The Tax Code provides for procedures under which payers of certain fees may return amounts overpaid to the budget or unduly collected by the state. The exercise of this right should 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 one regulates the procedure for returning to the taxpayer and offsetting current payments of excessively paid fees. The structure of this article involves a fairly detailed regulation of the relevant activities of the Federal Tax Service. The second article specifies the algorithm for tax refunds that have been unduly collected. What are the specifics of the noted procedures? What is the right way for a taxpayer to exercise his right to refund 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 lawfully returning taxes and other payments to the budget that are overpaid by one or another entity - a citizen or organization. Similar scenarios can occur if the taxpayer has calculated a larger tax than necessary, or actually transferred to the budget an amount in excess of 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 considered article of the Tax Code of the Russian Federation includes provisions establishing that the amount of excess taxes should be set off against the current obligations of a citizen or organization under the current budgetary obligation, repayment of arrears of other taxes, as well as debts for penalties and fines, or returned in the manner regulated by the relevant article of the Tax Code. 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 for them, is carried out in correlation with similar types of budgetary obligations.
Point 2
The second paragraph of the considered article of the Tax Code of the Russian Federation includes provisions on which the offset or refund of excess taxes should 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. Pending Art. 78 also includes a provision in which refunds are generally made without any interest being charged.
Point 3
The next paragraph of the article in question includes provisions under which the Federal Tax Service should inform the payer of the revealed facts of overpayment of certain taxes, as well as of the amounts thereof no later than after a period of 10 days after the discovery of unnecessary transfers. If the tax authorities are not sure that the overpayment has actually been made, but suggest that it may be, then they can offer the taxpayer to carry out a joint reconciliation of the calculated figures for the relevant payments.
Point 4
Pending Art. 78 establishes that in order to exercise the legal right to set off overpayments against current liabilities, the taxpayer must send a written statement to the tax. This document can also be submitted in electronic form - provided that it can be signed by an enhanced qualified digital signature, or through the taxpayerβs online account. The decision to set off excess taxes is taken by the Federal Tax Service no later than after a period of 10 days after the agency receives an application from a citizen or organization, or from the day the Federal Tax Service and the payer sign an act confirming the joint reconciliation of payment of fees, if any was carried out.
Point 5
Paragraph 5 of the article in question states that the offset of overpayments for paying off tax arrears should be carried out by the Federal Tax Service on its own. Thus, in the general case, an additional application to the tax authority does not need to be sent to the subject of payment of fees. The FTS is obliged to fulfill the requirements of the considered clause of Article 78 within a period of 10 days after the fact of overpayment is discovered, or from the day the FTS and the taxpayer sign the act confirming the joint reconciliation of payments. In some cases, the deadline for the execution of the relevant order is counted from the moment the court decision was made, if one was taken in view of the hearing on tax disputes.
Pending Art. 78 of the Tax Code includes provisions that establish that a taxpayer, despite the fact that this action is not mandatory by law, still has the right to send the statement referred to above to the Federal Tax Service. This can be done, for example, in order to speed up the process of setting off overpayments in 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 it is done.
Point 6
Let us now consider how the overpayment is returned to the budget. This procedure is regulated by paragraph 6 of Art. 78 of the Tax Code. The amount of the tax overpayment should also be returned by the FTS to the payer upon written application, which can be generated in electronic form, provided that it is signed by a qualified digital signature.
The Federal Tax Service is obliged to make a tax refund no later than 1 month after the receipt of the relevant application. In the provisions of paragraph 6 of Art. 78 of the Tax Code of the Russian Federation it is also said that if a taxpayer sending a request for the return of overpayments to the Federal Tax Service has arrears, they are primarily covered. If a certain amount remains upon settlement of debts, a refund is possible.
Point 7
According to the norms of paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, a statement to the Federal Tax Service sent by a taxpayer who intends to set off or legally return a tax overpayment 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 field of taxes and fees.
Point 8
In accordance with this clause, the Federal Tax Service must decide to compensate the citizen or the organization of excessively paid fees within a period not exceeding 10 days after receipt of the application by the Federal Tax Service, or from the date of signing the reconciliation report by the agency and the taxpayer, if any. In paragraph 8 of Art. 78 of the Tax Code of the Russian Federation it is also said that an order to refund the corresponding overpayment, drawn up on the basis of a 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, settles with the applicant in accordance with the budget laws of the Russian Federation .
Point 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 of the decision taken to set off or refund overpayments, which may consist in approving the implementation of this procedure or in refusing to carry it out. The first or second activity should be carried out within a period not exceeding 5 days after consideration of the issue. The 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 fact of receiving this information.
If we are talking about the interaction of the Federal Tax Service and the consolidated group of taxpayers, then the amount of overpayments for tax should be set off or returned in favor of the responsible member of the relevant association. If the agreement on its formation has terminated, then the return or offset of fees is carried out at the request of the responsible entity. This operation is not performed if the responsible member of the consolidated group has arrears, fines and other penalties to the budget.
Point 10
In accordance with the provisions of paragraph 10 of article 78 of the Tax Code of the Russian Federation, the amount to be refunded or set off increases in correlation with the refinancing rate of the Central Bank if settlements between it and the taxpayer are not made by the deadline specified in paragraph 6 of the article under consideration of the Tax Code of the Russian Federation .
Item 11
According to the provisions of paragraph 11 of Article 78 of the Tax Code of the Russian Federation, the territorial structure of the Federal Treasury, which carries out the refund of tax overpayments, must notify the Federal Tax Service about when the amount was actually transferred to the taxpayer and to what extent.
Point 12
If interest that supplements the excessively paid fee according to the provisions of clause 10 of the considered article of the Tax Code of the Russian Federation is not paid to the applicant in full, then the Federal Tax Service decides to compensate for the remaining, which are calculated based on the date the taxpayer actually credited the relevant amounts. This activity should be carried out by the Federal Tax Service no later than 3 days after receipt of information from the Federal Treasury on the date of return of funds, as well as on the amount thereof. The necessary payment order of the Federal Tax Service, in turn, must be sent to the Federal Treasury.
Paragraphs 13 and 14
In accordance with paragraph 13 of this article of the Tax Code of the Russian Federation, offsetting or compensation of overpayments for taxes must be carried out in Russian rubles. Clause 14 prescribes the application of the norms set forth in Article 78 of the Tax Code of the Russian Federation not only to taxes, but also to other obligations: advance payments, penalties, fines, various fees. The relevant rules set forth in article 78 should also apply, based on the provisions of clause 14, to tax agents, subjects of payment of fees to the budget and responsible members of consolidated payer groups. The considered clause of Article 78 also establishes that the tax authorities of the Russian Federation must also apply the relevant rules in the process of offsetting or refunding VAT overpayments, which must be reimbursed in the manner prescribed by law.
Point 15
Paragraph 15 of Art. 78 of the Tax Code of the Russian Federation fixes the norm according to which the fact of specifying 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 the recognition of certain payments to the budget redundant.
As follows from the norms contained in article 78 of the Tax Code of the Russian Federation, the tax tax of the Russian Federation recognizes the tax paid into the treasury as unduly recovered due to additional charge upon the fact of a tax audit or its voluntary payment by the taxpayer. Another scenario for the appearance of the corresponding overpayments is a change in the tax base as a result of a court decision or an order of a higher structure of the Federal Tax Service.
Is tax refund under article 78 possible to non-residents of the Russian Federation?
Many payers are concerned about the question: can non-residents of the Russian Federation return taxes that are overpaid to the budget? Such are considered foreigners and citizens of Russia who live in the Russian Federation for less than half of 365 days. According to expert materials on Art. 78 of the Tax Code with comments, this procedure is possible. Consider its nuances.
The main feature of 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 appropriate fee in the manner prescribed by the norms of Art. 78, may arise due to an incorrect determination of taxpayer status and 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 with other reasons 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, statement, after - wait for the tax authorities to make a decision. It will be useful to consider how it should be drawn up.
How to make a tax refund application?
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 general, this is the head of the territorial IFTS for the municipality in which the taxpayer conducts business. So we write: "To the Head of the IFTS for such a city or region." Below you need to record from whom the application is sent. We write "From that." The next paragraph is an 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 drawn up). The tax refund application form should also contain the taxpayer registration address - we fix it in the line below. Next, write in the middle of the "Application" page. Below we substantiate our appeal to the Federal Tax Service with a phrase of the form βIn accordance with the provisions of paragraph 6 of Article 78 of the Tax Code of the Russian Federation, in connection with the overpayment of tax, I ask you to transfer the amount due to return to such and such a personal account. β
Next, we fix the details of the corresponding bank account. These are most often: beneficiary's full name, TIN, name of the bank, BIC, correspondent account, personal account. Below we set the date of the preparation of the document, the signature and its interpretation. What might an application for a tax refund look like? A sample of this source might look like this:
Differences in the corresponding application may be caused primarily by the type of tax, fee, fine and other types of payments to the budget. So, a personal income tax return or, for example, as we noted above, VAT can be refunded.
Articles 78 and 79 of the 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 therein regulates the procedure for the return of amounts for taxes and other obligations that have been unduly collected. We will study its most noteworthy points.
So, in paragraph 1 of Art. 79 it is indicated that the return of surplus payments to the budget should be carried out only if, before that, the correct set-off of the corresponding amount was made in favor of repayment of 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 provided for in Article 79 of the Tax Code. 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 refund 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 the exercise of the right to set off payments unnecessarily transferred to the state.
The Federal Tax Service, in the course of the refund procedure, as in the scenario when excessively paid tax is counted in accordance with article 78, interacts with the Federal Treasury. So, tax authorities should send orders to this department to return 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 fact 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 legal grounds for a tax refund, may be drawn up within a period of 3 years from the date of discovery by the taxpayer of the fact of excessive recovery.
The fact that the budget is an excessively levied tax, the Federal Tax Service must independently notify, as follows from the provisions of paragraph 4. Article. 79 of the Tax Code of the Russian Federation, the subject of fulfillment of obligations to the budget in a period that does not exceed 10 days after the relevant fact is established.
The amount of tax that is charged to 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 submission to the Federal Tax Service of the application in the prescribed form. Also, in some cases, interest is accrued over it in correlation with the Central Bank refinancing rate indicator.
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 member of this association.
The territorial structure of the Federal Treasury should notify the Federal Tax Service about settlements with the taxpayer, as in the case of the procedure for offsetting excess taxes under Article 78 of the Tax Code.