Good afternoon, Michel!
In response to your question, I will give an example of a specific case from the jurisprudence.
By results of exit ̆ checks by tax authority the decision which the organizations added a shortage on a value added tax (further – the VAT) for the 2nd quarter 2013 is made.
Believing the rights broken, the organization appealed to arbitration ̆ court with the application in which asked to recognize nedeistvitelny the decision of tax authority regarding additional accrual of the VAT.
By the decision of arbitration court of the first ̆ instances, left without change resolutions of court appeal ̆ instance and arbitration court of the district, the requirement ̆ the taxpayer is dismissed.
The judicial board of the Supreme Court of Rossiiskoi ̆ Federations repealed the called judicial acts and met requirements of the taxpayer, having specified the following.
Services in the organization of release, placement and the public circulation of the bond ̆ were rendered to the taxpayer.
After signing of the act of rendering services of the organization it is exposed the invoice of April 12, 2013 with the sum allocated ̆ ̆ tax VAT, and the amount of tax specified in the invoice is accepted by the taxpayer to a deduction at calculation of a tax for the 2nd quarter 2013.
At the same time, by virtue of the sub. 12.2 Clause 2 of Article 149 of the Tax Code of the Russian Federation, after January 1, 2013 the implementation of the rendered services is not subject to taxation (exempt from taxation).
In this regard, on March 31, 2014, the organization providing services, made corrections to earlier exposed ̆ the invoice, having excluded the VAT amount allocated in it, And on October 9, 2015 the taxpayer submitted to the inspection the updated tax return on VAT for the 1 quarter of the year 2014 by reducing tax deductions by the amount previously declared for deduction and the corresponding increase in the amount of tax calculated for payment to the budget.
The basis for the addition of VAT was the conclusion of the inspection on the 2 application 2013 the tax deduction by the company in the second quarter of 2017, as the tax was originally presented in violation of the sub-tax. 12.2 Clause 2 of Article 149 of the Tax Code of the Russian Federation.
Meanwhile, dismissing the requirement ̆ the organization, courts did not consider the following.
According to Paragraph 2 of Article 87 of the Tax Code of the Russian Federation tax audits are carried out for control of observance by the taxpayer of the legislation on taxes and fees and, according to the paragraph the sixteenth Paragraph 1 of Article 11, Paragraph 8 of Article 101 of the Tax Code of the Russian Federation, assume commission of a deistviya by tax authority ̆, directed to establishment of the size of a shortage – sizes of the tax which did not come to the budget.
At the same time, proceeding from situation ̆ Paragraph 2 of Article 22 of the Tax Code of the Russian Federation, the tax authorities establishing a duty to provide the rights of taxpayers, tax administration has to be carried out taking into account the principle of conscientiousness assuming accounting of legitimate interests of taxpayers and inadmissibility of creation formal a condition ̆ for collection of taxes in excess of what it is required under the law.
In the case under consideration at the time of the termination exit ̆ tax ̆ checks of inspection it was authentically known that the payment of a tax made by society in 2015 is connected with an exception of earlier accepted tax deduction on the invoice of April 12, 2013, that is the violation revealed during tax ̆ checks is independently corrected by the taxpayer.
This is evidenced, in particular, by the fact that in the contested decision of the tax authority, penalties were accrued to the company before the day of this payment.
Thus, drawing a conclusion about an unfounded allegation to a VAT deduction for the 2nd quarter 2013 and being consecutive ̆ in formulation of conclusions by results of exit ̆ tax ̆ checks, the inspectorate had to recognize that the shortage for the period called ̆ at the time of decision following the results of tax ̆ checks at the organization in a deistvitelnost is absent.
Other ̆ the approach occupied ̆ with tax authority and supported ̆ by vessels when considering the case Caused the taxpayer to have to pay VAT twice due to erroneous acceptance of the “incoming” tax amounts, namely in 2015 when in the declaration specified ̆ tax ̆ in 1 quarter 2014 the organization increased the tax estimated ̆ to payment by the specified sum, and by results of exit ̆ tax ̆ checks that does not answer the principle of conscientious tax administration and it cannot be recognized to the relevant provisions of the Subparagraph of the sixteenth Paragraph 1 of Article 11, Clause 2 of Article 22, Clause 8 of Article 101 of the Tax Code of the Russian Federation.