Pre-trial appeal of non-normative acts of tax authorities, actions and inactions of their officials of the Federal Tax Service of Russia

What forms of violations can be appealed?

You can make such a complaint in different situations, for example:

• incorrect assessment of taxes, errors in the amount or illegality of actions in this matter in general;
• imposing various fines without the right to do so;
• delay in tax deduction for more than four months (or more than one, legal disputes are still ongoing in this regard);
• incorrect final results of the tax inspectorate or their absence at all.

You can submit a document at any time. This applies both to the time after the inspection and before it formally begins. You can also submit it altogether in the absence of inspections on your own initiative. For example, when funds due for payment by law are delayed.

Tip #3: Make sure you have all your tax audit materials

According to Art. 199 of the Arbitration Procedure Code of the Russian Federation, the documents specified in Article 126 of the Arbitration Procedure Code, as well as the text of the contested act or decision .
As a rule, both the taxpayer-applicant and the interested party—the tax authority—submit the contested decision to the case file. The parties also attach an inspection report on the basis of which the decision was made, despite the fact that the report is not named in the article as a mandatory document. At the same time, case No. A20-3019/2015 became instructive for taxpayers. The court of first instance ruled in favor of the taxpayer, citing in the decision the audit report, which was not in the case file. 16 The Arbitration Court of Appeal left the decision of the first instance unchanged. But by the Resolution of the AS North Caucasus of March 29, 2017, the decisions of the first and second instances were completely canceled, and the case was sent for a new trial.

The cassation court, canceling the judicial acts, indicated one single reason for Fr.

The cassation court indicated that during a new consideration, the court must request the on-site tax audit report to be included in the case materials and re-establish all the factual circumstances of the case.

Thus, the decision made in favor of the taxpayer was canceled due to the absence of a tax audit report. To avoid getting into such a situation, the taxpayer must ensure that all procedural documents for verification are available in the case file in court. Excessive precautions have never harmed taxpayers.

What should be in the document

The complaint can be drawn up in free form, but all the requirements and nuances listed in Federal Law No. 59-FZ of May 2, 2006 must be taken into account. There are quite a lot of them. If the document is drawn up independently, then there is a possibility of missing one or more mandatory nuances.

Thus, in order to ensure that no data is missed and the complaint is accepted, it is better to use a ready-made application form. This is what the lion's share of those who address this issue do.

Tip #1: Prepare your arguments

Form a clear legal position, support it with positive judicial practice and scientific doctrine.
To develop a system of arguments for a case, it is first necessary to turn to legal acts. In a tax dispute, the Tax Code of the Russian Federation occupies the first place among legislative acts, so it is necessary to refer to it first of all. Next, select the rules of law in your favor from other federal laws. The standards that should be followed in resolving a case will depend on the specific circumstances of your case. Most often these are the Civil Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Labor Code of the Russian Federation, the Arbitration Procedural Code of the Russian Federation (APC RF), the Land Code of the Russian Federation (ZK RF), Federal Laws “On State Registration of Legal Entities and Individual Entrepreneurs” No. 129-FZ, “On Companies with limited liability" No. 14-FZ, "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" No. 44-FZ, "On the use of cash register systems when making cash payments and (or) payments using electronic means payment" No. 54-FZ and many others. Despite the fact that, according to the Arbitration Procedure Code of the Russian Federation, the court makes a decision by assessing the evidence according to its internal conviction, based on a comprehensive, complete, objective and direct study of the case materials, the judges take into account the judicial practice that has developed in your situation. Therefore, we recommend that you always analyze banks of court decisions in search of positive solutions for the taxpayer.

Links to judicial acts of the Constitutional Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation will only strengthen your position and increase your chances of winning. If there are none, you can use the explanations of the Ministry of Finance of the Russian Federation or the Federal Tax Service.

To effectively protect your rights, it is also important to know the opposite practice in order to be prepared to present counter-arguments in court.

In disputes on tax law issues, you can also refer to the opinions of authoritative judges: the Constitutional Court, the Supreme Court, famous legal scholars, expressed by them in monographs, comments, articles in the specialized press, interviews in the media.

In whose name should it be written?

The document is addressed to a specific official who is at the head of the Federal Tax Service, the Subject Directorate or the Federal Tax Service. The complainant can decide which level to choose for his or her purposes. This is clearly stated in Article 138 of the Tax Code of Russia. It is also permissible to draw up a complaint and send it to all three levels of the tax office.

If the reason for the application is an incorrect collection on the account or the return of any debt, then you will have to go straight to the administrative court. Complaints of this type are not considered by the Federal Tax Service, but are sent there.

If there was a blatant abuse of power or deliberate actions of the tax inspector, which led to disastrous consequences (including malicious violations), then the appeal should be written immediately to the prosecutor's office. For these cases, it would be inappropriate to communicate with the authorities of the Federal Tax Service.

How to serve

The subjects of the complaint, which are indicated above, are appealed to a higher tax authority (VNO). The relevant materials get there through the body that made or carried out the contested decision (action). Consequently, a complaint to the tax inspectorate against the organization is submitted to the body that violates the rights of the taxpayer. There are three ways to do this:

1. Through the taxpayer’s personal account on the Federal Tax Service resource.
2. Russian Post.
3. By contacting the relevant territorial division of the Federal Tax Service in person or through a representative.

The violating authority transfers the claim plus all materials attached to it to a higher organization. Three days are given for this from the time of its receipt.

From the moment the injured person learns about the violation of his rights, he has a year to submit the necessary documents. A similar time (from the date of the controversial decision) is available for protesting decisions on liability for tax offenses that have entered into force, if they have not been challenged through an appeal. The appeal is described in a special article. It is used when arguing with a decision on liability for an offense or a refusal to do so that has not entered into force, which the fiscal authorities made in accordance with Art. 101 NK. An appeal to the Federal Tax Service occurs within three months from the date of resolution of complaints (including appeals) by a higher authority. If the time for appeal is missed for a valid reason, it is possible to restore it by filing a proper petition.

In what form is it served?

A complaint can be filed:

• in person, during face-to-face communication;
• via fax;
• by mail or delivery service.

If the paper is printed, filled out in paper form and handed over personally to the recipient, then the receiving party is obliged to give you written confirmation that this document has been received by them, with the seal and signature of the Federal Tax Service.

This rule is very important, since when applying to a court, such information will be valid and will allow you to prove the fact that the complaint was transferred to the employee.

There is also an electronic form for submitting this document. To do this, you need to register on the Federal Tax Service website, enter your data, and fill out the appropriate fields in the drop-down form. Then the official is obliged to promptly consider the complaint and provide a response regarding the incident.

Anonymous complaint to the tax office

Sometimes a taxpayer needs to file a complaint without providing personal information. For example, employees of an enterprise need to complain about an employer breaking the law, or citizens want to report neighbors who rent out housing without paying taxes.

In fact, the legislation does not in any way regulate the procedure for filing anonymous claims, nor does it prohibit anonymous claims. However, to send an application to the tax office through the official Internet portal www.nalog.ru, you must provide your personal data. To complain anonymously, you can write a letter to the Federal Tax Service or use the helpline , the number of which depends on the taxpayer’s region.

Attention! If you need confidence that the issue will be resolved quickly, you should not submit an anonymous complaint to the Federal Tax Service - indicate your personal data.

Components of a complaint

In the upper right corner two main points are indicated:

• Contact details and exact name of the receiving authority, including location. Federal Tax Service, Inspectorate of the Federal Tax Service or the Administration of the subject.
• The name of the person or organization that filed the complaint. This could be an individual entrepreneur, an organization or an individual. If desired, it is possible to indicate the address, contact phone number, fax and other information.

After the contacts, in the middle of the sheet, is the name of the document itself, “Complaint against.” The text that follows should explain the situation briefly and clearly.

How to prepare a complaint - sample

The form for appealing a decision (appeal) must contain:

1. Full name and registered address of the person on whose behalf the complaint is being filed. In the case of organizations - the name and address of the main office.
2. The object being appealed (decision of the Federal Tax Service).
3. The name of the body that made the decision in question.
4. The basis on which the applicant determined that his rights were violated.
5. A demand made by a person.
6. The preferred method of notification of a decision on this issue is a written or electronic response. The latter is provided by the Federal Tax Service website.

In cases where the complaint is filed by an official representative, a power of attorney must be attached. It is also allowed to attach additional documents if they support the stated argument.

A power of attorney must be attached to the complaint if it is submitted by a representative. The document must be issued in accordance with the procedure established by the Civil Code. Any other documents that would confirm the arguments set out in it may also be attached. The application form must have the signature of the person submitting it. In the version with a representative - his signature.

Letter from the Ministry of Finance dated July 15, 2021 under number No. 03-02-08/52361 states the following:

The missing signature of the person submitting the appeal or the citizen representing him, as well as the failure to provide documentation confirming his authority, entail the possibility of refusal to consider the complaint by a higher tax authority.

This approach is confirmed by judicial practice. For example, the resolution of the Arbitration Court dated May 21, 2021 in case No. A60-47393/2018 expresses a lawful decision of the tax authority to refuse consideration due to the fact that a power of attorney on the powers of the representing person is not attached to the materials. The court rejected the organization's arguments about the tax service having a power of attorney, which had been granted earlier.

It was also pointed out the effect of Article 139.2 of the Tax Code, which prescribes the need to provide confirmation of the authority of representatives when filing a complaint.

Otherwise, the authority undergoing review is not obliged to seek this document from taxpayers.

Photo of a sample complaint about the inaction of the tax service

Recommendations for filling out the descriptive part

You can describe either any actions of employees or the inaction of the tax authority as a whole. For example, there are often situations when an application for a tax deduction was submitted in accordance with all the rules, but funds were not credited to the account. This is exactly the case when a complaint is required. It is also advisable to mention when contacting:

• number and date of the act or other document, the appeal of which is being discussed;
• arguments in your defense;
• references to relevant laws;
• papers with legal force that confirm the described circumstances.

The most important requirement is to avoid subjectivity and unfoundedness.

The form contains two parts of the document. One describes the current situation, the second suggests a way out of it. Moreover, the information is supplied in the form of a request. It can be formulated as:

• find a solution;
• cancel any decision made;
• accrue funds;
• change part of the accepted document;
• make a new decision on the appealed case, etc.

The paper is completed with a list of attachments (copies of them must accompany the complaint), a signature with a transcript and the date of filing.

How they view

The superior organization has a month to resolve protests from the moment they are received if they relate to decisions of tax authorities on liability for an offense or refusal to do so. If necessary, the period is extended (maximum by 30 days). For other protests, a similar period is 15 days, which will be extended in the same way. If there is no response to the claim within the specified periods, it will be appealed in court. Let us recall that in Art. 139.3 of the Tax Code there are cases when a protest is not considered.

When an act or action is appealed to a higher authority, it is suspended (until a decision is made on the claim only on the relevant application). Moreover, such a suspension is possible when an effective prosecution for a tax violation or refusal to do so is being challenged. The application is submitted together with a petition and a bank guarantee, which must comply with clause 5 of Art. 74.1 of the Tax Code and other conditions from clause 5 of Art. 138 NK. According to it, the bank undertakes to repay the obligatory payment under the controversial decision.