Article 89 of the Tax Code. Field tax audit
In accordance with the legislation of the Russian Federation, inspectors of the Federal Tax Service have the right to initiate exit inspections in respect of enterprises. These activities involve a fairly detailed study of the firm's activities for compliance with the requirements of the tax legislation of the Russian Federation. What sources of law govern the conduct of on-site inspection? What is the procedure for this procedure?
What is an on-site inspection of the Federal Tax Service?
Conducting on-site tax inspections is one of the main activities of the Federal Tax Service. This procedure is governed by the provisions of art. 89 of the Tax Code, other federal laws, as well as by-laws, letters and explanations of departments related to the activities of the Federal Tax Service.
Field tax audit is a procedure complementing the desk audit. In general, it is a visit of FTS inspectors to the territory of the taxpayer organization. It is organized for the purpose of checking the documents and other significant circumstances of the firm's fulfillment of the requirements established by the legislation of the Russian Federation.
We will study the basic rules of the corresponding measures established by Art. 89 of the Tax Code and other normative sources, in more detail.
Basic rules of on-site inspections of the Federal Tax Service
Field inspection of the Federal Tax Service is carried out on the basis of a decision signed by the head of the territorial structure of the tax service. Inspectors taking part in it are also appointed by a separate local legal act - these are the requirements of clause 1 and clause 2 of art. 89 of the Tax Code. As we noted above, the event in question is held, as a rule, on the territory of the taxpayer. But if its provision is not possible, the inspection is carried out in the building of the territorial division of the Federal Tax Service, to which the company is attributed.
Inspectors of the Federal Tax Service during the event can reclaim all documents related to taxes from the taxpayer or his counterparties. If necessary, tax specialists have the right to conduct an inventory of the company's assets, to inspect its premises. In accordance with paragraph 4 of Art. 89 of the Tax Code, FTS inspectors can verify documents only for 3 years, preceding the one in which the audit was initiated.
The measures in question can not be conducted for the same types of taxes in the same year more than 2 times. In addition, the Federal Tax Service can initiate only 2 field inspections during the year. If the firm is reorganized or liquidated, the on-site inspection can be initiated against it at any time, regardless of previous activities of this type. The subject of studying the company's activities also does not matter. However, in this case, inspectors have the right to investigate a period that does not exceed 3 years before the year in which the FTS decided to conduct the audit. The duration of the event, in question, as a rule, does not exceed 2 months - these are the provisions of clause 6 of Art. 89 of the Tax Code. But, if necessary, the term of verification can be increased to 4 months. As an exception - up to 6.
Upon completion of the audit, a document is prepared, which is transmitted to the taxpayer - it records information about the event.
The purpose of the on-site inspection
Let's consider in more detail what, in fact, is the purpose of the event in question. In accordance with paragraph 4 of Art. 89 Tax Code of the Russian Federation field inspection in the general case is organized in order to establish the correctness of the calculation and payment of the company of certain taxes. In the provisions of the Tax Code of the Russian Federation, other grounds for carrying out the corresponding measure may be prescribed.
Most often, the FTS initiates an on-site inspection, if in the cameral process it was not possible to unequivocally establish that the firm correctly executes the requirements of the tax legislation of the Russian Federation, while there are suspicions that there are some mistakes in its work. Field inspection can be appointed for the purpose of a detailed study of the sources of tax and accounting, other documents that are not generally investigated in a desk audit.
What decisions can be made on the basis of the audit?
As soon as the tax audit, regulated by Art. 89 of the Tax Code, completed - the inspectors of the Federal Tax Service make a special act, which reflects the results of the event. The document may fix a decision to hold the company accountable for violation of Russian tax legislation or refusal to impose any sanctions on the company.
In the first case, the inspectors should reflect in the act all the circumstances of the offense with reference to the real documents. The source that fixes the results of the audit also reflects the measures of the taxpayer's liability. This can be fines and penalties.
In turn, if the act reflects the decision of the FTS inspectors not to impose sanctions on the audited enterprise, it must also be motivated by certain circumstances. In an act containing sanctions, a period must be fixed during which the taxpayer can appeal against the decision made by the inspectors by applying to a higher tax structure.
Contents of on-site inspection
Let us examine in more detail what is, in fact, the verification procedure - in accordance with Art. 89 of the Tax Code of the Russian Federation, what is its content. First of all, as we noted above, the head of the territorial structure of the Federal Tax Service makes a decision to conduct a field audit for a specific firm. This document should reflect:
- name of the territorial structure of the Federal Tax Service;
- number and date of the document;
- the name of the company being audited;
- its TIN;
- the reporting period under which the verification is carried out;
- Types of taxes, the correctness of the calculation and payment of which will be studied by inspectors;
- FULL NAME. Specialists of the tax service involved in the audit.
The decision must be signed by the head of the Federal Tax Service. Inspectors of the Federal Tax Service, upon arriving at the territory of the audited organization, present the corresponding document to the director of the company. If the employees of the Federal Tax Service do not have permission with them, or they can not confirm their identity, the head of the enterprise will have the right to prevent them from entering the company's territory. If a document reflecting the decision of the Federal Tax Service to carry out an inspection is in order, the director of the company certifies the fact of acquaintance with him.
If the head of the audited organization refuses to allow inspectors of the Federal Tax Service to the territory of the facility, even though all the documents are in the order of the tax authorities, the representatives of the Federal Tax Service make a separate act about this. Based on this document, the head of the Federal Tax Service can subsequently apply to the law enforcement agencies to resolve the issue of gaining access to the territory of the taxpayer. Moreover, if the firm did not allow inspectors to conduct an on-site inspection - the FTS has the right to take decisions on tax violations based on the available data.
Terms of verification: nuances
Article 89 of the Tax Code of the Russian Federation includes the rules by which the term of the event in question includes the period of the actual presence of inspectors on the territory of the firm. However, it does not take into account the periods between the transfer to the taxpayer of the requirements for the provision of documents in the Federal Tax Service. That is, the date of the start of the on-site inspection is determined by the moment of receipt by the employees of the Federal Tax Service of the relevant sources from the taxpayer.
Tasks of inspectors
Let's consider in more detail what tasks are solved by the inspectors of the Federal Tax Service during the on-site inspection. In the course of the event, the tax authorities, using the available data on the taxpayer, information from the documents and materials provided by him:
- analyze the information received about the firm's activities;
- identify possible inconsistencies in the documents studied, violations in the conduct of accounting and tax accounting;
- determine the degree of influence of these deficiencies on the payment discipline of the organization;
- if necessary, initiate counter checks - other firms that are relevant to the activities of the company being audited;
- inspect the premises, adjacent territories;
- communicate with people working in the company, attract competent experts - to objectively evaluate the activities of the company being audited;
- determine the evidence base for violations of the tax legislation of the Russian Federation;
- Additional taxes, determine the grounds for fines and penalties;
- correctly record the test results.
Duties of the taxpayer for verification
Some of the duties of the Tax Code of the Russian Federation are established for the audited taxpayer. These include: providing the FTS inspectors with the necessary documents, meeting the requirements of the Federal Tax Service to eliminate violations of tax legislation. If the firm does not perform the corresponding duties, this can be accompanied by unpleasant legal consequences for it.
Tax inspections and monitoring
Article 89 of the Tax Code establishes a norm under which the FTS does not have the right to initiate the measures in question during those periods in which tax monitoring is conducted with respect to the firm. Exception - scenarios in which:
- On-site inspection is carried out by the higher-level structure of the Federal Tax Service as a method of monitoring the work of the territorial office of the Federal Tax Service that monitors;
- the procedure for tax monitoring with respect to the taxpayer is terminated early;
- the company refuses to comply with the motivated opinion of the Federal Tax Service;
- the taxpayer submits to the Federal Tax Service an updated declaration with the amount of tax, which is reduced in comparison with that recorded in the previous reporting document.
Inspection of branches and representative offices
The procedure in question can be initiated also with respect to the branches and representative offices of the firm, if any. With respect to this activity art. 89 of the Tax Code of the Russian Federation establishes a restriction for the Federal Tax Service - inspectors have no right to inspect the branches and representative offices of the firm 2 or more times for the same payments within the same period. In addition, the Federal Tax Service can not visit the relevant structures more than twice a year. The term of inspection of the branches and representative offices of the firm should not exceed 1 month.
In the provisions of paragraph 9 of Art. 89 of the Tax Code of the Russian Federation fixed the norms that regulate the procedure for suspension of the event in question. Thus, the head of the territorial division of the Federal Tax Service may initiate a pause in the verification in the event that:
- it is required to request additional documents from the taxpayer;
- it is necessary to obtain information from the state structures of foreign states - in accordance with international agreements of the Russian Federation;
- it is necessary to conduct an examination;
- there is a need to translate the documents that are provided by the company inspected by the inspectors, into Russian.
The audit is suspended in accordance with a separate order of the head of the territorial division of the Federal Tax Service. If the procedure in question is initiated, then for the period of cancellation of the activities of the Federal Tax Service, the originator of those sources that are requested by the inspectors initially are returned to the taxpayer.
In some cases, the FNC may conduct a second check. The decision on its holding should be taken by the higher-level structure of the Federal Tax Service in the process of control over the work of the territorial unit of the Federal Tax Service, which conducted the first audit. The repeated inspection of the Federal Tax Service is understood as an activity that involves inspection by inspectors of the same taxes that were investigated during the previous visit of the inspectors of the Federal Tax Service to the firm. At the same time, if a new visit of FTS inspectors reveals offenses that were not detected during the previous verification, then, as a rule, no sanctions are imposed on the taxpayer. Repeated inspection is regulated by the provisions of Cl. 10, Art. 89 of the Tax Code.
What will the Federal Tax Service do in detecting a violation?
If the inspectors of the RF Federal Tax Service reveal violations in the activities of the firm, they will have to take all the necessary legal measures to document the findings. This is to ensure that subsequent decisions of tax authorities have an evidentiary basis.
If necessary, the Federal Tax Service may withdraw from the company documents that can corroborate the violation - so that the taxpayer does not subsequently conceal them. Inspectors of the Federal Tax Service are entitled to demand explanations from the company being checked about the facts that have been discovered that characterize the activities of the enterprise. At the same time, a request for the provision of necessary information can be formed both in oral and written form.
If the taxpayer refuses to interact constructively with the Federal Tax Service, this may lead to the fact that the inspectorate interprets this or that complex issue not in favor of the company being audited. If necessary, FTS inspectors can videotape the verification process, photograph the objects under study that belong to the firm.
The facts about the verification should be recorded in a separate protocol. In the relevant document, the inspector is obliged to fix the date and place of the implementation of certain actions, Participants in the inspection of the objects of the company being inspected, the content of the actions carried out by the inspectors, the facts revealed during the inspection of the facilities. Photo and video materials, if any, are attached to the protocol.
Above we noted that along with exit - or as part of it - a counter check can be initiated. Its essence lies in the fact that the Federal Tax Service requests information about the activities of the firm from third parties related to the company being audited. It should be noted that it is regulated by other norms of the Tax Code of the Russian Federation - different from those contained in Article 89 of the Tax Code. The tax audit, classified as counter, in particular, is governed by the provisions of Art. 87 of the Tax Code of the Russian Federation.
The event in question can be implemented in 2 ways. First, the territorial division of the Federal Tax Service can independently request documents from third-party firms that are related to the activities of the company being audited. Secondly, the inspectors have the right to interact with colleagues on obtaining the necessary information - sending them requests for the need to demand from the firms registered in the relevant territory of certain documents.
Features of the interpretation of legislation in the part of tax audits
The most important nuance of the tax law is the interpretation of the provisions of the Tax Code of the Russian Federation and the normative acts supplementing it. Many accountants prefer art. 89 of the Tax Code of the Russian Federation with comments, since the wording given in the Code in its pure form sometimes sometimes makes it impossible to interpret one or another norm. The provisions of the Tax Code in the appropriate format can be found on the pages of many thematic portals on the network.
Article 89 of the Tax Code of the Russian Federation with comments may contain explanations of experts regarding: the procedure for the actions of FTS inspectors and taxpayers in the course of inspections, the consequences of carrying out certain activities by FNS officers and audited firms, judicial practice in disputes between the Federal Tax Service and organizations. In all cases, information reflected in relevant sources can be useful for businesses.
Concerning the provisions that contain Article 89 of the Tax Code of the Russian Federation: judicial practice can, as in the case with expert comments, contribute to their clarification. It happens that the opinion of experts on certain norms of the Tax Code is based primarily on judicial precedents.
In those cases when Art. 89 of the Tax Code of the Russian Federation with comments contains references to judicial practice - it can be about the consideration of cases in different instances. But many experts prefer to refer all the same to decisions taken by the RF Armed Forces or the RF Supreme Arbitration Court. That is, not subject to appeal. In this case, Article 89 of the Tax Code of the Russian Federation with comments can be considered as a source that contributes to a more correct interpretation of the norms of the Tax Code of the Russian Federation regarding inspections by business representatives.
For competent professionals of commercial enterprises, it is important, of course, to have access to the most recent version of art. 89 of the Tax Code. "Consultant" and other reference and legal systems are probably the most optimal way to keep up to date with the updates of the relevant source of law.
So, the FTS, which did not receive the necessary result on the fact of carrying out a desk audit of the firm's activities, can initiate an exit visit. This procedure is regulated mainly by Article 89 of the Tax Code. On-site tax inspection, however, may also be in the jurisdiction of other norms of the Tax Code, federal laws and by-laws.
During the event, the task of FTS inspectors is to determine how correctly the firm calculates and pays taxes. For this purpose, the FTS has the right to use a wide range of legal methods permitted by law - the reclamation of documents, inspection of premises, interaction with outside organizations that are relevant to the activities of the company being audited.
In some cases, it is provided for the suspension of the on-site inspection. The head of the territorial division of the Federal Tax Service takes decisions on initiating the procedure in question, as well as on establishing a pause in its conduct. He also appoints the inspectors responsible for the event.
As a result of the audit, the tax authorities make an informed decision - to fine the company or, conversely, to dispense with any sanctions against it. Along with studying the activities of a particular firm, the FTS can initiate a counter review of those persons who are associated with the activities of the organization being audited.
Of great importance for accountants and other competent specialists of Russian firms is the interpretation of the norms of the Tax Code - in terms of inspections and not only. To acquire the necessary knowledge in this area, financiers can, by studying the comments of experts and public information about the court hearings in the framework of disputes between the Federal Tax Service and the audited enterprises.