Offsetting and refunding tax overpayments in a new way

The main industry event of the fall can be considered the adoption of Federal Law No. 325-FZ on September 29, 2019, which introduced large-scale amendments to the Tax Code. One of these amendments, a change in the procedure for offset and return of overpayments, has become the subject of consideration of a current topic. What new the new law has brought to the procedure for offset or refund of taxes, as well as what difficulties an organization may encounter when tax authorities refuse to offset or refund overpaid taxes, is set out in our material. The given examples of judicial practice will help to optimally manage overpayments, taking into account the experience of other taxpayers.

Four innovations in the procedure for offset or refund of overpayments

Article 78 of the Tax Code of the Russian Federation on the offset or return of amounts of overpaid taxes, fees, insurance premiums, penalties, and fines has been amended.
So, from 01.10.2020 the following amendments come into force. The provision that the offset of overpayments is made exclusively against a tax of the same type: federal against the federal, regional against the regional, local against the local, is completely invalidated. This innovation will allow taxpayers to rationally manage their funds.

It turns out that from October 1, 2020, it will be possible to offset, for example, an overpayment of income tax against the arrears of transport tax, despite the fact that the transport tax is regional, and the overpayment arose for federal tax. That is, it will be possible to offset overpayments of taxes of any type. It can also be offset against penalties and fines related to any type of tax.

Another positive innovation is the amendment that allows offset or refund of overpayments by any tax authority, and not just at the taxpayer’s place of registration (subclause “b”, paragraph 22, article 1 of the law). This innovation will simplify the offset procedure, however, the application for offset and return will have to be submitted, as before, to the inspectorate at the place of registration, clause 22 of Art. 1 law).

The listed positive innovations entailed stricter requirements for tax refunds. It will be possible if there is no arrears of any tax and corresponding penalties and fines. Today, it is sufficient that there is no arrears for a tax of the same type (subclause “e”, paragraph 22, article 1 of the law). Thus, with the adoption of the amendment, it will become even more difficult to return overpayments from the budget.

In addition, as of October 29, 2019, a new provision came into effect regarding the deadline for making a decision on offset or refund of overpayments during a desk audit. This period will depend on:

from the completion date of the inspection;
from the entry into force of the decision on it.

This period will be counted:

after 10 days have passed from the day following the day the inspection was completed, or the day on which it should have ended;
from the day following the day of entry into force of the decision on the inspection that revealed violations (subparagraphs “and” paragraph 22 of Article 1 of the law).

Federal Law of September 29, 2019 No. 325-FZ “On amendments to parts one and two of the Tax Code of the Russian Federation” Subparagraphs “a”, “b”, “g”, “e”, “i”, paragraph 22, art. 1

How to apply for a property deduction?

You can submit documents for the right to use a property deduction in one of the following ways:

Personally. To do this, you need to find time and visit the Federal Tax Service at your place of registration. The disadvantage of this method is the waste of personal time and the need to answer possible questions from the tax inspector.
By mail. It is better to send documents by a valuable letter with a list of attachments. The disadvantage of this method is that if the documents are not in order, then it will be possible to find out about this only after 3 months, allotted for conducting a desk audit.
Through the taxpayer’s personal account by filling out the proposed declaration form online. Scans of documents confirming expenses for the apartment must also be attached to the declaration. The advantage of this method is that the taxpayer will be able to track the status of the return verification and the progress of the submitted tax refund application.

For more information about filling out the 3-NDFL declaration online, read the article “How can you submit a 3-NDFL declaration to the tax office.”

Overpayment: how to return or offset

For both offset and refund of tax, you must contact the Federal Tax Service with an application.
If the reason for the overpayment was an error in the declaration, then you must first submit an updated declaration with the corrected error. Only after this can you apply for a refund or offset of the overpayment. There is a general deadline for submitting applications. It is three years from the date of payment or overpayment of tax. If we are talking about the return of an overpayment due to the excess of advance payments to the amount of tax for the year, three years are counted from the date of filing the annual declaration - clause 7 of Art. 78 Tax Code of the Russian Federation.

The deadline for making a decision on both a refund and a tax offset is 10 working days from the date of receipt of the application or the end of the desk audit of the updated declaration - clause 8 of Art. 78 Tax Code of the Russian Federation. If the inspection offers to undergo a reconciliation of calculations, then from the date of signing the reconciliation act. The Federal Tax Service must notify the Inspectorate of the Federal Tax Service about the decision made on a refund or offset within five days - clause 9 of Art. 78 Tax Code of the Russian Federation.

The refund period for the overpayment is one month from the date of receipt of the application, even if the calculations are reconciled. If the overpayment is revealed according to the updated declarations - a month after the end of the “camera chamber” - clause 6 of Art. 78 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of the Russian Federation dated February 21, 2017 No. 03-04-05/9949.

Violation of the deadline for returning the overpayment threatens the Federal Tax Service with payment of interest - clause 10 of Art.
78 Tax Code of the Russian Federation. As for untimely offsets, no interest is charged on the offset amount. The only thing that remains is to appeal the inaction of the inspectorate. If the inspectorate refuses to refund the overcharged tax, it will inform about its decision, indicating the reason for the refusal.

A refusal to return or offset can be appealed first to a higher tax authority, and then in court (Article 137, paragraphs 1, 2 of Article 138 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of the Russian Federation dated December 21, 2017 No. GD-3-8 / [email protected ] ). The period for appeal is one year from the moment the taxpayer learned or should have learned about the violation of his rights.

The deadline for filing a claim in court for the refund of excessively collected tax is three years from the day the taxpayer learned or should have learned of a violation of his right to a refund or offset (clause 1 of Article 196, clause 1 of Article 200 of the Civil Code of the Russian Federation). Such a day could be, for example, the date when the inspection announced the decision to refuse a return (Resolution of the AS of the North-Western District dated July 27, 2017 No. F07-6490/2017).

In court, it is necessary to prove that the three-year period has not yet expired, and also that the organization actually has amounts of excessively collected taxes. Otherwise, the return will be refused.

How is overpayment detected?

Typically, the taxpayer knows about the existence of an overpayment based on his own accounting data, provided that they are correct. As a rule, an overpayment occurs either at the time of filing the declaration or when the tax is actually paid.

At the same time, the court does not consider accounting errors a valid reason to justify the overpayment (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 26, 2011 No. 18180/10).

If the overpayment is obvious to the Federal Tax Service, it must promptly (within 10 working days from the date of discovery) inform the taxpayer about this or invite him to carry out a reconciliation (clause 3 of Article 78 of the Tax Code of the Russian Federation).

From 2021, personal income tax reporting has become mandatory and quarterly. Therefore, data on any overpayment of personal income tax appears in the Federal Tax Service in the same manner as for other taxes.

Read about the rules for filling out personal income tax reporting in the article “Procedure for filling out form 6-NDFL - example” .

The fact of overpayment of taxes may be established by the court if:

the presence of an overpayment became indisputable only after the publication of letters from the Ministry of Finance of Russia (Resolution of the Federal Antimonopoly Service of the Volga Region dated April 18, 2013 No. A65-18995/2012);
the overpayment was revealed during an on-site inspection (resolution of the Federal Antimonopoly Service of the North-Western District dated 05.08.2011 No. A56-31885/2010);
The court decision declared the contract void, which resulted in the fact of overpayment (Resolution of the Federal Antimonopoly Service of the Volga Region dated April 23, 2013 No. A55-16126/2011);
the inspectorate's decision to assess additional tax was declared illegal (Resolution of the Federal Antimonopoly Service of the Moscow District dated November 15, 2012 No. A40-94026/11-91-401);
the court found that there was no obligation to pay tax (resolution of the Federal Antimonopoly Service of the West Siberian District dated August 5, 2011 No. A81-4526/2010);
the court ordered the inspection to admit the fact of overpayment (resolution of the Federal Antimonopoly Service of the Moscow District dated 02.02.2012 No. A40-27537/11-91-123);
the Federal Tax Service's refusal to reimburse was declared invalid (Resolution of the Federal Antimonopoly Service of the Moscow District dated August 24, 2011 No. KA-A40/8845-11-P);
collection orders were declared invalid (resolution of the Federal Antimonopoly Service of the Ural District dated January 12, 2009 No. Ф09-10148/08-С3);
the fact of overpayment became obvious after the formation of law enforcement practice (resolution of the Federal Antimonopoly Service of the Central District dated March 22, 2012 No. A35-4258/2011);

The date on which the fact of overpayment is established may determine the countdown of the deadline for applying for a tax refund.

Personal income tax can be offset against future payments, but only for other types of taxes

The Ministry of Finance spoke about the possibility of offsetting the erroneously transferred amount using personal income tax details to pay off the debt under the simplified tax system.
The Department, referring to Art. 78 of the Tax Code of the Russian Federation, confirmed that such an offset is possible, but for taxes of the corresponding type, that is, federal taxes. In this case – against the simplified tax system.

Letter of the Ministry of Finance of the Russian Federation dated August 28, 2019 No. 03-02-07/1/66024

Editor's note:
Thus, the amount of overpayment for personal income tax can be offset against the payment of other federal taxes. This includes VAT and income tax. The same conclusion follows from the letter of the Federal Tax Service of the Russian Federation dated 02/06/2017 No. GD-4-8 / [email protected] , which states that the offset of personal income tax is feasible:
to pay off debt - for taxes of the corresponding type (federal);
against future payments - for other taxes.
Summary: returning or crediting personal income tax is difficult, but possible. First you need to determine how the overpayment arose; further actions will depend on this. If it was formed due to an overpayment, for example, as a result of an error in a payment slip, you can either return it from the budget or offset it against arrears or future payments for other federal taxes. To do this, you must submit an application for return or offset to the inspectorate. Refunds are made in the following cases:
if the tax is withheld, transferred and the company’s own funds are not enough to return it.
The tax was withheld correctly, but transferred to the budget in a larger amount.
Credit can be made to:
shortfalls or future payments of other federal taxes;
arrears of interest on federal taxes, as well as tax penalties.

The impossibility of offsetting overpaid personal income tax against future payments is explained by the fact that payment of this tax must occur exclusively at the expense of individuals, and not the company as a tax agent (clauses 1, 14, article 78, clause 9, article 226 of the Tax Code of the Russian Federation) .
From 01/01/2020, an exception to this rule applies in a situation where tax is additionally assessed (collected) based on the results of a tax audit, if personal income tax is not withheld unlawfully (not fully withheld) (clause “c” of paragraph 16 of Article 2 of the Federal Law of September 29. 2019 No. 325-FZ). So, starting next year, additional personal income tax can be paid using your own funds. This will make it possible to reduce the size of penalties. If the overpayment was due to the withholding of tax from an individual in a larger amount than necessary, it can only be returned in a special manner.

In addition, you need to remember that it is possible to return or offset the overpayment of personal income tax within three years after it was transferred to the budget.

What is the basic return rule contained in clause 6 of Art. 78 of the Tax Code of the Russian Federation?

It is possible to return an overpayment if there is arrears on other payments only after closing such arrears by offset from the amount of the existing overpayment (Clause 6, Article 78 of the Tax Code of the Russian Federation). The Federal Tax Service will do this offset itself (Clause 5, Article 78 of the Tax Code of the Russian Federation), and the taxpayer will receive only the balance of the amount declared for refund if it exceeds the amount of the existing arrears, which can be repaid by offset.

The presence of such arrears is not an obstacle for the taxpayer to send an application to the Federal Tax Service for the return of the overpayment (letter of the Ministry of Finance of Russia dated September 7, 2011 No. 03-02-07/1-317).

There is one exception to the rule about carrying out an offset to repay the arrears of the Federal Tax Service before returning the overpayment to the taxpayer: it does not apply if bankruptcy proceedings have been opened against the taxpayer (Resolution of the Federal Antimonopoly Service of the East Siberian District dated November 27, 2012 No. A19-4247/2012).

The reconciliation report does not oblige the tax authority to return the overpayment

On March 15, 2018, an individual entrepreneur applied to the Federal Tax Service with an application for a refund of overpaid tax for 2013.
The overpayment was discovered based on the results of submitting an updated declaration on August 14, 2017 and subsequent reconciliation of settlements with the tax authority. Referring to the missed three-year deadline for filing an application from the date of payment of the tax, the Federal Tax Service refused to refund. The court recognized this decision as lawful. The fact is that nothing prevented the taxpayer from assessing his tax obligations in a timely manner. The disputed amount of overpaid tax was paid by the entrepreneur in 2014, that is, four years passed from the moment of payment to the filing of the application for a refund.

The court rejected the applicant's reference to the reconciliation report as the moment from which he learned about the fact of the overpayment. Signing a reconciliation report is not an act of acknowledging a debt to the taxpayer, since the taxpayer can apply for a reconciliation report after any period of time, and the tax authority will be required to draw up and sign the corresponding act. The reconciliation act does not indicate the unconditional obligation of the tax authority to return the overpayment, and the date of its preparation is not the moment when the statute of limitations for going to court begins to count.

Resolution of the Arbitration Court of the Volga District dated April 12, 2019 No. F06-45362/2019

A certificate of the status of settlements with the budget is insufficient evidence of overpayment

The Federal Tax Service refused to refund the company's overpayment of taxes. The courts supported this position for the following reasons:

the applicant did not provide documents confirming the existence of an overpayment;
The tax periods for which the disputed overpayment of taxes arose have not been identified.

The court indicated that the right to a refund is directly related to the presence of overpayment of tax amounts to this budget and the absence of debt on taxes credited to the same budget, which is confirmed by certain evidence:

payment orders of the taxpayer;
collection orders (instructions) of the Federal Tax Service;
information on the taxpayer’s fulfillment of the obligation to pay taxes contained in the tax authority’s database.

The presence of an overpayment is revealed by comparing the tax amounts payable for a certain tax period with payment documents relating to the same period, taking into account information about the taxpayer’s settlements with budgets.
Submission of a certificate on the status of settlements with the budget cannot be considered as sufficient evidence that the taxpayer has overpaid taxes.

Ruling of the Supreme Court of the Russian Federation dated February 11, 2019 No. 309-KG18-25158

Results

Individuals who pay personal income tax when purchasing an apartment can take advantage of the right to a refund of previously paid tax or benefits from exemption from the withholding of 13% on income received at the place of work. In order to exercise this right, you must collect a complete package of documents and submit them to your Federal Tax Service.

The maximum amount of property deduction provided once for life is 260 thousand rubles, and you can use your right to it as many times as you like until the limit is completely exhausted. This applies to residential real estate purchased since 2014, or cases where the property was purchased earlier, but the taxpayer did not use the right to such a deduction at all.

The waiting period for personal income tax reimbursement when purchasing an apartment is no more than 4 months, and the amount of tax declared as subject to reimbursement in the form of a payment to the taxpayer’s account will be transferred to him immediately, and receiving a deduction from the employer will take longer.

Sources:

Tax Code of the Russian Federation
Order of the Federal Tax Service dated August 28, 2020 No. ED-7-11/ [email protected]

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Reorganization does not increase the period for returning overpayments

Chemical Engineering Plant LLC applied to the arbitration court to declare illegal the decision of the Federal Tax Service on the refusal to offset the overpayment of corporate income tax in the amount of 3.6 million and the obligation to offset the specified overpayment of income tax against the payment of current payments.
The taxpayer was supported by the first instance. The appeal and the district court overturned the decision. The Supreme Court found no grounds for reviewing the verdict of its colleagues. The fact is that the overpayment went to the plant from another organization as a result of succession as a result of reorganization. The reason for the refusal was the missed three-year deadline for filing an application for a credit (refund) of the amount of overpaid tax.

The specified period is calculated from the day the legal predecessor of the company filed the income tax return for 2013. At the same time, the subsequent transfer to the company as a legal successor of the right to offset (refund) the overpaid tax did not affect the procedure for calculating the period.

The court rejected the plant’s arguments that before the reorganization it did not know about the existence of an overpayment and could not declare a refund until the completion of the merger process, indicating that the period should be calculated from the day when the legal predecessor filed the declaration. The transfer of the right to offset or refund during reorganization does not affect the Determination of the term.

Ruling of the Supreme Court of the Russian Federation dated August 5, 2019 No. 309-ES19-11479

Overpayment does not occur if it is paid through a problematic bank

The Supreme Court of the Russian Federation refused to reconsider the dispute in which the company demanded the return of an overpayment of personal income tax.
The organization had to pay the tax twice because the first payment did not go through due to a lack of funds in the bank's correspondent account. The second payment was successfully credited to the budget.

The lower courts agreed with the inspectorate that there was no reason to return the funds, because the money did not actually go to the budget the first time. And if so, then there is no overpayment.

The courts indicated that the organization should have known about the bank’s problems.

Moreover, even in situations where the courts recognize the obligation to pay as fulfilled, it is very difficult to return the overpayment.

Ruling of the Supreme Court of the Russian Federation dated February 12, 2019 No. 305-KG18-24960

Editor's note:

Since in such a situation it will not be possible to return or offset the overpayment, the only way to get the money back is to contact the problematic bank with an application for the return of the missing amounts and, in case of refusal, to file a lawsuit.

The moment of reporting is not the starting point for counting the tax refund period

The Federal Tax Service did not return the excessively transferred personal income tax to the LLC due to the expiration of the deadline for filing an application for a tax refund.
In the opinion of the company, the tax authority refused unlawfully, since the final tax base is formed precisely at the moment of filling out forms 2-NDFL and therefore the deadline should be counted from there, and not from the moment of transfer of funds.

The court stated that the transfer to the budget of an amount that actually exceeds the amount of personal income tax withheld is not a payment of personal income tax at all, but is considered as an erroneously transferred amount. This circumstance is confirmed by the calculation of the amount of withheld and transferred tax presented by the tax agent. Therefore, in this case, the return of the erroneously transferred amount is carried out according to the general rules of Art. 78 Tax Code of the Russian Federation.

Since the deadline for filing an application for the return of the disputed amount by the company was missed, the court recognized the tax authority’s refusal to return part of the amount as lawful.

Resolution of the Arbitration Court of the North-Western District dated January 28, 2019 No. F07-17595/2018

How to submit an application for credit (refund)?

Applications for credit and refund have approved forms. From 01/09/2019, forms approved by the Federal Tax Service order dated 02/14/2017 No. ММВ-7-8/ [email protected] as amended by the Federal Tax Service order dated 11/30/2018 No. ММВ-7-8/ [email protected]

You can download application forms for refunds and offsets of taxes (fees, fines, penalties) on our website using the link below:

Find a sample form for filling out a return application here.

You can find practical recommendations from experts on preparing an application for a tax offset in ConsultantPlus. Trial access to the legal system is free.

There are several ways to submit an application (clauses 4 and 6 of Article 78 of the Tax Code of the Russian Federation):

on paper;
according to TKS;
through your personal account registered on the Federal Tax Service website.

Format for electronic applications approved. by order of the Federal Tax Service of Russia dated March 18, 2019 No. ММВ-7-8/ [email protected]

The results of checking the countdown of the three-year period for the return of overpayments do not change

An on-site tax audit of JSC Khlebozavod in August 2014 revealed an overpayment of personal income tax in the amount of 2 million rubles.
Reflecting this fact in the act, the inspectors pointed to specific payment orders for January 2012. In addition, the company was asked to apply for a refund. Moreover, the wording of the refund was qualified not as a tax, but as an amount that was not personal income tax and was mistakenly transferred to the budget. The organization challenged the decision on the audit, made on September 30, 2014, on a matter unrelated to the tax refund, in court (03/23/2016), but lost. And only after this, already on April 1, 2016, the company applied to the Federal Tax Service with an application for the return of 2 million rubles of overpayment for personal income tax. The inspectorate refunded part of the tax and credited part; the return of the balance in the amount of 1.6 million rubles was denied to the company on April 13, 2016 due to the expiration of the 3-year period from the date of transfer of the tax.

The society failed to challenge the refusal. The fact is that the deadline for going to court has expired. The payments were made in January 2012, the application was submitted to the court on March 23, 2017, that is, five years later.

The company’s arguments that it knew reliably about the amount of the overpayment from the on-site tax audit report (in September 2014) and from the court decision (03/23/2016), the court rejected - three years must be counted from the date of payment orders.

Resolution of the Arbitration Court of the Central District dated June 27, 2019 No. F10-2476/2019

The inspector’s silence about the overpayment does not affect the three-year period for its return

According to the certificate on the status of settlements with the budget dated December 6, 2017, the entrepreneur had an overpayment of taxes in the amount of 434 thousand rubles.
By decisions of the tax authority dated December 15, 2017, the individual entrepreneur was denied a tax refund due to the expiration of the three-year period from the date of payment, provided for in clause 7 of Art. 78 Tax Code of the Russian Federation. The overpayment arose in connection with the submission by the entrepreneur of an updated VAT return for the second quarter of 2011, according to which the taxpayer adjusted the previously accrued tax amounts in the amount of 434 thousand rubles.

The court came to the conclusion that the applicant missed the three-year deadline for applying for a refund of the overpaid tax, since the applicant learned (should have known) about the excessive payment of tax in 2011, at the time of its transfer to the budget.

The norm of paragraph 3 of Art. 78 of the Tax Code of the Russian Federation on the obligation of the inspectorate to report each fact of excessive tax payment within 10 days from the date of its discovery does not apply in this case. The fact is that the taxpayer knew about the overpayment. This confirms the fact that he submitted an initial and updated declaration and voluntarily paid the tax.

Thus, failure to inform the taxpayer by the tax authorities during the three-year period for the return of the overpayment does not affect.

Ruling of the Supreme Court of the Russian Federation dated March 19, 2019 No. 304-ES19-1659

How long does it take to verify a deduction?

Let's first understand the term “desk tax audit”. It means checking compliance with the laws of the Russian Federation on taxes and fees on the basis of the tax declaration and documentation sent by the applicant to the Federal Tax Service, papers held by the tax institution itself.

It doesn’t matter how you submit the documentation: using online resources, or submitting them yourself to provide a deduction for medications or medical treatments, or to obtain a deduction for property - the time allotted for verification remains the same.

You can submit documents yourself, via the Internet or your employer.

Note ! A desk audit of the 3-NDFL declaration is carried out by competent employees of the Federal Tax Service, who follow their work responsibilities. A special verdict is not required from the head of the tax authority.

Let us indicate how long it takes for a desk audit of a 3-NDFL declaration regarding a tax deduction. Based on the second paragraph of Article 88 of the Tax Code of our country, the time allotted for analyzing the provided documentation consists of three months from the date the citizen sent the declaration.

When a document is sent via regular mail, the analysis activities also last three months and start from the date the letter was received, and not from the day the person sent the official papers (Letter of the Ministry of Finance of the Russian Federation dated June 19, 2012, number 03-02- 08/52).

Excerpt from Article 88 of the Tax Code of the Russian Federation

Note ! If, during the inspection, shortcomings are discovered in the submitted declaration, or inconsistencies are identified between the data specified in the documentation, the sender is notified of the problems and is required to provide explanations or correct errors and inconsistencies. Of course, as a result, the inspection and return times increase.

Overpayment of insurance premiums to the Pension Fund can be returned if the individual entrepreneur paid them for himself

An individual entrepreneur managed to challenge the pension fund’s refusal to return the overpayment of insurance contributions to the Pension Fund for 2014 and 2015 in the amount of 59 thousand rubles.
The court rejected the fund's argument that a refund of overpaid insurance premiums is not made if information about the contributions is already reflected in the accounting data and posted to the individual personal account of the insured person. The reason is that, based on the provisions of clause 6.1 of Art. 78 of the Tax Code of the Russian Federation, as well as the provisions of the Law of April 1, 1996 No. 27-FZ “On Persuchet”, restrictions on the return of overpayments of insurance premiums are established in relation to insurance premiums recorded in relation to individuals who are employees of the entrepreneur. In the situation under consideration, we were talking about contributions paid by the entrepreneur for himself personally. Therefore, the restriction does not apply in this case.

Resolution of the Arbitration Court of the Ural District dated March 26, 2019 No. F09-9193/18

When does the Federal Tax Service pay interest for the delay and how is it calculated?

If the Federal Tax Service violates the return period established by clause 6 of Art. 78 of the Tax Code of the Russian Federation (1 month), then the taxpayer has the right to receive interest for each calendar day of delay in payment (clause 10 of Article 78 of the Tax Code of the Russian Federation), including the day of actual receipt of the refund. This rule also applies to the return of excessively withheld personal income tax (letter from the Ministry of Finance of Russia dated 06/08/2015 No. 03-04-07/33140 and the Federal Tax Service of Russia dated 07/01/2015 No. BS-4-11 / [email protected] ).

The amount of interest is calculated from the day following the tax refund deadline until the day the funds are actually received into the current account.

Their amount is calculated based on the refinancing rate of the Central Bank of the Russian Federation (which from 2021 is equal to the key rate), corresponding to the days of the violation, based on the fact that the length of the year is considered equal to 365 days (or 366 if the year is a leap year).

The formula for calculating interest for late tax refund is as follows:

The three-year period is not missed if the reason for the delay is the settlement of disagreements with counterparties

The company managed to challenge the Federal Tax Service's refusal to offset (refund) the tax amount and oblige the overpayment of income tax for 2013 to be returned.
In December 2021 and March 2021, the company submitted an updated income tax return for 2013, in which the amount of tax payable was reduced. In December 2021, the company applied for a refund of the resulting overpayment of tax for 2013. The inspectorate, citing the company's omission of the three-year deadline for tax refund established by clause 7 of Art. 78 of the Tax Code of the Russian Federation, refused to return the overpayment. In connection with this, the organization went to court.

The society supported all three authorities. The fact is that the question of the procedure for calculating the deadline for filing an application for the return of the overpayment to the court must be resolved in accordance with paragraph 2 of Art. 79 Tax Code of the Russian Federation. That is, taking into account that such an application must be filed within three years from the day the person learned or should have learned about the fact of overpaid tax.

The company overpaid income tax due to a decrease in the previously declared amount of income for the following reasons:

settlement of disagreements with counterparties in court and pre-trial procedures;
obtaining compensation for losses;
refund of state duty;
increase in previously stated costs for services of third parties.

These circumstances became known to the public after the initial declaration was submitted and taxes were paid, and the validity of the application to reduce the amount of tax payable was confirmed by the Federal Tax Service upon completion of a desk audit of the last updated tax return.
Therefore, the company actually learned about the overpayment only in December 2016 and March 2021, therefore, the company did not miss the three-year deadline for filing a claim for the return of the overpayment in court. Resolution of the Arbitration Court of the Central District dated February 12, 2019 No. F10-6024/2018

On the offset and return of excessively collected taxes

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

An interview with an expert is devoted to some issues related to the return of over-collected taxes.

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

Excessively paid and excessively collected tax amounts are covered by Articles 78 and 79 of the Tax Code of the Russian Federation, respectively. The assessment of tax amounts as excessively paid or excessively collected is carried out depending on the basis for fulfilling the obligation to pay tax, which is subsequently recognized as absent.

Is it possible to talk about excessive collection if the taxpayer paid the tax on his own?

The method of fulfilling the obligation to pay tax - independently by the taxpayer or through forced collection by the tax authority - has no legal significance.

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

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

Let’s say a tax audit decision has been made against a taxpayer. And the taxpayer, before the decision came into force, paid the amounts due under the decision and at the same time filed an appeal. In this case, the amounts paid by him can also be considered excessively collected?

Payment of amounts due under a decision made based on the results of consideration of tax audit materials, which has not even entered into force, is considered as a forced collection, and not as a voluntary payment. The taxpayer, having executed the decision, wishes, for example, to eliminate the risks of interim measures applied to him by the tax authority, to receive a certificate of absence of debt, etc.

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

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

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

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

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

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

Excessive payment of tax occurs when the taxpayer, calculating the amount of tax payable to the budget, makes an error in the calculations, for example, due to ignorance of tax legislation.

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

In the example given, the amount of tax is overpaid and is subject to refund in accordance with Article 78 of the Tax Code of the Russian Federation, as a general rule, without interest. This position is reflected in the Resolution of the Presidium of the Supreme Arbitration Court No. 16551/11 of April 24, 2012 in case No. A41-36076/10.

But when the amount overpaid by the taxpayer is offset by the inspectorate against the arrears recorded in the decision based on the results of the tax audit, which is subsequently declared invalid, then the corresponding amount is qualified as excessively collected (Resolution of the Presidium of the Supreme Arbitration Court No. 17231/12 of June 11, 2013).

What is the deadline for filing applications for a credit (refund) of the overcharged tax amount?

The decision to return excessively collected amounts and interest is made by the tax authority based on the taxpayer’s application.

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

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

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

The deadline for filing an appeal will be calculated from the earliest date that confirms that the taxpayer has information about the fact of an overpayment. For example, if first a reconciliation report was received indicating the overpayment, and then a decision of the tax authority to refuse to return the overpayment, then the period for going to court will be calculated from the date of receipt of the reconciliation report.

According to Resolution of the Presidium of the Supreme Arbitration Court No. 12882/08 of February 25, 2009, the issue of determining the moment when the taxpayer learned or should have learned about the fact of excessive payment of tax is decided by considering the totality of all the circumstances relevant in this case.

These may include, in particular, the reasons why the taxpayer overpaid the tax, as well as other circumstances that may be recognized by the court as sufficient to recognize the deadline for tax refund as not missed.

The date from which the period for refund begins may depend on “external” factors such as changes in legislation, judicial practice in favor of the taxpayer.

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

Is it possible to consider the date of receipt of the certificate of settlement status as the moment when the taxpayer learned about the overpayment?

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

What if there is a disagreement regarding the amount of overpayment?

The tax authority, on its own initiative, may propose to conduct a reconciliation. The taxpayer also has the right to initiate reconciliation. Reconciliation of calculations for taxes, fees, penalties and fines is carried out jointly. Based on the results of the reconciliation, the taxpayer receives a joint reconciliation report (subclause 5.1 of clause 1 of Article 21 of the Tax Code of the Russian Federation). However, as a result of reconciliation, discrepancies may be identified and a report may be drawn up with the taxpayer’s signature indicating discrepancies in amounts. This situation requires additional consideration of documents confirming the excessive collection.

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

Can a taxpayer ask for overpayments to be offset against future payments?

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

In what form should a refund application be submitted?

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

From July 1, 2015, individual taxpayers can send to the tax authority an application for the return of the amount of overpaid (collected) tax (fee, penalty, fine) through the taxpayer’s Personal Account, signing it with an enhanced non-qualified electronic signature.

A written statement can be drawn up in any form.

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

Indeed, Appendices 8 and 9 to the Order of the Federal Tax Service of Russia No. ММВ-7-8/ [email protected] dated February 14, 2021 (registered with the Ministry of Justice on March 17, 2017 No. 46000) approved application forms for the return (offset) of the amount of overpaid (collected, subject to reimbursement) tax (levy, insurance premiums, penalties, fines), used by tax authorities when offsetting and returning amounts of overpaid (collected) taxes, fees, insurance premiums, penalties, fines.

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

It should be noted that Order of the Federal Tax Service of Russia No. ММВ-7-8 / [email protected] dated May 23, 2021 approved the recommended formats for submitting an application for the return of the amount of overpaid (collected, subject to reimbursement) tax (fee, insurance premiums, penalties, fines) and an application on the offset of the amount of overpaid (subject to reimbursement) tax (fee, insurance premiums, penalties, fines) in electronic form.

Under what conditions can a tax authority refuse to offset (return) an overcharged amount?

It follows from paragraphs 1, 3 of Article 79 of the Tax Code of the Russian Federation that a decision to carry out an offset (refund) may be refused if:

the application indicates an offset against a tax of another type (taking into account paragraph 1 of Article 12 of the Tax Code of the Russian Federation, an overpayment of federal taxes can only be offset against federal taxes, for regional taxes - against regional taxes, and for local taxes - against local taxes);
the application was submitted to the wrong tax authority (not at the taxpayer’s place of registration);
the application for a refund is submitted if there is an existing arrears of taxes of the corresponding type, arrears of penalties, fines (it should be noted that the tax authority has the opportunity to offset the excessively collected amount towards repayment of the taxpayer’s debt);
the application was submitted to the tax authority after one month from the day when the taxpayer became aware of the fact of excessive tax collection from him or from the date the court decision came into force.

What are the specifics of the procedure for offset (refund) of insurance premiums established by the Tax Code?
The return to the payer of insurance premiums of the amount of excessively collected insurance premiums if he has arrears on the corresponding penalties and fines is made only after this amount is offset against the said debt for the corresponding budget of the state extra-budgetary fund into which this amount was credited.

Refunds of the amount of overpaid (collected) insurance contributions for compulsory pension insurance are not made if, according to the territorial management body of the Pension Fund, information on the amount of overpaid and collected insurance contributions for compulsory pension insurance is presented as part of individual (personalized) accounting information and is taken into account on individual personal accounts of insured persons in accordance with the legislation in the compulsory pension insurance system.

Insurance premiums, which are established by Federal Law No. 212-FZ of July 24, 2009, and insurance premiums, established by the Tax Code of the Russian Federation, are different mandatory payments. Letter of the Ministry of Finance No. 03-02-07/2/11564 dated March 1, 2021 is devoted to the issues of offset (refund) of overpayments, as well as repayment of arrears on insurance premiums established before January 1, 2021, and arrears in payment of penalties (fines).

Will penalties be accrued for arrears of another tax when the amounts of overcharged tax are offset against its repayment?

When an overcharged tax is offset against arrears, on the basis of Article 75 of the Tax Code of the Russian Federation, penalties are accrued on the amount of this arrear until the decision on offset is made.

Here we would like to draw attention to the difference between the procedures for clarifying payment provided for in paragraph 7 of Article 45 of the Tax Code of the Russian Federation and the offset of overpaid (collected) tax against arrears. As a result of the clarification, the tax is actually recognized as paid properly, as a result of which there are no grounds for calculating penalties (letter of the Federal Tax Service of Russia No. ZN-4-22/6853 dated April 11, 2021).

Is it possible to immediately apply to the court for the return of excessively collected amounts?

Excessively paid taxes (penalties, fines) must be distinguished from excessively collected ones. You can apply for a refund (offset) of excessively collected amounts directly to the court, without first filing an application with the inspectorate. This is stated in the resolution of the Presidium of the Supreme Arbitration Court No. 17413/09 of April 20, 2010.

Article 79 of the Tax Code of the Russian Federation does not contain any indication that a taxpayer has the right to file a claim in court, subject to pre-trial appeal to the tax authority. No other federal law has established such a procedure, as follows from paragraph 65 of the Resolution of the Plenum of the Supreme Arbitration Court No. 57 of July 30, 2013.

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

Let’s imagine that the taxpayer paid the amounts accrued in addition to the decision of the tax authority, which was made based on the results of consideration of the tax audit materials. Can a taxpayer apply to the court for the return of these amounts without appealing the said decision?

Maybe. Challenging non-normative acts of tax authorities and claiming excessively collected taxes are independent procedures. This is stated in the Supreme Court ruling No. 304-KG16-3143 dated July 20, 2021.

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

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

Excess amounts collected will be returned with interest. How are such interests calculated?

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

The interest rate is taken equal to the refinancing rate (key rate) of the Central Bank in force on those days. To determine the rate applicable per calendar day, divide the rate by the number of days in a year.

According to the letter of the Federal Tax Service of Russia No. ND-4-8 / [email protected] dated February 8, 2013, to calculate interest, it is necessary to take the number of days in a year equal to 360.

Currently, it is advisable to use the actual number of days in the calendar year (365 or 366 if the year is a leap year) when calculating the amount of interest. It is this indicator that is reflected in the Resolution of the Presidium of the Supreme Arbitration Court No. 11372/13 of January 21, 2014.

Given that the case considered concerned interest accrued in accordance with Article 176 of the Tax Code of the Russian Federation for late return of refundable VAT, the conclusions of the said resolution also apply to Articles 78 and 79 of the Tax Code of the Russian Federation and are used in judicial practice as a universal approach.

Is interest accrued on the amount of over-collected tax on the day on which it is returned to the taxpayer?

Interest is subject to accrual for the entire period of use of the taxpayer's funds by the budget. The calculation of this period begins on the day following the day of withdrawal of funds, and ends on the day of the actual return of funds to the taxpayer’s bank account.

This is stated in paragraph 36 of the resolution of the Plenum of the Supreme Arbitration Court No. 57 of July 30, 2013. Since on this day both the return of funds occurs and their illegal withholding by the tax authority continues (Resolution of the Presidium of the Supreme Arbitration Court No. 11675/13 of December 24, 2013 in case No. A40-62495/12-115-422).

Thus, the period of delay begins from the day following the day of collection and ends with the day of return, inclusive.

If the interest is not paid to the taxpayer in full, the tax authority must independently make a decision on the return of the remaining amount of interest, calculated based on the date of actual return to the taxpayer of the amounts of excess tax collected.

The Tax Code of the Russian Federation provides for a deadline for making such a decision - within three days from the date the tax authority receives a notification from the territorial body of the Federal Treasury about the date of return and the amount of funds returned to the taxpayer. Within the same three-day period, the order for the return of interest is sent for execution to the Federal Treasury.

Does the tax authority’s refusal to refund due to missing the deadline for contacting the tax authority mean grounds for stopping the accrual of interest?

No. The deadline for contacting the tax authority is not preemptive, that is, it does not entail the loss of the taxpayer’s right to a refund of the amount of overcharged tax. The taxpayer has the right to apply for a refund to the court.

Let's assume that the tax authority offset the overcharged amounts to pay off the arrears on the corresponding taxes. Will interest be charged in this case?

They will. The tax authority's obligation to refund the amount of overcharged tax involves the accrual of interest when using any method of restoring the taxpayer's property status, including offset (letter of the Federal Tax Service No. SA-4-7/15431 dated September 21, 2011).

Is interest returned from the budget subject to tax for the recipient?

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

Therefore, income tax is not paid on the amount of interest received from the budget under Article 79 of the Tax Code of the Russian Federation. For the same reasons, taxpayers using the simplified tax system do not pay tax.

Chapter 23 of the Tax Code of the Russian Federation does not contain a norm similar to that in subparagraph 12 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. However, in accordance with Letter of the Ministry of Finance No. 03-04-07/33140 dated June 8, 2015, interest amounts received by individuals in accordance with Articles 78 and 79 of the Tax Code of the Russian Federation should not be taken into account when determining the tax base for personal income tax.

This letter simultaneously presents two different grounds for tax exemption: the lack of economic benefit for an individual when receiving interest and the compensatory nature of interest, that is, reimbursement of costs associated with excessive tax withholding.

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From what point does interest accrue for late repayment of overpayments?

In April 2021, the company applied to the Pension Fund for a refund of the overpayment of contributions, but did not receive a response to its application.
The court ordered officials to return the money to the company, which they did in January 2021.

The company demanded to collect interest from the offenders for the time that passed from the month following the application to the fund until the transfer was made. Officials countered that since there was no decision to refuse the return, interest should be accrued from the entry into force of the court verdict.

Three authorities, including the district cassation, recognized the company’s calculation as justified. Themis indicated that relations with insurance premiums for periods before 01/01/2017 are regulated by Federal Law No. 212-FZ dated 07/24/2009. According to its provisions, the overpayment is refunded within one month from the date of receipt of the policyholder’s application, and if this period is violated, interest is charged. Therefore, the date of the judgment in this matter is not relevant.

Resolution of the Arbitration Court of the Volga District dated August 28, 2019 No. F06-51354/2019

Editor's note:

From 01/01/2017, the administration of insurance premiums is carried out in accordance with the norms of the Tax Code of the Russian Federation.
Article 78 of the code contains provisions similar to those applied by the judges in the decision under review. According to paragraph 1.1 of this article, they also apply to the return of overpayments on insurance premiums. Unlock access to the private part of Clerk with a Premium subscription. Get hundreds of webinars and online courses, unlimited consultations and other proprietary content for accountants.

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The principle of tax deduction

This privilege is not available to every person: it can only be used by an individual recognized as a tax resident of the Russian Federation. A citizen must have an officially registered salary.

Who is not eligible to apply for benefits:

unemployed persons of retirement age;
parents on maternity leave.

Only those citizens who have official income can receive a tax deduction

Please note that this tax benefit cannot also be used by people who are registered with the employment service and receive the corresponding allowance.

When is it necessary to visit the institutions responsible for this problem? If you find yourself in the following situations:

bought medicines;
paid for medicine or education;
made contributions to charity;
purchased or sold real estate;
transferred money to the Pension Fund or via VHI.

Note ! Only the tax that actually went to the budget can be refunded. Consequently, a citizen paying taxes cannot request more money than he actually paid to the state.

You can get a tax deduction for various expenses

Types of such deductions:

social plan deduction: Article 219 of the Tax Code of the Russian Federation. This can include a tax deduction for treatment, training, and so on;
standard plan deduction: Article 218;
investment plan deduction: Article 219.1;
property plan deduction: Article 220. This may include a tax deduction for housing: an apartment, a house, a plot of land, mortgage interest payments and a loan for housing construction.