How to Get Your Seized Documents Back

The private lawyer explains where to go to get your seized originals back. Your plan of action depends on the purpose of the documents seizure: have they been seized for administrative proceedings or by law enforcement authorities as part of pre-investigation or criminal proceedings or by tax authorities? The lawyer explains, that he will guard your interests after the originals have been seized, give a sample petition to the investigator for copying and getting back the seized originals. Asking tax experts for advice will help getting back your documents quickly from the tax office. 

Law enforcement authorities often inspect our company and remove documents, including orders on core activities. How can we get back the original orders? Authorities do not accept copies, they demand the originals. Due to the top management turnover with replacements every six months, there is no way to sign the orders again. What could we do in this situation?

The reference to a “removal” in you question calls for a detailed answer. The point is that a “removal” can be part of an on-site tax audit, or of a criminal investigation. In everyday life we often mix removal of evidence with seizure, which is another similar action. Without going into the legal details, a “seizure” as opposed to “removal of evidence”, is usually carried out by law enforcement authorities during the so-called pre-investigation that takes place while a criminal case has not been opened yet (or maybe will not be opened at all), to look for evidence of a crime.

Sometimes, documents may also be removed within the scope of administrative proceedings. Therefore, to answer your question correctly, we will have to consider several possible scenarios of seizure and removal of documents. This information is likely to be useful, as companies are often inspected both by the law enforcements and by other authorities. All of them often demand the company documents for control. At the same time, the inspectors themselves might forget that the records they seize are greatly needed by the audited legal entity for its daily work. I hope, that a detailed answer to the question will be useful to the employees of any audited companies. At least, you will know what to do if your originals have been seized.

So, the inspecting officials can take your documents during seizure or removal of evidence for administrative, criminal proceedings or during tax audits. We will briefly cover each of these scenarios. Seizure of Documents in Administrative ProceedingsDocuments may be seized for administrative proceedings as per Article 27.10 of the Administrative Code of the Russian Federation. Please note Section 5.1 of the Article.

A decision issued after the consideration of an administrative offense, shall, among other things, address further actions with respect to the seized documents. If the documents do not have any signs of forgery, etc., i.e. they are not physical evidence, then they shall be returned to their legal owner. Any documents deemed to be physical evidence shall remain filed during the entire archival term of the case or forwarded to interested parties (Clause  3, Section 3, Article 29.10 of the Administrative Code of the Russian Federation). If you need your documents back, you should file a written request addressed to the head of the seizing authority or to the judge of the administrative case for release of the originals of certain document/documents. If your request to release the document has been refused, you will have to use your copy of the document and the refusal received from the responsible authority/official that has retained the seized document.

Seizure and Removal of Documents in Criminal Proceedings  

Criminal proceedings may include the following actions: seizure to check a reported crime or removal of evidence after a criminal case has been opened. For example, officers of law enforcement operational units have the right to seize any originals in scope of criminal intelligence and then only return their copies to the entity subjected to investigation. 

The law reads as follows: Extract from Article 15, Rights of Authorities Engaged in Criminal Intelligence, of the Federal Law No. 144-FZ On Criminal Intelligence dated August 12, 1995 “... For any documents, property, or materials seized in scope of public investigation, the seizing official shall issue a record in accordance with the criminal procedure of the Russian Federation. If in scope of criminal intelligence, documents and/or electronic media have been seized, the document shall be copied and the copies shall be certified by the official who has seized the documents and/or at the request of the rightful owner of the seized electronic media or the holder of the contained information, the information therein shall be copied from the seized media to other electronic media provided by the rightful owner of the seized electronic media with the information or by the holder of the contained information.

Copies of the documents and/or the electronic media containing the copies of the seized information shall be handed over to the person from whom the documents have been seized, and/or to the legal owner of the seized electronic media, or to the holder of the information contained therein (see Search in Premises of Legal Entities and Seizure of Documents, an article published in Rights and Obligations 41 No. 10’ 2016 on p. 52) and the above actions shall be documented in a record. If in scope of public criminal intelligence no copies of documents can be made and/or no information can be copied from the electronic media or the same cannot be handed over at the time of the seizure of documents and/or electronic media, the said official shall hand over certified copies of the documents and/or electronic media containing the copies of the seized information to the person from whom the documents have been seized, and/or to the rightful owner of the seized electronic media or to the holder of the contained information within five days after the seizure, and the above actions shall be documented in a record

If within five days after the documents have been seized, the certified copies of the documents have not been handed over to the person from whom the documents have been seized, the certified copies of the documents shall be send by registered mail within three days and this action shall be documented in a record indicating the posted item numbers. Copies of the documents shall be sent to the place of business of the legal entity or the residence of the individual specified in the record... As you can see, the procedure for making copies of the seized originals and sending them to the owner instead of the originals is similar to that used in scope of administrative proceedings or criminal intelligence operations by the law enforcement authorities.

However, if a seizure is made in scope of an already initiated criminal case, firstly, the investigator/inquiry officer’s decision to remove evidence will be announced and then a copy will be given to the representative of the legal entity. A peculiarity of such a removal of evidence is that Article 183 of the Code of Criminal Procedure allows for such a removal if specific items or documents relevant to the criminal case have to be seized, provided it is known exactly where they are and who holds them. Specifically, the law says that a court order is required for removal of any documents containing state or other secrets protected by the federal law, containing information on private person deposits and accounts with banks or other credit institutions. Before the removal, the investigator offers to turn over any items or documents to be seized, and only removes them by force if refused. Here we should explain the meaning of a “search” and how it differs from the removal.

As we have noted above, if the investigator knows the location of the document of interest at the time of the removal of evidence, then during the search they hope to find the document. So the documents found during the search are seized and the seizure is documented in a record. Regardless of whether the document has been seized or removed, the criminal proceedings follow this rule: if the document is deemed as evidence, the court will decide on its disposition. If the document has not been deemed as evidence, the investigator/interrogator has to return the documents to their owners before referring the case to the court. However the law does not prohibit an interested party, even when the document is deemed as evidence, to file a request to handover the document for safekeeping to the investigator or the judge.

In a criminal case, you can begin your petition to copy the documents, which can also be called a statement, with a request to return the originals, or, if not possible, provide copies of the seized documents. If you have good reasons for the release of your documents, be sure to indicate them. We have composed a sample petition to return the originals, which can be motivated by, e.g. the documents not having been deemed as physical evidence. 

Seizure of Documents by Tax Authorities 

Tax authorities are mainly governed by the Tax Code of the Russian Federation3, that, unlike the criminal procedure law, lacks clarity. Nevertheless, tax authorities are required to comply with the following rules. Documents may be removed on the basis of an order to remove evidence, documents, or property.

The order must be signed by the official of the tax authority conducting the on-site tax audit, and approved by the head/deputy head of the responsible Federal Tax Service Inspectorate (FTSI)5. The rules for the hand over of copies of the original documents seized by the tax authorities are similar to those previously described. When documents are seized, their copies are made and certified by an official of the tax authority and handed over to the person from whom the originals have been seized6. If it is not possible to make or hand over copies at the time of the seizure, the inspectorate will forward them to the person from whom the documents have been seized within 5 days after their seizure. 

All actions are documented and sometimes video-recorded. Unfortunately, the tax law does not prescribe a clear procedure for the seized documents release. However, if the documents have been retained for a long time, a written appeal to a higher tax authority or court it often helps to get back the seized originals. 3 Hereinafter the TC RF. 4 Annex No. 19 to Order of the Federal Tax Service of the Russian Federation No. ММВ-7-2/189@ dated May 08, 2015. 5 Clause 1, Article 94 TC RF. 6 Clause 8, Article 94 TC RF. See Providing Documents during Desk or Counter Tax Audits, an article published in Corporate Document Management and Control No. 2’ 2017 pp. 20 44. 

This issue is probably of importance due to the fact that the terms, deadline and the procedure itself have not been established by the tax law of the Russian Federation. 

There is only an obligation to provide certified copies of documents in case of seizure of the originals. In my practice, only once did the inspectorate request an original contract and supporting documents in order to verify the reality of the transaction (the contract was to be tacitly renewed). 

The related documents were regularly requested during tax desk audits, so we immediately asked the inspector to provide us with their certified copies. As there were quite a lot of documents, the inspector said that we can pick up copies in the inspectorate within 5 days (the deadline established by law).

After the tax audit, we asked the inspector to release the originals, and everything was returned without any additional effort on our part. Apparently, 7 has not been cancelled and is effective, see Order 15 of the Arbitration Court of Appeal No. 15AP-17489/2016 dated November 29, 2016 in Case No. A53-10501/2016. Rights and obligations 45 The inspectorate does not need superfluous “waste paper”, unless, of course, the audit has revealed any deficiencies and these documents are escalated, e.g. to court. In my opinion, if a company doubts that the originals will be returned, they can file an inquiry to the FTSI in 2 counterparts with the following wording: 

“Romashka LLC has handed over the contract/agreement/certificate/universal delivery note, etc. No. for the purposes of tax control. Pursuant to Clause  8, Article 94 of the TC RF, we are kindly asking you to provide duly certified copies of the documents within the terms set forth by the law and to release the originals within a reasonable term if there is no reason to escalate the issue to a higher authority ...” 

This is the wording of the letter we sent to the tax authority.

In fact, the seized documents are no longer needed after the necessary examinations, therefore, if the tax authority does not return them, and this is extremely rare, this may be due to negligence of the inspector or due to the hand-over procedures having been violated during the seizure by the interested authorities, making it impossible to request the document release

In general, you can request the original seized documents after six months by sending an official request, as this is the period allotted for additional examinations in scope of a tax audit. I can give you the following tips:- As part of a tax audit, any documents can be removed only after a refusal to provide the documents voluntarily, therefore, if so demanded by the tax authority, it is better to provide the requested documents voluntarily, even if the reason seems unconvincing to you, as the law of the Russian Federation does not specify any grounds for not following the demand to hand over documents.

- Be sure to monitor compliance with all the procedural requirements during the removal. Documents received in violation of the law cannot be used for tax control.

- Keep in mind that a failure by a taxpayer to submit the documents necessary for tax calculation for more than 2 months gives the tax authorities the right to estimate the tax payable to the budget on the basis of the taxpayer information that they already have

- If any interested parties request the seized documents, you can always provide copies certified by the tax authority with a copy of the record with indication and description of each seized document. 

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And, finally, a rule of thumb: if you have been given a seizure/removal record, a certified copy of the seized document and a refusal to release the document, then this “festive set” is sufficient to steer clear of any troubles as a result of seized originals. In any case, the practice of overly zealous officials and inspectors to punish companies for a lack of documents can be successfully appealed in court.