Entrepreneurs often neglect to object to the inspection report, considering it a difficult or useless task. This article will help you look at this task differently, because in fact, in order to write an objection, you do not need to hire an expensive tax lawyer or be a tax guru yourself. It is important to have your own point of view and be able to justify it.
It should be remembered that tax authorities are not interested in having their decision appealed and overturned. Therefore, in some cases, this is a chance to change the position of the tax authority for the better.
Let's remember the main thing
Act on the results on-site tax audit drawn up within two months from the date of drawing up the certificate of the work carried out by authorized officials of the tax authorities.
Act on the results desk tax audit drawn up in case of detection of violations of tax legislation within 10 days after the end of the desk tax audit.
Act not compiled based on the results of a desk audit, as a result of which no violations of the legislation on taxes and fees were found.
The tax audit report is signed by the persons who conducted the relevant audit and the person in respect of whom this audit was carried out (or his authorized representative).
According to paragraph 5 of Art. 100 of the Tax Code of the Russian Federation, the act is handed over to the person in respect of whom the inspection was carried out, or to his representative within five days from the date of its preparation. If the person being inspected refuses or evades receiving the report, then:
- this fact is reflected in the tax audit report;
- The tax audit report itself is sent by registered mail to the location of the organization (separate division) or the place of residence of the individual.
If sent by mail, the date of delivery of the act is considered to be the sixth day counting from the date of sending the registered letter.
Ability to object
Let's look at some of the subtleties of appeal depending on the type of act. In addition, you should decide whether you have substantive objections or whether you have only complaints regarding procedural issues (on the inspection procedure, on drawing up the report, on the order of its consideration).
And right away I would like to say about the refusal to sign the act.
It is clear that the taxpayer has the right to refuse to sign the act, and no one has the right to force him to sign.
However, this doesn't make much sense.
The inspectors will simply put a mark like “The person being inspected (his representative) refused to sign the act,” and, as a rule, in order to attest to this fact, tax inspectors involve third parties.
Despite the fact that the law does not establish any liability for failure to sign the act, such behavior may indirectly indicate your bad faith.
Signing the act in the future will not cause tax officials to have a biased attitude towards you. In addition, signing the act does not mean that you completely and unconditionally agree with all the conclusions contained in the act.
As a rule, a copy of the act is handed over at the time of its signing, if a representative of the organization came to the Federal Tax Service in person. Otherwise, if the representatives cannot or do not want to receive it, the act is sent by registered mail with notification or transmitted in another way that allows the exact date of receipt to be determined.
Already at this stage, you should be especially careful and monitor all procedural violations that may be decisive.
A significant violation of the procedure for considering audit materials may subsequently serve as grounds for canceling the tax authority’s decision in whole or in part.
However, you should not file claims with the tax authorities for any violation you identify. Most procedural violations can be corrected during the review of the audit materials. For example, a decision may be made to carry out additional tax control measures.
But when a decision on the audit report has already been made and it is problematic to correct anything on legal grounds, then it is possible to point out significant violations of the procedure for considering the act and other materials of tax control measures. For example, failure to provide the person in respect of whom the act was drawn up with the opportunity to participate in the process of reviewing materials.
This, as we remember, is the basis for the cancellation of a decision by a higher tax authority or court.
Attention to date
From the date of receipt of the act, the taxpayer has 15 working days to familiarize yourself with the act and, in case of disagreement, submit written objections.
If an act on the discovery of facts is drawn up, then the period for filing objections is 10 working days.
After the fifteen-day period, within ten working days, the inspection report must be reviewed by the head (his deputy) of the Federal Tax Service. A decision must be made on it.
The tax authority is obliged to ensure the opportunity for the taxpayer to participate in the consideration of materials, for which the taxpayer is sent a notice indicating the place, date and exact time of consideration of the act by the commission.
As a rule, the commission is appointed for the first three days out of ten allotted for making a decision, but a decision can be made on any of the ten days.
It is not allowed to make a decision before the required 15 days have expired - this is a significant violation of the terms of the review procedure.
The date of receipt of the act is the starting point for the filing of objections, the period for considering the case and making a decision on it.
Was the act sent by mail? The date of receipt is the sixth day from the date of dispatch.
However, let's make allowances for the work of the post office: it is quite possible that the act will be received later. Is there any benefit to be gained from this matter?
Let’s assume that the desk inspection report was sent by mail on October 1, 2012. Formally, it is considered to have been received on October 8, 2012 (clause 5 of Article 100 of the Tax Code of the Russian Federation).
Let’s also assume that the act actually arrived two days late and was received on October 10, 2012.
Tax officials, assuming that the report was received on time, calculated the deadline for filing objections - October 29, 2012. On October 30, the person being audited was invited to review the materials, but he did not appear.
Having established that the taxpayer was notified of the consideration of the case and did not appear, the head of the Federal Tax Service makes a decision to carry out this procedure in the absence of the taxpayer.
Based on the results of consideration of the materials, on the same day a decision was made on October 30, 2012 to hold the taxpayer accountable.
However, the report was received on October 10, therefore, the last day for submitting objections is October 31. Consideration of materials must take place no earlier than November 1, and a decision can be made no earlier than this date.
The decision was made on October 30. That is, there was a violation of the essential conditions of the procedure for considering the case materials, and there are grounds to conclude that the taxpayer was deprived of the opportunity to protect his interests.
Where can you find abstracts to substantiate your position?
This is, as they say, a procedural issue. However, first of all, attention should be paid to conclusions with which the taxpayer does not agree, in particular, due to controversial or unsettled tax legislation.
To substantiate your position, you should be guided primarily by the norms of the Tax Code of the Russian Federation. Secondly, clarifications from the Ministry of Finance of Russia and the Federal Tax Service of Russia.
Of course, these are not regulations (which the Ministry of Finance carefully reminds in almost every letter).
But, firstly, the Ministry of Finance of Russia is a superior body in relation to the tax service, therefore tax specialists must adhere to the guiding opinion expressed in its letters. True, financiers insist that their explanations are binding on tax authorities only if they are directly addressed to the tax service.
However, paragraphs. 5 p. 1 art. 32 of the Tax Code of the Russian Federation says differently: “Tax authorities are obliged<...>be guided by written explanations of the Ministry of Finance of the Russian Federation on the application of the legislation of the Russian Federation on taxes and fees."
In addition, according to the Presidium of the Supreme Arbitration Court of the Russian Federation, expressed in Resolution No. 13322/04 of September 19, 2006, the fact of sending a letter to a specific person upon his request does not exclude the broader validity of explanations given by financiers if they contain mandatory rules of conduct addressed to an indefinite number of persons and designed for repeated use. In other words, anyone can use this document.
By the way, on the website of the tax service there is a whole section called “Explanations of the Federal Tax Service of Russia, mandatory for use by tax authorities.”
In addition, theses in your favor can be found in those documents that were relevant during the period under review. Even if this does not help avoid taxes, it will help get rid of penalties. It is unlawful to charge penalties on the amount of arrears if it arose as a result of the use of the position of officials in the work, and guilt in committing a tax offense under such circumstances is excluded (clause 8 of Article 75, subclause 3 of clause 1 of Article 111 of the Tax Code of the Russian Federation).
Let's not forget judicial practice. Tax officials do not forget it either: back in 2007, the management of the tax service indicated that if the tax authority believes that the circumstances of the case are similar to those circumstances in which the actions of the tax authority were recognized as illegal, and the tax authority has no reason to believe that the consideration Since the case in court will end in favor of the tax authority, it is advisable to take into account the existing judicial and arbitration practice in the region (Letter of the Federal Tax Service of Russia dated May 11, 2007 N ShS-6-14/389@).
About the benefits of mathematics
It is unlikely that any of our readers doubt the need to check the verification report for arithmetic errors. Despite the fact that the given figures are double-checked several times, no one is immune from errors.
In addition, pay special attention to the final part of the deed, where the specific amount that is proposed to be paid is indicated.
When calculating additional taxes, you should take into account the existing amounts of overpayment on the date of payment of the tax for the period for which it is calculated; this procedure is not the simplest.
So there are plenty of opportunities to make mistakes. And this error will entail incorrect calculation of penalties and fines.
So, the inspection act has been studied, points of disagreement have been identified.
You can begin to draw up objections to the act as a whole or to its individual parts.
There is no approved form of objection, so you can create with confidence. Observing, of course, certain rules.
In the upper right corner you must indicate the addressee: position, surname and initials of the head of the tax authority, full name and address of the inspectorate to which objections are submitted.
If objections are submitted by an individual or individual entrepreneur, then initials, surname, TIN and registration address are indicated.
In the center, as a rule, they write the title of the document: “Objections to the Desk (or on-site) inspection report from (specify number) N (specify number).”
“Based on the results of a desk (on-site) tax audit carried out in relation to (name of taxpayer), an act was drawn up (indicate details). Based on the act (indicate to whom), it was proposed to pay arrears of taxes (duties) in the amount (indicate) accrued on fines in the amount of (specify), fines in the amount of (specify).
These proposals are based on the inspection materials and conclusions reflected in the report.
We believe that these conclusions do not reflect the actual circumstances of the case, do not correspond to reality, and contradict tax legislation for the following reasons."
We indicate the point of the act with which we do not agree, and provide reasonable (and, if possible, documented) arguments. There is no need to quote the Tax Code of the Russian Federation, references are enough.
When attaching documents to objections, follow the rules established by Art. 93 of the Tax Code of the Russian Federation: provide certified copies of these documents, which must be bound and numbered on each page. On the last sheet of the binder, on the back side, glue a piece of paper with the following text: “The copy is correct. Numbered and laced on (indicate the number of sheets) sheets.” The sheet is sealed with the taxpayer's seal, the manager's signature and the date.
The requirement for notarized copies is unlawful, unless this is expressly provided for by law.
The objection should be completed by stating your demands: “Taking into account the above and on the basis of the documents presented, we ask you to cancel the tax audit report (or those points with which you do not agree), as well as the assessment of taxes in the amount of (specify) and the corresponding amounts of penalties and fines.”
What's next
Written objections are submitted to the tax authority that conducted the audit.
It is hardly advisable to do this on the first day of fifteen. The less time the tax authorities have to study your arguments, the less likely it is that they will be able to refute them.
You can take advantage of the opportunity provided by clause 8 of Art. 6.1 of the Tax Code of the Russian Federation, and send objections before midnight of the last day allotted for filing objections by registered mail with a list of attachments.
Although, of course, we cannot exclude the possibility that a decision may be made on additional tax control measures, and the final decision will be postponed for a month.
Do I need to go to the commission?
Everyone decides this issue for themselves. This is a right, not an obligation.
The taxpayer’s failure to appear at the commission is not an obstacle to its conduct, that is, the materials will be considered in your absence.
However, while attending the commission, you can:
- state your demands orally during the review process;
- submit additional documents that, for various reasons, were not submitted along with written objections - the tax authority is obliged to accept and study them;
- supplement your objections;
- provide additional arguments;
- give up objections altogether. In this case, please pay attention to the fact that the additional requirements presented are recorded in the protocol of consideration of the inspection materials (a copy of it must be issued to the Federal Tax Service).
Even if there is nothing to object to, you can ask for a reduction in penalties due to the presence of mitigating circumstances, especially since if there is at least one mitigating circumstance, the amount of the fine must be reduced by at least two times (Clause 3 of Article 114 of the Tax Code of the Russian Federation ).
So visiting the commission is not such a waste of time. There may still be a result, but no harm.
November 2012
The tax audit is completed. But the hardest thing is ahead - you have to defend your good name and, most importantly, money. To do this, you need not only to present objections, but also to competently calculate the situation two steps ahead. Little tricks will help with this, because in a dispute all means are good.
Tax authorities conduct both on-site and desk audits. And the logical conclusion of these activities is almost always a tax audit act. The only exceptions are desk audits, as a result of which no violations of the legislation on taxes and fees were found.
In addition, tax authorities diligently draw up reports on the discovery of facts indicating the commission of tax offenses.
Receiving any of these acts does not promise anything pleasant, because it means the accrual of taxes, penalties and prosecution.
However, not everything is as sad as it might seem. In case of disagreement with regulatory authorities, taxpayers have the right to object and defend their good name, and at the same time their money. To do this, you must submit appropriate objections to the act to the tax authority.
The general rules for filing objections are set out in Articles 100 and 101.4 of the Tax Code. These articles indicate the deadlines for filing objections, as well as the procedure for their consideration. However, there are some nuances of appealing a particular act, which it would not hurt to know about and which must be taken into account.
It is worth noting that the procedure for filing objections depends on what act was drawn up. You also need to decide for yourself whether these are substantive objections, or whether you have any complaints about the inspection procedure, the drawing up of the report and the procedure for its consideration.
Moment of receipt of the act
Almost every organization knows that an audit of financial and economic activities is underway, after which a report will be drawn up. Thus, during a desk audit, the report is drawn up within 10 days from the date of completion of the audit, and during an on-site audit, within two months after signing the certificate of the on-site tax audit.
After drawing up the act, it must be signed by the persons who conducted the inspection, as well as by the person in respect of whom it was carried out (or his representative). By and large, no one can force you to sign the act, but if you refuse, then a corresponding note is made in it. Usually it sounds like this: “The person in respect of whom the inspection was carried out (his representative) refused to sign the act.” In this case, particularly meticulous inspectors may involve third parties to attest to this fact. It is worth understanding that, although no liability is provided for failure to sign the act, such behavior may indirectly indicate the taxpayer’s dishonesty. So you can and should sign the act, since such behavior in the future will not cause tax officials to have a biased attitude towards you. According to paragraph 5 of Article 100 of the Tax Code, the act must be delivered to the person being inspected (his representative) within five days from the date specified in the act. Typically, a copy of the act is handed over at the time of its signing, if a representative of the organization came to the inspection in person. However, circumstances may arise when representatives, for various reasons, cannot or do not want to receive it. In such cases, this document must be sent by registered mail with acknowledgment or transmitted in another way that allows you to accurately determine the date of receipt.
Let us note that the confrontation with the tax authorities begins already at the stage of delivering the inspection report. This is where it is necessary to clearly monitor all procedural violations of controllers, since in the end they can be decisive. Thus, if there is a significant violation of the procedure for considering audit materials, as well as the procedure for collecting evidence, the decision of the tax authority may be canceled either in its entirety or in a separate part. At the same time, you should not rush to file claims with the tax authorities on these grounds, since it is always good to have a spare “trump card up your sleeve.” This is explained by the fact that most procedural errors of inspectors can be eliminated during the review of the inspection materials. For this purpose, the head of the inspection (his deputy) may decide to carry out additional tax control measures. But at the stage when the decision on the inspection report has already been made and the inspectors will not be able to correct anything, it is possible to lay out a “wild card”: if the essential conditions of the procedure for considering the act and other materials of tax control measures are violated, this is grounds for canceling the decision by a higher tax authority or court. Such essential conditions include ensuring the opportunity for the person in respect of whom the act was drawn up to participate in the process of reviewing the materials.
In this regard, the date of receipt of the act is of great interest, since this day is the starting point for the beginning of calculating the period for filing objections, the period for considering the case and making a decision on it. That is, all subsequent stages, and in some cases, the outcome of the case, depend on the moment of receipt of the act.
So, if the inspection report is sent by mail, the date of its receipt is considered to be the sixth day from the date of mailing. But, given how “properly” the post office works, organizations may receive the certificate a few days later. This is where confusion begins in the timing of the consideration of the case, which can be beneficial to the person being audited. And in order to understand how to benefit from this situation, it is necessary to recall all the deadlines for the stages of reviewing audit materials, and also consider an example.
Thus, from the moment the organization receives the act, it has 15 working days (in the case of drawing up an act on the discovery of facts, the period for filing objections is 10 working days) to familiarize itself with the act and, in case of disagreement, submit written objections. After this 15-day period, within 10 working days, the inspection report must be reviewed by the head (his deputy) of the inspection and a reasoned decision must be made. At the same time, the tax authority must ensure the opportunity for the taxpayer to participate in the consideration of materials. To do this, he is sent a notification indicating the place, date and exact time when the commission will consider the act. Usually the commission is appointed for the first three days out of ten allotted for making a decision. The decision can be made on any of the ten days, and not specifically on the tenth. That is, it can be accepted on the first day after the period allotted for filing objections. In this case, it is not allowed to make a decision before the required 15 days have expired, since this may be regarded as a significant violation of the terms of the review procedure with all the ensuing consequences.
This is important
When signing the act, be sure to check the date, that is, when it was drawn up. The fact is that controllers often “sin” and indicate in it not the current date, but the past one.
Example
The organization was sent a desk tax audit report by mail on February 1, 2012. According to paragraph 5 of Article 100 of the Tax Code, the act will be considered received on the sixth day from the date of sending, that is, February 8, 2012. In fact, the act was received on February 10, 2012.
Mistakenly believing that the report was received on February 8, 2012, the inspectors calculated the deadline for filing objections as March 1, 2012. Consequently, on March 2, the taxpayer was invited to review the materials, to which he did not appear. The head of the inspectorate, having established the fact that the taxpayer was notified of the consideration of the case and his failure to appear, decided to carry out this procedure in the absence of representatives of the company. Based on the results of consideration of the materials on the same day, a decision was made on February 2, 2012 to hold the taxpayer accountable.
However, since the act was actually received on February 10, 2012, the last day for filing objections will be March 3. Consequently, consideration of the materials should take place no earlier than March 5 and a decision can be made no earlier than this date. And since it was adopted on March 2, there is a violation of the essential conditions of the procedure for considering the case materials. That is, a higher tax authority or court may conclude that the organization was deprived of the opportunity to fully protect its interests. As a consequence, the decision can be canceled on formal grounds. In support of this conclusion, there is a letter from the Ministry of Finance of Russia dated July 15, 2010 No. 03-02-07/1-331 and resolutions of the Federal Antimonopoly Service of the Moscow District dated January 23, 2009 No. KA-A40/12029-08 and January 23, 2009. No. KA-A41/ 12979-08.
Objections on the merits
So, the organization or entrepreneur still received the “long-awaited” inspection report. First of all, of course, attention is required to those conclusions of tax authorities with which organizations do not agree due to the fact that the provisions of the legislation on taxes and fees are controversial and the accounting of certain transactions is not regulated by the Tax Code and other legal acts .
To challenge such conclusions, you will need to use the entire possible arsenal, and it is quite wide. To substantiate your position, you should cite not only the norms of the code, but also the explanations of the Ministry of Finance and the Federal Tax Service on similar situations. Although letters from the financial department are not legal acts, which is mentioned at every opportunity, the ministry is still a superior body in relation to the tax service. Consequently, tax specialists in their work must adhere to the opinion reflected in the letters.
In addition, support for your position can be found in the recently created service “Explanations of the Federal Tax Service, mandatory for use by tax authorities.” This section contains letters from the Federal Tax Service, a link to which can eliminate all claims of tax officials. The service is posted on the official website of the Federal Tax Service. At the same time, regarding the clarifications of the Ministry of Finance, it should be remembered that they are mandatory for tax authorities only in the case when they are directly sent to the tax service. Both financiers insist on this (letter of the Ministry of Finance of Russia dated August 7, 2007 No. 03-02-07/2-138) and the tax authorities themselves (letter of the Federal Tax Service of Russia dated September 14, 2007 No. ShS-6-18/716@ ). However, it is worth recalling subparagraph 5 of paragraph 1 of Article 32 of the Tax Code, which directly states that inspectors are required to be guided by written explanations of the Ministry of Finance on the application of the legislation of the Russian Federation on taxes and fees.
In addition, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 19, 2006 No. 13322/04 states: the fact of sending a letter to a specific person upon his request does not exclude the wider validity of explanations given by financiers if they contain mandatory rules of conduct addressed to an indefinite circle persons and designed for repeated use; therefore, anyone can use them.
You should also rely not only on the most recent letters, but also on those that were relevant during the period under review. And if this does not help to avoid additional taxes, then at least it will eliminate the accrual of penalties. This conclusion follows from the analysis of paragraph 8 of Article 75 and subparagraph 3 of paragraph 1 of Article 111 of the Tax Code. Taxpayers cannot be assessed penalties on the amount of arrears if they arose as a result of the use of the position of departmental officials in their work. Guilt in committing a tax offense under such circumstances is excluded. Arbitration judges share a similar opinion (resolution of the Federal Antimonopoly Service of the North-Western District dated September 18, 2009 in case No. A42-1455/2009).
Another significant source of substantiation of one’s arguments is the established judicial practice on controversial issues, which is positive for taxpayers. Back in the letter of the Federal Tax Service of Russia dated May 11, 2007 No. ШС-6-14/389@ it was stated: if the tax authority believes that the circumstances of the case are similar to those circumstances in which the actions of the tax authority were recognized as illegal, and the tax authority has no grounds If you believe that the consideration of the case in court will end in favor of the tax authority, then it is advisable to take into account the existing judicial and arbitration practice in the region. You can add a specific position of the Presidium of the Supreme Arbitration Court of the Russian Federation. But the mere fact of a court decision not in favor of the tax authority cannot be a basis for excluding from the draft decision on bringing to tax liability for committing a tax offense legal and substantiated conclusions about violations of the legislation on taxes and fees committed by the taxpayer (letter of the Federal Tax Service of Russia dated May 30 2006 No. ШС-6-14/550@).
At the same time, it would not be superfluous to check the audit report for the presence of arithmetic errors when calculating taxes. It is clear, of course, that the figures are repeatedly checked by tax authorities, but no one is immune from mistakes. So if any are discovered, then you need to boldly declare it.
It also makes sense to check the final part of the act, where it is proposed to pay certain amounts of taxes, fees, penalties and fines. This is due to the fact that when assessing additional taxes, inspectors need to take into account the existing amounts of overpayment as of the date of payment of the tax for the period for which it is calculated. And this procedure, as the inspectors admit, is not the simplest, and therefore it will not be difficult to make a mistake. As a result, both penalties and fines will be calculated incorrectly.
Registration of objections
Having studied the inspection report and identified the points with which you do not agree, you can begin to directly draw up the objections themselves. There is no approved form for drawing up objections, so complete freedom of thought is provided here. However, there are still some design guidelines.
This is interesting
Objections can be filed not only to the inspection report as a whole, but also to its individual parts.
First of all, it is necessary to indicate to whom these objections are addressed: in the upper right corner it is reflected in whose name the objections are written, indicating the position and surname. It should also be noted to which tax authority the objections were specifically submitted (full name, address). Next, it is indicated from whom the objections are submitted (full and abbreviated name of the organization, tax identification number, checkpoint and address). If objections are submitted by an individual or individual entrepreneur, then initials, surname, TIN and registration address are indicated.
“Objections to the cameral (on-site) inspection report No.... dated...”
Although writing objections is to some extent a creative process, it is advisable to start it by stating some facts. To do this, we recommend using the following formulation:
“As a result of a desk (on-site) tax audit, an act No. ... dated ... was drawn up in relation to (indicate the name of the taxpayer). Based on the results of this act, the Company (individual entrepreneur) was asked to pay arrears of taxes (fees) in the amount of ..., penalties accrued on it in the amount of ..., as well as fines in the amount of .... These proposals are based on the inspection materials and conclusions reflected in the report.
We believe that these conclusions are based on facts that do not reflect the actual circumstances of the case, and also do not correspond to the reality and provisions of the legislation on taxes and fees, for the following reasons.”
Next, the specific point of the audit report with which the taxpayer does not agree is indicated. After this, reasonable and, if possible, documented arguments are given. When presenting your arguments, you should not “overload” the text with quotes from the Tax Code or other laws; it will be enough to make a link to a specific article.
If you need to attach any documents to your objections, you must adhere to the requirements of Article 93 of the Tax Code. That is, it is necessary to submit duly certified copies of these documents. In this case, all documents are folded into a single pile and stitched. Next, you should put numbers on each page, and stick a tag with the following text on the back of the last sheet of the binder:
“The copy is correct. Numbered and laced on... sheets and date.”
The tag is sealed with the seal of the organization (individual entrepreneur), signed by the manager and dated. It must be remembered that tax authorities do not have the right to demand notarized copies of documents unless this is expressly provided for by law.
At the end of presenting reasonable arguments, it makes sense to put forward your demands. In other words, you need to make a record of the following content:
“Taking into account the above, as well as the documents presented, we ask you to cancel the tax audit report No. ... dated ... (or those points of the act with which you do not agree), as well as the assessment of taxes in the amount of ... and the corresponding amounts of penalties and fines."
After drawing up written objections, they should be submitted to the relevant tax authority that conducted the audit. There is no need to rush to do this in the first days of the allotted fifteen. This is because the sooner you submit them, the more time inspectors will have to study them. Therefore, they will be better prepared to challenge the validity of your arguments. And here there is a little trick.
According to paragraph 8 of Article 6.1 of the Tax Code, an action for which a deadline has been established can be performed before 24 hours of the last day of the deadline. That is, you can send objections to the inspectorate until midnight of the last day allotted for submitting objections. In addition, objections can be sent by registered mail with a list of attachments. In this case, the tax authority will receive them only after a few days. Consequently, he will have less time left before making a decision, and he will also need to study your arguments and take them into account, which will be objectively more difficult to do in a time crunch.
But there is also a downside to such actions. Based on the results of consideration of the case materials, the head of the tax authority may decide on additional tax control measures. In this case, the final decision will be delayed for a month.
This is important
If taxpayers' arguments do not have any justification, they are simply not subject to consideration by inspectors.
Review of inspection materials
As previously mentioned, the tax authority is obliged to notify the taxpayer of the date, place and time of consideration of the audit materials. In this regard, many organizations are asking the question: is it worth going to the commission?
To the Head of the Inspectorate of the Federal Tax Service of Russia No. 20 for Moscow
(Full name of the head of the inspection)
111141, Moscow, Zeleny prosp., 7a Limited Liability Company "Dolomit" (LLC "Dolomit") INN 7720123456 KPP 772001001 111141, Moscow, st. Metallurgov, 49
OBJECTIONS to the desk tax audit report No. 11-05 dated January 20, 2012.
As a result of a desk tax audit carried out in relation to Dolomite LLC on the basis of a tax return for value added tax for the third quarter of 2011, act No. 11-05 dated January 20, 2012 was drawn up. Based on the results of this act, the Company was asked to pay the arrears on taxes (levies) in the amount of ________, penalties accrued on it in the amount of ________, as well as fines in the amount of ________. These proposals are based on the inspection materials and conclusions reflected in the report. We believe that these conclusions are based on facts that do not reflect the actual circumstances of the case, and also do not correspond to the reality and provisions of the legislation on taxes and fees, for the following reasons:
1. The point of the act with which disagreement is expressed is indicated and justified arguments are given.
3. etc.
Taking into account the above, as well as the documents presented, we ask you to cancel the tax audit report No. 11-05 dated January 20, 2012 (or those points of the report with which you do not agree), as well as the assessment of taxes in the amount of ________ and the corresponding amounts of penalties and fines.
Head of Dolomit LLC A.A. Kuznetsov
(signature, date, stamp)
Of course, everyone decides for themselves whether to do this or not. However, when addressing this issue, it will be useful to know the following.
Each taxpayer has the right to participate in the consideration of audit materials personally or through a representative. At the same time, the taxpayer’s failure to appear at the commission is not an obstacle to its conduct. That is, the materials will be considered in the absence of the person being inspected.
At the same time, the Tax Code does not prohibit, in the absence of written objections, from presenting your demands orally during the consideration process. It is also not prohibited to submit any additional documents that, for various reasons, were not submitted along with written objections, and the tax authority is obliged to accept and study them. In addition, at the commission you have the right to supplement your objections, present additional arguments in your favor that were not previously stated, and also refuse objections altogether. But in this case, it is necessary to ensure that the additional requirements presented are recorded in the protocol for considering the inspection materials, a copy of which should be given to you by the inspectorate. This is due to the fact that your arguments should not be left without consideration and should be taken into account when making a decision.
Among other things, if you have nothing to object to the controllers, then at a minimum you can apply for a reduction in penalties due to the presence of mitigating circumstances. After all, the tax authority, in accordance with paragraph 3 of Article 114 of the Tax Code, in the presence of at least one mitigating circumstance, must reduce the amount of the fine by at least two times.
Thus, it makes sense to visit the commission, even if you have nothing to oppose the inspectors. You can still achieve results, albeit minimal ones (
When the tax inspectorate conducts an on-site tax audit, a report on its results is always drawn up. The inspectorate has 2 months for this from the date of drawing up the certificate of the on-site tax audit (clause 1 of Article 100 of the Tax Code of the Russian Federation). And if we are talking about a desk tax audit, then a report is drawn up only when the inspection reveals violations of tax legislation. In this case, the report is drawn up within 10 working days after the end of the desk tax audit (clause 5 of Article 88 of the Tax Code of the Russian Federation). Regardless of the type of tax audit, if you disagree with the conclusions reflected in the report, the taxpayer can submit objections to the tax audit report, a sample and example of a form for which we will provide in our consultation.
What is the deadline for filing objections?
If an organization does not agree with the facts stated in the inspection report, as well as with the conclusions and proposals of the inspectors, it can submit its written objections both to the act as a whole and to its individual provisions. The taxpayer is given 1 month for this from the date of receipt of the tax audit report (clause 6 of Article 100 of the Tax Code of the Russian Federation).
Where and in what form to submit objections?
Objections to the audit report are submitted to the tax office that conducted the audit and drew up an act based on its results. Please note that you cannot appeal the inspection report to a higher tax authority or to court.
If the taxpayer did not manage to submit objections on time, they can be voiced at the stage of consideration of the tax audit materials (clause 4 of Article 101 of the Tax Code of the Russian Federation). It is better to submit them in writing at this stage.
Objections to the tax audit report are drawn up in any form. They must indicate which provisions of the act you do not agree with (point by point) and provide references to the relevant norms of legislation to justify your position.
Copies of documents that would confirm the validity of the objections can be attached to written objections.
The taxpayer’s objections are signed by the director or another authorized person (accordingly, a power of attorney is attached).
Objections to the inspection report can be submitted to the inspectorate personally or through a representative in one of the following ways:
To the tax office or document acceptance window;
By mail.
When drawing up objections to the inspection report, it can be recommended not to indicate the procedural errors of the inspectors (for example, violation of the deadlines for the adoption of a document, lack of evidence). After all, then the inspection will have the opportunity to eliminate the shortcomings. However, such violations would play into the hands of the taxpayer when appealing the audit decision to a higher tax authority.
For objections to the desk inspection report, we provide a sample of their preparation.
An objection to a tax audit report is a counter written document that is submitted by the person being audited if he does not agree with the facts stated in the report. In this material we will tell you what exactly can be objected to in this way, how and within what time frame to submit the said document and how to complete it. We’ll also talk about what happens after filing objections and what a sample objection to a tax audit report looks like (an example that every interested taxpayer can use will also be in the article).
Who is objecting to what?
Among the rights of tax authorities (by Art. 31 Tax Code of the Russian Federation) there are tax audits (TA) - a set of procedures that control the accuracy of calculations, as well as the completeness and timeliness of payment of mandatory payments. Control can be desk-based or on-site. In the first case, employees of the Federal Tax Service analyze the information provided by the person being checked, plus the data they have, in their offices. In the second case, the specified analysis is carried out where the person being tested is located. They can check:
- taxpayers;
- payers of fees and insurance premiums;
- tax agents.
The results of the inspection (the presence of violations or their absence) are reflected in the act, its form is determined by Appendix No. 23 to the order of the Federal Tax Service of Russia dated 05/08/2015 No. ММВ-7-2/. Violations revealed by the inspection most often become the reason for documented objections. Moreover, they can be submitted both regarding the entire list of identified violations, and part of it.
Deadlines for preparing a controversial document
The time frame for preparing the report depends on the type of inspection and varies as follows:
- ten days after completion (we are always talking about working days, unless otherwise indicated) - in case of office;
- within two months from the date of drawing up the certificate of conduct - in the case of an on-site event;
- within three months from the date of drawing up the certificate of conduct - for an on-site, relatively consolidated group of taxpayers ( Ch. 3.1 NK).
The NP act is handed over to the person who was inspected (or his representative against signature) within five days from its date. This document can be transmitted in another way, which indicates the date of its receipt.
Evasion from receiving the document is recorded in it, after which it is sent by registered mail to the location of the organization (separate unit) or the place of residence of the individual. In this case, the date of delivery is considered to be the sixth day after sending the registered letter.
If a consolidated group of taxpayers was audited, the report (within ten days from its date) is handed over to the responsible member of the specified group.
For a foreign organization that does not have a separate division on the territory of the Russian Federation (minus an international organization, a diplomatic mission, a foreign organization that is registered for tax purposes under clause 4.6 Art. 83 NK), the NP act is sent by mail (registered mail) to the address from the unified state register of taxpayers. In this case, the 20th day after sending the registered letter will be the date of delivery of the document.
How and when to submit written objections
Filing objections to tax audit reports (personally or through a representative) occurs in one of the following ways:
- via mail;
- through the office or the window for receiving tax documents.
Let us remind you: if you disagree with the facts noted in the IR act, as well as with the conclusions and proposals of the tax authorities, the person who was inspected (his representative) has the right to submit written objections to the document in whole or in part to the tax authority that conducted the inspection.
A month is given for this from the date of receipt of the document. Moreover, the specified paper can be supplemented with documents (their certified copies) confirming the validity of the protest.
How they are drawn up and what is noted in objections
The document is drawn up in writing, in compliance with the following structure (of three parts):
- Introductory - informs about the inspection itself, its grounds, the actual time of the inspection, the composition of the inspectors, the number and date of the document being disputed.
- Descriptive - here the person being checked has the right to present all his arguments and arguments (both indisputable and doubtful) in detail and consistently, with maximum justification.
- Resolution (final) - where both the total additional charge of payments, with which the person being inspected does not agree (broken down by periods and amounts), and the amount of tax that is refused to be reimbursed can be indicated.
Sample of a written objection to a tax audit report
The sample below is universal. Consequently, it can be used both as a sample of an objection to an act of a desk tax audit, and as a sample of an objection to an act of an on-site tax audit.
What happens after filing written objections?
The head of the inspection body or his deputy considers written objections to the results of the inspection. This can happen either in the presence of the objector or without him. In any case, the specified person is notified of the time and place of such consideration. If there is inadequate notification of this or in the absence of the person being inspected, when his appearance is required, the consideration will be postponed. When appearing for consideration, you can explain the situation (both verbally and in documents).
The result of the review is a specific decision that appears ten days after the end of the month for appeal. They may consider the relevant materials and make a final decision longer, up to a month.
The final solution could be:
- carrying out such additional control measures as requesting documents, questioning a witness, examination;
- prosecution for tax violation;
- denial of this.
The results of a tax audit with additional assessments are reflected in an act - a document on the basis of which the head of the Federal Tax Service makes a decision on bringing the enterprise and official to tax liability. Upon completion of the audit, a copy of the report is given to the taxpayer. Objections to the result of the act of the enterprise are submitted to the Federal Tax Service in writing. The facts presented in the document may influence the decision made on the act. In this article we will talk about objections to the on-site tax audit report and give examples of documents.
Deadline for review and submission of objections
| Operation | Due date |
| Conducting a tax audit | 2 months or 3 months for a consolidated group. The period may be extended by decision of the head of the Federal Tax Service |
| Drawing up an act | 2 months |
| Delivery of the act to the taxpayer | 5 days from the date of registration of the act upon personal receipt by the head (trusted person) of the enterprise or by mail on the 6th day from the date of sending ( clause 5 art. 100 Tax Code of the Russian Federation) |
| Submission of objections | Within a month from the date of receipt of the act ( clause 6 art. 100 Tax Code of the Russian Federation) |
The deadline for filing objections is determined from the day following the date of delivery of the act in person or on the seventh day when received by mail.
Grounds for disagreement with the act
Well-written objections and well-founded arguments contribute to making a decision to cancel or reduce sanctions. A taxpayer can express disagreement with the act or part of it in relation to:
- Inconsistencies between the actual data of the enterprise and those specified in the act from the point of view of the provisions of tax legislation. In a number of cases, the facts of economic activity are misinterpreted by the inspection inspector.
- Inspection procedures. Violations of procedural order occur, but are extremely rare. Violation of the procedure does not affect the decision making. Cancellation of the decision is carried out in court.
- Data inconsistencies. The materials of the act sometimes contain incomplete information.
- Arithmetic of inspectors' calculations. Errors may occur when calculating penalties, fines and when determining the amount of arrears taking into account overpayments.
The taxpayer is not required to support the arguments put forward with documents. In the form of evidence, documents restored or received from counterparties may be attached confirming the information specified in the objections.
The procedure for submitting objections to the act
Objections to the act are submitted directly to the territorial office of the Federal Tax Service Inspectorate carrying out the inspection. The head of the enterprise or his representative has the right to submit the document in person through the office or by mail. Read also the article: → “”. When sending a letter by mail, the delivery time is taken into account ( clause 5 art. 100 Tax Code of the Russian Federation). Particular attention is paid to the preparation of applications, the submission of which complies with the requirements of Art. 93 Tax Code of the Russian Federation:
- Paper documents must be submitted as certified copies. The forms are certified by the head of the organization (IP) with the signature certified by a seal.
- Sheets of submitted duplicates are subject to numbering and stitching.
- Documents in electronic form are certified with digital signature.
An enterprise that has not submitted an objection has the right to take part in the discussion of the data of the act and make explanations orally with recording in the minutes ( clause 4 art. 101 Tax Code of the Russian Federation).
Composition of data in objections
There is no objection form available. The document must indicate information about the recipient, applicant and the subject of disagreement. The use of company letterhead is permitted.
| Intelligence | Composition of information | Location in the text |
| Recipient details | Name of the Federal Tax Service Inspectorate, position, surname, initials of the head to whose name the objections are submitted | Preamble of the document |
| Information about the applicant organization | Name of organization, INN/KPP, OGRN, location address, telephone | Preamble |
| Information about the applicant - individual entrepreneur | Last name, first name, patronymic in full, registration address, telephone number | Preamble |
| Name | “Objections to tax audit report No. __ dated ____” | Centered after the preamble |
| Verification data | Who carried out the inspection, period, number and date of the report | Introductory part |
| Subject of appeal | Arguments, arguments with reference to legal norms | Descriptive part |
| The essence of the appeal | Conclusions and request to review the position of the Federal Tax Service | Final part |
| Proof | List of attached documents | Applications |
When drafting a document, you must follow the rules of business writing.
Sample of filling out objections to the act
To the Head of the Federal Tax Service No. 5529
Viktorova M.P.
From Stroyteks LLC,
TIN 5529015690/552901001,
OGRN 2135529170201,
Omsk, st. Pavlova, 8
tel. 237-15-12
Objections
for an on-site tax audit report
LLC "Stroyteks" No. 325 dated 07/09/2016
Tax Inspectorate No. 5529 in the period from 03/10/2016 to 05/10/2016 conducted an inspection of the on-site nature of Stroyteks LLC. Act No. 325 dated 07/09/2016, drawn up based on the results of the inspection, was received by the director of Stroyteks LLC on 07/10/2016.
In accordance with the right granted by Art. 100 of the Tax Code of the Russian Federation, we present our objections to Act No. 325 of 07/09/2016 (hereinafter referred to as the Act).
According to clause 3.5 of the Act, during the inspection the Inspectorate discovered the fact of unauthorized application of a VAT deduction in the 3rd quarter of 2014, which resulted in non-payment of tax in the amount of 125,700 rubles. The amount of VAT was issued by the counterparty Vesti LLC in invoice No. 266 dated 08/12/2014 for the supply of movable equipment “Loader”. The Inspectorate considered the basis for the ineligibility of applying the deduction to be the actual non-use of equipment in the specified period due to the absence of a driver on staff.
We believe that there is no violation of tax laws. The eligibility for inclusion in the tax deduction of a tax amount of 125,700 rubles is based on the following positions:
- The documents received from the supplier meet the requirements for applying the deduction in accordance with Art. 172 of the Tax Code of the Russian Federation.
- The fixed asset has been registered (commissioning act OS-1 No. 25 dated September 10, 2014 is attached).
- The acquisition of equipment was carried out for use in activities subject to VAT. Order on hiring driver Vladimirov P.P. and employment contract No. 28 dated 10/01/2014 are attached.
We ask you to consider the objections and make a decision to refuse to bring to tax liability for the incompetence of applying a VAT deduction in the amount of 125,700 rubles according to invoice No. 266 dated 08/12/2014.
Director of Stroyteks LLC Smirnov K.N.
Deadline for consideration of objections
When determining the period for consideration of the materials of the report and the taxpayer’s objections, the following periods are taken into account:
- The review is carried out within 10 days from the date of expiration of the period established for filing objections.
- The period is calculated in working days.
- When assigning in-depth activities, a period of 10 days is counted from the date of completion of in-depth activities.
- The period can be extended within a month.
Presence of the taxpayer at the hearing
One of the important conditions for the legality of carrying out control activities is the invitation of the taxpayer to review the audit materials. The call is made in the form of a written notification. In the absence of a summons, the decision on the act may be canceled on a formal basis in court proceedings.
A manager or other person who has a power of attorney for the right to be present during the consideration of materials and provide explanations on emerging issues can act as a representative of the enterprise.
Differences in objections for different types of taxes
When drawing up objections, the norms established for each type of tax are taken into account.
| Position | Personal income tax | VAT | Income tax |
| Tax period for determining sanctions | Year | Quarter for normal activities | Year |
| Legislative norm of the Tax Code of the Russian Federation | Chapter 23 | Chapter 21 | Chapter 25 |
| Link to documents from counterparties | There are no grounds, records are kept by employee | Provides links to documents from each partner | Primary accounting documents from partners and independently generated ones are used - calculations, internal invoices, acts, certificates |
| Possible violations | Untimely withholding, transfer of tax, errors in providing deductions | Illegality of deductions, underestimation of the base, violation of the periods of application of deductions | Underestimation of the base, taking into account unjustified expenses, unreliability of primary accounting |
Depending on the type of tax, the list of supporting documents provided differs.
Mistakes when drawing up an objection
In the process of presenting arguments about disagreement with the inspection report, it is necessary to avoid drafting errors:
- Lack of data in the document allowing consideration of the taxpayer’s position. The grounds for objections must be reasoned.
- Deviation from the rules of writing a business letter. Emotional attacks and arguments that have no reference to legislative acts or evidence are unacceptable in the appeal.
- Violation of established deadlines for submission. If objections are filed after the allotted period, the act is considered without taking into account the protesting data.
An enterprise that fails to submit claims within the deadline established by law must contact the Federal Tax Service with a request to postpone the deadline based on compelling evidence. The intention to protest the result must be notified in advance. The appeal is made before the deadline for filing objections.
Answers to common questions about drawing up an objection to a tax audit report
Question No. 1. Does filing objections to the act matter if the company intends to protest the materials of the act in court?
Filing objections is part of the pre-trial procedure for challenging the provisions of the inspection report ( Art. 148 Arbitration Procedure Code of the Russian Federation). The law does not prohibit challenging in court without pre-trial measures. However, there are precedent decisions of arbitration courts not in favor of enterprises in the absence of claims at the pre-trial stage.
Question No. 2. Is it possible to refuse to sign the inspection report in the form of a protest?
Refusal to sign the act when appearing at the Federal Tax Service does not entail procedural consequences for the inspector. In the place intended for signature, an entry is made: “__________ refused to sign the act.” The recording is certified by the signatures of witnesses. A copy is sent by mail, which is recorded on the Inspection report.
Question No. 3. Does the right of an enterprise to file objections to an act depend on the fact of its signing?
The taxpayer has the right to submit objections regardless of signing the act or refusing to sign.
Question No. 4. Is it possible to ask for a reduction in sanctions when considering the materials of the act?
The amount of fines imposed on an enterprise can be reduced if there are mitigating circumstances, which can be stated on the record. Among the mitigating circumstances, one can point out the absence of previous violations, intent, admission of guilt, and good faith. Additionally, the amount of an administrative fine for an official may be reduced if there is a fork in the article of the Code of Administrative Offenses.
Question No. 5. Is it possible to indicate in the act the intention to file objections?
It is possible, a number of tax inspectorates offer to indicate disagreement and intention to challenge the result.
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