home Credit cards Article 78 of the Tax Code of the Russian Federation. Tenth Arbitration Court of Appeal. Difficult points in the personal income tax refund procedure

Article 78 of the Tax Code of the Russian Federation. Tenth Arbitration Court of Appeal. Difficult points in the personal income tax refund procedure

1. The amount of overpaid tax is subject to offset against the taxpayer’s upcoming payments for this or other taxes, repayment of arrears for other taxes, debts for penalties and fines for tax offenses or return to the taxpayer in the manner prescribed by this article.

Offset of amounts overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for penalties accrued for the relevant taxes and fees.

1.1. The amount of overpaid insurance premiums is subject to offset against the relevant state budget off-budget fund of the Russian Federation, to which this amount was credited, against the payer's upcoming payments for this contribution, debt on relevant penalties and fines for tax offenses, or the return of insurance premiums to the payer in the manner prescribed by this article.

2. A credit or refund of the amount of overpaid tax is made tax authority at the place of registration of the taxpayer, unless otherwise provided by this Code, without accruing interest on this amount, unless otherwise established by this article.

3. The tax authority is obliged to inform the taxpayer about each fact of excessive payment of tax that has become known to the tax authority and the amount of overpaid tax within 10 days from the date of discovery of such a fact.

If facts are discovered indicating a possible excessive payment of tax, at the proposal of the tax authority or taxpayer, a joint reconciliation of calculations for taxes, fees, insurance premiums, penalties and fines may be carried out.

The paragraph is no longer valid. - Federal Law of July 27, 2010 N 229-FZ.

4. The offset of the amount of overpaid tax against the taxpayer’s upcoming payments for this or other taxes is carried out on the basis of a written application (application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through Personal Area taxpayer) taxpayer by decision of the tax authority.

The decision to offset the amount of overpaid tax against the taxpayer's upcoming payments is made by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of a joint reconciliation report of the taxes paid by him, if such a joint reconciliation was carried out.

5. Offsetting the amount of overpaid tax to pay off arrears on other taxes, arrears on penalties and (or) fines subject to payment or collection in cases provided for by this Code is carried out by the tax authorities independently.

In the case provided for by this paragraph, the decision to offset the amount of overpaid tax is made by the tax authority within 10 days from the date it discovers the fact of excessive payment of tax or from the date the tax authority and the taxpayer sign the act of joint reconciliation of the taxes paid by him, if such a joint reconciliation was carried out, or from the date of entry into force of the court decision.

The provision provided for in this paragraph does not prevent the taxpayer from submitting to the tax authority a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer’s personal account) to offset the amount of overpaid tax against the repayment of arrears (debt) for penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax to pay off the arrears and arrears of penalties and fines is made within 10 days from the date of receipt of the specified application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of the taxes paid by him, if such a joint reconciliation was carried out.

6. The amount of overpaid tax is subject to refund upon a written application (application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer’s personal account) of the taxpayer within one month from the date the tax authority received such an application.

Refund to the taxpayer of the amount of overpaid tax if he has arrears on other taxes of the corresponding type or debt on the corresponding penalties, as well as fines subject to collection in cases provided for by this Code, is made only after the amount of overpaid tax is offset against the repayment of the arrears (debt) .

6.1. Refunds of the amount of overpaid insurance contributions for compulsory pension insurance are not made if, according to the territorial management body Pension Fund of the Russian Federation, information on the amount of overpaid insurance premiums for compulsory pension insurance is presented by the payer of insurance premiums as part of individual (personalized) accounting information and is recorded on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) accounting in the compulsory pension insurance system .

7. An application for offset or refund of the amount of overpaid tax may be submitted within three years from the date of payment of the specified amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees.

8. The decision to return the amount of overpaid tax is made by the tax authority within 10 days from the date of receipt of the taxpayer’s application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of a joint reconciliation report of the taxes paid by him, if such a joint reconciliation was carried out.

Before the expiration of the period established by the first paragraph of this paragraph, an order for the refund of the amount of overpaid tax, issued on the basis of a decision of the tax authority to return this amount of tax, is subject to sending by the tax authority to the territorial body of the Federal Treasury to effect a refund to the taxpayer in accordance with the budget legislation of the Russian Federation .

9. The tax authority is obliged to inform the taxpayer about the decision made to offset (refund) the amounts of overpaid tax or the decision to refuse to carry out the offset (refund) within five days from the date of adoption of the corresponding decision.

The specified message is transmitted to the head of the organization, an individual, or their representatives personally against a receipt or in another way confirming the fact and date of its receipt.

Amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible participant of this group in the manner established by this article.

In the event of termination of the agreement on the creation of a consolidated group of taxpayers, the amounts of overpaid corporate income tax for the consolidated group of taxpayers that are not subject to offset (not offset) against the arrears available for this group are subject to offset (return) to the organization that was the responsible participant in the consolidated group of taxpayers, according to her statement.

A refund to the responsible participant of a consolidated group of taxpayers of the amount of overpaid income tax for the consolidated group of taxpayers is not made if he has arrears for other taxes of the corresponding type or debts for the corresponding penalties, as well as for fines subject to collection in cases provided for by this Code.

10. If the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of this article, the tax authority shall accrue interest payable to the taxpayer for each calendar day of violation of the deadline for the amount of overpaid tax that is not returned within the established period. return.

The interest rate is assumed to be equal to the refinancing rate Central Bank of the Russian Federation, which was in force on the days when the return period was violated.

11. The territorial body of the Federal Treasury, which refunded the amount of overpaid tax, notifies the tax authority of the date of refund and the amount returned to the taxpayer Money.

12. If the interest provided for in paragraph 10 of this article is not paid to the taxpayer in full, the tax authority makes a decision to return the remaining amount of interest, calculated based on the date of actual refund to the taxpayer of the amounts of overpaid tax, within three days from the date of receipt of the notification of the territorial authority of the Federal Treasury on the date of return and the amount of funds returned to the taxpayer.

Before the expiration of the period established by the first paragraph of this paragraph, an order for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, must be sent by the tax authority to the territorial body of the Federal Treasury for the refund.

13. Credit or refund of the amount of overpaid tax and payment of accrued interest are made in the currency of the Russian Federation.

13.1. Amounts of money paid to compensate for damage caused to the budget system of the Russian Federation as a result of crimes provided for in Articles 198 - 199.2 of the Criminal Code of the Russian Federation are not recognized as amounts of overpaid tax and are not subject to offset or refund in the manner prescribed by this article.

14. The rules established by this article also apply to the offset or return of amounts of overpaid advance payments, fees, insurance premiums, penalties and fines and apply to tax agents, payers of fees, payers of insurance premiums and the responsible participant in a consolidated group of taxpayers.

The provisions of this article regarding the return or offset of overpaid amounts of state duty are applied taking into account the specifics established by Chapter 25.3 of this Code.

The rules established by this article also apply in relation to the offset or refund of the amount of value added tax subject to reimbursement by decision of the tax authority, in the case provided for in paragraph 11.1 of Article 176 of this Code.

The rules established by this article also apply to the offset or return of interest paid in accordance with paragraph 17 of Article 176.1 of this Code.

15. The fact of indicating a person as a nominal owner of property in a special declaration submitted in accordance with the Federal Law “On Voluntary Declaration” individuals assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation", and the transfer of such property to its actual owner do not in themselves constitute grounds for recognizing as overpaid the amounts of taxes, fees, penalties and fines paid by the nominal owner in regarding such property.

16. The rules established by this article also apply to amounts of overpaid value added tax that are subject to refund or credit to foreign organizations - taxpayers (tax agents) specified in paragraph 3 of Article 174.2 of this Code. Refunds of the amount of overpaid value added tax to such organizations are made to an account opened with a bank.

Offset or refund of amounts of overpaid taxes, fees, penalties, fines

The commented article regulates the procedure for offset or refund of overpaid tax.

The payment of tax is recognized as both the transfer of funds to the budget system and the offset carried out by the tax authority. Excessive payment of tax is the fulfillment by a taxpayer of a tax obligation, the amount of which exceeds his actual obligations.

The tax authority is obliged to inform the taxpayer about each fact of excessive payment of tax that has become known to the tax authority and the amount of overpaid tax within 10 days from the date of discovery of such a fact.

The amount of overpaid tax is subject to offset against the taxpayer's upcoming payments for this or other taxes, repayment of arrears for other taxes, arrears of penalties and fines for tax offenses, or a refund to the taxpayer.

Paragraphs 4 and 7 of Article 78 of the Tax Code of the Russian Federation provide for the possibility for the tax authority to offset the amount of overpaid tax against future payments based on a written application from the taxpayer by decision of the tax authority. An application for offset of the amount of overpaid tax may be submitted within three years from the date of payment of the specified amount.

Since tax payment is carried out in the forms defined by paragraph 3 of Article 45 of the Tax Code of the Russian Federation, the period established by paragraph 7 of Article 78 of the Tax Code of the Russian Federation is calculated from the date of the occurrence of circumstances that are recognized as the taxpayer fulfilling the obligation to pay tax, until the day he submits an application for offset, provided that that the amount of tax for which the taxpayer claims to be offset is not less than the amount of tax payments in respect of which payment orders were presented to the bank and (or) decisions were made by the tax authority to offset the amounts of overpaid taxes towards the fulfillment of the obligation to pay the corresponding tax.

A similar position is set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 10, 2011 N 8395/11.

As stated in the Resolution of the Federal Antimonopoly Service of the Volga Region dated November 1, 2012 N A65-31639/2011, the procedure for returning overpaid tax is established by Article 78 of the Tax Code of the Russian Federation. At the same time, the procedure for tax refund when the taxpayer moves to a new tax office and its registration for tax purposes with this tax authority is not regulated by this norm. There is also no obligation in the law for the taxpayer to submit a second, additional application for a refund of overpaid tax after transferring registration to another inspectorate.

Inspection for largest taxpayers in the Republic of Tatarstan and Inspectorate No. 8 are part of a single centralized system of tax authorities of the Russian Federation, the transfer of documents on taxpayers from one division to another cannot serve as a basis for violating their legal rights.

In the case under consideration, as noted by the courts, the tax authority at the previous place of registration did not ensure compliance with the requirements of the law on the taxpayer’s right to a refund of the amount of overpaid tax.

The procedure for the return of overpaid tax established by Article 78 of the Tax Code of the Russian Federation provides for the return of tax amounts at the expense of the budget, and not a specific tax authority.

A similar position is expressed in Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 30, 2006 N 1334/06.

In the Resolution of the Federal Antimonopoly Service of the East Siberian District dated March 22, 2005 N A19-11366/04-20-Ф02-990/05-С1, the court rejected the tax authority’s arguments that the tax authority does not have the right to independently offset the overpayment to repay the identified debt without a taxpayer's application.

As the court noted, Articles 21 and 32 of the Tax Code of the Russian Federation provide for the right of the taxpayer to timely offset the amounts of overpaid or collected taxes, penalties and fines, as well as the obligation of the tax authority to carry out such offset in the manner prescribed by the Tax Code of the Russian Federation, and in accordance with paragraphs 5 and 6 of Article 78 , Article 176 of the Tax Code of the Russian Federation, tax authorities have the right to independently offset overpaid amounts of tax, as well as amounts of value added tax subject to reimbursement, to pay off debts on taxes and penalties to the same budget.

In accordance with the above legal norms The tax authority had to offset the overpayment of value added tax against the additional tax accrued based on the results of the desk audit.

The tax authority did not fulfill the obligation to timely carry out the offset, thereby not terminating the taxpayer’s obligation to pay the tax, therefore sending the enterprise a request to pay this amount of tax is unlawful.

In the Resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 31, 2012 N F03-4477/2012, the court came to the conclusion that from the analysis of Article 78 of the Tax Code of the Russian Federation it follows that the tax authorities are empowered to independently offset the overpaid tax to pay off the arrears on the same tax or other taxes to the same budget, as well as penalties, and must make such a offset.

The case materials confirm that the organization had an overpayment of personal income tax, which was registered with the organization, and therefore came to the conclusion that the tax authority should have made a offset based on the results of the tax period.

A similar position is set out in the Resolution of the Federal Antimonopoly Service of the Volga District dated October 30, 2012 N A72-10627/2011: according to Article 78 of the Tax Code of the Russian Federation, the tax authority is empowered to offset the overpaid tax against repayment tax debt without a taxpayer's application.

The amount of overpaid tax is subject to refund to the taxpayer upon written application within one month from the date the tax authority receives such an application.

An application for a credit or refund of the amount of overpaid tax may be submitted within three years from the date of payment of the specified amount.

Thus, a refund of overpaid taxes and fees can be carried out by the tax authority at the taxpayer’s place of registration only on the basis of a written application from the taxpayer, subject to other conditions provided for by tax legislation. If this application is not submitted by the taxpayer, but there is an overpaid amount of tax, it will be offset against the taxpayer's upcoming payments.

This position is explained in the letter of the Federal Tax Service of Russia dated November 14, 2011 No. ZN-3-12/3719@.

In terms of its economic content, there are no significant differences between the offset and refund of tax payments, and in fact, the offset of overpaid tax amounts is a type (form) of the return of these amounts, the restoration of the taxpayer’s property status.

This was indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 2046/04 dated June 29, 2004.

At the same time, the Tax Code of the Russian Federation does not provide for special requirements for signing a return application. The form of such an application is not normatively approved.

In addition, the Tax Code of the Russian Federation does not provide for the taxpayer’s obligation to submit to the tax authority an application for a refund of the amount of overpaid tax. The taxpayer has the right to submit such an application to the tax authority, regardless of whether or not at the time of filing such an application he has arrears on other taxes, arrears on penalties and (or) fines subject to payment or collection.

A similar conclusion is stated in the letter of the Ministry of Finance of Russia dated 09/07/2011 N 03-02-07/1-317.

In Resolution dated September 20, 2012 N A33-15051/2011, the Federal Antimonopoly Service of the East Siberian District indicated that if there is a written application from an organization to offset the amount of the overpayment against the arrears (debts on penalties and fines), the tax authority does not have the right to offset the overpayment against the repayment of other taxpayer's debts.

As explained in the letters of the financial department dated November 24, 2011 N 03-04-05/7-938, dated November 16, 2011 N 03-04-05/7-897, dated January 24, 2012 N 03-04-05/5-57 , the period for applying for a refund of the amount of tax overpaid in the corresponding year is limited to three years.

The Moscow Department of the Federal Tax Service of Russia, in a letter dated April 23, 2012 N 20-14/035800@, came to the conclusion that the possibility of offset (refund) of overpaid tax does not depend on the period in which the expenses were incurred.

FAS Moscow District in Resolution dated October 18, 2012 N A40-12957/12-91-66 noted that tax legislation does not contain a mechanism for offset or refund of tax from the budget in the event of an obligation to pay tax in one tax period and the termination of such obligation to pay in another tax period.

The Constitutional Court of the Russian Federation, in Ruling No. 173-O dated June 21, 2001, indicated that Article 78 of the Tax Code of the Russian Federation is not aimed at infringing on the rights of a taxpayer who made a mistake in calculating the amount of the tax payment for any reason, including due to ignorance of the tax law or an honest mistake, but on the contrary, it allows him, within three years from the date of payment of the tax, to present to the tax authority justified and therefore subject to unconditional satisfaction of demands, without resorting to judicial protection their legitimate interests. At the same time, Article 78 of the Tax Code of the Russian Federation does not prevent, if the specified period is missed, filing a claim in court for the return of the overpaid amount from the budget in civil or arbitration proceedings, and in this case the general rules calculation of the limitation period - from the day when the person learned or should have learned about the violation of his right (clause 1 of Article 200 of the Civil Code of the Russian Federation). The general limitation period by virtue of Article 196 of the Civil Code of the Russian Federation is established within three years.

Clause 7 of Article 78 of the Tax Code of the Russian Federation does not prevent a taxpayer, in case of missing the deadline for filing such an application with the tax authority, from filing a claim directly with the court for the return from the budget of the amount of overpaid tax in arbitration proceedings within three years from the day when he learned or should was to learn about this fact.

This position is set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2009 N 12882/08 and the letter of the Ministry of Finance of Russia dated March 17, 2011 N 03-02-08/27.

The FAS Volga-Vyatka District, in Resolution dated October 10, 2012 N A29-10617/2011, noted that if the tax authority refuses to satisfy the taxpayer’s application for a refund or offset of overpaid taxes and penalties, including if the deadline established by paragraph 7 of Article 78 of the Tax Code of the Russian Federation, the taxpayer has the right to apply to the court with a claim for the return or offset of the specified amounts (clause 22 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5 “On some issues of application of part one of the Tax Code of the Russian Federation”).

According to the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 6219/06 dated November 8, 2006, the question of the procedure for calculating the deadline for a taxpayer to file an application for a refund of overpaid tax in court should be resolved in relation to paragraph 2 of Article 79 of the Tax Code of the Russian Federation, taking into account the fact that the application must be submitted within three years from the day the taxpayer learned or should have learned about the fact of overpaid tax.

The issue of determining the time when the taxpayer learned of the fact of overpayment of tax should be resolved taking into account the assessment of the totality of all circumstances relevant to the case, in particular, to establish the reason why the taxpayer overpaid the tax; whether he has the opportunity to correctly calculate tax according to the initial tax return, changes in current legislation during the tax period in question, as well as other circumstances that may be recognized by the court as sufficient to recognize the deadline for tax refund as not being missed. The burden of proving these circumstances rests with the taxpayer.

Thus, the question of the procedure for calculating the deadline for a taxpayer to submit an application for a refund of overpaid tax to the court must be resolved taking into account the fact that such an application must be filed within three years from the day the taxpayer learned or should have learned about the fact of overpaid tax .

Consequently, in order to determine the legality of the taxpayer’s claims, it is necessary to establish the actual moment when he became or should have become aware of the existence of an overpayment. In this case, all relevant circumstances can be taken into account, which in one way or another indicate that the business entity is aware of the presence of an overpayment for a specific tax.

A similar position is reflected in the Resolution of the Federal Antimonopoly Service of the West Siberian District dated July 30, 2012 N A67-2631/2011.

In Resolution dated 07/06/2012 N A45-15377/2011, the Federal Antimonopoly Service of the West Siberian District indicated that the taxpayer could find out about the existence of an overpayment only after the expiration of the tax period for which the corresponding payments were transferred; it is from this moment that the period for filing an application for return, and not from the date of payment of advance payments. The taxpayer did not miss this deadline.

The right of a taxpayer to offset and return from the relevant budget overpaid or collected amounts of tax is directly related to the presence of overpayment of tax amounts to this budget and the absence of debt on taxes credited to the same budget, which is confirmed by certain evidence: payment orders of the taxpayer, collection orders (instructions ) tax authority, information on the taxpayer’s fulfillment of the obligation to pay taxes, contained in the database formed for each taxpayer by the tax authority, characterizing the state of his settlements with the budget for taxes and reflecting transactions related to the accrual, receipt of payments, offset or refund of tax amounts .

As noted by the Federal Antimonopoly Service of the Moscow District in Resolution No. A40-63772/11-20-270 dated July 19, 2012, the presence of an overpayment is revealed by comparing the tax amounts payable for a certain tax period with payment documents relating to the same period, taking into account information on the taxpayer’s settlements with budgets.

In this case, the receipt by the taxpayer of mutual reconciliations of accounts confirming that he has overpaid taxes should be considered as the moment from which the three-year period for applying to court for the protection of his violated rights is calculated.

In judicial practice, this is an established position (see Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 13, 2010 N 17372/09, FAS Moscow District dated October 1, 2012 N A41-2336/11).

As explained in the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 25, 2012 N A01-1606/2011, a taxpayer’s appeal to an arbitration court without observing the procedure prescribed by law would mean an unjustified shift to the court of the tax authority’s responsibility for checking the taxpayer’s documents in order to establish the presence or absence of his arrears. The validity of the request for tax reimbursement from the budget is interconnected with the legality of what is stated in the tax return tax deduction. The procedure for confirming the legality of applying VAT tax deductions and tax refunds in the event that the amount of tax deductions exceeds the amount of tax calculated for transactions recognized as an object of taxation is established by Chapter 21 of the Tax Code of the Russian Federation, including Article 176 of the Tax Code of the Russian Federation. At the same time, the mere filing of an application for a tax refund in isolation from compliance with the law established order is not an unconditional basis for its compensation.

The court concluded that in this case, the entrepreneur applied to the court for a tax refund, bypassing the procedure established by the Tax Code of the Russian Federation, and therefore there are no grounds for satisfying his demands.

The Resolution of the FAS of the East Siberian District dated November 27, 2012 N A19-4247/2012 draws attention to the fact that the rule on the return of overpaid tax only after offsets of existing arrears, established by paragraph 2 of paragraph 6 of Article 78 of the Tax Code of the Russian Federation, is inapplicable to the taxpayer, in in respect of which bankruptcy proceedings are being conducted.

The amount of overpayment available to the organization in respect of which bankruptcy proceedings are being conducted is subject to return to the taxpayer and inclusion in the bankruptcy estate. Independent collection of debt during bankruptcy proceedings is contrary to the law and affects the rights of creditors. Refusal to return overpaid taxes to an organization violates the rights of creditors of an organization that is a debtor in a bankruptcy case, since it prevents the formation of a bankruptcy estate through which their claims should be satisfied.

At the same time, the tax authority does not deny that tax debt, the presence of which, in its opinion, prevents the return of the overpayment to the taxpayer, is included in the corresponding queue of creditors.

The court noted that a refusal to return an overpayment when it is impossible to independently offset the overpayment against the existing debt cannot indicate the conscientious behavior of the tax authority.

The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 17750/10 of June 28, 2011, indicated the following.

The provisions of Article 287 of the Tax Code of the Russian Federation establish a rule on the offset of paid advance payments against the payment of subsequent advance payments and income tax calculated based on the results of the tax period, based on the cumulative total method.

Accordingly, in the case where the taxpayer did not submit a request for the return of an overpaid advance payment made at the end of the reporting period, this payment, as a result of the financial and economic activities of the taxpayer, is taken into account as of the end date of the next reporting and tax period.

Definition of final financial result and the amount of tax liability for income tax is made by taxpayers in the income tax return submitted at the end of the tax period no later than March 28 of the year following the expired tax period (clause 4 of Article 289 of the Tax Code of the Russian Federation).

Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation came to the conclusion that the legal grounds for the return of the overpayment arise based on the results of the taxpayer’s financial and economic activities from the date of submission of the tax return for the corresponding tax period, but no later than the deadline established for its submission to the tax authority.

The Federal Tax Service of Russia also drew attention to this in a letter dated February 21, 2012 N SA-4-7/2807.

Based on paragraph 2 of the Constitutional Court of the Russian Federation of 02/08/2007 N 381-O-P, if a taxpayer allows an overpayment of a certain amount of tax in the current tax period, this amount is subject to all constitutional guarantees of property rights, since its payment in this case was made in the absence of a legal then the grounds. In connection with this Code, the taxpayer’s right to a timely refund of the overpaid amount of tax or its offset against upcoming payments for this or other taxes is secured, except for cases where the taxpayer has a tax arrears or other debt to the budget. In such situations, the tax authority independently sends the amount of overpaid tax to pay off arrears and other debts in order to ensure the constitutional obligation of the taxpayer to pay the legally established, but not paid tax on time. Giving tax authorities the authority to independently, that is, without a corresponding application and consent of the taxpayer, offset the overpaid amount of tax to pay off arrears on other taxes cannot be considered as violating the fair balance of public and private interests, since it allows for the prompt and effective satisfaction of a property claim state and contributes to the speedy fulfillment of the taxpayer’s constitutional obligation to pay taxes.

Clause 7 of Article 78 of the Tax Code of the Russian Federation, which consolidates this power, excludes further accrual of penalties, application of tax sanctions and coercive measures.

Thus, if in previous tax periods the taxpayer overpaid amounts of taxes of the same type as the underestimated tax, and previously these amounts were not offset against other debts of the taxpayer, there are no grounds for holding him accountable under Article 122 of the Tax Code of the Russian Federation .

Similar conclusions are set out in the Resolution of the Federal Antimonopoly Service of the North-Western District dated February 15, 2012 N A56-10237/2011.

It should be noted that the offset of amounts of overpaid federal taxes and fees, regional and local taxes can be made only for the corresponding types of taxes and fees, as well as for penalties accrued on the corresponding taxes and fees.

For example, according to Article 13 of the Tax Code of the Russian Federation, value added tax applies to federal taxes, and the tax on property of individuals in accordance with Article 15 of the Tax Code of the Russian Federation - to local taxes.

Taking into account the above, the Tax Code of the Russian Federation does not provide for the offset of overpayments on value added tax against arrears on property taxes for individuals. The Ministry of Finance of Russia, in a letter dated December 13, 2011 No. 03-05-06-01/86, indicated the legitimacy of this interpretation.

By paragraph 5 of Article 78 of the Tax Code of the Russian Federation, the legislator limited the possibility of offsetting overpaid taxes by the level of the budget into which this tax was credited. The provisions of the Tax Code of the Russian Federation do not contain restrictions regarding the place of payment of the tax, as well as whether this tax was paid from an account opened at the location structural unit or at the location of the parent organization (see Resolution of the Federal Antimonopoly Service of the North-Western District dated July 16, 2012 N A44-4027/2011).

In the letter of the Ministry of Finance of Russia dated January 17, 2013 N 03-04-05/7-33 it is noted that if the taxpayer applies for the transfer of the balance of the property tax deduction to previous tax periods not in the tax period immediately following the tax period in which the balance of the property tax was formed tax deduction, and in subsequent tax periods, the number of tax periods to which the above balance can be carried forward is reduced accordingly.

As the financial department indicated, since when submitting a tax return in 2013, this tax period is not the tax period immediately following the tax period in which the balance of the property tax deduction was formed (2009), the number of tax periods to which it can be carried forward the above balance is correspondingly reduced for the tax periods 2008 and 2007. It is not possible to transfer the unused balance of the property tax deduction.

The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 10237/04 dated December 11, 2012 noted that Articles 78, 79 and 176 of the Tax Code of the Russian Federation establish that in the event of an untimely return to the taxpayer of an overpaid (collected) tax, as well as in violation of the deadline for making a decision on tax refund added value, interest is accrued based on the refinancing rate of the Central Bank of the Russian Federation.

Taking into account the above, the obligation to pay interest in the event that the court determines the fact of violation of the current legislation is a monetary obligation, the implementation of which ultimately involves foreclosure on budget funds.

Paragraph 8 of this article establishes that an application for a refund of the amount of overpaid tax can be submitted within three years from the date of payment of the specified amount.
It should be noted that the legislation on taxes and fees does not establish a general limitation period, subject to which a court of general jurisdiction or an arbitration court is obliged to provide protection to a person whose rights have been violated.
Article 11 of the said Code determines that the institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in the Code are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by it. The legislation on taxes and fees does not establish a general limitation period, subject to which a court of general jurisdiction or an arbitration court is obliged to provide protection to the person making his claims.
The general limitation period is established by Art. 196 of the Civil Code of the Russian Federation and is three years.
Thus, the three-year period during which the taxpayer has the right to appeal to the tax authority applies to both the claim for the return of overpaid amounts and the claim for their offset.
In addition, according to Section VII of the instruction of the State Tax Service of the Russian Federation dated April 15, 1994 N VG-3-13/23 “On the procedure for maintaining operational accounting of taxes, fees, duties and other obligatory payments in state tax inspectorates”, the amounts of payments received in excess of as a result of their incorrect calculation or violation of the established procedure for collection, are subject, by decision of the relevant collection authority, to return or offset against other amounts due from the payer, unless a three-year period has expired from the date of their receipt.
Consequently, amounts of overpaid tax can be offset or returned before the expiration of three years from the date of their payment, and at the end of the specified period are subject to write-off.
In addition, it should be borne in mind that the amounts of tax and other obligatory payments written off before 10/12/98 according to payment orders of the taxpayer or collection order of the tax authority, due to the failure to receive funds to the corresponding budget account on the basis of previously sent payment orders of the taxpayer or earlier collection orders issued by the tax authority are not overpaid and, therefore, are not subject to offset or refund.
It should be borne in mind that the tax authority is obliged to inform the taxpayer about each fact of excessive payment of tax that has become known to the tax authority and the amount of overpaid tax no later than one month from the date of discovery of such a fact.
If the taxpayer has arrears in the payment of taxes and fees or arrears in penalties accrued to the same budget (non-budgetary fund), the refund of the overpaid amount to the taxpayer is made only after the specified amount is offset against the arrears (debt).
It should be borne in mind that a taxpayer organization has the right to apply to the tax authority for a credit or refund of overpaid taxes only within three years from the date of payment of the specified amount.
The procedure for calculating taxable profit is regulated by the Law of the Russian Federation "On the income tax of enterprises and organizations" N 2116-1 dated December 27, 1991 (as amended and supplemented) and the instruction of the State Tax Service of the Russian Federation dated August 10, 1995 N 37 "On the procedure for calculation and payment to the budget tax on profits of enterprises and organizations."
Based on sub. 4 tbsp. 8 and clause 5.6 of the above Law and Instructions, respectively, the amount of overpaid tax is subject to offset against future payments to the taxpayer or refund to the taxpayer in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation.
Thus, based on the above, a taxpayer organization has the right to apply to the tax authority for a credit or refund of overpaid taxes, including income tax, only within three years from the date of payment of the specified amount.
Consequently, if you apply to the tax authority for a refund (credit) of income tax on the basis of adjusted income tax returns (calculations) with the taxpayer reflecting the incomplete reflection of information on income tax in the submitted returns (calculations) for previous periods, the refund (offset) of tax can be made only on the condition that no more than three years have passed from the moment of its actual payment according to the declaration (calculation) for the past period.
In this case, the date of tax payment to the budget is recognized as the date from which the obligations to the budget for income tax according to the initially submitted declaration (calculation) are considered fulfilled (funds are actually credited to the budget, overpaid payments are offset against the arrears, funds are collected from the taxpayer’s account, etc.), which can be confirmed by the personal account card data of the taxpayer enterprise.
Deputy
Head of the Department
state councilor
tax service of the third rank
A.A. Glinkin

tax code

PART ONE

CHAPTER 12

Article 78. Offset or refund of amounts of overpaid taxes, fees, insurance premiums, penalties, fines

(as edited by the Federal law dated July 3, 2016 N 243-FZ)

(as edited by the Federal law dated July 27, 2006 N 137-FZ)

1. The amount of overpaid tax shall be offset against the taxpayer’s upcoming payments for this or other taxes, repayment of arrears for other taxes, arrears of penalties and fines for tax offenses, or returned to the taxpayer in the manner prescribed by this article.

The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is carried out for the corresponding types of taxes and fees, as well as for penalties accrued on the corresponding taxes and fees.

1.1. The amount of overpaid insurance premiums is subject to offset against the relevant budget of the state extra-budgetary fund of the Russian Federation, to which this amount was credited, against the payer's upcoming payments for this contribution, debt on relevant penalties and fines for tax offenses, or the return of insurance premiums to the payer in the manner prescribed this article.

(clause 1.1 introduced by the Federal by law dated July 3, 2016 N 243-FZ)

2. A credit or refund of the amount of overpaid tax is carried out by the tax authority at the place of registration of the taxpayer, unless otherwise provided by this Code, without charging interest on this amount, unless otherwise established by this article.

3. The tax authority is obliged to report the taxpayer about each fact of excessive payment of tax that has become known to the tax authority and the amount of excess tax paid within 10 days from the date of discovery of such a fact.

N 229-FZ, from 07/03/2016 N 243-ФЗ)

The paragraph is no longer valid. - Federal law dated July 27, 2010 N 229-FZ.

4. The offset of the amount of overpaid tax against the taxpayer’s upcoming payments for this or other taxes is carried out on the basis of a written statements(an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer’s personal account) of the taxpayer by decision of the tax authority.

N 97-ФЗ, from 04.11.2014 N 347-ФЗ)

Solution on the offset of the amount of overpaid tax against the taxpayer's upcoming payments is accepted by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of the taxes paid by him, if such a joint reconciliation was carried out.

5. Offsetting the amount of overpaid tax to pay off arrears on other taxes, arrears of penalties and (or) fines subject to payment or collection in cases provided for by this Code is carried out by the tax authorities independently no more than three years from the date of payment of the specified amount tax

(as edited by the Federal law dated July 29, 2018 N 232-FZ)

(as amended by Federal Laws dated June 29, 2012 N 97-ФЗ, from 04.11.2014 N 347-ФЗ)

6. The amount of overpaid tax is subject to refund in writing. statement(an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer’s personal account) of the taxpayer within one month from the date the tax authority received such an application.

(as amended by Federal Laws dated June 29, 2012 N 97-ФЗ, from 04.11.2014 N 347-ФЗ)

6.1. A refund of the amount of overpaid insurance contributions for compulsory pension insurance is not made if, according to the territorial management body of the Pension Fund of the Russian Federation, information on the amount of overpaid insurance contributions for compulsory pension insurance is presented by the payer of insurance contributions as part of individual (personalized) accounting information and taken into account on individual personal accounts of insured persons in accordance with legislation Russian Federation on individual (personalized) registration in the compulsory pension insurance system.

(clause 6.1 introduced by the Federal by law dated 07/03/2016 N 243-FZ; in ed. Federal law dated November 30, 2016 N 401-FZ)

(as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated 06/23/2014 N 166-FZ)

8. Solution for the refund of the amount of overpaid tax is accepted by the tax authority within 10 days from the date of receipt of the taxpayer’s application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of a joint reconciliation report of the taxes paid by him, if such a joint reconciliation was carried out.

first paragraph of this paragraph, an order for the return of the amount of overpaid tax, issued on the basis of a decision of the tax authority to return this amount of tax, is subject to sending by the tax authority to the territorial body of the Federal Treasury for the refund to the taxpayer in accordance with the budget legislation Russian Federation.

9. The tax authority is obliged to report to the taxpayer about the accepted decision on offset (refund) of amounts of overpaid tax or decision on refusal to carry out offset (refund) within five days from the date of adoption of the relevant decision.

(as edited by the Federal law dated 04.11.2014 N 347-FZ)

Amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible participant of this group in the manner established by this article.

(paragraph introduced by the Federal by law dated November 16, 2011 N 321-FZ)

10. If the refund of the amount of overpaid tax is carried out in violation of the deadline established clause 6 of this article, the tax authority shall accrue interest payable to the taxpayer on the amount of overpaid tax that is not returned within the prescribed period for each calendar day of violation of the refund deadline.

The interest rate is assumed to be refinancing rate of the Central Bank of the Russian Federation, which acted on the days when the return deadline was violated.

11. The territorial body of the Federal Treasury, which refunded the amount of overpaid tax, notifies the tax authority of the date of refund and the amount of money returned to the taxpayer.

12. In case provided clause 10 of this article, the interest has not been paid to the taxpayer in full, the tax authority makes a decision on the return of the remaining amount of interest, calculated based on the date of the actual return to the taxpayer of the amounts of overpaid tax, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury about the date of return and the amount of the refunded taxpayer's funds.

Before the expiration of the deadline first paragraph of this paragraph, an order for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, is subject to sending by the tax authority to the territorial body of the Federal Treasury for the refund.

13. Credit or refund of the amount of overpaid tax and payment of accrued interest are made in the currency of the Russian Federation.

13.1. Amounts of funds paid to compensate for damage caused to the budget system of the Russian Federation as a result of crimes provided for Articles 198 - 199.2 of the Criminal Code of the Russian Federation are not recognized as amounts of overpaid tax and are not subject to offset or refund in the manner prescribed by this article.

(Clause 13.1 was introduced by the Federal by law dated November 30, 2016 N 401-FZ)

(as amended by Federal Laws dated November 16, 2011 N 321-ФЗ, from 07/03/2016 N 243-ФЗ)

The provisions of this article regarding the return or offset of overpaid amounts of state duty are applied taking into account the specifics established Chapter 25.3 of this Code.

(paragraph introduced by the Federal by law dated July 23, 2013 N 248-FZ)

The rules established by this article also apply to the offset or return of interest amounts paid in accordance with paragraph 17 of article 176.1 of this Code.

(paragraph introduced by the Federal by law dated November 30, 2016 N 401-FZ)

15. The fact of indicating a person as a nominal owner of property in a special declaration submitted in accordance with the Federal by law"On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation", and the transfer of such property to its actual owner do not in themselves constitute grounds for recognizing the amounts of taxes, fees, penalties and fines paid by the nominal owner in respect of such property.

(Clause 15 was introduced by the Federal by law dated 06/08/2015 N 150-FZ)

16. The rules established by this article also apply to amounts of overpaid value added tax that are subject to refund or credit to foreign organizations - taxpayers (tax agents) specified in paragraph 3 of article 174.2 of this Code. Refunds of the amount of overpaid value added tax to such organizations are made to an account opened with a bank.

(Clause 16 was introduced by the Federal by law dated July 3, 2016 N 244-FZ)

17. The rules on the return of amounts of overpaid taxes established by this article also apply to the return of amounts of previously withheld corporate income tax that are subject to return to a foreign organization in the cases provided for paragraph 2 of article 312 of this Code, taking into account the specifics established by this paragraph.

The decision to return the amount of previously withheld corporate income tax is made by the tax authority at the place of registration of the tax agent within six months from the date of receipt from a foreign organization of an application for the return of previously withheld tax and other documents specified in paragraph 2 of article 312 of this Code.

The amount of previously withheld corporate income tax is subject to refund within one month from the date the tax authority makes a decision to return the amount of previously withheld tax.

(as amended by Federal Law dated July 3, 2016 N 243-FZ)

(as amended by Federal Law dated July 27, 2006 N 137-FZ)

(clause 1.1 introduced by Federal Law dated July 3, 2016 N 243-FZ)

(as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated July 3, 2016 N 243-FZ)

The paragraph is no longer valid. - Federal Law of July 27, 2010 N 229-FZ.

4. The offset of the amount of overpaid tax against the taxpayer’s upcoming payments for this or other taxes is carried out on the basis of a written application (application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer’s personal account) of the taxpayer by decision of the tax authority .

(as amended by Federal Law dated July 29, 2018 N 232-FZ)

(as amended by Federal Laws dated June 29, 2012 N 97-FZ, dated November 4, 2014 N 347-FZ)

6.1. A refund of the amount of overpaid insurance contributions for compulsory pension insurance is not made if, according to the territorial management body of the Pension Fund of the Russian Federation, information on the amount of overpaid insurance contributions for compulsory pension insurance is presented by the payer of insurance contributions as part of individual (personalized) accounting information and taken into account on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) accounting in the compulsory pension insurance system.

(clause 6.1 introduced by Federal Law dated July 3, 2016 N 243-FZ; as amended by Federal Law dated November 30, 2016 N 401-FZ)

(as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated June 23, 2014 N 166-FZ)

(as amended by Federal Law dated November 4, 2014 N 347-FZ)

Amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible participant of this group in the manner established by this article.

(paragraph introduced by Federal Law dated November 16, 2011 N 321-FZ)

The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the repayment deadline was violated.

11. The territorial body of the Federal Treasury, which refunded the amount of overpaid tax, notifies the tax authority of the date of refund and the amount of money returned to the taxpayer.

13. Credit or refund of the amount of overpaid tax and payment of accrued interest are made in the currency of the Russian Federation.

(clause 13.1 introduced by Federal Law dated November 30, 2016 N 401-FZ)

(as amended by Federal Laws dated November 16, 2011 N 321-FZ, dated July 3, 2016 N 243-FZ)

The provisions of this article regarding the return or offset of overpaid amounts of state duty are applied taking into account the specifics established by Chapter 25.3 of this Code.

(paragraph introduced by Federal Law dated July 23, 2013 N 248-FZ)

The rules established by this article also apply to the offset or return of interest paid in accordance with paragraph 17 of Article 176.1 of this Code.

(paragraph introduced by Federal Law of November 30, 2016 N 401-FZ)

15. The fact of indicating a person as a nominal owner of property in a special declaration submitted in accordance with the Federal Law “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation”, and the transfer of such property to its actual owner do not in themselves constitute grounds for recognizing as overpaid the amounts of taxes, fees, penalties and fines paid by the nominal owner in relation to such property.

(Clause 15 introduced by Federal Law dated 06/08/2015 N 150-FZ)

(Clause 16 introduced by Federal Law dated July 3, 2016 N 244-FZ)

17. The rules for the return of amounts of overpaid taxes established by this article also apply to the return of amounts of previously withheld corporate income tax that are subject to return to a foreign organization in the cases provided for in paragraph 2 of Article 312 of this Code, taking into account the specifics established by this paragraph.

The amount of previously withheld corporate income tax is subject to refund within one month from the date the tax authority makes a decision to return the amount of previously withheld tax.

(Clause 17 introduced by Federal Law dated November 14, 2017 N 322-FZ)