The account lock on
Often companies face the problem when the tax Inspectorate has suspended operations on the account. Take a closer look at what appears to "lock" the account and in which cases is this possible?
We should note that the tax Inspectorate has the right to make a decision on suspension of account transactions only with respect to debit transactions. Conducting debit transactions of a taxpaying organisation shall be terminated not completely, and in the amount indicated in the decision on. In addition, the payment of claims for compensation of harm, caused to life and health, payment of alimony, severance benefits and remuneration of persons employed or working under an employment contract (the contract), payment of compensations to authors of results of intellectual activities and operations on debiting funds to the payment of taxes (advance payments), fees, insurance fees, the relevant penalties and fines and their transfer to the budget system of the Russian Federation have precedence over the decision to block the account, that is, continue to be fulfilled.
Article 76 of the Tax code provides for a closed list of cases when the tax authorities are entitled to adopt a decision on suspending transactions on the account. In particular, these situations include: 1) violation of the deadline for submitting a tax Declaration more than 10 days; 2) breach of duty on the transfer to the IRS the receipt of requests for documents or clarification, notice of the call to the inspection; 3) breach of the duty to provide a receipt from the tax documents in electronic form within 10 days from the date of establishment of the fact of default of this obligation; 4) violation of the deadline for submission of calculations of amounts of personal income tax calculated and withheld by tax agent for more than 10 days; 5) failure to pay taxes, fees, penalties or fines.
Regardless of the reason "freeze" on the account, the IRS is obliged to give the taxpayer a copy of the decision on suspending transactions on the account not later than the next day after the date of the decision. In judicial practice has not formed a unified approach regarding the question whether the cancellation decision, a copy of which was sent to the taxpayer. However, there are acts where the court found the decision on suspension debit transactions on the account are invalid, including because of violations on the responsibilities (e.g., the regulation of FAS Moscow district dated 20.05.2011 № KA – A40/4435-11 on business № A40– 85562/10-20-435).
Interesting is the fact that the imposition of the suspension of expenditure transactions in the account may be in the period of the company in the bankruptcy proceedings. Thus, the Plenum of the RF explained that the legislation of the Russian Federation does not establish any cancellation of freezing accounts tax Inspectorate produced before the introduction of monitoring procedures or prohibition for the implementation of the steps in this procedure. However, the date of introduction of procedure of financial improvement, external management or bankruptcy proceedings specified the suspension shall automatically terminate in the force of law and does not require the decision of the tax authority decision on its cancellation (item 6 resolution of the Plenum of the SAC dated 06.06.2014, № 36 "On certain issues related to the conduct of the credit organizations of Bank accounts of persons in bankruptcy procedures").
We should also mention that the decision of the tax inspection about the account lock can not be canceled by the implementation of the reorganization. In addition, the suspension of debit transactions on the account of the company is the reason for the refusal of banks to open a new account, Deposit, Deposit (clause 12 of article 76 of the tax code).
So how is it possible to return to "working condition" used?
Russian legislation provides for several options of action "affected company", distinguished by "speed reaction" and the financial cost.
If the taxpayer admits that actually has committed a violation giving rise to "freeze" accounts, most affordable and quickest way to remedy the situation is to eliminate this violation. The decision to cancel the suspension of operations on accounts shall be sent on to the Bank in electronic form not later than the day following the date of such decision.
The taxpayer may exercise his right to send in a tax authority an application containing the proposal to impose a lock on another account, in return specified in the decision on suspension of debit transactions. This method is relevant if the "frozen" account is essential for the company and go over it with a large turnover. The statement is made in a simple written form and attached certificate from the Bank confirming the balance of funds in the account. The remaining amount needs to enable it to meet the inspection requirements in full. The account must be withdrawn within two days of receipt of the relevant application.
Article 74.1 of the Tax code of the Russian Federation provides for the granting by the taxpayer of a Bank guarantee. This method will require a little more time than the previous two. It can be used when the organization plans to appeal the decision of the tax authority, or when the taxpayer fails to prepare the reporting documents.
If the company does not agree with the recommendations on the solution in this case she may appeal to the superior tax authority. In case of failure of the latter to satisfy the complaint should go to court. It is worth noting that this procedure of all these the most difficult and costly "temporary", labor and financial resource. In the case of a positive outcome of the mentioned option, the taxpayer is entitled to collect from the tax on interest for each calendar day starting from the day the Bank receives the decision on suspension of operations on accounts of a taxpayer up to the date of receipt by Bank of the decision on cancellation of suspension of operations on accounts of a taxpayer-organization. The interest rate is calculated based on the size of the Bank of Russia key rate effective on the days illegal suspension of operations under accounts of the company, and the blocked amount of funds.
In addition, it is worth noting that the court's adoption of interim measures in the form of suspension of execution of the decision on attraction to tax responsibility, and in some cases is grounds for cancellation of the decision of tax inspection on the suspension of transactions on accounts (for example, the Decree of the Presidium of the Russian Federation from 25.12.2012 № 10765/12 in the case of A64 – 6176/2011).
In conclusion of the above, it follows that the organization had become "a hostage" of the decision on the suspension of expenditure transactions in the account should not despair. You need to choose the right course and act quickly. Companies, that have a single settlement account, in such a situation I would like to advise not to forget about provided by the civil legislation of the Russian Federation the methods of execution and termination of obligations (for example, offsetting a similar obligation, the performance of an obligation by a third party, etc.).