What will happen to the overpaid tax amount. Refund of amounts of overpaid tax, due, insurance premiums, penalties, fines

To be offset against the upcoming payments of the taxpayer for this, or other taxes, repayment of arrears on other taxes, arrears of fines and fines for tax offenses or refund to the taxpayer.

The procedure for offset (return) of overpaid (collected) amounts of taxes, penalties and fines is determined Art. 78 and 79 of the Tax Code of the Russian Federation.

The offset of the amounts of overpaid federal, regional and local taxes, as well as penalties for these taxes, is carried out within the framework of the corresponding taxes, and not within the budgets (federal, budget of the constituent entities of the Russian Federation (regional) and local), i.e. overpayments federal taxes counted against federal, regional - against regional, and local - against local. The differentiation of taxes is established in, according to which regional (RN) and local (MN) taxes include:

Corporate property tax (RN)

Gambling business tax (RN)

Transport tax (RN)

Land tax (MN)

Individual property tax (MN)

All other taxes and fees are federal taxes, including taxes payable under special tax regimes.

Thus, for example, any overpayment of income tax can be offset against forthcoming payments of personal income tax, since both of these taxes apply to federal taxes, although income tax at the appropriate rates is credited to federal budget and the budget of the constituent entities of the Russian Federation ( letter of the Ministry of Finance of the Russian Federation dated 02.10.2008 N 03-02-07 / 1-387).

This offset procedure was put into effect on January 1, 2008 (Federal Law of July 27, 2006 No. 137-FZ).

In the general case, the offset or refund of the amount of overpaid tax is made by the tax authority at the place of registration of the taxpayer without accruing interest on this amount. But there are exceptions to this rule, which will be discussed below. In addition, it should be noted that the procedure for offsetting or refunding overpaid tax is also valid for offsetting overpaid tax. advance payments, fees, penalties and fines and applies to both tax agents and payers of fees.

The Tax Code provides for the obligation of the tax authority to inform the taxpayer about each fact of excessive tax payment and its amount within 10 days from the date of discovery of such a fact. The notification form is given in Appendix 6 to the Order dated December 25, 2008 N MM-3-1 / [email protected] Federal Tax Service of Russia "On the establishment information resource results of work on credits and refunds ".

Overpayment of tax can be detected by the taxpayer himself and tax authority is obliged, upon the proposal of the taxpayer, to reconcile the calculations on taxes, fees, penalties and fines. The results of the reconciliation are formalized by an act. The form of the act of joint reconciliation of calculations of taxes, fees, penalties and fines was approved by the Order of the Federal Tax Service of Russia dated 20.08.2007 N MM-3-25 / [email protected]

Offset of the amount of overpaid tax may be made against the upcoming payments of the taxpayer for this or other taxes or for the repayment of arrears on other taxes, arrears in fines or fines to be paid and collected.

Moreover, offset against forthcoming payments is carried out on the basis of a written application of the taxpayer by decision of the tax authority, while offset against the repayment of arrears is taken by the tax authority independently. But the taxpayer is not prohibited from submitting a written statement on the offset of the overpayment of tax on account of the repayment of the arrears.

The decision of the tax authority to offset the overpaid tax against forthcoming payments or arrears is made within 10 days from the date of receipt of the taxpayer's application or from the date of the signing by the tax authority and this taxpayer of an act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out. In addition, the decision to offset the overpaid tax against arrears may be made by the tax authority within 10 days from the date of entry into force of the court decision.

An application for offset or refund of the amount of overpaid tax may be submitted within three years from the date of payment of the specified amount. If the deadline for filing an application for a refund or offset of an overpaid tax amount is missed, the taxpayer has the right to apply to the court with a claim for the refund or offset of the specified amount (letters of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation of January 31, 2008 No. N 03-02-07 / 1-37, dated November 26, 2008 N 03-02-07 / 1-478). (link)

A refund of the amount of overpaid tax at the request of the taxpayer must be made within one month from the date the tax authority receives such an application.

Similarly to the procedure for making a decision on offsetting the overpaid tax, the decision to refund the amount is made by the tax authority within 10 days from the date of receipt of the taxpayer's application for refund of the overpaid tax or from the day the tax authority and this taxpayer signed an act of joint reconciliation of taxes paid by him.

Within five days from the date of the decision, the tax authority is obliged to notify the taxpayer in writing about the decision: about refund or refuse to return. The decision must be handed over against receipt to the head of the organization in person or in another way, on the basis of which it is possible to confirm the fact and date of receipt of the decision.

If, after completing all of the above actions, the overpaid tax is refunded later than one month from the date the tax authority receives the taxpayer's application for refund, then for each calendar day of violation of the refund period the tax authority is obliged to charge interest at the refinancing rate of the Central Bank of the Russian Federation in effect during the period of the violation.

Unlike the amount of overpaid tax, the amount of overpaid tax (advance payment, fees, penalties and fines is only refundable. Such amounts can be offset only if there are arrears on other taxes or arrears on fines, as well as fines subject to collection. tax on future payments is not provided for by the Tax Code.

Excessively collected tax may arise as a result of additional accrual of this tax as a result tax audit and voluntary payment by a taxpayer on the basis of a decision of the tax authority prior to receiving a claim for payment. In addition, a taxpayer may pay tax on the basis of a request from a tax authority to pay, but, in the future, based on a decision of a higher tax authority or a court decision, the decision on additional tax assessment by the tax authority that directly conducted the tax audit will be recognized as unlawful.

In any of the above cases, the tax authority is obliged to refund the excessively collected tax and pay interest at the refinancing rate of the Central Bank of the Russian Federation in effect from the day following the day of collection to the day of the actual tax refund.

If the tax inspectorate independently discovers excessively collected amounts, it is obliged to inform the taxpayer about this within 10 days from the date of establishing this fact to the head of the organization on receipt or in another way confirming the fact and date of receipt of the message.

A taxpayer can independently submit an application for the refund of an excessively collected tax within one month from the date of discovery of the fact of excessive collection or the entry into force of a court decision. If this deadline is missed, the overpayment can be collected only in judicial procedure by filing a statement of claim with the court within three years counting from the day when the taxpayer learned or should have learned about the fact of excessive tax collection

The decision on the refund must be made by the tax authority within 10 days from the date of receipt of the written application from the taxpayer.

Further actions of the tax authority for refund are similar to actions for refund of overpaid tax, with the exception of the period for which interest is accrued, as mentioned above.

S.V. Razgulin,
active state adviser of the Russian Federation, class 3

The taxpayer has the right to a timely offset or refund of overpaid or overly collected amounts of taxes, penalties, fines. The tax authority, for its part, is obliged to make decisions on refunds, send appropriate instructions for refunds to the Federal Treasury for execution, and also offset amounts overpaid (collected).

An interview with an expert was devoted to some issues related to the refund of excessively collected amounts of taxes.

- In what cases can the amount of tax be classified as excessively collected?

Articles 78 and 79 of the Tax Code of the Russian Federation, respectively, are devoted to the excessively paid and excessively collected amounts of tax. Assessment of the amount of taxes as overpaid or overly collected is carried out depending on the basis for the fulfillment of the obligation to pay tax, which is subsequently recognized as absent.

- Can we talk about excessive collection if the taxpayer paid the tax on his own?

The manner in which the obligation to pay tax is fulfilled - by the taxpayer alone or by compulsory collection by the tax authority - has no legal significance.

Moreover, a taxpayer who voluntarily complied with the decisions of the tax authorities, as a law-abiding participant in these legal relations, should not be placed in worse conditions compared to the subject in respect of which the decisions of the tax authorities are enforced forcibly (determination of the Constitutional Court of December 27, 2005 No. 503-О) ...

Excessively collected amounts may be those that are paid by the taxpayer in pursuance of the documents of the tax authority, including, on the basis of an incorrect calculation of the tax authority, an erroneous additional assessment of the tax amount in the card of settlements with the budget.

Let's say a tax audit decision has been made against a taxpayer. And the taxpayer, prior to the entry into force of the decision, paid the amounts owed by the decision and at the same time filed an appeal. In this case, the amounts paid by him can also be recognized as excessively collected?

The payment of amounts due according to a decision taken following the results of consideration of materials of a tax audit, which has not even entered into force, is considered as enforcement rather than as a voluntary payment. The taxpayer, having executed the decision, wishes, for example, to eliminate the risks of interim measures applied to him by the tax authority, to receive a certificate of absence of debt, etc.

According to clause 5 of article 79 of the Tax Code of the Russian Federation, the amount of excessively collected tax is refundable with interest accrued on it. If, as a result of consideration of the subsequent complaint of the taxpayer, the inspectorate's decision is canceled, the taxpayer has the right to claim not only a refund of amounts as excessively collected, but also to receive interest accrued in accordance with paragraph 5 of Article 79 of the Tax Code of the Russian Federation.

Moreover, when appealing the decision of the tax authority in court, the period for applying for a refund of the amount as excessively collected will be calculated not from the date of payment, but from the date of entry into force judicial act on this complaint, which confirms the collection of the excessive amount of taxes.

It turns out that it is enough to indicate the amount in the document of the tax authority in order for it to be considered unnecessarily collected?

Not really. In judicial practice, an approach has been formed in which any amount paid by a taxpayer at the initiative of the tax authority, even in the absence of a tax audit and (or) a requirement to pay tax (penalties, fines), can be deemed unnecessarily collected.

Another example. The tax authority has collected the amount reflected by the taxpayer in tax return... But it turned out that the taxpayer made a mistake himself by overstating the tax amount. Is the amount of arrears in this situation excessively collected, subject to return with interest under Article 79 of the Tax Code of the Russian Federation?

As mentioned earlier, in order to assess the amount of taxes as overpaid or overly collected, it is necessary to establish whether they are calculated by the actions of the taxpayer or tax authority.

Excessive payment of tax arises when the taxpayer, calculating the amount of tax payable to the budget, makes a calculation error, for example, due to ignorance of tax legislation.

In the event that the disputed amount of tax in the tax declaration is calculated by the taxpayer independently without the participation of the tax authority, the enforced collection of this amount by the tax authority under Article 46 of the Tax Code of the Russian Federation is not a basis for qualifying the said amount as excessively collected.

In the given example, the tax amount is overpaid and is subject to refund in accordance with Article 78 of the Tax Code of the Russian Federation, according to general rule, without interest. This position is reflected in the decision of the Presidium of the Supreme Arbitration Court dated 24.04.2012 No. 16551/11 in case No. A41-36076 / 10.

But when the amount overpaid by the taxpayer is offset by the inspectorate against the arrears recorded in the decision based on the results of the tax audit, which is later recognized as invalid, then the corresponding amount is classified as unnecessarily recovered (Resolution of the Presidium of the Supreme Arbitration Court dated 06/11/2013 No. 17231/12).

- What is the deadline for filing applications for the offset (refund) of the excessively collected tax amount?

The decision on the return of excessively collected amounts and interest is made by the tax authority on the basis of an application from the taxpayer.

In accordance with article 79 of the Tax Code of the Russian Federation, a taxpayer can apply for a refund of the amount with an application to the tax authority within one month from the day when the taxpayer became aware of the fact of excessive collection of tax from him, or from the date of entry into force of the court decision.

At the same time, missing the deadline for submitting an application to the inspectorate in practice entails a refusal of the tax authority to refund the amount of excessively collected tax.

The term for filing an application with the court is three years from the day when the person learned or should have learned about the fact of excessive tax collection.

The countdown of the period for appeal will be calculated from the earliest of the dates, which confirms that the taxpayer has information about the fact of overpayment. For example, if at first a reconciliation act was received indicating the overpayment, and then the tax authority's decision to refuse to refund the overpayment was received, then the period for going to court will be calculated from the date of receipt of the reconciliation act.

According to the resolution of the Presidium of the Supreme Arbitration Court dated February 25, 2009 No. 12882/08, the issue of determining the moment when the taxpayer learned or should have learned about the fact of excessive tax payment is decided by considering the totality of all the circumstances relevant in this case. These may be, in particular, the reasons why the taxpayer allowed an overpayment of tax, as well as other circumstances that may be recognized by the court as sufficient for the recognition of the period for the tax refund as not missed.

The date from which the refund period is calculated may depend on "external" factors such as changes in legislation, arbitrage practice in favor of the taxpayer.

The burden of proof of the circumstances that led to the overpayment of tax, by virtue of Article 65 of the Arbitration Procedure Code of the Russian Federation, rests with the taxpayer.

Such a certificate is the basis for starting the countdown only if the taxpayer first learned from it about the overpayment, which previously could not be identified by other means.

- And if there is a disagreement on the amount of the overpayment?

The tax authority, on its own initiative, may propose to conduct a reconciliation. The taxpayer also has the right to initiate reconciliation. Reconciliation of calculations for taxes, fees, penalties and fines is carried out jointly. Based on the results of the reconciliation, the taxpayer receives a joint reconciliation act (subparagraph 5.1 of paragraph 1 of Article 21 of the Tax Code of the Russian Federation). However, as a result of reconciliation, disagreements may be identified and an act signed by the taxpayer about the disagreements on the amounts may be drawn up. This situation requires additional consideration of documents confirming the excessive collection.

I repeat that the certificates on the status of settlements with the budget and acts of reconciliation of settlements issued by the tax authorities do not by themselves interrupt the three-year period for applying to the court for a refund.

- Can the taxpayer ask to set off the excessively collected amounts against the forthcoming payments?

Formally, article 79 of the Tax Code of the Russian Federation indicates the offset of excessively collected amounts against existing arrears or their return. However, if there is a corresponding application from the taxpayer, such offset does not contradict the Tax Code of the Russian Federation.

- In what form is the return application submitted?

In accordance with paragraph 2 of Article 79 of the Tax Code of the Russian Federation, the refund of the amount of excessively collected tax is carried out on the basis of a written application of the taxpayer or an application in electronic form with an enhanced qualified electronic signature sent via telecommunication channels.

From July 1, 2015, individual taxpayers can send to the tax authority an application for the return of the amount of overpaid (collected) tax (due, penalty, fine) through

Personal account of the taxpayer, signing it with an enhanced unqualified electronic signature.

A written application can be made in any form.

- But is there an application form for offset (return) approved by the Federal Tax Service?

Indeed, Appendices 8 and 9 to the Order of the Federal Tax Service of Russia dated February 14, 2017 No. ММВ-7-8 / [email protected](registered with the Ministry of Justice on March 17, 2017 No. 46000) approved the application forms for the return (offset) of the amount of overpaid (collected, subject to reimbursement) tax (due, insurance premiums, penalties, fines) used by tax authorities when offsetting and refunding amounts overpaid ( collected) taxes, fees, insurance premiums, penalties, fines.

At the same time, the Tax Code of the Russian Federation does not provide for the submission of applications for the offset (refund) of the tax amount in the form established by the Federal Tax Service. Thus, the form of this application can be arbitrary. And the refusal of the tax authority to carry out a refund or offset due to the submission of an application in a form not established by the Federal Tax Service is illegal.

Note, by Order of the Federal Tax Service of Russia dated May 23, 2017 No. ММВ-7-8 / [email protected] the recommended formats for submission of an application for the return of the amount of overpaid (collected, subject to reimbursement) tax (due, insurance premiums, penalties, fines) and an application for offsetting the amount of overpaid (subject to reimbursement) tax (due, insurance premiums, penalties, fines) in electronic form.

- Under what conditions can the tax authority refuse to set off (return) an excessively collected amount?

From paragraphs 1, 3 of Article 79 of the Tax Code of the Russian Federation, it follows that a decision on the offset (refund) may be refused if:

in the application it is indicated to carry out a set-off against a tax of a different type (taking into account paragraph 1 of article 12 of the Tax Code of the Russian Federation, an overpayment of federal taxes can only be set off against federal taxes, for regional - at the expense of regional, for local - at the expense of local);
the application has been submitted to an inappropriate tax authority (not at the place of registration of the taxpayer);
an application for a refund is submitted with an existing tax arrears of the corresponding type, arrears in fines, fines (it should be noted that the tax authority has the opportunity to set off the excessively collected amount towards repayment of the taxpayer's debt);
the application was submitted to the tax authority after one month from the day when the taxpayer became aware of the fact of excessive collection of tax from him or from the date of entry into force of the court decision.

- What is the specificity of the procedure for offsetting (refunding) the amounts of insurance premiums established by the Tax Code?

Refunds to the payer of insurance premiums of the amount of excessively collected insurance premiums, if he has arrears on the corresponding fines, fines, is made only after this amount is set off towards the repayment of the specified arrears under the corresponding budget of the state extrabudgetary fund to which this amount was credited.

Refund of the amount of overpaid (collected) insurance premiums for compulsory pension insurance is not performed if, according to the message of the territorial management body By the Pension Fund information on the amount of overpaid collected insurance premiums for compulsory pension insurance is presented as part of individual (personified) accounting information and recorded on individual personal accounts of insured persons in accordance with the legislation in the compulsory pension insurance system.

Insurance premiums, which are established by Federal Law No. 212-FZ of July 24, 2009, and insurance premiums established by the Tax Code of the Russian Federation - various obligatory payments. The letter of the Ministry of Finance dated 01.03.2017 No. 03-02-07 / 2/11564 is devoted to the issues of offset (refund) of overpayment, as well as the repayment of arrears on insurance premiums established before January 1, 2017, and arrears in payment of penalties (fines).

Will interest be charged on arrears for another tax when offsetting the amounts of excessively collected tax on account of its repayment?

When offsetting an excessively collected tax on account of repayment of arrears, on the basis of Article 75 of the Tax Code of the Russian Federation, penalties are charged on the amount of this arrears until the decision on offset is made.

Here we will pay attention to the difference between the procedures for clarifying the payment provided for by paragraph 7 of Article 45 of the Tax Code of the Russian Federation and offsetting the overpaid (collected) tax against arrears. As a result of the clarification, the tax is actually recognized as paid properly, as a result of which there are no grounds for calculating penalties (letter of the Federal Tax Service of Russia dated 11.04.2017 No. ZN-4-22 / 6853).

- Is it possible to immediately go to court with an application for the return of excessively collected amounts?

Excessively paid taxes (penalties, fines) must be distinguished from unnecessarily collected. For the return (offset) of excessively collected amounts, you can apply directly to the court, without first submitting an application to the inspectorate. This is stated in the resolution of the Presidium of the Supreme Arbitration Court dated 20.04.2010 No. 17413/09.

Article 79 of the Tax Code of the Russian Federation does not contain indications that a taxpayer has the right to file a claim with a court, subject to a pre-trial appeal to the tax authority. Such a procedure has not been established and otherwise federal law, which follows from clause 65 of the resolution of the Plenum of the Supreme Arbitration Court dated July 30, 2013 No. 57.

In addition, the provisions on the compulsory offset of overpayment amounts towards repayment of arrears, arrears in fines, and fines are applicable only if these amounts are returned by the tax authority in an administrative manner, that is, without going to court. At the same time, the appeal to the tax authorities regarding the return of the collected amounts should not be neglected. Firstly, this procedure is shorter in time: as a general rule, the tax authority has 10 days to make a decision. Secondly, the appeal to the tax authority does not require the payment of the state duty.

Imagine that the taxpayer has paid the amounts additionally assessed by the decision of the tax authority, which was adopted based on the results of consideration of the materials of the tax audit. Can a taxpayer apply to the court for the return of these amounts without appealing the said decision?

Maybe. Challenging non-normative acts of tax authorities and claiming excessively collected tax are independent procedures. This is stated in the ruling of the Supreme Court dated 20.07.2016 No. 304-KG16-3143.

When the taxpayer disputes the decision on the audit, the court decides on the legality of this abnormal legal act... Based on the results of the relevant procedure, the decision may be declared invalid, which, in particular, excludes the subsequent collection of tax on its basis.

In the event that a taxpayer initiates a procedure for reclaiming an excessively collected tax, then the court also decides on the legality of a non-normative legal act, as a result of which the tax authority may be obliged to return the tax already collected in excess on the basis of an illegal act, without recognizing this act invalid.

- Excessively collected amounts are returned with interest. How is this interest calculated?

Interest on the amount of excessively collected tax is calculated from the day following the day of collection until the day of actual refund. Please note that interest is accrued not only on excessively collected tax, but also on advance payments, fees, penalties, fines.

Interest rate is taken equal to the refinancing rate in force on these days ( key rate) The central bank... To determine the rate for a calendar day, divide the rate by the number of days in a year.

- Is the interest returned from the budget taxed at the recipient?

Based on subparagraph 12 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when determining tax base corporate income tax does not include income in the form of interest received from the budget (off-budget fund) in accordance with the requirements of Articles 78, 79, 176, 176.1 and 203 of the Tax Code of the Russian Federation.

Therefore, no income tax is paid from the amount of interest received from the budget under Article 79 of the Tax Code of the Russian Federation. For the same reasons, taxpayers who use the simplified tax system do not pay tax.

There are no norms similar to those in subparagraph 12 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, Chapter 23 of the Tax Code of the Russian Federation does not contain. However, in accordance with the letter of the Ministry of Finance dated 06/08/2015 No. 03-04-07 / 33140, the amount of interest received by individuals in accordance with Articles 78 and 79 of the Tax Code of the Russian Federation should not be taken into account when determining the tax base for personal income tax. This letter provides simultaneously two different grounds for exemption from taxation: the lack of economic benefits for an individual in obtaining interest and the compensatory nature of interest, that is, reimbursement of costs associated with excessive retention tax.

The Tax Code provides for procedures under which payers of certain fees can return the amounts overpaid to the budget or excessively collected by the state. Implementation given right should be carried out in accordance with the provisions of individual articles of the Tax Code of the Russian Federation, first of all, 78 and 79. The first regulates the procedure for refunding the taxpayer and offsetting overpaid fees into current payments. The structure of this article assumes a fairly detailed regulation of the corresponding activities of the Federal Tax Service. The second article specifies the algorithm for refunding taxes that were unnecessarily collected. What is the specificity of the noted procedures? What is the correct way for a taxpayer to exercise his right to a refund or offset of fees?

Purpose of article 78

Art. 78 of the Tax Code of the Russian Federation is a source that regulates the procedure for offsetting or legal refund of taxes and other payments to the budget that are overpaid by one or another entity - a citizen or an organization. Similar scenarios can be formed if the taxpayer calculated a larger tax than was necessary, or actually transferred to the budget an amount exceeding the amount that had to be paid. It will be useful to study the structure of Art. 78 of the Tax Code of the Russian Federation separately for paragraphs.

Paragraph 1

This element of the considered article of the Tax Code of the Russian Federation includes provisions establishing that the amounts excess taxes should be offset against the current obligations of a citizen or organization for the current budgetary commitment, repayment of arrears on other taxes, as well as debts on fines and fines, or returned in the manner that is regulated by the relevant article of the Tax Code of the Russian Federation. In present in Art. 78 clause 1 of the Tax Code of the Russian Federation also states that the offset of excessive federal, regional and municipal taxes, as well as penalties for them, is carried out in correlation with similar types of budgetary obligations.

Point 2

The second paragraph of the article under consideration of the Tax Code of the Russian Federation includes provisions according to which the offset or refund of excess taxes should be carried out by the territorial subdivision of the Federal Tax Service at the place of registration of the payer, unless other norms are included in the Tax Code of the Russian Federation. The considered paragraph of Art. 78 also includes a provision whereby payments are generally refunded without accruing any interest.

Point 3

The next paragraph of the article under consideration includes provisions according to which the Federal Tax Service must inform the payer about the revealed facts of overpayment of certain taxes, as well as about the amounts of those no later than after the expiration of a period of 10 days after the discovery of excessive transfers. If the tax authorities are not sure that the overpayment has actually been made, but assume that it may be, then they can offer the taxpayer to carry out a joint reconciliation of the calculated indicators for the corresponding payments.

Point 4

The considered paragraph of Art. 78 states that for implementation legal right to offset overpayments against current liabilities, the taxpayer must send a written application to the tax office. This document can also be submitted in in electronic format- provided that it can be signed with an enhanced qualified digital signature, or through the taxpayer's online office. The decision to deduct the amount of excess taxes is made by the Federal Tax Service no later than after the expiration of a period of 10 days after the department receives the relevant application from a citizen or organization, or from the date of the signing of the Federal Tax Service and the payer of an act confirming the implementation of joint reconciliation of the payment of fees, if any was carried out.

Clause 5

In paragraph 5 of the article under consideration, it is said that the offset of overpayments towards repayment of tax arrears should be carried out by the Federal Tax Service on its own. An additional application to the tax office, therefore, does not generally need to be sent to the subject of payment of fees. The FTS is obliged to comply with the requirements of the considered paragraph of Article 78 within 10 days after the fact of the overpayment is discovered, or from the date of the signing of the FTS and the taxpayer of an act confirming the joint reconciliation of payments. In some cases, the deadline for the fulfillment of the relevant prescription is counted from the moment of issuance judgment if accepted in view of a tax hearing.

The considered paragraph of Art. 78 of the Tax Code of the Russian Federation includes provisions that establish that the taxpayer, despite the fact that this action is not mandatory by force of law, still has the right to send a statement to the Federal Tax Service, which is referred to above. This can be done, for example, in order to speed up the process of crediting overpayments into future payments. In this case, the tax authorities must set off the corresponding amounts within a period not exceeding 10 days after the receipt of the document from the taxpayer, or from the day when the act on joint reconciliation of payments was signed, subject to such.

Point 6

Let us now consider how the return of overpayments to the budget is carried out. This procedure is regulated by clause 6 of Art. 78 of the Tax Code of the Russian Federation. The amount of the tax overpayment must also be returned by the Federal Tax Service to the payer upon a written application, which can be generated in electronic form, provided that it is signed using a qualified digital signature.

The FTS is obliged to refund the tax no later than 1 month after receiving the relevant application. In the provisions of paragraph 6 of Art. 78 of the Tax Code of the Russian Federation also states that if a taxpayer sending a request for a refund of overpayments to the Federal Tax Service has arrears, they are first covered. If, in fact, the settlement of debts remains a certain amount, a refund is possible.

Clause 7

According to the norms of paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application to the Federal Tax Service, sent by a taxpayer who intends to set off or legally return a tax overpayment, can be drawn up and submitted to the department within 3 years from the moment when excess amount submitted to the budget, unless otherwise provided by regulatory enactments related to the field of taxes and fees.

Clause 8

In accordance with the paragraph under consideration, the FTS must decide to compensate the citizen or organize overpaid fees within a period that does not exceed 10 days after receiving the FTS application, or from the day the department and the subject of tax payment signed the reconciliation act - if such was carried out. In paragraph 8 of Art. 78 of the Tax Code of the Russian Federation also states that an order for the return of the corresponding overpayment, drawn up on the basis of the decision taken by the Federal Tax Service to compensate the corresponding amount, is sent by the Federal Tax Service to the Federal Treasury, which, in turn, makes settlements with the applicant in accordance with the budget laws of the Russian Federation. ...

Clause 9

According to the norms of clause 9 of Article 78 of the Tax Code of the Russian Federation, the tax authorities are obliged to inform the payers about the decision taken on offset or refund of overpayments, which may consist in approving the implementation of this procedure or refusing to carry it out. The first or second activity must be carried out within a period not exceeding 5 days after the consideration of the issue. The notification from the Federal Tax Service is transmitted to the head of the company, an individual, their representatives against a receipt or others in an accessible way, which can confirm the receipt of this information.

If we are talking about the interaction of the Federal Tax Service and consolidated group taxpayers, the amount of tax overpayments must be offset or returned to the responsible member of the relevant association. If the agreement on its formation has terminated, then the refund or offset of fees is carried out at the request of the responsible entity. This operation is not carried out if the responsible participant, included in the consolidated group, has arrears, fines and other penalties to the budget.

Clause 10

In accordance with the norms of clause 10 of article 78 of the Tax Code of the Russian Federation, the amount to be returned or offset increases in correlation with the refinancing rate of the Central Bank, if settlements on it between the Federal Tax Service and the taxpayer are not made within the time period specified in clause 6 of the article in question of the Tax Code of the Russian Federation ...

Clause 11

According to the norms of clause 11 of Article 78 of the Tax Code of the Russian Federation, territorial structure The Federal Treasury, which carries out a refund of tax overpayments, must notify the Federal Tax Service of when the due amount was actually transferred to the taxpayer and in what volume.

Clause 12

If the interest that supplements the overpaid fee in accordance with the provisions of clause 10 of the article in question of the Tax Code of the Russian Federation is not transferred to the applicant in full, then the FTS decides to compensate the remaining, which are calculated based on the date of actual crediting of the corresponding amounts to the taxpayer. This activity must be carried out by the Federal Tax Service no later than 3 days after the receipt of information on the return date from the Federal Treasury. Money, as well as the sum of those. The necessary FTS, in turn, must send to the Federal Treasury.

Clauses 13 and 14

In accordance with paragraph 13 of the considered article of the Tax Code of the Russian Federation, offset or compensation for tax overpayments should be carried out in Russian rubles... Clause 14 prescribes the application of the norms fixed in Article 78 of the Tax Code of the Russian Federation, not only to taxes, but also in relation to other obligations: penalties, fines, and various fees. The relevant rules set forth in Article 78 should also apply, based on the norms of clause 14, to the subjects of payment of fees to the budget and the responsible participants of consolidated groups of payers. The considered paragraph of Article 78 also establishes that the tax RF must apply the relevant rules also in the process of offsetting or refunding overpayments for VAT, which is subject to reimbursement in accordance with the procedure established by law.

Clause 15

Clause 15 of Art. 78 of the Tax Code of the Russian Federation fixes the rule according to which the fact of specifying a subject as the owner of assets in a special declaration, which is presented in accordance with the Federal Law "On Voluntary Declaration", as well as the transfer of such property to the actual owner cannot be the basis for recognizing certain payments to the budget unnecessary.

As follows from the norms contained in article 78 of the Tax Code, the tax paid to the treasury is recognized as excessively collected due to additional charges upon the fact of a tax audit or voluntary payment by the taxpayer. Another scenario for the appearance of corresponding overpayments is a change in the tax base as a result of a court decision or an order of a higher structure of the Federal Tax Service.

Is it possible to refund the tax under Article 78 to non-residents of the Russian Federation?

Many payers are concerned about the question: can non-residents of the Russian Federation return taxes overpaid to the budget? Foreigners and citizens of Russia who live in the Russian Federation for less than half of 365 days are considered as such. As evidenced by expert materials on Art. 78 of the Tax Code of the Russian Federation with comments, this procedure is possible. Let's consider its nuances.

The main feature of taxation of non-residents of the Russian Federation is that they pay personal income tax in the amount of 30%, while in general the tax is calculated at the rate of 13% of income. The need to return the appropriate fee in the manner prescribed by the provisions of Art. 78, may arise due to an incorrect definition and erroneous calculation of personal income tax at a rate of 30% instead of 13%. In general, the algorithm according to which the return of overpayments to the budget is carried out in this case is the same as in the case with other grounds for applying this procedure. That is, the payer must submit to the Federal Tax Service, as prescribed by paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, a statement, after - wait for the tax authorities to make a decision. It will be helpful to consider how it should be drafted.

How to file a tax refund application?

Application form for legal refund of overpayments from state budget generally unified. In the upper right part of this document it is necessary to indicate to whom it is sent. In general, this is the head of the territorial inspectorate of the Federal Tax Service for municipality in which the taxpayer operates. So we write: "To the head of the Inspectorate of the Federal Tax Service for a certain city or region." Below it is necessary to record from whom the application is sent. We write "From this and that." The next item is an indication of the applicant's passport data (series of the document, its number, date of issue, as well as the authority in which the document is drawn up). The tax refund application form must also contain the taxpayer's registration address - we fix it in the line below. Next, we write in the middle of the page "Application". Below we substantiate our appeal to the Federal Tax Service with a phrase of the form “In accordance with the norms of clause 6 of Art. 78 of the Tax Code of the Russian Federation, in connection with the overpayment of tax, I ask you to transfer the amount due to the refund to such and such a personal account. "

Next, we fix the details of the corresponding bank account. These are most often: name of the recipient, TIN, name of the bank, BIC, correspondent. Below we put the date of the document, the signature and its decryption. What can an overpaid tax refund application look like? A sample of this source might look like this:

Differences in the respective application may be due primarily to the type of tax, fee, fine and other type of payments to the budget. So, it can be carried out refund of personal income tax or, for example, as we noted above, VAT.

Articles 78 and 79 of the Tax Code of the Russian Federation: how are they related?

It can be noted that in Tax Code there is an article very close to Art. 78 - 79. The Tax Code of the Russian Federation in it regulates the procedure for the return of amounts for taxes and other obligations that were unnecessarily collected. Let's examine its most notable points.

So, in paragraph 1 of Art. 79 states that the return of excess payments to the budget should be carried out only if the correct offset of the corresponding amount in favor of repayment of possible arrears has been made. If it turns out that there are none, then only in this case the FTS will have to carry out the procedures provided for in Article 79 of the Tax Code of the Russian Federation. In accordance with the rules contained in paragraph 2 of Art. 79 of the Tax Code of the Russian Federation, the decision of the Federal Tax Service to refund excess taxes to the payer must be made within a period that does not exceed 10 days after the department receives the application. Its form will generally be similar to that which is applied in the case of the exercise of the right to offset payments overly transferred to the state.

The FTS interacts with the Federal Treasury in the course of the procedure for refunding payments, as in the scenario when the overpaid tax is set off in accordance with Article 78. So, the tax authorities must send instructions to this department for the return of the corresponding amounts, which are formed on the basis of decisions of the Federal Tax Service. Taxpayers can send an application for the return of excess fees to the Federal Tax Service within 1 month from the moment they become aware of the facts of overpayments to the budget.

In some cases, the right to the implementation of appropriate compensation for the subjects of payment of fees must be proven in court. Statement of claim, the subject of which is confirmation legal grounds for a tax refund can be drawn up within a period of 3 years from the moment the taxpayer detects the fact of excessive collection.

The fact that the budget is an unnecessarily collected tax, the Federal Tax Service must independently notify, as follows from the norms of paragraph 4. of Art. 79 of the Tax Code of the Russian Federation, the subject of fulfilling obligations to the budget within a period that does not exceed 10 days after the relevant fact is established.

The amount of tax charged to the budget in excess of the required amount must be returned to the applicant, based on the norms of paragraph 4 of Art. 79 of the Tax Code of the Russian Federation, no later than 1 month from the moment of sending an application to the Federal Tax Service on established form... Also, in some cases, interest is charged in excess of it in correlation with the refinancing rate indicator of the Central Bank.

If the subject of interaction with the Federal Tax Service is a consolidated group of enterprises, then the tax is returned to the accounts of the responsible participant of this association.

The territorial structure of the Federal Treasury must notify the Federal Tax Service about settlements with the taxpayer, as in the case of the procedure for offsetting excess taxes under Article 78 of the Tax Code of the Russian Federation.

1. The amount of overpaid tax is subject to offset against forthcoming payments of the taxpayer for this or other taxes, repayment of arrears on other taxes, arrears of fines and fines for tax violations, or refund to the taxpayer in the manner prescribed by this article.

Overpaid federal taxes and fees, regional and local taxes are offset against the corresponding types of taxes and fees, as well as penalties charged on the relevant taxes and fees.

1.1. The amount of overpaid insurance premiums is subject to offset according to the corresponding budget of the state extra-budgetary fund Russian Federation, to which this amount was credited, on account of the upcoming payments of the payer for this contribution, arrears of corresponding penalties and fines for tax violations, or the return to the payer of insurance premiums in the manner prescribed by this article.

2. The offset or refund of the amount of overpaid tax is made by the tax authority at the place of registration of the taxpayer, unless otherwise provided by this Code, without accruing interest on this amount, unless otherwise provided by this article.

3. The tax authority is obliged to inform the taxpayer about each fact of excessive payment of tax and the amount of excess tax that has become known to the tax authority within 10 days from the date of discovery of such a fact.

If facts are discovered that indicate a possible excessive payment of tax, at the suggestion of the tax authority or the taxpayer, a joint reconciliation of calculations of taxes, fees, insurance premiums, penalties and fines may be carried out.