Before the introduction of the Unified Tax Account in 2023, the tax authorities assessed the tax debt for each individual tax (levy). At the same time, the Tax Code of the Russian Federation did not directly regulate the issue of taking into account the presence of overpayments when bringing a taxpayer to liability in the form of a fine. The amendments to the Tax Code introduced a procedure for assessing the balance of the Unified Tax Account. 

In the article of EZh-Jurist, Tax Compliance tax consultant Ekaterina Kopylova considered the peculiarities of tax debt formation in the new realities.

It followed from the literal interpretation of the provisions of the law that overpayment of one tax could be offset against arrears (debt), penalties or fines for other taxes. However, it was presumed that in order to be exempt from penalties the tax overpayment had to exist for the same tax. Offsetting an overpayment against an underpayment of another tax was also possible, but without exempting the taxpayer from the imposition of penalties.

At the same time, in accordance with the provisions of Article 81 of the Tax Code of the Russian Federation (in the version in force until 01.01.2023 until amended by the Federal Law of 14.07.2022 No. 263-FZ), exemption from the penalty could be achieved through active actions. For this purpose, the taxpayer had to: 

1. pay the missing amount of tax and its corresponding penalties;
2. submit an application for crediting overpayment of one tax in favor of underpayment of another tax;
3. submit a revised tax return until the moment when he learned about the discovery by the tax authority of non-reflection or incomplete reflection of information in the tax return, or until the moment when he learned about the appointment of an on-site tax audit on this tax for the audited period.

After the introduction of the Single Tax Account, the taxpayer's aggregate liability for all taxes and levies is reflected on the account in the total amount as of the date of submission of the relevant documents (tax declarations, notifications of calculated tax amounts, etc.), but not before the due date of mandatory payments, most of which are paid in a single tax payment (STP).

This procedure of accounting for the amounts of mandatory payments is aimed at excluding the simultaneous occurrence of overpayments and the formation of debts for various taxes.

With the advent of the Unified Tax Account, the tax authorities began to assess not the formed debt on a single tax liability, but the general state of the balance of the Unified Tax Account (negative, neutral, positive). 

Negative balance - tax arrears

The negative balance of the Unified Tax Account (Article 11.3 of the Tax Code of the Russian Federation), which is formed on the unified account if:

• a taxpayer has submitted a declaration and a notification of the calculated amounts of tax for a greater amount than he has remitted as a UPT (paragraph three, item 3, Article 11.3 of the TCRF);
• based on the results of an audit, the tax authority adopted a decision on an additional tax assessment which came into force, but the taxpayer did not have a sufficient positive balance in the Unified Tax Account to settle the relevant additional tax assessment (paragraph four of Article 78.1 of the TCRF).

At the same time, the occurrence of arrears with a positive balance of the Unified Tax System is not equated to debt in the sense in which tax arrears are understood as a negative balance of the Unified Tax System. Arrears with a positive balance of the Unified Tax System means that, according to the meaning of Article 45 of the Tax Code of the Russian Federation, the obligation to pay mandatory payments has not been fulfilled, and the taxpayer may be charged additional penalties. For example, the taxpayer paid the Unified Tax System, but did not declare the total liability.

Collection measures are applied exclusively to debt in the sense of a negative balance of the Unified Tax System, since arrears with a positive balance of the Unified Tax System do not constitute debt in the formal sense.

A demand for payment of debt is a formal notification of the presence of a negative balance of the Unified Tax System

Under the conditions of the Unified Tax System, demands for payment of debt are of an informational nature [1]. From the moment of receiving a demand for payment of the debt, the taxpayer is formally notified of the negative balance of the Unified Tax Tax (Article 69 of the Tax Code of the Russian Federation) and is obliged to independently monitor the state of the Unified Tax Tax balance. The tax authorities do not send a repeated demand.

A demand for payment of the debt is considered fulfilled on the date of its repayment only if the taxpayer transfers funds in an amount sufficient to repay the debt and forms a positive (neutral) balance of the Unified Tax Tax.

From the beginning of the Unified Tax Tax, the tax authorities, as before, have the right to provide a longer period for fulfilling the demand for payment (the minimum period is 8 days, as established by paragraph 3 of Article 69 of the Tax Code of the Russian Federation).

Conflict of deadlines for forced collection of debt

In 2023, the procedure for forced collection of tax arrears was not relevant, since at that time the Russian Government provided taxpayers with various deferrals for the payment of mandatory payments. At the same time, both the deadlines for sending demands for payment of tax arrears and the deadlines for making decisions on collection were extended.

However, in 2024, the transition period associated with the maintenance of the Unified Tax System ended. In this regard, tax authorities are entirely guided by changes in the procedure for forced collection of taxes.

If the taxpayer has not fulfilled the received demand for payment of the debt, the tax authorities have the right to proceed to the stage of collection at the expense of monetary funds, then to collection at the expense of other property. In this case, the deadlines are calculated as follows (Articles 46, 47, 70 of the Tax Code of the Russian Federation):

• the deadline for sending a demand for payment is 3 months (1 year for debts up to 3 thousand rubles) from the date of formation of the negative balance of the Unified Tax Tax [2];
• the deadline for making a decision on collection is 2 months from the date of expiration of the deadline for voluntary fulfillment of the demand for payment [3];
• in case of missing the deadline for extrajudicial collection - 6 months for filing a lawsuit from the date of expiration of the deadline for fulfilling the demand.

Thus, the Tax Code of the Russian Federation states that the deadline for making a decision on collection begins from the moment of expiration of the deadline for voluntary fulfillment of the demand, but there is no regulation in the event that the demand for payment was not sent by the tax authority.

In accordance with the established order of writing off funds to the Unified Tax System (clause 8, Article 45 of the Tax Code of the Russian Federation), if there is a positive balance, the arrears are paid off first, then current payments (not taking into account exceptions for the procedure for paying personal income tax). In the event of inaction by the tax authority upon expiration of the deadlines for sending a demand and making a decision on collection, the debt should cease to form a negative balance of the Unified Tax System and be reflected in the account.

But the gap in the regulation is that if the demand for payment was not sent, then the period for making a decision on collection does not begin to be calculated, and therefore cannot expire. Accordingly, the tax authority does not lose the right to pre-trial collection, and the debt continues to be reflected in the taxpayer's Unified Tax System, and all incoming amounts should not pay off this «overdue» debt. Filling the regulatory gap through automation

In law enforcement practice, the established approach is that the period for sending a demand for payment of debt is not preclusive, and therefore it can be sent to the taxpayer later and is subject to execution, provided that the tax authority has not violated the total collection deadline [4] (previously, the general period was 2 years from the expiration of the period for voluntary execution of the demand, established by paragraph 1 of Article 47 of the Tax Code of the Russian Federation).

Probably, the elimination of the risks of violating the rights of taxpayers can be facilitated by the automation of the timely sending of demands for payment of debt (notification of the presence of a negative balance of the Unified Tax System) without the direct participation of tax authority employees. In this case, the tax authority will have 2 months to make a decision on collection, after which the debt will no longer be reflected in the Unified Tax System.

Deadlines for forced collection

According to the new version of Article 47 of the Tax Code of the Russian Federation, the maximum period for forced collection was increased by a ten-month period for posting a decision on debt collection in a special register.

Correct determination of the period for forced collection is important for establishing the moment when the debt listed for the taxpayer is subject to recognition as hopeless for collection with subsequent write-off (Article 59 of the Tax Code of the Russian Federation).

Currently, there is no precise understanding of the moment from which the period for forced collection of tax debt will be calculated and how the law enforcement practice that has developed taking into account the conclusions of the Supreme Court of the Russian Federation in the case of Neringa LLC will be transformed [5].

Judicial decisions in which the courts refer to the legal position in the case of Neringa LLC contain heterogeneous approaches to taking into account the violation of procedural deadlines by the tax authority for the purposes of establishing the fact of expiration of the deadline for collecting tax debt. Thus, the courts take into account:

1. either the omission of deadlines at the stage after the audit decision has entered into legal force, i.e. the deadlines for filing a demand, making a decision on collection, etc. [6];
2. or all procedural deadlines, including at the stage of tax control measures, including the deadlines for drawing up and delivering to the taxpayer the act, the audit decision, etc. [7].

Recognition of debt as hopeless for collection

The question also arises about the procedure for recognizing «overdue» tax debt as hopeless for collection. Will the current procedure and the need to recognize the debt as hopeless through the court be preserved or, given the functioning of the Unified Tax System, is it sufficient to appeal the inaction of tax authority officials, expressed in not excluding such debt from the Unified Tax System?

                                                                     ***

Given the end of the transition period for the introduction of the Unified Tax System, in order to prevent illegal actions by tax authority officials to collect tax debts, taxpayers can be recommended to:

• monitor data in the taxpayer's personal account;
• request certificates on the status of the Unified Tax System balance;
• contact the tax authority for an individual reconciliation;
• challenge the actions of the tax authority in the event of an incorrect Unified Tax System balance.

[1] Resolution of the Ninth Arbitration Court of Appeal dated 27.02.2015 No. 09AP-55526/2014 in case No. A40-182409/13

[2] In 2023-2024, the deadlines for sending demands for payment of debts shall be increased by 6 months (RF Government Resolution dated 29.03.2023 No. 500).

[3] In 2023-2024, the deadlines for making a decision on collection shall be increased by 6 months (RF Government Resolution dated 29.03.2023 No. 500).

[4] Resolution of the Arbitration Court of the West Siberian District dated 06.04.2022 in case No. A27-11457/2021, Resolution of the Arbitration Court of the Moscow District dated 07.07.2023 in case No. A40-110800/2022, Resolution of the Arbitration Court of the Moscow District dated 10.07.2023 in case No. A40-104763/2022, Resolution of the Arbitration Court of the North Caucasus District dated 15.08.2023 in case No. A32-33413/2021

[5] Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 05.07.2021 No. 307-ES21-2135 in case No. A21-10479/2019

[6] Resolution of the Arbitration Court of the West Siberian District dated 08.08.2022 in case No. A27-13722/2021, Resolution of the Arbitration Court of the Moscow District dated 03.10.2022 in case No. A40-252195/2021, Resolution of the Arbitration Court of the North Caucasus District dated 28.10.2022 in case No. A32-58684/2021, Resolution of the Arbitration Court of the North Caucasus District dated 28.10.2022 in case No. A32-58684/2021

[7] Resolution of the Arbitration Court of the Moscow District dated 20.05.2022 in case No. A40-9594/2021, Resolution of the Arbitration Court of the North-West District dated 06.06.2022 in case No. A05-3734/2021, Resolution of the Arbitration Court of the Ural District dated 25.01.2022 in case No. A07-32828/2020