41. Rights of tax authorities (beginning) Tax authorities have the right to: – demand from the taxpayer or tax agent documents in the forms established by state bodies and local governments, which serve as the basis for calculation and payment

42. Rights of tax authorities (end) - to summon taxpayers, fee payers, tax agents on the basis of a written notification to the tax authorities to give explanations in connection with their payment (transfer) of taxes or in connection with tax

43. Responsibilities of tax authorities Tax authorities are assigned responsibilities, the fulfillment of which serves as a guarantee of the implementation of the rights of taxpayers. The main responsibilities are as follows: – comply with the legislation on taxes and fees; – exercise control over

46. ​​The obligation of bodies, institutions, organizations and officials to report to the tax authorities information related to the registration of taxpayers (beginning) 1. The judicial authorities that issue licenses for the right of notarial activity and empower notaries,

47. The obligation of bodies, institutions, organizations and officials to report to the tax authorities information related to the registration of taxpayers (end) 6. Bodies (institutions) authorized to perform notarial acts, and notaries involved in private

1. The economic essence of taxes Taxes are a source of generating state budget revenues, therefore they are inextricably linked with the functioning of the state itself and, accordingly, directly depend on the level of development of the state itself. Through

3. The rights of tax authorities to conduct inspections. A tax inspector sent to inspect trade objects is required to have an inspection resolution signed by the head of the tax authority. If the tax inspector does not have a resolution to

6. Requirements of tax authorities for the use of cash registers You must remember for the rest of your adult life that all issues of regulation - the acquisition and use of cash registers are considered in Law No. 54-FZ of May 22, 2003 “On the use of cash register equipment in

The commented article establishes the unconditional right to appeal against non-normative acts of tax authorities, as well as actions (inactions) of tax authority officials.

The right to appeal can be exercised by any person only if he complies with the procedure for appeal established by law. The procedure consists of the sequence of actions to exercise your right to appeal.

Paragraph 1 of Article 137 of the Tax Code of the Russian Federation provides any persons with the right to appeal:

Acts of a non-normative nature;

Actions or inactions of tax authorities.

A condition for exercising the right to appeal is the presence of a person’s subjective opinion that specific acts of tax authorities, actions or inactions of tax authorities officials violate the rights granted to him.

When applying Article 137 of the Tax Code of the Russian Federation, it is necessary to proceed from the fact that an act of a non-normative nature, which can be challenged in an arbitration court by presenting a demand for recognition of the act as invalid, is understood as a document of any name (demand, decision, resolution, letter, etc.), signed by the head (deputy head) of the tax authority and relating to a specific taxpayer.

When interpreting these articles, it should be taken into account that the concept of “act” is used in them in a different meaning than in Articles 100, 101.1 (clause 1) of the Tax Code of the Russian Federation.

When applying Articles 137 and 138 of the Tax Code of the Russian Federation, it is necessary to proceed from the fact that an act of a non-normative nature, which can be challenged in an arbitration court by presenting a demand for recognition of the act as invalid, is understood as a document of any name (demand, decision, resolution, letter, etc.) , signed by the head (deputy head) of the tax authority and relating to a specific taxpayer.

In addition, since the Tax Code of the Russian Federation does not establish otherwise, he has the right to appeal to the court the demand for payment of tax, penalties and the demand for payment of tax sanctions, regardless of whether he challenged the decision of the tax authority on the basis of which the corresponding demand was made (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5).

“The regulatory provisions contained in Articles 137 and 138 of the Tax Code of the Russian Federation, in conjunction with the provisions of Articles 29 and 198 of the Arbitration Procedure Code of the Russian Federation, do not exclude the appeal to the arbitration court of decisions (acts of a non-regulatory nature) of any officials of tax authorities and, accordingly, the powers of the arbitration court at the taxpayer’s request, check their legality and validity.”

It should be remembered that from January 1, 2009, the pre-trial procedure for appealing a decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense will become mandatory in accordance with clause 5 of Article 101.2 of the Tax Code of the Russian Federation (clause 16 of Article 7 of the Federal Law No. 137-FZ).

Tax authorities in the Russian Federation are the federal executive body authorized for control and supervision in the field of taxes and fees (FTS) and its territorial divisions.

The second part of Article 137 of the Tax Code of the Russian Federation provides for the possibility of appealing against regulatory legal acts of tax authorities, that is, acts that create, amend or abolish certain rules of law.

The grounds for appealing regulatory legal acts may be different:

§ their inconsistency with the Constitution of the Russian Federation;

§ federal constitutional laws;

§ federal laws;

§ regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation.

Depending on the grounds for the appeal, its procedure is established. Regulatory acts of tax authorities can be appealed in court through:

§ constitutional;

§ administrative;

§ civil proceedings.

Appeals by taxpayers or tax agents against acts, actions or inactions of tax authorities arise from the right of citizens guaranteed by the Constitution of the Russian Federation to judicial protection of their violated rights. In accordance with the Constitution of the Russian Federation, decisions and actions (or inaction) of state authorities, local governments and officials can be appealed to the court.

Based on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on April 4, 1950), a constitutional norm is formulated and, accordingly, this right cannot be limited in any way:

Every citizen has the right to a fair and public hearing for the protection of his civil rights;

Every citizen is considered innocent until his guilt is established legally.

The constitutional human right also applies to legal entities.

On the right of a taxpayer to appeal acts of tax authorities, as well as actions (inaction) of their officials, also see Article 21 of the Tax Code of the Russian Federation.

The taxpayer is legally given the right to choose the procedure for appealing against violated rights. General issues of the procedure for such an appeal are regulated by the commented article.

The constitutional guarantee of the right to judicial protection, in accordance with the generally recognized principles and standards of international law, allows you to simultaneously appeal unlawful actions or inactions in the opinion of the taxpayer, as well as acts of tax authorities, both to a higher body (superior official) and to the court; moreover, it does not exclude the right to subsequently file a similar complaint in a court of competent jurisdiction.

At the same time, the absence of such guarantees for tax officials and only their formal obligation to comply with the legislation of the Russian Federation often tip the scales towards departmental interests, thus calling into question the objectivity of consideration of a complaint within the administrative process.

The concepts of “superior tax authority” and “superior official” used in the commented article are not identical; for example, the actions or inactions of a tax inspector are appealed not to a superior tax authority, but to its head, that is, a superior official.

Note!

According to paragraph 5 of Article 101.2 of the Tax Code of the Russian Federation, from January 1, 2009, a decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense can be appealed in court only after appealing this decision to a higher tax authority.

According to paragraph 3 of Article 9 of the Tax Code of the Russian Federation, tax authorities are the federal executive body authorized for control and supervision in the field of taxes and fees, and its territorial bodies. Therefore, applications for invalidation of normative legal acts regulating tax relations adopted by other bodies can be considered by arbitration courts only in cases where the possibility of considering such applications is provided for by other federal laws (clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 80) (Appendix No. 124).

Paragraph 2 of Article 138 of the Tax Code of the Russian Federation establishes the jurisdiction of certain complaints to the courts of relevant jurisdiction.

This jurisdiction depends on the status of the person appealing acts (including regulations) of tax authorities, actions or inactions of their officials. So, if an organization or individual entrepreneur appeals against them, then the statement of claim is filed with the arbitration court. The procedure for filing a claim is determined by the Arbitration Procedure Code of the Russian Federation.

The statement of claim is submitted to the arbitration court in the manner established by Chapter 14 of the Arbitration Procedure Code of the Russian Federation. The statement of claim is submitted in writing, indicating the necessary details established by Article 125 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6).

The arbitration court issues a ruling on acceptance of the statement of claim, which initiates proceedings in the case.

The determination specifies the preparation of the case for trial, the actions that must be performed by the persons participating in the case, and the timing of their implementation.

Copies of the ruling on acceptance of the statement of claim for proceedings by the arbitration court are sent to the persons participating in the case no later than the next day after the day it is issued.

It should be taken into account that the statement of claim may be left without progress (Article 128 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6)):

The arbitration court, having established, when considering the issue of accepting the statement of claim for proceedings, that it was filed in violation of the requirements established by Articles 125 and 126 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6), issues a ruling to leave the statement without progress.

In the ruling, the arbitration court indicates the grounds for leaving the statement of claim without progress and the period during which the plaintiff must eliminate the circumstances that served as the basis for leaving the statement of claim without progress.

A copy of the ruling on leaving the statement of claim without progress is sent to the plaintiff no later than the next day after the day it is issued.

If the circumstances that served as the basis for leaving the statement of claim without progress are eliminated within the period established in the ruling of the arbitration court, the application is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court.

If the circumstances specified in Part 2 of Article 128 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6) are not eliminated within the time period established in the ruling, the arbitration court returns the statement of claim and the documents attached to it in the manner prescribed by Article 129 of the Arbitration Procedure Code of the Russian Federation.

In accordance with Article 129 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6), the arbitration court returns the statement of claim if, when considering the issue of accepting the application, it establishes that:

1) the case is not within the jurisdiction of this arbitration court;

2) one statement of claim combines several claims against one or more defendants, if these claims are not interconnected;

3) before the ruling on the acceptance of the statement of claim for the proceedings of the arbitration court, the plaintiff received a request to return the statement;

4) the circumstances that served as the basis for leaving the statement of claim without progress have not been eliminated within the period established in the court ruling.

The arbitration court also returns the statement of claim if the request for a deferment, installment payment of the state duty, or a reduction in its amount is rejected.

The arbitration court issues a ruling on the return of the statement of claim.

The determination indicates the grounds for returning the application and resolves the issue of returning the state duty from the federal budget.

A copy of the ruling on the return of the statement of claim is sent to the plaintiff no later than the next day after the day the ruling was issued or after the expiration of the period established by the court to eliminate the circumstances that served as the basis for leaving the statement without progress, along with the statement and the documents attached to it.

The arbitration court's ruling to return the statement of claim may be appealed.

In case of cancellation of the ruling, the statement of claim is considered filed on the day of the initial application to the arbitration court.

The return of the statement of claim does not prevent the repeated filing of the same claim with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for its return.

Individuals who are not individual entrepreneurs must appeal against acts (including regulations) of tax authorities, actions or inactions of their officials, by filing a statement of claim in a court of general jurisdiction.

The Code of Civil Procedure of the Russian Federation (Chapter 25) regulates issues related to filing complaints against the actions of government bodies and officials that violate the rights and freedoms of citizens to courts of general jurisdiction. In accordance with Article 254 of the Code of Civil Procedure of the Russian Federation (Appendix No. 5), citizens and organizations have the right to challenge in court a decision, action (inaction) of a government body or official if they believe that their rights and freedoms have been violated. Citizens and organizations have the right to appeal directly to the court or to a higher authority in the order of subordination, to an official. The application is submitted to the court with jurisdiction established by Articles 24 - 27 of the Code of Civil Procedure of the Russian Federation (Appendix No. 5). An application may be submitted by a citizen to the court at the place of his residence or at the location of the government body, official, whose decision or action (inaction) is being challenged.

For citizens to file a claim in court, in accordance with Article 256 of the Code of Civil Procedure of the Russian Federation, the following deadlines are established:

"1. A citizen has the right to apply to the court within three months from the day he became aware of a violation of his rights and freedoms.

2. Missing the three-month deadline for filing an application with the court is not grounds for the court to refuse to accept the application. The reasons for missing a deadline are clarified at a preliminary court hearing or court hearing and may be grounds for refusing to satisfy the application.”

The court issues a ruling on accepting the application for proceedings, on the basis of which a civil case is initiated in the court of first instance. In this case, the court, if there are sufficient grounds, has the right to suspend the effect of the contested decision until the court decision enters into legal force.

An application to challenge a decision, action (inaction) of tax authorities and their officials is considered by the court within ten days from the date of its receipt by the court.

Recognition of a decision to impose tax liability as illegal entails the invalidity of all other acts of tax authorities adopted on its basis.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 4, 2005 No. 7445/05 (Appendix No. 195) clarified that the taxpayer has the right to challenge the decision adopted by the tax authority, despite the fact that he has the opportunity to challenge in court specific actions of the tax authorities based on the provisions such an act.

Paragraph 3 of this article provides the taxpayer with the opportunity to suspend the execution of the acts being appealed or the actions of the tax authorities by sending an application to a higher tax authority or to the court.

Article 139 of the Tax Code of the Russian Federation establishes a three-month period for filing a complaint in the order of subordination. This period begins from the day when the taxpayer learned or should have learned about the violation of his rights.

The commented article establishes two types of complaints: an appeal and a simple complaint. In this case, the appeal must be filed before the entry into force of the appealed decision, and the complaint must be filed after the entry into force of the appealed decision within one year from the date of the appealed decision.

A complaint against a decision on an administrative offense may be filed within ten days from the date of the decision.

A complaint against an act of a tax authority, actions or inaction of its official is submitted, respectively, to a higher tax authority or to a higher official of this body.

Taxpayer complaints are considered:

For acts of a non-normative nature, unlawful action or inaction of tax authorities - by a higher tax authority;

Actions or inactions of officials of a tax authority - by a superior official of this or a higher tax authority;

Actions or inaction of officials of a tax authority by issuing an act of a non-normative nature - by a higher tax authority.

Complaint against the decision on bringing to administrative liability:

The decisions made by the tax authority in relation to organizations are considered by a higher tax authority;

The decision made by a tax authority official in relation to an individual is considered by a superior official of the given or higher tax authority.

An appeal against the relevant decision of the tax authority is submitted to the tax authority that made this decision, which is obliged to send it with all materials to a higher tax authority within three days from the date of receipt of the said complaint.

The complaint must be submitted in writing.

Documents that may be attached to the complaint:

An act of a non-normative nature, which, in the opinion of the applicant, violates his rights (resolution on bringing to administrative responsibility);

Tax audit report;

Primary documents confirming the applicant’s position;

Other documents containing information about circumstances relevant to the consideration of the complaint.

Attaching supporting documents to the complaint is a right, not an obligation, of the person filing the complaint. When calculating the established three-month period, it is necessary to be guided by Articles 190 -194 of the Civil Code of the Russian Federation (Appendix No. 2).

In contrast to the judicial procedure for appealing acts of a tax authority, actions or inaction of its official, regulated by the relevant procedural codes, appealing these acts (actions, inaction), the procedure and deadlines for filing a complaint with a higher tax authority or a higher official, established by this article, is the same for everyone.

If the deadline for filing a complaint is missed, a higher official of the tax authority or a higher tax authority has the right to restore the deadline for filing a complaint missed for good reason at the request of the person filing the complaint. Valid reasons include temporary disability, illness, natural disasters and other similar circumstances that could prevent the interested party from filing a complaint in a timely manner.

The general requirement for a complaint during a judicial appeal, when submitted to a higher authority or a superior person, is its written form. The filed complaint must be signed by the taxpayer, as this requirement must be complied with as a general rule.

The complaint filed must be addressed to the relevant tax authority or official whose competence is responsible for its consideration.

The Tax Code of the Russian Federation provides the taxpayer with the right to withdraw a filed complaint in the prescribed manner. In this case, the condition established by law for the withdrawal of a complaint must be maintained. An application for revocation must be submitted to a higher tax authority (higher official) before it makes an appropriate decision on this complaint. An application to withdraw a complaint must be submitted in writing.

Repeated filing of a complaint on the same grounds and to the same tax authority or to the same official if the complaint was previously withdrawn is not allowed.

Conclusion: if a repeated complaint is filed with the same tax authority, the same official is allowed either on other grounds, or the repeated complaint is filed with a higher tax authority or a higher official within three months from the day the taxpayer or other obligated person found out or should have learned about the violation of their rights. The provision of the commented article on the possibility of reinstating the deadline for filing a complaint missed for good reasons applies to re-filing a complaint.

By Order of the Ministry of Taxes and Taxes of the Russian Federation dated August 17, 2001 No. BG-3-14/290 (Appendix No. 59), the Rules for the consideration of disputes in pre-trial proceedings were approved.

The regulations for pre-trial consideration of tax disputes establish the procedure for consideration by tax authorities of complaints:

Taxpayers or tax agents against acts of tax authorities of a non-regulatory nature, actions or inactions of their officials (with the exception of objections, the submission of which is provided for in paragraph 5 of Article 100 of the Tax Code of the Russian Federation);

Organizations and individuals in case of disagreement with bringing to administrative liability in connection with violations of legal requirements on the use of cash registers and cash handling;

Taxpayers against acts of tax authorities of a non-regulatory nature, actions or inactions of their officials in connection with the application of legislation in the field of production and circulation of ethyl alcohol, alcohol-containing, alcoholic, low-alcohol, non-alcoholic and tobacco products;

Individuals who are officials of an organization in connection with bringing them to administrative liability as a result of bringing the organization to justice for committing a tax offense.

The complaint is considered by a higher tax authority (higher official) within one month from the date of its receipt.

The one-month period for consideration of a complaint begins to expire from the moment the complaint is officially registered, according to existing rules, with a higher tax authority or with a higher official.

This period may be extended by the head (deputy head) of the tax authority, but not more than by 15 days. The decision made is notified in writing to the person who filed the complaint within three days from the date of its adoption. The basis for extending the deadline is the need to obtain documents (information) necessary to consider the complaint from lower tax authorities

A complaint against a decision on an administrative offense is considered within ten days from the date of its receipt by the tax authority.

In accordance with paragraph 4 of Article 139 of the Tax Code of the Russian Federation, the taxpayer has the right, before a decision is made on this complaint, to withdraw it on the basis of a written application.

All complaints received by the relevant tax authorities are sent to legal departments, which are responsible for considering complaints and preparing decisions.

The complaint must be sent to the lower tax authority for a conclusion. The request may contain an indication of the need to provide copies of documents necessary for consideration of the complaint.

The period for submitting a conclusion cannot exceed five working days from the date of receipt of the complaint about the conclusion. A higher tax authority (superior official) has the right to set a shorter period for submitting an opinion.

Complaints from taxpayers are considered taking into account judicial and arbitration practice on the issues under consideration.

The complaint is not subject to consideration in the following cases:

a) missing the deadline for filing a complaint, in accordance with Article 139 of the Tax Code of the Russian Federation;

b) lack of instructions on the subject of appeal and substantiation of the stated requirements;

c) filing a complaint by a person who does not have the authority to act on behalf of the taxpayer (Articles 26, 27, 28 and 29 of the Tax Code of the Russian Federation);

d) if there is documented information about the acceptance of the complaint for consideration by a higher tax authority (official);

e) the tax authority receives information about the entry into force of a court decision on the issues set out in the complaint.

Paragraph 2 of Article 140 of the Tax Code of the Russian Federation establishes the legal consequences of considering a complaint.

Having considered a complaint against the actions or inaction of tax authorities, a higher tax authority (superior official) has the right to make a decision on the merits, that is:

To establish a violation of the rights of the legally protected interests of the taxpayer or other obligated person who filed the complaint, and therefore to take measures to eliminate them;

Bring the perpetrators to justice, therefore, leave the complaint without satisfaction.

Federal Law No. 137-FZ clause 2 of this article was supplemented. It indicates the legal consequences of considering the appeal. Based on the results of consideration of such a complaint, the tax authority has the right:

§ leave the decision of the tax authority unchanged and the complaint not satisfied;

§ cancel or change the decision of the tax authority in whole or in part and make a new decision on the case;

§ cancel the decision of the tax authority and terminate the proceedings.

A repeated decision by the same tax authority on a taxpayer’s complaint on the same subject and basis of the Tax Code of the Russian Federation is not provided for.

The decision of a higher tax authority on a taxpayer’s complaint against the tax authority’s act must necessarily contain an introductory, motivational and operative part. The operative part of the decision is made in the form provided for in paragraph 2 of Article 140 of the Tax Code of the Russian Federation (Letter of the Ministry of Taxes and Taxes of the Russian Federation dated April 5, 2001 No. VP-6-18/274@) (Appendix No. 111).

The norm of paragraph 1 of the commented article is based on the presumption of legality of acts and actions of tax authorities, which must be carried out in strict accordance with the legislation of the Russian Federation: filing a complaint with a higher tax authority (superior official) does not suspend the execution of the act or action being appealed, except in cases provided for Tax Code of the Russian Federation.

At the same time, paragraph 2 gives the tax authority the right, in whole or in part, when considering a complaint, to suspend the execution of the act or action being appealed, if the act or action being appealed does not comply with the legislation of the Russian Federation.

According to paragraph 4 of Article 101.2, at the request of a person appealing a decision of a tax authority, a higher tax authority has the right to suspend the execution of the appealed decision.

The decision to suspend the execution of an act or action is made by the head of the tax authority that adopted such an act, or by a higher tax authority.

Let us note the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Information Letter No. 83 dated August 13, 2004 (Appendix No. 126), which states that the suspension of acts, decisions of state and other regulatory bodies is unacceptable if there is reason to believe that the suspension of the act, decision may upset the balance of the interests of the applicant and the interests of third parties, public interests, and may also lead to the loss of the possibility of executing the contested act or decision in case of refusal to satisfy the applicant’s claim on the merits of the dispute.

Article 142 of the Tax Code of the Russian Federation clarifies the provisions of paragraph 2 of Article 138 of the Tax Code of the Russian Federation, which regulates procedural issues of filing a complaint against acts of tax authorities in court, which are considered and resolved in the manner established by civil procedural, arbitration procedural legislation and federal laws.

Article 46 of the Constitution of the Russian Federation guarantees everyone judicial protection of their rights and freedoms. Decisions and actions (or inaction) of state authorities, local governments, public associations and officials can be appealed to the court.

Complaints or statements of claim against acts of tax authorities, actions or inactions of their officials are filed in accordance with the jurisdiction of disputes to a particular court.

Thus, complaints against acts (including regulations) of tax authorities, actions or inactions of their officials, filed with arbitration courts, are considered in the manner established by the arbitration procedural legislation (APC of the Russian Federation).

Complaints against acts (including regulations) of tax authorities, actions or inactions of their officials, filed in courts of general jurisdiction, are considered in the manner established by civil procedural legislation and the Law of the Russian Federation of April 27, 1993 No. 4866-1 “On appeal in court of actions and decisions that violate the rights and freedoms of citizens” (Appendix No. 34).

Actions (decisions) of tax authorities and their officials that can be appealed to the court include collegial and individual actions (decisions), including the presentation of official information that became the basis for taking actions (making decisions), as a result of which:

The rights and freedoms of citizens are violated;

Obstacles have been created for a citizen to exercise his rights and freedoms;

It is unlawful for a citizen to be assigned any duty or he is unlawfully held accountable for any purpose.

The following deadlines are established for filing a complaint with the court:

Three months from the day the citizen became aware of a violation of his right;

One month from the day the citizen receives a written notification of the refusal of a higher body, association, official to satisfy the complaint or from the day the month expires after filing the complaint, if the citizen has not received a written response to it.

A citizen’s complaint against the actions (decisions) of tax authorities and their officials is considered by the court according to the rules of civil proceedings, taking into account the specifics established by the Law of the Russian Federation of April 27, 1993 No. 4866-1 “On appealing to the court actions and decisions that violate the rights and freedoms of citizens "(Appendix No. 34).

Tax authorities and their officials whose actions (decisions) are appealed by a citizen have a procedural obligation to document the legality of the appealed actions (decisions); The citizen is released from the obligation to prove the illegality of the actions (decisions) being appealed, but is obliged to prove the fact of violation of his rights and freedoms.

Based on the results of consideration of the complaint, the court makes a decision.

Having established the validity of the complaint, the court declares the appealed action (decision) illegal, obliges the citizen to satisfy the demand, cancels the penalties applied to him or otherwise restores his violated rights and freedoms.

Having established the validity of the complaint, the court determines the responsibility of the tax authority or official for actions (decisions) that led to the violation of the rights and freedoms of a citizen.

If the court recognizes the appealed action (decision) as legal and does not violate the rights and freedoms of the citizen, it refuses to satisfy the complaint.

You can find a more detailed article-by-article commentary on part one of the Tax Code of the Russian Federation in the book by the authors of BKR-INTERCOM-AUDIT JSC “Article-by-article commentary on the Tax Code of the Russian Federation (part one)”.

Article 137. Right to appeal.

The right to appeal can be exercised by any person only if they comply with the procedure for appeal established by law. The procedure consists of the sequence of actions to exercise your right to appeal.

Paragraph 1 of Article 137 of the Tax Code of the Russian Federation provides any persons with the right to appeal: acts of a non-normative nature; actions or inactions of tax authorities.

A condition for exercising the right to appeal is the presence of a person’s subjective opinion that specific acts of tax authorities, actions or inactions of tax authorities officials violate the rights granted to him.

When applying Articles 137 and 138 of the Tax Code of the Russian Federation, it is necessary to proceed from the fact that an act of a non-normative nature, which can be challenged in an arbitration court by presenting a demand for recognition of the act as invalid, is understood as a document of any name (demand, decision, resolution, letter, etc.) , signed by the head (deputy head) of the tax authority and relating to a specific taxpayer.

The second part of Article 137 of the Tax Code of the Russian Federation provides for the possibility of appealing against regulatory legal acts of tax authorities, that is, acts that create, amend or abolish certain rules of law.

The grounds for appealing normative legal acts may be different: their inconsistency with the Constitution of the Russian Federation; federal constitutional laws; federal laws; regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation. Depending on the grounds for the appeal, its procedure is established. Regulatory acts of tax authorities are appealed in court through: constitutional; administrative; civil proceedings.

Appeals by taxpayers or tax agents against acts, actions or inactions of tax authorities arise from the right of citizens guaranteed by the Constitution of the Russian Federation to judicial protection of their violated rights. In accordance with the Constitution of the Russian Federation, decisions and actions (or inaction) of state authorities, local governments and officials can be appealed to the court.

Every citizen has the right to a fair and public hearing for the protection of his civil rights; Every citizen is considered innocent until his guilt is established legally.

The constitutional human right also applies to legal entities.

Article 138. Appeal procedure.

The taxpayer is legally given the right to choose the procedure for appealing against violated rights. General issues of the procedure for such an appeal are regulated by the commented article.

The constitutional guarantee of the right to judicial protection, consistent with the generally recognized principles and standards of international law, allows you to simultaneously appeal unlawful actions or inactions, in the opinion of the taxpayer, as well as acts of tax authorities, both to a higher body (superior official) and to the court, does not exclude the right to subsequent filing of a similar complaint with a court of competent jurisdiction.

The absence of such guarantees for officials of tax authorities and only the formal obligation of them to comply with the legislation of the Russian Federation often tips the scales towards departmental interests, calling into question the objectivity of consideration of a complaint within the framework of the administrative process.

The concepts of “superior tax authority” and “superior official” used in the commented article are not identical; for example, the actions or inactions of a tax inspector are appealed not to a superior tax authority, but to its head, that is, a superior official.

According to paragraph 5 of Article 101.2 of the Tax Code of the Russian Federation, from January 1, 2009, a decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense can be appealed in court only after appealing this decision to a higher tax authority.

According to paragraph 3 of Article 9 of the Tax Code of the Russian Federation, tax authorities are the federal executive body authorized for control and supervision in the field of taxes and fees, and its territorial bodies. Therefore, applications for invalidation of normative legal acts regulating tax relations adopted by other bodies can be considered by arbitration courts only in cases where the possibility of considering such applications is provided for by other federal laws (clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 80) (Appendix No. 124).

Paragraph 2 of Article 138 of the Tax Code of the Russian Federation establishes the jurisdiction of certain complaints to the courts of relevant jurisdiction.

This jurisdiction depends on the status of the person appealing acts (including regulations) of tax authorities, actions or inactions of their officials. So, if an organization or individual entrepreneur appeals against them, then the statement of claim is filed with the arbitration court. The procedure for filing a claim is determined by the Arbitration Procedure Code of the Russian Federation.

The statement of claim is submitted to the arbitration court in the manner established by Chapter 14 of the Arbitration Procedure Code of the Russian Federation. The statement of claim is submitted in writing, indicating the necessary details established by Article 125 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6).

The arbitration court issues a ruling on acceptance of the statement of claim, which initiates proceedings in the case.

The determination specifies the preparation of the case for trial, the actions that must be performed by the persons participating in the case, and the timing of their implementation.

Copies of the ruling on acceptance of the statement of claim for proceedings by the arbitration court are sent to the persons participating in the case no later than the next day after the day it is issued.

It should be taken into account that the statement of claim may be left without progress (Article 128 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6)):

The arbitration court, having established, when considering the issue of accepting the statement of claim for proceedings, that it was filed in violation of the requirements established by Articles 125 and 126 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6), issues a ruling to leave the statement without progress.

In the ruling, the arbitration court indicates the grounds for leaving the statement of claim without progress and the period during which the plaintiff must eliminate the circumstances that served as the basis for leaving the statement of claim without progress.

A copy of the ruling on leaving the statement of claim without progress is sent to the plaintiff no later than the next day after the day it is issued.

If the circumstances that served as the basis for leaving the statement of claim without progress are eliminated within the period established in the ruling of the arbitration court, the application is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court.

If the circumstances specified in Part 2 of Article 128 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6) are not eliminated within the time period established in the ruling, the arbitration court returns the statement of claim and the documents attached to it in the manner prescribed by Article 129 of the Arbitration Procedure Code of the Russian Federation.

In accordance with Article 129 of the Arbitration Procedure Code of the Russian Federation (Appendix No. 6), the arbitration court returns the statement of claim if, when considering the issue of accepting the application, it establishes that: the case is not within the jurisdiction of this arbitration court; one statement of claim combines several claims against one or more defendants, if these claims are not related to each other; before the decision was made to accept the statement of claim for the arbitration court proceedings, the plaintiff received a request to return the statement; the circumstances that served as the basis for leaving the statement of claim without progress have not been eliminated within the period established in the court ruling.

The arbitration court also returns the statement of claim if the request for a deferment, installment payment of the state duty, or a reduction in its amount is rejected.

The arbitration court issues a ruling on the return of the statement of claim.

The determination indicates the grounds for returning the application and resolves the issue of returning the state duty from the federal budget.

A copy of the ruling on the return of the statement of claim is sent to the plaintiff no later than the next day after the day the ruling was issued or after the expiration of the period established by the court to eliminate the circumstances that served as the basis for leaving the statement without progress, along with the statement and the documents attached to it.

The arbitration court's ruling to return the statement of claim may be appealed.

In case of cancellation of the ruling, the statement of claim is considered filed on the day of the initial application to the arbitration court.

The return of the statement of claim does not prevent the repeated filing of the same claim with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for its return.

Individuals who are not individual entrepreneurs must appeal against acts (including regulations) of tax authorities, actions or inactions of their officials, by filing a statement of claim in a court of general jurisdiction.

The Code of Civil Procedure of the Russian Federation (Chapter 25) regulates issues related to filing complaints against the actions of government bodies and officials that violate the rights and freedoms of citizens to courts of general jurisdiction. In accordance with Article 254 of the Code of Civil Procedure of the Russian Federation (Appendix No. 5), citizens and organizations have the right to challenge in court a decision, action (inaction) of a government body or official if they believe that their rights and freedoms have been violated. Citizens and organizations have the right to appeal directly to the court or to a higher authority in the order of subordination, to an official. The application is submitted to the court with jurisdiction established by Articles 24 - 27 of the Code of Civil Procedure of the Russian Federation (Appendix No. 5). An application may be submitted by a citizen to the court at the place of his residence or at the location of the government body, official, whose decision or action (inaction) is being challenged.

For citizens to file a claim in court, in accordance with Article 256 of the Code of Civil Procedure of the Russian Federation, the following deadlines are established: “1. A citizen has the right to apply to the court within three months from the day he became aware of a violation of his rights and freedoms. 2. Missing the three-month deadline for filing an application with the court is not grounds for the court to refuse to accept the application. The reasons for missing a deadline are clarified at a preliminary court hearing or court hearing and may be grounds for refusing to satisfy the application.”

The court issues a ruling on accepting the application for proceedings, on the basis of which a civil case is initiated in the court of first instance. In this case, the court, if there are sufficient grounds, has the right to suspend the effect of the contested decision until the court decision enters into legal force.

An application to challenge a decision, action (inaction) of tax authorities and their officials is considered by the court within ten days from the date of its receipt by the court.

Recognition of a decision to impose tax liability as illegal entails the invalidity of all other acts of tax authorities adopted on its basis.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 4, 2005 No. 7445/05 (Appendix No. 195) clarified that the taxpayer has the right to challenge a regulatory legal act adopted by the tax authority, despite the fact that he has the opportunity to challenge in court specific actions of the tax authorities, based on the provisions of such an act.

Paragraph 3 of this article provides the taxpayer with the opportunity to suspend the execution of the acts being appealed or the actions of the tax authorities by sending an application to a higher tax authority or to the court.

Article 139. Procedure and deadlines for filing a complaint with a higher tax authority or a higher official.

Article 139 of the Tax Code of the Russian Federation establishes a three-month period for filing a complaint in the order of subordination. This period begins from the day when the taxpayer learned or should have learned about the violation of his rights.

Date of publication: 05/15/2015 15:39 (archive)

The procedure for appealing acts of tax authorities and actions or inactions of their officials

Each person, in accordance with 137 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), has the right to appeal against acts of tax authorities of a non-normative nature, actions or inactions of their officials, if, in the opinion of this person, such acts, actions or inactions violate his rights.

In accordance with Article 138 of the Code, the appeal procedure is defined:

1. Acts of tax authorities of a non-normative nature, actions or inactions of their officials may be appealed to a higher tax authority and (or) to court in the manner prescribed by the Code and the relevant procedural legislation of the Russian Federation.

5. Filing a complaint to a higher tax authority does not suspend the execution of the appealed act of the tax authority or the commission of the appealed action by its official, except for the cases provided for in this paragraph.

6. Repeated filing of a complaint (appeal) is made within the time limits established by this chapter for filing the relevant complaint.

7. The person who filed the complaint (appeal), before making a decision on the complaint (appeal), may withdraw it in whole or in part by sending a written application to the tax authority considering the relevant complaint.

Withdrawal of a complaint (appeal) deprives the person who filed the corresponding complaint of the right to re-file a complaint (appeal) on the same grounds.

According to Article 139 of the Code, the following procedure and deadlines for filing a complaint are provided:

According to Article 139.1. The Code provides for the procedure and deadlines for filing an appeal:

1. An appeal against a decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense is filed through the tax authority that made the relevant decision. The tax authority whose decision is being appealed is obliged, within three days from the date of receipt of such a complaint, to send it with all materials to a higher tax authority.

Form and content of the complaint (appeal) in accordance with Article 139.2. must meet the following requirements.

According to Article 139.3. The Code defines a list of reasons, the presence of which requires leaving a complaint (appeal) without consideration.

1. A higher tax authority shall leave the complaint in whole or in part without consideration if it establishes that:

Article 137. Right to appeal

Every person has the right to appeal against acts of tax authorities of a non-normative nature, actions or inactions of their officials, if, in the opinion of this person, such acts, actions or inactions violate his rights.

Regulatory legal acts of tax authorities can be appealed in the manner prescribed by federal legislation.

Article 138 is subject to application in accordance with the constitutional and legal meaning identified in the ruling of the Constitutional Court of the Russian Federation dated December 4, 2003 N 418-O.

Article 138. Appeal procedure

1. Acts of tax authorities, actions or inactions of their officials may be appealed to a higher tax authority (higher official) or to court.

Filing a complaint to a higher tax authority (superior official) does not exclude the right to simultaneous or subsequent filing of a similar complaint with the court, unless otherwise provided by Article 101.2 of this Code.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 4, 2005 N 7445/05 clarifies that a taxpayer has the right to challenge a regulatory legal act adopted by a tax authority, despite the fact that he has the opportunity to challenge in court specific actions of tax authorities based on the provisions of such an act.

2. Judicial appeal of acts (including regulations) of tax authorities, actions or inactions of their officials by organizations and individual entrepreneurs is carried out by filing a statement of claim with the arbitration court in accordance with arbitration procedural legislation.

Judicial appeal of acts (including regulations) of tax authorities, actions or inactions of their officials by individuals who are not individual entrepreneurs is carried out by filing a statement of claim in a court of general jurisdiction in accordance with the legislation on appealing to court unlawful actions of state bodies and officials .

3. In the event of appealing acts of tax authorities, actions of their officials to the court at the request of the taxpayer (payer of fees, tax agent), the execution of the appealed acts, the commission of the appealed actions may be suspended by the court in the manner established by the relevant procedural legislation of the Russian Federation.

In the event of an appeal against acts of tax authorities, actions of their officials to a higher tax authority at the request of the taxpayer (payer of fees, tax agent), the execution of the appealed acts, the commission of the appealed actions may be suspended by decision of the higher tax authority.

(Clause 3 introduced by Federal Law dated July 27, 2006 N 137-FZ)

Article 139. Procedure and deadlines for filing a complaint with a higher tax authority or a higher official

1. A complaint against an act of a tax authority, actions or inaction of its official is submitted, respectively, to a higher tax authority or to a higher official of this body.

2. A complaint to a higher tax authority (superior official) is filed, unless otherwise provided by this Code, within three months from the day the person learned or should have learned about the violation of his rights. Supporting documents may be attached to the complaint.

(as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 07/27/2006 N 137-FZ)

If the deadline for filing a complaint is missed for a good reason, this deadline, at the request of the person filing the complaint, can be restored by a higher official of the tax authority or a higher tax authority, respectively.

An appeal against a tax authority’s decision to prosecute for committing a tax offense or a decision to refuse to prosecute for committing a tax offense is filed before the decision being appealed comes into force.

A complaint against a decision of a tax authority that has entered into legal force to hold accountable for committing a tax offense or a decision to refuse to hold accountable for committing a tax offense that has not been appealed is filed within one year from the date of the appealed decision.

(paragraph introduced by Federal Law dated July 27, 2006 N 137-FZ)

3. The complaint is submitted in writing to the relevant tax authority or official, unless otherwise provided by this paragraph.

(as amended by Federal Law dated July 27, 2006 N 137-FZ)

An appeal against the relevant decision of the tax authority is submitted to the tax authority that made this decision, which is obliged to send it with all materials to a higher tax authority within three days from the date of receipt of the said complaint.

(paragraph introduced by Federal Law dated July 27, 2006 N 137-FZ)

4. A person who filed a complaint with a higher tax authority or a higher official, before a decision is made on this complaint, may withdraw it on the basis of a written application.

Withdrawal of a complaint deprives the person who filed it of the right to file a second complaint on the same grounds to the same tax authority or to the same official.

Repeated filing of a complaint with a higher tax authority or a higher official is carried out within the time limits provided for in paragraph 2 of this article.