In a new issue of magazine “Arbitration tax practice” there was published an article of CEO “National Law Company “Mitra” Yury Mirzoev.
Scientific specialists consider excessive redress of the tax arrears and propose to fine for it.
The Scientific Advisory Board at the Arbitration Court of the North Caucasus District believes that if the company received a tax refund wrongfully, it can be fined for non-payment or incomplete payment of tax (clause 1, article 122 of the Tax Code). Such conclusions are contained in the recommendations of the Council, approved on November 27, 2015. This is a controversial approach. The author doesn`t agree with him on at least three grounds.
The opinion of the advisers of the Arbitration Court of the North Caucasus District
The scientific advisory council believes that tax officers can bring to responsibility a taxpayer who unreasonably reimbursed VAT for non-payment or incomplete payment of tax (clause 1 of Article 122 of the Tax Code of the Russian Federation), it allows the wording of paragraph 4 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation.
This rule says that the excessively recovered tax amount found during the audit is recognized as a deficit from the day the taxpayer actually received the funds or the decision of the tax authority to offset this amount in payment for other taxes.
Articles 176 and 176.1 of the Tax Code of the Russian Federation provide that the VAT refund is carried out by decision of the tax authority. Such a decision is made on application and on the basis of documents and calculations of the taxpayer. That is, an excessive tax refund has a direct causal relationship with the actions of both the tax authority and the taxpayer.
Arrears are the amount of tax or fee that is not paid in accordance with the time period established by the legislation on taxes and fees (Clause 2, Article 11 of the Tax Code of the Russian Federation). Therefore, the arrears specified in paragraph 4 of paragraph 8 of Article 101 of the Tax Code can be considered unpaid tax amount. And this is an element of the objective side of the tax offense envisaged by paragraph 1 of Article 122 of the Tax Code.
However, before the enactment of paragraph 4 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation (the norm came into force on August 24, 13), the law did not give grounds to state with certainty that illegal VAT refund should be considered as non-payment of tax. Article 45 of the Tax Code of the Russian Federation, which discloses the concept of fulfilling the obligation to pay tax, did not give such an understanding.
The council is not right on three grounds.
The opinion of the adviser to the Arbitration Court of the North Caucasus District is disputable at least on three grounds.
First, a measure of responsibility for the non-return of excessively refundable tax in the form of a fine of the current wording of Article 122 of the Tax Code is not provided for. The introduction of paragraph 4 of clause 8 of Article 101 of the Tax Code of the Russian Federation without corresponding changes to Article 122 of the Tax Code of the Russian Federation does not give grounds for charging a fine, since any doubts and contradictions must be interpreted in favor of the taxpayer (Clause 7 of Article 3 of the Tax Code of the Russian Federation).
Secondly, according to the general procedure, established by Article 176 of the Tax Code Russian Federation, the tax authority reimburses VAT after a desk audit of the declaration. Taxes confirm the company's right to reimbursement. There are three indispensable conditions for reimbursement of VAT: the existence of a tax return, the absence of errors in it. The decision of the tax authority for desk audit. The fact of submitting a declaration with the amount of tax, to be refunded from the budget, doesn`t mean that the taxpayer receives the right to tax refund.
Therefore, the actions of the tax authority are the basis for the arrears, arising from the illegal refund of VAT. The taxpayer's fault (and his liability) is possible only in case of criminal collusion with officials of the tax authority or falsification of documents. In other situations, you can`t talk about guilt. There is no guilt - there is no liability under Article 122 of the Tax Code.
The tax authority in this case must prove the fault of the taxpayer. The provisions of paragraph 4 of clause 8 of Article 101 of the Tax Code of the Russian Federation don`t rest responsibility upon the taxpayer for excessive compensation. This is confirmed by the position of the Constitutional Court (Definition No. 571-O of 10.03.16).
Thirdly, in the opinion of the scientific advisory council, if the taxpayer filed the declaration for reimbursement prior to the introduction of paragraph 4 of paragraph 8 of Article 101 of the Tax Code, and unreasonably received it after, he is an offender. This position is also erroneous. Should determine whether or not the fault in the actions of the taxpayer in this case at the time of filing a tax return for reimbursement. The taxpayer who filed such a declaration before the entry into force of this rule can`t be held accountable, even if the refund has already taken place. Otherwise, the principle of the acts of legislation on taxes and fees will be violated (Clause 2 of Article 5 of the Tax Code of the Russian Federation).
The Supreme Court should explain
As will be the practice on this issue, we can see from the judicial acts in case No. A15-2008 / 2016. In this case, the taxpayer just submitted a declaration for VAT refund before the entry into force of paragraph 4 of paragraph 8 of Article 101 of the Tax Code of the Russian Federation, and received a refund after. The court will also assess the possibility of applying a fine to the taxpayer under Article 122 of the Tax Code. It follows from the case file that the company recovered this amount of tax in a different period before receiving an illegal refund to its account.
Today in arbitration practice on the resolution of disputes, related to the application of paragraph 4 of clause 8 of Article 101 of the Tax Code of the Russian Federation and Article 122 of the Tax Code of the Russian Federation, there is no certainty and uniformity. This adversely affects the predictability of law and order, it doesn`t give the taxpayer the opportunity to predict the legal consequences of his actions.
In particular, in the resolution of the Arbitration court Volga region of 11.03.15 № F06-20798 / 2013 (refused to review the definition of the Supreme court Russian Federation of 20.07.15 № 306-KG15-7269) stated that the penalty as a measure of responsibility for the non-return of an excessively refundable tax item 122 of the Tax Code is not provided. But in the resolution of the Arbitration court of the Moscow region of April 28, 15 № A40-41759 / 14 (denied revision by the definition of the Supreme court Russian Federation of 10.11.15 № 305-KG15-9497) prevailed pro-budgetary approach. The judges pointed out that the company's actions to illegally recover the excise tax led to the formation of a shortage of it. In this regard, it is legitimate bring to account the taxpayer according with Article 122 of the Tax Code.
It is important that the Supreme Court of the Russian Federation draw attention to the problem and prepare a review of the plenum on this issue. Moreover, uncertainty influences, for example, the possibility of applying paragraph 4 of clause 8 of Article 101 of the Tax Code of the Russian Federation and Article 122 of the Tax Code of the Russian Federation in the case of a declarative procedure for refunding VAT. Whereas in this case Article 176.1 of the Tax Code of the Russian Federation already provides for responsibility for the same violation.