Pre-trial settlement of a tax dispute: instructions for use. Pre-trial procedure for resolving tax disputes Pre-trial methods for resolving tax disputes

They have become increasingly relevant since January 1, 2009, when pre-trial appeal to a higher tax authority became a prerequisite for further judicial appeal. The pre-trial procedure for tax disputes was introduced by Federal Law No. 137-FZ of July 27, 2006 “On Amendments to Part One and Part Two of the Tax Code...”.

Thus, within the framework of the procedure for pre-trial settlement of a tax dispute, in accordance with clause 5 of Article 101.2 of the Tax Code of the Russian Federation, a taxpayer has the right to appeal a decision to prosecute a tax offense in court only after appealing this decision to a higher tax authority. In case of appealing such a decision in court, the period for applying to the court is calculated from the day when the person in respect of whom this decision was made became aware of its entry into force.

Pre-trial settlement of tax disputes, Thus, it became relevant that before the introduction of this procedure for the pre-trial settlement of tax disputes, taxpayers rarely used an appeal to a higher tax authority, since the meaning of such an appeal is unclear - a higher tax authority, within the framework of the adopted fiscal policy, does not cancel the decisions of a lower one.

Pre-trial settlement of tax disputes, as a rule, does not bring a positive result in the form of canceling the decision of a lower tax authority, however, it has a number of features, due to which it is absolutely necessary to carry it out correctly:

· pre-trial settlement of a tax dispute mandatory in accordance with the law, if associated with a decision of the tax authority to prosecute or refuse to prosecute;

• within pre-trial tax dispute It is absolutely necessary to present the correct legal position and all the evidence that the taxpayer is right. If this is not done, then the court may later indicate that the tax authority lawfully made a decision based on the available materials, but other materials were not presented to the tax authority. That is, the correct pre-trial settlement of a tax dispute creates a springboard for further challenging the decision of the tax authority in court.

Tax lawyers of the Legal Bureau "Yuristocrat" have many years of successful practice in handling tax disputes at a relatively low cost of services for the pre-trial settlement of tax disputes, many of them worked in the tax authorities and know the situation perfectly from the inside. Contact the professionals of the Legal Bureau “Yuristocrat” for resolving pre-trial tax disputes.

2. Pre-trial settlement of tax disputes - Deadlines

According to clause 3 of Article 140 of the Tax Code of the Russian Federation, the tax authority considers the complaint within 1 (one) month. This period may be extended by no more than 15 (fifteen) days to obtain information from the lower tax authority.

3. Pre-trial tax disputes - Procedure

1. Documents from you for pre-trial settlement of a tax dispute:

OGRN certificate;

Constituent documents;

Primary case materials (inspection reports, decisions of tax authorities, contracts, applications, acts, payment orders, invoices, etc.);

2. Based on the documents provided, our tax consultants prepare objections to the audit report and select a complete set of necessary documents to confirm the legal position of the taxpayer.

3. Our tax specialists are preparing an appeal against the decision of the tax authority.

4. Pre-trial tax disputes - Guarantees

Our excellent work is guaranteed by our extensive experience in settlements. pre-trial tax disputes.

5. Pre-trial settlement of tax disputes - Result

The result of services for pre-trial settlement of tax disputes is:

A prepared position, a springboard for moving to the stage of a judicial tax dispute;

Decision of a higher tax authority.

6. Pre-trial settlement of tax disputes - Cost

The price of pre-trial settlement of tax disputes varies depending on the package of services:

June 18 An online interview was held at the Department of the Federal Tax Service for the Altai Territory with the head of the department for pre-trial settlement of tax disputes Inna Yuryevna Delenda.

Topic of the online interview: “Pre-trial settlement of tax disputes.”

On June 18, at the Office of the Federal Tax Service for the Altai Territory, an Internet interview was held with the head of the department for pre-trial settlement of tax disputes, Inna Yuryevna Delenda. The organizer was the Garant Information Center, the official representative of the Garant company in the Altai Territory and the Altai Republic. Presenter: Elena Santalova, head of the external relations department.

E. Santalova: Good afternoon, Inna Yuryevna and dear Internet audience! Today we are talking about the procedure for pre-trial settlement of tax disputes. The head of the department for pre-trial settlement of tax disputes, Inna Yuryevna Delenda, answers questions received from the Internet audience.

Inna Yuryevna, what is a pre-trial audit? Why is it needed?

I.Yu. Delenda: In order to improve administrative procedures in the system of tax authorities, a special unit was created in 2006, whose competence includes exclusively the intradepartmental consideration of tax disputes. The main tasks set by the Federal Tax Service of Russia for the pre-trial audit units were, first of all, organizing an appropriate response to departmental violations identified during the consideration of tax disputes, and unloading the courts in terms of disputes with tax authorities.

E. Santalova: What is the procedure for pre-trial settlement of a tax dispute?

I.Yu. Delenda: The procedure for pre-trial settlement in the Tax Code of the Russian Federation is devoted to two chapters (19 and 20) and, accordingly, six articles: Tax Code of the Russian Federation. Acts, actions, and inaction of officials can be appealed both to a higher tax authority (to a higher official) and to a court, unless otherwise provided by certain provisions of the Tax Code of the Russian Federation. Thus, the pre-trial procedure established by the Tax Code of the Russian Federation creates guarantees of ensuring the rights of the taxpayer through additional verification of the legality of decisions made by lower tax authorities and is consistent with the obligation of everyone to pay taxes and fees within the time limits established by law. Thus, the pre-trial audit acts as a kind of filter, allowing only decisions that have a judicial perspective to be left in force.

Today, tax legislation provides, depending on the subject of the dispute and the period during which the complaint was filed, two types of complaint proceedings: appeal and standard. However, not every complaint filed with a higher tax authority is an appeal.

The appeal procedure concerns only two types of decisions that have not entered into legal force: on bringing to tax liability and on refusal to bring to tax liability, which are made based on the results of on-site and desk tax audits.

In case of filing an appeal against the decision of the tax authority in the manner provided for in Art. 101.2, the specified decision comes into force from the date of its approval by the higher tax authority in whole or in part (clause 9 of Article 101). The appeal is submitted through the tax authority that made the contested decision, and within 3 working days, together with all the materials necessary for its consideration, must be transferred to the appropriate higher tax authority.

A decision of the tax authority that has not entered into force is not subject to undisputed execution and, as a result, cannot violate the rights and legitimate interests of the taxpayer.

Meanwhile, there are cases when the tax authority, in the absence of the opportunity to know that the taxpayer has filed an appeal, when sending it by mail or in violation of the established procedure for filing it directly with a higher tax authority, issues a demand for tax payment and collection orders based on a decision that has not entered into force. In such a situation, the taxpayer also has the opportunity to appeal the actions of the inspectorate regarding the undisputed collection to a higher tax authority, which has the right to cancel the relevant non-regulatory legal acts that violate the rights and legitimate interests of the applicant. However, the implementation of these actions will require a certain amount of time, and therefore the preferred method of filing a complaint is still its direct transfer to the tax authority that made the appealed decision.

Unlike the appeal procedure, filing a complaint in the usual manner does not suspend the execution of the act being appealed (Article 141). Meanwhile, in the event of an appeal against acts of tax authorities or the actions of their officials to a higher tax authority, the taxpayer is assigned the right to suspend, upon his application, by a decision of a higher tax authority, the execution of the acts being appealed. Thus, this rule can only be applied to cases of appeal against decisions of the tax authority that have entered into legal force; decisions that have not entered into force do not require the adoption of such measures.

Withdrawal of a complaint deprives the person who filed it of the right to file a second complaint on the same grounds to the same tax authority or to the same official.

Let me also remind you that clause 6 of Art. 100 provides for the opportunity to resolve disagreements with the tax authority regarding the tax audit report without waiting for a decision.

Today, this method is no less effective and less expensive in terms of saving time and effort.

So, in accordance with paragraph 6 of Art. 100 the taxpayer, within 15 working days from the date of receipt of the inspection report, can file objections to the facts stated in the report. Objections are submitted in simple written form to the relevant tax authority, indicating the number of the inspection report and those points reflected in the report with which the taxpayer does not agree. Objections may be accompanied by documents confirming the validity of the taxpayer’s conclusions, even those that for some reason were not presented during the audit.

When going through the mandatory procedure for reviewing audit materials, the circumstances identified during the audit are considered, and all the taxpayer’s arguments are carefully studied.

At the stage of reviewing audit materials and making a decision on them, the tax authority often applies mitigating circumstances to the taxpayer’s liability, as a result of which the amount of penalties to be applied is reduced.

E. Santalova: Inna Yuryevna, are there any decisions for which a mandatory pre-trial procedure for appealing disputes is provided?

I.Yu. Delenda: On January 1, 2009, the norm of paragraph 5 of Art. 101.2, which stipulates that the decision to hold or the decision to refuse to hold a taxpayer accountable for committing a tax offense, adopted in accordance with Article 101 based on the results of consideration of tax audit materials, is subject to mandatory pre-trial settlement in a higher tax authority. Only after this does the taxpayer have the right to appeal this decision of the tax authority in court.

At the same time, for other categories of tax disputes (appealing the inspector’s demands for tax payment, decisions to collect taxes at the expense of the taxpayer’s property, decisions to suspend transactions on current accounts, etc.), today the taxpayer retains the right to choose between judicial and extrajudicial means of conflict resolution (clause 1 of Article 138).

E. Santalova: Can a taxpayer be personally present during the consideration of a tax dispute?

It should be noted that the specified period is not always sufficient for a thorough assessment of all the applicant’s arguments. Especially in cases where we are talking about challenging multi-episode decisions on bringing to tax liability, adopted as a result of tax audits, with a large number of appendices to the acts. Moreover, when, along with the appeal, the taxpayer additionally submits an impressive number of new, previously unexamined documents.

That is why, literally, today the State Duma of the Russian Federation should adopt in the second reading a bill on amending Part 1, providing for an increase in the maximum period for considering complaints against decisions to bring (refuse to bring) to tax liability, made in accordance with Art. 101, up to two months. At the same time, the period for consideration of other tax disputes is expected to be reduced to 15 working days, with the possibility of extension for the same number of days.

Answering the second part of the question, I note that at one time the changes made to part one of the Tax Code of the Russian Federation made it possible to more clearly delineate the functions between higher and lower tax authorities, thereby eliminating previously existing ambiguities and contradictions.

With these changes, the legislator emphasized the controlling role of the superior tax authority over the compliance of lower tax authorities with the requirements of tax legislation, maximally protecting it from direct participation in control activities, thereby creating the necessary conditions for an objective assessment of the results of the activities of subordinate structures.

The taxpayer’s right to submit additional documents along with objections to the tax audit report is directly provided for by the norm of paragraph 6 of Art. 100 .

If the taxpayer submits, along with the complaint, additional documents that were not previously the subject of investigation by the tax authority, the higher tax authority evaluates the reasons for the taxpayer’s failure to submit these documents earlier during the audit period or immediately after its completion, but before the decision is made to attract (refuse to attract) to tax liability. In this case, first of all, the issue is clarified about the proper fulfillment by the tax authority of the duties assigned to it in requesting documents necessary for the audit from the taxpayer.

If the reasons for the taxpayer’s failure to submit the requested documents directly to the tax authority that carried out the inspection are recognized as unjustified, the higher tax authority, based on the results of consideration of the taxpayer’s complaint, if there are doubts about the reliability of the new evidence contained in the taxpayer’s submitted along with the complaint, in the absence of the opportunity to subject them to verification, is forced to refuse satisfying the complaint, assessing the legality of the contested non-normative legal act solely based on the circumstances that existed at the time of its adoption.

Moreover, the above facts of dishonest behavior of the taxpayer can be interpreted, including in the future by the court, as an abuse of law with all the ensuing negative consequences. The choice of possible behavior options is up to the taxpayer.

E. Santalova: If a taxpayer does not agree with the outcome of a complaint, should he only go to court?

I.Yu. Delenda: The current version of the Tax Code of the Russian Federation, in addition to the judicial procedure, does not exclude the possibility of appealing the decision of the department of the Federal Tax Service of Russia for a constituent entity of the Russian Federation, adopted on the basis of a taxpayer’s complaint, to a higher tax authority, that is, to the Federal Tax Service of Russia. However, the Code does not contain clear regulation of the procedure for such an appeal. I believe that the situation will change with the adoption of the law on introducing appropriate amendments to part one of the Tax Code of the Russian Federation, which I have already mentioned earlier. Bill No. 190725-6, discussed today in the State Duma of the Russian Federation, essentially introduces the concept of cassation proceedings on a complaint, which, meanwhile, will not be a mandatory stage of pre-trial settlement and in any way create additional obstacles for the taxpayer in the exercise of his right to protect his interests in court.

E. Santalova: In case of disagreement with the result of consideration of the complaint, do taxpayers more often choose to appeal through the court or give preference to the administrative procedure?

I.Yu. Delenda: Today, taxpayers more often choose the judicial procedure for resolving a dispute that has passed the pre-trial settlement stage. Cases of filing complaints against decisions of the Office of the Federal Tax Service of Russia for the Altai Territory, adopted based on complaints, to the Federal Tax Service of Russia are of an exceptional nature.

At the same time, as statistics show, only 35% of applicants who have passed the stage of pre-trial dispute resolution at the Office level subsequently go to court. At the same time, court proceedings often end not in favor of the applicants, which indicates, among other things, the high quality of work on pre-trial settlement.

E. Santalova: The procedure for pre-trial settlement of tax disputes has been in effect since January 1, 2009. It is likely that a certain amount of practice has accumulated. Inna Yuryevna, please tell us how this procedure has proven itself?

I.Yu. Delenda: Over the past year, the Federal Tax Service of Russia has done a lot to develop the institution of pre-trial settlement of tax disputes. The introduction of this procedure brought tax administration to a qualitatively new level, since internal revisions not only made it possible to reduce conflicts with taxpayers and relieve the courts, but also to improve the quality of decisions made by tax authorities.

As noted earlier, a bill on introducing appropriate changes to tax legislation is currently being considered in the State Duma of the Russian Federation.

One of the conceptual changes is the introduction of a mandatory pre-trial procedure for all tax disputes to appeal acts of tax authorities, actions or inactions of their officials. Moreover, the Federal Tax Service proposes to change the deadline for filing appeals. Currently, the deadline for taxpayers to file a complaint with a higher tax authority against an audit decision that has not yet entered into legal force is 10 working days. Practice has shown that taxpayers sometimes do not have enough time to file a high-quality, motivated appeal. In turn, the Federal Tax Service proposes to increase the period to 1 month.

In addition, the introduction of a mandatory pre-trial procedure for all tax disputes will allow the maximum number of disputes to be resolved within the government body, improve the quality of tax administration, and also significantly relieve the burden on the judicial system of the Russian Federation. It is planned that the introduction of such a procedure could reduce the number of tax disputes in the courts by half.

For the taxpayer this means saving time. Pre-trial audit is a faster way to resolve conflicts, since the duration of the trial, including appeal, on average ranges from three months to a year, and sometimes more. At the same time, all proposals of the Federal Tax Service of Russia take into account the identified gaps and contradictions in the legal regulation of pre-trial resolution of tax disputes, provide mechanisms for simplifying the procedure for considering tax disputes, in connection with which innovations will expand the ability of taxpayers to exercise the right to protect their interests.

E. Santalova: Another question from the Internet audience: for what reasons do tax disputes most often arise?

I.Yu. Delenda: The grounds for taxpayers (fee payers, tax agents) to file complaints with a higher tax authority are, as a rule, the following circumstances:

• additional accrual of amounts of unpaid taxes and penalties, as well as bringing in this regard to tax liability based on the results of tax audits;
• failure of the tax agent to fulfill the obligation to correctly and timely calculate, withhold, and transfer personal income tax to the budget on the amounts of income taxpayers received in cash and in kind;
• refusal to provide a taxpayer with tax deductions for personal income tax;
• denial of the right to apply tax deductions for value added tax;
• bringing a taxpayer to tax liability under Article 119 for late submission of tax reports remains the most common reason for taxpayers filing complaints with the Department;
• collection of taxes, fees, penalties, fines at the expense of taxpayer funds;
• refusal to offset (refund) overpaid amounts of tax;
• bringing a taxpayer (fee payer, tax agent) to tax liability under Article 126 for late submission of documents and other information;
• bringing to responsibility under Art. 128 for the failure to appear of a person summoned as a witness in a tax offense case;
• bringing to administrative responsibility under the Code of Administrative Offenses of the Russian Federation;
• refusal to carry out state registration, etc.

E. Santalova: Inna Yuryevna, were there any cases when the Federal Tax Service canceled decisions on tax audits?

I.Yu. Delenda: I'll give you some statistics. Based on the results of the past 2012, the tax authorities of the region considered more than 2,300 objections totaling 3.2 billion rubles, of which about 1,700 objections (74%) were satisfied in the amount of about 0.8 billion rubles, or 24% from the amount of the stated claims.

In 2012, the Federal Tax Service of Russia for the Altai Territory and the territorial tax authorities of the region received 984 complaints for consideration. This is slightly higher than in 2011 by 8.6 percent. For comparison, 906 complaints were received in 2011. However, as follows from the statistics above, most disputes are resolved at the stage of the taxpayer’s application to the inspectorate.

At the end of 2012, the amount of claims disputed in complaints amounted to about 3 billion rubles, which is almost 1.5 times higher than in 2011 (2 billion rubles).

As before, 98% of the amounts disputed at the end of 2012 accounted for complaints related to the results of on-site and desk tax audits; they constituted the main share (72%).
At the same time, about 37% of complaints in this category are satisfied based on the results of pre-trial settlement.

In general, last year the Office reviewed twice as many taxpayer applications in pre-trial proceedings as the court system. Thus, most complaints can be resolved without further legal proceedings.

E. Santalova: The Internet is increasingly becoming part of our lives. In this regard, the next question is: is it possible to pre-trial settle tax disputes via the Internet?

I.Yu. Delenda: Today, tax legislation provides only a written form of complaint regarding a tax dispute (clause 3 of Article 139). The bill No. 190725-6, which I have already mentioned, also proposes to preserve this form of communication between the applicant and the tax authority, on the contrary, outlining clear requirements for the content of the complaint filed.

At the same time, actions of tax authorities that are not directly related to the implementation of the provisions enshrined in the Tax Code of the Russian Federation, in other words, that are not included in the scope of tax legal relations, can be challenged by appealing from applicants using the Internet. Thus, such a possibility is enshrined in the Law “On the organization of the provision of state and municipal services” dated July 27, 2010 No. 210-FZ and the administrative regulations adopted in accordance with it (for example, the Administrative Regulations for the provision of public services for the registration of legal entities and entrepreneurs No. 87n, Administrative regulations for the provision of public services for registration of cash register equipment No. 94n). Also, the possibility of contacting tax authorities via the Internet is provided for by the Law “On the procedure for considering appeals from citizens of the Russian Federation” dated May 2, 2006 No. 59-FZ.

In cases where there is a need to challenge a non-normative act of a tax authority, or an action (inaction) of its officials directly related to the applicant’s fulfillment of a legally established constitutional obligation to pay taxes, the taxpayer will have to comply with the requirements for a written application to the tax authority.

E. Santalova: What are the positive issues of pre-trial settlement? And are there any downsides?

I.Yu. Delenda: In 2012, we achieved positive dynamics in reducing the number of tax disputes. Mainly due to the increased efficiency of pre-trial settlement even at the stage of considering taxpayers’ objections to tax control acts.

As Mikhail Mishustin, head of the Federal Tax Service of Russia, has repeatedly noted, pre-trial audit units were created to reduce the burden on the judicial system through internal consideration of disputes. The advantages of pre-trial settlement of tax disputes, compared to legal proceedings, according to the Federal Tax Service of the Russian Federation, are undeniable, including cost reduction, reputation protection, and confidentiality when resolving a conflict, as well as the opportunity to conclude an agreement to resolve a tax dispute.

E. Santalova: Inna Yuryevna, what would you suggest to improve the mechanisms for pre-trial settlement of tax disputes?

I.Yu. Delenda: Unfortunately, today in the Russian Federation there is neither a law on administrative procedures that would reflect the basic principles of the administrative process, nor rules regulating in detail the procedure for considering appeals and general complaints, which at times creates uncertainty in the work on pre-trial settlement of controversial situations. At the same time, according to statistics, the percentage of satisfaction of taxpayer complaints by higher tax authorities is quite high (at the level of 40-50%), which indicates the ability of tax authorities to take a critical approach to assessing the results of their activities.

Thus, the opinion that the more expected outcome of a pre-trial settlement is the refusal of the taxpayer to satisfy his stated demands should be recognized as a misconception, which is refuted by statistical reporting data.

We hope that with the adoption of the bill regulating the procedure for pre-trial settlement at the stage of consideration of complaints, many of the problems that exist today will disappear into oblivion, and at the same time the quality of work in this direction will improve.

In general, the initiatives proposed by the Federal Tax Service of Russia aimed at improving pre-trial settlement coincide with the wishes of the employees of our system and my personal understanding of this process.

It is assumed that the long-awaited draft law on changing tax legislation will come into force in 2014.

E. Santalova: Inna Yuryevna, thank you for the interview and complete and detailed answers to the questions.

The settlement of tax disputes involves both pre-trial resolution of the problem and trial in court. This is a generally accepted world practice that gives the fastest and most painless results for business.

Pre-trial and judicial settlement of tax disputes

Any dispute is possible without the participation of a court. To do this, it is enough for the parties to enter into a pre-trial settlement agreement. In some situations, which are provided for by law, this procedure occurs even if the parties are unwilling. More precisely, settlement outside the court system is divided into mandatory and voluntary.

Moreover, the parties may be against pre-trial settlement and insist on a trial. This is the intermediate stage that precedes the trial. In the case of a tax dispute, appealing to a higher tax authority, and not to the court, was voluntary. However, since 2014, pre-trial consideration of tax disputes in the field of taxation has been mandatory for taxpayers. Tax disputes often arise as a result of a misunderstanding of certain provisions of the law.

Important! Because of this, various violations arise that are revealed during a tax audit. And if the taxpayer does not agree with the inspectors’ decision, he can appeal it. It happens that the actions of tax authorities are appealed by unscrupulous taxpayers. In addition, a third party is involved to resolve the dispute.

It is advisable if this is a lawyer who is not interested in a party to the conflict. A representative can also file a complaint against a decision of the tax authorities.

Reasons for tax disputes

What are the main reasons for tax disputes? Mainly:

• different interpretations of Russian tax legislation by taxpayers and tax authorities;
• illiterate use of tax legislation;
• submission by taxpayers of additional documentation that was not the subject of research during the audit, but is of great importance for solving the problem of the presence or absence of an offense;
• violations of the process of conducting tax audits and other tax control activities (interrogations, inspections, seizure of papers, sending requests for documentation), which, in the opinion of taxpayers, were committed by the tax service;
• arithmetic and other errors made as a result of tax audits;
• other objective circumstances (changes in judicial practice, the use of mitigating circumstances, different interpretations of articles of the Tax Code of the Russian Federation by tax and judicial authorities, in connection with clarifications of a higher tax authority).

Procedure for pre-trial settlement of tax disputes

Previously in the Russian Federation, this type of settlement was possible only when solving desk and on-site inspections. But since 2014, it must be applied to all tax conflicts without exception. This is primarily good for taxpayers who resolve the dispute at the expense of a higher tax authority.

The pre-trial procedure for resolving tax disputes in this case involves filing a complaint by the taxpayer with the appropriate higher authority. He is the third party in this conflict.

Important! According to the Tax Code of the Russian Federation (Article 139), a complaint must be filed through the tax authority whose decision is being challenged. It is from there that she will be sent further.

If, when considering his claim, the taxpayer admits that he violated tax laws, his fines may be reduced.

With the help of pre-trial resolution of tax disputes, you can appeal:

1. refusal to carry out tax deductions;
2. collection of a large amount of tax;
3. demanding payment of unlawful penalties or fines;
4. suspension of all transactions on bank accounts.

There are several types of requests that a taxpayer can file:

1. A common complaint. Submitted to appeal decisions of a non-regulatory nature that have entered into force.
2. Complaint against the actions of tax authorities.
3. Appeal. To appeal those decisions of the tax authority that have not entered into force.

Important! The time frame for appealing claims depends on the subject of the dispute. If the tax service act has not entered into force, ten days are given to file a complaint with the inspection department.

The steps of the procedure are as follows:

• Consideration of claims against acts that were drawn up on the basis of inspections.
• Consideration of objections to actions of tax authorities.

Any taxpayer has the right to appeal the actions of the tax authorities, as well as the acts they issued during the audit. To do this, you need to make a written complaint, indicating the subject of the dispute. The law also provides for a deadline for filing a petition. It is equal to 1 year from the date of delivery to the person of the act based on the tax audit.

Pre-trial tax disputes - rules for filing a complaint

In Art. 139.2 of the Tax Code of the Russian Federation establishes requirements for the content of a complaint (including an appeal). Thus, it must be drawn up in writing and signed by the applicant or his representative, whose authority must be confirmed by appropriate documents.

The complaint contains information about the applicant, about the inspection, about the act of the tax authority that is being appealed, or the actions (inaction) of its officials, the essence of the petition. The reasons why the taxpayer considers his rights to be violated and the requirements are also indicated (clause 2, article 139.2 of the Tax Code of the Russian Federation). In addition to the above information, the application may contain contact details, faxes, email addresses and other information necessary for a timely appeal.

To the complaint in accordance with Art. 139.2 of the Tax Code of the Russian Federation (clause 5) documents are attached that confirm the applicant’s arguments.

The claim may not be considered. The grounds for leaving the appeal without consideration are specified in Art. 139.3 Tax Code of the Russian Federation. A taxpayer’s complaint will not be considered on its merits (in full or in part) if:

1. the document does not contain the signature of the applicant (his representative) or the claim is not accompanied by papers that confirm the authority of the taxpayer’s representative;
2. the appeal was submitted outside the deadlines established by law in the absence of a petition for their restoration;
3. the taxpayer was denied reinstatement of missed deadlines for filing a complaint;
4. before a decision was made on the application, a request was received from the person who filed it to withdraw the complaint (in part or in full);
5. a claim was previously filed on the same grounds.

Important! The refusal of the tax authority to consider the complaint does not prevent the applicant from applying for restoration of his rights again.

Despite the fact that the taxpayer has the right to file a complaint on his own, experts recommend seeking the help of a lawyer. He will not only advise, but also draft the petition correctly. The main thing is to be sure that the tax service’s decision is unfair, and to be able to prove it.

ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge - write in the form below.

How pre-trial settlement of tax disputes occurs in 2019. What is a tax dispute and how can you avoid litigation in the field of taxation.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

There have always been a huge number of conflicts in the field of taxation. Disputes between the parties were rarely resolved peacefully, so they had to go to court.

This has led to the courts being overloaded and cases being constantly delayed.

The pre-trial regulation procedure, successfully used in many countries around the world, has brought enormous benefits to the parties to tax disputes in Russia.

Basic information

Very often, various legal disputes arise between the parties. They happen especially often in the field of economic and civil legal relations.

This forces them to go to court, but this does not always suit the parties. The fact is that the trial is being delayed, which is not beneficial to anyone.

Therefore, many parties to the conflict try not to bring the matter to court, but to resolve the dispute among themselves. This procedure is called pre-trial settlement.

They involve a third party in this and try to resolve everything quite peacefully. The pre-trial settlement procedure is also successfully used in resolving tax disputes.

Pre-trial settlement involves:

• dispute analysis;
• assessment of reasons relevant for appeal;
• analysis of legal norms;
• filing a claim.

What it is

Any dispute can be resolved without the participation of a judge. To do this, it is enough for the parties to conclude.

In some cases provided for by law, this procedure occurs despite the reluctance of the parties. That is, settlement outside the judicial system is divided into voluntary and mandatory.

In this case, the parties may even be categorically against pre-trial settlement and insist on trial. This is the so-called intermediate stage preceding the trial.

In the case of tax disputes, appealing to a higher tax authority, rather than to the court, was voluntary.

But since 2019, pre-trial settlement of tax disputes is mandatory for taxpayers. Tax disputes often arise due to a misunderstanding of certain provisions of tax legislation.

Because of this, various violations arise, which are clarified during. And if the taxpayer does not agree with the decision of the inspectors, he can appeal it.

Various additional documents can be attached to the complaint, but the tax authorities may not take them into account ().

However, the tax service may consider:

• documents that confirm the reasons on which all the person’s claims are based;
• calculations of amounts;
• power of attorney if the application is not submitted by the taxpayer himself.

The legislation also provides for a certain deadline for filing a petition. It lasts for 1 year from the date of delivery of the decision to the person based on the tax audit.

If a complaint is submitted after this period, it can only be accepted due to a serious reason for such a delay.

The participation of the taxpayer himself in the consideration of his request is not provided. But in some cases he will be asked to attend the proceedings.

The time frame for appealing complaints depends largely on the subject of the dispute. If the decision of the tax service has not entered into force, then 10 days are given to submit a petition to the inspection department.

Other acts, as well as actions of tax authorities, can be challenged during the calendar year. A higher tax authority may ignore a person’s complaint.

And this will be absolutely legal, but only in some cases. The grounds for this are approved by Art. 139.3 Tax Code of the Russian Federation:

• the document does not contain the personal signature of an individual;
• the complaint was filed after the specified deadlines for doing so had passed;
• the complaint is withdrawn;
• one or more complaints have already been filed on these grounds previously.

The department for pre-trial settlement of tax disputes depends on a special unit that operates in the tax authorities.

The department considering the payer’s request must make a decision to refuse within 5 days.

Another 3 days are given for the person to be informed about this. In this case, the taxpayer must be sent a written notice indicating the reason.

It is important to know that if you refuse to consider a complaint, you can correct everything and send a new one (). Previously, individuals and legal entities did not have such a right.

What is the efficiency

Many experts in this field talk about how convenient the modern system is for resolving controversial situations without involving a court. Especially when this procedure became mandatory.

The effectiveness of pre-trial settlement of tax disputes in 2019 lies primarily in the fact that it allows you to clarify tax relations comfortably and without any difficulties.

While the trial stage is not only economically unprofitable, but also time-consuming.

Video: Supreme Court - tax disputes on land tax

Pre-trial settlement frees the taxpayer from being present during the decision-making process. In addition, the effectiveness of this method has long been proven in other countries.

This allows us to improve tax control, and also improve the procedure for interaction between tax services and taxpayers.

On the other hand, many experts point to insufficient consultation of citizens, which leads to mistrust on their part.

Advantages

Among the advantages of pre-trial settlement are the following:

• consideration of a complaint rarely exceeds 1 month;
• turning to a higher authority for help is a free service for individuals, while during a judicial review it is necessary to hire a lawyer and pay a fee;
• Confidentiality is maintained when considering disputes, which allows you not to worry about your reputation;
• a higher tax authority cannot make a decision that contributes to the worsening of the taxpayer’s position;
• the entire pre-trial settlement procedure is quite simple and does not require any special requirements from the taxpayer;
• You can find out at what stage of consideration the complaint is not only in writing. For this purpose, the Federal Tax Service website operates a special electronic service “Find out about a complaint.”

Flaws

The disadvantage of pre-trial regulation is that many taxpayers are not sufficiently informed about this issue. Hence the huge amount

Zdmitrovich Alexandra Sergeevna, Marchenkova Veronika Yurievna, Tsvetkova Natalya Evgenevna,

3rd year students of the Faculty of Law

Federal State

educational budgetary institution

higher professional education

"Financial University

under the Government of the Russian Federation"

Contact phone: 8 968 895 30 32

Email: leksy07@ mail. ru

Section: Legal support for the financial activities of the state

Pre-trial settlement of tax disputes: current status and development prospects.

This article is devoted to the problems arising in the field of pre-trial settlement of tax disputes. The work highlights the shortcomings of the existing mechanism, analyzes the current state, prospects, and suggests ways to solve problems that arise in practice.

This article is devoted to problems arising in the area of ​​pre-trial settlement of tax disputes. In this work are noted shortcomings of the existing mechanism, analyzed the current situation, prospects and ways of solving problems arising in practice.

Key words: pre-trial procedure for resolving tax disputes, mediation, tax authorities, taxpayers, appeal, desk and field audits, tax legislation, draft law.

The pre-trial procedure for resolving tax disputes has been in effect in the Russian Federation since the beginning of 2009. This procedure includes appealing decisions made based on the results of audits by tax authorities to a higher authority.

Pre-trial settlement of tax disputes is a set of measures provided for by the legislation of the Russian Federation on taxes and fees, the legislation of the Russian Federation on the consideration of citizens' appeals and internal departmental acts, carried out by officials of tax authorities in an administrative manner, in order to resolve a tax dispute before trial.

To begin with, we should briefly consider the existing procedure for pre-trial settlement of tax disputes.

Currently, in accordance with Art. 101 of the Tax Code of the Russian Federation, pre-trial regulation is carried out for offenses identified during desk and on-site inspections.

According to paragraph 5 of Art. 101.2 of the Tax Code of the Russian Federation, a decision to bring / refuse to bring to justice for committing an offense in the tax sphere can be challenged in court only after appealing it to a higher tax authority. The period for applying to the court is calculated from the day when the person in respect of whom this decision was made became aware of its entry into force.

It follows from this that the taxpayer, when going to court, must confirm the fact of going through the process of pre-trial settlement of the dispute that has arisen: the application to the court should be accompanied by a document that confirms the fact of applying to a higher tax authority to appeal an already made decision. If such information is not provided, the court will not consider the application. However, the refusal does not deprive the applicant of the opportunity to re-apply after going through the pre-trial dispute resolution procedure.

There is no mechanism for considering complaints and making decisions on them in the Tax Code of the Russian Federation. Articles 140 and 141 regulate only the main points. Thus, based on the results of consideration of an appeal against a decision or a complaint against an inspection act, a higher tax authority or a higher official has the right to: - leave the decision unchanged and the complaint unsatisfied; - cancel or change the decision in whole or in part and make a new decision (cancel the inspection report); - cancel the appealed decision and terminate the proceedings. The decision of the tax authority (official) on the complaint is made within one month from the date of its receipt. This period may be extended by no more than 15 days to request the necessary documents (information). The decision is notified in writing to the person who filed the complaint within three days from the date of its adoption (clause 3 of Article 140 of the Tax Code of the Russian Federation). If a higher tax authority has violated the deadline for considering an appeal, the organization, without waiting for the results of consideration of its complaint, has the right to go to court to appeal the decision of a lower tax authority.

World practice gives us many examples of legislative support for mediation. Thus, in the USA, Canada, Great Britain and Germany, 80% of disputes are resolved through mediation, without going to court, without the intervention of the police or other government bodies. The current experience of Germany in this area has made it possible to once again confirm the high efficiency of this method for pre-trial dispute resolution.

IN Germany mediation is harmoniously integrated into the justice system. Pre-trial consideration and resolution of tax disputes by appealing decisions of tax authorities is regulated by the Regulation (law) “On the procedure for collecting taxes, fees and duties” (part seven, § 347–367) dated 03/16/1976 (as amended on 07/30/2009) . All decisions made by tax and financial departments and local financial authorities on the basis of the Regulations “On the procedure for collecting taxes, fees and duties” can be appealed pre-trial. Thus, in Germany, unlike the Russian Federation, the pre-trial appeal procedure applies not only to decisions to prosecute or refuse to prosecute for a tax offense, but to literally all acts adopted by the tax administration. It should be noted that pre-trial appeal is a mandatory procedure for filing a complaint with the appropriate court.

A pre-trial appeal of an administrative act is formalized in the form of an objection (protest). It is addressed to the tax authority that issued the act being appealed. The decision on the objection is made by a special unit for the consideration and resolution of pre-trial complaints of the same tax authority. The objection must be admissible in nature and duration, as well as justified.

Pre-trial appeal, as stated above, must be carried out on time. If a pre-trial complaint is received by the tax authority late, it is refuted without consideration.

The deadline within which the tax authority is obliged to consider the complaint is not established by law. If the consideration is delayed, the taxpayer has the right to appeal to the court with a complaint about the inaction of the tax authority. But this can be done no earlier than 6 months after filing an objection or due to emergency circumstances. As a result, only the court, by its decision, has the right to set a final deadline for the tax authority to consider the pre-trial complaint.

Despite the filing of an objection, the appealed act is executed after the expiration of a month. To avoid this, the taxpayer has the right to apply to suspend the execution of the appealed act. The tax authority may also suspend execution of the decision until the final consideration of the objection on its own initiative. However, this procedure is applicable only within the framework of pre-trial appeal.

Another illustrative example is the USA. In America, negotiations are more common, and many of them actually end successfully, with only about 10% of disputes going to court.

In practice, approximately 95% of disputes between the Tax Service and taxpayers are resolved pre-trial by mutual agreement.

The US Internal Revenue Service is a structural unit of the US Department of the Treasury, however, given the availability of rule-making competencies, as well as independence in the exercise of its powers, it should be considered a department.

The service has a specialized department that considers complaints from taxpayers as part of the pre-trial procedure. The department is formally part of the service itself, but in fact does not depend on it. If the taxpayer does not agree with the decision, he is sent a “ninety-day letter” notifying him of the impossibility of further resolving the dispute within the pre-trial regime.

As part of the administrative procedure, taxpayers have the right to appeal any actions and decisions of the Internal Revenue Service, and at various stages of the settlement procedure, agreements may be entered into that may change the legally binding tax obligations of taxpayers.

The practice of out-of-court appeal allows tax claims to be settled fairly and quickly, reducing the burden on the courts. According to Diana Ryan, head of the IRS Office of Appeals, taxpayers actively use the right to file a complaint with the Office to resolve tax claims. The Office guarantees independence in handling the appeal and its timely resolution. The taxpayer has the right to receive explanations about the process of consideration of his complaint.

Directly speaking about the procedure for considering a complaint, it is worth saying that it begins with a study of the circumstances of the case, relevant legislation and judicial precedents. After this, the risk of bringing the case to court is analyzed. If the chances of winning the case are less than 30%, the office will give the taxpayer the opportunity to settle the case. If it is not possible to reach an agreement, the dispute moves to the next stage - an administrative appeal. Administrative appeals in such disputes are handled by a special unit of the tax service, consisting of tax lawyers. Again, a special tax audit unit seeks to resolve the dispute without judicial intervention. This is how 90-95% of incoming disputes are resolved.

Court is the third stage of the dispute. A taxpayer who is not satisfied with the results of the two stages has 90 days to decide whether to pay the amounts presented by the tax service or challenge them in court. Let us note that at all stages of consideration of a lawsuit up to the Court’s decision, the parties have the opportunity to reach an agreement and come to an amicable agreement.

The experience of foreign countries shows that taxpayers strive to resolve disputes out of court, since court proceedings entail additional costs. In addition, taxpayers trust pre-trial regulatory authorities; they objectively consider received complaints. In the Russian Federation, many citizens do not trust the tax authorities, considering them deliberately biased, unlike the court. It is necessary to ensure transparency, objectivity and independence in the handling of complaints. And also give taxpayers the opportunity to go to court against the inaction of tax authorities, as is done in Germany.

The tax department analyzed the practice of pre-trial appeal of tax disputes that has existed for three years. The result of the analysis was an indicator that indicates a reduction in the number of tax disputes brought to court. Every year, the number of court proceedings regarding claims of tax authorities against tax entities decreases by 15-20%. Over the three years of pre-trial audit of review of decisions by higher authorities, the flow of court cases involving fiscal officials has decreased by almost half. This is also proven by the official statistics of the Supreme Arbitration Court of the Russian Federation. Moreover, disputes related to decisions on tax audits account for no more than a third of all tax disputes.

For other types of disputes, it is not always possible to resolve the situation before trial. There are several reasons for this. One of them is that the appeal process to a higher tax authority is mandatory only in the case where the taxpayer intends to appeal in court a decision that was made as a result of an on-site or desk audit. The next thing is that filing a claim in court is possible only within three months from the day the taxpayer learned of a violation of his rights (clause 4 of Article 198 of the Arbitration Procedure Code of the Russian Federation). Fear of missing this deadline forces him to go directly to court. In this regard, the tax authorities have launched an initiative to radically change the functioning system of pre-trial settlement of tax disputes. To date, the Ministry of Finance has developed a bill to introduce the necessary amendments to tax legislation.

One of the most important changes is the introduction of amendments to Article 138 of the Tax Code of the Russian Federation. According to them, a mandatory procedure for appealing all non-normative acts of tax authorities, as well as actions or inactions of their officials, is established. It will not only help reduce the workload of the courts, but will also expand the range of possible actions by taxpayers in protecting their legal rights and interests. In addition, the project involves the introduction of a number of norms into the Tax Code of the Russian Federation stipulating the appeal. As a result of the amendments, business entities and private entrepreneurs do not lose the right to file a secondary complaint if its consideration was refused due to expired deadlines or failure to confirm the authority of the taxpayer’s representative, as well as due to the lack of required signatures (clause 3 of Article 139.3 of the Tax Code RF). Those. the procedure for filing complaints will become less formalized.

The amendments also introduced conditions for the taxpayer to provide additional documents that were not provided to a lower tax authority or a higher authority with justification for the impossibility of their timely provision. Let us note that at the moment, the absence of this wording created a loophole for unscrupulous taxpayers who formally went through the stages of pre-trial settlement, presenting the necessary documents only directly to the court. This created difficulties in the work of tax authorities in resolving disputes. The deadlines for appeal have been adjusted. The time for preparing and filing an appeal is increased from 10 to 30 days, the period for filing other complaints - from three months to one year. In our opinion, the deadline for filing an appeal is now insufficient for the taxpayer to prepare a reasoned complaint, which again leads to the formality of pre-trial regulation. The tax authority is given the right to consider appeal claims within up to 30 days, this period can be extended to 60 days. The period for consideration of other complaints is 15 days, which can be extended to 30 days. In addition, it is proposed to replace the currently effective Article 101.2 of the Tax Code of the Russian Federation (regulating the entry into force of decisions on bringing (or refusing to bring) to responsibility for committing a tax offense) with a new norm (Article 101.2-1 of the Tax Code of the Russian Federation), taking into account the changes made to appeal procedure.

The state of pre-trial settlement of tax disputes is currently far from ideal. The upcoming changes should entail an improvement in the functioning of the settlement mechanism, which, in spite of everything, has shown itself positively in practice. This procedure simplifies dispute resolution for both tax authorities and taxpayers, taking into account the interests of both parties.