The Federal Tax Service gave a new relief to businesses with tax debts

The Federal Tax Service has added a new mitigation to the moratorium on blocking accounts when collecting debts from businesses. Until June 1, the department will not apply interim measures in the form of suspension of operations on accounts. However,

The Federal Tax Service (FTS) ordered to expand the moratorium on the use of enforcement measures against businesses that cannot pay taxes and contributions due to sanctions. In addition to the ban imposed back in March on the suspension of account transactions in the presence of tax arrears, a moratorium is actually added on interim measures in the form of blocking an account following a tax audit. The second relaxation, like the original one, will be valid until June 1, 2022. The corresponding order dated April 29, signed by the deputy HEAD of the Federal Tax Service Konstantin Chekmyshev, was received by the territorial tax authorities. The document is at the disposal of RBC, its authenticity was confirmed by two sources familiar with the contents of the letter.

The already announced moratorium implies a postponement for the application of penalties. But the Federal Tax Service took into account questions from regional departments about the application of interim measures after tax audits and provided for temporary easing "in order to reduce the risks of insolvency of taxpayers - legal entities and individual entrepreneurs affected by the new economic conditions," the letter says. Now, after the decision to prosecute for a tax violation based on the results of the audit, until June 1, it will not be possible to apply interim measures in the form of suspension of operations on a bank account. This will allow the “guilty” business to continue working, make the necessary purchases and make payments, and pay off tax debts later, experts explain to RBC.

However, the new support measure will be applied with an important caveat: if the tax authority sees reason to believe that the taxpayer will definitely not fulfill its obligations, the account will be blocked, no matter what.

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Anti-crisis measures of the tax authorities

At the moment, the Federal Tax Service has taken several support measures for businesses that may have problems paying taxes, fees and insurance premiums due to tough Western sanctions. In particular, since March 9, tax authorities have been prohibited from initiating bankruptcy of taxpayers. Two more indulgences, including a new one, apply to taxpayers who have debts, but have not yet reached bankruptcy.

The first, March ban applies to making decisions to suspend operations on bank accounts when collecting funds from debtors' accounts. This measure of influence on the taxpayer is provided for in Art. 46 of the Tax Code.

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The new decision, which will take effect until the beginning of the summer, concerns cases where the tax authority conducted a tax audit, revealed violations and issued a decision to apply interim measures in the form of suspension of account transactions. This measure of protection against non-payment of debts is provided for in Part 10 of Art. 101 of the Tax Code, and the procedure for the suspension of operations is contained in Art. 76 of the code.

Normally, these provisions provide for the following algorithm: if the value of the debtor’s property, on which interim measures can be imposed, is less than the amount of additional charges based on the results of the audit, then the tax authorities can additionally freeze the business account for the amount of charges not covered by the value of the property. At the same time, a decision on interim measures should be made only if there are “sufficient grounds,” follows from the Tax Code.

Business Importance

Interim measures are applied when the decision on recovery has not yet entered into force and the recovery itself has not begun. The moratorium introduced in March is activated when the tax authority has already identified non-payment, issued a demand, and after its non-fulfillment, the account was blocked. In fact, almost every tax audit ended with provisional measures, notes Alexander Zemchenkov, a leading lawyer in the Tax Disputes practice at the law firm Lemchik, Krupsky and Partners. “Moreover, in practice, it is the suspension of operations on accounts that is mainly introduced, since the tax authority does not find property from the taxpayer that can be banned from alienation,” he explains.

The expert draws attention to such a practical problem. “The tax authorities are not particularly eager to analyze the assets of the taxpayer, limiting themselves to the analysis of the presence of vehicles and real estate, completely forgetting about receivables, finished products, raw materials, etc.,” he says. As a result, the taxpayer is faced with a situation where he cannot use the funds in the accounts, which stops the business. “The tax authority, by applying such measures, puts itself in a disadvantageous position. After all, in order for the taxpayer to be able to pay off additional charges, he needs to run a business, receive funds from his customers, buyers, and this becomes impossible, ”says Zemchenkov.

The postponement of decisions to block accounts as a security measure will allow entrepreneurs to continue their activities, and after June 1, to execute decisions on the collection of taxes, fees, insurance premiums, penalties, fines - ideally without significant financial consequences for themselves, encouraged the managing partner of Leges Bureau Maria Spiridonova.

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Lexical difference

However, as in the case of the original March moratorium, the Federal Tax Service has provided tools to control unreliable taxpayers. If the tax authorities suspect that the debtor can withdraw assets, concessions will not work for him.

According to the wording of the Tax Code, interim measures as a means of protection against failure to comply with the decision of the tax authority are applied when without them the implementation of the decision may be “difficult” or “become impossible”. However, in a new letter from the Federal Tax Service, these two cases are separated: if the non-use of interim measures can only “make it more difficult” to recover in the future, then the moratorium will work until June 1 and the interim measures will be postponed. But in the second case, the tax will act as before.

“If there are sufficient grounds to believe that the failure to take interim measures may make it impossible to further enforce such a decision [based on the results of the audit], interim measures are applied in full,” the tax service said in a letter. What grounds are “sufficient” is not specified in the document.

RBC sent a request to the press service of the Federal Tax Service.

The catch is that there are no clear criteria for “difficulty” and “impossibility”: in practice, the tax authority, as a rule, does not explain why it believes that it will be difficult or impossible to recover later, Zemchenkov complains. “If desired, the inspectorates find grounds for the impossibility of further collection in most cases,” he clarifies. According to the lawyer, the new moratorium will be a good mechanism to support business, only if it really works.

In practice, the clause about the sufficiency of grounds for the application of interim measures may be ignored by the tax authorities, Spiridonova agrees. “Therefore, even in the previous stable economic environment, judicial practice was replete with cases of challenging the introduced interim measures,” she says.