Consequences of a collusion

The FCA of the Moscow District adopted a resolution ruling illegal the position of the organization, which ordered a bank to complete the transfer of tax payments, even though it knew that the latter had no funds.

The dispute’s essence

The organization had sufficient funds at its settlement account and sent to the bank payment orders to pay its taxes. The bank did not fulfil the orders as it had no funds at its loro account. The tax inspectorate did not acknowledge that the organization’s obligation to pay taxes had been discharged for the reason of the subsequent cancellation of the bank’s license and for the reason of the organization’s wish to discharge the tax obligation early, so the organization sued it.

Position of the Moscow District Court

The tax payment obligation is considered discharged on the moment, when the order to transfer the monetary funds from the taxpayer’s bank account to the budget system of the Russian Federation, to the respective account of the Federal Treasury, provided the taxpayer’s account contains sufficient funds as of the day of the payment. The taxpayer’s obligation is considered discharged on the moment, when the alienation of the part of his property intended for the payment to the budget as tax has actually been completed. This alienation occurs on the moment of writing-off, done by the bank, of the respective monetary amounts from the taxpayer’s settlement account as payment of the tax.

The organization has issued payment orders for those taxes, the payment dates of which have already arrived, as well as for those taxes, the periods of which have not yet expired, and the obligation of payment of which has not yet arisen. The court dismissed the organization’s argument of the taxpayer’s right to early fulfil the tax obligation for the reason that only such obligation as has already arisen may be discharged early. And since such obligation only arises after the reporting period expires, it is impossible to discharge before the end of such period.

Conclusions

Within a week, the bank’s license to conduct banking operations was cancelled for the reason of the bank’s inability to satisfy the creditors’ claims under financial obligations. In this connection, and taking into account the numerous applications of measures under the Law “On Central Bank of the Russian Federation” during the year, the court acknowledged that the organization had acted dishonestly by ordering the bank to complete the transfer of the funds.

The payments did not correspond to the actual tax obligation, were made before the end of the tax period, after which the payable tax amount is calculated, and before the tax became due, which is not characteristic of a normal economic activity.

Value of the precedent

The existing court practice acts on the following basis: if the taxpayer was not aware of the difficult situation of the bank, his duty of payment of compulsory payments is considered fulfilled on the moment of writing-off of the funds from his settlement account. This is supported by the recently adopted Resolution of the FCA of the Central District on the case No. A54-1768/2011 dated September 07 of 2012. The respective federal laws (Federal Law No. 224-FZ dated September 26 of 2008, Federal Law No. 229-FZ dated July 27, 2010) were adopted in 2008 and 2010, which ruled bad the taxes, if said funds were written off the settlement accounts, but were not credited to the budget because the banks were dissolved.

Apparently, the organization decided to avail itself of that practice and to liquidate all its tax debts (which is evidenced by the payment of the penalty for three previous years). Since the organization paid the taxes early, it was likely aware that the bank was close to bankruptcy, which indicates the collusion between the bank and the organization, in which the bank informed its client of the opportunity.

EXPERT’S OPINION

Maxim Rovinskiy, Advocate, Head of Tax and Customs Law Practice of the Law Firm "YUST"

Pursuant to clause 4 of Article 59 of the Tax Code of the Russian Federation, the amounts of taxes, duties, penalties and fines written off the accounts of the taxpayers, duty payers, tax agents in banks, but not credited to the budget system of the Russian Federation, are ruled bad and are written off pursuant hereto if the respective banks were dissolved as of the moment of ruling said amounts bad and of writing them off.

Said rules are intended to protect the interests of the taxpayers, if for “unforeseeable reasons” the money does not get credited to the budget. However, the trials on the case No. A41-37466/11 ascertained (and this is in conformity with the existing court practice), that said guarantees of the rights are only enjoyed by the honest taxpayers.

The circumstances of that case and most of all the fact that the taxpayer attempted to pay taxes, which had not yet become due, permitted the courts to conclude that the taxpayer’s actions were done in ill faith and concerted with the “problematic” bank. In other words, the courts were convinced that the circumstances, which had prevented the ingress of the funds to the bydget, were not unforeseeable by the taxpayer.

The printed version of the publication is available in the “Bankovskoe Obozrenie” (Banking Review) magazine No. 11 (166), November of 2012.