Lawyers were skeptical about the department's initiative, expecting massive mistakes in relation to Russians
The Ministry of Finance of the Russian Federation has proposed changing the procedure for collecting tax debts from citizens, which will have to take place without going to court. The department published such a draft federal law for public discussion. According to the “powers that be,” the proposed procedure will reduce the burden on the courts. However, lawyers and tax consultants are skeptical about this initiative, pointing out the great risks for citizens in case of erroneous accruals or incorrect calculations of accruals.
The Ministry of Finance believes that the collection of tax debts of citizens should take place out of court. The judicial procedure for collecting from citizens will remain if the taxpayer files a complaint to dispute the debt before the tax authority decides to collect it (at the same time, the disagreements were not resolved pre-trial). The Supreme Court has already come out with a similar proposal earlier. It indicated that in Russia every year about 5 million applications are filed for the collection of taxes and fees from individuals. In the first quarter of 2024, the number of such cases almost quadrupled compared to the same period last year. The Ministry of Finance is confident that the new collection procedure will reduce the burden on the courts and make existing procedures more harmonious. If the Ministry of Finance's initiative is approved by the government, it will come into force on January 1, 2025.
According to the Federal Tax Service, today the main debts of citizens to the budget come from unpaid property taxes. According to the current law, today the collection of unpaid taxes from debtors takes place on the basis of an order that must be issued by the court. And before contacting it, tax authorities must send the debtor several documents about his debt and the need to repay it.
The Ministry of Finance proposes to change this procedure. If his initiative is approved, the procedure will look like this: first, the citizen receives a notification about the need to pay off tax debts. If this requirement is ignored, the tax authorities will have the right to independently decide on debt collection. The order of their actions will depend on the amount of debt. If it is more than 10 thousand rubles, then the authorized body will make a decision on collection:
- or within 6 months from the date of expiration of the deadline for fulfilling the demand for payment of the debt;
- or no later than July 1, if as of January 1 of the same year the amount of debt exceeded 10 thousand rubles.
If a citizen’s debt does not exceed 10 thousand rubles, the decision on collection must be made no later than July 1 of the year, on January 1 of which three years have expired from the deadline for fulfilling the requirement to pay the debt, is indicated in the bill. The citizen will be informed about the decision of the tax authorities through the taxpayer’s personal account or the State Services portal. If this is not possible, he will be sent a registered letter.
If a citizen does not agree with the debt accrued to him, he can send an appeal to the inspectorate. While it is being considered, the actions of the tax authorities will be put on pause. It will be possible to challenge the decision on collection both pre-trial and in court. The Ministry of Finance is confident that this procedure will make it possible to “unify the procedure for collecting” tax arrears from individuals by applying to them the current procedure for out-of-court settlement of the dispute.
It is expected that the new procedure will affect three main taxes on citizens:
- land tax;
- transport tax;
- property tax for individuals.
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Experts disagreed about the effectiveness of the initiative proposed by Anton Siluanov’s department. So, according to the head of the department of state and municipal finance of the Russian Economic University. G.V. Plekhanov Mikhail Kosov, the proposed mechanism is another example of expanding the digital space in the field of taxation, and therefore the timeliness of informing citizens about the formation of debt. But in this proposal it is necessary to consider the fact that the citizen has recorded receipt of such requirements. “This will speed up the replenishment of the budget,” Vadim Tkachenko, a lawyer and founder of the vvCube consulting group, gives another argument in favor of the innovation. At the same time, the most important problem of all extrajudicial collections is errors in accrual and additional tax assessments. They need to be verified and challenged in court, because there is a certain procedure for proving, providing information, etc. If this is not done, then in the process of extrajudicial collection these processes will be difficult to record. This means that there will be a risk of unjustified collection of funds. This may not be a large-scale situation, and in some cases it will turn out that taxpayers actually did not make payments for some reason. But it is precisely these reasons and circumstances that must be clarified in court. A person gets sick or has financial difficulties — this can become a mitigating circumstance in court. And in an out-of-court procedure, it is unclear whether the tax authority will take into account the circumstances that prevented the fulfillment of obligations or not, Tkachenko added.
According to Anton Sonichev, a representative of the law firm “Sonichev, Kazus and Partners”, one can only agree with the position of the Ministry of Finance that magistrates’ courts issue court orders for debt collection “automatically”, without delving into the legality of the requirements, therefore, from a fiscal point of view, the court really looks like an unnecessary body in the collection chain. From the position of ordinary citizens, the situation looks completely different.
Thus, the procedure and terms of collection are described in the Tax Code of the Russian Federation, but often tax authorities do not comply with this procedure, and higher tax authorities do not consider procedural violations as grounds for declaring actions illegal. Thus, with the introduction of a single tax account (UTA), taxpayers were faced with a massive problem that the UTA included debts from previous years, for which it has long been impossible to confirm the fact of payment, since the storage period for information in banks is 5 years. In such cases, only the court can protect taxpayers.
“The most absurd case from our practice occurred in the Tyumen region. A pensioner contacted us with a court order to collect more than 64 thousand rubles, of which 1.5 thousand rubles were property taxes for 2014, and the rest were penalties. At the same time, he only learned about the existence of a debt from the court; before that, he had not received any documents from the tax office, the lawyer gave an example. — We canceled the court order and appealed the demand for payment of arrears, issued in 2023, to the Office of the Federal Tax Service of Russia for the Tyumen Region. Meanwhile, the inspectorate applied for collection of the arrears to the district court (the next stage of the current collection procedure). During the appeal process, we learned that more than 60 thousand rubles in penalties were accrued for arrears that arose before 2005, while the tax authority could not provide more accurate information about the amount and period of occurrence of the arrears, and the first demand for payment of the debt was sent to the personal account, about the existence whom the pensioner did not know, in 2020, no documents were sent to him by mail.”
The Federal Tax Service for the Tyumen Region canceled the tax payment requirement issued in 2023, but the inspectorate did not withdraw its claim from the court. And only the court put an end to the dispute, saying that it is impossible to collect debts discovered after almost twenty years.
And even despite the fact that the higher tax authority recognized the inspection’s demand as illegal and indicated the need to write off the debt, the amount of debt continues to be listed in the taxpayer’s personal account and increases every day. And it is possible that the inspectorate will make a new demand and begin to collect the debt again. So, until the tax authorities learn to strictly comply with the norms of tax legislation, it is under no circumstances possible to exclude an independent body — the court — from the procedure for collecting debts from ordinary citizens.
“What would have happened in the case under consideration if the procedure proposed by the Ministry of Finance had been in effect? — asked Sonichev. — First, all the funds he had would be written off from the pensioner’s accounts, only after that would he learn about the existence of his debt and could try to dispute it. And, unfortunately, most citizens do not have access to free and high-quality legal assistance.” Thus, the initiative of the Ministry of Finance will indeed reduce the burden on the courts, but will have a negative impact on ordinary citizens, since it will deprive them of the preliminary protection of an independent body, the expert is sure.
The goal of this initiative is clear — to simplify the work of tax authorities in collecting debts. “Will this make things easier for ordinary citizens? I don’t think so, because there are more risks and fewer guarantees,” Polina Gusyatnikova, senior managing partner of the law firm PG Partners, continues the conversation. —The initiative provides for the write-off of debts through the courts if a citizen files a complaint within a certain time frame. But which ordinary citizen will follow this? Many people don’t even know about this opportunity.”
The new tax collection mechanism proposed by the Russian Ministry of Finance is fundamentally different from the current procedure and could potentially significantly increase the costs of Russians disputing additional tax assessments. «First, the tax authority issues a demand for payment indicating the deadline for voluntary payment of the tax. And if the payment is not made, then it makes a decision on forced collection of the tax,» says Oksana Parshina, senior lawyer at the YUST Law Firm. «If an individual does not agree, then he is obliged to undergo a pre-trial dispute resolution procedure by sending complaints to the tax authority and to a higher tax authority. This means that an individual must hire a lawyer to draft such a complaint and to participate in the consideration of this complaint in all.» Thus, in order to verify the legality of tax collection under the new mechanism, a Russian will need significant material resources, which will make judicial protection from unfounded claims of state bodies inaccessible to the majority of the population. For example, if the annual property tax is 3,000 rubles, then appealing it in pre-trial and judicial procedures will cost an individual at least several tens of thousands of rubles. With such a disproportion, a citizen will actually be deprived of the economic opportunity to appeal additional charges of the tax authority in court, the expert is sure.
This initiative can be assessed in different ways. On the one hand, indeed, when a large number of similar applications are sent to the court, most often for undisputed debts, this does not contribute to the quality of judicial protection. «Here it is important to oblige the tax authority to explain to the taxpayer the procedure and deadlines for filing an objection to the decision of the tax authority,» explained lawyer Sergei Kudinov, who specializes in tax disputes. On the other hand, individuals are the least protected taxpayers. As a rule, they do not have knowledge of tax legislation, so such an approach requires the clear work of the tax system. But it is unlikely that anyone will be surprised by the prediction that there will be mistakes (although we must give credit to the tax authorities, there are fewer of them) and it is quite difficult for a person who has no professional relationship with taxes to figure it out, the lawyer concluded.