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For late submission of the declaration. Penalty for failure to submit a declaration. Penalty for late filing of VAT returns

Most tax returns are due. Failure to submit them late will result in fines not only for companies, but also for their officials. We comment on the grounds and procedure for holding people accountable for late filing of declarations. In what cases is it considered unlawful to impose a fine on a company? how to reduce the size of sanctions; is the company required to submit a declaration if the amount payable is zero; Can they be held accountable for submitting a declaration using the old form?

Thus, each taxpayer is required to submit a tax return for each tax payable (subclause 4, clause 1, article 23, clause 1, article 80 of the Tax Code of the Russian Federation). Also, in relation to a specific tax, a calculation of the advance payment is presented. The size of the sanction for late submission of the declaration varies depending on the number of days of delay (Article 119 of the Tax Code of the Russian Federation).

Grounds for applying liability

Responsibility under Art. 119 of the Tax Code of the Russian Federation is not applicable to reporting periods

Application of sanctions under Art. 119 of the Tax Code of the Russian Federation is possible only based on the results of the tax period, and not the reporting period. The legislator clearly distinguishes between two documents - a tax return and calculation of advance payments. In other words, for failure to submit advance payment calculations within the established deadlines, liability under Art. 119 of the Tax Code of the Russian Federation cannot be applied (clause 15). Tax authorities for failure to submit advance payments on time can be held liable only under clause 1 of Art. 126 of the Tax Code of the Russian Federation.

In addition, bring to justice under Art. 119 of the Tax Code of the Russian Federation, tax authorities have the right only to the taxpayer, but not to the tax agent (clause 13 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 98). Declarations (calculations) for those taxes for which the company is exempt from the obligation to pay them due to the use of one or another special regime (clause 2 of Article 80 of the Tax Code of the Russian Federation) are not subject to submission to the tax authorities.

Responsibility under Art. 119 of the Tax Code of the Russian Federation does not apply to cases of late submission of declarations on fees and contributions. However, for failure to submit a payslip to the Social Insurance Fund, the organization may be held liable in the form of a fine in the amount of 1,000 to 5,000 rubles. according to Art. 20 of the Federal Law of 02/08/2003 N 25-FZ "On the budget of the Social Insurance Fund of the Russian Federation". Tax liability is not applicable to contributions for compulsory pension insurance, since they do not correspond to the concept of tax (clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 N 106; resolution of the Federal Antimonopoly Service dated May 11, 2006 N F03-A37/06-2/1072 ; FAS ZSO dated May 24, 2006 N F04-2365/2006(22215-A70-25) ).

Art. does not apply. 119 and 126 of the Tax Code of the Russian Federation to violations related to the calculation of fees and contributions

For such an offense they cannot be charged under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation. The fact is that it provides for liability for failure to provide information directly provided for by the Tax Code of the Russian Federation. The obligation to submit calculations for compulsory pension insurance follows from the norms of the Federal Law of December 15, 2001 N 167-FZ “On compulsory pension insurance in the Russian Federation”. Moreover, the bodies of the Pension Fund do not have the right to hold accountable for failure to submit declarations (calculations) on time under Art. 27 of Federal Law N 167-FZ.

The fact that a taxpayer does not have the amount of tax to pay at the end of the tax period does not in itself relieve him from the obligation to file a declaration (clause 7 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 N 71; see also the decision of the Supreme Arbitration Court of the Russian Federation dated 03.02.2004 N 16125/03).

Lack of tax due does not relieve you of the obligation to file a tax return.

This position of the Supreme Arbitration Court of the Russian Federation was reflected in the decisions of the federal district courts. Bringing the taxpayer to responsibility under clause 1 of Art. 119 of the Tax Code of the Russian Federation in the form of a fine of 100 rubles. justified, even if the taxpayer had no obligation to pay taxes on these declarations ( Resolution of the Federal Antimonopoly Service UO dated July 2, 2001 N F09-1395/01AK; FAS ZSO dated November 5, 2001 N F04/3414-990/A46-2001; FAS DVO dated June 30, 2005 N F03-A73/05-2/1800).

If a company is not recognized as a payer of any tax (for example, it does not own vehicles or land), then it is not obliged to submit declarations, which means that liability under Art. 119 of the Tax Code of the Russian Federation. Let us note that the tax authorities agree with this position (letter of the Federal Tax Service for Moscow dated March 14, 2008 N 03-05-05-02/13).

Another important point that you need to remember when filing returns: the mere payment of the calculated tax amount on time will not automatically relieve you of responsibility for late submission of the declaration (clause 13 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 N 71).

What is the penalty for violating the form and procedure for filing a declaration?

Since the actions of the representative of the taxpayer who submitted the declaration to the inspectorate are regarded as the actions of the taxpayer himself, the fact that the representative violated the deadline for filing the declaration does not relieve the organization of responsibility (clause 7 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5).

As a general rule, the tax authority does not have the right to refuse to accept a declaration (calculation). However, there is one caveat: if it is presented in the established form or format (clause 4 of article 80 of the Tax Code of the Russian Federation).

For organizations whose average number of employees exceeds 100 people, there is an obligation to submit declarations (calculations) in electronic form (clause 3 of Article 80 of the Tax Code of the Russian Federation). The question arises: can such an organization be held liable if it has submitted a declaration on paper?

The organization submitted the declaration on paper instead of electronically. What are the consequences?

The Ministry of Finance of the Russian Federation, in letter dated December 24, 2007 N 03-01-13/9-269, approached the clarification of this issue very carefully. On the one hand, he indicated that the submission by a taxpayer of a tax return (calculation) in an improper form and (or) in an unspecified manner is a failure of the taxpayer to fulfill his obligation. But on the other hand, bringing to justice a taxpayer who submits a declaration (calculation) in violation of Art. 80 of the Tax Code of the Russian Federation, should be carried out taking into account law enforcement practice and the phased nature of introducing the obligation to submit electronic declarations.

Arbitration practice on this issue is in favor of taxpayers. Sanction under Art. 119 of the Tax Code of the Russian Federation can only be applied for failure to submit a declaration on time, and for violation of the procedure (form) for its submission, liability is not applicable ( Resolution of the Federal Antimonopoly Service ZSO dated September 28, 2006 N F04-6577/2006(27077-A45-29)). Thus, the taxpayer submitted transport tax returns electronically on magnetic media with confirmation on paper. The inspectorate refused to accept his declaration, citing a violation of the submission procedure and the need to submit it electronically via telecommunication channels. However, the court found it unlawful to hold the company liable under Art. 119 of the Tax Code of the Russian Federation, since this article does not provide for liability for submitting a declaration in an unspecified form ( Resolution of the FAS VSO dated October 16, 2007 N A58-2710/07-F02-7689/07). The Supreme Arbitration Court of the Russian Federation supported this position ( determination of the Supreme Arbitration Court of the Russian Federation dated February 14, 2008 N 1475/08).

If you have an outdated tax return form

It is no secret that it is sometimes difficult for an accountant to track all changes in declaration forms. But filing a return using the old form does not constitute a tax offense under Art. 119 of the Tax Code of the Russian Federation. Submission of the declaration on the old form does not affect the correct calculation of the tax payable. This is exactly the conclusion drawn in the definitions of the Supreme Arbitration Court of the Russian Federation dated April 24, 2008 N 5284/08, dated January 18, 2008 N 227/08, dated October 9, 2007 N 11937/07, dated October 18, 2007 N 12554/07, dated October 31, 2007 N 13878/07.

But the Arbitration Court of the Volga District recently issued a ruling in which it indicated that the tax authority has the right to refuse to accept a declaration drawn up by the taxpayer on the old form. Since in para. 2 clause 4 art. 80 of the Tax Code of the Russian Federation states that the inspector does not have the right to refuse to accept a tax return (calculation) only if it is submitted by the taxpayer in the prescribed form. In the future, if the taxpayer does not submit it in a corrected form, the fiscal authorities may hold him accountable for delay ( Resolution of the Federal Antimonopoly Service of May 6, 2008 N A12-15036/07).

Meanwhile, despite the positive judicial practice in this matter, taking into account the new wording of Art. 80 of the Tax Code of the Russian Federation, we advise you to monitor changes in tax legislation and submit declarations using current forms.

Do not use facsimiles when completing declarations

In recent determination of the Supreme Arbitration Court of the Russian Federation dated June 2, 2008 N 6600/08 it was concluded that reproducing the manager’s signature on the declaration using a facsimile does not confirm the information specified in it. This means that such a declaration does not comply with tax legislation. Organizations need to pay attention to the execution of the signature in the declaration in order to avoid the situation of its rejection by the inspection.

Rules for calculating the fine for late filing of a declaration

Organizations often ask the question: what is the basis for calculating a fine? Does the inspectorate have the right to hold accountable for late filing of a declaration if the amount of tax payable on it is zero?

In Art. 119 of the Tax Code of the Russian Federation clearly defines the rules for calculating the amount of the fine - based on the amount of tax payable (additional payment) based on an untimely submitted declaration.

What amount do the tax authorities use when determining the amount of the fine?

But an analysis of judicial practice shows that the taxpayer still needs to prepare for the fact that inspectors may calculate the amount of the fine differently, namely, from the entire amount of tax for the year (letter of the Ministry of Finance of the Russian Federation dated August 16, 2006 N 03-02-07/1-224 ).

Fortunately, a uniform practice has developed, including the Supreme Arbitration Court of the Russian Federation, which does not support such an approach. The amount of the fine should be determined based on the amount of tax payable or additional payment based on a tax return filed late ( resolution of the Federal Antimonopoly Service of the Eastern Military District dated 04.06.2007 N A29-7619/2006a; FAS VSO dated January 11, 2008 N A74-1746/07-F02-9642/07; FAS MO dated May 24, 2007 N KA-A40/4236-07).

When will the fine amount be zero?

What will be the penalty for submitting a return on which the tax amount is zero? For failure to submit a declaration for more than 180 days, the fine will be zero rubles, since clause 2 of Art. 119 of the Tax Code of the Russian Federation does not contain provisions on the minimum amount of the fine. This approach is followed by the Supreme Arbitration Court of the Russian Federation ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 10, 2006 N 6161/06). This is not disputed by the tax authorities (letter of the Ministry of Taxes and Taxes of Russia dated July 4, 2001 N 14-3-04/1279-T890). If the delay in filing a declaration is less than six months, the tax authority will most likely impose a fine of 100 rubles, since from paragraph 1 of Art. 119 of the Tax Code of the Russian Federation it follows that the fine in any case cannot be less than this amount.

But you can try to challenge this position! In particular, refer to Resolution of the FAS VSO dated April 24, 2008 N A19-2170/08-51-F02-1843/08, in which the court indicated that since the amount of tax is zero rubles, the amount of the fine for failure to submit a declaration within the prescribed period is also zero rubles. In other words, the court did not recognize 100 rubles. as a mandatory minimum fine under paragraph 1 of Art. 119 of the Tax Code of the Russian Federation.

In our opinion, this approach can be justified by the fact that if for a more serious offense (clause 2 of Article 119 of the Tax Code of the Russian Federation) the minimum fine is not established, then it is impossible to establish a minimum fine of 100 rubles. for a less serious offense (clause 1 of Article 119 of the Tax Code of the Russian Federation).

Don't forget to point out circumstances mitigating liability!

If at least one mitigating circumstance is identified under clause 1 of Art. 112 of the Tax Code of the Russian Federation, the size of the sanction is subject to reduction. Moreover, no less than twice the size established by the relevant article of the Tax Code of the Russian Federation (clause 3 of Article 114 of the Tax Code of the Russian Federation). However, depending on the number of such circumstances, the court has the right to reduce the amount of the penalty by more than half (clause 19 resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation dated June 11, 1999 N 41/9).

What are mitigating circumstances?

The list of mitigating circumstances is open. Both the tax authority and the court may recognize other circumstances as such (subparagraph 3, paragraph 1, article 112 of the Tax Code of the Russian Federation). We recommend that even at the stage of tax violation proceedings, you point out certain facts that justify the taxpayer. The duties of the head (his deputy) of the tax authority include identifying all circumstances, including mitigating or aggravating liability (subclause 4, clause 5, article 100 and subclause 4, clause 7, article 101.4 of the Tax Code of the Russian Federation).

The court will take into account your mitigating circumstances if the tax authority has not done so

The courts pay attention to this fact. And if the head of the inspection had the opportunity to take into account mitigating circumstances when making a decision, but did not do so, they will recognize the inspection’s decision in this part as invalid. So, in Resolution of the Federal Antimonopoly Service of the Russian Federation dated January 18, 2008 N F03-A59/07-2/6075 The tax authority did not agree with the adopted judicial act. The inspectors referred to the fact that the reduction of sanctions due to the court's establishment of mitigating circumstances is not a basis for invalidating the appealed decision. However, the court did not take into account this argument of the inspectorate and invalidated the controversial decision regarding the accrued fine. The court came to similar conclusions in Resolution of the Federal Antimonopoly Service ZSO dated May 22, 2007 N F04-3123/2007(34389-A75-31): “When considering a case of a tax offense, the tax authority must establish and take into account circumstances mitigating the taxpayer’s liability.”

And even if the inspectors take into account certain circumstances, this does not prevent the court from taking into account other circumstances and further reducing the fine ( Resolution of the Federal Antimonopoly Service NWZ dated 09/05/2007 N A42-8861/2006). There are also such exotic options as, for example, in Resolution of the Federal Antimonopoly Service ZSO dated September 14, 2006 N F04-5987/2006(26424-A70-7). In this case, the court did not consider the presence of minor children as a mitigating circumstance in the absence of evidence of expenses for their maintenance. But at the same time, he reduced the fine by half, since the taxpayer admitted the fact of non-payment of taxes and the commission of tax offenses, voluntarily paid most of the debt on taxes, penalties and sanctions, and is also an individual.

Summarizing arbitration practice, we can highlight the following circumstances most often recognized by courts as mitigating liability:

  1. independent detection by the taxpayer and elimination of violations of tax legislation ( Resolution of the Federal Antimonopoly Service ZSO dated May 22, 2007 N F04-3123/2007(34389-A75-31)). The fact is that failure to take these circumstances into account when deciding on a fine may give rise to the taxpayer’s hope that errors will not be discovered by the tax authority (clause 17 information letter of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 N 71);
  2. committing an offense for the first time and the absence of harmful consequences for the budget (definitions of the Supreme Arbitration Court of the Russian Federation dated April 10, 2008 N 2752/08 and dated March 19, 2008 N 3088/08; resolutions of the Federal Antimonopoly Service of the North Caucasus Region dated August 13, 2007 N F08-4669/2007-1824A; FAS BVO dated 06/30/2005 N A43-1504/2005-34-71; FAS ZSO dated 01/23/2008 N F04-362/2008(906-A67-26). Let us give two striking examples: referring to this basis in Resolution of the Federal Antimonopoly Service of the Eastern Military District dated January 22, 2008 N A82-5165/2007-99, the court reduced the fine from 162,298 rubles. up to 3000 rubles, and in Resolution of the Federal Antimonopoly Service No. F03-A73/07-2/4872 dated 07.11.2007— from RUB 335,196.25. up to 1000 rub.

    Whether committing an offense for the first time is a mitigating circumstance - the court will decide

    Meanwhile, the commission of an offense for the first time is not always recognized by the courts as a mitigating circumstance. So, in Resolution of the Federal Antimonopoly Service NWZ dated June 30, 2007 N A21-4829/2006 The court pointed out that it was illegal to refer to such a circumstance as committing an offense for the first time. He explained that “the commission of an offense for the first time cannot be recognized as a circumstance mitigating responsibility, since it is a circumstance that does not aggravate it” ( by definition of the Supreme Arbitration Court of the Russian Federation dated November 21, 2007 N 15375/07 the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation at the request of the taxpayer was refused);

  3. the insignificant nature of the offense, namely a short period of delay in submitting a tax return (resolution of the FAS VSO dated 04/08/2008 A10-3436/07-F02-1188/08, dated 02/21/2008 N A33-13458/07-F02-356/08, dated 02/19/2008 N A33-12418/07-F02-383/08; FAS MO dated 04/14/2008 N KA-A41/802-08). So, in Resolution of the Federal Antimonopoly Service VSO dated January 11, 2008 N A74-1746/07-F02-9642/07 the court reduced the fine from 91,464.45 rubles. up to 11,433 rubles, based on a minor (4 days) violation of the deadline for filing a land tax return caused by problems in the organization’s computer system;
  4. difficult financial situation of an individual held accountable for committing an offense. But can this circumstance apply to a legal entity? We believe so! After all, the list of mitigating circumstances in the Tax Code of the Russian Federation is not exhaustive. Arbitration practice also recognizes the difficult financial situation of an organization as a mitigating circumstance (clause 19 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation dated June 11, 1999 N 41/9; resolution of the FAS VSO dated February 21, 2008 A33-13458/07-F02-356/08, FAS SKO dated 09.10.2007 N F08-6608/2007-2456A; FAS SZO dated 13.11.2006 N A05-4018/2005-29, dated 14.01.2008 N A56-1698/2007; FAS VBO dated 22.01.2007 N A43- 38466/2005-34-1275 ). However, this situation must be proven with reference to accounting documents;

    5. Can the fine be greater than the amount of tax payments?

  5. disproportionality of the fine to the tax offense committed. So, when making Resolution of the Federal Antimonopoly Service ZSO dated January 23, 2008 N F04-362/2008(906-A67-26) the court referred to paragraph 19 resolutions of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 N 41/9, which stipulates that clause 3 of Art. 114 of the Tax Code of the Russian Federation establishes only a minimum limit for reducing the tax sanction. Based on the results of an assessment of the relevant circumstances, the court has the right to reduce the amount of the penalty by more than half.
    In a letter sent by the applicant (respondent) to the tax authority, he asked, when making a decision by the tax authority, to take into account as a mitigating circumstance, among others, the disproportion of the fine to the violation committed (the amount of tax payable under the declaration is 1,601,090 rubles, and the amount of the fine — RUB 2,721,853). The arbitration court, based on the principles of proportionality and fairness, reduced the amount of the fine to be collected from the company.
    A similar solution is contained in another Resolution of the Federal Antimonopoly Service NWO dated April 22, 2008 N F04-2542/2008(3973-A81-31). The taxpayer may refer to the legal position of the Constitutional Court of the Russian Federation. IN Resolution of the Constitutional Court of the Russian Federation dated July 15, 1999 N 11-P it is stated that in cases where the amounts subject to forced collection in the aggregate exceed the amount of tax liabilities many times over, this not only leads to the deprivation of income (profit) to entrepreneurs, but also jeopardizes their further activities, even to the point of their termination;

    6. Refer to the uncertainty of tax laws

  6. misconception regarding the taxation regime for activities carried out by an entrepreneur. This is usually caused by the uncertainty of the legislation on taxes and fees in force during the disputed period and the lack of official clarifications from the competent authorities ( resolutions of the Federal Antimonopoly Service ZSO dated March 13, 2008 N F04-1691/2008(1961-A75-29) and dated January 18, 2007 N A52-2613/2006/2);
  7. the social significance of the taxpayer (resolution of the Federal Antimonopoly Service of the Russian Federation dated January 23, 2008 N F04-362/2008 (906-A67-26); FAS MO dated April 14, 2008 N KA-A41/802-08; FAS VVO dated January 28, 2002 N A29-7560 /01A; FAS VSO dated 05/08/2007 N A19-10870/06-F02-2519/07; FAS SKO dated 11/19/2007 N F08-7587/07-2838A);
  8. conscientiousness of the taxpayer, which is expressed in timely and full payment of taxes to the budget ( determination of the Supreme Arbitration Court of the Russian Federation dated April 10, 2008 N 2752/08; Resolution of the Federal Antimonopoly Service of the Eastern Military District dated January 22, 2007 N A43-38466/2005-34-1275);
  9. the age of the entrepreneur and whether he has dependent minor children ( Resolution of the Federal Antimonopoly Service ZSO dated May 22, 2007 N F04-3123/2007(34389-A75-31); FAS PO dated November 27, 2007 N A65-3005/2007-CA2-8); the health status of the entrepreneur and his relatives, for example, illness of the child, disability of the mother (resolution of the FAS ZSO dated 08/25/2005 N F04-4498/2005(13053-A27-19); FAS VSO dated 02/13/2007 N A19-16402/06-44- F02-220/07, dated March 19, 2007 N A33-12072/06-F02-1271/07; FAS VVO dated March 15, 2006 N A79-1673/2005);

    10. The chief accountant's sick leave will serve as an excuse for your delay

  10. illness of the chief accountant of the organization (resolution of the FAS VSO dated July 10, 2003 N A33-17991/02-S3s-F02-2039/03-S1; FAS ZSO dated December 2, 2002 N F04/4353-1705/A45-2002; FAS SZO dated July 17 .2001 N A26-5260/00-02-03/407) or its lack of qualifications ( Resolution of the Federal Antimonopoly Service VSO dated July 24, 2007 N A19-913/07-41-F02-4575/07; FAS ZSO dated March 13, 2007 N F04-1166/2007(32271-A45-3);
  11. seizure of documents by an authorized state body ( Resolution of the Federal Antimonopoly Service NWZ dated May 30, 2000 N A56-31511/99);
  12. erroneous sending of a declaration to another inspection, including through an electronic communications operator ( Resolution of the Federal Antimonopoly Service VSO dated October 16, 2007 N A19-4293/07-44-F02-7638/07; FAS ZSO dated 01.02.2007 N F04-45/2007(30821-A81-32)).

When a taxpayer simultaneously has aggravating and mitigating circumstances

We also note that the presence of aggravating circumstances does not prevent the court from taking into account mitigating circumstances at the same time. After all, the maximum amount for reducing the tax sanction has not been established ( Resolution of the Federal Antimonopoly Service VSO dated 05/08/2007 N A19-10870/06-F02-2519/07; FAS VVO dated April 16, 2007 N A38-3216-17/288-2006; FAS North Caucasus Region dated April 16, 2008 N F08-1888/2008-680A). The Tax Code of the Russian Federation does not make the possibility of reducing the size of a fine in the presence of at least one mitigating circumstance dependent on the presence of aggravating circumstances.

Finally, we should not forget about the administrative liability of an official of an organization for late submission of a declaration (Article 15.5 of the Code of Administrative Offenses of the Russian Federation). For the same offense, if there is a delay of 10 days, the tax authority can resort to another effective method - suspending the organization’s operations on bank accounts (clause 3 of Article 76 of the Tax Code of the Russian Federation). But make sure that such a decision is canceled no later than one business day following the day you submit your tax return.

*1) Please note that by order of the Ministry of Finance dated May 5, 2008 N 54n, a new income tax declaration was approved, therefore the declaration for the first half of 2008 must be submitted using the new form.

*2) For more information on this topic, see: Myasnikov O.A. Account blocking: legal ways out of the crisis // Arbitration justice in Russia. 2008. N 7. P. 45.


Journal "Arbitration Justice in Russia" N 7/2008, I.B. STUKMASTER, lawyer at Pepelyaev, Goltsblat and Partners

It is the responsibility of each taxpayer to timely submit reports to the Federal Tax Service. However, not all subjects comply with this requirement. Sanctions are provided for violations of requirements. In the article we will look at what is established by law.

General information

Penalty for failure to submit a tax return by an individual - the entrepreneur is established in the Code of Administrative Offenses and the Tax Code. The delay in submitting reports is calculated in working days.

Amount of fine for failure to submit a tax return determined according to the rules of Article 119 of the Tax Code. The standard establishes that the subject must pay 5% of the deduction amount for each month (including incomplete ones) from the date set for submitting reports. In this case, the amount fine for failure to submit a tax return by an individual - an entrepreneur cannot be more than 30% of the amount of the mandatory payment and less than 1000 rubles.

The size of the sanction increases depending on the duration of the delay. So, fine for failure to submit a tax return for more than 180 days is 30% of the amount of the deduction to be paid in accordance with the reporting, to which is added 10% for each month (including incomplete) of the same amount. An additional penalty (10%) is imposed from the 181st day of delay.

Calculate in a similar way fine for failure to submit a VAT return.

Important point

Penalty for failure to submit a tax return is charged even if the deadline is missed by 1 day, so experts do not recommend postponing submission of reports until the last minute. Due to possible queues, there is a high risk of missing the deadline.

Electronic reporting

Currently, many payers submit their declarations electronically. If an entity does not have the technical ability to generate a document, it has the right to submit reports on paper within the deadline established by the Tax Code. Subsequently, he can “complete” the declaration in electronic form.

In this case fine for failure to submit a tax return will not be, since the sanction is provided only in case of violation of the deadline.

Violation of deadlines for submitting zero reports

Let's assume that the subject failed to submit such a declaration on time, but 180 days have not yet passed. Such a violation, at first glance, may entail a sanction. Meanwhile, the Tax Code does not provide specific instructions that a fine can be collected for failure to submit a zero tax return.

There are two opposing approaches to solving this issue.

According to the first, fine for failure to submit a tax return should be 1000 rubles. Some arbitration institutions adhere to this position. As the main argument, the courts cite the payer’s obligation to submit reports in a timely manner as established in the Tax Code. The presence or absence of an object of taxation does not matter. The main thing in this case is the presence of delays in submitting reports.

According to the second approach, since the taxable object is zero, then if a tax return is not submitted on time, the fine is not collected, since it is also zero. This position is also shared by some arbitration institutions. When justifying this approach, the courts refer to the provisions of Article 119 of the Tax Code. In accordance with it, the fine is calculated based on the amount of deduction, but it is missing. There is essentially nothing to calculate. This conclusion is confirmed in the definition of the Supreme Arbitration Court No. 13444/09 of 2009, which explains that this approach is also applicable to cases where reports are submitted after 180 days.

Availability of prepayment for late submitted reports

In such a situation, the question of the inevitability of a sanction does not arise. The presence of an advance payment is not a basis for relieving the payer of the obligation to timely submit reports. However, this may cause difficulties in calculation.

The Tax Code does not provide any clarification on this matter. Therefore, in practice, two approaches have emerged.

According to the first point of view, if the tax deduction was made on time, the subject can only be charged with a minimum fine - 1 thousand rubles.

In accordance with the second approach, the amount of the monetary penalty should be calculated based on the amount of the obligatory payment indicated in the reporting submitted in violation of the deadline. This position is due to the following circumstances. Firstly, the deduction of the amount for untimely submitted reports does not affect the possibility of holding a person accountable for violating the deadlines for submitting documentation. Secondly, the amount of the sanction is determined in accordance with the data reflected in the reporting, regardless of the deadline (fact) of tax payment.

The amount of tax deducted does not coincide with the amount reflected in the reports submitted late

In this case, the amount of the fine is determined based on the amount of tax to be deducted in accordance with the declaration submitted in violation of the deadline. The Tax Code does not provide any explanations regarding the calculation procedure. Explanations on this matter are contained in the Letter of the Ministry of Finance dated April 1, 2009.

The agency clarifies that the amount of the fine should be calculated not on the basis of the amount indicated in the declaration, but in accordance with the amount of tax to be actually paid. The sanction is determined based on the data provided in the updated reporting, or based on information obtained during a desk audit.

Violation of the deadline for submitting “interim” reports

Explanations on this issue are provided in the Letter of the Ministry of Finance dated May 5, 2009. As follows from the document, sanctions are not applied to legal entities for failure to provide “interim” reports. The only punishment possible in such situations may be a fine for failure to provide information necessary for tax control (Article 126 of the Tax Code). It is equal to 200 rubles. for each document.

The resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 22, 2009 states that imposing a fine for late submission of an interim declaration is unlawful. This conclusion is justified by the fact that the Tax Code does not establish liability for violation of deadlines for providing calculations.

A declaration is a written statement from the payer about expenses, income, and tax amounts to be paid. Due to the fact that the mandatory payment is calculated at the end of the year (calendar), the “declaration” of the enterprise’s profit tax for the reporting period (six months, quarter, 9 months) is an advance calculation, and not a full tax return. Accordingly, if the calculation for this payment is not submitted on time, liability does not arise.

Administrative sanctions

Holding an enterprise or individual accountable for violating the deadlines established in the Tax Code does not exempt officials working for an economic entity from other sanctions provided for by law. We are talking, in particular, about administrative fines.

In accordance with Art. 15.5 of the Administrative Code, in case of violation of the deadlines for submitting reports to the Federal Tax Service at the place of registration, officials are charged with a fine of 300-500 rubles.

Accounting and tax accounting of sanctions

The costs of fines and other penalties paid to the budget are not taken into account when determining the tax base.

In the financial statements, these amounts are reflected in Db account. 99, corresponding to Kd sch. 68.

Fines do not participate in the formation of accounting profit, on the basis of which the conditional income/profit tax expense is calculated. There is no difference when calculating permanently.

For example, according to the decision of the Federal Tax Service, a fine for violation of deadlines was imposed in the amount of 30 thousand rubles. The following entries should be made in accounting:

  • db sch. 99 CD count. 68 - the accrual of a fine of 30,000 rubles is reflected;
  • db sch. 68 CD count. 51 - payment of the fine amount from the current account is shown.

Calculation example

Let's look at how to determine the fine for failure to submit an individual entrepreneur's tax return for value added tax.

Let’s assume that the entity submitted the declaration for the 4th quarter of 2016 only on March 25, 2017, with a deadline of January 25, 2017. The reporting reflects the amount payable to the budget in the amount of 4.5 thousand rubles. All of it was paid on the day the declaration was submitted.

Since a business entity deducting VAT can pay the amount in equal parts until the 25th day of each of the 3 months following the expired tax period, then, taking into account the conditions of the example, the tax for the 4th quarter had to be transferred before January 25, February and March 2017 d. The amount to be paid should have been one third of the accrued VAT, i.e. 1.5 thousand rubles.

Since the subject violated the established deadlines, the amount of the penalty for him will be:

  • For late payment of tax on January 25 - 225 rubles. (1.5 thousand rubles x 5% x 3 months).
  • For late payment on February 25 - 150 rubles. (1.5 thousand rubles x 5% x 2 months).

The total fine will be 375 rubles. Since Article 119 of the Tax Code states that the amount of the fine should not be less than 1 thousand rubles, the subject will have to pay not 375 rubles, but 1000 rubles.

Penalty for failure to submit a single simplified tax return

When using a simplified reporting form, a business entity must take into account a number of nuances. They are mentioned in paragraph 2 of Article 80 of the Tax Code, as well as in Order of the Ministry of Finance No. 62n of 2007.

In order for it to be possible to submit a simplified return for the tax (reporting) period, there should be no movement of money through the cash register or current account. For example, if we talk about VAT, then the company should not have operations throughout the entire quarter. To reflect income tax in a simplified form, there must be no movement of money from the very beginning of the year, since it is calculated on an accrual basis.

If an enterprise submits a form for several mandatory deductions, then there should be no taxable items for them. A special case is considered when a subject is obliged to report taxes only if there is an object of taxation. For example, if we talk about land tax, then it is a plot, if we talk about transport tax, then it is a car or other vehicle. If there is no object for the specified objects, neither the simplified nor the ordinary declaration is submitted.

It should be remembered that reporting is submitted no more than once a quarter (for 1 quarter, 6, 9, 12 months). Accordingly, it cannot be used for taxes for which a report must be submitted monthly. We are talking, in particular, about excise taxes and deductions from profits.

The simplified form can be used exclusively for taxes. This means that you should not include information about compulsory social insurance contributions in the declaration if the base for them is 0.

If, due to established restrictions, it is not possible to submit a simplified form, you will have to submit regular reports to the Federal Tax Service. Accordingly, for violation of deadlines, liability is provided under Article 119 of the Tax Code.

The simplified form is only suitable for those subjects who are inactive. If the enterprise pays at least the minimum wage, then there is a movement of money.

If an enterprise mistakenly submitted a zero declaration, although a simplified one was required, a fine may be imposed in this case as well. This is due to the fact that, according to the provisions of paragraph 2 of Article 80 of the Tax Code, submitting a declaration in a simplified form is an obligation, and not a right, of the taxpayer. Consequently, an error by the subject can be regarded as a violation of the deadlines established by the Tax Code for submitting reports.

Photo by Boris Maltsev, Clerk.Ru

Methods for filing tax returns

A tax return is an official statement of the taxpayer, which contains information about the objects of taxation, income received and expenses incurred, sources of income, the tax base, tax benefits, the amount of tax payable, and other data that serves as the basis for calculating tax. .

Timely submission of tax returns is one of the most important responsibilities of taxpayers, and this procedure is regulated by Art. 80 Tax Code of the Russian Federation.

There are two options for submitting tax returns: on paper; in electronic form.

The tax return can be submitted in the prescribed form on paper. In this case, the taxpayer can submit reports to the Federal Tax Service in person or through an authorized representative.

A tax return can be submitted either personally by the head of the organization (entrepreneur) or an accountant, or by an authorized representative of the organization (entrepreneur).

The date of filing tax returns by a legal or authorized representative of an organization is the date of their actual submission to the tax authority on paper.

To submit reports, it is not necessary to come to the Federal Tax Service in person; you can send it by mail.

When sending reports by post, you must make sure that a description of the attachment is attached.

When sending a tax return by mail, the day of its submission is considered the date of mailing.

Submission of declarations in electronic form is carried out via telecommunication channels (TCC) using an enhanced qualified electronic signature through electronic document management operators.

TKS is a system for presenting tax and accounting reports in electronic form.

Advantages of this method of presentation:

there is no need to come to the tax authorities, since reporting can be sent from the taxpayer’s office at any time of the day (saving time costs); no duplication of submitted paper documents is required; reducing the number of technical errors (reporting is generated in an approved format using output control tools, through which the correct completion of the fields of reporting forms is checked); efficiency of updating reporting formats (when tax and (or) accounting reporting forms are changed or new reporting forms are introduced before the reporting deadline, the taxpayer has the opportunity to update the versions of the formats electronically); guarantee of confirmation of delivery of documents (the opportunity to receive confirmation of the fulfillment of obligations by the taxpayer within 24 hours, as well as to view your personal card online, so there is no need to wait for reconciliation reports); protection of reports submitted in electronic form under the TKS from viewing and correction by third parties; the ability to receive electronically a certificate of the status of settlements with the budget, statements of transactions for settlements with the budget, a list of tax and accounting reports submitted to the tax inspectorate, a reconciliation report for calculations of taxes, fees, penalties and fines, current clarifications of the Federal Tax Service of Russia on tax legislation, and also send an information request to the tax authorities.

Submission of reports in electronic form using an enhanced qualified electronic signature within the framework of the pilot project carried out by the Federal Tax Service of Russia can be carried out through the website: https://www.nalog.ru

A similar position is set out in the letter of the Office of the Federal Tax Service of Russia for Moscow dated March 12, 2014 No. 24-15/022540.

https://www.nalog.ru

In some cases, taxpayers are required to submit a tax return in electronic form:

if the average number of employees for the previous calendar year exceeds 100 people; if an organization with more than 100 employees has been created (including reorganized); if such an obligation is provided for in relation to a specific tax (from January 1, 2014, this obligation applies to value added tax).

Calculation of the fine for failure to submit a declaration

Responsibility for failure to submit a tax return is established by Art. 119 of the Tax Code of the Russian Federation.

According to paragraph 1 of Art. 119 of the Tax Code of the Russian Federation, failure to submit a tax declaration to the tax authority at the place of registration within the deadline established by the legislation on taxes and fees entails the collection of a fine in the amount of 5% of the amount of tax not paid within the period established by the legislation on taxes and fees, subject to payment (additional payment) on the basis of this declaration, for each full or partial month from the day established for its submission, but not more than 30% of the specified amount and not less than 1000 rubles. However, according to the previous version of this provision, which was in force until January 1, 2014, the amount of the fine was calculated based on the unpaid amount of tax subject to payment (additional payment) on the basis of the declaration.

At the same time, the phrase “unpaid tax amount” was interpreted ambiguously in law enforcement practice. The phrase was interpreted as: “not paid on the day the decision was made”, “not paid on the day the act was adopted”, “not paid on the date of submission of the declaration”, “not paid on time”, which caused disagreements between tax authorities and taxpayers.

The position according to which, when calculating a fine, it is necessary to take into account the amount of tax not paid within the period established by law, was expressed, in particular, in letters of the Ministry of Finance of Russia dated October 21, 2010 No. 03-02-07/1479, dated April 29, 2011 No. 03-02-08/48.

Another opinion is that if the deadline for filing a declaration is not met, the fine under Art. 119 of the Tax Code of the Russian Federation is subject to calculation based on the amount not paid at the time of the decision, as stated, for example, in the letter of the Federal Tax Service of Russia dated November 26, 2010 No. ШС-37-7/16376@ (currently no longer in force according to the letter of the Federal Tax Service of Russia dated 09/30/14 No. SA-4-7/19945).

An unambiguous position on the issue under consideration has not been developed in judicial practice (see, for example, the resolution of the Ninth Arbitration Court of Appeal dated November 28, 2011 No. 09AP-29306/2011-AK).

At the same time, regarding the application of paragraph 1 of Art. 119 of the Tax Code of the Russian Federation (as amended until January 1, 2014) in paragraph 18 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” is explained, that the amount of the unpaid tax should be determined at the time of expiration of the period established by the provisions of the Tax Code of the Russian Federation for payment of the relevant tax.

As stated in the letter of the Federal Tax Service of Russia dated 08.22.14 No. SA-4-7/16692 “On the application of certain provisions of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07.30.2013 No. 57 “On some issues arising when arbitration courts apply part one of the Russian Tax Code Federation", the explanations presented in paragraph 18 of this resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation actually indicate the need for a formal approach to determining whether an offense has been committed and the need for prosecution if there is an unpaid amount of tax at the time of expiration of the payment period, regardless of the fact of subsequent payment of the tax .

The ambiguity in the interpretation of the norm has been eliminated since January 1, 2014 through the entry into force of Federal Law No. 134-FZ dated June 28, 2013, which in paragraph 1 of Art. 119 of the Tax Code of the Russian Federation, the phrase “unpaid tax amount” is replaced by the phrase “tax amount not paid within the deadline established by the legislation on taxes and fees.”

To eliminate the ambiguity in the interpretation of paragraph 1 of Art. 119 of the Tax Code of the Russian Federation, when calculating the amount of the fine by the tax authority, also indicated the Federal Tax Service of Russia by sending a letter dated September 30, 2014 No. SA-4-7/19945 “On invalidating the Letter of the Federal Tax Service of Russia dated November 26, 2010 No. ShS-37-7/16376 @".

In the letter of the Ministry of Finance of Russia dated August 14, 2015 No. 03-02-08/47033 it was noted that Art. 119 of the Tax Code of the Russian Federation establishes a maximum fine depending on the amount of unpaid tax and a minimum fine in a fixed amount, which does not depend on the amount of unpaid tax.

In paragraph 18 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013, No. 57, it is explained that the absence of a taxpayer’s arrears on the declared tax or the amount of tax payable on the corresponding declaration does not relieve him from this responsibility. In this case, established by Art. 119 of the Tax Code of the Russian Federation, the fine is subject to collection in a minimum amount of 1000 rubles.

The minimum fine provided for in Art. 119 of the Tax Code of the Russian Federation, was increased from 100 to 1000 rubles. Federal Law dated July 27, 2010 No. 229-FZ.

In connection with the above, the financial department concluded that clause 1 of Art. 119 of the Tax Code of the Russian Federation does not contain contradictions, including regarding the established amounts of fines.

Responsibility for failure to submit an advance payment calculation

In paragraph 17 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013, No. 57, it is explained that from the provisions of paragraph 3 of Art. 58 of the Tax Code of the Russian Federation, significant differences arise between a tax and an advance payment, i.e. an advance payment for a tax, which, unlike a tax, is paid not based on the results, but during the tax period.

Accordingly, from the interrelated interpretation of this norm and paragraph 1 of Art. 80 of the Tax Code of the Russian Federation, a distinction is made between two independent documents - the tax return submitted at the end of the tax period, and the calculation of the advance payment submitted at the end of the reporting period.

In this regard, the courts must proceed from the fact that established by Art. 119 of the Tax Code of the Russian Federation, liability for untimely submission of a tax return does not cover acts expressed in failure to submit or untimely submission of the calculation of advance payments based on the results of the reporting period, regardless of how this document is named in a particular chapter of Part 2 of the Tax Code of the Russian Federation.

Please note that liability for failure to provide such documents is established by Art. 126 of the Tax Code of the Russian Federation.

In the letter of the Federal Tax Service of Russia dated August 22, 2014 No. SA-4-7/16692 it is explained that since from the interrelated interpretation of clause 3 of Art. 58 of the Tax Code of the Russian Federation and clause 1 of Art. 80 of the Tax Code of the Russian Federation follows a distinction between two independent documents - the tax return submitted at the end of the tax period, and the calculation of the advance payment submitted at the end of the reporting period, then established by Art. 119 of the Tax Code of the Russian Federation, liability for untimely submission of a tax return does not cover acts expressed in failure to submit or untimely submission of the calculation of advance payments based on the results of the reporting period, regardless of how this document is named in a particular chapter of Part 2 of the Tax Code of the Russian Federation.

At the same time, Art. 119 of the Tax Code of the Russian Federation does not cover such violations as the submission of a tax return in paper form in a situation where the submission of a declaration in electronic form was required.

Responsibility for violating the format for submitting the declaration

Article 119.1 of the Tax Code of the Russian Federation establishes that failure to comply with the established procedure for submitting a tax return (calculation) in electronic form entails a fine of 200 rubles.

Responsibility established by Art. 119.1 of the Tax Code of the Russian Federation, applies if the form (format) of the tax return corresponds to the established one, but the method of submitting the tax return specified in Art. 80 Tax Code of the Russian Federation. However, in this case, the tax authority has no right to refuse to accept the tax return.

Simultaneous application of liability established by Art. 119 and 119.1 of the Tax Code of the Russian Federation, is possible only if the deadline for submitting a tax return and the method of its submission are violated (letter of the Federal Tax Service of Russia dated November 26, 2010 No. ШС-37-7/16376@).

As explained in the letter of the Federal Tax Service of Russia dated April 11, 2014 No. ED-4-15/6831, for the purposes of Art. 119.1 of the Tax Code of the Russian Federation, the procedure for submitting a tax return means the method of submitting a tax return.

Thus, the submission of a VAT tax return on paper from January 1, 2014 is not provided. For failure to comply with the procedure for submitting a tax return in electronic form, liability is provided under Art. 119.1 Tax Code of the Russian Federation. The liability established by this article applies if the form of the tax return corresponds to the established one, but the method of submitting the tax return specified in Art. 80 Tax Code of the Russian Federation.

Features of filing a VAT return

The main purpose of submitting VAT reports to the tax authorities is to transmit information about goods (work, services) sold and purchased for a certain period of time.

The current legislative documents stipulate the tax period for which VAT reporting is provided - a quarter. The deadline for filing a value added tax return is set for the 25th day of the month following the reporting quarter. If this date falls on a weekend or holiday, the deadline is postponed to the next business day.

What are the deadlines for submitting VAT returns in 2019 and 2020, read

A fine for a VAT return for failure to submit or late submission is imposed if these deadlines are violated.

All enterprises, organizations and individual entrepreneurs that are tax agents and work with value added tax are required to submit VAT reports.

Since 2015, taxpayers of the Russian Federation are required to submit declarations to the tax service in electronic format. To fulfill this obligation, all declarants must purchase an electronic digital signature with payer information. Specialized software must also be installed. If the taxpayer made errors in the submitted declaration or violated the terms of its submission, the single portal notifies the declarant of the detected problems.

If an organization does not work with value added tax, but provides any services, it must issue invoices.

Penalty for late filing of VAT returns

If an organization (IP) does not submit a document within the specified time frame, it is subject to administrative liability in the amount of 5% of the amount of tax that was not paid on time. The fine for late submission of a VAT return is imposed for each overdue month. The payment cannot be more than 30% of the amount of overdue tax or less than RUB 1,000, but it can be reduced if there are extenuating circumstances. These provisions are enshrined in paragraph 1 of Art. 119 of the Tax Code of the Russian Federation.

The amount of the fine is calculated by the Federal Tax Service using the formula:

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  • VAT is the amount of tax that is not paid to the budget on time;
  • Number of months - the number of full and partial months that have passed since the day established for filing a VAT return.

Example of fine calculation:

Smiley LLC submitted VAT returns to the Federal Tax Service for the 3rd quarter of 2019 on 11/05/2019 instead of 10/25/2019. VAT payable on the declaration amounted to 150,000 rubles. Payment deadline is October 25, November and December 1/3 each, i.e. 50 thousand rubles each. The company transferred 50,000 rubles. November 05. Thus, the delay amounted to 1 incomplete month - from 10.25.2019 to 11.05.2019. At the time of filing the report, the deadline for payment of only the first 1/3 of VAT - 50,000 rubles - was violated. (the deadline for its transfer to the budget is October 25, 2019). The deadlines for payment of the 2nd and 3rd installments have not yet arrived.

WITHThe amount of the fine was 2,500 rubles. (50,000 × 5% × 1 month).

IMPORTANT! If the taxpayer has overpaid tax, then the amount of the fine for late filing of the declaration will be minimal - 1,000 rubles. Therefore, before sending an overdue declaration, pay the arrears, thereby reducing the amount of sanctions.

The person responsible for filing the VAT return receives a warning or must pay a fine of 300-500 rubles, and if the delay is more than 10 working days, sanctions can be applied to the taxpayer’s current account and non-cash money transfers. Even if the delay is one day, the tax office counts this period as one full month.

If the declaration is not filed with zero VAT

Sometimes enterprises have a situation where the tax amount in their VAT reporting is zero. Should a company pay a fine for a zero VAT return if it is not filed? The Ministry of Finance believes that a minimum amount of 1,000 rubles should be paid for an overdue or unsubmitted declaration. Thus, the fine for failure to submit a zero VAT return will be minimal and amount to 1,000 rubles. for each full and/or partial month of delay.

Therefore, it is still better to submit all required reports to the tax authorities on time. It must be remembered that in addition to imposing sanctions, the tax service has the right to block the debtor’s access to his current accounts.

Submitting an updated declaration as an option to reduce the amount of the fine

Submitting an updated declaration will not exempt you from the fine if you violated the deadline for filing the primary declaration (Letter of the Federal Tax Service of Russia dated April 1, 2009 No. ШС-22-7/240@).
But the amount of sanctions can be reduced by submitting an updated declaration before the desk audit of the primary report expires. In this case, the penalty is calculated from the tax amount specified in the adjustment.

Is it possible to reduce the amount of the fine?

The legislation of the Russian Federation provides for the possibility of reducing the amount of the fine for a VAT return for its failure to submit or late submission. The taxpayer must submit an explanatory note to the Federal Tax Service with a detailed explanation of the reasons for the delay in the document. The paper is filled out in free form.

Having studied the text of the note, tax specialists draw a conclusion about the importance of the reasons specified in it. If the reasons are considered sufficiently compelling, the fine may be reduced or cancelled. That is, late submission does not always threaten the imposition of penalties on the taxpayer. But to confirm the information specified in the explanatory note, it must be accompanied by accompanying documents that will prove the importance of the grounds for the delay.

Extenuating circumstances

If the taxpayer has any extenuating circumstances to explain why the document was delayed, this may help reduce the amount of the recovery. In paragraph 1 of Art. 112 of the Tax Code of the Russian Federation spells out the grounds for a more loyal attitude of the Federal Tax Service towards the taxpayer:

  • the offense was committed in connection with difficult family or personal circumstances;
  • the violation occurred under threatening influence or coercion, as well as due to material or official slavery;
  • the individual facing a fine for violating the law is in a difficult financial situation;
  • other circumstances recognized by the court or the Federal Tax Service as mitigating.

During the court hearing, all circumstances that the tax service has already analyzed for pre-trial appeal are considered. The defaulter must declare all mitigating circumstances in court, regardless of whether the Federal Tax Service took them into account when imposing penalties or not. In court, the amount of recovery can be reduced again.

***

Failure to submit or late submission of a VAT return is recognized by tax legislation as an offense and entails the imposition of penalties on the culprit. The fine is 5% of the amount of the overdue tax debt for each overdue month, but cannot be less than 1,000 rubles. The law provides for the possibility of reducing the amount of the fine or canceling it due to the presence of mitigating circumstances. If the violator does not submit a declaration within 10 days after the deadline, the tax authorities have the right to block his current account until the situation is corrected.

A fine for failure to submit a value added tax return is imposed on a taxpayer who is late in filing reports. If there is an amount of VAT to be paid, it is not difficult to calculate the amount of the fine for late submission of the VAT return. However, if a VAT return with a zero tax amount is not submitted on time, the question may arise: is there a possible fine in this case for late submission of a VAT return? Read more about this in our article.

The amount of the fine for late submission of a VAT return, as well as the fine for failure to submit a VAT return, is calculated according to general rules. These rules are contained in paragraph 1 of Art. 119 of the Tax Code of the Russian Federation. According to them, the amount of the fine is determined based on 5% of the amount of tax payable for each month (incomplete or full) from the day assigned for submitting the declaration. The amount of the fine cannot exceed 30% of the specified amount and cannot be less than 1000 rubles.

Read more about liability for failure to file a return and the issues that arise regarding it here.

A fine for an updated VAT return can be avoided if:

  • submit an update before the end of the deadline for submitting the initial declaration, i.e. on time (clause 2 of Article 81 of the Tax Code of the Russian Federation);
  • the clarification is submitted after the deadline for submitting the initial report, but before the deadline for paying the tax, and the Federal Tax Service Inspectorate did not identify errors in the initial declaration or did not have time to inform the taxpayer about the appointment of an on-site tax audit (clause 3 of Article 81 of the Tax Code of the Russian Federation);
  • before the submission of the clarification, submitted after the deadline for filing the declaration and paying the tax, the arrears and penalties were paid, and the on-site inspection carried out before the submission of the clarification did not reveal any errors (clause 4 of Article 81 of the Tax Code of the Russian Federation).

The question often arises: if a situation with late submission of a VAT return arises in relation to a report with a zero amount payable, is the minimum fine for an unsubmitted VAT return in the amount of 1,000 rubles charged in this case? There is no single answer to this question.

Penalty for failure to submit a return with a missing tax amount payable

The position of officials is that a taxpayer is not exempt from a fine for failure to submit a VAT return, even if it does not indicate the amount of tax payable and there is no arrears. The fine for such a violation is provided for in Art. 119 of the Tax Code of the Russian Federation (letters of the Federal Tax Service of Russia dated August 22, 2014 No. SA-4-7/16692, Ministry of Finance of Russia dated November 23, 2011 No. 03-02-08/121 and October 27, 2009 No. 03-07-11/270, Federal Tax Service of Russia on Moscow dated March 16, 2009 No. 20-14/4/022859@). Accordingly, this fully applies to the fine for late submission of a VAT return with a missing amount for payment.

The opinion of officials is mostly supported by the courts (resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” dated July 30, 2013 No. 57, the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 8, 2010 No. 418/10 in the case No. A68-5747/2009, Arbitration Court of the North Caucasus District dated 04.29.2016 No. F08-2313/2016 in case No. A32-42102/2014, FAS West Siberian District dated 02.16.2012 in case No. A03-7357/2011 ( By ruling of the Supreme Arbitration Court of the Russian Federation dated July 31, 2012 No. VAS-7486/12, the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation, FAS North-Western District dated January 25, 2011, in case No. A26-5027/2010, FAS West Siberian District dated September 7, 2010, was refused. in case No. A75-9192/2009).

Since it is not possible to calculate the fine for a VAT declaration based on a report that does not have an amount payable, but it must be applied, in this case the amount of the fine for late submission of the declaration is considered equal to the minimum penalty - 1000 rubles. (decrees of the Federal Antimonopoly Service of the Central District dated March 23, 2012 in case No. A35-6471/2011, FAS Volga-Vyatka District dated February 15, 2010 in case No. A31-7500/2009, FAS Northwestern District dated February 25, 2009 in case No. A56- 28215/2007, FAS East Siberian District dated February 28, 2007 No. A19-20250/06-52-F02-674/07-S1 in case No. A19-20250/06-52).