The order of collecting of tax debts from the assets of the company

Sept. 2, 2016, midnight

The order of collecting of tax debts from the assets of the company

 

If the organization is unable to repay tax debts with money, the inspectors can collect at the expense of its assets. What is this property and what is the procedure recovery?

To collect the arrears of taxes due to the property of the organization or individual entrepreneur, on can only in certain situations, some of which are clearly defined in the legislation. They are somehow connected with shortage of money from the taxpayer.

So, recovery at the expense of the property may expect company, if: – it accounts for no money or they are, but they are not sufficient; – the taxpayer does not have electronic money, or has, but he does not have; – at inspectors there is no information about Bank accounts or about the details of corporate electronic means of payment used for transfers of electronic money.

In these situations, the tax authorities can foreclose the property tax. But only within the amounts specified in the requirement about tax payment. Of course, minus the amounts that have already been recovered from the accounts and in the form of electronic money, if such a penalty was carried out.

Attention

The requirement about tax payment should be executed by the firm within eight days from the date of its receipt. With the exception of cases when the inspectors are in requirement of prescribed longer periods.

Note that in respect of tax on profit of organizations for the consolidated group of taxpayers the Federal tax service of Russia has the right to collect the tax at the expense of other property of one or more members of the group. Green light for recovery in this case will be a shortage or absence of money on accounts in banks all group members or a lack of information about accounts.

All at a time

Collecting taxes out of property is not anyhow, but consistently.

The procedure for this.

First, the inspectors are trying to get the proper amount of tax due cash and cash in banks that have not foreclosed. Then as a source of replenishment alternately performing:

1st place: property not involved directly in production. This, in particular, securities, currency valuables, non-production premises, cars, design objects and premises;

2nd stage: finished products or goods as well as other material valuables not involved or are not intended for direct participation in production;

Phase 3: raw materials and materials intended for direct participation in production as well as machinery, equipment, buildings, structures and other fixed assets;

4th place: the property transferred under the contract the possession, use or disposal to other persons without transition to them of the ownership right on this property. Of course, if enforcement of the obligation to pay tax such contracts terminated or declared invalid;

5th place: other property. Exception – things designed for everyday personal use by an individual businessman or his family members, determined in accordance with the legislation of the Russian Federation.

The procedure of recovery

The collection itself is for a specific procedure.

First published decision to recover tax at the expense of the property. So decides the head of the IRS or his Deputy. He can do it within one year after the date of execution of the requirement about payment of the tax. And within three days from the date of adoption of such decision the person refers the decision to the bailiff-executor for execution.

Forms of decisions and orders for the recovery of taxes due to the property approved by the order FNS of Russia from may 14, 2007 n MM-3-19/293@.

If the decision on tax collection at the expense of property made after the expiration of one year after the date of execution of the requirement about payment of the tax, it is considered invalid and shall not be enforceable. However, in such situations, inspectors can still go to court. The application may be filed in court within two years from the date of expiry of the period of execution of the requirement about tax payment. And missed for a good reason, the date of application may be restored by court.

For the collection of debt the bailiff is given a two-month period. The count starts from the day when the Sheriff received a ruling from the IRS (paragraph 4 of article 47 NK the Russian Federation). Within three days from this moment, the bailiff shall issue a resolution on initiation of Executive production or on refusal in initiation of Executive production. The copy of the decision must be sent to the indebted taxpayer and to the court, another body or official which issued the Executive document. This should happen no later than the day following the day of pronouncement of the specified resolution.

Thus, that the property levied, the company can learn only from the judicial police officer-executor.

It should be borne in mind that the obligation on the informing of the taxpayer of the decision on tax collection at the expense of funds in banks, at the expense of its electronic money established by the Tax code. So, at insufficiency or absence of money on accounts or in electronic form, the firm need to prepare to receive notifications from judicial police officer-executor.

The bailiff is empowered to act... not

To refuse to initiate enforcement proceedings the bailiff may for several reasons. We call some of them, for example (article 31 of the Law № 229-FZ):

  • Executive document submitted without the claimant's statements or it is not signed. However, we must note that in some cases enforcement proceedings initiation shall be without such statements;
  • has expired and has not been restored the court's deadline for the submission of the Executive document;
  • the document is not an Executive or does not meet the requirements of Executive documents;
  • Executive document was previously filed, and the proceedings was discontinued or expired.

Because the decision on tax collection is issued in clearly defined form, it should be given mandatory details.

Why to know all this to the taxpayer? It's very simple. If any of the essential elements in the decision is no, it is not in conformity with the requirements of Executive documents. And so bailiff, as mentioned above, may deny tax Inspectorate in the enforcement proceedings.

So what are the requirements put forward by the ruling?

First, it should be written surname, name, patronymic of the official and the name of the tax authority that issued said decision.

Second, it must specify the date of adoption and number of the decision on the recovery of tax out of property.

Third, the name and address of the taxpayer-organization or the surname, name, patronymic, passport data, address of permanent residence of the individual entrepreneur, whose property is foreclosed.

Fourth, the resolution must contain the operative part. It is here reflected the demands of the tax.

Fifth, it must be stated date of entry into force of the decision on the recovery of the tax by the taxpayer.

And finally, Sixthly, the resolution must specify the date of its issuance.

The resolution on tax collection signed by the head, or on his Deputy, after which shall bear the stamp of inspection.

The initiative punishable?

The debtor has the ability to fulfill the requirement about repayment of debts under taxes voluntarily. So, if the Executive document for the first time he entered the service of the bailiff, the bailiff in the resolution on initiation of Executive production establishes term for voluntary execution by the debtor contained in the Executive document requirements.

Attention

Foreclose on the debtor's property is drawn in the size of the debt, that is, to the extent necessary for performance of the requirements. In addition, the debtor recovered the costs of the Commission of Executive actions and performance fee, subject to a judicial bailiff-executor.

Along with this the police officer should warn the indebted tax payments the firm (or IP) about the consequences of failure to comply with voluntary requirements, on the deadlines. Namely, enforcement of the requirements of the tax and collecting of performing gathering and expenses on Commission of enforcement procedures.

Usually the term for voluntary compliance may not exceed five days from the date of receipt by the debtor of the decision about excitation of Executive manufacture. If this document is submitted for execution upon expiration of the time specified in it, then set the period for voluntary execution may not exceed five days from the date of initiation of Executive production.

If a tax debtor to repay debts to the government voluntarily, the enforcement proceeding is completed.

In other cases, the Executive production ends or when you sell chargeable assets and the repayment from the proceeds of debt, or if the court of the debtor insolvent (bankrupt).

Interestingly, officials of tax authorities shall not be entitled to acquire property of the taxpayer that is implemented in the order of execution of the decision on tax collection at the expense of his property.

Under attack property rights

In the framework of enforcement proceedings, the penalty may be imposed not only on property but also on property rights belonging to the debtor. What rights come under attack:

– the right of the debtor to a third party fails to perform any payment obligation to him as a creditor (ie the debtor). Here – right the requirement for payment of actually delivered by the debtor of goods, the executed works or the rendered services, for hire, rent and others, i.e. accounts receivable;

  • right of claim as a creditor under the writ of execution;
  • the right to lease real estate; – exclusive right to result of intellectual activity and means of individualization;
  • the right of claim under contracts on the alienation and use of exclusive right for result of intellectual activity and means of individualization;
  • belonging to the licensee the right of use of result of intellectual activity and means of individualization;
  • other debtor-owned property rights.

In the collection of accounts receivable there are two variants of developments: either by repayment by the debtor of its debt or through the sale of accounts receivable from the auction. The last option is relevant in the absence of the consent of a recoverer or non-payment by the debtor of the debt into the Deposit account of the division of the bailiffs.

However, to collect the receivables is not in all cases.

Thus, in particular, this method of repayment of debts to the budget is not applicable when:

  • the Statute of limitations for collection has expired;
  • the debtor is in a foreign state with which Russia has not concluded a contract on legal assistance;
  • the debtor is in the process of liquidation;
  • the debtor ceased its activities as a legal entity and excluded from the register;
  • in respect of the debtor entered bankruptcy.

If the recovery can still be performed, the bailiff shall issue an order. The document not later than the day following the day of its adoption, shall be sent to the debtor and the parties to enforcement proceedings.

The decree specifies the responsibility and procedure for the payment of money by the debtor to the Deposit account of the division of the bailiffs, as well as the prohibition to the debtor to modify the relationship on the basis of which originated the receivables.

As soon as the debtor will receive from the bailiff regulation, he shall immediately inform the bailiff and the debtor to repay the debt, that is, the transfer to the account of the division of the bailiffs of the required amount.