The tax office came to our organization with a decision to conduct an on-site tax audit. Should the tax office warn the taxpayer about an on-site tax audit, if so, please indicate according to which document and which article of the law.

Answer

No, the tax inspectorate has no obligation to warn the taxpayer about an upcoming audit. The basis for starting an audit is the corresponding decision of the head of the tax inspectorate or his deputy.

The rationale for this position is given below in the materials of the Glavbukh System, a simplified version.

As a general rule, the decision to conduct an on-site audit is made by the tax office at the location of the organization (). However, in two cases, such a decision is made by the inspectorate with which the organization is registered, regardless of its location. This rule applies to:

• organizations that are recognized as the largest taxpayers ();
• organizations with status ().

Selection criteria for testing

86.8607 (6,7,8,9)

The Tax Code does not establish under what circumstances the head of the inspection (his deputy) can decide to conduct an on-site inspection of an organization. At the same time, a system for planning on-site inspections has been approved and the criteria for selecting organizations to assign on-site inspections to them have been determined ().*

Selection criteria represent specific circumstances or performance indicators, in the presence of which the organization falls into the risk zone of committing a tax offense. For the inspection, the presence of such factors will be the basis for including the organization in the on-site inspection plan. For example, the basis for ordering an on-site inspection may be the frequent change of addresses by an organization or the reflection of a loss in reporting for several years in a row.

An additional criterion for assigning an on-site inspection may be the organization’s participation in. Subject to certain conditions, participants in such projects are entitled to special tax benefits. Therefore, in addition to the list of specific taxes, during inspections of such organizations, inspectors can check the degree of their compliance with the conditions of the project and the indicators of its implementation. In other words, inspectors will check the legality of the application of benefits conditional on participation in a regional investment project. This procedure follows from the provisions of the Tax Code of the Russian Federation. It applies to both current participants in regional investment projects and those who have already lost this status.

What is a tax audit? Tax audit is one of the forms of tax control. The forms of tax control are specified in Article 82 of the Tax Code of the Russian Federation. A tax audit is a procedural action. This action is performed by the tax authority. The tax authority monitors the correctness of tax calculations, as well as the timeliness and completeness of their payment. In essence, a tax audit is a comparison of completed declarations provided to the tax authority with the actual data available in the audited company.

The actions of tax authorities are regulated by Chapter 14, Article 31 of the Tax Code of the Russian Federation. It is worth noting that, according to the current law, notification of a tax audit (if it is desk audit) is not sent. If it is traveling, then the notification must be given to the organization’s accountant in person. Other options are also possible: often the tax authorities call and inform you that they need to pick up the notification themselves. An on-site audit implies that all actions to control the correctness of tax calculations in the organization being audited, their timeliness and completeness are carried out on the territory of the taxpayer being audited. A desk tax audit can usually last up to three months. This period can be extended to six months or even up to a year if the tax authority receives information that radically changes the position of the taxpayer being audited.

It is worth noting that the lists of documents checked by the tax authority may differ depending on the type of audit. The actions of tax authorities are also limited to the list of powers for certain types of audits and depend on them. The powers of the tax authorities may include access to the taxpayer’s territory, inspection of documents, their seizure (or, in other words, seizure), examination, etc.

In addition to on-site inspections, there are counter and desk inspections. Before the introduction of the term “on-site tax audit,” these audits were called documentary. However, these concepts are unlikely to be interchangeable. The peculiarity of an on-site audit is that it is carried out on the territory or premises of the taxpayer, and the peculiarity of a documentary audit is that primary accounting documentation and accounting registers are inspected. The counter inspection is part of the on-site and desk inspection. Desk audits are carried out at the tax authority, and not on the territory of the taxpayer. It is believed that desk audits are one of the reliable sources of budget replenishment. Types of desk checks include formal, arithmetic and regulatory checks.

If we return to the issue of notifications, they can be sent to the taxpayer after an audit has been carried out. This applies to cases where the taxpayer’s presence is necessary at a meeting to review audit materials.

For organizations, an on-site tax audit actually begins on the day the decision to conduct it is made. This decision is made by the tax authority with which the person being audited is registered for tax purposes. The form of the decision was approved by order of the Federal Tax Service of Russia dated December 25, 2006 No. SAE-3-06/892@, and the document must contain the required information:

full and abbreviated name or full name. taxpayer;

the subject of the audit, that is, taxes, the correctness of calculation and payment of which are subject to verification;

the periods for which it is carried out;

positions, surnames and initials of the tax authority employees who are entrusted with its implementation.

There are no deadlines for delivering a decision to begin an inspection, but usually inspectors try to inform the head of the company as quickly as possible. At the same time, there is no point in refusing to sign this document, since it can be sent by registered mail and on the sixth day it will be considered received. But by your actions you can only provoke inspectors into a biased attitude, which can then, as they say, “stand sideways.”

The audit can be carried out for one or more taxes. Most often, the decision contains the following wording: “for all taxes and fees.” This formulation is not a procedural violation, since inspectors are not required to indicate specific taxes, and the composition of taxes may change during the audit. In addition, when opening an inspection, the head of the group of inspectors approves the inspection program with the head of the inspection, which usually includes all taxes, including special regime ones.

As a general rule, a period not exceeding three calendar years preceding the year in which the decision was made is subject to verification. In other words, if you received a decision in June 2012, then the tax authorities can check a maximum of 2009. But there is a small exception. If a company submits an updated declaration during an on-site inspection, then inspectors will check the period for which it was submitted, despite the three-year limitation (letter of the Federal Tax Service of Russia dated September 3, 2010 No. AS-37-2/10613@).

It should also be noted that two or more on-site audits cannot be carried out on the same taxes for the same period. In addition, two or more audits cannot be carried out against one taxpayer during a calendar year. The only exceptions are repeated on-site inspections, the decision to conduct which is made by a higher tax authority. It should also be taken into account that when determining the number of inspections, those that took place in the company’s branches and representative offices are not taken into account.

The period for conducting an on-site tax audit cannot be more than two months. But this does not mean at all that exactly two months after the inspection decision is made, the inspectors will pack up and leave. Inspectors have several legal ways to extend the inspection, and it can drag on for more than six months.

The two-month period can be extended to four months, and in exceptional cases to six. It must be borne in mind that when extending, the period does not add up (two months plus four), but is taken into account as well. That is, if a decision is made to extend it to four months, then the verification will be exactly four months, not six.

Reasons for extending deadlines may include:

conducting inspections of companies classified as the largest;

during the inspection, obtaining information from law enforcement, regulatory authorities or other sources indicating that the person being inspected has violations and requires additional verification;

the presence of force majeure circumstances (flooding, flooding, fire, etc.) in the territory where the inspection is carried out;

conducting inspections of organizations that have several separate divisions (4 or more divisions up to four months; less than 4 - up to four months, if the share of taxes paid attributable to them is at least 50 percent of the total amount of taxes (similarly in cost property); 10 or more units - up to six months);

failure by the person being audited to submit documents within the prescribed period (within 10 days from the date of receipt of the relevant request) necessary for conducting an on-site (repeated on-site) tax audit;

other circumstances (for example, the duration of the period being checked, the volume of documents being checked and analyzed, etc.).

To extend the audit period, tax officials send a reasoned request to a higher authority. On its basis, an appropriate decision is made in the form approved by order of the Federal Tax Service of Russia dated May 7, 2007 No. MM-3-06/281@.

An on-site tax audit ends on the day of signing the certificate of the audit.

On-site tax auditis a type of tax control with its inherent features. Thus, it can be carried out at the location of the taxpayer, and inspectors have the right to check several taxes. If it was still not possible to avoid an on-site inspection by the Federal Tax Service, we recommend that you familiarize yourself with the main nuances of this form of control.

On-site tax audit in 2018: list of features

If you or your organization came to the attention of the tax authorities and received a notification about an on-site tax audit in 2018, you need to familiarize yourself with the features of such an audit:

• An on-site tax audit can be carried out only at the location of the taxpayer (except for the cases specified in paragraph 2, 3, paragraph 2 of Article 89 of the Tax Code of the Russian Federation);

• the main purpose of the audit is to establish whether taxes and insurance premiums were calculated correctly, and whether they were paid on time (clauses 4, 17 of Article 89 of the Tax Code of the Russian Federation);
• the main document confirming the start of an on-site tax audit is the decision to conduct it (clause 1 of Article 89 of the Tax Code of the Russian Federation);
• the period under review cannot exceed 3 years (clause 4 of Article 89 of the Tax Code of the Russian Federation);

When a tax audit may cover a period exceeding 3 years, read the materialsAnd .

• a taxpayer cannot be audited more than once for the same taxes for the same period;
• Only one on-site inspection can be carried out per calendar year (with the exception of when the decision to repeat the inspection is made by the head of a higher tax authority of the Federal Tax Service of the Russian Federation);
• An on-site inspection cannot be assigned in relation to a special declaration (clause 2 of Article 89 of the Tax Code of the Russian Federation), which an individual has the right to voluntarily submit to the Federal Tax Service before 02/28/2019 about the property he has (real estate, transport, deposits in banks or in the charter capital of organizations), as well as about foreign companies controlled by him.

The right of the Federal Tax Service to an on-site inspection

It is legally determined that the right to conduct an on-site tax audit has the tax authority to which the taxpayer belongs territorially. Although there are exceptions that apply to the largest taxpayers and separate divisions.

Also important are the date of registration as a taxpayer with a particular tax authority and the date of amendments to the accounting register.

Thus, if, when changing location, the corresponding changes are not made to the Unified State Register of Legal Entities in a timely manner, then an on-site tax audit will be carried out by the tax authority at the previous location. If such a situation arises due to the fault of the tax inspectorate in connection with violation of registration requirements and deadlines, then an on-site tax audit will also be carried out by the inspectorate at the old place of registration (Resolution of the Federal Antimonopoly Service of the Volga District dated May 29, 2013 No. A65-25327/2012).

Other Federal Tax Service Inspectors do not have the right to order inspections of taxpayers located outside their jurisdiction. Thus, the tax authority, which only registers real estate and transport, but not the taxpayer himself, cannot assign the latter an on-site tax audit.

Decision to conduct an on-site tax audit

As noted above, the start of an on-site tax audit is preceded by the preparation of the main document giving the right to conduct a control event - the decision to conduct an on-site tax audit and, accordingly, its delivery to the inspected legal entity or individual.

This document should be given special attention, as it is the basis for implementing a set of control measures. Often, incompetent inspectors neglect the duty to timely serve and familiarize taxpayers with the decision, but this is a serious mistake and can be used by the persons being inspected as an argument when confirming a violation of procedural norms.

The decision to conduct an on-site tax audit has the right to be made only by the tax authority to which the taxpayer being audited territorially belongs. This document reflects information about the subject of control, the subject of the audit (list of taxes being audited), the audit period and the composition of the audit team. The decision must be signed by the head of the tax office or his deputy.

Where is an on-site tax audit carried out according to the Tax Code of the Russian Federation?

The place for conducting an on-site tax audit is the premises or office of the taxpayer (Clause 1, Article 89 of the Tax Code of the Russian Federation). But sometimes it happens that the size of the premises does not allow the entire inspection team to be located there, and then the audit can be carried out at the tax office.

He must inform himself that the taxpayer does not have the ability to accommodate inspectors, otherwise this decision is made by the head of the inspection team upon visiting and inspecting the taxpayer’s premises.

It should be noted that in practice it happens that the tax authority, without receiving the relevant application and due inspection, decides to conduct an on-site tax audit at the inspectorate. But this indicates that the regulatory authorities are violating the current procedure for conducting on-site tax audits.

This opinion is also supported by the courts. Thus, the FAS Moscow District, in resolution dated August 20, 2010 No. KA-A40/8830-10, canceled the decision made based on the results of an on-site tax audit conducted in a simplified version due to a violation of the procedure.

But at the same time, if the decision of the tax authority does not contain significant errors, then the courts are unlikely to side with the taxpayer just because an on-site tax audit was carried out at the tax office without appropriate notification of the person being inspected (resolution of the Federal Antimonopoly Service of the West Siberian District dated April 26. 2013 No. A75-3810/2012).

An important circumstance is that even when conducting an on-site tax audit on the territory of the regulatory authority, the taxpayer must comply with all the requirements of the inspectors, be it a request to submit documents or a requirement to inspect work premises.

See also: .

How long does an on-site tax audit take?

The term of an on-site tax audit is 2 months, but at the same time, the Tax Code of the Russian Federation gives the tax authorities the opportunity to both extend it and suspend it. Inspectors very often use these opportunities when they need to find out whether a certain business transaction is a violation, or to study additional materials relating to the activities of the person being inspected.

For information on cases when tax authorities can extend the period of an on-site audit, read the material .

The period for which the inspector has the right to extend the inspection is 4 (6) months (clause 6 of Article 89 of the Tax Code of the Russian Federation), and to suspend it is 6 (9) months (clause 9 of Article 89 of the Tax Code of the Russian Federation). Thus, if during a control event tax authorities resort to the methods described above, then the maximum audit period can be 1 year and 3 months.

See material.

An exception is an on-site tax audit of a specific branch or representative office - it must be carried out within 1 month. In this case, the legislator granted controllers only the right to suspend.

The term of an on-site tax audit begins to be calculated from the day the decision to conduct this control event is made, and ends on the day a certificate is drawn up based on the results of the audit (the specified document must be handed over on the same day).

Therefore, we can highlight the main stages of the verification:

• commencement of an on-site tax audit (delivery of a decision to conduct it);
• verification process (maximum - 1 year 3 months);
• completion of the audit (drawing up a certificate of on-site tax audit).

Thus, within the deadlines indicated above, inspectors are required to carry out all planned activities, as well as those that arose during the inspection process. If inspectors received any evidence after the expiration of the deadline, then they do not have the right to attach it to the materials of the on-site tax audit (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 26, 2009 No. F03-2248/2009).

It is also worth noting that such a violation does not imply the cancellation of the decision and the results of the on-site tax audit completely, since there is only one formal circumstance that can influence the court’s decision - this is a violation of the procedure for the participation of the taxpayer in considering the audit materials (paragraph 2, paragraph 14, art. 101 Tax Code of the Russian Federation).

More details about the timing of an on-site tax audit are described in the material .

Results

The purpose of a tax audit is to monitor the correctness of calculation and payment of taxes. The procedure for conducting an on-site tax audit is regulated by Art. 89 Tax Code of the Russian Federation. The results of an audit can be canceled only in cases of significant violations on the part of the tax authority, for example, if the taxpayer is not given the opportunity to participate in the consideration of the audit materials and provide explanations.

The visit of the tax authorities can hardly be called a friendly event. Fortunately, on-site inspections are now carried out quite rarely - the brave employees of the Federal Tax Service are increasingly limited to desk inspections. And yet you always need to be prepared for the fact that one day employees of this department will knock on the doors of your company. The main thing in such cases is not to panic and quickly build the right strategy for interacting with uninvited guests. Let's figure out how to do this.

Tax audit of an organization: features

Let us remind you: an on-site tax audit is an event based on the results of which the tax authorities assess additional taxes, fees and penalties, hold the taxpayer accountable (both tax and administrative) and engage in other legalized types of extortion.

Scheduled on-site inspections are carried out once every three years, and extraordinary ones - a maximum of once a year. Unscheduled inspections usually begin if the tax and law enforcement authorities have repeatedly received complaints from clients, counterparties, competitors or simply “concerned” citizens.

For an entrepreneur, tax audits become a chronic source of conflicts with the Federal Tax Service, which abuses its powers. Tax officials often arbitrarily (in their favor) interpret tax legislation and commit a lot of both minor and very significant offenses. The situation is aggravated by the fact that in 2015 the legislator provided employees of the Federal Tax Service with new opportunities.

Rights and powers of tax inspectors

Federal Tax Service employees directly involved in inspections are vested with a very wide range of powers. They can carry out the following activities:

• inventory – in order to verify the accuracy of the data contained in your documents;
• inspection of any premises related to your commercial activities (shops, warehouses, retail outlets, workshops, etc.);
• requesting documents (for subsequent verification at the Federal Tax Service Inspectorate);
• seizure of documents (to identify and confirm any tax violations);
• conducting an examination (theoretically, with the involvement of an independent third-party expert);
• obtaining an expert opinion (with all the conclusions that the expert considered necessary to indicate in this act);
• questioning of witnesses who may be knowledgeable on issues important to tax officials;
• calling witnesses directly to the Federal Tax Service (for subsequent questioning);
• engaging a translator if some of your documents are in a foreign language.

As you can see, the list is quite solid. However, this does not mean that tax officers have the right to everything. Your task is to ensure that they do not go beyond their powers (and, if possible, to suppress all excesses of this kind).

Out of the blue

Sometimes tax authorities come completely unexpectedly. You did not receive notifications or warnings (or received the corresponding document literally the day before the visit), and the Federal Tax Service is already on the doorstep. How legal is this?

The fact is that the decision to check must first be sent to the head of the company by mail. And not just send, but wait for a response in which the manager must confirm receipt of the letter with the decision and notification. It is clear that the letter does not always arrive the very next day after sending, and you do not check your mailbox every day. But the Federal Tax Service is not interested in this - employees simply count 6 days from the moment the correspondence was sent and come with a check, even if they have not received a response. But the warning requirement is considered fulfilled only after receiving a confirmation letter! Consequently, a tax audit without warning should be considered unlawful. You can’t just keep the inspectors out—that’s fraught. But you will have an additional “ace up your sleeve” if you subsequently have to appeal the decision of the tax authority.

Procedure

If you learned about the upcoming visit of the inspectors at least a day or two in advance, you need to urgently start preparing for the meeting of the “guests”.

1. Immediately bring the primary documentation into compliance with the counterparties’ papers. Their first and second copies of all documents must be absolutely identical. Pay attention to signatures and seals, numbering, dates.
2. Inform your counterparties that they may be receiving a counter-inspection. They will have to confirm to tax inspectors the fact of economic activity, otherwise the money transferred to counterparties (attributable to expenses) will certainly be recognized as additional income. For you, this will mean additional taxes and fines and penalties.
3. Prepare the office. Leave there only those papers, the presence of which will be justified and legal from a legal point of view. Remember: no unnecessary information! Irrelevant documents, seals and stamps - take them all home temporarily. Your task is to limit as much as possible the information that inspectors can get to.

And here it is, the moment of truth - the inspectors are on the threshold. The tax audit has arrived, and something needs to be done next.

1. Ask on what basis the inspection is being carried out (based on citizen complaints or as a result of the expiration of the previous order).
2. Ask to see the inspection order and read it carefully. Often the inspection team includes people who are not designated in any way in the resolution. This may be a simple consequence of staff turnover, but the presence of such persons is a serious offense. You have the right not to let “extra inspectors” through the threshold or to act a little more cunningly (this will be discussed in more detail below).
3. Record all conversations with inspectors on a voice recorder. The recording may become additional evidence of any offense if inspectors commit one.
4. Maintain your composure and always think before you say anything. Almost all experienced tax specialists are good psychologists. It is possible that they will provoke you with “slippery” questions or even exert psychological pressure. If the questions clearly go beyond the scope of business communication, resolutely refuse to answer them (you can appeal to Article 51 of the Constitution, which allows citizens not to testify against themselves and their loved ones).

If you follow these simple rules, surviving a tax raid will become much easier. By the way, you can fight the arbitrariness of inspectors in other ways - more ambiguous, but very effective. Some of them may seem ugly to you. Whether to use them or not is a matter of personal choice.

Tricks and cheat codes

The experience of many entrepreneurs allows us to identify several effective counteractions. With their help, you can minimize the likelihood of being subject to fines and additional payments.

1. Never try to bribe tax officials. This is pure suicide. Remember the advice to record all conversations on a voice recorder? So, tax inspectors do the same thing, and often record what is happening on video.
2. If you notice that tax officials have committed a couple of minor offenses, it is not necessary to immediately incriminate and expose your visitors. Record all the mistakes they made (illegal requests for documents, unlawful demands for information, provocative questions), and then, after making a conclusion, challenge them in a departmental manner. There is a high chance that the actions of the inspectors will be officially recognized as unlawful, and the final inspection report will be invalid.
3. The same can be done if the commission includes people who are not on the list. Record the fact of their presence, clarify their names and positions, and after issuing the act, contact the Federal Tax Service with a complaint. A gross violation of the procedural order leads to the cancellation of the decision made by the inspection commission.
4. Carefully check the report based on the results of the on-site inspection. The amount of accrued fines will be indicated both in this act and in the request for payment of taxes (or in the decision to prosecute, if it comes to that). It is possible that the tax authorities indicate certain amounts in the act, and others in the request or decision. This discrepancy is another good reason for declaring the tax officials’ decision illegal.
5. In case of an unforeseen event, such as the imposition of a property penalty or blocking of an account, you can create a reserve current account.

Always look at the situation to see if it is worth using the methods listed above. Remember that poorly taken measures can sometimes turn against you. The statement that during a tax audit you need to do everything possible - they say, in a critical situation, all means are good - is incorrect.

The most common procedural violations during inspections

So, the scheme is clear: a violation - a complaint in a departmental or judicial manner - declaring the conclusion of the inspection commission illegal (or at least canceling a separate decision). This combination does not always work, but quite often, and with due persistence you can achieve your goal. And if you don’t like to take risks, just carefully monitor the progress of the audit and immediately point out to the Federal Tax Service employees their mistakes.

1. Very often, tax authorities arbitrarily expand the audit questions. Studying information not related to the taxes and tax periods reflected in the original resolution is prohibited - a new decision and a separate audit are required.
2. Inspectors do not have the right to check periods that they have already “processed” before. There are three exceptions: liquidation (or reorganization) of a company, submission of an updated tax return and the adoption of a decision by a higher tax authority to audit the activities of a lower one. This rule is often ignored.
3. Another gross violation is carrying out more than two on-site inspections within one year. The third and subsequent ones are considered unacceptable (in accordance with Article 89 of the Labor Code).
4. Only the Federal Tax Service body with which you are registered can carry out an inspection. Inspections carried out by an inappropriate body are rare, but possible.
5. You can submit objections based on the results of the inspection within 15 days. Sometimes inspectors play a trick and ask the accountant to sign a report with the wrong date. As a result, the period for filing a complaint is artificially shortened (often by just two weeks).
6. Threats and psychological pressure are methods widely used by tax officials. Direct threats of administrative liability and transparent hints of dishonesty are equally unacceptable.
7. Seizure of documents without a reasoned and justified decision.

There can be many tricks and violations, and some of them are almost impossible to recognize. It’s not possible to protect yourself 100% – alas, but this is true. You can only minimize the risks by following the recommendations above.

In 2015, tax audits of organizations began to be more “hardcore” in nature due to the expansion of the powers of the Federal Tax Service. But you shouldn’t be afraid of inspectors - they are not omnipotent. Don’t lose your head, show them your absolute readiness to defend your interests - and everything will end well for you. Tax officials prefer not to get involved with entrepreneurs who can fend for themselves.