Not a tax agent for personal income tax. Who are tax agents? Personal income tax

If an organization acts as an agent of an individual (principal) for the lease of residential premises, it is not recognized as a tax agent for the calculation, withholding and transfer to personal income tax budget... This conclusion is contained in. The source of income of an individual - the lessor is the tenants (tenants) of residential premises owned by this individual.

Recall that under an agency agreement, one party (agent) must, for a fee, perform legally significant and other actions on behalf of the other party (principal) on its own behalf at the expense of the principal, or on behalf of the principal and at his expense (). For example, an agent, on behalf of the principal, can sell and purchase goods, provide services, and perform work. In this case, the ownership right to things in respect of which the agent performs the above actions remains with the principal (,).

Does a tax agent have the right to change the procedure for fulfilling his duties imposed on him by the norms of the Tax Code of the Russian Federation, on the basis of an agreement concluded between two organizations? Learn from the material "Calculation and payment of personal income tax by tax agents" in "Encyclopedias of Solutions. Taxes and Fees" Internet versions of the GARANT system. Get it for 3 days for free!

Since under the agency agreement one party acts as an intermediary and receives remuneration from the principal for the fulfillment of its obligations and, according to the terms of the agency agreement, the organization (agent) does not pay income to the individual on its own behalf, it cannot be recognized as a tax agent.

Organizations are already accustomed to the fact that they are tax agents for personal income tax on payments to individuals. But there are situations when it is not necessary to withhold tax and pay it for the taxpayer to the budget.

If you act as usual - to act as a tax agent, this can lead to negative consequences for the company. To avoid all the troubles and comply with the requirements of the law, you need to know the cases when the organization is not a tax agent for personal income tax in 2016.

Important in the article:

• when the company does not need to fulfill the duty of a tax agent for personal income tax in 2016
• when the company is not a tax agent for personal income tax in 2016
• is it necessary to withhold personal income tax when renting property from an individual in 2016

See also:

• Form of monthly reporting to the FIU in 2016
• Monthly reporting in the FIU in 2016
• Unified social tax (UST) since 2017

When a company is relieved of its duties as a personal income tax agent in 2016

Russian companies that pay income to an individual - a taxpayer are recognized as tax agents (clauses 1, 2, article 226 of the Tax Code of the Russian Federation). In what cases an organization is not a tax agent for personal income tax is also established in article 226 of the Tax Code of the Russian Federation. You need to pay personal income tax on your own:

• individuals who are registered as individual entrepreneurs, notaries, lawyers who are engaged in private practice (Article 227 of the Tax Code of the Russian Federation);
• individuals who received income from organizations that are not tax agents, including under lease agreements (Article 228 of the Tax Code of the Russian Federation). The Russian Ministry of Finance has repeatedly explained that such organizations should be understood as "foreign companies." When concluding a lease agreement for property of an individual, the company will act as a tax agent for personal income tax (letters of the Ministry of Finance of Russia dated 02.06.15 No. 03-04-06 / 31829, dated 07.03.14 No. 03-04-06 / 10173, dated 27.02.13 No. 03- 04-06 / 5601, Federal Tax Service of Russia dated 01.11.10 No. ShS-37-3 / 14584 @).
• individuals who sold their property (if it is subject to personal income tax);
• individuals who received an inheritance in the form of remuneration to the author for a work, invention.

For transactions with such taxpayers, the organization is not a tax agent for personal income tax.

Also, the organization is not a tax agent for personal income tax:

• on REPO operations, the object of which is securities (Article 214.3 of the Tax Code of the Russian Federation);
• on operations of a loan issued by securities (Art.214.4 of the Tax Code of the Russian Federation),
• on the income of participants in an investment partnership (Article 214.5 of the Tax Code of the Russian Federation);
• on earnings on shares, if they are paid not directly, but through foreign companyacting in the interests of third parties (depositary) (Article 214.6 of the Tax Code of the Russian Federation);
• for operations with securities, with financial instruments of forward transactions, with payments on securities of Russian companies (Article 226.1 of the Tax Code of the Russian Federation).

In what cases it is possible not to pay agent personal income tax on income to a non-resident in 2016

In addition to the exceptions that are spelled out in the Tax Code of the Russian Federation, the organization is not a tax agent for personal income tax in some cases that are associated with the place of performance of work (provision of services).

This is due to the fact that the object of personal income tax is income (article 209 of the Tax Code of the Russian Federation):

• residents from sources in the Russian Federation and abroad;
• non-residents from sources in the Russian Federation.

Thus, if a company sends an employee to perform duties in another country (to its foreign subdivision, for example) and he stays there for more than 183 days, that is, loses his Russian residency, then it will not have the obligation to pay personal income tax. After all, the employee has become a non-resident, the work is performed abroad, that is, the income is received from a source outside the Russian Federation (subparagraph 6, paragraph 3, article 208 of the Tax Code of the Russian Federation). This situation has been repeatedly considered by the Ministry of Finance of Russia (letters dated 22.08.13 N 03-04-05 / 34436, dated 07.06.13 No. 03-04-06 / 21240).

Similarly, taxation applies when ordering work to a foreign freelance performer who will work from home in another country. A non-resident individual performs work (provides services) outside the Russian Federation, therefore, receives income from sources outside of Russia. The employer does not need to fulfill the duties of a tax agent for personal income tax (letters of the Ministry of Finance dated 21.08.2014 No. 03-04-06 / 41919, Russia dated 11.07.13 No. 03-04-06 / 26889, Federal Tax Service of Russia dated 06.02.13 No. ED-3 -3 / 384 @).

Organizations and individual entrepreneurs who pay income to their employees or other individuals in 2019 are charged with the duties of tax agents for personal income tax (clause 1 of article 226 of the Tax Code of the Russian Federation).

Duties of a tax agent for personal income tax

If the withholding agent cannot fulfill his duties

Sometimes individuals receive income in kind from a tax agent, for example, some non-cash prizes. And it is impossible to withhold personal income tax due to the fact that the agent does not pay money to this individual.

In this case, the tax agent must and the "physicist" himself that the tax is not withheld (clause 5 of article 226 of the Tax Code of the Russian Federation).

The tax agent must report to the IFTS

The agent must submit to the IFTS information about the income of individuals and the amount of personal income tax:

• Certificate 2-NDFL (approved by Order of the Federal Tax Service dated 02.10.2018 No. ММВ-7-11 / 566 @);
• Calculation of the amounts of personal income tax in the form 6-NDFL (approved by the Order of the Federal Tax Service of Russia dated October 14, 2015 No. ММВ-7-11 / 450 @).

Recall: if the number of employees / individuals who have received income is 25 or more people, then the tax agent must submit reports to the IFTS in electronic format via telecommunication channels (clause 2 of article 230 of the Tax Code of the Russian Federation).

Liability of a tax agent

For non-fulfillment / improper fulfillment by a tax agent of his duties, he faces a fine.

Taxpayers pay taxes on their own, but in some cases they are transferred not directly, but through tax agents. A tax agent is a person who calculates taxes, withholds them from the taxpayer, and then pays withheld taxes to the budget (clause 1 of article 24 of the Tax Code of the Russian Federation).

In this material, we will consider who tax agents are, their rights and obligations.

Types of tax agents

Both organizations and individual entrepreneurs can be tax agents. The most common example for tax agents is employers who are personal income tax agents for their employees. According to the Tax Code of the Russian Federation, you can become a tax agent for three taxes:

• For personal income tax, all employers are recognized as tax agents. When paying income to their employees and other individuals, they must withhold from it income tax, then transferring it to the budget. Agents must submit to the IFTS reports on personal income tax: annual certificates 2-NDFL and quarterly form 6-NDFL.
• For VAT, tax agents are recognized as persons who themselves may not be the payers of this tax. Thus, an organization can become a VAT agent by leasing state property from authorities, or buying goods (services, work) sold in Russia from foreign persons, or when selling goods from foreign sellers as an intermediary when participating in settlements, etc. (Articles 146, 161 of the Tax Code of the Russian Federation). If the agent is a VAT payer, he can accept the tax paid in this capacity for deduction (clause 3 of article 171 of the Tax Code of the Russian Federation). When filing a VAT return, the agent must fill out section 2 on the tax payable according to the tax agent's data.
• The concept of a "tax agent" for income tax refers to organizations that pay: dividends to legal entities (Russian and foreign), interest on state or municipal securities (Article 310.1 of the Tax Code of the Russian Federation), income to foreign companies without permanent representative offices in the Russian Federation (clause 1 Article 309 of the Tax Code of the Russian Federation). The legal status of tax agents obliges them, as well as payers of income tax, to submit a declaration, and if the tax was withheld for foreign legal entities - a tax calculation.

Tax agents: their rights and obligations

A tax agent pays taxes for other persons, and not for himself, while he has exactly the same rights that a taxpayer is entitled to, unless tax legislation provides otherwise (clause 24 of the Tax Code of the Russian Federation).

The rights of tax agents are ensured in accordance with Art. 21 and 22 of the Tax Code of the Russian Federation, according to which they, in particular, can:

• receive from the IFTS information on taxes, fees, current regulations on taxation, tax reporting forms, etc., and from the Ministry of Finance of the Russian Federation and regional authorities - clarifications on emerging issues of applying tax legislation,
• enjoy tax benefits, if any,
• receive a deferral, installment plan, investment tax credit, if there are grounds for this,
• timely receive an offset / refund of overpayments for taxes (penalties, fines),
• conduct reconciliation with the tax authorities, receive reconciliation acts with the IFTS,
• provide the IFTS with explanations on the accrued / paid taxes, as well as on acts of tax audits,
• personally attend the on-site tax audit, receive copies of audit reports and decisions of tax authorities, tax requirements and notifications,
• not to comply with the unlawful requirements of the tax authorities, as well as to appeal against the acts of the Federal Tax Service Inspectorate.

The main duties assigned to tax agents of the Tax Code of the Russian Federation are correct and timely calculation, withholding and transfer of tax for the taxpayer. In addition, the tax agent is obliged (Article 24 of the Tax Code of the Russian Federation):

• notify the IFTS in writing about the amount tax debt a taxpayer, which cannot be withheld from him - this must be done within a month,
• keep records of accrued and paid incomes, taxes withheld from him for each taxpayer,
• submit to tax authorities documents allowing to control the correctness of tax calculation,
• for at least 4 years to store documents required for the accrual, withholding, transfer of taxes.

The above list is not exhaustive, since everyone who is a tax agent is also subject to other requirements stipulated by tax legislation: the duties of tax agents for VAT reporting are provided for in paragraph 5 of Art. 174 of the Tax Code of the Russian Federation, especially withholding personal income tax by agents - Art. 226 of the Tax Code of the Russian Federation, etc.

Failure to perform duties of a tax agent

If any obligations are not fulfilled by the agent, the Federal Tax Service may apply appropriate sanctions.

The liability of tax agents arises when the tax from the taxpayer is not withheld / transferred to the budget, or the withholding and transfer has been made, but only partially. The withholding agent will face a fine of 20% of the amount to be withheld and payable, as well as a penalty. The tax authorities can apply this measure only when the agent had the opportunity to withhold tax from the taxpayer (Articles 75, 123 of the Tax Code of the Russian Federation).

If the tax agent fails to submit fixed time the necessary reporting to the IFTS, he will also be fined. A tax agent faces a 5% fine, calculated from the amount unpaid under this declaration, for a non-submitted or late filed declaration, for each full and incomplete overdue month from the date set for its filing. Wherein maximum size the fine is limited to 30% of this amount, and its minimum will be 1000 rubles (Art. 119 of the Tax Code of the Russian Federation).

The calculation of 6-NDFL, submitted by the tax agent on time, will cost the agent 1000 rubles of a fine for each full and incomplete month of delay (clause 1.2 of article 126 of the Tax Code of the Russian Federation). In the absence of certificates of income of individuals in the form of 2-NDFL, the tax agent will have to pay a fine of 200 rubles for each of the not submitted certificates (clause 1 of article 126 of the Tax Code of the Russian Federation).

The submission by a tax agent of reports containing inaccurate indicators and data threatens him with a fine of 500 rubles for each such document (Article 126.1 of the Tax Code of the Russian Federation).

"Pharmacy: accounting and taxation", 2007, N 8

Whatever taxation the organization uses, it is always a tax agent for personal income tax in relation to the income paid by it to individuals: its employees, founders and other categories individuals... This obligation unites all taxpayers - both legal entities and individual entrepreneursif they make such payments. In this article, we will consider the features of the performance of these duties, and also answer the question of what punishment is provided for by law for those who ignore these requirements.

The rights and obligations of tax agents are established by Art. 24 of the Tax Code of the Russian Federation. Tax agents are legal entities and individuals who are entrusted by the Tax Code with responsibilities for calculating, withholding from a taxpayer and transferring taxes to the budgetary system of the Russian Federation. In accordance with Art. 226 of the Tax Code of the Russian Federation, enterprises making payments of income to individuals are required to calculate, withhold and transfer to the budget personal income tax.

If the organization applies the general taxation regime, then the question of withholding personal income tax does not arise. If a special tax regime is used, then a similar question is often asked. The answer is the same for everyone: it is necessary to withhold personal income tax from all payments made to individuals.

According to paragraph 5 of Art. 346.11 of the Tax Code of the Russian Federation, organizations and individual entrepreneurs using the simplified taxation system are not exempt from the duties of tax agents provided for by the Tax Code.

Clause 4 of Art. 346.26 of the Tax Code of the Russian Federation, the payment of UTII by organizations provides for their exemption from the obligation to pay income tax, property tax, unified social tax and VAT. Calculation and payment of other taxes and fees not specified in this clause are carried out by taxpayers in accordance with other taxation regimes. For those who doubt, the Ministry of Finance gave clarifications in Letters dated November 13, 2006 N 03-05-01-05 / 248 and dated 12.10.2006 N 03-11-04 / 3/450: the organization is obliged to pay from income accrued to employees personal income tax. In this case, the organization performs the duties of a tax agent.

Failure to fulfill the duties of a tax agent

Tax agents, like all taxpayers, are guaranteed administrative and judicial protection of their rights and legitimate interests (clause 2 of article 24 of the Tax Code of the Russian Federation). For non-fulfillment or improper fulfillment of the duties assigned to them, tax agents are liable in accordance with the legislation of the Russian Federation. In Art. 123 of the Tax Code of the Russian Federation provides for punishment for a tax agent's failure to fulfill the obligation to withhold and (or) transfer taxes: unlawful non-transfer (incomplete transfer) of tax amounts subject to withholding and transfer by a tax agent entails a fine of 20 percent of the amount to be transferred. The Federal Tax Service devoted to this issue Letter No. 04-1-02 / 145 @ of 02.26.2007 "On the responsibility of a tax agent for failure to transfer tax within the prescribed period", which says: a tax agent who withheld personal income tax from a taxpayer, but who has not transferred the amount of such tax within the time period established by the Tax Code of the Russian Federation, is subject to liability for committing a tax offense under Art. 123 of the Tax Code of the Russian Federation, regardless of the subsequent transfer by the tax agent of such tax amounts at a later date, including during or after an on-site tax audit.

From the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 N 5 "On some issues of applying part one Of the Tax Code Russian Federation"it follows that for the specified offense, the tax agent can be held liable only if he had the opportunity to withhold the corresponding amount from the taxpayer, taking into account the fact that the withholding is carried out from the amount paid to the taxpayer money... In this case, the collection of a fine for unlawful non-transfer (incomplete transfer) of tax amounts by a tax agent is carried out regardless of whether the corresponding amount was withheld by the latter from the taxpayer.

If the tax agent does not file a declaration or other information within the specified time frame? According to paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, the failure of the taxpayer (tax agent) to submit to the tax authorities the documents and (or) other information provided for by the Tax Code of the Russian Federation and other acts of legislation on taxes and fees within the prescribed period, entails a fine of 50 rubles. for each document not submitted.

Note that the Criminal Code for tax agents provides for liability under Art. 199.1 "Failure to perform duties of a tax agent".

By general rule on the basis of paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, organizations are required to calculate, withhold and pay to the budget the amount of personal income tax in relation to income that was paid by these organizations as tax agents.

General rules for tax agents on personal income tax

By virtue of Art. 226 of the Tax Code of the Russian Federation, enterprises making payments of income to individuals are required to calculate, withhold and transfer to the budget the amount of personal income tax in accordance with Art. 224 of the Tax Code of the Russian Federation. The tax is calculated by the tax agent on an accrual basis from the beginning tax period based on the results of each month with respect to all income, offsetting the tax amount withheld in the previous months of the current tax period. If different tax rates, then the amount of personal income tax is calculated separately for each type of income accrued to the taxpayer. In this case, income received from other tax agents is not taken into account, as well as withholding tax. In accordance with paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to withhold the accrued amount of personal income tax directly from the taxpayer's income when they are actually paid out of any monetary funds paid to the taxpayer, but the withheld amount cannot exceed 50% of the payment amount. If it is impossible to withhold the calculated amount of personal income tax (more than 12 months), the tax agent is obliged to notify in writing within a month from the moment the relevant circumstances arise. tax authority at the place of their registration. A notification to the tax authority about the impossibility of withholding tax and the amount of the taxpayer's debt does not relieve the organization from the duties of a tax agent. This obligation remains until the end of the relevant tax period in which the income was paid to an individual (Letter of the Ministry of Finance of Russia dated March 19, 2007 N 03-04-06-01 / 74).

Calculated and withheld amounts Personal income tax the agent is obliged to transfer not later than the day of the actual receipt of cash at the bank or transfer wages on plastic cards. If income is received in kind, the tax is paid to the budget no later than the day following the day of actual withholding of personal income tax. The total amount of tax is paid at the place of registration of the tax agent with the tax authority. If the total amount of withheld tax payable to the budget is less than 100 rubles, it is added to the amount of tax payable to the budget in the next month, but no later than December current year... Clause 9 of Art. 226 of the Tax Code of the Russian Federation, the payment of personal income tax at the expense of tax agents is not allowed (Letter of the Ministry of Finance of Russia dated 05.06.2007 N 03-11-04 / 1/16).

Clause 2 of Art. 230 of the Tax Code of the Russian Federation stipulates that tax agents submit to the tax authority at the place of their registration information on the income of individuals of the corresponding tax period and the amounts of taxes accrued and withheld in this tax period in the form N 2-NDFL annually no later than April 1 of the year following the expired tax period.

Tax agents are obliged for four years to ensure the safety of documents necessary for calculating, withholding and transferring taxes (clause 3 of article 24 of the Tax Code of the Russian Federation).

Features of fulfilling the duties of a tax agent for personal income tax with various types of income

The organization is a tax agent for personal income tax in relation to:

• all types of charges in favor of employees provided for by labor contracts;
• payment of dividends to founders - individuals;
• payments of other income, except for wages and other payments stipulated by labor contracts.

The specifics of the payment of dividends by organizations to individuals will be considered below. Let us dwell in more detail on other incomes paid by the enterprise to its employees, except for those provided for by labor contracts. For these payments, the organization is a tax agent. We will also answer the question when it is necessary to withhold tax.

According to paragraph 28 of Art. 217 of the Tax Code of the Russian Federation are not subject to taxation Personal income taxnot exceeding 4000 rubles for the tax period, namely:

• the value of gifts received by taxpayers from organizations or individual entrepreneurs;
• the amount of material assistance provided by employers to their employees, as well as to their former employees who quit in connection with retirement due to disability or old age;
• reimbursement (payment) by employers to their employees, their spouses, parents and children, former employees (retirees), as well as to disabled people for the cost of medicines purchased by them (for them) prescribed by their attending physician. An important condition for exemption from taxation is the submission of documents confirming the actual costs of purchasing these medicines.

Enterprises often pay incomes to taxpayers in kind, which include payment (in whole or in part) for them by organizations or individual entrepreneurs of goods (works, services) or property rights, including utilities, food, recreation, training in the interests of the taxpayer, wages in kind. This form of payment of income has a number of features. So, according to paragraph 1 of Art. 211 of the Tax Code of the Russian Federation, the tax base is determined as the cost of these goods (works, services), other property, calculated on the basis of their prices, established in the manner prescribed by Art. 40 of the Tax Code of the Russian Federation. When paying wages in non-cash form, one must remember that according to Art. 131 of the Labor Code of the Russian Federation, in accordance with a collective agreement, or an employment agreement, upon a written application from an employee, remuneration can be made in other forms that do not contradict the legislation of the Russian Federation and international treaties of the Russian Federation. The share of wages paid in non-cash form cannot exceed 20 percent of the accrued monthly wages.

And if the enterprise provides for payments to employees in the form of payment for food or the provision of free meals, rest and other payments in kind, then these payments are subject to personal income tax in the prescribed manner. The position of the Ministry of Finance on this issue is unambiguous. In a Letter dated January 24, 2007 N 03-11-04 / 3/16, he answers the question: is it necessary to tax the cost of food with personal income tax? When employees of the organization receive income in kind in the form of payment for food, the organization is obliged to calculate, withhold from the taxpayer and pay to the budget the amount of personal income tax, based on the number and cost of coupons issued to each specific employee.

In practice, situations arise when a tax agent does not have the ability to withhold personal income tax when paying income in kind. If the taxpayer receives income in kind, the tax amount must be transferred to the budget no later than the day following the day of actual deduction of the personal income tax calculated in connection with such income (clause 6 of article 226 of the Tax Code of the Russian Federation). When tax audits often decisions are made to withhold from the enterprise the amount of personal income tax that has not been withheld from the taxpayer. On this issue, there was arbitration practice, which indicates that the courts are taking the side of tax agents.

The judges of the FAS Central Organ, in Resolution N A23-4696 / 05A-14-506 of 13.10.2006, invalidated the decision and demand of the tax authority in terms of payment by the tax agent within the time period specified in the demand, not withheld from the income of individuals persons of personal income tax... The arbitration court proceeded from the assumption that the tax agent did not have the opportunity to withhold tax due to the dismissal of some employees. In this regard, the amounts of tax not withheld by the tax agent from individuals or not fully withheld should be collected from the taxpayer by the tax authorities until the debt is fully paid. The duty to withhold the amount of tax payable and transfer it to the budget remains with the tax agent only in cases where he is not deprived of such an opportunity.

If the tax agent does not have the opportunity to withhold tax, the taxpayer's obligation to pay tax, by virtue of paragraph 1 of Art. 45 of the Tax Code of the Russian Federation, is considered unfulfilled, that is, it is the individual who is the debtor to the budget.

A similar position is presented in the Decree of the FAS TsO of 13.10.2006 N А23-4696 / 05А-14-506. The arbitration court emphasizes that paragraph 2 of Art. 231 of the Tax Code of the Russian Federation, to which the tax authority refers, is not applicable, since this norm provides for a judicial procedure for the collection of tax arrears at the initiative of the tax authorities.

One of the types of hidden income is the receipt of material benefits by an employee. This means:

• material benefit from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs;
• material benefits received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent with respect to the taxpayer;
• material benefits received from the purchase of securities.

Interest-free loans to employees

In practice, an accountant is often faced with such an operation as an organization issuing interest-free loans to its employees. Let's dwell on this issue in more detail.

A cash loan agreement between an organization and an employee must be drawn up in writing, regardless of the amount for which it is concluded (Article 808 of the Civil Code of the Russian Federation). The loan agreement is considered concluded from the moment the money or other things are transferred (Article 807 of the Civil Code of the Russian Federation). When providing its employees with interest-free loans, borrowers generate income in the form of material benefits due to savings on interest for the use of borrowed funds. In this case, the organization is recognized on the basis of Art. 226 of the Tax Code of the Russian Federation as a tax agent and is obliged to calculate, withhold from the taxpayer and pay the amount of personal income tax to the budget. In accordance with paragraphs. 3 p. 1 of Art. 223 of the Tax Code of the Russian Federation, the date of actual receipt of income in such a situation is determined as the day the taxpayer pays interest on the borrowed (credit) funds received, but at least once in the tax period established by Art. 216 of the Tax Code of the Russian Federation. Since the organization issues interest-free loans, the actual date of receipt of income in the form of material benefits should be considered the corresponding dates of repayment of borrowed funds.

According to paragraph 2 of Art. 212 of the Tax Code of the Russian Federation, when a taxpayer receives income in the form of material benefit from savings on interest for the use of borrowed (credit) funds received from organizations or individual entrepreneurs, the tax base is defined as the excess of the amount of interest for the use of borrowed funds, expressed in rubles, calculated on the basis of 3 / 4 of the current refinancing rate established by the Central Bank of the Russian Federation as of the date of receipt of such funds, over the amount of interest calculated based on the terms of the agreement. Consequently, when calculating the tax base in respect of personal income in the form of material benefits obtained from savings on interest for the taxpayer's use of borrowed (credit) funds, it is necessary to take into account two amounts - the amount of interest calculated on the basis of 3/4 effective on the date of receipt borrowed funds, the refinancing rate of the Bank of Russia, and the amount of interest calculated based on the terms of the agreement. In this case, there is an interest-free loan agreement. If the loan is to be repaid monthly in equal installments, then the tax base of the taxpayer is determined monthly as the amount of interest calculated on the basis of 3/4 of the Bank of Russia refinancing rate effective as of the date of receipt of borrowed funds and the remainder of the loan debt. This opinion is presented in the Letter of the Ministry of Finance of Russia dated 06/18/2007 N 03-04-06-01 / 193.

Please note: in accordance with Federal Law of 24.07.2007 N 216-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Some Other Legislative Acts of the Russian Federation", the tax base is defined as the excess of the amount of interest for the use of borrowed (credit) funds, denominated in rubles, calculated on the basis of 3/4 of the current refinancing rate established by the Central Bank of the Russian Federation as of the date of actual receipt of income by the taxpayer, over the amount of interest calculated based on the terms of the agreement. In Art. 212 of the Tax Code of the Russian Federation, the role of a tax agent has been strengthened: the determination of the tax base when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, the calculation, withholding and transfer of tax are carried out by the tax agent in the manner prescribed by this Code. These changes come into force on 01.01.2008.

According to clauses 1, 2, Art. 224 of the Tax Code of the Russian Federation, the tax rate is set at 13% in respect of income in the form of material benefits from savings on interest for the use of targeted loans (credits) by taxpayers received from credit and other organizations of the Russian Federation and actually spent by them on new construction or the acquisition of residential houses, apartments or shares (shares) in them, on the basis of documents confirming the intended use of such funds. The type of documents confirming the intended use of the loan for the purchase of an apartment depends on the form and method of payment for the purchased apartment. In the absence of such documents, income in the form of material benefits from savings on interest when the borrower receives an interest-free loan is taxed at a rate of 35%. The material benefit arising from an employee when he receives an interest-free loan is not a payment under an employment contract and, therefore, is not recognized as an object of UST taxation. A similar position is presented in the Letter of the Ministry of Finance of Russia dated 02.04.2007 N 03-04-06-01 / 101.

The refinancing rate is constantly changing, while decreasing. Of course, with long-term loans, this is a significant factor. But in accordance with the literal interpretation of paragraphs. 1 p. 2 art. 212 of the Tax Code of the Russian Federation for the purpose of calculating the base for personal income tax when receiving material benefits from savings on interest for the use of borrowed (credit) funds by the taxpayer, the amount of the refinancing rate of the Central Bank of the Russian Federation is applied, which was in effect on the date the taxpayer received the borrowed (credit) funds. The possibility of taking into account changes in the value of the refinancing rate for the purpose of calculating the named material benefit is not provided for by the norms of the Tax Code of the Russian Federation. This decision was made in the Ruling of the Constitutional Court of the Russian Federation of November 16, 2006 N 466-O.

Please note: regardless of the terms of the agreement, the organization providing the loan is a tax agent: the status of the organization as a tax agent, acquired on the basis of the Code, cannot be changed by the provisions of the loan agreement concluded between the employer and the employee (Letter of the Ministry of Finance of Russia dated 12.07.2007 N 03-04-06-01 / 226). Thus, the obligation to withhold and pay personal income tax from material benefits obtained from savings on interest on the use of borrowed funds cannot be shifted to the employee.

Accounting for loans issued is kept on account 73 "Payments with personnel for other operations", subaccount 1 "Payments for loans granted" in accordance with the Instructions for the application of the Chart of Accounts accounting financial and economic activities of organizations<1>... The debit reflects the amount of the loan provided to the employee of the organization in correspondence with account 50 or 51. For the amount of payments received from the employee-borrower, account 73/1 is credited depending on the accepted procedure for payments in correspondence with accounts 50, 51, 70.

<1> Approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n.

Example. On February 1, 2007, LLC Pharmacy N 1 paid its director an annual subscription to the fitness center worth 60,000 rubles. To formalize this operation, an interest-free loan agreement was concluded between the director and the company, an application was submitted with a request to transfer this loan as payment for a subscription, and this employee also wrote a statement to deduct 10,000 rubles from his monthly salary. to repay the loan. Salaries are paid on the 15th day of each month (final settlement).

Let's calculate the amount of material benefits received by the employee from savings on interest, and the amount of personal income tax. The refinancing rate of the Central Bank of the Russian Federation as of 02/01/2007 (at the time of obtaining a loan) is 10.5%. The personal income tax rate on income in the form of material benefits is 35%.

The tax base for personal income tax (material benefit) as of 15.02.2007 will be 194.17 rubles. (60,000 rubles x 3/4 x 10.5% / 365 x 15 days).

The amount of personal income tax is 68 rubles. (US $ 2.94 x 35%).

The calculation of personal income tax for the following months is carried out in a similar manner (data are given in the table).

Withholding of personal income tax from material benefits is made monthly from the employee's salary and transferred to the budget on the day of payment of wages.

The accounting entries are as follows:

Debit 73/1 Credit 51 - 60,000 rubles. - a loan was provided to an employee (01.02.2007).

Debit 70 Credit 73/1 - 10,000 rubles. - monthly repayment of the loan on the date of payment of wages (15.02.2007).

Debit 70 Credit 68 - 68 rubles. - monthly deduction of personal income tax from the received material benefits (15.02.2007).

Payment of dividends to individuals

According to paragraph 1 of Art. 50 of the Civil Code of the Russian Federation commercial organizations - these are legal entities that pursue profit as the main goal of their activities. In the Tax Code of the Russian Federation, dividends are understood as income from equity participation in the activities of organizations. Consequently, the participants or shareholders of that enterprise have the right to receive dividends in accordance with the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" (hereinafter referred to as Law N 208-FZ) and the Federal Law of 08.02.1998 N 14-FZ "On limited liability companies "(hereinafter referred to as Law N 14-FZ) in the event that the enterprise has profit.

In paragraph 1 of Art. 28, pp. 7 p. 2 art. 33 of Law N 14-FZ states that the distribution between the participants is the net profit. In PBU N 4/99<2>establishing the methodological foundations for the formation accounting statements in the Russian Federation, it is customary to understand net profit as the final financial results activities of the organization as of reporting date.

<2> Approved by the Order of the Ministry of Finance of Russia dated 06.07.1999 N 43n "On approval of the Accounting Regulations" Accounting statements of the organization "(PBU 4/99) (as amended by the Order of the Ministry of Finance of Russia dated 18.09.2006 N 115n).

Organizations applying the general taxation regime or in the form of UTII keep accounting in full. Those taxpayers who use the simplified taxation system in their activities, in accordance with paragraph 3 of Art. 4 of the Law of 21.11.1996 N 129-FZ "On accounting" are exempted from the obligation to maintain accounting records, except for accounting for fixed assets and intangible assets. However, organizations that have made a decision to pay dividends cannot use this exemption, since the source of payment of dividends is the company's net profit, that is, profit after taxation, which is determined according to the company's financial statements (clause 2 of article 42 of Law N 208-FZ) ... Thus, for companies that use the simplified taxation system and pay dividends, accounting is a prerequisite for determining the amount of net profit and making the corresponding payments.

If the general meeting decides to pay dividends to shareholders (participants), the organization paying dividends is recognized as a tax agent:

• for personal income tax - upon payment to individuals (clause 2 of article 214 of the Tax Code of the Russian Federation);
• for income tax - upon payment legal entities (Clause 2, Article 275 of the Tax Code of the Russian Federation).

The procedure for withholding personal income tax when paying dividends to individuals

According to paragraph 2 of Art. 214 of the Tax Code of the Russian Federation, when paying income to a taxpayer - an individual in the form of dividends, a Russian organization is recognized as a tax agent and determines the amount of tax separately for each taxpayer in relation to each payment of these incomes at the rate provided for in paragraph 4 of Art. 224 of the Tax Code of the Russian Federation, in the manner determined by Art. 275 of the Tax Code of the Russian Federation. Based on paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to withhold the accrued amount of personal income tax directly from the taxpayer's income when they are actually paid. In accordance with paragraphs. 1 p. 1 of Art. 223 of the Tax Code of the Russian Federation upon receipt of income in cash, the date of actual receipt of income is determined as the day of payment of income, including the transfer of income to the taxpayer's accounts in banks or on his behalf to the accounts of third parties.

Article 224 of the Tax Code of the Russian Federation defines the tax rates for personal income tax for individuals when receiving income in the form of dividends from equity participation in the activities of an enterprise:

• 30% for individuals who are not tax residents;
• 9% for individuals - residents.

According to Art. 207 of the Tax Code of the Russian Federation, tax residents are individuals who actually stay in the Russian Federation for at least 183 calendar days within 12 consecutive months. The period of an individual's stay in the Russian Federation is not interrupted for periods of his departure outside the Russian Federation for short-term (less than six months) treatment or training (Letter of the Ministry of Finance of Russia dated 08.06.2007 N 03-04-06-01 / 179). The specifics of determining the status of a tax resident are contained in paragraph 3 of Art. 207 of the Tax Code of the Russian Federation (for Russian military personnel and employees of state authorities and local authorities sent to work outside the Russian Federation). The status of the taxpayer is determined on the day of payment of the specified income (Letter of the Ministry of Finance of Russia dated June 28, 2007 N 03-04-06-01 / 203). Tax status an individual during the current tax period may change with an adjustment to the tax amount payable. If a resident at the end of the tax period changes his status and becomes a non-resident, personal income tax must be recalculated at a rate of 30% (Letter of the Ministry of Finance of Russia dated 19.03.2007 N 03-04-06-01 / 76).

Having determined the amount of personal income tax for each taxpayer - an individual, the tax agent is obliged to withhold the accrued amount of tax from the taxpayer's income when they are actually paid and transfer it to the budget. Features: payment of personal income tax organization as a tax agent discussed above. According to the requirements of Art. 230 of the Tax Code of the Russian Federation, information on dividends paid to individuals is subject to reflection in the form N 2-NDFL, submitted at the place of registration of the source of payment annually no later than April 1 of the year following the expired tax period.

I would especially like to emphasize that the payment of dividends is not subject to UST taxation, since they are not recognized as remuneration accrued by the company in favor of individuals - shareholders under labor contracts, the subject of which is the performance of work, the provision of services (clause 1 of Art.236 of the Tax Code of the Russian Federation) ... Accordingly, the payment of dividends when applying tax regime in the form of UTII or simplified taxation system is not subject to insurance contributions for compulsory pension insurance and contributions to compulsory social insurance from industrial accidents and occupational diseases in the FSS.

A. V. Serebryakova

Journal Expert

"Pharmacy: accounting

and taxation "