The Federal Tax Service is responsible for the mistakes of other authorities that led to the overstatement of payments
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The Supreme Court of the Russian Federation (SC) recognized that the tax authorities are responsible for the mistakes of other authorities, which led to the overstatement of payments. If the actions or acts of the authorities are subsequently recognized as illegal, the business not only has the right to return the amount of the overpayment, but also to recover losses from the Federal Tax Service in the form of interest. The three-year period for the return of money from the budget of the Armed Forces is counted from the moment the tax is paid, which, according to lawyers, may in some cases interfere with the collection. But then the business has the right to demand compensation for losses from the authority that directly caused harm by its illegal actions.
The Supreme Court published decisions on two cases concerning the recovery of interest from the Federal Tax Service on the amount of overpaid tax. Krasny Dom LLC and Pantan Firm LLC transferred property tax (several buildings in Moscow), calculating it at the cadastral value. The companies proceeded from the fact that the real estate is included by the Moscow authorities in the corresponding list. If an object is not on the list, it is taxed at the average annual value, which is usually several times lower than the cadastral one.
According to the claims of Moscow City Court LLC, it was illegal to include the buildings belonging to them in the list of objects taxed at the cadastral value. In this regard, the companies asked to return the amount of the overpayment for 2017 (33 million rubles) with interest (0.5 million rubles). But the tax authorities refused to return the interest. Arbitration courts sided with the Federal Tax Service, considering that interest is not charged if the tax was not collected forcibly, and the companies “independently fulfilled the tax obligation and calculated the amount.” In addition, the courts noted, the regional authorities, not the tax authorities, are to blame for the overpayment.
“Red House” and “Pantan” appealed the refusal to the Supreme Court, believing that they have the right to compensation for damages caused by illegal actions of the authorities. In addition, if taxes were not paid voluntarily, they would be collected forcibly. The cases were transferred to the Economic Collegium of the Armed Forces, which sided with the business.
The Supreme Court clarified that the Tax Code separates overcollected and overpaid taxes. In the first case, interest on the overpayment amount is charged, in the second – no. But the code does not clearly distinguish between these concepts, and the courts often proceeded from whether the payment was made to the budget forcibly or voluntarily (no interest was collected in case of voluntary payment). The Supreme Court clarified that the method of fulfilling the tax obligation “has no legal significance”, and it all depends on who was responsible for calculating the tax.
If the taxpayer made a mistake by listing more than it should, the state is not responsible for this. But if the overstatement of the amount arose due to illegal actions or acts of the authorities, the taxpayer’s property losses that arose through no fault of his should be “reimbursed by paying interest for the entire period the funds were in the treasury.”
Voluntary tax payment, according to the Supreme Court, does not cancel the state’s obligation to compensate for losses in the form of interest on the amount of the overpayment, if “the taxpayer did not make a mistake, but complied with the current legislation.”
At the same time, the collegium clarified that the taxpayer has the right to ask for a refund of the overpayment with interest within three years from the day he learned about the fact of the excess payment. The absence of a time limit would mean “extracting from the budget already spent amounts, would lead to undermining the stability of the financial system and thus violating the public interest,” the Supreme Court explained.
With regard to the property tax of organizations, since the inspections and publication of the act of the regional authorities take place before the start of the tax period, the business has the opportunity to demand a second inspection and appeal this act in court. Moreover, the taxpayer himself is responsible for the “timeliness of taking such measures”, therefore the Supreme Court counts the period for the return of the overpayment from the day the tax was paid, and not from the date of entry into force of the court decision that recognized the act of the authority as illegal.
The Pantana and Red House cases are sent back for a new trial to verify compliance with this deadline and calculate the amount of interest. On June 20, the Federal Tax Service did not respond to Kommersant’s request.
According to MEF Legal partner Alexander Erasov, the position of the SC is “absolutely fair” and will allow “many companies to receive compensation for losses,” since “such situations are common.” BGP Litigation’s tax practice lawyer Alina Makarova calls the Supreme Court’s decision “a turning point in practice.” She notes the broad interpretation of “over-collected tax”, which allows claiming interest, “according to the Supreme Court, this right arises due to erroneous acts not only of the tax authorities, but of any authorities, which will allow businesses to more confidently protect their rights.”
“The Supreme Court believes that the taxpayer should not guess what requirement and to which authority to present. His rights were violated by the state in a broad sense, so here it is permissible to collect interest from the tax authorities, which simplifies the procedure,” emphasizes Taxology partner Alexei Artyukh.
At the same time, Anton Nikiforov, a partner at the law firm Pepeliaev Group, considers the conclusion of the Supreme Court on the countdown of the statute of limitations for the return of overpayments from the moment the tax was paid is disputable. So, Pantan paid the tax at the beginning of 2018, and received the decision of the Moscow City Court on the illegality of the inclusion of the building in the list only in March 2021 and in September 2021 asked for a refund. “Looks like the statute of limitations has expired. But before the court decision on the illegality of the act, the company had no reason to consider the tax overpaid,” explains Mr. Nikiforov.
Mr. Erasov, at the same time, believes that in most cases this period is “quite sufficient for businesses to protect their rights.” In the event of the expiration of the period for claiming money from the Federal Tax Service, Mr. Artyukh adds, “you can demand compensation for losses from the authority that adopted the illegal act.” The SC did not close this opportunity.
The position of the Supreme Court will be claimed first of all in case of overpayment of property tax of legal entities. In addition, Ms. Makarova clarifies, it is also applicable to other taxes, the calculation of which depends on the authorities: “for overpayment of land tax due to erroneous actions of Rosreestr on registering a plot or on transport tax, if the traffic police sent false information about the vehicle to the tax authorities or its owner.
According to Anton Nikiforov, “the conclusions of the Supreme Court may also be relevant for new disputes over a single tax payment (introduced from 2023), including the point at which the taxpayer should consider the fact of an overpayment to the budget clear.”
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