For handing over of the tax accounting in an electronic kind, besides a computer, interconnect the Internet, a taxpayer will have to provide oneself corresponding software which can be offered by the specialized operator of connection. Thus in different regions and for the different special operators his cost can considerably differentiate.
How to take into account these charges for the calculation of income tax, explained Ministry of finance in Letter from 13.02.2008 № 03-03-06/1/91. So, in opinion of officials, if cost of software a less than 10 000 rub, then charges on his acquisition it is possible to take into account one-time in composition other charges, related to the production and realization. If the indicated charges exceed 10 000 rubs, then in obedience to п. 2 п. 3 items 257 NK RF they are acknowledged by the object of intangible asset (if the term of their useful use exceeds 12 months), which joins in a depreciation group in accordance with the term of his useful use, and paid off by charging amortization.
Ministry of finance made an effort this letter patch a hole in a tax law. The point is that item 246 NK RF allows taxpayers one-time to copy off in full only expenses on software a cost not higher 10 000 rubs. At the same time п. of a 1 item 257 NK RF provides for as an obligatory condition of confession of asset the amortized property, that a cost exceeded such the sum in 20 000 rubs. As see, drawing conclusion, officials did not begin to change to traditions and preferred interests of the state, than taxpayer.
Order of presentation
Besides afore-named Order at presentation in the inspection of the tax accounting in an electronic kind on telecommunication communication channels taxpayers are necessary also to take into account Methodical recommendations [7] and Regulation [8]. These documents operate in part, not contradicting p. 3 the article. 80 NK RF.
In accordance with p. 5 Order the tax accounting in an electronic kind appears through the specialized operator of connection [9] (further is the special operator), activity of which is regulated by Law "On connection" [10], By a law "On an electronic digital signature" [11] and by the row of other federal laws (p. 3 division. I of Order).
Information about the local special operators it is possible to know in a tax organ at the place of account or on the sites of regional managements of FNS of Russia, and also in mass Medias. A taxpayer chooses more "cute" and enters into with him a contract, in which it is necessary to provide for that in the case of bringing in of taxpayer to responsibility for ill-timed presentation of the tax accounting through fault of the special an operator (technical defects, failures) the last compensates all costs (penalty approvals) born by a taxpayer. However a taxpayer is necessary to be ready to the judicial trials.
Besides software the special operator gives to the taxpayer of mean of cryptographic privy and keys of ECP, which are needed for authentication of concrete taxpayer, maintenance of confidentiality and defense of transferrable information.
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Tax workers take over the special operator the electronic accounting on telecommunication communication channels and checkup authenticity of electronic digital signature. In accordance with p. 3.2 Regulation the date of presentation of tax returns and accounting control the date of their dispatch is considered on telecommunication communication channels, fixed in confirmation of the specialized operator of connection (indention. 3 p. 4 items 80 NK of Russian FEDERATION). A tax return is considered thus presented in a tax organ; if a taxpayer got confirmation, notarized ECP of the special operator (p. is 6.10 Methodical recommendations). Besides it during twenty-four hours a taxpayer must get a receipt about the reception of accounting and protocol of entrance control (p. is 6.7.2 Methodical recommendations) from an inspection. The second copy of receipt about the reception of accounting in an electronic kind is saved in a tax inspection (p. 3.3.3 Regulation).
Further in obedience to p. 6.7.3 Methodical recommendations a taxpayer confirms authenticity of ECP of tax organ on a receipt about the reception of the tax accounting in an electronic kind, which must be saved. Protocol of entrance control after confirmation of authenticity of ECP of tax organ is notarized ECP of taxpayer and also during twenty-four hours sent to them in an address a tax inspection. The second copy of protocol of entrance control of tax return, signed ECP of tax organ and notarized ECP taxpayer, is saved for a taxpayer (p. is 6.7.3 Methodical recommendations).
Pay attention: if in protocol there is information about that, that the tax accounting did not pass entrance control, then a taxpayer removes the errors indicated in protocol and repeats all procedure of handing over of those forms of accounting, which they are fixed (p. is 6.7.5 Methodical recommendations) on.
At the same time a taxpayer can independently find out an error in the already sent tax accounting. In this case it is necessary to correct mistake and repeatedly send accounting. Thus if it will be done to expiration of term of handing over of accounting, that faithful it will be considered last from the sent files. If the set term of handing over of accounting passed already, then it is necessary to present the specified tax returns, not forgetting here to specify the number of adjustment on the title page of accounting.
If a taxpayer did not get from a tax organ in the set time a receipt about the reception of the tax accounting in an electronic kind or protocol of entrance control, he must declare about it to the tax organ and special operator and if necessary to repeat procedure of handing over of the electronic accounting.
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It is necessary also to mark that in accordance with p. 6 Order, if a taxpayer sends in an inspection a tax return (calculation) on telecommunication communication channels, then a duty to present paper copies for him does not arise up.
Responsibility
On general rules tax returns (calculations) are subject to presentation in tax organs in a timely manner (p. 6 item 80 NK of Russian FEDERATION), for violation of which the Internal revenue code foresees responsibility on an item 119 NK of Russian FEDERATION.
We will remind, in accordance with п. of 1 this article the size of penalty approvals can make the to 30% sum of tax from 5, to subject to payment (to the additional charge), depending on the amount of months (complete and incomplete) of expiration. If the sum of tax is small or absents quite ("zero" declaration), then from a taxpayer will exact a minimum fine - 100 rubs. In the case of delay more than on half-year (more than 180 days) into an action п. enters 2 items 119 NK of Russian FEDERATION, which more hard fines are set, namely 30% from the sum of tax, to subject to payment, plus on 10% for every month (complete and incomplete) of delay. However a minimum fine (100 rubs) this norm does not foresee, therefore if to present a "zero" declaration later 180 days from the set term, then a fine will not be in general. Undoubtedly, certain interest for a taxpayer Letter of Ministry of finance of Russia will cause from 24.12.2007 №03-01-13/9-269. In particular, in this document did officials answer a question: is it possible to attract a taxpayer, obliged to present declaration in an electronic kind (on telecommunication communication channels), to tax responsibility on an item 119 НК of Russian FEDERATION, in case if declaration was presented on a paper transmitter?
The separate categories of taxpayers according to a tax law must present declarations (calculations) in an electronic kind. This duty they carry out by communication of corresponding data through telecommunication communication channels. In opinion of Ministry of finance, presentation of tax return in the improper kind or by the unstated method must be examined as a nonperformance of duty on her presentation. At the same time to bring a taxpayer to the account, handing over declaration with violation of requirements of item 80 NK of Russian FEDERATION, in opinion of officials, it is needed taking into account right applied practice. For example, if a taxpayer disturbed handing over of declaration on an income tax, then tax organs must take into account judicial practice, folded through this question in a concrete region.
In opinion of author, by conclusions, done in a letter, officials acknowledge that now the internal revenue code does not contain the special norms, settings responsibility of taxpayer for presentation of tax returns (calculations) in an electronic kind. From here reasonable advice to observe carefulness the inferiors at making decision - oriented on judicial instances.
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Now arbitrage practice is folded so that a taxpayer can bring to the account on an item 119 NK RF only for presentation of declaration in the term set by a law. Disturbing of her presentation of responsibility does not draw. As an example we will present Decision FRONT of ВСО from 16.10.2007 № А58-2710/07-Ф02- 7689/07, a next situation is considered in which. Organization in good time presented in a tax organ declarations in an electronic kind on a diskette with confirmation on paper transmitters. In turn, налоговики said no in the reception of accounting, specifying on the duty of firm to present declarations in an electronic kind on telecommunication communication channels. Firm long did not argue and went under the thumb of inspectors, but the date of dispatch of declarations on telecommunication communication channels appeared outside the set terms. In the total organization was brought to the account on п. of a 1 item 119 NK of Russian FEDERATION. However judges decided that налоговики in this case had extended the sphere of action of norms of НК РФ about tax responsibility and, alluding to the Informative letter YOU Russian FEDERATION from 17.03.2003 № 71, specified on absence of grounds for bringing in of taxpayer to responsibility. Result of "battles" - the decision of tax organ is acknowledged by illegal. Moreover, grounds for the overvalue of conclusions of court on this dispute YOU Russian FEDERATION did not find (Decision from 14.02.2008 № 1475/08).
It should be noted that arbitrage practice, more clearly reflecting the problem of presentation of the tax accounting in an electronic kind, while not folded. How налоговики will operate in regard to taxpayers, not observing the requirement of p. 3 items 80 NK of Russian FEDERATION, to predict enough difficultly. According to elucidations of Ministry of finance all will depend on arbitrage practice on this question in every region.
In addition, in the case of presentation of declaration a taxpayer in a tax organ during 10 days upon termination of the set term inspectors can avail to the item 76 NK of Russian FEDERATION which gives a right to halt the operations of this taxpayer on his bank accounts to them. Also for violation of the terms of presentation of the tax accounting set by a tax law in a tax organ at the place of account of violator can bring to the administrative account on an item 15.5 KoAP of Russian FEDERATION. We will remind, in accordance with this norm the public servants of organization can be fined on a sum a from 300 to 500 rub.
List of literature
1. Order of presentation of tax return in an electronic kind on telecommunication communication channels.
2. Requirements about presentation of accounting in an electronic kind: Letter of ФНС of Russia from 12.03.2007 № 05-3-07/46.
3. Law "On a record-keeping"
4. Letter of Ministry of finance of Russia from 29.12.2006 № 03-02-07/1-364.
5. Order of ФНС of Russia № of ММ- 3-13/708
6. Letter of Ministry of finance of Russia from 18.01.2008 № 03-02-07/1-21, from 26.12.2007 № 03-02-07/1-509
7. Methodical recommendations
8. Regulation
9. Order the tax accounting in an electronic kind appears through the specialized operator of connection
10. By a law "On connection"
11. By a law "On an electronic digital signature"