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The Supreme Arbitration Court clarified the timing of VAT refunds, or interest for late tax refunds
If there are grounds for transferring the amount of VAT to the taxpayer, but the tax authority does not do this, then what compensation can the taxpayer expect?
It took 3 years for the Kemerovo firm Trading House "Trust" to answer this question.
On September 18, 2012, after a meeting at the Presidium of the Supreme Arbitration Court and a second consideration of the case, the decision of the Arbitration Court of the Kemerovo Region came into force, which clarified this issue.
In 2009, in connection with the closing of an export transaction, LLC Trade House Trust submitted a VAT tax return to the Federal Tax Service of Russia for the city of Kemerovo, according to which it could count on a VAT refund of about 4 million rubles. In the process of conducting a desk audit, the taxpayer submitted an application for a VAT refund to the current account.
However, the tax inspectorate did not agree that the company reasonably presented the amount of VAT to be refunded: it appointed additional tax control measures, and by decision refused to pay.
As a result, the Arbitration Court canceled the decision of the Federal Tax Service Inspectorate for the city of Kemerovo to refuse to refund VAT, but 4 million rubles, which TD "Trust" counted on, were not received in a timely manner.
Interest for untimely VAT refund
Article 176 of the Tax Code gives taxpayers the right demand interest if the amount of tax was not returned to them in a timely manner.
This right was exercised by TD Trust LLC by filing a corresponding claim with the Arbitration Court of the Kemerovo Region. When considering the case in various instances, none of the judges had any doubts that the state should pay interest to the taxpayer for the inaction of its tax authorities. But the question is how much? From when do interest accrue?
Arbitration courts of the first, appeal and cassation instances took different positions:
First approach. Since the inspectorate revealed some tax violations (despite the fact that later the decision of the tax inspectorate was declared invalid, which is tantamount to the absence of offenses on the part of the taxpayer), interest should be accrued in accordance with p. 2.3 Art. 176 of the Tax Code of the Russian Federation. That is, the period for which interest is charged for late VAT refunds excludes the period for additional measures, drawing up an audit report, objections, etc. In other words, illegal actions of the tax authorities may result in a reduction in the amount of compensation for the taxpayer.
The second approach. There is a clear deadline for paying VAT, after which interest is charged, regardless of what the FTS inspection unreasonably discovered. It is calculated as follows: the date of submitting a tax return + 3 months (for a tax audit) + 11 business days.
The second approach stood firm in the Presidium of the Supreme Arbitration Court of the Russian Federation.
The Supreme Arbitration Court clarified to consider similar cases in accordance with this position.
The full text of the decision can be found link.
