of March 21, 2013 No. AC-4-2/4829
About the guarantee, stipulated in Item the 11th article 101 of the Tax Code of the Russian Federation
The Federal Tax Service in connection with appeals of territorial tax authorities reports the following.
According to Item 11 of article 101 of the Tax Code of the Russian Federation (further - the Code) at the request of person concerning whom the decision on acceptance of interim measures was passed the tax authority has the right to replace interim measures with the guarantee of the third party.
The specified regulation directly provides that the guarantee is drawn up according to the procedure, stipulated in Article 74 Codes.
In case of replacement of interim measures it is reasonable to consider that the specified procedure is concretized by Items 20 - 24 Procedures for change of payment due date of taxes and fees, and also penalty fee and the penalty tax authorities approved by the order of FNS of Russia of 28.09.2010 of N MMB-7-8/469 @ (dalee-Poryadok).
As Item 11 of article 101 of the Code directly provides the guarantee of the third party, unlike the Procedure, the guarantee agreement is signed by the head (deputy manager) of tax authority in the place of accounting of the taxpayer, but not the relevant management on the subject of the Russian Federation. At the same time in case of change of the location (residence) of the taxpayer it is reasonable to refer replacement of interim measures and the conclusion of the guarantee agreement to competence of tax authority in the place of accounting of the taxpayer as of date of such replacement (the conclusion of the guarantee agreement).
According to Item 10 of article 101 of the Code the head (deputy manager) of tax authority has the right to make the decision on interim measures or the decision on replacement of interim measures and consequently, the decision on replacement of interim measures by the guarantee of the third party can be also signed by the head (deputy manager) of the same tax authority.
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