Tax liability and the conditions for its occurrence. Deferred tax liability

In accordance with Art. 57 of the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees. If we analyze Art. 21, 23 of the Tax Code of the Russian Federation, it becomes obvious that all other obligations of the taxpayer are aimed at facilitating state control over the fulfillment of the obligation to pay taxes and fees, and the rights of the taxpayer are derived from his obligation to pay taxes and fees and are intended for correct definition the scope of this obligation, preventing the imposition of an illegal tax burden on the taxpayer.

By virtue of the above, the obligation to pay taxes and fees occupies a central place among the rights and obligations of the taxpayer. Therefore, speaking of the tax obligation, we, first of all, mean the taxpayer's obligation to pay legally established taxes and fees.

This constitutional obligation consists of: 1) the obligation to determine the tax base and calculate the tax; 2) the obligation to allocate part of their property to monetary form to pay tax; 3) the obligation to transfer the tax in one of the ways provided for by the Tax Code of the Russian Federation.

Despite the most important role of the obligation to pay taxes and fees, the implementation of the tax legal relationship is not limited to the fulfillment of this obligation. In addition to the taxpayer, banks, tax agents, organizations of the federal postal service, local administrations, which also have certain rights and obligations.

Therefore, it is necessary to distinguish between such concepts as " tax liability"and" tax obligation ". The tax obligation is a measure of the proper behavior of a person to alienate part of his property in favor of the state ( municipality) if there are grounds established by law and in statutory size.

tax liability - this is a legal relationship that develops between the taxpayer and the state (municipal formation) represented by tax authorities with the participation of a number of auxiliary entities (tax agents, banks, etc.), within the framework of which funds are transferred from a private entity to a public one as payment of a tax (collection ). Accordingly, the tax liability is part of the legal content of the tax liability.

Grounds for the emergence and termination of tax liability

In accordance with Art. 44 of the Tax Code of the Russian Federation, the obligation to pay a tax or fee arises, changes and terminates if there are grounds established by the legislation on taxes and fees.

Such a law-generating legal fact (in some cases, composition), with the presence of which the taxpayer is traditionally associated with the occurrence of a tax liability, is the object of taxation.

Grounds for termination of tax liability include:

1) payment of a tax and (or) fee by a taxpayer or a fee payer;
2) the death of an individual taxpayer or recognition of him as dead in the manner prescribed by the civil procedural legislation of the Russian Federation. Debt on property tax of individuals, transport and land taxes of a deceased person or a person recognized as deceased, is repaid by the heirs within the value of the inherited property in the manner prescribed by the civil legislation of the Russian Federation;
3) liquidation of the taxpayer organization after all settlements with budget system RF in accordance with Art. 49 of the Tax Code of the Russian Federation;
4) compulsory recovery. In this case, the tax obligation is realized through the active actions of the tax or customs authorities, and for its full fulfillment it is not enough for the state (municipal formation) to receive the amount of the tax (fee), but it is necessary to collect the amount of penalties, and in some cases a fine;
5) writing off bad debts on taxes and fees (Article 59 of the RF MC);
6) application by a taxpayer (tax agent or tax authority - depending on the method of tax calculation) of a tax benefit or tax deduction equal to or greater than the tax amount;
7) payment of tax (duty) by the liquidation commission (liquidator) and (or) the founders of the organization during the liquidation procedure of the taxpayer - organization.

It should be noted that, given the periodic nature of tax payment, we can only talk about the termination of the obligation to pay a specific tax for a specific period.

1. The concept of tax liability.

2. Concepts and types tax offense.

3. Tax liability.

4. Enforcement measures tax debt.

1. A tax liability is recognized as an obligation of a taxpayer to the state arising in accordance with tax legislation, by virtue of which the taxpayer is obliged to register, determine the objects of taxation, correctly calculate taxes, timely draw up and submit taxes, fees and other payments to the budget.

The tax obligation must be fulfilled by the taxpayer in the manner and within the time limits established by the Tax Code.

In fulfillment of the tax obligation, the taxpayer performs the following actions:

1) enters registration with the tax authority;

2) keeps records of objects of taxation;

3) calculates on the basis of objects of taxation, tax base, tax rate, tax amounts;

4) draws up tax reports and submits them to the authorities tax service;

5) pays the assessed amounts of taxes.

If necessary, in order to fulfill the tax obligation, taxpayers are sent a written notice to the taxpayer about the need to fulfill their tax obligation.

There are the following deadlines:

1) on the amount of taxes and other obligatory payments - no later than three working days from the date of calculation;

2) on the amount of taxes, penalties and fines accrued based on the results of a tax audit - no later than 5 working days from the date of the decision on the tax audit report;

3) on the amounts of offsets for overpaid taxes to the budget - no later than 5 working days from the date of the offset;

4) on the measures taken to enforce the collection of tax debts - no later than 5 working days before the application of enforcement measures;

5) on the elimination of violations identified as a result of in-house audit - no later than 2 working days from the date of detection of violations.

The notice shall indicate the full name. or the name of the taxpayer, TIN, date of notification, amount of the tax liability; requirements for the fulfillment of tax obligations (terms); the basis for the notification; appeal procedure.

The deadline for the fulfillment of the tax obligation expires at the end of the last day of the period established by the Tax Code.

In the event that tax authorities send notifications of accrued taxes, penalties and fines based on the results of tax control the tax obligation is subject to execution within 10 working days from the date of delivery of the notice to the taxpayer.

If the taxpayer agrees with the amount of taxes accrued based on the results of the tax audit indicated in the notification by the tax authority, the deadlines for fulfilling the tax obligation at the request of the taxpayer may be extended by 60 working days. at the same time, the specified amount is payable to the budget with the accrual of penalties for each day of the extension of the payment period and is paid in equal installments every 15 working days of this period.

Payment of tax debt is made in the following order:

1. amount of arrears;

2. accrual of penalties;

The tax debt of a liquidated legal entity is repaid at the expense of the money received from the sale of its property, in the order of priority.

The tax debt of a deceased natural person, formed on the day of his death, is repaid by his heir within the value of the inherited property.

In the absence of an heir, the tax debt of an individual is considered repaid. If a person is recognized as missing, the tax liability in respect of such a person is suspended.

The tax service may charge or revise the amount of taxes accrued to the budget within 5 years after the end of the tax period, and the taxpayer has the right to demand a credit for overpaid taxes or their return within 5 years.

The amount of overpaid tax is subject to offset:

1) on account of repayment of penalties and fines for this and other types of taxes;

2) on account of repayment of arrears on other types of taxes;

3) against future payments on this and other types of taxes;

4) return to the bank account at the request of the taxpayer - within 20 days (according to the Tax Code - 15 days) from the date of filing the application.

2. A tax offense is an unlawful, guilty action or inaction, which is expressed in non-fulfillment or improper fulfillment of tax obligations, and for which tax liability is established in the form of financial sanctions.

Tax offenses entail damage to the financial interests of the state in the form of failure to pay the due amount of tax to the budget.

There are a number of tax violations:

Violation of the execution of the revenue part of the budget;

Violation of the control functions of tax authorities;

Violation of the obligations of taxpayers to pay taxes;

Violation of the rights and freedoms of the taxpayer;

Violation of the order of conduct accounting, compiling and providing accounting and tax reporting. (Some of the listed violations can take the form of administrative offenses; civil violations, criminal, crime. The composition of the violation can be classified depending on the object to which the illegal acts are directed, as follows:

1) concealment (understatement) of objects of taxation;

2) violation of the accounting procedure, non-accounting of the object; accounting in violation of the established procedure;

3) violation of the deadlines for the provision of documents; failure to provide or untimely established procedure;

4) violation of the tax payment procedure (delay, partial withholding, no withholding at all).

To apply measures tax liability 3-bases are necessary: normative, factual and procedural. First, a rule is needed that establishes obligations and sanctions for their non-fulfillment. Then the factual basis must arise - that is, tax law violation. If there is a norm and a tax offense, the tax service has the right to determine the penalty for a tax offense.

The conditions and procedure for applying tax liability must be considered in the context of the stage of tax proceedings.

Tax proceedings objectively consist of 4 stages:

1) tax investigation;

2) consideration of the case;

3) revision of the decision;

4) enforcement of the decision;

1) Tax investigation is a part of tax control, i.e. carried out during the audit of the taxpayer's activities.

That is, during the inspection, violations were found tax legislation, then this check and recognized by the tax investigation.

2) Consideration of the case should include preparation for consideration and hearing, analysis of the materials collected and the circumstances of the case, adoption of a decision and bringing the decision to the attention of the taxpayer;

3) The reconsideration stage is optional, i.e. optional. It is based on the freedom to appeal against the decision by the person against whom it was made and the obligation of the component bodies to consider this complaint. The review of the case consists in a new consideration by the body or court.

4) execution of the decision - the final stage of production. It consists in practical implementation decisions of the tax authorities.

The current tax legislation provides for cases when a taxpayer who violates it can be exempted from tax liability:

1) if he independently revealed these errors before the audit by the tax authority;

2) in in due course made corrections to financial statements and in tax calculations.

However, on overdue days the taxpayer is charged a penalty fee.

3(cont.) Penalty is recognized fixed size(cash) accrued on the amount of the overdue tax liability. The amount of penalty interest is accrued and paid regardless of the application of measures to enforce the tax obligation to pay off tax debts. Penalty is accrued for each day of delay in the fulfillment of the tax obligation, starting from the day following the day of the deadline for payment of tax and other payments to the budget, including the day of payment of tax in the amount of 2.5 times the official refinancing rate established by National Bank Republic of Kazakhstan for each day of delay on following formula: P=(N*R:100*2.5*D)/365

The tax liability of an individual terminates with death, and legal entities after complete liquidation or reorganization.

3. Tax liability is the application of fin. sanctions for the commission of a tax offense by authorized state bodies against taxpayers and persons facilitating the payment of taxes. The subjects of tax liability are taxpayers and other individuals, collectors of taxes to the budget. Tax liability applies to all taxpayers, regardless of form, departmental affiliation.

The measure of responsibility for committing a tax violation is a tax sanction, which is established in the form of fines and penalties.

When one person commits two or more tax violations a tax sanction is collected for each violation separately without repayment of a less severe sanction by a more severe one.

Fine- this is a measure of responsibility that a taxpayer bears in cash for violation of tax laws.

A change in the timing of the fulfillment of a tax obligation to pay taxes is recognized as the postponement of the deadline for paying taxes established by this Code (with the exception of taxes withheld at the source of payment and excises) on the basis of a justified application of the taxpayer to a later date, but not more than (according to the new code for 10 months ). Changing the deadlines for paying taxes does not stop the accrual of penalties for late payment of taxes.

Decisions on changing the terms (by fulfilling the tax obligation) for the payment of taxes received by the budget are taken by the authorized state body in agreement with the Ministry of Finance of the Republic of Kazakhstan.

The decision to change the deadlines for the payment of taxes received in local budgets, is accepted by the territorial tax authority at the place of registration of the taxpayer in agreement with the local executive authority.

In case of early payment of taxes, the decision to change the deadlines is terminated.

Fulfillment of a tax obligation not fulfilled in deadlines, can be provided in the following ways:

1) accrual of penalty interest on the unpaid amount of taxes;

2) providing debit transactions for banking operations;

3) restriction in the disposal of property on account of the tax debt of the taxpayer.

1) Penalty is charged to taxpayers and their banks, as well as organizations engaged in certain Banking services, for non-compliance with the order of debiting the amounts of taxes and other obligatory payments of payments, fines from bank accounts, as well as for the delay in transferring the amounts of taxes and payments debited from the bank accounts of taxpayers to the account of the Treasury of the Ministry of Finance of the Republic of Kazakhstan.

Penalty is not charged on the resulting amount of arrears of a taxpayer declared bankrupt or missing.

2) Suspension expense transactions on bank accounts of the taxpayer are made in the following cases:

a) failure by the taxpayer to submit tax returns within ten working days after the deadline for its submission;

b) non-payment of tax debt after 30 working days from the date of the established payment deadline;

c) non-admission of officials of a tax service body to a tax audit and examination of objects of taxation.

3) In cases of non-payment of tax debts within 10 working days from the date of issuance of an order to suspend debit transactions on bank accounts of a legal entity by production on account of tax debts.

The decision is made in relation to the property owned by the right of ownership. An inventory of property restricted in disposal shall be made with an indication of its price, determined on the basis of the taxpayer's accounting data.

The tax authority is obliged to hand over to the taxpayer the decision to restrict the disposal of property and one copy of the property inventory report. The decision is canceled by the tax authority no later than one business day after the taxpayer has paid off the amounts of tax debt.

4. Enforced collection of tax debts is carried out in the following order:

1) at the expense of money in bank accounts;

2) at the expense of cash;

3) at the expense of debtors;

4) through the sale of restricted property;

5) compulsory issue of declared shares.

In case of non-payment or incomplete payment of tax debts tax authorities have the right to forcibly recover from the bank accounts of taxpayers the amount of tax debt without the consent of the taxpayer. Collection is made on the basis of the collection order of the tax authority.

If there is no money in the bank account of the taxpayer, the bank returns the collection order to the relevant tax authority in the place with a notice of the closure of the bank account of the taxpayer, and further collection of tax debt is carried out at the expense of cash on the basis of a notice of the application of the enforcement measure. Cash withdrawn from the taxpayer, no later than one working day (from the date of withdrawal) is subject to surrender to the bank with subsequent transfer to the budget.

In the absence of money in bank accounts and cash of the taxpayer, the tax authority has the right to foreclose on the money in bank accounts of third parties indebted to the taxpayer (debtors). This penalty is valid if the tax authority has the right to levy a claim on money in bank accounts of third parties that have debts to the taxpayer (debits). This penalty is valid if an act is submitted to the tax authority - reconciliation of mutual settlements between the taxpayer and the debtor on the presence of a certain amount of the debtor's debt to the taxpayer. On the basis of the reconciliation act, the tax authority issues an order to the collection debtor's bank account to collect the amount of tax debt.

In cases where there is no money in the bank accounts of the taxpayer, cash and money in the accounts of his debtors, the tax authorities have the right to levy a penalty on the restriction of the disposal of the taxpayer's property without his consent. Realization of property restricted in disposal is carried out at a specialized auction. Proceeds from the sale of this property are credited to the budget.

In case of non-payment by legal entities, individual entrepreneurs of the amount of tax debt after the adoption of all the above-mentioned enforcement measures, the tax authorities have the right to apply to the court with statement of claim on compulsory issue of shares. In case of non-payment of debt and after the issue valuable papers the tax authority has the right to take measures to declare it bankrupt.

The tax liability of an individual ceases:

1) with death;

2) with the entry into force of a court decision declaring him dead;

Legal entities:

1) after complete liquidation;

2) after a complete reorganization through acquisition, merger, division and acquisition.

Questions for self-control:

1. The procedure and terms for the fulfillment of the tax obligation.

2. Types and composition of tax offenses.

3. The procedure for changing the deadlines for the fulfillment of a tax obligation.

4. The procedure for the return and offset of overpaid taxes.

5. Types of tax liability.

6. The procedure for calculating the penalty.

7. Application of penalties for non-fulfillment of tax obligations.

8. Measures for the enforcement of tax debts.

The obligation to pay a specific tax or fee is assigned to the taxpayer from the moment the circumstances established by the legislation on taxes and fees arise.

The taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by law.

The obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees. The taxpayer has the right to pay the tax or fee ahead of schedule. Tax can be paid if all elements of taxation are established.

The elements of taxation are:

Object of taxation: operations for the sale of goods (works, services), property, profit, income, cost of goods sold (works performed, services rendered), other economic grounds, with the presence of which the taxpayer has an obligation to pay tax.

Goods are any property sold or intended for sale. Work is an activity, the results of which have a material expression and can be realized.

A service is an activity, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity.

Property refers to the types of objects of civil rights related to property in accordance with the Civil Code of the Russian Federation.

The presence of an object of taxation is inextricably linked with the emergence of the obligation to pay tax. Each tax has an independent object of taxation;

The tax base. It is a cost, physical or other characteristic of the object of taxation. Taxpayers - organizations calculate the tax base at the end of each tax period on the basis of accounting data, tax accounting or on the basis of other documents confirming data on objects subject to taxation or related to taxation. If errors are found in the calculation of the tax base relating to previous reporting periods, in the current (reporting) tax period, tax liabilities are recalculated in relation to the period of errors.

Individual entrepreneurs calculate the tax base at the end of each tax period on the basis of data on accounting for income and expenses in business situations in the manner determined by the Ministry of Finance of the Russian Federation and the Ministry of Taxation of Russia.

Taxpayers - individuals calculate the tax base on the basis of data on taxable income received from organizations in established cases, as well as data on their own accounting of taxable income, carried out in an arbitrary form;

tax rate. This is the amount of tax charges per unit of measurement of the tax base. There are fixed, proportional, progressive and regressive tax rates.

Fixed rates are determined in absolute amount.

Proportional - these are rates that operate as a single percentage of the tax base.

Progressive rates are rates that increase as the tax base increases. Tax practice has developed two progression scales - simple and complex. When simple, the increased tax rate is applied to the entire tax base, when complex, the tax base is divided into parts (steps), each of which is subject to its own rate, i.e. increased rates are not applied to the entire object, but to the part that exceeds the previous step. A complex progression is more beneficial to the payer, since it provides him with a lower taxation than a simple one, when all income is subject to a high rate of taxation.

Regressive rates decrease as the tax base grows;

Taxable period. It is a period (usually calendar month, calendar quarter, calendar year), at the end of which the tax base is determined and the amount of tax is calculated in relation to certain tax. A tax period may consist of one or more reporting periods, following which advance payments are made.

When an organization is created after the beginning of the calendar year, the first tax period begins from the day of its creation. In this case, the day of creation is recognized as the day of its state registration. In case of liquidation (reorganization) before the end of the calendar year, the last tax period for the organization is the period from the beginning of this year until the day the liquidation (reorganization) is completed;

Procedure for calculating tax. These are methodological rules for calculating the amount of tax defined by law. The duty to calculate the tax rests with the taxpayer, tax agent or to the tax authority;

Procedure and terms of tax payment. When taxing, there are three methods of levying taxes, i.e. accounting and evaluation of the tax object:

1) cadastral;

3) at the source of payment.

The first method involves the use of a cadastre - a register (inventory) containing a list of information on the assessment and average profitability of the object of taxation (land, buildings, structures), which are used in calculating the corresponding tax.

The declaration method provides for the submission by the taxpayer to the tax authorities of an official application - a declaration on the size of the tax base. The tax return usually includes data on the income and expenses of the payer, sources of income, tax incentives ah and takeout.

The third method involves the calculation and withdrawal from the source of formation of the object of taxation. It is usually used by the accounting department of an enterprise or by an authority that pays income or is legally entitled to do so.

The tax can be paid in cash or without cash both by a single payment of the entire amount, and by advance payments or otherwise within the time limits established by law in relation to each tax. The Constitutional Court of the Russian Federation, by Resolution No. 24-P of October 12, 1998, recognized that the constitutional obligation of a taxpayer - a legal entity to pay tax is considered fulfilled on the day the funds are debited from his current account in a credit institution if there is a sufficient cash balance on this account, regardless of the time of crediting the amounts to the corresponding budget account.

In exceptional cases, the deadline for payment of a tax or fee may be postponed. Changes in tax payment terms are made in the form of deferrals, installment plans, tax credits and investment tax credits. The decision to change the terms of payment is made by the financial authorities, customs authorities, authorities of the relevant off-budget funds.

A tax deferral or installment plan is a change in the deadline for tax payment in the presence of at least one of the following grounds:

1) causing damage to a person as a result of natural disasters, technological disasters or other force majeure circumstances;

2) delays in financing the person from the budget or payment for the state order he has fulfilled;

3) threats of bankruptcy of a person in the event of a lump-sum payment of tax by him;

4) if the property status of an individual excludes the possibility of a one-time tax payment;

5) if the production and sale of goods, works or services is seasonal.

A deferment or installment plan is granted for a period of 1 to 6 months with a one-time or staged payment by the taxpayer of the amount of the debt.

If a deferral or installment plan is granted on the basis of 1 and 2 points, then no interest is accrued on the amount of tax debt, and if on the basis of 3, 4 and 5 points, then interest is accrued based on a rate equal to 1/2 of the rate of the Central Bank of the Russian Federation.

A tax credit is a change in the deadline for paying a tax or several taxes for a period of 3 months to 1 year, both with or without interest, depending on the grounds for granting a tax credit.

Investment tax credit is such a change in the tax payment deadline, in which the organization, on the basis of cases provided for by law, is given the opportunity to reduce its tax payments within a certain period and within certain limits, followed by a phased payment of the loan amount and accrued interest.

Changing the deadline for payment of a tax (fee) is not allowed in the following cases:

1) a criminal case has been initiated against the taxpayer;

2) proceedings are being conducted in a case of a tax offense or in a case of an administrative offense related to the violation of tax laws;

3) yes sufficient grounds believe that the taxpayer will take advantage of such a change to hide money or property from taxation.

If the tax (fee) is not paid on time, the taxpayer shall be notified of the unpaid amount of tax, as well as of the obligation to pay the unpaid amount of tax and penalty within the established time limit. The demand for the payment of tax is sent by the tax authority at the place of registration of the taxpayer if he has an arrears.

Such requests must be sent to the taxpayer no later than 3 months after the deadline for paying the tax. If a taxpayer or his representative evades receiving a demand for the payment of taxes, the said demand shall be deemed received after six days from the date of sending a registered letter, regardless of whether the taxpayer (his representative) actually received the demand sent by registered mail.

A special place in the elements of taxation is occupied by tax incentives, since the tax can be considered established even in the absence of tax incentives. Benefits for taxes and fees are recognized as the advantages provided to certain categories of taxpayers and payers of fees in comparison with other taxpayers or payers of fees, including the possibility not to pay a tax or fee or pay them in a smaller amount.

The following types of benefits are provided for taxes and fees:

Non-taxable minimum object of tax, i.e. the minimum part of the object is excluded from taxation;

Withdrawal from taxation of certain elements of the object of taxation;

Tax exemption for certain categories of payers;

Decrease in tax rates;

Targeted tax incentives.

The fulfillment of the obligation to pay taxes and fees can be ensured in the following ways:

Pledge of property. Pledge of property is formalized by an agreement between the tax authority and the mortgagor. The pledger can be either the taxpayer himself or the payer of the fee, or a third party;

Guarantee. The guarantor assumes an obligation to the tax authorities to fulfill in full the taxpayer's obligation to pay taxes and penalties. A guarantee is formalized by an agreement between the tax authority and the guarantor. If the taxpayer fails to fulfill the obligation to pay taxes secured by a surety, the surety and the taxpayer shall be jointly and severally liable. Enforced collection of tax and penalties from the guarantor is carried out by the tax authority in a judicial proceeding;

Penya. Penalty is the amount of money that a taxpayer, payer of fees or a tax agent must pay if they pay the due amounts of taxes and fees at a later date than established by law. The amount of the relevant penalties shall be paid in addition to the amounts of tax or fee due and regardless of the application of other measures to ensure the fulfillment of the obligation to pay the tax or fee, as well as measures of liability for violation of tax legislation. The fine is accrued for each calendar day of delay in fulfilling the obligation to pay a tax or fee, starting from the day following the day of payment of the tax and fee established by the legislation on taxes and fees. The penalty interest rate is assumed to be one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation;

Suspension of operations on the accounts of a taxpayer - an organization, a tax agent - an organization, a fee payer - an organization and a taxpayer - an individual entrepreneur. Suspension of operations on a bank account means the termination by the bank of all debit operations on this account. This restriction does not apply to payments, the order of execution of which, in accordance with the civil legislation of the Russian Federation, precedes the fulfillment of the obligation to pay taxes (for example, payments by a court decision have an earlier priority).

Termination of the obligation to pay a tax (fee) arises:

1) upon payment of a tax (duty) by a taxpayer;

2) in case of cancellation of the tax (fee) in the absence of debt from the payer for its payment;

3) upon exemption from payment of tax (duty) upon entry into force of the relevant law;

4) in connection with the death of a taxpayer or with the recognition of him as deceased in accordance with the procedure established by the civil legislation of the Russian Federation or the liquidation of a legal entity.

A liquidated organization has special procedures for the fulfillment of a tax obligation. These obligations are fulfilled by the liquidation commission at the expense of the liquidated organization's funds, including those received from the sale of its property. If the funds of the liquidated organization, including those received from the sale of its property, are not sufficient to fulfill in full the obligation to pay taxes and fees, penalties and fines due, the remaining debt must be repaid by the founders (participants) of the said organization within the limits and in the manner established the legislation of the Russian Federation. The sequence of fulfillment of obligations to pay taxes and fees upon liquidation of an organization among settlements with other creditors of such an organization is determined by the civil legislation of the Russian Federation.

An organization in liquidation may also have overpaid taxes, fees, penalties, and fines. These amounts shall be credited against the debt of the liquidated organization for taxes, dues (penalties, fines) by the tax authority no later than one month from the date of filing the application of the taxpayer - organization. The amount of overpaid taxes and fees (penalties, fines) subject to offset is distributed among the budgets and (or) extrabudgetary funds in proportion to the total debt on taxes and fees (penalties, fines) to the relevant budgets and (or) off-budget funds.

If the liquidated organization has no debt to fulfill the obligation to pay taxes and fees, as well as to pay penalties and fines, the amount of taxes and fees (penalties, fines) overpaid by this organization is subject to return to this organization no later than one month from the date of filing the application of the taxpayer - organization .

Questions for self-control

1. Without which elements of taxation a tax cannot be established?

2. What element of taxation is a cost, physical or other characteristic of the object of taxation?

3. What government bodies have the right to decide on changing the timing of tax payments?

4. Under what conditions is a tax deferral not granted?

5. In what ways can the fulfillment of the tax obligation be ensured?

6. When does tax termination occur?

Chibinev V.M., Head of the Department of State and Administrative Law of St. Petersburg State Institute of Economics, Doctor of Law, Professor.

A tax obligation is a constitutional obligation of citizens (individuals) to pay legally established taxes and fees in a timely manner and in full in favor of the state and municipalities.

The Tax Code of the Russian Federation makes it possible to single out several basic rules for the fulfillment of tax obligations.

The taxpayer fulfills the tax obligation voluntarily (Article 52). We can talk about the voluntariness of paying taxes as a fundamental principle of taxation, which implies the consent of citizens to a tax exemption, since it is carried out in the general interest. Enforcement of a tax obligation is only a way to ensure the voluntary payment of tax and can be implemented only after the taxpayer has not used the method of voluntary payment of taxes. Otherwise, if we proceed from coercion in the payment of taxes, taxation will be equated to the confiscation of property of citizens in the absence of their fault.
The taxpayer fulfills the tax obligation independently, unless otherwise provided by tax legislation (clause 1, article 45). This norm contains the principle of personal tax payment, which implies a conscious manifestation of the will of the taxpayer. An exception is the use of tax agents in the process of paying taxes, however, even in this case, the taxpayer is not completely eliminated from the process of paying taxes.
The tax obligation is fulfilled in the currency Russian Federation(Section 3, Article 45). This rule is in line with Art. 140 of the Civil Code of the Russian Federation, which defines the ruble as legal tender on the territory of the Russian Federation. Cases of using foreign currency on the territory of the Russian Federation are provided for in paragraph 3 of Art. 45 of the Tax Code of the Russian Federation for foreign organizations and individuals who are not tax residents of the Russian Federation. Payments can be made to foreign currency and in other cases, for example, customs clearance fees can be paid both in rubles and in foreign currency (Article 114 of the Labor Code of the Russian Federation)<1>.

<1>Kustova M.V., Nogina O.A., Sheveleva N.A. Russian tax law. a common part: Textbook / Ans. ed. ON. Shevelev. M.: Jurist, 2001. S. 172 - 173.

The tax obligation is fulfilled within the time limits established by the tax legislation (clause 2, article 58).
The tax is paid in full (in the entire amount) or in a different order (clause 1, article 58). At present, a different order partial payment- advance payments (income tax on individuals, income tax, etc.) or payment of tax in installments in accordance with the rules of Chapter 9 of the Tax Code of the Russian Federation.
Payment of taxes can be carried out both in cash and in a non-cash form (clause 3, article 58).

legally established;
correctly calculated;
in a certain amount;
in accordance with established procedures and deadlines.

The tax is considered established only if there is a legal fact of certainty of the tax obligation, i.e. when the taxpayers and the following obligatory elements of taxation are determined in aggregate:

object of taxation;
the tax base;
taxable period;
tax stack;
the procedure for calculating the tax;
procedure and terms of tax payment.

When setting fees, the following must be defined as mandatory elements:

fee payers;
object of taxation;
taxable base;
collection rate.

If the legislator has not established or determined at least one of the listed mandatory elements of taxation, the tax should not be considered established and the obligation to pay it does not arise.

The tax obligation to pay a specific tax or fee is established by an act of legislation on taxes and fees, containing tax and legal norms governing the procedure for collecting this tax. The fulfillment of such a duty is ensured by the force of state coercion carried out by the tax authorities, and in necessary cases- and internal affairs bodies. For failure to fulfill the obligation in question, the taxpayer is liable - up to and including criminal liability.

The term "tax liability" is quite common in the specialized literature. From the point of view of the theory of law, taxation is carried out through the emergence and fulfillment of tax obligations. However tax code uses exclusively the concept of "duty of the taxpayer". Meanwhile, it is quite obvious that the concepts of "obligation" and "obligation", although closely related to each other, are not identical: an obligation is wider than an obligation, or rather, an obligation is an element of an obligation.

In addition, the obligation always has its participants. It is clear that one of the participants in the tax liability is the taxpayer. The question arises: who is the second party to the obligation? The second participant in the tax obligation is the state as the subject that established the tax and is the recipient of the amount of the tax payment.

It is this circumstance that is the reason that the tax legislation in every possible way avoids the organization of taxation through the category of tax liability. Defining the entire structure of taxation through the concept of "duty", without even indicating to whom this duty exists, the state, firstly, as it were, is eliminated from responsibility for a poorly organized and predatory in its essence tax system masking its true role in taxation. Secondly, it allows you to depersonalize the state, turning it into some kind of omnipotent and powerful deity, standing outside the law and above it, which can do everything, but is not responsible for anything. It is characteristic that if we ask ourselves on what basis, in fact, the state establishes taxes and whether it has the right to do so at all, then we will not find an answer to this question in any legal act, including the Constitution. We will not find a norm like "the state has the right to taxes" anywhere. It is believed that this right is something taken for granted, which, like a religious dogma, is out of discussion and does not require any legal support. The very idea that the right of the state to establish a tax can be called into question seems absurd, and we, brought up in the spirit of uncomplaining obedience to any (legal or non-legal) state regulations, even the very perception of this idea is inaccessible. And by the way, in the United States, in order for the state to have the right to establish a tax on income, it took the adoption of a special amendment to the Constitution (XVI), ratified on February 3, 1913, i.e. almost 140 years after the founding of the United States. Before this tax the state had no right to establish at all. Characteristically, the US Constitution also defines the purposes of taxation: "To pay debts and ensure the common defense and general welfare United States" (section 8). That is why Americans have the right to exclaim with self-respect, referring to the state: "What are our taxes spent on ?!"

Thus, for the ideological and political justification of the omnipotence of the state in the field of taxation, it is more profitable for it to use the category of "tax obligation", which concerned only one side of the tax relationship - the taxpayer. The other side - the state - is, as it were, in a legal vacuum, having an indefinite (and therefore unlimited) set of rights and not incurring any obligations. It is also characteristic that, in accordance with the general theory of obligation, if each of the parties to an obligation bears an obligation in favor of the other party, it is considered the debtor of the other party in what it is obliged to do in its favor, and at the same time its creditor in that it has the right from demand her. Based on this, if the taxpayer acts as an obligated person (debtor) to the state (for example, in payment of tax), then the state also acts as an obligated person to the taxpayer (for example, in the event of a refund of excessively collected tax, unreasonable tax liability, etc.) . Responsibility of the state to taxpayers for the rational and effective use there is no money collected through taxes at all. Thus, the state never wants to be indebted to anything and be responsible for its actions like any mortal. That is why the tax legislation not only does not provide for the structure of the tax liability, but also does not include the state in the composition of the tax legal relationship as the subject of this legal relationship.

If we argue on the merits, then the concept of "tax obligation" fully corresponds to the essence of taxation. Expressing a tax relationship, the subjects of which are the state and a specific taxpayer, it introduces the state into the composition of the tax legal relationship as its subject.

The introduction of the institution of obligation in the sphere of taxation is not only a solution to a legal and technical problem - the creation of a mechanism that corresponds to both the legal and economic essence of tax relations, but also solves to a certain extent a political problem: embedding the state in the legal field, turning it into a subject of law, endowed not only with rights, but also with legal obligations. State permissiveness and unlimited omnipotence, the state's rights that are not defined by law itself, is changing to a civilized tax relationship in which the state acts only as one of its subjects. One of the initial drafts of the Tax Code of the Russian Federation contained a special chapter "Tax obligation and its enforcement". However, this chapter was not included in the final version of the Tax Code. By the way, the rule of law, which allegedly is the Russian Federation in accordance with Art. 1 of the Constitution is precisely characterized by the fact that the state itself acts on the basis of law.

The institution of tax liability is almost not developed by tax science.

Usually in the literature, the tax liability is linked to the taxpayer's obligation to pay the tax. Meanwhile, the tax liability, being an expression of a material tax relationship, is associated with a wider range of duties of the taxpayer. In addition, in the tax obligation, not only the taxpayer acts as a debtor to the state, but also the state at certain points acts (more precisely, it should act) as the debtor of the taxpayer.

Describing the tax liability, some authors<2>note the following.

<2>Porokhov E.V. Theory of tax liabilities. Almaty, 2001. S. 82 - 86.

The tax relation is most often monetary (that is, it arises and exists in relation to the money owed to the state from taxes).
The authorized person in a tax obligation is always the state, and the state in this obligation is always opposed by specific obligated persons - tax subjects or other obligated persons who bear the burden of paying taxes and from whom the state in certain time may require action to be taken in its favor.
The tax obligation is always characterized by the commission of active actions by obligated persons, as a result of which funds are transferred to the state revenue.
The tax liability is always unilateral in nature, since the subject of the tax bears only the obligation to take active actions and does not have the right to require the state to take any reciprocal active actions in relation to itself, and the state has the right to demand that the subject of the tax take active actions in its favor and does not bear no obligations to him.
The tax liability is public law in nature; the tax obligation arises on the initiative of only one party - the state, and this does not require any consent of the other party - the subject of the tax, therefore, the tax obligation has the character of one-sided power.
The tax liability is urgent, i.e. arises and exists for a certain period of time and must be executed no later than the date determined by the tax law.
The tax liability belongs to the category of recurring liabilities.

According to the types of tax relations (material and organizational), tax liabilities are divided into material and organizational. It should be noted that if the topic of tax liabilities is raised in the literature, then material tax relations are always meant, the subject of which is the taxpayer and the content of which is the obligation of this subject to pay tax. Meanwhile, from a theoretical point of view, the organizational tax relation also expresses the tax liability. For example, the relationship between the tax agent and the state, being an organizational tax relationship, expresses a tax obligation, the content of which is the duty of the tax agent to withhold tax from the taxpayer and to transfer this amount to the state's income.

Organizational tax relations are auxiliary to the main material tax relations. Still they play important role in taxation and in ensuring the collection of taxes. like material tax relations organizational tax relations are of a binding nature, since their content is the obligation of one subject to perform actions in favor of another subject, which is the state as a whole or an authorized body of the state. Such organizational tax relations that exist between the state and tax agents who are obliged to calculate the tax on the income paid to the taxpayer, deduct and transfer the amount of tax to the state's income are of an explicitly binding nature. The same can be noted about the organizational relations that exist between the state and banks, which are obliged to transfer the amount of tax payment to the state in accordance with the payment order of the taxpayer in accordance with the payment order of the taxpayer.

A tax liability represented by a material tax relation is always specific, i.e. the bearer of the obligation is always a personified legal or natural person having the legal status of a taxpayer. However, the organizational tax liability is also specific.

The material tax obligation is based on the legal act that established the tax, however, the direct cause of its occurrence is a legal fact in the form of the possession of a taxable object by a certain person, due to which this person acquires the status of a taxpayer.

The content of the tax obligation, the procedure and terms of its execution are determined directly by the tax legislation. The exception is cases where some elements of the tax liability may be determined by a tax treaty. The tax legislation of the Russian Federation knows two forms of such an agreement: a tax credit and an investment tax credit.

The elements of the tax obligation, forming its composition, are:

subjects of obligation;
object of obligation;
the content of the obligation.

The subjects (parties) of a material tax obligation are, on the one hand, the state and, on the other hand, the taxpayer.

The state acts as an authorized subject, the taxpayer - as an obligated subject.

The peculiarity of the material tax obligation is the fact that the state is simultaneously the subject that established the tax by adopting the relevant legal act, and the subject that has the right to receive the amount of tax as a party to the tax obligation.

In the doctrine of obligations, such a figure is usually mentioned as a participant in the obligation.

The participants of the tax liability are the parties (the state and the taxpayer) and third parties.

Tax representatives of the state (tax authorities, tax agents, tax collectors), tax representatives (legal and authorized) of the taxpayer, tax intermediaries in the form of banks and other persons can act as a third party in the obligation.

Thus, the parties to a tax obligation are always its participants, but not all participants are a party to this obligation, i.e. the concept of "tax liability participant" is broader than the concept of "tax liability party".

Unlike a civil law obligation, which does not create obligations for third parties, a tax obligation of this kind creates obligations in many cases.

Thus, the payment of income creates an obligation for the organization or individual entrepreneur, which are the source of payment of income, act as a tax agent, i.e. they must calculate the tax, withhold it and transfer it to the state. A bank serving a taxpayer shall be liable to the state under public law to transfer the amount of tax in accordance with the order of the taxpayer. Legal representatives of certain categories of incompetent taxpayers are required to pay tax in favor of their representatives, etc.

Unlike civil legislation, which allows several persons to participate in an obligation as a party (creditor or debtor) at the same time, tax legislation treats this issue much more strictly, building a tax obligation always accurately personified: a specific taxpayer in the singular acts as an obligated party to a material tax obligation ( i.e. a certain legal or natural person). Because of this, a tax liability cannot exist in the form of a shared, joint and several or subsidiary obligation, which is typical of many types of civil law obligations.

The object of the tax liability are those actions that must be performed by the obligated subject. Thus, the taxpayer must: get registered with the tax authorities; keep records of objects of taxation; calculate taxes; prepare tax returns; submit it to the tax authorities; pay taxes. The tax agent is obliged to calculate, withhold and transfer the tax to the state revenue. The bank must transfer the tax within the time limits established by the Tax Code to the appropriate budget or other state account, etc.

The subject of a material tax liability is the subject of the tax payment itself. With the monetary form of tax, a certain amount of money will act as the subject of obligation, with taxes in kind - property in the form of things defined by generic characteristics. The subject of the organizational tax liability are those actions that the obligated entity is obliged to perform, i.e. in this case, the subject of the obligation coincides with its object.

The object of material tax obligation should not be confused (or identified) with the object of tax. If the object of a material tax liability is certain actions of the taxpayer, the main of which is the transfer of the subject of the tax payment to the state, i.e. the payment of the tax itself, then the object of the tax is a certain legal fact, with which the law causes the emergence of a tax obligation. So, with income tax, the object of the tax liability is the actions of the taxpayer to transfer a certain amount of money to the state, and the object income tax is such a legal fact as the presence taxable income received by this taxpayer.

Equally, the subject of material tax liability should not be confused with the subject of tax. The subject of the tax liability is that the taxpayer is obliged to transfer to the state (money or things); the subject of the tax is that for which the taxpayer must pay tax. Thus, in the case of a tax on vehicles, the subject of the tax liability will be tax payment - certain amount cash (a certain amount of money), subject to transfer to the state, and the subject of tax - itself vehicle, which has certain physical parameters (power or engine size, number of seats, etc.).

The content of the material tax obligation is the right of the state to demand the transfer of the object of tax payment into its ownership (the right to claim the state) and the obligation of the taxpayer to carry out this transfer (the debt of the taxpayer), as well as to fulfill other obligations stipulated by the tax legislation in relation to this type of tax.

It should be borne in mind that each type of tax gives rise to its own tax liability. Therefore, a person (legal or natural), acting as a payer of several taxes, is the subject of several tax liabilities.

The scope of the taxpayer's obligations depends on the method of fulfillment of the tax obligation. So, when paying tax on personal income, paid by withholding the amount of tax at the source of payment of income, the taxpayer's obligations are minimized - all the main actions related to the fulfillment of the tax obligation (accounting for the object of taxation, calculating the tax base, applying the tax rate, determining the amount tax, its transfer to the state revenue), is carried out by a tax agent. In the case of salary taxes, the accounting of the object of taxation, the determination of the tax base and the calculation of the amount of tax are carried out by the tax authorities of the state. It is the duty of the taxpayer to pay the tax within the established time limits on the basis of a tax notice sent to the taxpayer by the tax authorities. The content of the tax liability arising from the payment, for example, of corporate income tax, is much broader. Here, the taxpayer must independently carry out the entire technological complex of measures related to the calculation, declaration and payment of tax.

The legal basis of any tax obligation is the Tax Code, as well as other regulatory legal acts dedicated this species tax.

However, the basis for the emergence of a tax liability is a legal fact in the form of the possession by a certain person of an object of taxation, as a result of which this person, in accordance with the requirements of tax legislation, acquires the status of a taxpayer.

The fulfillment of a tax obligation consists in the commission by an obligated subject (in material tax terms - a taxpayer) of those actions that constitute the obligation of this subject.

The tax obligation must be fulfilled:

the proper subject;
in full;
within the terms established by the tax law;
in a place determined by the tax law;
in the manner specified by the tax law;
in the form prescribed by tax law.

As already noted, the Tax Code of the Russian Federation establishes that the fulfillment of a tax obligation is carried out by the taxpayer independently, unless otherwise established by this Code. Thus, according to general rule the subject of fulfillment of material tax obligations is the taxpayer himself. However, it should be borne in mind that in some ways of fulfilling a tax obligation, it is fully or partially fulfilled by other (third) parties. Thus, the taxpayer has the right to impose the fulfillment of the tax obligation on his representative, who will act as the executor of this obligation, which, however, does not relieve the taxpayer of liability for non-fulfillment, incomplete or untimely fulfillment of this obligation.

In fulfillment of a material tax obligation, a taxpayer or another person responsible for the fulfillment of this obligation performs the following actions:

gets registered with the tax authority;
keeps records of objects of taxation and objects related to taxation;
calculates, based on the objects of taxation, the tax base and the tax rate, the amount of taxes payable;
draws up tax reports and submits them to the tax authorities in accordance with the established procedure and terms;
pays the calculated and accrued amounts of taxes in the manner and terms established by the tax legislation.

The tax obligation or its individual elements must be fulfilled within the time limits established by the tax legislation.

This usually concerns the timing of the submission of tax returns and the timing of payment of the tax itself. Thus, the declaration on personal income tax is submitted to the tax authority at the place of registration no later than April 30 of the year following the expired tax period. The tax itself must be paid no later than July 15.

The Tax Code establishes that the taxpayer has the right to fulfill the tax obligation ahead of schedule.

Deadlines for the fulfillment of tax obligations for the payment of tax may be changed.

A change in the deadline for the fulfillment of a tax obligation to pay taxes is recognized as the postponement of the tax payment deadline established by tax legislation to a later date. Changing the deadline for tax payment does not cancel the existing one and does not create a new obligation to pay tax.

The moment of fulfillment of the obligation is important, since it is from this moment that the taxpayer is considered a person who has fulfilled his tax obligations that he owed to the state in the relevant tax period.

From a theoretical point of view, the tax obligation will be fulfilled when the tax payment is transferred by the taxpayer to the state. However, it is quite obvious that the taxpayer, when paying the tax, does not carry a bag of money to some state storeroom, where, having transferred the money to the storekeeper (receiver of money), he receives some kind of receipt from him, which will confirm the fact of fulfillment of the tax obligation. With non-cash transfers, money can pass through several participants. So, when withholding tax at the source of income payment, the chain looks like in the following way: taxpayer - the source of income payment, acting as a tax agent of the state, - the bank that conducts money transfer, - the state treasury - the corresponding budget. And this chain can be interrupted anywhere, and not through the fault of the taxpayer. A natural question arises at what stage of the transfer of money the taxpayer is considered to have fulfilled his tax obligation.

On this occasion, the Tax Code provides that the obligation to pay tax in a non-cash form is considered fulfilled by the taxpayer from the moment an instruction is presented to the bank for the payment of the relevant tax, if there is sufficient cash balance on the taxpayer's account, and when paying tax in cash in cash- from the moment of entering sum of money on account of payment of tax to a bank or cash desk of an authority local government or communication organization.

If the obligation to calculate and withhold tax is assigned to the tax agent, then the taxpayer's obligation to pay tax is considered fulfilled from the moment the tax agent withholds the tax (clause 2, article 45 of the Tax Code).

The legal significance of the moment of fulfillment of the obligation lies primarily in the fact that from this moment the state is deprived of the right to present any claims against the taxpayer, even if the money for one reason or another has not been received by the state. So, if the bank did not transfer the amount of the tax payment to the state (due, for example, to the absence of money from this bank), then the responsibility for the non-receipt of money to the state will be borne not by the taxpayer, but by the bank. The taxpayer himself is recognized as having fulfilled his tax obligation. The same can be noted in relation to the situation when the tax agent withheld the tax, but did not transfer its amount to the account of the relevant budget.

The place of fulfillment of the tax obligation is the place of fulfillment of the corresponding tax obligation provided for by the tax legislation. For example, the payment of property tax by an individual must be made at the location of the taxable property, and not, for example, at the place of residence of the taxpayer.

The tax liability is a set of obligations of the taxpayer (the obligation to register for tax purposes, the obligation to keep records of the object of taxation, the obligation to submit tax reports, the obligation, which is the main one, to pay tax, etc.). As a rule, for each such obligation, tax legislation provides for one or another place of its execution. For example, the taxpayer-organization must register with the tax at the place of its registration as a legal entity.

In principle, the place of fulfillment of the tax obligation in terms of paying the tax is usually determined from the following criteria: the location of the taxpayer; places tax registration taxpayer; location of the subject of taxation; place of calculation of the amount of tax; the location of the source of payment of income obliged to withhold tax; the location of the tax collector.

The procedure for the fulfillment of a tax obligation is the rules provided for by the tax legislation for taking actions for the implementation by the obligated person of this tax obligation, his obligations arising from it.

The procedure for fulfilling a tax obligation depends on the type of obligation in question (keeping records of the object of taxation, calculating the amount of tax, submitting tax reports, paying taxes, etc.). Naturally, each obligation stipulated by a tax obligation is fulfilled in its own ways and methods, which are determined by tax legislation (in some cases, by a tax treaty).

Establishing the procedure for fulfilling a tax obligation allows the state to organize the taxation procedure, give it an orderly form, and ensure control over the completeness and timeliness of the fulfillment of certain obligations arising from the tax obligation.

Tax is paid by taxpayers in cash or non-cash form.

In case of non-fulfillment or improper fulfillment of a material tax obligation, which is primarily expressed in non-payment, incomplete or late payment tax, the state has two problems: first, the problem of bringing a faulty taxpayer or other person responsible for the fulfillment of a tax obligation (for example, a tax agent, a bank) to liability; secondly, the problem is how to achieve the proper fulfillment of this obligation.

Since the fulfillment of a tax obligation is carefully regulated by law, non-fulfillment (improper fulfillment) of an obligation usually expresses a violation of tax legislation, i.e. takes the form of a tax offense.

It is quite obvious that the state is primarily concerned about the material component of the tax obligation - the payment of the tax itself, which, in fact, crowns the fulfillment of this obligation.

The Tax Code provides for the following ways to ensure the fulfillment of the tax obligation to pay tax:

pledge of property;

guarantee;

accrual of interest on unpaid taxes;

suspension of debit transactions on bank accounts;

seizure of the property of the taxpayer.

A number of authors also designate such an element of a tax obligation as its form: “Tax obligations have two forms - financial and economic obligations and legal obligations from causing harm. The first are based on lawful activity, are regulated by tax laws and follow from general principle relationship between economic entities of the market and the state: the recipient of income pays. The latter arise from illegal acts and are regulated not only by tax legislation, but also by administrative, criminal, and civil legislation.<3>.

<3>

In this regard, the following can be noted.

First, it is unlikely that the named forms (financial-economic and legal obligations) are forms at all in the exact meaning of this term. Still, the form is always understood as the external expression of the phenomenon. Recall that form is a way of existence and expression of content, which is a certain ordered set of elements and processes that form an object or phenomenon.<4>. Therefore, most likely, in this case, we should talk not about the forms of the tax obligation, but about its types.

<4>Philosophical Dictionary. 5th ed. M., 1987. S. 434.

Secondly, the tax obligation is a legal relationship of obligations. The tax law has its own economic content in the form of an economic tax relationship. Otherwise, the social tax relation in its form is a legal relation, in content - an economic one. The same can be noted about the tax obligation, which has a legal form and economic content. Therefore, if in this case we use such categories as "financial and economic obligation" and "legal obligation", then we can most likely talk about the content and form of a material tax relationship, where the content is financial and economic, and the form is legal. . In other words, any material tax obligation is always both financial, economic and legal, and it is generally unreasonable to subdivide this obligation into such "forms" (or even "types").

Thirdly, it is not entirely clear what a "tax liability from causing damage" is, due to the ambiguity of who suffered the damage in this case: the taxpayer (by charging him excess tax) or to the state (through tax evasion). Most likely, we are talking about the second option, because neither tax theory, nor tax law has not yet given rise to the construction of a tax obligation in which the state would act as a debtor - it is always referred to as a ruling subject. Therefore, the damage, obviously, is understood as the amount of unpaid tax. But here we have the following situation. If the tax obligation turned out to be unfulfilled (i.e. the tax was not paid) or performed improperly (the tax was not paid in full, in violation of the deadlines or the established procedure, etc.), which caused certain material damage to the state, then the mechanism of consequences of non-fulfillment of this obligation. This mechanism includes two types of consequences:

forcing a faulty taxpayer to properly perform his duties, which will be expressed in the collection of arrears and penalties;

bringing the taxpayer to the established legal liability (financial, legal, administrative or criminal), if the fact of non-fulfillment of the tax obligation forms the composition of the corresponding tax offense.

The first type of consequences - "compulsion to fulfill an obligation" - does not give rise to any new tax legal relationship (and, accordingly, another tax obligation). All this coercion is implemented within the existing tax legal relationship. Therefore, no other and new tax liability referred to as "legal liability from infliction of harm"<5>, does not occur at all in this situation.

<5>Petrova G.V. Tax law: Textbook for universities. M.: INFRA-M-NORMA, 1997. S. 194.

When a faulty taxpayer is brought to legal responsibility, a new legal relationship really arises - a legal relationship to bring the taxpayer to legal liability. As a result, at this moment, two legal relations can exist between the state and the taxpayer:

material tax relation, which is a tax liability;
attitude to bring the faulty taxpayer to legal liability.

Although the legal fact that underlies the emergence of this relationship is the taxpayer's improper fulfillment of a tax obligation, however, depending on the nature of the act and the type of responsibility (i.e., the type of punishment), this relationship can be either financial-legal or administrative-legal, or criminal law. The concept of "obligation", despite its breadth, is never applied to relations related to bringing the offender to legal responsibility (i.e., punishing the guilty person), since such relations are not binding.

Thus, if the tax is not paid, no special "tax liability in the form of a legal liability from causing damage" arises.

Along the way, let's pay attention to the doubtfulness of using the civil law term "damage" in a situation where there is a non-payment of tax. The fact is that in civil law, the concept of "damage" (more precisely, "actual damage") refers to the costs that a person whose right has been violated has made or should have made to restore the violated right (loss or damage to his property). If tax is not paid, there will be no loss or damage state property, if only due to the fact that in case of non-payment of the tax, there was no increase in state property. The tax not received by the state does not fit into the category of "lost profits" (the second component of the civil law category "losses"). Lost profit is the loss of income that a person would have received if normal conditions civil circulation if his rights had not been violated. Although taxes, of course, constitute government revenue (and unpaid revenue means revenue not received by the government), the term “lost profits” is not applicable to this situation, since it is a category related to civil circulation and entrepreneurial activity, while taxation goes beyond civil turnover and, of course, cannot be entrepreneurship. Note that the tax law for unpaid tax knows a special term - "arrears".

Tax and tax relations always exist, as noted above, only in legal form. Only in legal form there is a tax obligation, which expresses a tax legal relationship. Unlike, for example, the distribution of profits, which, due to its objective economic laws, will take place under all circumstances, regardless of whether the state regulates this process or not, the regulation of tax liabilities, like the establishment of a tax itself, will always occur through the issuance of state of the relevant legal norms. Just as there can be no "extra-legal" taxes, there cannot be "extra-legal" tax liabilities. Another thing is that the material tax relation (material tax obligation) always has an economic "stuffing", since in itself it is economic attitude. And the state can regulate this attitude (as well as form it) only by legal means. Regulate the tax relationship by some "extra-legal" economic methods impossible.

At the same time, one cannot agree with the opinion that civil legislation takes part in the regulation of tax liabilities. Each branch of legislation, being an expression of the corresponding branch of law, has its own subject legal regulation, which, in fact, acts as a criterion that makes it possible to distinguish between these branches of law and build a system of branches of legislation. Economic tax relations, which are the subject of tax law, and commodity-money relations, which are the subject civil law, - qualitatively heterogeneous property relations: the first ones arise at the stage of distribution and are non-equivalent; the latter arise at the exchange stage and are equivalent. Hence, tax legal relations are characterized by inequality, participation of the state in them as a ruling subject, suppression of the will and restriction of the property independence of another subject - the taxpayer. Civil legal relations are based on equality, autonomy of will and property independence of subjects, even if one of them is the state.

There is also no civil liability for violations of tax legislation, expressed in non-fulfillment of tax obligations. The establishment of liability by tax legislation in the form of, for example, penalties or fines is not at all evidence that these sanctions are measures of civil liability. These sanctions, being similar in name and method of their calculation with civil law, are in fact measures of financial and legal responsibility. In principle, each branch of law has its own defense mechanism and applies its own specific measures of legal liability. Thus, civil law applies measures of civil liability to ensure the fulfillment of the prescriptions of its legal norms, financial (including tax) law - measures of financial and legal responsibility, labor law - measures of disciplinary and material liability, acting as elements of a protective mechanism used by this industry. rights, etc. At the same time, there is no imposition of one branch of law on another: civil law sanctions are implemented within the framework of civil legal relations and are applied to protect them, financial and legal sanctions are applied within and to protect financial (including tax) legal relations, etc. The exception is administrative and criminal liability, which are used to protect all types of legal relations and act as a means of ensuring the execution of the prescriptions of legal norms relating to various branches of law. For these types of liability, it does not matter what industry the legal relationship has.

As a result, it should be emphasized that tax relations cannot be regulated by civil law. That public relation, which is regulated by civil law, from a legal point of view, is not a tax, but a civil legal relationship. Civil legal relationship cannot be simultaneously a tax relationship. If the state regulates tax relations by civil law, then it made a mistake either in determining the economic nature of social relations, or in choosing the method of legal regulation of social relations.

Note also that the explanation of the phenomena tax activity states from the standpoint of civil law is erroneous from a methodological point of view. The lot of civil law science is civil law, tax law should be studied from the standpoint of tax law science.

As for the form of the tax obligation, it, like any other phenomenon, material world, of course, has it. The forms of tax liability are those external signs, which form appearance this obligation. Among them, first of all, there are such specific phenomena as the subject of the tax, the object of the tax, the possession of which by a certain person gives rise to the tax liability itself, the location of the subject and the object of the tax, which determines the specifics of the connection of the taxpayer with the state as an authorized subject of the tax legal relationship.

The material tax liability itself can be defined as a taxpayer's obligation to the state arising in accordance with tax legislation, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation, calculate taxes, draw up tax returns, submit them on time and pay taxes in the prescribed manner and terms.

It should be noted that the idea of introducing the category "tax obligation" into tax law has not met with an unambiguous attitude. So, along with a positive attitude (which is more characteristic of representatives of financial and legal science), rather critical assessments were also expressed (which is typical of representatives of civil law science). For example that tax obligations do not exist at all, that "legal relations that develop between tax authorities cannot be recognized as an obligation. Moreover, the norms of civil law are not subject to application to tax and other financial relations" <6>.

<6>Commentary on part one Civil Code Russian Federation. M., 1995. S. 318.

One can hardly agree with this.

Firstly, when establishing a tax, it is not a civil law, but a financial and legal (more precisely, tax and legal) obligation that arises. Therefore, when it comes to tax liability, this is not at all evidence that civil law applies to tax relations. The tax liability is governed by tax, not civil law.

Secondly, the opinion that the term "obligation" is the "monopoly property" of civil law is not based on anything, if only because there is no such legally fixed "instruction" obliging the branch of law to use this or that terminology or those or other institutions.

Thirdly, the use of a particular concept is determined by how accurately it expresses the essence of the legal construction expressed by this concept.

In this capacity, the concept of "obligation" is used not only in the field of civil law relations, but also in other branches of law. For example, the expression "compliance with international obligations" looks completely normal, no one raises objections and is understandable to everyone, although it is not at all connected with civil law. No one raised objections to the expression " financial obligations before the state" (which, by the way, is equivalent to the concept of "tax obligation"), which is often found in literary sources.

Thus, the term "obligation" is a general legal category, which, in its specific use, acquires the character of an industry toolkit.

The use of the tax liability construction more fully corresponds to the essence of taxation. The development of this institution within the framework of tax legislation has led to the improvement of both this legislation and taxation itself.

It is clear that the problem cannot be solved by replacing the concept of "tax obligation" with "tax obligation" alone - a more significant revision of tax legislation is required, which consists primarily in prescribing the legal status of the state as a subject of tax relations.

It is extremely important to exercise control over the completeness and timeliness of the fulfillment by payers of their obligations to budgets and state trust funds, and it is for this purpose that the tax authorities conduct operational accounting of taxes, fees (mandatory payments).

To ensure the completeness of receipt of payments to the budget in accordance with budget classification of Ukraine on income the bodies of the state tax service in accordance with the procedure established by the current legislation from cash execution state budget of Ukraine on income, before December 1 of each year, they are submitted to the relevant bodies of the state treasury and financial authorities in in electronic format lists of the composition of taxpayers who are tax registered in each district (city).

In order to maintain operational records of payments to the budget, the bodies of the state tax service receive relevant documents from the bodies of the state treasury, financial bodies, regulatory and other bodies and payers in accordance with the current procedures for the transfer of information and internal document flow.

According to paragraph 1.2 of Art. 1 of Law No. 2181, a tax liability is the obligation of a taxpayer to pay the appropriate amount of funds to the budgets or state trust funds in the manner and within the time limits specified by this law or other laws of Ukraine. Tax liabilities include taxes, fees (compulsory payments) specified in the Law "On the taxation system", as well as tax financial sanctions.

The main objectives of the operational accounting of tax liabilities in the tax authorities are:

1) control over the timely and full payment of tax liabilities of taxpayers;

2) data collection for the analysis and forecasting of tax revenues and tax debts;

3) collection of data on payments of a specific payer to improve the efficiency of tax audits payer.

The procedure for accounting for payments to the budget in the LH is regulated by the Instruction approved by the order of the STAU dated July 18, 2005 No. 276. Operational accounting of taxes is carried out by employees of the department of accounting and reporting of the state tax office. Accounting is carried out using a computer system, which ensures the automatic execution of certain operations, as well as information storage; software for it is subject to mandatory testing in the STAU. Documents on the basis of which information is entered into this system can be divided into two types:

1) documents on the accrual, reduction, write-off, deferral or installment payment of the amounts of tax liabilities;

2) documents on the repayment of tax liabilities. The basis for the calculation of payments to the budget in personal accounts payers have documents that:

a) submitted by the payer: tax declarations, reports, calculations, payment notices, certificates of advance payments and other documents provided for by the procedure established for collecting payments to the budget;

b) decisions of the head (deputy head) of the state tax service body are prepared by the state tax service body on acts of inspections for additional charge or cancellation of previously accrued payment amounts, financial sanctions and penalties;

c) come from other regulatory bodies, namely: decisions, if it is provided for by the relevant legislative acts;

d) coming from judiciary: decision (determination, ruling) of the court.

In order to account for accrued and paid payments to the budget, the state tax authorities maintain personal accounts of payers for each type of payment that must be paid by payers.

Personal accounts of payers are opened by the state tax service annually for payers who:

Tax registered - from the beginning of the year;

Are taken on the tax account - from the moment of their taking on the account;

They did not register for tax in a timely manner - from the moment the payment was accrued or paid (depending on which of these events occurred earlier).

Personal accounts in accounting and reporting divisions are maintained on personal account cards. The title page of the card contains information about the payer and general terms and Conditions collection of payment. The reverse side of the information is a kind of "mirror of law-abidingness" of the payer and contains data on accrued and paid payments, arrears and overpayments, penalties. Entries in personal accounts are made in hryvnias and kopecks.

The form of a personal account is determined by the central tax authority based on the specifics of the collection of payment. This takes into account the presence or absence of advance contributions, the frequency of recalculations based on actual indicators, the submission or non-submission of declarations (calculations) by payers, etc.

Taxpayer personal account cards are integrated into Single bank data on tax payers - legal entities, which creates the conditions for grouping credentials and performing automated sorting according to a number of criteria (for example, the formation of lists of payers by the amount of accrued and paid amounts, admitted arrears, received budgetary reimbursement of value added tax by administrative-territorial division, in the context of organizational and legal forms of entrepreneurial activity, calendar periods, etc.). The tax declarations and calculations submitted by the payers, as well as tax notices (in the case of accrual of tax liabilities by the tax authority) are the main documents on the basis of which the accrual of payments on the personal accounts of payers in tax inspections is carried out. In addition, the basis for records of accrual of payments may be a decision of the judicial authorities, a decision on installment or deferral of payments, the write-off of a tax debt, etc.

In the absence of automated operational accounting, the accrual of payments was carried out by direct entry by employees of operational accounting and reporting units of tax authorities of the main details of the above documents to personal accounts. Gradual computerization of accounting work and the introduction of advanced processing technologies tax information made significant changes to the procedures for entering data on accrued payments to personal accounts of taxpayers. In the conditions of functioning of the automated information system of accounting and reporting, the main indicators tax returns and settlements (including the tax obligations of payers) are posted by the divisions for receiving and processing tax reporting to electronic databases of tax reporting and are formed into electronic registers. In the future, such registers are transferred to accounting and reporting units for posting data on accrued payments to the personal accounts of taxpayers. Diversification takes place in an automated mode by "pulling" the relevant information from electronic registers into the payers' personal account cards.

According to Ukrainian legislation in the field of taxation, there are four ways to determine the amount of tax liabilities:

1) the payer independently determines the amount of tax liabilities and submits a declaration, this process is called "declaring tax liabilities";

2) the amount of tax liabilities is determined by the relevant regulations or independently by the payer, but without filing a declaration, with payment in certain period eg when collecting fees for a trade patent;

3) the tax authority independently determines the amount of the tax liability, reduction (increase) of the amount of budgetary compensation and / or reduction of the negative value of the object of taxation by income tax or the negative value of the amount of value added tax of the taxpayer, if:

The taxpayer does not submit a tax (customs) declaration within the established time limits;

The data of inspections of the results of the taxpayer's activities indicate an understatement or overstatement of the amount of his tax liabilities declared in tax (customs) declarations, clarifying calculations;

According to tax and other legislation, the person responsible for calculating the amount of tax liabilities for a separate tax or fee, the application of punitive (financial) sanctions and penalties, including for violations in the area foreign economic activity, is the controlling body;

By a court decision that has entered into force, the person is found guilty of tax evasion;

The data of checks regarding the withholding of taxes at the source of payment, including the tax agent, indicate a violation of the rules for calculating, withholding and paying taxes and fees to the relevant budgets, including personal income tax by such a tax agent;

The results of the customs control testify to the understatement or overstatement of the tax liabilities determined by the taxpayer in the customs declarations.

4) In the event of receipt from the authorized bodies of foreign states of documented information regarding the country of origin, cost, quantity or quality characteristics that are important for the taxation of goods and items when they are imported (transferred) to the customs territory of Ukraine or the territory of a special customs zone or exported (transferred ) goods and items from the customs territory of Ukraine or the territory of a special customs zone that differ from those declared during customs clearance, the customs authority has the right to independently determine the tax base and tax liabilities of the taxpayer based on the information specified in such documents.

If the amount monetary obligation calculated by the regulatory authority, the taxpayer is not responsible for the timeliness, reliability and completeness of the accrual of such an amount, but is responsible for the timely and full repayment of the accrued agreed monetary obligation and has the right to appeal against the specified amount.

The scheme of accounting in DOL for documents related to the tax liability, independently determined by the taxpayer, is presented in the article. 5.1.

The accrual of tax liabilities, independently determined by the payer, is carried out in the "Calculation of the main payment and penalties" section of the reverse side of the personal account card.

In the event that the tax liability is determined by the tax authority, the relevant structural unit sends the tax notice to the payer, which is entered in the electronic register tax notices, which is shown in Fig. 5.2. After the completion of the procedure for agreeing on such an obligation, the data of the electronic register of tax notices on accrued payments are entered into the cards of personal accounts of payers.

The accrual of tax liabilities determined by the state tax service body is also carried out in the "Calculation of the main payment and penalties" section of the payer's personal account.

Rice. 5.1. in the Scheme of accounting in DOL documents in relation to the tax liability, determined independently by the taxpayer

automated Information system provides the possibility of separate accounting of accrued payments under acts of documentary audits, in case of detection of arithmetic and methodological errors, as well as accrued penalties according to the data of the taxpayer and the tax authority.

To control the completeness and timeliness of the posting of accrued payments, the accounting and reporting divisions automatically reconcile the amounts of tax liabilities determined in the posted amounts registers on a monthly basis with the data of the registers structural divisions inspections that directly administer taxes from legal entities and individuals. In the event of disagreements, a protocol of discrepancies is automatically formed and measures are taken to identify and eliminate the causes of the discrepancy.

Rice. 5.2. in

The most common way to pay off tax liabilities of taxpayers is to transfer funds from current accounts to banking institutions to the relevant accounts of budgets and state trust funds. However, a number of payments, especially by payers - individuals, is carried out in cash through the institutions of Oschadny Bank and State Committee communications of Ukraine and at the cash desks of local governments.

For crediting tax payments on the balance sheets of the regional departments of the State Treasury in the context of districts and budget classification codes, appropriate accounts are opened. Funds are credited to such accounts on the basis of:

In case of non-cash order - copies of payment orders of payers;

For cash payments - copies of payment orders of Sberbank branches and stubs of receipt documents ("messages") on the acceptance by the bank institution of payments to the state and local budgets in cash;

Payment orders of institutions of the State Committee for Communications of Ukraine for transfers with coupons attached to them postal orders; copies issued by local governments, receipts for payment of tax and non-tax payments and state duty.

Information on the receipt of payments to the State and local budgets is preliminarily processed by the Treasury and financial authorities and in a systematic form is provided to the tax authority for accounting of paid tax liabilities in the cards of personal accounts of payers.

Data on the receipt of payments to the budget are posted by specialists of the accounting and reporting units of the tax inspectorate in the personal accounts of payers and in the register of receipts on the day of receipt from the State Treasury and financial authorities of information on the receipt of payments in the form of an electronic register of settlement documents. In the event that in the specified register amounts of receipts are found, the structure of which does not meet the requirements for automatic accounting of payments to the budget, these incomes, until their origin and address are clarified, are accounted for by a special code in a separate personal account and the register of receipts and returns. Not later than 5 days after receipt of copies of settlement documents from the treasury or financial authority, these amounts are subject to clarification and posting to the appropriate personal account cards.

Ensuring the reliability of data on payments made, the tax authorities conduct monthly reconciliations of receipts with the treasury and financial authorities for all budget classification codes.