Article 176.1 of the Tax Code of the Russian Federation in the new edition. Arbitration Court of the Stavropol Territory

1. If at the end of the tax period the amount tax deductions exceeds the total amount of tax calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 - 3 of paragraph 1 of Article 146 of this Code, then the resulting difference is subject to reimbursement (offset, return) to the taxpayer in accordance with the provisions this article.

2. The specified amount is sent within three calendar months following the expired tax period, to fulfill the obligations of a taxpayer to pay taxes or fees, including taxes paid in connection with the movement of goods across the customs border Russian Federation, for the payment of penalties, repayment of arrears, the amounts of tax sanctions awarded to the taxpayer, subject to crediting to the same budget.
The tax authorities shall make an offset independently, and for taxes paid in connection with the movement of goods across the customs border of the Russian Federation, upon agreement with the customs authorities and within ten days after the offset is carried out, they inform the taxpayer about it.

3. After the expiration of three calendar months following the expired tax period, the amount that has not been credited shall be returned to the taxpayer upon his written application.
The tax authority, within two weeks after receiving the said application, makes a decision on the return of the said amount to the taxpayer from the relevant budget and within the same period sends this decision for execution to the relevant authority Federal Treasury. The said amounts are returned by the federal treasury authorities.
The refund of amounts is carried out by the bodies of the Federal Treasury within two weeks from the date of receipt of the said decision of the tax authority. If such a decision is not received by the relevant body of the Federal Treasury after seven days, counting from the date of sending by the tax body, the eighth day, counting from the day of sending such a decision by the tax body, shall be recognized as the date of receipt of such a decision.
In case of violation of the terms established by this paragraph, interest is accrued on the amount to be returned to the taxpayer based on one three hundred and sixtieth refinancing rate Central Bank Russian Federation for each day of delay.

4. The amounts provided for by Article 171 of this Code in respect of transactions for the sale of goods (works, services) provided for by subparagraphs 1-6 and 8 of paragraph 1 of Article 164 of this Code, as well as the amounts of tax calculated and paid in accordance with paragraph 6 of the Article 166 of this Code, are subject to compensation by offset (refund) on the basis of a separate tax return specified in paragraph 6 of Article 164 of this Code and the documents provided for in Article 165 of this Code.
Reimbursement shall be made no later than three months from the date of submission by the taxpayer of the tax declaration specified in paragraph 6 of Article 164 of this Code and the documents provided for in Article 165 of this Code.
Within the specified period tax authority checks the validity of the application tax rate 0 percent and tax deductions and decides on reimbursement by offset or return of the corresponding amounts or on the refusal (in whole or in part) of the reimbursement.
If the tax authority decides to refuse (in whole or in part) a refund, it is obliged to provide the taxpayer with a reasoned opinion no later than 10 days after the said decision is made.
If the tax authority does not issue a refusal decision within the established period and (or) the said opinion is not submitted to the taxpayer, the tax authority is obliged to make a decision on reimbursement for the amount for which the refusal decision was not made and notify the taxpayer of the decision taken in within ten days.
If the taxpayer has arrears and penalties on taxes, arrears and penalties on other taxes and fees, as well as debts on awarded tax sanctions that are subject to crediting to the same budget from which the refund is made, they are subject to offset as a matter of priority by decision of the tax authority .
The tax authorities shall make the specified offset independently and inform the taxpayer about it within 10 days.
If the tax authority has made a decision on reimbursement, if there is an arrears in tax that has formed between the date of filing the declaration and the date of reimbursement of the relevant amounts and does not exceed the amount subject to reimbursement by decision of the tax authority, penalty interest is not charged on the amount of the arrears.
If the taxpayer has no arrears and penalties on taxes, arrears and penalties on other taxes, as well as debts on awarded tax sanctions that are subject to crediting to the same budget from which the refund is made, the amounts subject to reimbursement are offset against current tax payments and (or) other taxes and fees payable to the same budget, as well as taxes paid in connection with the movement of goods across the customs border of the Russian Federation and in connection with the sale of works (services) directly related to the production and sale of such goods, in agreement with the customs authorities or are subject to return to the taxpayer upon his application.
Not later than the last day of the period specified in the second paragraph of this paragraph, the tax authority shall decide on the refund of tax amounts from the relevant budget and within the same period send this decision for execution to the appropriate body of the Federal Treasury.
Refunds are made by the Federal Treasury within two weeks after receiving the decision of the tax authority. In the event that such a decision is not received by the relevant body of the Federal Treasury after seven days, counting from the date of sending by the tax body, the eighth day, counting from the day of sending such a decision by the tax body, is recognized as the date of receipt of such a decision.
In case of violation of the terms established by this clause, interest is accrued on the amount to be returned to the taxpayer based on the refinancing rate of the Central Bank of the Russian Federation.

1. The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of offsetting (refunding) the amount of tax declared for reimbursement in a tax return, until the end of the cameral conducted in accordance with this Code on the basis of this tax declaration tax audit.

2. The following persons have the right to apply the declarative tax refund procedure:

1) taxpaying organizations whose total amount of value added tax, excises, corporate income tax and mineral extraction tax paid for three calendar years prior to the year in which the application for the application of the declarative tax refund procedure is submitted, excluding the amounts of taxes paid in connection with the movement of goods across the border of the Russian Federation and as tax agent, is at least 7 billion rubles. These taxpayers have the right to apply the declarative tax refund procedure if at least three years have passed from the date of the establishment of the relevant organization to the date of filing the tax return;

2) taxpayers who, together with the tax return, in which the right to a tax refund is declared, have submitted a valid bank guarantee that provides for the bank's obligation, on the basis of the tax authority's request, to pay to the budget for the taxpayer the amounts of tax that are excessively received by him (credited to him) as a result of the tax refund in declarative procedure, if the decision on the reimbursement of the amount of tax claimed for reimbursement, in the declarative procedure is canceled in whole or in part in the cases provided for by this article;

3) taxpayers - residents of the territory of rapid socio-economic development, who submitted, along with the tax return, in which the right to tax refund is declared, a guarantee agreement management company determined by the Government of the Russian Federation in accordance with federal law"On the territories of advanced socio-economic development in the Russian Federation" (a copy of the guarantee agreement), which provides for the obligation of the management company, on the basis of the request of the tax authority, to pay to the budget for the taxpayer the amount of tax that he received in excess (credited to him) as a result of the tax refund in the declarative manner, if the decision to refund the amount of tax declared for reimbursement in the declarative procedure is canceled in full or in part in the cases provided for by this article. The obligation of the management company to pay to the budget for the taxpayer the amounts of tax excessively received by him (credited to him) as a result of the tax refund in the declarative manner arises if the taxpayer has not fulfilled the requirement of the tax authority to return the excessively received (offset) tax amounts within 15 calendar days from the moment the claim is made by the tax authority;

4) taxpayers - residents of the free port of Vladivostok, who, together with the tax return, in which the right to a tax refund is declared, have submitted a guarantee agreement for the management company defined by the Federal Law "On the Free Port of Vladivostok" (a copy of the guarantee agreement), providing for the obligation of the management company on the basis of the requirement of the tax authority to pay to the budget for the taxpayer the amounts of tax excessively received by him (credited to him) as a result of the tax refund in the declarative procedure, if the decision on the refund of the amount of tax claimed for reimbursement in the declarative procedure is canceled in whole or in part in the cases provided for by this article . The obligation of the management company to pay to the budget for the taxpayer the amounts of tax that are excessively received by him (credited to him) as a result of tax reimbursement in a declarative manner arises if the taxpayer has not fulfilled the requirement of the tax authority to return the excessively received (offset) amounts of tax within 15 calendar days from the moment the claim is made by the tax authority;

5) taxpayers whose obligation to pay tax is secured by a guarantee in accordance with Article 74 of this Code, which provides for the obligation of the guarantor, on the basis of the demand of the tax authority, to pay to the budget for the taxpayer the amount of tax excessively received by him (credited to him) as a result of the tax refund in the declarative manner, if the decision to refund the amount of tax declared for reimbursement in the declarative procedure is canceled in full or in part in the cases provided for by this article.

2.1. For the purposes of subparagraph 5 of paragraph 2 of this article, the guarantor must meet the following requirements:

1) be a Russian organization;

2) the total amount of value added tax, excises, corporate income tax and mineral extraction tax paid by the guarantor during the three years preceding the year in which the application for the conclusion of the suretyship agreement is submitted, excluding the amounts of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent, is at least 7 billion rubles;

3) the amount of obligations of the guarantor under existing treaties surety agreement (including the surety agreement specified in subparagraph 5 of paragraph 2 of this article in respect of a taxpayer) concluded in accordance with this Code, as of the date of submission of an application for conclusion of a suretyship agreement specified in subparagraph 5 of paragraph 2 of this article, does not exceed 20 percent of the cost net assets the guarantor determined as of December 31 of the calendar year preceding the year in which the application for the conclusion of the surety agreement specified in subparagraph 5 of paragraph 2 of this article is submitted;

4) the guarantor is not in the process of reorganization or liquidation as of the date of submission of the application for the conclusion of the surety agreement specified in subparagraph 5 of paragraph 2 of this article;

5) in relation to the guarantor, as of the date of submission of the application for the conclusion of the suretyship agreement specified in subparagraph 5 of paragraph 2 of this article, insolvency (bankruptcy) proceedings have not been initiated in accordance with the insolvency (bankruptcy) legislation of the Russian Federation;

6) the guarantor, as of the date of submission of the application for the conclusion of the surety agreement specified in subparagraph 5 of paragraph 2 of this article, does not have any debts in payment of taxes, fees, penalties and fines.

3. Not later than the day following the date of issuance of a bank guarantee (conclusion of a guarantee agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer of the fact of issuing a bank guarantee (conclusion of a guarantee agreement) in the manner determined by the federal executive body authorized on control and supervision in the field of taxes and fees.

4. A bank guarantee must be provided by a bank included in the list of banks that meet the requirements established by Article 74.1 of this Code for accepting bank guarantees for tax purposes. The requirements established by Article 74.1 of this Code are applied to a bank guarantee, taking into account the following features:

1) the validity period of the bank guarantee must expire no earlier than 10 months from the date of submission of the tax return, in which the amount of tax to be reimbursed is declared;

4.1. The requirements of the legislation of the Russian Federation on taxes and fees apply to the suretyship agreement, taking into account the following features:

1) the period of validity of the suretyship agreement must expire no earlier than 10 months from the date of submission of the tax return in which the amount of tax to be reimbursed is declared, and must not exceed one year from the date of conclusion of the suretyship agreement;

6.1. A bank guarantee (guarantee agreement) shall be submitted to the tax authority no later than the period provided for by paragraph 7 of this article for filing an application for applying the declarative tax refund procedure.

7. Taxpayers who have the right to apply the declarative tax refund procedure shall implement given right by submitting to the tax authority no later than five days from the date of filing the tax return an application for the application of the declarative tax refund procedure, in which the taxpayer indicates the details bank account to transfer funds.

In this application, the taxpayer assumes the obligation to return to the budget the amounts excessively received by him (credited to him) in the declarative manner (including the interest provided for in paragraph 10 of this article (if any), and also to pay the interest accrued on the indicated amounts in the manner established by paragraph 17 of this article, in the event that the decision to refund the amount of tax claimed for reimbursement, in a declarative manner, is canceled in full or in part in the cases provided for in this article.

8. Within five days from the date of filing an application for the application of the declarative tax refund procedure, the tax authority verifies that the taxpayer complies with the requirements provided for in paragraphs 2, 4, 4.1 and 7 of this Article, as well as whether the taxpayer has arrears in tax, other taxes, debts on the relevant penalties and (or) fines payable or recoverable in the cases provided for by this Code, and makes a decision to refund the amount of tax claimed for reimbursement in a declarative manner or a decision to refuse to refund the amount of tax claimed for reimbursement in a declarative manner.

O decisions taken the tax authority is obliged to inform the taxpayer in writing within five days from the date of the adoption of the relevant decision. At the same time, in the notice on the adoption of a decision to refuse to refund the amount of tax claimed for reimbursement, the norms of this article violated by the taxpayer shall be indicated in the declarative procedure. The specified message can be transferred to the head of the organization, individual entrepreneur, their representatives personally against receipt or in any other way confirming the fact and date of its receipt.

The adoption of a decision to refuse to refund the amount of tax claimed for reimbursement in a declarative manner does not change the procedure and terms for conducting an in-house tax audit of the submitted tax return. In the event of a decision to refuse to refund the amount of tax claimed for reimbursement, in the declarative procedure, the tax reimbursement is carried out in the manner and within the time limits provided for by Article 176 of this Code. In this case, in the case specified in this paragraph, if there is a written request from the taxpayer, the tax authority shall return the bank guarantee to him no later than three days from the date of receipt of such request.

9. If a taxpayer has arrears in taxes, other taxes, arrears in relevant penalties and (or) fines payable or recoverable in the cases provided for by this Code, the tax authority, on the basis of a decision on offsetting the amount of tax claimed for reimbursement, in the declarative procedure, the amount of tax claimed for reimbursement is independently offset in a declarative manner against the said arrears and debts on penalties and (or) fines. In this case, the accrual of interest on the specified arrears is carried out until the day the tax authority makes a decision on offsetting the amount of tax claimed for reimbursement in a declarative manner.

If the taxpayer has no tax arrears, other taxes, debts on the relevant penalties and (or) fines payable or recoverable in the cases provided for by this Code, as well as if the amount of tax claimed for reimbursement, in a declarative manner, exceeds the amounts of the specified arrears on tax, other taxes, debts on relevant penalties and (or) fines, the amount of tax subject to reimbursement is returned to the taxpayer on the basis of a decision of the tax authority to refund (in full or in part) the amount of tax claimed for reimbursement, in a declarative manner.

10. An instruction to refund the amount of tax is issued by the tax authority on the basis of a decision to refund (in full or in part) the amount of tax claimed for reimbursement in a declarative manner and must be sent to the territorial body of the Federal Treasury on the next business day after the date of acceptance by the tax authority this decision.

Within five days from the date of receipt of the instruction specified in the first paragraph of this paragraph, the territorial body of the Federal Treasury shall refund the amount of tax to the taxpayer in accordance with the budget legislation of the Russian Federation and no later than the day following the day of return, notify the tax authority of the date of return and the amount returned to the taxpayer Money.

In case of violation of the deadlines for the return of the tax amount, interest is accrued on this amount for each day of delay starting from the 12th day after the day the taxpayer submits the application provided for in paragraph 7 of this article. The interest rate is taken equal to the refinancing rate of the Central Bank of the Russian Federation, effective during the period of violation of the repayment period.

If the interest provided for in this paragraph has not been paid to the taxpayer in full, the tax authority, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the date of return and the amount of money returned to the taxpayer, decides to pay the remaining amount of interest and no later than the day following the day of adoption of this decision, sends to the territorial body of the Federal Treasury an instruction drawn up on the basis of this decision for the payment of the remaining amount of interest.

11. The validity of the amount of tax claimed for reimbursement is checked by the tax authority when conducting, in the manner and within the time limits established by Article 88 of this Code, a desk tax audit based on the tax return submitted by the taxpayer, in which the amount of tax to be reimbursed is declared.

12. If during the in-house tax audit no violations of the legislation on taxes and fees were revealed, the tax authority, within seven days after the end of the in-house tax audit, is obliged to inform the taxpayer in writing about the end of the tax audit and about the absence of violations of the legislation on taxes. and fees.

Not later than the day following the day when the taxpayer that provided the bank guarantee was sent a notice of the absence of revealed violations of the legislation on taxes and fees, the tax authority is obliged to send to the bank that issued the specified bank guarantee a written application to release the bank from obligations under this bank guarantee, and if there is a written request from the taxpayer, the tax authority is also obliged to return the bank guarantee to him no later than three days from the date of receipt of such request.

Not later than the day following the date of sending to the taxpayer, whose obligation to pay tax is secured by the guarantee provided for in this article, a report on the absence of violations of the legislation of the Russian Federation on taxes and fees, the tax authority is obliged to send the guarantor a written application for the release of the guarantor from obligations under this agreement guarantees.

13. In case of detection of violations of the legislation on taxes and fees in the course of a desk tax audit, authorized officials of the tax authorities must draw up a tax audit report in accordance with Article 100 of this Code.

The act and other materials of a desk tax audit, during which violations of the legislation on taxes and fees were revealed, as well as objections submitted by the taxpayer (his representative), must be considered by the head (deputy head) of the tax authority that conducted the tax audit, and the decision on them must be adopted in accordance with Article 101 of this Code.

14. Based on the results of consideration of the materials of a desk tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer liable for committing tax offense or on refusal to hold the taxpayer liable for committing a tax offense.

15. If the amount of tax refunded to a taxpayer in the manner prescribed by this article exceeds the amount of tax to be refunded based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of the relevant decision provided for in paragraph 14 of this article, shall decide to cancel the decision on reimbursement of the amount of tax claimed for reimbursement in a declarative manner, as well as a decision on the return (in full or in part) of the amount of tax claimed for reimbursement in a declarative manner and (or) a decision on offsetting the amount of tax claimed for reimbursement in a declarative manner part of the tax amount not subject to reimbursement based on the results of a desk tax audit.

16. The tax authority is obliged to inform the taxpayer in writing about the decisions taken, specified in paragraphs 14 and 15 of this article, within five days from the date of the adoption of the relevant decision. The specified message can be transferred to the head of the organization, individual entrepreneur, their representatives personally against receipt or in any other way confirming the fact and date of its receipt.

17. Simultaneously with the notification of the adoption of the decision specified in paragraph 15 of this article, the taxpayer shall be sent a request for the return to the budget of the amounts excessively received by him (credited to him) in the declarative manner (including the interest provided for in paragraph 10 of this article (if any), in the amount proportional to the share of the over-refunded amount of tax in the total amount of tax reimbursed in a declarative manner) (hereinafter in this article - the claim for a refund). Interest is accrued on taxpayer refundable amounts based on interest rate, equal to the double refinancing rate of the Central Bank of the Russian Federation, which was in effect during the period of use budget funds. The indicated interest is accrued starting from the day:

18. The form of the request for a refund is approved by the federal executive body authorized for control and supervision in the field of taxes and fees. The specified requirement must contain information:

1) on the amount of tax to be reimbursed based on the results of a desk tax audit;

2) on amounts of tax excessively received by the taxpayer (credited to the taxpayer) in the declarative manner, subject to return to the budget;

3) on the amount of interest provided for in paragraph 10 of this article, subject to return to the budget;

4) on the amount of interest accrued in accordance with paragraph 17 of this article at the time of sending the request for a refund;

5) on the deadline for fulfilling the request for return, established by paragraph 20 of this article;

6) on measures to recover the amounts payable, applied in case of non-fulfillment by the taxpayer of the claim for refund.

19. The request for a refund may be transferred to the head of the organization, an individual entrepreneur, their representatives personally against receipt or in another way confirming the fact and date of its receipt. If it is impossible to deliver a claim for return by the indicated methods, it shall be sent by registered mail and shall be deemed received after six days from the date of sending the registered letter.

20. The taxpayer is obliged to independently pay the amounts specified in the refund request within five days from the date of its receipt.

Not later than three days from the date of receipt of the notification of the territorial body of the Federal Treasury about the return by the taxpayer that submitted the bank guarantee of the amounts of tax indicated in the claim for refund, the tax authority is obliged to notify the bank that issued the bank guarantee of the release of the bank from obligations under this bank guarantee, and also, if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than three days from the date of receipt of such request.

22. Within ten days after the fulfillment of the obligation of the bank (guarantor - management company) to pay sum of money under a bank guarantee (guarantee agreement), the tax authority sends the taxpayer an updated claim for a refund, indicating the amounts payable to the budget.

In this case, if the tax authority violates the deadline for sending a request for a refund, the accrual of interest on the amounts payable by the taxpayer on the basis of a request for a refund is suspended until the date the taxpayer actually receives this request.

23. In case of non-payment or incomplete payment of the amounts indicated in the request for a refund, in set time by a taxpayer who applied the declarative tax refund procedure without providing a bank guarantee, or by a taxpayer who received an updated claim for a refund, as well as if it is impossible to send a request to the bank for payment of a sum of money under a bank guarantee due to the expiration of its validity or if it is impossible to send a guarantor - the management company of the requirement to pay a sum of money under the surety agreement, the obligation to pay these amounts is enforced by foreclosing on cash on accounts or other property of the taxpayer by decision of the tax authority to recover the said amounts, taken after the taxpayer failed to fulfill the claim for refund within the prescribed period, in the manner and within the time limits established by Articles 46 and 47 of this Code.

24. After the taxpayer submits the application provided for in paragraph 7 of this article, before the end of the desk tax audit, the revised tax return is submitted in the manner prescribed by article 81 of this Code, taking into account the specifics established by this paragraph.

If the amended tax return is filed by the taxpayer before the decision provided for in paragraph one of paragraph 8 of this article is made, then such a decision is not made on the previously filed tax return.

If the amended tax return is filed by the taxpayer after the decision by the tax authority to refund the amount of tax claimed for reimbursement in the declarative manner, but before the completion of the in-house tax audit, then the said decision on the previously filed tax return is canceled no later than the day following the date of submission of the amended tax return. declarations. Not later than the day following the day of the decision to cancel the decision to refund the amount of tax claimed for reimbursement, in the declarative manner, the tax authority notifies the taxpayer of the adoption of this decision. The amounts received by the taxpayer (credited to the taxpayer) in the declarative manner must be returned to them, taking into account the interest provided for by paragraph 17 of this article, in the manner prescribed by paragraphs 17-23 of this article.

Commentary on Art. 176.1 of the Tax Code of the Russian Federation

Federal Law No. 318-FZ of December 17, 2009 introduced a declarative procedure for VAT refunds. This rule is established by art. 176.1 of the Tax Code of the Russian Federation.

The declarative procedure for tax refund is the implementation, in the manner prescribed by this article, of offsetting (refunding) the amount of tax claimed for reimbursement in the tax return, until the end of the in-house tax audit conducted in accordance with this tax return (clause 1, article 176.1 of the Tax Code RF).

Taxpayers will be able to use the declarative procedure for VAT refunds subject to certain conditions. The first condition that gives the right to use the declarative procedure is the fact that at least 3 years have passed from the date of registration of the organization to the date of filing the declaration. At the same time, the total amount of VAT, excises, income tax and mineral extraction tax paid over the previous three calendar years must be at least RUB 10 billion. This amount does not include taxes paid in connection with the movement of goods across the customs border.

When forming the specified total amount of taxes for the purposes of applying the above norm of the Tax Code of the Russian Federation, taking into account the norm, the amount of taxes paid includes:

cash receipts for payment of VAT, excises, corporate income tax and mineral extraction tax on settlement documents in which the indicator "Date of debiting from the payer's account" (field 71) refers to the three-year period preceding the year in which the application for the application of the declarative procedure is submitted VAT refunds, and credited to the relevant accounts of the Federal Treasury. These receipts are taken into account regardless of whether the tax paid is classified as overpaid or overcharged; the amount of taxes other than VAT, excises, corporate income tax and mineral extraction tax, credited in the manner prescribed by Art. Art. 78, 79 of the Tax Code of the Russian Federation on account of VAT, excises, corporate income tax and mineral extraction tax, for which the date of the offset decision falls within the corresponding three-year period; the amount of VAT and excises offset in the manner prescribed by Art. Art. 176, 176.1, 203 Tax

Code of the Russian Federation on account of payment of VAT, excises, corporate income tax and mineral extraction tax, for which the date of the decision on offset falls on the above period.

The total amount of taxes is reduced by the amount of overpaid or overcharged VAT, excises, corporate income tax and mineral extraction tax, in respect of which the tax authority in the manner prescribed by Art. Art. 78, a decision was made to return.

Not included in the calculation of the total amount of taxes: VAT amounts subject to reimbursement, in respect of which the tax authority in the manner

provided for by Art. Art. 176, 176.1 of the Tax Code of the Russian Federation, a decision was made to return; amounts of excises subject to reimbursement, in respect of which the tax authority, in accordance with the procedure

provided for by Art. 203 of the Tax Code of the Russian Federation, a decision was made to return.

The above procedure for calculating the total amount of taxes for the purpose of applying paragraphs. 1 p. 2 art. 176.1

of the Tax Code of the Russian Federation was explained by the Federal Tax Service of Russia in a Letter (Letter of the Federal Tax Service of Russia dated July 23, 2010 N AS-37-2 / [email protected]).

In accordance with paragraph 2 of Art. 176.1 of the Tax Code of the Russian Federation, the following have the right to apply the declarative procedure for VAT refunds:

1) taxpayers-organizations for which the total amount of value added tax, excises, corporate profit tax and mineral extraction tax paid for three calendar years preceding the year in which the application for application of the declarative tax refund procedure is submitted, excluding the amount of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent is at least 10 billion rubles. These taxpayers have the right to apply the declarative tax refund procedure if at least three years have passed from the date of the establishment of the relevant organization to the date of filing the tax return;

2) taxpayers who, together with the tax return, in which the right to a tax refund is declared, have submitted a valid bank guarantee that provides for the bank’s obligation, on the basis of the tax authority’s request, to pay to the budget for the taxpayer the amounts of tax that are excessively received by him (credited to him) as a result of the tax refund in declarative procedure, if the decision to refund the amount of tax claimed for reimbursement, in a declarative procedure, will be canceled in whole or in part in the cases provided for in Art. 176.1 of the Tax Code of the Russian Federation;

3) and from January 1, 2015 - taxpayers - residents of the territory of advanced socio-economic development, who submitted, together with the tax return, in which the right to tax refund is declared, the management company surety agreement (a copy of the surety agreement), providing for the obligation of the management company on the basis of the requirements of the tax authority to pay to the budget for the taxpayer the amounts of tax excessively received by him (credited to him) as a result of the tax refund in the declarative procedure, if the decision on the refund of the amount of tax claimed for reimbursement in the declarative procedure is canceled in full or in part in the cases provided for by this article. The obligation of the management company to pay to the budget for the taxpayer the amounts of tax that are excessively received by him (credited to him) as a result of tax reimbursement in a declarative manner arises if the taxpayer has not fulfilled the requirement of the tax authority to return the excessively received (offset) amounts of tax within 15 calendar days from the moment the claim was made by the tax authority (clause 3, clause 2, article 176.1 of the Tax Code of the Russian Federation as amended by Federal Law No. 380-FZ of November 29, 2014 “On Amendments to Part Two of the Tax Code of the Russian Federation in Connection with the Adoption of the Federal Law “On territories of advanced social and economic development in the Russian Federation”).

Please note that from January 1, 2015, no later than the day following the day of issuing a bank guarantee (signing a guarantee agreement), the bank (management company) notifies the tax authority at the place of registration of the taxpayer of the fact of issuing a bank guarantee (signing a guarantee agreement) in accordance with the procedure , determined by the federal executive body authorized for control and supervision in the field of taxes and fees (clause 3 of article 176.1 of the Tax Code of the Russian Federation as amended by the Federal Law of November 29, 2014 N 380-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation in connection with the adoption of the Federal Law "On Territories of Advanced Socio-Economic Development in the Russian Federation").

Wherein bank guarantee must meet the requirements specified in paragraph 4 of Art. 176.1 of the Tax Code of the Russian Federation, including the amount of a bank guarantee, which should ensure the fulfillment of the obligation to return to the budget in full the amount of tax claimed for reimbursement in a declarative manner.

A bank guarantee (guarantee agreement) is submitted to the tax authority no later than the period provided for in paragraph 7 of Art. 176.1 of the Tax Code of the Russian Federation for filing an application for the application of the declarative procedure for tax refunds (Clause 6.1 of Article 176.1 of the Tax Code of the Russian Federation (as amended by the Federal Law of November 29, 2014 N 380-FZ "On Amending Part Two of the Tax Code of the Russian Federation in connection with the adoption of the Federal Law “On Territories of Advanced Socio-Economic Development in the Russian Federation”)).

Based on paragraph 4 of Art. 176.1 of the Tax Code of the Russian Federation, the requirements established by Art. 74.1 of the Tax Code of the Russian Federation, taking into account the following features:

1) the validity period of the bank guarantee must expire no earlier than 8 months from the date of submission of the tax return, in which the amount of tax to be reimbursed is declared;

2) the amount for which the bank guarantee is issued must ensure the fulfillment of obligations to return to the budgets budget system Russian Federation in full the amount of tax claimed for reimbursement.

In this regard, the amount for which a bank guarantee was issued, submitted to the tax authority in the manner prescribed by Art. 176.1 of the Tax Code of the Russian Federation, must ensure the fulfillment of obligations to return to the budget in full only the amount of tax claimed for reimbursement.

Note that from January 1, 2015, introduced in Art. 176.1 of the Tax Code of the Russian Federation, clause 4.1 (as amended by the Federal Law of November 29, 2014 N 380-FZ “On Amendments to Part Two of the Tax Code of the Russian Federation in Connection with the Adoption of the Federal Law “On Territories of Advanced Socio-Economic Development in the Russian Federation” ) provides that the requirements of the legislation of the Russian Federation on taxes and fees apply to the surety agreement, taking into account the following features:

1) the period of validity of the guarantee agreement must expire no earlier than eight months from the date of submission of the tax return, in which the amount of tax to be reimbursed is declared;

2) the amount specified in the surety agreement must ensure the fulfillment of obligations to return to the budgets of the budgetary system of the Russian Federation in full the amount of tax claimed for reimbursement.

The taxpayer submits a tax return in which he claims his right to a tax refund. Together with the declaration, he submits a bank guarantee, according to which the bank assumes the obligation to pay funds to the budget, namely the amounts of tax received by the taxpayer in excess as a result of tax refunds in the declarative manner.

Thus, the taxpayer, no later than 5 days from the date of filing the tax return, submits an application to tax office to exercise the right to a refund (offset) of VAT. The application must indicate:

bank account details for transferring funds;

the obligation to return to the budget excessive amounts of VAT received by him (credited to him) in a declarative manner and certain interest in the event that the decision to refund the amount of tax in a declarative manner is canceled in full or in part.

Tax authorities in accordance with paragraph 8 of Art. 176.1 of the Tax Code of the Russian Federation, they must also check within 5 days:

a) compliance by the taxpayer with the requirements provided for in paragraphs 2, 4, 6 and 7 of Art. 176.1

Tax Code of the Russian Federation;

b) the taxpayer has a VAT or other tax arrears;

c) the taxpayer has arrears in respect of relevant penalties and (or) fines,

payable or recoverable in the cases provided for tax code RF.

As a result of the audit, the tax authority must accept:

a) a decision on the reimbursement of the amount of tax claimed for reimbursement, in a declarative manner;

b) or a decision to refuse to reimburse the amount of tax claimed for reimbursement, in the application

Simultaneously with the decision to refund the amount of tax claimed for reimbursement in a declarative manner, depending on the presence of debts of the taxpayer for these payments, the tax authority makes a decision on offsetting the amount of tax claimed for reimbursement in a declarative manner and (or) a decision on the return (in full or partially) the amount of tax claimed for reimbursement, in a declarative manner.

The tax authority is obliged to inform the taxpayer in writing about the decisions taken within 5 days from the date of the adoption of the relevant decision.

At the same time, in the message on the decision to refuse to reimburse the amount of tax claimed for reimbursement, the norms of Art. 176.1 of the Tax Code of the Russian Federation, violated by the taxpayer.

The specified message can be transferred to the head of the organization, individual entrepreneur, their representatives personally against receipt or in any other way confirming the fact and date of its receipt.

In the event of a decision to refuse to reimburse the amount of tax claimed for reimbursement, in a declarative manner, tax reimbursement is carried out in the manner and within the time limits provided for in Art. 176 of the Tax Code of the Russian Federation. Moreover, in this case, if there is a written request from the taxpayer, the tax authority must return the bank guarantee to him no later than 3 days from the date of receipt of such an application. This duty appeared with the tax authorities on December 25, 2014

g. in accordance with the changes made to par. 4 p. 8 art. 176.1 of the Tax Code of the Russian Federation Federal Law of November 24, 2014 N 366-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain legislative acts Russian Federation".

In accordance with paragraph 12 of Art. 176.1 of the Tax Code of the Russian Federation, if no violations of the legislation on taxes and fees were revealed during the in-house tax audit, the tax authority, within 7 days after the end of the in-house tax audit, is obliged to inform the taxpayer in writing about the end of the tax audit and about the absence of violations of the legislation on taxes and fees.

Not later than the day following the day of sending the taxpayer that provided the bank guarantee a notice of the absence of revealed violations of the legislation on taxes and fees, the tax authority is obliged to send to the bank that issued the said bank guarantee a written application to release the bank from obligations under this bank guarantee. And from December 25, 2015, if there is a written request from the taxpayer, the tax authority is also obliged to return the bank guarantee to him no later than 3 days from the date of receipt of such an application (paragraph 2, clause 12, article 176.1 of the Tax Code of the Russian Federation as amended by the Federal Law of November 24 2014 N 366-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation").

In addition, from January 1, 2015, no later than the day following the day of sending to the taxpayer who provided the suretyship agreement to the management company (a copy of the suretyship agreement), the tax authority is obliged to send a notice of the absence of violations of the legislation of the Russian Federation on taxes and fees to the guarantor - company a written statement on the release of the guarantor - the management company from obligations under this contract of agency (paragraph 3, clause 12, article 176.1 of the Tax Code of the Russian Federation, introduced by Federal Law of November 29, 2014 N 380-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation in connection with the adoption of the Federal Law “On Territories of Advanced Socio-Economic Development in the Russian Federation”).

In accordance with paragraph 13 of Art. 176.1 of the Tax Code of the Russian Federation in the event of violations of the legislation on taxes and fees during a desk tax audit, authorized officials of the tax authorities must draw up a tax audit report in accordance with Art. 100 of the Tax Code of the Russian Federation.

In accordance with paragraph 14 of Art. 176.1 of the Tax Code of the Russian Federation, based on the results of consideration of the materials of a desk tax audit, the head (deputy head) of the tax authority issues:

a) a decision to hold the taxpayer liable for committing a tax

offenses;

b) or on the refusal to hold the taxpayer liable for the commission of a tax

offenses.

In accordance with paragraph 15 of Art. 176.1 of the Tax Code of the Russian Federation in the event that the amount of tax reimbursed to the taxpayer in the manner prescribed by Art. 176.1 of the Tax Code of the Russian Federation exceeds the amount of tax refundable based on the results of a desk tax audit, the tax authority, simultaneously with the adoption of one of the above decisions, decides to cancel the decision to refund the amount of tax claimed for reimbursement in a declarative manner, as well as a decision to return ( in full or in part) the amount of tax claimed for reimbursement in a declarative manner and (or) a decision on offsetting the amount of tax claimed for reimbursement in a declarative manner in part of the amount of tax not subject to reimbursement based on the results of a desk tax audit.

In accordance with paragraph 16 of Art. 176.1 of the Tax Code of the Russian Federation, the tax authority is obliged to inform the taxpayer in writing about the decisions taken, specified in paragraphs 14 and 15 of Art. 176.1 of the Tax Code of the Russian Federation, within 5 days from the date of the adoption of the relevant decision. The specified message can be transferred to the head of the organization, individual entrepreneur, their representatives personally against receipt or in any other way confirming the fact and date of its receipt.

Simultaneously with the announcement of the decision referred to in paragraph 15 of Art. 176.1 of the Tax Code of the Russian Federation, a demand is sent to the taxpayer for the return to the budget of amounts excessively received by him (credited to him) in a declarative manner (including interest provided for by paragraph 10 of Article 176.1 of the Tax Code of the Russian Federation (if paid), in an amount proportional to the share of the excessively reimbursed amount tax in the total amount of tax reimbursed in a declarative manner).

Interest is accrued on amounts subject to refund by the taxpayer based on an interest rate equal to twice the refinancing rate of the Central Bank of the Russian Federation that was in effect during the period of use of budgetary funds. The indicated interest is accrued starting from the day:

1) the actual receipt by the taxpayer of funds - in the event of a refund of the amount of tax in a declarative manner;

2) making a decision on offsetting the amount of tax claimed for reimbursement in a declarative manner - in the case of offsetting the amount of tax in a declarative manner.

In accordance with paragraph 16 of Art. 176.1 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently pay the amounts indicated in the request for a refund within 5 days from the date of its receipt.

Since November 25, 2014, the provisions of the newly introduced par. 2 p. 20 Art. 176.1 of the Tax Code of the Russian Federation states that no later than 3 days from the date of receipt of the notification of the territorial body of the Federal Treasury about the return by the taxpayer who submitted the bank guarantee of the tax amounts specified in the refund request, the tax authority is obliged to notify the bank that issued the bank guarantee of the release of the bank from obligations under this bank guarantee, as well as if there is a written request from the taxpayer, return the bank guarantee to the taxpayer no later than 3 days from the date of receipt of such an application (paragraph 2, clause 20, article 176.1 of the Tax Code of the Russian Federation as amended by Federal Law No. 24 November 2014 366-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation").

In accordance with paragraph 23 of Art. 176.1 of the Tax Code of the Russian Federation in the event of non-payment or incomplete payment of the amounts indicated in the request for a refund within the prescribed period by a taxpayer who applied the declarative procedure for tax refunds without presenting a bank guarantee, or by a taxpayer who received an updated request for a refund, and also if it is impossible to send a request to the bank on the payment of a sum of money under a bank guarantee due to the expiration of its term, the obligation to pay these amounts is enforced by foreclosing money on accounts or other property of the taxpayer by decision of the tax authority to recover the said amounts, taken after the taxpayer's failure to comply with the the established deadline for the return request, in the manner and within the time limits established by Art. Art. 46 and 47 of the Tax Code of the Russian Federation.

1. The declarative procedure for tax refunds is the implementation, in the manner prescribed by this article, of offsetting (refunding) the amount of tax claimed for reimbursement in a tax return, until the end of the in-house tax audit conducted in accordance with Article 88 of this Code on the basis of this tax declaration.

2. The following persons have the right to apply the declarative tax refund procedure:

1) taxpayers-organizations for which the total amount of value added tax, excises, corporate profit tax and mineral extraction tax paid for three calendar years preceding the year in which the application for application of the declarative tax refund procedure is submitted, excluding the amount of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent is at least 2 billion rubles. These taxpayers have the right to apply the declarative tax refund procedure if at least three years have passed from the date of the establishment of the relevant organization to the date of filing the tax return;

3) taxpayers who are residents of a territory of advanced social and economic development who, together with a tax declaration in which the right to a tax refund is declared, have submitted a guarantee agreement of a management company determined by the Government of the Russian Federation in accordance with the Federal Law "On territories of advanced social and economic development in the Russian Federation" (a copy of the guarantee agreement), which provides for the obligation of the management company, on the basis of the requirement of the tax authority, to pay to the budget for the taxpayer the amounts of tax that he received in excess (credited to him) as a result of tax reimbursement in a declarative manner, if the decision to reimburse the amount of tax declared for reimbursement in a declarative manner, will be canceled in whole or in part in the cases provided for by this article. The obligation of the management company to pay to the budget for the taxpayer the amounts of tax that are excessively received by him (credited to him) as a result of tax reimbursement in a declarative manner arises if the taxpayer has not fulfilled the requirement of the tax authority to return the excessively received (offset) amounts of tax within 15 calendar days from the moment the claim is made by the tax authority;

2.1. For the purposes of subparagraph 5 of paragraph 2 of this article, the guarantor must meet the following requirements:

1) be a Russian organization;

2) the total amount of value added tax, excises, corporate income tax and mineral extraction tax paid by the guarantor during the three years preceding the year in which the application for the conclusion of the guarantee agreement is submitted, excluding the amounts of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent, is at least 2 billion rubles;

3) the amount of obligations of the guarantor under valid suretyship agreements (including the suretyship agreement specified in subparagraph 5 of paragraph 2 of this article in relation to the taxpayer), concluded in accordance with this Code, as of the date of submission of the application for the conclusion of the suretyship agreement specified in subparagraph 5 of paragraph 2 of this article, does not exceed 50 percent of the net asset value of the guarantor, determined as of December 31 of the calendar year preceding the year in which the application for the conclusion of the suretyship agreement referred to in subparagraph 5 of paragraph 2 of this article is submitted;

6) the guarantor, as of the date of submission of the application for the conclusion of the suretyship agreement specified in subparagraph 5 of paragraph 2 of this article, has no debts in payment of taxes, fees, insurance premiums, penalties and fines.

1) the validity period of the bank guarantee must expire no earlier than 10 months from the date of submission of the tax return, in which the amount of tax to be reimbursed is declared;

2) the amount for which the bank guarantee is issued must ensure the fulfillment of obligations to return to the budgets of the budgetary system of the Russian Federation in full the amount of tax claimed for reimbursement.

4.1. The requirements of the legislation of the Russian Federation on taxes and fees apply to the suretyship agreement, taking into account the following features:

7. Taxpayers who have the right to apply the declarative tax refund procedure shall exercise this right by submitting to the tax authority no later than five days from the date of submission of the tax return an application for the application of the declarative tax refund procedure, in which the taxpayer indicates the bank account details for transferring funds.

The tax authority is obliged to inform the taxpayer in writing about the decisions taken within five days from the date of the adoption of the relevant decision. At the same time, in the notice on the adoption of a decision to refuse to refund the amount of tax claimed for reimbursement, the norms of this article violated by the taxpayer shall be indicated in the declarative procedure. The specified message can be transferred to the head of the organization, individual entrepreneur, their representatives personally against receipt or in any other way confirming the fact and date of its receipt.

10. An order to refund the amount of tax is issued by the tax authority on the basis of a decision to refund (in full or in part) the amount of tax claimed for reimbursement in a declarative manner and is subject to submission to the territorial body of the Federal Treasury on the next business day after the day the tax authority takes this decision.

14. Based on the results of consideration of the materials of a desk tax audit, the head (deputy head) of the tax authority makes a decision to hold the taxpayer liable for committing a tax offense or to refuse to hold the taxpayer liable for committing a tax offense.

17. Simultaneously with the notification of the adoption of the decision specified in paragraph 15 of this article, the taxpayer shall be sent a request for the return to the budget of the amounts excessively received by him (credited to him) in the declarative manner (including the interest provided for in paragraph 10 of this article (if any), in the amount proportional to the share of the overpaid amount of tax in the total amount of tax reimbursed in the declarative manner) (hereinafter in this article - the claim for refund). Interest is accrued on amounts subject to refund by the taxpayer based on an interest rate equal to twice the refinancing rate of the Central Bank of the Russian Federation that was in effect during the period of use of budgetary funds. The indicated interest is accrued starting from the day:

1) the actual receipt by the taxpayer of funds - in the event of a refund of the amount of tax in a declarative manner;

2) making a decision on offsetting the amount of tax claimed for reimbursement in a declarative manner - in case of offsetting the amount of tax in a declarative manner.

1) on the amount of tax to be reimbursed based on the results of a desk tax audit;

2) on amounts of tax excessively received by the taxpayer (credited to the taxpayer) in the declarative manner, subject to return to the budget;

3) on the amount of interest provided for in paragraph 10 of this article, subject to return to the budget;

4) on the amount of interest accrued in accordance with paragraph 17 of this article at the time of sending the request for a refund;

5) on the deadline for fulfilling the request for return, established by paragraph 20 of this article;

6) on measures to recover the amounts payable, applied in case of non-fulfillment by the taxpayer of the claim for refund.

20. The taxpayer is obliged to independently pay the amounts specified in the refund request within five days from the date of its receipt.

22. Within ten days after the fulfillment of the obligation of the bank (guarantor - management company) to pay the amount of money under a bank guarantee (surety agreement), the tax authority sends the taxpayer an updated request for a refund indicating the amounts payable to the budget.

23. In the event of non-payment or incomplete payment of the amounts specified in the refund request within the established period by the taxpayer who applied the declarative tax refund procedure without providing a bank guarantee, or by the taxpayer who received an updated refund request, as well as if it is impossible to send a request to the bank for payment of a sum of money under a bank guarantee due to the expiration of its validity or if it is impossible to send a claim to the guarantor - management company for the payment of a sum of money under a suretyship agreement, the obligation to pay these amounts is enforced by foreclosing money on accounts or otherwise the taxpayer's property by the decision of the tax authority on the recovery of the said amounts, adopted after the taxpayer's failure to fulfill the claim for refund within the prescribed period, in the manner and within the time limits established by Articles 46 and 47 of this Code.

(Introduced by Federal Law No. 318-FZ of December 17, 2009)

2. The following persons have the right to apply the declarative tax refund procedure:

(as amended by Federal Law No. 306-FZ of November 27, 2010)

2) taxpayers who, together with the tax return, in which the right to a tax refund is declared, have submitted a valid bank guarantee that provides for the bank's obligation, on the basis of the tax authority's request, to pay to the budget for the taxpayer the amounts of tax that are excessively received by him (credited to him) as a result of the tax refund in declarative procedure, if the decision on reimbursement of the amount of tax claimed for reimbursement, in the declarative procedure is canceled in whole or in part in the cases provided for by this article.

3. Not later than the day following the date of issue of the bank guarantee, the bank shall notify the tax authority at the place of registration of the taxpayer of the fact of issue of the bank guarantee in the manner determined by the federal executive body authorized to exercise control and supervision in the field of taxes and fees.

4. A bank guarantee must be provided by a bank included in the list of banks that meet established requirements for the acceptance of bank guarantees for tax purposes (hereinafter in this article - the list). The list is maintained by the Ministry of Finance of the Russian Federation on the basis of information received from the Central Bank of the Russian Federation and is subject to posting on the official website of the Ministry of Finance of the Russian Federation in the information and telecommunications network "Internet". To be included in the list, a bank must meet the following requirements:

(As amended by Federal Law No. 200-FZ of July 11, 2011)

1) availability of a license to carry out banking operations issued central bank Russian Federation, and implementation banking for at least five years;

3) availability own funds(capital) of the bank in the amount of at least 1 billion rubles;

4) compliance mandatory standards provided for by Federal Law No. 86-FZ of July 10, 2002 "On the Central Bank of the Russian Federation (Bank of Russia)" (hereinafter referred to as the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)"), for all reporting dates within the last six months;

5) the absence of the requirement of the Central Bank of the Russian Federation on the implementation of measures for the financial rehabilitation of the bank on the basis of Federal Law No. 40-FZ of February 25, 1999 "On the Insolvency (Bankruptcy) of Credit Institutions".

5. If circumstances are discovered that testify to the compliance of a bank not included in the list with the established requirements or non-compliance of a bank included in the list with the established requirements, this information shall be sent by the Central Bank of the Russian Federation to the Ministry of Finance of the Russian Federation within five days from the date of detection specified circumstances to make appropriate changes to the list.

6. A bank guarantee must meet the following requirements:

1) the bank guarantee must be irrevocable and non-transferable;

2) the bank guarantee may not contain an indication that the tax authority has submitted documents to the bank that are not provided for by this Article;

3) the term of the bank guarantee must expire no earlier than eight months from the date of submission of the tax return, in which the amount of tax to be reimbursed is declared;

4) the amount for which the bank guarantee is issued must ensure the fulfillment of obligations to return to the budget in full the amount of tax claimed for reimbursement;

5) the bank guarantee must allow for the undisputed debiting of funds from the account of the guarantor in the event that he fails to fulfill the demand for payment of the amount of money under the bank guarantee sent before the expiration of the bank guarantee within the prescribed period.

6.1. The bank guarantee shall be submitted to the tax authority not later than the period provided for in paragraph 7 of this article for filing an application for applying the declarative tax refund procedure.

(Clause 6.1 was introduced by Federal Law No. 245-FZ of July 19, 2011)

8. Within five days from the date of filing an application for the application of the declarative tax refund procedure, the tax authority verifies that the taxpayer complies with the requirements provided for in paragraphs 2, 4, 6 and 7 of this article, as well as whether the taxpayer has arrears in tax, other taxes, debts on the relevant penalties and (or) fines payable or recoverable in the cases provided for by this Code, and makes a decision to refund the amount of tax claimed for reimbursement in a declarative manner or a decision to refuse to refund the amount of tax claimed for reimbursement in a declarative manner.

(paragraph introduced by Federal Law No. 245-FZ of July 19, 2011)