Taxes from related parties. “Bound by taxes”: how to avoid charges under Clause 2, Clause 2, Article 45 of the Tax Code of the Russian Federation? Article 45 of the Tax Code of the Russian Federation

1. The taxpayer is obliged to independently fulfill the obligation to pay the tax, unless otherwise provided by the legislation on taxes and fees. The obligation to pay corporate income tax for a consolidated group of taxpayers is fulfilled by the responsible participant of this group, unless otherwise provided by this Code.

The obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees. A taxpayer or, in cases established by this Code, a participant in a consolidated group of taxpayers, has the right to fulfill the obligation to pay tax ahead of schedule.

Failure to fulfill or improper fulfillment of the obligation to pay tax is the basis for the tax authority or customs authority to send a tax payment request to the taxpayer (responsible participant in the consolidated group of taxpayers).

2. Unless otherwise provided by paragraph 2.1 of this article, in case of non-payment or incomplete payment of the tax within the established period, the tax is collected in the manner prescribed by this Code.

Collection of tax from an organization or individual entrepreneur is carried out in the manner prescribed by Articles 46 and 47 of this Code. Tax collection from an individual who is not an individual entrepreneur is carried out in the manner prescribed by this Code.

Tax collection in court is carried out:

1) from personal accounts of organizations, if the amount collected exceeds five million rubles;

2) in order to collect arrears that arose as a result of a tax audit and have been recorded for more than three months:

for organizations that, in accordance with the civil legislation of the Russian Federation, are dependent (subsidiary) companies (enterprises), - from the corresponding main (prevailing, participating) companies (enterprises), when their bank accounts receive revenue for the goods (work, services) sold dependent (subsidiary) companies (enterprises);

for organizations that, in accordance with the civil legislation of the Russian Federation, are the main (predominant, participating) companies (enterprises), - from dependent (subsidiary) companies (enterprises), when their bank accounts receive revenue for the goods (work, services) sold by the main (predominant, participating) societies (enterprises);

for organizations that, in accordance with the civil legislation of the Russian Federation, are dependent (subsidiary) companies (enterprises), - from the corresponding main (prevailing, participating) companies (enterprises), if from the moment when the organization for which the arrears are registered, learned or should have find out about the appointment of an on-site tax audit or the start of a desk tax audit, whether funds or other property have been transferred to the main (dominant, participating) company (enterprise) and if such transfer has led to the impossibility of collecting the specified arrears;

for organizations that, in accordance with the civil legislation of the Russian Federation, are the main (prevailing, participating) companies (enterprises), - from dependent (subsidiary) companies (enterprises), if from the moment when the organization for which the arrears are registered, learned or should have known on the appointment of an on-site tax audit or on the start of a desk tax audit, there was a transfer of funds or other property to a dependent (subsidiary) company (enterprise) and if such transfer led to the impossibility of collecting the specified arrears.

If the tax authority in the specified cases establishes that the proceeds for the goods (work, services) sold are transferred to the accounts of several organizations or if from the moment when the organization that is responsible for the arrears learned or should have learned about the appointment of an on-site tax audit or the start carrying out a desk tax audit, there was a transfer of funds and other property to several main (predominant, participating) companies (enterprises), dependent (subsidiary) companies (enterprises), collection of arrears is carried out from the relevant organizations in proportion to the share of revenue received by them for the goods sold (work, services), the share of transferred funds, the value of other property.

The provisions of this subclause also apply if the tax authority in these cases establishes that the transfer of proceeds for goods (work, services) sold, the transfer of funds, other property to the main (predominant, participating) companies (enterprises), dependent (subsidiaries) companies ( enterprises) were carried out through a set of interrelated transactions, including if the participants in these transactions are not the main (prevailing, participating) companies (enterprises), dependent (subsidiaries) companies (enterprises).

The provisions of this subparagraph also apply if the tax authority in these cases establishes that the transfer of proceeds for goods (work, services) sold, the transfer of funds and other property are made to organizations recognized by the court as otherwise dependent on the taxpayer for whom the arrears are registered.

When applying the provisions of this subclause, recovery may be made within the limits received by the main (predominant, participating) companies (enterprises), dependent (subsidiary) companies (enterprises), organizations recognized by the court as otherwise dependent on the taxpayer for whom the arrears are registered, proceeds for goods sold (work, services), transferred funds, other property.

The value of property in the cases specified in this subparagraph is determined as the residual value of the property reflected in the accounting records of the organization at the time when the organization that is responsible for the arrears learned or should have learned about the appointment of an on-site tax audit or the start of a desk tax audit;

3) from an organization or individual entrepreneur, if their obligation to pay tax is based on a change by the tax authority in the legal qualification of a transaction made by such a taxpayer, or the status and nature of the activity of this taxpayer;

4) from an organization or individual entrepreneur, if their obligation to pay tax arose as a result of an inspection by the federal executive body authorized to control and supervise in the field of taxes and fees, the completeness of calculation and payment of taxes in connection with transactions between related parties.

2.1. Tax collection is not carried out in the event of non-payment or incomplete payment of tax by the declarant, recognized as such in accordance with the Federal Law "On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation", and (or) another person, information about whom is contained in a special declaration submitted in accordance with the specified Federal Law.

Tax collection on the basis of this paragraph is not carried out provided that the obligation to pay such tax arose with the declarant and (or) another person as a result of transactions related to the acquisition (formation of sources of acquisition), use or disposal of property and property before January 1, 2015. (or) controlled foreign companies, information about which is contained in a special declaration, or with the opening and (or) crediting of funds to accounts (deposits), information about which is contained in a special declaration.

3. The obligation to pay tax is considered fulfilled by the taxpayer or, in cases established by this Code, by a participant in a consolidated group of taxpayers, unless otherwise provided by paragraph 4 of this article:

1) from the moment of presentation to the bank of an order to transfer funds from the taxpayer’s bank account to the budget system of the Russian Federation to the appropriate account of the Federal Treasury if there is a sufficient cash balance on it on the day of payment;

1.1) from the moment an individual submits to the bank an order to transfer to the budget system of the Russian Federation to the appropriate account of the Federal Treasury without opening a bank account of funds provided to the bank by an individual, provided that they are sufficient for the transfer;

2) from the moment the transaction for transferring the relevant funds to the budget system of the Russian Federation is reflected on the personal account of the organization for which the personal account is opened;

3) from the day an individual deposits cash into a bank, local administration cash office or federal postal service organization for transferring it to the budget system of the Russian Federation to the appropriate account of the Federal Treasury;

4) from the date the tax authority, in accordance with this Code, makes a decision to offset the amounts of overpaid or overcharged taxes, penalties, fines towards the fulfillment of the obligation to pay the relevant tax;

5) from the date of withholding tax amounts by the tax agent, if the obligation to calculate and withhold tax from the taxpayer’s funds is assigned in accordance with this Code to the tax agent;

6) from the date of payment of the declaration payment in accordance with the federal law on the simplified procedure for declaring income by individuals.

4. The obligation to pay tax is not considered fulfilled in the following cases:

1) withdrawal by the taxpayer or return by the bank to the taxpayer of an unexecuted order to transfer the relevant funds to the budget system of the Russian Federation;

2) the withdrawal by the taxpayer-organization that opened the personal account, or the return by the Federal Treasury body (another authorized body that opens and maintains personal accounts) to the taxpayer of an unexecuted order to transfer the corresponding funds to the budget system of the Russian Federation;

3) return by the local administration or federal postal organization to the taxpayer - an individual of cash accepted for transfer to the budget system of the Russian Federation;

4) the taxpayer incorrectly indicated in the order to transfer the tax amount the account number of the Federal Treasury and the name of the recipient's bank, which resulted in the non-transfer of this amount to the budget system of the Russian Federation to the corresponding account of the Federal Treasury;

5) if on the day the taxpayer submits to the bank (Federal Treasury body, other authorized body that opens and maintains personal accounts) an order to transfer funds to pay tax, this taxpayer has other unfulfilled requirements that are presented to his account (personal account) and in accordance with the civil legislation of the Russian Federation are executed as a matter of priority, and if there is not a sufficient balance on this account (personal account) to satisfy all requirements.

5. The obligation to pay tax is fulfilled in the currency of the Russian Federation, unless otherwise provided by this Code. Conversion of the amount of tax calculated in cases provided for by this Code in foreign currency into the currency of the Russian Federation is carried out at the official exchange rate of the Central Bank of the Russian Federation on the date of payment of the tax.

6. Failure to fulfill the obligation to pay tax is the basis for the application of measures for compulsory execution of the obligation to pay tax provided for by this Code.

7. An order to transfer tax to the budget system of the Russian Federation to the appropriate account of the Federal Treasury is filled out by the taxpayer in accordance with the rules for filling out orders. These rules are established by the Ministry of Finance of the Russian Federation in agreement with the Central Bank of the Russian Federation.

If the taxpayer discovers an error in the execution of an order for the transfer of tax, which did not entail the non-transfer of this tax to the budget system of the Russian Federation to the appropriate account of the Federal Treasury, the taxpayer has the right to submit to the tax authority at the place of his registration a statement of the error with the attachment of documents confirming his payment of the specified tax and its transfer to the budget system of the Russian Federation to the appropriate account of the Federal Treasury, with a request to clarify the basis, type and affiliation of the payment, tax period or payer status.

At the proposal of the tax authority or taxpayer, a joint reconciliation of taxes paid by the taxpayer may be carried out. The results of the reconciliation are documented in an act signed by the taxpayer and an authorized official of the tax authority.

The tax authority has the right to demand from the bank a copy of the taxpayer’s order to transfer tax to the budget system of the Russian Federation to the appropriate account of the Federal Treasury, executed by the taxpayer on paper. The bank is obliged to submit a copy of this order to the tax authority within five days from the date of receipt of the tax authority's request.

In the case provided for by this paragraph, on the basis of the taxpayer’s application and the act of joint reconciliation of calculations for taxes, fees, penalties and fines, if such a joint reconciliation was carried out, the tax authority makes a decision to clarify the payment on the day the taxpayer actually paid the tax to the budget system of the Russian Federation for the corresponding account of the Federal Treasury. In this case, the tax authority recalculates the penalties accrued on the amount of tax for the period from the date of its actual payment to the budget system of the Russian Federation to the appropriate account of the Federal Treasury until the day the tax authority makes a decision to clarify the payment.

The tax authority notifies the taxpayer of the decision to clarify the payment within five days after the decision is made.

8. The rules provided for by this article also apply to fees, penalties, fines and apply to fee payers, tax agents and the responsible participant in a consolidated group of taxpayers.

Tax Code of the Russian Federation Article 45 Fulfillment of the obligation to pay a tax or fee

(as amended March 30, July 9, 1999, January 2, August 5, 2000, March 24, 2001)

and part two of August 5, 2000 N 117-FZ

(as amended on December 29, 2000, May 30, August 6, 7, 8, 2001)

Article 45. Fulfillment of the obligation to pay a tax or fee

1. The taxpayer is obliged to independently fulfill the obligation to pay the tax, unless otherwise provided by the legislation on taxes and fees.
The obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees. The taxpayer has the right to fulfill the obligation to pay taxes ahead of schedule.
Failure to fulfill or improper fulfillment of the obligation to pay tax is the basis for the tax authority, the body of the state extra-budgetary fund or the customs authority to send a demand to the taxpayer to pay the tax.
In case of non-payment or incomplete payment of the tax within the established period, the tax is collected from the funds in the taxpayer’s bank accounts in the manner prescribed by Articles 46 and 48 of this Code, as well as by collecting the tax from other property of the taxpayer in the manner prescribed Articles 47 and 48 of this Code.
Tax collection from organizations is carried out in an indisputable manner, unless otherwise provided by this Code. Tax collection from an individual is carried out in court.
Tax collection from an organization cannot be carried out in an indisputable manner if the obligation to pay tax is based on a change by the tax authority:
1) legal qualification of transactions concluded by the taxpayer with third parties;
2) legal qualification of the status and nature of the taxpayer’s activities.
2. The obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to pay the corresponding tax if there is a sufficient cash balance in the taxpayer’s account, and when paying taxes in cash - from the moment the amount of money is deposited to pay the tax into the bank or cash desk of the authority local government or the communications organization of the State Committee of the Russian Federation for Communications and Informatization. The tax is not recognized as paid if the taxpayer revokes or the bank returns to the taxpayer a payment order to transfer the amount of tax to the budget (extra-budgetary fund), and also if at the time the taxpayer presents the order to pay the tax to the bank, this taxpayer has other unfulfilled claims made against the account, which in accordance with the civil legislation of the Russian Federation are executed as a matter of priority, and the taxpayer does not have sufficient funds in the account to satisfy all requirements.

Order of the Ministry of Taxes of the Russian Federation dated August 18, 2000 N BG-3-18/297 defines measures to ensure the adoption and implementation of decisions of the Commission of the Ministry of Taxes of the Russian Federation to consider issues of reflecting in the personal accounts of taxpayers funds written off from the current accounts of taxpayers, but not credited to the accounts on accounting of budget revenues

On the execution of payment orders for the transfer of tax payments, see the order of the Ministry of Finance of the Russian Federation and the Ministry of Taxes of the Russian Federation dated February 29, 2000 NN 21n, AP-3-25/82

The obligation to pay tax is also considered fulfilled after the tax authority or the court, in the manner established by Article 78 of this Code, makes a decision on the offset of overpaid or overcharged amounts of taxes.
If the obligation to calculate and withhold tax is assigned in accordance with this Code to a tax agent, then the taxpayer’s obligation to pay the tax is considered fulfilled from the moment the tax is withheld by the tax agent.
3. The obligation to pay tax is fulfilled in the currency of the Russian Federation. Foreign organizations, as well as individuals who are not tax residents of the Russian Federation, as well as in other cases provided for by federal laws, the obligation to pay tax may be fulfilled in foreign currency.

See the Procedure for crediting taxes and fees in foreign currency to the accounts for accounting for federal budget revenues and transferring by the federal treasury bodies of the Ministry of Finance of the Russian Federation to tax authorities information on credited amounts of taxes and fees in foreign currency, approved by order of the Ministry of Finance of the Russian Federation and the Ministry of Taxes of the Russian Federation dated May 19, 2000. NN 52n, BG-3-09/211

The letter of the Ministry of Finance of the Russian Federation and the Ministry of Taxes of the Russian Federation dated August 25, September 8, 2000 NN 83n, BG-6-09/723 clarified that the fulfillment of the obligation to pay taxes and fees in non-monetary form is not allowed

4. Failure to fulfill the obligation to pay tax is the basis for the application of measures for compulsory execution of the obligation to pay tax provided for by this Code.
5. The rules of this article also apply to fees.

See Letter of the Ministry of Taxes and Taxes of the Russian Federation dated March 20, 2000 N AS-6-09/203 “On making settlements for the repayment of debts for past periods on taxes and fees”

Article 46. Collection of taxes, fees, as well as penalties from funds held in the accounts of the taxpayer (payer of fees) - organization or tax agent - organization in banks

1. In case of non-payment or incomplete payment of the tax within the established period, the obligation to pay the tax is compulsorily fulfilled by foreclosure on the funds of the taxpayer or tax agent in bank accounts.
2. Collection of tax is carried out by decision of the tax authority (hereinafter - the decision on collection) by sending to the bank in which the accounts of the taxpayer or tax agent are opened, a collection order (instruction) to write off and transfer to the relevant budgets (extra-budgetary funds) the necessary funds from taxpayer or tax agent accounts.

According to the Federal Law of July 9, 1999 N 154-FZ, if at the time of entry into force of the specified Federal Law there is a ten-day period for making a decision on the collection of a tax (fee, penalty) at the expense of the taxpayer’s or tax agent’s funds, provided for in paragraph 3 of Article 46 of this Code has not expired, then the specified period is increased to 60 days

3. The decision on collection is made after the expiration of the period established for the fulfillment of the obligation to pay the tax, but no later than 60 days after the expiration of the deadline for fulfilling the requirement to pay the tax. A decision on collection made after the expiration of the specified period is considered invalid and cannot be executed. In this case, the tax authority may apply to the court with a claim to recover from the taxpayer or tax agent the amount of tax due for payment.
The decision on collection is brought to the attention of the taxpayer (tax agent) no later than 5 days after the decision on collection of the necessary funds is made.
4. A collection order (order) for the transfer of tax to the appropriate budget and (or) extra-budgetary fund is sent to the bank where the accounts of the taxpayer, fee payer or tax agent are opened, and is subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.
5. The collection order (instruction) of the tax authority for the transfer of tax must contain an indication of those accounts of the taxpayer or tax agent from which the tax should be transferred, and the amount to be transferred.
Tax collection can be made from ruble settlement (current) and (or) foreign currency accounts of the taxpayer or tax agent, with the exception of loan and budget accounts.
Collection of tax from foreign currency accounts of a taxpayer or tax agent is made in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation on the date of sale of the currency. When collecting funds held in foreign currency accounts, the head (his deputy) of the tax authority, simultaneously with the collection order, sends an order to the bank to sell, no later than the next day, the currency of the taxpayer or tax agent.
Tax is not collected from the deposit account of the taxpayer or tax agent if the deposit agreement has not expired. If the specified agreement exists, the tax authority has the right to give the bank an instruction (instruction) to transfer, after the expiration of the deposit agreement, funds from the deposit account to the settlement (current) account of the taxpayer or tax agent, if by this time the order sent to this bank has not been executed ( order) of the tax authority to transfer tax.
6. The collection order (instruction) of the tax authority for the transfer of tax is executed by the bank no later than one business day following the day it receives the specified order (order), if the tax is collected from ruble accounts, and no later than two business days, if the tax is collected from foreign currency accounts, since this does not violate the order of priority of payments established by the civil legislation of the Russian Federation.
If there is insufficient or absence of funds in the accounts of the taxpayer or tax agent on the day the bank receives an order (instruction) from the tax authority to transfer the tax, the order is executed as funds are received in these accounts no later than one business day from the day following the day of each such receipt on ruble accounts, and no later than two business days from the day following the day of each such receipt to foreign currency accounts, since this does not violate the order of priority of payments established by the civil legislation of the Russian Federation.

On the order of debiting funds from a bank account in 1999, see Federal Law of February 22, 1999 N 36-FZ “On the Federal Budget for 1999”

7. If there are insufficient or absent funds in the accounts of the taxpayer or tax agent or there is no information about the accounts of the taxpayer and tax agent, the tax authority has the right to collect tax from other property of the taxpayer or tax agent in accordance with Article 47 of this Code.
8. When collecting tax, the tax authority may, in the manner and under the conditions established by Article 76 of this Code, suspend transactions on the accounts of the taxpayer or tax agent in banks.
9. The provisions of this article also apply when collecting penalties for late payment of taxes and fees.
10. The provisions of this article also apply when collecting fees.
11. The provisions provided for in this article also apply when collecting taxes and fees by customs authorities.

Article 47. Collection of a tax or fee at the expense of other property of a taxpayer-organization or tax agent-organization

1. In the case provided for in paragraph 7 of Article 46 of this Code, the tax authority has the right to recover the tax at the expense of the property, including at the expense of the cash funds of the taxpayer-organization, tax agent-organization within the amounts specified in the request for tax payment, and taking into account the amounts in respect of which the collection was made in accordance with Article 46 of this Code.

See the Procedure for interaction between the tax authorities of the Russian Federation and the bailiff services of the justice authorities of the constituent entities of the Russian Federation on the enforcement of decisions of tax authorities and other executive documents, approved by order of the Ministry of Taxes and Justice of the Russian Federation and the Ministry of Justice of the Russian Federation dated July 25, 2000 No. VG-3-10/265/ 215

Collection of tax at the expense of the property of a taxpayer-organization or a tax agent-organization is carried out by decision of the head (his deputy) of the tax authority by sending, within three days from the date of such decision, the corresponding resolution to the bailiff for execution in the manner prescribed by the Federal Law "On enforcement proceedings" taking into account the features provided for in this article.
2. A resolution on the collection of tax at the expense of the property of a taxpayer-organization or a tax agent-organization must contain:
surname, name, patronymic of the official and the name of the tax authority that issued the specified resolution;
date of adoption and number of the decision of the head (his deputy) of the tax authority on the collection of tax at the expense of the property of the taxpayer or tax agent;
name and address of the taxpayer-organization or tax agent-organization whose property is being seized;
the operative part of the decision of the head (his deputy) of the tax authority on the collection of tax at the expense of the property of the taxpayer-organization or tax agent-organization;
the date of entry into force of the decision of the head (his deputy) of the tax authority to collect tax at the expense of the property of the taxpayer - organization or tax agent - organization;
the date of issue of the said resolution.
The resolution on tax collection is signed by the head of the tax authority (his deputy) and certified by the official seal of the tax authority.
3. Enforcement actions must be carried out, and the requirements contained in the resolution must be fulfilled by the bailiff within two months from the date of receipt of the said resolution.
4. Collection of tax at the expense of the property of a taxpayer-organization or a tax agent-organization is carried out sequentially in relation to:
cash;
property not directly involved in the production of products (goods), in particular securities, currency values, non-production premises, passenger vehicles, office premises design items;
finished products (goods), as well as other material assets that are not involved and (or) not intended for direct participation in production;
raw materials and materials intended for direct participation in production, as well as machines, equipment, buildings, structures and other fixed assets;
property transferred under an agreement for the possession, use or disposal of other persons without the transfer of ownership of this property to them, if in order to ensure the fulfillment of the obligation to pay tax, such agreements are terminated or declared invalid in the prescribed manner;
other property.
5. If a tax is collected at the expense of the property of a taxpayer-organization or a tax agent-organization, the obligation to pay the tax is considered fulfilled from the moment the property of the taxpayer-organization or tax agent-organization is sold and the debt of the taxpayer-organization or tax agent-organization is repaid from the proceeds. .
6. Officials of tax authorities do not have the right to acquire property of a taxpayer-organization or a tax agent-organization, which is sold in order to execute a decision to collect a tax at the expense of the property of the taxpayer-organization or tax agent-organization.
7. The provisions provided for in this article also apply when collecting penalties for late payment of taxes and fees.
8. The provisions of this article also apply when collecting a fee at the expense of the property of the payer of the fee - an organization.
9. The provisions provided for in this article also apply when collecting taxes and fees by customs authorities.

Comment

Federal Law No. 401-FZ of November 30, 2016 (hereinafter referred to as Law No. 401-FZ) introduced significant changes to parts one and two of the Tax Code of the Russian Federation and other legislative acts. Some of them came into force on November 30, 2016 (the day the law was officially published). Let's take a closer look at the most important changes to part one of the Tax Code of the Russian Federation, affecting the majority of taxpayers.

Any person will be able to pay tax instead of the taxpayer

Corresponding changes to Art. 44, 45 of the Tax Code of the Russian Federation have been in force since November 30, 2016 (clauses 5, 6, article 1, article 13 of Law No. 401-FZ). Prior to this, taxpayers, as well as tax agents, had to personally fulfill the obligation to pay taxes (fees, fines, penalties).

Thus, if an organization does not have working capital, then, for example, its manager (participant) or debtor can make tax payments. Also, individuals have the right to fulfill tax obligations for each other.

Since the taxpayer has the right to fulfill the obligation to pay the tax ahead of schedule (paragraph 2, paragraph 1, article 45 of the Tax Code of the Russian Federation), we believe that another person can also pay the tax for it ahead of schedule.

However, the specified person has no right:

• demand a refund of the tax paid for the taxpayer from the budget system of the Russian Federation;
• clarify the basis, type and identity of the payment, tax period or payer status - if an error is detected in the payment order, which did not lead to the non-receipt of this tax into the budget system of the Russian Federation.

This right is granted only to the taxpayer (paragraph 5, paragraph 1, paragraph 2, paragraph 7, article 45 of the Tax Code of the Russian Federation).

The tax debt of the organization will be collected from the individual affiliated with it

This opportunity was provided by the new edition of clause 2 of Art. 45 of the Tax Code of the Russian Federation, in force since November 30, 2016 (clause “b”, clause 6, article 1, article 13 of Law No. 401-FZ).

Previously, inspectors could collect arrears (fines, penalties) that are attributed to a taxpayer-organization only from its subsidiaries, main or otherwise dependent (affiliated) companies (Articles 53.2, 67.3 of the Civil Code of the Russian Federation), if:

• the taxpayer's proceeds were transferred to the accounts of these companies;
• the taxpayer transferred funds or other property to these companies from the moment he learned (should have known) about the appointment of an on-site audit or the start of a desk audit. As a result, the transfer resulted in the impossibility of collecting tax debts from him.

Now the tax debt of an organization can be recovered in the specified cases from an individual affiliated with it (for example, its participant).

Penalties from organizations will be charged double if the period of arrears exceeds 30 calendar days

At the moment, the interest rate of the penalty for all taxpayers is the same and for each day of delay is one three-hundredth of the refinancing rate of the Central Bank of the Russian Federation in force on that day (clause 4 of Article 75 of the Tax Code of the Russian Federation).

For individuals, including individual entrepreneurs, this rate will remain the same in the future.

At the same time, from October 1, 2017, organizations will be accrued penalties at different rates depending on the period of arrears. If this period does not exceed 30 calendar days (inclusive), the penalty rate for each day of delay will be one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force on that day. From the 31st calendar day of delay, the penalty rate will increase to one hundred and fiftieth of the refinancing rate of the Central Bank of the Russian Federation (clause “b”, clause 13, article 1, clause 7, article 13 of Law No. 401-FZ).

Interest paid in connection with the cancellation of VAT refund in the application form can be returned or offset

Based on the results of checking the VAT return, the inspectorate can cancel the decision on tax refund in an expedited manner. In this case, the taxpayer is obliged to return the previously reimbursed amount with interest (Clause 17, Article 176.1 of the Tax Code of the Russian Federation). However, if the taxpayer then proved the right to a VAT refund (in whole or in part), the tax office, as a rule, refused to refund the interest paid. This was justified by the fact that the interest provided for in paragraph 17 of Art. 176.1 of the Tax Code of the Russian Federation are a sanction for the unlawful use of budget funds. Their return is possible only if the court or a higher tax authority recognizes the decision on the initial declaration as invalid (see paragraph 6 of the Review of legal positions reflected in the judicial acts of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, adopted in the first half of 2016 on taxation issues, sent by letter Federal Tax Service of Russia dated 07/07/2016 No. SA-4-7/12211@).

However, from November 30, 2016, the rules for offset (refund) of amounts of overpaid (collected) taxes established by Art. 78, 79 of the Tax Code of the Russian Federation, also apply to the offset (return) of interest paid in accordance with clause 17 of Art. 176.1 Tax Code of the Russian Federation. Such changes have been made to paragraph 14 of Art. 78, paragraph 9 of Art. 79 of the Tax Code of the Russian Federation (clause “c”, clause 14, clause “b”, clause 15, article 1, article 13 of Law No. 401-FZ).

During a desk audit of the calculation of insurance premiums, you can request additional information and documents

However, this applies only to information and documents that confirm the validity of:

• reflection of amounts not subject to insurance premiums;
• application of reduced insurance premium rates.

This follows from clause 8.6 of Art. 88 of the Tax Code of the Russian Federation, which will come into force on January 1, 2017 (clause 20 of article 1, clause 3 of article 13 of Law No. 401-FZ).

Let us remind you that from 2017 the tax authorities will once again control the payment of insurance premiums.

The Federal Tax Service must be notified about granting a separate division the authority to make payments to employees.

From 01/01/2017, organizations that pay insurance premiums are required to report to the tax office about the vesting of their Russian separate division (including a branch, representative office) with the authority (as well as the deprivation of authority) to accrue payments and remunerations in favor of individuals. This must be done within one month from the date of vesting him with the relevant powers (deprivation of powers). This follows from paragraphs. 7 clause 3.4 art. 23 of the Tax Code of the Russian Federation (clause “a”, clause 1, article 1, clause 3, article 13 of Law No. 401-FZ).

Federal Law No. 212-FZ of July 24, 2009 did not provide for such an obligation.

The list of transactions that are not recognized as controlled has been expanded

The list of transactions that in any case are not considered controlled is contained in clause 4 of Art. 105.14 Tax Code of the Russian Federation. Since 01/01/2017, it has been supplemented with the following transactions (clause 22 of article 1, clause 3 of article 13 of Law No. 401-FZ):

• provision of sureties (guarantees) if all parties to such a transaction are Russian organizations that are not banks;
• provision of interest-free loans between related parties, the place of registration or place of residence of all parties and beneficiaries of which is Russia.

Consequently, the tax control rules established by Art. 105.17 Tax Code of the Russian Federation.

However, prices for these transactions between related parties can still be verified through desk and on-site audits.

Situation. The on-site inspection is about to arrive. You have something to hide: “problem areas” regarding VAT, income tax, “gray” connections... The reckoning for the not entirely successful “tax optimization” of the past is already approaching.

What to do? A popular solution dawns on you: you decide to transfer activities/assets to another company. What if it goes for a ride?

And here, only a lazy taxman will not dig up evidence of interdependence and will not accrue your “savior company” in full. But perhaps there are “holes” in the Tax legislation that you can catch on and avoid additional charges for Clause 2, Clause 2, Article 45 of the Tax Code of the Russian Federation? Or is there a way to “competently” transfer activities, in which tax service employees, even if they want, will not be able to add additional charges to their “neighbor”?

First prove interdependence, and then collect!

Tax service employees decided to collect the tax debts of the Debtor company from the Novaya company on the basis Subclause 2, Clause 2, Article 45 of the Tax Code of the Russian Federation. However, the Novaya company considered that the inspectorate “jumped” ahead, since first the tax authorities had to prove in court the interdependence of the companies in accordance with Art. 20 Tax Code of the Russian Federation. And, based on the decision made, take the next step to collect arrears, penalties and fines.

• There is no evidence of receipts to the account of the Novaya company from the sale of goods/works/services to the Debtor company, as well as the transfer of property and obligations;
• The Novaya company conducts independent activities and has nothing to do with the Debtor’s business at all;
• The companies are located at different addresses;
• Representatives of the defense company "Novaya" pointed out: the Tax Code of the Russian Federation does not stipulate that the transfer of a business to another legal entity is the basis for collecting tax debts from this legal entity.

The companies tied up 10.8 million rubles, contractors and “marital” ties

But the tax authorities stood their ground. The fact of interdependence is obvious. Therefore, it is the Novaya company that must be responsible for the tax debts of the Debtor. The basis for additional charges was the following:

• After conducting an on-site inspection, the Debtor company transferred the entire “business” to the Novaya company, namely funds in the amount of more than 10.8 million rubles;
• All contracts with buyers and suppliers of the Debtor company were re-signed to the Novaya company, as stated in additional agreements;
• The owners of the company “Dolzhnik” and “Novaya” are “connected” in a special way: they are husband and wife, albeit former ones.

The court recognized “other dependence”

Based on Resolutions of the AS of the East Siberian District dated January 19, 2017. No. Ф02-7748/2016 the court recognized the organizations as interdependent, and ordered the Novaya company to pay the tax debts of the Debtor company . The court established the coordination of the actions of these two companies in transferring the business and evading taxes of the “Debtor”, recalling once again about the “other dependence”:

"Used in Clause 2 of Article 45 of the Tax Code of the Russian Federation the concept of “other dependence” between the taxpayer and the person to whom the claim for collection of tax debt is presented has an independent meaning and should be interpreted taking into account the purpose of this rule - to counter tax avoidance in those exceptional cases when the actions of the taxpayer and other persons are coordinated (dependent friend). from a friend) nature and lead to the impossibility of fulfilling the obligation to pay taxes by the payer, including in the absence of interdependence provided for Article 105.1 of the Tax Code of the Russian Federation. A similar legal position is set out in Ruling of the Supreme Court of the Russian Federation of September 16, 2016 No. 305-KG16-6003 in case No. A40-77894/2015».

So, what mistakes did the Debtor company make in its relationship with the Novaya company? And is it possible to “painlessly” transfer assets to an “independent” company and avoid accusations from Clause 2 of Article 45 of the Tax Code of the Russian Federation?

Natalia Bryleva

Lawyer and tax consultant at Turov and Partners:

Dear businessmen! If there is a need to transfer turnover to another company, think through every step. Otherwise, it is very difficult to prove to tax authorities and the court that the transfer of activities to a new company was not intentional.

In particular, in addition to the above signs of an intentional business transfer, I will give a few more:

• Do not transfer all employees en masse to a new company; they must resign on their own and show a desire to get a job in another company. Raise their salary, even just a little, so that employees have motivation and justification to move to a new organization. Replace bank cards, hire staff from outside so that there is no identical composition, rename positions. Of course, so that all orders for dismissal and hiring, applications, and applications are not available in one day. Make sure your employees don't say, "My employer just said the company name is changing";
• Of course, it will be very great if you choose a different address for registering the company, and the renewed lease agreements will have excellent rental prices and conditions;
• Concluding new contracts with counterparties should also have attractive delivery conditions, for example, a different deadline, delivery method. Consider the grounds for terminating the previous contract (most likely you will need to pay a penalty), the stages of concluding new contracts (interaction with managers, that is, concluding a contract from scratch);
• A website is a problem for many businessmen. Close the old site and open a new one. Fill it with other content, do not make links to your partners before you have entered into new contracts with them;
• It is also desirable that the composition of the founders changes or the general director is replaced;
• Justify the transfer of property to an individual entrepreneur or another organization with debt obligations or payment of dividends (in fact, a year before the audit, such a transfer of property can be recognized - for the purpose of transferring property from which arrears in taxes can be collected). Therefore, you need to be very careful;
• Well, technical steps: do not make identical charters and orders - develop new forms, change the structure. Better yet, build it correctly from the very beginning of the new company.

As a rule, the organization itself must pay “its” taxes, both those calculated independently and the arrears identified as a result of a tax audit.

However, it is not always possible to collect the accrued amounts from the taxpayer. Therefore, sometimes the inspectorate can collect taxes accrued based on the results of an on-site audit, not from the taxpayer himself, but from another organization - a dependent company or, conversely, the main enterprise. Simply put, from an interdependent person (IDP). In this case, the taxpayer himself is involved as a third party.

The grounds and conditions for such collection are set out in subparagraph. 2 p. 2 art. 45 of the Tax Code of the Russian Federation.

You need to pay attention to the following:

The debt is registered for more than three months;

The defendant must receive proceeds, money or other property that is essentially intended for the taxpayer;

This property can be transferred not directly, but through a chain of interconnected organizations (even if not VZL);

The court may recognize organizations as VZL on other grounds not directly listed in this norm.

It was precisely the latter circumstance that “made a splash” in the case of “Royal Water” ( fast. AS MO dated October 31, 2014 No. F05-12000/14 in case No. A40-28598/13). This is a case where the defendant formally - according to civil law - was neither a subsidiary nor a dominant company in relation to the taxpayer, but the court still collected the arrears from him. Such cases were also considered by other courts, the decisions of which are analyzed below.

In general, it must be said that tax inspectorates do not often use this method of collecting taxes and follow the traditional path, collecting arrears from the taxpayer.

First, cases decided in favor of the inspection.

In these cases, the court agreed with the inspectorate that the circumstances identified during the audit indicate interdependence or affiliation of the taxpayer and the defendant. The defendant receives instead of the taxpayer the proceeds that should have been transferred to pay off the latter's tax debt. That is, their actions are aimed specifically at evading payment of arrears and are not determined by reasonable economic goals.

1. Resolution of the Arbitration Court of the West Siberian District dated November 16, 2015 No. F04-16393/2015 in case No. A27-17015/2014

Circumstances of the case:

Two LLCs with the same names are registered, in the same region, with the same founder and director, with the same type of activity (management companies),

The taxpayer's current accounts were closed, the employees were transferred to the defendant,

Agreements of assignment and transfer of debt were concluded between the LLC (the defendant became the creditor instead of the taxpayer),

An attempt was made to liquidate the defendant.

Comment: in terms of the share of participation, LLCs are not VZL (as the court of first instance pointed out), however, they are recognized as VZL on other grounds. Moreover, the defendant was formed after the decision was made on the on-site inspection, and the inspection tried to collect the arrears. That is, in fact, the activities of the taxpayer and his counterparties have been transferred to the defendant.

2. Resolution of the Arbitration Court of the Moscow District dated July 10, 2015 No. F05-8331/2015 in case No. A40-153792/14

Circumstances:

Organizations with similar names, only the taxpayer is a closed joint stock company, and the defendant is an LLC, which was created shortly before the transfer of the business to it,

One founder, director, actual address, telephone numbers, type of activity (construction),

The assets, fixed assets and employees of the taxpayer, as well as rights and obligations under business contracts, were transferred to the defendant,

The company is being liquidated through bankruptcy.

Comment: The CJSC had accumulated a debt not even for its taxes, but for personal income tax of almost 57 million rubles, and it was precisely this that they tried to get rid of. The situation is the same as in the previous case: there is no corporate participation, but the organizations are recognized as VZL.

3. Resolution of the Arbitration Court of the North-Western District dated September 21, 2015 No. F07-7120/2015 in case No. A42-7582/2014

Circumstances:

The taxpayer carried out the activities of warehousing, accumulating and sending batches of raw materials, first directly with the mining and processing plant, and then through a logistics company,

After the decision on the on-site audit was made, an agency agreement was concluded between the taxpayer (agent) and the defendant, and business contracts were re-signed to the defendant,

The defendant began to receive revenue that had previously gone to the taxpayer,

100% share in the authorized capital of the taxpayer was alienated to the son of the founder and director of the defendant, this son worked for the defendant and in a logistics company,

The defendant goes bankrupt, but in fact, as before, he is led by a director,

The taxpayer and the respondent have the same email address.

Comment: an attempt to avoid receiving proceeds, which may be recovered by the inspectorate, through an agency agreement and the subsequent liquidation of the principal. Although in this case both organizations were created quite a long time ago (2000 and 2006), the taxpayer was bought out by a relative of the defendant’s owner in 2014.

4. Resolution of the Arbitration Court of the Volga District dated May 20, 2015 No. F06-23410/2015 in case No. A12-14630/2014

Circumstances:

Again, two LLCs with the same names (construction organizations), but the defendant was created in 2011, 28 days before the on-site inspection,

The managers of both LLCs at different periods were either one person or relatives,

The director of the taxpayer provided the defendant with his own land plot and non-residential buildings and structures for use,

The taxpayer's employees were transferred to the defendant,

The general website contains information about construction and installation works and subcontractors starting from 2007, i.e. for the period when the defendant was not yet present,

The defendant continues to work under contracts concluded by the taxpayer, while no changes were made to the project documentation,

The defendant receives payment for construction work carried out by the taxpayer, i.e. for work that he did not actually perform.

Comment: It seems that the taxpayer tried to quietly “merge”, creating for others the appearance that the construction organization did not stop its activities. And the court ruling reflected that he was building a residential building and some structures for a mining and processing plant. That is, if you do not thoroughly delve into the information, you will get the impression of a construction company with extensive experience.

Now there are cases where the inspection's claim was denied.

In these cases, the circumstances, at first glance, are similar to the circumstances of the cases that the inspectorate lost. But in all cases there are no direct grounds for recovery provided for in subparagraph. 2 p. 2 art. 45 of the Tax Code of the Russian Federation, i.e. persons are not interdependent under civil law. And other circumstances do not indicate that the taxpayer is intentionally evading taxes.

The key point is property: the taxpayer has the opportunity to independently repay the arrears.

5. Resolution of the Federal Arbitration Court of the Moscow District dated 04/08/2013 in case No. A40-46089/12-20-247

Circumstances:

Two LLCs with similar names have the same founder,

As a result of the conclusion of purchase and sale agreements, assignment and transfer of debt, payment under leasing agreements goes to the account of the defendant, and not the taxpayer.

But:

According to the balance sheet, the taxpayer has assets sufficient to repay the arrears,

The taxpayer partially paid the disputed arrears.

Comment:“according to the balance sheet” is good. The main thing is that the assets are available.

6. Resolution of the Federal Arbitration Court of the Ural District dated January 27, 2011 No. F09-11630/10-S3 in case No. A76-12376/2010-42-397

Circumstances:

CJSC and LLC with similar names, LLC - defendant,

Are located at the same address, the founder and director of the defendant, by virtue of their official position, are subordinate to the director of the taxpayer,

The taxpayer orders the transfer of proceeds to the defendant's account.

But:

The taxpayer and the defendant work under an agency agreement,

The funds received by the defendant at the will of the taxpayer were returned to the latter.

Comment: the taxpayer is a manufacturing enterprise, the defendant is a trading house; it is likely that the relationship was indeed that of an agency, especially since the proceeds were transferred to the taxpayer.

7. Resolution of the Federal Arbitration Court of the Central District dated 08.08.2011 in case No. A14-8219/2010/262/28

Circumstances:

CJSC - taxpayer (manufacturing enterprise), LLC - defendant,

In the 3rd quarter of 2009, more than 80% of the taxpayer's products were sold through the defendant, located at the same address,

Payment for the products goes directly to the defendant, who transfers less than half to the taxpayer,

A commission agreement for the sale of products was concluded between the taxpayer and the defendant (commission agent), but the defendant from his own accounts pays for the taxpayer for the supply of raw materials and materials, as well as the wages of his employees, which does not correspond to this agreement.

But:

The defendant was created on November 3, 2004 in Voronezh, and the taxpayer - on May 23, 2003 - in Tambov, where he carried out his activities until October 2007,

The taxpayer is one of the defendant’s counterparties, and the business agreements concluded between them are aimed at achieving the statutory goals,

In the event of undisputed collection of arrears from the taxpayer, property in an amount close to the amount of arrears was seized for sale.