24 April 2017, 21:15 , question #1619716 il, Moscow city
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Hello!
1. Is it possible to pay not all years by applying the limitation period. If so, which ones and in what order?
Can. But you need to calculate the time. It depends on whether the tax office sent you a demand for payment (namely, a demand, not a tax notice).
If you sent a claim, then after 2 years from the date set for payment in the claim, they will no longer be able to collect tax from you. More precisely, they can, but for this they need to restore the term in court.
Article 47 tax agent, payer of the fee, payer of insurance premiums) - organizations, individual entrepreneur
The decision to collect tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur is made within one year after the expiration of the deadline for fulfilling the tax payment requirement. The decision to collect tax at the expense of the property of a taxpayer (tax agent) - an organization or an individual entrepreneur, taken after the expiration of the specified period, is considered invalid and is not subject to execution. In this case, the tax authority may apply to the court for the recovery of the amount of tax due from the taxpayer (tax agent) - organization or individual entrepreneur. An application may be filed with the court within two years from the date of expiration of the deadline for fulfilling the tax payment claim. The deadline for filing an application missed for a good reason may be restored by the court.
2. If you do not pay all the years, then how to pay the penalty if it has been accrued on an accrued basis since 2011.
a) pay the full amount
b) pay a penalty only for the last 3 years, how to calculate it.
3. After paying for the last 3 years, a penalty will continue to accrue for unpaid old years, what to do with it, will they be able to recover it in court?
After the expiration of 2 years from the date of the claim, the tax office cannot sue for recovery. But most likely, this debt will still “hang” on your personal account in the taxpayer's office. This is due to the fact that the tax authorities do not write off even such “bad” debts.
4) I.e. what is the correct sequence of actions on my part to resolve issues with the state with minimal losses.
As I said - pay only the last requirements. If you do not pay them, then at any time you can transfer them to the bailiffs or to the court for collection.
And, of course, you need to remove the car from the register, if you have not already done so.
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Magadiev Ramil
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Due to the fact that the second owner, after the sale of the car by me, did not register it for a long time, I have accumulated a tax debt on the transport tax, which needs to be repaid.
il
In accordance with Art. 357 of the Tax Code Russian Federation(hereinafter referred to as the Tax Code of the Russian Federation), taxpayers are persons who, in accordance with the legislation of the Russian Federation, have registered vehicles recognized as an object of taxation.
Taxpayers - individuals pay transport tax on the basis of a tax notice sent by the tax authority (part 3 of article 363 of the Tax Code of the Russian Federation).
According to Art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees.
1. Is it possible to pay not all years by applying the limitation period. If so, which ones and in what order?
il
They can recover only for the last 3 years, and the tax authority has already missed the deadline for collecting in court.
If the obligation to calculate the amount of tax is assigned
to the tax authority, no later than 30 days before the due date for payment by the tax authority
sends a tax notice to the taxpayer. tax notice
shall be deemed received after six days from the date of sending the registered
letters (paragraphs 2, 4 of article 52
Tax Code of the Russian Federation)
According to part 3 of Art. 52
RF Tax Code, tax payable individuals in a relationship
objects real estate and (or) vehicles, calculated by the tax authorities
for no more than three tax periods preceding the calendar
year of issuance of the tax notice.
Failure to fulfill or improper fulfillment of the obligation to pay tax is
grounds for sending by the tax authority to the taxpayer
Claims for the payment of tax under Articles 69 and 70
NK RF.
Based on paragraph 1 of Art. 70
Tax Code of the Russian Federation, the request for payment of tax must be sent
taxpayer no later than three months from the date of detection of arrears.
According to part 2 of Art. 48
Tax Code of the Russian Federation, an application for recovery is filed with a court of general jurisdiction by a tax authority
within six months from the date of expiration of the deadline for fulfilling the claim for payment of tax,
fees, penalties, fines, unless otherwise provided by this paragraph.
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Magadiev Ramil
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ChatTransport tax in accordance with Art. 14 of the Tax Code of the Russian Federation applies to regional taxes which largely form the revenue base of regional and local budgets. Therefore, its maximum collection is so important for local officials. However, not all vehicle owners are in a hurry to fulfill their constitutional obligation to pay this tax. Often the pretext is the unsatisfactory condition of the roads, which causes numerous accidents and breakdowns of cars. As a rule, motorists themselves have to eliminate their consequences at their own expense. Not conducive to the filling of regional and local budgets and introduced not so long ago the possibility of selling cars without deregistration in the traffic police. Let's talk about the tax results of the current vehicle registration procedure today.
Let's consider a situation from practice. For example, in July 2015, an organization sold a car to a legal entity. In the same month, the vehicle (TC) was written off the balance sheet. Under the terms of the contract of sale, the new owner is obliged, within five calendar days from the date of transfer of the car, to change his registration data in the traffic police. With this in mind, the organization calculated the transport tax for the past year, based on the actual time of ownership of the sold car - seven months. Based on the results of a desk audit of the transport tax declaration for 2015, the inspection assessed additional tax up to an annual amount, since, according to information received from the traffic police, the new owner re-registered the car only in January 2016. Are additional charges legal, because as of 01/01/2016 the vehicle was not listed on the balance sheet, and the organization itself, under the contract, has no obligation to deregister the car?
Tax regulations
In paragraph 1 of Art. 357 of the Tax Code of the Russian Federation states that the payers of transport tax are persons on whom, according to the legislation of the Russian Federation, vehicles are registered that are recognized as objects of taxation. This is (by virtue of clause 1 of article 358 of the Tax Code of the Russian Federation) vehicles (including cars) registered with the relevant authorities in the prescribed manner.Consequently, the obligation to pay transport tax is made dependent on the state registration of the vehicle, and not on the actual presence or use of this vehicle by the taxpayer. This opinion is also shared by officials of regulatory authorities (see letters of the Ministry of Finance of Russia dated February 18, 2016 No. 03-05-06-04 / 9050, the Federal Tax Service of Russia dated August 28, 2013 No. [email protected]), and judges (see Ruling of the Constitutional Court of the Russian Federation of March 24, 2015 No. 541-O).
An exception to this rule is the cases provided for in par. 3 - 5 Art. 357 (this rule lists persons who are not recognized as transport tax payers) and paragraph 2 of Art. 358 of the Tax Code of the Russian Federation (here named vehicles that are not subject to taxation).
According to paragraph 1 of Art. 362 of the Tax Code of the Russian Federation, taxpayers - legal entities calculate the amount of transport tax (advance payment) on their own. And as follows from paragraph 3 of the named article (as amended in 2015), the obligation to pay tax arises for the taxpayer from the month of putting the vehicle on state registration and terminates from the month following the month of deregistration of this vehicle in the registering organs.
From 01/01/2016, the moment of occurrence (loss) of the obligation to pay transport tax is determined in a different manner. Changes in paragraph 3 of Art. 362 of the Tax Code of the Russian Federation federal law No. 396-FZ dated December 29, 2015. According to the updated norm, starting from the first reporting period of 2016, the tax is calculated depending on the date of registration (de-registration) of the vehicle in the relevant state body.
So, if the vehicle is registered until the 15th number inclusive or deregistered after the 15th number, then when calculating the transport tax for full month the month of registration (deregistration) of the vehicle is taken.
In turn, if the registration of the vehicle has occurred after the 15th number or removal of the vehicle from the registration was carried out until the 15th date inclusive, then the month of registration (deregistration) not taken into account when calculating tax.
It follows from the above legal norms that a vehicle (in our situation, a car) is an object of taxation as long as it remains registered with the taxpayer in the manner prescribed by law. Termination of registration is recognized as the basis for the termination of the collection of transport tax. Other reasons for non-calculation of this tax by taxpayers - legal entities (except for the theft of a vehicle or the emergence of the right to a tax benefit) are not established by law.
By virtue of paragraph 1 of Art. 88 of the Tax Code of the Russian Federation during desk audits tax authorities are guided, among other things, by information received from the registration authorities. The obligation of the latter to provide information necessary for tax control is enshrined in paragraph 4 of Art. 85 of the Tax Code of the Russian Federation, which states that the bodies that register the vehicle are obliged to report to the tax inspectorates information about these objects and their owners within ten days from the date of the corresponding registration. In addition, this information must be updated annually by February 15 of the year following the reporting year.
Thus, since tax authorities are not empowered to register and record the vehicle, when checking the correctness of the calculation of the transport tax by organizations, they are guided by information received from the registration authorities, since otherwise is not provided by law. This means that in the situation under consideration, the inspectors lawfully charged the taxpayer with additional transport tax up to an annual amount. After all, from the provisions of Ch. 28 of the Tax Code of the Russian Federation it follows that the fact of writing off the vehicle from the balance sheet of the organization, as well as the latter's lack of obligation to deregister the car with the traffic police, does not matter for calculating the tax.
Arbitrage practice
Such a formal approach to the calculation of transport tax is consistent with the position of the supreme arbitrators, voiced in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 15, 2011 No. 12223/10 in case No. A40-62640 / 09‑151‑457. This ruling concluded the following: write-off of a vehicle from the organization's balance sheet without deregistration with the registering state body does not relieve the taxpayer, in whose name this vehicle is registered, from the obligation to calculate and pay transport tax, since, by virtue of the imperative provisions of Art. 357, 358, 362 of the Tax Code of the Russian Federation, recognition of persons as taxpayers, determination of the object of taxation and the emergence of an obligation to calculate and pay transport tax is based on information about vehicles and persons on which they are registered.The subject of this litigation were vehicles written off the balance sheet by the organization due to disposal. Meanwhile, the tax authorities gave the designated position of the highest judges a universal character and began to apply it, among other things, to transactions for the sale of vehicles. The judicial authorities consider this admissible (see, for example, the Resolution of the First Arbitration Court of Appeal dated January 26, 2016 in case No. А79-4212/2015).
Subsequently, the Judicial Collegium for Economic Disputes of the Armed Forces of the Russian Federation demonstrated a slightly different (less formal) approach to the procedure for calculating transport tax (Determination No. 306-KG14-5609 dated February 17, 2015 in case No. A55-23180 / 2013).
The arbitrators explained: the conclusion of the Presidium of the Supreme Arbitration Court was made taking into account the fact that when disposing (writing off) the vehicle entity under which it is registered, obliged remove it from the register on the specified basis with the traffic police at the place of registration, by submitting the relevant documents, registration marks and Title.
With this the Judicial Board fully agrees. In her opinion, if the current tax law connects the moment of termination of the calculation and payment of tax with the actions of the taxpayer, on which duty by applying to the competent authorities with an application for deregistration of the relevant object of taxation, then the risks of adverse consequences of not taking such actions (payment of tax from the missing vehicle) lie precisely on the taxpayer. However, such risks can arise only if the taxpayer there was no objective possibility deregister the vehicle.
Based on this definition, the fact of state registration of the vehicle can not treated by the courts as the only condition the taxpayer is liable to pay transport tax. It is also necessary to establish whether the payer must take appropriate actions to stop the calculation of the tax (in particular, deregister the vehicle with the registration authority). And if these actions are not taken, check if there were any objective obstacles to this (see Resolution of the AC of the ZSO dated 03.03.2016 No. F04-46 / 2015 in case No. A03-13035 / 2015).
On the obligations of vehicle owners (former and present)
Recall that in the situation we are considering, the obligation to change the registration data about the car is assigned to the new owner. Does this agreement comply with the law? Shouldn't the previous owner, before selling the vehicle, remove it from the register with the traffic police?The answer is unequivocal: no, it shouldn't. The procedure for registration with the traffic police is regulated by the Administrative Regulations of the Ministry of Internal Affairs on the provision of public services for the registration of motor vehicles and trailers for them (hereinafter referred to as the Administrative Regulations). In its paragraph 65, only two grounds for deregistration of a vehicle are established:
- export outside the Russian Federation for permanent residence;
- disposal.
According to clause 3 of Decree of the Government of the Russian Federation No. 938 and clause 4 of the Rules, the new owner or the person who owns, uses or disposes of the vehicle on his behalf is assigned ten days after purchase.
Violation of the rules of state registration of vehicles is fraught with bringing the organization and its officials to administrative responsibility. According to Part 1 of Art. 19.22 of the Code of Administrative Offenses of the Russian Federation, the amount of penalties is:
- for officials - from 2,000 to 3,500 rubles;
- for organizations - from 5,000 to 10,000 rubles.
As you can see, the current procedure for registering vehicles with the traffic police entails certain adverse tax consequences for their former owners. This circumstance more than once served as the basis for the appeal of the latter to the Constitutional Court.
Example - Definition of the Constitutional Court of the Russian Federation dated May 21, 2015 No. 1035-O. According to the applicant, the provisions of Art. 357, 358 and 362 of the Tax Code of the Russian Federation unreasonably impose on persons who have lost the right to own a vehicle the obligation to pay transport tax, despite the fact that the timeliness of making changes to the registration data of such a vehicle depends on the actions of the new owner. Having considered the complaint, the judges came to the conclusion that these tax norms did not violate the constitutional rights of the applicant - the former owner of the vehicle.
The arbitrators noted: the federal legislator, establishing in Ch. 28 of the Tax Code of the Russian Federation, the transport tax, linked the occurrence of an object of taxation with the fact of registration of a vehicle for a taxpayer. Meanwhile, the Administrative Regulations provide the possibility of deregistration of the vehicle at the request of the previous owner in the event that the new owner fails to fulfill the obligation to make changes to the registration data within ten days from the date of purchase of the car and provided that the registration of this car for the new owner is not confirmed.
Indeed, clause 60.4 of the Administrative Regulations establishes that the submission to the registration authority by the seller of the car of an application and documents on the conclusion of a transaction aimed at its alienation is the basis for terminating the registration of the vehicle for this person.
Thus, the judicial authorities regard the actions of the former owner of the vehicle to deregister it with the traffic police as a right, not an obligation. Moreover, he can use this right only when certain events occur.
Paragraph 5 of the Rules stipulates that vehicle owners obliged, in particular, to change the registration data in case of expiration of the temporary registration period, disposal of the vehicle, change of owner (ownership). The norm does not specify which owners (new or former) are in question. We believe that here we have in mind the buyers - the new owners of the vehicle, because the sellers - the former owners after the alienation of the car cease to be such. There are no other obligations under the Rules.
Thus, the former owner, in principle, is not obliged to track the fate of the car he sold, to control the fulfillment by the new owner of the obligation to re-register it with the traffic police. But in this case, negative tax consequences may arise for the seller, because he will remain a transport tax payer as long as he is listed as the owner of the vehicle in the registration authorities, regardless of the fact that it has not been available for a long time.
To avoid such risks, the Ministry of Internal Affairs advises motorists to re-register the vehicle in the traffic police department immediately at the time of its sale. Moreover, now this can be done in any region of the country - regardless of the place of residence of the former and new owner of the car (see question 3 of the Clarification of the Ministry of Internal Affairs of Russia dated 10/17/2013 "On the application of the provisions of the administrative regulations for the registration of vehicles").
The legal position set out in this definition, brought to the attention of the Federal Tax Service of the territorial tax authorities for use in their work by Letter No. SA-4-7/ dated 17.07.2015 [email protected]
These are persons directly involved in the organization and holding of the Olympic and Paralympic Games held in Russia in 2014, as well as the World Cup, which will be held in 2018.
Among the vehicles that are not subject to taxation, there are, in particular, special vehicles for the disabled, received (purchased) through the social security authorities; agricultural machinery used for its intended purpose by agricultural producers; vehicles that are stolen.
The legal position set forth in this definition was brought to the attention of the Federal Tax Service by the territorial tax authorities for use in their work by Letter No. SA-4-7/ dated July 17, 2015 [email protected]
Approved by Order of the Ministry of Internal Affairs of Russia dated 07.08.2013 No. 605, effective from 10/15/2013.
Annex 1 to the Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001.
Decree of the Government of the Russian Federation of August 12, 1994 No. 938 “On the state registration of motor vehicles and other types of self-propelled equipment on the territory of the Russian Federation”.
Answer:
LETTER FROM THE MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION dated December 24, 2014 N 03-05-06-04 / 66762
According to Article 357 of the Tax Code of the Russian Federation, taxpayers of transport tax are persons who, in accordance with the legislation of the Russian Federation, have registered vehicles that are recognized as an object of taxation in accordance with Article 358 of the Code.
The objects of taxation are vehicles registered in accordance with the established procedure in accordance with the legislation of the Russian Federation (paragraph 1 of Article 358 of the Code).
In addition, paragraph 1 of Article 362 of the Code establishes that the amount of transport tax payable by taxpayers who are natural persons is calculated by the tax authorities on the basis of information submitted to the tax authorities by the authorities carrying out state registration vehicles on the territory of the Russian Federation.
Thus, the obligation to pay transport tax is made dependent on the registration of the vehicle. In case of registration of a vehicle and (or) removal of the vehicle from registration (deregistration) during the tax (reporting) period, the tax amount is calculated taking into account the coefficient determined as the ratio of the number of full months during which the vehicle was registered for taxpayer, to the number of calendar months in the tax (reporting) period. In this case, the month of registration of the vehicle, as well as the month of removal of the vehicle from registration, is taken as a full month (paragraph 3 of Article 362 of the Code).
Consequently, the collection of transport tax is terminated from the month following the month of its deregistration with the registration authorities.
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION LETTER No. 03-05-06-04/21706 dated April 15, 2016 The Department of Tax and Customs Tariff Policy has considered the appeal on transport tax and announces the following. In accordance with Article 357 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), transport tax taxpayers are persons who, in accordance with the legislation of the Russian Federation, have registered vehicles that are recognized as an object of taxation. According to paragraph 1 of Article 362 of the Code, the amount of tax payable by taxpayers - individuals, is calculated by the tax authorities on the basis of information submitted to the tax authorities by the authorities that carry out state registration of vehicles in the territory of the Russian Federation. Thus, the obligation to pay transport tax is made dependent on the registration of the vehicle. The termination of the collection of transport tax is provided for by the Code in the event of deregistration of the vehicle in the registration authorities. Please note that issues related to the registration (de-registration) of motor vehicles fall within the competence of the Ministry of Internal Affairs of Russia.
On the grounds for the emergence (termination) of the obligation to pay transport tax
Among the main obligations of taxpayers in accordance with the Tax Code of the Russian Federation is the obligation to pay taxes (clause 1, clause 1, article 23 of the Tax Code of the Russian Federation). For payers of insurance premiums and fees, such an obligation is, respectively, the payment of premiums and fees (clause 1, clause 3.4, clause 4, article 23 of the Tax Code of the Russian Federation). When the obligation to pay tax arises and when it stops, we will tell you in our consultation.
Obligation to pay taxes
The obligation to pay taxes is established by the Tax Code of the Russian Federation and other acts of tax legislation. If the taxpayer has circumstances that require the payment of a specific tax, then, consequently, a related obligation arises (clause 2, article 44 of the Tax Code of the Russian Federation). For example, in relation to VAT, if, according to the results of the quarter, the organization has the amount of VAT calculated in accordance with Art. 166 of the Tax Code of the Russian Federation and increased by the amount of the restored tax, exceeds the amount tax deductions provided for in Art. 171 of the Tax Code of the Russian Federation, the taxpayer has an obligation to pay VAT (clause 1, article 173 of the Tax Code of the Russian Federation).
When does the obligation to pay tax (fee) end?
tax code provides for cases when the obligation to pay tax ceases.
So, the obligation to pay tax terminates in the following cases (clause 3, article 44 of the Tax Code of the Russian Federation):
- its payment;
- death of a taxpayer-individual or declaration of his death. At the same time, the transport tax, as well as debts on local taxes, are repaid by the heirs;
- liquidation of the taxpayer-organization;
- other circumstances when the tax legislation recognizes the obligation as terminated (for example, upon the expiration of the limitation period for the collection of tax payments).
Thus, the fulfillment of the obligation to pay taxes and fees is the most common way to terminate the tax obligation. At the same time, from November 30, 2016, the obligation to pay tax is considered fulfilled, regardless of whether the taxpayer paid the tax himself or a third party did it for him (