Article 93.1 paragraph 1 jurisprudence. Requesting documents and information about a taxpayer is a common method of tax control

New edition Art. 93.1 of the Tax Code of the Russian Federation

1. An official of a tax authority conducting a tax audit has the right to demand from the counterparty or from other persons who have documents (information) relating to the activities of the taxpayer (fee payer, payer of insurance premiums, tax agent) being audited, these documents (information).

Request for documents (information) relating to the activities of the taxpayer (fee payer, payer of insurance premiums, tax agent) being inspected may also be carried out when considering tax audit materials on the basis of a decision of the head (deputy head) of the tax authority on the appointment of additional tax control measures.

1.1. When conducting a desk tax audit of the calculation of the financial result of an investment partnership, a tax declaration (calculation) for corporate income tax, personal income tax of a participant in an investment partnership agreement, the tax authority has the right to demand from the participant in the investment partnership agreement - the managing partner responsible for maintaining tax records, the following information for the period under review:

1) the composition of the participants in the investment partnership agreement, including information on changes in the composition of the participants in the said agreement;

2) the composition of the participants in the investment partnership agreement - managing partners, including information on changes in the composition of such participants in the specified agreement;

3) the share of profits (expenses, losses) attributable to each of the managing partners and partners;

4) the participation share of each of the managing partners and partners in the profits of the investment partnership, established by the agreement of the investment partnership;

5) the share of each of the managing partners and partners in the common property of the partners;

6) changes in the procedure for determining by the participant in the investment partnership agreement - the managing partner responsible for maintaining tax records, the expenses incurred in the interests of all partners for the conduct of the common affairs of the partners, if such a procedure is established by the investment partnership agreement.

2. If, outside the framework of tax audits, the tax authorities have a justified need to obtain documents (information) regarding a specific transaction, an official of the tax authority has the right to demand these documents (information) from the participants in this transaction or from other persons who have documents (information) ) about this deal.

When conducting a tax audit in respect of a foreign organization subject to registration with a tax authority in accordance with paragraph 4.6 of Article 83 of this Code, the tax authority may, with the consent of the head (deputy head) of the federal executive body authorized to control and supervise taxes and fees, request information in relation to transfer transactions Money made to the specified foreign organization, from the organization of the national payment card system, money transfer operators, electronic money operators, operational centers, payment clearing centers, central payment clearing counterparties, settlement centers and telecom operators.

3. The tax authority carrying out tax audits or other tax control measures shall send an order to request documents (information) relating to the activities of the audited taxpayer (fee payer, payer of insurance premiums, tax agent) to the tax authority at the place of registration of the person who must specified documents (information) must be requested.

4. Within five days from the date of receipt of the order, the tax authority at the place of registration of the person from whom the documents (information) are requested, sends this person a request for the submission of documents (information). A copy of the order to request documents (information) is attached to this request. The request for the submission of documents (information) shall be sent subject to the provisions provided for in paragraph 1 of Article 93 of this Code.

5. A person who has received a request to submit documents (information) in accordance with paragraphs 1 and 1.1 of this article shall fulfill it within five days from the date of receipt or notify within the same period that he does not have the requested documents (information).

A person who has received a request to submit documents (information) in accordance with paragraph 2 of this article shall fulfill it within ten days from the date of receipt or notify within the same period that he does not have the requested documents (information).

If the requested documents (information) cannot be submitted within the time limits specified in this clause, the tax authority, upon receipt from the person from whom the documents (information) are requested, notices of the impossibility of submitting documents (information) within the established time limits and of the deadlines (if necessary) , during which these documents (information) can be submitted, has the right to extend the deadline for submission of these documents (information).

The requested documents shall be submitted taking into account the provisions provided for in paragraphs 2 and 5 of Article 93 of this Code. The notification specified in this paragraph shall be submitted in the manner prescribed by paragraph 3 of Article 93 of this Code.

6. A person's refusal to submit the documents requested during a tax audit or failure to submit them within the established time limits shall be recognized tax offense and entail liability under Article 126 of this Code.

Illegal failure to report (untimely communication) of the requested information is recognized as a tax offense and entails liability under Article 129.1 of this Code.

7. The procedure for the interaction of tax authorities in the execution of orders for the reclamation of documents is established by the federal executive body authorized for control and supervision in the field of taxes and fees.

8. The procedure for requesting documents (information) provided for by this article is also applied when requesting documents (information) concerning (concerning) members of a consolidated group of taxpayers.

Commentary on Article 93.1 of the Russian Tax Code

Article 93.1 of the Tax Code of the Russian Federation was introduced in 2007. It spells out the procedure for requesting documents from the counterparties of the taxpayer.

In paragraph 1 of Art. 93.1 of the Tax Code of the Russian Federation stipulates that an official of a tax authority conducting a tax audit has the right to demand from the counterparty or from other persons who have documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited, these documents (information).

Documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited may also be requested when considering tax audit materials on the basis of a decision of the head (deputy head) of the tax authority when additional tax control measures are prescribed.

Note that now the Tax Code of the Russian Federation expressly states the right of the tax authorities to demand documents from the counterparties of the taxpayer. Although the Tax Code of the Russian Federation did not contain such a provision earlier, law enforcement practice indicated the admissibility of requesting documents from the taxpayer's counterparties as part of additional tax control measures (see, for example, Letter of the Ministry of Finance of Russia dated March 14, 2002 N 04-00-11). Arbitration courts adhered to a similar position. Thus, in the Decree of the Federal Antimonopoly Service of the East Siberian District of April 13, 2005 N A19-25271 / 04-41-Ф02-1416 / 05-С1, the judges indicated: "when carrying out additional tax control measures, the tax authority has the right to carry out those measures that are provided Chapter 14 of the Tax Code of the Russian Federation, including conducting cross-checks.

In paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation states that if, outside the framework of tax audits, inspectors have a justified need to obtain information regarding a specific transaction, an official of the tax authority has the right to demand this information from the participants in this transaction or from other persons who have information about this transaction. Note that according to par. 2 tbsp. 87 of the Tax Code of the Russian Federation (as amended before the entry into force of Law N 137-FZ), it was possible to request documents from the taxpayer's counterparties only as part of desk and field tax audits.

In paragraph 3 of Art. 93.1 of the Tax Code of the Russian Federation, it is established that the tax authority carrying out tax audits or other tax control measures sends a written order to request documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited to the tax authority at the place of registration of the person who the indicated documents (information) must be requested.

At the same time, the order shall indicate during which tax control measure it was necessary to submit documents (information), and when requesting information regarding a specific transaction, information is also indicated that allows identifying this transaction.

It should be noted that the rule according to which the request for documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being checked is carried out by the tax authority at the place of registration of the person from whom the documents (information) should be requested, actually fixes the established law enforcement practice that has been formed before the entry into force of Law N 137-FZ.

In paragraph 4 of Art. 93.1 of the Tax Code of the Russian Federation, it is established that within five days from the date of receipt of the instruction, the tax authority at the place of registration of the person from whom the documents (information) are requested sends this person a request for the submission of documents (information). A copy of the order to request documents (information) is attached to this request.

And in paragraph 5 of Art. 93.1 of the Tax Code of the Russian Federation stipulates that a person who has received a request for the submission of documents (information) fulfills it within five days from the date of receipt or, within the same period, reports that he does not have the requested documents (information). If the requested documents (information) cannot be submitted within the specified period, the tax authority, at the request of the person from whom the documents are requested, has the right to extend the deadline for submitting these documents (information).

In addition, we note that the requested documents are submitted subject to the provisions provided for in paragraph 2 of Art. 93 of the Tax Code of the Russian Federation, that is:

The required documents are submitted in the form of copies certified by the person being checked;

Copies of documents of the organization are certified by the signature of its head (deputy head) and (or) other authorized person and the seal of this organization, unless otherwise provided by law Russian Federation;

It is not allowed to require notarization of copies of documents submitted to a tax authority (official), unless otherwise provided by the legislation of the Russian Federation;

If necessary, the tax authority has the right to familiarize itself with the original documents.

In paragraph 6 of Art. 93.1 of the Tax Code of the Russian Federation establishes that a person's refusal to submit documents requested during a tax audit or failure to submit them within the established time limits is recognized as a tax offense and entails liability under Art. 129.1 of the Tax Code of the Russian Federation.

Note that until 2007, law enforcement practice indicated that for failure to submit documents as part of a counter tax audit, the organization may be held liable under paragraph 2 of Art. 126 of the Tax Code of the Russian Federation. Such a position is contained, for example, in paragraph 4 of the Review of the results of consideration of complaints against decisions of tax authorities, actions (inaction) of their officials for 2001 (Letter of the Ministry of Taxation of Russia for Moscow dated April 12, 2002 N 11-15 / 16900). And also in the established arbitration practice (see, for example, Resolutions of the FAS of the North-Western District of January 12, 2005 N A05-9703 / 04-20, FAS of the Far Eastern District of February 1, 2006 N F03-A73 / 05-2 /4852).

According to paragraph 7 of Art. 93.1 of the Tax Code of the Russian Federation, the procedure for the interaction of tax authorities in fulfilling orders for the recovery of documents is established by the federal executive body authorized for control and supervision in the field of taxes and fees. Obviously, in the near future we should expect the Order of the Federal Tax Service of Russia, regulating this issue.

1) the composition of the participants in the investment partnership agreement, including information on changes in the composition of the participants in the said agreement;

3) the share of profits (expenses, losses) attributable to each of the managing partners and partners;

4) the participation share of each of the managing partners and partners in the profits of the investment partnership, established by the agreement of the investment partnership;

5) the share of each of the managing partners and partners in the common property of the partners;

When conducting a tax audit in respect of a foreign organization subject to registration with a tax authority in accordance with paragraph 4.6 of Article 83 of this Code, the tax authority may, with the consent of the head (deputy head) of the federal executive body authorized to control and supervise taxes and fees, request information regarding money transfer transactions made to the specified foreign organization from the organization of the national payment card system, money transfer operators, electronic money operators, operational centers, payment clearing centers, central payment clearing counterparties, settlement centers and telecom operators.

6. A person's refusal to submit the documents required during a tax audit or failure to submit them within the established time limits shall be recognized as a tax offense and entail liability under Article 126 of this Code.

Illegal failure to report (untimely communication) of the requested information is recognized as a tax offense and entails liability under Article 129.1 of this Code.

Article 93.1. Request for documents (information) about the taxpayer, payer of fees, payer of insurance premiums and tax agent or information about specific transactions

1) the composition of the participants in the investment partnership agreement, including information on changes in the composition of the participants in the said agreement;

3) the share of profits (expenses, losses) attributable to each of the managing partners and partners;

4) the participation share of each of the managing partners and partners in the profits of the investment partnership, established by the agreement of the investment partnership;

5) the share of each of the managing partners and partners in the common property of the partners;

When conducting a tax audit in respect of a foreign organization subject to registration with a tax authority in accordance with paragraph 4.6 of Article 83 of this Code, the tax authority may, with the consent of the head (deputy head) of the federal executive body authorized to control and supervise taxes and fees, request information regarding money transfer transactions made to the specified foreign organization from the organization of the national payment card system, money transfer operators, electronic money operators, operational centers, payment clearing centers, central payment clearing counterparties, settlement centers and telecom operators.

Illegal failure to report (untimely communication) of the requested information is recognized as a tax offense and entails liability under Article 129.1 of this Code.

A businesswoman specializing in the commission trade in furniture and interior items applied for assistance. The reason turned out to be a notification received by her via electronic communication channels from the tax authority about the need to appear at the inspection for questioning as a witness.

At the same time, a request was received to provide information (information) regarding a specific counterparty.

As could be concluded from the text of the demand itself, the request for documents was made in the so-called mode. counter check.

At the same time, the entrepreneur had no particular desire to provide information on this particular counterparty.

The reasons could be different from organizational, to personal and financial, and the possibility of subsequent tax sanctions against the entrepreneur himself was not ruled out.

At the same time, ignoring the requirement and notification of the tax inspectorate could carry the risk of being held accountable under . In this connection, it was decided to prepare a response to the demand and appear for interrogation at the inspection to the entrepreneur, accompanied by a lawyer.

Since the time set in the IFTS notification did not allow for a quality preparation for such a visit, I had to call the inspector and reschedule the visit to a later date.

The agreement on a new term, contrary to the fears of the entrepreneur, did not cause any problems.

The response to the request for the provision of information (information) was prepared.

At the same time, the attention of the tax authority was drawn to the absence in the demand of information about the conduct of any tax control measures in relation to a particular taxpayer, in accordance with Art. 93.1 of the Tax Code of the Russian Federation, as well as the details of the documents necessary for identification, and therefore the submission of the requested documents is not possible.

The answer to the request was not sent by mail or by electronic means of communication, since the agreed date of the visit to the tax inspectorate fit well within the deadlines established by law for its submission, and it was decided to hand the answer directly to the inspector or through the office of the inspectorate, depending on how communication would go during the interrogation.

During interrogation as a witness, it was decided not to refuse to give explanations, but in this case it was decided to follow the usual recommendations in such cases.

Detailed answers were given to those questions, information on which can be obtained by the inspector either directly from the documents that he already has, or from publicly available sources, or from other state authorities. authorities at his request.

This is all that concerns the name, various registration and individualizing numbers and details, registration dates, passport and other declaration data, digital and other data indicated in officially submitted declarations, etc.

We did not give exact answers to questions regarding the information about which there is no direct need or desire to provide detailed information, with various reservations, such as, I can’t say for sure, it is necessary to find the relevant documents, I can’t accurately reproduce it from memory, you need to raise the appropriate records.

If the inspector begins to “press” and insist, I usually recommend the standard phrase: “You don’t need my fantasies, but accurate information.”

As a result, a completely adequate proposal sounds to the inspector: if some information is needed, it is advisable to act within the established procedures: formulate and send a corresponding requirement to the taxpayer, and we will look, select, provide ...

When asked by the inspector whether we were ready to provide an answer to the demand that was sent to the taxpayer, we replied that of course we were ready, we specially brought two copies with us in order to receive a transfer mark on the second.

We were immediately redirected to the office, with the proviso that the inspector would not put any marks on us.

The peculiarities of this event were that, having seen the summoned entrepreneur, accompanied by a lawyer, the inspector did not dare to repeat her previous interrogation from the position of an obvious “collision”, but preferred to move from her department to the department of the head of the legal service of the inspectorate and draw up a protocol under the vigilant control of the head of the legal department. department. Correctness in communication has noticeably increased, but the quality of working out the very form of the protocol was limping on both legs. The lack of practical skills in holding such events under the control of the “side of the defense” clearly affected.

As a result, after getting acquainted with the contents of the protocol, I had to make a “traditional” entry in it that, before the start of the interrogation, the rights provided for by Art. 51 of the Constitution of the Russian Federation, as well as Art. 90, 128 of the Tax Code of the Russian Federation, were not explained to the taxpayer.

No matter how sad it was for the inspector to see the record, “killing” the procedural force of the protocol drawn up by her, but the head of the legal. department, she was immediately forced to confirm that this was the order, first an explanation of the rights, and then the interrogation. Everything is like "adults".

That was the end of the inspection's uncomfortable questions regarding a "special" counterparty.

However, a sequel followed.

Three weeks later, the entrepreneur submitted a declaration on the simplified tax system for 2017 and a week later received two demands at once for the provision of documents (information) and another notice of being summoned for interrogation as a witness.

The requirements are quite remarkable.

One, in which the inspector forgot to put down the number and date, concerned the request for documents necessary for conducting a desk tax audit of the validity of the application tax deductions on value added tax.

The second, with a number and date, required the submission of explanations regarding the economic feasibility of the entrepreneur's expenses related to the lease of retail and warehouse premises.

Considering from the bank statement that the share of these expenses for 2017 for the entrepreneur exceeded 60 percent of the share of all expenses, the inspection considered this state of affairs to be inconsistent with the economic interests of the entrepreneur. Such a touching concern.

At the request of the entrepreneur, responses to these requirements were prepared.

In the first one, it was necessary to explain to the tax authority that an entrepreneur on a simplified taxation system (STS) is not a VAT payer.

Secondly, they tried to explain that the issues of economic feasibility of entrepreneurial activity, to put it mildly, are not regulated by tax legislation. And in simple language I wanted to say: "it's none of your ... business."

One thing pleases, there are no questions about “special” counterparties in the new requirements.

It remains to once again visit the inspection as a witness. I wonder what kind of environment for interrogation the inspector will choose this time.

1. An official of a tax authority conducting a tax audit shall have the right to demand from the audited person the documents necessary for the audit.

(see text in previous edition)

If an official of the tax authority conducting a tax audit is located on the territory of the audited person, the requirement to submit documents is transferred to the head (legal or authorized representative) of the organization or to an individual(his legal or authorized representative) in person against receipt.

(see text in previous edition)

2. The required documents may be submitted to the tax authority by the audited person personally or through a representative, sent by registered mail or transmitted in electronic form via telecommunication channels or through Personal Area taxpayer.

Submission of documents on paper is made in the form of copies certified by the verified person. It is not allowed to require notarization of copies of documents submitted to a tax authority (official), unless otherwise provided by the legislation of the Russian Federation. Sheets of documents submitted on paper must be numbered and bound in accordance with the requirements approved by the federal executive body authorized to control and supervise taxes and fees.

Submission of documents drawn up in electronic form according to the formats established by the federal executive body authorized for control and supervision in the field of taxes and fees is carried out via telecommunication channels or through the taxpayer's personal account.

Required documents drawn up on paper may be submitted to the tax authority in electronic form in the form of electronic images of documents (documents on paper, converted into electronic form by scanning with the preservation of their details) in the formats established by the federal executive body authorized for control and supervision in the field of taxes and fees, through telecommunication channels or through the personal account of the taxpayer.

In the event that the required documents are submitted to the tax authority in electronic form via telecommunication channels, such documents must be certified by an enhanced qualified electronic signature of the audited person or an enhanced qualified electronic signature of his representative.

The procedure for sending a request to submit documents and the procedure for submitting documents at the request of a tax authority in electronic form via telecommunication channels or through a taxpayer's personal account are approved by the federal executive body authorized to control and supervise taxes and fees.

(see text in previous edition)

3. Documents that were requested during a tax audit are submitted within 10 days (20 days - if tax audit consolidated group of taxpayers, 30 days - during a tax audit of a foreign organization subject to registration with a tax authority in accordance with paragraph 4.6 of Article 83 of this Code) from the date of receipt of the relevant request.

(see text in previous edition)

If the audited person is not able to submit the requested documents within the time period established by this paragraph, he shall, within the day following the day of receipt of the request for the submission of documents, notify in writing the auditing officials of the tax authority of the impossibility of submitting the documents within the specified time limits, indicating the reasons , according to which the required documents cannot be submitted within the established time limits, and on the terms during which the person being checked can submit the required documents.

(see text in previous edition)

The specified notice may be submitted to the tax authority by the audited person personally or through a representative, or transmitted in electronic form via telecommunication channels or through the taxpayer's personal account. Persons who, in accordance with paragraph 3 of Article 80 of this Code, are not obligated to submit a tax return in electronic form, have the right to send the said notification by registered mail.

The form and format of the said notification in electronic form via telecommunication channels or through the taxpayer's personal account are approved by the federal executive body authorized to control and supervise taxes and fees.

Within two days from the date of receipt of such notification, the head (deputy head) of the tax authority has the right, on the basis of this notification, to extend the deadlines for submitting documents or refuse to extend the deadlines, which is subject to a separate