It is established that within the period of limitations for bringing to responsibil ity is to be suspended if the person being brought to responsibility for having com mitted a tax violation has been actively resisting the conduct of a tax audit. The vio lation of the procedure for registration of objects of gambling business is also placed within the category of tax violations.
Below we discuss in more detail some of the changes introduced in the Tax Code.
The procedure for recovery of taxes and fines In accordance with the new wording of the first paragraph of Item 1 of Article 104 of the RF TC, after the rendering of a decision concerning the bringing to re sponsibility for the commission of a tax violation and in those instances when no extrajudicial procedure for imposing tax sanctions is allowed, a tax agency should submit a petition to sue to a court of justice to the effect that tax sanctions should be imposed on the person being broght to responsibility. It is intended that a tax agency should appeal to a court of justice for the recovery of a fine when there ex ists a ban on the recovery of a fine in an extrajudicial procedure. Now, an extrajudi cial recovery of a fine is not allowed only in one instance – in accordance with Item 1 of Article 115 of the RF TC, tax agencies may file a petition with a court of justice to sue for the recovery of fines from an organization or an individual entrepreneur in the procedure and within the periods envisaged in Articles 46 and 47 of the RF TC.
In accordance with Article 46 of the RF TC, the decision concerning the recov ery of a tax from an organization (or an individual entrepreneur) must be made by a tax agency within 60 days from the date of the expiry of the period of compliance with the demand that a tax should be paid. In an event of a lapse of this period, a tax RUSSIAN ECONOMY IN trends and outlooks may be recovered only in a judicial proceeding. For an appeal to a court of justice, in accordance with the explanations issued by a Plenum of the RF Supreme Arbi trage Court, the maximum period of six months is established2. If a tax agency peti tions to a court of justice after a lapse of this period, this entails a refusal by the court to satisfy the petition. The new wording of Article 46 of the RF TC grants to courts of justice an opportunity, on a request of a tax agency, to reinstate the pe riod for petitioning for an enforced recovery of a tax in an event when this period has lapsed for a justifiable reason. It should be noted that no criteria for determin ing the justifiability of such reasons are offered. We believe that such amendments result in a worsened position of taxpayers.
It is also noteworthy that if a taxpayer has not voluntarily paid a tax, a tax agency within two months after the expiry of the period specified in a demand for payment should make the decision that the tax be recovered from the monies kept at bank accounts. After the rendering of such a decision, the tax agency has the right to make a decision that the taxpayer’s account operations should be sus pended. Thus, an organization may lose the capacity to dispose of its money until it settles its debt. Some important changes concerning such a suspension of opera tions have been introduced into Article 76 of the RF TC. The article’s new wording envisages that operations should be suspended not in respect of all the monies kept at a bank account, as it was established previously, but only within the limits of the sum specified in the tax agency’s decision. That is, from the year 2007 onward a tax agency may suspend operations only within the limits of a sum needed for the redemption of the debt, which can be recognized as a positive factor.
Set off and refund of excess paid (or recovered) amounts of tax The most significant changes appear to be those concerning the broadening of the sphere for applying the rules established by Articles 78 and 79 of the RF TC.
Thus, the procedure for setting off (or refunding) from 2007 onward will be ex tended to advance payments and fines. And from 2008 it will be possible to carry forward the amounts paid not by budgets, but by the types of taxes: federal taxes will be set off against federal taxes, regional – against regional taxes, and local – against local taxes, respectively. Thus, for example, the excess of the profits tax can be carried forward as the payment of VAT.
The timelines for setting off the taxes paid have also been changed. A tax agency now has the right to make the decision concerning the carry forward of a tax within 10 working days instead of 5 calendar days from the day of receiving the application of a taxpayer, or from the day of signing an act of reconciliation (if it has actually taken place), which means that the period has actually been made three times as long by the lawmakers. The same 10 day period has been established for making the decision concerning a refund or the sending of an order for a tax refund to a territorial agency of the Federal Treasury (no such period was established pre viously).
Decree of the RF Supreme Arbitrage Court’s Plenum as of 28 February 2001, No 5, “On some is sues concerning the application of Part I of the Tax Code of the Russian Federation”.
Annexs The period for the notification, by a taxes agency, about its decision concern ing setting off (or refunding) of excess tax paid, or about its refusal to carry forward (or refund) the excess has, on the contrary, been made shorter. Instead of weeks, this period is now 5 working days from the day of the corresponding deci sion being made by a tax agency.
Besides, the period during which a tax agency is obliged to inform the tax payer concerning any fact of an excess payment of tax that has become known to it and of the amount thus paid in excess has been shortened from 1 month to days. An important detail is the precise definition of the procedure for calculating the interest charged on the delay in refunding the excess amounts of taxes. From the year 2007 onward a territorial agency of the Federal Treasury will have to notify a tax agency as to the exact date of refund and the amount refunded, with the in terest charged. If the interest has not been paid to a taxpayer in full, then, after re ceiving such a notification, the tax agency will be obliged within 3 days to make a decision concerning the refund of the remaining amount of interest, depending on the actual date on which the excess amount of tax was refunded.
The same is true for setting off and refunding the amounts of excess tax re covered: the procedure for refunding the amounts of excess tax is extended to ad vance payments and fines; the period for a tax agency to make the decision con cerning the refund of the amounts of excess tax recovered; and the period for a tax agency to issue a notification of the established fact of an excess amount of tax having been recovered will now be 10 days instead of 1 month; and the amount re covered in excess, with the interest charged to it, will have to be refunded to a tax payer within one month from the day of receiving a written application (no such pe riod for refund was established before the introduction of this amendment).
The procedure for conducting on site tax audits In accordance with Article 88 of the RF TC, in house tax audits are to be con ducted within three months from the day of the submission, by a taxpayer, of a tax declaration and the documents serving as a basis for calculating and paying a tax, as well as of other documents concerning the activity of the taxpayer available to the tax agency. In accordance with the new wording of this article, an in house tax auditа can be conducted within three months from the day of the submission by the taxpayer of a tax declaration and the documents which, according to the Tax Code, must be attached to a tax declaration. Thus, the timelines established for submit ting any additional documents should not influence the length of in house tax au dits.
Article 89 establishes that in an event of the reorganization or liquidation of an organization (or in the procedure of a superior agency controlling a subordinate one) a tax agency may conduct a second audit of a taxpayer. This innovation is as sociated with the establishment of the only justification for the conduct of a second on site tax audit: if an organization submits an adjusted declaration with an amount of tax lower than that declared earlier, the tax agency has the right to conduct a RUSSIAN ECONOMY IN trends and outlooks second audit of the documentation relating to the period in respect of which the taxpayer has made adjustments.
Other amendments establish that tax agencies have no right to conduct more than two on site tax audits of one and the same taxpayer during one calendar year, except in extraordinary cases by decision of the head of a federal body of execu tive authority. Tax agencies may not conduct two or more on site tax audits of the same taxes during one and the same period. The duration of an on site tax audit has also been changed – now it may not continue for more than two months. Its du ration may be extended to four months, and in exceptional cases – for up to six months. Presently it is possible to extend the duration of an on site tax audit to three months. It should also be noted that the recent changes have introduced a rule whereby within the framework of an on site tax audit a period can be checked which is no longer than three calendar years preceding the year during which the decision concerning the conduct of a tax audit is made. This direct stipulation makes it possible for a tax agency to interpret the date of the beginning of a tax au dit at its own convenience (either the date of making the decision or the data of the actual onset of a audit).
By the changes introduced in Article 93 of Part I of the RF TC “The demanding and obtaining of documents during a tax audit” it is forbidden to demand a notary’s certification of the copies of documents submitted to a tax agency (or to an offi cial), if not envisaged otherwise by legislation of the Russian Federation. Besides, the RF TC was augmented by Article 93.1 “The demanding and obtaining of docu ments (or information) concerning a taxpayer, a payer of levies and a tax agent, or information on specific transactions”. The norm determining the procedure for formalizing the results of a tax audit has been made more precise (Articles 100 and 101). In particular, it is established that on the basis of the results of an in house tax audit a reference concerning the tax audit should be drawn up within 10 working days after its completion. Prior to the introduction of these changes the RF TC con tained no stipulations concerning the mandatory nature of drawing up such an act.
An organization will have the right to present motivated objections to an act of tax audit, for which a period of 15 working days from the moment of the receipt of such an act is granted.
Bringing to responsibility for the commission of a tax violation By Article 113 of the RF Tax Code in the wording as of the end of the year 2006 it is established that a person may not be brought to responsibility for having committed a tax violation, if three years have expired since the day of the commis sion thereof or since the next day after the end of the tax period during which this violation was committed.
From January 2007 onward it is established that the three year period of limi tations for tax violations must be calculated from the moment of a tax violation be ing committed (from the next day after the end of the tax period during which this violation was committed) and until the moment of rendering the decision concern ing the bringing to responsibility for the commission thereof.
Annexs At the same time, the RF TC is now amended so as to include the stipulation as to the possibility for suspending the period of limitations for tax violations. The suspension of the period of limitations will become possible if the person being brought to responsibility for having committed a tax violation has actively resisted the conduct of an on site tax audit, thus creating an insurmountable impediment to its conduct and the determination, by tax agencies, of the amounts of taxes due to be transferred to the budgetary system of the Russian Federation. The period of limitations is suspended if the head of an audit group draws up a special act, which is envisaged in Item 3 of Article 91 of the RF TC for instances when the access by the officials of tax agencies conducting a tax audit to the territory or premises of a taxpayer is obstructed. The period of limitations is reinstated after the decision is made that the on site tax audit should be continued. Tax agencies will be obliged to prove, in a judicial procedure, that a certain taxpayer has created obstructions to them. However, it is not explained how exactly the currently existing notion of “ac tive resistance” should be understood.
The punishment for operating without having registered at a tax agency has been made more severe. The lower threshold for a fine for an organization’s or an individual entrepreneur’s operation without having registered at a tax agency within a period of more than 90 days has been established (Item 2 of Article 117 of the RF TC): from 1 January 2007 the amount of fine is to be no less than 40 thousand rou bles. This is one of the highest fixed fines envisaged by Russian legislation.
A positive development is represented by the expansion of the list of circum stances excluding the guilt of a person in committing a tax violation: instead of a closed list the lawmakers have approved an open one. Item 1 of Article 111 of the RF TC is augmented by an additional subitem which adds to the circumstances ex cluding the guilt of a person in committing a tax violation some other circum stances, which may be recognized by a court of justice or the tax agency consider ing a case as excluding the guilt of a person in committing a tax violation.
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