Magnetic methods for the study of building materials. Methods for the study of building materials

Tax legislation, due to its importance for the state as a whole, has always been the subject of close attention all strata of society. Currently, more and more attention is paid to the resolution conflict situations arising from the implementation of tax law. Most promising direction The solution to this issue is the development of a pre-trial procedure for resolving tax disputes, which currently needs significant adjustment.

Thus, the following problems of the pre-trial procedure for the settlement of tax disputes in the practice of the Federal Tax Service Inspectorate of the Kalininsky District are distinguished:

1. The absence of real guarantees of measures to prevent and suppress violations of the rights of taxpayers.

2. Lack of legislatively fixed procedural powers of the taxpayer.

3. Lack of separation of arbitral and accusatory functions in the production and issuance final decision <2>.

Problems of resolving tax disputes:

1. Inefficiency of pre-trial procedures.

2. Appeal against decisions of judicial authorities in the absence of prospects for resolving a tax dispute in favor of the tax authority.

3. Accrual of arrears at random.

4. Psychological pressure on the judges.

5. Delaying lawsuits.

6. The performance by the courts of functions that are not characteristic of them.

7. Use of non-legal arguments.

8. Implementation of illegal decisions by force.

9. Non-execution of judicial acts by tax authorities.

10. Leaving the actions of the tax authorities without evaluation.

11. Misunderstanding of market specifics.

12. Difficulties in obtaining interim measures<3>.

An analysis of the pre-trial procedure for resolving tax disputes, provided for by the Tax Code of the Russian Federation, allows us to talk about the need to make significant changes to tax legislation in order to increase the efficiency of out-of-court settlement of tax disputes.

1. Creation of special mechanisms used in the pre-trial settlement of tax disputes

Until January 1, 2009, the taxpayer has the right to appeal against acts, as well as actions (inaction) of tax authorities and their officials both to a higher tax authority and to the court (after the specified date, going to court will be possible only if the pre-trial procedure for the settlement of tax disputes is observed). However, as practice shows, in most cases taxpayers prefer judicial resolution of tax disputes.

The simple introduction of mandatory pre-trial settlement of tax disputes is not a solution to the problem. The fact that the taxpayer, before going to court to protect his rights, will be forced to apply to the tax authority in the order of pre-trial settlement of a tax dispute, will not increase the effectiveness of pre-trial settlement of tax disputes. It will be possible to speak about the effectiveness of the pre-trial procedure for tax disputes when the taxpayer himself seeks to consider the tax dispute in the pre-trial procedure, and the number of appeals to the judicial authorities (or, at least, the number of court decisions in favor of the taxpayers) will be significantly reduced.

It is possible to increase the efficiency of pre-trial settlement of tax disputes only by introducing new special tools used in the pre-trial settlement of tax disputes. Moreover, such tools that can be used only in the pre-trial settlement of tax disputes and cannot be used in the course of judicial resolution of tax disputes.

One of the mechanisms for pre-trial settlement of tax disputes may be the empowerment of the tax authority with special powers regarding the amounts to be recovered from the taxpayer. It's about about the institution called in criminal procedural law "deal with justice". Currently, the tax authority is deprived of any powers, using which the tax authority could "forgive" the taxpayer for certain violations and (or) amounts to be recovered.

Of course, the introduction of such a mechanism requires detailed study, since it provides the tax authority with opportunities for wide discretion, abuse of the right, and also creates fertile ground for corruption.

As a tool to prevent abuse when using this mechanism, we can propose the introduction of the following restrictions:

1. The use of a "deal" between a taxpayer and a tax authority is possible only in disputable situations. The disputability of the situation is determined by the presence of opposite decisions of the courts (in similar cases considered earlier). At present, an example of a disputable situation can be relationships with "non-existent" counterparties, i.e. organizations that were registered in violation of applicable law (for lost passports or for a fee), as well as organizations that do not submit tax returns. Analysis judicial practice allows us to say that the courts make decisions both in favor of the tax authorities and in favor of taxpayers<4>. However, the tax authorities, regardless of establishing the fact of abuse on the part of the taxpayer (i.e., the fact that the taxpayer received an unjustified tax benefit), include episodes of relationships with these persons in decisions made based on the results of tax audits.

2. Determination of cases of disputable situation by a special subject that is not a party to the dispute.

We are talking about a special entity to which, in our opinion, the functions of pre-trial resolution of tax disputes should be transferred. That is, the question of the "controversial situation" should be resolved independent person- a person who is not a party to a tax dispute.

Another additional mechanism used at the stage of pre-trial settlement of a tax dispute may be a change in the deadline for paying taxes and fees, as well as fines, provided for in Ch. 9 of the Tax Code of the Russian Federation (hereinafter referred to as the change in the tax payment deadline). At present, the use of this mechanism in the pre-trial consideration of a tax dispute is impossible due to a direct indication in the law. According to paragraphs. 2 p. 1 art. 62 of the Tax Code of the Russian Federation, the tax payment deadline cannot be changed if a person claiming such a change is being prosecuted in a case of a tax offense or in a case of an administrative offense in the field of taxes and fees, customs affairs in terms of taxes payable in connection with with the movement of goods across the customs border Russian Federation.

However, the use of the mechanism for changing the deadline for tax payment in the pre-trial settlement of a tax dispute will not only increase the interest of the controlled entity, but also reduce the number of tax disputes submitted to the court.

However, it should be noted that for this mechanism to be truly effective, it is necessary that the taxpayer does not have the opportunity to abuse it. To do this, it is necessary to introduce a restriction on the taxpayer's appeal to the court when using the "deal". We are not talking about limiting the taxpayer's right to judicial protection. The taxpayer is faced with a choice: either the taxpayer makes a "deal" with the tax authority and voluntarily does not exercise his right to judicial protection; or the taxpayer uses his right to judicial protection, but in this case, all "agreements" with the tax authority lose their force, and the court considers all violations revealed in the course of tax control measures.

2. Creation of a special entity that considers disputes in pre-trial order

The issue of the need to create a special entity authorized to consider tax disputes in pre-trial order is discussed in scientific literature. AT different time various authors drew attention to the need to separate the arbitral and accusatory functions in the production and making a final decision in relation to the taxpayer

It should be recognized that the existing procedure, when the final decision is made by the same body that revealed violations (albeit a higher one), cannot be considered as conducive to objectivity in resolving disagreements that have arisen. Evaluation of the effectiveness of the activities of the tax authority is carried out depending on how much taxes, fines and penalties were additionally assessed by employees of the tax authorities. It seems that in such a situation there are no incentives for the tax authority to "spoil" its own performance indicators, agreeing with the position of the taxpayer and reducing the amount of taxes, fines and penalties to be collected.

In this regard, in our opinion, it is advisable to transfer the authority to consider and make a final decision on the results of tax control measures to a special body that is not organizationally subordinate to the tax authorities.

It should be noted that attempts are currently being made to create an independent entity that considers tax disputes in pre-trial order.

Thus, divisions of tax audit were created in the structure of territorial tax authorities. They are designed to perform the following functions.

In the departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation:

Handling complaints from individuals and legal entities on acts of lower tax authorities, actions (inaction) of their officials in connection with the exercise by tax authorities of the powers established federal laws, normative legal acts of the President of the Russian Federation or the Government of the Russian Federation, based on the results of consideration of which a decision is made;

Consideration of objections (disagreements) of taxpayers (tax agents, payers of fees) on acts of repeated on-site tax audits appointed and conducted by the department of the Federal Tax Service of Russia for a constituent entity of the Russian Federation, based on the results of consideration of which a expert opinion on the validity (unfoundedness) of the taxpayer's arguments.

In the interregional inspections of the Federal Tax Service of Russia for the largest taxpayers:

Preparation, at the request of the Federal Tax Service of Russia, of conclusions on complaints;

Consideration of objections (disagreements) of taxpayers (tax agents, payers of fees) on the acts of on-site tax audits appointed and conducted by the interregional inspection of the Federal Tax Service of Russia for the largest taxpayers, based on the results of the consideration of which an expert opinion is prepared on the validity (unreasonability) of the taxpayer's arguments.

In the inspections of the Federal Tax Service of Russia for districts, districts in cities, cities without district division, inspections of the Federal Tax Service of Russia at the interdistrict level:

Preparation, at the request of the Department of the Federal Tax Service of Russia for the constituent entity of the Russian Federation, of conclusions on complaints;

Consideration of objections (disagreements) of taxpayers (tax agents, payers of fees) on the acts of on-site tax audits appointed and conducted by this inspection of the Federal Tax Service of Russia, based on the results of the consideration of which an expert opinion is prepared on the validity (unreasonability) of the taxpayer's arguments<6>.

<Более того, Распоряжением Федеральной налоговой службы от 1 сентября 2006 г. N 130 была принята Концепция развития налогового аудита в системе налоговых органов Российской Федерации <7>. This document states that the purpose of creating tax audit units in the system of tax authorities is to improve administrative procedures for the consideration of tax disputes, to establish the principles of legality in the law enforcement activities of tax authorities.

Indicators for evaluating the effectiveness of the functioning of tax audit units are also established. These include, in particular:

1. The number of appeals to the arbitration court after negative consideration (dissatisfaction, partial dissatisfaction) of complaints in the administrative procedure.

2. The number of appeals to the arbitration court to appeal against acts of a non-normative nature of tax authorities related to the application of the legislation of the Russian Federation on taxes and fees, or other acts of the legislation of the Russian Federation, control over the execution of which is entrusted to the tax authorities, bypassing the administrative appeal procedure.

3. The number of eliminated violations of the application of legislation, control over compliance with which is entrusted to the tax authorities, based on the results of an intradepartmental tax audit.

An analysis of the above functions of the internal audit service allows us to conclude that work is currently underway to improve objectivity in making a decision based on the results of consideration of complaints (disagreements) of the taxpayer.

However, the measures taken cannot be regarded as aimed at creating a special (independent) subject of pre-trial settlement of a tax dispute for the following reasons:

1. The Internal Audit Service is not a subject that considers tax disputes in pre-trial order. The specified division only prepares its opinion on the complaint (disagreement) of the taxpayer, which (conclusion) is further taken into account by the head (deputy head) of the tax authority. Moreover, it (the service) is not at all an independent subject of pre-trial settlement of a tax dispute, since it is only a structural subdivision of the tax authority.

2. Coordination of the work of tax audit units in terms of work on handling complaints is carried out by the heads of tax authorities<8>. That is, there is no sign of independence, the need for which was mentioned earlier. In our opinion, without the withdrawal from the organizational subordination of the tax authority, the subject of pre-trial settlement will not have independence (objectivity) in making a decision based on the results of the consideration of a tax dispute.

3. The activity of the internal audit service (even in the form in which it currently exists) is not regulated at the legislative level. While in the course of their activities, internal audit specialists enter into relationships with taxpayers (in particular, at a meeting of the commission considering tax audit materials). Currently, there is no full-fledged regulatory legal act establishing the legal status of the internal audit service. Those acts that exist were adopted at the sub-legislative level, were not published and regulate the activities of this service in fits and starts.

The issue of creating a special subject of pre-trial settlement of tax disputes requires a fundamental solution, namely the creation of an independent (independent) body, which will be entrusted with the function of pre-trial settlement of a tax dispute.

It seems that the new subject of pre-trial settlement of tax disputes must meet two basic requirements.

Firstly, a special body should not be organizationally subordinate to the tax authorities. In this regard, one should agree with the opinion of A.S. Zhiltsov, who notes that the current management system for resolving tax disputes at the pre-trial stage should be removed from the scope of the tax authority, i.e. structures of the Federal Tax Service. This body could function as an appropriate separate unit or service within the structure of the Ministry of Finance of the Russian Federation.

This is expedient, taking into account the functions and powers of the Ministry of Finance of the Russian Federation, which coordinates and controls the activities of the services under its jurisdiction, including the Federal Tax Service.

Secondly, the assessment of the effectiveness of the activities of the tax authority should be carried out by the number of disputes submitted for subsequent consideration to the judicial authorities, as well as by the number of decisions canceled by the court, adopted by the specified authority.

The criteria by which the effectiveness of the activities of any body exercising public functions is assessed are an important element influencing the activities of this body. Since the effectiveness of the activities of the tax authority is made dependent on the amount of taxes collected and penalties, then all the activities of the tax authority are aimed specifically at additional charges of the corresponding amounts, often violating the law.

If the assessment of the activities of the new body will be carried out according to the proposed criteria, then this will create a situation that stimulates the adoption of the maximum possible legal and reasonable decisions.

The proposed directions for improving tax legislation in terms of pre-trial settlement of tax disputes are not exhaustive. The formation of a truly effective pre-trial procedure for resolving tax disputes requires its full and comprehensive study, on the basis of which other proposals can be formulated to improve extrajudicial procedures for resolving tax disputes.

Proposals for improving the mechanism of pre-trial settlement of tax disputes.

Consideration of cases on tax offenses provides for two procedures for consideration:

1. in the manner prescribed by Article 101 of the Tax Code of the Russian Federation, cases of tax offenses identified during a desk or on-site tax audit are considered;

2. in the manner prescribed by Article 101.4 of the Tax Code of the Russian Federation, cases of tax offenses identified in the course of other tax control measures are considered.

These procedures differ in a number of ways. So, in the case of consideration of the audit materials in accordance with Article 101.4 of the Tax Code of the Russian Federation, the possibility of extending the period for consideration of the act and other materials of tax control measures and the adoption of a decision on them by Art. 101.4 of the Tax Code of the Russian Federation is not provided for; also, the possibility of recognizing the head (deputy head) of the tax authority as mandatory participation of a person held liable for tax liability for the consideration of materials and postponing the consideration of materials on this basis is not indicated. Unlike paragraph 8 of Art. 101.1 of the Tax Code of the Russian Federation, Article 101.4 of the Tax Code of the Russian Federation does not indicate the possibility of making a decision based on the results of consideration of materials on the implementation of additional tax control measures and does not contain the possibility of making such a decision as an interim one.

However, the inability to postpone the consideration of the audit materials due to the absence of the person held liable for tax liability (i.e., the recognition by the head (deputy head) of the tax authority of the obligatory participation of the person held liable when considering the audit materials), as well as the implementation of additional tax control measures, deprives the tax authority, in the event that the taxpayer submits objections to the act and additional documents, the opportunity to comprehensively and more fully evaluate the audit materials, which may affect the validity of the decision made based on the results of their consideration.

Offer:

Amend the procedure for reviewing audit materials in accordance with Article 101.4 of the Tax Code of the Russian Federation, providing for the possibility of postponing the consideration of audit materials due to the absence of a person held liable for tax liability, as well as carrying out additional tax control measures.

We invite you to read the online interview.

April 23, 2013 at 10.00 am IA GARANT hosted an online interview with the head of the Office for Pre-trial Settlement of Tax Disputes of the Federal Tax Service Suvorova Elena Vladimirovna.

Leading Internet interview - Natalia Karpunina (IA "GARANT").

Presenter: Good afternoon, ladies and gentlemen! Hello, dear Internet audience!
We are starting our online interview. Allow me to introduce our guest Suvorova Elena Vladimirovna, Head of the Department for Pre-trial Settlement of Tax Disputes of the Federal Tax Service.

Suvorova E.V.: Good afternoon everyone! Thanks for the invitation!

Presenter: Dear Elena Vladimirovna, let me welcome you to the IA "Garant" and thank you for taking the time to come to us and answer the questions of our Internet audience!

The topic of today's interview: "Prospects for development and ways to improve the system of pre-trial settlement of tax disputes."

Let me remind you that today's Internet interview is broadcast online on the legal portal www.site.

By the time our online interview began, several dozens of different interesting and problematic questions had been received, which we would like to offer our esteemed guest today.
So, the first question. Elena Vladimirovna, please explain to which tax authority you need to file a complaint about the illegal actions of the inspection? Is it possible to file a complaint directly with the Federal Tax Service?

Suvorova E.V.: In fact, in pre-trial dispute resolution, the most important question is: where to file? The last question is also good, because you always want to file it with the Federal Tax Service - immediately with a higher tax authority. But I still wanted to orientate taxpayers: when faced with a pre-trial procedure, it is necessary to understand that there is a certain three-level structure of the Federal Tax Service, including lower tax authorities, territorial tax authorities; management, which are higher in relation to them; and the Federal Tax Service as the federal executive body, which is the superior tax authority for the departments. Also, the ten largest interregional inspectorates, which are directly subordinate to the Federal Tax Service. To file a complaint, you need to contact the higher tax authority in relation to the inspection where you are registered. In the situation of filing a complaint directly with the Federal Tax Service, taxpayers should understand that we have the Regulations on the Federal Tax Service, according to which, if the complaint is not considered by the higher tax authority in relation to the inspection, we are forced to redirect it by letter for consideration to the department , which we report to taxpayers, making it possible to trace the location of the complaint. Order is order, so I would like people to understand that everything needs to be done in stages: first, a higher tax authority, then, if necessary, a court or the Federal Tax Service.

Presenter: Thank you! Elena Vladimirovna, can a complaint of a taxpayer, an individual be filed by his representative? How, in this case, should the authority of the representative be confirmed in accordance with the requirements of the Federal Tax Service of Russia?

Suvorova E.V.: The Tax Code of the Russian Federation does indeed provide for the possibility of filing a complaint not in person, but through representatives. But also article 185, which is a reference rule in, provides for a notarized power of attorney for individuals. Therefore, I would like to draw the attention of individuals that in some cases we are forced to leave the complaint without consideration, notifying the taxpayer of this, in the absence of confirmation of authority, and as a result, there are no grounds for considering such a complaint.

Presenter: And in what ways can you file a complaint with the tax authority today? And is it possible to send a complaint, contact the Federal Tax Service of Russia via the Internet using an Internet service?

Suvorova E.V.: Yes, the Tax Code of the Russian Federation provides for such a possibility. More precisely, not even an "opportunity", but provides for filing a complaint in writing. This allowed us to develop, among other things, information technology, because the written form provides for the possibility of applying via the Internet. On our website, two services have been developed that really allow you to contact the Federal Tax Service. And if you visit the site, you will see that at the bottom there is another section - the settlement of a tax dispute in a pre-trial order. In fact, no matter what section you fall into in order to send your complaint, claim, appeal - in any case, everything will be processed in bulk, so don’t worry, you can contact the Federal Tax Service and through the website to our section on tax settlement disputes, and directly. The complaint will be processed and the appropriate department will be put in charge.

Presenter: Thank you! Elena Vladimirovna, is the applicant entitled to take any part in the consideration of the complaint?

Suvorova E.V.: It is important to note that the tax authorities have the opportunity under Article 31 to invite taxpayers for clarification. Therefore, the question arose: is it possible, is it necessary, is the tax authority obliged to invite taxpayers to consider a complaint to a higher tax authority? Indeed, in fact, such a procedure is not provided for, so there is simply no such order. But it is precisely the right provided for in Article 31 that makes it possible for each manager, when considering a complaint, to decide for himself whether in this case it is necessary to invite taxpayers or not. I think that many taxpayers know that in 2010 the Supreme Arbitration Court considered such an issue and concluded that, indeed, a mandatory procedure is not provided for. Today, each leader decides this issue independently. Taxpayers across the country are invited as needed. But personally, in my opinion and the opinion of the Federal Tax Service, taking into account the fact that we are developing bills, trying to make this process more convenient and comfortable for taxpayers, efficiency is a priority. In my opinion, its main advantage of the pre-trial order is efficiency. This is a documentary process, and in most cases, an invitation from taxpayers is simply not necessary.

Presenter: Can the tax authorities leave the complaint without consideration at all?

Suvorova E.V.: Today, the Tax Code of the Russian Federation does not provide for such a power. Article 140 prescribes the powers in the examination of complaints or in the examination of appeals. But I very often repeat at conferences and among taxpayers that in some cases it is simply impossible to consider a complaint. We must understand that if I do not have the authority, there is no confirmation of them, I cannot conclude that there is an expression of will to appeal this or that act. For example, there is a judicial act that has entered into force. For example, a decision on the collection of taxes is being appealed, but there is a court decision on this issue that has entered into force. Of course, the administrative procedure, by virtue of Article 16, cannot overcome court decisions, and therefore we are forced to say that the complaint has already been considered by the courts, and we leave it without consideration. This fact, indeed, became the reason for amending the legislation, as there are cases when we cannot consider the complaint on the merits.

Presenter: How long does it take to consider a complaint about the refusal of the tax authority to accept a tax return?

Suvorova E.V.: Taxpayers should understand that this is a complex procedure. But in all types of complaints, the subjects of complaints are divided into acts of tax authorities of a non-normative nature - action and inaction. Maybe it is difficult, and in many foreign countries there is no such clear division. But nevertheless, for us, for our legislation, this is important. The term "declaration" was mentioned. In fact, the refusal of the declaration should be qualified as an inaction. In a number of cases, there are peculiarities when appealing against acts of a non-normative nature: actions and inactions. But if we are talking about the term, then today the term is the same - it is 30 days for consideration of the complaint, and the possibility of its extension for 15 days.

Presenter: Is it possible to file a complaint about a violation by the tax authority of the deadline for considering a complaint?

Suvorova E.V.: This question is often asked. Indeed, under certain circumstances, the higher tax authority violates the deadlines for considering complaints. This is actually the same inaction of a higher tax authority, therefore, in this case, it can be appealed to a higher tax authority. It will be the Federal Tax Service to manage it. There are cases when on the Internet portal we see complaints about late consideration. We try to resolve such issues as quickly as possible. As a rule, you do not even need to wait for the end of the complaint within 30 days. We, as a rule, deal with this issue within 15 working days or give instructions to consider the complaint in a timely manner.

Presenter: Thank you! The next question is from a user, a very practical one. I filed a complaint with the management, indicated the address to which I need to send a response. No response received. Where is the decision on the complaint sent? And if the address is indicated in the complaint, will the decision be sent to the address indicated for receiving correspondence?

Suvorova E.V.: Indeed, the decisions on a complaint in the Tax Code of the Russian Federation are very little regulated, the procedure for sending decisions, if the taxpayers are familiar with the Tax Code of the Russian Federation, is not spelled out at all. That is why today the rule has been implemented that the address indicated by the taxpayer himself will be used as correspondence by the tax service. I would like to draw your attention to the fact that when you specify an address, you need to ensure that correspondence is received at it. Of course, there are cases when, despite the address of registration or the address of residence, the letter itself indicates the address to which it would be desirable to send a response to the complaint. It can be an email address or just a mailing address. In any case, if such a request is contained in the complaint, we send correspondence to all addresses indicated in the complaint.

Presenter: Thank you! To which tax authority should an appeal be filed against the decision to repeat the tax entry check?

Suvorova E.V.: A repeated field tax audit is carried out by a higher tax authority, that is, the department for the constituent entities of the Russian Federation. Accordingly, the higher tax authority, as I said, will be the Federal Tax Service. Therefore, all complaints are submitted directly to us.

Presenter: Thank you! Elena Vladimirovna, what is the deadline for the tax authority considering the complaint to send the decision to the applicant? And should the tax authority notify the extension of the taxpayer's complaint?

Suvorova E.V.: We have Article 140 provides for a three-day period for sending decisions on complaints. And I would like to draw your attention to the fact that this article does not provide for such a procedure as notifying taxpayers of an extension. Perhaps, in terms of providing information about the progress of the complaint, this is unfair, but it is worth considering that we have about 50,000 complaints a year. With this arrangement, we will incur quite large expenses. Therefore, from the point of view of economy, everything is quite correctly spelled out. That is, if the tax authority considers it necessary to extend the complaint, this is formalized by internal documents for 15 days. In this case, the taxpayer is not notified, since there is no obligation to notify. But according to Federal Law No. 59-FZ of May 2, 2006, we are obliged to notify citizens, and we send such letters to individuals.

Presenter: Thank you! The next question is from a user. I provided documents confirming tax deductions with the appeal. But the management ignored them and issued a decision in support of the inspection. Are such management actions legal?

Suvorova E.V.: Additional documents are also quite an interesting issue and very relevant. Often, for some specific reason, the taxpayer does not provide documents at the verification stage. Can he provide these documents at the stage of appeal or when filing a complaint? Of course, there is such a right. The code does not spell out such a procedure, it does not spell out the obligation to accept and take into account such documents. And we are forced to focus on judicial practice, on law enforcement practice. The Constitutional Court does not oblige higher tax authorities to consider such documents, but such documents are accepted in courts. That is why, in order to exclude unreasonable actions and for the purposes of a judicial perspective, the tax authorities, as a rule, consider such documents if they are not in doubt. We must understand that in order to view the documents, the tax authority must have the authority. In some cases, the higher tax authority simply does not have them. I would also like to draw attention to the fact that often the non-acceptance of documents is due to the presence of grounds for assuming bad faith of the taxpayer. And now in the Moscow region there are judicial acts that supported our position. Under certain circumstances, when we completed all the actions: we sent all the requirements and performed certain actions to receive the documents, and the taxpayer prevented the receipt, the court concluded that the actions were aimed at preventing the audit and refused to accept the documents at the trial stage. Therefore, unscrupulous taxpayers, be careful!

Presenter: Thank you! Elena Vladimirovna, next question. What are the consequences of sending an appeal by the applicant based on the results of a desk tax audit directly to a higher tax authority, bypassing the inspection? Will this complaint be an appeal? And can it be returned to the applicant?

Suvorova E.V.: Yes, indeed, there is a special procedure for filing complaints for appeals. I would like to draw the attention of taxpayers to this as well, because the stipulated procedure was borrowed from the arbitration process. An appeal is filed with the tax authority against which we are complaining, so that all documents, together with the complaint, are later independently submitted to a higher tax authority. If someone is familiar with the arbitration process, then he knows that the appeal is filed precisely through the lower tax authority to the appellate instance. By this analogy, the following procedure was invented: an appeal is filed within 10 days and is promptly considered. All other complaints are submitted directly to the higher tax authority. Many taxpayers get confused and send appeals to a higher tax authority. There is no procedure for returning such complaints, and therefore we mark it as received when it is actually accepted by the tax authority, and we begin to consider it. But, of course, there are certain difficulties in requesting documents to a lower tax authority. Therefore, in the interests of the taxpayer, it is necessary to follow the procedure prescribed in.

Presenter: Thank you! Next question. "I often cannot get through to the inspectorate or department just to find out if my complaint was considered. The answer to the complaint came four months later. In what order can I go to court to appeal this decision?"

Suvorova E.V.: I mentioned the address earlier. Once again, I would like to note that there are cases when taxpayers do not receive documents precisely because they do not ensure the receipt of correspondence at the address indicated in the complaint. Regarding the inability to get through, I can note that it is probably difficult to get through to departments, to higher tax authorities, to inspections. That is why in 2012 we implemented a special project: "Learn about the complaint", which was positioned as the first step in the openness of the complaints process. It was opened in July 2012 by the Federal Tax Service, it was possible to see all the stages of the complaint in the Federal Tax Service. On January 13, 2013, such services were opened in all departments in the constituent entities of the Russian Federation. I urge you to use such a service, it is filled in automatically, that is, you can get information at what stage your complaint is, and already understand whether it has been considered or not. As for the appeal, I think that in a specific issue the court will take into account the circumstances, including non-receipt, and will satisfy the request for the restoration of the time limit for appeal.

Presenter: Thank you! Elena Vladimirovna, is an appeal based on the results of an on-site audit sent to the tax authority in violation of the ten-day deadline for an appeal subject to consideration?

Suvorova E.V.: The Code provides for a ten-day period for filing an appeal, it is when filing within this short period that it will be considered that the taxpayer has expressed a desire to appeal the decision. Only in this case the decision does not enter into force. Of course, a complaint can be filed, including in violation of the ten-day period. But you must understand that this complaint will be considered precisely as a complaint, and not as an appeal, as will be indicated in the decision of a higher tax authority. The taxpayer must understand that in this case the decision will already enter into force, and it is quite possible that the recovery process under such a decision will already be started.

Presenter: Thank you! Can a complaint be withdrawn and within what time frame? To which tax authority should the appeal be sent?

Suvorova E.V.: Indeed, taxpayers have the right to withdraw the complaint. Now this happens quite often, because, when receiving a certain signal on actions or inactions, the inspection tries to respond to it very quickly, promptly. A review can be submitted, based on the norms of the Code, to the tax authority that considers the complaint, which is absolutely logical. Therefore, if your complaint is considered by a higher tax authority, of course, the review must go to the higher tax authority. But, believe me, there are times when it is convenient for taxpayers to submit it to their inspection, where it is registered. Promptly within the next day, this withdrawal will be notified to the higher tax authority, and the proceedings will most likely be terminated.

Presenter: Thank you! In some cases, taxpayers simply do not have information about the position of the Federal Tax Service on a particular issue. Please tell us what is planned to be done in this direction? Is it possible to get acquainted with the results of the decisions of the Federal Tax Service of Russia based on the results of the consideration of complaints somewhere?

Suvorova E.V.: A very big and important question. Sergei Ashotovich Arakelov, Deputy Head of the Federal Tax Service, has repeatedly said in the press that this issue should be resolved, which will serve as a kind of next step towards the information openness of our decisions. Of course, this is important. We adjudicate complaints, and one of our goals is to apply practice uniformly throughout Russia. But today the question arises about the number and the possibility of publishing decisions, including taking into account the rules on tax secrecy and the ban on the dissemination of personal data. But the issue is being worked out, and we hope that this year excerpts from these decisions or information about them will be published and printed.

Presenter: Thank you! Next question. Is there a Federal Law of May 2, 2006 No. 59-FZ, which provides for a special procedure for considering citizens' appeals, including to the tax authority? Why do the tax authorities violate the deadlines for providing a response under this law, that is, 30 days?

Suvorova E.V.: Indeed, there is the Federal Law of May 2, 2006 No. 59-FZ, which I have already spoken about. But I would like to draw attention to the fact that taxpayers look at the scope of this law. It applies specifically to those appeals, those claims that should not be considered in the manner prescribed. A very common mistake: many believe that it is under this law that his complaints should be considered. The fact is that it provides for a certain procedure for making decisions by tax authorities and regulations and a special procedure for appealing. And only in cases where there are some appeals that are not related to the actions of the tax authorities prescribed in the Tax Code of the Russian Federation, it is possible to apply this law. For understanding, action-inaction and acts of the tax authorities will be considered in the manner prescribed by the Tax Code of the Russian Federation, which provide for 30 days plus 15, as I said. And if this is an appeal under the Federal Law of May 2, 2006 No. 59-FZ: a proposal or some informative explanations, then 30 days. And I think that in this case the deadlines will not be violated.

Presenter: Thank you very much! Elena Vladimirovna, to which tax authority should a complaint be filed if the organization has changed its place of registration?

Suvorova E.V.: The fact is that the complaint is filed against the action-inaction and acts of the tax authority, a certain tax authority, which actually committed this action-inaction. This tax authority has a higher tax authority, so the change of accounting, in this case, there will be no legal grounds for filing a complaint with another higher tax authority. Focus precisely on the inspection that violated your rights, and to the appropriate department for the subject of the Russian Federation.

Presenter: Thank you! When considering an appeal, can the tax authority considering the complaint cancel the decision of the lower tax authority and adopt a new one, changing the amount of additional tax assessments?

Suvorova E.V.: There is the practice of the Supreme Arbitration Court, which, I think, many taxpayers know. It is impossible to make a decision on a complaint that worsens the position of the taxpayer, including if it provides for some additional additional charges. This issue was the subject of consideration in the Supreme Arbitration Court. Therefore, of course, the higher tax authority does not issue additional additional charges, or decisions that worsen the position of taxpayers. But now there is a position, reflected in the draft plenum No. 5, which is being considered by the Supreme Arbitration Court, that it is still possible to change the legal grounds when considering a complaint. What does it say? It is possible that the rate is incorrectly applied, or penalties are incorrectly calculated, or certain types of funds, non-operating expenses or income are incorrectly qualified within the income tax. This is a change in the legal basis, so the plenum stated that additional payments are impossible, but the restoration of the taxpayer's true tax obligations through a change in legal grounds is possible. This is discussed, including very much at conferences and forums. I consider it absolutely normal to stand that we should not aggravate the position of the taxpayer when he turns to us for help, but it is quite legal to restore tax liabilities.

Presenter: Thank you! Elena Vladimirovna wrote quite a lot in the press about the pilot project for expanded information interaction with taxpayers, which was launched by the tax service. I would like to know what is your attitude to this project?

Suvorova E.V.: This is a new institution for our legislation, our tax administration. This is the so-called horizontal monitoring, the practice of which was started in the Netherlands and gradually spread to many countries, including the UK, Austria, and Slovenia. Most often, these are the largest taxpayers, besides, Holland tried to include medium-sized businesses. But this is a small country, so it has such an opportunity. And in most cases, countries conclude an agreement with the largest taxpayers on expanded information interaction: access to information on the accounting and tax reporting of taxpayers, including the results of their internal control, for an early understanding of business planning processes by tax authorities, which makes it possible to quickly respond to questions about complex transactions, about taxation of transactions planned in the future. This is such a mutually beneficial agreement. We get access to information, the taxpayer gets the opportunity to minimize certain tax risks. Now five agreements have been concluded with the largest taxpayers. This is a pilot project, because you still need to get results and understand how it is possible to implement everything in Russia. We hope that the project will become productive, as the benefits are already obvious. As part of the agreements, we have concluded amicable agreements, there are operational explanations that we have provided to taxpayers. I would like the result to be a possible change in legislation, including in terms of the administration of taxpayers. After all, horizontal monitoring is an opportunity for remote administration of taxpayers. I think that this will be useful for many, not only for the largest taxpayers.

Presenter: Thank you! Next question. The website of the Federal Tax Service of Russia has repeatedly discussed a bill to improve the pre-trial appeal procedure. Does this bill really provide that the taxpayer will be deprived of the opportunity to apply to the court directly?

Suvorova E.V.: In 2009, the legislator provided in the Tax Code of the Russian Federation that a pre-trial appeal procedure for decisions on inspections is mandatory. On the one hand, this can also be qualified as some kind of first step before going to court. Is this a deprivation of the right to judicial protection? Of course not! Because this procedure has been working since 2009, it has not been recognized as unconstitutional. The right to judicial protection remains with the taxpayer. The issue of extending the mandatory pre-trial procedure to all disputes is, in fact, what our draft law provides for. Mandatory pre-trial procedure is an absolutely normal practice. In tax relations, in administrative relations, it is, in my opinion, very correct to apply it, because in administrative disputes it is necessary to give a chance to resolve the dispute first administratively, and not immediately go to court. Quite a civilized method, and the question does not concern the deprivation of the rights to judicial protection.

Presenter: Thank you! Next question. Elena Vladimirovna, if the tax authority violates the deadlines for considering the complaint, and the decision does not enter into force, can the taxpayer appeal the decision on the audit or the tax authority's inaction in court?

Suvorova E.V.: If the deadline is violated, then inaction, of course, can be challenged in a higher tax authority. But I would like to draw attention to the fact that the Supreme Arbitration Court at one time considered the question of whether the taxpayer, after the expiration of the deadlines, can exercise his right to judicial protection. And the answer was yes. The Supreme Arbitration Court said that when the review period ends, the taxpayer has the right to appeal in court. In this case, the pre-trial procedure will be considered complied with, because it is the fact of the appeal, and not the receipt of the decision, that is important. I recommended that you first look at the stages, to determine if your complaint is really not considered. And if necessary, you can apply to the court before a decision is made on the merits.

Presenter: Thank you! Next question. Elena Vladimirovna, does the Federal Tax Service of Russia plan to introduce the use of any new alternative opportunities for the taxpayer to exercise the rights to consider their disputes with the tax authorities from 2013, or are all methods exhausted and known.

Suvorova E.V.: Since 2013, of course, it is difficult to promise something new, because we have adopted the concept. We are currently working on a bill that would make all disputes binding. For us, this is a very big step, providing coverage that needs to be worked out. An accelerated procedure of 15 days is envisaged, we still have to work it out qualitatively. Perhaps we will have some other practice of applying amicable agreements, because now there are facts of concluding amicable agreements at the stage of litigation, including on legal positions.

Presenter: Thank you! As you know, one of the tasks of pre-trial settlement of tax disputes is to analyze the causes of tax disputes and take measures to further exclude them. Elena Vladimirovna, what are the results of such an analysis? And what measures are being taken now by your administration in this matter.

Suvorova E.V.: A very difficult question, because I want there to be fewer complaints. Such activities must be carried out with the highest quality. How is this implemented in our management? Each complaint is accepted as a fact, which must be considered individually. The receipt of a complaint shows that something is not right somewhere. If this is a decision on a tax issue, the decision is being appealed by a lower tax authority, then there are probably facts of flaws and misunderstandings of the law. If the problem is about action or inaction, this means the wrong alignment of administration in a particular tax authority. It is from this point of view that each complaint is considered. We try after each complaint, or in the complaint itself, to indicate what measures are being taken, to whom to give instructions to correct the situation as a whole. Of course, there are some systemic violations that are regularly collected during the quarter and sent in the form of reviews to lower tax authorities. Now these reviews are public, in open sources you can see what recommendations we give to lower tax authorities.

Presenter: Thank you! Elena Vladimirovna, how often do inconsistencies in various departmental clarifications come to light in the practice of resolving tax disputes? And is there a way to fix them?

Suvorova E.V.: In 2012, the Federal Tax Service, in my opinion, took a very serious step precisely in analyzing all the explanations that were given by the Ministry of Finance of the Russian Federation to the Federal Tax Service and tax authorities. A special section has appeared on the website, the explanations of which are mandatory for use by the territorial tax authorities. The development of this service is very important for us, because there should be a unified position throughout the country, which is of particular importance not only for taxpayers, but also for tax authorities. There are those letters that the tax authorities must be guided by without fail. It is necessary to draw the attention of taxpayers to these documents. Great hopes are pinned on this service, because after the collection of information, either our position will change, or information will be brought to the Ministry of Finance of the Russian Federation.

Presenter: Thank you! Next question. Elena Vladimirovna, as is already known, much has been said about alternative methods of pre-trial settlement of tax disputes that are used in other countries. In this regard, the question is: is there any monitoring and analysis of current national and international experience? And what innovations are introduced by your foreign colleagues?

Suvorova E.V.: I will tell about my impressions. We attended several international forums, held a round table last year at the International Legal Forum in St. Petersburg, the round table was devoted to the existence of various mechanisms that can resolve disputes before the court. And, to be honest, of all foreign mechanisms, in my opinion, two are the most likely to be used in Russia in the future. These are some tax clarifications: upon request, the tax authority promptly responds and gives a certain rule for further use in order to minimize tax risks for the taxpayer. American colleagues also talked about the fact that in some cases there are certain sectoral issues. An explanation is made specifically for the industry's largest taxpayers. For Russia, this is very important. We have nine inter-regional inspectorates for the largest taxpayers. Each industry: energy, oil and gas industry - has its own specifics. And every time to consider the same questions is rather unpromising. Of course, this is the future, when the tax service will collect questions and give global recommendations arising from the practice of application. Not questions of legislation, because there is one, but the practice of applying certain complex issues. I think this is very promising.

Presenter: Thank you! Next question. Elena Vladimirovna, what are the main incentives for taxpayers to resolve disputes out of court? And in what part of the cases the results most justify the expectations?

Suvorova E.V.: This, as I said, efficiency and free. It seems to me that this is most important when deciding where to file a complaint. If there is such an opportunity to choose, then, of course, this is the advantage of a pre-trial procedure. Speed ​​- we definitely do it faster than the courts. There are currently no fees or charges for dealing with these complaints. Our decisions are executed on the day they are received by the tax authority, as a kind of administrative order to a lower tax authority. Perhaps these are the benefits.

Presenter: Thank you very much! Next question. How is the objectivity of the settlement of tax disputes ensured? How many decisions made by the tax authorities in the pre-trial procedure are reviewed in the courts, and what part of them are canceled?

Suvorova E.V.: Now about 38-40% of decisions are cancelled. But we must understand that these are decisions, as a rule, on inspections and a small number of action-inaction cases, because they do not have a mandatory procedure for appeal. In courts, as a rule, 20% of such decisions are also canceled. Probably, somewhere else we need to strengthen our position. As for objectivity, one must understand that decisions are prepared by many departments. In order to prepare a decision, many departments, including methodological, control, and legal ones, develop a position, therefore, of course, there is always a certain collegiality at the internal level.

Presenter: Thank you! Next question. Elena Vladimirovna, what is your opinion on the frequently discussed mediation procedure: will mediation approaches take root in pre-trial settlement of tax disputes, does mediation have a future in the Russian tax system?

Suvorova E.V.: This question is often asked. The issue of introducing mediation in the tax sphere really arises quite often. This is a very promising direction, but it needs to be transformed for tax relations. What I'm talking about? The fact is that the mediator is a certain person who does not belong to any of the parties. It was assumed that the tax service itself would be able to provide some mediators, but this is probably wrong, because the mediator should be a person from outside who is not interested in resolving the dispute in favor of any party. When we come up with who can be a mediator, and think over the mechanism of this procedure, then, probably, it will be possible. Today, unfortunately, the implementation of this procedure is quite difficult in relation to tax disputes.

Presenter: Those. until there were precedents?

Suvorova E.V.: Yes, we raised the question that this is probably possible, we planned to envisage mediators in the tax service itself. But, unfortunately, then the goal of mediation is simply not achieved. Now, as I said, the question of how to properly implement this mechanism in tax relations is being decided.

Presenter: Thank you! Next question. What are the results of pre-trial settlement of tax disputes for the current year, for the first quarter of 2013? Do you foresee any trends in these statistics?

Suvorova E.V.: For pre-trial settlement management, the main criterion is the reduction of complaints. For us, this is the top priority. Annually the number of complaints is reduced by an average of 10-15%. In the first quarter of this year, the number of complaints has already decreased by about 15%. For us, these are very good indicators. Last year, the number of complaints was about 50,000. Since 2009, this figure has decreased by 20,000 complaints. Those. We started with 70 thousand. However, the number of complaints still remains high. So we try to keep them down. I hope that this trend will continue in the future.

Presenter: We wish you this! Next question. At the end of 2012, the Federal Tax Service of Russia prepared amendments to the RF Tax Code, developed a draft law expanding the scope of pre-trial appeals against tax disputes. At what stage of implementation is this document now? How do you rate its effectiveness?

Suvorova E.V.: To date, it has passed its first reading. Now it is preparing for the second reading, i.e. there is a collection of comments and proposals for finalizing it in the second reading. But in fact, the conceptual issues that we raised and which were proposed in the draft law, namely, the extension of the mandatory pre-trial appeal to all disputes, the extension of the appeal period from 10 days to one month, as well as the possibility of including a third instance in this system of appeal of the Federal tax service, did not undergo any criticism at the first reading. The most important thing is the reduction in the number of disputes and the possibility at the level of the Federal Tax Service to assess what is happening in the lower tax authorities and promptly restore rights. In my opinion, this is a very effective bill. I hope that literally next year will show a global decline in both courts and complaints.

Presenter: Thank you! Next question. The concept of the development of tax audit assumed that when resolving tax disputes, the responsibility of tax authorities for making decisions that do not comply with the law will increase. What forms of responsibility are applied in case of proof of the validity of the arguments of the incoming complaint?

Suvorova E.V.: Responsibility in the consideration of tax disputes will be in any case. To date, in my opinion, this issue has been resolved in all areas. There is civil liability, including in the Tax Code of the Russian Federation there is an obligation to compensate for losses that are caused to taxpayers by unreasonable actions and (or) inaction of officials of the tax authorities, there is criminal liability, there is disciplinary liability. Therefore, in my opinion, there will be no changes to the tax legislation in order to increase liability or introduce any new measures or types of liability.

Presenter: Thank you! Elena Vladimirovna, how is objectivity and impartiality ensured when considering objections and complaints of taxpayers in the course of a pre-trial audit? Is there a procedure for monitoring the conduct of audits in the tax authorities on incoming complaints?

Suvorova E.V.: Of course, many people think that considering a case individually is always a kind of bias, which is why I allowed myself to say that there should always be collegiality within the tax authority, because, of course, the issue cannot be resolved without some preparation and elaboration of materials by all tax departments It's about objectivity. Of course, when the decision has already been made, we have an internal tax control system, there is a special inspection that conducts regular checks on the adoption of well-founded decisions, and the results are brought to the management for making certain decisions.

Presenter: Thank you! Next question. One of the significant advantages of the pre-trial procedure for resolving disputes is the efficiency of settling a tax dispute. Do you consider the 30 days established by law for consideration of the complaint received to be sufficient for a complete and in-depth verification of the arguments indicated in it? Are there specific actions to be taken if a longer clarification is needed?

Suvorova E.V.: Practice has shown that this period is quite enough. This was the basis for the proposal to resolve some simple disputes in a shorter time. When we were preparing this bill, we analyzed foreign practice, and it turned out that our 30-day period is indeed the shortest. In all foreign legislations, this period can be from 30 days to a year. But I would like to draw your attention to the fact that there are disputes that are considered even at the level of the Supreme Arbitration Court of the Russian Federation. That is, the complaint goes to the Federal Tax Service, but in fact the issue is so methodologically complex that it should be decided by the highest arbitration court. In many foreign countries, there is such a suspension mechanism for resolving the issue by higher arbitration courts or constitutional courts. Unfortunately, we do not have such a mechanism. But why make an unfounded complaint, if it is possible that this issue will be globally resolved in the Supreme Arbitration Court within three to five months. If this mechanism is developed and included in our draft law, this will significantly simplify the matter, but for now I think that the existing 30 days are quite enough to resolve the issue.

Presenter: Thank you! Elena Vladimirovna, I have, perhaps, a final question for you. Is it timely, in your opinion, the need to create an independent (independent) body, which will be entrusted with the function of pre-trial settlement of tax disputes?

Suvorova E.V.: A very frequently asked question by people who do not believe in the system of pre-trial settlement of tax disputes. In foreign legislation, we are faced with the fact that there really are a lot of special bodies that exist under the Ministry of Justice, or some independent bodies that consider complaints. From the point of view of understanding, mentality, perhaps for many this is more objective, more correct, but it seems to me that the main thing here is how effectively the existing system works. That should be the priority for this question. Therefore, in my opinion, we are actively and very effectively working, and this proves that there is no need for such a body.

Presenter: Thank you very much, Elena Vladimirovna, for your clear, comprehensive answers. I am sure that our Internet audience no longer has any questions. We thank you and wish you success in your activities!

Suvorova E.V.: Thank you very much! Good luck to all!

Introduction

Theoretical foundations of the pre-trial procedure for the settlement of tax disputes

1 Concept and types of tax disputes

2 Organization of the procedure for pre-trial settlement of tax disputes

3 Foreign experience in resolving conflict situations in the field of taxation

Analysis of practice and ways to improve pre-trial settlement of tax disputes on the example of Primorsky Krai

1 Analysis of the results of pre-trial settlement of tax disputes

2 Analysis of law enforcement practice on the issues of pre-trial resolution of tax disputes

3 Possible ways to improve the tax dispute resolution system

Conclusion

Introduction

The tax system of the Russian Federation is an important link in the country's economy. The Russian Federation, when forming the budget, focuses primarily on taxes that taxpayers must pay. Therefore, this sphere of legal relations on the part of the state has always been of increased attention, increased control over taxpayers.

The tax legislation in the Russian Federation is constantly undergoing changes, which makes this area of ​​legal relations extremely difficult for ordinary taxpayers to understand. Constantly there are disputes about excessively accrued penalties, the results of on-site and cameral inspections are disputed. Tax disputes in court are considered one of the specific and difficult to find out the truth in the case. The courts are overloaded with claims for the recovery of arrears and disputes over the amount of penalties and fines.

In order to reduce tax disputes in the courts, a pre-trial settlement procedure was introduced. Of course, the idea of ​​the legislator is timely and necessary. However, initially taxpayers, and the tax authorities themselves, took this as a formality on the way to filing a lawsuit in court. And, as a rule, the higher tax authorities defended the original position, not always being objective when considering the issue. Now the situation is beginning to change in a positive direction. The functions of a certain mediation body in the tax sphere of legal relations are already visible. Higher tax authorities are now not only considering a tax dispute, but also taking into account the emerging judicial practice.

Therefore, the significance of the institute introduced is increasing. In order to develop and eliminate shortcomings, it is not only relevant, but a constant legal analysis of the effectiveness of the application of the pre-trial stage of dispute resolution is necessary.

The purpose of the study is to analyze the practice of pre-trial settlement of tax disputes.

To achieve this goal, the following tasks were set:

1.describe the theoretical foundations of the pre-trial procedure for the settlement of tax disputes,

2.to analyze the practice and ways of improving the pre-trial settlement of tax disputes on the example of Primorsky Krai.

The object of the research is legal relations in the field of pre-trial settlement of tax disputes.

The subject of the study is the regulations governing the procedure and grounds and conditions for pre-trial settlement of tax disputes.

The methodological base of the research is formed by the dialectical method of cognition, general scientific and particular scientific methods, such as description, comparison, analysis, generalization, comparative legal, formal legal, document analysis, and others.

The theoretical basis of the study is the scientific provisions developed in the works of: Demin A.A., Davydova M.V., Panteleev A.I., Zhadnov Yu., Zabarchuk K.I., Zubareva I.E., Zyuzin V.A. , Ivanov A.G., Krokhina Yu.A., Kuznechenkova V.E., Kozyrin A.N., Koryakin E.L., Kudryavtsev V.N., Lukyanova E.G., Kuzyakin Yu.P., Kolesnichenko T.V., Lobanov A.V., Mikhailova O.R., Mednikova M.E., Markin A.V., Rakitina L.N., Nazarov V.N., Staroverova O.V., Eriashvili N. D., Tikhomirov Yu.A., Fonova I.V., Chernik I.D. other.

The normative basis of the work was formed by legal acts that determine the procedure for resolving tax disputes, among which the main one is the tax code of the Russian Federation, as well as orders and other explanations of the Ministry of Finance and other departmental government bodies.

The practical significance of the study lies in a comprehensive analysis of scientific material, practice on pre-trial settlement of tax disputes. The findings will allow future practitioners to avoid mistakes when participating in the pre-trial settlement of tax disputes. Knowing the problems of legal regulation, the basis of consideration, it is possible to correctly build the protection of the violated right in tax legal relations. The contained theoretical conclusions and practical proposals can be used in law enforcement.

1. Theoretical foundations of the pre-trial procedure for the settlement of tax disputes

1 Concept and types of tax disputes

To date, the term "tax disputes" has become widespread both in the legal literature and in judicial practice (clause 1 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 "On the assessment by arbitration courts of the validity of obtaining a tax benefit by a taxpayer" ). This is due to the fact that this category of disputes is the most predominant among other cases arising from public legal relations, considered by arbitration courts, and has a further tendency to its quantitative increase.

In connection with the foregoing, and also taking into account the fact that the concept of a tax dispute is absent in the current legislation of the Russian Federation, there is a need for a more detailed consideration of this concept, which will certainly contribute to the correct application of the relevant norms of substantive and procedural law.

In scientific works devoted to the problems of tax disputes, various definitions of this concept are given. So, according to D.A. Shinkaryuk, a tax dispute is a disagreement arising on the basis of specific legal facts between a taxpayer (tax agent) and an authorized state body (entity) regarding the consideration of the legality of a non-normative legal act, decision or action (inaction) of the latter.

N.L. Bartunaeva defines a tax dispute as an administratively unresolved conflict between a tax authority and a taxpayer over the scope of tax rights and obligations in the declared period by type of taxation, the application of tax law, as well as the establishment of factual circumstances and subject to resolution in the manner prescribed by the procedural law.

O.V. Borisova formulated the author's definition of a tax dispute as a legal dispute resolved by an authorized state body between the state and payers of taxes and fees on issues of tax law, fact or tax procedure.

CM. Mironova, clarifying the concept of a tax dispute, defines it as a tax-legal relationship that reflects the contradiction of interests of the state and taxpayers, other participants in tax legal relations regarding the application of tax law, resolved by an authorized jurisdictional body or by agreement of the parties.

D.B. Orakhelashvili recognizes as a tax dispute the disagreement between the parties to a legal relationship related to the calculation and payment of taxes, referred to the authorized jurisdictional body, regarding their mutual rights and obligations, as well as the conditions for their implementation, requiring its resolution based on a legal assessment of the validity of the alleged rights of the parties and verification legality of the actions of the authoritatively authorized party.

Of the above definitions of the tax dispute, in general, the position of D.A. Shinkaryuk and D.B. Orakhelashvili, who define the tax dispute through the category of "disagreement". It is this approach to the interpretation of a legal dispute that can be found in the current Russian legislation (Article 381 of the Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ).

In international law, many scholars support the definition of the concept of "dispute" formulated in the decision of the Permanent Court of International Justice in the case of Greece v. Great Britain in connection with the Palestinian concession of Makromatis in 1924 as a disagreement on a question of fact or rule of law, a conflict of legal views or interests between two persons. .

In general, the conceptual approach, in which a legal dispute is defined through the category of "disagreement", is quite common in the domestic legal doctrine. So, according to A.B. Zelentsov, a legal dispute in its most general form can be defined as disagreements between the subjects of legal relations over differently understood mutual rights and obligations in connection with an alleged violation or contestation in the process of exercising the right, including through law enforcement aimed at resolving specific situations.

Earlier, D.M. Chechot.

Thus, the disagreement, objectified in the legal form of demands and objections, is recognized as an essential element of any legal dispute. As other mandatory elements of the content of a legal dispute, the parties, the subject and the basis are called.

The foregoing is quite applicable to the characterization of the content of the tax dispute. At the same time, the features of individual elements of the content of tax disputes are due to the specifics of the legal relations from which they arise. To such relations, according to Art. 2 of the Tax Code of the Russian Federation - part one of July 31, 1998 N 146-FZ (hereinafter referred to as the Tax Code of the Russian Federation) - refers to power relations in the establishment, introduction and collection of taxes and fees in the Russian Federation, as well as relations arising in the process of implementing tax control, appeal against acts of tax authorities, actions (inaction) of their officials and bringing to responsibility for committing a tax offense.

organizations and individuals recognized in accordance with the Tax Code of the Russian Federation as taxpayers or payers of fees;

organizations and individuals recognized in accordance with the Tax Code of the Russian Federation as tax agents;

tax authorities;

Customs .

These subjects of tax legal relations are initiators and, accordingly, participants in tax disputes. At the same time, based on the specifics of the content of tax legal relations, as they are defined in Art. 2 of the Tax Code of the Russian Federation, tax disputes can only arise between private subjects of these legal relations represented by taxpayers, payers of fees and tax agents, on the one hand, and public subjects of tax legal relations represented by tax authorities and customs authorities, on the other hand.

In addition, in cases of contesting regulatory legal acts on taxes and fees, persons who, in cases provided for by legislation on taxes and fees, have the right, within their competence, to issue regulatory legal acts on issues related to taxation, may act as a public party to a tax dispute. and with fees (clause 1, article 4, clauses 3, 4, article 12 of the Tax Code of the Russian Federation), and, as a result, be the respondent in cases of challenging the normative legal acts adopted by them.

As the subject of a public law or administrative (in the broad sense of the word) dispute, a type of which is recognized as a tax dispute, the rights and obligations of participants in public legal relations are most often considered. This is consistent with the current legislation of the Russian Federation. So, in accordance with Part 1 of Art. 198 of the Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95-FZ (hereinafter referred to as the APC of the Russian Federation), citizens, organizations and other persons have the right to challenge non-normative legal acts, decisions and actions (inaction) of bodies exercising public powers, officials in an arbitration court if they believe that the disputed act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of entrepreneurial and other economic activities, illegally impose any duties on them, create other obstacles to implementation of entrepreneurial and other economic activities. On the other hand, in accordance with Part 1 of Art. 213 of the Arbitration Procedure Code of the Russian Federation, the supervisory authorities have the right to apply to the arbitration court with an application for the recovery of payments and sanctions from persons engaged in entrepreneurial and other economic activities, the obligation to pay which is provided for by law. In addition, the rights and obligations of the plaintiffs and defendants are directly named as the subject of the dispute in paragraph 2 of Art. 46 APC RF.

The subject of a tax dispute may be the protection by taxpayers, payers of fees, tax agents of the rights granted to them by Art. 21 of the Tax Code of the Russian Federation.

On the other hand, the subject of claims from the tax authorities may be the requirement that taxpayers comply with their obligations, which are established by paragraph 1 of Art. 23 of the Tax Code of the Russian Federation.

The obligations of payers of fees are mentioned in paragraph 4 of Art. 23 of the Tax Code of the Russian Federation.

The subject of the requirements imposed by the tax authorities on tax agents may be their compliance with the obligations provided for in paragraph 3 of Art. 24 of the Tax Code of the Russian Federation.

In turn, tax disputes may also arise not only regarding the rights and obligations of participants in tax legal relations, but also separately regarding the compliance of acts of legislation on taxes and fees and other regulatory legal acts on taxes and fees with other regulatory legal acts of greater legal force, i.e. e. about their legitimacy.

So, in accordance with Art. 137 of the Tax Code of the Russian Federation, each person has the right to appeal against acts of tax authorities of a non-normative nature, actions or inaction of their officials, and regulatory legal acts of these bodies in the manner prescribed by federal law. The possibility of challenging regulatory legal acts in the field of taxation in the arbitration court is directly indicated in paragraph 1 of part 1 of Art. 29 of the Arbitration Procedure Code of the Russian Federation, and in Ch. 23 of the Arbitration Procedure Code of the Russian Federation establishes the procedure for considering such cases.

2 Organization of the procedure for pre-trial settlement of tax disputes

Pre-trial settlement of tax disputes is a procedure, the application of which allows you to promptly resolve emerging conflicts without bringing the dispute resolution to trial.

The pre-trial procedure for resolving tax disputes has a number of certain advantages compared to litigation: it is a simpler and less formalized procedure for applying, shorter terms for considering a complaint, and the absence of costs associated with paying state fees and other legal costs.

The procedure for pre-trial settlement of tax disputes is provided for in Chapters 19 and 20 of the Tax Code of the Russian Federation. Each person has the right to appeal against non-normative acts of tax authorities, actions or omissions of their officials, if, in the opinion of this person, such acts, actions or omissions violate his rights. Acts of tax authorities of a non-normative nature, actions or inaction of their officials may be appealed to a higher tax authority and (or) to a court in the manner prescribed by the Tax Code of the Russian Federation.

A complaint is a person’s appeal to a tax authority, the subject of which is an appeal against non-normative acts of a tax authority that have entered into force, actions or inaction of its officials, if, in the opinion of this person, the contested acts, actions or inaction of officials of the tax authority violate his rights.

An appeal is an appeal by a person to a tax authority, the subject of which is an appeal against a decision of a tax authority that has not yet entered into force on imposing or refusing to prosecute for committing a tax offense, issued as a result of a desk or field tax audit, if, in the opinion of this person, the contested decision violates his rights.

The most typical claims of violation of the rights of a person considered in complaints:

violation of the deadlines for calculating property tax;

unlawful filing of a demand for the payment of taxes;

refusal to provide tax deductions;

making a decision to suspend operations on bank accounts;

denial of a tax refund.

The decision of the tax authority to hold or refuse to hold liable for committing a tax offense is taken by the tax authority in two cases:

As a result of a desk or field tax audit of a person (a group of taxpayers). Due to the fact that the decision made on the basis of the results of a tax audit of a person to hold or refuse to hold liable for committing a tax offense comes into force after one month from the date of its delivery to the person (his representative), in respect of whom the corresponding decision was made The time limit for filing an appeal is one month.

An appeal against a decision that has not entered into force to hold or to refuse to hold a person (a group of taxpayers) liable for committing a tax offense may be filed within one month from the date of delivery of the relevant decision to the person (his representative) in respect of whom it was rendered.

An appeal against a decision of a tax authority to prosecute or to refuse to prosecute for committing a tax offense shall be filed before the contested decision comes into force.

The Tax Code of the Russian Federation does not provide for the possibility of restoring by a higher tax authority the deadline for filing an appeal missed for one reason or another by a person in respect of whom a decision was made to prosecute or to refuse to prosecute for committing a tax offense.

A complaint against a decision that has entered into force on holding or on refusing to hold liable for committing a tax offense that has not been appealed on appeal may be filed within one year from the date when the person knew or should have known about the violation of his rights. A complaint against other acts of the tax authority, as well as actions or inaction of its officials, is filed within one year from the date when the person learned or should have learned about the violation of his rights. A decision or other act of a non-normative nature adopted by a higher tax authority on a complaint (appeal) may, in turn, be appealed to the Federal Tax Service within 3 months from the date such a decision or other act of a non-normative nature was adopted.

If, for a good reason, the deadline for filing a complaint is missed, this deadline, at the request of the person filing the complaint, may be restored by a higher tax authority.

The tax legislation establishes a mandatory pre-trial procedure for the settlement of tax disputes, according to which the decisions of the tax authorities, issued on the basis of the results of cameral and on-site tax audits, can be appealed in court only after they have been appealed to a higher tax authority.

Since January 1, 2014, the mandatory pre-trial appeal procedure has been applied to all tax disputes, including appeals against other non-normative acts of tax authorities, as well as actions or omissions of their officials.

In order to comply with the mandatory procedure for pre-trial appeal, it is enough for taxpayers to file an appeal against a decision that has not entered into legal force based on the results of a desk or field tax audit, or with a complaint against a decision that has entered into legal force or another act of a non-normative nature, within the time limits established by the Tax Code, or file a complaint against the actions or inaction of officials of the tax authority. Decisions of a higher tax authority or other act of a non-normative nature adopted as a result of consideration of complaints (appeals) may be appealed both to the Federal Tax Service and to the court. Decisions or other non-normative acts issued by the Federal Tax Service, actions or inaction of its officials are appealed in court.

A complaint (appeal) is filed with a higher tax authority through a tax authority whose non-normative acts, actions or inaction of officials of which are appealed.

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Taking into account the fact that the appeal is filed before the appealed decision enters into force, the decision appealed in the appeal procedure comes into force in the part not canceled by the higher tax authority and in the unappealed part from the day the higher tax authority makes a decision on this complaint. If the higher tax authority considering the appeal cancels the decision of the lower tax authority and (or) makes a new decision, then the decision of the higher authority will come into force from the date of its adoption. If a higher tax authority decides to leave the appeal without consideration, the decision of the lower tax authority comes into force from the day the higher tax authority decides to leave the appeal without consideration, but not earlier than the expiration of the time limit for filing an appeal. Filing a complaint with a higher tax authority against a decision that has entered into force does not suspend the execution of the appealed decision.

3 Foreign experience in resolving conflict situations in the field of taxation

The principle of appealing decisions and actions (inaction) of the tax authority is comprehensive and complete. Modern states actively fix it in the current legislation. However, the issue of the procedure for such an appeal is decided differently in different countries. The study of the procedure and procedures for resolving tax disputes abroad, on the one hand, makes it possible to detect a possible anticipation of the development of the system of bodies that consider tax disputes in Russia. On the other hand, such a study allows us to extract certain positive developments and use foreign experience in order to increase the efficiency of resolving tax disputes.

Currently, there is a tendency in most states to create a central administrative body that oversees the collection of taxes. It is these bodies that determine the policy of conducting tax audits of the activities of taxpayers. As an exception, we can name the Federal Republic of Germany, where the policy of control is determined at the level of the federal states. Even if the Bundestag intervenes and decides to conduct an audit (for example, in relation to large enterprises), the frequency of such audits is also agreed with the local tax authorities.

In world practice, various options for organizing tax administration are used. In any case, the purpose of creating such bodies is to ensure the effective functioning of the taxation system, as well as the proper level of tax revenues in the budget. At the same time, tax administration bodies are divided into three groups: those responsible for the implementation of tax policy; directly collecting taxes and fees and controlling their payment; having separate powers in the tax sphere. Tax control in foreign countries is carried out by bodies with different organizational territorial levels. Most often, their organization is associated with the state structure, and can also be determined by other criteria (for example, based on the turnover of the enterprise). So, in Germany, Spain, Italy there are national (federal) control bodies, and in the Kingdom of the Netherlands, Canada, the USA there are state structures organized by groups of taxpayers on a national scale, but implemented at the regional level.

It should be noted that the right to conduct tax audits and tax control measures is also widespread abroad. However, there are significant differences in the methods, terms, periods of control. One of the main differences between countries is the surprise factor in the beginning of the inspection. In Germany, Spain, Italy, inspectors have the right to carry out tax control measures unexpectedly, without a corresponding notice, while in France, prior notification of the taxpayer is a prerequisite. In case of such non-compliance with the procedure, the results of the verification may be declared illegal. In this case, the norm of paragraph 2, clause 14, article 101 of the Tax Code of the Russian Federation provides a similar guarantee of the rights of the taxpayer, which is implemented in case of violation of the essential conditions of the procedure for considering tax audit materials and leads to the possible cancellation by a higher tax authority or court of the decision of the tax authority. With regard to the timing of the implementation of control measures, it should be noted that for the Federal Republic of Germany, Canada, the USA, Japan, and Sweden there is no restriction on such deadlines.

The difference between countries also manifests itself in the types of tax audits. Thus, in Germany, the tax authority has the right to conduct the following types of audits: a general audit (in relation to all taxpayers with restrictions on certain taxes, for several years, to a specific subject (according to accounting items)), a simple audit (concerns income tax deducted by employees, and VAT ; carried out by special departments), abbreviated verification (carried out in relation to small and very small enterprises).

French legislation, like Russian law, distinguishes between checks that are carried out on the territory of the tax authority, and checks that are carried out on the territory of the taxpayer. At the same time, the tax inspector has the right to independently visit the taxpayer and withdraw documents if there is a written request from the tax authority (requirement) and the consent of the taxpayer to such withdrawal.

In France and Germany, when contesting the results of an audit, the principle of clarification of circumstances by the court applies, and not their proof by the parties. Therefore, in order to refute the results of a tax audit, lawyers try to find procedural violations committed by the tax authority. If such violations turn out to be significant, the court may invalidate the decision of the tax authority to charge additional taxes and penalties in full. In contrast, in Belgium, the tax authority whose decision has been declared invalid by the court has the right to conduct a second tax audit in order to re-determine the amount of unpaid taxes by the taxpayer. In this case, the taxpayer may have the right to appeal the results of a repeated tax audit due to the fact that the tax authority missed the limitation period.

Types of inspections in Canada are distinguished by their diversity: general inspection, spot inspection, combined inspection (one inspector checks the correctness of the calculation and payment of VAT and direct taxes); integrated check (similar to the previous one, but carried out by several specialized inspectors); random (in random order).

In Australia, the tax authorities, in order to verify the correctness of the calculation and completeness of taxes paid by legal entities, conduct tax audits, which are of three types: a preliminary audit (it checks the compliance of the information provided by organizations with those contained in tax returns), business audit (verification of property and financial documents companies in the territory of the taxpayer), comprehensive audit (carried out by special groups of inspectors in large companies) .

In Italy, both representatives of the tax department and representatives of the ordinary police are engaged in checking financial violations. It should be noted that in Russia there was a similar structure of state bodies. However, the peculiarities of the organization of tax audits can be observed not only in the sphere of government. An interesting principle is the search for a taxpayer whose activities are subject to tax audit. So, in Italy, a specialized Handbook of profitability of various types of business has been developed and published. This handbook is based on the country's tax statistics for the past 10 years, according to the income received and the taxes that must be remitted to the state. Depending on the types of activities (more than 180 are allocated), the amount of revenue (divided in increments of 500 thousand euros), the amount of expenses, sectors of the economy, location and some other indicators, the tax authority determines the taxpayers subject to verification. This decision was made due to the existence of a huge number of registered small taxpayers, which makes it impossible for the Italian tax authorities to conduct a thorough check of them. If an organization's declared tax liabilities are lower than the calculated averages according to the "reference book", it is automatically included in the list of persons subject to tax audit. In addition, the list of tax audits is supplemented by randomly selected (by lot) companies whose tax indicators formally correspond to the average calculated parameters of the "reference book". Similar actions are being taken by the Federal Tax Service of Russia, which is developing the concept of tax audits by highlighting the criteria, the presence of which will lead to a tax audit. However, in Italy there is a limitation on the use of this method. The largest Italian taxpayers are subject to an annual mandatory tax audit.

Identified by the results of the audit tax offenses in Italy entail administrative or criminal liability. Interestingly, when executing a punishment, the tax authority has the right to transfer information about the debt to a specialized debt collection company, which independently (under an agreement with the tax authority) collects the debt from the non-payer by searching, seizing and selling his property, after which (minus a certain percentage of his own interest ) transfers it to the budget. The Italian authorities explain this procedure for collecting tax debts by the fact that a commercial firm has more opportunities than the state to “pursue” non-payers.

In the United States, the US Internal Revenue Service (IRS) rules contain little or no provision for tax audits. The service has broad powers, and the procedure itself is more informal than in other countries. At the end of the audit, the taxpayer is informed of the results of the audit and those identified errors that need to be corrected. A taxpayer who disagrees with the findings of the reviewers may file a complaint with the Appeals Office of the IRS or in court.

It should also be noted that a distinctive feature of the implementation of tax control measures, registration of their results is the close interaction of the tax authority and the taxpayer. In this case, the norms that are available in most states and allow reaching an agreement between the indicated persons on the issue of the correct calculation and payment of tax are important. This possibility is observed at all stages of a tax dispute from the registration of the results of a tax audit to an appeal against a decision made by a tax authority. In most countries, the inspector is obliged to hold a meeting with the taxpayer, during which the parties check the documents submitted by the taxpayer and examined by the tax authority and discuss proposals for making changes (correcting errors). Such a provision is either directly enshrined at the legislative level, or follows from established practice.

For example, under US law, the tax inspector preliminarily agrees on the date of the first meeting with the taxpayer by telephone, which is subsequently recorded in a written notice to the taxpayer. The main objective of the first conversation is to get more information about the taxpayer. Based on the results of the measures taken, the tax authority and the taxpayer have the opportunity to agree on the amount of additional charges made by the tax authority. The main purpose of verification in the Anglo-Saxon countries is to reach a compromise, to conclude an agreement (the settlement agreement). Broad powers are granted in connection with this tax inspectors. The conclusion of such an agreement not only leads to a quick settlement of the dispute, but also to a reduction in sanctions, interest for late payment.

In Spain, as such, there is no legal institution of a settlement agreement. However, if the taxpayer agrees with the payments proposed based on the results of the tax audit, an automatic discount occurs, the amount of which can reach 30% of the amount of penalties.

Interestingly, according to German law, it is formally forbidden to use other forms of determining tax deductions than an administrative act. Such a prohibition stems from §155 of the Regulation on Taxes and Compulsory Payments, which determines that taxes must be established in a “tax notice” (administrative act). However, the current jurisprudence allowed the conclusion of a settlement agreement between the tax authority and the taxpayer on the actual conditions and prerequisites for the occurrence of the tax, even if the result of the conclusion of such an agreement is the refusal of the state from tax revenues. At the same time, as K. Reitemeier notes, despite the fact that most theorists oppose the recognition of such agreements as admissible, they are very popular in practice.

Judicial practice has developed certain criteria for recognizing settlement agreements between a taxpayer and a tax authority as admissible. First, there must be actual uncertainty about the material prerequisites for the emergence of claims against the taxpayer and the disproportionately high costs of investigating the circumstances. Secondly, an agreement has been reached between the tax authority and the taxpayer regarding certain circumstances. Thirdly, negotiations on the conclusion of a settlement agreement are conducted by authorized representatives of the parties. Fourth, settling a dispute by entering into a settlement agreement will not lead to an obviously wrong result. Despite the fact that neither the possibility of concluding a settlement agreement nor the named criteria are directly fixed in the current legislation of the Federal Republic of Germany, and these provisions have been developed by judicial practice, such a procedure is implemented within the framework of both pre-trial and judicial procedures for the settlement of tax disputes.

Norms on a compromise solution of a tax dispute are also available in the legislation of Ukraine. In accordance with paragraph 5.2.7 of the Law of Ukraine dated December 21, 2000 "On the procedure for paying off the taxpayer's obligations to budgets and state trust funds", an official of the tax authority authorized to consider a taxpayer's complaint has the right to propose to such a taxpayer to conclude an agreement on a compromise settlement of the dispute . As D.M. Shchekin notes: “The basis for such a compromise is the fact that the tax authority has facts and evidence on the merits of the taxpayer’s complaint, which give reason to believe that the proposed compromise will lead to faster and (or) more complete repayment of the tax liability compared to results that can be achieved as a result of bringing the dispute to court. At the same time, the tax authority has the right to satisfy part of the taxpayer's complaint if he agrees with the balance of tax liabilities accrued by the controlling authority. It should be noted that the conclusion of such an agreement is a clearly regulated procedure, including the rationale for the need and possibility of concluding such an agreement, as well as the subsequent approval of such an agreement by several officials of tax authorities at different levels, which prevents the development of corruption in this area.

An important issue when considering a tax dispute related to an appeal against a decision of a tax authority made as a result of consideration of tax audit materials is the obligation to appeal it in a pre-trial procedure. As O.A. Borzunov, in the legislation of most countries that are members of the Organization for Economic Cooperation and Development, the condition for the taxpayer to have the right to appeal to the court with a complaint against the decision of the tax authority is the mandatory appeal of this decision in an administrative procedure. In some countries (Australia, Italy, New Zealand, Turkey), the taxpayer must fully comply with the disputed tax obligation before going to court. In France and Portugal, the enforcement of a tax claim for the period of its appeal is suspended only if sufficient guarantees are provided by the taxpayer. In other countries (Austria, Belgium, Canada, USA, Finland), an appeal suspends the collection of the adjusted tax amount. However, as a rule, this suspension is valid only for the period of consideration of the initial complaint, the subsequent appeal is associated with the need to fulfill the tax obligation. The system of bodies that consider tax disputes also differs significantly. In the United Kingdom of Great Britain and Northern Ireland, most tax disputes are considered by quasi-judicial bodies - tribunals. The transfer of the case to the High Court (The High Court) occurs only at the stage of consideration of appeals against the decisions of the tribunals. The House of Lords (The House of Lords) acts as the country's highest judicial (appeal) instance in particularly important tax cases.

Previously, the taxpayer could file a complaint for consideration with the General Commissioners (as part of the tribunal - non-professional lawyers with a "good reputation" (good reputation)), Special Commissioners (a special tribunal whose members (highly professional lawyers) worked on a permanent basis and were appointed by the Lord Chancellor after consultation with the Lord Advocate). As I.A. Khavanov, from April 1, 2012, the system of tax tribunals was reformed, these bodies were abolished, and their functions were transferred to the tax chamber in the Tax Chamber of the First - Tier Tribunal, which currently considers disputes and appeals of individuals and legal entities on taxation issues. The current system consists of two tiers of tribunals: the First-Tier Tribunal and the Upper Tribunal (divided into chambers), where subsequent appeal and the most complex cases are heard. The system of independent quasi-judicial bodies makes it possible to relieve the courts by resolving conflicts that have arisen already at the first stages of interaction between the tax authority and the taxpayer. The use of the mechanisms of the negotiation process, the less formalization of procedures, make it possible to achieve an early settlement of the dispute and reduce the time for its consideration.

Recently, a fairly large number of works have been devoted to the procedures for resolving tax disputes in the United States. This interest is due to the fact that only a small number of tax disputes reach court. Almost 90% of taxpayers' appeals are resolved administratively through the US Internal Revenue Service (IRS).

The Appeals Office of the IRS handles tax disputes in the Russian sense of administrative procedure. Its activities are regulated, among other things, by the Administrative Procedure Act. As A.E. Egorov, consideration of a tax dispute in the Office does not require large time and money costs and is an effective alternative to litigation.

The pre-trial dispute settlement procedure has the following stages. A taxpayer who has received a notification from a tax authority that he has been brought to justice with an indication of specific amounts of tax accrued as a result of an audit has the right to submit written objections to the same tax authority within 30 days. The tax authority must forward the taxpayer's objection, along with all tax audit materials, to the Complaints Office, which, in turn, will schedule a hearing within 90 days of the date the taxpayer's objection was filed. The Office is also required to notify the taxpayer of the official who is responsible for handling his case. The term for considering a case in an administrative procedure is not defined by law and, depending on the complexity of the case, can last from 90 days to one year. The review procedure itself is informal and can be carried out through telephone conversations, correspondence. When a hearing is scheduled, minutes are not kept. The only condition that guarantees compliance by the persons participating in the case with the norms of the current legislation is the issuance of statements (receipts) on responsibility for giving false testimony. It is also important that only lawyers and independent certified auditors can be representatives of the taxpayer in such consideration of the dispute. The officer of the Office is governed by applicable US law, including by-laws of the US Department of the Treasury, the Internal Revenue Service, and is not bound by judicial precedent. The purpose of the dispute is a fair, mutually beneficial resolution of the dispute in order to avoid subsequent recourse to the court. That is why the official offers the parties to resolve the issue by concluding a settlement agreement. Each party participates in this process, offering its own conditions, having previously substantiated them. If an official of the Office rejects any of the conditions, he is obliged to motivate such action to reject the proposal of the party.

Based on the results of the consideration of the dispute, a decision is made in the form of an agreement on the settlement of a tax dispute (Settlement agreement). Current US law provides for four types of agreements.

Form 870, according to which the tax authority collects arrears, penalties, fines in the amount recognized by the taxpayer. In this case, the taxpayer loses the right to challenge this amount in the Tax Court, however, after payment of this amount, he has the right to return the overcharged amount based on the relevant decision of the federal district or Claims court. On the other hand, the tax authority also retains the right to later separately collect unpaid taxes beyond the agreed amount.

Form 870-AD, which denies the taxpayer's right to claim an excess amount of taxes in return for the deprivation of the tax authority's right to take actions to collect unpaid taxes beyond the agreed amount.

Closing agreement, which is an agreement between the taxpayer and the tax authority on the establishment, modification and termination of rights and obligations, which is binding on the parties.

An additional agreement that is not binding, but is used to resolve individual, non-core issues in the dispute. If, during the consideration of the case, an official of the Office comes to the conclusion that it is impossible to reach an agreement, the consideration of the dispute is terminated. A notice of tax payment (Notice of Deficiency) is sent to the taxpayer. Upon receipt of the tax authority's notice, the taxpayer has 90 days to file a claim with the US Tax Court. Missing this deadline will result in a refusal to consider the application.

Thus, as A.V. Belousov, the administrative procedure for resolving tax disputes in the United States is complex and allows the use of private law dispute resolution methods. In order to encourage the choice of an administrative taxpayer, the US Internal Revenue Code establishes a rule according to which legal costs are subject to a significant reduction if the taxpayer does not take advantage of the opportunity to resolve the dispute in pre-trial procedure.

The judicial procedure for resolving a dispute in the United States is characterized by variability. Thus, the realization of the right to judicial protection of violated rights is possible through the courts:

US Tax Court - a specialized court to which a taxpayer can apply before paying tax;

territorial (federal district) courts (US Federal District Courts), in which judges are not experts in taxation;

The US Court of Federal Claims, which has jurisdiction over monetary claims against the US Government.

The US Tax Court is a specialized tax tribunal. With 31 judges and 300 staff members, the US Tax Court works quite fruitfully, which is associated with the clarity and consistency of the judicial procedure for hearing cases. The US Tax Court is located in Washington DC and has offices throughout the country (no court presence). Litigation is conducted by one judge, who, as a rule, decides two types of questions: establishes the facts and solves legal problems. Rules of Procedure in the US Tax Court s Rules of Practice and Procedure) establishes two types of proceedings: standard and summary. A prerequisite for filing a claim with the Tax Court is compliance with the pre-trial procedure for settling the dispute. If this procedure is not observed, the court will send the case for its consideration in the administrative procedure. The party on which the burden of proof is assigned must provide evidence proving the presence or absence of a tax offense. The burden of proof is shifted to the side of the state, but on the condition that the taxpayer does not refuse to cooperate with the authorities. Otherwise, the court will be forced to study in detail the relationship between the parties, evaluate their correspondence, and establish the sequence of events. At the same time, only the essence of the dispute, the establishment of facts, will be important for the court. Secondary (sometimes not subject to assessment) will be the issues of applicable law by the tax authority.

In Germany, tax disputes, regardless of the status of the taxpayer (legal or natural person), are considered by financial courts. The system of financial courts in Germany is two-tier: the state financial courts (der Finanzgericht) and the Federal Financial Court (der Bundesfinanzhof). At the stage of preparing the case for trial, the judge takes measures to resolve the dispute. As I.A. Khavanova points out, before the court decision enters into force, including at the stage of preparing the case for trial, the plaintiff can change the claim or withdraw it, and the financial authority can cancel or change the contested act. An appeal to the Federal Financial Court of Germany is possible only in three cases: when the dispute is of fundamental importance; when a court decision is necessary to confirm the right or ensure the unity of judicial practice; when a procedural error on which the contested court decision is based is revealed. When doubts arise about the constitutionality of the decision of the tax authority, the complaint is transferred to the Constitutional Court of Germany. Moreover, if the court, when resolving the dispute, considers that any provision is contrary to the Constitution, it is obliged to suspend the trial and apply to the Constitutional Court of the Federal Republic of Germany.

In France, the resolution of tax disputes is assigned to the competence of various courts. Courts of general jurisdiction consider claims concerning the correctness of the calculation and completeness of payment of indirect taxes. Administrative courts (tribunal administrative) have jurisdiction over disputes in the field of direct taxes, turnover taxes; while the role of the appellate instance is performed by the administrative court of appeal (cour administrative d appel), the Council of State (Conceil d etat). Cases relating to registration fees, stamp duties, indirect taxes and related taxes and fees are under the jurisdiction of the Tribunal de grande instance, whose decisions can be appealed to the Court of Appeal (Cour d appel) and (or) in the court of cassation (Cour de cassation). In view of the complexity of the system of courts considering tax disputes, at the junction of the two branches of the judiciary, the Tribunal des conflits was created to resolve disputes over jurisdiction between general and administrative courts.

The results of the study of foreign experience allow us to conclude that the effectiveness of the application of the administrative procedure can be ensured under the condition of interaction between the tax authority and the taxpayer when considering tax disputes, as well as with the active use of private law methods in settling their relationship. As a retired judge of the German Financial Court, Professor D. Birk rightly notes: “At present, it cannot be said that the state has made a decision and the taxpayer is accepting it. There has been a rethink: the case should be discussed with the taxpayer, and, if possible, without involving the court, an acceptable solution should be found.” It is this change in the legal culture that will allow resolving the conflict at the pre-trial stages of its development. Provisions on the possibility of applying appropriate conciliation procedures contribute to the active interaction of the subjects of the dispute. Given the circumstances that, on the one hand, the state always has a fiscal interest, and, on the other hand, the intentions of the taxpayer are aimed at obtaining economic benefits and optimizing taxation, the means of peaceful settlement of the dispute are necessary and more effective. The prompt resolution of the dispute through reaching a compromise between the tax authority and the taxpayer leads to a quick and efficient flow of funds to the state budget. Long disputes entail significant time and financial costs for both parties. As a result, the resolution of the dispute may lead to the state of bankruptcy of the taxpayer and, as a result, to the inability to replenish the budget.

2. Analysis of practice and ways to improve the pre-trial settlement of tax disputes on the example of Primorsky Krai

1 Analysis of the results of pre-trial settlement of tax disputes

One of the most significant aspects of the activities of the tax authorities is control work aimed at administering the process of fulfillment by taxpayers of their tax obligations. Based on the results of the control work, additional taxes are charged that are not paid by taxpayers on their own, as well as the corresponding penalties and penalties.

Taxpayers who do not agree with the conclusions of the tax authorities on the need to pay additionally assessed amounts file objections. If the claims of taxpayers are justified, then the tax authorities withdraw part of their claims during the pre-trial settlement of disputes: at the stage of considering objections or during the subsequent filing of complaints.

So, in 2013, the taxpayers of the region, by filing objections, as well as by oral statements of arguments under consideration in the inspection of inspection materials, challenged 2894 acts of tax authorities, the contested amount amounted to 4.191 billion rubles. (more than 57% of the entire disputed amount, or 2.427 billion rubles, is due to disputes with 38 taxpayers, additional charges on inspections of which amounted to more than 25 million rubles).

Based on the results of the consideration of objections by the tax authorities in the reporting period, the taxpayers' arguments were satisfied in the amount of 1.202 billion rubles, which amounted to 28.7% of the amounts disputed by the taxpayers.

Basically, taxpayers' claims based on the results of consideration of objections are recognized as justified in connection with the submission by taxpayers of documents that were not previously submitted for verification (48% of the total satisfied amount) or fines are reduced due to mitigating circumstances (17%).

Taxpayers who do not agree with the conclusions of the territorial tax authorities, submit appropriate complaints to a higher tax authority (Department).

In the reporting period, 840 complaints were considered by the tax authorities of the region, of which 40 complaints were left without consideration (4.8% of those received for consideration). These are complaints, when filing which the taxpayers did not comply with the relevant requirements: the complaint was not signed or filed by an unauthorized person (there is no power of attorney for the representative), filed with the passage of the deadline provided for by Article 139 of the Tax Code of the Russian Federation for filing a complaint on the subject and grounds similar to the one previously considered, etc.

In a number of cases, the measures taken by the inspectorates to resolve the disputed situation were the basis for the withdrawal of the complaint by the taxpayers. In 2013, prior to the decision on the complaint by the tax authority, the applicants withdrew 62 complaints (7.4% of those received for consideration).

In general, 712 complaints were considered by the tax authorities of Primorsky Krai in 2013, the amount disputed by taxpayers amounted to 3.774 billion rubles. Of the considered complaints, 311 taxpayers' complaints were fully or partially satisfied in the amount of 281.618 million rubles. The overall percentage of satisfaction of complaints in terms of number was 43.7%, in terms of amount - 7.5%.

At the same time, in 2013, the courts of first instance issued 354 decisions on taxpayer claims filed against the tax authorities (for comparison, 712 complaints were considered in pre-trial procedure), of which 158 decisions were on disputes that did not pass pre-trial settlement (taxpayers challenged the actions (inaction) of tax bodies related to enforcement, with refusals to return (offset) overpaid (collected) amounts, state registration, demand for documents, suspension of operations on accounts, etc.).

The above data testify to the effective work of the tax authorities of the region in the pre-trial settlement of tax disputes.

In general, it should be noted that the pre-trial settlement procedure is still an effective tool for resolving emerging tax disputes, since it does not require additional financial costs from the applicant (to pay a fee or involve a lawyer), and also allows you to resolve the situation in a shorter time compared to the timing of court proceedings. This allows us to hope that in the future taxpayers will give preference to pre-trial rather than judicial settlement of disputes with tax authorities.

The pre-trial procedure for settling disputes with tax authorities is an effective legal mechanism that can significantly reduce the burden on the judicial system while maintaining the quality of protection of the rights and legitimate interests of taxpayers.

As a rule, the basis for the emergence of disputes between taxpayers and tax authorities are the results of the control work of tax authorities.

In case of disagreement with the conclusions of the tax authorities on the need to pay additionally assessed amounts of taxes, penalties, fines, taxpayers have the right to submit written objections to the tax authority in accordance with the established procedure, or to give explanations on the relevant tax control act. If the arguments of the taxpayers are justified, then the relevant claims of the tax authorities in the pre-trial settlement of disputes are removed at the stage of consideration of tax control materials.

So, according to the results of 9 months of 2014, by submitting written objections (petitions, explanations), as well as by verbally stating arguments at the stage of consideration of tax control materials, taxpayers challenged 2279 acts of tax authorities for a total disputed amount of 4908 million rubles.

Taxpayers' arguments based on the results of consideration of materials from tax audits and other forms of control were fully or partially satisfied in 2,073 cases for a total of 1,391 million rubles, which amounted to 28.3% of the disputed amount.

Basically, taxpayers' claims based on the results of consideration of objections are recognized as justified in connection with the submission by taxpayers of documents that were not previously submitted for verification (51% of the total satisfied amount), or due to the presence of circumstances mitigating liability for committing a tax offense, fines are reduced (12% ).

Thus, for 9 months of 2014, 607 complaints were under consideration, of which 23 complaints were left without consideration (3.8% of those received for consideration). These are complaints, when filing which the taxpayers did not comply with the relevant requirements: the complaint was not signed or filed by an unauthorized person (there is no power of attorney for a representative), filed with a missed appeal period, etc.

In a number of cases, the measures taken by the inspectorates to resolve the disputed situation were the basis for the withdrawal of the complaint by the taxpayers. During the reporting period before the tax authority took a decision on the complaint, the applicants withdrew 26 complaints (4.3% of the complaints received).

In general, for 9 months of 2014, the tax authorities of the Primorsky Territory considered 510 complaints, the amount disputed by the taxpayers amounted to 2024 million rubles. Of these, 316 complaints were fully or partially satisfied for a total of 775 million rubles. The overall percentage of satisfaction of complaints in terms of number was 62.0%, in terms of amount - 38.3%.

Courts of first instance in Primorsky Krai issued 181 decisions on claims filed by taxpayers against the tax authorities (2.8 times more disputes were considered in pre-trial procedure), of which 45 decisions were on disputes that did not pass pre-trial settlement (taxpayers challenged actions (inaction) tax authorities related to forced collection, refusals to return (offset) overpaid (collected) amounts, demand for documents, etc.).

Thus, as an element of control over the legality and validity of the activities of the tax authorities, the results of work on the settlement of disputes with taxpayers in the pre-trial procedure for 9 months of 2014 indicate its sufficient effectiveness.

2 Analysis of law enforcement practice on the issues of pre-trial resolution of tax disputes

Analysis of the results of the settlement of tax disputes in the pre-trial procedure can be carried out according to the following indicators:

Percentage of satisfaction of objections

Percentage of Satisfied Amounts

Consider these indicators for 3 years.

Table 2.1. Analysis of the results of dispute settlement at the stage of consideration of audit materials

Indicators of 2012 2013 2013 2014 Togllenicolism of compiled Acts Sweat results The results of tax inspections 775006374375128-2372 SPOSSIENED ACTS %217521542056-119 Acts of disputed acts2,83,82,7-0,0.1 have considered the Assits 2,1752 1542056-119-19-5UTAYS 1,481,561 5611 311314U )68,472,568.70.3Amount in dispute (thousand rubles)2 367 0413 349 8342664953297912Satisfied amount (thousand rubles)854 678736 597749120-105558Percentage of satisfaction in sum terms (%)36.12228.1-8

According to the table, in 2013 taxpayers challenged 2,154 acts of tax authorities out of 63,743 acts of tax authorities drawn up on the basis of effective tax audits, or 3.8% of the number of acts drawn up on effective tax audits (in 2012, 2,175 acts of tax authorities from 77,500 acts of tax authorities drawn up on effective tax audits, or 2.8% of the number of acts drawn up on effective tax audits).

Fig. 2.1 - Dynamics of considered and satisfied objections, pcs.

The amount of disputed claims under the said acts of tax audits amounted to 3,349,834 thousand rubles, for the same period in 2012 the amount of disputed claims under acts of tax audits amounted to 2,367,041 thousand rubles.

Fig. 2.2 - Dynamics of the disputed and satisfied amounts, thousand rubles.

The amount of satisfied claims (in full, in part) based on the results of consideration of tax audit materials amounted to 736,597 thousand rubles, or 22% of the disputed claims on tax audit reports; for the same period in 2012, the amount of satisfied claims on tax audit reports amounted to 854,678 thousand rubles. rub., or 36.1% of the disputed claims under the acts of tax audits.

Compared to 2012, in 2013 the number of acts challenged by taxpayers at the stage of consideration of audit materials by submitting objections decreased by 1%, and the satisfied amount on objections also decreased by 14%.

The specified decrease gives a positive characteristic to the control blocks of the Inspections on the carried out control measures.

The amount of disputed claims under the said acts of tax audits for 2014 amounted to 2,664,953 thousand rubles, for the same period in 2013 the amount of disputed claims under acts of tax audits amounted to 3,349,834 thousand rubles. 5%.

According to the results of consideration of objections of taxpayers for 2014, out of 2056 objections, the arguments of taxpayers were satisfied in 1413 cases (921 in full, 492 in part) in the amount of 749,120 thousand rubles, or 68.7% in quantitative terms (28.1% in total terms), for the same period in 2013, out of 2,154 objections, the arguments of taxpayers were satisfied in 1,561 cases (989 in full, 572 in part) in the amount of 736,597 thousand rubles, or 72.5% in quantitative terms (22% in total terms), it should be noted that the decrease Satisfied objections of taxpayers in quantitative terms amounted to 9.5%, however, there is a slight increase of 1.7% of satisfied objections of taxpayers in total terms.

Fig. 2.3 - Results of consideration of objections of taxpayers

The specified analysis of the results of the work on the consideration of taxpayers' objections by the tax authorities of the district indicates that a decrease in the number of satisfied taxpayers' objections is observed by 3.8% (from 72.5% in 2013 to 68.7 in 2014).

However, it should be noted that by 5.9% there is an increase in the amounts satisfied on the objections of taxpayers.

Fig. 2.4 - Satisfaction of disputes of taxpayers

Thus, in general, the work on the settlement of tax disputes at the territorial level, as part of the consideration of tax audit materials, requires taking measures to improve its quality component, as well as to improve the quality component when carrying out tax control measures in general by complying with the tax legislation of the Russian Federation and monitoring arbitration practice prevailing at the time of making decisions, taking into account the position of the Federal Tax Service brought to the District Inspectorate by cover letters to the decisions of the Office and quarterly reviews.

The main causes of tax disputes identified at the stage of consideration of audit materials:

identification in the actions of the taxpayer for the conclusion of civil law contracts of signs of unreasonable tax benefits due to the increase in expenses that reduce the tax base for corporate income tax and for unreasonable reimbursement of value added tax from the budget;

in connection with the entry into force of the amendments made by the Federal Law of the Russian Federation No. 229-FZ to the first part of the Tax Code of the Russian Federation (hereinafter referred to as the Code, the Tax Code of the Russian Federation), in Art. 119 of the Code in terms of increasing the size of the tax sanction from 100 rubles to 1000 rubles for late submission of a tax return;

non-submission by taxpayers during tax audits of all documents they have, including those that confirm the expenses they have incurred, as a result of which additional taxes, tax sanctions and penalties are charged, which taxpayers dispute by sending objections to the audit report;

the situation with postal items that are dated by post offices on the taxpayer's receipt as today's date, and are sent the next day, thus, the tax authority, upon receipt of the envelope, registers the date of dispatch and, if a violation of the deadline is detected, fixes a tax offense under Art. 119 of the Code;

The main reasons for accepting taxpayers' objections based on the results of consideration of audit materials are:

accounting of documents submitted by the taxpayer, including those that confirm the expenses incurred by them, as a result of which there is a recalculation of additionally assessed amounts of taxes, tax sanctions and penalties;

accounting of receipts submitted by taxpayers, registers of registered letters and letters of post offices regarding the date of sending;

accounting for judicial practice, including judicial acts of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation on this issue, adopted in favor of taxpayers;

error of tax authority employees, which led to incorrect dating of the submission of the tax return;

identification during the consideration of objections of circumstances excluding bringing to tax liability;

consideration and consideration of circumstances mitigating liability that existed at the time the offense was committed, or until it was discovered by the taxpayer independently in their interconnection;

identification during the consideration of objections, errors of employees of the tax authority, which led to the incorrect calculation of tax sanctions and penalties.

The reasons for satisfying the requirements of taxpayers based on the results of consideration of objections to acts can be divided into subjective (i.e., those that are the result of improper performance by officials of the Inspectorate of their duties) and objective.

Subjective reasons for satisfying the requirements of taxpayers based on the results of consideration of objections to acts:

) errors of the department of work with taxpayers of the Inspectorate when registering reports;

) other reasons (incorrect qualifications were given to the circumstances identified during the audit, the rules of law were incorrectly applied, the amount of tax (penalties, tax sanctions) was incorrectly calculated, etc.).

Objective reasons for satisfying the requirements of taxpayers based on the results of consideration of objections to acts:

) submission of additional documents;

) identification of mitigating circumstances excluding liability;

) taking into account the established stable arbitration practice on the issues under consideration.

Analysis of the results of the considered applications and complaints of individuals and legal entities about the actions (inaction) of the officials of the Inspections (subject to consideration in inspections), to the total number of applications and complaints received from individuals and legal entities about the actions of officials of the inspection (subject to consideration in inspections) is 0% (complaints to the Inspectorate about the actions (inaction) of officials were not received, and therefore, the analysis of their reasons was not carried out.

3 Possible ways to improve the tax dispute resolution system

The strategic goal is to develop out-of-court mechanisms for resolving tax disputes that allow seeking the resolution of tax disputes without the participation of a court, including the development of conciliation procedures, other out-of-court procedures that allow eliminating conflict situations when applying to the Federal Tax Service without the need to file a written complaint, increasing the transparency of the consideration procedure complaints, simplification of ways of interaction, creation of conditions and incentives for resolving disputes out of court.

Achieving the strategic goal means implementing a qualitatively new approach to the tax dispute settlement system, which ensures:

control over the legality and validity of decisions made by lower tax authorities;

achieving high efficiency and objectivity in resolving tax disputes;

creation of information and analytical databases of decisions made as a result of consideration of complaints, analysis of judicial practice in tax disputes that have passed into the judicial stage of resolution;

reduction of potential causes of tax disputes (prevention of tax disputes);

development of conciliation procedures;

maximum efficiency and comfort in resolving tax disputes out of court, non-confrontational approach;

improving informing taxpayers about the procedure for pre-trial settlement of tax disputes, its advantages;

motivation of taxpayers to out-of-court resolution of tax disputes;

wide use of modern information technologies.

The main directions of development of pre-trial resolution of tax disputes in the system of tax authorities of the Russian Federation include:

transition from a pre-trial procedure for resolving tax disputes to an out-of-court procedure, settlement of disputes without the participation of a court, including the development of conciliation procedures;

further reduction in the number of complaints filed with the tax authorities in connection with the adoption of decisions based on the results of tax audits or in connection with the actions (inaction) of tax authorities officials;

improvement of the regulatory framework, timely preparation of proposals for changing tax legislation;

development of differentiated mechanisms for resolving tax disputes (depending on the stage, universal and simplified procedures, amicable agreements, etc.);

improvement of Internet services that facilitate the filing of complaints and tracking the stages of their consideration, the development of electronic services and services. The target result is the receipt of complaints and documentary evidence through Internet services on the official website of the tax authority (with user authentication), as well as the participation of taxpayers in the consideration of complaints (if necessary) using conference calls;

informing taxpayers about the advantages of the pre-trial procedure for resolving tax disputes over litigation. Using the feedback mechanism through the current survey of taxpayers;

proper and prompt response to admitted departmental violations in order to improve the quality of tax administration;

creation of information bases with the main provisions and positions of decisions on complaints, as well as consolidated analytical materials, including those based on the results of an operational analysis of judicial practice;

constant monitoring and analysis of the content of tax disputes, problems in organizing the activities of territorial tax authorities;

development of the institute of professional tax consulting.

Conclusion

tax dispute legal conflict

In modern conditions, taxpayers are increasingly interacting with the tax authorities. One of the types of such interaction is the pre-trial settlement of tax disputes.

Tax disputes with tax authorities arise, as a rule, in connection with the disagreement of taxpayers with the results of control measures taken against them, as well as from illegal actions (inaction) of tax authorities officials.

The current tax legislation provides for a set of procedures carried out by officials of the tax authorities in an administrative manner in order to resolve a tax dispute.

Currently, the tax service is developing along the path of creating the most favorable conditions for interaction with the taxpayer in strict compliance with the law.

The Tax Code of the Russian Federation provides for the possibility of settling tax disputes at several stages and levels:

) submission by the person held liable of written objections to the act of tax control, as well as the participation of the taxpayer or his representative in the consideration of tax control materials;

) appeal against decisions of tax authorities, as well as actions (inaction) of their officials in a higher tax authority;

) appeal of the taxpayer to the court.

Since 01.01.2014, a number of important changes have been made to the Tax Code of the Russian Federation, one of which is the introduction of the obligation to go through the pre-trial stage of appealing to a higher tax authority, that is, disagreements arising from tax legal relations should be settled first through the appeal mechanism, and only then, if the taxpayer does not agree with the result of the consideration of the complaint - to the court.

The relative advantages of the pre-trial order are:

saving time is a faster way to resolve conflicts;

cost savings - due to the absence of a state fee, a reduction in legal costs.

The pre-trial procedure is designed to quickly eliminate obvious violations of the rights and interests of citizens and organizations, thereby monitoring the quality of the work of tax authorities through complaints and statements from taxpayers. Analysis of reports and statements of taxpayers about the difficulties they face in tax legal relations, generalization of the results of consideration of objections and complaints on the alleged facts of violation of their rights, allow timely informing the management of the tax authorities about the problems in the practice of applying the legislation on taxes and fees, develop preventive measures aimed at reducing cases of violation of the rights of taxpayers.

Thus, pre-trial settlement implements the following tasks:

improving the quality of work of tax authorities;

reducing the burden on the judiciary;

reducing the costs of taxpayers and the efficiency of tax disputes.

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Zdmitrovich Alexandra Sergeevna, Marchenkova Veronika Yurievna, Tsvetkova Natalya Evgenievna,

3rd year students of the Faculty of Law

Federal State

educational budget institution

higher professional education

"Financial University

under the Government of the Russian Federation"

Contact phone: 8 968 895 30 32

Email: lexy[email protected] mail. en

Section: Legal support of the financial activities of the state

Pre-trial settlement of tax disputes: current state and development prospects.

This article is devoted to the problems arising in the field of pre-trial settlement of tax disputes. The paper notes the shortcomings of the existing mechanism, analyzes the current state, prospects and suggests ways to solve problems that arise in practice.

This article is devoted to problems arising in the area of ​​pre-trial settlement of tax disputes. In this work are noted shortcomings of the existing mechanism, analyzed the current situation, prospects and ways of solving problems arising in practice.

Keywords: pre-trial procedure for the settlement of tax disputes, mediation, tax authorities, taxpayers, appeals, desk and field audits, tax legislation, draft law.

The pre-trial procedure for the settlement of tax disputes has been in force in the Russian Federation since the beginning of 2009. This procedure includes appealing against decisions made as a result of audits by tax authorities to a higher authority.

Pre-trial settlement of tax disputes is a set of measures provided for by the legislation of the Russian Federation on taxes and fees, the legislation of the Russian Federation on the consideration of citizens' appeals and internal departmental acts of measures carried out by officials of tax authorities in an administrative manner in order to resolve a tax dispute before the court.

To begin with, we should briefly consider the existing procedure for pre-trial settlement of tax disputes.

Currently, in accordance with Art. 101 of the Tax Code of the Russian Federation, pre-trial regulation is carried out on offenses identified during desk and on-site inspections.

According to paragraph 5 of Art. 101.2 of the Tax Code of the Russian Federation, the decision to bring / to refuse to bring to responsibility for committing an offense in the tax sphere can be challenged in court only after it has been appealed to a higher tax authority. The term for applying to the court is calculated from the day when the person in respect of whom this decision was made became aware of its entry into force.

It follows from this that the taxpayer, when applying to the court, must confirm the fact that the process of pre-trial settlement of the dispute has passed: a document should be attached to the application to the court, which confirms the fact of applying to a higher tax authority regarding the appeal of an already made decision. If such information is not provided, the court does not consider the application. However, the refusal does not deprive the applicant of the possibility of re-applying after going through the pre-trial settlement of the dispute.

There is no mechanism for considering complaints and making decisions on them in the Tax Code of the Russian Federation. Articles 140, 141 regulate only the main points. So, based on the results of consideration of an appeal against a decision or a complaint against an inspection act, a higher tax authority or a higher official has the right: - to leave the decision unchanged, and the complaint without satisfaction; - cancel or change the decision in whole or in part and make a new decision (cancel the inspection report); - cancel the contested decision and terminate the proceedings. The decision of the tax authority (official) on the complaint shall be made within one month from the date of its receipt. This period may be extended by no more than 15 days to request the necessary documents (information). The decision is communicated in writing to the person who filed the complaint within three days from the date of its adoption (clause 3, article 140 of the Tax Code of the Russian Federation). If a higher tax authority has violated the term for consideration of an appeal, the organization, without waiting for the results of consideration of its complaint, has the right to go to court to appeal against the decision of a lower tax authority.

World practice gives us many examples of legislative consolidation of mediation. So in the USA, Canada, Great Britain and Germany, 80% of disputes are resolved in the mediation procedure, without going to court, without the intervention of the police or other government agencies. The current experience of Germany in this area has once again made it possible to verify the high efficiency of this method for pre-trial dispute resolution.

AT Germany mediation is harmoniously integrated into the justice system. Pre-trial consideration and resolution of tax disputes by appealing against decisions of tax authorities is regulated by the Regulation (law) "On the procedure for collecting taxes, fees and duties" (part seven, § 347-367) dated March 16, 1976 (as amended on July 30, 2009) . All decisions taken by the tax and financial departments and local financial authorities on the basis of the Regulations “On the procedure for collecting taxes, fees and duties” can be appealed in a pre-trial way. Thus, in Germany, unlike the Russian Federation, the procedure for pre-trial appeal extends not only to decisions to prosecute or refuse to prosecute for committing a tax offense, but literally to all acts adopted by the tax administration. It should be noted that pre-trial appeal is a mandatory procedure for filing a complaint with the appropriate court.

A pre-trial appeal against an administrative act is drawn up in the form of an objection (protest). It is addressed to the tax authority that issued the contested act. The decision on the objection is taken by a special unit for the consideration and resolution of pre-trial complaints of the same tax authority. The objection must be admissible in essence and term, as well as justified.

Pre-trial appeal, as mentioned above, must be carried out on time. If a pre-trial complaint is received by the tax authority with a delay, it is refuted without consideration.

The deadline within which the tax authority is obliged to consider the complaint is not established by law. If the consideration is delayed, the taxpayer has the right to file a complaint with the court against the inaction of the tax authority. But this can be done no earlier than 6 months after the filing of the objection or due to extraordinary circumstances. As a result, only the court, by its decision, has the right to set a deadline for the tax authority to consider a pre-trial complaint.

Despite the filing of an objection, the appealed act is enforced after a one-month period. In order to avoid this, the taxpayer has the right to file a petition to suspend the execution of the contested act. The tax authority may also suspend the execution of the decision until the final consideration of the objection on its own initiative. However, this procedure is applicable only in the framework of pre-trial appeal.

Another good example is the USA. In America, negotiations are more common, and many of them actually end successfully, namely, only about 10% of disputes reach court.

In practice, approximately 95% of disputes between the Tax Service and taxpayers are resolved out of court, by mutual agreement.

The US Internal Revenue Service is a structural subdivision of the US Department of the Treasury, however, given the existence of rule-making competencies, as well as independence in the exercise of its powers, it should be considered an agency.

Within the framework of the service, a specialized department has been allocated that considers complaints from taxpayers as part of the pre-trial procedure. The department is formally included in the service itself, but in fact it does not depend on it. If the taxpayer disagrees with the decision, a “ninety-day letter” is sent to him, notifying him of the impossibility of further resolution of the dispute within the pre-trial regime.

Within the framework of the administrative procedure, taxpayers have the right to appeal against any actions and decisions of the Internal Revenue Service, and at various stages of the settlement procedure, agreements may be concluded that may change the tax obligations of taxpayers that have legal effect.

The practice of out-of-court appeal allows you to settle tax claims fairly and promptly, reducing the burden on the courts. According to Diane Ryan, head of the IRS Office of Appeals, taxpayers are actively using the right to file a complaint with the Office to resolve tax claims that have arisen. The Office guarantees independence in the consideration of the appeal and its timely resolution. The taxpayer has the right to receive clarifications on the process of consideration of his complaint.

Speaking directly about the procedure for considering a complaint, it is worth saying that it begins with an examination of the circumstances of the case, relevant legislation and judicial precedents. After that, the risk of bringing the case to court is analyzed. If the chances of winning the case are less than 30%, then the office will give the taxpayer the opportunity to settle it. If it is not possible to reach an agreement, then the dispute proceeds to the next stage - an administrative appeal. Administrative appeals in such disputes are dealt with by a special division of the tax service, consisting of tax lawyers. Again, a special tax audit unit seeks to settle the dispute without judicial intervention. This is how 90-95% of incoming disputes are resolved.

The court is the third stage of the dispute. A taxpayer who is not satisfied with the results of the two stages has 90 days to decide whether to pay the amounts claimed by the tax office or challenge them in court. It should be noted that at all stages of the consideration of a lawsuit, up to the adoption by the Court of a decision, the parties have the opportunity to agree, to come to an amicable agreement.

The experience of foreign countries shows that taxpayers seek to resolve disputes out of court, as litigation entails additional costs. In addition, taxpayers trust pre-trial regulation bodies, they objectively consider complaints received. In the Russian Federation, many citizens do not trust the tax authorities, considering them deliberately biased, in contrast to the court. It is necessary to ensure transparency, objectivity and independence of the consideration of complaints. And also give taxpayers the opportunity to sue the inaction of the tax authorities, as is done in Germany.

The tax department analyzed the practice of applying pre-trial appeals against tax disputes that has existed for three years. The result of the analysis was an indicator that indicates a reduction in the number of tax disputes brought to court. Every year, the number of proceedings in courts on the claims of tax authorities to taxable persons decreases by 15-20%. Over the three years of the pre-trial audit of the review of decisions by higher authorities, the flow of court cases involving fiscals has almost halved. This is proved by the official statistics of the Supreme Arbitration Court of the Russian Federation. Moreover, disputes related to decisions on tax audits account for no more than a third of all tax disputes.

For other types of disputes, it is not always possible to resolve the situation before the court. There are several reasons for this. One of them is that the process of appealing to a higher tax authority is mandatory only if the taxpayer is going to appeal in court the decision that was made as a result of an on-site or desk audit. The next one is that filing a claim with the court is possible only within three months from the date when the taxpayer learned about the violation of his rights (clause 4, article 198 of the Arbitration Procedure Code of the Russian Federation). Fear of missing this deadline forces him to apply directly to the court. In this regard, the tax authorities have filed an initiative to radically change the functioning system of pre-trial settlement of tax disputes. To date, the Ministry of Finance has developed a draft law on making the necessary amendments to tax legislation.

One of the most important changes is the introduction of amendments to Article 138 of the Russian Tax Code. According to them, a mandatory procedure for appealing against all non-normative acts of tax authorities, as well as actions or inaction of their officials, is established. It will not only help reduce the workload of the courts, but also expand the range of possible actions of taxpayers in protecting their legitimate rights and interests. In addition, the project involves the introduction of a number of norms in the Tax Code of the Russian Federation stipulating an appeal. As a result of the amendments, business entities and private entrepreneurs do not lose the right to file a secondary complaint, if consideration of such was denied due to expired deadlines or non-confirmation of the authority of the taxpayer's representative, as well as due to the lack of required signatures (clause 3 of article 139.3 of the Tax Code RF). Those. the procedure for filing complaints will become less formalized.

The amendments also introduced the conditions for the taxpayer to provide additional documents that were not provided to a lower tax authority or a higher authority with justification for the impossibility of their timely submission. Note, at the moment, the absence of this wording has created a loophole for unscrupulous taxpayers who formally went through the stages of pre-trial settlement, presenting the necessary documents only directly to the court. Thus, difficulties were created in the work of the tax authorities in resolving disputes. The time limits for filing an appeal have been adjusted. The time for preparing and filing an appeal is increased from 10 to 30 days, the time for filing other complaints - from three months to one year. In our opinion, the term for filing an appeal is now insufficient for the preparation of a reasoned complaint by the taxpayer, which again leads to the formality of pre-trial regulation. The tax authority is given the right to consider claims on appeals within up to 30 days, this period can be extended up to 60 days. The term for consideration of other complaints is 15 days, which can be extended up to 30 days. In addition, it is proposed to replace the current article 101.2 of the Tax Code of the Russian Federation (which regulates the entry into force of decisions on holding (refusing to hold) liable for committing a tax offense) with a new rule (Article 101.2-1 of the Tax Code of the Russian Federation), taking into account the changes made to appeal procedure.

The state of pre-trial settlement of tax disputes at the moment is far from ideal. The upcoming changes should lead to an improvement in the work of the settlement mechanism, which, in spite of everything, has shown itself positively in practice. This procedure simplifies the resolution of disputes for both tax authorities and taxpayers, taking into account the interests of both parties.

Introduction

Section number 1. Building materials and their behavior under fire conditions.

Topic 1. Basic properties of building materials, research methods and evaluation of the behavior of building materials in a fire.

Topic 2. Stone materials and their behavior in a fire.

Topic 3. Metals, their behavior in a fire and ways to increase resistance to its effects.

Topic 4. Wood, its fire hazard, methods of fire protection and evaluation of their effectiveness.

Topic 5. Plastics, their fire hazard, methods of its research and evaluation.

Topic 6. Rationing of fireproof use of materials in construction.

Section 2. "Building structures, buildings, structures and their behavior in a fire."

Topic 7. Initial information about space-planning and design solutions for buildings and structures.

Topic 8. Initial information about the fire hazard of buildings and building structures.

Topic 9. Theoretical foundations for the development of methods for calculating the fire resistance of building structures.

Topic 10. Fire resistance of metal structures.

Topic 11. Fire resistance of wooden structures.

Topic 12. Fire resistance of reinforced concrete structures.

Topic 13. Behavior of buildings, structures in a fire.

Topic 14. Prospects for improving the approach to determining and standardizing the requirements for fire resistance of building structures.

Introduction

The structure of the discipline, its significance in the process of professional training of the graduate of the Institute. Modern trends in design, construction, operation, buildings and structures.

The national economic significance of the activities of firefighters in monitoring the fireproof use of building materials and the use of fire-resistant building structures in the design, construction, reconstruction of buildings and structures.

Section 1. Building materials and their behavior in a fire.

Topic 1. Basic properties of building materials, research methods and evaluation of the behavior of building materials in a fire.

Types, properties, features of the production and use of basic building materials and their classification. Factors affecting the behavior of building materials in a fire. Classification of the basic properties of building materials.

Physical properties and indicators that characterize them: porosity, hygroscopicity, water absorption, water-gas and vapor permeability of building materials.

The main forms of communication of moisture with the material.

Thermophysical properties and indicators characterizing them.

The main negative processes that determine the behavior of inorganic building materials in a fire. Methods for experimental evaluation of changes in the mechanical characteristics of building materials in relation to fire conditions.

Processes occurring in organic materials under fire conditions. Fire-technical characteristics of building materials, methods of their research and evaluation.

Practice 1. Determining the basic properties of some building materials and predicting the behavior of these materials in a fire.