Consultation on overdue tax overpayment
Clause 7 of Article 78 of the Tax Code does not allow for ambiguous interpretation:
"7. An application for the set-off or the return of the amount of overpaid tax may be filed within three years from the date of payment of this amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees."
The exception to the rule is the Letter of the RF Ministry of Finance of April 22, 2015 No. 03-02-07 / 2/23112, which states that the Ministry of Finance "... supports the position set forth in it on the implementation by the tax authorities independently in accordance with paragraph 5 of article 78 of the Tax Code of the Russian Federation for offsetting the amount of overpaid tax, including in the event that more than three years have elapsed since the date of payment, in order to pay back arrears for other taxes, arrears of fines and (or) penalties payable or recoverable. . ".
However, by Decree of December 19, 2017 in case No. A46-2605 / 2017, the ARBITRATION COURT of the WESTERN SIBERIAN COUNTRY indicated: "In this case, the courts rightfully rejected the argument of the applicant that the tax authority was able to independently set off on the basis of an erroneous interpretation of the norms of the tax legislation the amount of overpaid tax on the payment of arrears even after the expiration of a three-year period established by Article 78 of the Tax Code of the RF.The taxpayer's reference to the letter of the Ministry of Finance of the Russian Federation No. 03-02-07 / 2/23112 of 04/22/2015 is rejected, this letter has an informational and explanatory nature on the application of the legislation of the Russian Federation on taxes and fees and, by virtue of Article 1 of the Tax Code of the Russian Federation, is not a normative legal act on taxes and fees compulsory for application by taxpayers (tax agents). "
Also, Letter No. 03-02-08 / 75912 of the Ministry of Finance of the Russian Federation of November 17, 2017 states: "In accordance with clause 7 of Article 78 of the Tax Code of the Russian Federation (hereinafter referred to as the" Code "), an application for a credit or for the return of an amount of overpaid tax may be filed within three years from the date of payment of this amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees.In the definition of the Constitutional Court of the Russian Federation of 21.06.2001 No. 173-O indicated that the provisions of Article 78 of the Code do not prevent the taxpayer in the event of a pass set of the deadline to apply to the court with a claim for the return of the overpaid amount from the budget of the overpaid amount in the order of civil or arbitration proceedings, in which case the general rules for calculating the limitation period - from the day when the person learned or should have learned about the violation of his right 200 of the Civil Code of the Russian Federation.) Thus, if the term specified in clause 7 of Article 78 of the Code is missed, the taxpayer may apply to the court to protect his right within the general limitation period, anonymous article 196 of the Civil Code of the Russian Federation. In the event that the court recognizes as valid the reason for missing the limitation period, the violated citizen's right is protected (Article 205 of the Civil Code of the Russian Federation). "
Regarding the reverse situation - the collection of taxes outside the 3-year statute of limitations - in the jurisprudence in 2017, the right of the tax authorities to apply to the court with an application for restoring the missed statute of limitations upon the collection of the tax. Despite the above Letter No. 03-02-08 / 75912 of the Ministry of Finance of the Russian Federation of November 17, 2017, courts generally refuse taxpayers in restoring a missed 3-year period due to the fact that the taxpayer independently calculates and pays taxes, therefore, knows about the availability overpayments.
In our opinion, the signing of an act of reconciliation with the tax authority in terms of the amount of overpayment:
a) does testify to the existence of an overpayment for the tax - receivables, but this reconciliation certificate does not confirm the "reliability" of the receivables.
This act only confirms the existence on the selected balance date by summing up all the accrual operations and payment of each type of tax.
Taking into account clause 7 of Article 78 of the Tax Code, there are justifiable doubts that a taxpayer will be able to use this receivable, therefore:
- Since the balance is made in accordance with the principle of prudence, it is optimal not to reflect the overpayment of overpayment for the tax, writing off it;
- If the company decides that this overdue ("doubtful") debt should be reflected in the asset of the balance, then it is necessary to disclose in the Explanatory notes that the period for offsetting or refunding the tax overpayment is omitted.
b) because in a number of cases tax authorities do not require an application for offsetting overpayment for previous periods as a payment for tax for the current period, and since tax collectors are calculating the tax by summing up transactions and controlling the balance on the date for each type of tax, then it is likely that tax authorities they do not control the legality of the taxpayer's accounting of the overdue overpayment to the account of payment for the current period. You can verify this by waiting for the collection date:
- within 2 months after the expiry of the tax payment period - tax officers may send a claim for payment of the tax (Clause 3, Article 46 of the Tax Code of the Russian Federation);
- within 6 months after the expiry of the tax payment period - tax officers may apply to the court for recovery of the tax;
- within 1 year after the expiration of the period in the demand for payment - there may be a decision on recovery from the property (clause 1, article 47 of the Tax Code of the Russian Federation);
- an application for recovery at the expense of property in court can be filed within 2 years;
- the deadline for filing the application missed for good reason can be restored by the court - the term is not limited.
c) since the maintenance of the taxpayer's personal cards is approved by the internal instructions of the tax authorities, the tax authorities can always refer to the fact that the balance reconciliations indicated in the certificate are the information from the face cards that do not have to take into account certain features, incl. the reality of the balance, especially given the likely recovery by the courts of the periods of the missed prescription - both in the interests of the tax authorities and in the interests of taxpayers.
In view of the foregoing, on the basis of an act of reconciliation with the tax authority, the taxpayer, at his own discretion, can restore an overdue overpayment in the account:
- in the amount that is credited against current tax payments,
- either in accordance with the reconciliation act, i.e. fully recover the amount of overdue overpayments.
In our opinion, overdue overpayment of the tax is not a reliable receivable, and if it is reflected in the asset balance - will require disclosure in the Notes - with references to clause 7 of Article 78 of the Tax Code of the Russian Federation for a three-year period of tax refund or offset.