When the report is considered submitted electronically. Submission of tax returns electronically via telecommunications channels. A zero calculation for insurance premiums is submitted if the company does not operate

Starting this year, the procedure for administering insurance premiums has changed. The calculations for them are now submitted to the tax authorities, and not to the funds. At the same time, the rule regarding the conditions under which calculations of contributions will be considered submitted has also changed. It depends on this whether the company will be fined under Art. 119 of the Tax Code of the Russian Federation or not. This Hot Topic explains what the new rule is and how it should be applied. In addition, examples of situations are given when the inspection does not have the right to consider the reporting not submitted and impose a fine for this, regardless of errors made during its submission.

Editor's note:

a case that confirms this was examined, for example, in the Resolution of the Federal Antimonopoly Service of the Moscow District dated 07/05/2013 No. A40-107240/12-90-539: the court recognized the date of submission of the declaration as the date the company sent the declaration, indicated in the confirmation of the specialized telecom operator.

The inspectorate objected to this by saying that it was unable to open the received declaration due to the fact that it was placed in the “rejected” section with the reason: “the certificate and private key for decryption cannot be found.” For the same reason, a receipt for receiving reports was not generated.

Without an acceptance receipt, the declaration is considered not submitted, the inspectorate decided.

The court rejected these arguments, stating the following.

Firstly, the fact that the company does not have a receipt from the Federal Tax Service for accepting the declaration does not indicate that it was not submitted.

Secondly, a technical failure when sending a declaration cannot be dependent on or influence the fact that the company fulfills its obligation to submit tax reports, since for its part the company has taken all the necessary measures to send the declaration on time.

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Even if the tax authorities did not accept the electronic declaration due to an error identified at the first stage of the audit, the declaration is considered submitted. This conclusion can be drawn from the resolution of the Federal Antimonopoly Service of the Volga District. It is worth noting that this conclusion is beneficial to taxpayers, but contradicts the methodological recommendations for accepting tax reporting in electronic form*, which have been in force since the end of 2010 (approved by order of the Federal Tax Service of Russia dated November 2, 2009 No. MM-7-6/534@, hereinafter referred to as Methodological recommendations).

Algorithm for receiving reports

Let us recall that before the introduction of the Methodological Recommendations, a simple rule was applied, confirmed: if the taxpayer has a confirmation from a special communications operator about sending the report and if this report is sent on time, there will be no fine for failure to submit a declaration. However, at the end of 2010 the situation changed. The methodological recommendations introduced a new algorithm for receiving reports. Tax officials first conduct an initial check of the sent file (they are given four hours for this). As a rule, during this check it is determined whether there are any discrepancies between the information about the taxpayer provided by the declarant and the information stored in the Federal Tax Service's database.

If there are errors, the tax authorities send an error message, the document flow is stopped, and the declaration is considered unsubmitted. If there are no errors, the taxpayer receives a receipt notification from the Federal Tax Service, which is followed by a more in-depth check of the file based on a number of parameters. If it does not reveal any errors, then the taxpayer receives an acceptance receipt.

This document means that you no longer have to worry about the deadlines for submitting reports - the report is considered submitted, and the date for sending the declaration is set by confirmation. But if errors are detected at the second stage of the audit, tax authorities send a notification of refusal. Receiving a refusal means that the document flow is stopped, the declaration is considered unsubmitted, and it must be sent again. For more information about the algorithm for receiving reports, see "" and "".

The essence of the dispute

In March of this year, the FAS Volga District considered the following dispute. The Penza company sent a land tax declaration to the inspectorate four times via the Internet, but the tax authorities never accepted it. First, acceptance was refused on the grounds that the declaration contained an error in the checkpoint, then - that the declaration did not contain a message about the power of attorney for filing reports, then it turned out that the taxpayer incorrectly indicated information about the director, then, having corrected some errors, he again made an error in Checkpoint, etc. As a result, the organization submitted a declaration on paper in violation of the established deadline.

The inspectors accepted the paper declaration, but fined the company under Article 119.1 of the Tax Code of the Russian Federation for violating the method of reporting (the average number of employees of the organization is more than 100 people, so it is obliged to report only electronically).

When is the declaration considered submitted?

The courts of first and appellate instances recognized the fine as lawful. The arbitrators rejected the company's argument that the reporting was originally submitted electronically. As pointed out by the judges, who probably relied on the Methodological Recommendations, upon receipt of a notification of refusal of admission, the declaration is considered not submitted (clause 2.10 of the Methodological Recommendations). In this case, the taxpayer must correct the errors and resubmit the document. Since the organization has not eliminated the error in the checkpoint, such reporting cannot be considered submitted.

But the cassation court considered the conclusion of the lower courts to be erroneous. The judges of the Federal Antimonopoly Service of the Volga District indicated: according to paragraph 4 of Article 80 of the Tax Code of the Russian Federation, when transmitting a tax return (calculation) via telecommunication channels, the day of its submission is considered the date of its dispatch. In this situation, the organization repeatedly sent a declaration to the Federal Tax Service in a timely manner and in electronic form, which is not disputed by the inspectorate. And only the refusal of the inspectorate to accept the reports led to the fact that the taxpayer submitted the declaration on paper. Meanwhile, the Tax Code of the Russian Federation provides for liability for failure to comply with the procedure for submitting a declaration in electronic form, and not for errors in it.

The conclusion of the FAS of the Volga District is worth quoting in full: “Since in the case under consideration the company complied with the requirements of Article 119.1 of the Tax Code of the Russian Federation, namely declarations are submitted in electronic form , then the actions of the company do not constitute a tax offense, as required by law, and, accordingly, bringing it to justice for lack of guilt is unlawful.”

In our opinion, the words that in the described case, in the opinion of the court, were nevertheless submitted deserve special attention. Even despite the fact that control on the inspection side revealed errors in the declaration, which, according to paragraph 2.10 of the Methodological Recommendations, allow the reporting to be considered unsubmitted.

Maybe. Moreover, for some organizations, according to clause 3 of Art. 80 of the Tax Code, compliance with this format is mandatory, for others it is voluntary. In any case, regardless of how documents are sent, the procedure and format for submitting electronic reporting is regulated and is the same for everyone. There are several documents defining the procedure. Firstly, these are the Administrative Regulations approved by Order of the Ministry of Finance of Russia dated January 18, 2008 No. 9n. Secondly, Methodological recommendations for organizing electronic document management, approved by Order of the Federal Tax Service of Russia dated November 2, 2009 N MM-7-6/534@.
Note that although the above Methodological Recommendations were adopted quite a long time ago, in fact they came into effect only at the end of November 2010 (Order of the Federal Tax Service of Russia dated November 17, 2010 N ММВ-7-6/610@ "On putting software into commercial operation security that implements the Methodological Recommendations approved by Order of the Federal Tax Service of Russia dated November 2, 2009 N MM-7-6/534@"). Prior to this, the procedure for submitting electronic reporting and the necessary documents were determined by Order of the Federal Tax Service of Russia dated February 6, 2008 N MM-3-6/50@.
Due to the fact that the new rules came into force quite recently, we will consider the procedure for all participants in electronic document management in more detail. First of all, we draw the attention of readers to the fact that, in accordance with the new procedure, a mandatory participant in electronic document flow is now specialized telecom operator. Previously, especially in practice, it was possible to submit electronic reporting directly to the tax office server.

Electronic reporting process

So, in process the following happens.
The taxpayer generates a tax return (calculation) in electronic form (in accordance with the approved format and procedure for filling it out) and signs it with an electronic digital signature (legal or authorized representative). Generates an information message about the details of the power of attorney issued to the representative (if the digital signature belongs to the representative) and sends the signed documents - a tax return (calculation) plus an information message about the details of the power of attorney (if necessary) to the tax authority through a special operator.
Within two hours, the special operator records the date of sending of the electronic document (documents), generates confirmation of the date of sending of the electronic document (documents), certifying it with his digital signature, sends confirmation of the date of sending of the electronic document (documents) to the taxpayer (representative) and to the tax authority.
Attention! If the declaration is successfully accepted by the tax authority, this date will be considered the date of its submission.
Within 24 hours, the taxpayer generates a notice of receipt of confirmation of the date of sending of the electronic document (documents), signs it with an electronic digital signature and sends it to the special operator.
The tax authority, no later than four hours from the moment of receipt of the electronic document (documents) of the taxpayer (representative), monitors its compliance with the requirements of paragraph 1 of Section. I of Appendix No. 6, carries out primary control in accordance with paragraphs 2 - 5 of section. I Appendix No. 6.
In case of compliance, it generates, signs and sends to the taxpayer, through a special operator, a notice of receipt of the electronic document (documents) of the taxpayer (representative), and to the special operator - a notice of receipt of confirmation of the date of dispatch.
In case of discrepancy, it generates an error message, which is sent to the sender registered in the system in clear (not encrypted) form, and generates a notification of refusal indicating the reasons for the refusal.
The document flow procedure ends here.
Attention! If at this stage an error message or notification of refusal is received, the declaration (calculation) is considered to be submitted in violation of the electronic document flow deadlines!
If there are no grounds for refusal to accept (within four hours from the receipt of the electronic document... from the taxpayer), the tax authority sends the received documents for further processing.
Then, within four hours from the moment of entry into the software package for further processing, it carries out final control for compliance with the requirements of Section. II Appendix No. 6.
If there are no violations, registers a tax return (calculation) and generates an acceptance receipt.
If a violation is detected, it generates a notification of refusal of admission indicating the reasons for the refusal.
The tax authority sends a receipt for acceptance of a tax return or a notice of refusal no later than the next business day after the day of receipt to the taxpayer through a special operator. Please note that if a refusal notice is received at this stage, the declaration (calculation) is considered not submitted! The declaration is submitted as soon as the payer receives the acceptance receipt. In this case, the date of submission of documents is considered to be the date indicated in the confirmation of the special communications operator.
Based on the results of processing the tax return (calculation), the tax authority generates a notice of entry (or a notice of clarification) in case of errors and, no later than the next business day following the day of receipt, sends it to the taxpayer through a special operator.
The document flow is completed if the entry notification is received. A clarification notice means that clarifications must be made to the declaration (i.e., a corrective report must be submitted). Accordingly, when submitting this data, the same procedure applies as when submitting the main declaration.

Dispatch confirmation

The new procedure has significantly expanded the list of documents that need to be exchanged. He delimited the time allotted to the special operator and the tax authority to perform certain actions. Identified those moments when the document flow is completed and the reporting is submitted. Thus, now, to confirm that the reporting has been submitted, the taxpayer must have: confirmation of dispatch from the special communications operator and a receipt. The document flow ends with a notification of entry.
It is obvious that the procedure discussed above has significantly complicated the life of taxpayers. And in the past there have often been disputes about what day is considered the date of submission of electronic reporting. This became relevant for those who submitted reports in the last days, but for some reason (technical failures, errors in the submitted documents, etc.) the tax authorities refused to accept these reports. Or for those who simply could not, for technical reasons, send reports to the Federal Tax Service or even to the special operator’s server. As a result, according to the Federal Tax Service, the taxpayer violated the reporting deadlines, and naturally, the inspectors tried to fine him under Art. 119 of the Tax Code of the Russian Federation.
How were these problems solved? In all cases, the time of sending the declaration was set according to the date recorded in the confirmation of the special communications operator. And although the tax authorities insisted that the reporting could not be submitted without a control protocol, the established arbitration practice was clear. If the taxpayer had a confirmation from a special communications operator about sending the report and if this report was sent on time, then the accrual of a fine for failure to submit a declaration was considered unlawful (Resolution of the Federal Antimonopoly Service of the North-Western District of March 12, 2010 in case No. A13-5546/2008) . This rule was in effect even in cases where the declaration was submitted in an outdated format (Resolutions of the FAS CO dated August 3, 2006 in case No. A09-2953/06-29, FAS PO dated March 22, 2006 in case No. A49-11353 /2005, FAS ZSO dated January 24, 2007 N F04-8916/2006(30071-A45-41)).
The return will now be considered unfiled until the taxpayer receives the acceptance receipt. A receipt will be generated only if the receiving and software systems on the inspection side do not detect certain errors. And they can be very different, in particular, the declaration may simply not be read or may be generated by the taxpayer in an old format. In this case, the accountant will receive either an error message or a notification of refusal to accept the report, which will list the errors due to which the file was not accepted. In both cases, the document flow stops. This means that all errors must be corrected and the report resubmitted. At this stage the report is considered not submitted. Naturally, if the reporting is sent on the last day and is not accepted, disputes with the Federal Tax Service cannot be avoided.
It is now difficult to predict how arbitration practice will develop. On the one hand, still in Art. 80 of the Tax Code of the Russian Federation, the deadline for submitting an electronic declaration is defined as the date of confirmation of the telecom operator. However, now the current recommendations directly determine: in order for the report to be considered accepted and the document flow to be completed, the taxpayer must have not only the confirmation of the special operator, but also a receipt of acceptance. Of course, the newly introduced rules worsen the situation for taxpayers.
Now, in order to guarantee the timely submission of electronic reporting, the declaration must be sent at least two days before the deadline for its submission. Otherwise, taking into account the time allotted to the tax authorities for its verification, the declaration may not be submitted. In addition, given the almost universal unwillingness of tax authorities to ensure round-the-clock operation of software systems, as well as the lack of a sufficient number of technical specialists, problems for taxpayers will increase. And it is unlikely that the “emergency situations” provided for in the Methodological Recommendations will correct the situation.

Late submission

The first and, perhaps, the most effective solution to the problem is not to leave reporting until the last days. It must be borne in mind that telecom operators may also have technical difficulties, for which the taxpayer will ultimately have to answer. After all, responsibility for late submission of the declaration rests with him. This is especially true for those whose obligation to submit electronic reports is determined by the Tax Code. Although judges believe that in this case the organization has the right to submit reports on another medium (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 17, 2009 N 11500/08, dated February 3, 2009 N 11482/08), there is still a possibility of litigation quite high. Moreover, the Tax Code of the Russian Federation now provides for a fine for failure to submit reports in electronic form. Those who submit electronic declarations voluntarily and leave their submission until the last days can be recommended to bring the documents in person or send them by mail.
However, situations are different. If, however, it happens that for some reason the electronic declaration was not submitted on time, do not give up and challenge the decision of the tax authorities in court. In any case, the fine can be significantly reduced. As noted by the Supreme Arbitration Court of the Russian Federation (see Resolution No. VAS-11019/09 of December 8, 2009), the fine for failure to submit a declaration cannot be several times greater than the arrears. Also, when trying to fine a taxpayer under Art. 119 of the Tax Code of the Russian Federation, one can refer to the absence of his guilt (Resolutions of the Seventeenth Arbitration Court of Appeal dated March 26, 2009 N 17AP-1692/2009-AK, FAS East Siberian District dated August 19, 2010 in case N A58-10700/09) .
In general, of course, it seems obvious that after the new procedure comes into force, many organizations will lose the desire to submit reports electronically. Moreover, for the majority at present this is still a voluntary matter. Many will return to the old proven method and will once again submit reports using regular mail, because... There are fewer and fewer advantages to presenting reports electronically.