LETTER OF THE FEDERAL TAX SERVICE

of February 8, 2013 No. ND-4-8/1968 @

About charge of percent for violation of term of return of the amounts of excessively paid (collected) tax

The Federal Tax Service in connection with numerous requests of tax authorities and taxpayers on statement telecommunication channels on offsetting (return) of excessively paid tax reports the following about possibility of provision.

According to Item 10 of article 78 of the Tax Code of the Russian Federation (further - the Code) if return of the amount of excessively paid tax is performed with violation of terms, stipulated in Clause 78 Codes, tax authority on the amount of excessively paid tax which is not returned at the scheduled time, the percent which are subject to payment to the taxpayer for each calendar day of violation of term of return are charged.

The interest rate is accepted to equal refunding rate of the Central bank of the Russian Federation operating in days of violation of term of return.

According to Item 5 of article 79 of the Code the amount of excessively collected tax is subject to return with the percent added on it within one month from the date of receipt of the written application (the application submitted electronically with the strengthened qualified digital signature on telecommunication channels) of the taxpayer about return of the amount of excessively collected tax.

Percent on the amount of excessively collected tax are charged from the date of, the collection following behind day, till day of the actual return.

The interest rate is accepted to the equal refunding rate of the Central bank of the Russian Federation operating these days.

At the same time the current version of articles 78 and 79 of the Code does not contain specifying on proceeding from what number of days - 360, 365 or 366 - calculation of the corresponding percent is made.

At the same time in Item 2 of the Resolution of Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of 08.10.1998 N 13/14 "About practice of application of regulations of the Civil code of the Russian Federation on interest for using others money" (further - the Resolution N 13/14) is explained that when calculating of the annual interests which are subject to payment for refunding rate of the Central bank of the Russian Federation the number of days in year (month) is accepted to equal respectively 360 and 30 days if other is not established by the agreement of the parties, obligatory rules, and also business customs for the parties.

Court practice demonstrates to what courts find possible to estimate percent in the amount of 1/360 refunding rates according to Item 2 of the Resolution N 13/14.

Due to stated, FNS of Russia believes reasonable to estimate percent in the amount of 1/360 refunding rates for each calendar day of violation of term of return of the amount of excessively paid (collected) tax.

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