Statute of limitations on taxes of individuals: clarifications to taxpayers
The legislation imposes on entrepreneurs, legal entities, citizens the obligation to pay taxes. These payments go to budgets of different levels. The funds are then directed to the maintenance of the administrative apparatus, the army, the maintenance of the poor categories of citizens, the development of projects, and so on. Taxes, therefore, represent the main source of budgetary income. Control over the completeness and timeliness of deductions is carried out by authorized state bodies. As a rule, they do not remind you of the need to make a payment; in most cases, obligated entities must do this on their own. If the entity does not make the deductions on time, tax arrears will be generated.
Statute of limitations
As a legal concept, this category is used in procedural codes. The Code of Civil Procedure and the Code of Criminal Procedure, in particular, set the periods during which a subject can either submit an application with requirements, or appeal against one or another decision. Do taxes have a statute of limitations? In practice, a demand from the supervisory authority may go to the court several years after the entity has failed to fulfill the obligation. In addition to the deduction amount itself, the FTS may impose a fine.
Statute of limitations for taxes of individuals
First of all, it should be noted that there are no general rules or a single provision for obliged entities, under which they would be exempted from the need to make a budget deduction in case of missing the periods established by law. Nevertheless, the legislation defines a number of cases when the control body is limited in its actions by a time frame. What is the statute of limitations for tax in the Tax Code? The legislation defines two categories of deductions, the forced withholding of which is limited in time. So, there is a limitation period for transport tax. It is provided for in Part 3 of Art. 363 NK. Property tax is the second payment, the enforced withholding of which is also limited in time. In relation to this payment, Federal Law No. 2003-1 is in force.
Part 3 of Art. 363 NC
In accordance with the provisions of the article, the recovery period is 3 years. The employees of the control body, if the subject has an outstanding obligation, have the right to apply to the court. They can do this in three years and one day. However, in this case, the court is obliged to refuse the application. The basis is the expiration of the statute of limitations.
FZ No. 2003-1
Property tax can also be compulsory withheld not later than three years from the date of formation of the outstanding obligation. This rule is established by Art. 10 of the said law. In this case, the following procedure applies. If the subject has not been involved in the compulsory repayment of the obligation within 5-10 years, then the supervisory authorities can withhold the amount of the deduction only for the last three years. In general, the procedure for collecting funds is limited by the general limitation period. For taxes, in some cases, you should refer to the explanations of the Ministry of Finance.
Penalty
Many payers are interested not only in the statute of limitations for individual taxes. For them, the problem of forced withholding of penalties and arrears is quite urgent. In the Tax Code itself, there are no provisions that provide for certain time frames for the collection of such amounts or fines imputed by the Federal Tax Service. However, in practice, the courts often apply the norms of the Civil Code, and also adhere to the explanations given by the Supreme Arbitration Court.
Individual entrepreneurs
In the framework of law enforcement practice, when resolving issues of compliance or non-compliance with time limits, the statute of limitations for individual taxes (PBUL) and the periods determined for a possible audit during field inspections are considered, among other things. In addition, the periods established for bringing the subject to responsibility for violations of the Tax Code are taken into account. All these time restrictions fit into the above-mentioned limitation period for taxes of individuals - 3 years.
An important point
As it was said above, the court can deny their demand to the control authorities. However, this is only possible if the entity sends a petition indicating that the statute of limitations for the payment of taxes has already passed. If this is not stated, the court has the right to consider and even satisfy the requirements of the Federal Tax Service. Of course, a person can appeal against a decision. In this case, the provisions of the Code of Civil Procedure will apply.
Pre-emptive periods
The Tax Code does not establish any rules regarding other types of mandatory contributions. There is no general procedure according to which taxes could be written off for one period or another. In case of violation of rights, the control body applies to the court for their restoration. The authorized body is guided by the provisions of the law and the concepts of time limits.
And if the Tax Code establishes a limitation period for at least two taxes, then the Code of Civil Procedure does not provide for such provisions specifically for this type of requirement. How do the courts operate in this case? Let's say the FTS makes a requirement to forcibly withhold the land tax from the subject. There is no statute of limitations here. However, there is a pre-emptive period. It differs from the statute of limitations in that it begins not from the moment the obligation to make a deduction appears, but from the date the demand for payment of the imputed amount is sent. For legal entities, this period has a duration of 2 years, for citizens - 6 months.
NK contradictions
The notion of a limitation period for collection is very confused by the legislator. However, there are explanations that are made in favor of the payers. The concept of a limitation period itself has been introduced into law enforcement practice a long time ago. If a certain period is missed, the creditor (including the state) loses the ability to forcibly withhold this or that amount. The legislation sets a limitation period for cases of tax offenses. Arrears should be attributed to them, among other things. Such a period is provided for in Art. 113 NK. It says that a subject cannot be held liable for a tax offense if 3 years have passed since the date of its commission or from the day following the end of the reporting (tax) period during which it took place. The general time frame set by the Civil Code is also three years. At first glance, everything is clear. However, everything in the legislation is not so transparent in reality.
There is, in particular, Article 48 of the Tax Code. It states that an application to the court for the requirement to forcibly withhold the outstanding amount of the obligatory payment to the budget at the expense of the property of the payer - a citizen or his tax agent - may not be submitted by a control body (FTS or the customs service) later than six months after the end of the period of performance of the obligation provided for in the law. Thus, it can be concluded that Art. 48 Tax Code acts in favor of the subject. Within the meaning of the norm, the three-year period is reduced to 6 months. But in the Tax Code there is Art. 70. In accordance with it, a claim for payment of tax, which is presented to a person by decision of the control body after the inspection, must be sent to the subject within ten days from the date of the decision. This provision can be interpreted as an unreasonable increase in the duration of the period almost indefinitely.
This is due to the provisions of Art. 89 NC. In accordance with it, an on-site inspection, which is carried out by the higher division of the Federal Tax Service, as part of the control of the activities of the lower structural unit that carried out the initial supervision procedure, can be carried out regardless of the time of the previous (initial) one. Accordingly, the decision can be made at any time. And the actual calculation of the statute of limitations already depends on the date of its issuance. At the same time, Art. 24, which was canceled due to the appearance of the "more progressive" part of the NK. It clearly indicated the length of the statute of limitations for claims against individuals for compulsory withholding of taxes from them. She was 3 years old. 
Explanations of YOU
The Presidium of the Court, in its judgment No. 3803/01, actually confirmed the existence of the right of the tax service to withhold income tax arrears outside the limits established in Art. 113 three-year term. This document was issued in a specific case. It, in particular, states that, in accordance with the act of inspection of the Federal Tax Service, a decision was made to charge the subject with additional income tax, to impose fines and penalties. The cassation court, canceling the rulings of the first and the appeal instances, pointed out that the application of the privileges by an individual entrepreneur was unreasonable. In accordance with this, the requirements were satisfied both in terms of withholding the arrears and the imputed fine for its admission. But when making a decision, the cassation court did not take into account that the tax inspectorate missed the statute of limitations, within which the payer could be held liable.
According to Art. 113 of the Tax Code, a subject cannot be punished for an offense if three years have passed. Thus, the SAC in its ruling recognizes that the limitation period applies only to a fine, and does not apply to arrears. About a year after the adoption of this act, the Court expressed a slightly different opinion on the matter. At the present time, therefore, the limitation period for arrears is 9 months. + time of execution of the request. The calculation of this period begins from the date determined for the deduction of the mandatory payment by law.
Information letter from the Presidium of the Supreme Arbitration Court
This document explains one of the cases of judicial practice. The tax service appealed to the arbitration court with a claim to forcibly withhold from an individual entrepreneur the arrears on UTII for March 1999, as well as penalties arising from the delay in repayment of this obligation. The request of the control body was denied. The court motivated the decision by the fact that the pre-emptive period specified in paragraph 3 of Art. 48 of the Tax Code, within which it is allowed to file a claim. At the same time, the authority indicated that the established in Art. 70 Tax Code, the three-month period for sending a claim on the need to repay the obligation to the budget ended on 05/30/1999.The amount itself should have been deducted no later than 02/28/1999.The claim was actually sent to the payer a year later - 05/05/2000. it was installed on 05/15/2000.
In accordance with paragraph 3 of Art. 48 of the Tax Code, the six-month period provided for the application by the control body to the court with an application for compulsory collection of arrears, which is preventive, begins from the end date of the time period established for the fulfillment of the budgetary obligation. The failure by the tax service of the period in which it could send a claim for payment of the amount imputed to the payer under the law does not imply a change in the rules for calculating the above period. In this regard, the period for the control body to apply to the court begins on 10.06.1999, that is, after 10 days from the end date provided for in Art. 70 NK period. Due to the fact that the statement of claim was filed 09/27/2000, that is, outside the pre-emptive period established in paragraph 3 of Art. 48 NK, it is not subject to satisfaction.
Fulfillment of the obligation to the budget
The legislation stipulates that persons recognized as taxpayers must make the deductions provided for in the Tax Code. Obligations to the budget will be deemed fulfilled from the moment an order is submitted to the bank to perform the corresponding operation if there is a sufficient amount of funds on the account of the entity. If the person has outstanding payments and does not have sufficient funds to meet the claims, the tax will be deemed unpaid. Obligations will also be considered outstanding if the order is withdrawn from the bank. If the payment is to be made by a tax agent, then the legal requirement is recognized as fulfilled from the moment he withholds a specified amount from income. Failure to fulfill the obligation to the budget acts as the basis for the application of compulsory measures to collect arrears.
Actions of control bodies
Enforced collection is carried out in accordance with the decision of the Federal Tax Service. The procedure involves sending a collection order to a bank organization to write off funds from the payer's or agent's account. This order must be executed no later than 1 business day following the date of its receipt (for ruble bank accounts). In the absence or insufficient amount of funds on the payer's account, the fulfillment of the FTS requirement is carried out as the money is received. If the control body does not have information about the account of the subject, it has the right to collect the amount at the expense of the property of the obliged person. Forced collection of arrears is carried out by the decision of the head of the department of the Federal Tax Service. Within a three-day period from the date of its issuance, the order is sent to the bailiff. The period of its execution is 2 months. The requirements are met consistently with respect to:
- Cash.
- Property not involved in the production of goods.
- Finished products.
- Materials and raw materials used directly in production, machines, buildings, equipment, structures, etc.
- Property that is transferred in accordance with the contract for the disposal, use, possession of other persons without obtaining ownership rights by them.
- Other material assets.
