision of July 17, 2017 in case No. A60-47352/2016, considered the following situation. In 2016, the company underwent an on-site tax audit, during which the tax authorities audited the periods from April 2012 to December 2014 inclusive. The company believed that since the audit was conducted in 2016, the tax authority had the right to audit 2015, 2014 and 2013. And the inclusion in the audit of 2012 is contrary to the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation.

The court ruled that the company's arguments were erroneous. He noted that in accordance with paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the three-year period is counted from the year in which the decision to conduct an audit was made, and not from the year in which it was actually carried out. The decision to conduct an on-site tax audit was made by the head of the inspectorate on June 30, 2015. So, based on the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authority could audit the period from 2012 to 2014, and the controllers did not go beyond the three-year limit of the audit period.

Another example is the dispute considered by the Arbitration Court of the West Siberian District in a decision dated December 25, 2018 in case No. A75-918 / 2017. Tax authority decided to conduct an on-site tax audit on December 28, 2015, which actually took place in 2016. The court recognized lawful holding inspection inspection for 2012, 2013 and 2014

Please note: in such cases, the earliest year covered by the tax audit is beyond three years. limitation period(Article 196 of the Civil Code of the Russian Federation). In this regard, some companies believe that the tax authorities are not entitled to charge additional tax. For example, the Federal Antimonopoly Service of the Volga District, in its decision dated March 19, 2013 in case No. А06-3630/2012, considered the situation when the decision to conduct an on-site audit was made by the tax inspectorate on December 26, 2011, and the audit itself took place already in 2012. Within its framework the period from January 1, 2008 to December 31, 2010 was audited. The Company attempted to challenge the additional tax assessment for 2008 due to the expiration of the limitation period. But the court rejected this argument. He pointed out that the additional accrual was made lawfully, since, according to paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, as part of an on-site tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made can be audited. At the same time, the arbitrators noted that the company was not reasonably fined for non-payment of tax in 2008, since the statute of limitations for imposing tax liability had expired. Recall that according to paragraph 1 of Art. 113 of the Tax Code of the Russian Federation, a person cannot be held liable for tax offense, if from the date of its commission or from the next day after the end of the tax (calculation) period during which this offense was committed, and until the decision on bringing to responsibility has expired three years (statute of limitations).

Verification period when submitting clarifications

In paragraph 4 of Art. 89 of the Tax Code of the Russian Federation states that when a taxpayer submits an amended tax return, the period for which the amended tax return is filed is checked as part of the relevant on-site tax audit.

Explaining the procedure for applying this rule, the Federal Tax Service of Russia in letters dated July 25, 2013 No. AC-4-2 / [email protected] and dated May 29, 2012 No. AC-4-2/8792 indicated that:

1) the norm is an exception to the general rule on the period that may be covered by an on-site inspection;

2) the norm is applied if the taxpayer submits an amended tax return for a period exceeding three calendar years preceding the year in which such a declaration is submitted;

3) the norm gives the tax authority the right to conduct an on-site audit for the period for which an updated tax return is submitted;

4) the specified on-site tax audit may be conducted if the relevant period was not previously covered by an on-site tax audit;

5) the moment of submission of the amended tax return (during the on-site tax audit, before it, after it) does not matter for the application of the norm.

And in a letter dated 03.09.2010 No. AC-37-2 / [email protected] specialists of the Federal Tax Service of Russia noted that in the case of filing an amended tax return, the period for which it is submitted is checked, including if specified period is outside the three calendar years preceding the year in which the decision to conduct the audit was made.

Thus, when submitting an updated declaration, tax authorities can check the period that goes beyond the three-year limit. The courts confirm this.

In the dispute considered in the decision of the Arbitration Court of the North Caucasus District dated August 13, 2014 in case No. A53-11519 / 2013, the tax inspectorate in 2012 conducted an on-site tax audit for 2009 and 2010. At the same time, in the course of monitoring the correctness of the calculation and payment of income tax for 2009, the tax authority examined, among other things, revised income tax returns for 2008 and 2009 filed in October 2010. The Company believed that the inspectorate was not entitled to check the correctness of the calculation of income tax for the tax period preceding the period of verification.

But the courts of three instances judged otherwise. They indicated that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation provides for an exception to the general rule on the three-year depth of a tax audit. If a company has submitted an amended declaration, the tax authorities have the right, when conducting an on-site audit for the period, the indicators of which were affected by the data of the amended declaration, to check the period for which such a declaration was submitted. It does not matter that the specified period is outside the three calendar years preceding the year in which the decision to conduct the audit was made. Ruling of the Supreme Court of the Russian Federation dated November 28, 2014 No. 308-KG14-4417 denied transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation.

Re-checking when submitting clarifications

A repeated on-site inspection may be scheduled if the taxpayer has submitted an amended declaration, which indicates the amount of tax in an amount less than previously declared. The subject of such a repeated on-site tax audit is the correctness of the tax calculation based on the changed indicators of the revised tax return, which led to a decrease in the previously calculated tax amount (increased loss) (subclause 2, clause 10, article 89 of the Tax Code of the Russian Federation).

When conducting a repeated field tax audit, a period not exceeding three calendar years preceding the year in which the decision to conduct a repeated field tax audit was made (clause 10, article 89 of the Tax Code of the Russian Federation) can be checked. The question arises: is the tax authority entitled to conduct a repeated field tax audit if the period for which the amended tax return is filed exceeds three calendar years preceding the year in which the tax authority issued a decision to conduct a repeated field tax audit?

Officials think they are right. In a letter dated April 19, 2013 No. 03-02-07/1/13473, the Ministry of Finance of Russia indicated that, as part of the repeated on-site tax audit scheduled in connection with the submission of an updated declaration, the period for which it was submitted is checked. Therefore, the period checked in the course of this repeated on-site inspection may exceed three calendar years preceding the year in which the decision to conduct it was made. A similar conclusion is contained in the letter of the Federal Tax Service of Russia dated July 25, 2013 No. AS-4-2 / 13622.

The same opinion is also held by Supreme Court. In Ruling No. 305-KG15-606 dated 05.03.2015, he considered the situation when, on December 26, 2011, the company submitted revised declarations for June, August and December 2009, which reflected the amounts of excise taxes claimed for reimbursement paid when importing goods into the territory of the Russian Federation, and the amount of tax is indicated in an amount less than previously declared. In 2013, the Tax Inspectorate conducted a second on-site audit of the period for which the revised declarations were submitted. The company considered that the tax authorities went beyond the three-year period established by paragraph 10 of Art. 89 of the Tax Code of the Russian Federation.

The courts of three instances indicated that the start date of the audit is the day the decision to conduct the audit was made (December 29, 2012), therefore the disputed period (2009) does not go beyond the three-year period established in paragraph 10 of Art. 89 of the Tax Code of the Russian Federation. They also noted that the tax legislation provides for the possibility of filing an updated declaration for a period that is beyond three years. In this regard, the possibility of conducting a repeated tax audit outside the specified period corresponds to the principles and objectives of tax regulation and does not violate the balance of private and public interests.

Please note: in Ruling No. 305-KG17-19973 dated March 16, 2018, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation expressed the legal position that a repeated on-site tax audit cannot be initiated by a tax authority without taking into account the assessment of the reasonableness of the period elapsed from the date of filing an updated tax declarations. When assessing the reasonableness of the term for appointing a repeated on-site inspection, all circumstances related to ensuring a balance of private and public interests should be taken into account, in particular:

the existence of the possibility for the tax authority to timely identify circumstances indicating the unreasonableness of changes in the calculation of tax, declared in the revised declaration;

the ability of the taxpayer in the event of an on-site audit to ensure the protection of their rights after the lapse of the established paragraph 1 of Art. 23 of the Tax Code of the Russian Federation for a four-year period for storing documents necessary for the calculation and payment of taxes;

the presence or absence in the actions of the taxpayer of signs of opposition to tax control (providing to the tax authority unreliable and (or) incomplete documents and so on.).

In this case, a repeated field tax audit was scheduled 1 year and 10 months after the submission of the revised tax return to the tax authority, which the arbitrators recognized as a significant period. In this regard, the panel of judges sent the case back for a new trial, instructing the courts to assess the reasonableness of the timing of the appointment of an on-site tax audit, to adopt legal and reasonable judicial acts.

The legal position of the Supreme Court is used by the courts when making decisions. Thus, taking into account this legal position, the Arbitration Court of the North-Western District, in its decision of August 20, 2018 in case No. A21-10802 / 2017, recognized the decision to conduct an on-site audit, taken 2 years 11 months after the submission of the revised tax return, as violating the rights and legitimate interests companies.

Checking the current period

Often disputes arise over whether tax authorities can control the current period as part of an on-site tax audit.

Tax specialists and financiers believe that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not contain a ban on conducting field tax audits for the reporting periods of the current calendar year in which the decision to conduct a tax audit was made (letters of the Ministry of Finance of Russia dated July 26, 2018 No. 2019 No. ED-4-2/7305). This conclusion is confirmed by judicial practice.

In Ruling No. 304-KG14-737 of September 9, 2014, the Supreme Court of the Russian Federation considered the following situation. On March 30, 2012, the tax authority decided to conduct an on-site tax audit in the company for the period from January 1, 2009 to February 29, 2012. According to the results of the audit, the company for untimely transfer of personal income tax was held liable under Art. 123 of the Tax Code of the Russian Federation for the period from September 2, 2010 to December 31, 2011 and for January, February 2012

The court of first instance ruled that it was unlawful to hold the company liable for January and February 2012. In its opinion, from the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not directly follow that the check may cover the current calendar year. And a broad interpretation of the provisions contained in the law, or their extension to cases not specified in it, is unacceptable. In addition, according to paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer. Thus, the on-site tax audit for January and February 2012 does not comply with the provisions of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation.

But the appellate and cassation courts did not agree with this conclusion. They indicated that paragraph 4 of Art. 89 of the Tax Code of the Russian Federation does not contain a ban on field inspections for the reporting periods of the current calendar year. Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On Certain Issues of the Application of Part One of the Tax Code of the Russian Federation” clarified that tax legislation does not contain a ban on auditing periods of the current calendar year. From this, the courts concluded that the verification of reporting periods current year within the framework of an on-site tax audit does not violate the norms tax legislation. The Supreme Court upheld this conclusion.

The fact that the conduct of an on-site tax audit of the reporting periods of the current year by the inspectorate does not contradict the norms of the Tax Code and does not violate the rights and legitimate interests of the taxpayer is stated in the decisions of the Arbitration Court of the West Siberian District dated May 10, 2017 in case No. A45-28037 / 2015, East Siberian District dated April 19, 2017 in case No. А33-8287/2016, Moscow District dated November 12, 2015 in case No. А41-32783/2015, Federal Antimonopoly Service of the Far Eastern District dated February 26, 2013 No. 2013 № ВАС-4862/13 refused to transfer the case for review).

Yield over a three-year period

Sometimes, as part of an on-site tax audit, controllers make additional charges for transactions relating to periods beyond a three-year period. Courts consider such actions unlawful.

An example is the decision of the Arbitration Court of the North Caucasus District dated June 27, 2018 in case No. A63-11808 / 2017. In 2016, the Inspectorate conducted an on-site check of the timeliness of the transfer of personal income tax by an individual entrepreneur to the budget for the period from January 1, 2013 to February 29, 2016, as a result of which an additional tax was charged to the businessman. The reason was that the entrepreneur received in 2012 as a compensation. real estate. Ownership of this property was registered for him by the court in 2013. The controllers considered that the businessman received real estate only from the moment of state registration of the transfer of ownership of it. In this regard, the income from the transaction should be taken into account in 2013.

But the courts of three instances did not agree with this. They pointed out that the procedure for determining the date of receipt of income by individuals does not depend on the fact of state registration of the transfer of ownership of the property. The date of receipt of income in this case is the date of the deed of transfer (October 15, 2012). And since the deal was made in 2012, it tax consequences associated with this tax period. Therefore, the inspectorate did not have the right to charge personal income tax for 2013 on transactions made in 2012. Controllers went beyond the statutory period for conducting an on-site tax audit (no more than three calendar years preceding the year in which the decision to conduct an audit was made).

In practice, there are situations when tax authorities, based on the results of an audit, make additional charges, taking into account accounts payable formed outside the three-year period. The courts consider this to be beyond the scope of the verification (decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 29, 2012 No. 17259/11, the FAS of the Central District of November 21, 2012 in case No. A35-439 / 2012, the Ural District of October 12, 2012 in case No. A60-613 / 2012).

Thus, in the dispute considered in the decision of the Arbitration Court of the North Caucasus District dated August 22, 2018 in case No. А01-2762/2017, the company had tax payables as of January 1, 2014. During the on-site tax audit conducted in 2017, the tax authorities checked the period from January 1, 2014 to March 31, 2017. They assessed additional tax to the company, taking into account the company's accounts payable as of January 1, 2014.

The court of additional charges canceled. He pointed out that the tax inspectorate does not have the right to check the activities of the taxpayer ( tax agent) outside the three-year period established by paragraph 4 of Art. 89 of the Tax Code of the Russian Federation. The disputed debt was formed outside the audited period. The tax legislation does not provide for the inclusion in the results of field tax audits of all credit balances available under personal account taxpayer (tax agent) as of the date of the beginning of the audited period, as well as the inclusion of such balances in the results of audits.

Exit for the inspection period specified in the decision to conduct it

It happens that tax authorities check taxes within the three-year period established by law, but at the same time they go beyond the dates indicated in the decision to conduct an on-site audit. The courts consider this a violation and cancel additional charges.

In the decision of the Federal Antimonopoly Service of the Urals District dated September 15, 2009 in case No. A71-13315 / 2008A19, the situation was considered when the tax authorities, as part of an on-site audit, accrued penalties on the 2004 debt on income tax and VAT. The court recognized the accruals as unfounded, since, according to the decision to conduct an on-site tax audit, the period from January 1, 2005 to December 31, 2006 was subject to control.

And in the situation considered by the Nineteenth AAC in its Resolution No. 19AP-2131/09 of May 28, 2009, the controlled period in the decision to conduct an on-site tax audit was limited to 2006 and 2007. However, based on the results of the audit, the inspectors made additional accruals for 2005 as well. They explained this by the fact that a typo was made in the decision to conduct the audit and instead of "January 1, 2005" "January 1, 2006" was printed.

The court recognized the additional charges for 2005 as illegal. He pointed out that since at the time of the audit there was no application for clarification of the audited period, the tax authorities were obliged to conduct an audit for the period from January 1, 2006 to December 31, 2007. In this regard, the tax authority did not have the right to check the correctness and timeliness taxes for 2005

What period can be covered by a tax audit you need to understand the management of the audited company, individual entrepreneurs and individuals to determine what period of time may be of interest to officials of the Federal Tax Service when conducting verification activities.

General provisions on tax audits

By virtue of the requirements of Art. 31 of the Tax Code of the Russian Federation, verification activities are carried out tax inspectorates in order to verify compliance by the subjects of audits with the requirements of tax legislation in terms of the correctness of the calculation, timeliness and completeness of payment of tax payments.

Both indoor and outdoor events can be held. Their order is fundamentally different (as is the period being checked). The timing of the checks is also different. Cameral 3 months, and field - from 2 to 6 months (depending on whether the verification period was extended).

Based on the results of verification activities, it is almost always compiled. Its form is approved by the Order of the Federal Tax Service of Russia dated 08.05.2015 No. MMV-7-2 / [email protected](Appendix No. 23). An exception is the case when no violations were revealed during cameral verification actions.

If the taxpayer does not agree with the final act, or with any part of it, they can be filed against him.

Period of desk tax audit

In the course of verification activities, FTS employees analyze the declarations submitted by taxpayers. The reporting is compared with the data reflected in other documents that are already in the Federal Tax Service.

For what period can they check declarations during a tax audit? Only the period covered by the reporting provided by the taxpayer can be analyzed. For example, the income tax return for 2016 is filed. The tax authority can only check the tax period of 2016.

When checking a certain tax period, employees of the Federal Tax Service have the right to compare the submitted declaration with other documents that do not relate to the verification period.

If the taxpayer, following the results of the audit, is held liable for a different tax period, this is a violation of the law. It is possible to challenge the inspection act and the decision to hold liable by filing objections and complaints. Based on the results of the consideration of the complaint, the decision to hold liable should be canceled (in the part relating to the period not covered by the audit), and based on the results of the consideration of objections, judgments about the violations committed should be excluded from the act (also for the period that should not have been covered) .

For what period can employees of the Federal Tax Service check during an on-site inspection?

Field verification events are much more voluminous than cameral ones. The period of an on-site tax audit is also longer. By virtue of the requirements of paragraph 3 of Art. 89 of the Tax Code, the scope of the audit cannot exceed a three-year period until a decision is made to carry out verification activities. For example, a review decision was made on February 17, 2017. This means that the period from February 17, 2014 to February 17, 2017 should be checked.

By the same principle, verification periods are determined for:

carrying out repeated checks of the higher FTS by the lower one. Officials, conducting repeated verification measures in relation to the taxpayer, establish whether there were any violations during the earlier lower FTS audit, and if violations are found on the part of the taxpayer that were not identified earlier, they have the right to bring him to tax liability.
re-audit in case of reorganization or liquidation of the taxpayer. Such a check can be carried out regardless of when the previous one was made.

Are on-site inspections covering a period of more than three years possible?

The law provides for exceptions to the general rule regarding the audited period. In some cases, inspectors can go beyond the three-year period, which allows you to attract a taxpayer for old violations.

These exceptions include:

The case when a taxpayer sends an updated declaration to the Federal Tax Service during an on-site audit and this declaration covers a period that goes beyond a three-year framework. Under such circumstances, employees of the Federal Tax Service must verify the correctness of paying taxes for a period that is outside the scope of verification activities (clause 4, article 89 of the Tax Code of the Russian Federation).
The case when the audit has already been completed, but the taxpayer submits an amended declaration, which reflects a smaller amount of tax payable. In such a situation, a decision may be made to re-check the tax period specified in the revised declaration (clause 2, clause 10, article 89 of the Tax Code of the Russian Federation).
The case when the audit is carried out in accordance with the requirements of Chapter 26.4 of the Tax Code of the Russian Federation, when the taxpayer applies special mode taxation in the performance of production sharing agreements, which is provided for by Art. 346.2 of the Tax Code of the Russian Federation.

The three-year period of verification is calculated not until the date of delivery of the decision on verification measures to the taxpayer, but until the moment it is issued. For example, if the award was served in 2018 and delivered in 2017, the review cannot additionally cover the period from the moment the decision was made to the time it was served.

So, the publication provides an exhaustive answer to the question of the period for which an on-site tax audit (as well as a desk audit) is carried out. As a rule, the answer to this question is unequivocal, however, the law provides for some exceptions, as discussed above.