St. 78 of the Tax Code of the Russian Federation. Offset or refund of overpaid tax, dues, pen alties, fines

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

The Tax Code provides for procedures under which payers of certain fees can return the amounts of those 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

St. 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. Similar scenarios can form if the taxpayer has calculated moretax than it was necessary, or actually transferred to the budget an amount exceeding that which was necessary 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.

Item 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 pen alties and fines, or returned in the manner 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 pen alties on them, is carried out in correlation with similar types of budget obligations.

Item 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 refund of payments is generally carried out without accruing any interest.

Item 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 thatit may be that they can offer the taxpayer to carry out a joint reconciliation of the calculated indicators for the relevant payments.

Item 4

Clause of 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 offset 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 held.

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 a number of cases, the period for fulfilling the relevant order is counted from the moment the court decision is made, if such was taken due to thetax dispute hearings.

Clause of 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 the joint reconciliation of payments was signed, provided that such a reconciliation was carried out.

Item 6

Now let's 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 says 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 either in a legalorder to return the overpayment of tax, can be drawn up and submitted to the department within 3 years from the moment when the excess amount was paid to the budget, unless otherwise provided by regulatory enactments related to taxes and fees.

Item 8

In accordance with the paragraph under consideration, the Federal Tax Service must decide 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 report by the department and the taxpayer - if any Was held. 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 shouldbe offset or returned in favor of the responsible member of the relevant association. If the agreement on its formation has ceased to be valid, 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 pen alties 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 under consideration 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 volume.

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, the Federal Tax Service decides on compensation for the remaining, which are calculated based on the date of actual transfer to the taxpayer of the relevant amounts. 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 payment order of the Federal Tax Service, in itsturn, should 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: advance payments, pen alties, fines, and various fees. The relevant rules, fixed in Article 78, should also apply, based on the norms of paragraph 14, to tax agents, subjects of payment of fees to the budget and responsible participants in 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

Item 15 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 rules contained in Article 78 of the Tax Code of the Russian Federation, the tax RF recognizes the tax paid to the treasury 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 ororders of the 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. 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 determination of the status of a taxpayer and an erroneous calculation of personal income tax at a rate of 30% instead of 13%. In general, the algorithm according to which overpayments are returned 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 drafted.

How to apply for a tax refund?

The application form for the legal return of overpayments from the state budget has been 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, inin 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, fix the details of the corresponding bank account. These are most often: full name of the recipient, TIN, bank name, BIC, correspondent account, personal account. 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 primarily due 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 RF Tax Code: how are they related?

It can be noted that there is an article in the Tax Code that is 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 unnecessarilyrecovered. Let's explore 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 applied in the case of exercising the right to offset payments overpaid to the state.

The Federal Tax Service, in the course of the refund procedure, 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 fromthe moment the taxpayer discovers the fact of excessive collection.

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 refinancing rate of the Central Bank.

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.