Establishing the facts of committing tax offenses by taxpayers, the tax authorities charge them additional appropriate fines. And even if you agree with the decision of the tax authorities, it is possible to achieve a significant reduction in the amount of the fine. A correctly drafted taxpayer petition to reduce the fine will help in this.

Fines for various types of tax offenses are given in Chapter 16 of the Tax Code of the Russian Federation.

In this case, the amount of the fine specified in the tax audit report may be reduced.

The provisions of Article 114 of the Tax Code of the Russian Federation allow companies to apply for a reduction in the amount of the fine, depending on the presence of extenuating circumstances. The list of extenuating circumstances is open.

For example, extenuating circumstances may include:

committing an offense as a result of a combination of difficult personal or family circumstances;

commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

the difficult financial situation of an individual held liable for committing a tax offense;

other circumstances that the court or tax authority considering the case may recognize as mitigating liability (Article 112 of the Tax Code of the Russian Federation).

Important!

If there is at least one mitigating circumstance, the amount of the fine shall be reduced by no less than two times. No maximum reduction has been set. This means that the taxpayer can significantly reduce the amount of fines.

What should a taxpayer do?

It should be noted that the facts of extenuating circumstances are resolved by the tax authorities with companies at the stage of consideration of the materials of on-site and (or) desk audits.

First of all, consideration of the possibility of reducing the applicable penalty begins with the filing of a petition by the taxpayer for the reduction of penalties.

There is no specific application form. It is submitted in free form and it contains circumstances that can mitigate tax liability.

As a rule, mitigating liability includes:

the nature and significance of the taxpayer's activities (for example, a socially oriented institution);

difficult financial situation;

no damage to the budget, insignificance of delay (one day), no harmful consequences of the offense;

independent correction of the violation before the start of the tax audit, payment of additional tax;

legal uncertainty about the provision of benefits that existed at the time the tax offense was committed.

Sample request for fine reduction

Here is a template for a motion to reduce the fine.

Petition

on reducing the tax sanction (fine)

In October 2018, the Inspectorate of the Federal Tax Service for the Sovetsky District of Chelyabinsk completed TIN 7420005200 in relation to Lyutik LLC, and drew up the Act of an on-site tax audit No. 31 dated 11/01/2018.

Based on the results of this audit, the Lyutik company received an additional VAT charge in the amount of 1 million rubles, and the Audit Report contains a proposal to bring the taxpayer to tax liability in the form of a tax sanction (fine) for VAT and land tax.

The Buttercup Society petitions for a reduction in the said tax sanction on the following grounds.

In accordance with paragraph 1 of article 114 of the Tax Code of the Russian Federation, a tax sanction is a measure of responsibility for committing a tax offense.

According to paragraph 3 of Article 114 of the Tax Code of the Russian Federation, in the presence of at least one circumstance mitigating liability, the amount of the fine is subject to reduction by at least two times compared to the amount established by the corresponding article of the Tax Code of the Russian Federation.

At the same time, it follows from subparagraph 3 of paragraph 1 of Article 112 of the Tax Code of the Russian Federation that the list of extenuating circumstances given in the said article of the Tax Code of the Russian Federation is open; the tax authority has the right to classify certain specific circumstances as mitigating liability.

The Buttercup Society believes that there are such mitigating circumstances that entail, on the basis of paragraph 3 of Article 114 of the Tax Code of the Russian Federation, a reduction in the size of the tax sanction (fine):

Firstly, the Lyutik company was not previously subject to tax liability, i.e. conscientiously fulfilled its obligations as a taxpayer.

Secondly, even before the tax authority made a decision based on the materials of the on-site audit, Lyutik voluntarily paid the accrued VAT arrears in the amount of 1 million rubles, almost immediately after receiving the Act of the on-site tax audit No. 31 dated 11/01/2018, which is confirmed by the by order of Lyutik LLC dated November 2, 2018 No. 1732.

Based on the foregoing, guided by subparagraph 3 of paragraph 1 of Article 112, paragraph 3 of Article 114 of the Tax Code of the Russian Federation,

mitigate the amount of the tax sanction (fine) accrued by Buttercup LLC for VAT and land tax based on the results of an on-site tax audit (Act No. 31 dated 01.11.2018).

Application: 1. A copy of the payment order of Lyutik LLC dated 11/02/2018 No. 1732 (on VAT payment under the on-site tax audit report No. 31 dated 11/01/2018).

CEO

OOO Lyutik Nezabudkin V.S.

At the same time, the taxpayer must confirm the circumstances referred to as mitigating liability by submitting duly certified copies of the relevant documents.

The tax authorities will not accept as a mitigating circumstance "difficult financial situation" in the presence of profit and growth in the organization's revenue according to reporting data. For example, a difficult financial situation can be confirmed by information about the lack of income, the presence of a significant amount of outstanding loans.

Judicial practice to reduce fines

As practice shows, companies manage to reduce tax penalties many times over. True, often the circumstances that served to reduce the amount of fines are considered in the courts.

The judges take into account that the offense occurred for the first time, no arrears and penalties were accrued, the insured did not intend to commit a violation of the law (Decision of the Moscow Arbitration Court of November 14, 2016 No. A40-197613 / 2016).

In another dispute, the fine was reduced from 131,000 rubles to 1,000 rubles, i.e. 131 times (Decision of the Arbitration Court of the Republic of Mari El dated December 1, 2016 No. A38-9108/2016). The arbitration court took into account the following circumstances as mitigating liability: recognition of the commission of an offense, the commission of an offense for the first time, the absence of negative consequences for employees and the budget, the socially significant nature of the enterprise's activities.

Under similar circumstances, the court reduced the amount of the fine by 73 times (Decision of the Arbitration Court of the Nizhny Novgorod Region of 10.01.2017 No. A43-30751 / 2016) and 100 times (Decision of the Arbitration Court of the Sverdlovsk Region of 12.09.2016 No. A60-33366 / 2016) .

The social orientation of the taxpayer's activities (construction of social facilities) allowed the company to reduce the fine by 4 times (Decision of the Arbitration Court of the Chuvash Republic dated April 23, 2018 No. A79-9434 / 2017).

The absence of intent to evade payment of contributions, the independent, albeit in violation of the deadline, submission of tax calculations, the formal nature of the offense, the insignificance of the period of delay in fulfilling the obligation to submit reports can also reduce the fine for late submission of the report to its minimum value - 1,000 rubles (Resolutions Arbitration Court of the Central District of October 25, 2016 No. A84-985 / 2016, East Siberian District of October 19, 2016 No. A78-1326 / 2016, decision of the Arbitration Court of the Krasnoyarsk Territory of July 18, 2016 No. A33-9554 / 2016) .

Very often, after tax audits, organizations find themselves in a very difficult situation. However, losses can be reduced. Together we will draw up a sample petition to the tax office for mitigation of punishment.

The tax legislation establishes the amount of sanctions for committing an offense depending on the scale and nature of the damage caused. Penalties are calculated as a percentage of the amount of unpaid (unwithheld or unremitted) tax.

The amount of fines accrued under the act of inspection - in the presence of extenuating circumstances - can be reduced. Circumstances mitigating responsibility for the commission of an offense are recognized as the conditions specified in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation:

1. Difficult personal or family circumstances.

2. Threat or coercion; Financial, service or other dependence.

3. Difficult financial situation physical. the person held liable.

4. Other circumstances recognized as such by the court or tax authority considering the case.

Conclusion: the possibility of reducing the size of sanctions is provided for by law. To do this, you need to file a petition with the tax office to reduce the amount of the fine.

A sample application for reducing the fine to the tax office can be downloaded at the end of the article.

Wording options for the petition

As mitigating facts, you can specify:

- commission of an offense for the first time;

- unintentional actions;

— the impossibility of paying salaries to employees due to the collection of a fine;

- the fact that the activity is unprofitable or seasonal; the fact that the organization is a conscientious taxpayer, etc.

In case of an overdue deadline for reporting, the following can be recognized as mitigating facts:

- disproportionate punishment to the nature and severity of the offense committed;

- insignificance of the delay;

- lack of intent to commit an offense;

— absence of negative consequences for the budget;

— a technical failure that prevented the submission of the report in a timely manner;

- the fact of committing a violation for the first time.

In case of indication of family situations provided for in Art.

112 of the Tax Code of the Russian Federation, if possible, a petition for the cancellation of a fine to the tax office or the court must contain copies of documents confirming the existence of circumstances mitigating liability.

How much can the fine be reduced?

According to paragraph 3 of Art. 114 of the Tax Code of the Russian Federation, if there is at least one mitigating circumstance, the punishment must be reduced by at least 2 times compared to the original size.

At the same time, in par.

16 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 57 states that paragraph 3 of Article 114 of the Tax Code of the Russian Federation establishes only the minimum limit for reducing the sanction. The court, based on the results of an assessment of the circumstances, has the right to reduce the amount of the penalty by more than two times and even make it lower than the minimum amount (see letters of the Ministry of Finance of Russia dated May 16, 2012 No. 03-02-08 / 47, dated January 30, 2012 No. 03-02-08 /7).

However, neither the IFTS nor the court can reduce the amount of sanctions to zero, since this action will be considered an exemption from liability for the offense committed.

If there are mitigating facts, only the amount of penalties applied can be reduced; the amount of taxes and penalties on these grounds cannot be reduced.

A sample application to the tax office for a reduction in the fine, which can be downloaded at the end of the article, is based on the circumstances given in paragraphs. 3 p. 1 art. 112 of the Tax Code of the Russian Federation.

Applying

The act of verification can and should be appealed. The organization has the right to independently decide on the order of filing applications: first apply to the tax authorities, and then to the court, or immediately to the court.

The organization sends a petition to cancel the fine to the tax office and the court within the time limits indicated in the table.

There are three ways to file a petition with the court or the IFTS:

1. In person or through a representative.

2. By mail, a valuable letter with a list of attachments.

3. In electronic form via the Internet (Gosuslug website).

When handing over personally, the document must be drawn up in two copies. One will be transferred to the office of the state structure, the second will remain with the applicant. It is important to obtain a mark from an official certifying the acceptance of documents for consideration.

Sample application to the IFTS for a reduction in the amount of the fine

All Respect news

_______________________________________ <1>(name of a higher authority or official) address: ____________________________________ from ________________________________________ (full name of the person held administratively liable) address: ___________________________________, telephone: ______________, fax: ___________, e-mail address: __________________ Complaint against the decision in the case of administrative offense "___" ________ ____ g. person brought to administrative responsibility) on an administrative offense, under Art. ___________ of the Code of the Russian Federation on Administrative Offenses, and an administrative fine was imposed in the amount of ________ (__________) rubles. __________________________________ considers the administrative penalty in (full name

person brought to administrative responsibility) in the form of an administrative fine in the amount of ______________ (__________) rubles, appointed by the Protocol dated "___" ____ N _____, illegal, because it contradicts Art. ________________ of the Code of the Russian Federation on Administrative Offenses (or) indicate another regulatory legal act) and violates the rights and legitimate interests of ________________________________, (full name of the person held administratively liable) namely: _______________________________, which is confirmed by ____________________ ________________________________________________________________________________.

According to Part 1 of Art. 30.1 of the Code of Administrative Offenses of the Russian Federation, the decision in the case of an administrative offense may be appealed by the persons referred to in Art. Art. 25.1 - 25.5 of the Code of Administrative Offenses of the Russian Federation, to a higher authority, a higher official or to the district court at the place of the case.

Based on the foregoing and guided h. 1 Article. 30.1, Art. 30.2 of the Code of Administrative Offenses of the Russian Federation, please:

add up an administrative fine (or: reduce the amount of an administrative fine) in the amount of ________ (___________) rubles in the case of an administrative offense N _____.

Applications:

1. A copy of the protocol on an administrative offense dated "___" _________ ____, N _____.

2. Documents confirming the arguments of the person brought to administrative responsibility.

Power of attorney of the representative from "___" _______ ____, N ___ (if the application is signed by the representative of the applicant).

"___"________ ____ Applicant (representative): ___________________ (signature)

<1>According to Part 1 of Art. 30.2 of the Code of the Russian Federation on Administrative Offenses, a complaint against a decision in a case on an administrative offense is filed with the body, the official who issued the decision on the case and who are obliged to send it with all the materials of the case to the appropriate higher body, higher authority within three days from the date of receipt of the complaint. official.

According to part 3 of Art. 30.2 of the Code of Administrative Offenses of the Russian Federation, a complaint can be filed directly with a higher authority, a higher official authorized to consider it.

According to part 5 of Art. 30.2 of the Code of the Russian Federation on Administrative Offenses, a complaint against a decision in a case on an administrative offense is not subject to state duty.

Comments:

The Tax and Duties Service administers the timeliness and correctness of the calculation of tax liabilities to the budget of the Russian Federation, the submission of reports and the required documentation. The IFTS has the right to punish an organization or a private entrepreneur for violating fiscal laws on many grounds, but we will focus on the most common:

• violation of reporting deadlines;
• violation of the deadlines for transferring payments to the budget system of the Russian Federation;
• erroneous determination of the tax base when calculating liabilities;
• failure to provide required documentation;
• concealment of information about current accounts, about the change of the head, and so on.

The Tax Code provides for separate articles regulating the amount of penalties. But not many people know that the amount specified in the demand for the payment of a fine can be reduced several times. To do this, you will need to file a petition with the tax office to reduce the amount of the fine.

Types of extenuating circumstances

Art. 112 of the Tax Code of the Russian Federation contains a list of mitigating circumstances that allow you to claim a reduction in sanctions several times. When submitting a request, be sure to include extenuating circumstances. Do not forget to indicate one of the types when forming a sample application to the tax office for a reduction in the fine.

All circumstances that can reduce the established punishment are divided into 4 groups:

• are common;
• for IP;
• for legal entities;
• for individuals.

Let's present the list of extenuating circumstances in the form of a table.

The deadline for filing reports was slightly violated. The damage to the state budget has not been caused or is insignificant. The offense of fiscal legislation is committed for the first time. The subject has credit obligations. An overpayment was formed in the calculations of taxes and fees in the current year. The debt is repaid before the decision of the IFTS on punishment. Severe financial condition, material difficulties. The subject of the established sanction does not correspond to the offense.
For sole proprietors and individuals	For legal entities
Difficult financial situation. Disability or severe health condition (illness, injury, injury). Having dependents. State awards. Participation in the elimination of natural disasters (catastrophes) or hostilities.	High probability of bankruptcy when paying off the fine. Force majeure situations, as a result of which the organization has lost documentary evidence of activities, benefits and other things.

Compilation procedure

We will figure out how to draw up a sample petition to the tax office to reduce the fine.

From the moment the request for payment is received, the organization has 10 days to ask the IFTS to mitigate the punishment. It takes no more than 10 days for the tax authorities to consider the application, if there is no need to verify the information. If there is such a need, the consideration will last up to 30 days (1 calendar month), in special cases - 2 months.

The document should be drawn up according to general requirements, regardless of the status of the taxpayer. An incorrectly drawn up document will be considered null and void, even if the citizen or institution had legal grounds for reducing the fine.

There is no unified form, so we draw up a request to reduce the tax penalty in an arbitrary form. Don't forget to include the required information:

1. Name of the head of the tax office.
2. Information about your organization: name, TIN/KPP, address, phone.
3. Name, number and date of the document establishing the tax penalty.
4. Detailed description of the results of the audit.
5. Indication of mitigating factors.
6. Request for leniency.
7. List of attached supporting documents.
8. Date and signature of the responsible person (manager or chief accountant).
9. Stamp of the institution, if any.

Sample application to the tax office for mitigation of a fine

Let's create an example document.

GBOU DOD SDYUSSHOR "ALLURE" submitted a declaration on income tax for the 1st quarter of 2018 with a delay - May 11 (deadline April 28). IFTS sent the Desk Inspection Act.

How to cancel a fine

The organization also has the right to apply for the complete abolition of punishment. To do this, you need to send a petition to cancel the fine to the tax office.

The circumstances under which a fine can be canceled are set out in Art. 111 of the Tax Code of the Russian Federation, namely:

• natural disaster, emergency or force majeure factors;
• the person who committed the unlawful act was in a sick condition;
• implementation of official written explanations of the authorized bodies, in terms of the identified violation;
• other circumstances that may be recognized by the IFTS or the court as mitigating.

A petition to reduce penalties for committing an offense provided for by a particular provision of the law may be submitted by both a legal entity and an individual. Next, we will consider what is the procedure for issuing such a document and how to justify the request set out in it to reduce the amount of the fine.

Submitting an application: legal grounds

The provisions of current legislation (for example, Article 114 of the Tax Code of the Russian Federation, Article 4.1 of the Code of Administrative Offenses of the Russian Federation, etc.) make it possible to reduce the amount of the fine, depending on the presence of extenuating circumstances in the actions of a legal entity or citizen when committing an offense.

Such circumstances are separately indicated in the relevant law, for example, in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, art. 4.2 of the Code of Administrative Offenses of the Russian Federation, etc. At the same time, the offender himself is entitled to file a petition for reducing penalties, which sets out in detail the reasons why the authorized body should decide to reduce the amount of the fine.

With this request, you need to apply to the court or an authorized body (for example, the Federal Tax Service of the Russian Federation, the traffic police, the Federal Antimonopoly Service of the Russian Federation, etc.), which imposed the punishment. And further, if the petition is not satisfied or the reduction of the fine, in the opinion of the petitioner, turns out to be insufficient, it is necessary to apply with a similar request to a higher authority or court.

When filing such a petition, it is necessary to take into account the peculiarities of the prevailing judicial practice in a particular area of ​​legal relations.

For example, some courts take the position that if the taxpayer does not file a petition for the application of mitigating circumstances, the court is still entitled to assess the proportionality of the imposed fine - the severity of the offense, even if the Federal Tax Service has already carried out a certain reduction in the amount of the sanction (for example, the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 12.10 .2010 No. 3299/10).

When filing a similar petition, but within the framework of a case on an administrative offense, the courts indicate that reducing the amount of the fine provided for by law by more than 2 times is unacceptable (see the decision of the 14th AAS of 05/07/2015 in case No. A05-14756 / 2014 ).

How do I apply for a penalty reduction?

The legislation does not offer a unified / standard form of such a document, therefore it is drawn up in a free form indicating all the necessary information and taking into account the rules for filing claims.

When drawing up a petition for mitigation of penalties, first of all, it is necessary to fully substantiate the reasons why such a petition can be granted. It is necessary to list all circumstances that can mitigate the punishment, and, if possible, attach documentation confirming them.

For example, when applying for a reduction in penalties for offenses provided for by the Tax Code of the Russian Federation, you can attach documents confirming:

• the unstable financial condition of the organization or the difficult financial situation of a citizen;
• untimely payment of monetary amounts by counterparties;
• proper fulfillment of tax obligations by this person in previous periods, etc.

In all other respects, such a petition filed as part of a particular legal process is similar in structure to other types of applications and, in addition to the standard “header”, must also contain:

• a description of the circumstances of the offense for which the fine was imposed;
• references to the relevant norms of the law (for example, articles 112, 114 of the Tax Code of the Russian Federation, articles 4.1-4.2 of the Code of Administrative Offenses of the Russian Federation, etc.);
• references to relevant jurisprudence, since the list of extenuating circumstances is usually open;
• a formulated request to the court to mitigate penalties, taking into account the circumstances listed by the applicant (you can also indicate the amount to which you would like to receive a reduction);
• the date of the application and the signature of the applicant.

General issues of drawing up a petition sent to the court are discussed in the article "How to write a petition to the court - a sample".

Grounds for reducing the fine (on the example of the Tax Code of the Russian Federation)

It must be remembered that the inspectorate or the court are authorized to reduce the fine even below the minimum limit, i.e. more than 2 times (see clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 41, Plenum of the Supreme Arbitration Court of the Russian Federation No. 9 dated 06/11/1999, letter from the Ministry of Finance of the Russian Federation dated 16.05.2012 No. 03-02-08/47, resolution of the 7th AAS dated 10.25.2011 No. 07AP-8142/11).

The grounds for mitigating the sanctions, in addition to those listed in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, can be:

• the commission of an offense by a person for the first time, the repentance of the offender (for example, the decision of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 5, 2012 in case No. A28-7219 / 2011);
• lack of direct intent in the actions of the offender;

• the absence of negative financial consequences for the budget or for public interests (see the decision of the Federal Antimonopoly Service of the Moscow District of August 4, 2011 in case No. A40-124755 / 10-20-714);
• lack of income from the violator during the reporting period;
• partial voluntary payment of fines (see the decision of the Federal Antimonopoly Service of the Central District dated March 28, 2012 in case No. A09-5167/2011);
• minor violation of the deadlines for fulfilling the duties of a taxpayer (for example, the decision of the 14th AAC of February 16, 2012 in case No. A05-11315 / 2011), etc.

So, a petition for a reduction in penalties is drawn up in a free form. Maximum attention should be paid to the issue of substantiating the reasons why this petition must be satisfied by the authorized body or court.

The list of mitigating circumstances established by law is open, therefore, when drawing up a petition, it is advisable to also familiarize yourself with the relevant judicial practice.