41. Rights of tax authorities (beginning) Tax authorities have the right to: – demand from the taxpayer or tax agent documents in the forms established by state bodies and local governments, which serve as the basis for calculation and payment

42. Rights of tax authorities (end) - to summon taxpayers, fee payers, tax agents on the basis of a written notification to the tax authorities to give explanations in connection with their payment (transfer) of taxes or in connection with tax

43. Responsibilities of tax authorities Tax authorities are assigned responsibilities, the fulfillment of which serves as a guarantee of the implementation of the rights of taxpayers. The main responsibilities are as follows: – comply with the legislation on taxes and fees; – exercise control over

46. ​​The obligation of bodies, institutions, organizations and officials to report to the tax authorities information related to the registration of taxpayers (beginning) 1. The judicial authorities that issue licenses for the right of notarial activity and empower notaries,

47. The obligation of bodies, institutions, organizations and officials to report to the tax authorities information related to the registration of taxpayers (end) 6. Bodies (institutions) authorized to perform notarial acts, and notaries involved in private

1. The economic essence of taxes Taxes are a source of generating state budget revenues, therefore they are inextricably linked with the functioning of the state itself and, accordingly, directly depend on the level of development of the state itself. Through

3. The rights of tax authorities to conduct inspections. A tax inspector sent to inspect trade objects is required to have an inspection resolution signed by the head of the tax authority. If the tax inspector does not have a resolution to

6. Requirements of tax authorities for the use of cash registers You must remember for the rest of your adult life that all issues of regulation - the acquisition and use of cash registers are considered in Law No. 54-FZ of May 22, 2003 “On the use of cash register equipment in

Lermontov Yuri Mikhailovich

Consultant of the Ministry of Finance of the Russian Federation. Tax specialist.

Born on October 12, 1981 in Moscow. In 2000 he graduated from the Faculty of Law of the International Institute of Economics and Law, in 2003 - from the Faculty of Economics of the Financial Academy under the Government of the Russian Federation. Since 2001 he has been working in the system of financial and tax authorities.

The Tax Code of the Russian Federation provides for the right of each taxpayer to appeal acts of tax authorities, actions or inactions of their officials to a higher tax authority (superior official) or to court.

The legislation provides for pre-trial and judicial procedures for appealing acts of tax authorities.

Currently, taxpayers rarely use the right to appeal acts of tax authorities, actions or inactions of their officials to a higher tax authority, but immediately file lawsuits in the courts. Although the pre-trial procedure, according to the author of the article, has a number of undeniable advantages:

a complaint to a higher authority is submitted in free form;

the complaint cannot be left without action;

the grounds for returning the complaint are minimal;

There is no state fee to pay for filing a complaint.

Only those acts of tax authorities, actions or inactions of their officials that violate the rights of the taxpayer are subject to appeal.

The consideration of disputes in a pre-trial manner is carried out in accordance with the Rules for the consideration of disputes in a pre-trial procedure, approved by Order of the Ministry of Taxes and Taxes of Russia of August 17, 2001 No. BG-3-14/290.

An appeal is carried out by submitting a complaint to a higher-ranking official of the tax authority whose officials committed the actions being appealed, or to a higher-ranking tax authority (an official of a higher-level tax authority). In this case, the complaint is filed within three months from the day the taxpayer learned or should have learned about the violation of his rights. This period can be restored if a higher official (higher tax authority) recognizes the reason for absence as valid.

The taxpayer's complaint is considered by a higher tax authority no later than one month from the date of its receipt by the tax authority.

There are a number of cases when a complaint will not be considered by the tax authority, namely:

a) missing the deadline for filing a complaint under Art. 139 Tax Code of the Russian Federation;

b) lack of instructions on the subject of appeal and substantiation of the stated requirements;

c) filing a complaint by a person who does not have the authority to act on behalf of the taxpayer (Articles 26 - 29 of the Tax Code of the Russian Federation);

d) if there is documented information about the acceptance of the complaint for consideration by a higher tax authority;

e) receipt by the tax authority of information about the entry into force of a court decision on the issues set out in the complaint.

The following documents may be attached to the complaint:

an act of a non-normative nature, which, in the opinion of the applicant, violates his rights;

primary documents confirming the applicant’s position;

other documents containing information about circumstances relevant to the consideration of the complaint.

Filing a complaint to a higher tax authority does not suspend the execution of the act or action being appealed.

If the tax authority considering the complaint has sufficient grounds to believe that the act or action being appealed does not comply with the legislation of the Russian Federation, then the said tax authority has the right to fully or partially suspend the execution of the act or action being appealed. The decision to suspend the execution of an act (action) is made by the head of the tax authority that adopted such an act, or by a higher tax authority in exceptional cases if there are sufficient documented grounds.

So the complaint should:

be filed by a person authorized to act on behalf of the taxpayer;

be submitted within three months (according to Article 139 of the Tax Code of the Russian Federation).

If at least one of these conditions is not met, the tax authority has the right to refuse the taxpayer to consider the complaint. The person who filed the complaint is informed of the refusal within 10 days from the date of its receipt by the tax authority. In this case, the reasons for refusal are indicated.

Based on the results of consideration of the complaint, the higher tax authority (higher official) has the right:

leave the complaint without satisfaction;

cancel the tax authority’s act and order an additional audit;

cancel the decision and terminate the tax violation case;

change the decision or make a new decision.

A decision on the complaint is made within one month from the date of its receipt by the tax authority.

The applicant is notified of the decision within three days from the date of its adoption.

When carrying out tax control activities, it is not permitted to cause unlawful harm to the taxpayer or to the property in their possession, use or disposal. Losses are subject to compensation in full, including lost profits (lost income).

The necessary conditions under which compensation for losses is made are:

presence of losses;

unlawful actions of tax authorities and their officials during tax control measures that caused losses;

a cause-and-effect relationship between the losses caused and unlawful actions, inaction of tax authorities, actions or inaction of officials of these authorities.

Damages caused are compensated from the federal budget.

During a desk audit of the taxpayer, the tax authority decided to bring tax liability under clause 1 of Art. 122 of the Tax Code of the Russian Federation, for incomplete payment of advance payments as a result of incorrect calculation of advance payments for the unified social tax, in terms of enrollment in the Pension Fund. The arrears and corresponding penalties were paid by the taxpayer voluntarily. The taxpayer did not pay penalties because he believes that bringing to tax liability under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation is unlawful, since in accordance with Art. 243 of the Tax Code of the Russian Federation, the deadline for paying the difference between advance payments paid for the tax period and the amount of tax payable in accordance with the tax return is no later than April 15 of the year following the expired tax period.

Here is a sample complaint against a tax authority’s decision to impose tax liability.

To the head

Office of the Federal Tax Service of Russia in Moscow

From LLC "VASILEK"

INN 0111111111

Location:

101000 Moscow, st. Myasnitskaya, 12

Complaint against the decision of March 15, 2005 N 100/5 on bringing VASILEK LLC, Moscow, to tax liability on May 20, 2005.

On February 19, 2005, VASILEK LLC submitted to the Inspectorate of the Federal Tax Service of Russia a calculation of advance payments for the unified social tax. The inspectorate carried out a desk audit of the calculation, as a result of which a decision dated March 15, 2005 No. 100/5 was made to bring VASILEK LLC to tax liability under clause 1 of Art. 122 of the Tax Code of the Russian Federation.

VASILEK LLC does not agree with this decision for the following reasons.

The tax period for the unified social tax is the calendar year, the reporting periods are the first quarter, six months and nine months of the calendar year.

The calculation procedure and deadlines for payment of this tax are regulated by Art. 243 Tax Code of the Russian Federation. Paragraph 3 of this article provides that at the end of the reporting period, taxpayers make calculations of advance tax payments based on the tax base calculated from the beginning of the calendar year, including the last reporting period, and the corresponding tax rate. The amount of advance tax payment payable for the reporting period is determined taking into account previously paid amounts of advance payments.

Advance payments are made monthly, but no later than the 15th day of the month following the reporting month.

The difference between the amounts of advance payments paid for the tax period and the amount of tax payable in accordance with the tax return must be paid no later than 15 days from the day established for filing the tax return for the tax period, which is submitted no later than March 30 of the year following for the expired tax period.

VASILEK LLC was brought to tax liability under clause 1 of Art. 122 of the Tax Code of the Russian Federation for incomplete payment of tax - May 15, 2005, i.e. before the expiration of the tax period and the period when the company has the right to pay the difference between the advance payments and the data of the declaration, the deadline for filing which has not yet arrived.

The illegality of holding a company liable is confirmed by the explanations of the Supreme Arbitration Court of the Russian Federation, given in Resolution No. 5 of February 28, 2001 “On some issues of application of part one of the Tax Code of the Russian Federation.” According to the explanation, non-payment or incomplete payment of tax (responsibility for which applies under Article 122 of the Tax Code of the Russian Federation) means that the taxpayer has a debt to the relevant budget for the payment of a specific tax as a result of actions or inaction. Based on the meaning of Art. 243 of the Tax Code of the Russian Federation, a taxpayer may incur debt on the unified social tax only after April 15 of the calendar year following the reporting year. The taxpayer paid the incorrectly calculated advance payments before the end of the tax period and the deadline for submitting the tax return.

Furthermore, in accordance with Art. 108 of the Tax Code of the Russian Federation, no one can be held accountable for committing a tax offense except on the grounds and in the manner provided for by the Code.

Article 122 of the Tax Code of the Russian Federation establishes that liability arises only in the case of non-payment or incomplete payment of amounts of a specific tax, and not advance payments.

Thus, the tax authority unjustifiably brought VASILEK LLC to tax liability under clause 1 of Art. 122 of the Tax Code of the Russian Federation.

Based on the above, I ask you to make a decision to refuse to prosecute for committing a tax offense due to the lack of grounds for such prosecution.

General Director of VASILEK LLC

The commented article establishes the unconditional right to appeal against non-normative acts of tax authorities, as well as actions (inactions) of tax authority officials.

The right to appeal can be exercised by any person only if he complies with the procedure for appeal established by law. The procedure consists of the sequence of actions to exercise your right to appeal.

Paragraph 1 of Article 137 of the Tax Code of the Russian Federation provides any persons with the right to appeal:

Acts of a non-normative nature;

Actions or inactions of tax authorities.

A condition for exercising the right to appeal is the presence of a person’s subjective opinion that specific acts of tax authorities, actions or inactions of tax authorities officials violate the rights granted to him.

When applying Article 137 of the Tax Code of the Russian Federation, it is necessary to proceed from the fact that an act of a non-normative nature, which can be challenged in an arbitration court by presenting a demand for recognition of the act as invalid, is understood as a document of any name (demand, decision, resolution, letter, etc.), signed by the head (deputy head) of the tax authority and relating to a specific taxpayer.

When interpreting these articles, it should be taken into account that the concept of “act” is used in them in a different meaning than in Articles 100, 101.1 (clause 1) of the Tax Code of the Russian Federation.

When applying Articles 137 and 138 of the Tax Code of the Russian Federation, it is necessary to proceed from the fact that an act of a non-normative nature, which can be challenged in an arbitration court by presenting a demand for recognition of the act as invalid, is understood as a document of any name (demand, decision, resolution, letter, etc.) , signed by the head (deputy head) of the tax authority and relating to a specific taxpayer.

In addition, since the Tax Code of the Russian Federation does not establish otherwise, he has the right to appeal to the court the demand for payment of tax, penalties and the demand for payment of tax sanctions, regardless of whether he challenged the decision of the tax authority on the basis of which the corresponding demand was made (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5).

“The regulatory provisions contained in Articles 137 and 138 of the Tax Code of the Russian Federation, in conjunction with the provisions of Articles 29 and 198 of the Arbitration Procedure Code of the Russian Federation, do not exclude the appeal to the arbitration court of decisions (acts of a non-regulatory nature) of any officials of tax authorities and, accordingly, the powers of the arbitration court at the taxpayer’s request, check their legality and validity.”

It should be remembered that from January 1, 2009, the pre-trial procedure for appealing a decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense will become mandatory in accordance with clause 5 of Article 101.2 of the Tax Code of the Russian Federation (clause 16 of Article 7 of the Federal Law No. 137-FZ).

Tax authorities in the Russian Federation are the federal executive body authorized for control and supervision in the field of taxes and fees (FTS) and its territorial divisions.

The second part of Article 137 of the Tax Code of the Russian Federation provides for the possibility of appealing against regulatory legal acts of tax authorities, that is, acts that create, amend or abolish certain rules of law.

The grounds for appealing regulatory legal acts may be different:

§ their inconsistency with the Constitution of the Russian Federation;

§ federal constitutional laws;

§ federal laws;

§ regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation.

Depending on the grounds for the appeal, its procedure is established. Regulatory acts of tax authorities can be appealed in court through:

§ constitutional;

§ administrative;

§ civil proceedings.

Appeals by taxpayers or tax agents against acts, actions or inactions of tax authorities arise from the right of citizens guaranteed by the Constitution of the Russian Federation to judicial protection of their violated rights. In accordance with the Constitution of the Russian Federation, decisions and actions (or inaction) of state authorities, local governments and officials can be appealed to the court.

Based on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on April 4, 1950), a constitutional norm is formulated and, accordingly, this right cannot be limited in any way:

Every citizen has the right to a fair and public hearing for the protection of his civil rights;

Every citizen is considered innocent until his guilt is established legally.

The constitutional human right also applies to legal entities.

On the right of a taxpayer to appeal acts of tax authorities, as well as actions (inaction) of their officials, also see Article 21 of the Tax Code of the Russian Federation.

The taxpayer is legally given the right to choose the procedure for appealing against violated rights. General issues of the procedure for such an appeal are regulated by the commented article.

The constitutional guarantee of the right to judicial protection, in accordance with the generally recognized principles and standards of international law, allows you to simultaneously appeal unlawful actions or inactions in the opinion of the taxpayer, as well as acts of tax authorities, both to a higher body (superior official) and to the court; moreover, it does not exclude the right to subsequently file a similar complaint in a court of competent jurisdiction.

At the same time, the absence of such guarantees for tax officials and only their formal obligation to comply with the legislation of the Russian Federation often tip the scales towards departmental interests, thus calling into question the objectivity of consideration of a complaint within the administrative process.

The concepts of “superior tax authority” and “superior official” used in the commented article are not identical; for example, the actions or inactions of a tax inspector are appealed not to a superior tax authority, but to its head, that is, a superior official.

Note!

According to paragraph 5 of Article 101.2 of the Tax Code of the Russian Federation, from January 1, 2009, a decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense can be appealed in court only after appealing this decision to a higher tax authority.

According to paragraph 3 of Article 9 of the Tax Code of the Russian Federation, tax authorities are the federal executive body authorized for control and supervision in the field of taxes and fees, and its territorial bodies. Therefore, applications for invalidation of normative legal acts regulating tax relations adopted by other bodies can be considered by arbitration courts only in cases where the possibility of considering such applications is provided for by other federal laws (clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 80) (Appendix No. 124).

Paragraph 2 of Article 138 of the Tax Code of the Russian Federation establishes the jurisdiction of certain complaints to the courts of relevant jurisdiction.

This jurisdiction depends on the status of the person appealing acts (including regulations) of tax authorities, actions or inactions of their officials. So, if an organization or individual entrepreneur appeals against them, then the statement of claim is filed with the arbitration court. The procedure for filing a claim is determined by the Arbitration Procedure Code of the Russian Federation.

The statement of claim is submitted to the arbitration court in the manner established by Chapter 14 of the Arbitration Procedure Code of the Russian Federation. The statement of claim is submitted in writing, indicating the necessary details established by Article 125 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6).

The arbitration court issues a ruling on acceptance of the statement of claim, which initiates proceedings in the case.

The determination specifies the preparation of the case for trial, the actions that must be performed by the persons participating in the case, and the timing of their implementation.

Copies of the ruling on acceptance of the statement of claim for proceedings by the arbitration court are sent to the persons participating in the case no later than the next day after the day it is issued.

It should be taken into account that the statement of claim may be left without progress (Article 128 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6)):

The arbitration court, having established, when considering the issue of accepting the statement of claim for proceedings, that it was filed in violation of the requirements established by Articles 125 and 126 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6), issues a ruling to leave the statement without progress.

In the ruling, the arbitration court indicates the grounds for leaving the statement of claim without progress and the period during which the plaintiff must eliminate the circumstances that served as the basis for leaving the statement of claim without progress.

A copy of the ruling on leaving the statement of claim without progress is sent to the plaintiff no later than the next day after the day it is issued.

If the circumstances that served as the basis for leaving the statement of claim without progress are eliminated within the period established in the ruling of the arbitration court, the application is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court.

If the circumstances specified in Part 2 of Article 128 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6) are not eliminated within the time period established in the ruling, the arbitration court returns the statement of claim and the documents attached to it in the manner prescribed by Article 129 of the Arbitration Procedure Code of the Russian Federation.

In accordance with Article 129 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6), the arbitration court returns the statement of claim if, when considering the issue of accepting the application, it establishes that:

1) the case is not within the jurisdiction of this arbitration court;

2) one statement of claim combines several claims against one or more defendants, if these claims are not interconnected;

3) before the ruling on the acceptance of the statement of claim for the proceedings of the arbitration court, the plaintiff received a request to return the statement;

4) the circumstances that served as the basis for leaving the statement of claim without progress have not been eliminated within the period established in the court ruling.

The arbitration court also returns the statement of claim if the request for a deferment, installment payment of the state duty, or a reduction in its amount is rejected.

The arbitration court issues a ruling on the return of the statement of claim.

The determination indicates the grounds for returning the application and resolves the issue of returning the state duty from the federal budget.

A copy of the ruling on the return of the statement of claim is sent to the plaintiff no later than the next day after the day the ruling was issued or after the expiration of the period established by the court to eliminate the circumstances that served as the basis for leaving the statement without progress, along with the statement and the documents attached to it.

The arbitration court's ruling to return the statement of claim may be appealed.

In case of cancellation of the ruling, the statement of claim is considered filed on the day of the initial application to the arbitration court.

The return of the statement of claim does not prevent the repeated filing of the same claim with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for its return.

Individuals who are not individual entrepreneurs must appeal against acts (including regulations) of tax authorities, actions or inactions of their officials, by filing a statement of claim in a court of general jurisdiction.

The Code of Civil Procedure of the Russian Federation (Chapter 25) regulates issues related to filing complaints against the actions of government bodies and officials that violate the rights and freedoms of citizens to courts of general jurisdiction. In accordance with Article 254 of the Code of Civil Procedure of the Russian Federation (Appendix No. 5), citizens and organizations have the right to challenge in court a decision, action (inaction) of a government body or official if they believe that their rights and freedoms have been violated. Citizens and organizations have the right to appeal directly to the court or to a higher authority in the order of subordination, to an official. The application is submitted to the court with jurisdiction established by Articles 24 - 27 of the Code of Civil Procedure of the Russian Federation (Appendix No. 5). An application may be submitted by a citizen to the court at the place of his residence or at the location of the government body, official, whose decision or action (inaction) is being challenged.

For citizens to file a claim in court, in accordance with Article 256 of the Code of Civil Procedure of the Russian Federation, the following deadlines are established:

"1. A citizen has the right to apply to the court within three months from the day he became aware of a violation of his rights and freedoms.

2. Missing the three-month deadline for filing an application with the court is not grounds for the court to refuse to accept the application. The reasons for missing a deadline are clarified at a preliminary court hearing or court hearing and may be grounds for refusing to satisfy the application.”

The court issues a ruling on accepting the application for proceedings, on the basis of which a civil case is initiated in the court of first instance. In this case, the court, if there are sufficient grounds, has the right to suspend the effect of the contested decision until the court decision enters into legal force.

An application to challenge a decision, action (inaction) of tax authorities and their officials is considered by the court within ten days from the date of its receipt by the court.

Recognition of a decision to impose tax liability as illegal entails the invalidity of all other acts of tax authorities adopted on its basis.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 4, 2005 No. 7445/05 (Appendix No. 195) clarified that the taxpayer has the right to challenge the decision adopted by the tax authority, despite the fact that he has the opportunity to challenge in court specific actions of the tax authorities based on the provisions such an act.

Paragraph 3 of this article provides the taxpayer with the opportunity to suspend the execution of the acts being appealed or the actions of the tax authorities by sending an application to a higher tax authority or to the court.

Article 139 of the Tax Code of the Russian Federation establishes a three-month period for filing a complaint in the order of subordination. This period begins from the day when the taxpayer learned or should have learned about the violation of his rights.

The commented article establishes two types of complaints: an appeal and a simple complaint. In this case, the appeal must be filed before the entry into force of the appealed decision, and the complaint must be filed after the entry into force of the appealed decision within one year from the date of the appealed decision.

A complaint against a decision on an administrative offense may be filed within ten days from the date of the decision.

A complaint against an act of a tax authority, actions or inaction of its official is submitted, respectively, to a higher tax authority or to a higher official of this body.

Taxpayer complaints are considered:

For acts of a non-normative nature, unlawful action or inaction of tax authorities - by a higher tax authority;

Actions or inactions of officials of a tax authority - by a superior official of this or a higher tax authority;

Actions or inaction of officials of a tax authority by issuing an act of a non-normative nature - by a higher tax authority.

Complaint against the decision on bringing to administrative liability:

The decisions made by the tax authority in relation to organizations are considered by a higher tax authority;

The decision made by a tax authority official in relation to an individual is considered by a superior official of the given or higher tax authority.

An appeal against the relevant decision of the tax authority is submitted to the tax authority that made this decision, which is obliged to send it with all materials to a higher tax authority within three days from the date of receipt of the said complaint.

The complaint must be submitted in writing.

Documents that may be attached to the complaint:

An act of a non-normative nature, which, in the opinion of the applicant, violates his rights (resolution on bringing to administrative responsibility);

Tax audit report;

Primary documents confirming the applicant’s position;

Other documents containing information about circumstances relevant to the consideration of the complaint.

Attaching supporting documents to the complaint is a right, not an obligation, of the person filing the complaint. When calculating the established three-month period, it is necessary to be guided by Articles 190 -194 of the Civil Code of the Russian Federation (Appendix No. 2).

In contrast to the judicial procedure for appealing acts of a tax authority, actions or inaction of its official, regulated by the relevant procedural codes, appealing these acts (actions, inaction), the procedure and deadlines for filing a complaint with a higher tax authority or a higher official, established by this article, is the same for everyone.

If the deadline for filing a complaint is missed, a higher official of the tax authority or a higher tax authority has the right to restore the deadline for filing a complaint missed for good reason at the request of the person filing the complaint. Valid reasons include temporary disability, illness, natural disasters and other similar circumstances that could prevent the interested party from filing a complaint in a timely manner.

The general requirement for a complaint during a judicial appeal, when submitted to a higher authority or a superior person, is its written form. The filed complaint must be signed by the taxpayer, as this requirement must be complied with as a general rule.

The complaint filed must be addressed to the relevant tax authority or official whose competence is responsible for its consideration.

The Tax Code of the Russian Federation provides the taxpayer with the right to withdraw a filed complaint in the prescribed manner. In this case, the condition established by law for the withdrawal of a complaint must be maintained. An application for revocation must be submitted to a higher tax authority (higher official) before it makes an appropriate decision on this complaint. An application to withdraw a complaint must be submitted in writing.

Repeated filing of a complaint on the same grounds and to the same tax authority or to the same official if the complaint was previously withdrawn is not allowed.

Conclusion: if a repeated complaint is filed with the same tax authority, the same official is allowed either on other grounds, or the repeated complaint is filed with a higher tax authority or a higher official within three months from the day the taxpayer or other obligated person found out or should have learned about the violation of their rights. The provision of the commented article on the possibility of reinstating the deadline for filing a complaint missed for good reasons applies to re-filing a complaint.

By Order of the Ministry of Taxes and Taxes of the Russian Federation dated August 17, 2001 No. BG-3-14/290 (Appendix No. 59), the Rules for the consideration of disputes in pre-trial proceedings were approved.

The regulations for pre-trial consideration of tax disputes establish the procedure for consideration by tax authorities of complaints:

Taxpayers or tax agents against acts of tax authorities of a non-regulatory nature, actions or inactions of their officials (with the exception of objections, the submission of which is provided for in paragraph 5 of Article 100 of the Tax Code of the Russian Federation);

Organizations and individuals in case of disagreement with bringing to administrative liability in connection with violations of legal requirements on the use of cash registers and cash handling;

Taxpayers against acts of tax authorities of a non-regulatory nature, actions or inactions of their officials in connection with the application of legislation in the field of production and circulation of ethyl alcohol, alcohol-containing, alcoholic, low-alcohol, non-alcoholic and tobacco products;

Individuals who are officials of an organization in connection with bringing them to administrative liability as a result of bringing the organization to justice for committing a tax offense.

The complaint is considered by a higher tax authority (higher official) within one month from the date of its receipt.

The one-month period for consideration of a complaint begins to expire from the moment the complaint is officially registered, according to existing rules, with a higher tax authority or with a higher official.

This period may be extended by the head (deputy head) of the tax authority, but not more than by 15 days. The decision made is notified in writing to the person who filed the complaint within three days from the date of its adoption. The basis for extending the deadline is the need to obtain documents (information) necessary to consider the complaint from lower tax authorities

A complaint against a decision on an administrative offense is considered within ten days from the date of its receipt by the tax authority.

In accordance with paragraph 4 of Article 139 of the Tax Code of the Russian Federation, the taxpayer has the right, before a decision is made on this complaint, to withdraw it on the basis of a written application.

All complaints received by the relevant tax authorities are sent to legal departments, which are responsible for considering complaints and preparing decisions.

The complaint must be sent to the lower tax authority for a conclusion. The request may contain an indication of the need to provide copies of documents necessary for consideration of the complaint.

The period for submitting a conclusion cannot exceed five working days from the date of receipt of the complaint about the conclusion. A higher tax authority (superior official) has the right to set a shorter period for submitting an opinion.

Complaints from taxpayers are considered taking into account judicial and arbitration practice on the issues under consideration.

The complaint is not subject to consideration in the following cases:

a) missing the deadline for filing a complaint, in accordance with Article 139 of the Tax Code of the Russian Federation;

b) lack of instructions on the subject of appeal and substantiation of the stated requirements;

c) filing a complaint by a person who does not have the authority to act on behalf of the taxpayer (Articles 26, 27, 28 and 29 of the Tax Code of the Russian Federation);

d) if there is documented information about the acceptance of the complaint for consideration by a higher tax authority (official);

e) the tax authority receives information about the entry into force of a court decision on the issues set out in the complaint.

Paragraph 2 of Article 140 of the Tax Code of the Russian Federation establishes the legal consequences of considering a complaint.

Having considered a complaint against the actions or inaction of tax authorities, a higher tax authority (superior official) has the right to make a decision on the merits, that is:

To establish a violation of the rights of the legally protected interests of the taxpayer or other obligated person who filed the complaint, and therefore to take measures to eliminate them;

Bring the perpetrators to justice, therefore, leave the complaint without satisfaction.

Federal Law No. 137-FZ clause 2 of this article was supplemented. It indicates the legal consequences of considering the appeal. Based on the results of consideration of such a complaint, the tax authority has the right:

§ leave the decision of the tax authority unchanged and the complaint not satisfied;

§ cancel or change the decision of the tax authority in whole or in part and make a new decision on the case;

§ cancel the decision of the tax authority and terminate the proceedings.

A repeated decision by the same tax authority on a taxpayer’s complaint on the same subject and basis of the Tax Code of the Russian Federation is not provided for.

The decision of a higher tax authority on a taxpayer’s complaint against the tax authority’s act must necessarily contain an introductory, motivational and operative part. The operative part of the decision is made in the form provided for in paragraph 2 of Article 140 of the Tax Code of the Russian Federation (Letter of the Ministry of Taxes and Taxes of the Russian Federation dated April 5, 2001 No. VP-6-18/274@) (Appendix No. 111).

The norm of paragraph 1 of the commented article is based on the presumption of legality of acts and actions of tax authorities, which must be carried out in strict accordance with the legislation of the Russian Federation: filing a complaint with a higher tax authority (superior official) does not suspend the execution of the act or action being appealed, except in cases provided for Tax Code of the Russian Federation.

At the same time, paragraph 2 gives the tax authority the right, in whole or in part, when considering a complaint, to suspend the execution of the act or action being appealed, if the act or action being appealed does not comply with the legislation of the Russian Federation.

According to paragraph 4 of Article 101.2, at the request of a person appealing a decision of a tax authority, a higher tax authority has the right to suspend the execution of the appealed decision.

The decision to suspend the execution of an act or action is made by the head of the tax authority that adopted such an act, or by a higher tax authority.

Let us note the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Information Letter No. 83 dated August 13, 2004 (Appendix No. 126), which states that the suspension of acts, decisions of state and other regulatory bodies is unacceptable if there is reason to believe that the suspension of the act, decision may upset the balance of the interests of the applicant and the interests of third parties, public interests, and may also lead to the loss of the possibility of executing the contested act or decision in case of refusal to satisfy the applicant’s claim on the merits of the dispute.

Article 142 of the Tax Code of the Russian Federation clarifies the provisions of paragraph 2 of Article 138 of the Tax Code of the Russian Federation, which regulates procedural issues of filing a complaint against acts of tax authorities in court, which are considered and resolved in the manner established by civil procedural, arbitration procedural legislation and federal laws.

Article 46 of the Constitution of the Russian Federation guarantees everyone judicial protection of their rights and freedoms. Decisions and actions (or inaction) of state authorities, local governments, public associations and officials can be appealed to the court.

Complaints or statements of claim against acts of tax authorities, actions or inactions of their officials are filed in accordance with the jurisdiction of disputes to a particular court.

Thus, complaints against acts (including regulations) of tax authorities, actions or inactions of their officials, filed with arbitration courts, are considered in the manner established by the arbitration procedural legislation (APC of the Russian Federation).

Complaints against acts (including regulations) of tax authorities, actions or inactions of their officials, filed in courts of general jurisdiction, are considered in the manner established by civil procedural legislation and the Law of the Russian Federation of April 27, 1993 No. 4866-1 “On appeal in court of actions and decisions that violate the rights and freedoms of citizens” (Appendix No. 34).

Actions (decisions) of tax authorities and their officials that can be appealed to the court include collegial and individual actions (decisions), including the presentation of official information that became the basis for taking actions (making decisions), as a result of which:

The rights and freedoms of citizens are violated;

Obstacles have been created for a citizen to exercise his rights and freedoms;

It is unlawful for a citizen to be assigned any duty or he is unlawfully held accountable for any purpose.

The following deadlines are established for filing a complaint with the court:

Three months from the day the citizen became aware of a violation of his right;

One month from the day the citizen receives a written notification of the refusal of a higher body, association, official to satisfy the complaint or from the day the month expires after filing the complaint, if the citizen has not received a written response to it.

A citizen’s complaint against the actions (decisions) of tax authorities and their officials is considered by the court according to the rules of civil proceedings, taking into account the specifics established by the Law of the Russian Federation of April 27, 1993 No. 4866-1 “On appealing to the court actions and decisions that violate the rights and freedoms of citizens "(Appendix No. 34).

Tax authorities and their officials whose actions (decisions) are appealed by a citizen have a procedural obligation to document the legality of the appealed actions (decisions); The citizen is released from the obligation to prove the illegality of the actions (decisions) being appealed, but is obliged to prove the fact of violation of his rights and freedoms.

Based on the results of consideration of the complaint, the court makes a decision.

Having established the validity of the complaint, the court declares the appealed action (decision) illegal, obliges the citizen to satisfy the demand, cancels the penalties applied to him or otherwise restores his violated rights and freedoms.

Having established the validity of the complaint, the court determines the responsibility of the tax authority or official for actions (decisions) that led to the violation of the rights and freedoms of a citizen.

If the court recognizes the appealed action (decision) as legal and does not violate the rights and freedoms of the citizen, it refuses to satisfy the complaint.

You can find a more detailed article-by-article commentary on part one of the Tax Code of the Russian Federation in the book by the authors of BKR-INTERCOM-AUDIT JSC “Article-by-article commentary on the Tax Code of the Russian Federation (part one)”.

And the actions or inactions of their officials

Article 137. Right to appeal

Commentary on Article 137

Section VII of the Tax Code of the Russian Federation establishes the administrative and judicial procedure for appealing acts of tax authorities and actions or inactions of their officials.

The advantages of the administrative procedure are its simplicity, speed of consideration, absence of payment of a fee, the ability to determine the position of a higher tax authority, which, if the result is negative, will allow the person filing the complaint (taxpayer, tax agent and other person) to thoroughly prepare for the judicial review.

The possibility of appeal by taxpayers or other obligated persons against acts, actions or inactions of tax authorities arises from the right of citizens guaranteed by the Constitution of the Russian Federation to judicial protection of their violated rights. In accordance with paragraph 2 of Article 46 of the Basic Law, decisions and actions (or inaction) of state authorities, local governments, public associations and officials can be appealed to the court. It should be noted that the constitutional norm is formulated in accordance with Article 6 of the European Convention for the Protection of Human and Civil Rights. This right cannot be limited in any way. The constitutional right of man and citizen also applies to legal entities to the extent that this right by its nature can be applied to them.

The right to appeal is one of the democratic achievements of our society and is exercised through the activities of government bodies, management, courts, prosecutors, and law enforcement agencies, which are obliged to ensure its implementation and protection.

In accordance with Article 137 of the Tax Code of the Russian Federation, every taxpayer or tax agent has the right to appeal against acts of tax authorities of a non-regulatory nature, actions or inactions of their officials, if, in the opinion of the taxpayer or tax agent, such acts, actions or inactions violate their rights.

This article provides the right to appeal only to taxpayers and tax agents. At the same time, the question arises about the right of other participants in relations regulated by the legislation on taxes and fees to appeal acts, actions (inaction) of tax authorities.

1. Rules of paragraph 1 of the commented article:

a) apply only when appealing against acts of tax authorities. In this case, we are talking about tax authorities not only at the place of registration of the person who filed the complaint, but also any other tax authority, including the Ministry of Taxes of Russia of a non-regulatory nature. In other words, we are talking about decisions, decrees, etc. acts containing mandatory instructions for taxpayers, tax agents, entailing certain legal consequences (for example, a decision on an on-site tax audit, a resolution on tax collection, a tax audit report, a requirement to pay a tax, etc.) and having an individual nature (i.e. they relate to specific taxpayers, tax agents, and not to an unspecified circle of persons). This conclusion is based on an analysis of the rules of paragraph 1 of the commented article;

b) taxpayers are individuals and organizations who, in accordance with the Tax Code of the Russian Federation, are obliged to pay taxes (Article 19 of the Tax Code of the Russian Federation);

d) officials (clause 1 of Article 137 of the Code) are employees of any tax authorities whose actions (inactions) are appealed (for information about which categories of tax authority employees are classified as officials, as well as their rights, powers, and responsibilities, see ... comments to Articles 31, 32, 33, 35 of the Code);

e) both taxpayers and tax agents have the right to appeal not only non-normative acts, but also:

actions of tax officials. In this case, we are talking about any actions (for example, committed during a tax audit, during an inspection, seizure of documents, when opening premises and storage facilities, during access to the territory) that are related to the exercise of their official powers. If the latter allow actions not related to their work in the tax authority, then the provisions of administrative, criminal, and other legislation of the Russian Federation are subject to application;

inaction of tax officials. We are talking about facts of failure by the latter to fulfill the duties assigned to them by the Code, the Law on Tax Authorities, the Regulations on the Federal Tax Service of the Russian Federation, and other acts of tax legislation. Examples include: failure to offset, failure to return the amount of overcharged tax, failure to return the overpaid amount of tax;

f) acts, actions, inactions can be appealed:

Both in the case when they come from a collegial tax authority, and when they come from individual officials of the tax authority;

Insofar as (in the opinion of the taxpayer or tax agent) they violate the rights of the latter (for these rights, see the commentary to Article 21 of the Code). In any case, it is impossible to refuse to accept a complaint on the grounds that there were no violations: it is necessary to consider the complaint on its merits (in the manner provided for in Articles 138, 139 of the Tax Code of the Russian Federation);

g) the right to appeal is exercised by the taxpayer (tax agent) by filing a written complaint with the relevant tax authority or official or a statement of claim to the court.

2. Let's talk about the rules provided for in paragraph 2 of the commented article:

a) they are used when appealing against regulations of the tax authority;

b) in paragraph 2 of the commented article, we mean regulatory acts of tax authorities (for example, the Federal Tax Service, tax authorities of constituent entities of the Russian Federation), but not executive authorities of the Russian Federation, its constituent entities or executive bodies of local self-government, even if such acts were issued on issues related to with taxes. However, such regulations can also be appealed in accordance with federal legislation or the legislation of a constituent entity of the Russian Federation;

c) a normative act of a tax authority is an official document adopted (issued) by the Ministry of Taxation of Russia (another authorized tax authority) within its competence and aimed at establishing, amending or repealing legal norms, i.e. generally binding state regulations, designed for repeated use and not of an individual nature;

d) taking into account the fact that tax authorities are part of the system of executive authorities (the Russian Federation and its constituent entities), their regulations can be issued:

Only in the form of resolutions, orders, instructions and regulations. Publication of normative acts in the form of letters, telegrams, teletype messages, telephone messages, methodological explanations, all kinds of instructions, recommendations, etc. not allowed;

Only after state registration of these acts with the Russian Ministry of Justice.

At the same time, regulatory acts of tax authorities affecting the rights and obligations of the taxpayer (other obligated person) are subject to official publication in the prescribed manner; otherwise they are not subject to application;

Only in properly formatted form. A regulatory act must be signed by the head (his deputy), for example, the Federal Tax Service, and have a number of mandatory details (name of the tax authority that issued the act, name of the type of act (for example, order) and its name, date of signing (approval) of the act and its number, name position and surname of the person who signed the act);

e) unlike non-normative acts of tax authorities (they could previously be appealed to an arbitration court, for example, by individual entrepreneurs or organizations), normative acts (now) can be appealed:

To courts of general jurisdiction. At the same time, cases of declaring normative acts illegal are considered as arising from public relations - according to the general rules of the Code of Civil Procedure of the Russian Federation - with those exceptions and additions that are established by the laws of the Russian Federation;

To the Constitutional Court of the Russian Federation. The latter considers complaints that contain instructions that the normative act of the tax authority does not comply with the Constitution of the Russian Federation and violates the constitutional rights and freedoms of taxpayers and other obligated persons (Article 3 of Federal Constitutional Law No. 1-FKZ). It should be taken into account that Article 137 of the Code itself is subject to application in accordance with the constitutional and legal meaning identified in the Determination of the Constitutional Court of the Russian Federation of December 4, 2003 N 418-O;

To the arbitration court;

f) regulatory acts of tax authorities (mentioned in Article 137 of the Tax Code) can be issued in the form of orders and instructions. A number of norms of the Tax Code of the Russian Federation provide for the possibility of issuing normative acts of tax authorities jointly or in agreement with the Ministry of Finance of Russia. And regulatory acts of this kind can be appealed in accordance with paragraph 2 of Article 137 of the Tax Code of the Russian Federation. The rules for pre-trial consideration of tax disputes were approved by Order of the Ministry of Taxes and Taxes of Russia dated August 17, 2001 No. BG-3-14/290.

In conclusion, let us conclude: the grounds for appealing regulatory legal acts can be different: their inconsistency with the Constitution of the Russian Federation, federal constitutional laws, federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, etc.

Regulatory acts of government and administrative bodies affecting the rights and freedoms of citizens must be registered with the Ministry of Justice of the Russian Federation. The lack of state registration can also serve as a basis for appealing a regulatory legal act.

Depending on the grounds for the appeal, its procedure is established. As a rule, regulatory acts of tax authorities are appealed in court through constitutional, administrative and civil proceedings.

Article 138. Appeal procedure

Commentary on Article 138

The right of taxpayers or other obligated persons to appeal against acts of tax authorities, actions or inactions of their officials can be exercised by filing a complaint with a higher tax authority (superior official) or in court. Thus, the right to choose the procedure for appealing against violated rights belongs directly to the taxpayer. General issues of the procedure for such an appeal are regulated by the commented article.

1. The norms specified in paragraph 1 of the commented article:

1) relate to both normative and non-normative acts of tax authorities. This conclusion was made on the basis of a systematic interpretation of Articles 137 and 138 of the Tax Code of the Russian Federation;

2) give the right that the actions or inaction of officials (which are mentioned in paragraph 1 of Article 138 of the Tax Code) can be appealed if they:

Associated with the execution (or non-execution) by officials of tax authorities of their official powers (Articles 31 - 34 of the Tax Code of the Russian Federation);

In the opinion of the taxpayer or other person, their rights are being violated. Whether this is true or not can only be determined after considering the complaint on its merits. On the other hand, the complaint must contain references to any facts and circumstances, and not state general unflattering characteristics or opinions about a particular official;

3) court is:

A court of general jurisdiction, if the complaint is filed by an individual who is not an individual entrepreneur;

Arbitration court, if the complaint comes from an organization or individual entrepreneur;

Constitutional Court of the Russian Federation (in directly provided cases).

The provisions of paragraph 2 of paragraph 1 of Article 138 of the Code provide the taxpayer (other person) with the right to file a complaint:

To a higher tax authority or a higher official;

At the same time both to the court and to a higher tax authority;

First to a higher tax authority, and then to the court.

However, filing a complaint first with the court and then, after considering the complaint in court, with a higher tax authority would not comply with the rules listed above.

2. It seems to us that it is advisable to consider the norms specified in paragraph 2 of the commented article in parts.

Let's consider the rules of paragraph 1 of paragraph 2 of the commented article:

1) they are subject to application when the complaint comes from:

from individual entrepreneurs and persons equivalent to them for tax purposes, for example, a private notary, a private detective; from an organization (including non-profit);

2) they regulate the issue of jurisdiction of cases for consideration of complaints related to regulatory acts (in this case, tax authorities) in a significantly different way (than this was provided for in the legislation in force before the entry into force of the first part of the Code). The fact is that previously, arbitration courts only considered cases of invalidating, in whole or in part, non-normative acts of government agencies (including tax authorities) that did not comply with the law and other normative legal acts and violated the rights and legitimate interests of organizations and individual entrepreneurs.

The arbitration courts did not consider the complaints of the mentioned persons against normative acts, which was also noted by the Supreme Arbitration Court of the Russian Federation.

3) they proceed from the fact that complaints about the actions (inaction) of tax officials, emanating from individual entrepreneurs and organizations, are filed precisely with the arbitration court;

4) statement of claim (mentioned in paragraph 1, paragraph 2, article 138 of the Tax Code of the Russian Federation):

Submitted (taking into account the exclusive jurisdiction provided for in Article 29 of the Arbitration Procedure Code of the Russian Federation) to the arbitration court of a constituent entity of the Russian Federation (and not at the location of the tax authority);

Submitted signed by the plaintiff or his representative. The application, in particular, indicates the circumstances on which the complaint is based, evidence confirming the validity of the complaint, and other information specified in Article 125 of the Arbitration Procedure Code of the Russian Federation (Article 104 of the Code). The documents provided for in Article 126 of the Arbitration Procedure Code of the Russian Federation are attached to the statement of claim;

5) the features of the rules of paragraph 2 of paragraph 2 of the commented article are that:

They concern complaints filed by individuals other than individual entrepreneurs;

They instruct to be guided by the provisions of the “legislation on appealing to the court against unlawful actions of state bodies and officials.” This means that it is necessary to file a complaint in accordance with the laws and other regulations of the constituent entities of the Russian Federation on this issue.

6) the statement of claim is filed in a court of general jurisdiction, taking into account the rules of jurisdiction.

It should be taken into account that Article 138 of the Code is subject to application in accordance with the constitutional and legal meaning identified in the Decision of the Constitutional Court of December 4, 2003 No. 418-O.

Article 139. Procedure and deadlines for filing a complaint with a higher tax authority or a higher official