Tax code of the Russian Federation. Punishment for violation of clause 9 of article 226 of the Tax Code of the Russian Federation Tax Code article 226 with comments

Official text:

Article 226. Peculiarities of Tax Calculation by Tax Agents. Procedure and terms for payment of tax by tax agents

1. Russian organizations, individual entrepreneurs, notaries in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in Russian Federation from which or as a result of relations with which the taxpayer received the income specified in paragraph 2 of this article, are obliged to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Article 224 of this Code, taking into account the specifics provided for by this article. Lawyers' income tax is calculated, withheld and paid by bar associations, law firms and legal consultations.

The persons specified in the first paragraph of this clause are referred to in this chapter as tax agents.

2. Calculation of amounts and payment of tax in accordance with this article shall be carried out in respect of all income of a taxpayer, the source of which is a tax agent, with the exception of income in respect of which the calculation and payment of tax are carried out in accordance with Articles 214.3, 214.4, 214.5, 214.6, 226.1 , 227, 227.1 and 228 of this Code, offsetting previously withheld tax amounts.

3. The calculation of tax amounts is carried out by tax agents on an accrual basis from the beginning of the tax period at the end of each month in relation to all incomes subject to the tax rate established by paragraph 1 of Article 224 of this Code, accrued to the taxpayer for the given period, offsetting withheld in previous months the current tax period of the tax amount.

The amount of tax in relation to income, in respect of which other tax rates are applied, is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer.

The calculation of the tax amount is made without taking into account the income received by the taxpayer from other tax agents, and the tax amounts withheld by other tax agents.

4. Tax agents are obliged to withhold the accrued tax amount directly from the taxpayer's income when they are actually paid.

Withholding from the taxpayer the accrued tax amount is made by the tax agent at the expense of any monetary funds paid by the tax agent to the taxpayer, upon actual payment of the said monetary funds to the taxpayer or on his behalf to third parties. In this case, the withheld tax amount cannot exceed 50 percent of the payment amount.

The provisions of this clause do not apply to tax agents that are credit institutions in relation to withholding and paying tax on income received by clients of these credit institutions (except for clients who are employees of these credit institutions) in the form of material benefits determined in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 212 of this Code.

5. If it is impossible to withhold the calculated amount of tax from the taxpayer, the tax agent is obliged, no later than one month from the end of the tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding tax and the amount of tax.

The form of notification of the impossibility of withholding tax and the amount of tax and the procedure for submitting it to the tax authority shall be approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

6. Tax agents are obliged to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash from the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the taxpayer's accounts or, on his behalf, to the accounts of third parties in banks.

In other cases, tax agents transfer the amounts of the calculated and withheld tax no later than the day following the day the taxpayer actually received income - for income paid in cash, as well as the day following the day that the calculated amount of tax was actually withheld - for income received a taxpayer in kind or in the form of material benefits.

7. The aggregate amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of which he is recognized as a source of income, is paid to the budget at the place of registration of the tax agent with the tax authority.

Tax agents - Russian organizations those specified in paragraph 1 of this article, which have separate subdivisions, are obliged to transfer the calculated and withheld tax amounts to the budget both at the place of their location and at the location of each of their separate subdivisions.

The amount of tax payable to the budget at the location of a separate subdivision is determined based on the amount of taxable income accrued and paid to employees of these separate subdivisions.

8. Withheld by a tax agent from the income of individuals in respect of which he is recognized as a source of income, the aggregate amount of tax exceeding 100 rubles is transferred to the budget in accordance with the procedure established by this article. If the total amount of withheld tax to be paid to the budget is less than 100 rubles, it is added to the amount of tax to be transferred to the budget in the next month, but no later than December of the current year.

9. Payment of tax at the expense of tax agents is not allowed. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, in accordance with which tax agents paying income assume obligations to bear the costs associated with the payment of tax for individuals.

Legal commentary:

In accordance with the provisions of civil law, an agent is a person executing orders for any other person or body. The tax agent executes the instructions of the tax authorities for the calculation, withholding and transfer to the budget of taxes due from other persons - taxpayers. Tax agents are, as a rule, persons who pay income to other persons. In accordance with the provisions of this article, such persons are: Russian organizations, individual entrepreneurs and permanent missions of foreign organizations in the Russian Federation that pay income to the taxpayer and are obliged to calculate, withhold from the taxpayer and pay to the budget the amount of tax provided by law.

Tax agents calculate and pay to the budget tax on all income of the taxpayer, with the exception of the income of individual entrepreneurs, the amount of remuneration received by individuals from other individuals (who are not tax agents), from the sale of their own property, as well as the amount of winnings paid by the organizers of lotteries, sweepstakes, other risk-based games, and income received by individuals - tax residents from sources located outside the Russian Federation.

The calculated amounts of tax are withheld by tax agents directly from the taxpayer's income when they are actually paid, and also if there is an order from the taxpayer to pay (or transfer) the money due to him to third parties. The withholding agent must ensure that the tax withholding does not exceed 50% of the amount paid. If it is impossible to withhold tax, when the tax agent is deliberately aware that the period during which he is obliged to calculate and withhold tax will exceed 12 months, within one month from the moment the specified circumstances arise, the tax agent is obliged to notify the tax authority, as well as the amount the taxpayer's debt in writing.

Due to the fact that tax relations are imperative, a person does not have the right to refuse to perform the duties of a tax agent. Acting as a tax agent, a person is to some extent a representative of the tax authorities. Therefore, legal disputes between a tax agent acting within its competence and a person receiving income about the agent's right to withhold and the amount of calculated and withheld taxes are excluded. Tax agents are not entitled to pay taxes at their own expense.

The Tax Code prohibits the inclusion of tax clauses in concluded agreements (transactions), according to which tax agents paying income assume obligations to bear the costs associated with the payment of tax for individuals. The tax authorities have the right to control the fulfillment by tax agents of their obligations to calculate, withhold and transfer taxes to the budget (

Article 226. Peculiarities of Tax Calculation by Tax Agents. Procedure and terms for payment of tax by tax agents

1. Russian organizations, individual entrepreneurs, notaries in private practice, lawyers who have established law offices, as well as separate subdivisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received the income specified in paragraph 2 of this article, are obliged calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Article 224 of this Code, taking into account the specifics provided for by this Article. Lawyers' income tax is calculated, withheld and paid by bar associations, law firms and legal consultations.

The persons specified in the first paragraph of this clause are referred to in this chapter as tax agents.

Unless otherwise provided by clause 2 of Article 226.1 of this Code, Russian organizations and individual entrepreneurs who make payments under contracts for the sale (exchange) of securities concluded by them with taxpayers are also recognized as tax agents.

The tax agents specified in this clause, when determining the tax base for operations with securities on the basis of a taxpayer's application, take into account the actually incurred and documented expenses that are associated with the acquisition and storage of the relevant securities and which the taxpayer incurred without the participation of a tax agent.

As documentary evidence of the relevant expenses, an individual must submit the originals or duly certified copies of the documents on the basis of which the individual made the relevant expenses, brokerage reports, documents confirming the fact of transferring the rights to the taxpayer to the relevant securities, the fact and amount of payment of the corresponding expenses ... If an individual submits originals of documents, the tax agent is obliged to make certified copies of such documents and keep them for five years.

2. Calculation of amounts and payment of tax in accordance with this article shall be carried out in respect of all income of a taxpayer, the source of which is a tax agent, offsetting previously withheld tax amounts (except for income in respect of which the calculation of tax amounts is carried out in accordance with Article 214.7 of this Code ), and in the cases and in the procedure provided for in Article 227.1 of this Code, also taking into account the reduction by the amount of fixed advance payments paid by the taxpayer.

The specifics of calculating and (or) paying tax on certain types of income are established by 214.4, 214.5, 214.6, 214.7, 226.1, and this Code.

3. Calculation of tax amounts is carried out by tax agents on the date of actual receipt of income, determined in accordance with Article 223 of this Code, on an accrual basis from the beginning of the tax period in relation to all income (except for income from equity participation in an organization, as well as income in respect of which the calculation of tax amounts is carried out in accordance with Article 214.7 of this Code), in respect of which the tax rate established by paragraph 1 of Article 224 of this Code is applied, assessed to the taxpayer for this period, taking into account the tax amount withheld in the previous months of the current tax period.

The amount of tax in relation to income with respect to which other tax rates are applied, as well as to income from equity participation in an organization, is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer.

The calculation of the tax amount is made without taking into account the income received by the taxpayer from other tax agents, and the tax amounts withheld by other tax agents.

4. Tax agents are obliged to withhold the accrued tax amount directly from the taxpayer's income when they are actually paid, taking into account the specifics established by this paragraph.

When the taxpayer pays income in kind or the taxpayer receives income in the form of material benefit, the tax agent shall withhold the calculated amount of tax at the expense of any income paid by the tax agent to the taxpayer in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of income paid in cash.

5. If it is impossible to withhold the calculated amount of tax from the taxpayer during the tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority at the place of registration of the impossibility in writing. tax, on the amount of income from which tax is not withheld, and the amount of tax not withheld.

The form of a notification on the impossibility of withholding tax, on the amount of income from which tax has not been withheld, and the amount of unrequited tax, as well as the procedure for submitting it to the tax authority, shall be approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

Tax agents are Russian organizations with separate subdivisions, organizations classified as the largest taxpayers, individual entrepreneurs who are registered with the tax authority at the place of business in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) the patent taxation system, report on the amounts of income from which tax has not been withheld and the amount of unrequited tax in a manner similar to the procedure provided for in paragraph 2 of Article 230 of this Code.

6. Tax agents are obliged to transfer the amounts of the calculated and withheld tax not later than the day following the day the income is paid to the taxpayer.

When paying a taxpayer income in the form of benefits for temporary incapacity for work (including benefits for caring for a sick child) and in the form of payment for vacations, tax agents are required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made.

paragraph 1 of this article, which have separate subdivisions, are obliged to transfer the calculated and withheld tax amounts to the budget both at the place of their location and at the location of each of their separate subdivisions.

The amount of tax payable to the budget at the location of a separate subdivision of an organization is determined based on the amount of income subject to taxation accrued and paid to employees of this separate subdivision, as well as on the basis of the amounts of income accrued and paid under civil agreements concluded with by individuals by a separate subdivision (authorized persons of a separate subdivision) on behalf of such an organization.

Tax agents are individual entrepreneurs who are registered with the tax authority at the place of business in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) the patent taxation system, from the income of employees are required to transfer the calculated and withholding tax amounts to the budget at the place of its registration in connection with the implementation of such activities.

Tax agents - Russian organizations specified in paragraph 1 of this article, which have several separate subdivisions on the territory of one municipality, have the right to transfer the calculated and withheld tax amounts to the budget at the location of one of such separate subdivisions or at the location of the organization, if the said organization and its separate subdivisions are located on the territory of one municipality, chosen by the tax agent independently, taking into account the procedure established

The aggregate amount of tax calculated and withheld by the tax agent from the indicated amounts is transferred to the budget at the place of registration of the tax agent with the tax authorities.

9. Payment of tax at the expense of tax agents is not allowed, except for cases of additional tax assessment (collection) based on the results of a tax audit in accordance with this Code in the event of unlawful non-withholding (incomplete withholding) of tax by a tax agent. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, in accordance with which tax agents paying income assume obligations to bear the costs associated with the payment of tax for individuals.

Commentary to Federal Law No. 113-FZ dated 02.05.2015.

On May 2, 2015, on the Official Internet portal of legal information (http://www.pravo.gov.ru), Federal Law No. 113-FZ dated 02.05.2015 “On Amendments to Parts One and Two of the Tax Code of the Russian Federation in order to increasing the responsibility of tax agents for non-compliance with the requirements of the legislation on taxes and fees ”(hereinafter - Federal Law No. 113-FZ). Named normative act in general, from 01.01.2016, it significantly changes the rules for calculating personal income tax by all tax agents, introduces new tax obligations for them, some of which we will consider in more detail.

Date of receipt of income

Article 223 of the Tax Code of the Russian Federation, which determines the date of actual receipt of income by taxpayers, is modified and supplemented by the following new provisions:

1. Clause 1 of Art. 223 of the Tax Code of the Russian Federation is supplemented by paragraphs. 4, according to which the date of actual receipt of income is determined as the day of offsetting counter-homogeneous claims. Currently, the Tax Code of the Russian Federation does not contain any specifics that determine the date of receipt of income from operations of offsetting claims.

According to the general rule established by Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated in full or in part by offsetting a similar counterclaim, the term of which has come or the term of which is not specified or is determined by the moment of demand. In the cases provided for by law, it is allowed to set off a counter-homogeneous claim, the deadline for which has not come. A statement by one party is sufficient for offset.

According to the Ministry of Finance (Letter dated 11.08.2014 No. 03-04-05 / 39938), the date of receipt of income in the event of termination of obligations by offsetting counter-homogeneous claims is the day of termination of the corresponding obligations, determined by the date of the due date for the fulfillment of the obligation, the due date of which came later ( this position is set out in clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 "Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-homogeneous claims"). In this case, the value expression of such income must be considered the amount by which the offset of similar counter claims is made.

2. Clause 1 of Art. 223 of the Tax Code of the Russian Federation will be supplemented with subparagraphs. 5, according to which the date of actual receipt of income is determined as the day of writing off the bad debt from the balance sheet of the organization in accordance with the established procedure. This rule, formulated in the Tax Code of the Russian Federation for the first time, in fact, reflects the law enforcement approaches that have developed in tax practice. So, in the Decision of the Supreme Court of the Russian Federation dated February 27, 2015 No. 305-KG14-534, it was concluded that individuals have an economic benefit in the form of the amount of debt forgiven by the society and, accordingly, income subject to personal income tax from the moment of cancellation (forgiveness) debt society with expired statute of limitations.

The Ministry of Finance adheres to a similar point of view, for example, in the Letter dated March 13, 2015 No. 03-04-05 / 13615 in relation to the debt forgiven by the bank to the borrower, it is noted that the debtor is relieved of the obligation to repay the amount of debt and it becomes possible to dispose of the funds in his own way. discretion, that is, he has an economic benefit and, accordingly, income in the amount of the debt forgiven by the bank under the loan agreement, which is subject to personal income tax in accordance with the generally established procedure with the application of a tax rate of 13% (see also the Letter of the Ministry of Finance of the Russian Federation dated 24.09.2009 No. 03-03-06 / 1/610).

3. An important innovation is pp. 6 p. 1 of Art. 223 of the Tax Code of the Russian Federation, establishing that the date of actual receipt of income is determined as the last day of the month in which it is approved after the employee returns from a business trip. To date, the Tax Code of the Russian Federation does not establish what is the date of receipt of income when an employee returns from a business trip.

For example, earlier the Ministry of Finance indicated that the date of receipt of income in the form of per diems paid in excess of the norms is the date of their payment (Letter of the Ministry of Finance of the Russian Federation of June 25, 2010 No. 03-04-06 / 6-135). At present, according to the official authorities, the funds issued to the employee on account of being sent on a business trip cannot be considered as an economic benefit and, accordingly, income until the employee returns from a business trip and approval by the head of the organization of the advance report submitted by the employee in accordance with the established procedure. The determination of taxable income is made after the approval of the employee's advance report, and the calculation and withholding of tax amounts are made in accordance with paragraph 4 of Art. 226 of the Tax Code of the Russian Federation as of the next date of payment of income to the employee in cash (Letter of the Ministry of Finance of the Russian Federation dated January 14, 2013 No. 03-04-06 / 4-5). Foreign currency amounts converted into rubles at the exchange rate of the Central Bank of the Russian Federation in effect on the date of approval of the advance report(letters of the Ministry of Finance of the Russian Federation dated March 27, 2015 No. 03-04-07 / 17023, dated December 29, 2014 No. 03-04-06 / 68074, Federal Tax Service of the Russian Federation No. BS-4-11 / 5737 on April 7, 2015).

An employee of the institution was sent on a business trip abroad. The advance payment for travel expenses in the form of daily subsistence allowance was received by him on April 21, 2015 (at the rate of $ 100 - for each day of being on a business trip). Date of departure on a business trip - 04/30/2015, return - 05/15/2015. The advance report was submitted on 05/20/2015, approved by the head of the organization - 06/01/2015.

The date of receipt of income in the form of excess daily allowances (from an amount exceeding 2,500 rubles per day - paragraph 12, clause 3, article 217 of the Tax Code of the Russian Federation) will be June 1st 2015 (as of the specified date, the foreign currency per diem should be recalculated at the rate of the Central Bank of the Russian Federation - clause 5 of article 210 of the Tax Code of the Russian Federation). If the conditions of the example are translated into 2016, then the date of receipt of income will be 30 June 2016 year. It is on this date that the excess daily allowance should be included in the taxpayer's income.

At the same time, the question arises: on what date should the amount of foreign currency per diem be converted into rubles- directly on the date of approval of the expense report or on the last day of the month in which the approval of the expense report occurred?

Based on clause 5 of Art. 210 of the Tax Code of the Russian Federation, the income of a taxpayer denominated (nominated) in foreign currency is recalculated into rubles at the official exchange rate of the Central Bank of the Russian Federation established on the date of actual receipt of the said income. That is, the rate is used as of 06/30/2016. At the same time, if the rate of the Central Bank of the Russian Federation as of 06/30/2016 is higher than the rate in effect on the date of approval of the advance report, this may lead to negative consequences for the taxpayer, since it will entail an increase in the tax base for personal income tax.

In our opinion, the use of exchange rates valid after the end of business trip settlements seems to be incorrect and economically unjustified. It seems that it would be advisable to use the exchange rate of the Central Bank of the Russian Federation in effect on the date of approval of the expense report, that is, on the date of completion of the business trip settlements. However, this requires a special clause in the Tax Code of the Russian Federation.

Procedure for calculating tax

Federal Law No. 113-FZ adjusts the rules for calculating tax amounts on an accrual basis from the beginning of the tax period, offsetting previously withheld amounts set forth in paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, in relation to income taxed at the rate established by clause 1 of Art. 224 of the Tax Code of the Russian Federation in the amount of 13%: it is determined that the tax will be calculated on the date of actual receipt of income(currently - based on the results of each month).

Features of withholding tax

As before, tax agents will be required to withhold the accrued tax amount directly from the taxpayer's income when it is actually paid. However, a clarification has been made that is of a technical nature - when the taxpayer pays income in kind or the taxpayer receives income in the form of material benefit, the calculated tax amount is withheld by the tax agent at the expense of any income paid by the tax agent to the taxpayer in cash, and the withholding tax amount cannot exceed 50% of the amount of income paid in cash (clause 4 of article 226 of the Tax Code of the Russian Federation).

The order of actions of a tax agent if it is impossible to withhold tax is set out in clause 5 of Art. 226 of the Tax Code of the Russian Federation, which was also amended.

1. According to the position of the official authorities, at present after the end of the tax period, in which the tax agent paid income to an individual, and a written message by the tax agent to the taxpayer and the tax authority at the place of registration about the impossibility of withholding personal income tax, the obligation to pay tax is imposed on the individual, and the tax agent's obligation to withhold the corresponding amounts of tax is terminated (Letter of the Ministry of Finance of the Russian Federation from 17.11.2010 No. 03-04-08 / 8-258 brought to the attention of the tax authorities by the Letter of the Federal Tax Service of the Russian Federation dated 02.12.2010 No. ShS-37-3 / [email protected]).

Therefore, the impossibility of withholding means the impossibility of withholding tax during the tax period in which the income was paid. However, the said provision of the RF Tax Code does not directly envisage.

Since 2016, the obligation of a tax agent to inform the taxpayer and the tax authority in writing about the impossibility of withholding tax, if such an obligation occurs, has been clarified during the tax period.

The above formulation of the legislator seems to be not entirely successful for those tax agents who will complete the final calculations of payments in favor of taxpayers not in December of the current tax period, but, for example, in January of the next year. In particular, this concerns wages for December 2016, which will be paid in January 2017 and, accordingly, withholding tax will also be made in January 2017. In the situation under consideration, the tax agent is unable to calculate personal income tax in 2016. The question remains open: should the tax be withheld upon the final payment made in 2017, or should be strictly guided by the rules of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation and inform interested parties about the impossibility of withholding tax?

Note that in connection with the new edition of clause 5 of Art. 226 of the Tax Code of the Russian Federation, since 2016, the legislator has optimized the norms of Art. 231 of the Tax Code of the Russian Federation and canceled paragraph 2 of the named article, which determines that tax amounts not withheld from individuals or withheld by tax agents are not fully collected by them from individuals until these persons fully pay off tax arrears in the manner prescribed by Art. 45 of the Tax Code of the Russian Federation.

2. The terms for reporting information about the impossibility of withholding personal income tax are changing: at present - no later than January 31 of the year following the reporting; since 2016 - no later than March 1 of the year following the expired tax period.

It is necessary to pay attention to the following.

2.1. The general rule of nos. 2 p. 3 art. 24 of the Tax Code of the Russian Federation, according to which tax agents are required to report in writing to the tax authority at the place of their registration about the impossibility of withholding tax and the amount of taxpayer's debt within one month from the date when the withholding agent becomes aware of such circumstances.

Meanwhile, taking into account the priority of the action of special rules over general ones (Definitions of the Constitutional Court of the Russian Federation dated February 17, 2015 No. 262-О, dated May 21, 1999 No. 83-О), in the situation under consideration, special norms of clause 5 of Art. 226 of the Tax Code of the Russian Federation, regulating the duties of tax agents for the purpose of calculating personal income tax.

2.2. Law enforcers may have a question: how long should the relevant information be submitted based on the results of 2015 - before February 1 or before March 2, 2016?

As a general rule, it establishes rights and obligations based on facts (events and actions) that took place after the entry into force of this legal act (see, in particular, Letter of the Ministry of Finance of the Russian Federation of 10.07.2007 No. 03-04-08-01 / 36, brought up for management and use in the work of tax authorities by the Letter of the Federal Tax Service of the Russian Federation dated 20.07.2007 No. ХС-6-04 / [email protected]).

Since the amendments under consideration come into force on 01.01.2016 (clause 3 of article 4 of Federal Law No. 113-FZ), and the corresponding obligation of tax agents will also arise in 2016, the deadline for submitting the relevant information at the end of 2015 is no later than March 1, 2016.

2.3. Also, a technical clarification has been made that the relevant information is provided to interested parties not only about the amount of unpaid tax, but also about the amount of income from which tax has not been withheld. At the same time, the new version of clause 5 of Art. 226 of the Tax Code of the Russian Federation (in contrast to the new version of clause 2 of article 230 of the Tax Code of the Russian Federation) does not contain a specific requirement for the submission of the relevant information exclusively in electronic form (including depending on the number of persons who received income from a tax agent).

A similar rule that the Tax Code of the Russian Federation does not contain provisions obliging a tax agent to submit information about the impossibility of withholding personal income tax and the amount of tax to the tax authority at the place of its registration in electronic form is still valid - Letter of the Federal Tax Service of the Russian Federation of 18.04.2011 No. KE -4-3 / 6132.

Tax transfer procedure

Currently, clause 6 of Art. 226 of the Tax Code of the Russian Federation defines various terms for transferring the withheld amounts of personal income tax to the budget: if funds for payment of income are received from a bank or income is transferred from the bank account of a tax agent, then the tax must be transferred on the same day. In other cases, the transfer is made no later than the day following the day the taxpayer actually received the income.

Starting next year, a general rule for transferring tax to the budget will be introduced: no later than the day following the day the income is paid to the taxpayer.

However, a completely new deadline has been introduced for the transfer of tax when the taxpayer is paid income in the form of temporary disability benefits and in the form of vacation pay - no later than the last day of the month in which such payments were made(at present, in relation to the specified income, the day of withholding and transfer of tax is set as day of their payment- letters of the Ministry of Finance of the Russian Federation dated 10.10.2007 No. 03-04-06-01 / 349, dated 26.01.2015 No. 03-04-06 / 2187, Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07.02.2012 No. 11709/11).

Calculation, withholding and transfer of personal income tax to the budget should be made on 03.06.2015.

The calculation and deduction of personal income tax must be made on 03.06.2016. The transfer of the tax to the budget must be made no later than June 30, 2016.

The procedure for paying tax to the budget

Since 2016, the rule of clause 7 of Art. 226 of the Tax Code of the Russian Federation that the amounts of personal income tax are paid to the budget at the place of registration(additionally added - "place of residence") of the tax agent in the tax authority.

However, one cannot fail to note a number of fundamentally important innovations.

First, for institutions with separate subdivisions, new order transfer of tax to the budget at the location of such units: the amount of personal income tax will be determined based on the amount of income subject to taxation, accrued and paid individuals under contracts concluded with these separate divisions.

Currently, the amount of tax to be transferred to the budget at the location of the units is determined based on the income paid employees such units.

By virtue of paragraph 2 of Art. 11 of the Tax Code of the Russian Federation and Art. 20 and 56 of the Labor Code of the Russian Federation, an employee is understood as an individual who works in an organization under an employment contract.

Accordingly, at present, the Tax Code of the Russian Federation does not have a norm defining the specifics of paying tax amounts withheld from payments under civil contracts made by organizations that have separate subdivisions.

At the same time, this did not prevent the Ministry of Finance from declaring that the above procedure applies regardless of whether work is performed under labor contracts or contracts of a civil nature (letters dated 06.08.2012 No. 03-04-06 / 3-216, dated 29.03 .2010 No. 03-04-06 / 53).

Since 2016, the named conflict in the Tax Code of the Russian Federation has been eliminated and for all types of contracts, the calculated and withheld personal income tax must be listed at the location of the separate divisions.

Reporting of tax agents

Since 2016, clause 2 of Art. 230 of the Tax Code of the Russian Federation, two types of tax reporting by a tax agent are established:

1) a document containing information about the income of individuals for the past tax period, including information on the amounts of personal income tax calculated, withheld and transferred to the budget for each individual who is submitted to the tax authority (at present - this is a certificate in the form 2-NDFL, submitted in the same period);

2) calculation of personal income tax amounts calculated and withheld by a tax agent(it is assumed that this will be a new form of 6-NDFL, not having a personalized character).

The new clause 1 of Art. 80 of the Tax Code of the Russian Federation, which entered into force from 02.06.2015: calculation of the amounts of personal income tax calculated and withheld by a tax agent is a document containing information summarized by the tax agent in general on all individuals who received income from a tax agent (a separate subdivision of a tax agent), on the amounts of income accrued and paid to him, tax deductions provided , about the calculated and withheld tax amounts, as well as other data serving as the basis for calculating the tax (note that there is no mention of the listed tax amounts).

Such a calculation is presented:

for the first quarter - no later than April 30;
for half a year - no later than July 31;
in nine months - no later than November 30;
in a year - no later than April 1 of the year following the reporting year.

As a general rule, tax agents, as now, will submit these reports to the tax authority at the place of their registration. However, for the first time, the Tax Code of the Russian Federation specifies that tax agents are Russian organizations with separate subdivisions, submit such reports to the tax authority at the location of such separate divisions.

It should be noted that this provision reflects the current position of the official authorities that the alleged obligation of tax agents to submit information on income "corresponds" to the obligation to pay the aggregate amount of tax at the place of registration of the tax agent with the tax authority. And an organization that is a tax agent and has information on the income of individuals (in relation to employees of a separate subdivision) submits at the place of registration of the organization to the IFTS at the location of the separate subdivision - letters of the Ministry of Finance of the Russian Federation dated 06.02.2013 No. 03-04-06 / 8- 35, dated 07.08.2012 No. 03-04-06 / 3-222 and dated 05.04.2012 No. 03-04-06 / 8-103, Federal Tax Service of the Russian Federation dated 30.05.2012 No. ED-4-3 / 8816, dated 28.01. 2015 No. BS-4-11 / 1208.

In order to meet the requirements of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, tax agents with separate subdivisions, organizations - the largest taxpayers, individual entrepreneurs using UTII and PSN, submit to the tax authorities information on the amount of income from which tax has not been withheld and the amount of unused tax.

Reporting is submitted by tax agents for TCS. At the same time, it was determined that with the number of individuals who received income in the tax period, up to 25 people(i.e. no more than 24 people) tax agents may represent the specified information and the calculation of tax amounts on paper. Forms, formats and procedure for submitting reports must be approved by the Federal Tax Service.

In this case, the following questions may arise:

What form should be used to provide information on the income of individuals at the end of 2015 (form 2-NDFL)?
if at the end of 2015 the number of individuals who received income from a tax agent is more than 10 people, but less than 25 people (for example, 15 people), is it possible to submit information on paper?
Is it necessary at the end of 2015 to submit a calculation of the amounts of personal income tax calculated and withheld by the tax agent (form 6-NDFL)?

In our opinion, since the new provisions of paragraph 2 of Art. 230 of the Tax Code of the Russian Federation apply to legal relations arising from 01/01/2016, and establish rights and obligations based on facts (events and actions) that took place after the entry into force of Federal Law No. 113-FZ, then:

information on the income of individuals at the end of 2015 (form 2-NDFL) should be submitted according to new form(if it is developed by the Federal Tax Service);
if the number of individuals who received income from a tax agent in 2015 is less than 25, then the information is submitted on paper;
no later than April 1, 2016, tax agents will be required to send a 6-NDFL reporting form for 2015 to the tax authority.

Suspension of operations on accounts of tax agents with banks

From 01.01.2016 Art. 76 of the Tax Code of the Russian Federation is supplemented by clause 3.2, according to which the decision of the tax authority to suspend the operations of the tax agent on his bank accounts and transfers of his electronic money is also taken by the head (deputy head) of the tax authority in case the specified tax agent fails to provide the calculation of the amounts of personal income tax (f. 6-NDFL), calculated and withheld by the tax agent, to the tax authority within 10 days after the expiry of the deadline for submitting such a calculation.

From the analysis of this rather complicated phrase (taking into account clause 6 of article 6.1 of the Tax Code of the Russian Federation), it follows that the corresponding decision is made if:

the tax agent did not submit the calculation within 10 working days after the due date;
the period during which the relevant decision can be made is not specified. It can be assumed that earlier than the above 10-day period, the tax authority is not entitled to make a decision to suspend transactions on accounts.

Moreover, from the new para. 2 clause 3.2 of Art. 76 of the Tax Code of the Russian Federation, it follows that if a tax agent submits an appropriate calculation, the decision must be canceled no later than one business day following the day the calculation was submitted.

Liability of tax agents

Since 2016, the liability of tax agents has been tightened. In particular, Art. 126 of the Tax Code of the Russian Federation is supplemented by clause 1.2, according to which the failure of the tax agent to submit the calculation of the amounts of personal income tax (form 6-NDFL) to the tax authority at the place of registration by the tax agent within the prescribed period will result in a fine from the tax agent in the amount of 1,000 rubles. for each full or incomplete month from the date set for its submission.

Also, a new Art. 126.1 of the Tax Code of the Russian Federation, which establishes that the submission by a tax agent to the tax authority of the documents provided for by the Tax Code of the Russian Federation, containing false information, entails the recovery of a fine in the amount of 500 rubles. for each submitted document containing false information.

At the same time, the Tax Code of the Russian Federation does not contain a definition of the term “inaccurate information”. In particular, with regard to the certificate on the 2-NDFL form, we believe that this may be an incorrect reflection of any details that require filling (for example, TIN and KPP of a tax agent, OKTMO, full name of the taxpayer, sum indicators, etc.) .).

In addition, it should be noted that by virtue of paragraph 1 of Art. 88 of the Tax Code of the Russian Federation, since 2016, the tax authorities have the obligation to conduct a cameral tax audit of the calculation of the amounts of personal income tax (form 6-personal income tax).

This raises the question: is it possible to apply the sanctions established by Art. 123 of the Tax Code of the Russian Federation? In our opinion, it should be borne in mind that by virtue of Art. 123 of the Tax Code of the Russian Federation, a fine is collected from a tax agent for unlawful failure to withhold and (or) non-transfer (incomplete withholding and (or) transfer), within the time period established by the Tax Code of the Russian Federation, the amounts of tax subject to withholding from the taxpayer (clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 57 "On some issues arising in the application by arbitration courts of part one of the Tax Code of the Russian Federation").

Since the calculation of the amounts of NLFL (f. 6-NDFL) by definition, set out in Art. 80 of the Tax Code of the Russian Federation, contains information about the calculated and withheld amounts of tax, the tax authority, as a general rule, has the right to bring the tax agent to responsibility established by Art. 123 of the Tax Code of the Russian Federation, if the amount of tax withheld is less than the amount of the calculated tax (provided that the relevant data refer to the same time period). Under such conditions, one should not exclude the possibility of bringing a tax agent to responsibility under this article of the Tax Code of the Russian Federation in the event that the amount of personal income tax withheld for the reporting period is higher than the amounts transferred by the agent to the budget, information about which is available in the KRSB of the tax authority.

In conclusion, let's say a few words about the new provisions of Art. 52 of the Tax Code of the Russian Federation: from 02.06.2015 clause 4 comes into effect, according to which in the event that the total amount of taxes calculated by the tax authority is less than 100 rubles., a tax notification is not sent to the taxpayer, except for the case of sending a tax notification in a calendar year, after which the tax authority loses the possibility of sending a tax notification (paragraph 3, clause 2, article 52 of the Tax Code of the Russian Federation - when the notification is sent in that year, after the end which expires a three-year period for which taxes can be charged.

Thus, citizens - payers of property tax of individuals, transport tax, land tax, paying these taxes on the basis of a tax notification of the tax authority (Article 52, paragraph 4 of Article 57, paragraph 6 of Article 58, paragraph 3 of Article 363, clause 4 of article 397, clause 2 of article 409 of the Tax Code of the Russian Federation), has the right not to pay the relevant taxes in the absence of a tax notification from the tax authority.

See also nos. 5 p. 7 art. 272 of the Tax Code of the Russian Federation in relation to corporate income tax.

Since the tax agent did not fulfill the obligations stipulated for him by the provisions of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, in our opinion, individuals were obliged to independently calculate personal income tax from the corresponding income and submit tax returns for 2016 in the form of 3-personal income tax to the tax authority at the place of their registration no later than 05/02/2017.

Rationale: If it is impossible to withhold the calculated amount of personal income tax from the taxpayer during the tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority at the place of registration of the impossibility of withholding tax in writing, on the amount of income from which tax has not been withheld, and the amount of unreserved tax (clause 5 of article 226 of the Tax Code of the Russian Federation).

According to paragraphs. 4 p. 1, p. 3, art. 228 of the Tax Code of the Russian Federation, the obligation to declare income is imposed on individuals who have received income from which tax was not withheld by tax agents, with the exception of income, information about which is provided by tax agents in the manner prescribed by paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, - based on the amount of such income.

These individuals independently calculate the amount of tax payable to the relevant budget in the manner prescribed by Art. 225 of the Tax Code of the Russian Federation, and are obliged to submit to the tax authority at the place of their registration the corresponding tax return (clauses 2, 3, Article 228 of the Tax Code of the Russian Federation). Clause 8 of Art. 4 of the Federal Law of December 29, 2015 N 396-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation" established, in particular, that the provisions of paragraphs. 4 clause 1 and clause 6 of Art. 228 of the Tax Code of the Russian Federation apply to legal relations for the calculation and payment of personal income tax for tax periods starting from 2016.

Accordingly, an individual is not obliged to submit a declaration on income received in 2016, upon receipt of which tax was not withheld by tax agents, information about which was provided by the tax agent no later than 01.03.2017 in the manner prescribed by paragraph 5 of Art. 226 of the Tax Code of the Russian Federation (see Letter of the Federal Tax Service of Russia dated 10.04.2017 N BS-4-11 / [email protected]). Such individuals pay tax no later than 01.12.2017 on the basis of a tax notification sent by the tax authority about the payment of tax (clause 6 of article 228 of the Tax Code of the Russian Federation). The tax notification form was approved by Order of the Federal Tax Service of Russia dated 07.09.2016 N ММВ-7-11 / [email protected]

Since in the situation under consideration, the tax agent did not inform the tax authority about the impossibility of withholding personal income tax from the income of individual individuals in the manner prescribed by paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, information on such income and personal income tax calculated from them will not be included by the tax authority in tax notifications sent to these individuals. In this regard, we believe that on the basis of paragraphs. 4 p. 1, p. 2 and 3 of Art. 228 of the Tax Code of the Russian Federation, individuals are obliged to independently calculate and pay personal income tax from the corresponding income and submit to the tax authority at the place of their registration tax returns for 2016 in the form of 3-personal income tax no later than 05/02/2017 (clause 1 of article 229, Clause 7 of Article 6.1 of the Tax Code of the Russian Federation).

At the same time, in the case of receiving income in kind, an individual has the right to independently determine the cost of the goods (work, services) received, other property based on their prices, determined in a manner similar to that provided for in Art. 105.3 of the Tax Code of the Russian Federation (clause 1 of Article 211 of the Tax Code of the Russian Federation).

In addition, we believe that a taxpayer can obtain information on the amount of income by contacting a tax agent directly.

We also draw your attention to the fact that taxpayers have the right to receive free information (including in writing) on current taxes and fees, legislation on taxes and fees and regulatory legal acts adopted in accordance with it, the procedure for calculating and paying from the tax authorities at the place of their registration. taxes and fees, the rights and obligations of taxpayers, the powers of tax authorities and their officials, as well as receive forms of tax declarations (calculations) and clarifications on the procedure for filling them out (subparagraph 1 of paragraph 1 of article 21 of the Tax Code of the Russian Federation).

In violation of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, the tax agent did not submit information to the tax authority about the impossibility of withholding personal income tax from the income of individual individuals received by them in 2016 (the corresponding information was not sent to individuals either). Are these individuals required to declare the amount of the respective income?

Article 226. Peculiarities of Tax Calculation by Tax Agents. Procedure and terms for payment of tax by tax agents

The persons specified in the first paragraph of this clause are referred to in this chapter as tax agents.

The specifics of calculating and (or) paying tax on certain types of income are established by Articles 214.3, 214.4, 214.5, 214.6, 214.7, 226.1, 227 and 228 of this Code.

The calculation of the tax amount is made without taking into account the income received by the taxpayer from other tax agents, and the tax amounts withheld by other tax agents.

4. Tax agents are obliged to withhold the accrued tax amount directly from the taxpayer's income when they are actually paid, taking into account the specifics established by this paragraph.

6. Tax agents are obliged to transfer the amounts of the calculated and withheld tax not later than the day following the day the income is paid to the taxpayer.

Tax agents - Russian organizations referred to in paragraph 1 of this article, which have separate subdivisions, are obliged to transfer the calculated and withheld tax amounts to the budget both at the place of their location and at the location of each of their separate subdivisions.

Tax agents - Russian organizations referred to in paragraph 1 of this article, which have several separate subdivisions on the territory of one municipality, have the right to transfer the calculated and withheld tax amounts to the budget at the location of one of such separate subdivisions or at the location of the organization, if the said organization and its separate subdivisions are located on the territory of one municipality, chosen by the tax agent independently, taking into account the procedure established by paragraph 2 of Article 230 of this Code.

7.1. Tax agents for the purposes of this chapter are also Russian organizations that transfer the amounts of money allowances, pay, wages, and other remuneration (other payments) to military personnel and civilian personnel (federal state civil servants and employees) of the Armed Forces of the Russian Federation.

The aggregate amount of tax calculated and withheld by the tax agent from the indicated amounts is transferred to the budget at the place of registration of the tax agent with the tax authorities.