Become a tax agent. The Russian Ministry of Finance explained who is a tax agent for personal income tax, if the organization has entered into an agency agreement with an individual. Income tax agent

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 is unable to 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 has not been 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 @);
• Payment amounts of personal income tax according to the form 6-NDFL (approved by 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-performance / improper performance tax agent of his duties, he faces a fine.

There are certain rules that should be followed when paying personal income tax to a tax agent. Let's figure out what nuances such persons should know in 2019.

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Tax agents must fulfill certain responsibilities (for calculating, withholding, paying income tax).

In case of violation of the law, the company will be held liable for non-transfer of personal income tax. Therefore, it is worth considering what regulations regulate the payment of amounts by tax agents.

Highlights

What is meant by the concept of "tax agent"? Is an individual entrepreneur a tax agent for personal income tax, or is the obligation to pay tax for individuals imposed only on an LLC?

Definitions

Personal income tax is a direct federal tax that is levied on profits individuals at rates regulated by legislative acts.

Although the payers are individuals (both citizens of Russia and foreigners with income within the Russian Federation), the payment itself can be made by tax agents ().

A personal income tax agent is an intermediary between the taxpayer and the state.

It can be a legal entity, self-employed persons (notaries and lawyers who have opened a private office), representative offices of non-residents, who have an obligation to calculate and pay tax on the income of an individual on behalf of and at the expense of a citizen.

He also keeps records of the profits of employees, prepares reports, submits them to the local branch of the federal tax service and is responsible for violations of the rules described in the Tax Code.

Who is the tax agent?

They can also be:

1. Separate subdivision of a foreign company in Russia. It is worth considering one nuance - if a foreign company pays funds not through a separate unit, it cannot be a tax agent.
2. Notary.
3. Private practice lawyer.

The same persons can act as tax agents in relation to the profits of foreigners who work under a patent (Art. 226 Clauses 1 - 2, Clause 1 Art. 1, Part 1 Art. 2).

Also is the tax agent and the customer who concluded.

There are several types of income for which a company or individual entrepreneur will not act as a tax agent for an individual.

This applies to the profit that was received:

• An individual in the implementation of entrepreneurial activity. In this case, the person must be registered as an individual entrepreneur with the Tax Office.
• A citizen who makes a profit from the activities of a notary and other private practitioner.
• A person who makes a profit in accordance with, which are concluded with other individuals who do not act as a tax agent. This applies to rent.
• A person who has a profit from the sale of property that belonged to him as property, if the object belonged to such a citizen for no more than 3 years.
• A resident that makes a profit from a source located outside the Russian Federation.
• The person who received the prize.
• A person who has taxable income from which the required amounts have not been withheld by the tax agent.

Legal grounds

The concept of "tax agent" is considered in Art. 24 of the Tax Code. The rules for calculating and paying personal income tax to the budget by tax agents are stated in Art. 226 of the Tax Code Russian Federation.

Obligation of a tax agent to pay personal income tax

Upon payment Personal income tax agents should follow special rules.

How to withhold tax correctly?

Withholding of personal income tax by a tax agent occurs from all profits, except for that which is stipulated in Art. 226 p. 2 of the Tax Code.
The company withholds personal income tax from transfers to employees, but not in all cases.

For example, there are restrictions on withholding the amount of tax from the material benefit received in kind or when a person has become a non-resident (the payer status changed in the middle of the year). In such a situation, the tax will need to be recalculated at a rate of 30%.

If the employee did not have any other profit in monetary terms and filed after such events, the tax agent will not be able to withhold personal income tax at all.

The same rules are provided for when making a profit in kind by a person who is not an employee of the company (for example, in relation to buyers).

In the event that other profits are paid to an employee in cash, the tax agent may withhold the amount of arrears. But there is a limit - the amount of total income tax cannot exceed 50% wages.

The organization must inform the inspector about the listed amounts to an individual from which taxes have not been withheld. The time allotted for this is 1 month.

If the notification is not filed in a timely manner, the firm is considered the infringer and will have to be held liable in accordance with,.

Special rules should be adhered to when submitting messages about the impossible withholding of personal income tax when conducting transactions with shares.

The deadlines for providing information about the personal income tax not withheld will be determined depending on what happened earlier:

After notifying the tax authorities about the impossibility of withholding tax, the organization has the right not to fulfill such an obligation, even if such an opportunity appears later.

If the notification is submitted in time, no penalty or fines will be charged. The fact that personal income tax is not withheld, it is necessary to notify the payer to whom the funds were paid (Article 226, clause 5 of the Tax Code).

Emerging obligations

Tax agents face the following obligations:

1. Unmistakably and on time to conduct personal income tax calculations, withhold the required amounts from the taxpayer's profit and deposit the calculated amounts into the state structures of the Russian Federation.
2. Submit a written notice within one month if it is impossible to withhold income tax.
3. Keep records of funds transferred to payers, deductions and amounts of income tax paid separately for each individual.
4. Submit documentation to the regional branch of the tax inspection, which will be necessary for conducting inspections by authorized bodies.

In the event that such obligations are not fulfilled, the tax agent will bear responsibility in accordance with the legislative acts of the Russian Federation.

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Tax payment procedure

The rules for the payment of personal income tax have undergone some changes. Let's list the main points that tax agents should consider:

1. It is necessary to calculate the tax upon the actual receipt of profit (paragraph 3 of article 226 of the Tax Code) - when funds are paid to an individual in money (paragraph 4 of the same article).
2. The terms of the transfer are stipulated in paragraph 6 of this article. An exception is the transfer of tax on payments for temporary incapacity for work.
3. The amount of personal income tax is calculated on an accrual basis for each type of profit. It is not necessary to take into account the funds received from another tax agent.
4. Payment is made at the place of registration of the company (to the regional tax authority).
5. If the amount of income tax does not exceed 100 rubles, it can be added to the funds that will be paid in the next month, but in the same tax period.
6. Transferring tax at the expense of a tax agent is not allowed. Contracts that provide for the assumption of obligations to bear this type of costs by the company are considered null and void.
7. It is necessary to transfer tax on all amounts that are paid to individuals by tax agents, except for those described in, 227, 228 of the Tax Code.
8. If the organization, at the request of employees, makes transfers from their earnings to third parties, payment of personal income tax not implemented ().
9. An individual who does not have the status of an individual entrepreneur cannot be a tax agent when making payments to hired personnel. In such a situation, settlements and payments are made by the citizens themselves, who received such income (in accordance with).

Calculation of amounts by tax agents is carried out in relation to the entire profit of the employee. The exception is income, which, according to the law, must be calculated independently (for example, when selling an apartment, etc.).

In this case, you should rely on. The calculation of the amount of income tax payable is made by the tax agent on an accrual basis from the beginning of the year at the end of each month.

In this case, the withheld funds are offset earlier. When determining the amount of personal income tax, take into account and tax deductionsthat are spelled out in.

The tax period is a calendar year. The basis is.

Submitted reporting on personal income tax

Employers submit the following documents:

The very form of keeping records is not submitted by tax agents, unless it is requested by the inspector of the territorial authority.

If there is an obligation to pay tax on their own, an individual and an individual entrepreneur submit 3-NDFL, but no later than April 30 of the next year after the end of the tax period.

Questions that arise

There are a number of issues worth talking about. Knowing some points will help you avoid trouble in the future.

How long does it take to transfer?

A tax agent pays personal income tax for an individual in the following terms:

When rented from an individual

If a company rents real estate from individuals, it acts as a tax agent. This means that there is an obligation to withhold and pay personal income tax from the listed rental payments.

Shifting such responsibilities on landlords is not allowed. This is stated in.

Clause 1 of Art. 226 also contains information that a firm that enters into transactions in which individuals make a profit must calculate, withhold and transfer the income tax to government agencies.

It follows from this that when transferring rent for the premises provided, the company is a tax agent.

Employee data can be provided by an enterprise that has a separate subdivision according to its location. Separate enterprise - at the place where it was registered.

If the document is drawn up by the head company for the employees of the subdivision, after the TIN, the checkpoint of the separate subdivision is displayed (use the separating sign "/").

Provided that the employee worked in several departments, you need to prepare several statements of income of an individual.

For the period when an individual worked in the parent company, it is worth reflecting the KPP and OKATO of this company, for the period of work in the unit - the KPP and OKATO of this unit.

Penalty for non-payment of personal income tax by a tax agent

If the withholding agent does not fulfill his obligations, he will have to bear the liability, regulated.

This article provides for a penalty for late payment of personal income tax. The amount of payment is 20% of the amount of income tax.

If the amount of personal income tax was withheld by the tax agent, but not paid to the state treasury, then you will have to pay a penalty. Penalty is charged for each day overdue ().

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.

Leading Consultant of the Consulting Department of AF "AVUAR" LLC Fomina MB

A tax agent is an organization or individual entrepreneurwhich Tax code RF obliges to calculate and transfer to the budget tax for another organization or individual ( clause 1 of Art. 24 Tax Code of the Russian Federation).

Tax agents are actually intermediaries between taxpayers and the state (regulatory authorities).

At the same time, tax is not required for persons who are not taxpayers. For example, this applies to cases when an organization or an individual entrepreneur purchases goods (works, services) from a foreign individual who is not an individual entrepreneur, or sells seized property of individuals by a court decision (Letters of the Ministry of Finance of Russia No. 03-07-14 / 81, dated 05.03.2010 No. 03-07-08 / 62) .

Organizations and individual entrepreneurs can be recognized as tax agents for the payment of three taxes:
- personal income tax;
- value added tax;
- income tax.

An organization can act as a tax agent for any of the three taxes, regardless of whether it applies the general taxation system or special ones. mode, for example USN or UTII (clause 1 of Art. 24, paragraph 5 of Art. 346.11, paragraph 4 of Art. 346.26 Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 05.10.2011 No. 03-07-14 / 96) .

Tax agents for personal income tax are all organizations and individual entrepreneurs when paying salaries or other incomes to individuals, both in cash and in non-cash form, including under civil law contracts for the performance of work, the provision of services, property lease contracts, copyright contracts. The tax agent must calculate and withhold from the income of individuals persons of personal income tax and transfer the tax to the budget.

Tax agents for personal income tax include:

Russian organizations;
- individual entrepreneurs;
- notaries in private practice;
- lawyers who have established lawyers' offices;
- separate subdivisions foreign organizations in the Russian Federation (Letters of the Ministry of Finance of Russia dated December 1, 2014 No. 03-04-06 / 61184, dated August 4, 2014 No. 03-04-06/38350, dated June 10, 2014 No. 03-04-06 / 28072) .

Tax agent for VAT an organization can become, if it performs operations:

Purchases goods (works, services), the place of sale of which is the territory of the Russian Federation, from foreign persons who are not registered with the tax authorities of the Russian Federation (p. 1, 2, Art. 161 of the Tax Code) ;

Leases, buys (receives) federal property, property of the constituent entities of the Russian Federation and (or) municipal property from state authorities and administration and (or) local self-government bodies (clause 3 of Art. 161 of the Tax Code) ;

Sells confiscated property, property sold by a court decision, ownerless valuables, treasures and purchased valuables, as well as valuables that have been inherited by the state. The exception is the sale of property (property rights) of debtors declared bankrupt (p. 4, art. 161 of the Tax Code) ;

Acts as an intermediary for the sale of goods (works, services, property rights) of foreign persons who are not registered with the tax authorities of the Russian Federation, with participation in settlements (clause 5 of Art. 161 of the Tax Code) ;

Is the owner of the vessel on the 46th calendar day after the transition to the organization of ownership (as to the customer for the construction of the vessel), if before this date the vessel is not registered in the Russian International Register of Ships (clause 6 of Art. 161 of the Tax Code) ;

From January 1, 2018, purchases from VAT payers (except those who have received exemption) raw animal skins, scrap and waste of ferrous (non-ferrous) metals, secondary aluminum and its alloys (clause 8 of Art. 161 of the Tax Code) .

Fulfill the duties income tax agent the organization is obliged:

1) when a foreign organization is paid income from sources in the Russian Federation, not related to its permanent establishment in the Russian Federation (p. 4, art. 286 of the Tax Code) ;
2) when a Russian organization pays dividends to taxpayers - Russian organizations (clause 3 of Art. 275, paragraph 5 of Art. 286 of the Tax Code) .

Duties of tax agents.

According to art. 24 of the Tax Code RF tax agents are required to:

1) correctly and timely calculate, withhold from moneypaid to taxpayers and transfer taxes to the budget system of the Russian Federation to the corresponding accounts of the Federal Treasury;
2) notify the tax authority at the place of their registration in writing about the impossibility of withholding tax and the amount of taxpayer's debt within one month from the day when the tax agent became aware of such circumstances;
3) keep records of income accrued and paid to taxpayers, taxes calculated, withheld and transferred to the budget system of the Russian Federation, including for each taxpayer;
4) submit to the tax authority at the place of its registration the documents necessary to exercise control over the correctness of the calculation, withholding and transfer of taxes;
5) ensure the safety of documents required for the calculation, withholding and transfer of taxes for four years.

Tax agents also have other obligations provided for Tax Code RF.

The main duty of tax agents is correct and timely calculation, withholding from funds paid to taxpayers, and transferring taxes to budgets (nn. 1 p. 3 art. 24 RF Tax Code) .

To fulfill this obligation, the withholding agent must be able to withhold tax. To do this, he needs to have at his disposal the taxpayer's money.

If in a given tax period the tax agent did not make cash payments to the taxpayer and / or it is impossible to withhold tax (for example, when paying income in kind), instead of withholding tax, the tax agent has another obligation - to inform the tax authority about the impossibility of withholding tax from payments to the taxpayer and indicate the amount owed by the latter to the budget (nn. 2 p. 3 art. 24 Tax Code). This conclusion is confirmed inResolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 57 (p. 1), Plenum of the Supreme Court of the Russian Federation No. 41, Plenum of the Supreme Arbitration Court of the Russian Federation No. 9 of June 11, 1999 (p. 10).

By general rule it is necessary to notify the tax authority within a month from the day when the tax agent became aware of the impossibility of withholding tax. And if it is impossible to withhold personal income tax - no later than March 1 of the year following the year in which the individual was paid income from which no tax was withheld (clause 5 of Art. 226 of the Tax Code of the Russian Federation, Letter of the Federal Tax Service dated 08.22.2014 No. SA-4-7 / 16692) .

If a tax agent submits a message to the tax authority about the impossibility of withholding personal income tax, he, in addition, must notify the taxpayer in writing about the impossibility of withholding tax, about the amount of income from which tax has not been withheld, and the amount of unused tax within the specified time frame. Notification of the taxpayer about unused tax amounts is for informational purposes and does not affect the procedure and consequences of taxation for individuals in such cases (Letter of the Ministry of Finance of Russia dated March 24, 2017 No. 03-04-06 / 17225) .

Tax agents for personal income tax are required to submit to the tax authority at the place of their registration (clause 2 of Art. 230 of the Tax Code of the Russian Federation, Letters of the Federal Tax Service dated 01.08.2016 No. BS-4-11 / 13984 @, Ministry of Finance dated 02.11.2015 No. 03-04-06 / 63268) :

A document containing information about the income of individuals for the past tax period and the amounts of personal income tax, calculated, withheld and transferred to the budget for this tax period for each individual. This document is submitted annually no later than April 1 of the yearfollowing the expired tax period, according to the 2-NDFL form approved by the Order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11 / 485 @;

Calculation of the amounts of personal income tax calculated and withheld by the tax agent. Such calculations must be submitted for the first quarter, six months, nine months not later than the last day of the month following the corresponding period, for the year - not later than April 1 of the yearfollowing the expired tax period. The calculation is presented according to the 6-NDFL form approved by the Order of the Federal Tax Service of Russia dated October 14, 2015 No. ММВ-7-11 / 450 @.

These documents are submitted by tax agents in electronic form via telecommunication channels. With the number of individuals who received income in the tax period, up to 25 people, tax agents can submit these documents in hard copy (clause 2 of Art. 230 of the Tax Code) .

Calculation of amounts and payment of tax in accordance with clause 2 of Art. 226 of the Tax Code of the Russian Federation produced against all income of the taxpayer, the source of which is the withholding agent, after offsetting previously withheld tax amounts.

Tax agents for VAT are obliged to submit to the IFTS at the place of their registration tax return with filled out sect. 2 and 9 (clauses 36, 47 of the Procedure for filling out a VAT return (approved by Order of the Federal Tax Service of Russia dated October 29, 2014 No.ММВ-7-3 / 558 @) even if they are not value added tax payers.

Note! Section 2 of the VAT return is filled in for each person for which the organization (or individual entrepreneur) acts as a tax agent.

In payment orders for the payment of taxes by tax agents, in field 101, a value is indicated that reflects the payment of tax by the tax agent - "02" (Appendix No. 5 to the Order of the Ministry of Finance of Russia dated 12.11.2013 No. 107n) .

Income tax agent must submit to the IFTS at the place of its location:

- income tax return when paying dividends to a Russian organization (approvedBy order of the Federal Tax Service of Russia dated 19.10.2016 No. ММВ-7-3 / 572 @) .

- tax calculation when paying dividends or other income to a foreign organization (approvedBy order of the Federal Tax Service of Russia dated 02.03.2016 No. ММВ-7-3 / 115 @) The calculation is submitted at the same time as the income tax declaration (p. 4, art. 310 Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 10.10.2016 No. 03-08-05 / 58776) ... According to clause 3 of Art. 289 of the Tax Code of the Russian Federation taxpayers (tax agents) submit tax returns ( tax calculations) no later than 28 calendar days from the end of the relevant reporting period... Taxpayers calculating the amount of monthly advance payments based on the actual profits received, submit tax returns within the timeframe established for the payment of advance payments.

When paying dividends to a Russian organization, the formula defined in clause 5 of Art. 275 Tax Code.

The tax calculation formula is as follows: H \u003d K x SN x (D1 - D2)

Where: N - the amount of tax to be withheld from the recipient of dividends;
K is the ratio of the amount of dividends to be distributed in favor of the recipient of dividends to the total amount of dividends to be distributed;
SN - tax rate (0%, 13% - for Russian organizations);
D1 - the total amount of dividends to be distributed in favor of all recipients of dividends;
D2 is the total amount of dividends received by the organization distributing dividends itself in the current and previous reporting (tax) periods, if these amounts were not previously included in the calculation of taxable income. This amount cannot include dividends that are taxed at a rate of 0% in accordance with nn. 1 p. 3 art. 284 of the Tax Code of the Russian Federation.

If the Russian organization paying dividends is not obliged to withhold tax, it must submit the values \u200b\u200bof indicators "D1" and "D2" to the tax agent (clause 5 of Art. 275 Tax Code) ... The values \u200b\u200bof these indicators should be presented in the manner prescribed clauses 5.1, 5.2 of Art. 275 Tax Code.

Regulations clause 5 of Art. 275 Tax Code it is not clearly defined which reporting (tax) period should be considered current. At the same time, from the norms of this paragraph, it can be concluded that the current period is the period in which the decision on the distribution of profits is made. A similar opinion was expressed by the Federal Tax Service of Russia in Letter No.ED-4-3 / 10475 dated 10.06.2013 when considering the application of the provisions of the previous version art. 275 Tax Code for the purpose of calculating personal income tax when paying dividends to individuals.

When paying income in the form of dividends to a foreign organization, the tax base is determined by the tax agent as the amount of dividends paid to it (clause 6 of Art. 275 Tax Code) .

From 1 January 2016, the amount of income tax is determined based on clause 5 of Art. 275 Tax Codeif the recipients of income paid to a foreign organization that acts in the interests of third parties are individuals and (or) organizations recognized as tax residents of the Russian Federation (clause 6 of Art. 275 Tax Code) .

To calculate the amount of withholding tax in general, you must use the following formula (clause 6 of Art. 275 Tax Code) :

SNI \u003d IA (D) x SN, where SNI is the amount of tax to be withheld from the income of a foreign organization;
IA (D) - the amount of dividends paid to a foreign organization;
СН - tax rate,%.

As a general rule, when paying dividends to a foreign organization, a tax rate of 15% is applied (nn. 3 p. 3 art. 284 of the Tax Code of the Russian Federation) .

If an international agreement on the avoidance of double taxation has been concluded between the Russian Federation and the state of which the foreign organization is a resident, then by virtue of art. 7 Tax Code the rules and norms of an international treaty apply.

Some international agreements provide for the taxation of dividends in the Russian Federation at tax rates below 15%. In this case, when calculating the tax, the tax agent has the right to use the rate established by the agreement. If the terms of an international agreement provide that this type of income is not taxed in the Russian Federation, then, accordingly, the tax agent does not have the obligation to withhold tax.

Note! To apply the provisions of an international treaty as a general rule, a tax agent must obtain confirmation from a foreign organization that this organization has a permanent location in the state with which the Russian Federation has an international treaty. (clause 1 of Art. 312 Tax Code) .

Calculation of the VAT base by a tax agent.

The tax agent calculates the tax base for VAT in accordance with art. 161 of the Tax Code of the Russian Federation.

In order to fulfill the duty of a tax agent when buying goods (works, services) from a foreigner, it is necessary to withhold VAT from the funds that are due to the foreign seller and transfer the tax to the budget, therefore, initially it is necessary to determine the amount of VAT that is subject to withholding from the foreigner's income ... To do this, you need to determine the tax base and multiply it by tax rate.

The tax base is determined as of the date of transfer of payment to a foreigner for goods (work, services), including preliminary, which follows from a system analysis nn. 1 p. 3 art. 24, p. 1, 2, Art. 161, paragraph 4 of Art. 174 of the Tax Code... The Ministry of Finance of Russia came to a similar conclusion in relation to services purchased by a tax agent from a foreign entity that is not registered with the Russian tax authorities. (Letter dated 21.01.2015 N 03-07-08/1467) .

The tax base is calculated as the amount of income of a foreigner from the sale of goods (works, services), including tax (clause 1 of Art. 161 of the Tax Code) .

At the same time, the tax base increases by the amounts associated with payment for goods (works, services) sold (Letter of the Ministry of Finance of Russia dated 09.04.2010 N 03-03-06/2/70) .

Note! The tax agent must calculate VAT in excess of the contract price and pay the tax amount at his own expense, if foreign company does not include VAT in the cost of goods (works, services).

According to clause 1 of Art. 161 of the Tax Code when selling goods (works, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (works, services), including tax ...

By virtue of clause 2 of Art. 161 of the Tax Code the specified tax base is determined by tax agents, who are obliged to calculate and withhold from the taxpayer the corresponding amount of tax, as well as pay it to the budget.

Of Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.04.2012 No. 15483/11 it follows that if the amount of VAT is not provided for in the agreement with the foreign person, the tax agent must calculate tax in excess of the contract price and pay it to the budget.

The Ministry of Finance of Russia also explains that if a foreign company does not allocate VAT in the cost of goods (works, services), then the amount of tax is paid at the expense of the tax agent (Letter of the Ministry of Finance of Russia dated April 13, 2016 No. 03-07-08 / 21231, Letter of the Ministry of Finance of Russia dated December 18, 2015 No. 03-07-08 / 4486, Letter of the Ministry of Finance of Russia dated November 12, 2014 No. 03-07-08 / 57178, Letter of the Ministry of Finance Russia dated 05.06.2013 No. 03-03-06 / 2/20797, Letter of the Ministry of Finance of Russia dated 08.09.2011 No. 03-07-08 / 276, Letter of the Ministry of Finance of Russia dated 13.11.2008 No. 03-07-08 / 254) .

When renting state (municipal) property, the tax base is determined according to par. 1 p. 3 art. 161 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated 05/18/2012 N 03-07-11 / 146 at the date of the transfer to the lessor of the rent (in whole or in part) as the amount of the rent, including tax.

If services for the lease of state (municipal) property are provided under a contract of gratuitous use, then the tax agent determines the tax base at the time of the provision of services (Letter of the Ministry of Finance of Russia dated 20.10.2009 N 03-03-06 / 4/91) ;
- separately for each leased property;

Based on the amount of rent including tax.

If the property is leased to you free of charge, then the tax base must be determined based on market prices, including tax. Such explanations are given by the Ministry of Finance of Russia in Letter dated 02.04.2009 N 03-07-11 / 100.

An organization performing the function of a taxation agent is a VAT agent must draw up an invoice in the cases specified in art. 161 of the Tax Code... The most common situations are:

Note! When purchasing or shipping goods (works, services) that are not subject to VAT art. 149 Tax Code, invoices can be omitted (nn. 1 p. 3 art. 169 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 03.19.2014 No. 03-07-09 / 11822) .

According to clause 5 of the Tax Code of the Russian Federation when selling goods (works, services) by taxpayers exempted in accordance with article 145 of the Tax Code from the fulfillment of the duties of a taxpayer, invoices are drawn up without allocating the corresponding amounts of tax. In this case, a corresponding inscription is made on the indicated documents or a stamp "Without tax (VAT)" is put.

Tax agent - an intermediary of a foreigner who is not registered in the Russian Federation, advance, shipping, as well as correction invoices draws up in the same way as a regular seller (Letters of the Ministry of Finance dated 11.11.2015 No. 03-07-08 / 64897, Federal Tax Service dated 03.04.2009 No. ShS-22-3 / 257 @)) .

The tax agent draws up an invoice according to Letter of the Federal Tax Service dated 12.08.2009 No.ShS-22-3 / 634 @)) .

The rest of the lines and columns of the invoice are filled in the same way as for the shipment of goods (works, services). The invoice is signed by the head of the organization - tax agent and its chief accountant or other persons authorized by a power of attorney or order of the head.

Tax agent rights.

Tax agents have the same rights as taxpayers, unless otherwise provided The Tax Code of the Russian Federation (Clause 2 of Article 24 of the Tax Code of the Russian Federation).

The provision and protection of the rights of tax agents are carried out in accordance with article 22 of the Tax Code.

Note! Tax agents can deduct VAT paid as a tax agent, but only in cases where they are VAT payers and only in the following situations (clause 3 of Art. 171 of the Tax Code of the Russian Federation, clause 23 of the Rules for maintaining a purchase book) :

When paying for the lease of state or municipal property from the authorities;

When paying for the acquired state or municipal property from the authorities;

When paying for goods (works, services) purchased from a foreign person who is not registered in the Russian Federation. In other cases, "agency" VAT cannot be deducted.

Tax agents applying the exemption or not being VAT payers (for example, in connection with the application of the simplified tax system) are generally not entitled to a deduction.

You can deduct the agency VAT in the quarter when goods (works, services) are accepted for accounting and tax paid to the budget. The deduction cannot be carried over to later periods (Letters of the Ministry of Finance dated November 17, 2016 No. 03-07-08 / 67622, \u200b\u200bdated January 26, 2015 No. 03-07-11 / 2136) .

In the purchase book for the quarter, when both conditions for deduction are met, it is necessary to register the invoice drawn up by the tax agent when calculating the "agency" VAT.

Information about "agency" invoices registered in the purchase book shall be reflected in section. 8 of the VAT declaration, and the amount of deduction for them - in line 180 of section 3 of the VAT declaration (p. 38.17 of the Procedure for filling out the declaration) .

Failure to fulfill the duties of a tax agent.

For failure to fulfill the duties of a tax agent, an organization (individual entrepreneur) may be held liable in the form of a fine in accordance with the procedure art. Art. 119, 119.1, 123, 126 of the Tax Code of the Russian Federation... And in case of non-payment (late payment) of tax on the amount of arrears, penalties are charged (p. 1, 2, 7 Art. 75 Tax Code) .

According to article 119.1 of the Tax Code of the Russian Federation non-compliance with the order of presentation tax return (calculation) in electronic form in the cases provided for The Tax Code of the Russian Federation, entails the recovery of a fine in the amount of 200 rubles.

Failure to submit the taxpayer (taxpayer, payer of insurance premiums, tax agent) documents and (or) other information provided for by the tax authorities in due time The Tax Code of the Russian Federation and other acts of legislation on taxes and fees, entails the recovery of a fine in the amount of 200 rubles for each document not submitted.

If the tax agent does not withhold or transfer (not fully withhold or transfer) the tax to deadlines The IFTS may impose penalties in the amount of 20% of the amount to be withheld or transferred (art. 123 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 11.11.2016 No. 03-02-08 / 66026) .

For untimely withholding and (or) transfer of tax to a tax agent, penalties will be charged (pp. 1-7 Art. 75 of the Tax Code of the Russian Federation, clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court dated July 30, 2013 No. 57) .

Note!

The duties of a tax agent cannot be passed on to the taxpayer.

According to clause 1 of Art. 45 of the Tax Code of the Russian Federation payment of tax by another person may be made for the taxpayer. Payment of tax by another (third) person for a tax agent is not provided The Tax Code of the Russian Federation.

The obligation of a tax agent to calculate and pay tax amounts is established article 226 of the Tax Code... It is impossible to transfer this duty to the taxpayer, the RF Ministry of Finance believes. (letter dated 15.07.2010 No. 03−04−06 / 3−148) .

The finance department refers to clause 5 of Art. 3 TC RF, according to which no one can be charged with the obligation to pay taxes and fees, as well as other fees and payments not provided for Tax Code RF, or installed in a different order than that defined By the Tax Code of the Russian Federation.

In the event that a Russian organization that pays a rent to an individual for the premises rented from him is recognized as a tax agent in respect of such income of an individual and, accordingly, must fulfill the obligations of calculating, withholding and transferring to the budget personal income tax. Consequently, the supplementary agreement to the lease agreement, in which the taxpayer is liable to pay tax, will be deemed null and void.

Tax agents are also participants in tax legal relations, along with taxpayers and tax authorities... Provisions on legal status, the rights and obligations of a tax agent can be found both in the general part of the RF Tax Code (general rules) and in the special (2) part of the RF Tax Code.

Tax agent - a person who, in accordance with the Tax Code of the Russian Federation, is entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budgetary system of the Russian Federation (Clause 1 of Article 24 of the Tax Code of the Russian Federation).

Tax agents are required to:

Calculate correctly and in a timely manner, withhold from the funds paid to taxpayers, and transfer taxes to the budgetary system of Russia;

To notify the tax authority at the place of their registration in writing about the impossibility of withholding tax and the amount of the taxpayer's debt within one month from the day when the tax agent became aware of such circumstances;

Keep records of accrued and paid income to taxpayers, calculated, withheld and transferred to the budgetary system of the Russian Federation;

Submit to the tax authority at the place of its registration the documents necessary to control the correctness of the calculation, withholding and transfer of taxes;

Other obligations stipulated by the Tax Code of the Russian Federation (clause 3 of Article 24 of the Tax Code of the Russian Federation)

The fulfillment of duties of a tax agent is supported by the existence of a separate tax liability for tax agents (Article 123 of the Tax Code of the Russian Federation).

We have considered the general points, now let's look at when business entities act as tax agents.

Part 2 of the Tax Code of the Russian Federation

VAT. 1) Tax agents are organizations and individual entrepreneurs (registered with the tax authorities on the territory of Russia) who purchase goods (works, services) in the territory of the Russian Federation from foreign persons who are not registered with the tax authorities on the territory of Russia. They are obliged to calculate, withhold from the taxpayer and pay the corresponding amount of tax to the budget, regardless of whether they fulfill the duties of a taxpayer related to the calculation and payment of VAT (clauses 1, 2, article 161 of the Tax Code of the Russian Federation).

2) If the state authorities and administrations of the Russian Federation, local authorities lease federal property, property of the constituent entities of the Russian Federation and municipal property, then the tenants of the said property are recognized as tax agents. They must fulfill the same responsibilities. In this case, the tax base for VAT in this case is calculated as the amount of rent, including tax. The same obligations arise for the buyers of state (state) property (clause 3 of article 161 of the Tax Code of the Russian Federation). True, it should be noted that individuals who are not individual entrepreneurs are not tax agents.

3) If organizations or individual entrepreneurs buy goods (works, services) from foreign persons (not registered with tax authorities on the territory of Russia) on the basis of intermediary relations, such organizations or individual entrepreneurs are also tax agents (clause 5 of article 161 of the Tax Code of the Russian Federation );

4) Other cases, for example, the sale of confiscated property, ownerless property, treasures, etc. Tax agents are organizations, individual entrepreneurs and bodies authorized to sell such property (clause 4 of article 161 of the Tax Code of the Russian Federation).

Personal income tax

Russian organizations, individual entrepreneurs, notaries, lawyers, separate divisions of foreign organizations in the case of income payments to individuals (clause 1 of article 226 of the Tax Code of the Russian Federation). What incomes should be reported by taxpayers themselves (the list of taxpayers), and not tax agents, is stated in paragraph 2 of Art. 226 of the Tax Code of the Russian Federation. Tax agents are required to withhold the accrued tax amount directly from the taxpayer's income when it is actually paid. If we are talking about income in kind (not cash), then the tax is withheld at the expense of any cash income paid in cash (clause 4 of article 226 of the Tax Code of the Russian Federation).

If it is not possible to withhold tax, the tax agent is obliged, no later than March 1 of the year following the expired tax period, to notify the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding tax, the amount of income from which tax has not been withheld, and the amount unretained tax (clause 5 of article 226 of the Tax Code of the Russian Federation).

Tax agents are required to transfer the amounts of the calculated and withheld tax no later than the day following the day the income is paid to the taxpayer (clause 6 of article 226 of the Tax Code of the Russian Federation). When income is received in the form of labor remuneration, the date of actual receipt by the taxpayer of such income is the last day of the month for which income was accrued to him for fulfilled labor duties in accordance with the labor agreement (contract) (clause 2 of article 223 of the Tax Code of the Russian Federation). Payment of tax at the expense of a tax agent is not allowed (clause 9 of article 226 of the Tax Code of the Russian Federation).

Tax agents have an obligation to report to the tax authorities on the amounts of income calculated and paid taxes. We are talking about the obligation to submit certificates 2-NDFL, calculations of calculated (paid) taxes in the form of 6-NDFL. See Order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11 / 485 @ "On approval of the form of information on the income of an individual, the procedure for filling in and format of its submission in electronic form" (2-NDFL) and Order of the Federal Tax Service of Russia dated 14.10.2015 No. ММВ-7-11 / 450 @ "On approval of the form for calculating the amounts of tax on personal income calculated and withheld by the tax agent (form 6-NDFL), the procedure for filling and submitting it."

Corporate income tax

1. If a Russian organization pays dividends, it is recognized as a tax agent (Article 275 of the Tax Code of the Russian Federation). The tax agent determines the tax base for each payment of income for each taxpayer (clause 4 of article 275 of the Tax Code of the Russian Federation). See in more detail the duties of tax agents in the payment of dividends in Art. 275 of the Tax Code of the Russian Federation.

2. In the event that income is paid by a Russian organization (a subdivision of a foreign organization) to a foreign organization that is not related to the activities of a permanent establishment of such a foreign organization in Russia, the Russian organization (a subdivision of the IO) is recognized as a tax agent (clause 4 of article 275 of the Tax Code of the Russian Federation).

3. In the event that a Russian organization pays dividends, income on state and municipal securities (if the organization is a source of income), it is also a tax agent (clause 5 of article 275 of the RF Tax Code). Pay attention to the caveats that are in the norm.

4. In addition, when an organization is a tax agent when paying income to a foreign organization that does not have a permanent establishment on the territory of the Russian Federation, see Art. 309-310 of the Tax Code of the Russian Federation.

We see that a tax agent is a separate subject of tax legal relations, which partially fulfills tax obligations for the taxpayer, which is due to the complexities of calculating and paying tax in certain situations.