home Mortgage Judicial procedure for protecting the violated rights of taxpayers. Ensuring and protecting the rights of taxpayers (payers of fees) Judicial methods of protecting the rights of taxpayers

Judicial procedure for protecting the violated rights of taxpayers. Ensuring and protecting the rights of taxpayers (payers of fees) Judicial methods of protecting the rights of taxpayers

As already discussed above, acts of tax authorities, actions or inactions of their officials can be appealed to a higher tax authority (higher official). However, filing a complaint with a higher tax authority (superior official) does not exclude the right to simultaneous or subsequent filing of a similar complaint with a court; organizations or individual entrepreneurs should file a claim with the arbitration court in accordance with arbitration procedural legislation, individuals (including private notaries, private security guards, private detectives) - to the courts of general jurisdiction.

General instructions on the possibility of seeking judicial protection are contained in Art. 46 of the Constitution Russian Federation, more specific - in regulations governing the rights and obligations of tax authorities and taxpayers. Thus, Section VII of Part 1 of the Tax Code of the Russian Federation regulates the issues of appealing acts of tax authorities and actions or inaction of their officials. According to Article 5 of the Federal Code of Law of April 28, 1995 No. 1-FKZ “On Arbitration Courts in the Russian Federation”, the main tasks of arbitration courts in the Russian Federation when considering disputes within their jurisdiction are: protection of violated or disputed rights and legitimate interests of enterprises, institutions, organizations (hereinafter referred to as organizations) and citizens in the field of entrepreneurial and other economic activities. If we consider the issue of jurisdiction, then in accordance with Article 27 of the Arbitration Procedural Code of the Russian Federation, the Arbitration Court of the Russian Federation has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities.

A taxpayer can appeal in court not only the decision of the tax authority, but also a document of any name (demand, decision, resolution, letter, etc.), signed by the head (deputy head) of the tax authority and relating to a specific taxpayer. The taxpayer has the right to appeal in court the demand for payment of tax, penalties and tax sanctions, regardless of whether he has challenged the decision of the tax authority on the basis of which the corresponding demand was made.

The plaintiff has the right to indicate as a defendant in the dispute both a specific official of the tax authority and the tax authority itself. The plaintiff does not always have the opportunity to bring a claim against a specific official (in particular, if by the time the claim is filed, the relevant person has resigned from the tax authority or the plaintiff does not know which official is obliged to perform the requested action). In this case, already during the consideration of the claim brought against the tax authority, the court has the right, if there are grounds for this, to involve a specific official as a second defendant.

According to Art. 125 of the Arbitration Procedure Code of the Russian Federation, the statement of claim must indicate:

· Name arbitration court to which the claim is filed;

· name of the plaintiff, his location; if the plaintiff is a citizen, his place of residence, the date and place of his birth, the date and place of his state registration as an individual entrepreneur;

· name of the defendant, his location or place of residence;

· the circumstances on which the claims are based, and evidence confirming these circumstances;

· the cost of the claim, if the claim is subject to assessment;

· calculation of the amount of money collected or disputed;

· information about the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or agreement;

· information about the measures taken by the arbitration court to ensure property interests before filing a claim;

· list of attached documents.

The application may also contain other information, including telephone numbers, fax numbers, and email addresses, if they are necessary for the correct and timely consideration of the case; it may contain petitions, including petitions to obtain evidence from the defendant or other persons.

The plaintiff is obliged to send copies to other persons participating in the case (including the defendant - the tax authority) statement of claim and the documents attached to it that they do not have, by registered mail with acknowledgment of receipt.

The following are attached to the statement of claim:

· notification of delivery or other documents (this may be a postal receipt, a receipt for documents sent (delivered), etc.) confirming the sending to other persons participating in the case, copies of the statement of claim and documents attached to it, which others have there are no persons participating in the case;

· document confirming payment of state duty in established order and in the amount or the right to receive a benefit in paying the state duty, or a petition for a deferment, installment plan, or a reduction in the amount of the state duty;

· documents confirming the circumstances on which the plaintiff bases his claims;

· copies of the certificate of state registration as legal entity or an individual entrepreneur;

· power of attorney or other documents confirming authority to sign the statement of claim;

· copies of the arbitration court ruling on securing property interests before filing a claim;

· documents confirming the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or agreement;

· draft agreement, if a demand is made to compel the conclusion of an agreement.

When a taxpayer defends his rights in court, the dispute is subject to consideration in the appropriate arbitration court of a constituent entity of the Russian Federation, and taking into account the general rule of territorial jurisdiction set forth in Art. 35 of the Arbitration Procedural Code of the Russian Federation, - in the arbitration court at the location of the defendant (tax authority).

It must be borne in mind that in the event of a discrepancy between the location (legal address) of the tax authority and its territorial affiliation, the taxpayer submits a claim to the arbitration court at the place of affiliation of the tax authority, and not at its location.

Thus, Russian legislation guarantees each taxpayer legal protection of his rights.

Article 137 of the Tax Code of the Russian Federation provides each taxpayer or tax agent with the right to appeal against acts of tax authorities of a non-regulatory nature, actions or inactions of their officials, if, in the opinion of the taxpayer or tax agent, such acts, actions or inactions violate their rights.

Depending on the differences in substantive standards and procedural order, the regulatory legal acts of the Russian Federation provide for the following methods of protecting the rights of taxpayers:

– presidential;

– administrative;

– judicial;

– self-defense of rights.

Any actions (inaction) of regulatory authorities may be appealed to the President of the Russian Federation in financial sector, in particular solutions Federal service on financial markets.

The administrative method involves applying for protection and restoration of a violated right to a higher authority (in relation to the body that made the decision or carried out the action). At the same time, the administrative procedure does not deny the possibility of subsequently seeking protection in court, or an alternative procedure is provided for protecting the rights of subjects tax legal relations.

Along with the administrative procedure, the judicial appeal procedure is used.

At the same time, the Tax Code of the Russian Federation establishes two conditions, compliance with which is necessary to protect the violated rights of taxpayers or tax agents:

– non-normative acts of tax authorities, as well as actions (inaction) of officials of these authorities must, in the opinion of the taxpayer or tax agent, violate their rights;

– regulatory legal acts of tax authorities are appealed in the manner provided not by the Tax Code of the Russian Federation, but by other federal legislation.

Decisions of higher tax authorities made on the consideration of taxpayers' applications for unlawful actions, inaction or acts of lower tax inspectorates are also subject to appeal.

Acts of tax audits are not subject to appeal in administrative or judicial proceedings, since they themselves do not contain mandatory instructions for taxpayers that entail legal consequences.

In tax law, the administrative appeal procedure does not have the nature of a pre-trial procedure, therefore filing a complaint with a higher tax authority (superior official) does not exclude the simultaneous or subsequent filing of a similar complaint with the court.

A complaint against an act of a tax authority, actions or inaction of its official is submitted, respectively, to a higher tax authority or to a higher official of this body.

A complaint to a higher tax authority (superior official) is filed, unless otherwise provided by this article, within three months from the day the taxpayer learned or should have learned about the violation of his rights. Supporting documents may be attached to the complaint.

If the deadline for filing a complaint is missed for a good reason, this deadline, at the request of the person filing the complaint, can be restored by a higher official of the tax authority or a higher tax authority, respectively.

The complaint is submitted to writing to the relevant tax authority or official.

A person who filed a complaint with a higher tax authority or a higher official, before a decision is made on this complaint, may withdraw it on the basis of a written application.

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

Resubmission of the complaint to a higher tax authority or a higher official is made within two months.

A higher body or a higher official, within one month from the date of receipt of the complaint, is obliged to consider it and make one of the following decisions:

– leave the complaint without satisfaction;

– cancel the tax authority’s act and order an additional audit;

– cancel the decision and terminate the proceedings in the case tax offense;

change the decision or make a new decision on the merits of the circumstances of the case.

Any of the decisions made is reported to the person who filed the complaint within 3 days.

17.2. Judicial procedure for protecting violated rights of taxpayers

The judicial procedure for protecting the rights of taxpayers involves a person filing a lawsuit in the appropriate court.

The legislation of the Russian Federation provides for the following methods of judicial protection of the rights of taxpayers:

– recognition of a legislative act as unconstitutional in whole or in part by the Constitutional Court of the Russian Federation;

– recognition by a court of general jurisdiction of a law of a constituent entity of the Russian Federation as contrary to Federal Law and, therefore, invalid or not subject to application;

– recognition by arbitration courts or courts of general jurisdiction as invalid of a normative or non-normative act of a tax authority, other state body or body local government, contrary to the law and violating the rights and legitimate interests of the taxpayer;

– cancellation by arbitration courts or courts of general jurisdiction of an invalid normative or non-normative act of a tax authority, other state body or local government body, contrary to the law and violating the rights and legitimate interests of the taxpayer;

– non-application by the court of a normative or non-normative act of a state body, local government body or other body that contradicts the law;

– the intersection of actions of an official of a tax or other government agency that violate the rights or legitimate interests of the taxpayer;

– coercion of tax authorities, other government bodies or their officials to fulfill legally established duties, from which they evade;

– declaring as unexecutable a collection order (instruction) of a tax or other authority to write off from the taxpayer’s bank account in an indisputable manner the amounts of arrears, penalties, fines for violations of tax legislation;

– return from the budget of amounts of arrears, penalties and fines unreasonably written off in an indisputable manner;

– collection of interest for untimely return of overpaid or overcharged amounts of taxes, fees, penalties;

– compensation for losses caused by illegal decisions, actions (inaction) of tax authorities or their officials.

The named methods of judicial protection are at the same time the subject of claims by taxpayers.

According to Art. 29. Arbitration Procedure Code of the Russian Federation to the jurisdiction of economic disputes and other cases arising from administrative and other public legal relations

Arbitration courts consider the following categories of cases related to the implementation of entrepreneurial and other economic activities by organizations and citizens:

– on challenging regulatory legal acts affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities;

– on challenging non-normative legal acts of state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation, local government bodies, decisions and actions (inaction) of state bodies, local government bodies, other bodies and officials affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities;

– about administrative offenses;

– on recovery from organizations and citizens engaged in business and other economic activity, obligatory payments, sanctions, unless the Federal Law provides for a different procedure for their collection;

– other cases arising from administrative and other public legal relations, if the Federal Law places their consideration within the competence of the arbitration court.

"Tax Bulletin", 2010, N 8

The issue of protecting the rights of taxpayers in disputes with tax authorities invariably arouses interest in society. The norms of tax legislation regulating relations in the field of tax control have repeatedly become the subject of judicial research. Almost any act of the highest courts on this topic becomes a significant phenomenon in the legal world. The analyzed Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 20, 2010 N 17413/09 discusses the issue of choosing a method of protecting the violated right of a taxpayer in the event of his disagreement with the indisputable write-off of taxes and penalties from the current account on the basis of a collection order.

As follows from the text of the Resolution, the appellate and cassation instances, when considering the taxpayer’s application, came to the conclusion that his right to go to court demanding the return of amounts of illegally collected taxes, penalties, fees and fines arises provided that he takes measures to pre-trial resolve the dispute with tax authorities.

The Presidium of the Supreme Arbitration Court of the Russian Federation did not agree with this position, pointing out the following: in the event of a dispute regarding the return of excessively collected taxes, penalties, fees and fines, the taxpayer can independently choose the method of protecting his violated right, and the law does not provide for a mandatory pre-trial procedure for resolving disputes.

This position of the Presidium of the Supreme Arbitration Court of the Russian Federation is absolutely correct and does not contradict the norms of current legislation.

In accordance with Art. 45 of the Constitution of the Russian Federation, everyone has the right to protect their rights and freedoms by all means not prohibited by law.

Since adoption in 1998 Tax Code Russian legislation on taxes and fees provides for the following ways to protect the rights of taxpayers:

protection of rights in administrative proceedings;
protection of rights in court;
self-defense.

Protection of taxpayer rights in administrative proceedings

As established by Art. 138 of the Tax Code of the Russian Federation, acts of tax authorities, actions or inactions of their officials can be appealed to a higher tax authority (higher official) or to court.

Until January 1, 2009, the legislation on taxes and fees did not contain any restrictions on the taxpayer going to court to protect his violated rights and legitimate interests, and he had the right to apply to a higher tax authority and (or) to court to protect his rights , as well as appeal the decision (action or inaction) simultaneously both administratively and judicially.

Since January 1, 2009, not all non-normative acts of tax authorities can be appealed to the court, bypassing the stage of pre-trial dispute resolution. Leaving aside the discussion about the violation by these amendments to the Tax Code of the Russian Federation of the right to judicial protection provided for in Art. 46 of the Constitution of the Russian Federation, it should be noted: in accordance with paragraph 5 of Art. 101.2 of the Tax Code of the Russian Federation, a mandatory pre-trial dispute resolution procedure is established for the following types of decisions made by tax authorities based on the results of field and desk tax audits:

on bringing to responsibility for committing a tax offense;
on refusal to prosecute for committing a tax offense.

Thus, the above decisions of the tax authority can be appealed in court only after they have been appealed to a higher tax authority, because the taxpayer's appeal to the court with the specified requirement, bypassing the higher tax authority, in accordance with Art. 148 of the Arbitration Procedural Code of the Russian Federation will be the basis for leaving such an application by the arbitration court without consideration.

From the above we can conclude: appealing any other non-normative acts of tax authorities, except for the above decisions, as well as actions (inaction) of tax authority officials in an administrative manner is not mandatory. For example, the requirement to pay tax, penalties, fines made on the basis of the above-mentioned decisions of the tax authority, and other law enforcement acts that, in the opinion of the taxpayer, violate his rights and legitimate interests, can be appealed directly in court, bypassing a higher tax authority.

These conclusions are confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in the analyzed Resolution: clause 3 of Art. 79 of the Tax Code of the Russian Federation “provides for the taxpayer the opportunity to choose a method of protecting his violated right in the event that the tax authority has collected from him the amounts of taxes, fees, penalties and fines excessively, that is, unreasonably and illegally.”

However, taxpayers are skeptical about the above-mentioned mandatory pre-trial administrative procedure for appealing decisions of tax authorities, because Today, unfortunately, appealing to a higher tax authority or a higher official is an ineffective way to protect your rights. Tax authorities often refuse to change decisions that clearly contradict the norms of legislation on taxes and fees, and the taxpayer has no choice but to go to court.

It seems that increasing the efficiency of the administrative appeal procedure could be facilitated by imposing on the tax authority the obligation to reimburse not only the state duty, but also legal costs, as well as changing the approach of the tax authorities to tax control: from “intimidating” taxpayers and increasing tax collection at any cost to adequate and a balanced approach when carrying out tax control activities, because often “quantity” does not mean “quality”. Such an approach would significantly reduce the burden on the courts, which are forced to consider a huge number of cases. tax disputes, since in the conditions of modern economic realities, taxpayers are increasingly not ready to part with their money “without a fight” and go to court to protect their rights and legitimate interests.

Protection of taxpayer rights in court

As already indicated, the Constitution of the Russian Federation guarantees everyone judicial protection of their rights and freedoms, and decisions and actions (or inaction) of state authorities, local governments, public associations and officials can be appealed to the court, incl. to international judicial bodies.

This constitutional guarantee means that the taxpayer has the right to go to court for the protection of his rights and legitimate interests, and the court is obliged to consider the application and make a legal, fair and informed decision.

Provisions on judicial protection of taxpayers' rights are enshrined in Art. Art. 138 and 142 of the Tax Code of the Russian Federation. So, in accordance with Art. 138 acts of tax authorities, actions or inactions of their officials can be appealed in court. A Art. 142 of the Tax Code of the Russian Federation specifies: applications for appealing acts of tax authorities, actions or inactions of their officials, filed in court, are considered and resolved in the manner established by civil procedural, arbitration procedural legislation and other federal laws.

In court, protection of a taxpayer’s rights can be achieved by filing the following applications:

on invalidating non-normative legal acts of a tax authority (official);
on declaring illegal actions (inaction) of a tax authority (tax authority official);
on recognizing as not subject to execution a writ of execution or another document, according to which the collection is carried out in an indisputable (non-acceptance) manner;
about refund from the budget Money written off by tax authorities in an indisputable manner in violation of the requirements of the law or other regulatory legal act, as well as interest on these amounts;
on the return from the budget of funds overpaid by the taxpayer or tax agent;
on the offset of funds excessively collected by the tax authority against future payments or tax arrears, penalties and fines;
on compensation for losses caused to a taxpayer or tax agent as a result of illegal actions (inaction) of a tax authority or a tax authority official;
on declaring invalid a normative legal act of a tax authority (official) that does not comply with the Tax Code of the Russian Federation or another normative legal act of greater legal force.

An appeal to the Constitutional Court of the Russian Federation should be considered as a special type of judicial method of protecting the rights of taxpayers. In accordance with Art. 125 of the Constitution of the Russian Federation, upon complaints of violation of the constitutional rights and freedoms of citizens and upon requests from courts, the Constitutional Court of the Russian Federation verifies the constitutionality of the law applied or to be applied in a specific case, in the manner established by federal law. This provision of the Constitution of the Russian Federation is specified in the Federal Constitutional Law of July 21, 1994 N 1-FKZ “On the Constitutional Court of the Russian Federation”. According to Art. 96 of this Law, the right to appeal to the Constitutional Court of the Russian Federation with an individual or collective complaint about a violation of constitutional rights and freedoms belongs to citizens whose rights and freedoms are violated by the law applied or subject to application in a particular case, and to associations of citizens, as well as other bodies and persons. And in accordance with Art. 97 of this Law, a complaint about a violation of constitutional rights and freedoms by law is admissible if:

the law affects the constitutional rights and freedoms of citizens;
the law has been applied or is to be applied in a specific case, the consideration of which has been completed or begun in a court or other body applying the law.

Legal entities also have the right to apply to the Constitutional Court of the Russian Federation for the protection of violated rights. This conclusion follows from the Resolution of the Constitutional Court of the Russian Federation of October 24, 1996 N 17-P: organizations are associations - legal entities created by citizens for the joint implementation of constitutional rights; violation of the rights of organizations entails a violation of the rights of citizens - the founders of this legal entity.

However, a taxpayer can apply to the Constitutional Court of the Russian Federation for the protection of his rights and legitimate interests only after first applying to a court of general jurisdiction or an arbitration court and applying the appealed provisions of the law in his case.

As practice shows, the judicial method of protecting the rights and legitimate interests of taxpayers is more effective than the administrative one, because the court, unlike the tax authority, is not interested in increasing tax collection rates, in the pursuit of which tax authorities so often neglect the rights and legitimate interests of taxpayers. However, this method of protection is also more expensive for the taxpayer compared to the administrative one.

Self-defense

The Tax Code of the Russian Federation (clause 11, clause 1, article 21) gives the taxpayer the right to independent protection of his rights and legitimate interests, but does not determine in what forms and in what order this right can be exercised; it only establishes that self-defense is permissible through non-fulfillment illegal acts and demands of tax authorities, other authorized bodies and their officials that do not comply with the Tax Code of the Russian Federation or other federal laws.

It seems that at this stage of development tax system In the Russian Federation, this method of protecting rights cannot be sufficiently effective and widely used, because its “passive” mechanism does not allow it to adequately respond to the “attacks” of the tax authorities.

Some researchers also highlight presidential and prosecutorial methods as ways to protect the rights of taxpayers. However, it seems that within the framework of this analysis there is no need to dwell on methods of protecting rights that are so rarely used by taxpayers in practice.

Thus, the above analysis allows us to come to the conclusion: of all the available and most frequently used methods of protecting the rights of taxpayers, the judicial one is the most effective. And the analyzed Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation once again proves: the taxpayer’s right to judicial protection of rights and legitimate interests is most often not conditioned by a mandatory pre-trial procedure.

I.A.Panina

Senior consultant

tax and legal department

counseling

KPMG in Russia and the CIS

The administrative procedure for protecting the violated rights of taxpayers means the possibility of appealing against acts of tax authorities, actions or inactions of their officials to a higher tax authority (superior official) or to court.

In tax law, the administrative appeal procedure does not have the nature of a mandatory pre-trial procedure, therefore filing a complaint with a higher tax authority (superior official) does not exclude the right to simultaneous or subsequent filing of a similar complaint with the court.

Procedural norms defining the procedure and deadlines for filing a complaint with a higher tax authority or a higher official are established by Art. 139 of the Tax Code of the Russian Federation.

When a taxpayer uses the administrative procedure for protecting violated rights, appeals against acts of tax authorities, actions or inactions of their officials are carried out according to the administrative hierarchy - the complaint is submitted to the tax authority (official) under whose subordination is the tax authority or official who committed the violation of the law. Consequently, the administrative procedure for appealing acts, actions or inactions of tax authorities or their officials can be multiple.

A taxpayer's complaint may contain several facts that violate the rights of the applicant. At the same time, the Tax Code of the Russian Federation clearly distinguishes between the jurisdiction of filing and considering a complaint - facts of disagreement with acts, actions or inactions of the tax authority are declared only to a higher tax authority; Complaints about misconduct by officials are submitted to a higher-ranking official. Combining in one complaint claims under the jurisdiction of the tax authorities with claims under the jurisdiction of officials of these bodies is not permitted.

Appeals against illegal activities of tax authorities or their officials can only be made in writing. The complaint must contain the name and contact details of the tax authority or official whose actions are being appealed, information about the applicant, as well as the subject and grounds of the appeal.

The Tax Code of the Russian Federation establishes a three-month limitation period (appeal period) for filing a complaint against unlawful acts, actions or inactions of tax authorities or their officials. The three-month period begins to run from the day the taxpayer learned or should have learned about the violation of his rights.

The statute of limitations for filing a complaint can be restored, but subject to a valid reason for missing it. If a taxpayer has missed the deadline for appealing acts, actions or inactions of tax authorities (officials), then he has the right to attach to the complaint a written application to restore the missed statute of limitations, indicating the reasons for what happened. The issue of a valid reason for missing the statute of limitations and its restoration is decided by the tax authority or official to whom the complaint is addressed.

As a rule, a serious and prolonged illness is recognized as a valid reason for missing the statute of limitations, long absence, a combination of difficult family circumstances, force majeure. Also, valid reasons may include the actions of tax or law enforcement officials, as a result of which the documents necessary for the taxpayer to file a complaint were confiscated.

In the absence of valid reasons, missing the three-month deadline for appeal does not give the taxpayer the right to demand consideration of his complaint. This statement comes back. At the same time, a refusal to restore the deadline can also be appealed to a higher tax authority or a higher official.

A person who has filed a complaint with a higher tax authority or a higher official, before a decision is made on this complaint, may, on the basis of his written application, withdraw it. However, withdrawal of a complaint deprives the taxpayer who filed it of the right to re-appeal the same acts, actions or inactions to the same tax authority or to the same official. Appeals for other circumstances are also carried out within three months from the day the applicant learned or should have learned about the violation of his rights.

As a general rule, appealing against unlawful behavior of tax authorities or their officials does not suspend the execution of the act or action being appealed. However, the decision on suspending the action of a lower tax authority or the actions (inaction) of an official depends on the higher tax authority or official who accepted the complaint for consideration. If, before making a reasoned decision on a filed complaint, a superior official has sufficient grounds to believe that the acts or actions being questioned do not comply with the legislation of the Russian Federation, then he has the right to suspend the appealed act (action, inaction) in whole or in part.

A higher tax authority or a higher official, within a month from the date of receipt of the complaint, is obliged to consider it and make one of the following decisions:

-- leave the complaint without satisfaction;
-- cancel the tax authority's act and order an additional audit;
-- cancel the decision and terminate the tax violation proceedings;
- change the decision or make a new decision on the merits of the circumstances of the case.

Any decision made is notified to the person who filed the complaint within three days.

The administrative procedure for protecting the violated rights of taxpayers operates in parallel with the judicial one. At the same time, there is a certain dependence of the decision of the tax authority (official) on the court decision on similar grounds set out in the taxpayer’s complaint. According to the general procedural rules provided for by the Tax Code of the Russian Federation, the tax authority (official) has the right to consider the complaint and make any decision on it until the decision of the court (arbitration court) to resolve the dispute on circumstances identical to those in the filed complaint enters into legal force. If a court decision comes into force before the tax authority (official) makes a decision on the complaint submitted to it, then the act of the tax authority should not contradict the judicial act. Thus, if the court satisfies the taxpayer’s demands, the tax authority is obliged to recognize the court’s decision as lawful and also make a decision in favor of the applicant. Consideration by a tax authority (official) of a filed complaint after a court decision has entered into legal force and the issuance of an opposite decision is contrary to the principles of universal bindingness and irrefutability of judicial acts that have entered into legal force.

The administrative procedure for appealing acts or inactions of tax authorities or their officials does not require the mandatory participation of the applicant or his notification of the date of consideration of his complaint. In some cases, in order to comprehensively and objectively consider the facts set out in the complaint, any documents, information or explanations may be required from the taxpayer.

The judicial procedure for protecting the violated rights of taxpayers involves a person filing a lawsuit in the appropriate court. For courts of all types, consideration of tax disputes is one of the most difficult categories of cases, since judges must master not only tax, but also almost all financial legislation and also understand the rules of conduct accounting carrying out audit activities, etc.

The legislation of the Russian Federation provides for the following methods of judicial protection of the rights of taxpayers:

1) recognition of a legislative act as unconstitutional in whole or in part by the Constitutional Court of the Russian Federation;
2) recognition by a court of general jurisdiction of a law of a constituent entity of the Russian Federation that is contrary to federal law and, therefore, invalid or not subject to application;
3) recognition by arbitration courts or courts of general jurisdiction as invalid of a normative or non-normative act of a tax authority, other state body or local government body that contradicts the law and violates the rights and legitimate interests of the taxpayer;
4) cancellation by arbitration courts or courts of general jurisdiction of an invalid normative or non-normative act of a tax authority, other state body or local government body, contrary to the law and violating the rights and legitimate interests of the taxpayer;
5) failure by the court to apply a normative or non-normative act of a state body, local government body or other body that contradicts the law;
6) suppression of actions of an official of a tax authority or other government body that violate the rights or legitimate interests of the taxpayer;
7) forcing tax authorities, other government bodies or their officials to fulfill legally established duties, from which they evade;
8) recognition as not subject to execution of a collection order (order) of a tax or other authority to write off indisputably the amounts of arrears, penalties, fines for violations of tax legislation from the taxpayer’s bank account;
9) return from the budget of amounts of arrears, penalties, and fines that were unreasonably written off in an indisputable manner;
10) collection of interest for late return of overpaid or overcharged amounts of taxes, fees, penalties;
11) compensation for losses caused by illegal decisions, actions or inactions of tax authorities or their officials.

At the same time, the named methods of judicial protection are the subject of claims by taxpayers.

After the entry into force of part one of the Tax Code of the Russian Federation, the procedure for determining the jurisdiction of tax disputes has undergone significant changes. Article 138 of the Tax Code of the Russian Federation establishes that cases of appealing against normative and non-normative acts of tax authorities, as well as actions or inactions of their officials by organizations and individual entrepreneurs are subject to the jurisdiction of arbitration courts, and individuals who are not individual entrepreneurs - to courts of general jurisdiction.

The norms of the Tax Code of the Russian Federation on the judicial procedure for protecting the violated rights of taxpayers were developed in the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 No. 41/9 “On some issues related to the implementation of part one of the Russian Tax Code Federation". The resolution clarified that tax disputes are subject to consideration by arbitration courts on a general basis in accordance with the Arbitration Procedure Code of the Russian Federation and courts of general jurisdiction - in the manner prescribed by Chapter. 24 of the Code of Civil Procedure of the Russian Federation and the Law of the Russian Federation “On appealing to the court of actions and decisions that violate the rights and freedoms of citizens.”

A significant part of cases arising from tax legal relations are considered by arbitration courts. Article 29 of the Arbitration Procedure Code of the Russian Federation includes the jurisdiction of arbitration courts to consider economic disputes and other cases arising from administrative and other public legal relations. Arbitration courts consider the following categories of cases related to the implementation of entrepreneurial and other economic activities by organizations and citizens:

1) on challenging regulatory legal acts affecting the rights and legitimate interests of the applicant in the field of business and other economic activities;
2) on challenging non-normative legal acts of state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation, local government bodies, decisions and actions (inaction) of state bodies, local government bodies, other bodies and officials affecting the rights and legitimate interests of the applicant in the field entrepreneurial and other economic activities;
3) on the collection of mandatory payments and sanctions from organizations and citizens engaged in business and other economic activities, unless federal law provides for a different collection procedure;
4) other cases arising from administrative and other public legal relations, if federal law places their consideration within the competence of the arbitration court.

The activities of arbitration courts to protect the violated rights of taxpayers are broader than the activities of courts of general jurisdiction, since the number of subjects applying to these courts is much larger.

The Supreme Arbitration Court of the Russian Federation in Information Letter dated June 21, 1999 No. 42 “Review of the practice of considering disputes related to the collection of income tax“indicated that “disputes between individual entrepreneurs and tax authorities arising in connection with the calculation of income tax are within the jurisdiction of arbitration courts, regardless of the basis for the dispute.”

According to the general rule (Article 35 of the Arbitration Procedure Code of the Russian Federation), a claim is brought at the location of the tax authority whose acts, actions or inactions are being appealed. Claims against state bodies and local self-government bodies arising from tax legal relations are filed in the arbitration court of the relevant constituent entity of the Russian Federation, and not at the location of the body that made the contested decision.

Article 138 of the Tax Code of the Russian Federation establishes an important rule for judicial consideration of tax disputes - the principle of determining the proper defendant. According to this principle, in a case of appealing an act of a tax authority, the defendant should involve the tax authority, regardless of who signed the contested act - the head of the tax authority, his deputy or another official. In a case of appealing against the actions or inactions of officials of a tax authority, the proper defendant will be the official who carried out the contested actions or who failed to act.

Law enforcement practice in dealing with tax disputes shows that the following issues are inevitably considered in litigation:

-- application of material norms of legislation on taxes and fees;
-- application of procedural rules that served as a reason for the taxpayer to go to court: the procedure for conducting a tax audit, proceedings for a tax offense, the procedure for collecting arrears or penalties, etc.;
-- legal qualification of the status, nature of the financial and economic activities of the taxpayer in order to identify tax consequences these operations.

An integral part of the judicial procedure for protecting the rights of taxpayers is the execution of court decisions. General rules execution of court decisions are established by the Federal Law of July 21, 1997 “On Enforcement Proceedings”. The specifics of the execution of court decisions in tax disputes are regulated by the Tax Code of the Russian Federation, according to which the amount of tax excessively collected by the tax authority and the interest accrued on this amount are subject to return by the tax authority within one month after the court decision is made (clause 5 of Article 79 of the Tax Code of the Russian Federation). An important guarantee of the reality of restoring the violated rights of taxpayers is the provision on the beginning of the period for the return of funds - one month from the date of the court decision, and not the entry into legal force. Relevant sums of money awarded to the taxpayer for reimbursement are paid at the expense of budget funds, which also guarantees the reality of enforcement proceedings.

In tax practice, there are often cases where a taxpayer has arrears in paying taxes and fees or arrears of penalties due to the same budget from the funds of which overcharged taxes and penalties are subject to reimbursement. In this situation, paragraph 1 of Art. 79 of the Tax Code of the Russian Federation prescribes to first make an offset to repay the arrears, and then return to the taxpayer the remaining difference in the excessively collected amounts of money.

The concept of protecting the rights of taxpayers (payers of fees)

The concept of protecting the rights of taxpayers includes the legal possibility of implementing a system of legislative guarantees (provisions of the Constitution and other legal acts of the Russian Federation), which are aimed at ensuring the rights of citizens acting as subjects of tax relations.

In practice, such protection is the right of the taxpayer, exercised in the event that it is necessary to apply to the state. authorities, in order to investigate the validity of actions of tax authorities resulting from tax disputes.

The situation resulting from disagreements between the payer and the tax office about the correct application of the rules governing tax relations, in this case, can be resolved by appealing decisions issued by the tax authority, to a higher tax authority and to the court.

Initially unequal legal status parties to tax relations (taxpayer and tax authority) are equalized by the opportunity to protect the rights of taxpayers, enshrined in the legal regulations of the Russian Federation.

Provisions of Art. 22 of the Tax Code of Russia determine the possibility of ensuring the rights of the taxpayer, and also establish a period during which the right to protection can be exercised.

Types of protection of the rights and interests of taxpayers (payers of fees)

Based on the provisions of Article 137 of the Tax Code of the Russian Federation, the taxpayer and the tax agent have the right to appeal:

non-normative acts issued by the tax authorities;
actions performed by its officials;
inaction of tax officials;
The taxpayer can also appeal the actions of tax officials during a tax audit.

The legislation does not exclude the possibility of other types of protection of taxpayers' rights.

Ways to protect the rights of taxpayers (payers of fees)

NLA of the Russian Federation, depending on the differences that are determined by material standards and procedural order, establish the following methods of protecting the rights of taxpayers:

administrative;
judicial.

The law also does not prohibit self-defense of rights and the presidential method in cases where decisions of the Federal Service for Financial Markets are appealed.

In the case of applying an administrative method of protection, or restoring a violated right, you need to contact a higher authority in relation to the one that made the illegal decision or carried out illegal actions.

Also, protecting the rights of taxpayers in an administrative manner does not exclude the possibility of subsequently applying for a settlement of the same dispute and protecting their interests in the judiciary.

When applying the judicial appeal procedure, two conditions must be met:

1. The appealed non-normative act, or actions of the tax authorities, must, based on the understanding of the applicant, violate his rights.

2. All legal acts that are adopted by the tax authority must be appealed in the manner established not by the Tax Code of the Russian Federation, but by other Federal legislation.

You can also appeal decisions of a higher tax office regarding issues of consideration of applications, based on a complaint about the illegality of actions or acts of lower tax authorities.

It is impossible to appeal administratively and judicially against acts fixing tax audit, since such a document does not contain any mandatory instructions for its implementation by the taxpayer, entailing legal consequences.

In tax law, the use of an administrative appeal procedure is not a pre-trial procedure, since it does not exclude the possibility of simultaneously filing a complaint with the court.

The administrative appeal procedure requires that the complaint must be submitted in writing and within the time limit established by tax regulations. If the taxpayer withdraws his complaint to a higher tax office, he will not be able to re-submit it to the same tax office.

When judicial protection of taxpayers' rights is applied, the applicant must file a claim with the competent court.

The protection method involves:

constitutional appeal;
recognition by the court of a law of a subject of the Russian Federation that contradicts the Federal Law;
recognition by an arbitration or general court of a normative or non-normative tax act as illegal if the issued document contradicts the law or violates the rights of the taxpayer;
cancellation of an invalid regulatory or non-regulatory tax act, on the same grounds;
forcing the tax authority to fulfill the duties established by law if this authority evades their fulfillment, etc.

The above methods of judicial protection are at the same time the subject of claims.

The procedure for protecting the rights and interests of taxpayers (payers of fees)

The right to appeal against decisions or actions of the tax authority is possible in accordance with the Civil Procedure Code or the Arbitration Procedure Code of Russia, or in an administrative manner (clause 12, paragraph 1, article 21 of the Tax Code of the Russian Federation). This right is one of the most important in the legislative system of the Russian Federation, and provides the opportunity to implement the procedure for protecting the rights of taxpayers prescribed in the laws. The procedure and conditions for implementing the administrative method of protection are established by Section VII of the Tax Code of the Russian Federation.

Also, the provisions of Art. 46 of the Constitution of the Russian Federation, as well as the norms of the law of the Russian Federation on appealing to the court actions and decisions that violate the rights and freedoms of citizens. More specifically, the above provisions are reflected in the Civil Procedure Code if the taxpayer is an individual. Arbitration procedural legislation establishes an appeal procedure when the applicant is a payer or an individual entrepreneur.

It is also necessary to know that the procedure and all the conditions described above, guaranteeing the protection of the rights and legitimate interests of the taxpayer, based on the provisions of paragraph. 2 p. 2 art. 24 of the Tax Code of the Russian Federation extends its effect, including to tax agents.

Guarantees for the protection of the rights of taxpayers (fee payers)

The substantive and legal guarantee, which legislatively ensures the possibility of exercising the taxpayer’s rights prescribed in the tax legislation of the Russian Federation, is also secured by the duties prescribed in the Tax Code of Russia, which relate to tax officials, as well as other authorized bodies. Also, the guarantee of ensuring the protected rights of citizens is established by the provisions of Art. 18 of the Russian Constitution.

In case of non-fulfillment or improper fulfillment of the established duties of the tax service, or violation by its actions of the rights of taxpayers enshrined in the Tax Code and other legal regulations of Russia, the taxpayer may exercise the right in the manner that establishes the Code of Civil Procedure and the Arbitration Procedure Code of Russia for judicial and administrative protection.

Also, additional guarantees for the protection of taxpayers’ rights are provided by the obligation established by the Tax Code of Russia for a higher tax authority to consider a taxpayer’s complaint when appealing the actions of a lower tax authority.

Implementing the guarantees established by law for self-defense, taxpayers created the Federation for the Protection of Taxpayers' Rights, which is a group of companies that provides its participants with information on judicial administrative and business practices regarding taxation.

Responsibility for failure to fulfill obligations to protect the rights of taxpayers (fee payers)

In terms of applying liability to tax authorities for failure to fulfill their duties, it is necessary to point out the existing relationship between Art. 22 of the Tax Code of the Russian Federation with the provisions of Article 35 of the Tax Code of the Russian Federation. According to the rules prescribed in these norms, the tax office is directly responsible for all losses caused to the taxpayer that were a consequence of its actions (decisions).

Quite often there are arguments from the tax authority that tax law does not contain rules that oblige them to reimburse taxpayers for expenses incurred in connection with appealing acts of tax authorities. Such arguments on appeal were recognized by the Ruling of the Supreme Arbitration Court of the Russian Federation of March 18, 2010 No. VAS-2739/10 as untenable.

On the contrary, the provisions of paragraph 2 of Article 103 of the Tax Code of the Russian Federation establish that losses caused to the taxpayer, including lost profits, must be compensated in full from the federal budget. Often, the Federation for the Protection of Taxpayers' Rights provides assistance and assistance in providing current judicial practice, which can be relied upon for compensation of losses.

Also, the resolution of the Federal Arbitration Court of the Central District dated November 13, 2009 N A68-80/09-18/17 confirms general provisions legislation on taxes and fees, which obliges the taxpayer, in the event of losses caused by the tax authority, to compensate the latter for losses, as well as expenses incurred by him.