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LETTER OF THE FEDERAL TAX SERVICE OF THE RUSSIAN FEDERATION

of November 21, 2012 No. AC-4-2/19576

About some questions connected taking into account the specified tax declarations in case of decision making by results of tax audit

The Federal Tax Service in connection with appeals of territorial tax authorities in case of decision making by results of tax audit of the specified tax declarations provided after the end of tax audit of primary (previous) tax declaration reports the following about accounting treatment.

According to Item 1 of article 81 of the Tax Code of the Russian Federation (further - the Code) in case of detection by the taxpayer in the tax declaration submitted to them to tax authority:

a) the fact of not reflection or incompleteness of reflection of data, and also mistakes leading to understating of the tax amount which is subject to payment, the taxpayer shall make necessary changes to the tax declaration and provide the specified tax declaration to tax authority;

b) false information, and also mistakes which are not leading to understating of the tax amount which is subject to payment, the taxpayer has the right to make necessary changes to the tax declaration and to provide the specified tax declaration to tax authority.

Thus, the Code does not provide the right or obligations of the taxpayer to provide the specified tax declaration on the violations revealed by tax authority.

It is directly provided in development of the specified regulations by procedures for filling of specific tax declarations that in case of recalculation by the taxpayer (tax agent) of tax amounts results of the tax audits which are carried out by tax authority for that tax period on which the taxpayer (tax agent) makes recalculation of tax amounts are not considered. Such provisions, in particular, contain in Item 2 of the Procedure for the filling of the tax declaration on the value added tax approved by the order of the Ministry of Finance of the Russian Federation of 15.10.2009 No. 104n and also in Item 3.2 of the Procedure for the filling of the tax declaration on the income tax of the organizations approved by the order of FNS of Russia of 22.03.2012 No. MMB-7-3/174 @.

At the same time the offer to the taxpayer to make necessary corrections to documents of business and tax accounting, specified in substantive provisions of the decision on attraction (about refusal in attraction) to responsibility for making of tax offense, does not mean obligation of the taxpayer to provide the specified tax declarations as tax declarations do not belong to documents of tax accounting, and represent statements of the taxpayer for the taxation objects, for the gained income and the made expenses, for sources of the income, for tax base, tax benefits, for the estimated tax amount and (or) for other data forming the basis for calculation and payment of specific taxes (Item 1 of article 80 of the Code). Therefore, the specified offer to the taxpayer shall not be formulated as the offer to provide the specified tax declarations (calculations).

At the same time, the Code does not limit the taxpayer in time of submission of the specified tax declarations. This right of the taxpayer to provision of the specified tax declaration is corresponded by power of tax authority on its check. At the same time the specified tax declaration can be provided after the end of tax audit of primary (previous) tax declaration on the same tax and for the same tax (reporting) period.

The specified tax declaration is checked:

1) within cameral tax audit;

2) within a carried-out exit tax audit (in case of its representation within the corresponding exit check) except as specified, specified in Item 1 of this letter, or within again appointed according to item 4 or Item 10 of article 89 of the Code exit (repeated exit) tax audit.

In each case of the specified tax declaration it is performed individually, proceeding from content of the changes made to it. Verification of the specified declaration shall be directed to the maximum clarification of all changes and the related circumstances. At the same time it is necessary to consider change not only declaration total, but also change of other indicators of the declaration creating tax base and influencing the total sum of tax which is subject to payment based on this declaration.

Proceeding from the provisions of the Code regulating questions of conducting tax audits, and also the rights and obligations of tax authorities when holding tax control measures in their system communication depending on the moment of submission of the specified tax declaration and other circumstances, the operations procedure of tax authority in case of receipt of the specified tax declaration in each case will differ.

At the same time dates of termination of tax audits are important.

Code fixed terms of the end of exit and cameral tax audits:

a) day of the end of exit tax audit according to Item 15 of article 89 of the Code is day when checking constitute the reference about performed;

b) the moment of the end of cameral tax audit is the expiration stipulated in Item 2 articles 88 of the Code of three-months term from the date of submission of the tax declaration by the taxpayer or the moment of its termination determined by the date specified in the act of tax audit depending on what came earlier.

1. The specified tax declaration (calculation) is provided during exit tax audit.

For the purpose of exception of parallel procedures of exit check and cameral check concerning the same tax and for the same tax period and exceptions of excessive encumbrance of the taxpayer by the procedure of cameral check in view of the carried-out exit inspection, in that case if during exit tax audit the specified declaration on that tax and for that period on which (for which) exit inspection is carried out is provided, tax control measures for the purpose of its check are held within exit check unless the specified declaration is provided:

1) on the value added tax and in it alleged right on compensation of tax (Article 176, 176.1 Codes);

2) on excise and in it alleged right on compensation of excise (article 203 of the Code).

In these two cases of regulation of the legislation on taxes and fees require obligatory conducting independent cameral tax audit of such specified tax declaration as the Code provides features of registration of results of these categories of checks.

The head of tax authority will organize work so that the department of cameral tax audits had information on a carried-out exit tax audits and could inform timely department of exit tax audits on the facts of submission of the corresponding tax declarations.

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