Article 77 of the Tax Code of the Russian Federation in the new edition. Seizure of the taxpayer's property to ensure the collection of taxes

"Tax Bulletin", N 3, 2001

The Tax Code of the Russian Federation (TC RF, Code) for the first time since the introduction of the tax system in Russia and the functioning of the tax authorities involved the prosecutor's office in the collection of debt on tax payments. The procedure regulating the procedure for seizing the property of a debtor enterprise with the sanction of the prosecutor is set out in Article 77 of the Tax Code of the Russian Federation. This norm relates to Chapter 11 of the Tax Code of the Russian Federation, which deals with methods of ensuring the fulfillment of tax obligations.

Along with a pledge of property, a surety, penalties, and suspension of transactions on bank accounts, the seizure of a taxpayer’s property is a way to secure a tax obligation. However, both tax authorities and taxpayers, when using the provisions of this article in practice, face problems in interpreting its provisions.

In accordance with Article 77 of the Tax Code of the Russian Federation, property is seized if a taxpayer - organization fails to fulfill the obligation to pay tax within the established time frame and if the tax authorities have sufficient grounds to believe that the specified person will take measures to escape or conceal his property.

The question therefore arises: what does the legislator mean by “sufficient grounds”? Reasons to believe that the debtor will take measures to conceal his property should include specific evidence of such intentions in the form of a citizen or official reporting them in writing to the head of the tax authority. In practice, tax authorities do not have the institution of informants who can report on the taxpayer’s actions to conceal property.

The authorities carrying out state registration of purchase and sale transactions of real estate and vehicles do not inform the tax authorities of the parties’ intention to enter into a transaction, since such actions are not expressly provided for by law. In addition, the payer can enter into a pledge agreement, according to which, in the event of failure to fulfill the terms of repayment of the loan, the right to the property of the payer-debtor is transferred to a third party.

Thus, for the reasons stated above, it is difficult to implement in practice the generally established principles of “sufficiency of grounds” laid down in Article 77 of the Tax Code of the Russian Federation. Therefore, it needs to be improved.

In our opinion, the seizure of property on the basis of Article 77 of the Tax Code of the Russian Federation can be carried out if a legal entity has arrears in paying taxes (fees). This in itself is already “sufficient reason” to believe that the taxpayer can at any time exercise his right to dispose of property to the detriment of the interests of the budget or escape.

One of the essential conditions for the seizure of property with the sanction of the prosecutor is the ability not to disrupt the main economic activity of the enterprise, regardless of whether the seizure is partial or complete. Partial seizure is recognized as such a restriction of the rights of a taxpayer - an organization in relation to its property, in which the possession, use and disposal of this property is carried out with the permission and under the control of the tax authority. In case of complete seizure, a person does not have the right to dispose of the seized property, and the possession and use of this property is carried out only with the permission and under the control of the tax authority.

As you can see, based on the concept of this article, the “completeness” of the arrest is quite conditional. The difference between these regimes lies in the different scope of rights to dispose of seized property. In case of complete seizure, the right to dispose of property is suspended unconditionally, and in case of partial seizure, disposal of the seized property is possible under the control and with the consent of the tax authority. Therefore, to use seized property, an enterprise must obtain written permission from the tax authority.

Both seizure mechanisms provided for by this article allow in many cases to avoid the collection of tax payments at the expense of the debtor’s property in accordance with Article 47 of the Tax Code of the Russian Federation, since they are aimed at establishing a regime of control over the taxpayer’s property and facilitate the voluntary repayment of debt by the debtor. When implementing the norms of this article of the Tax Code of the Russian Federation, readers should pay attention to the contradictions in the provisions of paragraphs 4 and 5 of this article, according to which, on the one hand, arrest can be imposed on all property of the taxpayer - debtor, on the other hand, the possibility of arrest is stipulated and part of the property that is sufficient to fulfill the obligation to pay tax.

In our opinion, all of the debtor’s property should be subject to arrest (even if its value exceeds the amount of the debt) only if it represents a single complex (production technological line, separate building, etc.) or the enterprise’s debt to the budget is greater than or equal to the value of the entire property. In other cases, property that is sufficient to fulfill the obligation to pay tax must be seized.

Paragraph 3 of Article 77 of the Tax Code of the Russian Federation stipulates that “an arrest may be applied only to ensure the collection of tax at the expense of the property of a taxpayer - an organization in accordance with Article 47 of this Code.” In our opinion, paragraph 3 of Article 77 of the Code should be conceptually linked with procedural actions for the application of Article 47 of the Tax Code of the Russian Federation in view of the different legal regimes of property.

The procedure for seizure of property with the sanction of the prosecutor (Article 77 of the Tax Code of the Russian Federation) and seizure of property by bailiffs (Article 47 of the Tax Code of the Russian Federation) have a different legal nature. In addition, the procedural steps preceding each type of arrest are different. In the first case (Article 77 of the Tax Code of the Russian Federation), they are aimed at voluntary repayment of existing debt by the debtor himself; in the second case (Article 47 of the Tax Code of the Russian Federation), the property is seized for the purpose of its further sale and forced repayment of arrears.

Thus, if the application of Article 77 of the Tax Code of the Russian Federation did not ensure the voluntary payment of debt on tax payments, the tax authorities may cancel their decision to arrest for further application to the debtor of the measures provided for by Article 47 of the Tax Code of the Russian Federation in compliance with all procedures provided for by the Code. If the taxpayer disagrees with the arrest carried out on the basis of Article 77 of the Tax Code of the Russian Federation, he has the right, in accordance with Article 22 of the Arbitration Procedure Code of the Russian Federation, to apply to the arbitration court with a corresponding claim.

G.V.Chernykh

State Counselor

tax service of the third rank

E.A. Paltsev

Tax Advisor

Krasnodar region

The concept of property seizure

The meaning of property seizure, used in tax relations, is to carry out a set of actions by tax and other competent authorities that limit property rights to property owned by the debtor-taxpayer.

The concept of arrest is established by the provisions of Art. 77 Tax Code of the Russian Federation. One of the important points is the lack of authority of the tax office to seize the property of individuals. Clause 4 art. 77 of the Tax Code of the Russian Federation provides for the possibility of seizing both the taxpayer’s property in its entirety and some part of it.

According to the provisions of paragraph 5 of this article, only the property that will ensure the fulfillment of the obligation related to the payment of taxes can be seized.

Types of property seizure

Existing tax relations provide for a certain procedure for seizing property, established by Art. 77 of the Tax Code of the Russian Federation, as well as other norms of tax law (Chapter 8 of the Tax Code of the Russian Federation), regarding the forced execution of the obligation to pay taxes.

Starting from the moment of arrest of property, its owners are limited in their rights to it, and from this perspective, the scope of such restrictions also determines the rights of the owner, which he can exercise after the arrest and which directly depend on the type of arrest.

The provisions of Article 77 establish the legal possibility of applying two types of arrest:

full;
partial.

In the first case, when making a seizure, the taxpayer (owner) is limited in the disposal of the seized property, while the owner can own and use it under the control and with the permission of the authorized (customs, tax) body.

For example, partial seizure of real estate gives its owner the right to own, dispose and use it in full, but it is necessary to obtain permission from the tax authority, under whose control the above actions can be carried out.

The Tax Code does not contain such a thing as a regime of arrest, which is a set of any measures and rules used to achieve the desired result.

The regime of arrest in tax law is a special procedure by which rights to property are exercised by the taxpayer - its owner, including third parties. Failure to comply with the established regime of arrest provides for liability for the offender (Article 125 of the Tax Code of the Russian Federation).

Conditions for seizing property

Tax legislation, as an indispensable condition for making a legal and informed decision on seizure, establishes two circumstances. Their existence must be simultaneous.

1. Failure by the taxpayer to fulfill his obligations regarding the payment of taxes in accordance with the established deadlines. A slight discrepancy in the accuracy of the wording lies in the definition of the conditions that relate to the understanding of violation of the deadline for paying taxes.

Under such circumstances, any deviation from the deadline allows the conditions of the arrest to be considered fulfilled. Although the emphasis in this case, based on the understanding of the norms of tax legislation, is not placed on the presence of tax arrears, and not, for example, regarding the presence of debt (for the payment of penalties), in which an arrest cannot be imposed.

In addition, only the property that covers the amount of the arrears can be seized, without taking into account the penalty.

2. The second condition is that the authorized bodies have sufficient grounds to believe that the obligated person is evading taxes and is taking measures to conceal his property (Part 2, Clause 1, Article 77 of the Tax Code of the Russian Federation).

However, tax legislation does not prescribe a precise definition of the sufficiency of such grounds. This means that the tax authority can seize property belonging to the debtor, according to its internal conviction, since the tax rules do not contain legal guidelines for establishing the above grounds.

This rule, Article 77 of the Tax Code of the Russian Federation, eliminates the clarity and ambiguity of its interpretation and application to determine the grounds that suggest that the organization intends to hide or hide property from paying taxes. The Federal Tax Service of Russia issued Order No. BG-3-29/404 dated July 31, 2002, which approved Methodological Recommendations on the procedure for seizing property.

Another reason (condition for seizure) may be that the tax authority has already taken measures to forcefully collect the debt, as established by the provisions of Art. 46, 47 Tax Code of the Russian Federation.

Decision to seize the property of a taxpayer-organization

From the moment the tax authority receives information from the bank that there are no funds in the accounts of the (debtor) taxpayer or there are not enough funds to fulfill tax obligations, or when such information is completely missing, the tax authority makes a decision to seize the organization’s property.

Such a decision is made in the form of a resolution, which is drawn up in accordance with the requirements of Appendix No. 9 to the order of the Federal Tax Service of the Russian Federation dated 10/03/2012.

Seizure of property goes through several stages:

1. Decision-making by the head of the tax authority.

A decision to seize the taxpayer’s property cannot be made before the tax authority has made a decision to collect the tax from the property of the debtor-taxpayer.

It should be noted that before making this decision, the tax office must decide to collect the tax at the expense of the debtor’s funds that are in his bank account and only after that make any other compulsory decisions

2. Directly making an arrest.

It is determined by the legally significant moment from which the arrest can be considered made. This means that from now on the taxpayer is obliged to comply with the arrest regime.

Before an arrest is made, the taxpayer is presented with a tax decree, along with the prosecutor's sanction, stating that his property has been seized. The documents presented to the taxpayer include documents confirming the authority of those persons who carry out the arrest.

When making an arrest, the presence of witnesses is mandatory.

The provisions of Article 98 establish requirements for the identities of witnesses (the possibility of involving tax authority officials as witnesses is excluded).

The decision that the seized property begins to take effect from the moment the decision is made and until such a decision is canceled by an official of the same tax office, or if it is canceled by a higher tax authority, as well as by a court.

A taxpayer (organization) may submit a request for a decision to replace the seizure of property with a pledge (Article 73 of the Tax Code of the Russian Federation).

Resolution on seizure of the taxpayer's property

The resolution that the property of the taxpayer's organization has been seized no later than three days from the date of its issuance must be sent in triplicate to the prosecutor's office, which supervises the legality of the actions of the relevant tax office in order to make a decision on authorizing such seizure.

If a partial seizure is imposed, in this case the resolution must specify the procedure by which the taxpayer can dispose of the seized property.

The resolution also specifies the obligation according to which the taxpayer must contact the tax authority if he wishes to alienate seized property under a pledge or lease agreement in order to obtain the appropriate permission.

The resolution must also contain a warning to the taxpayer that if he fails to comply with the established procedure for exercising the right of ownership (or other aspect of the right of ownership) to the property, he is liable under the law.

Decision to authorize arrest

Only the prosecutor's office can authorize arrest based on a tax decision. It is necessary to obtain the prosecutor's sanction to seize the debtor's property in accordance with the provisions of Article 77 of the Tax Code of the Russian Federation in order to ensure the procedure for seizure established in this legal norm.

It should also be noted that the legislation does not define the possibility of appealing a refusal to issue a sanction for arrest, and there is also no possibility of canceling such a refusal by a higher prosecutor’s office. However, the provisions of Article 77 do not contain any indication of which level of prosecutor (city district, etc.) should issue such a sanction.

Time limits for execution of seizure of property

The duty of the tax authority is, no later than the day following the day the prosecutor issues the sanction, to hand over the order to seize the property of the taxpayer (his representative), in person against signature.

It can also be sent by the tax authority by registered mail no later than three working days from the date the prosecutor's office sanctioned the seizure of the property of the taxpayer-debtor.

The arrest must be accompanied by keeping a protocol in accordance with the form established by Appendix No. 10 to the order of the Federal Tax Service of Russia dated October 3, 2012.

Protocol on seizure of property

The protocol, as well as the inventory that is attached to it, must contain a listing of the property that is seized. The inventory of property indicates the exact name, quantity, as well as characteristics that individualize the items and their value.

The protocol, as well as the resolution, reflects the taxpayer’s warning about the application of liability to him for violating the procedure for owning, using and disposing of property.

The protocol must be signed:

tax officer who carries out the arrest;
witnesses present
as well as specialists, if they participate.
The protocol must also contain the signature of the taxpayer himself or his representative.

The fact of refusal to sign by any of these persons is reflected in the tax protocol no later than the day following the day the protocol was drawn up.

The tax office must hand it over to the taxpayer against signature or send it by registered mail to the legal address of the debtor.

If the property that is subject to seizure is not located in one place, then several protocols may be drawn up.

Resolution to cancel the arrest

If the seizure of property is lifted, the decision on this must be canceled by an authorized official of the tax or customs authority. This decision is based on the termination of a person’s obligation to pay taxes or fines.

The arrest is also canceled if an agreement on the pledge of property is concluded (the provision of Article 73 of the Tax Code of the Russian Federation).

The decision that the arrest is canceled must be drawn up in accordance with the form established by Appendix No. 11 to the order of the Federal Tax Service of Russia dated October 3, 2012.

The issued Resolution must be sent within 3 days to the prosecutor's office, which authorized the seizure of the property.

It is also the duty of the tax authority to notify the taxpayer about this within 5 working days after the relevant decision was made.

Grounds for canceling arrest

To terminate the arrest, it is necessary to issue an appropriate resolution by the tax authority that carried out the arrest or to obtain a court decision that the decision to arrest is recognized as illegal.

The provisions of Article 77 establish the rules according to which the decision to seize is canceled by the authorized official of the tax or customs authority that made such a decision. A higher tax office, court, or customs authority can also cancel the arrest.

To cancel the seizure by the court, it is necessary for the interested person to file a claim to release the property from the seizure. Also, in the case when transactions on accounts are suspended, as well as on the basis of Article 81 of the Bankruptcy Law with the beginning of the introduction of a financial recovery procedure, all previously taken measures related to securing the claims of creditors must be canceled and the arrest of the bankrupt’s property is imposed only within the framework of the bankruptcy procedure.

The same applies to the procedure for external administration and bankruptcy proceedings (Articles 94, 126 of the Bankruptcy Law).

In addition to the grounds for which the arrest regime is terminated (Article 77 of the Tax Code of the Russian Federation), in accordance with the provisions of Article 47 of the Tax Code of the Russian Federation, a decision to collect tax at the expense of other property of the taxpayer can be sent for enforcement to the bailiff service.

Since the bailiff, in accordance with the provisions of Art. 59 of the Law on Enforcement Proceedings has the right to seize the debtor’s property; from the moment of such seizure, the seizure imposed in accordance with the provisions of Article 77 of the Tax Code of the Russian Federation by the tax authority ceases to have effect and is subject to cancellation by the body that issued it.

Tax authorities often use such a tool as seizure of property as an effective way to force the taxpayer to fulfill his obligations. But such a measure is quite capable of paralyzing a business or even leading to its collapse. Is it possible to prevent tax authorities from seizing company property? If yes, how to do it?

Characteristic features of seizure of company property

The seizure of property of taxpayers (including companies) is devoted to Art. 77 Tax Code of the Russian Federation.

The seizure of property of organizations has distinctive characteristics:

1. Either all of the company’s property, or only part of it, is subject to seizure. The main rule is this: this procedure applies exclusively to such a volume of property that will be sufficient (necessary) to fulfill the obligation to pay taxes, penalties and fines.

2. To seize property, the sanction of the prosecutor is required. The law gives him a day to think and study the materials presented by the Federal Tax Service, after which he must either authorize the arrest or give a reasoned refusal ( Order of the Prosecutor General's Office of the Russian Federation No. 122 of March 22, 2010).

3. The procedure for seizing the organization’s property is strictly defined:

before its start, officials are required to present official identification, as well as documents justifying the arrest with the sanction of the prosecutor;
the presence of witnesses is mandatory, the presence of a representative of the organization is at his request, which he has no right to refuse, while all those present are explained their rights and obligations;
When restricting the use of property, a protocol is drawn up, as well as an inventory of the property being seized, and each seized item is presented to witnesses and a representative.

4. The place where the seized property will be stored is initially determined in the resolution.

5. Only the head of the Federal Tax Service (his deputy) is authorized to make a decision on arrest.

6. As soon as the debtor fulfills his obligations, the arrest is canceled.

What grounds are sufficient for such a measure?

Tax authorities will be able to initiate the seizure of company property if the following circumstances exist:

The organization did not fulfill its tax obligations in due time.
Representatives of the Federal Tax Service believe that the company is going to take measures to conceal its property. At the same time, the lack of evidence to support these suspicions may become a reason to cancel the imposed restriction ( Resolution of the 11th AAS dated 08/08/2012 in case No. A55-9647/2012).

Please note: Part 1 of Art. 77 of the Tax Code of the Russian Federation is formulated in such a way that between the above-mentioned grounds there is a conjunction “and”. This means that in order to seize the property of a taxpayer (including an organization), both of these conditions must be present simultaneously. Otherwise, the imposed restriction may be invalidated ( Resolution of the Federal Antimonopoly Service of Ukraine dated July 2, 2009 No. Ф09-4454/09-С2).

Other mandatory conditions for seizure of company property:

The arrest must be preceded by a decision by the Federal Tax Service to collect arrears from funds located in the company’s bank accounts and from its electronic money.
The organization does not have any money in these accounts or there is not enough money to ensure the fulfillment of tax obligations, or the tax authorities do not know about the accounts of such a taxpayer.

The conditions must be met simultaneously.

How to avoid arrest?

To be more precise, it is difficult to avoid arrest if the tax authorities have sufficient grounds for doing so. But it is quite possible to cancel it. The law provides several ways for this.

The temporary restriction on ownership rights is lifted when:

Debts and tax arrears have been paid off.
The court declares the debtor company bankrupt and opens bankruptcy proceedings ( Part 1 Art. 126 Federal Law No. 127 “On Bankruptcy”).
The same property was seized by the bailiffs. In this case, their decision has priority over the tax authorities ( clause 2.1.1 of the Agreement between the FSSP and the Federal Tax Service of Russia “On the procedure for interaction between territorial bodies...”).
The Federal Tax Service and the debtor company entered into a pledge agreement. Moreover, this may be the same property that was seized. But in this case it can already be used, which cannot be done during an arrest. Making a decision on the possibility of replacing arrest with a pledge is the right, not the obligation of tax officials.
The arrest imposed by the Federal Tax Service was appealed in court. This will be described in more detail below.

How to get the restriction lifted through the court?

It is enough to point out the mistakes made by tax authorities when implementing this procedure. Of course, not all of them will be grounds for canceling the arrest. Let's name the most “promising”.

The decision to seize only one basis instead of two. The mandatory presence and indication by tax authorities of two factors at the same time was discussed above.
The seizure of property should not lead to the paralysis of the company’s activities, because ultimately the right of its workers to work and to receive wages is violated ( Letter of the Prosecutor General's Office of the Russian Federation No. 40-09-2017 dated 07/06/2017)
Not all seized property is indicated in the resolution.
There is no mark about the type of arrest (whether it is full or partial).
The procedure for producing a temporary restriction of use was violated (there were no witnesses, tax officials did not present official identification, the protocol was drawn up with violations, etc.).
The seized property (its total estimated value) exceeds the amount of unfulfilled tax obligations - tax councils and penalties combined ( Resolution of the Federal Antimonopoly Service of the Ural District dated December 6, 2014 No. F09-5133/04AK).

As you can see, with a competent approach, it is quite possible to achieve a decision on seizure.

Property is seized if the taxpayer-organization fails to fulfill the obligation to pay taxes, penalties and fines within the established time frame and if the tax or customs authorities have sufficient grounds to believe that the specified person will take measures to escape or conceal his property.

2. The seizure of property can be complete or partial.

A complete seizure of property is recognized as such a restriction of the rights of a taxpayer-organization in relation to his property, in which he does not have the right to dispose of the seized property, and the possession and use of this property is carried out with the permission and under the control of the tax or customs authority.

Partial seizure is recognized as such a restriction of the rights of a taxpayer-organization in relation to its property, in which the possession, use and disposal of this property is carried out with the permission and under the control of the tax or customs authority.

3. An arrest may be applied only to ensure the fulfillment of the obligation to pay a tax, penalty, fine at the expense of the property of a taxpayer-organization no earlier than the tax authority makes a decision to collect the tax, penalty, fine in accordance with this Code and in the event of insufficient or absence of funds for accounts of a taxpayer-organization or its electronic funds, or in the absence of information about the accounts of a taxpayer-organization or information about the details of its corporate electronic means of payment used for transfers of electronic funds.

3.1. In order to ensure the fulfillment of obligations to pay taxes and fees, penalties and fines by the party to the investment partnership agreement - the managing partner responsible for maintaining tax records (hereinafter in this article - the managing partner responsible for maintaining tax records), in connection with the implementation of the investment partnership agreement (with the exception of corporate income tax arising in connection with the participation of a given partner in an investment partnership agreement), the common property of the partners, as well as the property of all managing partners, may be seized.

The decision to seize can be made in relation to the common property of the partners, and in the absence or insufficiency of such property, in relation to the property of all managing partners (in this case, first of all, such a decision is made in relation to the property of the managing partner responsible for maintaining tax records).

The decision to seize the common property of the partners is made by the head (deputy head) of the tax authority at the location of the managing partner responsible for maintaining tax records.

The decision to seize the common property of the partners and the property of the managing partners may be made no earlier than the decision to collect taxes, penalties, fines in accordance with this Code and in the event of insufficient or absent funds in the accounts of the investment partnership, persons who are managing partners, or in the absence of information about the accounts of these persons.

5. Only that property that is necessary and sufficient to fulfill the obligation to pay taxes, penalties and fines is subject to seizure.

A seizure of an object of real estate of a foreign organization that does not carry out activities in the Russian Federation through a permanent representative office, if the value of the specified object of real estate exceeds the amounts of taxes, penalties and fines collected in relation to this object, is imposed if the foreign organization does not have other property on the territory of the Russian Federation , which may be subject to foreclosure.

6. The decision to seize the property of a taxpayer-organization is made by the head (his deputy) of the tax or customs authority in the form of an appropriate resolution.

7. The seizure of the property of a taxpayer-organization is carried out with the participation of witnesses. The body seizing property does not have the right to refuse the taxpayer-organization (its legal and (or) authorized representative) to be present during the seizure of property.

Persons participating in the seizure of property as witnesses, specialists, as well as the taxpayer-organization (his representative), are explained their rights and obligations.

8. Seizure of property at night is not permitted, except in urgent cases.

9. Before seizing property, the officials carrying out the seizure are required to present to the taxpayer-organization (its representative) the decision to seize, the prosecutor’s sanction and documents certifying their authority.

10. When making an arrest, a protocol on the seizure of property is drawn up. This protocol or the inventory attached to it lists and describes the property subject to seizure, with a precise indication of the name, quantity and individual characteristics of the items, and, if possible, their value.

All items subject to seizure are presented to witnesses and the taxpayer-organization (its representative).

11. The head (his deputy) of the tax or customs authority, who issued a resolution to seize property, determines the place where the property that has been seized should be located.

12. Alienation (except for those carried out under the control or with the permission of the tax or customs authority that applied the seizure), embezzlement or concealment of property that has been seized is not allowed. Failure to comply with the established procedure for the possession, use and disposal of property that has been seized is grounds for bringing the perpetrators to justice under this Code and (or) other federal laws.

12.1. At the request of a taxpayer-organization in respect of which a decision was made to seize property, the tax authority has the right to replace the seizure of property with a pledge of property in accordance with this Code.

13. The decision to seize property is canceled by an authorized official of the tax or customs authority upon termination of the obligation to pay taxes, penalties and fines or the conclusion of an agreement on the pledge of property in accordance with this Code.

The decision to seize property is valid from the moment of seizure until the cancellation of this decision by the authorized official of the tax or customs authority who made such a decision, or until the cancellation of this decision by a higher tax or customs authority or court.

The tax (customs) authority notifies the taxpayer of the cancellation of the decision to seize property within five days after the date of adoption of this decision.

14. The rules of this article also apply to the seizure of the property of a tax agent - an organization and a fee payer, an insurance premium payer - an organization and a responsible participant in a consolidated group of taxpayers.

15. The rules established by this article are applied taking into account the specifics provided for by this paragraph in relation to ensuring the payment of corporate income tax for a consolidated group of taxpayers.

The seizure of the property of participants in a consolidated group of taxpayers is carried out in the same sequence in which the tax authority carries out the procedure for foreclosure on the taxpayer’s property in accordance with this Code.

"Tax disputes: theory and practice", 2007, N 3

Amendments to the Tax Code of the Russian Federation also affected Art. 77 of the Tax Code of the Russian Federation, which regulates the seizure of the taxpayer’s property to ensure the collection of tax amounts. The fundamental innovation is that the seizure of property is now possible not only to recover tax amounts, but also fines and penalties, which is a negative point for the taxpayer. In addition, you should pay close attention to the seizure procedure, and also take into account the positions of the tax authorities and courts on this issue.

Article 77 of the Tax Code of the Russian Federation determines that the seizure of property as a method of ensuring the execution of a decision to collect taxes, penalties and fines is recognized as the action of a tax or customs authority with the sanction of a prosecutor to restrict the property rights of a taxpayer-organization in relation to its property.

Thus, for legal relations that arose after December 31, 2006, a new rule of seizure is applied - it can be imposed not only on the amounts of tax payments themselves, but also on the amounts of penalties and fines.

Seizure of property is carried out in the simultaneous presence of the following two grounds:

failure by the taxpayer (payer of fees, tax agent) to fulfill the obligation to pay tax within the prescribed period;
there are reasonable grounds to believe that the taxpayer will take measures to escape or hide his property.

It is important to pay attention to the fact that the specified circumstances of seizure of the taxpayer’s property are laid down not only in the Tax Code of the Russian Federation, but also in the Order of the Ministry of Taxes of Russia of July 31, 2002 N BG-3-29/404 “On approval of Methodological recommendations on the procedure for seizure of property of the taxpayer to secure the obligation to pay tax" (hereinafter referred to as the Methodological Recommendations), i.e. in an internal tax document. At the same time, tax authorities often do not pay attention to these conditions.

According to paragraph 2 of Art. 77 of the Tax Code of the Russian Federation, the seizure of property can be complete or partial.

It is interesting that in judicial practice there is no consensus regarding the validity of a transaction the object of which is seized property. Thus, the Resolution of the Federal Antimonopoly Service of the Central District dated August 16, 2005 N A68-GP-307/4-04 states that a lease agreement for real estate with the right to purchase is a void transaction if the real estate that is the subject of the agreement is seized.

At the same time, the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 12, 2004 in case No. A38-448-15/225-2004 states that the sale of the disputed property under arrest complies with the current legislation and there are no grounds for declaring the transaction invalid.

The second situation can be supported by the fact that the arrest is only an encumbrance of the object and does not entail for the owner such restrictions in the right of ownership that would prevent him from disposing of his property. In addition, with a partial seizure, alienation of the seized property is possible, in particular with the consent of the tax authority.

An arrest can be imposed on all the property of a taxpayer-organization, but only that property that is necessary and sufficient to fulfill the obligation to pay taxes, penalties and fines is subject to arrest (clauses 4, 5 of Article 77 of the Tax Code of the Russian Federation). Some judicial authorities believe that the seizure of property of a greater value than is necessary to fulfill the obligation to pay taxes is grounds for invalidating the decision to seize<1>.

<1>Resolution of the Federal Antimonopoly Service of the Central District dated July 15, 2003 in case No. A23-31/03A-5-34.

Arrest procedure

According to paragraph 3 of Art. 77 of the Tax Code of the Russian Federation, arrest can be applied only to ensure the collection of taxes, penalties and fines at the expense of the property of a taxpayer-organization in accordance with Art. 47 of the Code.

The procedure for collecting the amount of tax and penalties from a taxpayer-organization in an indisputable manner is as follows:

The tax authority issues a demand to the taxpayer to pay tax and penalties (Article 45 of the Tax Code of the Russian Federation).
In case of non-payment of tax and penalties, the tax authority makes a decision on collection from funds located in the taxpayer’s bank accounts (Clause 2 of Article 46 of the Tax Code of the Russian Federation).
The tax authority issues and sends collection orders to the bank in which the taxpayer's accounts are opened (Clause 4 of Article 46 of the Tax Code of the Russian Federation).
If there is insufficient or no funds in the taxpayer’s accounts, the tax authority makes a decision to collect tax and penalties from the taxpayer’s property (Clause 1, Article 47 of the Tax Code of the Russian Federation).
Based on this decision, the tax authority issues a resolution to collect the amounts of tax and penalties from the taxpayer’s property.

A resolution to seize the taxpayer's property is invalid if any of the specified stages of the procedure for collecting taxes and penalties are violated.

Thus, the judicial authorities are unanimous in the opinion that the absence of a decision by the tax authority to collect tax debts from funds in the taxpayer’s accounts is grounds for declaring the seizure order invalid<2>.

<2>Resolutions dated December 10, 2003 N F04/6199-1826-2003, dated January 12, 2005 N F04-9224/2004 (7519-A27-26); FAS Volga-Vyatka District dated September 19, 2005 in case No. A39-2378/2005-135/1; FAS Volga District dated January 20, 2006 in case No. A55-963/05-34.

Judicial practice in this category of cases definitely confirms that tax authorities that issue orders to seize the taxpayer’s property without making a decision to collect tax and penalties from his property violate the procedure for seizing the taxpayer’s property<3>.

<3>Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated July 1, 2003 N F08-2232/2003-833A; FAS of the Ural District dated October 22, 2003 N F09-3501/03-AK, dated June 18, 2004 N F09-2411/04-AK; FAS Volga District dated January 15-16, 2004 in case No. A49-3080/03-136A/22; FAS East Siberian District dated 04/06/2004 in case No. A19-15309/03-41-F02-995/04-S1; FAS of the West Siberian District dated 07/05/2004 N F04/3686-1150/A45-2004.

At the same time, some judicial authorities consider a violation of the specified procedure for issuing a seizure order to be not sufficient, but a purely formal basis for invalidating the decision and invite the taxpayer, among other things, to prove that such amounts are included in the decision without sufficient grounds. Thus, in a specific case, the court issued a ruling<4>on the suspension of the consideration of the case on invalidating the seizure order pending consideration of the merits of the case on the legality of the tax authority accruing tax payments on the basis of an on-site tax audit.

<4>Determination of the Arbitration Court of the Novosibirsk Region dated December 20, 2006 in case No. A45-13104/06-12/407.

It is important to note that the tax authorities themselves indicate the need to comply with the procedure for seizing the taxpayer’s property.

So, for example, according to information from S.Yu. Rasnyuk, Advisor to the Tax Service of the Russian Federation of the 3rd rank of the Interdistrict Inspectorate of the Federal Tax Service of Russia for the largest taxpayers in the Novosibirsk region, the tax authority must comply with the procedure for collecting tax at the expense of funds in the taxpayer’s bank accounts, namely, make decisions on collection of taxes in the disputed amount at the expense of the taxpayer’s funds, as well as submit collection orders to the taxpayer’s account; have reason to believe that the plaintiff will abscond or hide his property<5>.

<5>See: Rasnyuk S.Yu. Seizure of property and its relationship with Art. 47 of the Tax Code of the Russian Federation // Epigraph, 05/14/2005, No. 18.

An important circumstance that the court must pay attention to is the fact that there are no funds in the taxpayer’s accounts sufficient to collect the taxes and penalties.

Thus, the court invalidated the tax authority’s decision to seize the company’s property in the manner provided for in Art. 77 of the Tax Code of the Russian Federation, since from the bank statements available in the case materials it follows that on the date of adoption of the said resolution there were sufficient funds in the company’s bank accounts to collect the arrears in an indisputable manner by foreclosure on the taxpayer’s funds in bank accounts<6>.

<6>See, for example, Resolutions of the Federal Antimonopoly Service of the West Siberian District dated 03/09/2004 N F04/1091-7195/A67-2004; FAS North-Western District dated 04/19/2004 in case No. A26-5842/03-26.

Often this circumstance is the basis for sending the case for a new trial. Thus, one of the cases on the application for invalidation of the resolution on the collection of taxes and penalties at the expense of the taxpayer’s property was transferred for a new consideration to verify the availability and sufficiency of funds in the taxpayer’s bank accounts to pay off the debt<7>.

<7>Resolution of the Federal Antimonopoly Service of the Volga District dated April 11, 2006 in case No. A65-9777/2005-SA1-7.

At the same time, the tax authorities themselves previously explained that collection of taxes and penalties from the taxpayer’s property is possible if the following documents are available at the tax inspectorates:

personal accounts of taxpayers confirming arrears of taxes and other obligatory payments to the budget and extra-budgetary funds;
settlement, current, currency, special loan or other accounts of taxpayers in banks, indicating the absence of funds in these accounts;
results of reconciliation of calculations according to acts of verification of compliance by taxpayers with tax legislation (in case of such audits)<8>.

<8>Letter of the Ministry of Finance of Russia dated February 28, 2000 N 04-01-10.

The arrest warrant must contain the following information:

a) last name, first name, patronymic of the official and the name of the tax authority that issued the decision;

b) date of issue and number of the decision;

c) name and address of the taxpayer (payer of fees) or tax agent;

e) the amount of arrears on taxes and other obligatory payments to the budget and state extra-budgetary funds, which should be seized;

f) type of arrest (full or partial);

g) a list of property subject to seizure;

h) grounds for believing that the specified person will take measures to escape or hide his property.

When imposing a partial seizure, the resolution must contain the procedure for disposing of the seized property by the taxpayer (payer of fees) or tax agent, establishing the obligation for them to apply to the tax authority for permission to alienate, including under pledge agreements and leases of the seized property.

The resolution must provide for a warning to the taxpayer (payer of fees) or tax agent about liability for failure to comply with the established procedure for ownership, use and disposal of property (clause 8 of the Methodological Recommendations).

The seizure of property is carried out by the tax authority no later than three working days following the day of receipt of the sanction of the prosecutor's office. The protocol or the inventory attached to it lists and describes the property subject to seizure, with a precise indication of the names, quantities and individual characteristics of the items, and, if possible, their value.

The protocol must indicate that the taxpayer (fee payer) or tax agent has been warned of liability for failure to comply with the established procedure for ownership, use and disposal of property.

The seizure of property is carried out with the participation of witnesses, in which any individuals who are not interested in the outcome of the case can be called.

Sufficient grounds

One of the grounds for seizing a taxpayer’s property is the presence of sufficient grounds to believe that the taxpayer will take measures to escape or hide his property.

In paragraph 3 of the Methodological Recommendations, under the grounds indicating that officials of the taxpayer (payer of fees) or tax agent - organization may try to escape or hide property, it is recommended to understand the following:

the presence on the balance sheet of the taxpayer (payer of fees) or tax agent of movable property, including securities, the funds from the sale of which are sufficient to repay more than 25% of the amount of unpaid tax;
the presence on the balance sheet of the taxpayer (payer of fees) or tax agent of receivables that can be collected if the taxpayer (payer of fees) or tax agent does not take measures to collect them in the manner prescribed by law for more than one quarter.

However, it should be taken into account that, for example, the presence on the taxpayer’s balance sheet of accounts receivable, measures for the collection of which were not taken by the taxpayer, cannot be considered as an unconditional basis for recognizing the taxpayer’s attempts to hide his property or escape.

The judicial authorities rightly indicate that in accordance with Part 5 of Art. 200 of the Arbitration Procedure Code of the Russian Federation, the obligation to prove the circumstances that served as the basis for the adoption of contested acts rests with the body that adopted such an act, i.e. in this case to the tax authority<9>;

the amount of the total amount of debt for tax and other obligatory payments (including fines and penalties), including those deferred (in installments) for payment, exceeds 50% of the book value of the property of the taxpayer (payer of fees) or tax agent.

<9>Resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 28, 2004 N F03-A73/04-2/1128.

This basis is also not considered by the judicial authorities as unconditional for recognizing that the taxpayer will take measures to conceal his property<10>;

receipt by the tax authority of information from the prosecutor's office, internal affairs, the FSFO of Russia and other official sources indicating the withdrawal (concealment) of the organization's assets or the intention of officials of the taxpayer (payer of fees) or tax agent-organization to hide;
analysis by tax authority officials of the activities of a taxpayer (fee payer) or tax agent, allowing a conclusion to be made about possible tax evasion, for example:

systematic evasion of the taxpayer (payer of fees) or tax agent from appearing before the tax authority;
carrying out by a taxpayer (payer of fees) or a tax agent a quick sale of property or re-registration of property to dummy persons;
participation of intermediary firms in the calculations of the taxpayer (payer of fees) or tax agent for his products;
accumulation of funds of a taxpayer (payer of fees) or tax agent in the accounts of other legal entities;

other circumstances and information that may be recognized by the tax authority as grounds for seizure.

<10>Resolution of the Federal Antimonopoly Service of the West Siberian District dated September 22, 2004 N F04-6768/2004 (A67-4854-3).

It is obvious that all the grounds specified in the Methodological Recommendations for recognizing in the actions of a taxpayer an intention to escape or hide his property are subject to proof by the tax authority. Courts have repeatedly pointed out this obligation<11>.

<11>Resolutions of the Federal Antimonopoly Service of the North-Western District dated July 22, 2005 in case No. A56-23702/2004; FAS East Siberian District dated 09/08/2005 in case No. A19-31955/04-45-F02-4376/05-S1; FAS of the West Siberian District dated 07/03/2006 N F04-3993/2006(24083-A67-35).

Seizure of property for the purpose of collecting penalties

Previously, the tax legislation of the Russian Federation did not provide for the seizure of a taxpayer’s property to ensure the collection of penalties. Now, by virtue of the direct instructions of Art. 77 of the Tax Code of the Russian Federation, arrest may be imposed not only on the amount of tax, but also on the amount of penalties and fines.

However, it should be borne in mind that clause 3 of Art. 77 of the Code (as amended by Federal Law No. 137-FZ of July 27, 2006) came into force on January 1, 2007 and applies to relations regulated by the legislation on taxes and fees that arose after December 31, 2006, unless otherwise provided by this Law.

Thus, attempts by the tax authorities to seize the amount of not only taxes, but also penalties or fines for relations that arose before December 31, 2006, seem unfounded.

Let us consider the arguments on the basis of which it can be argued that it is illegal to include penalties and fines in the amount of debt for the amount of which property can be seized.

The main argument may be the fact that a fine, like the seizure of property, is a measure to ensure the fulfillment of the taxpayer’s obligation to pay tax.

However, the tax authorities considered it possible to seize the taxpayer’s property to ensure the fulfillment of his obligation to repay the debt on penalties even before the adoption of clause 3 of Art. 77 of the Tax Code of the Russian Federation in the new edition.

This statement follows from the analysis of clause 2.2 of the Methodological Recommendations, which states that if there is insufficient or no funds in the taxpayer’s accounts or there is no information about the taxpayer’s accounts, the tax authority has the right to recover the tax at the expense of the property, including at the expense of the taxpayer’s cash in accordance with Art. 47 of the Code within the limits of the amounts specified in the request for payment of the tax (fee), as well as penalties, and taking into account the amounts in respect of which collection was made in accordance with Art. 46 of the Code. Collection of taxes (fees), as well as penalties, from the taxpayer’s property is carried out by decision of the head of the tax authority or his deputy.

Judicial practice, as a rule, was of the opinion that it was impossible to seize property in the amount of penalties accrued by the tax authority<12>.

<12>Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated May 28, 2004 N F03-A73/04-2/1128; FAS Volga District dated February 15, 2005 in case No. A49-11949/04-383A/11; FAS of the West Siberian District dated 04.05.2005 N F04-2645/2005(10985-A27-33).

At the same time, in judicial practice there are isolated examples where courts have recognized it as permissible to seize a taxpayer’s property to collect penalties.

Thus, the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 08/03/2001 in case No. A29-2693/01A states that, according to paragraph 3 of Art. 77 of the Tax Code of the Russian Federation, arrest can be applied only to ensure the collection of tax at the expense of the property of a taxpayer-organization in accordance with Art. 47 of the Code.

In accordance with clause 7 (in the current version - clause 8) Art. 47 of the Tax Code of the Russian Federation, the provisions of this article also apply when collecting penalties for late payment of taxes and fees.

Therefore, the conclusion of the court of first instance that it is inadmissible to seize the taxpayer’s property in fulfillment of the obligation to pay penalties for late payment of a tax (fee) contradicts the current legislation.

In this regard, it can be argued that, firstly, in Art. 77 of the Tax Code of the Russian Federation provides for the possibility of seizure only for taxes; secondly, a reference to the analogy of the application of Art. 47 of the Tax Code of the Russian Federation regarding penalties applies to the procedure for collecting taxes, fees, as well as penalties and fines at the expense of other property of the taxpayer (tax agent - organization), individual entrepreneur, and not the seizure of such property.

It is worth, however, taking into account the fact that these arguments can only be given regarding legal relations that arose before December 31, 2006.

Two penalties?

The tax authority, collecting in an indisputable manner the amount of tax debt, guided by the procedure prescribed in the Tax Code of the Russian Federation, often in fact uses simultaneously two measures of indisputable collection of the amount of tax from the taxpayer. This means that simultaneously with the decision to collect tax from the taxpayer’s property, collection orders are already issued to the taxpayer’s accounts.

What to do in such a situation and is it legal?

Clause 3.2 of the Methodological Recommendations provides that in order to protect the rights of the debtor and bring actions for the forced collection of taxes (fees), as well as penalties, into compliance with the legislation of the Russian Federation, after receiving from the bailiff service a copy of the resolution to initiate enforcement proceedings, the tax authority makes a decision to suspend the write-off funds in an indisputable manner from the debtor's accounts (suspends the validity of the collection order issued to the debtor's account) and on the same day sends it to the appropriate bank. The decision to suspend the write-off of funds in an indisputable manner from the accounts of the debtor is made by the tax authority in relation to the amounts of debt specified in the resolution of the tax authority on the collection of tax (fee), as well as penalties at the expense of the property of the taxpayer-organization (tax agent-organization), for which The bailiff initiated enforcement proceedings.

The judicial authorities recognize as inadmissible the foreclosure of a taxpayer’s property without recalling from the credit institutions serving him the collection orders (instructions) of the tax authority for the transfer of taxes that have not been executed in the prescribed manner, since the simultaneous foreclosure of the taxpayer’s funds and property may entail the repeated seizure of some and the same amounts and, thus, will significantly violate the legal rights and interests of the taxpayer<13>.

<13>Resolutions of the Federal Antimonopoly Service of the North-Western District dated August 22, 2001 in case No. A52/745/2001/2; FAS Central District dated 05/07/2003 in case No. A62-2624/02; FAS of the West Siberian District dated March 1, 2004 N F04/1010-224/A45-2004.

At the same time, tax legislation does not contain provisions obliging the tax authority to recall collection orders from the bank before making a decision to foreclose on the debtor’s property. It follows from this that collection orders for accounts issued by the tax authority may be suspended.

Moreover, the withdrawal of collection orders is not a necessary condition for the tax authority to make a decision to collect tax at the expense of property, and the very presence of collection orders issued to the taxpayer’s account cannot be a basis for invalidating this decision<14>. However, the judicial authorities point out the need for the tax authority to comply with the Methodological Recommendations in order to provide taxpayers with guarantees aimed at preventing excessive collection of taxes and penalties from them.

<14>Resolution of the Federal Antimonopoly Service of the Volga District dated January 20, 2006 in case No. A55-8240/2005-11.

Thus, in this situation, the main criterion by which the simultaneous use by the tax authority of two measures aimed at collecting indisputably the amounts of tax and penalties can be considered unlawful will be the danger of repeated collection of the amounts of tax and penalties.

Judicial protection

If the tax authority has issued a seizure order, the taxpayer can exercise his right to judicial protection and apply to the court to declare the non-normative act of the tax authority invalid.

In this case, the taxpayer can use the following arguments (see table).

Argument	Base	Judicial practice in favor taxpayer
Violated procedure rendering resolutions	Article 46, 47, 77 Tax Code of the Russian Federation	Resolutions of the FAS North Caucasian district dated 07/01/2003 N Ф08-2232/2003-833А; FAS Ural District dated 10/22/2003 N F09-3501/03-AK, dated 06/18/2004 N F09-2411/04-AK; FAS Povolzhsky District dated January 15-16, 2004 in the case N A49-3080/03-136A/22; FAS East Siberian District from 04/06/2004 on the case N A19-15309/03-41-F02-995/04-S1; FAS West Siberian District from 07/05/2004 N Ф04/3686-1150/А45-2004
Not fulfilled grounds overlays arrest on property taxpayer	Paragraph 1 Art. 77 Tax Code of the Russian Federation	FAS resolutions Far Eastern District from 06/21/2001 N F03-A51/01-2/1098; FAS West Siberian District from 09.22.2004 N Ф04-6768/2004(А67-4854-3); FAS East Siberian District dated January 27, 2005 on the case N А33-10726/04-С3-Ф02-5926/04-С1
In the resolution amounts included penalty collected	Clause 3 of Art. 77 Tax Code of the Russian Federation (up to 31.12.2006)	FAS resolutions Far Eastern District from 05/28/2004 N F03-A73/04-2/1128; FAS Volga region from 02/15/2005 on the case N A49-11949/04-383A/11; FAS West Siberian District from 04.05.2005 N Ф04-2645/2005(10985-А27-33)
In the resolution amount included larger than tax amount, subject collection	Point 5 Art. 77 Tax Code of the Russian Federation	Resolution of the Federal Antimonopoly Service of the Urals district from 06.12.2004 N F09-5133/04-AK; Informational letter from the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/21/2004 N 77 "Review of practice consideration of cases related to execution by bailiffs - executors of judicial acts arbitration courts"
Tax authority simultaneously two are accepted measures, aimed at indisputable collection of amounts tax		Resolutions of the FAS North Western District from 08/22/2001 to case No. A52/745/2001/2; FAS Central District dated 05/07/2003 in case No. A62-2624/02; FAS West Siberian District from 01.03.2004 N Ф04/1010-224/А45-2004, dated 23.03.2005 N Ф04-542/2005(8661-А02-25); FAS Volga district dated 04/11/2006 in case No. A65-9777/2005-CA1-7
Violated requirements to registration resolutions absent prosecutor's sanction	Article 77 Tax Code RF	Resolutions of the Federal Antimonopoly Service of Moscow district from 09/23/1999 N KA-A40/3024-99; FAS West- Siberian district dated 09/11/2002 N Ф04/3396-1031/А27-2002

It should be noted that at present, appealing decisions of tax authorities to seize the property of taxpayers is of particular importance. This is due to changes in the Tax Code of the Russian Federation, which provide for the right of tax authorities to seize property not only for the amount of accrued taxes, but also for the amount of penalties and fines, which, as practice shows, can not only be significant, but also exceed the tax liability itself .

K.E. Korobkova

Leading Lawyer

LLC "Law company "AVEGA"