The shortest time is how many days in office work

The term in enforcement proceedings is the period of time during which the parties have the right or obligation to carry out procedural actions.

The beginning and ending always have legal consequences. For example, the bailiff will assign an enforcement fee to a debtor who voluntarily fails to fulfill the requirement. The obligation has not been repaid, time has expired, and as a result, a monetary penalty has been imposed.

Knowing the deadlines in enforcement proceedings, in which case, how they are calculated and ended, is important. This will allow the collector and the debtor to control the work of the bailiff and take timely actions required by law.

Installed by

1. Regulated by law. Federal Law 229 determines the time frame for opening proceedings, committing, suspending, and postponing compulsory processes. The characteristic difference between such terms is immutability. No one, neither the court nor the bailiff has the right to increase or decrease them.
2. Determined by the court. It is indicated in the judicial act that the necessary actions must be taken during this period. At the request of the defendant, the court has the right to postpone the execution of the decision. For example, delay the eviction for six months.
3. Established by the bailiff. Contained in a resolution issued by an official. For example, according to Art. 30 part 12 of Federal Law 229, the period of time given to the debtor to fulfill the requirements on a voluntary basis cannot exceed five days from the date of receipt of the resolution. However, at the request of the claimant or on his own initiative, the FSSP employee has the right to increase it to 10 (38 clause 1 of Federal Law 229).

Chapter 3 of Federal Law 229 determines the procedure for calculation, completion, restoration, suspension, extension, interruption of deadlines and the consequences of omission.

The Supreme Court indicated in which cases the statute of limitations is extended

Photo: supcourt.ru

The issues of extending the statute of limitations were clarified by the Supreme Court of the Russian Federation in a new 130-page review of judicial practice (read more about the review on Legal.Report here).

As the Supreme Court of the Russian Federation indicated, the limitation period is suspended for the period of actual compliance with the claim procedure (from the moment the claim is sent until the moment it is refused). Failure to receive a response to a claim within 30 days or the period established by the contract is equivalent to a refusal to satisfy the claim received on the 30th day or on the last day of the period established by the contract. Rule clause 4 art. 202 of the Civil Code of the Russian Federation on extending the limitation period to six months concerns those circumstances that are named in paragraph 1 of Art. 202 of the Civil Code of the Russian Federation.

As follows from the case materials, the corporation filed a claim with the arbitration court against the joint-stock company to collect a penalty for violating the deadlines for completing work under a government contract.

By decision of the court of first instance, a penalty was partially recovered from the company; the rest of the claim was rejected due to the expiration of the statute of limitations. The appellate court recognized the claim as filed in compliance with the statute of limitations, overturning the decision of the first instance court regarding the dismissal of the claim. By the decision of the district arbitration court, the decision of the appellate court was canceled, the decision of the first instance court was upheld. The Judicial Collegium of the RF Armed Forces overturned the judicial acts adopted in the case, sending the case for a new trial to the court of first instance.

As indicated by the RF Armed Forces, in accordance with Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, civil disputes regarding the collection of funds under claims arising from contracts, other transactions, as a result of unjust enrichment, may be referred to arbitration court after the parties take measures for pre-trial settlement after 30 calendar days from the date of filing the claim, if other deadlines or procedures are not established by law or agreement.

By virtue of clause 3 of Art. 202 of the Civil Code of the Russian Federation (as amended by the law of May 7, 2013 No. 100-FZ), if the parties resorted to the procedure for resolving the dispute out of court provided for by law - the mediation procedure, mediation, administrative procedure, etc. - then the course of the claim period statute of limitations is suspended for the period determined by law for carrying out such a procedure, and in the absence of such a period - for six months from the date of commencement of the relevant procedure.

Considering that in accordance with the transitional provisions (clause 9 of Article 3 of Law No. 100-FZ), the new limitation periods and the rules for their calculation apply to claims, the deadlines for submission of which were provided for by the previously effective legislation and did not expire until September 1, 2013. , clause 3 art. 202 of the Civil Code of the Russian Federation (as amended by Law No. 100-FZ) is subject to application in the case under consideration, since the deadline for submitting claims under the contract did not expire before the specified date.

As follows from the explanations set out in paragraph 16 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated September 29, 2020 No. 43, according to paragraph 3 of Art. 202 of the Civil Code of the Russian Federation, the limitation period is suspended if the parties have resorted to a non-judicial dispute resolution procedure, the recourse to which is provided for by law, including the mandatory claim procedure. Clause 3 of Art. 202 of the Civil Code of the Russian Federation and paragraph 16 of Resolution No. 43 were interpreted in the ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated June 6, 2020 in case No. 301-ES16-537, which concluded that the parties’ compliance with the claim procedure provided for by law within the limitation period does not count, effectively extending it for that period of time.

Illegal requests from bailiffs and other cases of the Supreme Court in the first review of practice for 2019

News25.04.2019
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From the systemic interpretation of paragraph 3 of Art. 202 of the Civil Code of the Russian Federation and Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation follows the rule according to which the running of the limitation period is suspended for the period of actual compliance with the claim procedure (from the moment the claim is sent until the moment it is refused), failure to receive a response to the claim within 30 days or the period established by the contract is equivalent to a refusal to satisfy a claim received on the 30th day or on the last day of the period established by the contract. Thus, if the response to the claim is not received within 30 days or the period established by the contract, or is received outside them, the limitation period is suspended for 30 days or for the period established by the contract for responding to the claim.

The applicant's argument and the conclusion of the appellate court that the limitation period was suspended for six months from the date the corporation filed the pre-trial claim are based on an incorrect interpretation of the provisions of the legislation of the Russian Federation.

Rule clause 4 art. 202 of the Civil Code of the Russian Federation on extending the limitation period to six months concerns those circumstances that are named in paragraph 1 of Art. 202 of the Civil Code of the Russian Federation and are characterized by the uncertainty of the moment of their termination. In relation to compliance with the procedure for pre-trial dispute resolution, the beginning and end of this procedure, which affects the suspension of the period, are established by law. A different approach will lead to an extension of the limitation period by six months for all disputes specified in Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, which contradicts the essence of the institution of limitation of actions, aimed at protecting legal certainty in the position of the defendant.

At the same time, canceling the decision of the appellate court, the district court wrongfully considered that the plaintiff’s filing of a claim was his procedural duty, provided for in Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, and does not suspend the limitation period on the basis of clause 3 of Art. 202 of the Civil Code of the Russian Federation.

By Law of March 2, 2020 No. 47-FZ, a mandatory claims procedure was introduced for most civil law disputes. Taking into account the provisions of Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, before filing a claim against the defendant for the recovery of a penalty under the contract, the plaintiff is obliged to send him a claim; the parties do not have the right to refuse the claim procedure, which is imperatively prescribed for them by the legislator. Consequently, during the period the corporation complied with the mandatory claim procedure, the limitation period for the claim declared by the corporation, in accordance with the legislation of the Russian Federation, was suspended.

The trial court by virtue of paragraph 3 of Art. 202 of the Civil Code of the Russian Federation and Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, it was necessary to examine legally significant circumstances relating to the plaintiff’s compliance with the claim procedure in order to establish a period to be excluded from the limitation period, which was not done (definition No. 305-ES18-8026).

Calculus

According to Art. 15 clause 2 of Federal Law 229, the period in enforcement proceedings is measured in days, months, years. Non-working days specified in Art. 112, 111 TK are not taken into account. For example, the period for voluntary compliance will increase if there is a holiday or day off (Sunday).

Periods are defined not only by the length of time. In some cases, the following are installed:

1. For a specific calendar date. For example, the defendant must take specific actions by May 20, 2020 (vacate illegally occupied housing, liquidate an unauthorized building).
2. At the time of the occurrence of a certain event. For example, enforcement actions are suspended until the debtor fully recovers or is demobilized from military service.

The countdown begins on the next day from the calendar date or from the moment the event occurs (15 clause 3). For example, if a person received a resolution on May 20, the time for voluntary execution (5 days) will begin to count from the next day, that is, May 21 and end on the 25th.

Calculation of deadlines according to 44-FZ

1. When is the deadline counted in working days, and when in calendar days?

As a general rule, the period is determined by a specific calendar date or the expiration of a period of time, in years, months, weeks, days or hours (Article 190 of the Civil Code of the Russian Federation). Thus, if a specific provision of Law No. 44-FZ does not indicate that the period is calculated in working days, the calculation must be made in calendar days.

For example, in Part 3 of Art. 63 of Law No. 44-FZ establishes the deadline for posting a notice of an electronic auction in the Unified Information System - no less than fifteen days before the closing date for filing applications. In this case, calculate calendar days. A notice of an open competition in electronic form should be placed fifteen working days , since this is expressly provided for in Part 1 of Art. 54.2 of Law No. 44-FZ.

2. How to calculate the beginning of the term

The start of the term may be determined by a specific date or event. When calculating the period, exclude the day specified as the reference point - the specific date or moment of the commission of an action or the occurrence of an event provided for by Law No. 44-FZ. Count the deadline starting from the next day, working or calendar, depending on which days the deadline is set (Article 191 of the Civil Code of the Russian Federation).

An example of calculating the start of a period set in working days

The approved procurement plan is subject to placement in the Unified Information System within three working days from the date of approval or change of such a plan, with the exception of information constituting a state secret (Part 9 of Article 17 of Law No. 44-FZ).

Changes to the plan were approved on March 15, 2020. The start of the period is counted starting from the next working day - Monday, March 18.

An example of calculating the start of a period set in calendar days

The customer’s decision to unilaterally refuse to fulfill the contract comes into force and the contract is considered terminated ten days from the date of proper notification to the supplier (Part 13, Article 95 of Law No. 44-FZ).

The customer's decision was received by the supplier by registered mail with return receipt requested on April 5, 2020. The first day of the ten-day period is counted from the next calendar day - Saturday, April 6.

3. How to calculate the end of the term

The end of the period will indicate the onset of certain legal consequences or the expiration of time for taking any actions in the course of work under Law No. 44-FZ.

It is important for calculations to determine whether the last day of the period is a non-working day - a weekend or a holiday. In this case, the expiration date will be considered the next working day following it (Article 193 of the Civil Code of the Russian Federation). Determine whether a day is a non-working day by referring to the production calendar for the relevant year.

Please note that if we are talking about performing a certain action on the last day of the deadline, the Civil Code of the Russian Federation allows it to be completed before 24 hours of that day. However, there is a nuance: if this action must be performed in the organization, then the period expires at the hour when the corresponding operations in the organization, according to established rules, cease. In this regard, to avoid the risk of controversial situations, determine the nature of such operations:

1) if these are actions performed, for example, on an electronic platform, in the UIS, the completion period ends at 24 hours of the last day of the period;

2) if these are actions related to operations in an organization, for example, acceptance of payment (settlement) documents in the Treasury, take into account the deadlines established by the rules of this organization.

Example of calculating expiration date

Within five days from the date the customer places the draft contract in the UIS, the winner of the electronic procedure signs the specified draft contract with an enhanced electronic signature, places on the electronic platform the signed draft contract and a document confirming the provision of security for the execution of the contract (Part 3 of Article 83.2 of Law No. 44-FZ ).

The customer posted the draft contract on the site and in the Unified Information System on April 26, 2020. We count five calendar days, starting from April 27, the last day of the deadline falls on the weekend of May 1. The participant must sign the draft contract before 24 hours of the first working day - May 6, 2020.

Ending

The ending depends on the method of calculation.

If the count is made in years, then the period must end on the corresponding date of the last established year (16 clause 1 of Federal Law 229).

If it is counted in days - to the last one (16 p. 3).

An exception is when the last day is a non-working day. In this case, the end will occur on the next working day.

The period measured in months ends on the same calendar date of the last month of the established period (16 clause 2).

There are situations when there is no such date in the last month. For example, the bailiff must involve a specialist in the assessment within one month from the moment the property is identified (85 Federal Law 229). If the date of discovery of the property turns out to be January 31, then in the next month - February there will be no such date. In such situations, the law prescribes that the end date be considered the last day of the established month. In this example, it is February 28 or 29 (depending on the year).

It should be noted that the time is not considered to have expired if the necessary actions were completed before 24 hours (16 clause 6). For example, the period for appealing the collection process ends on the 23rd. If the applicant files a complaint before midnight on the 23rd, no time will be lost. A superior person or authority must accept the document, review it and make an appropriate decision.

Pass and recovery

Failure to comply with deadlines entails liability and does not exempt you from fulfilling the requirement (17 part 1). For example, if the defendant does not want to voluntarily vacate the occupied living space within the period established by the resolution, the bailiff will impose a monetary penalty and forcibly evict the irresponsible citizen (18 clause 1 of Federal Law 229).

It is important to comply with the deadline when filing a complaint against the FSSP. If you miss the time specified in Article 122 of Federal Law 229, the document will be returned to the applicant and no action will be taken (17 clause 2).

However, if there is a good reason for absence, the period may be restored. To do this, the applicant, along with the complaint, must submit a corresponding petition (18 clause 1).

The superior person to whom the petition is intended has the right to refuse the request if he considers that the basis for the omission is unimportant circumstances. In this case, the applicant will receive a copy of the refusal decision, which the SSP must send the next day after the decision is made (18 clause 3). The refusal can be appealed in court (Article 121).

Deadline for fulfilling the requirement

Tax authorities may request documents, require explanations, or make appropriate corrections to the declaration when conducting both desk and field tax audits.
The company must submit clarifications or make corrections to the submitted declaration within five working days after the date of receipt of the request (clause 3 of Article 88 of the Tax Code of the Russian Federation).

The company is given 10 working days to submit documents after the date of receipt of such a message from the Federal Tax Service (Clause 3 of Article 93 of the Tax Code of the Russian Federation).

Time limit for consideration of a citizen’s appeal

Consideration of a complaint about the work of a bailiff by a higher-ranking person should not take more than 10 days (Article 126). It should be taken into account that the appeal takes place in the order of subordination determined by Art. 123 Federal Law 229.

As a rule, for greater efficiency, a citizen filing a complaint simultaneously with a similar application goes to court. If the court proceeds with the case, the time for studying the complaint in the SSP will be suspended.

The processing time for an application sent to the FSSP by mail or electronically through the official website of the service will be about 33 days.

Three days are given for mandatory centralized registration, which is carried out by the Office of Records Management in accordance with instruction No. 682 of October 10, 2010.

It will take 30 days to consider the application itself (12 No. 59-FZ). In special cases, this period can be extended, up to 30.

The applicant will be notified of the extension.

Time limit for initiating enforcement proceedings

The procedure for initiating proceedings should not take more than seven days.

Three days are allotted for transferring the application and documents from the office of the SPP to the bailiff (30 clause 7 of Federal Law 229).

The same amount is required for the official to study the received materials and make a decision to refuse or initiate proceedings (30 clause 8 F Z229).

Weekends and holidays are not taken into account, so the total time to initiate production will increase by one day (a total of seven).

The period will be reduced to one day if the executive document (ID) requires immediate implementation. In this case, the application and case materials are immediately submitted to the bailiff, who must make an appropriate decision within 24 hours.

The period during which the debtor is forced to comply with ID requirements is two months.

Exception:

• cases specified in Art. 36 clause 2-6.1 Federal Law 229,
• the deadline is set in the ID.

The calculation does not include situations defined in Art. 36 clause 7 (suspension, postponement of compulsory measures).

Taxes and Law

Very often, under construction contracts, builders do not meet the deadlines for work. This may result in significant penalties. However, the general contractor (contractor) is not always found guilty.

In the Ruling of the Supreme Arbitration Court of the Russian Federation dated January 15, 2010 No. VAC-17466/09 in case No. A40-4363/09-104-30, the court, while satisfying the application, reasonably took into account that the incorrect data contained in the project documentation resulted in a delay in the fulfillment of the obligation by the contractor; in addition, the customer violated the deadlines for payment for the work performed, which also, according to the contract, gave the plaintiff the right to a proportionate extension of the deadline for completing the work.

Article 719 of the Civil Code of the Russian Federation provides that the contractor has the right not to start work, but to suspend the work begun in cases where the customer’s violation of its obligations under the contract, in particular failure to provide material, equipment, technical documentation, prevents the execution of the contract.

At the same time, the contract contained the following conditions.

According to clause 8.4 of the contract, the contractor (plaintiff) has the right (in accordance with clause 20.1 (contractor's claims) to extend the deadline for completion of work, if and to the extent that the completion of work for the purposes specified in clause 10.1 (handover and acceptance of work and their parts) is delayed due to any of the following reasons:

a) change (except in cases where an adjustment to the completion date is agreed in accordance with clause 13.3 (procedure for making changes) or other significant change in the scope of work included in the contract;

b) the reason for the delay entitling you to an extension of time in accordance with any clause of these Terms;

c) exceptionally unfavorable climatic conditions;

d) unexpected shortages of personnel or goods caused by the consequences of an epidemic or government action;

e) any delay, disturbance or impediment caused directly or indirectly by the actions of the customer, the customer's personnel or other contractors of the customer on the construction site.

The court also found that the incorrect initial data contained in the design documentation prepared by the customer resulted in a delay in the contractor’s fulfillment of the obligation.

In this regard, it is necessary to recommend that the contractor correctly formulate the terms of the contract and carefully study the design documentation.

Statute of limitations for enforcement proceedings

The period during which the claimant has the right to present the ID for forced execution of the requirements contained.

ID with a statute of limitations of three years includes:

• writs of execution issued by judicial authorities (calculation is carried out from the date of entry into force of the adopted decisions);
• court orders.

Three months are given to submit for collection:

• certificates of the labor dispute commission. The countdown starts from the date of receipt of the document;
• writ of execution, whose missed deadline was restored by a decision of the arbitration court.

Acts of regulatory authorities (tax, customs service, Pension Fund) must be submitted for forced collection within a six-month period from the date of issue (21 clause 6.1.) or return from the bank (if there is not enough money in the defendant’s account to repay the debt) .

IDs for administrative violations are presented no later than two years from the date of entry into force.

IDs for collecting periodic payments have the longest statute of limitations. It is possible to force the debtor to satisfy the requirement for such documents during the entire period when payments must be made and three years after expiration (21 clause 4 of the Federal Law).

The countdown, as noted above, begins either from the moment of receipt of the document (labor commission certificate) or from the date the court decision or act enters into legal force.

But this doesn't always happen. If the court postponed or extended the execution of the decision, the countdown should begin after the installment plan expires (21 clause 9).

In addition, the ID period can be recalculated an unlimited number of times.

According to Art. 22 clause 1, its flow is interrupted when:

• the claimant initiated the ID;
• the debtor partially began to fulfill the demand.

The time before the interruption is not counted and receives a new starting point (22 p. 2).

If the bailiff completes the proceedings and returns the document to the claimant due to the impossibility of execution, the case can be reopened within three years from the date of return of the document. And do this an infinite number of times.

Reasons and terms for suspension or extension of inspection

To collect more evidence of violations, inspectors have the right to suspend the inspection or extend its period. Practice shows that the extension and suspension of inspections raise questions among companies. For example, do tax authorities have the right to suspend the “camera chamber”? Is it possible to question witnesses at this time? Do I need to comply with the requirement to submit documents if the inspection is suspended?

In accordance with Art. 87 of the Tax Code of the Russian Federation, desk and on-site inspections are carried out. The purpose of these inspections is different, and therefore the methods, timing and order of their conduct are different. Accordingly, there are different reasons that may cause the suspension or extension of an already begun inspection.

IMPORTANT IN WORK

Law No. 294-FZ prohibits scheduled inspections of such organizations and individual entrepreneurs that are classified as small businesses in accordance with the provisions of Art. 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation.” The ban is valid from 01/01/2016 to 12/31/2018.

The deadline for a desk audit cannot be changed.

Conducting a desk audit is part of the official duties of tax officials in accordance with Art. 88 of the Tax Code of the Russian Federation every time when submitting a declaration or other reporting.

To carry out this audit, tax officials do not need to receive orders from the head of the inspection, inform the audited organizations about the beginning and end of this audit, and even leave the walls of their offices. Taxpayers will be notified of the results of the audit if tax officials have questions or discover inaccuracies when filling out the declaration. The only condition (based on clause 2 of Article 88 of the Tax Code of the Russian Federation) is a three-month period from the date of filing the declaration. If during this period an organization or individual entrepreneur (IP) submits an updated declaration, then in accordance with clause 9.1 of Art. 88 of the Tax Code of the Russian Federation, the first desk audit is terminated, and a desk audit begins on the new declaration.

GOOD TO KNOW

The condition on the possibility of suspending an inspection is only in Art. 89 of the Tax Code of the Russian Federation, which regulates the procedure for conducting an on-site inspection. In Art. 88 of the Tax Code of the Russian Federation, which establishes the “camera chamber” procedure, there is no such condition.

Example 1.

Turbo LLC filed a transport tax return within the deadline established by law – 02/01/2016. On the same day, the tax inspector decided to begin a desk audit of this declaration, which should be completed by 05/01/2016. But on 03/01/2016 Turbo LLC filed an updated declaration for this tax, in accordance with clause 2 of Art. 88 of the Tax Code of the Russian Federation, the tax inspector stopped the audit that had already begun and began a new one - according to the updated declaration, the end date of which will be 06/01/2016.

That is, right before the end of the desk audit, tax officials have the right to request explanations and clarifications on the submitted declaration. If three months have passed since the submission of tax reports, and the tax inspector has not sent any request to Turbo LLC, then this declaration has passed a desk tax audit.

IMPORTANT IN WORK

Tax officials can neither extend nor suspend the “camera chamber.”

Even if the declaration is not submitted on time, tax officials have the right to conduct a desk audit in accordance with paragraph 2 of Art. 88 of the Tax Code of the Russian Federation within the same three-month period, based on the information that they have on this taxpayer or take for analysis the data of another organization with similar data. If, however, albeit late, the taxpayer submits a declaration during this three-month period, then the begun audit ends and the audit of the submitted declaration begins. Tax authorities will be able to use all information obtained during a desk audit both during an on-site audit and for use in the course of their other activities.

The purpose of conducting a desk audit is to identify or not identify errors when filling out a tax return, such as:

• discrepancy between the information in the submitted declaration and declarations submitted earlier, or information received by tax authorities from other sources (returning to example 1 - Turbo LLC submitted in the initial declaration information about a vehicle registered in 2014 and already declared on time 02/01/2015, and this information coincided, but the tax authorities received information from the traffic police about the registration of Turbo LLC in 2020, and the accountant forgot to indicate this data in the initial declaration. If the organization had not submitted an updated declaration, then the tax the inspector would have sent a request for clarification and had the right to fine Turbo LLC);
• arithmetic errors in calculating the taxable base or tax when filling out a declaration;
• discrepancy between the tax return data and information received as a result of other tax measures (that is, received both from the organization itself from other declarations, and from third-party organizations. For example, the organization filed a simplified declaration, and the balance sheet submitted to the tax office shows a change in balances on the settlement account).

GOOD TO KNOW

Having discovered any discrepancy, the tax inspector is obliged to send a request to the taxpayer to make corrections to the declaration or to explain this discrepancy. The taxpayer is given five days to resolve this issue.

Tax officials cannot extend the three-month deadline for a desk audit, since the Tax Code of the Russian Federation does not provide for this. And accordingly, the request for an explanation from the taxpayer, and the receipt of these explanations, and the tax authorities making a decision based on the results of the desk audit - everything must be done within this very three-month period, which was confirmed by the FAS Moscow District in resolution dated May 23, 2012 No. A40-85281/2011 ; FAS Volga District in resolution dated June 18, 2012 No. A65-26603/2011; FAS North-Western District in resolution dated September 19, 2012 No. A66-376/2012; FAS Ural District in resolution dated July 16, 2012 No. F09-5401/12.

To avoid further disagreements on this issue, the Federal Tax Service of Russia, in its letter dated September 13, 2012 No. AS-4-2/15309 (the Ministry of Finance of Russia expressed a similar opinion in letter dated June 19, 2012 No. 03-02-08/52) clarified the start date of the cameral verification is the day of filing the declaration or calculation, since the tax authorities can also receive the declaration by mail, and the deadline cannot exceed 3 months from the date of filing and does not depend on the method by which the tax authorities received this declaration.

POSITION OF THE COURT

Inspectors may extend the on-site inspection if it requires examining a large number of documents.

— Resolution of the Third Arbitration Court of Appeal dated August 13, 2013 No. 03AP-3698/13.

Tax authorities have the right to suspend an already extended audit

Inspectors can extend the two-month inspection period on the basis of clause 6 of Art. 89 Tax Code of the Russian Federation. At the moment, on-site audits are carried out infrequently by tax authorities due to the increased number of taxpayers, and are therefore carried out according to certain indicators (for example, when tax authorities are confident that they will be able to collect enough money from the budget to “pay for” the audit). In choosing taxpayers for conducting an on-site audit, tax officials are guided by Order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06 / [email protected] Section 4 of this concept provides analytical data on the basis of which an organization or individual entrepreneur using the simplified tax system can assume that it should prepare for the on-site inspection.

So, first, the management of the tax inspectorate makes a decision to conduct an on-site tax audit, then it has the right to extend the period of this audit from 2 months to 4 or even 6. Moreover, both within the 2-month period and after its extension, the management of the tax inspectorate on the basis of clause. 9 tbsp. 89 of the Tax Code of the Russian Federation has the right to suspend an on-site inspection on the basis of:

• the need to obtain additional documents or information listed in Art. 93.1 of the Tax Code of the Russian Federation for a specific transaction (this basis is valid only once for one counterparty from whom it is necessary to obtain documents);
• the need to obtain information from government agencies of foreign powers on international treaties of the Russian Federation;
• the need for an examination;
• the need to translate into Russian documents that the taxpayer submitted in a foreign language.

Tax authorities have the right to suspend an audit several times, documenting this with an appropriate decision, but the total period of such suspensions cannot be more than six months, except for the subclause with foreign government agencies. On this basis, the tax authorities may extend the suspension period for another three months.

When the inspection is suspended, then, according to paragraph 9 of Art. 89 of the Tax Code of the Russian Federation, and the requirement of the inspectors to present the taxpayer’s documents to them is suspended, while the tax authorities are obliged to leave the territory of the organization being inspected and return all original documents that were previously presented at their request by the taxpayer (with the exception of documents that the tax authorities themselves seized during the inspection process) .

In the case of a simple extension of the inspection period, the inspection itself does not stop, but is simply extended.

POSITION OF THE COURT

The mere fact that inspectors made a decision on the results of the audit late does not mean that they violated the rights of the taxpayer.

— Resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 25, 2008 No. F08-7602/2008.

Due to the unauthorized extension of the inspection, it will not be possible to cancel the decision on it

The grounds for extending the audit are given in Appendix No. 4 to the order of the Federal Tax Service of Russia dated May 8, 2015 No. ММВ-7-2/ [email protected] So, tax authorities can extend the audit period if:

• they check the taxpayer from the largest category;
• an on-site inspection is already underway, but additional information has been received from the police or other government agencies about a tax violation committed by this taxpayer;
• force majeure (the taxpayer’s territory was subject to flooding, fire or other disaster);
• the presence of separate divisions at the inspected organization, and if these divisions are from 4 to 10, then the inspection period increases to 4 months, but if there are 10 or more of them - up to 6 months. If there are less than 4 of them, but they are so large that their share of taxes in the tax burden for the taxpayer as a whole is at least 50%, and their property also makes up at least 50% of the organization’s total property, then the audit will also be extended to 4 months;
• the taxpayer did not submit documents for verification as required under paragraph 3 of Art. 93 Tax Code of the Russian Federation 10-day period;
• other circumstances - this item shows that the list is not closed, and the audit may be extended, for example, due to the large document flow of the company, a large number of taxes being audited (full audit), if the company carries out several types of activities, uses complex technological processes or has too many organizational structure, etc.

So, it will not be difficult for tax officials to find a basis for extending the audit, which means it will be impossible to cancel the decision on this audit, which is confirmed by almost all courts. For example:

True, there are exceptions, for example, resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 19, 2009 No. A32-4454/2009-3/50, which did not recognize as legal the extension of the audit to 4 months of a taxpayer on the simplified tax system with the object of taxation “income”. This taxpayer submitted documents on his income for verification, but refused to provide the tax authorities with documents confirming his expenses. The court recognized that he was right, since the “simplified” person with this taxable object has no obligation to keep records of his expenses, and the presentation of documents on income provided the inspectors with a complete picture for conducting an audit.

POSITION OF THE COURT

Submission of the requested documents on the day of resumption of the on-site inspection eliminates the company's tax violation and liability for untimely fulfillment of the requirement.

— Resolution of the Federal Antimonopoly Service of the Volga District dated July 24, 2013 No. A12-31579/2012 (left in force by the determination of the Supreme Arbitration Court of the Russian Federation dated November 18, 2013 No. VAS-15809/13).

Decision to suspend an on-site tax audit

The inspection is suspended from the date specified in the decision of the tax authorities to suspend the inspection, and continues from the date appointed in the decision to continue the inspection. The decision on suspension is made by the head (his deputy) of the tax inspectorate at the place of registration of the organization being inspected or at the place of residence of the individual entrepreneur. The form of this decision is given in Appendix No. 5 to Order No. MMV-7-2/ [email protected]

GOOD TO KNOW

Unreasonably delaying the suspension of an on-site inspection may lead to the cancellation of the decision of the tax authority made based on the results of such an inspection.

Questioning a witness during the suspension of an inspection will not help challenge the decision

Based on paragraph 1 of Art. 90 of the Tax Code of the Russian Federation, tax officials have the right, based on circumstances of interest to the inspectors, to interrogate, under the protocol, any person as a witness both within the walls of the tax office and at his location in accordance with paragraph 4 of Art. 90 of the Tax Code of the Russian Federation and on the basis of a decision of the tax authority. The form of this protocol is given in Appendix No. 11 to Order No. MMV-7-2 / [email protected] Exception according to clause 2 of Art. 90 of the Tax Code of the Russian Federation are young children and representatives of professions who are obliged to maintain secrecy regarding information received by them in the course of performing their professional duties (auditor, lawyer).

The questioning of witnesses is carried out during the on-site inspection, but there are cases when a witness is called in for questioning even at the time of the inspection, and by the time the witness appears for questioning, the decision to suspend the inspection has already come into force. Would such an interrogation be legal?

The position of the Ministry of Finance of Russia (letter dated January 18, 2013 No. 03-02-07/1-11) and the position of the Federal Tax Service of Russia (letter dated September 13, 2012 No. AS-4-2/15309) coincide on this issue. They believe that, according to paragraph 9 of Art. 89 of the Tax Code of the Russian Federation, when an audit is suspended, tax authorities do not have the right to carry out their actions on the territory of the taxpayer being inspected. But the interrogation of the witness can be carried out both within the walls of the tax office and at his home (you just need to take written consent from both the witness and the people living with him).

Most often, courts agree with this position. Court decisions are shown in Table 1.

Table 1.

But there is another point of view, which is shown in Table 2.

Table 2.

So, as we see, the courts do not have a clear position on this issue, but it is not worth expecting that interrogating a witness during the suspension of an audit may give the taxpayer the right to appeal the penalties of the tax authorities.

GOOD TO KNOW

During the suspension of an inspection, only inspectors included in the working group can question witnesses.

The company submitted the requested documents to the inspection on the day the inspection was resumed

In accordance with Art. 93 of the Tax Code of the Russian Federation, tax authorities have the right to demand documents that, from the point of view of tax authorities, they need for verification.

To do this, inspectors send a request to submit documents to the taxpayer in person, by mail or via telecommunications channels. Required documents in accordance with paragraph 2 of Art. 93 of the Tax Code of the Russian Federation in the form of certified (not necessarily notarized) copies must be submitted in person (or through a representative, by registered mail or in electronic form) within 10 days from the date of receipt of the request. If the requested documents cannot be submitted as prescribed in paragraph 3 of Art. 93 of the Tax Code of the Russian Federation deadline, the taxpayer must, within the next day after receiving the request, notify the tax authorities of the reasons why it is impossible to meet this deadline. In response to this, the head of the tax inspectorate makes a decision within two days from the receipt of the taxpayer’s letter: to extend or refuse.

If the taxpayer does not submit documents to the tax authorities (refuses or submits them later than the specified deadline), then according to clause 4 of Art. 93 of the Tax Code of the Russian Federation, for this tax violation, inspectors have the right to seize the required documents (seizure - Article 94 of the Tax Code of the Russian Federation) or fine the taxpayer under clause 1 of Art. 126 of the Tax Code of the Russian Federation at the rate of 200 rubles. for each document not submitted.

Example 2.

During an on-site inspection of Traditions of Quality LLC, tax officials demanded that documents be transferred to them on September 16, 2011.

On September 20, 2011, the management of the tax inspectorate, at the request of the taxpayer, extended the deadline for transmitting documents until October 7, 2011.

On September 23, 2011, tax officials suspended the audit and resumed it on November 2, 2011.

02.11.2011 Traditions of Quality LLC handed over the required documents to the tax authorities in full.

Tax officials decided to fine the company in accordance with paragraph 1 of Art. 126 of the Tax Code of the Russian Federation for violating the deadlines for submitting documents.

The FAS Moscow District, in its resolution dated November 29, 2012 No. A40-54948/2012, came to the conclusion that tax liability in the form of a fine under clause 1 of Art. 126 of the Tax Code of the Russian Federation cannot be applied to this organization, since the fact that the documents were not transferred during the period when the check was not carried out is not an offense, but the demand for these documents during this period violates paragraph 9 of Art. 89 of the Tax Code of the Russian Federation and taxpayer rights.

GOOD TO KNOW

Facts of violation of the terms of suspension of an on-site inspection, although established by the courts, are, as a rule, not considered as sufficient grounds for invalidating the decision of the tax authority made based on the results of the inspection.

The inspectors simultaneously handed the organization a request to submit documents and a decision to suspend the on-site inspection

There are cases when tax authorities simultaneously present a request for the submission of documents and a decision to suspend an on-site audit.

Example 3.

At Felton LLC, tax officials carry out on-site tax audits. On September 14, 2015, the head of the tax service signed a request to submit documents during the audit, and on September 15, 2015, he signed a decision to suspend the tax audit from September 15, 2015. The inspector personally delivered both decisions to the director of Felton LLC on September 16, 2015.

Since, according to paragraph 9 of Art. 89 of the Tax Code of the Russian Federation, during the suspension of an on-site tax audit, all actions of tax officials must be suspended, then the delivery by tax authorities of a demand for the presentation of documents at this moment is illegal and, accordingly, this requirement may not be fulfilled.

But there is a nuance - these are the dates, since the decision on suspension begins to take effect from the date specified in the decision, and the requirement to submit documents in accordance with clause 1 of Art. 93 of the Tax Code of the Russian Federation - from the date of receipt of this requirement. In our case, although the decisions by management were signed on different days, the decision to suspend the audit first came into effect, and it turns out that the requirement to submit documents began to apply when the tax authorities no longer had the right to request documents.

Similar situations were considered by the courts, which also decided that the requirement for documents began to apply after the decision on suspension, and therefore decisions were made in favor of taxpayers. However, we should not forget that the courts can decide differently (see, for example, resolution of the FAS Moscow District dated November 29, 2012 No. A40-54948/2012, resolution of the FAS Moscow District dated February 14, 2013 No. A40-85458/2012).

IMPORTANT IN WORK

Periods of suspension of the inspection are not included in the total period established for conducting the inspection.

If the inspection is suspended, the deadline for submitting the requested papers does not change

But if at first a demand was made for the presentation of documents, and then the inspection was suspended, then in this case the requested documents must be submitted on time. This position of the tax authorities and the Ministry of Finance is recorded in letters dated November 21, 2013 No. ED-3-2/ [email protected] ; dated June 28, 2013 No. 03-02-07/1/24644; dated 08/07/2015 No. ED-4-2/ [email protected] In addition, the Plenum of the Supreme Arbitration Court of the Russian Federation drew attention to this in paragraph 26 of its resolution dated 07/30/2013 No. 57.

As you can see, using these examples, we were once again able to make sure that you should not be afraid to go to court when your rights as a taxpayer are infringed by law enforcement agencies.

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