Alexey Stanchin, Senior Tax Consultant at Tax Compliance, analyzed in the EZh-Jurist newspaper the problems of requesting documents from a taxpayer, its counterparties and other persons.

Requesting documents and information is the most common tax control measure. Every taxpayer may encounter it, regardless of whether or not an audit is carried out in respect of him.

The reclamation is regulated by Articles 93, 93.1 of the Tax Code of the Russian Federation [1] .

Claiming is categorized into 3 types:

1. Within the framework of tax audits (Article 93 of the Tax Code of the Russian Federation);
2. Outside the scope of tax audits (paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation);
3. П. 1 of Article 93.1 of the Tax Code of the Russian Federation regulates the obtaining of documents and information from counterparties of persons subject to an audit. The term "counter audits" has been adopted for this type of request, despite the abolition of counter audits in 2007

The legislator in the Tax Code of the Russian Federation separates the request for documents in subsequent articles on liability.

Thus, liability for failure to submit documents is established - a fine of 200 rubles for one unprovided document (when requested under Article 93 of the Tax Code) or a fine of 10,000 rubles for one unanswered request (when requested under Article 93.1 of the Tax Code).

The criteria for reclamation in the norms of Art. 93, 93.1 of the Tax Code of the Russian Federation are of an evaluative nature. The legislator intentionally uses "vague" concepts: "documents required for audit", "other persons", "relate to the activities of the taxpayer under audit", "reasonable need to obtain documents", "regarding a specific transaction", "transactions must be identified". Evaluative categories are interpreted by courts in law enforcement practice. The interpretation of valuation categories is variable and often arbitrary. Norms are interpreted by courts either "broadly" or "narrowly".

Therefore, a correct interpretation of the tax authority's claims is necessary:

1. as to prevent violations by the tax authorities at the stage of checking the validity of requests for documents and information;
2. and for assessing the legality of bringing a taxpayer to liability.

In this connection, we will consider the main current problems of application of Articles 93 and 93.1 of the Tax Code of the RF in practice.

Principles of document retrieval

The issue of creating a system of principles for requesting documents (information) has not been on the agenda for a long time. The principles were formulated by the Federal Tax Service of Russia in Letter No. SD-4-2/8096@ "On Recommendations on Requesting" dated 26.06.2023:

• legality (the legal grounds for the claim must be specified in the claim);
• risk-oriented approach (the tax authorities should focus on individual "problematic" transactions rather than on the entire financial and economic activity of the taxpayer);
• certainty (the request must contain sufficient information to enable the taxpayer to determine what documents (information) the tax authority needs);
• one-time nature (no repeated request for previously submitted documents is allowed);
• priority of obtaining documents from available state resources (information that cannot be obtained from state information resources available to the tax authority is requested);
• digital environment (electronic document flow should be used to the maximum extent possible for sending claims and receiving responses);
• urgency (readiness to extend the deadline for submission of documents upon receipt of a motivated appeal of the taxpayer).

In addition, the following rules, which are not expressly identified as principles, are also apparent from the text of the letter of the Federal Tax Service of the Russian Federation:

• Requesting documents and information for the fulfillment of tasks that are not conditioned by tax control is not allowed. In other words, we can talk about the existence of the principle of "relatedness to tax control".
• To request documents privately (by phone call, e-mail) tax officials have no right, i.e. the principle of "form of request".

Consequently, we can say that the central apparatus of the Federal Tax Service has defined the principles to be followed by territorial bodies when requesting documents.

Requesting documents from a taxpayer as part of tax audits (Clause 1 of Article 93 of the Tax Code of the Russian Federation)

The main norm of the Tax Code regulating the request for documents from a taxpayer as part of tax audits is Article 93 of the Tax Code.

According to subparagraph 1 of para. Article 93(1) of the Tax Code of the Russian Federation authorizes a tax authority official conducting a tax audit to request documents necessary for the audit from an audited person.

The rule is formulated as broadly as possible: the only requirement for a request is that the documents must be "necessary for an audit". Articles 88 and 89 of the Tax Code clarify the meaning of this provision.

Restrictions on requesting documents from a taxpayer as part of desk tax audits

The ability of tax authorities to request documents (information) from taxpayers as part of desk tax audits is limited.

According to paragraph 7 of Art. 88 of the Tax Code of the Russian Federation during a desk tax audit, the tax authority may not request additional information and documents from the taxpayer, unless otherwise provided for by Art. 88 of the Tax Code of the Russian Federation or if the submission of such documents together with the tax return (calculation) is not provided for by the Tax Code of the Russian Federation.

П. Paragraphs 8-9, paragraph 12 of Article 88 of the Tax Code of the Russian Federation establish peculiarities of requesting documents (information) for certain types of desk tax audits. For example:

• when submitting a tax declaration in which a VAT refund is claimed, the tax authority has the right to request documents confirming the legitimacy of the application of tax deductions;
• Where contradictions are identified in a VAT declaration, to request invoices, primary and other documents relating to the transactions in question;
• when checking calculations for insurance contributions - to request information and documents confirming the validity of the reflection of amounts not subject to insurance contributions and the application of reduced tariffs for insurance contributions.

In other words, the legislator specifies the list of documents (information) that can be requested for specific types of desk tax audits.

Seeking documents from a taxpayer during an on-site tax audit

At the same time, the possibilities of the tax authorities to request documents (information) within the framework of field tax audits are not limited in any way.

In accordance with paragraph 12 of Art. 89 of the Tax Code of the Russian Federation in the course of a field tax audit from the taxpayer may be requested the documents necessary for the audit in accordance with the procedure established by Art. 93 of the Tax Code of the Russian Federation.

Is the requirement under Article 93 of the Tax Code of the Russian Federation to provide documents for the audit that do not relate to the period under audit lawful?

Having analyzed the judicial practice, we can conclude that the courts' approaches are quite different.

First approach. Such actions by a tax authority are recognized as unlawful.

Thus, some courts indicate that the request for documents relating to the period after the audited period is unlawful (Resolution of the Arbitration Court of the Central District of 29.08.2018 No. F10-3098/2018 in case No. A23-6278/2017).

Exceptions to this rule:

1. At the same time, it is permissible to request contracts that were concluded in the past, but were in effect in the audited period (Ruling of the Arbitration Court of the Volga District of 06.07.2022 № F06-20049/2022 in case № A72-15096/2021).
2. Invoices, which were dated numbers before the audited period, but reflected in the purchase books of the audited period, can be claimed (Resolution of the Seventeenth Arbitration Appeal Court of 21.09.2022 № 17AP-10225/2022-AK in case № A50-22111/2021).
3. Electronic documents with a long period of compilation (accounting registers, timesheets), which concerned the audited period, may be requested even if dated after the audited period (Resolution of the Eleventh Arbitration Appeal Court of 03.10.2023 № 11AP-12699/2023 in case № A55-29941/2022). However, it is inadmissible to request tax accounting registers, the maintenance of which is not required under the Tax Code and regulations (Resolution of the Seventh Arbitration Court of Appeal of 10.02.2023 № 07AP-11091/22 in case № A03-1860/2022).

Second approach. Any documents relate to the audited period by definition.

A number of court decisions take the position that any documents are attributable to the audited period by definition. In the Ruling of the Arbitration Court of the Volga District of 16.01.2019 № F06-41326/2018 in case № A55-5410/2018, the court did not accept the reference of the taxpayer that the documents demanded by the tax authority do not relate to the audited period: "the relevance of the documents requested to the audited period and their assessment are within the competence of the tax authority carrying out the audit.

The court stated that it does not follow from the provisions of the Tax Code that the inspectorate is obliged to substantiate the connection between the documents sought and the tax audit being conducted; it is sufficient to indicate this fact in the request". A similar position was expressed by the court in the Ruling of the Sixth Arbitration Court of Appeal of 14.10.2020 No. 06AP-4615/2020 in case No. A73-5624/2020.

At the same time, court practice confirms the impossibility of requesting documents that are not available to the taxpayer at the time of receipt of the request - for example, if they were previously seized by the tax authority, or were destroyed (Decisions of the Arbitration Court of the West Siberian District from 20.06.06.2023 № F04-2150/2023 in case № A03-1860/2022, the Arbitration Court of the Moscow District from 04.05.2022 № F05-8315/2022 in case № A40-78893/2021, the Ninth Arbitration Court of Appeal from 03.02.2022 № 09AP-85616/2021 in case № A40-70726/2021).

Consequently, it can be stated that the courts under both approaches tend to support the tax authority as much as possible in obtaining documents and information.

Among the grounds when a taxpayer may refuse to provide documents on demand is the absence of requested documents due to loss or not possessing documents in principle.

Request for documents (information) outside the framework of tax audits on specific transactions (paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation)

Documents (information) from a taxpayer may be requested not only within the framework of tax audits, but also outside of them.

The rules for requesting documents (information) are set out in paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation: if outside the framework of tax audits the tax authorities have a reasonable need to obtain documents (information) concerning a particular transaction, an official of a tax authority has the right to request these documents (information) from the parties to this transaction or from other persons who have documents (information) about this transaction.

According to paragraph 2, item 3, item 3 of Article 93.1 of the Tax Code of the Russian Federation, when requesting information concerning a specific transaction, information which allows for the identification of that transaction shall also be specified.

Conditions for requesting documents under clause 2 of Article 93.1 of the Tax Code of the Russian Federation:

The following conditions for requesting documents outside the framework of tax audits can be distinguished from the analysis of norms:

• the tax authority has a justified need to obtain documents (information);
• The requirement relates to a specific transaction;
• the tax authority specified information enabling it to identify this transaction;
• the demand is directed to a party to the transaction or other person having documents (information).

It is often the requirements under paragraph 2 of Article 93.1 of the Tax Code that are sent as part of a pre-check analysis.

Use of Clause 2 of Article 93.1 of the Tax Code of the Russian Federation in the pre-check analysis

Pre-verification analysis is not regulated by the norms of the Tax Code of the Russian Federation and is not mentioned in the Tax Law as a form of tax control. Pre-inspection analysis was introduced into practice on the basis of Order of the Federal Tax Service of Russia No. MM-3-06/333@ dated 30.05.2007 "On Approval of the Concept of the Field Tax Audit Planning System". According to the Order, the selection of objects for field tax audits is impossible without a comprehensive pre-tax audit analysis of information about the taxpayer. At the same time, in practice, evidence collected by the tax authorities at the stage of pre-inspection analysis is subsequently used to prove a taxpayer's guilt in committing a tax offense.

The actions of tax officials within the framework of a pre-verification analysis are bound by law and must not contradict the norms of the Tax Code of the Russian Federation.

Judicial practice of requesting documents on a specific transaction as part of pre-check analysis

The courts note that the tax authorities do not have the right to request documents and information as part of a pre-inspection analysis of financial and economic activities in the absence of the grounds set out in paras. 1, 2 of Article 93.1 of the Tax Code of the Russian Federation (see Rulings of the Arbitration Court of the Central District of 07.07.2022 No. F10-1822/2022 in case No. A35-5409/2021, of 15.12.2021 No. F10-5716/2021 in case No. A08-10169/2020, of the Nineteenth Arbitration Court of Appeal of 15.07.2022 No. 19AP-3057/2022 in case No. A35-5405/2021).

The request for documents under paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation is limited by a number of "general principles": expediency, reasonableness, justification (Definition of the Constitutional Court of the Russian Federation from 07.04.2022 № 821-O, Decisions of the Arbitration Court of the West Siberian District from 02.08.2022 № F04-3339/2022 in case № A70-13651/2021, Arbitration Court of the Volgo-Vyatsky District from 15.06.2022 № F01-2640/2022 in case № A43-3874/2021).

The problem of excessive control measures in applying paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation was raised by the Federal Tax Service in Letter No. СД-4-2/18103@ dated 23.12.2021 "On Strengthening Control over the Request for Documents (Information)". The regulator pointed to violations by lower tax authorities in sending requests (instructions) under paragraph 2 of Article 93.1 of the Tax Code:

• the request for the submission of documents (information) does not specify the tax control activity for which the need for the submission of documents (information) arose, information enabling the identification of the requested documents (information) and (or) the transaction, the counterparty in respect of relations with which the documents (information) concerning a particular transaction are requested;
• requesting documents (information) that are not related to the subject of the tax audit or are not subject to request in accordance with the Tax Code of the Russian Federation, including requesting documents within the framework of paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation that are not related to a specific transaction specified in the request for documents (information);
• sending requests for the submission of documents (information) containing references to an ongoing tax audit outside the time limit for such an audit.

The imposition on a taxpayer of obligations not arising from the provisions of the Tax Code leads to a violation of his rights. Abuse of the vague wording of p. 2 of Article 93.1 of the Tax Code is not permitted.

Is it a violation to request documents for 3 years within the framework of item 2 of article 93.1 of the Tax Code of the Russian Federation?

First approach. The claims of a tax authority are unlawful....

Thus, in the Decision of the Ninth Arbitration Court of Appeal of 14.12.2021 No. 09AP-76715/2021 in case No. A40-105384/2021, the court considered the demand for the taxpayer's documents (including accounting registers) for three years to be unlawful, in fact groundlessly substituting an on-site tax audit. According to the Decision of the Moscow Arbitration Court of 05.10.2020 in case No. A40-211149/18-115-4949 the powers of the tax authorities to request documents (information) from the taxpayer outside the framework of a tax audit under paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation are not absolute; it is illegal to request documents relating to the entire financial and economic activities of the taxpayer for three years.

Second approach. The requirements of the tax authority are lawful.

At the same time, the opposite position was also expressed: in the Ruling of the Arbitration Court of the Moscow District of 05.04.2022 № F05-5359/2022 in case № A40-69393/2021 the request for an extensive set of documents for three years outside the framework of tax audits was recognized as legitimate.

Interestingly, in the Ruling of the Arbitration Court of the Volga District from 13.02.2023 № F06-28258/2022 in case № A72-6284/2022 the court pointed to the actual limitation of the reclamation of documents under paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation legally established terms of storage of documents and their documents.

Judicial practice on the validity of the need to obtain documents under paragraph 2 of Article 93.1 of the Tax Code.

The question of how a tax authority should justify the need to obtain documents under paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation has been repeatedly raised by judicial practice.

According to the Decision of the Supreme Court of the Russian Federation of 14.04.2017 No. 310-KG17-3551 in case No. A09-6454/2016, the provisions of paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation do not oblige the tax authorities to specify a particular tax control measure. Similar conclusions are made by the courts in the Rulings of the Arbitration Court of the North-Western District from 18.06.2020 № F07-6530/2020 in case № A56-101154/2019, from 22.07.2020 № F07-5384/2020 in case № A56-56669/2019, the Arbitration Court of the Moscow District from 29.05.2023 № F05-10361/2023 in case № A40-195884/2022.

And in the Decree of the Arbitration Court of the Volga District from 02.06.2022 № F06-17598/2022 in case № A65-16103/2021 proposed a narrowing interpretation of the norm: the reference in paragraph 2 of Art. 93.1 of the Tax Code of the RF on the reasonable need to obtain documents implies only that they can not be sought for non-service or other purposes not related to tax control.

A number of cases have assessed the justification for the reclamation specified by the tax authority in the demand. In the Ruling of the Arbitration Court of the Central District dated 29.06.2022, No. F10-2139/2022 in case No. A36-2471/2021, the courts accepted as a proper justification "the existence of reasons to believe that the transaction is sham and (or) sham". In the Decree of the Arbitration Court of the Central District of 18.05.2023 № F10-1636/2023 in case № A23-4148/2022, the court recognized the validity of the request based on the results of the tax authority's analysis of cash flow on the taxpayer's settlement account.

Case law confirming the unreasonableness of the necessity of reclaiming the

Despite the broadest possible approach to the interpretation of Art. 93.1 para. 2 of Article 93.1 of the Tax Code, there are also court decisions in which courts have pointed out that the need to obtain documents is unreasonable.

In the Decree of the Arbitration Court of the North-Western District of 28.03.2023 № F07-2694/2023 in case № A56-116223/2021, the court stated that the Inspectorate "has not substantiated and proved the need to obtain documents (information) specified in the requirements, and the relationship of such information with any control measure or the authority of the tax authority".

Similarly, in the Ruling of the Arbitration Court of the East Siberian District of 20.09.2021 № F02-4438/2021 in case № A33-277/2021, the court recognized that the tax authority did not confirm the existence of a reasonable need to seek documents (information); moreover, the court placed the burden of proving the validity of the requirement on the tax authority.

How can a tax authority identify the specific transaction for which it requests information?

The Decision of the Constitutional Court of the Russian Federation of 07.04.2022 No. 821-O takes the position that the tax authority may identify a transaction for the purposes of applying paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation "by any clear, clear and unambiguous characteristic, in particular by the transferred (to be transferred) specific goods (batch), work performed (services rendered), as well as the time of delivery and acceptance, primary documents".

The said determination was accepted by the arbitration courts. So in the Decree of the Ninth Arbitration Appeal Court from 27.09.2021 № 09AP-46506/2021 in the case № A40-20258/2021 the court recognized the requirement under paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation is unlawful, because the simple listing of details of invoices does not identify a specific transaction.

In the Ruling of the Eighteenth Arbitration Appeal Court of 19.01.2023 № 18AP-16695/2022 in case № A47-7360/2022, the court recognized that one name of the counterparty does not allow to identify the transaction.

In the Ruling of the Arbitration Court of the Volga District of 11.11.2020 № F06-64233/2020 in case № A65-32307/2019 the indication in the demand for all transactions with the counterparty without identifying the period was recognized as a violation of para. 2 of Article 93.1 of the Tax Code.

Similarly, in the Ruling of the Eighth Arbitration Appeal Court dated 08.11.2021 No. 08AP-10720/2021 in case No. A70-9559/2021, the request for all transactions with the counterparty for a three-year period was recognized as unlawful.

Possibility to request cards of accounting accounts, turnover-salary sheets and other accounting registers

A separate important practical issue is the possibility of claiming cards of accounting accounts, turnover-salary statements and other accounting registers under paragraph 2 of Article 93.1 of the Tax Code of the Russian Federation.

Claimed by the tax authority turnover-salary statements are not documents confirming the legitimacy of tax deductions, therefore, their request under paragraph 2 of Art. 93.1 of the Tax Code is unlawful (Resolution of the Arbitration Court of the Volgo-Vyatka District of 20.05.2021 № F01-2121/2021 in the case № A28-8268/2020).

The opposite position is expressed in the Decree of the Ninth Arbitration Appeal Court of 24.01.2017 № 09AP-60747/2016 in case № A40-163443/16: account cards and turnover-salary statements can be claimed under paragraph 2 of Article 93.1 of the Tax Code.

Thus it becomes clear that the practice has not yet been finalized. But it should be noted that more recent practice supports taxpayers in disputes with the tax authority.

Requesting documents (information) from counterparties and other persons, "counter audit" (clause 1 of Article 93.1 of the Tax Code of the Russian Federation)

It is possible to request documents from taxpayers' counterparties as part of so-called "counter audits".

By virtue of subparagraph 1 of para. 1 of Article 93.1 of the Tax Code of the Russian Federation, an official of a tax authority conducting a tax audit has the right to request from a counterparty, from a person who maintains (has maintained) a register of securities owners or from other persons who have documents (information) relating to the activities of the taxpayer (levy payer, payer of insurance contributions, tax agent) being audited, these documents (information), including those relating to the maintenance of a securities owner's register.

Thus, the criterion for requesting documents (information) under paragraph 1 of Article 93.1 of the Tax Code of the Russian Federation is their relation to the audited entity.

The request for documents under paragraph 1 of Article 93.1 of the Tax Code should not replace the sending of requests under Article 93 of the Tax Code.

Confirmation of connection of the person in respect of whom the documents are requested to the audited person

Tax authorities are required to justify the chain of request for documents.

Request for documents under paragraph 1 of Art. 93.1 of the Tax Code is unlawful if the "chain" counterparties in the requirement is not specified and the connection with the taxpayer under audit is impossible to establish (Decree of the Ninth Arbitration Court of the Moscow District of 10.07.2023 № F05-14211 in case № A40-195835/2022).

How many links of counterparties is it possible to request documents (information) under item 1 of Art. 93.1 of the Tax Code of the Russian Federation?

In practice, an important question is how many counterparties can documents (information) be requested under paragraph 1 of Article 93.1 of the Tax Code? It is a well-established practice that the rules of paragraph 1 of Article 93.1 of the Tax Code of the Russian Federation do not contain grounds for limiting the request for documents only to the first counterparty of the audited taxpayer and a prohibition to request documents on the chain of transactions related to the primary transaction from subsequent organizations - counterparties of the second, third and subsequent links (Definition of the Supreme Court of the Russian Federation of 06.08.2018 № 309-KG18-10529 in case № A60-62474/2017, Resolution of the Arbitration Court of the Volgo-Vyatsky District of 30.06.2023 № F01-2994/2023 in case № A11-15600/2021, Resolution of the Arbitration Court of the Moscow District of 03.02.2020 № F05-24293/2019 on case № A40-101962/2019, from 13.03.2019 № F05-1598/2019 on case № A40-102190/2018, Decisions of the Ninth Arbitration Court of Appeal from 20.10.2022 № 09AP-62040/2022 on case № A40-50359/2022, from 31.08.2022 № 09AP-49335/2022 on case № A40-94354/2022).

In February 2023, the official website of the Federal Tax Service of Russia published a clarification "On the need to comply with a tax authority's request for the submission of documents (information) under Art. 93.1 OF THE TAX CODE OF THE RUSSIAN FEDERATION". The clarification made rather controversial conclusions: "the provisions of Art. 93.1 of the Tax Code of the Russian Federation provide for unconditional fulfillment of the requirement submission of written explanations, objections or complaints by the taxpayer to the tax authority in response to the requirement is a violation of the provisions of p. 5 of Art. 93.1 of the Tax Code of the Russian Federation. 5 of Article 93.1 of the Tax Code of the Russian Federation".

The assertion that it is impossible to reasonably refuse to comply with the requirements of the tax authorities has caused bewilderment in the professional community. Thus, it should be recalled that according to subparagraph 11 para. 1 of Article 21(1) of the Tax Code of the Russian Federation, a taxpayer has the right not to comply with unlawful acts and demands of the tax authorities.

Thus, the presence of disputes and different approaches of courts to the interpretation of valuation categories leaves the issues of document reclamation one of the most topical topics. A number of issues have been evaluated in court practice and, as a consequence, such issues have ceased to lead to disputes within the framework of this event.

At the same time, we see that the tax authority itself, represented by the central apparatus, is interested in eradicating abuses by officials, as well as opposes the substitution of one measure for another.

But the shift of the focus of the tax authorities to pre-audit analysis will lead to both an increase in the burden of taxpayers in the framework of reclamation outside the framework of audits, and to the presence of disputes on the issue of validity of reclamation.

 ***

[1] Hereinafter - the Tax Code of the Russian Federation.

[2] Since January 1, 2007 the concept of "counter audit" has been excluded from the Tax Code of the Russian Federation. At the same time, a new Article 93.1 was introduced (paragraph 69 of Article 1 of the Federal Law dated 27.07.2006 N 137-FZ).

[3] Left unchanged by the Ruling of the Moscow District Arbitration Court of 24.12.2021 No. F05-32213/2021 in case No. A40-20258/2021.

[4]https://www.nalog.gov.ru/rn77/news/tax_doc_news/13092436/.