Tax officials can block an organization’s bank account for various reasons. How to avoid this trouble and how to unblock a current account blocked by the tax office, if this still happened?

The Federal Tax Service has the right to block or suspend transactions on a taxpayer's current account. The situations in which this is possible are strictly regulated by the Tax Code of the Russian Federation. However, how it is necessary for an entrepreneur or organization to act and how to unblock a bank account blocked by the tax authorities, the laws do not say. So, what to do in this difficult situation? We have prepared instructions with examples of how you can quickly and without loss get out of such trouble and resume activities. After all, starting from 2014, the taxpayer will not be able to open a second current account and transfer all transactions to it.

Tax blocked the account: causes and consequences

The right of the Federal Tax Service of Russia to block the settlement account of an organization is defined in Article 76 of the Tax Code of the Russian Federation, which contains an exhaustive list of reasons why banking operations may be temporarily suspended:

• the legal entity was late in submitting the tax return to the Federal Tax Service by 10 working days from the date of the deadline for its submission (clause 1, clause 3, article 76 of the Tax Code of the Russian Federation);
• the tax agent did not submit a calculation in the form 6-NDFL to the Federal Tax Service within 10 working days from the date of the deadline for its submission (clause 3.2, article 76 of the Tax Code of the Russian Federation);
• the taxpayer did not comply with the requirement of the tax service to pay tax, insurance premiums, penalties or fines (clause 2, article 76 of the Tax Code of the Russian Federation);
• the taxpayer, who, by virtue of the requirements of the Tax Code of the Russian Federation, is obliged to submit reports in electronic form, did not submit to the tax service an electronic receipt confirming the receipt of the document received from the Federal Tax Service in electronic form within 6 days from the date of its receipt (clause 2, clause 3, article 76 Tax Code of the Russian Federation).

As follows from the letter of the Ministry of Finance dated April 21, 2015 N 03-02-08 / 22548, such documents include requirements for the submission of documents and for the submission of explanations, as well as notifications about summoning representatives of the organization to the tax office.

In addition, account transactions may be suspended for the reasons specified in clause 10. article 101 of the Tax Code of the Russian Federation. If the Federal Tax Service decides that the organization does not comply with the decision that was made as a result of a desk or field audit, due to the fact that the total value of its property, according to accounting data, is less than the amount of arrears, penalties and fines. However, in this case, before blocking the account, the Federal Tax Service must decide on interim measures in the form of a ban on the alienation (pledging) of all property of such a legal entity.

It must be said right away that the Pension Fund, the FSS and Rosstat do not have the right to block bank accounts of organizations and individual entrepreneurs. As well as the Federal Tax Service in all other cases of violations of tax laws, such as late provision of advance payments or balance sheets. There is no right to apply this measure even if the calculation of insurance premiums is not provided. True, officials intend to change this moment in the near future: the corresponding bill is already under consideration.

Let's consider how to unblock a bank account, blocked by the tax, with an organization or individual entrepreneur in different situations in more detail.

Blocking of a settlement account for non-fulfillment of the requirements of the tax authorities for the payment of tax or insurance premiums

This reason is provided for by paragraph 2 of Article 76 of the Tax Code of the Russian Federation, which states that the Federal Tax Service can limit the debtor's banking operations only within the amount of the arrears, the demand for payment of which was made to him. All bank accounts are blocked and funds are debited from them until the full repayment of the arrears. If there are balances on several blocked accounts, the allowable limit may be exceeded.

Example : The organization had an income tax arrears in the amount of 5 thousand rubles, it was required to pay 7 thousand rubles, including penalties. The tax settlement account was blocked, not just one, but operations on all bank accounts of this organization, of which there were three. Each of them had a balance of 10 thousand rubles. Thus, not the 7,000 rubles stated in the demand, but 21,000 rubles were under arrest by the Federal Tax Service. This situation can be resolved only by sending a written application to the Federal Tax Service until the arrears are written off from the accounts in a triple amount.

Blocking of the current account for late submission of the declaration

If the taxpayer is late with the submission of any of the declarations provided for by the Tax Code of the Russian Federation for more than 10 days, the Federal Tax Service has the right to restrict all transactions on his bank accounts. This is provided for by paragraph 3 of Article 76 of the Tax Code of the Russian Federation, as well as paragraph 6 Article 6.1 of the Tax Code of the Russian Federation. Tax authorities have this right only in relation to non-submission of tax returns, the delay in all other reports does not lead to such consequences. The account is blocked completely, its owner cannot fully dispose of it. The law allows only payments related to labor relations and the payment of taxes and fees. Data on such payments and their priority are given in the table.

Payment	Order of payment
According to executive documents on compensation for harm caused to life and health, and on the recovery of alimony	First of all
According to executive documents on the payment of severance pay, wages under employment contracts and remuneration to the authors of the results of intellectual activity	Second stage
By transferring salaries to employees (as well as receiving cash for its issuance)	Third line
On instructions from the Federal Tax Service Inspectorate for the transfer of debts on taxes and fees to the budget and instructions from the PFR or the FSS for the transfer of insurance premiums
According to executive documents providing for the satisfaction of other monetary claims (for example, for compensation for material damage)	Fourth turn
For the payment of taxes, fees, insurance premiums, as well as penalties for their late payment and fines for violation of tax laws and laws on compulsory social insurance	Fifth turn

Blocking of a current account in the absence of a receipt confirming the acceptance by the taxpayer of electronic documents from the Federal Tax Service

The possibility to restrict operations in the bank in case of failure to submit an electronic receipt to the Federal Tax Service confirming the receipt of documents or claims is effective from January 1, 2015. The relevant requirements are in article 23 of the Tax Code of the Russian Federation. Taxpayers within six days are required to confirm receipt from the Federal Tax Service of documents sent to them. An electronic receipt can be sent to the tax office via telecommunication channels upon receipt of the following documents:

• requirements for the submission of documents;
• clarification requirements;
• notification of a call to the Federal Tax Service.

The Federal Tax Service blocks the account if the receipt is not submitted within 6 days, however, a decision can be made within 10 days after the expiration of this period. Therefore, the taxpayer has time to correct the oversight and prevent blocking. The account is completely blocked. Mandatory payments are allowed in the same order as when blocking for the lack of a declaration.

How to unblock a current account blocked by the tax office

It is necessary to act promptly in case of suspension of operations on bank accounts, since the inability to fully use financial resources paralyzes the economic activity of an organization or entrepreneur. There is a common horror story among lawyers and tax agents that it is very difficult to remove restrictions and one cannot do without the help of specialists. In fact, everything is quite simple. It is important to adequately respond to the situation and act consistently and without panic.

The scheme of actions in each of the reasons for the introduction of restrictions is similar. Because it involves only three important steps. The result directly depends on the speed and accuracy of the execution of all actions.

Step 1. Finding out the reason why restrictive measures were introduced

In the branch of the bank in which the current account is opened, you need to find out on the basis of which decision of the Federal Tax Service the operations were suspended. Employees of the credit organization must report the date and number of this document. After that, you need to drive up to the Federal Tax Service and, using the details of the decision, clarify by whom and for what it was made. Most often, the decision reaches the addressee through specialized communication channels a little later than the bank. Finding out the reason for such measures will reduce the time to solve the problem.

Step 2. Eliminate the cause

When the reason for such unpleasant consequences is known, it must be eliminated as soon as possible. If there was a tax arrears, it must be paid off. If there was a delay with the declaration, the report must be sent to the Federal Tax Service. In the absence of an electronic receipt, it must be transferred, simultaneously fulfilling all the requirements from the document to which it concerned. It is imperative to notify the Federal Tax Service of the elimination of the causes as soon as possible.

If restrictive measures are associated with failure to submit a report or submitting it in the wrong format (on paper instead of TKS), then you need to arrange a connection to one of the special communications operators for.

Step 3. Informing the Federal Tax Service about the elimination of the violation

Usually unlocking occurs within a day after the inspection receives money in the budget or the required reports or documents. For a guarantee, you can exchange electronic documents with the Federal Tax Service (for example, there is a personal key or the organization uses the services of special intermediaries) and inform the inspection that the violation has been eliminated. Article 76 of the Tax Code of the Russian Federation The following maximum terms have been established for removing the arrest from the taxpayer's accounts:

• in case of arrears - on the next business day after receiving a bank statement on payment of tax and penalties on demand;
• in the absence of a declaration - on the next business day after the submission of the declaration or calculation of 6-NDFL or documents confirming their submission earlier in time;
• in the absence of a receipt for the receipt of electronic documents - on the next business day after the transfer of the receipt to the Federal Tax Service and the submission of the requested documents.

Before the introduction of specialized electronic communication channels, it took longer to unblock accounts, because the decision of the Federal Tax Service to the bank to remove restrictions was delivered by couriers. Now taxpayers are not involved in relations between the Federal Tax Service and banks, and data exchange takes a few minutes. By the way, if the financial monitoring of the bank blocked the account of a legal entity for other reasons, for example, for suspicion of money laundering or terrorist financing, this instruction will not help and the algorithm of actions will be different.

Possible difficulties

1. The arrears have been paid off, but operations have not resumed

The time difference between the payment and the receipt of funds in the budget can reach 3 days. You can speed up the unlocking process by submitting to the Federal Tax Service evidence of the tax payment. This can be a bank statement or an original payment order with a bank mark.

2. The account is blocked in one bank, and another bank refused to open an account

Until 2014, when an account in one bank was blocked, it was possible to open another account and work through it. Now banks are prohibited from opening new settlement accounts for those individual entrepreneurs and organizations that have suspended operations on existing accounts. Therefore, you still have to eliminate the cause.

The tax office can block a current account in three cases:

• when the requirement to pay the tax issued by the tax inspectorate is not fulfilled;
• when the declaration was not submitted in time;
• when an electronic receipt of acceptance of claims or notifications from the tax office was not sent.

Let's consider each case in more detail.

Blocking the current account of an organization or individual entrepreneur due to non-fulfillment of tax requirements

If the requirements for the payment of taxes () are not met, the inspection has the right to block the current account within the amount of the unpaid tax specified in the requirement. Moreover, the tax authorities block all accounts that an organization or individual entrepreneur has, because of which they may have some problems.

Suppose a company has several accounts, each of which has cash in the amount of 10,000 rubles. The amount of the claim is 7,000 rubles, but the inspection blocks all accounts for this amount. It turns out that the organization or individual entrepreneur has the opportunity to use for each account an amount that exceeds the blocking amount, that is, to withdraw 3,000 rubles from each account. Thus, there is a bias: the amount of claims is 7,000 rubles, and the organization has actually blocked 21,000 rubles. In this case, the taxpayer can quickly unblock excessively blocked accounts by writing an application to the Federal Tax Service with a corresponding request.

Why does it make sense to make such a statement? Because even if the taxpayer was able to make a payment at the current moment, this does not mean that the tax office will unblock the current account on the same day. It should be borne in mind that the process of receiving payments is quite lengthy, since transfers go through the treasury, and payments to the IFTS can be received within three business days. Thus, the tax office will see this payment in 2-3 days. And if you need money right today, then you can contact the Federal Tax Service and ask to unblock at least the remaining accounts on the current day.

Blocking of the current account due to late submission of the declaration

If you did not submit a declaration on time, the tax authority has the right to block the current account () after 10 days within three years. Such an action by the IFTS applies only to the case with a declaration; failure to submit any other reports cannot lead to blocking of the current account.

The arrest of the current account is made in full for the entire amount. It is also worth emphasizing that blocking an account does not mean that taxpayers cannot make any payments. He can make the payment of taxes and payments, the order of which is higher than the order of tax payments.

Blocking of the settlement account in case the receipt of acceptance of electronic documents is not submitted to the inspection

From January 1, 2015, taxpayers are required to confirm receipt from the tax inspectorate of documents sent during control (). The receipt of acceptance of such documents is sent to the inspection through telecommunication channels within 6 working days from the date of their sending by the tax authority.

The receipt is sent upon receipt from the Federal Tax Service Inspectorate of the following documents: requirements for the submission of documents, requirements for the submission of explanations, notification of a call to the tax authority.

The decision to block the current account in case of violation of the requirement is made within 10 working days after 6 days for sending the receipt.

What to do when your account is blocked

The action plan includes only two steps, and you need to act quickly to unlock the account as quickly as possible.

1. Finding out the reason for the arrest of the current account.

The easiest way is to check with your bank branch the number and date of the decision of the tax office. Then you need to contact the tax inspectorate, the department of desk audits, tell the specialist the number and date of the decision, so that he tells the reason for blocking the account. This is necessary if the decision to block did not reach you by mail or through specialized communication channels.

2. Eliminate the cause of blocking.

If you have not fulfilled the requirement of the tax inspectorate to pay tax, then you need to pay tax. There is a practice of submitting to the tax inspectorate a copy of the payment order with a bank mark or sending this copy through specialized communication channels. After receiving the tax payment funds, the tax inspectorate will unblock the account within 24 hours.

The same scheme applies to the situation with the submission of the declaration: to unlock the account, you need to submit a declaration, the most convenient way for this is specialized operators or. Within a day, the current account will be unblocked.

In order to unblock the account in a situation where the receipt of acceptance of electronic documents has not been submitted to the inspection, you need to send the receipt to the inspection and submit the requested documents.

Previously, unlocking took a longer time, because the decision of the tax office was delivered to the bank by couriers. Now this is happening faster - through specialized communication channels, and the taxpayer does not need to take part in the relationship between the tax inspectorate and the bank.

Case Studies

- The taxpayer made a tax payment, but the account was still blocked.

This is due to the gap between the moment of payment and the receipt of funds by the tax office, which takes up to three days. In this case, there is no need to panic. You just need to contact the tax office and provide evidence of tax payment, for example, the original payment order with a bank mark. In this case, many tax authorities go towards the taxpayer and promptly cancel the blocking decision.

- The taxpayer has no debts to the inspection, and the account was blocked.

The payer made the payment, and the next day he receives a notification about the blocking of the account - this situation is again explained by the gap in payments and does not mean that the money did not reach the tax office. In this case, you need to contact the tax office, verify payments so that it quickly unblocks the account.

- The organization's current account was arrested, and the taxpayer wants to open another account in order to continue to conduct business.

Previously, when an organization's account was blocked, the taxpayer could quickly open another account and start making payments through it. Since 2014, the situation has changed: if an organization or individual entrepreneur has blocked accounts, then banks do not open new accounts for them. This must be remembered by those taxpayers who deliberately go to non-payment of tax on demand. Now, when a current account is blocked, it will no longer be possible to start cash flows through newly opened accounts.

The material was provided by the corporate publication for the clients of the IRBiS Group of Companies "Sistema success"

Surely, most of us are familiar with such an unpleasant and very problematic phenomenon for any business entity as a “blocking” of a current account by a tax authority. You can’t withdraw money for your own needs, you won’t be able to pay for the services of the supplier either, the organization’s activities seem to be paralyzed. How should a taxpayer behave in such a difficult but often occurring situation? How to prevent its occurrence? What are the effective ways to "unblock" the organization's accounts? You can find answers to these and many other questions in this article.

1. General provisions on the suspension of operations on bank accounts

We all know perfectly well that in order to ensure the activities of the state, the Constitution of the Russian Federation establishes the obligation to pay legally established taxes and fees in a timely manner (Article 57 of the Constitution of the Russian Federation). In turn, in order to ensure the fulfillment of the obligation to pay taxes, the legislator established measures of state coercion, which are designed to ensure that the taxpayer fulfills his constitutional obligation.

In the Tax Code, the constitutional obligation to pay legally established taxes and fees is detailed: in accordance with paragraphs. 1 p. 1 art. 23 of the Tax Code of the Russian Federation, taxpayers are required to pay legally established taxes, and in accordance with paragraph 4 of the same article, submit tax declarations (calculations) to the tax authority at the place of registration in the prescribed manner.

In case of non-fulfillment or improper fulfillment of the duties assigned to the taxpayer, the tax authority may hold him accountable, as well as use mechanisms for forcing him to fulfill the obligations established by the Tax Code.

Chapter 11 of the Tax Code of the Russian Federation is devoted to ensuring the fulfillment of the duties of taxpayers. So, in accordance with paragraph 1 of Art. 72 of the Tax Code of the Russian Federation, the fulfillment of the obligation to pay taxes and fees can be ensured in the following ways:

• pledge of property,
• guarantee,
• penalty,
• seizure of property of the taxpayer,
• suspension of operations on bank accounts.

Among all the above methods, in practice the tax authorities are widely used - the suspension of operations on bank accounts, since for taxpayers this is the most inconvenient measure in terms of doing business, and therefore the most effective for the tax authorities.

Moreover, the situation becomes very depressing when the account is "blocked" quite unexpectedly, at the most inopportune moment, for example, when the taxpayer urgently needs money to conclude a profitable and important contract.

In view of the fact that the suspension of operations on accounts for the taxpayer is sad news, in order to better understand this process, as well as in order to be able to challenge the actions of the tax authority, it is necessary to consider in more detail the procedure for suspending operations on accounts, which is commonly referred to as “blocking accounts”, “account freeze” or “account arrest”.

2. Procedure for suspension of operations on accounts

The procedure and terms for the suspension of operations on taxpayer accounts in banks are regulated by Art. 76 of the Tax Code of the Russian Federation.

To suspend operations on the taxpayer's accounts, the tax authority, represented by the head or his deputy, makes a decision to suspend operations and sends it to the banks where the taxpayer has current accounts, and a copy of this decision must be handed over to the taxpayer against signature or otherwise indicating the date it was received. The transfer of the decision to the bank is carried out on paper or in electronic form (clause 4 of article 76 of the Tax Code of the Russian Federation).

Having received the decision of the tax authority to suspend operations on accounts, the bank is obliged to execute it unconditionally and suspend operations on the taxpayer's accounts from the moment the decision is received (clause 7, article 76 of the Tax Code of the Russian Federation).

In addition, after receiving a decision to suspend operations on accounts, the bank is obliged to report to the tax inspectorate information on the balance of funds on the taxpayer's accounts (clause 5, article 76 of the Tax Code of the Russian Federation).

The bank will be able to “unblock” frozen accounts only after the tax authority cancels the decision to suspend operations on accounts, because the Tax Code of the Russian Federation establishes a clear period of validity of the decision (from the moment the bank receives it from the tax authority and until it is canceled) and does not provide for options for suspending its validity (p. .7 article 76 of the Tax Code of the Russian Federation).

Note! If the taxpayer has funds on several current accounts in the aggregate sufficient to pay the arrears, fines, penalties specified in the decision to suspend operations on the account, then the taxpayer has the right to file with the tax authority an application to cancel the suspension of operations on bank accounts, indicating the accounts, on which there are sufficient funds to enforce the decision to collect the tax. (clause 9, article 76 of the Tax Code of the Russian Federation).

Bank statements confirming the availability of funds in the accounts should be attached to the application. Having received the appropriate package of documents, the tax authority, within two days from the date of receipt of the application, is obliged to decide on the cancellation of the suspension of operations on individual accounts of the taxpayer.

If the package of documents is insufficient to confirm information about the bank account proposed by the taxpayer, then the inspection may take some time to verify this information. After receiving information from the bank that there are enough funds in the accounts indicated by the taxpayer, two days are allotted for the decision to “unblock” (clause 9, article 76 of the Tax Code of the Russian Federation).

3. Reasons why the tax authorities “block” accounts

Tax legislation provides for three grounds for blocking an account:

The declaration has not been submitted;

The tax has not been paid;

Ensuring the execution of the decision of the tax authority based on the results of the audit.

Let's take a closer look at each of them.

3.1. Declaration not submitted

If the taxpayer has not submitted a tax return within 10 business days after the deadline for its submission, the tax authority may decide to suspend operations on accounts (paragraph 1, clause 3, article 76 of the Tax Code of the Russian Federation).

In this case, the tax authority is obliged to cancel the suspension the next day, after the taxpayer submits the relevant declaration (paragraph 2, clause 3, article 76 of the Tax Code of the Russian Federation).

In practice, there are cases when accounts are “blocked” by the tax authority, and the taxpayer is not required to submit a declaration.

As the court rightly pointed out cm.Decisions of the Federal Antimonopoly Service of the North Caucasian District dated July 12, 2006 in case N F08-3078 / 2006-1320A, FAS of the Moscow District dated December 2, 2004 in case N KA-A40 / 11311-04), Art. 23 of the Tax Code of the Russian Federation imposes on the taxpayer the obligation to submit to the tax authority at the place of tax registration in the prescribed manner tax returns for those taxes that he is obliged to pay, if such an obligation is provided for by legislation on taxes and fees.

Moreover, Article 80 of the Tax Code of the Russian Federation corresponds to this obligation, according to which a tax return is submitted by a taxpayer for each tax payable by this taxpayer. Thus, if the taxpayer has no obligation to pay tax, then the tax authority has no grounds to suspend the taxpayer's operations on his bank accounts.

Moreover, according to case law (cf. Decree of the Federal Antimonopoly Service of the North Caucasus District dated July 30, 2009 in case N A32-22251 / 2008-12 / 190; Decree of the FAS of the East Siberian District of December 21, 2005 N A33-12414 / 05-Ф02-6442 / 05-С1) it is unlawful to suspend operations on bank accounts if the deadline for submitting a declaration is missed as a result of an unreasonable refusal of the tax authority to accept the declaration due to its incorrect completion.

Thus, individual violations in the preparation of declarations (for example, errors in the preparation of the title page, indication of an erroneous tax period) cannot serve as a basis for suspending operations on the taxpayer's accounts or for imposing a fine under Art. 119 of the Tax Code of the Russian Federation for failure to submit a declaration.

3.2. Tax not paid

In accordance with paragraph 1 of Art. 46 of the Tax Code of the Russian Federation, in the event of non-payment or incomplete payment of tax within the prescribed period, the obligation to pay tax is enforced by foreclosing the taxpayer's funds in bank accounts.

In this case, the collection of tax debt at the expense of the taxpayer's funds is carried out as a result of the adoption by the tax authority of an appropriate decision on collection and by sending collection orders to the bank to write off the debt (clause 2, article 46 of the Tax Code of the Russian Federation).

Based on clause 7 of article 46 of the Tax Code of the Russian Federation, the tax authority at the stage of collecting debts from the taxpayer by foreclosing his funds has the right to suspend operations on all his bank accounts in the manner prescribed by article 76 of the Tax Code of the Russian Federation.

Thus, in order to ensure the execution of a decision on the collection of a tax or fee at the expense of funds held in the taxpayer's bank accounts, the tax authority is also entitled to suspend operations on the accounts of the taxpayer - organization in accordance with Art. 76 of the Tax Code of the Russian Federation.

The procedure for the indisputable collection of tax debts is complex and multi-stage, and therefore, at the stage of its implementation, the tax authority often commits procedural violations that can serve as a basis for canceling the decision to collect debts at the expense of the taxpayer's funds and, as a result, the decision to suspend operations on bank accounts.

The most common violations are violation of the deadlines for submitting a claim for payment of tax, violation of the procedure or method for submitting a claim, on the basis of which a decision is already made to collect debts at the expense of funds and bank accounts are “blocked”.

AT Decree of May 4, 2005NКА-А40/3677-05, Federal Antimonopoly Service of the Moscow District pointed out that the tax authority violated the norms of Art. Art. 69, 76 of the Tax Code of the Russian Federation, since the demand for payment of tax was handed over to the taxpayer after the expiration of the payment period, in connection with which it was not possible for the taxpayer to fulfill it within the prescribed period. Moreover, the taxpayer was collecting a debt, the terms for collection of which, taking into account the provisions of Article 70 of the Tax Code of the Russian Federation, were missed by the tax authority.

Sending a claim for the payment of tax is not only a non-normative legal act, but also the initial stage of the process of forced collection of taxes (Articles 46, 47 of the Tax Code of the Russian Federation). Non-compliance by the tax authority with the procedure established by law for sending a claim to a taxpayer significantly violates the taxpayer's constitutional guarantees for the protection of rights and freedoms.

In addition, you should pay attention to what type of correspondence (regular or registered mail) documents are sent to you from the tax office.

As the Federal Antimonopoly Service of the Urals District pointed out in its Decree of July 12, 2010 N F09-5181 / 10-C3, sending a taxpayer a demand for payment of tax (penalty, fine) in violation of the provisions of paragraph 6 of Art. 69 of the Tax Code of the Russian Federation (that is, not by registered mail) is assessed by the court as a significant violation of the procedure for the compulsory undisputed collection of taxes, penalties and fines and is an independent and unconditional basis for canceling decisions to collect debts at the expense of cash and decisions to suspend operations on accounts.

3.3. Interim measure for the execution of the decision based on the results of the audit

There is one more reason when the taxpayer's current account can be blocked. Thus, the suspension of operations on accounts can be used by the tax authorities as a security measure for the execution of decisions on audits (desk or field audits), during which taxes, penalties, and fines were assessed for payment.

In accordance with paragraph 7 of Art. 101 of the Tax Code of the Russian Federation, based on the results of consideration of the materials of a tax audit, the head (deputy head) of the tax authority makes a decision on holding liable for committing a tax offense or on refusing to hold liable.

After the decision is made, the head (deputy head) of the tax authority has the right to take measures aimed at ensuring the possibility of executing the said decision (clause 10, article 101 of the Tax Code of the Russian Federation).

However, please note that the tax authority has the right to take interim measures in pursuance of an audit decision only if it has sufficient grounds to believe that failure to take these measures may make it difficult or impossible in the future to enforce such a decision and (or) recover arrears, penalties and fines specified in the decision. In practice, such grounds may be: the presence of debt on the taxpayer's personal account, repeated failure to fulfill tax obligations, reduction of the organization's assets, a combination of circumstances indicating that the taxpayer has received unreasonable tax benefits (see, for example, Resolution of the Federal Antimonopoly Service of the Volga District dated 16.09. 2010 in case N A12-1588/2010).

In order to take interim measures, the head (deputy head) of the tax authority issues an appropriate decision, which enters into force from the date of its signing and is valid until the day of execution of the decision to hold liable for committing a tax offense or the decision to refuse to hold liable for committing a tax offense, or until the date of cancellation of the decision by a higher tax authority or court.

Note! Suspension of operations on bank accounts in the procedure for taking interim measures may be applied only after a ban on the alienation (mortgage) of property has been imposed and if the total value of such property, according to accounting data, is less than the total amount of arrears, penalties and fines payable on the basis of the decision.

So, to summarize: the Tax Code of the Russian Federation provides for three grounds for suspending operations on accounts:

a) non-payment of taxes, fees, penalties and fines;

b) a tax return not submitted on time;

c) to ensure the execution of a decision on bringing (refusal to bring) to tax liability.

However, in practice, tax officials often abuse the right granted to them and use the suspension of transactions on taxpayers' accounts as a method of psychological influence. In this connection, the following information will be useful to every accountant and manager!

4.IMPORTANT TO KNOW!

4.1. The tax authority does not have the right to "block" the account if the financial statements are not submitted, the advance calculation is not submitted, or the requested verification documents are not submitted.

The tax authority does not have the right to “block” a current account if the taxpayer has not submitted financial statements or other documents related to the calculation and payment of taxes and other obligatory payments to the budget , in view of the fact that Article 76 of the Tax Code of the Russian Federation does not contain such a basis for suspending operations on accounts. This position is supported by case law. (see Decree of the Federal Antimonopoly Service of the Moscow District dated October 05, 2007 N KA-A40 / 9465-07) and opinion Ministry of Finance of Russia in a letter dated July 12, 2007 N 03-02-07 / 1-324.

In addition, the courts recognize it as illegal to “block” an account if statistical reporting is not submitted. (see Resolution of the Federal Arbitration Court of the Moscow District dated January 29, 2009. N KA-A40 / 13357-08), information on the income of individuals in the form 2-NDFL is not provided ( see Decree of the Federal Arbitration Court of the Moscow District dated February 14, 2008 N KA-A40 / 235-08), the advance tax calculation has not been submitted (decision of the Arbitration Court of Moscow dated February 26, 2008 in case N A40-1160 / 08-75-5). The courts, recognizing the actions of the tax authorities in such situations as illegal, refer to the fact that the suspension of operations on accounts, in accordance with the provisions of paragraph 3 of Article 76 of the Tax Code of the Russian Federation, can be applied only in cases of failure to file a tax return, this provision of the law is not subject to broad interpretation .

Also, the taxpayer’s failure to submit documents requested by the tax authority during a desk or field tax audit cannot be a basis for suspending account transactions. (see Resolution of the Federal Antimonopoly Service of the West Siberian District of March 28, 2005NF04-1592/2005(9795-A46-35); Decree of the Federal Antimonopoly Service of the West Siberian District of 07.11.2005NF04-760/2005(16440-A46-40)). At the same time, the courts proceed from the fact that, in accordance with Article 76 of the Tax Code of the Russian Federation, the suspension of operations on a bank account is one of the ways to ensure the fulfillment of the obligation to pay taxes, but not a way to ensure the fulfillment of the requirements of the tax authorities in the exercise of their control functions.

4.2. Even if the account is blocked, you can use it!

In accordance with paragraph 3, clause 1, article 76 of the Tax Code of the Russian Federation, “freezing” an account by a tax authority does not mean the termination of all debit transactions. The sequence of debiting funds from a bank account is carried out in the manner prescribed by Art. 855 of the Civil Code of the Russian Federation.

If there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are debited in the order in which the taxpayer's payment documents are received, the so-called calendar sequence.

The suspension of operations does not apply to payments, the priority of which precedes the fulfillment of the obligation to pay taxes and fees.

Thus, funds can be credited to the blocked account of the taxpayer, but they are spent only in the order of priority specified in Article 855 of the Civil Code of the Russian Federation:

First of all, write-offs are carried out according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;

Secondly, write-offs are made under executive documents that provide for the transfer or issuance of funds for settlements on the payment of severance benefits and wages with persons working under an employment contract, including under a contract, for the payment of remuneration to the authors of the results of intellectual activity;

In the third place, write-offs are made according to payment documents that provide for the transfer or issuance of funds for settlements on wages with persons working under an employment contract (contract), as well as for contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and compulsory medical funds. insurance;

Taking into account the Decree of the Constitutional Court of the Russian Federation N21-P of December 23, 1997, taxes and fees should be collected in the third place.

In addition, debiting funds from the account for claims related to one queue is made in the order of the calendar order of receipt of payment documents.

Thus, a taxpayer on a blocked account can make payments of the 1st and 2nd priority, as well as payments to the budget and extra-budgetary funds from the 3rd priority, determined by law (Article 855 of the Civil Code of the Russian Federation with the features established by the Federal Law on the Federal Budget for the respective year).

4.3. Not only the tax office can block an account!

Our article is devoted to the procedure for suspending operations on a taxpayer's bank accounts, which is carried out by the tax authorities. However, similar rights to “freeze” settlement accounts are also granted to customs authorities when collecting debts on payment of customs duties and penalties (Article 34 of the Tax Code of the Russian Federation).

The procedure for suspending operations on accounts by customs authorities is established by Order of the Federal Customs Service of December 3, 2009 N 2184.

Similar powers to suspend operations on bank accounts are imputed by Art. 8 of the Federal Law of 07.08.2001 No. 115-FZ “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism” and Decree of the Government of the Russian Federation of 06.23.2004 No. 307 “On approval of the Regulations on the Federal Financial Monitoring Service” Rosfinmonitoring .

In addition, we draw the attention of readers to the fact that if you do not pay insurance premiums on time or do not submit settlements on them within the period established by law, the accounts will not be blocked, since the legislator has not endowed extrabudgetary funds with the appropriate powers.

4.4. Not every decision to suspend operations on accounts must be enforced

Not the decision to suspend operations on accounts is subject to execution in the following cases:

- the decision was made by an unauthorized body;

The decision was made in relation to a bank account, which, in accordance with the definition of an account given in Art. 11 of the Tax Code of the Russian Federation does not fall under this concept.

Let us consider the last reason in more detail, since everything is simple with the first, since the decision was made by an unauthorized body, then the bank has no legal grounds for its execution.

So, in accordance with Art. 11 of the Tax Code of the Russian Federation, an account means settlement (current) and other accounts in banks opened on the basis of bank account agreements, to which funds are credited and from which funds can be spent by the account holders themselves.

This definition includes: settlement, correspondent, current, current foreign currency accounts, “ruble” accounts of the “K” (convertible) and “H” (non-convertible) types of non-residents, accounts serviced using corporate bank cards.

However, the suspension of operations does not apply to taxpayer accounts opened on the basis of other agreements and transactions, for example: deposit, loan, letter of credit, currency transit and currency special transit accounts.

In addition, the suspension of operations on the accounts of bankrupt taxpayers is not lawful (paragraph 1 of article 126 of the Federal Law of October 26, 2002 N127-FZ “On Insolvency (Bankruptcy)”).

If the decision to suspend operations is made in an unestablished form, then it is also not subject to execution by the bank, the indicated follows from the meaning of clause 4 of article 76 of the Tax Code of the Russian Federation.

4.5. Blocked account - open a new one?

According to paragraph 12 of article 76 of the Tax Code of the Russian Federation, a bank is not entitled to open new settlement accounts for a taxpayer if there is a decision to suspend operations on accounts.

Confirmation of the above position Ministry of Finance of the Russian Federation set out in letter from12.12.2005 N03-02-07/1-336 , in which the financial department indicated that the closure of the taxpayer's account by the bank is not a basis for canceling the decision of the tax authority to suspend operations on the taxpayer's accounts, and, therefore, the bank opening new accounts for the taxpayer and executing the taxpayer's instructions on them to transfer funds to another person not related with the performance of obligations to pay a tax or fee, or other payment order, which, in accordance with the legislation of the Russian Federation, has the priority of execution over payments to the budget (off-budget fund), is a violation of Art. 76 of the Tax Code of the Russian Federation.

The courts also agree with the position of the Ministry of Finance of the Russian Federation, as in Decree of 23.09.2003 N A29-1832 / 2003 of the Federal Antimonopoly Service of the Volga-Vyatka district indicated that, according to paragraph 9 of Art. 76 of the Tax Code of the Russian Federation, if there is a decision to suspend operations on accounts, the bank is prohibited from opening any new accounts for the taxpayer indicated in the decision. AT Decree dated 26.01.2006NA42-4190/2005Federal Antimonopoly Service of the Northwestern District came to the conclusion that the closing by a bank of an account of a taxpayer-organization, in respect of which a decision was made to suspend operations, does not terminate the legal consequences of such a decision of the tax authority in terms of a ban on opening new accounts for a taxpayer-organization in this bank.

Moreover, banks are unlikely to open a new account if there is a decision of the tax authority to suspend operations or not to comply with the decision of the tax authority, since this is fraught with consequences for a credit institution in the form of penalties. So, according to clause 1 of article 132 of the Tax Code of the Russian Federation, when opening an account by a bank that already has a decision on suspension, it entails a fine of 20 thousand rubles from it, in addition, administrative liability is also provided for this act for bank officials, according to Article 15.7 of the Code of Administrative Offenses of the Russian Federation in the amount of two to three thousand rubles. Article 134 of the Tax Code of the Russian Federation provides for sanctions for banks, in case they do not comply with the decisions of the tax authorities to suspend operations on the account, in the amount of 20 percent of the amount that will be transferred according to the taxpayer's payment order, but not more than the amount of the debt and not less than 10 thousand rubles . Administrative responsibility for this act entails a fine in the amount of two thousand to three thousand rubles (Article 15.9 of the Code of Administrative Offenses of the Russian Federation).

It should be noted that there is a way out of this situation, since the impossibility of opening a new account in the same bank where the account is blocked does not entail the impossibility of opening a new account in another bank . In this connection, the taxpayer can open an account in a new bank and make the necessary money transfers through it. However, please note that this opportunity will exist only for 5 days, since it is this period that is given to the bank to report to the tax authority information about the opening of an account by the taxpayer (clause 1 of article 86 of the Tax Code of the Russian Federation), after which the new account will also be “blocked” inspection decision.

4.6. If the account is frozen, no penalty is charged

In accordance with paragraph 2 of paragraph 3 of Art. 75 of the Tax Code of the Russian Federation, penalties are not charged for the amount of arrears, which the taxpayer could not repay due to the fact that, by decision of the tax authority or court, operations on accounts were suspended or the property of the taxpayer was seized. That is, this rule excludes the possibility of charging penalties for unfulfilled tax obligations during the period when the taxpayer's account is blocked (see the Resolution of the Tenth Arbitration Court of Appeal dated 11.01.2007N. A41-K2-9953/06; Decree of the Federal Antimonopoly Service of the Volga District of August 3, 2010 in case N A57-25579 / 2009).

4.7. The tax authority will pay interest for untimely "unblocking" of the account

Federal Law No. 224-FZ of 26.11.2008 introduced clause 9.2 in Article 76 of the Tax Code of the Russian Federation, according to which, if the tax authority violates the deadline for canceling the decision to suspend operations on the accounts of a taxpaying organization in a bank or the deadline for handing over to a bank representative (directing to a bank ) decisions to cancel the suspension of operations on the bank accounts of the taxpayer-organization in the amount of funds in respect of which the suspension regime was in effect, interest is charged, payable to the taxpayer for each calendar day of violation of the deadline. Therefore, if the tax authorities are in no hurry to “unblock” the frozen account, you have the right to demand interest for violation of the deadlines.

At the same time, interest will be calculated on the basis of the refinancing rate of the Bank of Russia that was in force on the days when the tax authority violated the deadline for canceling the decision to suspend operations on the accounts of the taxpaying organization in the bank or the deadline for handing over to the representative of the bank (directing to the bank) the decision to cancel the suspension of operations on accounts.

4.8. Challenging the illegal suspension of account transactions

If the taxpayer is faced with a situation where his accounts are illegally “blocked” and negotiations with the tax authority have not yielded a positive result, all that remains is to go to court to protect their rights and legitimate interests.

However, we immediately draw your attention to the fact that this procedure is quite lengthy. However, there is a method that can allow the taxpayer to use a blocked account for the duration of the trial. The taxpayer on the basis of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation may apply to the court to suspend the decision to “block” the account, if it is satisfied by the court, this means that for the period of the trial, the taxpayer has the right to carry out debit transactions on current accounts and open new accounts without any restrictions in the same credit institution. On this occasion, there is an Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83, according to which, under the suspension of a non-normative legal act, is understood not the recognition of the act as invalid as a result of an interim measure of the court, but the prohibition of the execution of those measures that provided for in this act.

In addition, in the event of a judicial appeal against the decision of the tax authority to suspend operations on bank accounts, the taxpayer must reasonably motivate his claims, referring to the fact that illegal blocking of the account by the tax authority can lead to significant financial losses and document this.

An analysis of judicial practice shows that there are judicial acts in favor of taxpayers. For example, Decree of the Federal Antimonopoly Service of the Moscow District dated February 20, 2008 N KA-A40 / 680-08, in which the court indicated that, the decision of the tax authority to suspend operations on bank accounts will cause significant damage to the organization - it will make it impossible to fulfill obligations to suppliers, interest will have to be accrued on the amounts of untimely paid wages to employees, employees will have to be suspended until the debt is fully paid off on wages, in connection with which the court legitimately granted the taxpayer's application to suspend the decision by which the accounts were blocked.

Another positive solution Decree of the Federal Antimonopoly Service of the Moscow District dated August 17, 2007 N KA-A40 / 7894-07. This judicial act concluded that failure to take measures to secure a claim may cause significant damage to the applicant, namely, it actually makes it impossible to fulfill obligations to employees of the organization to pay wages and to contractors under civil law contracts, fulfill other financial obligations, since all funds received on the applicant's current account are transferred in accordance with the collection order submitted to the bank to pay off the arrears and penalties.

So, if you are sure that the decision to suspend operations on bank accounts was made unreasonably and you can document this, then there is a real prospect of a positive outcome of the case, taking into account the current judicial practice.