Art. 78 of the Tax Code. Set off or return the amounts of overpaid taxes, levies, penalties, fines

The Tax Code provides for procedures in which the payers of certain fees can return the amounts of such, overpaid to the budget or excessively collected by the state. The implementation of this right should be carried out in accordance with the provisions of individual articles of the Tax Code, primarily 78 and 79. The first governs the procedure for refunding to the taxpayer and offsetting overpaid fees in current payments. The structure of this article suggests a rather detailed regulation of the relevant activities of the Federal Tax Service. The second article specifies the algorithm for refunding taxes that were excessively recovered. What are the specifics of the marked procedures? How is it right for a taxpayer to realize his right to return fees or offset those?

Purpose of Article 78

Art. 78 of the Tax Code of the Russian Federation - a source that regulates the procedure for offsetting or lawful repayment of amounts of taxes and other payments to the budget that are overpaid by a certain entity - a citizen or an organization. Such scenarios can be formed if the taxpayer has calculated a larger tax than it should have, or actually transferred to the budget an amount exceeding the amount that was necessary to pay. It will be useful to study the structure of Art. 78 of the Tax Code separately by items.

Paragraph 1

This element of the article of the Tax Code of the Russian Federation includes provisions establishing that the amount of excessive taxes should be set off against the current obligations of a citizen or organization under the current budget obligation, repayment of arrears for other taxes, as well as debts on penalties and fines, or returned in the order that Is regulated by the corresponding article of the Tax Code of the Russian Federation. In the present in Art. 78 clause 1 of the Tax Code of the Russian Federation also states that offsetting of excessive federal, regional and municipal taxes, as well as interest on them, is carried out in correlation with similar types of budgetary obligations.

Point 2

The second paragraph of the article of the Tax Code of the Russian Federation includes provisions on which offset or return of excessive taxes should be made by the territorial division of the Federal Tax Service at the place of registration of the payer, unless other norms are included in the Tax Code. The point under consideration is Art. 78 also includes a provision under which the repayment of payments in the general case is carried out without accrual of any interest.

Point 3

The next paragraph of the article in question includes provisions on which the FTS should inform the payer about the revealed facts of overpayment of certain taxes, as well as the amounts of such not later than after the expiry of the period of 10 days after the discovery of excessive transfers. If the tax authorities are not sure that the overpayment is actually carried out, but suppose that it can be, they can offer the taxpayer to carry out a joint reconciliation of the calculated indicators for the relevant payments.

Paragraph 4

The point under consideration is Art. 78 establishes that in order to realize the legal right to set off overpayments in the current account, the taxpayer must send a written application to the tax office. This document can also be submitted in electronic form, provided that it can be signed by a strengthened qualified EDS, or through the taxpayer's online office. The decision to read off the amount of excessive taxes is taken by the FTS no later than after the expiry of the period of 10 days after the agency receives a relevant application from the citizen or organization, or from the date of signing the FTS and the payer of the act confirming the joint verification of the payment of fees, if any Was conducted.

Item 5

In paragraph 5 of the article under consideration, it is stated that offsetting of overpayments to pay off tax arrears should be carried out by the Federal Tax Service independently. An additional application to the tax, therefore, to the subject of payment of fees to send in the general case is not necessary. The FTS is obliged to comply with the requirements of the article 78 under consideration within a period of 10 days after the fact of overpayment is discovered, or from the date of signing the FTS and the taxpayer of the act confirming the joint reconciliation of payments. In some cases, the deadline for the implementation of the relevant order is counted from the moment the judgment is rendered, if it was taken due to the holding of hearings on tax disputes.

The point under consideration is Art. 78 of the Tax Code includes provisions that establish that a taxpayer, despite the fact that this act is not mandatory by law, still has the right to forward to the Federal Tax Service the statement referred to above. This can be done, for example, in order to accelerate the process of offsetting overpayments in future payments. In this case, the tax authorities must set off the relevant amounts within a period not exceeding 10 days after the receipt of the document from the taxpayer, or from the day when the act on joint verification of payments was signed, provided that such is done.

Paragraph 6

Let us now consider how the overpayments are paid back to the budget. This procedure is regulated by Cl. 6, Art. 78 of the Tax Code. The amount of overpayment for tax should also be returned to the payer by a written application, which can be generated electronically, provided that it is signed with the help of a qualified EDS.

The FTS is obliged to effect 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 also states that if a taxpayer sending a request for a refund of overpayments to the Federal Tax Service collects arrears, first of all, the coverage is covered. If a certain amount remains after the settlement of the debts, a return is possible.

Item 7

According to the norms of paragraph 7 of Art. 78 of the Tax Code of the Russian Federation, an application to the Federal Tax Service sent by a taxpayer who intends to set off or legally return an overpayment for tax can be compiled and transferred to the Office within 3 years from the time the surplus amount is paid to the budget, unless otherwise provided by regulatory documents Acts relating to the field of taxes and fees.

Item 8

In accordance with the point under consideration, the FTS should take a decision to compensate a citizen or an organization of overpaid fees within a period that does not exceed 10 days after receiving the FNS application, or from the date the agency and subject signed the reconciliation act, if any. In paragraph 8 of Art. 78 of the Tax Code also states that an instruction to return an appropriate overpayment, drawn up on the basis of the decision taken by the Federal Tax Service to compensate for the amount, is sent to the Federal Treasury, the agency, which in turn makes settlements with the applicant in accordance with the budget laws of the Russian Federation .

Paragraph 9

According to the norms of clause 9 of Article 78 of the Tax Code of the Russian Federation, tax officers are obliged to inform the payers about the decision taken on offsetting or repaying overpayments, which may consist in approving the implementation of this procedure or refusing to conduct it. The first or second activity should be carried out within a period not exceeding 5 days after consideration of the issue. Notification from the Federal Tax Service is transferred to the head of the company, natural persons, their representatives against receipt or in any other accessible way that can confirm the receipt of this information.

If we are talking about the interaction of the Federal Tax Service and the consolidated group of taxpayers, the amount of overpayments for tax should be credited or returned to the responsible participant of the relevant association. If the agreement on its formation has ceased to operate, then the refund or set-off of fees is carried out at the request of the responsible entity. This operation is not carried out if the responsible member of the consolidated group has arrears, fines and other penalties to the budget.

Item 10

In accordance with the norms of clause 10, article 78 of the RF Tax Code, the amount subject to refund 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 performed within the time specified in clause 6 of the article of the Tax Code of the Russian Federation .

Paragraph 11

According to the norms of clause 11 of Article 78 of the Tax Code of the Russian Federation, the territorial structure of the Federal Treasury, which refunds overpayments for tax, must notify the FTS about when the amount was actually transferred to the taxpayer and to what extent.

Paragraph 12

If the interest that is added to the overpaid fee in accordance with the provisions of clause 10 of the article of the Tax Code of the Russian Federation under consideration will not be transferred to the applicant in full, the FTS makes a decision on compensation of the remaining ones that are calculated based on the date of actual transfer to the taxpayer of the corresponding amounts. This activity of the FTS should be carried out no later than 3 days after the receipt from the Federal Treasury of information about the date of return of funds, as well as the amount of such. The necessary payment order of the Federal Tax Service, in turn, must be sent to the Federal Treasury.

Items 13 and 14

In accordance with paragraph 13 of the article of the Tax Code of the Russian Federation, offset or compensation of overpayments for taxes should be made in Russian rubles. Point 14 prescribes the application of the norms fixed in Article 78 of the Tax Code, not only to taxes, but also to other obligations: advance payments, penalties, fines, various charges. The corresponding rules, fixed in Article 78, should also be extended, based on the norms of clause 14, to tax agents, subjects of payment of fees to the budget and responsible participants of consolidated groups of payers. The clause in Article 78 also stipulates that the taxation authority of the Russian Federation must apply the relevant rules also in the process of offsetting or refunding VAT overpayments that are subject to reimbursement in accordance with the procedure established by law.

Item 15

Paragraph 15 of Art. 78 of the Tax Code fixes the rate at which the fact of specifying the subject as the owner of assets in a special declaration that is submitted in accordance with the Federal Law "On Voluntary Declaring", as well as the transfer of such property to the actual owner, can not be grounds for recognizing certain payments to the budget Are superfluous.

As follows from the norms that are contained in Article 78 of the Tax Code of the Russian Federation, the taxation authority of the Russian Federation recognizes a tax paid to the treasury that is excessively recovered due to additional charge on the fact of a tax audit or its voluntary transfer by a taxpayer. Another scenario for the appearance of corresponding overpayments is a change in the tax base due to a court decision or an order of the higher-level structure of the Federal Tax Service.

Is it possible to refund the tax on Article 78 to non-residents of the Russian Federation?

Many payers are worried about the question: can non-residents of the Russian Federation pay taxes paid excessively to the budget? These are considered to be foreigners and citizens of Russia, who live in Russia less than half of 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 at a rate of 30%, while in the general case the fee is calculated at a rate of 13% of income. The need to return an appropriate fee in the manner prescribed by art. 78, can arise due to incorrect definition of the status of the taxpayer and the erroneous calculation of personal income tax at a rate of 30% instead of 13%. In general, the algorithm according to which the overpayments to the budget are paid in this case is the same as in the case with other grounds for applying this procedure. That is, the payer must be provided to the Federal Tax Service, as prescribed in Section 6, Art. 78 of the Tax Code of the Russian Federation, a statement, and then wait for the tax authorities to make a decision. It will be useful to consider how it should be compiled.

How to make an application for tax refund?

The application form for the lawful return of overpayments from the state budget as a whole is unified. In the upper right of this document, you must specify who it is sent to. In general, this is the head of the territorial IFNS for municipal education, in which the taxpayer conducts business. So we write: "To the Head of the IFNS for such or such a city or district". It is necessary to record below, from whom the application is sent. We write "From that". The next item is an indication of the applicant's passport data (the series of the document, its number, date of issue, and also the body in which the document is issued). The application form for tax refund should also contain the address of the taxpayer registration - we fix it by the line below. Then we write in the middle of the page "Statement". Below, we justify our appeal to the Federal Tax Service with the phrase "In accordance with the provisions of Cl. 6, Art. 78 of the Tax Code of the Russian Federation, in connection with the overpayment of the tax, I ask you to transfer the amount owed to return to such a personal account. "

Then we fix the details of the corresponding bank account. These are most often: the recipient's name, TIN, bank name, BIC, correspondent account, personal account. Below we put the date of the document, the signature and its decoding. How can an application for a refund of overpaid tax look like? A sample of this source might look like this:

Differences in the relevant application may be due primarily to the type of tax, fee, penalty and other type of payments to the budget. So, it is possible to refund personal income tax or, for example, as we noted above, VAT.

Articles 78 and 79 of the Tax Code: how are they related?

It can be noted that in the Tax Code there is an article very close to Art. 78 - 79. The Tax Code of the Russian Federation regulates the procedure for the recovery of amounts on taxes and other obligations that were excessively recovered. We study the most noteworthy of its points.

So, in paragraph 1 of Art. 79 indicated that the return of excessive payments to the budget should be carried out only if before the correct offset of the relevant 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 implement the procedures provided for in Article 79 of the Tax Code. In accordance with the norms contained in paragraph 2 of Art. 79 of the Tax Code, the decision of the Federal Tax Service to return to the payer of excessive taxes should be taken on time, which does not exceed 10 days after the agency receives the application. Its form will be generally similar to that used in the case of the realization of the right to offset payments that are unnecessarily listed to the state.

The FTS in the course of the procedure for the repayment of payments, as in the scenario where the excessively paid tax is credited in the order of Article 78, interacts with the Federal Treasury. So, in this department, tax officers must send orders for the return of the corresponding amounts, which are formed on the basis of the decisions of the Federal Tax Service. The taxpayers can send an application to the FTS for 1 month from the moment when they become aware of the facts of the existence of overpayments to the budget.

In some cases, the right to implement appropriate compensation to the subjects of payment of fees must be proved in court. The statement of claim, the subject of which - the confirmation of legal grounds for the refund of taxes, can be drawn up within a period that is 3 years from the time the taxpayer discovered the fact of excessive collection.

The fact that in the budget - an excessively collected tax, the Federal Tax Service should independently notify, as it follows from the norms of cl. 4. Art. 79 of the Tax Code, the subject of performance of obligations to the budget in time, which does not exceed 10 days after the relevant fact is established.

The amount of tax that is levied on the budget in excess of the required amount must be returned to the applicant, proceeding from the norms of cl. 79 of the Tax Code of the Russian Federation, not later than 1 month from the date of sending applications to the Federal Tax Service in accordance with the established form. Also in some cases, interest is charged in excess of it in correlation with the refinancing rate indicator of the Central Bank.

If the subject of interaction with the Federal Tax Service is a consolidated group of enterprises, the tax is returned to the accounts of the responsible participant of the association.

The territorial structure of the Federal Treasury must notify the FTS about settlements with the taxpayer, as in the case of the procedure for offsetting excessive taxes under Article 78 of the Tax Code.