The procedure for collecting taxes, fees, penalties, fines from organizations and individual entrepreneurs. Collection of taxes at the expense of the taxpayer's funds in bank accounts Collection of unpaid tax can be made

The procedure for collecting tax arrears, penalties, fines based on the results of a desk audit, in what terms and in what order the tax authority can collect the indicated amounts from the taxpayer, what is the limitation period for their collection, after which the tax authority will no longer be able to recover from the taxpayer, what interrupts the statute of limitations?

Answer

The deadlines for the execution of the decision on the collection of tax arrears, the grounds for suspension and the limitation period for the collection of arrears are disclosed in the recommendation below.

Tax arrears, fines and penalties begin to be collected by the tax authority within 2 months from the date of expiration of the period from the date of their payment on the basis of the requirement (clause 3 of article 46 of the Tax Code of the Russian Federation).

If more than 3 years have passed since the deadline for fulfilling the requirement to pay a tax, penalty or fine, then the taxpayer has the right to recognize the debt as uncollectible in court (clause 4, clause 1, article 59 of the Tax Code of the Russian Federation).

The rationale for this position is given below in the materials of "Systems Lawyer" and "Systems Glavbuh" .

« Execution of the decision on recovery

The decision on the forced collection of arrears is executed through the bank in which the organization has an account*. The inspectorate must send an order to this bank to transfer the tax (insurance fee, fine, penalties) to the budget (clauses 2, 4, 10 of article 46 of the Tax Code of the Russian Federation). The Bank is obliged to execute this order no later than the next business day. If there is not enough money on the account of the organization to fully repay the arrears, the order will be placed in the file cabinet of unpaid settlement documents. In this case, the arrears will be paid off gradually, as the money arrives at the organization's account. The bank will determine the balance of funds for repayment of arrears in accordance with the sequence established by civil law. Such rules are established by paragraphs 6, 10 of Article 46 of the Tax Code of the Russian Federation and paragraph 2 of Article 855 of the Civil Code of the Russian Federation.

If there is a shortage of money in a ruble bank account and the organization has a foreign currency account, the arrears can be recovered at the expense of foreign currency. To do this, the tax office must give the bank an order to sell the currency. The amount of arrears, which is repaid at the expense of foreign currency, is determined at the exchange rate of the Bank of Russia on the date of sale of the currency. This procedure is provided for in paragraphs 5, 10 of Article 46 of the Tax Code of the Russian Federation. The costs associated with the sale of currency are covered by the organization. They can be taken into account both when calculating income tax (subclause 15, clause 1, article 265 of the Tax Code of the Russian Federation), and when calculating a single tax on the difference between income and expenses in case of simplification (subclause 9, clause 1, article 346.16 of the Tax Code of the Russian Federation).

It is prohibited for tax inspectorates to collect arrears at the expense of funds placed on the organization's deposit account before the expiration of the term of the deposit agreement (paragraph 4, clause 5, clause 10, article 46 of the Tax Code of the Russian Federation). However, at the end of the deposit agreement, the inspectorate has the right to instruct the bank to transfer funds from the deposit to the current account to cover the arrears. This is possible if the deposit and current accounts are in the same bank, and the requirement to recover the arrears from the current account has not been fulfilled by the time the deposit agreement is closed. Such clarifications are contained in the letter of the Federal Tax Service of Russia dated August 31, 2015 No. SA-4-8/15316.

If there are not enough funds in ruble and foreign currency bank accounts, the inspection has the right to foreclose on the electronic money of the organization. To do this, she will send to the bank where the electronic money is located, an instruction to transfer them to the taxpayer's bank account. By analogy with funds in bank accounts, electronic funds are first collected in rubles, and in case of their shortage - in foreign currency. Moreover, the bank must transfer foreign currency funds to the organization's foreign currency account specified in the inspection order. If the order contains only a ruble account, the head of the inspectorate, simultaneously with the order for the transfer of electronic funds, must send an order to the bank for the sale no later than the next day of the organization's currency. The costs associated with the sale of currency are covered by the organization. The Bank must execute an order for electronic money in rubles no later than one business day from the date of receipt of the order, and for funds in foreign currency - no later than two business days. If the electronic money is still not enough to fully repay the arrears, the bank will execute the order as soon as the debtor organization receives the electronic money.

This procedure is provided for in paragraphs 6.1, 10 of Article 46 of the Tax Code of the Russian Federation.

In the absence of money in bank accounts, the inspectorate has the right to recover arrears from the personal accounts of the organization receiving budget funds (clauses 3.1, 10, article 46 of the Tax Code of the Russian Federation, article 220.1 of the Budget Code of the Russian Federation). Without a court decision, the inspectorate may recover funds from the personal account if the amount of the debt does not exceed 5 million rubles. If the debt is larger, a court decision will be required to collect it (subparagraph 1, paragraph 2, paragraph 9, article 45 of the Tax Code of the Russian Federation).

There are two types of special accounts from which the tax office is not entitled to collect arrears. These are electoral accounts and accounts of referendum funds (clauses 1, 10 of article 46 of the Tax Code of the Russian Federation). Such accounts are intended for conducting election campaigns (holding referendums), they have a strictly designated purpose, so inspections cannot withdraw funds credited to these accounts.

Suspension and withdrawal of a decision on recovery

The execution of the decision on the recovery of arrears can be suspended in three cases. First, the inspectorate granted an installment plan or deferral of tax payment (insurance contribution). Second: the court (bailiff) seized the taxpayer's money in banks. And the third case: the decision to suspend the collection of arrears was made by a higher tax authority.

The Inspectorate must withdraw the decision on recovery in the following cases*:

The deadline for paying taxes, insurance premiums, fees, penalties, fines has changed in accordance with Chapter 9 of the Tax Code of the Russian Federation;

The arrears were repaid (including by offsetting the overpaid amounts against the arrears);

Arrears recognized as uncollectible and written off;

The taxpayer has submitted an updated declaration (calculation), according to which he must pay a smaller amount of tax (insurance contribution);

The bank sent the inspectorate information on the balance of funds on other accounts of the taxpayer, which can be used to pay the arrears.

This is stated in paragraphs 4.1, 10 of Article 46 of the Tax Code of the Russian Federation.

Recovery from property

If the arrears are not repaid at the expense of monetary funds (including electronic ones), the inspection may recover it at the expense of other property of the organization (clauses 7, 10, article 46, article 47 of the Tax Code of the Russian Federation).

The decision to collect at the expense of other property may be made within one year after the expiration of the deadline for fulfilling the claim for payment of tax (insurance contribution, fine, penalties)*. The decision made after the expiration of the specified period is considered invalid and is not subject to execution. However, in this case, the tax inspectorate has the right to apply to the court with a claim for the recovery of the amount of tax due (insurance contribution). The period allowed by the tax inspectorate for filing a claim is two years from the date of expiration of the deadline for fulfilling the requirement to pay the tax (insurance contribution, fee, fine, penalties). However, the court may extend this period if the tax office missed it for a good reason. This procedure is provided for in paragraphs 1, 9 of Article 47 of the Tax Code of the Russian Federation.

The collection of arrears at the expense of other property is carried out by the bailiff by decision and on the basis of the decision of the tax inspectorate (paragraph 2, clause 1, clause 9, article 47 of the Tax Code of the Russian Federation). The forms of the decision and resolution on recovery were approved by order of the Federal Tax Service of Russia dated February 13, 2017 No. ММВ-7-8/179. The list of property that can be recovered from the account of arrears is given in paragraph 5 of Article 47 of the Tax Code of the Russian Federation. The organization has the right to indicate the property that should be collected in the first place, however, the final decision on the order of collection is made by the bailiff (clause 5, article 69 of the Law of October 2, 2007 No. 229-FZ).

Recovery of arrears through the court

Arrears are collected in court*:

From organizations for which a personal account is opened, if the amount of debt exceeds 5 million rubles. (signature 1, clause 2, article 45 of the Tax Code of the Russian Federation);

Arising as a result of the re-qualification of transactions, the status or nature of the organization's activities (subclause 3, clause 2, article 45 of the Tax Code of the Russian Federation);

Arising as a result of checks on the correctness of the application of prices in transactions between related parties (subclause 4, clause 2, article 45 of the Tax Code of the Russian Federation).

In addition, arrears are collected in court from organizations that are interdependent in relation to organizations that have these arrears. Moreover, we are talking only about arrears that arose as a result of tax audits and outstanding within three months.

Collection of arrears from interdependent organizations is possible in the following cases*:

If their bank accounts receive proceeds from goods (works, services) sold by organizations that have arrears (including if the proceeds come through a set of interrelated transactions involving persons who are not recognized as interdependent);

If an organization that has a arrears, having learned about the appointment of an on-site or in-house audit, transferred funds or other property to an interdependent organization, as a result of which the collection of arrears became impossible.

The grounds for collecting arrears from interdependent organizations are defined in subparagraph 2 of paragraph 2 of Article 45 of the Tax Code of the Russian Federation.

According to paragraph 1 of Art. 30 of the Tax Code of the Russian Federation and Art. 6 of the Law of the Russian Federation of March 21, 1991 No. 943-1 “On tax authorities Russian Federation» tax authorities exercise control over compliance with the legislation on taxes and fees, including the correctness of calculation, completeness and timeliness of payment (transfer) to the budget of taxes and fees, relevant penalties, fines, interest. Controllers are responsible for applying measures to enforce the obligation to pay taxes.

By virtue of paragraph 1 of Art. 45 of the Tax Code of the Russian Federation, the taxpayer must independently fulfill the obligation to pay tax (unless otherwise provided by tax legislation), which implies a voluntary transfer of funds to pay the relevant taxes on their own initiative and in the amount calculated independently. The obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees. In case of non-fulfillment or improper fulfillment by the taxpayer of the named obligations, the inspectorate sends him a demand for payment of tax. It is from this moment that the stage of enforcement of the obligation to pay tax begins.

Serving the demand as the beginning of the procedure for the enforcement of the obligation to pay tax

In the course of tax audits (office (Article 88 of the Tax Code of the Russian Federation) and field audits (Article 89 of the Tax Code of the Russian Federation)), as well as based on the results of tax control measures, the auditing official reveals the proper or improper fulfillment by the taxpayer of tax payment obligations. Based on the results of the audit, a decision is made, in which (in case of improper performance of duties) the amount of the identified arrears is indicated (clause 8, article 101 of the Tax Code of the Russian Federation).

Arrears - the amount of tax that the organization did not pay within the period established by law (clause 2, article 11 of the Tax Code of the Russian Federation). The right of the tax authority to collect arrears from the taxpayer is provided for in Art. 31 of the Tax Code of the Russian Federation.

If there is a arrears and in accordance with the decision of the tax authority, the taxpayer is required to pay tax.

The requirement is a notice to the taxpayer about the unpaid amount of tax, as well as about the obligation to pay the unpaid amount of tax on time (Article 69 of the Tax Code of the Russian Federation). The document contains information on the amount of tax arrears (the amount of penalties accrued at the time of filing the claim), the deadline for fulfilling the claim, as well as measures to collect tax and ensure the fulfillment of the obligation to pay it, which are applied in case of non-fulfillment.

As a general rule, paragraph 2 of Art. 70 of the Tax Code of the Russian Federation, a demand for payment of tax based on the results of a tax audit must be sent to the taxpayer within 20 days from the date the relevant decision comes into force.

For your information: the decision to hold accountable (to refuse to hold liable) for committing a tax offense enters into force one month after the date of delivery to the person in respect of whom it was made (Clause 9, Article 101 of the Tax Code of the Russian Federation).

By virtue of paragraph 4 of Art. 69 of the Tax Code of the Russian Federation, the requirement to pay tax must be fulfilled within eight days from the date of its receipt, unless a longer period of time for paying tax is specified in this requirement.

We would like to remind you that the period defined in days is calculated in business days, if it is not set in calendar days. In this case, a working day is considered to be a day that is not recognized in accordance with the legislation of the Russian Federation as a day off and (or) a non-working holiday (clause 6, article 6.1 of the Tax Code of the Russian Federation).

If the taxpayer fails to fulfill the obligation to pay tax within the prescribed period, then at the end of it, an extrajudicial (indisputable), and then judicial collection of arrears is carried out.

Extrajudicial collection (indisputable) of arrears

The procedure for the forced collection of tax arrears from a taxpayer is defined by Art. 46, 47 of the Tax Code of the Russian Federation. The tax office has the right to collect arrears:

• from the funds in the bank account of the taxpayer;
• through his property.

Recovery by debiting funds from a bank account

From the provisions of Art. 46 of the Tax Code of the Russian Federation it follows that failure to fulfill the obligation to pay tax entails the enforcement of such an obligation by foreclosing the taxpayer's funds in bank accounts.

First, the tax authority makes a decision on collection. It is accepted after the expiration of the period specified in the claim for the payment of tax, but no later than two months after the expiration of the specified period. In other words, the period is equal to two months from the expiration of the time allotted by tax legislation for the voluntary fulfillment by the taxpayer of the requirement to pay tax.

The decision on recovery is brought to the attention of the taxpayer - organization or individual entrepreneur within six days after its adoption. Based on paragraph 3 of Art. 46 of the Tax Code of the Russian Federation, if it is impossible to hand it over to the taxpayer against receipt or otherwise transfer it, indicating the date of its receipt, the decision on collection is sent by registered mail and is considered received after six days from the date of sending the registered letter.

Then, on the basis of this document, the tax authorities send to the bank where the taxpayer's accounts are opened, an instruction to transfer tax amounts to the budget. It must contain an indication of those bank accounts from which the transfer of tax should be made, and the amount to be transferred. At the same time, tax collection can be carried out both from ruble settlement (current) and from foreign currency accounts (if there are insufficient funds on ruble accounts).

According to the established rules, the bank executes the tax transfer order no later than one business day following the day it receives the said order (no later than two business days if the tax is collected from foreign currency accounts).

If on the day the bank receives the instruction, there are insufficient or no funds on the account, then the instruction is executed as funds are received on these accounts no later than one business day following the day of each such receipt on the account.

For your information: the order of the tax authority is subject to unconditional execution by the credit institution in the order established by the civil legislation of the Russian Federation. From the content of paragraph 2 of Art. 855 of the Civil Code of the Russian Federation follows: the order in which funds are written off to pay taxes depends on whether they are written off voluntarily or involuntarily. Thus, payments to the budget made on the instructions of the tax authorities (that is, on a forced basis) are subject to execution by the bank in the third place, and payments on tax obligations made on the basis of payment orders of the taxpayer (on a voluntary basis) - in the fifth. This conclusion is based on the legal position of the Armed Forces of the Russian Federation, set out in the Ruling of March 21, 2016 No. 307-KG16-960, and is supported by the regulatory authorities - letters of the Federal Tax Service of Russia dated July 11, 2016 No. GD-4-8 / 12408, the Ministry of Finance of Russia dated May 17, 2016 No. 03-02-07/2/28207.

As pointed out by the Plenum of the Supreme Arbitration Court (clause 54 of Resolution No. 57 of July 30, 2013), a conclusion about the insufficiency or absence of funds in bank accounts can be made by the tax authority only on the basis of data on the status of all taxpayer accounts known to it.

In order to obtain the specified information and subsequently ensure the possibility of collecting funds from the relevant accounts, the inspectorate has the right, on the basis of paragraph 2 of Art. 76 of the Tax Code of the Russian Federation to make a decision to suspend operations on accounts known to it (but not before the decision to collect tax is made). Having received this decision, the bank, by virtue of paragraph 5 of Art. 76 of the Tax Code of the Russian Federation is obliged to inform the tax authority in electronic form of information about the balance of funds on the account, operations on which are suspended.

If instructions for transferring the amount of tax to the budget are presented simultaneously to several accounts, then the total amount of tax indicated in these instructions must not exceed the amount of tax to be collected.

Recovery at the expense of the taxpayer's property

In the event of insufficient or non-existent funds on the taxpayer's accounts or in the absence of information about such accounts, the tax authority, on the basis of an appropriate decision, has the right to collect tax at the expense of property, including at the expense of the taxpayer's cash within the amounts indicated in the tax payment claim, and taking into account the amounts in respect of which the recovery was made in accordance with Art. 46 of the Tax Code of the Russian Federation (clause 1 of article 47 of the Tax Code of the Russian Federation).

This decision is executed by bailiffs on the basis of a decision of the tax authority on the collection of tax debts at the expense of the taxpayer's property (issued within three days from the date of the decision to collect) (paragraph 2, clause 1, clause 4, article 47 of the Tax Code of the Russian Federation). Collection can be levied on any movable and immovable property of the taxpayer in the order established by paragraph 5 of Art. 47 of the Tax Code of the Russian Federation.

For your information: the tax authority has the right to switch to the forced collection of tax at the expense of other property of the taxpayer only after taking appropriate measures to collect tax at the expense of its funds (clause 55 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 57). In this regard, the inspectorate's failure to issue a decision on the collection of tax at the expense of monetary funds within the established period and the failure to take measures to enforce it, as a general rule, excludes the possibility of making a decision on the collection of tax at the expense of other property of the taxpayer.

The decision to collect tax at the expense of property is made within one year after the expiration of the deadline for fulfilling the tax payment claim. The decision made after the expiration of the specified period is considered invalid and is not subject to execution.

Recovery in court

In case of indisputable collection of tax debts, tax authorities are obliged to comply with the deadlines established by paragraph 3 of Art. 46 of the Tax Code of the Russian Federation, par. 3 p. 1 art. 47 of the Tax Code of the Russian Federation. If any of these deadlines is violated, then the debt can be collected from the taxpayer only through the courts.

Please note: the court can restore the named deadlines if the arbitrators consider the reasons for which they were missed to be objective.

Thus, in a court of law, the collection of arrears is carried out if the deadline for making a decision on the collection of tax is missed:

• from the funds on the accounts of the taxpayer - organization or individual entrepreneur in banks and his electronic money;
• through his property.

In the first of these cases, an application may be filed with the court within six months after the expiration of the deadline for fulfilling the tax payment claim. In the second - within two years after the expiration of its execution.

Based on the foregoing, the procedure for collecting arrears from a taxpayer is regulated by the norms of tax legislation and has specific deadlines, after which the tax inspectorate loses the right to collect tax debts.

Loss of right to recover arrears

The loss of the right of controllers to collect arrears in itself is not a basis for the termination of the taxpayer's obligations and, as a result, for the exclusion of the relevant entries from his personal account. Until tax arrears are recognized as uncollectible in accordance with the established procedure, their amounts are taken into account by the tax authority as part of the taxpayer's debt and are not subject to exclusion from the resources of the Federal Tax Service (Letter of the Ministry of Finance of Russia dated 09.11.2011 No. 03-02-07 / 1-386).

The courts, in turn, point out: the tax authority's failure to collect arrears prevents the taxpayer from writing off the tax arrears on personal account cards and does not give the right to write them off by virtue of the provisions of Art. 59 of the Tax Code of the Russian Federation. However, the loss by the inspectorate of the possibility of collecting debts to the budget does not mean that the taxpayer has fulfilled his obligations to make payments to the budget in accordance with Art. 45 of the Tax Code of the Russian Federation (Resolution of the Ninth Arbitration Court of Appeal dated February 9, 2015 No. 09AP-57139/2014 in case No. A40-131455/14).

According to paragraph 1 of Art. 44 of the Tax Code of the Russian Federation, the obligation to pay tax arises, changes and terminates if there are grounds established by Art. 59 of the Tax Code of the Russian Federation. Yes, pp. 4, paragraph 1 of this article determines that one of these grounds is the adoption of a judicial act.

For your information: if the court adopts an act, according to which the tax authority loses the opportunity to collect arrears due to the expiration of the established collection period, including the issuance of a ruling on the refusal to restore the missed deadline for filing an application with the court for the recovery of arrears, the tax debt is recognized uncollectible (clause 2.4 of the Procedure for writing off arrears recognized as uncollectible).

A judicial act, after it comes into force, is the basis for the inspectorate to exclude the relevant records from the taxpayer's personal account, according to which the reconciliation of calculations with the budget is carried out. The conclusion about the loss by the tax authority of the possibility of collecting taxes (as well as penalties, fines) in connection with the expiration of the established period for their collection may be contained in a judicial act in any tax case, including in the reasoning part of the act. The corresponding entries must be excluded by the tax authority from the personal account of the taxpayer immediately after the entry into force of such a judicial act.

In the absence of a judicial act confirming the loss by the tax authority of the possibility of collecting tax, the arrears are not recognized as hopeless for collection, even if the tax authority missed the deadlines for collecting tax established by the Tax Code of the Russian Federation.

On the actions of the taxpayer permitted by law and the obligations of the tax authorities

If the tax authority has lost the possibility of forcible collection of tax due to the expiration of the deadlines for its collection provided for by the Tax Code of the Russian Federation, but at the same time has not filed an application for collection with the court (as a result, there is no judicial act that would have established a missed deadline for collecting arrears), the taxpayer has the right to take a number of steps to recognize his debt as uncollectible and exclude it from his personal account.

The point is that, based on the interpretation of s. 4 p. 1 art. 59 of the Tax Code of the Russian Federation, initiate the appropriate trial not only the tax authority, but also the taxpayer, has the right, including by filing an application with the court for recognition of the amounts, the possibility of forcible collection of which is lost, hopeless for collection. Moreover, such a right is not limited by any period, including the limitation period (Resolution of the Arbitration Court of the Far Eastern Military District of September 21, 2016 No. F03-4261 / 2016 in case No. A59-684 / 2016).

The reason for filing an application with the judicial authorities may be a situation (very common) associated with the actions of the inspection, expressed in the issuance of a certificate on the fulfillment of the obligation to pay taxes (as well as certificates on the status of settlements with the budget) without reflecting information about the impossibility of recovering arrears in compulsory okay.

Note. Subparagraph 10 of paragraph 1 of Art. 32 of the Tax Code of the Russian Federation provides that the tax authority is obliged to provide the taxpayer, at his request, with information on the status of the specified person's calculations for taxes, fees, penalties, fines, interest and certificates on the fulfillment of the obligation to pay taxes, fees, penalties, fines, interest on the basis of data from the tax organ.

As the analysis of arbitration practice shows, controllers often refuse the taxpayer's requirement to indicate this fact in the certificate. When generating a certificate, the tax authority is guided by the provisions of the Order of the Federal Tax Service of Russia dated July 21, 2014 No. ММВ-7-8 / [email protected] who approved its form and the procedure for filling it out. The norms of this document do not provide information about the loss of the possibility of forcibly collecting debts due to the taxpayer to the budget, since the period for their collection has expired.

When considering disputes of a similar nature, the courts note: the said order, which does not provide for the availability of information about the loss of the possibility of forcibly collecting debts to the budget due to the taxpayer, cannot serve as an obstacle to issuing a certificate reflecting in it the actual state of tax payments. Otherwise, it means indicating incomplete information about the debt owed to the taxpayer, which violates his right to reliable information necessary for him to exercise his rights in entrepreneurial activity.

The AC FEB in Resolution No. Ф03-5079/2016 dated November 10, 2016, with reference to the legal position set out in Resolution No. 57 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013, also noted the following. The presence or absence of debt to the budget is one of the criteria for the success of the taxpayer's entrepreneurial activity, his conscientiousness and financial stability. This certificate is an official document expressly provided for by the Tax Code for issuance to a taxpayer.

Based on the need to maintain a balance of private and public interests and reflect objective information in the documents provided by the inspection to the taxpayer at his request, references should contain not only information about the debt, but also information about the loss by the tax authority of the possibility of forcible collection of the relevant amounts due to the expiration of the established period for their collection .

Incomplete information about the arrears affects the right of the organization to reliable information necessary for it to exercise its rights and legitimate interests, including in entrepreneurial and other economic activities.

The taxpayer fulfills the obligation to pay taxes either independently or by force. The procedure for the forced collection of arrears consists of several stages, the first of which is the presentation by the inspection to the taxpayer of a requirement to pay tax. If the document is not executed within the prescribed period, the tax authorities have the right to make a decision on the collection of arrears at the expense of funds in the bank accounts of the taxpayer. It can be accepted no later than two months after the expiration of the period specified in the demand for payment of tax. If the tax authorities miss this deadline, then there is time for judicial collection of arrears: six months after the expiration of the deadline for fulfilling the tax payment requirement.

If there is insufficient or no money in the accounts or if there is no information about such accounts, the tax may be collected at the expense of the taxpayer's property within the amounts specified in the tax payment request within a year after the expiration of the deadline for fulfilling the request, in case of missing which the inspectorate will have two years to apply to the judiciary.

However, even after the expiration of the specified period, the taxpayer will have a tax debt on his personal account, which can only be recognized as hopeless in court. And only after the entry into force of the judicial act, the relevant entries should be excluded by the tax authority from the personal account of the taxpayer. And until that moment, the tax authority in the certificate provided to the taxpayer at his request on the fulfillment of the obligation to pay taxes (as well as in the certificate on the status of settlements with the budget) must indicate not only information about the debt, but also information about the loss by the inspectorate of the possibility of forcible collection of arrears in connection with the expiration of the established period of its collection.

They are the most important responsibility of any business entity. Timely fulfillment of this obligation allows the organization to avoid additional financial losses in the form of penalties. However, a situation is quite common when an organization, due to objective reasons, has tax arrears. In case of forced collection by the tax authorities of the specified arrears, the taxpayer can protect his interests. Let's consider these possibilities.

Legal regulation

In accordance with Art. 23 of the Tax Code of the Russian Federation, taxpayers are required to pay legally established taxes. According to paragraph 1 of Art. 45 of the Tax Code of the Russian Federation, the taxpayer independently fulfills the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees (hereinafter referred to as tax legislation). This obligation must be fulfilled within the period established by tax legislation.
Article 11 of the Tax Code of the Russian Federation provides that arrears is the amount of tax or fee not paid within the period established by tax legislation. It is formed if the taxpayer did not transfer the due taxes to the budget or made their partial transfer. Control over compliance by the taxpayer with tax legislation is carried out by the tax authority through tax control measures, for example, cameral and field tax audits (Article 87 of the Tax Code of the Russian Federation).
Based on the results of consideration of the materials of a tax audit, during which violations of tax legislation are revealed, a decision is made to hold the taxpayer liable, and measures are taken to enforce the taxpayer's obligation to pay taxes. It is necessary to pay attention to the fact that if the taxpayer has not fulfilled his obligation to pay taxes voluntarily, then the tax authorities are obliged to collect the arrears by force (Article 39 of the Tax Code of the Russian Federation).
The tax legislation provides for two ways to enforce the obligation to pay taxes (fees), other obligatory payments and sanctions: undisputed (out of court) and court orders. Both procedures have procedural features.

Indisputable procedure for collecting arrears

moment the beginning of this process should be considered the date of sending by the tax authority to the taxpayer tax claims. The requirement is a document of the established form containing a notice to the taxpayer about the unpaid amount of tax, as well as about the obligation to pay it within the specified period (Article 69 of the Tax Code of the Russian Federation). The request must include information about:
- the amount of tax arrears;
- the amount of penalties accrued at the time of sending the claim;
- the deadline for paying the tax established by the legislation on taxes and fees (The indicated deadline is of great procedural importance, since it determines the deadline for the tax authority to make a decision on the collection of arrears, as well as the deadline for the tax authority to file an application with the court for the collection of arrears (Article 46 of the Tax Code of the Russian Federation ));
- deadline for fulfillment of the demand (the demand must be fulfilled within 8 business days from the date of its receipt, unless it specifies a different deadline for fulfillment);
- measures to collect tax and ensure the fulfillment of the obligation to pay tax, which are applied in case of non-fulfillment of the requirement by the taxpayer.

The request must be sent to the taxpayer within 10 days from the date of entry into force of the decision on the audit (if the arrears were identified during a desk or field tax audit, or within 3 months from the date of its discovery (if the arrears were not detected during a tax audit). In the latter case, the tax authority draws up a document on the identification of arrears from the taxpayer (the form of the document is approved by Order of the Federal Tax Service of Russia dated 01.12.2006 N SAE-3-19 / [email protected]). From the point of view of the tax authorities, one should be guided by the date of preparation of this document when determining the period for issuing a claim. A similar opinion is expressed, in particular, in the Decree of the Federal Antimonopoly Service of the North-Western District of December 20, 2007 N A26-3314 / 2007. Note that this approach to determining the date of detection of arrears is at least not controversial.
Arrears can be revealed only after the taxpayer has submitted a declaration with the amount of tax payable or missed the tax payment deadline. The fact that the tax has not been paid, the tax authority becomes aware of the next day after the expiration of the payment period. Therefore, in the same period he learns about the amount of arrears. This position is also reflected in court decisions (see, for example, Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 6, 2009 N A82-14902 / 2008-27).
It is logical to assume that the discovery by the tax authority of data in its internal documents cannot indicate either the actual presence of arrears or the presence of overpayments, since such data completely depend on the actions of its employees, i.e. are subjective. In this situation, the taxpayer who allowed the formation of arrears can be recommended to reconcile the settlements with the tax authorities. In this case, the date of the reconciliation act may indicate the timing of the detection of arrears.
The current legal norms of tax legislation do not give an answer to the question, is the term for sending a request for payment of tax a suppressive one, i.e. whether the corresponding demand is invalid if it is submitted in violation of the specified period. When addressing this issue, it is advisable to pay attention to the established arbitration practice. The point of view of the judicial authorities is contained, for example, in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2006 No. 25, as well as in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 17, 2003 No. collection of arrears. Thus, the period for collecting arrears in case of violation of the deadline for issuing a claim will be calculated in the same way as if the claim was issued on time (Resolution of the Federal Antimonopoly Service of the Moscow District dated July 19, 2006 N KA-A40 / 6689-06-P).
The demand for payment of tax may be transferred to the head of the organization (its legal or authorized representative) in person against receipt, sent by registered mail or transmitted electronically via telecommunication channels. If the said request is sent by registered mail, it shall be deemed received after 6 days from the date of sending the registered letter.
It is necessary to pay attention to the fact that when sending a claim by registered mail, situations that are unpleasant for the taxpayer may arise. So, the demand can be sent to the legal address of the organization, and not to the place of its actual location. In addition, the requirement may be received by an employee of the organization who is in the office at the time of receipt of correspondence, and not inform the manager about this. In these cases, the management of the organization may not be aware of the start of the procedure for the enforcement of arrears.
It is important to remember that the deadline for fulfilling the requirement is calculated from the date it is received by the organization, and not from the date it was drawn up. Correctly determine the date of receipt of the request when sent by mail will allow the postmark on the envelope or the date indicated in the notice of delivery of the registered letter to the addressee. If the organization did not receive a demand sent by mail, then it, while protecting its rights, including in court, has the right to demand from the tax authorities to prove the fact of the postal item and the date of the specified item.

Recovery of arrears at the expense of the taxpayer's funds

If the taxpayer has not repaid the arrears within the period specified in the request, the tax authorities within two months after the specified period have the right to decide on collection of the amount of debt from the bank account of the taxpayer. Moreover, the recovery can be levied on the funds on the current account, even if these funds are received from the budget for specific purposes under government contracts (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17, 2009 N 8580/09). The judicial authority, in support of its position, noted that, as a general rule, foreclosure on the funds of the budgets of the budgetary system of the Russian Federation is not carried out. But in the case under consideration, the recovery is made not at the expense of budgetary funds, but at the expense of the taxpayer's own funds, which are the funds received on the organization's current account from the budget recipient.
The decision to collect is brought to the attention of the taxpayer within 6 days after the said decision is made. If it is impossible to hand over the decision on recovery to the taxpayer against receipt or transfer it in another way, indicating the date of its receipt, the decision on recovery is sent by mail by registered mail and is considered received after six days from the date of sending the registered letter. It is necessary to pay attention to the fact that the decision made with the passage of the specified period is invalid and, therefore, is not subject to execution by employees of credit institutions.
The order of the tax authority to transfer tax amounts to the budget is sent to the bank in which the taxpayer's accounts are opened, and is subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation. At the same time, the deadlines for sending the specified order to the bank have not been set at present. With regard to situations that arose before September 2, 2010, the deadline for sending the specified order to the bank was one month from the date of the decision to collect the arrears.
Often the decision to collect tax from cash in bank accounts is made by the tax authority before the expiration of the period specified in the claim for tax payment. In this case, the rights of the organization are violated and funds that it planned to use to fulfill its obligations to counterparties may be debited from its account. This cash flow planning may take into account the deadline for payment of the arrears specified in the demand and not lead to a violation of the law. With regard to the legality of such a decision of the tax authority, a uniform arbitration practice has not been formed. On the one hand, the decision is illegal, since the procedure for collecting arrears goes through several interrelated stages. For each stage, which has independent legal significance, the tax legislation provides for a certain procedure and terms for the forced collection of a tax (penalty), failure to comply with which entails legal consequences in the form of recognizing a non-normative act of a tax authority as invalid (Resolution of the Federal Antimonopoly Service of the West Siberian District dated April 23, 2010 N A46 -21966/2009). On the other hand, the decision is legal, since the tax legislation does not contain such a basis for unconditional recognition of the debt collection decision as illegal, as failure to comply with the deadline for the voluntary fulfillment of the requirement (Resolution of the Federal Antimonopoly Service of the Far Eastern District of December 20, 2010 N F03-9322 / 2010).
Relevant is the issue related to the possibility of issuing by the tax authorities repeated collection order, for example, if the taxpayer closes an account with the bank to which the collection order was sent and opens an account with another credit institution. The tax legislation does not regulate the issue of issuing a repeated order. An analysis of arbitration practice showed that in most cases the judiciary recognizes the right of the tax authorities to take these actions (Resolutions of the Federal Antimonopoly Service of the West Siberian District of 01.14.2009 N F04-8140 / 2008 (18774-A81-34), the Federal Antimonopoly Service of the Volga District of 12.25.2008 N A65-10152/2008). The court pointed out that the legislation does not contain a ban on issuing a repeated collection order.
The opposite position is set out in the Decree of the Federal Antimonopoly Service of the Central District of October 25, 2010 N A09-3231 / 2010. The court found that the tax authority, after the bank returned the collection order in connection with the closure of the current account, issued a new order to debit funds from the taxpayer's account in another bank. The court pointed out that, having started the procedure of indisputable collection, the tax authority is obliged to bring it to the end, including making a decision on the collection of tax at the expense of other property of the taxpayer. The return of the collection order by the bank is not a basis for reissuing a new order.

Recovery of arrears at the expense of other property of the organization

In the event of insufficient or non-existent funds in the taxpayer's accounts, as well as in the absence of information about the taxpayer's accounts, the tax authority has the right to collect tax at the expense of the taxpayer's other property. The specified recovery is carried out by decision of the head (deputy head) of the tax authority by sending, within three days from the date of such a decision, the relevant bailiff's orders(Article 47 of the Tax Code of the Russian Federation).
The tax legislation does not contain legal norms obliging the tax authority to notify the taxpayer of the adoption of a decision and resolution on the collection of tax at the expense of property. In this case, the taxpayer will be notified by the bailiff after the initiation of enforcement proceedings. This point of view is confirmed in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2006 N 25.
The decision on the collection must be made within one year after the expiration of the deadline for fulfilling the claim for payment of the tax. The decision made after the expiration of the specified period is considered invalid and is not subject to execution.
At the same time, the question of whether the decision to collect tax from property has legal force if the inspection did not send the taxpayer a decision to collect tax from funds in bank accounts. In the event of such a situation, the organization has the right to challenge the legitimacy of the actions of the tax authority. The current arbitration practice on this issue is ambiguous. In particular, in the Decree of the Federal Antimonopoly Service of the West Siberian District dated March 16, 2009 N F04-1029 / 2009 (1032-A45-49), the court found a violation of the law in the actions of the tax authority. However, in the Decree of the Federal Antimonopoly Service of the North Caucasus District dated July 31, 2008 N F08-4387 / 2008, the court determined that, subject to other requirements of tax legislation, this circumstance in itself cannot be the basis for canceling the decision to recover arrears at the expense of other property of the taxpayer.
It is necessary to pay attention to the fact that the legality of the decision on recovery is not made dependent on the following circumstances by the judicial authorities:
- the tax authority did not revoke the previously issued collection order for the repayment of arrears at the expense of the organization's funds in the bank (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 19, 2005 N 853/05);
- the taxpayer did not receive the decision of the tax authority sent to him on the collection of arrears at the expense of the organization's funds in the bank (Resolution of the FAS of the East Siberian District of May 13, 2008 N A33-6337 / 07-03AP-1556 / 07-Ф02-1863 / 08).
Executive actions must be carried out within two months from the date of receipt of the said resolution. The obligation to pay tax is considered fulfilled from the moment the taxpayer's property is sold and his debt to the budget is paid off.

Judicial procedure for recovery of arrears

If the tax authority has not exercised the right to collect arrears at the expense of the taxpayer's funds out of court, then it has the right to filing a lawsuit to recover said arrears(Article 46 of the Tax Code of the Russian Federation). At the same time, the tax legislation does not directly regulate the issue of whether the tax authority has the right to apply for judicial protection with an application for the collection of tax amounts, if before that it had made a timely decision to collect. There is no official position on this issue. An analysis of arbitration practice allows us to conclude that the tax authority is not entitled to go to court, but must independently bring the procedure of indisputable collection to the end, namely, send a collection order to the bank, and also, if necessary, decide on the collection of tax at the expense of other property of the taxpayer (Resolutions Federal Antimonopoly Service of the West Siberian District of March 12, 2010 N A45-10407 / 2009, FAS of the North-Western District of January 13, 2009 N A05-6505 / 2008).
An application can be filed with the court within 6 months after the expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court. Neither the Tax Code of the Russian Federation nor the Arbitration Procedure Code of the Russian Federation contain a list of valid reasons. Therefore, in each specific case, the court, analyzing the specific circumstances of the case, determines whether the relevant reason is valid.

Example 1 . The reason for missing the deadline is a large amount of work and a lack of specialists from the tax authority. The court granted the request of the tax authority (Resolution of the Federal Antimonopoly Service of the North-Western District of February 5, 2009 N A13-3227 / 2008). The court refused to satisfy the request of the tax authority (Resolution of the Federal Antimonopoly Service of the East Siberian District of July 23, 2008 N A19-15231 / 07-Ф02-3485 / 08).

Example 2 . The reason for missing the deadline is the reconciliation of settlements with the taxpayer by the tax authority. The court refused to satisfy the petition of the tax authority (Resolution of the Federal Antimonopoly Service of the Far Eastern District of March 12, 2009 N F03-717 / 2009).

In a relationship overdue for collection of arrears two things must be noted.
First of all, the tax authority is not entitled to charge a penalty. This point of view is contained in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 2009 N 5838/09. In support of its opinion, the Supreme Arbitration Court of the Russian Federation noted that the fulfillment of the obligation to pay fines cannot be considered in isolation from the fulfillment of the obligation to pay tax. Therefore, after the expiration of the period for collecting tax arrears, the penalty cannot serve as a way to ensure the fulfillment of the obligation to pay tax, and from that moment it is not charged. The same position on this issue is taken by the Ministry of Finance of Russia (Letter dated October 29, 2008 N 03-02-07 / 2-192).
Secondly, the tax authority is not entitled to offset overpaid other tax. If the tax authority has missed the deadline for the forced collection of arrears, then it is obliged, at the request of the organization, to return to it the overpayment formed on another tax (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 15, 2009 N 6544/09).
If the tax authority has not exercised the right to recover arrears at the expense of other property of the taxpayer in an out-of-court procedure, then it has the right to apply to the court with a claim for the recovery of the specified arrears (Article 47 of the Tax Code of the Russian Federation). An application may be filed with the court within two years from the date of expiry of the deadline for fulfilling the claim for payment of the tax.

Limitation period for the fulfillment of the obligation to pay taxes

Tax legislation establishes a statute of limitations for bringing to responsibility for committing a tax offense. The specified period is 3 years (Article 113 of the Tax Code of the Russian Federation). The measure of responsibility for committing a tax offense is a tax sanction, which is established and applied in the form of monetary penalties (fines). Thus, the specified statute of limitations can only be applied to the collection of fines, but does not apply to the amount of the debt itself.
Therefore, the Tax Code of the Russian Federation does not establish a statute of limitations for the fulfillment of the obligation to pay taxes, including forcibly (Resolution of the Federal Antimonopoly Service of the Urals District of 18.06.2009 N F09-3963 / 09-C3).
There is another point of view on this issue. So, based on paragraphs. 8 p. 1 art. 23 of the Tax Code of the Russian Federation, the taxpayer is not obliged to store accounting and tax accounting data, documents necessary for the calculation and payment of taxes, including documents confirming the receipt of income, the implementation of expenses, as well as the payment (withholding) of taxes, for more than four years. Thus, we can conclude that the statute of limitations for collecting arrears should be limited to three years, since beyond this period the tax authority will not be able to confirm with documents the fact of the arrears. This position is confirmed by extensive judicial practice (Resolutions of the Federal Antimonopoly Service of the Moscow District of July 23, 2009 N KA-A40 / 6541-09, of July 29, 2008 N KA-A40 / 6762-08; FAS of the Volga District of June 10, 2008 N A57-1648 / 02 ; FAS of the Ural District dated 01.26.2009 N F09-10520 / 08-C3; Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.18.2008 N 13084/07).
Previously, a situation was widespread in which the tax authorities included the amount of arrears, unrealistic to collect, included in the certificates on the status of settlements with the budget, which were requested by organizations. Such certificates are usually required to attract loans or participate in tenders and competitions. In this case, organizations had to repay their debts or refuse to receive a loan (participation in the tender). The tax authorities justified their actions by the fact that Art. 59 of the Tax Code of the Russian Federation and Decree of the Government of the Russian Federation of February 12, 2001 N 100 allowed the write-off of arrears only in relation to liquidated organizations. These conclusions were confirmed in the Letter of the Ministry of Finance of Russia of December 18, 2009 N 03-02-07 / 1-545 and the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 11, 2005 N 16507 / 04. It should be noted that some taxpayers managed through the court to oblige the tax authority to issue a certificate without indicating in it the debt, the collection of which is impossible (Resolution of the Federal Antimonopoly Service of the Urals District of January 18, 2010 N F09-10913 / 09-C3).
After September 2, 2010, the list of grounds on which tax arrears are recognized as uncollectible was expanded. At present, Art. 59 of the Tax Code of the Russian Federation allows you to write off arrears after a court decision, according to which the tax authority has lost the ability to collect it due to missing the deadlines. The decision to recognize the debt as uncollectible on this basis is made by the tax authorities at the place of registration of the organization. The procedure for writing off such arrears was approved by the Order of the Federal Tax Service of Russia dated August 19, 2010 N YaK-7-8 / [email protected]

Example 3 . According to the results of the on-site tax audit, the tax authority revealed the arrears and made a decision to hold the organization accountable. This decision came into force on January 31, 2011. The request was sent to the organization by registered mail. Let us determine the terms for the commission of possible actions by the tax authority aimed at the forced collection of arrears from the organization (see table). The period defined in days is calculated in working days, if it is not set in calendar days (Article 6.1 of the Tax Code of the Russian Federation).

	The deadline set tax legislation	the date expiration term
Making a request for payment tax
Receipt by the organization of the requirement on payment of tax
The due date for the payment of arrears specified in tax claim
Recovery from cash
Making a decision on recovery cash arrears
Bringing the decision to the attention organizations
money in the bank	6 months
Recovery from other property
Making a decision on recovery arrears at the expense of other property
Referral of the decision to the court bailiff
Filing a claim with the court from the organization of arrears at the expense of other property

Article 46 , as well as at the expense of its electronic money

1. In case of non-payment or incomplete payment of tax within the established time period, the obligation to pay tax shall be enforced by foreclosing money (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur in banks and his electronic money, with the exception of funds on special electoral accounts, special accounts of referendum funds.

1.1. In the event of non-payment or incomplete payment within the established period of tax payable by a participant in an investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax records), in connection with the implementation of the investment partnership agreement ( with the exception of corporate income tax arising in connection with the participation of this partner in an investment partnership agreement), the obligation to pay this tax is enforced by foreclosing money (precious metals) on the accounts of the investment partnership.

In the absence or insufficiency of funds (precious metals) on the accounts of the investment partnership, recovery is made at the expense of funds (precious metals) on the accounts of the managing partners. In this case, in the first place, the collection is levied on cash (precious metals) on the accounts of the managing partner responsible for maintaining tax records.

In the absence or insufficiency of funds (precious metals) on the accounts of the managing partners, a penalty is levied on the funds (precious metals) on the accounts of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.

2. Tax collection is carried out by decision of the tax authority (hereinafter in this article - the decision on collection) by sending on paper or in electronic form to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, instructions of the tax authority to write-off and transfer to the budget system of the Russian Federation of the necessary funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur.

The form and procedure for sending to the bank an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from the tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget the system of the Russian Federation on paper is established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these instructions are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.

The procedure for sending to the bank an instruction from a tax authority to write off and transfer funds to the budget system of the Russian Federation from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or individual of an entrepreneur in electronic form is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees.

3. The decision to collect shall be made after the expiration of the time period specified in the tax payment claim, but not later than two months after the expiration of the specified time period. The decision to collect, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court for the recovery of the amount of tax due from the taxpayer (tax agent) - an organization or an individual entrepreneur. An application may be filed with the court within six months after the expiration of the deadline for fulfilling the claim for tax payment. The deadline for filing an application missed for a good reason may be restored by the court.

The decision to collect is brought to the attention of the taxpayer (tax agent) - an organization or an individual entrepreneur within six days after the said decision is made.

3.1. In case of insufficiency or absence of funds in the accounts and electronic funds of the taxpayer (tax agent) - organization or in the absence of information about the accounts (details of corporate electronic means of payment used for electronic money transfers), the tax amount not exceeding five million rubles is collected in the manner prescribed by the budgetary legislation of the Russian Federation, at the expense of funds reflected in the personal accounts of the specified taxpayer (tax agent) - organization.

To collect tax in accordance with the first paragraph of this paragraph, the tax authority sends a decision on collection on paper or in electronic form to the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, at the place where the personal account of the taxpayer (tax agent) is opened .

If a taxpayer (tax agent) - organization fails to comply with the decision of the tax authority to recover within three months from the date of its receipt by the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation, this authority informs the tax authority that sent it decision on recovery, within ten days after the expiration of the specified period on paper or in electronic form.

The form, format and procedure for sending a notice of non-execution of a decision to recover at the expense of funds reflected in the personal accounts of the taxpayer (tax agent) by the bodies that open and maintain personal accounts in accordance with the budget legislation of the Russian Federation, to the tax authorities are approved by the Federal Treasury in agreement with federal executive body authorized to control and supervise taxes and fees.

4. An instruction from a tax authority to transfer amounts of tax to the budget system of the Russian Federation shall be sent to the bank where the accounts of the taxpayer (tax agent)—organization or individual entrepreneur—are opened, and shall be subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.

4.1. The effect of an instruction from a tax authority to debit and transfer funds from the accounts of a taxpayer (tax agent) that is an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) that is an organization or an individual entrepreneur to the budget system of the Russian Federation is suspended:

upon the decision of the tax authority to suspend the operation of the relevant instruction when the tax authority makes a decision in accordance with paragraph 6 of Article 64 of this Code;

by decision of a higher tax authority in the cases provided for by this Code.

The tax authorities decide on the withdrawal of unfulfilled (in whole or in part) instructions for debiting and transferring funds from the accounts of taxpayers (tax agents) - organizations or individual entrepreneurs or instructions for the transfer of electronic funds of taxpayers (tax agents) - organizations or individual entrepreneurs in the budget system of the Russian Federation in the following cases:

changing the deadline for paying taxes and fees, as well as penalties and fines in accordance with Chapter 9 of this Code;

fulfillment of the obligation to pay taxes, fees, penalties, fines, interest provided for by this Code;

write-offs of arrears, arrears in penalties and fines, interest provided for, as well as recognized as uncollectible in accordance with;

reduction of the amount of tax, fee, penalty interest on the amended tax return submitted in accordance with;

receipt by the tax authority from the bank of information on the balances of funds on other accounts (electronic money balances) of the taxpayer in accordance with and for the purpose of collection according to the decision on collection adopted in accordance with paragraph 3 of this article.

The forms and procedure for sending to the bank the decisions of the tax authority specified in this paragraph on paper shall be established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these decisions are approved by the federal executive body authorized to control and supervise taxes and fees, in agreement with the Central Bank of the Russian Federation.

The procedure for sending the decisions of the tax authority specified in this paragraph to the bank in electronic form is approved by the Central Bank of the Russian Federation in agreement with the federal executive body authorized to control and supervise taxes and fees.

5. An instruction from a tax authority to transfer tax must contain an indication of those accounts of the taxpayer (tax agent) - organization or individual entrepreneur, from which the tax must be transferred, and the amount to be transferred.

Tax collection can be made from ruble settlement (current) accounts, in case of insufficiency or absence of funds in ruble accounts - from foreign currency accounts, and in case of insufficiency or absence of funds in foreign currency accounts - from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur unless otherwise provided by this article.

Collection of tax from foreign currency accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur is carried out in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of sale of the currency. When collecting tax from foreign currency accounts, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur and transfer of funds within the same period from the sale of foreign currency in the amount of the tax payable to the settlement (current) account of the taxpayer (tax agent). Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent).

Collection of tax from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur is based on the value of precious metals, equivalent to the amount of payment in rubles. In this case, the value of precious metals is determined on the basis of the accounting price for precious metals established by the Central Bank of the Russian Federation as of the date of sale of precious metals. When collecting tax from accounts in precious metals, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends the bank an order to sell, no later than the next day, the precious metals of the taxpayer (tax agent) - organization or individual entrepreneur in the amount necessary for execution instructions for the transfer of tax, and the transfer within the same period of funds from the sale of precious metals to the settlement (current) account of the taxpayer (tax agent). Expenses related to the sale of precious metals are covered by the taxpayer (tax agent).

Tax is not collected from the deposit account (deposit in precious metals) of the taxpayer (tax agent) if the term of the deposit agreement (bank deposit agreement in precious metals) has not expired.

If there is a deposit agreement, the tax authority has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the taxpayer (tax agent) after the expiration of the deposit agreement, if by this time the instruction of the tax authority sent to this bank for tax transfer.

If there is a bank deposit agreement in precious metals, the tax authority has the right to give the bank an instruction to sell precious metals in the amount necessary for the execution of the order to transfer tax, after the expiration of the said agreement and transfer funds from the sale of precious metals in the amount of the tax to be collected on the settlement account. (current) account of the taxpayer (tax agent), if by that time the order of the tax authority sent to this bank to transfer tax has not been executed.

Forms and formats of instructions from tax authorities to banks for the sale of foreign currency and precious metals by taxpayers (tax agents) - organizations, individual entrepreneurs are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.

6. The order of the tax authority to transfer the tax shall be executed by the bank no later than one business day following the day of receipt of the specified order by it, if the tax is collected from ruble accounts, no later than two business days if the tax is collected from foreign currency accounts, if this does not violate the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, if the tax is collected from accounts in precious metals.

In case of insufficiency or absence of funds (precious metals) on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur on the day the bank receives an instruction from a tax authority to transfer tax, such an instruction is executed as funds (precious metals) are received into these accounts no later than one business day following the day of each such receipt to ruble accounts, no later than two business days following the day of each such receipt to foreign currency accounts, unless this violates the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, following the day of each such receipt on accounts in precious metals.

6.1. If there is insufficient or no money on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur, the tax authority has the right to collect tax at the expense of electronic money.

Tax collection can be carried out at the expense of electronic money balances in rubles, and in case of their insufficiency, at the expense of electronic money balances in foreign currency. When collecting tax at the expense of electronic money balances in foreign currency and specifying in the order of the tax authority for the transfer of electronic money the currency account of the taxpayer (tax agent) - organization or individual entrepreneur, the bank transfers electronic money to this account.

7. In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or his electronic money or in the absence of information about the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or information about the details of his corporate electronic means of payment used for electronic money transfers, the tax authority has the right to collect tax at the expense of other property of the taxpayer (tax agent) - organization or individual entrepreneur in accordance with.

With regard to corporate income tax for a consolidated group of taxpayers, the tax authority has the right to collect tax at the expense of other property of one or more participants in this group if there is insufficient or no money (precious metals) on the bank accounts of all participants in the specified consolidated group of taxpayers or their electronic money or in the absence of information about the accounts of these persons or information about the details of their corporate electronic means of payment used for electronic money transfers.

The provisions of the first paragraph of this paragraph shall apply to a taxpayer (tax agent) - an organization upon receipt by the tax authority of a notification from the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation of the impossibility of executing the decision of the tax authority to recover at the expense of monetary funds, reflected on the personal accounts of the taxpayer (tax agent) - organization.

7.1. Foreclosure on the property of participants in an investment partnership agreement in accordance with Article 47 of this Code is allowed only in the absence or insufficiency of funds (precious metals) on accounts, electronic money balances in investment partnership banks, managing partners and partners.

8. When tax is collected by a tax authority, in accordance with the procedure and under the conditions established by this Code, the suspension of operations on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur in banks or the suspension of electronic money transfers can be applied.

8.1. From the date of revocation of a banking license from a credit institution, the collection of tax at the expense of cash (precious metals) on accounts with such a credit institution is carried out taking into account the provisions of the Federal Law "On Banks and Banking Activities" and Federal Law No. 127 of October 26, 2002 -FZ "On insolvency (bankruptcy)".

9. The provisions of this Article shall also apply to the collection of penalties for late payment of taxes and insurance premiums.

10. The provisions of this article shall also apply to the collection of fees, insurance premiums and fines in the cases provided for by this Code.

11. The provisions of this article shall apply when collecting corporate income tax for a consolidated group of taxpayers, relevant penalties and fines at the expense of cash (precious metals) on bank accounts of participants in this group, taking into account the following features:

1) collection of tax at the expense of cash (precious metals) in bank accounts is primarily carried out at the expense of cash (precious metals) of the responsible member of the consolidated group of taxpayers;

2) in case of insufficiency (absence) of funds (precious metals) on bank accounts with the responsible member of the consolidated group of taxpayers to collect the entire amount of tax, the collection of the remaining uncollected amount of tax is carried out at the expense of funds (precious metals) in banks successively from all other participants in this groups, while the tax authority independently determines the sequence of such collection based on the information it has about taxpayers. The basis for the collection of tax in this case is the demand sent to the responsible member of the consolidated group of taxpayers. In case of insufficiency (absence) of funds (precious metals) on the bank accounts of a member of the consolidated group of taxpayers when tax is collected in the manner provided for in this subparagraph, the remaining uncollected amount shall be collected at the expense of funds (precious metals) in banks with any other participant in this groups;

3) when tax is paid, including in part, by one of the participants in the consolidated group of taxpayers, the collection procedure for the part paid is terminated;

4) a member of a consolidated group of taxpayers in respect of which a decision has been made to collect corporate profit tax for a consolidated group of taxpayers shall be subject to the rights and guarantees provided for by this article for taxpayers;

5) the decision to collect is made in the manner prescribed by this article, after the expiration of the period specified in the demand for the payment of tax sent to the responsible participant in the consolidated group of taxpayers, but not later than six months after the expiration of the specified period. The decision to collect, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court at the place where the responsible member of the consolidated group of taxpayers is registered with the tax authority with an application to collect tax simultaneously from all participants in the consolidated group of taxpayers. Such an application may be filed with the court within six months after the expiration of the period for collecting the tax established by this article. The deadline for filing an application missed for a good reason may be restored by the court;

6) the decision on recovery made in respect of the responsible participant or other member of the consolidated group of taxpayers, the actions or inaction of tax authorities and their officials in the implementation of the recovery procedure may be challenged by such participants on the grounds related to the violation of the procedure for the implementation of the recovery procedure.

Commentary on Art. 46 Tax Code of the Russian Federation

Article 46 of the Tax Code of the Russian Federation establishes the procedure for collecting a tax, a fee, as well as penalties and fines at the expense of funds held in the accounts of a taxpayer (payer of fees) - an organization, an individual entrepreneur or a tax agent - an organization, an individual entrepreneur in banks (hereinafter referred to as the collection procedure) , as well as its electronic money.

In addition, in accordance with the new edition of the Tax Code of the Russian Federation, in the event of non-payment or incomplete payment within the established time limit of the tax payable by the participant in the investment partnership agreement - the managing partner responsible for maintaining the tax, in connection with the implementation of the investment partnership agreement (with the exception of corporate income tax arising in connection with the participation of this partner in an investment partnership agreement), the obligation to pay this tax is enforced by foreclosing funds on the accounts of the investment partnership (clause 1.1 of article 46 of the Tax Code of the Russian Federation). In the absence or insufficiency of funds on the accounts of the investment partnership, the collection is made from the funds on the accounts of the managing partners. In this case, in the first place, the collection is levied on the funds on the accounts of the managing partner responsible for maintaining tax records.

In the absence or insufficiency of funds on the accounts of the managing partners, the recovery is levied on the funds on the accounts of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.

The period during which the taxpayer (tax agent) is informed of the decision on recovery is 6 days (paragraph 2, clause 3, article 46 of the Tax Code of the Russian Federation).

The tax is collected by the decision of the tax inspectorate. The form of this document was approved by the Order of the Federal Tax Service of Russia dated October 3, 2012 N MMV-7-8 / [email protected] The decision is sent to the bank where the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, both on paper and in electronic form. Attached to the decision is an order from the inspection to write off and transfer the necessary amount of money to the budget.

The decision to collect is made after the expiration of the period specified in the claim for the payment of tax, but no later than 2 months after the expiration of the specified period.

The decision to collect, taken after the expiration of the specified period, is considered invalid and is not subject to execution (clause 3, article 46 of the Tax Code of the Russian Federation).

Also in paragraph 3 of Art. 46 fixed the deadline for notifying the taxpayer of the decision to collect. The decision to collect is brought to the attention of the taxpayer (tax agent) - an organization or an individual entrepreneur within six days after the said decision is made.

If it is impossible to hand over the decision on recovery to the taxpayer (tax agent) against receipt or otherwise transfer it, indicating the date of its receipt, the decision on recovery is sent by registered mail and is considered received after six days from the date of sending the registered letter.

In accordance with paragraph 4 of Art. 46 of the Tax Code of the Russian Federation, the order of the tax authority to transfer tax amounts to the budget system of the Russian Federation is sent to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, and are subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.

The order of debiting funds is fixed in Art. 855 of the Civil Code of the Russian Federation. In accordance with paragraph 1 of Art. 855 of the Civil Code of the Russian Federation, if there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are debited from the account in the order in which the client's orders and other documents for debiting are received (calendar priority), unless otherwise provided by law.

In accordance with paragraph 2 of Art. 855 of the Civil Code of the Russian Federation in case of insufficient funds on the account to satisfy all the requirements presented to it, the debiting of funds is carried out in the following order:

first of all - according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;

in the second place - under executive documents providing for the transfer or issuance of funds for settlements on the payment of severance benefits and wages with persons working or working under an employment contract (contract), for the payment of remuneration to the authors of the results of intellectual activity;

in the third place - according to payment documents providing for the transfer or issuance of funds for settlements on wages with persons working under an employment agreement (contract), instructions from tax authorities to write off and transfer debts for paying taxes and fees to the budgets of the budget system of the Russian Federation, as well as instructions from the bodies controlling the payment of insurance premiums to write off and transfer the amounts of insurance premiums to the budgets of state non-budgetary funds;

in the fourth place - on executive documents providing for the satisfaction of other monetary claims;

in the fifth place - for other payment documents in the order of calendar priority.

Write-off of funds from the account for claims relating to one queue is made in the order of the calendar order of receipt of documents.

At the same time, according to paragraphs 9 and 10 of Art. 46 of the Tax Code of the Russian Federation, the provisions of this article of the Tax Code of the Russian Federation are also applied when collecting penalties for late payment of tax and fines in cases established by the Tax Code of the Russian Federation.

Thus, the instructions of the tax authority for the transfer of penalties and fines are executed in the same order as the instruction for the transfer of tax amounts to the budget system of the Russian Federation.

According to Art. 855 of the Civil Code of the Russian Federation, this order of the tax authority is executed in the 3rd place (Letter of the Ministry of Finance of Russia dated May 8, 2014 N 02-08-12 / 22232).

Federal Law No. 248-FZ of July 23, 2013 “On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Certain Other Legislative Acts of the Russian Federation, and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid” (hereinafter referred to as Law No. 248-FZ) in Art. 46 of the Tax Code of the Russian Federation introduced a new clause 4.1.

In accordance with par. 1 p. 4.1 art. 46 of the Tax Code of the Russian Federation, the effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or an individual entrepreneur to the budget system of the Russian Federation Federation is suspended:

by decision of the tax authority to suspend the operation of the relevant instruction when the tax authority makes a decision in accordance with;

upon receipt from the bailiff-executor of the decision to seize the funds (electronic money) of the taxpayer (tax agent) - an organization or an individual entrepreneur located in banks;

by decision of a higher tax authority in cases provided for by the Tax Code of the Russian Federation.

Note that by Order of the Federal Tax Service of Russia dated June 23, 2014 N MMV-7-8 / [email protected]"On approval of the forms of instructions of the tax authorities for debiting and transferring funds from the accounts of the taxpayer (payer of the fee, tax agent), the sale of foreign currency and the transfer of electronic funds to the budget system of the Russian Federation, as well as the forms of decisions of the tax authorities to suspend the action, to cancel suspension and revocation of instructions of tax authorities to write off and transfer funds from the accounts of a taxpayer (payer of a fee, tax agent)” approved:

a) the form of the decision to suspend the operation of instructions to write off and transfer funds from the accounts of a taxpayer (payer of a fee, tax agent), as well as to transfer electronic funds of a taxpayer (payer of a fee, tax agent) to the budget system of the Russian Federation;

b) the form of the decision to cancel the suspension of instructions for debiting and transferring funds from the accounts of a taxpayer (payer of a fee, tax agent), as well as for transferring electronic funds of a taxpayer (payer of a fee, tax agent) to the budget system of the Russian Federation;

c) the form of the decision to withdraw unfulfilled instructions for debiting and transferring funds from the accounts of the taxpayer (payer of the fee, tax agent), as well as for the transfer of electronic funds of the taxpayer (payer of the fee, tax agent) to the budget system of the Russian Federation.

The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) that is an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) that is an organization or an individual entrepreneur to the budget system of the Russian Federation is resumed upon the decision of the tax authority to cancel the suspension of the relevant order.

The tax authorities decide to withdraw unfulfilled (in whole or in part) instructions for debiting and transferring funds from the accounts of taxpayers (tax agents) - organizations or individual entrepreneurs or instructions for transferring electronic funds of taxpayers (tax agents) - organizations or individual entrepreneurs to the budget system of the Russian Federation in the following cases:

1) changing the deadline for paying taxes and fees, as well as penalties and fines in accordance with Ch. 9 “Changing the deadline for paying taxes and fees, as well as penalties and fines” of the Tax Code of the Russian Federation;

2) fulfillment of the obligation to pay taxes, fees, penalties, fines, interest provided for by the Tax Code of the Russian Federation, including in connection with the offset against arrears and debts on penalties and fines in accordance with;

4) reduction of the amount of tax, fee, penalty interest on the revised tax return submitted in accordance with;

5) receipt by the tax authority from the bank of information on the balances of funds in other accounts (electronic money balances) of the taxpayer in accordance with and for the purpose of collection according to the adopted in accordance with paragraph 3 of Art. 46 of the Tax Code of the Russian Federation to the decision on recovery.

In accordance with paragraph 5 of Art. 46 of the Tax Code of the Russian Federation, the order of the tax authority to transfer tax must contain an indication of those accounts of the taxpayer (tax agent) - organization or individual entrepreneur, from which tax must be transferred, and the amount to be transferred.

The tax can be collected from ruble settlement (current) accounts, and in case of insufficient funds on ruble accounts - from foreign currency accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur.

Banks are opened in the currency of the Russian Federation and foreign currencies:

current accounts;

settlement accounts;

budget accounts;

correspondent accounts;

correspondent sub-accounts;

trust management accounts;

special bank accounts;

deposit accounts of courts, units of the bailiff service, law enforcement agencies, notaries;

deposit accounts.

Settlement accounts are opened for legal entities that are not credit institutions, as well as individual entrepreneurs or individuals engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation, for performing transactions related to entrepreneurial activity or private practice. Settlement accounts are opened for representative offices of credit institutions, as well as for non-profit organizations to carry out transactions related to the achievement of the goals for which non-profit organizations were created (clauses 2.1, 2.3 of Instructions of the Bank of Russia dated May 30, 2014 N 153-I “On opening and closure of bank accounts, deposits (deposits), deposit accounts).

Federal Law of June 27, 2011 N 162-FZ in Art. 46 of the Tax Code of the Russian Federation, clause 6.1 was introduced, according to which, if there are insufficient or no funds on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, the tax authority has the right to collect tax at the expense of electronic money.

Collection of tax at the expense of electronic money of a taxpayer (tax agent) - organization or individual entrepreneur is carried out by sending to the bank where electronic money is located, instructions from the tax authority to transfer electronic money to the account of the taxpayer (tax agent) - organization or individual entrepreneur in the bank.

The instruction of the tax authority for the transfer of electronic funds must contain an indication of the details of the corporate electronic means of payment of the taxpayer (tax agent) - an organization or individual entrepreneur, using which the transfer of electronic funds is to be carried out, an indication of the amount to be transferred, as well as details of the account of the taxpayer (tax agent) - an organization or an individual entrepreneur.

Tax collection can be carried out at the expense of electronic money balances in rubles, and in case of their insufficiency, at the expense of electronic money balances in foreign currency. When collecting tax at the expense of electronic money balances in foreign currency and specifying in the order of the tax authority for the transfer of electronic money the currency account of the taxpayer (tax agent) - organization or individual entrepreneur, the bank transfers electronic money to this account.

When collecting tax at the expense of electronic money balances in foreign currency and indicating in the order of the tax authority to transfer electronic money the ruble account of the taxpayer (tax agent) - organization or individual entrepreneur, the head (deputy head) of the tax authority simultaneously with the order of the tax authority to transfer electronic sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur. Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent). The Bank transfers electronic funds to the ruble account of a taxpayer (tax agent) - an organization or an individual entrepreneur in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of transfer of electronic funds.

If there is insufficient or no electronic money of the taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an order from the tax authority to transfer electronic money, such an order is executed as soon as the electronic money is received.

The tax authority's instruction to transfer electronic money shall be executed by the bank no later than one business day following the day it receives the said order, if the tax is collected at the expense of electronic money balances in rubles, and no later than two business days if the tax is collected at the expense of electronic money balances in foreign currency.

It is also worth noting that in accordance with paragraph 7 of Art. 46 of the Tax Code of the Russian Federation in relation to corporate income tax for a consolidated group of taxpayers, the tax authority has the right to collect tax at the expense of other property of one or more participants in this group if there is insufficient or no money in the bank accounts of all participants in the specified consolidated group of taxpayers or in the absence of information about their accounts.

When collecting corporate income tax for a consolidated group of taxpayers, the relevant penalties and fines at the expense of funds in bank accounts of members of this group, the following features should be taken into account (clause 11, article 46 of the Tax Code of the Russian Federation):

— the collection of tax at the expense of funds in bank accounts is primarily carried out at the expense of the funds of the responsible member of the consolidated group of taxpayers;

- in case of insufficiency (absence) of funds in bank accounts with the responsible member of the consolidated group of taxpayers to collect the entire amount of tax, the collection of the remaining uncollected amount of tax is carried out at the expense of funds in banks sequentially from all other participants in this group, while the tax authority independently determines the sequence such recovery on the basis of information available to him about taxpayers. The basis for the collection of tax in this case is the demand sent to the responsible member of the consolidated group of taxpayers. In case of insufficiency (absence) of funds in the bank accounts of a member of the consolidated group of taxpayers when tax is collected in the manner provided for by this subparagraph, the remaining uncollected amount shall be collected at the expense of funds in banks from any other participant in this group;

- when tax is paid, including in part, by one of the participants in the consolidated group of taxpayers, the collection procedure for the part paid is terminated;

- a member of a consolidated group of taxpayers, in respect of which a decision has been made to collect corporate income tax for a consolidated group of taxpayers, shall be subject to the rights and guarantees provided for by this article for taxpayers;

- the decision to collect is made in the manner prescribed by this article, after the expiration of the period specified in the demand for the payment of tax sent to the responsible participant in the consolidated group of taxpayers, but no later than 6 months after the expiration of the specified period. The decision to collect, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court at the place where the responsible member of the consolidated group of taxpayers is registered with the tax authority with an application to collect tax simultaneously from all participants in the consolidated group of taxpayers. Such an application may be filed with the court within 6 months after the expiration of the period for collecting the tax established by this article. The deadline for filing an application missed for a good reason may be restored by the court;

the decision on recovery made in respect of the responsible participant or other member of the consolidated group of taxpayers, the actions or inaction of tax authorities and their officials in the course of the recovery procedure may be challenged by such participants on the grounds related to the violation of the procedure for the recovery procedure.

Note that from January 1, 2015, the provisions of Art. 46 of the Tax Code of the Russian Federation are supplemented by a new clause 3.1, which provides that:

In case of insufficiency or absence of funds in the accounts and electronic funds of the taxpayer (tax agent) - organization or in the absence of information about the accounts (details of corporate electronic means of payment used for electronic money transfers), the tax amount not exceeding five million rubles is collected in the manner prescribed by the budgetary legislation of the Russian Federation, at the expense of funds reflected in the personal accounts of the specified taxpayer (tax agent) - organization.

For the collection of tax in accordance with par. 1 of this paragraph, the tax authority sends the decision on collection on paper or in electronic form to the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, at the place where the personal account of the taxpayer (tax agent) is opened.

If a taxpayer (tax agent) - organization fails to comply with the decision of the tax authority to recover within 3 months from the date of its receipt by the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation, this authority informs the tax authority that sent it decision on recovery, within 10 days after the expiration of the specified period on paper or in electronic form.

The form, format and procedure for sending to the bodies that open and maintain personal accounts in accordance with the budgetary legislation of the Russian Federation, decisions on the recovery from the funds reflected in the personal accounts of the taxpayer (tax agent) - organization, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Federal Treasury.

The form, format and procedure for sending a notice of non-execution of the decision to recover from the funds reflected in the personal accounts of the taxpayer (tax agent) by the bodies that open and maintain personal accounts in accordance with the budget legislation of the Russian Federation, to the tax authorities are approved by the Federal Treasury upon agreement with the federal executive body authorized to control and supervise taxes and fees.

The above follows from paragraph 3.1 of Art. 46 of the Tax Code of the Russian Federation (as amended by Law N 347-FZ).

If there is insufficient or no money on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or his electronic money or in the absence of information about the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or information about the details of his corporate electronic means of payment used for electronic money transfers, the tax authority has the right to collect tax at the expense of other property of the taxpayer (tax agent) - organization or individual entrepreneur in accordance with (clause 7 of article 46 of the Tax Code of the Russian Federation).

From January 1, 2015, it is clarified that the above provisions apply to a taxpayer (tax agent) - an organization upon receipt by the tax authority of a notification from the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation about the impossibility of executing the decision of the tax authority on collection at the expense of funds reflected in the personal accounts of the taxpayer (tax agent) - organization (paragraph 3, clause 7, article 46 of the Tax Code, as amended by Law N 347-FZ).

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Article 46 , as well as at the expense of its electronic money

1. In the event of non-payment or incomplete payment of tax within the established period, the obligation to pay tax shall be enforced by foreclosing money (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur in banks and his electronic money, with the exception of funds on special electoral accounts, special accounts of referendum funds.

1.1. In case of non-payment or incomplete payment within the established period of tax payable by a participant in an investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax records), in connection with the implementation of the investment partnership agreement ( with the exception of corporate income tax arising in connection with the participation of this partner in an investment partnership agreement), the obligation to pay this tax is enforced by foreclosing money (precious metals) on the accounts of the investment partnership.

In the absence or insufficiency of funds (precious metals) on the accounts of the investment partnership, the recovery is made from the funds (precious metals) on the accounts of the managing partners. In this case, in the first place, the collection is levied on cash (precious metals) on the accounts of the managing partner responsible for maintaining tax records.

In the absence or insufficiency of funds (precious metals) on the accounts of the managing partners, a penalty is levied on the funds (precious metals) on the accounts of the partners in proportion to the share of each of them in the common property of the partners, determined on the date the debt arose.

2. Tax collection is carried out by the decision of the tax authority (hereinafter in this article - the decision on collection) by sending on paper or in electronic form to the bank in which the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, instructions of the tax authority to write-off and transfer to the budget system of the Russian Federation of the necessary funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur.

The form and procedure for sending to the bank an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or an individual entrepreneur to the budget the system of the Russian Federation on paper is established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these instructions are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.

The procedure for sending to the bank an instruction from a tax authority to write off and transfer funds to the budget system of the Russian Federation from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or individual of an entrepreneur in electronic form is established by the Central Bank of the Russian Federation in agreement with the federal executive body authorized for control and supervision in the field of taxes and fees.

3. The decision to collect shall be made after the expiration of the time period specified in the tax payment claim, but not later than two months after the expiration of the specified time period. The decision on collection, made after the expiration of the specified period, is considered invalid and is not subject to execution, unless otherwise provided by this paragraph. In this case, the tax authority may apply to the court with an application to recover from the taxpayer (tax agent) - organization or individual entrepreneur the amount of tax due. An application may be filed with the court within six months after the expiration of the deadline for fulfilling the claim for tax payment. The deadline for filing an application missed for a good reason may be restored by the court.

The decision to collect is made if the total amount of the tax, fee, insurance premiums, penalties, fines to be collected exceeds 3,000 rubles, except for the case provided for in paragraph four of this clause.

If within three years from the date of expiration of the term for fulfillment of the earliest claim for the payment of tax, fee, insurance premiums, penalties, fines, taken into account by the tax authority when calculating the total amount of tax, fee, insurance premiums, penalties, fines to be collected, such amount of tax , collection, insurance premiums, penalties, fines exceeded 3,000 rubles, the decision to collect is made within two months from the date when the specified amount exceeded 3,000 rubles.

If within three years from the date of expiration of the term for fulfillment of the earliest claim for the payment of tax, fee, insurance premiums, penalties, fines, taken into account by the tax authority when calculating the total amount of tax, fee, insurance premiums, penalties, fines to be collected, such amount of tax , collection, insurance premiums, penalties, fines did not exceed 3,000 rubles, the decision on recovery is made within two months from the date of expiration of the specified three-year period.

The decision to collect is brought to the attention of the taxpayer (tax agent) - an organization or an individual entrepreneur within six days after the said decision is made.

If it is impossible to hand over the decision on recovery to the taxpayer (tax agent) against receipt or otherwise transfer it, indicating the date of its receipt, the decision on recovery is sent by registered mail and is considered received after six days from the date of sending the registered letter.

3.1. In case of insufficiency or absence of funds on the accounts and electronic funds of the taxpayer (tax agent) - organization or in the absence of information about the accounts (details of corporate electronic means of payment used for electronic money transfers), the tax amount not exceeding five million rubles is collected in the manner prescribed by the budgetary legislation of the Russian Federation, at the expense of funds reflected in the personal accounts of the specified taxpayer (tax agent) - organization.

To collect tax in accordance with the first paragraph of this paragraph, the tax authority sends a decision on collection on paper or in electronic form to the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, at the place where the personal account of the taxpayer (tax agent) is opened .

If a taxpayer (tax agent) - organization fails to comply with the decision of the tax authority to recover within three months from the date of its receipt by the authority that opens and maintains personal accounts in accordance with the budget legislation of the Russian Federation, this authority informs the tax authority that sent it decision on recovery, within ten days after the expiration of the specified period on paper or in electronic form.

The form, format and procedure for sending to the bodies that open and maintain personal accounts in accordance with the budgetary legislation of the Russian Federation, decisions on the recovery from the funds reflected in the personal accounts of the taxpayer (tax agent) - organization, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Federal Treasury.

The form, format and procedure for sending a notice of non-execution of a decision to recover at the expense of funds reflected in the personal accounts of the taxpayer (tax agent) by the bodies that open and maintain personal accounts in accordance with the budget legislation of the Russian Federation, to the tax authorities are approved by the Federal Treasury in agreement with federal executive body authorized to control and supervise taxes and fees.

4. An instruction from a tax authority to transfer amounts of tax to the budgetary system of the Russian Federation shall be sent to the bank where the accounts of the taxpayer (tax agent) - organization or individual entrepreneur are opened, and are subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.

4.1. The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is suspended:

upon the decision of the tax authority to suspend the operation of the corresponding order when the tax authority makes a decision in accordance with "paragraph 6 of Article 64" of this Code;

upon receipt from the bailiff-executor of the decision to seize the funds (electronic funds) of the taxpayer (tax agent) - an organization or an individual entrepreneur located in banks;

by decision of a higher tax authority in the cases provided for by this Code.

The effect of an instruction from a tax authority to write off and transfer funds from the accounts of a taxpayer (tax agent) - organization or individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - organization or individual entrepreneur to the budget system of the Russian Federation is resumed upon the decision of the tax authority to cancel the suspension of the relevant order.

The tax authorities shall decide on the withdrawal of unfulfilled (in whole or in part) instructions for debiting and transferring funds from the accounts of taxpayers (tax agents) - organizations or individual entrepreneurs or instructions for the transfer of electronic funds of taxpayers (tax agents) - organizations or individual entrepreneurs in the budget system of the Russian Federation in the following cases:

changing the deadline for paying taxes and fees, as well as penalties and fines in accordance with "Chapter 9" of this Code;

fulfillment of the obligation to pay taxes, fees, penalties, fines, interest provided for by this Code, including in connection with the offset against arrears and debts on penalties and fines in accordance with "Article 78" of this Code;

write-offs of arrears, debts on penalties and fines, interest provided for by "Chapter 9", as well as "Article 176.1" of this Code, recognized as uncollectible in accordance with "Article 59" of this Code;

reduction of the amounts of tax, fee, penalty interest on the amended tax return submitted in accordance with "Article 81" of this Code; receipt by the tax authority from the bank of information on the balances of funds on other accounts (electronic money balances) of the taxpayer in accordance with "paragraphs 5" and "9 of Article 76" and "paragraph 2 of Article 86" of this Code for the purpose of collection according to the adopted in accordance with "paragraph 3" of this article the decision on recovery.

The forms and procedure for sending to the bank the decisions of the tax authority specified in this paragraph on paper shall be established by the federal executive body authorized for control and supervision in the field of taxes and fees. The formats of these decisions are approved by the federal executive body authorized to control and supervise taxes and fees, in agreement with the Central Bank of the Russian Federation.

The procedure for sending the decisions of the tax authority specified in this paragraph to the bank in electronic form is approved by the Central Bank of the Russian Federation in agreement with the federal executive body authorized to control and supervise taxes and fees.

5. An instruction from a tax authority to transfer tax must contain an indication of those accounts of the taxpayer (tax agent) - organization or individual entrepreneur, from which the tax must be transferred, and the amount to be transferred.

Tax collection can be carried out from ruble settlement (current) accounts, in case of insufficient or no funds in ruble accounts - from foreign currency accounts, and in case of insufficient or no funds in foreign currency accounts - from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur unless otherwise provided by this article.

The collection of tax from the currency accounts of a taxpayer (tax agent) - organization or individual entrepreneur is carried out in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of sale of the currency. When collecting tax from foreign currency accounts, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur and transfer of funds within the same period from the sale of foreign currency in the amount of the tax payable to the settlement (current) account of the taxpayer (tax agent). Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent).

Collection of tax from accounts in precious metals of a taxpayer (tax agent) - an organization or an individual entrepreneur is based on the value of precious metals, equivalent to the amount of payment in rubles. In this case, the value of precious metals is determined on the basis of the accounting price for precious metals established by the Central Bank of the Russian Federation as of the date of sale of precious metals. When collecting tax from accounts in precious metals, the head (deputy head) of the tax authority, along with the order of the tax authority to transfer the tax, sends the bank an order to sell, no later than the next day, the precious metals of the taxpayer (tax agent) - organization or individual entrepreneur in the amount necessary for execution instructions for the transfer of tax, and the transfer within the same period of funds from the sale of precious metals to the settlement (current) account of the taxpayer (tax agent). Expenses related to the sale of precious metals are covered by the taxpayer (tax agent).

Tax is not collected from the deposit account (deposit in precious metals) of the taxpayer (tax agent) if the term of the deposit agreement (bank deposit agreement in precious metals) has not expired.

If there is a deposit agreement, the tax authority has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the taxpayer (tax agent) after the expiration of the deposit agreement, if by this time the instruction of the tax authority sent to this bank for tax transfer.

If there is a bank deposit agreement in precious metals, the tax authority has the right to give the bank an instruction to sell precious metals in the amount necessary for the execution of the order to transfer tax, after the expiration of the said agreement and transfer funds from the sale of precious metals in the amount of the tax to be collected on the settlement account. (current) account of the taxpayer (tax agent), if by that time the order of the tax authority sent to this bank to transfer tax has not been executed.

Forms and formats of instructions from tax authorities to banks for the sale of foreign currency and precious metals by taxpayers (tax agents) - organizations, individual entrepreneurs are approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation.

6. The order of the tax authority to transfer the tax shall be executed by the bank no later than one business day following the day of receipt of the specified order by it, if the tax is collected from ruble accounts, no later than two business days if the tax is collected from foreign currency accounts, if this does not violate the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, if the tax is collected from accounts in precious metals.

In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an instruction from the tax authority to transfer tax, such an instruction is executed as funds (precious metals) are received into these accounts no later than one business day following the day of each such receipt to ruble accounts, no later than two business days following the day of each such receipt to foreign currency accounts, unless this violates the order of priority of payments established by the civil legislation of the Russian Federation, and no later than two business days, following the day of each such receipt on accounts in precious metals.

6.1. If there is insufficient or no money on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur, the tax authority has the right to collect tax at the expense of electronic money.

Collection of tax at the expense of electronic money of a taxpayer (tax agent) - organization or individual entrepreneur is carried out by sending to the bank where electronic money is located, instructions from the tax authority to transfer electronic money to the account of the taxpayer (tax agent) - organization or individual entrepreneur in the bank.

The instruction of the tax authority for the transfer of electronic money must contain an indication of the details of the corporate electronic means of payment of the taxpayer (tax agent) - an organization or individual entrepreneur, using which the transfer of electronic money is to be carried out, an indication of the amount to be transferred, as well as the details of the account of the taxpayer (tax agent) - an organization or an individual entrepreneur.

Tax collection can be carried out at the expense of electronic money balances in rubles, and in case of their insufficiency, at the expense of electronic money balances in foreign currency. When collecting tax at the expense of electronic money balances in foreign currency and specifying in the instruction of the tax authority for the transfer of electronic money the currency account of the taxpayer (tax agent) - organization or individual entrepreneur, the bank transfers electronic money to this account.

When collecting tax at the expense of electronic money balances in foreign currency and indicating in the order of the tax authority to transfer electronic money the ruble account of the taxpayer (tax agent) - organization or individual entrepreneur, the head (deputy head) of the tax authority simultaneously with the order of the tax authority to transfer electronic sends an order to the bank for the sale no later than the next day of the foreign currency of the taxpayer (tax agent) - organization or individual entrepreneur. Expenses associated with the sale of foreign currency are carried out at the expense of the taxpayer (tax agent). The Bank transfers electronic money to the ruble account of a taxpayer (tax agent) - an organization or an individual entrepreneur in an amount equivalent to the amount of payment in rubles at the exchange rate of the Central Bank of the Russian Federation established on the date of the transfer of electronic money.

If there is insufficient or no electronic money of a taxpayer (tax agent) - organization or individual entrepreneur on the day the bank receives an order from the tax authority to transfer electronic money, such an order is executed as soon as the electronic money is received.

The tax authority's instruction to transfer electronic money shall be executed by the bank no later than one business day following the day it receives the said order, if the tax is collected at the expense of electronic money balances in rubles, and no later than two business days if the tax is collected at the expense of electronic money balances in foreign currency.

7. In case of insufficiency or absence of funds (precious metals) on the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or his electronic money or in the absence of information about the accounts of the taxpayer (tax agent) - organization or individual entrepreneur or information about the details of his corporate electronic means of payment used for electronic money transfers, the tax authority has the right to collect tax at the expense of other property of the taxpayer (tax agent) - organization or individual entrepreneur in accordance with Article 47 of this Code.

With regard to corporate income tax for a consolidated group of taxpayers, the tax authority has the right to collect tax at the expense of other property of one or more participants in this group if there is insufficient or no money (precious metals) on the bank accounts of all participants in the specified consolidated group of taxpayers or their electronic money or in the absence of information about the accounts of these persons or information about the details of their corporate electronic means of payment used for electronic money transfers.

The provisions of the first paragraph of this paragraph shall apply to a taxpayer (tax agent) - an organization upon receipt by the tax authority of a notification from the authority that opens and maintains personal accounts in accordance with the budgetary legislation of the Russian Federation, of the impossibility of executing the decision of the tax authority to recover at the expense of monetary funds, reflected on the personal accounts of the taxpayer (tax agent) - organization.

7.1. Foreclosure on the property of participants in an investment partnership agreement in accordance with Article 47 of this Code is allowed only in the absence or insufficiency of funds (precious metals) on accounts, electronic money balances in investment partnership banks, managing partners and partners.

8. When tax is collected by a tax authority, in accordance with the procedure and under the conditions established by Article 76 of this Code, the suspension of operations on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur in banks or the suspension of electronic money transfers can be applied.

8.1. From the date of revocation of a banking license from a credit institution, the collection of tax at the expense of cash (precious metals) on accounts with such a credit institution is carried out taking into account the provisions of the Federal Law "On Banks and Banking Activity" and Federal Law No. 127 of October 26, 2002 -FZ "On Insolvency (Bankruptcy)".

9. The provisions of this Article shall also apply to the collection of penalties for late payment of taxes and insurance premiums.

10. The provisions of this article shall also apply to the collection of fees, insurance premiums and fines in the cases provided for by this Code.

11. The provisions of this article shall apply when collecting corporate income tax for a consolidated group of taxpayers, relevant penalties and fines at the expense of cash (precious metals) on bank accounts of participants in this group, taking into account the following features:

1) collection of tax at the expense of cash (precious metals) in bank accounts is primarily carried out at the expense of cash (precious metals) of the responsible member of the consolidated group of taxpayers;

2) in case of insufficiency (absence) of funds (precious metals) on bank accounts with the responsible member of the consolidated group of taxpayers to collect the entire amount of tax, the collection of the remaining uncollected amount of tax is carried out at the expense of funds (precious metals) in banks successively from all other participants in this groups, while the tax authority independently determines the sequence of such collection based on the information it has about taxpayers. The basis for the collection of tax in this case is the demand sent to the responsible member of the consolidated group of taxpayers. In case of insufficiency (absence) of funds (precious metals) on the bank accounts of a member of the consolidated group of taxpayers when tax is collected in the manner provided for in this subparagraph, the remaining uncollected amount shall be collected at the expense of funds (precious metals) in banks with any other participant in this groups;

3) when tax is paid, including in part, by one of the participants in the consolidated group of taxpayers, the collection procedure for the part paid is terminated;

4) a member of a consolidated group of taxpayers in respect of which a decision has been made to collect corporate profit tax for a consolidated group of taxpayers shall be subject to the rights and guarantees provided for by this article for taxpayers;

5) the decision to collect is made in the manner prescribed by this article, after the expiration of the period specified in the demand for the payment of tax sent to the responsible participant in the consolidated group of taxpayers, but not later than six months after the expiration of the specified period. The decision to collect, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court at the place where the responsible member of the consolidated group of taxpayers is registered with the tax authority with an application to collect tax simultaneously from all participants in the consolidated group of taxpayers. Such an application may be filed with the court within six months after the expiration of the period for collecting the tax established by this article. The deadline for filing an application missed for a good reason may be restored by the court;

6) the decision on recovery made in respect of the responsible participant or other member of the consolidated group of taxpayers, the actions or inaction of tax authorities and their officials in the implementation of the recovery procedure may be challenged by such participants on the grounds related to the violation of the procedure for the implementation of the recovery procedure.