Avoid long and confusing wording.

Present your arguments in the same sequence, in the same paragraphs and subparagraphs that the inspection used. This will be more convenient for everyone. In this case, it is better to preface the arguments with a brief description of the position of the Federal Tax Service.

According to paragraphs 2.1.1, 2.1.2, 3.1.1, 3.1.2 of the Inspection Report

The inspectors found that, in violation of subsection. 23 clause 1, clause 3 art. 264 of the Tax Code of the Russian Federation, the organization included in other expenses expenses in the amount of XXX XXX rubles. for employee training consulting company, which does not have a license for educational activities.

We do not agree with this conclusion for the following reasons.

Links to legislation

All references - to legislation, letters from the Ministry of Finance, the Federal Tax Service and the Federal Tax Service, as well as to judicial practice - are best indicated in parentheses after the arguments. Remember that you need to refer to the norms of the Tax Code and other laws in the wording that was in force during the period under review, and not at the time when you are drawing up objections.

Judicial practice

Referring to judicial practice, select the most recent decisions and present them in the following order:

Objections to the act tax audit are drawn up in any form. A sample objection can be found at Federal Tax Service website.

1) acts of the Constitutional, Supreme Arbitration or Supreme Courts (decisions of the Plenum, Presidium, newsletters, definitions);

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2) decisions of the arbitration court of your district;

3) acts of lower courts in your region;

4) acts of courts of other regions.

At the same time, choose those solutions in which the circumstances of the dispute are as similar as possible to your situation. If in your objections you write that your position is supported by extensive judicial practice, then give at least three or four solutions.

In turn, if the tax authorities in the act refer to judicial practice, then you need to try to refute each such reference, for example, on the following grounds:

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Mitigating circumstances

In the final part of the objections, do not forget to ask the Federal Tax Service to take into account the mitigating circumstances in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, if they exist in your case. Indeed, if there is at least one such circumstance, the amount of the tax fine should be reduced by at least two times, clause 3 of Art. 114 Tax Code of the Russian Federation.

Here are examples of circumstances that absolutely everyone can refer to:

In your objections, you can also ask to take into account undeclared losses from previous years, the size and presence of which the Federal Tax Service did not dispute. Some courts believe that inspectors cannot refuse the taxpayer this Resolution of the FAS ZSO dated June 25, 2014 No. A/2013; FAS PO dated 02/04/2014 No. A/2013. But there are those who have a different opinion, see, for example, Resolution of the FAS UO dated December 3, 2015 No. F/15.

Attachments to objections to the tax audit report

Attach to your objections copies of primary and other documents proving your case in the controversial episodes. Note that this is not necessary, but it is advisable. Copies must be certified by the manager (IP) or his representative by proxy. Please provide a list of attachments at the end of your objections.

If you cannot attach certain documents to the objections at the time of their submission, then you have the right to submit them later within the period agreed with the Federal Tax Service Inspectorate, paragraph 6 of Art. 100 Tax Code of the Russian Federation.

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Signing objections

Objections must be signed by the head of the organization (entrepreneur) or a person authorized by a power of attorney. In the latter case, a copy of it must be attached to the objections. You can also put a stamp on objections if the company uses it.

Filing objections to the tax audit report to the tax office

There are two ways to submit objections:

If it so happens that you file objections on the last day of the allotted month, then at least try to bring them directly to the inspectorate. And warn the Federal Tax Service that the objections are directed at her. After all, if you send them by mail, they may not have time to arrive at the inspection by the day the materials are reviewed. And then the decision on verification will be made without taking into account objections. And you are unlikely to be able to appeal it on this basis. The court may decide that you abused your right because you should have assumed that your objections would not have time to reach the inspectorate before a decision was made, see, for example, Resolution of the FAS VVO dated December 25, 2013 No. A/2012; FAS UO dated September 11, 2013 No. F/13.

Objection to the tax audit report

An objection to a tax audit report is a document that any organization subject to tax control has the right to write.

What exactly is an objection to a tax audit report used for?

An objection drawn up on behalf of the company allows its management to appeal any actions, results and conclusions of the tax authorities who carried out the tax audit.

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There are two main types of violations committed by tax authorities:

1. procedural (i.e. errors in the order of the event);
2. violations related to substantive law (i.e. incorrect interpretation of any documents, incomplete accounting of provided papers, etc.).

The tax office is obliged to respond to a written objection, regardless of which of these types of violations it is written about.

What not to complain about

Everything related to the company’s activities in terms of documents, finance, accounting and taxes can and should be appealed in case of disagreement.

But there are some points against which it is not advisable to file an objection with the tax office. This:

• timing of the verification procedure (start and end dates),
• inaccuracies in the preparation of the protocol,
• minor procedural violations.

All these minor details should be ignored at this stage, focusing on the essence of the claim. Here the mark “at this stage” means that they should be reserved for the court, where, if something happens, they can try to discredit the act (i.e., declare it illegal).

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In addition, it should be borne in mind that an objection drawn up in accordance with all the rules, with all the necessary papers attached, regarding the audit procedure may well lead to additional control measures on the part of the tax authorities. And their results, in turn, can easily reveal more serious mistakes and violations in the activities of the enterprise.

How to justify an objection

Before “starting a discussion” with the tax authorities, it is advisable to stock up on one hundred percent arguments and a set of convincing documents certifying the correctness of the organization, which must be added to the objection. To do this, it is necessary to carefully study the tax audit report, and recheck all identified controversial points several times.

If, at the time of writing the tax audit report, the company for some reason lacked some documents, but it as soon as possible managed to restore them or was able to correct minor inaccuracies in the existing papers, this must be reflected in the objection.

This will reduce the amount of additional tax assessed, if any, and also avoid all kinds of fines and penalties.

All your arguments must be carefully and thoroughly explained, indicating the circumstances that led to this or that shortcoming and referring to the legislation of the Russian Federation in the field of taxes, civil law, judicial practice and regulations companies.

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It will be difficult for tax authorities to argue with well-founded arguments; moreover, if something happens, they will become the evidence base when the company goes to court (if, of course, it comes to that). It should also be noted here that in court it will be possible to raise only those points of the tax audit report that were previously appealed to a higher authority. tax office.

Where and how to file an objection

The objection should be submitted to the address of the territorial tax service, whose specialists carried out the audit. The document can be transferred:

1. personally “hand to hand”,
2. sending it by mail by registered mail with notification of delivery.

Both of these methods ensure that tax authorities receive the objection in a timely manner.

Today, another proven option for document delivery has become widespread: through electronic services, but only on condition that the organization has an officially registered digital signature.

How long does it take to object?

There is a set deadline for filing an objection, which is the same for desk and field tax audits - it is equal to one month from the date of receipt of the report.

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If this period is violated, the organization is unlikely to be able to challenge the act (most likely only through the courts).

Main nuances in drawing up an objection

To date, there is no strictly established sample of an objection to a tax audit report. Employees of enterprises and organizations can draw up a document in any form, based on their understanding of it.

In this case, it is advisable to take into account some office work norms and rules for writing business documentation. In particular, the objection must indicate:

• addressee, i.e. the name, number and address of the exact tax office to which the objection is sent,
• sender information (company name and address),
• number of the objection and the date of its preparation.

In the main part it should be indicated

• the act in respect of which an objection is being drawn up,
• describe in detail the essence of the claim, including all available reasons and arguments.

The document must refer to the laws that confirm the correctness of the author of the objection and indicate all additional papers attached to it (marking them as a separate attachment).

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What to pay attention to when preparing a document

Neither the Federal Tax Service in its acts nor the law regulates the filing of an objection in any way. That is, it can be written by hand or printed on a computer on an ordinary A4 sheet or on company letterhead.

It is strictly important to comply with only one condition: the objection must be signed by the head of the enterprise or an employee authorized to create such documents. If the form is endorsed by a proxy, it must also indicate the number and date of the power of attorney.

It is not necessary to certify an objection with a stamp today, since since 2016, enterprises and organizations have every right not to use stamp products in their work (unless this norm is prescribed in local acts firms).

The document should be drawn up in two copies, one of which should be submitted to the tax office, the second, after the tax specialist has marked the acceptance of the document, should be kept.

Objections to a desk tax audit report - sample

Send by mail

Objections to the desk inspection report - a sample of them can be drawn up independently. To do this, it is enough to take into account several factors, which will be discussed in this article.

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When should you file objections to a desk inspection report?

If a taxpayer has doubts about the legality of the tax authority’s position based on the results of a desk audit, he should file an objection. Moreover, the document must be drawn up in writing, because:

• this is how you demonstrate the seriousness of your intentions;
• the inspection or department of the Federal Tax Service will not consider it in any other form;
• it may be needed in court.

Naturally, you should select very convincing arguments that can sway the opinion of a higher authority or court in your direction.

At the same time, the taxpayer must keep in mind that filing objections is fraught with additional checks - the tax inspectorate, in accordance with clause 6 of Art. 101 of the Tax Code of the Russian Federation, is obliged to respond to the signal. A similar situation is reflected in several court decisions, in particular in decisions of the FAS East Siberian District dated July 15, 2009 No. A/08, FAS Moscow District dated September 9, 2009 No. KA-A40/and FAS Northwestern District dated June 1, 2009 No. A /2008.

It may happen that tax inspectors, during an additional audit, will find even more serious violations. Therefore, when filing objections to the cameral’s act, you should once again carefully make sure that you are right and all the documents are in order.

In what situations should you not file objections to a desk inspection report?

You should not note in your objections formal violations committed by inspectors, such as: start and end dates of the event, procedural framework, inaccuracies in the preparation of the protocol. It's better to focus on the essence of the act.

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If the taxpayer has comments only on formal reasons, then it is better not to file objections. They can be left to appeal decisions made based on the results of the desk audit. In court, in this way it will be possible to try to discredit the act. If you do this earlier, the tax authority will eliminate the shortcomings and deprive the taxpayer of arguments.

Objections to a desk tax audit report: sample

The Tax Code and other legislative acts do not contain separate requirements for filing objections to a desk tax audit report. Therefore, the taxpayer can present arguments in any form.

Here is a sample objection to a desk audit report.

The tax authority, represented by senior tax inspector I. I. Zaitseva, conducted a desk audit of the VAT return filed by Omega LLC for the 3rd quarter of 2017. In the act dated January 18, 2018 No. 18-4/23, Zaitseva proposes to charge additional VAT for the 3rd quarter of 2017 and charge penalties on the tax. Claims from the tax inspectorate arose under the supply agreement with Gerkon LLC.

The manager, accountant and lawyer of the company familiarized themselves with the act and believed that they would find compelling arguments to convince the tax authorities to correct the amount of the claim. As a result, a document was drawn up - an objection to the desk inspection report.

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Inspectorate of the Federal Tax Service of Russia No. 23 for St. Petersburg

st. Pulkovskaya, 12, letter A

196158, St. Petersburg,

Moskovsky Ave., 136

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Omega LLC for a desk tax audit report

Inspectorate of the Federal Tax Service of Russia No. 23 for St. Petersburg, represented by senior state tax inspector I. I. Zaitseva, conducted a desk audit tax return for VAT of Omega LLC for the 3rd quarter of 2017.

In the act dated January 18, 2018 No. 18-4/23 drawn up by inspector I.I. Zaitseva, our company was asked to pay the arrears of value added tax in the amount of rubles. and penalties accrued in this regard in the amount of rubles. In addition, it is proposed to bring the company to tax liability for the violation.

We believe that the conclusions of inspector I. I. Zaitseva are unfounded for the following reasons:

Clause 2.4 of the contested act states that the deduction amount is RUB. declared incorrectly, since our company did not receive the goods from Gerkon LLC (TIN 11 / KPP). For this reason, the sale of these products did not take place.

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In support of this, the inspector referred to the fact that our company had not paid for the goods, and the counterparty had all the signs of a fly-by-night company registered to extract illegal tax benefits.

However, Omega LLC is able to confirm with documents the reality and legality of the transaction. Based on the documents attached to the objections, you can verify that goods in the amount of 48 tons were received, entered into the warehouse, and then sold to other contractors. The following documents are attached:

In addition, we clarify that the delivered products were indeed not paid for in the 3rd quarter of 2017, since in clause 4.2 of the supply agreement the payment period is specified until December 31, 2017.

Results

A desk tax audit report is issued by tax authorities only if violations were discovered during control of the declaration. You can send your objections to the inspection in writing if you can substantiate the fallacy of the conclusions set out in the inspection report.

If there are not enough arguments, filing objections is dangerous - they can provoke additional tax control measures.

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The procedure for drawing up objections to an on-site tax audit report

The results of a tax audit with additional assessments are reflected in an act - a document on the basis of which the head of the Federal Tax Service makes a decision on bringing the enterprise and official to tax liability. Upon completion of the audit, a copy of the report is given to the taxpayer. Objections to the result of the act of the enterprise are submitted to the Federal Tax Service in writing. The facts presented in the document may influence the decision made on the act. In this article we will tell you about objections to the on-site tax audit report and give examples of documents.

Deadline for review and submission of objections

An on-site inspection report by the Federal Tax Service Inspectorate is issued by the inspector at the end of the control event based on a certificate about the day the procedure was completed. The procedure for conducting, filing a tax audit and filing objections based on the results is carried out in strict accordance with the deadlines specified by the Tax Code of the Russian Federation. Read also the article: → “How an on-site tax audit of an LLC is carried out: timing, procedure, planning.”

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The deadline for filing objections is determined from the day following the date of delivery of the act in person or on the seventh day when received by mail.

Grounds for disagreement with the act

Well-written objections and well-founded arguments contribute to making a decision to cancel or reduce sanctions. A taxpayer can express disagreement with the act or part of it in relation to:

• Inconsistencies between the actual data of the enterprise and those specified in the act from the point of view of the provisions of tax legislation. In some cases the facts economic activity are misinterpreted by the inspection inspector.
• Inspection procedures. Violations of procedural order occur, but are extremely rare. Violation of the procedure does not affect the decision making. Cancellation of the decision is carried out in court.
• Data inconsistencies. The materials of the act sometimes contain incomplete information.
• Arithmetic of inspectors' calculations. Errors may occur when calculating penalties, fines and when determining the amount of arrears taking into account overpayments.

The taxpayer is not required to support the arguments put forward with documents. In the form of evidence, documents restored or received from counterparties may be attached confirming the information specified in the objections.

The procedure for submitting objections to the act

Objections to the act are submitted directly to the territorial office of the Federal Tax Service Inspectorate carrying out the inspection. The head of the enterprise or his representative has the right to submit the document in person through the office or by mail. Read also the article: → “How is an on-site tax audit of an individual entrepreneur carried out?” When sending a letter by mail, the delivery time is taken into account (clause 5 of Article 100 of the Tax Code of the Russian Federation). Special attention is paid to the preparation of applications, the submission of which complies with the requirements of Art. 93 Tax Code of the Russian Federation:

• Paper documents must be submitted as certified copies. The forms are certified by the head of the organization (IP) with the signature certified by a seal.
• Sheets of submitted duplicates are subject to numbering and stitching.
• Documents in electronic form are certified with digital signature.

An enterprise that has not submitted an objection has the right to take part in the discussion of the data in the act and make explanations orally with recording in the protocol (clause 4 of Article 101 of the Tax Code of the Russian Federation).

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Composition of data as part of objections

There is no objection form available. The document must indicate information about the recipient, applicant and the subject of disagreement. The use of company letterhead is permitted.

When drawing up a document, you must follow the rules business letter.

Sample of filling out objections to the act

To the Head of the Federal Tax Service No. 5529

From Stroyteks LLC,

Omsk, st. Pavlova, 8

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for an on-site tax audit report

LLC "Stroyteks" No. 325 dated 07/09/2016

Tax Inspectorate No. 5529 in the period from 03/10/2016 to 05/10/2016 carried out an inspection of the mobile nature of Stroyteks LLC. Act No. 325 dated 07/09/2016, drawn up based on the results of the inspection, was received by the director of Stroyteks LLC on 07/10/2016.

In accordance with the right granted by Art. 100 of the Tax Code of the Russian Federation, we present our objections to Act No. 325 of 07/09/2016 (hereinafter referred to as the Act).

According to clause 3.5 of the Act, during the inspection, the Inspectorate discovered the fact of unauthorized application of a VAT deduction in the 3rd quarter of 2014, which resulted in non-payment of tax in the amount of rubles. The amount of VAT was issued by the counterparty Vesti LLC in invoice No. 266 dated 08/12/2014 for the supply of movable equipment “Loader”. The Inspectorate considered the basis for the ineligibility of applying the deduction to be the actual non-use of equipment in the specified period due to the absence of a driver on staff.

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We believe that there is no violation of tax laws. The eligibility for inclusion in the tax deduction of a tax amount in the amount of rubles is based on the following positions:

1. The documents received from the supplier meet the requirements for applying the deduction in accordance with Art. 172 of the Tax Code of the Russian Federation.
2. The fixed asset has been registered (commissioning act OS-1 No. 25 dated September 10, 2014 is attached).
3. The acquisition of equipment was carried out for use in activities subject to VAT. Order on hiring driver Vladimirov P.P. and employment contract No. 28 dated 10/01/2014 are attached.

We ask you to consider the objections and make a decision to refuse to bring to tax liability for the incompetence of applying a VAT deduction in the amount of rubles according to invoice No. 266 dated 08/12/2014.

Director of Stroyteks LLC Smirnov K.N.

Deadline for consideration of objections

When determining the period for consideration of the materials of the report and the taxpayer’s objections, the following periods are taken into account:

• The review is carried out within 10 days from the date of expiration of the period established for filing objections.
• The period is calculated in working days.
• When assigning in-depth activities, a period of 10 days is counted from the date of completion of in-depth activities.
• The period can be extended within a month.

The arguments presented by the taxpayer in the form of an objection to the audit are considered only if they are significant. Lack of reasoned and, if necessary, documented confirmed facts the rightness of the person does not allow one to accept objections. Read also the article: → “How a tax audit of an LLC is carried out: on the usn, unified income tax, in the first three years.”

Presence of the taxpayer at the hearing

One of the important conditions for the legality of carrying out control activities is the invitation of the taxpayer to review the audit materials. The call is made in the form of a written notification. In the absence of a summons, the decision on the act may be canceled on a formal basis in court proceedings.

A manager or other person who has a power of attorney for the right to be present during the consideration of materials and provide explanations on emerging issues can act as a representative of the enterprise.

Differences in objections for different types of taxes

When drawing up objections, the norms established for each type of tax are taken into account.

Depending on the type of tax, the list of supporting documents provided differs.

Mistakes when drawing up an objection

In the process of presenting arguments about disagreement with the inspection report, it is necessary to avoid drafting errors:

• Lack of data in the document allowing consideration of the taxpayer’s position. The grounds for objections must be reasoned.
• Deviation from the rules of writing a business letter. Emotional attacks and arguments that have no indication of legislative acts or evidence base.
• Violation of established deadlines for submission. If objections are filed after the allotted period, the act is considered without taking into account the protesting data.

An enterprise that fails to submit claims within the deadline established by law must contact the Federal Tax Service with a request to postpone the deadline based on compelling evidence. The intention to protest the result must be notified in advance. The appeal is made before the deadline for filing objections.

Answers to common questions about drawing up an objection to a tax audit report

Question No. 1. Does filing objections to the act matter if the enterprise intends to protest the materials of the act in court?

Filing objections is part of the pre-trial procedure for challenging the provisions of the inspection report (Article 148 of the Arbitration Procedure Code of the Russian Federation). The law does not prohibit challenging in court without pre-trial measures. However, there are precedent decisions arbitration courts not in favor of enterprises in the absence of claims at the pre-trial stage.

Question No. 2. Is it possible to refuse to sign the inspection report in the form of a protest?

Refusal to sign the act when appearing at the Federal Tax Service does not entail procedural consequences for the inspector. In the place intended for signature, an entry is made: “__________ refused to sign the act.” The recording is certified by the signatures of witnesses. A copy is sent by mail, which is recorded on the Inspection report.

Question No. 3. Does the right of an enterprise to file objections to an act depend on the fact of its signing?

The taxpayer has the right to submit objections regardless of signing the act or refusing to sign.

Question No. 4. Is it possible to ask for a reduction in sanctions when considering the materials of the act?

The amount of fines imposed on an enterprise can be reduced if there are mitigating circumstances, which can be stated on the record. Among the mitigating circumstances, one can point out the absence of previous violations, intent, admission of guilt, and good faith. Additionally, the amount of the administrative fine may be reduced by official if there is a fork in the article of the Administrative Code.

Question No. 5. Is it possible to indicate in the act the intention to file objections?

It is possible, a number of tax inspectorates offer to indicate disagreement and intention to challenge the result.

Objection to a tax audit report - sample

An objection to a tax audit report - a sample of this document can be found in this article. In it, we will analyze in detail the appeal procedure itself and the procedure for drawing up an application, and also introduce you to some of the features of this process.

Example of an objection to a tax audit report.doc

The act upon completion of the inspection and the procedure for appealing it

Tax audit report in accordance with Art. 100 Tax Code of the Russian Federation (hereinafter referred to as the NC) is a document drawn up by a representative of the regulatory authority upon completion of this procedure. The need and timing of preparation depends on the type of audit:

• during an on-site inspection, the report is drawn up in any case, no later than 2 months from the date of drawing up the certificate of the inspection (for a consolidated group - 3 months);
• cameral - only if there are violations, within 10 days after its end.

It should be noted that the act is not yet a decision to bring or not to hold accountable. The person in respect of whom the audit was carried out has the right to influence its results by submitting objections to the above document (clause 1 of article 21, clause 6 of article 100 of the Tax Code).

IMPORTANT! An appeal against a tax audit report is made within a month from the date of its receipt. For a consolidated group of persons, this period is 30 days from the date of receipt.

By virtue of Art. 101 Tax Code act, other documents containing information about violations, objections are considered by the head of the Federal Tax Service within 10 days from the end of the period for submitting objections in accordance with clause 6 of Art. 100 NK.

How to write objections: example

It is recommended that you familiarize yourself with an example of a sample objection to a tax audit report after studying the procedure for its preparation outlined below.

The document is drawn up in written form. The law does not provide for any special requirements for its content, so registration in any form is acceptable. Typically, when describing your position, references are made to the provisions of legislative acts and clarifications of government bodies, as well as judicial practice.

As attachments to the letter, you should indicate documents that are evidence confirming the arguments presented. They can be submitted before the decision is made, even after the application has been submitted.

The order of compilation is as follows:

1. In the upper right part of the document the name of the body that carried out the control measures and its address, the name of the taxpayer, his address and telephone number are indicated.
2. Title: name, number and date of the document being appealed.
3. The main part: what kind of violations were identified and why the author does not agree with them.
4. Petitioning part: a specific request is expressed, for example, to accept VAT for deduction.
5. Signature of the authorized person, transcript of the signature (full name, position), date of signing.

Arguments to answer in a VAT dispute

When filing objections to a VAT tax audit report, the following can be used as arguments:

1. If the basis for non-acceptance for deduction is failure to exercise due diligence when choosing a counterparty, evidence of proper verification of the partner’s integrity should be provided (for example, resolution of the Arbitration Court of the Ural District dated December 21, 2015 No. F/15 in case No. A/2015).
2. When the deduction is not made due to the fact that the counterparty is on the simplified tax system, you can refer to the right granted to the seller, who is on the simplified tax system, by law (subclause 1, clause 5, article 173 of the Tax Code) to issue an invoice to the buyer with VAT and pay it to the budget (for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated May 28, 2007, June 1, 2007 No. KA-A40/on case No. A/). In the sample response to the tax audit report presented in this article, you can learn more about this justification.
3. If a VAT refund is refused on the basis of non-refund of advance payments, prove the legality of applying the deduction calculated from the advance received (for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated 04/21/2010 No. KA-A40 / in case No. /).

What to consider when filing a written appeal against an act

When starting the procedure for appealing the findings of the Federal Tax Service, you should keep in mind the following rules established by law:

1. A decision made before the end of the period for challenging the act will be canceled if the taxpayer was not notified of the date of consideration of the audit materials (clause 14 of Article 101 of the Tax Code).
2. The absence of a written statement of disagreement with the results of the audit does not exclude the possibility of giving explanations during the consideration of its materials (clause 4 of Article 101 of the Tax Code).
3. An appeal may entail the need to carry out additional tax control measures (clause 6 of Article 101 of the Tax Code). In this case, the period for reviewing materials and making a final decision may be extended, but not more than by 1 month.
4. If the deadline for filing written objections to the tax audit report is missed and a decision is made, all that remains is to appeal the decision to a higher tax authority or court (subclause 12, clause 1, article 21, article 137, subclause 1, 2, article 138 of the Tax Code).

An act drawn up based on the results of an inspection by a representative of a regulatory body can be challenged by submitting a corresponding written statement to the head of the same body. This must be done within the period established by law, clearly and reasonably stating your position. Evidence confirming the validity of the application can be submitted either simultaneously with it or after it (before the decision is made).

The procedure for drawing up the document, as well as its sample, are presented above. When initiating the process under consideration, it is recommended to take into account the nuances provided for by the Tax Code and set out in this article. For specifics of objections to a desk audit report, read the article Objection to a desk tax audit report – sample.

An objection to an act of desk and field inspection is a procedure in which disagreement is expressed with the decision of tax or other regulatory authorities and funds (FSS, Pension Fund).

Procedure

The sequence of actions of a taxpayer who has received the results of a tax audit is given below.

• Issuance of an inspection report.
• Analytical study of the received document for legality by the manager, accountant and lawyer.
• Decision to file an objection.
• It is sent to the tax authorities.

To prepare an objection, the taxpayer has 10 days for a desk audit or 2 months for an on-site audit. Perhaps this is where this document differs regarding the type of verification.

Depending on who carried out the inspection, the deadline for submitting a document of disagreement may vary (Federal Tax Service, Social Insurance Fund or Pension Fund), so in each case it is necessary to clarify them. The document is drawn up if the subject entrepreneurial activity I don't agree:

• with an inspection report (clause 6 of Article 100 of the Tax Code of the Russian Federation);
• with facts of tax violations discovered during the audit (clause 5 of Article 101).

The ten-day or two-month period is counted from the next day after receipt of the act (clause 2 of article 6.1 of the Tax Code of the Russian Federation).

Do not be late in filing an objection to the desk tax audit report, then you will have more chances to defend your case

How to determine the deadline for filing an objection?

For example, an enterprise was issued an act on April 10, 2017. In this case, the last day for filing an objection is April 20, 2017 for office and June 10, 2017 for offsite.

There are cases when the deadline falls on a date that does not exist in that month, then the last day for filing an objection is the last calendar day of that month.

For example, the tax inspectorate presented the company with an on-site inspection report on July 31, 2016. This means that the last day for an objection will be September 30, 2016.

Previously, the requirements for meeting deadlines were more stringent, now you can object later, but it is still recommended to meet the deadlines.

If, nevertheless, the entrepreneur is delayed, objections can be prepared at the time of consideration of the inspection materials, where a representative of the party being inspected is invited. It is at this meeting that objections should be accepted and taken into account during the discussion.

Drawing up a document of disagreement with the decision of the tax service

Taking into account the fact that this document has features inherent to a single business entity, there is no unified form. The objection is drawn up in free form, but there are general requirements to its content.

How to write about disagreement with the results of an inspection

The document must contain all of the following information.

• The name of the tax service to which these objections will be submitted.
• Full name of the enterprise or full name. I. O. IP.
• If available, indicate the Taxpayer Identification Number (TIN) and KPP.
• Legal address of the company, IP registration address.
• Day, month and year of the submitted document.
• List the taxes or other calculations that were the subject of the audit, indicating the period.
• The exact start and end dates of the check.
• Information about inspection inspectors.

A standard letter structure is provided as a guide.

• An introductory part consisting of 2-3 paragraphs.
• Descriptive, it contains the main text.
• Resolution.
• Conclusions and requests.

The text of the objections clearly identifies the points with which the taxpayer does not agree. It is advisable to list them in the same sequence as in the act. Depending on the scope of objections, they can be filed either against the act as a whole or on individual points. Objections should not mention misunderstandings during the inspection; the main thing is to state specific claims supported by facts.

It is necessary to understand the nature of the disagreement with the opinion of the tax authorities, because if we are talking only about violations of the audit procedure itself, objections will not be filed. Similar claims can be made when appealing a decision.

For each point, it is necessary to provide compelling arguments confirming the taxpayer’s position. Each justification must have a link to a specific article of the law.

When drawing up objections to the inspection report, it is necessary to refer to the relevant articles of the law

In addition to the basic legislation in the field of tax policy, there are letters from the Ministry of Finance, in particular, addressed to this enterprise. If you refer to them, the objection will be more convincing. It would also be advisable to refer to the explanations offered by the Federal Tax Service on the official website.

It would be useful to turn to colleagues who have already found themselves in a similar situation. In addition, they have letters from the Ministry of Finance and explanations from the Federal Tax Service, which are necessary when drawing up an objection.

You can use examples of court decisions, make copies of documents from the Supreme and Arbitration Courts.

Objections are signed either by the manager or by an authorized representative.

To prove its case, the company can draw up an annex to the main document. It should be sent to the inspection body separately from the objection within the specified period (clause 6 of Article 100 of the Tax Code of the Russian Federation).

How to prepare your documents

Each document must be certified separately with a signature and seal. There is another way - all copies are submitted in the form of a binder and certified by one certification. However, this form does not always suit tax inspectors, who can find fault with the fact that documents are certified with violations and even impose a fine of 200 rubles for this. for each incorrectly executed document.

Although, as practice shows, such actions on the part of tax authorities are recognized by the court as unlawful and fines are cancelled.

Multi-page documents must be numbered, stitched and certified: “correct” or “copy is correct”, date, position, full name and signature with a transcript of the person who signed the document.

Participation in the consideration of the desk inspection report

After receiving notice in writing or by telephone, it is advisable to attend the meeting, especially if the entrepreneur is confident in the legality of the objections raised.

To participate in the meeting you must have the following documents with you:

• ID card;
• power of attorney, if not the manager, but his representative will be present;
• a copy of the main document about disagreement with the results of the “camera chamber”;
• inspection report;
• Application.

It is also necessary to prepare theoretically, think through a logical and reasoned presentation, give real examples, and focus on the explanations of the Ministry of Finance, the Federal Tax Service, the Pension Fund and the Social Insurance Fund.

You can use a moment that can play in favor of the person being tested. For example, if he is not sure that he can prove that he is right, it is not necessary to appear at the meeting. However, you can then submit an application to higher authorities or the court to appeal the decision due to a violation of the review procedure, which occurred in the absence of the taxpayer.

Please note: before a decision is made on the complaint (appeal), you have the right to withdraw it in whole or in part. To do this, you must send a written application to the tax authority. In this case, you lose the right to re-file a complaint on the same grounds.

clause 7 art. 138 Tax Code of the Russian Federation

Preparation of written objections based on the results of VAT and income tax audits

Objections to the VAT audit report boil down to a request to assign additional control procedures

In the example above, the taxpayer protests against the results of the VAT desk audit report, describes the facts presented in the document as unlawful and asks to schedule additional verification activities.

Correct objection to the income tax audit report: the taxpayer justifies the legality of his actions

In an objection to the inspection report, one should not only write down the violations committed during the inspection, but also justify the correctness of determining the tax base, the application of deductions or the calculation of tax amounts.

Disagreement with the opinion of the inspectors must be supported by references to the relevant regulatory documents

How and where to send an objection?

The prepared document is sent in writing to the address of the territorial tax inspectorate that conducted the audit (clause 6 of Article 100 of the Tax Code of the Russian Federation), or transmitted directly to the office. This can be done by a leader or a trusted person (vv. 27, 29). It is advisable to prepare two copies, one for the tax office, the other with a mark of acceptance remains with the applicant of objections.

If it is not possible to submit the document in person, it can be sent by registered mail by regular mail. Here it is very important to pay attention to the timing when the date of delivery is considered the sixth day from the day of mailing (clause 5 of Article 100 of the Tax Code of the Russian Federation).

Letter consideration time

The objection is considered by the head or his deputy of the tax inspectorate conducting the audit. The deadline for completing the review is determined by the tenth day after the deadline for submitting an objection, and not from the moment it is received from the taxpayer being audited. Based on clause 1 of Article 101 of the Tax Code of the Russian Federation, this period can be extended to 1 month.

After consideration, an appropriate decision is made. Depending on the real state of affairs, tax authorities can:

• hold one or more tax inspectors accountable for violating tax laws;
• prepare a refusal to prosecute due to non-recognition of the offense committed tax officers(clause 7 of article 101 of the Tax Code of the Russian Federation).

What to do after submitting an objection?

The head of the company or individual entrepreneur will have to wait for the result within the allotted time to consider the objection. Upon expiration of the period, the taxpayer receives a notification about the decision taken. If this does not happen, you should contact the tax service and find out the reason. When it turns out that the tax authorities are clearly ignoring the consideration of the document of disagreement with the audit report, you should not dwell on this. For further actions, there are higher supervisory and judicial authorities.

What to do if the Federal Tax Service refuses to accept an objection

Some taxpayers are faced with the fact that inspectorate employees are not going to accept objections within the acceptable time frame. This fact is a direct violation on the part of the regulatory authorities. In such a situation, it is necessary to contact the appropriate higher authorities or the court.

Lawyers recommend using such measures only in cases where the entrepreneur is completely confident that he is right. It should be remembered that the trial procedure is quite lengthy and requires financial costs. However, you should not refuse it if the taxpayer has enough legal grounds, supported by documents, which guarantees that a decision will be made in his favor.

As a rule, any tax audit ends with the identification of certain violations. However, such actions of regulatory authorities are not always objective; sometimes elementary mathematical errors in calculations or obvious violations of tax legislation occur. To achieve justice, the taxpayer can use a convenient tool, which is an objection to the tax audit report. It is enough to fill it out in accordance with the requirements of the law, explain your position and submit the document to the tax office in a timely manner.

The tax audit is completed. But the hardest thing is ahead - you have to defend your good name and, most importantly, money. To do this, you need not only to present objections, but also to competently calculate the situation two steps ahead. Little tricks will help with this, because in a dispute all means are good.

Tax authorities conduct both on-site and desk audits. And the logical conclusion of these activities is almost always a tax audit act. The only exceptions are desk audits, as a result of which no violations of the legislation on taxes and fees were found.

In addition, tax authorities diligently draw up reports on the discovery of facts indicating the commission of tax offenses.

Receiving any of these acts does not promise anything pleasant, because it means the accrual of taxes, penalties and prosecution.

However, not everything is as sad as it might seem. In case of disagreement with regulatory authorities, taxpayers have the right to object and defend their good name, and at the same time their money. To do this, you must submit appropriate objections to the act to the tax authority.

The general rules for filing objections are set out in Articles 100 and 101.4 of the Tax Code. These articles indicate the deadlines for filing objections, as well as the procedure for their consideration. However, there are some nuances of appealing a particular act that it would not hurt to know about and which must be taken into account.

It is worth noting that the procedure for filing objections depends on what act was drawn up. You also need to decide for yourself whether these are substantive objections, or whether you have any complaints about the inspection procedure, the drawing up of the report and the procedure for its consideration.

Moment of receipt of the act

Almost every organization knows that an audit of financial and economic activities is underway, after which a report will be drawn up. Thus, during a desk audit, the report is drawn up within 10 days from the date of completion of the audit, and during an on-site audit, within two months after signing the certificate of the on-site tax audit.

After drawing up the act, it must be signed by the persons who carried out the inspection, as well as by the person in respect of whom it was carried out (or his representative). By by and large No one can force you to sign the act, but if you refuse, then a corresponding note is made in it. Usually it sounds like this: “The person in respect of whom the inspection was carried out (his representative) refused to sign the act.” In this case, particularly meticulous inspectors may involve third parties to testify this fact. It is worth understanding that, although no liability is provided for failure to sign the act, such behavior may indirectly indicate the taxpayer’s dishonesty. So you can and should sign the act, since such behavior in the future will not cause tax officials to have a biased attitude towards you. According to paragraph 5 of Article 100 of the Tax Code, the act must be delivered to the person being inspected (his representative) within five days from the date specified in the act. Typically, a copy of the act is handed over at the time of its signing, if a representative of the organization came to the inspection in person. However, circumstances may arise when representatives, for various reasons, cannot or do not want to receive it. In such cases, this document must be sent by registered mail with acknowledgment or transmitted in another way that allows you to accurately determine the date of receipt.

Let us note that the confrontation with the tax authorities begins already at the stage of delivering the inspection report. This is where it is necessary to clearly monitor all procedural violations of controllers, since in the end they can be decisive. Thus, if there is a significant violation of the procedure for considering audit materials, as well as the procedure for collecting evidence, the decision of the tax authority may be canceled either in its entirety or in a separate part. At the same time, you should not rush to file claims with the tax authorities on these grounds, since it is always good to have a spare “trump card up your sleeve.” This is explained by the fact that most procedural errors of inspectors can be eliminated during the review of the inspection materials. For this purpose, the head of the inspection (his deputy) may decide to carry out additional tax control measures. But at the stage when the decision on the inspection report has already been made and the inspectors will not be able to correct anything, it is possible to lay out a “wild card”: if the essential conditions of the procedure for considering the act and other materials of tax control measures are violated, this is grounds for canceling the decision by a higher tax authority or court. Such essential conditions include ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the process of reviewing the materials.

In this regard, the date of receipt of the act is of great interest, since this day is the starting point for the beginning of calculating the period for filing objections, the period for considering the case and making a decision on it. That is, all subsequent stages, and in some cases, the outcome of the case, depend on the moment of receipt of the act.

So, if the inspection report is sent by mail, the date of its receipt is considered to be the sixth day from the date of mailing. But, given how “properly” the post office works, organizations may receive the certificate a few days later. This is where confusion begins in the timing of the consideration of the case, which can be beneficial to the person being audited. And in order to understand how to benefit from this situation, it is necessary to recall all the deadlines for the stages of reviewing audit materials, and also consider an example.

Thus, from the moment the organization receives the act, it has 15 working days (in the case of drawing up an act on the discovery of facts, the period for filing objections is 10 working days) to familiarize itself with the act and, in case of disagreement, submit written objections. After this 15-day period, within 10 working days, the inspection report must be reviewed by the head (his deputy) of the inspection and a reasoned decision must be made. At the same time, the tax authority must ensure the opportunity for the taxpayer to participate in the consideration of materials. To do this, he is sent a notice indicating the place, date and exact time when the commission will consider the act. Usually the commission is appointed for the first three days out of ten allotted for making a decision. The decision can be made on any of the ten days, and not specifically on the tenth. That is, it can be accepted on the first day after the period allotted for filing objections. In this case, it is not allowed to make a decision before the required 15 days have expired, since this may be regarded as a significant violation of the terms of the review procedure with all the ensuing consequences.

This is important

When signing the act, be sure to check the date, that is, when it was drawn up. The fact is that controllers often “sin” and indicate in it not the current date, but the past one.

Example

The organization was sent a desk tax audit report by mail on February 1, 2012. According to paragraph 5 of Article 100 of the Tax Code, the act will be considered received on the sixth day from the date of sending, that is, February 8, 2012. In fact, the act was received on February 10, 2012.

Mistakenly believing that the report was received on February 8, 2012, the inspectors calculated the deadline for filing objections as March 1, 2012. Consequently, on March 2, the taxpayer was invited to review the materials, to which he did not appear. The head of the inspection, having established the fact that the taxpayer was notified of the consideration of the case and his failure to appear, decided to carry out this procedure in the absence of representatives of the company. Based on the results of consideration of the materials on the same day, a decision was made on February 2, 2012 to hold the taxpayer accountable.

However, since the act was actually received on February 10, 2012, the last day for filing objections will be March 3. Consequently, consideration of the materials should take place no earlier than March 5 and a decision can be made no earlier than this date. And since it was adopted on March 2, there is a violation of the essential conditions of the procedure for considering the case materials. That is, a higher tax authority or court may conclude that the organization was deprived of the opportunity to fully protect its interests. As a consequence, the decision can be canceled by formal features. In support of this conclusion, there is a letter from the Ministry of Finance of Russia dated July 15, 2010 No. 03-02-07/1-331 and resolutions of the Federal Antimonopoly Service of the Moscow District dated January 23, 2009 No. KA-A40/12029-08 and January 23, 2009. No. KA-A41/ 12979-08.

Objections on the merits

So, the organization or entrepreneur still received the “long-awaited” inspection report. First of all, of course, attention is required to those conclusions of tax authorities with which organizations do not agree due to the fact that the provisions of the legislation on taxes and fees are controversial and the accounting of certain transactions is not regulated by the Tax Code and other legal acts .

To challenge such conclusions, you will need to use the entire possible arsenal, and it is quite wide. To substantiate your position, you should cite not only the norms of the code, but also the explanations of the Ministry of Finance and the Federal Tax Service on similar situations. Although letters from the financial department are not normative legal acts, which is mentioned at every opportunity, the ministry is still higher authority in relation to the tax service. Consequently, tax specialists in their work must adhere to the opinion reflected in the letters.

In addition, support for your position can be found in the recently created service “Explanations of the Federal Tax Service, mandatory for use by tax authorities.” This section contains letters from the Federal Tax Service, a link to which can eliminate all claims of tax officials. The service is posted on the official website of the Federal Tax Service. At the same time, regarding the clarifications of the Ministry of Finance, it should be remembered that they are mandatory for tax authorities only in the case when they are directly sent to the tax service. Both financiers insist on this (letter of the Ministry of Finance of Russia dated August 7, 2007 No. 03-02-07/2-138) and the tax authorities themselves (letter of the Federal Tax Service of Russia dated September 14, 2007 No. ShS-6-18/716@ ). However, it is worth recalling subparagraph 5 of paragraph 1 of Article 32 of the Tax Code, which directly states that inspectors are required to be guided by written explanations of the Ministry of Finance on the application of the legislation of the Russian Federation on taxes and fees.

In addition, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 19, 2006 No. 13322/04 states: the fact of sending a letter to a specific person upon his request does not exclude more broad action explanations given by financiers, if they contain mandatory rules of conduct addressed to an indefinite number of persons and designed for repeated use; therefore, anyone can use them.

You should also rely not only on the most recent letters, but also on those that were relevant during the period under review. And if this does not help to avoid additional taxes, then at least it will eliminate the accrual of penalties. This conclusion follows from the analysis of paragraph 8 of Article 75 and subparagraph 3 of paragraph 1 of Article 111 of the Tax Code. Taxpayers cannot be assessed penalties on the amount of arrears if they arose as a result of the use of the position of departmental officials in their work. Guilt in committing a tax offense under such circumstances is excluded. Arbitration judges share a similar opinion (resolution of the Federal Antimonopoly Service of the North-Western District dated September 18, 2009 in case No. A42-1455/2009).

Another significant source of substantiation of one’s arguments is the established judicial practice on controversial issues, which is positive for taxpayers. Back in the letter of the Federal Tax Service of Russia dated May 11, 2007 No. ШС-6-14/389@ it was stated: if the tax authority believes that the circumstances of the case are similar to those circumstances in which the actions of the tax authority were recognized as illegal, and the tax authority has no grounds If you believe that the consideration of the case in court will end in favor of the tax authority, then it is advisable to take into account the existing judicial and arbitration practice in the region. You can add a specific position of the Presidium of the Supreme Arbitration Court of the Russian Federation. But the mere fact of a court decision not in favor of the tax authority cannot be a basis for excluding from the draft decision on bringing to tax liability for committing a tax offense legal and substantiated conclusions about violations of the legislation on taxes and fees committed by the taxpayer (letter of the Federal Tax Service of Russia dated May 30 2006 No. ШС-6-14/550@).

At the same time, it would not be superfluous to check the audit report for the presence of arithmetic errors when calculating taxes. It is clear, of course, that the figures are repeatedly checked by tax authorities, but no one is immune from mistakes. So if any are discovered, then you need to boldly declare it.

It also makes sense to check the final part of the act, where it is proposed to pay certain amounts of taxes, fees, penalties and fines. This is due to the fact that when assessing additional taxes, inspectors need to take into account the existing amounts of overpayment as of the date of payment of the tax for the period for which it is calculated. And this procedure, as the inspectors admit, is not the simplest, and therefore it will not be difficult to make a mistake. As a result, both penalties and fines will be calculated incorrectly.

Registration of objections

Having studied the inspection report and identified the points with which you do not agree, you can begin to directly draw up the objections themselves. There is no approved form for drawing up objections, so complete freedom of thought is provided here. However, there are still some design guidelines.

This is interesting

Objections can be filed not only to the inspection report as a whole, but also to its individual parts.

First of all, it is necessary to indicate to whom these objections are addressed: in the upper right corner it is reflected in whose name the objections are written, indicating the position and surname. It should also be noted to which tax authority the objections were specifically submitted (full name, address). Next, it is indicated from whom the objections are submitted (full and abbreviated name of the organization, tax identification number, checkpoint and address). If objections are submitted an individual or an individual entrepreneur, then the initials, surname, TIN and registration address are indicated.

“Objections to the cameral (on-site) inspection report No.... dated...”

Although writing objections is to some extent a creative process, it is advisable to start it by stating some facts. To do this, we recommend using the following formulation:

“As a result of a desk (on-site) tax audit, an act No. ... dated ... was drawn up in relation to (indicate the name of the taxpayer). Based on the results of this act, the Company (individual entrepreneur) was asked to pay arrears of taxes (fees) in the amount of..., penalties accrued on it in the amount of..., as well as fines in the amount of.... These proposals are based on the inspection materials and conclusions reflected in the report.

We believe that these conclusions are based on facts that do not reflect the actual circumstances of the case, and also do not correspond to the reality and provisions of the legislation on taxes and fees, for the following reasons.”

Next, the specific point of the audit report with which the taxpayer does not agree is indicated. After this, reasoned and, if possible, documented arguments are given. When presenting your arguments, you should not “overload” the text with quotes from the Tax Code or other laws; it will be enough to make a link to a specific article.

If you need to attach any documents to your objections, you must adhere to the requirements of Article 93 of the Tax Code. That is, it is necessary to submit duly certified copies of these documents. In this case, all documents are folded into a single pile and stitched. Next, you should put numbers on each page, and glue a tag with the following text to the last sheet of the binder on the back side:

“The copy is correct. Numbered and laced on... sheets and dated.”

The tag is sealed with the seal of the organization ( individual entrepreneur), the manager’s signature and date are affixed. It must be remembered that tax authorities do not have the right to demand notarized copies of documents unless this is expressly provided for by law.

At the end of presenting reasonable arguments, it makes sense to put forward your demands. In other words, you need to make a record of the following content:

“Taking into account the above, as well as the documents submitted, we ask you to cancel the tax audit report No. ... dated ... (or those points of the act with which you do not agree), as well as the assessment of taxes in the amount ... and the corresponding amounts of penalties and fines "

After drawing up written objections, they should be submitted to the relevant tax authority that conducted the audit. There is no need to rush to do this in the first days of the allotted fifteen. This is because the sooner you submit them, the more time inspectors will have to study them. Therefore, they will be better prepared to challenge the validity of your arguments. And here there is a little trick.

According to paragraph 8 of Article 6.1 of the Tax Code, an action for which a deadline has been established can be completed within 24 hours last day term. That is, you can send objections to the inspectorate until midnight of the last day allotted for submitting objections. In addition, objections can be sent by registered mail with a list of attachments. In this case, the tax authority will receive them only after a few days. Consequently, he will have less time left before making a decision, and he will also need to study your arguments and take them into account, which will be objectively more difficult to do in a time crunch.

But in such actions there is also reverse side medals. Based on the results of consideration of the case materials, the head of the tax authority may decide on additional tax control measures. In this case, the final decision will be delayed for a month.

This is important

If taxpayers' arguments do not have any justification, they are simply not subject to consideration by inspectors.

Review of inspection materials

As previously mentioned, the tax authority is obliged to notify the taxpayer of the date, place and time of consideration of the audit materials. In this regard, many organizations are asking the question: is it worth going to a commission?

To the Head of the Inspectorate of the Federal Tax Service of Russia No. 20 for Moscow

(Full name of the head of the inspection)

111141, Moscow, Zeleny prosp., 7a Limited Liability Company "Dolomit" (LLC "Dolomit") INN 7720123456 KPP 772001001 111141, Moscow, st. Metallurgov, 49

OBJECTIONS to the desk tax audit report No. 11-05 dated January 20, 2012.

As a result of a desk tax audit carried out in relation to Dolomite LLC on the basis of a tax return for value added tax for the third quarter of 2011, act No. 11-05 dated January 20, 2012 was drawn up. Based on the results of this act, the Company was asked to pay the arrears on taxes (levies) in the amount of ________, penalties accrued on it in the amount of ________, as well as fines in the amount of ________. These proposals are based on the inspection materials and conclusions reflected in the report. We believe that these conclusions are based on facts that do not reflect the actual circumstances of the case, and also do not correspond to the reality and provisions of the legislation on taxes and fees, for the following reasons:

1. The point of the act with which disagreement is expressed is indicated and justified arguments are given.

3. etc.

Taking into account the above, as well as the documents presented, we ask you to cancel the tax audit report No. 11-05 dated January 20, 2012 (or those points of the report with which you do not agree), as well as the assessment of taxes in the amount of ________ and the corresponding amounts of penalties and fines.

Head of Dolomit LLC A.A. Kuznetsov

(signature, date, stamp)

Of course, everyone decides for themselves whether to do this or not. However, when addressing this issue, it will be useful to know the following.

Each taxpayer has the right to participate in the consideration of audit materials personally or through a representative. At the same time, the taxpayer’s failure to appear at the commission is not an obstacle to its conduct. That is, the materials will be considered in the absence of the person being checked.

At the same time, the Tax Code does not prohibit, in the absence of written objections, from presenting your demands orally during the consideration process. It is also not prohibited to present any additional documents, which due to various reasons were not submitted along with written objections, and the tax authority is obliged to accept and study them. In addition, at the commission you have the right to supplement your objections, present additional arguments in your favor that were not previously stated, and also refuse objections altogether. But in this case, it is necessary to ensure that the additional requirements presented are recorded in the protocol for considering the inspection materials, a copy of which should be given to you by the inspectorate. This is due to the fact that your arguments should not be left without consideration and should be taken into account when making a decision.

Among other things, if you have nothing to object to the controllers, then at a minimum you can apply for a reduction in penalties due to the presence of mitigating circumstances. After all, the tax authority, in accordance with paragraph 3 of Article 114 of the Tax Code, in the presence of at least one mitigating circumstance, must reduce the amount of the fine by at least two times.

Thus, it makes sense to visit the commission, even if you have nothing to oppose the inspectors. You can still achieve results, albeit minimal ones.

D. Nacharkin, expert editor

Objection to the tax audit report

Objections can be filed within a month from the date of receipt of the desk or field inspection report in case of disagreement with the facts stated:

• in the tax audit report (clause 6 of Article 100 of the Tax Code of the Russian Federation);
• in the act of discovery of facts indicating tax offenses (clause 5 of Article 101.4 of the Tax Code of the Russian Federation).

This procedure applies when preparing objections to an act that the company received on July 24, 2013 and later (clause 1 of Article 6 of the Law of July 23, 2013 No. 248-FZ, letter of August 15, 2013 No. AS-4-2 /14794).

The period is counted from the day following the day when the inspection report was received (clause 2 of article 6.1 of the Tax Code of the Russian Federation). The deadline for submitting objections expires on the corresponding date of the month following the month of receipt of the desk inspection report (Clause 5, Article 6.1 of the Tax Code of the Russian Federation).

Example

The company received a tax audit report on September 10, 2015. This means that objections must be submitted no later than October 10, 2015.

If the end of the period falls on a month in which there is no corresponding date, then the last day on which objections can be submitted expires on the last day of this month (Clause 5, Article 6.1 of the Tax Code of the Russian Federation).

Example

The company received a tax audit report on August 31, 2015. Objections must be submitted no later than September 30, 2015.

Before July 24, 2013, the period for preparing objections was 15 working days. By the time the new edition of paragraph 6 of Article 100 of the Tax Code of the Russian Federation came into force (August 24, 2013), this period had already expired. Moreover, its extension is not provided for by Law No. 248-FZ.

The company is interested in submitting objections in a timely manner. If you are late, review of materials checks will pass without objection. This means that a decision can be made without taking into account the company’s opinion on controversial

How to make objections

There is no approved form for filing objections to the act. The Tax Code of the Russian Federation does not contain requirements for the format and content of objections to an act. Therefore, draw up objections in any form in two copies. Give one to the inspectorate, keep the second in the organization.

First of all, list in your objections:

• name of the inspectorate to which objections are submitted;
• name of the company (last name, first name and patronymic of the individual entrepreneur);
• TIN and checkpoint (if any);
• registration address, as in (address of permanent registration of the entrepreneur);
• date of submission of objections;
• names of taxes or declarations (calculations) in respect of which the audit was carried out, indicating the period;
• start and end dates of the audit.

Then you need to cite specific points of the act with which the company does not agree. Preferably in order. Written objections can be submitted to the act as a whole or to its individual provisions. At the same time, it is important to list only those claims that are directly related to the conclusions and proposals of the tax inspectorate formulated in the audit report. Even if there were formal violations of the inspection procedure or the act itself contains any shortcomings, there is no need to mention them in objections.

Therefore, if the company’s comments relate only to the inspection procedure, and not to the erroneous position of the inspectors, then there is no need to file objections at all. After all, they are unlikely to influence the inspectors’ decision. Such claims can be raised later when appealing the decision.

The company's arguments for each episode must be convincing. Therefore, your position must be stated as clearly as possible and, if possible, justified by referring to legal norms. Moreover, in your arguments you can only refer to the norms that were in force during the period when the audit was carried out. Additionally, you can provide links to official clarifications and

It is safer to be guided by those letters from the Ministry of Finance that are addressed to your company. A reliable option would be the explanations posted on the official website of the Federal Tax Service of Russia (nalog.ru) for mandatory application. Of course, in the Tax Code of the Russian Federation there is a norm obliging tax specialists to be guided by written explanations of the Ministry of Finance on the application of tax legislation (subclause 5, clause 1, article 32 of the Tax Code of the Russian Federation). However, the ministry itself has repeated more than once: this provision of the Tax Code of the Russian Federation does not require tax officials to be guided by absolutely all explanations. The fact that clarification is mandatory must be stated in the letter itself. But letters addressed to other companies can also play a role as an additional argument.

You can also select examples from judicial practice: solutions Supreme Court, decisions of arbitration courts. Copies of the documents referred to must be attached to the objections.

Objections to the act can be signed either by the company or by another employee by proxy. For example, chief accountant.

How to register applications

The company has the right to attach to the objections any documents confirming the validity of the objections. These papers can be submitted to the inspection separately - within a pre-agreed period (clause 6 of Article 100 of the Tax Code of the Russian Federation).

A copy of each document must be certified separately (letter of the Federal Tax Service of Russia dated October 2, 2012 No. AS-4-2/16459). This still applies to absolutely all documents - both single-page and multi-page.

One-page documents. It is safer to certify each one-page document separately. If the company does not have time to prepare copies, you can ask to extend the deadline for their submission.

Another riskier option is to form a binder from copies of documents and make one certification inscription on it. In such a situation, inspectors may demand that the company pay a fine of 200 rubles. for each incorrectly certified document (clause 1 of Article 126 of the Tax Code of the Russian Federation).

But this fine can be canceled in court, since there is no law for incorrect certification of documents (resolution of the Federal Antimonopoly Service of the Central District of November 1, 2013 in case No. A54-8663/2012).

Multipage documents. The company has the right to certify a copy of a document consisting of several pages with one inscription. It is not necessary to certify each sheet of the copy (letter of the Ministry of Finance of Russia dated August 7, 2014 No. 03-02-RZ/39142, Federal Tax Service of Russia dated September 13, 2012 No. AS-4-2/15309). For example, a copy of a multi-page agreement can be created in the form of a binder. And make one general certification inscription on it. But in this case, all sheets of a multi-page document must be sewn together with thread and numbered.

A certification record can be made in two ways: back side the last sheet in the bundle or on a separate sheet.

On the sheet they make a note “correct” or “copy is correct”, put the date, position of the manager or other employee who certified the copy, as well as his signature with a transcript (clause 3.26 of the State Standard “Unified Documentation Systems”, approved by the resolution of the State Standard of Russia dated 3 March 2003 No. 65-st). In addition, you need to put a stamp (Appendix No. 5 to the order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338).

Where and how to submit objections to a tax audit report

Written objections must be sent to the inspection that conducted the inspection and drew up the report (clause 6 of Article 100 of the Tax Code of the Russian Federation). Objections can be submitted personally to the inspection office or the window for receiving documents by the head of the company or her on the basis of a power of attorney (Articles 27, 29 of the Tax Code of the Russian Federation).

You can also send objections by mail. In this case, the monthly period for filing objections must be counted from the seventh day from the date of sending the registered letter. The fact is that the date of delivery of an act sent by registered mail is considered not the day of its actual receipt, but the sixth day from the moment it was sent by mail (clause 5 of Article 100 of the Tax Code of the Russian Federation).

What are the consequences of filing an objection?

Objections can both help the company - reduce or cancel the fine, and complicate the process of processing the inspection results. Therefore, it is important to anticipate possible consequences in a timely manner.

Additional events

When filing objections, it is important to take into account that this may provoke additional tax control measures (clause 6 of Article 101 of the Tax Code of the Russian Federation). In this case, it becomes necessary to extend the time for reviewing the inspection materials. At the same time, the period allotted for carrying out additional activities should not exceed the total period for reviewing the inspection materials, taking into account its extension - 10 working days and another month.

Accordingly, a decision based on the results of the inspection will be made taking into account new information obtained during additional activities.

Additional activities may include:

• requesting documents from the company or its counterparties;
• interrogation of a witness;
• conducting an examination.

Before the inspectors take out final decision, the company has the right to familiarize itself with all inspection materials, including the results of additional materials (clause 2 of article 101 of the Tax Code of the Russian Federation).

From July 24, 2013, there is a specific deadline for this: no later than two days before the review. The company is required to submit an application to familiarize itself with the materials. If such a statement is not submitted in a timely manner, inspectors may not take the initiative.

Of course, the Federal Tax Service of Russia, in its explanations, advises its subordinates to familiarize the company with the materials of additional events in any case. After all, otherwise it will be able to cancel the decision made based on the results of the inspection on formal grounds.

At the same time, no special period has been established for the company to prepare its arguments (Article 101 of the Tax Code of the Russian Federation). Tax officials can agree with the company on the time it will take to file objections. And then, after reviewing the inspection materials, the inspector will make a note in the protocol that the organization had no objections regarding this time (letter dated August 22, 2014 No. SA-4-7/16692 - excerpts from the document, paragraph 38 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).

For the company, this is because sometimes inspectors do not even invite companies to familiarize themselves with the materials of additional events. And sometimes they only give a couple of hours to study several hundred pages, effectively depriving the company of the opportunity to study all the details and present objections.

The clarification of the Federal Tax Service of Russia, firstly, motivates local inspectors to always transfer the materials of both the inspection and the additional event to the company for review. Otherwise, the decision they make may be reversed.

Secondly, the company has the opportunity to agree on the time it will need to prepare objections. This means that you can carefully study all the inspector’s findings and try to fight off some of the additional charges and fines.

Statute of limitations

Even if violations are identified, the company cannot be held accountable under Article 122 of the Tax Code of the Russian Federation after the statute of limitations has expired. In other words, if three years have elapsed from the next day after the end of the tax period (during which the violation occurred) until the decision on bringing to responsibility is made (Article 113 of the Tax Code of the Russian Federation).

Thus, carrying out additional activities extends the inspection period and brings the company closer to the end of the statute of limitations. This means it increases the chances of having the fine cancelled.

Moreover, in the case of unpaid taxes, this period begins to count from the end of the corresponding tax period in which the company did not pay the tax (clause 15 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).

Specialists from the Federal Tax Service of Russia explain that it is necessary to take into account not the period for which the tax is paid, but the year or quarter in which the tax had to actually be paid (letter dated August 22, 2014 No. SA-4-7/16692).

Example

The company underestimated for 2013, the payment deadline for which was March 28, 2014. Tax period in this case equal to a year. This means that the limitation period will begin to count from January 1, 2015.

That is, inspectors will not calculate the statute of limitations from the moment when the company actually violated the tax procedure. But only after the expiration of the tax period in which this violation was committed.

Decision based on inspection results

Depending on the conclusions made, the head of the inspection (or his deputy) decides on the results of the inspection:

• or a decision to hold an organization accountable for committing a tax offense;
• or a decision to refuse to hold the organization liable.

This follows from the provisions of paragraph 7 of Article 101 of the Tax Code of the Russian Federation. The forms of these decisions were approved by order of the Federal Tax Service of Russia dated May 31, 2007 No. MM-3-06/338.

The decision to prosecute must indicate:

• circumstances tax violation committed by the organization. In this case, these circumstances must be qualified as they were established by the audit, that is, in the same way as they are reflected in the tax audit report;
• documents and information confirming the identified circumstances;
• a decision to hold the organization accountable for specific violations, indicating articles of the Tax Code of the Russian Federation;
• the amount of tax arrears, the amount of fines and

This is stated in paragraph 1 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation.

The decision to refuse to prosecute must indicate the circumstances on the basis of which it was made. At the same time, it may reflect the amounts of arrears identified during the audit and the corresponding amounts of penalties. This follows from the provisions of paragraph 2 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation.

In addition, both types of final audit decisions must reflect the following data:

• the period for appealing the decision;
• the procedure for appealing a decision to a higher tax authority;
• name and address of the tax authority that is authorized to consider cases of appealing the decision;
• other information necessary, in the opinion of the head of the inspection (his deputy).

This is stated in paragraph 3 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation.

If during a tax audit, inspectors discover an amount of over-refunded tax, then in the final decisions they will recognize it as arrears. The date of occurrence of this arrears will be the day when the organization received the money (upon return) or the day when the inspectorate decided to offset the tax.

This is stated in paragraph 4 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation.

Within five working days after the decision is made based on the results of the inspection, it must be handed over to the organization (paragraph 1, paragraph 9, article 101, paragraph 6, article 6.1 of the Tax Code of the Russian Federation). The countdown of the period begins on the next day after the decision is signed (clause 2 of article 6.1 of the Tax Code of the Russian Federation). Let's give an example.

Example

The inspection decision was made on March 6, 2015 (Friday), the Company must receive it no later than March 16, 2015.

By general rule the inspection decision comes into force one month from the date of its delivery to the organization (clause 9 of article 101 of the Tax Code of the Russian Federation). But if during this month the organization appeals it on appeal, then the date of entry into force will depend on what decision the higher tax authority makes.

If the decision of the tax inspectorate is not canceled, it will come into force from the date of its approval by a higher authority.

If the decision of the tax inspectorate is canceled (in whole or in part), it will come into force (taking into account the changes made) from the date of the corresponding decision of a higher authority.

If the appeal is rejected, the decision of the tax inspectorate will come into force from the date of the decision of the higher authority, but not earlier than the month period allotted for filing the appeal has expired.

This procedure is established by Article 101.2 of the Tax Code of the Russian Federation.

After the decision on the inspection comes into force, the inspection, within 20 working days, will send to the organization a demand for payment of taxes, penalties and fines that were additionally accrued based on the results of the inspection (clause 6 of article 6.1, clause 2 of article 70 of the Tax Code RF).

The organization is obliged to fulfill this requirement within eight working days after its receipt, unless a longer period is established in the requirement itself (paragraph 4, paragraph 4, article 69, paragraph 6, article 6.1 of the Tax Code of the Russian Federation).