1. The amount of overpaid tax is subject to offset against the taxpayer's forthcoming payments on this or other taxes, repayment of arrears on other taxes, arrears on penalties and fines for tax offenses or refund to the taxpayer in the manner prescribed by this article.
The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for penalties accrued on the relevant taxes and fees.
1.1. The amount of overpaid insurance premiums is subject to offset against the relevant budget of the state off-budget fund of the Russian Federation, to which this amount was credited, against the payer's forthcoming payments on this premium, debts on the relevant penalties and fines for tax offenses, or return to the payer of insurance premiums in the manner prescribed this article.
2. The offset or refund of the amount of overpaid tax shall be made by the tax authority without charging interest on this amount, unless otherwise established by this article.
3. The tax authority is obliged to inform the taxpayer of each fact of excessive payment of tax and the amount of overpaid tax that has become known to the tax authority within 10 days from the date of discovery of such a fact.
In the event that facts are discovered that indicate a possible excessive payment of tax, at the suggestion of the tax authority or the taxpayer, a joint reconciliation of calculations for taxes, fees, insurance premiums, penalties and fines may be carried out.
(see text in previous edition)
(see text in previous edition)
4. The offset of the amount of overpaid tax against the taxpayer's forthcoming payments for this or other taxes is carried out on the basis of a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer by decision of the tax authority .
(see text in previous edition)
The decision to set off the amount of overpaid tax against the taxpayer's forthcoming payments shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of an act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
5. The offset of the amount of overpaid tax against the payment of arrears on other taxes, arrears in penalties and (or) fines payable or recoverable in the cases provided for by this Code shall be made by the tax authorities independently no more than three years from the date of payment of the said amount. tax.
(see text in previous edition)
In the case provided for by this paragraph, the decision to set off the amount of overpaid tax shall be made by the tax authority within 10 days from the day it discovers the fact of excessive payment of tax or from the day the tax authority and the taxpayer sign the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out, or from the date of entry into force of the decision of the court.
The provision provided for by this paragraph does not prevent the taxpayer from submitting to the tax authority a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) on offsetting the amount of overpaid tax against the arrears (debts) penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax against the arrears and arrears on penalties and fines shall be made within 10 days from the date of receipt of the said application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
(see text in previous edition)
6. The amount of overpaid tax is subject to refund upon a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer within one month from the date of receipt by the tax authority of such an application.
(see text in previous edition)
The refund to the taxpayer of the amount of overpaid tax if he has an arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as fines subject to collection in the cases provided for by this Code, is made only after the amount of the overpaid tax is offset against the arrears (debts) .
6.1. A refund of the amount of overpaid insurance premiums for mandatory pension insurance is not made if, according to the information of the territorial management body of the Pension Fund of the Russian Federation, information on the amount of overpaid insurance premiums for mandatory pension insurance is presented by the payer of insurance premiums as part of the information of individual (personalized) accounting and taken into account on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) registration in the system of compulsory pension insurance.
(see text in previous edition)
7. An application for a credit or refund of the amount of overpaid tax may be filed within three years from the date of payment of the said amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees.
(see text in previous edition)
An application for a credit or refund of the amount of overpaid tax shall be submitted to the tax authority at the place of registration of the taxpayer.
8. The decision to refund the amount of overpaid tax shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
Paragraph one of this paragraph, an instruction to refund the amount of overpaid tax, issued on the basis of a decision of the tax authority to refund this amount of tax, is subject to direction by the tax authority to the territorial body of the Federal Treasury for the refund to the taxpayer in accordance with the budget legislation of the Russian Federation.
9. The tax authority is obliged to inform the taxpayer of the decision taken to set off (refund) amounts of overpaid tax or the decision to refuse to set off (refund) within five days from the date of the relevant decision.
(see text in previous edition)
The specified message is transmitted to the head of the organization, an individual, their representatives personally against receipt or in another way confirming the fact and date of its receipt.
The amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible member of this group in the manner prescribed by this article.
In the event of termination of the agreement on the creation of a consolidated group of taxpayers, the amounts of overpaid tax on the profit of organizations for a consolidated group of taxpayers that are not subject to offset (uncredited) against the arrears available for this group are subject to offset (refund) by the organization that was the responsible participant in the consolidated group of taxpayers, according to her statement.
The refund to the responsible participant of the consolidated group of taxpayers of the amount of overpaid income tax on the consolidated group of taxpayers shall not be made if he has a arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as on fines subject to collection in the cases provided for by this Code.
10. If the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of this article, the tax authority shall accrue interest on the amount of overpaid tax that is not refunded within the established period, payable to the taxpayer, for each calendar day of violation of the deadline return.
The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the repayment period was violated.
11. The territorial body of the Federal Treasury that has refunded the amount of overpaid tax shall notify the tax authority of the date of the refund and the amount of money returned to the taxpayer.
12. If the interest provided for in paragraph 10 of this article has not been paid to the taxpayer in full, the tax authority shall decide on the return of the remaining amount of interest, calculated on the basis of the date of the actual return to the taxpayer of the amounts of overpaid tax, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the date of return and the amount of money returned to the taxpayer.
Before the expiration of the period established by paragraph one of this clause, an instruction for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, shall be sent by the tax authority to the territorial body of the Federal Treasury for the return.
Recent innovations that have changed Art. 78 of the Tax Code of the Russian Federation are associated with the inclusion of a new chapter in the text of the code since 2017, describing the rules for working with insurance premiums, which were previously subject to the law “On insurance premiums…” dated July 24, 2009 No. 212-FZ. Inclusion in the Tax Code of the Russian Federation equated insurance premiums with tax payments and forced them to comply with all other requirements of the code. In this regard, additions were made to the general provisions of the Tax Code of the Russian Federation, reflected in Part 1, indicating the mandatory application of them in relation to insurance premiums.
Was no exception and Art. 78 of the Tax Code of the Russian Federation, in which not only there were indications that it is applicable to insurance premiums, but also new provisions appeared related to the rules for the return of precisely such payments as insurance premiums:
- overpayment of contributions intended for a particular fund is credited against payments to the same fund or returned to the payer (clause 1.1);
- overpayment on payments to the OPS may not be returned if the FIU reports that it is reflected in the statements and posted to individual personal accounts (clause 6.1).
Additionally, the article introduced the provisions that:
- the amounts paid in the repayment of debts on payments formed due to evasion from their payment are not considered an overpayment (clause 13.1);
- the rules established by the article are also applicable to interest accrued in favor of the budget in case of recognition of the amount of VAT unlawfully reimbursed in a declarative manner based on the results of a desk audit (clause 14);
- the rules established by the article are also applicable when refunding VAT to foreign legal entities (clause 16).
In 2018, only a few paragraphs of this article were updated:
- P. 5 Art. 78 of the Tax Code says that the amount of unpaid tax is credited by the tax authorities towards the arrears on another tax for no more than 3 years from the date of payment of the tax.
- Clause 17 of Article 78 of the Tax Code is supplemented with the rule that no more than 1 month should pass from the moment a decision is made to return the income tax withheld earlier to its transfer to the taxpayer.
Who does Article 78 of the Tax Code of the Russian Federation apply to?
Art. 78 of the Tax Code of the Russian Federation is relevant both to taxpayers (payers of contributions) and to tax agents. It applies both to overpaid taxes, advance payments on them, penalties, fines, and to refundable taxes.
Tax offset (refund) is possible:
- firm;
- to an individual.
How does an overpayment occur?
There are a lot of ways to create a real overpayment. It can be:
- excess of the total amount of tax paid in advance payments over its amount reflected in the declaration for the tax period (profit, property, transport, land, excises, simplified tax system);
- filing a return for reimbursement (VAT);
- submission of an updated declaration (calculation) with a decrease in the total amount after paying the tax according to the previous version of reporting;
- recalculation in the direction of reducing personal income tax withheld from an individual;
- erroneous payment of a larger amount of tax or contribution;
- recalculation to reduce the amount of paid interest after the submission of two clarifications, the first of which increases, and the second reduces the amount of the accrued payment;
- a court decision, the conclusion of which is a statement of the fact of excessive payment of tax payments;
- changes in legislation, as a result of which the tax (contribution) is considered to be overpaid.
How is overpayment detected?
Usually the tax payer knows about the presence of an overpayment from his own credentials, provided that they are correct. As a rule, an overpayment occurs either at the time of filing the declaration, or when the tax is actually paid.
At the same time, the court does not consider accounting errors to be a valid reason for justifying the overpayment (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 26, 2011 No. 18180/10).
If the overpayment is also obvious to the IFTS, it must promptly (within 10 business days from the date of discovery) inform the taxpayer about this or invite him to conduct a reconciliation (clause 3 of article 78 of the Tax Code of the Russian Federation).
Since 2016, reporting on personal income tax has become mandatory and quarterly. Therefore, data on the resulting overpayment for personal income tax appear in the IFTS in the same manner as for other taxes.
Read about the rules for filling out personal income tax returns in the article. "The procedure for filling out the form 6-NDFL from 2018 - an example" .
The fact of overpayment of taxes can be established by the court if:
- the presence of an overpayment became indisputable only after the publication of letters from the Ministry of Finance of Russia (Resolution of the Federal Antimonopoly Service of the Volga District dated April 18, 2013 No. A65-18995 / 2012);
- the overpayment was revealed during an on-site inspection (Decree of the Federal Antimonopoly Service of the North-Western District dated 05.08.2011 No. A56-31885/2010);
- by a court decision, the contract was declared null and void, which resulted in the fact of an overpayment (Decree of the Federal Antimonopoly Service of the Volga District dated April 23, 2013 No. A55-16126 / 2011);
- the decision of the inspectorate on additional tax assessment was declared illegal (Decree of the Federal Antimonopoly Service of the Moscow District dated November 15, 2012 No. A40-94026 / 11-91-401);
- the court found that there was no obligation to pay tax (decree of the Federal Antimonopoly Service of the West Siberian District dated 05.08.2011 No. A81-4526/2010);
- the court ordered the inspection to recognize the fact of overpayment (Decree of the Federal Antimonopoly Service of the Moscow District dated 02.02.2012 No. A40-27537 / 11-91-123);
- the refusal of the Federal Tax Service Inspectorate for compensation was declared invalid (Decree of the Federal Antimonopoly Service of the Moscow District dated August 24, 2011 No. KA-A40 / 8845-11-P);
- collection orders were declared invalid (Decree of the Federal Antimonopoly Service of the Urals District dated January 12, 2009 No. F09-10148 / 08-C3);
- the fact of the overpayment became apparent after the formation of law enforcement practice (Resolution of the Federal Antimonopoly Service of the Central District dated March 22, 2012 No. A35-4258 / 2011);
From the date of establishing the fact of overpayment, the countdown of the period for applying for a tax refund may depend.
How to apply for a credit (refund)?
Applications for credit and return have approved forms. From 01/09/2019, the forms approved by the order of the Federal Tax Service of 02/14/2017 No. ММВ-7-8/182@ as amended by the order of the Federal Tax Service of 11/30/2018 No. ММВ-7-8/670@ are used.
You can download application forms for the return and offset of taxes (fees, fines, penalties) on our website.
Look for a sample of filling out a return application.
There are several ways to submit an application (clauses 4 and 6 of article 78 of the Tax Code of the Russian Federation):
- on paper;
- according to TCS;
- through a personal account registered on the website of the Federal Tax Service.
Format for electronic applications approved. Order of the Federal Tax Service of Russia dated May 23, 2017 No. ММВ-7-8/478@.
How is the application deadline determined?
The deadline for submitting an application, in accordance with paragraph 7 of Art. 78 Tax Code of the Russian Federation , is equal to 3 years from the date of payment of the corresponding amount. However, this approach is inapplicable in some cases. For example, when:
- The tax is paid in advance payments, and its total amount for the tax period is determined only according to the data of the declaration, the period must be counted from the date of submission of the declaration for the tax (non-reporting) period (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.28. 07.09.2015).
More about this in the article. “From what moment is the period for the return of an overpayment of income tax calculated?” .
- The overpayment was the result of the transfer of tax amounts by several payment documents. In this case, the period can be determined in two ways: for each payment separately (decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 29, 2004 No. 2046/04, the Federal Antimonopoly Service of the Moscow District of November 1, 2008 No. KA-A40 / 10257-08) or by the date of the last payment ( Decree of the Federal Antimonopoly Service of the Volga District dated October 6, 2009 No. A55-16617 / 2008).
- For the amount claimed for reimbursement, the application for which was not submitted by the taxpayer before the decision of the IFTS on the return of money by the taxpayer (clause 14 of article 78 and clause 11.1 of article 176 of the Tax Code of the Russian Federation), the period is counted from the date of the decision of the IFTS.
Read more about applying for a VAT refund here. "How to make an application for a VAT refund (sample, form)" .
What is the procedure for offset (return)?
Having considered the application of the taxpayer, the IFTS, within 10 working days from the date of its receipt, decides on the appropriate action (paragraphs 5 and 8 of article 78 of the Tax Code of the Russian Federation). The positive outcomes of this decision will be:
- offset of the overpayment made on the date of the decision on the offset;
- refund of the overpayment no later than 1 month from the date of receipt of the application for a refund (clause 6, article 78 of the Tax Code of the Russian Federation).
In some cases, there may be features of the rules for counting deadlines. For example, if the overpayment is indicated in the 3-NDFL declaration and an application for a refund is submitted at the same time, then the return period will begin not from the date of submission of the application, but from the date of the actual completion of the in-house audit of the declaration or after the expiration of such verification (letter of the Federal Tax Service of Russia dated October 26 .2012 No. ED-4-3/18162@).
The offset of the discovered overpayment by the IFTS can be done independently, but this does not deprive the taxpayer of the right to file an application, due to his own point of view on the repayment of the existing arrears (clause 5, article 78 of the Tax Code of the Russian Federation). The opinion of the applicant in this case is a priority (Decree of the Federal Antimonopoly Service of the East Siberian District dated September 20, 2012 No. A33-15051 / 2011).
What is the main return rule contains paragraph 6 of Art. 78 of the Tax Code of the Russian Federation?
It is possible to return the overpayment in the presence of arrears in other payments to the same budget only after closing such arrears by offsetting from the amount of the existing overpayment (clause 6, article 78 of the Tax Code of the Russian Federation). The IFTS will make this offset itself (clause 5, article 78 of the Tax Code of the Russian Federation), and the taxpayer will receive only the balance of the amount claimed by him for a refund if it exceeds the amount of the existing arrears that can be settled by offset.
The presence of such arrears is not an obstacle for the taxpayer to send an application to the IFTS for the return of the overpayment (letter of the Ministry of Finance of Russia dated 07.09.2011 No. 03-02-07 / 1-317).
The arrears on other payments may also reduce the amount of the overpayment that the payer wants to set off against future tax payments in accordance with the opportunity provided by paragraph 4 of Art. 78 of the Tax Code of the Russian Federation.
There is one exception to the rule on conducting a set-off to pay off the arrears of the IFTS before returning the overpayment to the taxpayer: it does not apply if bankruptcy proceedings are opened against the taxpayer (Resolution of the Federal Antimonopoly Service of the East Siberian District dated November 27, 2012 No. A19-4247 / 2012).
What are the features of the personal income tax return?
The return of the amounts of personal income tax, which is withheld at the place of work, as a rule, occurs in a special order (clause 1 of article 231 of the Tax Code of the Russian Federation). It is carried out by the employer at the request of the employee, and such a refund, if necessary, is also made to an already dismissed employee.
If the employer refuses to return the overpayment, it can be recovered through the courts. More about this - in the material .
In some cases, subject to the submission by the taxpayer to the IFTS form 3-NDFL, the return is made by the inspection, guided by the rules of Art. 78 of the Tax Code of the Russian Federation:
- the employer has ceased to exist;
- the deduction for children at the place of work was not declared;
- the intention to use the property or social (for the cost of treatment or education) deduction arose later than the year the right to it appeared;
Recall that thanks to Federal Law No. 85-FZ dated 06.04.2015, since 2016 social deductions for education and treatment can be received at the place of work.
- there are grounds for applying a social deduction for charity and payments to the FIU, provided only to the IFTS;
- an individual taxpayer reporting income directly to the IFTS clarifies reporting.
The tax refund period (month) will be counted from the date of completion of the verification of the 3-NDFL declaration, regardless of the date the taxpayer submitted an application for a refund (letters of the Ministry of Finance of Russia dated May 15, 2017 No. 03-02-08 / 30790, No. 03-02-08 / 30802 , Federal Tax Service of Russia dated October 26, 2012 No. ED-4-3 / 18162@).
When does the IFTS pay interest on delay and how is it calculated?
If the IFTS violates the return period established by paragraph 6 of Art. 78 of the Tax Code of the Russian Federation (1 month), then the taxpayer has the right to receive penalties for each calendar day of delay in payment (clause 10 of article 78 of the Tax Code of the Russian Federation), including the day the refund is actually received. This rule also applies to the return of excessively withheld personal income tax (letters of the Ministry of Finance of Russia dated 06/08/2015 No. 03-04-07/33140 and the Federal Tax Service of Russia dated 07/01/2015 No. BS-4-11/11486@).
Their amount is calculated according to the refinancing rate of the Central Bank of the Russian Federation (which since 2016 has been equated with the key rate) corresponding to the days of the violation, based on the fact that the length of the year is considered to be 360 days, and the length of the month is 30 days (letter of the Federal Tax Service of Russia dated February 08, 2013 No. ND-4-8/1968@).
At the same time, there is a resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 21, 2014 No. 11372/13, in which the court indicates that interest for late repayment should be calculated in the general manner: from the actual number of days in a year (365 or 366). In this regard, the Ministry of Finance (letter No. 03-02-08/54846 dated October 29, 2014) expressed its intention to revise the interest calculation methodology established by Order No. MM-3-1/683@ of the Federal Tax Service dated December 25, 2008 (from 1/300 of the refinancing), but so far it has remained the same.
Who refunds the overpayment when moving to another IFTS?
Art. 78 of the Tax Code of the Russian Federation does not contain requirements for re-submitting an application for a refund when transferring to another IFTS. If the return was not made at the old place of registration, then it must be made by the new IFTS within the time limits established by the Tax Code of the Russian Federation. This is explained by the fact that the return is carried out at the expense of the budget, and not from the funds of a specific IFTS (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 30, 2006 No. 1334/06).
Can I get a refund of an overpayment that is more than 3 years old?
Article 78 of the Tax Code of the Russian Federation is devoted to the procedure for out-of-court settlement of issues of overpayment to the budget, when the fact of its existence is established quite easily and corresponds to the limitation period calculated from the date officially recognized by the IFTS as the day from which such a calculation is possible.
However, situations often arise when the taxpayer finds out about the presence of an overpayment with a delay. In this case, he can take the opportunity to calculate the statute of limitations from the day when he became aware of the violation of his rights (clause 1, article 200 of the Civil Code of the Russian Federation), and file a lawsuit with the court (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2009 No. 12882 / 08, letter of the Ministry of Finance of Russia dated March 17, 2011 No. 03-02-08 / 27).
The collection of all evidence confirming the reality of the late receipt of information about the presence of an overpayment will fall on the taxpayer.
Is the 3-year period interrupted by an act of reconciliation with the IFTS?
Art. 203 of the Civil Code of the Russian Federation contains a provision on the termination of the limitation period in the event of the implementation of actions assessed as recognition of a debt. One of these actions is the signing of the act of reconciliation.
There are no official clarifications from the Ministry of Finance or the Federal Tax Service regarding the act of reconciliation with the IFTS. And the courts have 2 points of view:
- the signing of the act of reconciliation with the Federal Tax Service Inspectorate does not affect the limitation period (decisions of the Federal Antimonopoly Service of the Moscow District of December 30, 2013 No. F05-16324 / 2013, the Central District of December 19, 2013 No. A23-1227 / 2013, the Ural District of August 16, 2013 No. F09-8107 /13, Volga region dated 08/07/2013 No. А55-30105/2012);
- the date of signing the act of reconciliation with the IFTS is recognized as the day when it became known about the presence of an overpayment (decisions of the Federal Antimonopoly Service of the Moscow District dated December 25, 2013 No. F05-16362 / 2012, the West Siberian District dated October 30, 2013 No. A75-10138 / 2012, the Central District dated 11.07 .2013 No. A48-1772 / 2012, North-Western District of May 13, 2013 No. A56-33073 / 20).
What happens to the unrefunded overpayment after the 3-year period?
If the 3-year period has expired, allotted by Art. 78 of the Tax Code of the Russian Federation, to offset (refund) the overpayment, then its amount can be debited (letter of the Federal Tax Service of Russia dated November 1, 2013 No. ND-4-8/19645@) for one of 3 reasons:
- by decision of the head of the IFTS in relation to taxpayers who have stopped reporting;
- by a court decision that refused to restore the term for the return of the overpayment;
- at the request of the taxpayer.
The Tax Code provides for procedures under which payers of certain fees can return the amounts of such fees overpaid to the budget or excessively collected by the state. The exercise of this right must be carried out in accordance with the provisions of certain articles of the Tax Code of the Russian Federation, first of all, 78 and 79. The first regulates the procedure for returning to the taxpayer and offsetting overpaid fees into current payments. The structure of this article assumes a rather detailed regulation of the relevant activities of the Federal Tax Service. The second article specifies the algorithm for the return of taxes that have been excessively collected. What are the specifics of the mentioned procedures? How is it right for a taxpayer to exercise his right to a refund of fees or offset them?
Purpose of Article 78
Art. 78 of the Tax Code of the Russian Federation - a source that regulates the procedure for offsetting or legally returning the amounts of taxes and other payments to the budget that are overpaid by one or another subject - a citizen or organization. Such scenarios can form if the taxpayer has calculated more tax than was necessary, or actually transferred to the budget an amount that exceeds what was required to be paid. It will be useful to study the structure of Art. 78 of the Tax Code of the Russian Federation separately on points.
Paragraph 1
This element of the article under consideration of the Tax Code of the Russian Federation includes provisions establishing that the amounts of excess taxes must be set off against the current obligations of a citizen or organization for a current budget obligation, repayment of arrears on other taxes, as well as debts for penalties and fines, or returned in the manner that regulated by the relevant article of the Tax Code of the Russian Federation. In the present in Art. 78, paragraph 1 of the Tax Code of the Russian Federation also states that the offset of excessive federal, regional and municipal taxes, as well as penalties on them, is carried out in correlation with similar types of budget obligations.
Point 2
The second paragraph of the article under consideration of the Tax Code of the Russian Federation includes provisions according to which the offset or refund of excess taxes must be carried out by the territorial division of the Federal Tax Service at the place of registration of the payer, unless other rules are included in the Tax Code of the Russian Federation. The point in question is Art. 78 also includes a provision under which the return of payments is generally carried out without accruing any interest.
Point 3
The next paragraph of the article under consideration includes provisions according to which the Federal Tax Service must inform the payer about the revealed facts of overpayment of certain taxes, as well as about the amounts thereof no later than after a period of 10 days after the discovery of excessive transfers. If the tax authorities are not sure that the overpayment has actually been made, but assume that it may be, they can offer the taxpayer to jointly reconcile the calculated indicators for the relevant payments.
Item 4
The point in question is Art. 78 establishes that in order to exercise the legal right to offset overpayments against current liabilities, the taxpayer must send a written application to the tax authority. This document can also be submitted in electronic form - provided that it can be signed with an enhanced qualified digital signature, or through the taxpayer's online account. The decision to credit the amount of excess taxes is made by the Federal Tax Service no later than after the expiration of a period of 10 days, after the department receives a relevant application from a citizen or organization, or from the date of signing by the Federal Tax Service and the payer of an act confirming the joint reconciliation of the payment of fees, if any. was carried out.
Item 5
Paragraph 5 of the article under consideration states that the offset of overpayments towards repayment of tax arrears should be carried out by the Federal Tax Service independently. An additional application to the tax office, therefore, in the general case, the subject of payment of fees does not need to be sent. The Federal Tax Service is obliged to comply with the requirements of the paragraph of Article 78 under consideration within a period of 10 days after the fact of overpayment is discovered, or from the date of signing by the Federal Tax Service and the taxpayer of an act confirming the joint reconciliation of payments. In some cases, the deadline for compliance with the relevant order is counted from the date of the court decision, if such was taken in connection with hearings on tax disputes.
The point in question is Art. 78 of the Tax Code of the Russian Federation includes provisions that establish that the taxpayer, despite the fact that this action is not mandatory by law, still has the right to send the application referred to above to the Federal Tax Service. This can be done, for example, in order to speed up the process of offsetting overpayments into future payments. In this case, the tax authorities must set off the corresponding amounts within a period not exceeding 10 days after receiving the document from the taxpayer, or from the day when the act on joint reconciliation of payments was signed, provided that such a reconciliation was carried out.
Item 6
Let us now consider how the return of overpayments to the budget is carried out. This procedure is regulated by paragraph 6 of Art. 78 of the Tax Code of the Russian Federation. The tax overpayment amount must also be returned by the Federal Tax Service to the payer upon a written application, which can be generated in electronic form, provided that it is signed using a qualified digital signature.
The Federal Tax Service is obliged to refund the tax no later than 1 month after receiving the relevant application. In the provisions of paragraph 6 of Art. 78 of the Tax Code of the Russian Federation also states that if a taxpayer submitting a request for a refund of overpayments to the Federal Tax Service has arrears, they are covered first. If a certain amount remains after the settlement of debts, a refund is possible.
Item 7
According to the norms of paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application to the Federal Tax Service sent by a taxpayer who intends to set off or legally return an overpayment of tax can be drawn up and transferred to the department within 3 years from the moment when the excess amount was paid to the budget, unless otherwise provided by regulatory acts related to the sphere of taxes and fees.
Item 8
In accordance with the paragraph under consideration, the Federal Tax Service must make a decision on compensation to a citizen or organization of overpaid fees within a period that does not exceed 10 days after receiving the application from the Federal Tax Service, or from the date of signing the reconciliation act by the department and the taxpayer, if any. In paragraph 8 of Art. 78 of the Tax Code of the Russian Federation also states that the instruction to return the corresponding overpayment, issued on the basis of the decision made by the Federal Tax Service to compensate for the corresponding amount, is sent by the Federal Tax Service to the Federal Treasury, an agency that, in turn, makes settlements with the applicant in accordance with the budget laws of the Russian Federation .
Item 9
According to the norms of paragraph 9 of Article 78 of the Tax Code of the Russian Federation, tax authorities are obliged to inform payers about the decision made on offsetting or refunding overpayments, which may consist in approving the implementation of this procedure or refusing to carry it out. The first or second activity must be carried out within a period not exceeding 5 days after the consideration of the issue. A notification from the Federal Tax Service is transmitted to the head of the company, an individual, their representatives against receipt or in another accessible way that can confirm the receipt of this information.
If we are talking about the interaction of the Federal Tax Service and a consolidated group of taxpayers, then the amount of tax overpayments must be set off or returned in favor of the responsible participant in the relevant association. If the agreement on its formation is terminated, then the refund or offset of fees is carried out at the request of the responsible subject. This operation is not carried out if the responsible participant included in the consolidated group has arrears, fines and other penalties to the budget.
Item 10
In accordance with the norms of paragraph 10 of Article 78 of the Tax Code of the Russian Federation, the amount subject to return or offset increases in correlation with the refinancing rate of the Central Bank, if settlements on it between the Federal Tax Service and the taxpayer are not made within the period specified in paragraph 6 of the article in question of the Tax Code of the Russian Federation .
Item 11
According to the norms of paragraph 11 of Article 78 of the Tax Code of the Russian Federation, the territorial structure of the Federal Treasury, which refunds tax overpayments, must notify the Federal Tax Service of when the due amount was actually transferred to the taxpayer and in what amount.
Item 12
If the interest that supplements the overpaid fee in accordance with the provisions of clause 10 of the article in question of the Tax Code of the Russian Federation is not transferred to the applicant in full, then the Federal Tax Service decides on compensation for the remaining ones, which are calculated based on the date the relevant amounts are actually credited to the taxpayer. This activity of the Federal Tax Service must be carried out no later than 3 days from the date of receipt from the Federal Treasury of information on the date of the return of funds, as well as on the amount thereof. The necessary Federal Tax Service, in turn, must send to the Federal Treasury.
Items 13 and 14
In accordance with paragraph 13 of the article under consideration of the Tax Code of the Russian Federation, the offset or compensation of overpayments of taxes must be made in Russian rubles. Paragraph 14 prescribes that the norms fixed in Article 78 of the Tax Code of the Russian Federation be applied not only to taxes, but also to other obligations: penalties, fines, and various fees. The relevant rules, fixed in Article 78, should also apply, based on the norms of paragraph 14, to the subjects of payment of fees to the budget and responsible participants in the consolidated groups of payers. The paragraph of Article 78 under consideration also establishes that the tax RF must also apply the relevant rules in the process of offsetting or refunding overpayments of VAT, which is subject to reimbursement in the manner prescribed by law.
Item 15
Paragraph 15 of Art. 78 of the Tax Code of the Russian Federation fixes the rule according to which the fact of indicating the subject as the owner of assets in a special declaration, which is submitted in accordance with the Federal Law "On voluntary declaration", as well as the transfer of such property to the actual owner cannot be the basis for recognizing certain payments to the budget redundant.
As follows from the norms contained in Article 78 of the Tax Code, the tax paid to the treasury is recognized as excessively collected due to additional charges on the fact of a tax audit or its voluntary payment by the taxpayer. Another scenario for the appearance of corresponding overpayments is a change in the tax base due to a court decision or an order from a higher structure of the Federal Tax Service.
Is it possible to refund tax under article 78 to non-residents of the Russian Federation?
Many payers are concerned about the question: can non-residents of the Russian Federation refund taxes overpaid to the budget? These are considered to be foreigners and citizens of Russia who live in the Russian Federation for less than half of the 365 days. As evidenced by expert materials on Art. 78 of the Tax Code of the Russian Federation with comments, this procedure is possible. Let's consider its nuances.
The main feature of the taxation of non-residents of the Russian Federation is that they pay personal income tax in the amount of 30%, while in the general case the fee is calculated at a rate of 13% of income. The need to return the relevant fee in the manner prescribed by the norms of Art. 78, may arise due to an incorrect definition and erroneous calculation of personal income tax at a rate of 30% instead of 13%. In general, the algorithm in accordance with which the return of overpayments to the budget in this case is the same as in the case of other grounds for applying this procedure. That is, the payer must be submitted to the Federal Tax Service, as prescribed by paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, application, after - wait for the decision by the tax authorities. It will be useful to consider how it should be compiled.
How to file a tax refund claim?
The application form for the legal return of overpayments from the state budget is generally unified. In the upper right part of this document, you must indicate to whom it is sent. In the general case, this is the head of the territorial IFTS for the municipality in which the taxpayer operates. So we write: “To the head of the IFTS for such and such a city or district.” Below you need to record from whom the application is sent. We write "From that." The next item is the indication of the applicant's passport data (series of the document, its number, date of issue, as well as the authority in which the document was issued). The tax refund application form must also contain the taxpayer's registration address - we fix it in the line below. Next, write in the middle of the page "Statement". Below we justify our appeal to the Federal Tax Service with a phrase like “In accordance with the norms of clause 6 of Art. 78 of the Tax Code of the Russian Federation, in connection with the overpayment of tax, I ask you to transfer the amount due for a refund to such and such a personal account.
Next, we fix the details of the corresponding bank account. These are most often: full name of the recipient, TIN, name of the bank, BIC, correspondent Below we put the date of the document, the signature and its transcript. What does an application for a refund of overpaid tax look like? A sample of this source might look like this:
Differences in the relevant application may be due primarily to the type of tax, fee, fine and other types of payments to the budget. So, personal income tax can be returned or, for example, as we noted above, VAT.
Articles 78 and 79 of the Tax Code of the Russian Federation: how are they related?
It can be noted that in the Tax Code there is an article very close to Art. 78 - 79. The Tax Code of the Russian Federation in it regulates the procedure for the return of amounts for taxes and other obligations that were overcharged. Let's take a look at its most notable points.
So, in paragraph 1 of Art. 79 states that the return of excess payments to the budget should be carried out only if before that the correct offset of the corresponding amount was made in favor of repaying possible arrears. If it turns out that there are none, then only in this case the Federal Tax Service will have to carry out the procedures that are provided for in Article 79 of the Tax Code of the Russian Federation. In accordance with the rules contained in paragraph 2 of Art. 79 of the Tax Code of the Russian Federation, the decision of the Federal Tax Service on the return of excess taxes to the payer must be made within a period that does not exceed 10 days after the department receives the application. Its form will be generally similar to that used in the case of the exercise of the right to set off payments overpaid to the state.
The Federal Tax Service, in the course of the refund procedure, as well as in the scenario when the overpaid tax is credited in accordance with Article 78, interacts with the Federal Treasury. So, tax authorities should send instructions to this department for the return of the corresponding amounts, which are formed on the basis of decisions of the Federal Tax Service. Taxpayers can send an application for the return of excess fees to the Federal Tax Service within 1 month from the moment they become aware of the facts of overpayments to the budget.
In some cases, the right to the implementation of appropriate compensation to the subjects of payment of fees must be proved in court. A statement of claim, the subject of which is confirmation of the legal grounds for a tax refund, can be drawn up within a period of 3 years from the date the taxpayer discovers the fact of excessive collection.
The Federal Tax Service must independently notify the fact that there is an excessively collected tax in the budget, as follows from the norms of clause 4. Art. 79 of the Tax Code of the Russian Federation, the subject of fulfilling obligations to the budget within a period that does not exceed 10 days after the relevant fact is established.
The amount of tax that is collected in the budget in excess of the required amount must be returned to the applicant, based on the norms of paragraph 4 of Art. 79 of the Tax Code of the Russian Federation, no later than 1 month from the date of sending the application to the Federal Tax Service in the prescribed form. Also, in some cases, interest is charged on top of it in correlation with the indicator of the Central Bank's refinancing rate.
If the subject of interaction with the Federal Tax Service is a consolidated group of enterprises, then the tax is returned to the accounts of the responsible participant in this association.
The territorial structure of the Federal Treasury must notify the Federal Tax Service of settlements with the taxpayer, as in the case of the procedure for offsetting excess taxes under Article 78 of the Tax Code of the Russian Federation.
1. The amount of overpaid tax is subject to offset against the taxpayer's forthcoming payments on this or other taxes, repayment of arrears on other taxes, arrears on penalties and fines for tax offenses or refund to the taxpayer in the manner prescribed by this article.
The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for penalties accrued on the relevant taxes and fees.
1.1. The amount of overpaid insurance premiums is subject to offset against the relevant budget of the state off-budget fund of the Russian Federation, to which this amount was credited, against the payer's forthcoming payments on this premium, debts on the relevant penalties and fines for tax offenses, or return to the payer of insurance premiums in the manner prescribed this article.
2. The offset or refund of the amount of overpaid tax shall be made by the tax authority at the place of registration of the taxpayer, unless otherwise provided by this Code, without accruing interest on this amount, unless otherwise established by this article.
3. The tax authority is obliged to inform the taxpayer of each fact of excessive payment of tax and the amount of overpaid tax that has become known to the tax authority within 10 days from the date of discovery of such a fact.
In the event that facts are discovered that indicate a possible excessive payment of tax, at the suggestion of the tax authority or the taxpayer, a joint reconciliation of calculations for taxes, fees, insurance premiums, penalties and fines may be carried out.
The paragraph is invalid. - Federal Law of July 27, 2010 N 229-FZ.
4. The offset of the amount of overpaid tax against the taxpayer's forthcoming payments for this or other taxes is carried out on the basis of a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer by decision of the tax authority .
The decision to set off the amount of overpaid tax against the taxpayer's forthcoming payments shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of an act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
5. The offset of the amount of overpaid tax against arrears on other taxes, arrears in penalties and (or) fines payable or recoverable in the cases provided for by this Code shall be carried out by the tax authorities independently.
In the case provided for by this paragraph, the decision to set off the amount of overpaid tax shall be made by the tax authority within 10 days from the day it discovers the fact of excessive payment of tax or from the day the tax authority and the taxpayer sign the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out, or from the date of entry into force of the decision of the court.
The provision provided for by this paragraph does not prevent the taxpayer from submitting to the tax authority a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) on offsetting the amount of overpaid tax against the arrears (debts) penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax against the arrears and arrears on penalties and fines shall be made within 10 days from the date of receipt of the said application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
6. The amount of overpaid tax is subject to refund upon a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer within one month from the date of receipt by the tax authority of such an application.
The refund to the taxpayer of the amount of overpaid tax if he has an arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as fines subject to collection in the cases provided for by this Code, is made only after the amount of the overpaid tax is offset against the arrears (debts) .
6.1. A refund of the amount of overpaid insurance premiums for mandatory pension insurance is not made if, according to the information of the territorial management body of the Pension Fund of the Russian Federation, information on the amount of overpaid insurance premiums for mandatory pension insurance is presented by the payer of insurance premiums as part of the information of individual (personalized) accounting and taken into account on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) registration in the system of compulsory pension insurance.
7. An application for a credit or refund of the amount of overpaid tax may be filed within three years from the date of payment of the said amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees.
8. The decision to refund the amount of overpaid tax shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
Before the expiration of the period established by paragraph one of this clause, an instruction to refund the amount of overpaid tax, issued on the basis of a decision of the tax authority to refund this amount of tax, is subject to direction by the tax authority to the territorial body of the Federal Treasury for the refund to the taxpayer in accordance with the budget legislation of the Russian Federation .
9. The tax authority is obliged to inform the taxpayer of the decision taken to set off (refund) amounts of overpaid tax or the decision to refuse to set off (refund) within five days from the date of the relevant decision.
The specified message is transmitted to the head of the organization, an individual, their representatives personally against receipt or in another way confirming the fact and date of its receipt.
The amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible member of this group in the manner prescribed by this article.
In the event of termination of the agreement on the creation of a consolidated group of taxpayers, the amounts of overpaid tax on the profit of organizations for a consolidated group of taxpayers that are not subject to offset (uncredited) against the arrears available for this group are subject to offset (refund) by the organization that was the responsible participant in the consolidated group of taxpayers, according to her statement.
The refund to the responsible participant of the consolidated group of taxpayers of the amount of overpaid income tax on the consolidated group of taxpayers shall not be made if he has a arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as on fines subject to collection in the cases provided for by this Code.
10. If the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of this article, the tax authority shall accrue interest on the amount of overpaid tax that is not refunded within the established period, payable to the taxpayer, for each calendar day of violation of the deadline return.
The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the repayment period was violated.
11. The territorial body of the Federal Treasury that has refunded the amount of overpaid tax shall notify the tax authority of the date of the refund and the amount of money returned to the taxpayer.
12. If the interest provided for in paragraph 10 of this article has not been paid to the taxpayer in full, the tax authority shall decide on the return of the remaining amount of interest, calculated on the basis of the date of the actual return to the taxpayer of the amounts of overpaid tax, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the date of return and the amount of money returned to the taxpayer.
Before the expiration of the period established by paragraph one of this clause, an instruction for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, shall be sent by the tax authority to the territorial body of the Federal Treasury for the return.
13. The offset or refund of the amount of overpaid tax and the payment of accrued interest shall be made in the currency of the Russian Federation.
13.1. Amounts of money paid to compensate for damage caused to the budgetary system of the Russian Federation as a result of the crimes provided for by Articles 198-199.2 of the Criminal Code of the Russian Federation shall not be recognized as amounts of overpaid tax and shall not be subject to offset or refund in the manner prescribed by this article.
14. The rules established by this article shall also apply to the offset or refund of overpaid advance payments, fees, insurance premiums, penalties and fines and apply to tax agents, payers of fees, payers of insurance premiums and the responsible member of a consolidated group of taxpayers.
The provisions of this article in relation to the return or offset of overpaid amounts of state duty shall be applied subject to the specifics established by Chapter 25.3 of this Code.
The rules established by this article shall also apply to the offset or refund of the amount of value added tax subject to reimbursement by decision of the tax authority, in the case provided for by paragraph 11.1 of Article 176 of this Code.
The rules established by this article shall also apply to the offset or return of the amounts of interest paid in accordance with paragraph 17 of Article 176.1 of this Code.
15. The fact of indicating a person as the nominal owner of property in a special declaration submitted in accordance with the Federal Law "On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amending certain legislative acts of the Russian Federation", and the transfer of such property to its actual owner are not in themselves grounds for recognizing as overpaid amounts of taxes, fees, penalties and fines paid by the nominal owner in respect of such property.
16. The rules established by this article shall also apply to amounts of overpaid value added tax subject to refund or offset to foreign organizations - taxpayers (tax agents) specified in paragraph 3 of Article 174.2 of this Code. The amount of overpaid value added tax to such organizations shall be refunded to an account opened with a bank.
1. The amount of overpaid tax is subject to offset against the taxpayer's forthcoming payments on this or other taxes, repayment of arrears on other taxes, arrears on penalties and fines for tax offenses or refund to the taxpayer in the manner prescribed by this article.
1.1. The amount of overpaid insurance premiums is subject to offset against the relevant budget of the state off-budget fund of the Russian Federation, to which this amount was credited, against the payer's forthcoming payments on this premium, debts on the relevant penalties and fines for tax offenses, or return to the payer of insurance premiums in the manner prescribed this article.
2. The offset or refund of the amount of overpaid tax shall be made by the tax authority at the place of registration of the taxpayer, unless otherwise provided by this Code, without accruing interest on this amount, unless otherwise established by this article.
3. The tax authority is obliged to inform the taxpayer of each fact of excessive payment of tax and the amount of overpaid tax that has become known to the tax authority within 10 days from the date of discovery of such a fact.
In the event that facts are discovered that indicate a possible excessive payment of tax, at the suggestion of the tax authority or the taxpayer, a joint reconciliation of calculations for taxes, fees, insurance premiums, penalties and fines may be carried out.
The third paragraph is no longer valid.
4. The offset of the amount of overpaid tax against the taxpayer's forthcoming payments for this or other taxes is carried out on the basis of a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer by decision of the tax authority .
The decision to set off the amount of overpaid tax against the taxpayer's forthcoming payments shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax authority and this taxpayer of an act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
5. The offset of the amount of overpaid tax against the payment of arrears on other taxes, arrears in penalties and (or) fines payable or recoverable in the cases provided for by this Code shall be made by the tax authorities independently no more than three years from the date of payment of the said amount. tax.
In the case provided for by this paragraph, the decision to set off the amount of overpaid tax shall be made by the tax authority within 10 days from the day it discovers the fact of excessive payment of tax or from the day the tax authority and the taxpayer sign the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out, or from the date of entry into force of the decision of the court.
The provision provided for by this paragraph does not prevent the taxpayer from submitting to the tax authority a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) on offsetting the amount of overpaid tax against the arrears (debts) penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax against the arrears and arrears on penalties and fines shall be made within 10 days from the date of receipt of the said application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
6. The amount of overpaid tax is subject to refund upon a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or submitted through the taxpayer's personal account) of the taxpayer within one month from the date of receipt by the tax authority of such an application.
The refund to the taxpayer of the amount of overpaid tax if he has an arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as fines subject to collection in the cases provided for by this Code, is made only after the amount of the overpaid tax is offset against the arrears (debts) .
6.1. A refund of the amount of overpaid insurance premiums for mandatory pension insurance is not made if, according to the information of the territorial management body of the Pension Fund of the Russian Federation, information on the amount of overpaid insurance premiums for mandatory pension insurance is presented by the payer of insurance premiums as part of the information of individual (personalized) accounting and taken into account on individual personal accounts of insured persons in accordance with the legislation of the Russian Federation on individual (personalized) registration in the system of compulsory pension insurance.
7. An application for a credit or refund of the amount of overpaid tax may be filed within three years from the date of payment of the said amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees.
8. The decision to refund the amount of overpaid tax shall be made by the tax authority within 10 days from the date of receipt of the taxpayer's application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out.
Before the expiration of the period established by paragraph one of this clause, an instruction to refund the amount of overpaid tax, issued on the basis of a decision of the tax authority to refund this amount of tax, is subject to direction by the tax authority to the territorial body of the Federal Treasury for the refund to the taxpayer in accordance with the budget legislation of the Russian Federation .
9. The tax authority is obliged to inform the taxpayer of the decision taken to set off (refund) amounts of overpaid tax or the decision to refuse to set off (refund) within five days from the date of the relevant decision.
The specified message is transmitted to the head of the organization, an individual, their representatives personally against receipt or in another way confirming the fact and date of its receipt.
The amounts of overpaid corporate income tax for a consolidated group of taxpayers are subject to offset (refund) to the responsible member of this group in the manner prescribed by this article.
In the event of termination of the agreement on the creation of a consolidated group of taxpayers, the amounts of overpaid tax on the profit of organizations for a consolidated group of taxpayers that are not subject to offset (uncredited) against the arrears available for this group are subject to offset (refund) by the organization that was the responsible participant in the consolidated group of taxpayers, according to her statement.
The refund to the responsible participant of the consolidated group of taxpayers of the amount of overpaid income tax on the consolidated group of taxpayers shall not be made if he has a arrears on other taxes of the corresponding type or debts on the relevant penalties, as well as on fines subject to collection in the cases provided for by this Code.
10. If the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of this article, the tax authority shall accrue interest on the amount of overpaid tax that is not refunded within the established period, payable to the taxpayer, for each calendar day of violation of the deadline return.
11. The territorial body of the Federal Treasury that has refunded the amount of overpaid tax shall notify the tax authority of the date of the refund and the amount of money returned to the taxpayer.
12. If the interest provided for in paragraph 10 of this article has not been paid to the taxpayer in full, the tax authority shall decide on the return of the remaining amount of interest, calculated on the basis of the date of the actual return to the taxpayer of the amounts of overpaid tax, within three days from the date of receipt of the notification of the territorial body of the Federal Treasury on the date of return and the amount of money returned to the taxpayer.
Before the expiration of the period established by paragraph one of this clause, an instruction for the return of the remaining amount of interest, issued on the basis of a decision of the tax authority to return this amount, shall be sent by the tax authority to the territorial body of the Federal Treasury for the return.
13. The offset or refund of the amount of overpaid tax and the payment of accrued interest shall be made in the currency of the Russian Federation.
13.1. Amounts of money paid as compensation for damage caused to the budgetary system of the Russian Federation as a result of crimes provided for by - 199.2 of the Criminal Code of the Russian Federation are not recognized as amounts of overpaid tax and are not subject to offset or refund in the manner prescribed by this article.
14. The rules established by this article shall also apply to the offset or refund of overpaid advance payments, fees, insurance premiums, penalties and fines and apply to tax agents, payers of fees, payers of insurance premiums and the responsible member of a consolidated group of taxpayers.
The provisions of this article regarding the return or offset of overpaid amounts of the state fee shall be applied subject to the specifics established.
The rules established by this article shall also apply to the offset or refund of the amount of value added tax subject to reimbursement by decision of the tax authority, in the case provided for.
The rules established by this article also apply to the offset or return of interest paid in accordance with.
15. The fact of specifying a person as the nominal owner of property in a special declaration submitted in accordance with the Federal Law "On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation", and the transfer of such property to its actual owner are not in themselves grounds for recognizing as overpaid amounts of taxes, fees, penalties and fines paid by the nominal owner in respect of such property.
16. The rules established by this article shall also apply to amounts of overpaid value added tax subject to refund or offset to foreign taxpayer organizations (tax agents) specified in . The amount of overpaid value added tax to such organizations shall be refunded to an account opened with a bank.
17. The rules on the refund of amounts of overpaid taxes established by this article shall also apply to the refund of amounts of previously withheld corporate profit tax that are subject to refund to a foreign organization in the cases provided for, taking into account the specifics established by this paragraph.
The decision to return the amount of previously withheld corporate income tax is made by the tax authority at the place of registration of the tax agent within six months from the date of receipt from a foreign organization of an application for the return of previously withheld tax and other documents specified in paragraph 2 of Article 312 of this Code.
The amount of previously withheld corporate income tax is subject to refund within one month from the date of the decision by the tax authority to refund the amount of previously withheld tax.
Commentary on Art. 78 Tax Code of the Russian Federation
Article 78 of the Tax Code of the Russian Federation establishes the rules for offsetting or refunding overpaid taxes, fines, and penalties.
Based on the interpretation of Art. 78 of the Tax Code of the Russian Federation, the amount of overpaid tax, penalty interest, fine is recognized as the amount paid by the taxpayer (tax agent) in the absence of his obligation to pay it (Resolution of the Federal Antimonopoly Service of the Urals District of January 23, 2014 N F09-14160 / 13).
According to paragraph 1 of Art. 78 of the Tax Code of the Russian Federation, offsetting the amounts of overpaid federal taxes and fees, regional and local taxes is carried out for the relevant types of taxes and fees, as well as for penalties accrued on the relevant taxes and fees.
It does not matter that the deadline for the upcoming tax payment (for which an overpayment was formed) occurs earlier than for other types of taxes: if the payer insists on this option in his application, then his requirement must be satisfied. However, the tax authority has the right to independently make a set-off if there is an arrears in other taxes (see paragraph 5 of article 78 of the Tax Code of the Russian Federation about this). The number of taxes against which a credit is made can be any.
The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for penalties accrued on the relevant taxes and fees.
That is, from the provisions of paragraph 1 of Art. 78 of the Tax Code of the Russian Federation it follows that they are applied in cases of excessive payment of federal taxes and fees, regional and local taxes, i.e. taxes established by Art. - .
Thus, by virtue of par. 2 p. 1 art. 78 of the Tax Code of the Russian Federation, federal taxes are offset against federal taxes, regional - against regional, local - against local.
For example, since in accordance with paragraph 1 of Art. 13 and VAT is a federal tax, and corporate property tax is regional, the amount of VAT overpaid by a taxpayer cannot be offset against the arrears in corporate property tax. Although at the same time, on the basis of paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, the taxpayer has the right to submit to the tax authority an application for the return of the overpaid amount of VAT (Letter of the Ministry of Finance of Russia dated December 30, 2011 N 03-07-11 / 362).
At the same time, taxes paid in accordance with the legislation of foreign states to the budgets of these states are not taxes established by the Tax Code of the Russian Federation and are not paid to the budgets of the budgetary system of the Russian Federation.
That is, for the purposes of legislation on taxes and fees, taxes paid in accordance with the legislation of foreign states to the budgets of these states are not overpaid and, therefore, the provisions of Art. 78 of the Tax Code of the Russian Federation do not apply to legal relations on their offset (Letter of the Ministry of Finance of Russia dated July 8, 2013 N 03-08-13 / 26324).
The amount of overpaid tax can also be used to pay off the arrears or returned to the taxpayer. Looking ahead, we point out that the return procedure is provided for in paragraphs 7 - 10 of Art. 78 of the Tax Code of the Russian Federation, this will be discussed below. At the same time, one should distinguish.
The offset or refund of taxes is carried out by the tax office, where the organization or entrepreneur is registered.
In accordance with paragraph 3 of Art. 78 of the Tax Code of the Russian Federation, the tax authorities are obliged to inform the taxpayer about each fact of overpaid (collected) tax that has become known to the tax authority within 10 days from the date of discovery of such a fact.
The form of such a notice was approved by the Order of the Federal Tax Service of Russia dated December 25, 2008 N MM-3-1 / 683@ "On the creation of an information resource for the results of work on offsets and returns" (Appendix N 6).
Before making a set-off or refund, they reconcile the calculations for taxes, fees, penalties and fines (paragraph 2, clause 3, article 78 of the Tax Code of the Russian Federation). Please note: the Tax Code of the Russian Federation states: it can be carried out, but in practice this almost always happens.
Based on paragraphs 2, 4 of the commented article, the following circumstances should be borne in mind:
a) as a general rule, the tax inspectorate conducts a set-off (on account of upcoming payments):
by the type of tax for which the overpayment took place;
on the basis of a written application of the payer. In this application, you must indicate your TIN, the amount of overpaid tax, the type of tax for which the applicant is asking for a credit;
b) the decision of the tax authority on offset:
must be accepted within 10 days from the date on which the payer's application is received;
Paragraph 4 of Art. 78 of the Tax Code of the Russian Federation, the deadline for the tax authority to take a decision on offsetting the amounts of overpaid tax is 10 days.
At the same time, according to paragraph 4 of Art. 78 of the Tax Code of the Russian Federation (as amended by Law N 347-FZ, which enters into force on July 1, 2015), the offset of the amount of overpaid tax against the taxpayer's forthcoming payments for this or other taxes is carried out on the basis of a written application (application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or presented through the personal account of the taxpayer) of the taxpayer by decision of the tax authority.
However, there are exceptions to these rules. So, if an arrears are paid off on account of an overpayment of tax - the amount of taxes not paid within the period established by the legislation on taxes and fees (clause 5, article 78 of the Tax Code of the Russian Federation), then the offset is made by the tax authorities independently. This also applies to cases where the overpaid tax is used to pay off debts on penalties and fines.
In this case, the decision to offset the amount of overpaid tax is made by the tax authority within 10 days from the date of:
detection of the fact of excessive tax payment;
or from the date of signing by the tax authority and the taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out;
or from the date of entry into force of the decision of the court.
The above provision does not prevent the taxpayer from submitting to the tax authority a written application (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or, from July 1, 2015, submitted through the taxpayer’s personal account) on offsetting the amount of overpaid tax against repayment of arrears (debts on penalties, fines). In this case, the decision of the tax authority to set off the amount of overpaid tax against the arrears and arrears on penalties and fines shall be made within 10 days from the date of receipt of the said application of the taxpayer or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of taxes paid by him, if such a joint reconciliation was carried out (paragraph 3, clause 5, article 78 of the Tax Code of the Russian Federation, as amended by Law N 347-FZ).
The refund of the amount of overpaid tax is regulated by clause 6 of the commented article.
Firstly, in order to refund the amount of overpaid tax, a written application is required (an application submitted in electronic form with an enhanced qualified electronic signature via telecommunication channels or, from July 1, 2015, submitted through the taxpayer's personal account) of the taxpayer. You can submit it within 3 years from the date of payment of the specified amount (clause 7, article 78 of the Tax Code of the Russian Federation). At the same time, it should be taken into account that the 3-year period is calculated in calendar years (Article 6.1 of the Tax Code of the Russian Federation on the procedure for calculating terms). The application is considered within one month from the moment it is received. The countdown of the monthly period starts from the next (after the day of filing the application) day. The day of submission is determined by the date indicated on the application itself, or by the date of posting (if the application is sent by registered mail).
At the same time, we note that the Ruling of the Constitutional Court of the Russian Federation of June 21, 2001 N 173-O states that the norm contained in paragraph 7 of Article 78 of the Tax Code of Russia allows the taxpayer to present to the tax authority justified and therefore requirements subject to unconditional satisfaction, without resorting to judicial protection of their legitimate interests. At the same time, this rule does not prevent a citizen, if the specified period is missed, to apply to the court for the return of the overpaid amount from the budget in civil or arbitration proceedings, and in this case, the general rules for calculating the limitation period apply - from the day when the person found out or should have found out about the violation of their right (clause 1, article 200 of the Civil Code of the Russian Federation). Thus, the challenged normative provision, which is an integral part of Art. 78 of the Tax Code of the Russian Federation, addressed to the tax authorities, does not contain grounds for restricting the constitutional rights of citizens, including the right to judicial protection. Moreover, if during the trial it is established that the party in the case missed the limitation period and there are no good reasons for restoring this period, the court has the right to refuse to satisfy the stated requirement (Letter of the Ministry of Finance dated February 22, 2006 N 03-02- 07 / 2-10, sent for use in work by Letter of the Federal Tax Service of Russia dated April 4, 2006 N MM-6-19 / 357@ “On writing off the overpaid amount of tax in the event of the expiration of the limitation period for filing an application for offset (refund) of tax ").
Secondly, the tax can be returned only if the applicant has no arrears (both for this and for other types of taxes and fees) or arrears in penalties and fines. Since the return to the taxpayer of the amount of overpaid tax in the presence of arrears on other taxes of the corresponding type or debt on the relevant penalties, as well as fines payable in cases provided for by the Tax Code of the Russian Federation, is made only after offsetting the amount of overpaid tax to pay off the arrears (debts) (paragraph 2, clause 6, article 78 of the Tax Code of the Russian Federation).
The decision to refund the amount of overpaid tax is made by the tax authority within 10 days from the date of receipt of the taxpayer's application or from the date of signing by the tax inspectorate and the taxpayer of the act of reconciliation of taxes paid by him, if such a joint reconciliation was carried out (clause 8 of article 78 of the Tax Code of the Russian Federation).
In accordance with paragraph 9 of Art. 78 of the Tax Code of the Russian Federation, the tax authority is obliged to inform the taxpayer in writing about the decision to offset (refund) the amounts of overpaid tax or the decision to refuse to offset (refund) within 5 days from the date of the relevant decision. Note that from July 1, 2015, the provision that the communication must be made in writing, from paragraph 9 of Art. 78 of the Tax Code of the Russian Federation is excluded.
Before the expiration of the 10-day period, an order for the return of the overpayment, issued on the basis of a decision of the tax authority, is sent to the territorial body of the Federal Treasury, which transfers the money to the taxpayer's current account.
In accordance with paragraph 10 of Art. 78 of the Tax Code of the Russian Federation in the event that the refund of the amount of overpaid tax is carried out in violation of the deadline established by paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, the tax authority accrues interest on the amount of overpaid tax that is not returned within the established period, payable to the taxpayer, for each calendar day of violation of the return period.
The interest rate is assumed to be equal to the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the days when the repayment period was violated.
At the same time, the Federal Tax Service of Russia draws attention to the fact that the current version of Art. 78 of the Tax Code of the Russian Federation does not contain an indication of how many days - 360, 365 or 366 - the corresponding interest is calculated.
At the same time, in paragraph 2 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money” (hereinafter referred to as the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14) clarified that when calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is assumed to be 360 and 30 days, respectively, unless otherwise established by agreement parties, the rules binding on the parties, as well as business practices.
Thus, the Federal Tax Service of Russia came to the conclusion that judicial practice indicates that the courts find it possible to calculate interest in the amount of 1/360 of the refinancing rate in accordance with paragraph 2 of the Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N 13/14.
In connection with the above, the Federal Tax Service of Russia considers it appropriate to calculate interest in the amount of 1/360 of the refinancing rate for each calendar day of violation of the deadline for the return of the amount of overpaid (collected) tax.
The above clarifications are given by the Federal Tax Service of Russia in the Letter of February 8, 2013 N ND-4-8 / 1968@ "On the calculation of interest for violation of the deadline for the return of amounts of overpaid (collected) tax."
Similar conclusions were also given in the Letter of the Ministry of Finance of Russia dated January 14, 2013 N 03-02-07 / 1-7.
Thus, based on the provisions of paragraph 10 of Art. 78 of the Tax Code of the Russian Federation, as well as the clarifications of the Federal Tax Service of Russia set out in the Letter of February 8, 2013 N ND-4-8 / 1968@ "On the calculation of interest for violation of the deadline for the return of amounts of overpaid (collected) tax", calculation of interest payable the taxpayer, for violation of the deadline for the return of overpaid tax, dues, penalties, fines, may be presented in the following form:
Interest
for violation Amount excessive Quantity Rate
deadline for the return of paid calendar refinancing
excessive = tax (fee, x days of violation x Bank of Russia, : 360
paid penalties, fines) return period valid
tax (collection, on the days of violation
penalties, fines) return period
At the same time, it should be borne in mind that when accruing interest on the amount of overpaid tax that is not returned within the prescribed period, the day of the actual return of the corresponding amount to the taxpayer is not taken into account (Letter of the Ministry of Finance of Russia dated January 14, 2013 N 03-02-07 / 1 -7).
In conclusion, we note that according to par. 3 paragraph 14 of Art. 78 of the Tax Code of the Russian Federation, the rules established by Art. 78 of the Tax Code of the Russian Federation, are also applied in relation to the offset or refund of the amount of VAT subject to reimbursement by decision of the tax authority, in the case provided for