The Inspectorate has the right to send requests for clarification, provision of documents or information in the following cases:
- Desk Tax Audit (Art. 8893 NK);
- On-site tax audit (Articles 89, 93 Tax Code);
- “counter check (Section 1 Art. 93.1 nk,
- Request for specific transaction (Section 2 Art. 93.1 nk,
For desk inspection, a closed list of grounds has been established on which the inspection has the right to send a demand (Art. 88 nk, He has the right to ask for clarification or clarification, but not for primary documentation.
The requirement should be drawn up according to the form of Appendix No. 4 to the Federal Tax Service Order No. ММВ-7-2/628@ dated 07.11.2018. If you receive an intimation letter or notice of summons for questioning, it is not necessary to submit documents.
Comment! If the tax authorities refer Paragraph 3 of Article 88 of the Tax Code, then it is necessary to give an explanation or explanation. But not primary.
Requirements for on-site inspection
When conducting a tax return, the tax authorities have the right to request any documents and information related to the calculation and payment of taxes. There are no restrictions in NK.
In the request, inspectors must provide information about documents that will allow them to be identified. And the documents themselves must be relevant to the subject of the inspection (Resolution of the Presidium of the Supreme Arbitration Court dated 04/08/2008 No. 15333/07).
However, the number and name of the documents are determined by the inspection. Organizations do not have the right to modify them without permission (Decisions of the Moscow City Court dated June 26, 2021 No. A40-76981/2020, dated December 6, 2019 No. A40-114260/19-107-1844). Even if the inspectors requested documents that are not related to the inspection period (Resolution of the Volga District Autonomous District dated January 16, 2019 No. A55-5410/2018).
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counter verification requirement
If you are the counterparty of the person being inspected you will receive a request (Volume 1, 2 tbsp. 93.1 nk, You will be asked for data related to this counterparty. But they can also request data on transactions with other persons if there was a relationship between them and this counterparty (Resolution of the Autonomous District of the Ural District dated March 31, 2022 No. A34-3088/2021).
The demand should also be accompanied by a copy of the order to obtain the documents. This document comes from the inspection of the person being inspected (Appendix No. 20 to the Federal Tax Service order No. MMV-7-2/628 dated November 7, 2018). The basis for cross-examination should be indicated there (Section 3 Art. 93.1 nk,
No restrictions on the quantity and structure of documents Paragraph 1 of Article 93.1 of the Tax Code Not included in it (Letter of the Federal Tax Service dated August 2, 2018 No. ED-4-2/14951@). The Supreme Court indicated this Article 93.1 Tax Code The tax authorities are not required to indicate the details and characteristics of the documents in the request. There is no prohibition on requesting multiple transactions at once (Decision of the Supreme Court dated October 26, 2017 No. 302-KG17-15714). You can also request documents with the chain of transactions (Resolution of the Autonomous District of the Ural District dated March 31, 2022 No. A34-3088/2021, Determination of the Supreme Court dated February 20, 2015 No. 305-KG14-7282).
There is no time limit – it does not matter whether the data relates to the period for which the counterparty is being audited or not (Letter of the Federal Tax Service dated July 23, 2021 No. ЗР-2-2/1090@) .
What specifics of the requirements were clarified by the Constitutional Court
What case did the Constitutional Court consider?
The organization received a request to provide documents outside the scope of the audit. Which includes sales books, reconciliation reports, invoice register, balance sheets and over 400 invoices. The company declined to provide them because it’s not clear what they refer to.
Tax officials believed that they had the right not to disclose document details and could obtain data on multiple transactions at once. and the Company has no right to object (Section 2 Art. 93.1 nk, and the institution was fined Paragraph 1 of Article 129.1 of the Tax Code,
Constitutional Court arbitrators indicated that the documents and information required by the tax authorities must relate to a specific transaction. Inspectors do not have the right to demand documents related to the type of activity, or to a specific period (Definition of the Constitutional Court dated 04/07/2022 No. 821-O).
You cannot submit inspection documents outside the scope of inspection if it is not clear what type of transaction you are talking about.
Memo. What to check when you receive a request for documents from the tax office
Has the claim expired?
The day of completion of on-site inspection is considered to be the day on which the relevant certificate is prepared (Section 15 Art. 89 nk, Requirements sent even on the last day of the on-site inspection are valid and subject to execution (Letter of the Ministry of Finance dated 04/05/2018 No. 03-02-08/21997, Resolution of the AS of the North Caucasus District dated 17/02 /2021 Number F08-652/2021).
But evidence obtained outside the inspection period cannot be used when drawing up an inspection report (Letter of the Federal Tax Service dated August 22, 2014 No. SA-4-7/16692). Accordingly, demands sent outside the inspection period are illegal.
Is it possible to identify documents?
Inspectors may require all documents related to the register of business transactions (Resolution of the Moscow District AS dated May 13, 2022 No. A40-68529/2021, dated May 18, 2022 No. A40-73716/2021). Or simply all documents for a certain year (Resolution of the Central District Administration of December 15, 2021 No. A08-10169/2020). It is illegal. The requirement should include individual characteristics of the document that must be presented for inspection. So that the company can understand what it wants.
However, when it comes to documents and information about a specific transaction, the tax authorities cannot simply deny it. Even if the inspection does not contain details of the document. Tax authorities only need to identify the transaction in any possible way.
Also, if necessary, inspectors must explain why they need these particular documents and in such quantities. The request for documents and information must be adequate to the situation (Definition of the Constitutional Court dated 04/07/2022 No. 821-O).
Is it possible to identify transactions?
Evaluate what type of deal we are talking about (Article 153 of the Civil Code, The basis of transaction may be delivery of consignment of goods, performance of specific work, provision of specific service, issue of loan or credit, etc.
Requirements where the tax authorities require all documents for a certain period, or the counterparty requires all documents, cannot be met. The Federal Tax Service itself agrees that the request must be fair and reasonable (letter dated June 27, 2017 No. ED-4-2/12216@).
However, in fact, the number of transactions about which the inspection has the right to make requests is not limited. If each transaction is identified in the request, the company must provide documentation and information for each.
Do the documents comply with the storage period?
At the time of receipt of the request, the storage period of the requested documents should not have expired (Resolution of the Administrative District of the East Siberian District dated December 16, 2019 No. F02-6306/2019). The storage period of accounting and tax documents is five years (Sub. 8 Section 1 Art. 23 nk, And for insurance premium – six years (Sub. 6 Section 3.4 Art. 23 nk,
Have the documents been submitted before?
Check that the requested documents have not previously been submitted to the tax authorities. Otherwise, it is necessary to submit a special notice within the period established in the requirement (Section 5 Art. 93 nk, Its form is in Appendix No. 1 to the order of the Federal Tax Service dated April 24, 2019 No. ММВ-7-2/204@.
Attach documents to the notification that confirm the transfer of documents for inspection. This is, for example, a list with a mark, a receipt from an EDF operator.
There are three exceptions:
- The documents were first presented as originals, which were later returned to the company (letter of the Federal Tax Service dated May 17, 2016 No. AS-4-15/8657@);
- Documents lost during inspection due to force majeure;
- Previously, documents were requested to conduct a counter inspection at the request of another inspection (letter of the Federal Tax Service dated December 4, 2015 No. ED-16-2/304).