Types of taxation systems in the Russian Federation: OSNO, USN, UTII, ESHN.
BASIC- the general system of taxation (classical). Most often used in enterprises. In the classical system of taxation BASIC, a legal entity (an organization or an individual entrepreneur) pays income tax, value added tax, unified social tax and other taxes, the need to pay which is provided for by tax legislation, and also pays contributions to the Pension Fund, the Compulsory Medical Insurance Fund, and the Social Insurance Fund .
USN- Simplified taxation system. It is a voluntary regime, under which organizations are exempted from paying: VAT, income tax, property tax, insurance premiums, and individual entrepreneurs - VAT, personal income tax, property tax, insurance premiums. Instead of these taxes, one tax is paid. The remaining taxes are paid in the general order. The use of the USN can significantly reduce the tax burden. To use it, it is enough to send a notification to the local tax office. But at the same time, it is important to remember that there is a whole list of activities for which the use of the simplified tax system is prohibited. It is presented in Art. 346.12. p.2 p.p. 1. the second part of the Tax Code of the Russian Federation.
UTII- a single tax on imputed income. The taxation system in the form of an imputed taxation system is a tax regime that is mandatory for organizations and individual entrepreneurs in the case when they carry out the types of activities provided for by law and meet the requirements. When applying the imputed taxation system in relation to activities related to the payment of a single tax, organizations are exempt from paying: VAT, income tax, property tax, insurance premiums, and individual entrepreneurs - VAT, personal income tax, property tax, insurance premiums. Instead of these taxes, a single tax is paid. The remaining taxes are paid in the general order. Starting January 1, 2012, a phased abolition of UTII is planned. That is, by that time companies with no more than 15 people will be able to apply it. In addition, the types of activities falling under this regime will be significantly reduced. Everyone is talking about the abolition of UTII, but no one can say for sure when it will happen.Instead of a single tax on imputed income for certain types of activities, a new bill (On May 17, in the first reading, a bill was approved on the creation of a patent system of taxation and the gradual abolition of a single tax on imputed income), it is proposed to establish a voluntary special tax regime "Patent taxation system". Recall that from 2012, individual entrepreneurs will be able to obtain a patent for the provision of services, and at the same time they will not have to pay income tax, property tax and VAT.
ESHN- unified agricultural tax. This mode, as a rule, is not in demand, so we will not waste time on it.
tax rates
In addition to taxation systems in the Russian Federation, it is necessary to determine its object. That is, to understand what the tax rate will be 6% (income) or 5–15% (income reduced by the amount of expenses). To do this, it is enough to calculate the approximate income, the amount of expenses and the possibility of confirming expenses with primary documents (checks, waybills, waybills, etc.).
The object of taxation "income" is more profitable if:
The unified agricultural tax (ESAT) is a tax paid by producers of agricultural goods when they voluntarily switch to this special tax regime (clause 1, clause 2, article 346.1 of the Tax Code of the Russian Federation).
In order to switch to a special regime in the form of payment of the Unified Agricultural Tax, organizations and entrepreneurs need to notify the tax office at the place of their registration (clause 1 of article 346.3 of the Tax Code of the Russian Federation).
If we talk about the ESHN (what it is in simple terms), then this is a special regime for producers of agricultural goods, which allows you to pay tax at a lower rate, simplify reporting and document flow.
Organizations applying a special tax regime for agricultural producers are exempted from paying corporate income tax, corporate property tax, except for the situations specified in paragraph 3 of Art. 346.1 of the Tax Code of the Russian Federation. Entrepreneurs who have switched to the use of the Unified Agricultural Tax are exempt from paying personal property tax, personal income tax in relation to income received from entrepreneurial activity, with the exception of the situations specified in paragraph 3 of Art. 346.1 of the Tax Code of the Russian Federation.
Until January 1, 2019, agricultural producers applying the Unified Agricultural Tax were exempted from paying VAT, with the exception of the situations specified in paragraph 3 of Art. 346.1. But starting from January 1, 2019, a change in the tax legislation of the Russian Federation obliges organizations and individual entrepreneurs that have switched to the Unified Agricultural Tax to calculate and pay VAT in the general manner in accordance with Ch. 21 of the Tax Code of the Russian Federation (clause 12, article 9 of the Federal Law of November 27, 2017 N 335-FZ, Letter of the Federal Tax Service of May 18, 2018 No. SD-4-3 / [email protected] ).
Also, payers of the ESHN of the Tax Code of the Russian Federation are obliged to pay transport tax and other taxes (for example, water tax) if they have the appropriate objects of taxation.
The UAT is calculated based on the results of half a year, the tax amount is determined as the difference between income and expenses multiplied by the tax rate (clause 1, article 346.6, clause 2, article 346.7, clause 1, clause 2, article 346.9 of the Tax Code of the Russian Federation).
The tax rate of the Unified Agricultural Tax is set at 6% (clause 1, article 346.8 of the Tax Code of the Russian Federation). At the same time, the laws of the subjects may establish differentiated rates ranging from 0 to 6% for all or certain categories of taxpayers, depending on: the types of agricultural products produced, the amount of income, the place of business and / or the average number of employees.
The payment of the ESHN, as well as the advance payment on it, is made by organizations (IEs) at the place of their registration (clause 4, article 346.9 of the Tax Code of the Russian Federation). In this case, the advance payment for the ESHN is paid no later than the 25th day of the month following the half year (clause 2 of article 346.7, clause 2 of article 346.9 of the Tax Code of the Russian Federation). The tax itself is paid no later than March 31 of the next year (clause 5 of article 346.9 of the Tax Code of the Russian Federation, clause 2 of article 346.10 of the Tax Code of the Russian Federation).
Upon termination of activities as producers of agricultural goods, the UAT must be paid no later than the 25th day of the month following the month in which such activities are terminated, according to the notification sent to the Federal Tax Service (clause 2 of article 346.10 of the Tax Code of the Russian Federation).
Deadline for payment of ESHN in 2019:
The tax declaration for the UAT is submitted by organizations (IP) in this special regime at the end of the year to the tax office at the place of their registration no later than March 31 of the next year (clause 1 of article 346.7, clause 1, clause 2 of article 346.10 of the Tax Code of the Russian Federation ).
Upon termination of activities as producers of agricultural goods, it is necessary to submit a tax return for the UAT no later than the 25th day of the month following the month in which such activities are terminated, according to the notification sent to the Federal Tax Service (IFTS).
Agriculture is one of the priority areas for the development of the Russian economy. In this regard, a special tax regime was developed for enterprises in this area - a single agricultural tax. ESHN - what is it in simple words?
Payers on this system are exempt from paying income tax (individual entrepreneurs - from personal income tax), and also partially from property tax. Instead, they pay a single tax on the difference between income and expenses. In this case, the person must have the status of an agricultural producer. These include legal entities, peasant (farm) enterprises and individual entrepreneurs that are engaged in the production, processing or sale of crop products, livestock, fisheries, and also provide services in the field of agriculture. In addition, the key condition for the application of the special regime is the limit of income from other activities. The share of proceeds from sales of agricultural products in the total amount of receipts must be equal to at least 70%.
Currently, the procedure for taxing persons on the UAT has changed somewhat. What innovations have appeared in the ESHN system since 2019? You can find the latest news in our article.
Since January 1, 2019, agricultural producers under special regime have become obliged to pay value added tax to the budget. It is established by Federal Law No. 335-FZ of November 27, 2017, amending the Tax Code. Previously, payers of the Unified Agricultural Tax Tax Code of the Russian Federation provided for exemption from VAT. The exception was the tax paid to the budget on the import of imported products. Now companies and individual entrepreneurs on the Unified Agricultural Tax will have to draw up all the necessary documents as payers of value added tax. In particular, keep a book of purchases and sales and draw up invoices for counterparties. In addition, you will need to submit a VAT return.
Specify the details of your organization, and Kontur.Extern will help calculate the agricultural tax, check the declaration for errors and instantly transfer it to the tax office, and then prepare a payment order for the bank.
What are the positive and negative aspects of the new obligation of agricultural producers? Paying VAT is an additional tax burden for businesses, which is a negative factor. The volume of reports to be prepared automatically increases, and, consequently, labor costs. Also, the emergence of an obligation to pay a new tax means additional control by the tax service.
On the other hand, single agricultural tax payers are now more attractive to contractors. It is often unprofitable for buyers to purchase goods from those persons who do not have to pay VAT. In these cases, they lose their right to receive a deduction. It is assumed that the introduction of VAT for agricultural producers will increase the demand for their products.
Firms and enterprises on the Unified Agricultural Tax have the right to receive exemption from VAT. This is possible in the following situations:
If an agricultural producer plans to exercise the right not to pay VAT, he must submit a corresponding notification to the tax office. The notice of exemption from VAT for the UAT is submitted inclusively before the 20th day of the month from which the payer begins to exercise his right not to pay tax. The application form for VAT exemption under the Unified Agricultural Tax in 2019 is contained in the Letter of the Federal Tax Service of Russia dated January 15, 2019 No. SD-4-3 / [email protected]
Those companies and individual entrepreneurs who sold excisable products within three calendar months before the notification are not eligible to receive VAT exemption. At the beginning of the sale of excisable goods or in case of violation of the revenue limit, the agricultural producer loses the right not to pay VAT. In the future, such persons are not eligible for re-release. Please note that if obtaining an exemption is voluntary, then the reverse procedure is not possible, except if the above conditions are violated.
The unified agricultural tax in 2019 is generally paid at the standard rate of 6%. At the same time, the authorities of the constituent entities of the Russian Federation can establish differentiated rates in the range from 0 to 6%. This opportunity has been available since the beginning of 2019. The amount of the bet depends on:
Variation of rates allows finding a balance between the burden on payers and the amount of tax revenues. Some regions have already taken advantage of the right to introduce lower rates on their territories. For example, the Moscow Region has a zero tax rate until December 31, 2021. Until the same date, rates are set by local laws in the Sverdlovsk (5%) and Kemerovo regions (3%).
An important issue in the application of ESHN is the taxation of property. As key changes in the UAT system of recent years, an amendment to the Tax Code regarding property tax should be indicated. Starting from the past 2018, only property that is involved in the conduct of agricultural activities is exempt from taxation. It includes assets that are involved in the production, processing, sale of agricultural products or in the provision of services by agricultural producers. Previously, there was no such clause.
Property that is used in agricultural activities can be divided into two groups. One is directly used for production. For example, sowing equipment, buildings where animals are kept, etc. Others are auxiliary, in particular, garages for equipment, warehouses, etc. The right not to pay tax applies to both groups.
Assets subject to property tax and assets involved in agricultural activities should be accounted for separately. However, a situation may arise when an enterprise uses property simultaneously for the production of agricultural products and for other activities. In this case, the property cannot be considered separately. In 2018, the Letter of the Federal Tax Service dated July 10, 2018 No. BS-4-21 / [email protected] It provides the following explanation: if an agricultural producer uses property for other business activities, but at the same time for its intended purpose, then it is not taxed. In addition, there is no need to pay property tax if the assets are on conservation, that is, they are temporarily not involved in the main activity.
Firms and companies that are producers of agricultural products have the right to switch to paying a single agricultural tax. In this case, they lose the obligation to pay ordinary taxes - income tax (for individual entrepreneurs - personal income tax), VAT and property tax, which replaces one general budget payment for them. Accordingly, for such taxpayers, both the tax and the reporting period for the Unified Agricultural Tax are provided for separately by the legislation.
According to Article 346.7 of the Tax Code, the reporting period for the unified agricultural tax is recognized as half a year. The tax period on the basis of the same article is a year.
Agricultural tax is paid in advance. This means that at the end of the reporting period, that is, half a year, the payer is obliged to independently calculate the tax payment and transfer it to the IFTS. Firms pay with the tax office at their legal address, individual entrepreneurs - at their registration address. The period during which the amount must be transferred is 25 calendar days from the end of the six months. Thus, it is necessary to transfer the advance payment according to the Unified Agricultural Tax before July 25. The declaration is not submitted during this period. So the reporting period for agricultural tax is relevant only in the context of budget settlements.
At the end of the year, both firms and individual entrepreneurs calculate the final payment as part of the application of the agricultural special regime. It is determined on the basis of the annual tax base, that is, income minus expenses and a tax rate of 6%. The total amount of the unified agricultural tax is transferred to the IFTS minus the previously transferred advance payment. The term for transferring the annual payment under the EKHS is March 31. It is the same for organizations and individual entrepreneurs. The agricultural tax return must also be filed by the same date.
Example
LLC "Romashka" is a payer of the Unified Agricultural Tax. According to the results of the first half of the year, the tax base under the special regime amounted to 450,000 rubles. The amount of annual income minus expenses amounted to 670,000 rubles.
The reporting period for ESHN is half a year. Based on its results, by July 25, Romashka LLC will transfer to the Federal Tax Service Inspectorate:
450,000 x 6% = 27,000 rubles.
The amount of the annual tax will be:
670,000 x 6% = 40,200 rubles.
Thus, before March 31 of the year following the tax period, the company is obliged to pay extra to the IFTS:
40,200 - 27,000 = 13,200 rubles.
It is worth noting that, despite the absence of the obligation to submit a semi-annual declaration, and the very name of the semi-annual payment is “advance”, payers of the UAT have no right not to transfer it. Although the legislation does not provide for penalties for late advance payments, penalties for late transfer of such an amount will be with one hundred percent probability. They are calculated traditionally, according to the formula 1/300 of the key rate of the amount owed for each day of delay in payment. The accrual of penalties in such situations occurs at the end of the tax year after the filing of the declaration. It is from it that controllers learn about the amounts that taxpayers were required to transfer based on the results of the six months and the year as a whole.
Since the state has recently paid increased attention to the activities of agricultural enterprises, we considered it appropriate to analyze the problems that taxpayers have to face when applying a special tax regime for agricultural producers.
Organizations and individual entrepreneurs that are agricultural producers in accordance with Chapter 26.1 of the Tax Code of the Russian Federation have the right to voluntarily switch to the payment of a single agricultural tax (UAT) in the manner prescribed by this chapter of the Tax Code of the Russian Federation (Clause 2, Article 346.1 of the Tax Code of the Russian Federation).
VAT deduction upon transition to the unified agricultural tax
In practice, there are often situations when goods are purchased and used by the taxpayer before the transition to the UAT regime, and paid for after it. Accordingly, the question arises of the possibility of applying the VAT deduction.
Article 346.1 of the Tax Code of the Russian Federation provides that the taxation system for agricultural producers is applied along with the general taxation regime. The transition to the payment of the unified agricultural tax or the return to the general taxation regime is carried out by organizations and individual entrepreneurs voluntarily.
Article 346.2 of the Tax Code of the Russian Federation establishes that organizations and individual entrepreneurs who have switched to paying the UAT in the manner prescribed by Chapter 26.1 of the Tax Code of the Russian Federation are recognized as UAT payers. Based on the meaning of Art. 346.2 and 346.3 of the Tax Code of the Russian Federation, agricultural producers can switch to the UAT regime.
Paragraph 6 of Art. 346.2 of the Tax Code of the Russian Federation it is determined that they are not entitled to switch to the payment of the unified agricultural tax:
Thus, only payers of this tax can enjoy the right to tax deductions and reimbursement from the VAT budget.
By virtue of p.p. 3 p. 2 art. 170 of the Tax Code of the Russian Federation, VAT amounts presented to the buyer when purchasing goods (works, services), including fixed assets and intangible assets, by persons who are not VAT payers in accordance with Chapter 21 of the Tax Code of the Russian Federation or exempted from the obligation to calculate and pay it, are included in the costs of production and sale of goods (works, services).
According to the official position of the Ministry of Finance of Russia, if persons who have switched to the simplified tax system or the taxation system in the form of UTII calculate for payment to the budget the amount of VAT on goods (work, services) shipped (performed, rendered) before the transition to such special tax regimes, then these persons have the right to deduct the amount of tax on goods (works, services) used in the implementation of transactions for the sale of goods (works, services) that are subject to VAT, but paid after the transition to special tax regimes (letter dated 19.12.05 No. 03-04-15/116). Despite the fact that this letter refers to UTII and the simplified tax system, it seems possible to extend this point of view to the payment of the unified agricultural tax, which is also a special tax regime.
There are separate court decisions confirming the stated official position (decisions of the Federal Antimonopoly Service of the Volga District dated July 17, 08 No. A12-10958 / 07, the Federal Antimonopoly Service of the Ural District dated December 24, 2007 No. Ф09-10650 / 07-С2).
However, most arbitration courts take the opposite position. The courts point out that if the payment of VAT was made by the taxpayer after the transition to a special tax regime, then he does not have the right to deduct the amount of this tax (Decree of the Federal Antimonopoly Service of the Urals District of August 18, 2009 No. Ф09-5876 / 09-С2, 1.02. 06 No. Ф09-34/06-С2, Federal Antimonopoly Service of the North Caucasian District dated 08.28.08 No. Ф08-5017/2008, Federal Antimonopoly Service of the Northwestern District dated 06.30.06 No. А66-911/2005).
In addition, this position was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 4287/05 dated September 13, 2005.
It should be noted that the considered problem is relevant in relation to transactions made before 01.01.06, as well as after the specified date, for which the condition on the actual payment of tax amounts is preserved, since at that time the rule was applied on the deduction of VAT amounts presented to the taxpayer and paid them when purchasing goods (works, services) on the territory of the Russian Federation, while paragraph 20 of Art. 1 of Federal Law No. 119-FZ of July 22, 2005 “On Amendments to Chapter 21 of Part Two of the Tax Code of the Russian Federation and on the Recognition of Certain Provisions of Legislative Acts of the Russian Federation on Taxes and Duties as invalid” in the first paragraph of clause 2 of Art. 171 of the Tax Code of the Russian Federation, the words "and paid by him" were excluded.
If the UAT payer issued an invoice
In judicial practice, there are controversial situations when UAT payers indicate VAT amounts in invoices. In such cases, the tax authorities consider that the obligation to pay VAT arises, but taxpayers argue that such errors cannot be the basis for paying VAT.
According to paragraph 3 of Art. 346.1 of the Tax Code of the Russian Federation (as amended by the Federal Law of November 27, 2010 No. 306-FZ “On Amendments to Part One and Part Two of the Tax Code of the Russian Federation and the Law of the Russian Federation “On Tax Authorities of the Russian Federation”) organizations that are UAT payers , are not recognized as VAT payers (with the exception of VAT payable in accordance with the Tax Code of the Russian Federation when goods are imported into the territory of the Russian Federation and other territories under its jurisdiction, as well as VAT paid in accordance with Article 174.1 of the Tax Code of the Russian Federation).
By virtue of paragraph 3 of Art. 169 of the Tax Code of the Russian Federation, only VAT payers are required to draw up invoices. Therefore, an organization that has switched to paying unified agricultural tax, when carrying out operations subject to this single tax, should not issue invoices.
Based on paragraph 5 of Art. 173 of the Tax Code of the Russian Federation, in the event that an organization that has switched to paying the Unified Agricultural Tax, issues an invoice to the buyer of goods (works, services) with the allocation of the amount of VAT, the entire amount of tax indicated in this invoice is payable to the budget.
The legitimacy of this norm was confirmed by the Constitutional Court of the Russian Federation in the Ruling of November 7, 2008 No. 1049-О-О. At the same time, the Ministry of Finance of Russia notes that, according to paragraphs. 8 p. 2 art. 346.5 of the Tax Code of the Russian Federation, the amounts of VAT paid on the purchase of goods (works, services) used in the implementation of operations subject to the Unified Agricultural Tax are taken into account as expenses when determining the object of taxation with a single tax (letters No. 03-04-11 / 152 dated 12.07.05 and 31.03.04 No. 04-03-11/51).
On the issue of applying VAT by an organization that is a UAT payer, when issuing an invoice to the buyer with the allocation of the VAT amount, the Ministry of Finance of Russia in a letter dated 15.04.10 No. sell goods subject to VAT. At the same time, VAT calculated and paid to the budget from payment (partial payment) received on account of the supply of these goods is not accepted for deduction.
Similar explanations are given by the financial authority in relation to the issuance of an invoice by a person applying a different special tax regime (letters of the Ministry of Finance of Russia dated May 16, 2011 No. 03-07-11 / 126, April 29, 2010 No. 03-07-14 / 30 , March 17, 2010, No. 03-07-11/66). Judicial practice supports this position.
As the higher court notes in the decision of the Federal Antimonopoly Service of the Central District dated March 28, 2011 No. A14-5181-2010135 / 33, the lower courts reasonably took into account that the taxpayer applied the taxation system in the form of unified agricultural tax in the disputed tax period and was not a VAT payer , as a result of which he has an obligation to pay tax to the budget in the event that an invoice is issued to the buyer with the allocation of the amount of VAT on the basis of paragraphs. 1 p. 5 art. 173 of the Tax Code of the Russian Federation.
Application of ESHN in the absence of income
In law enforcement practice, there are disputes on the issue of the possibility of applying the UAT by a taxpayer who had no income from the sale of agricultural products in the tax period.
According to paragraph 5 of Art. 346.2 of the Tax Code of the Russian Federation, agricultural producers (with the exception of those specified in paragraphs 2-4 of this paragraph) are entitled to transfer to the payment of the Unified Agricultural Tax if, based on the results of work for the calendar year preceding the calendar year in which the organization or individual entrepreneur submits an application for transition to the payment of UAT, in the total income from the sale of goods (works, services), the share of income from the sale of agricultural products produced by them, including primary processing products produced by them from agricultural raw materials of their own production, is at least 70%.
The Federal Tax Service of Russia in a letter dated November 24, 2010 No. ShS-37-3 / [email protected] clarifies the issue of the loss of the status of agricultural producers in the absence of taxpayers' income from the sale of agricultural products produced by them. In accordance with paragraph 2 of Art. 346.3 of the Tax Code of the Russian Federation, a newly created organization or a newly registered individual entrepreneur has the right to apply for the transition to the payment of unified agricultural tax within five days from the date of registration with the tax authority indicated in the certificate of registration with the tax authority, issued in accordance with paragraph 2 of Art. . 84 of the Tax Code of the Russian Federation. In this case, the taxpayer is considered to have switched to the payment of unified agricultural tax in the current tax period. At the same time, the tax period in accordance with Art. 346.7 of the Tax Code of the Russian Federation, a calendar year is recognized.
Paragraph 4 of Art. 346.3 and paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, in particular, it is established that if, according to the results of the tax period, the share of income of the UAT payer from the sale of agricultural products produced by him, including primary processing products produced by him from agricultural raw materials of his own production, in the total income from the sale of goods (works, services) amounted to less than 70%, then the taxpayer is not an agricultural producer and is considered to have lost the right to apply the ESHN from the beginning of the tax period in which the violation of this restriction was made.
Thus, the main condition that allows the application of the taxation system in the form of unified agricultural tax is the implementation of the production process by the taxpayer, as well as the receipt of income from its implementation.
If the taxpayer who switched to paying the Unified Agricultural Tax, following the results of the tax period, violated the above restriction, including due to the taxpayer's lack of income from the sale of agricultural products, then in accordance with paragraph 4 of Art. 346.3 of the Tax Code of the Russian Federation, he loses the right to apply the ESHN from the moment of registration with the tax authority.
A taxpayer who has lost the right to apply the UAT, within one month after the expiration of the tax period in which he committed the violation, must recalculate tax liabilities for VAT, corporate income tax, personal income tax, corporate property tax, property tax individuals for the entire tax period in the manner prescribed by the legislation of the Russian Federation on taxes and fees for newly created organizations or newly registered individual entrepreneurs. In addition, such a taxpayer pays penalties for late payment of these taxes and advance payments on them.
However, the jurisprudence on this issue has an opposite position. Thus, the Federal Antimonopoly Service of the Far Eastern District, in its resolution No. F03-2288/2010 dated April 21, 2010, came to the conclusion that the fact of the absence of income from the sale of agricultural products does not indicate the loss of the status of an agricultural producer by the taxpayer, in connection with which the tax authority had no reason to recognize him as having lost his right to ESHN.
VAT deductions upon transition from UAT to the general taxation system
In practice, the issue of the legitimacy of applying tax deductions for VAT in the event of a transition from the payment of unified agricultural tax to the general taxation regime when recalculating tax liabilities is controversial.
In this case, the arbitration courts come to the unanimous opinion that since the taxpayer did not calculate and pay the unified agricultural tax, i.e. did not apply a special taxation regime from the very beginning of the calendar year, and all legal relations are regulated according to the rules of the general taxation regime, then the use of a VAT deduction is lawful (for example, resolutions of the Federal Antimonopoly Service of the North Caucasus District dated November 28, 2006 No. F08-6071 / 2006-2511A and the Federal Antimonopoly Service of the West Siberian District dated June 11, 2008 No. F04-2600/2008 (6445-A03-41).
Application of ESHN in the order of succession
Disputes often arise on the issue of the possibility of applying the UAT by taxpayers who are successors of reorganized legal entities without submitting a corresponding application to the tax authority, if the legal entity had already applied this special regime before the reorganization.
Based on the meaning of Art. 50 of the Tax Code of the Russian Federation, the obligation to pay taxes of a reorganized legal entity, as well as the due amounts of fines imposed on a legal entity for committing tax offenses before the completion of its reorganization, is performed by its successor (successors) in the manner established by this article of the Tax Code of the Russian Federation. At the same time, in order to resolve the issue under consideration, one should proceed from the fact that, by virtue of paragraph 1 of Art. 57 of the Civil Code of the Russian Federation, transformation is one of the forms of reorganization of a legal entity, and according to paragraph 5 of Art. 58 of the Civil Code of the Russian Federation, the transformation of a legal entity of one type into a legal entity of another type is, in fact, a change in the legal form of a legal entity.
In addition, on the basis of paragraph 4 of the Regulations on the Federal Tax Service, approved by Decree of the Government of the Russian Federation of September 30, 2004 No. 506 (hereinafter referred to as the Regulations), the Federal Tax Service of Russia conducts its activities directly and through its territorial bodies in cooperation with other federal executive bodies authorities, executive authorities of the constituent entities of the Russian Federation, local governments and state non-budgetary funds, public associations and other organizations.
According to clause 5.3.1 of the Regulations, the Federal Tax Service of Russia carries out state registration of legal entities and individuals as individual entrepreneurs and peasant (farm) enterprises.
It should be noted that earlier arbitration courts did not have a unified position on this issue.
As stated in the decision of the Federal Antimonopoly Service of the Urals District dated September 21, 2009 No. Ф09-7009 / 09-С2, the taxpayer organization is the full legal successor of the organization that applied the tax regime in the form of payment of the unified agricultural tax. Since in this case there is a universal succession, the right of the reorganized legal entity to apply the taxation regime in the form of payment of the unified agricultural tax passes to the newly emerged legal entity along with other rights.
The taxpayer calculated and paid the single tax, submitted tax reporting on it, i.e. by his actions confirmed the will to transfer to the specified tax regime. At the same time, the obligation of the reorganized person to apply for the transition to a special tax regime in the event that the organization paid the unified agricultural tax before the reorganization is not provided for by the current legislation.
At the same time, the Federal Antimonopoly Service of the Volga-Vyatka District, in its resolution of October 22, 2009 No. A79-6037 / 2009 (hereinafter referred to as the Resolution No. A79-6037 / 2009), when considering the situation related to the question of the legality of the application of the Unified Agricultural Tax by an organization that is the legal successor of the state unitary enterprise through the transformation of the enterprise through privatization and an agricultural producer that continued to apply the named tax regime, but did not submit an application for the transition to the payment of the Unified Agricultural Tax, notes that the organization did not fulfill one of the conditions for the possibility of applying a special tax regime in the form of payment of the Unified Agricultural Tax, and therefore unlawfully used this taxation regime, and the reference of the organization to the fact that tax declarations for unified agricultural tax were submitted to the tax authority during the audited period, as well as the absence of any comments from the tax authority on the results of desk audits of these declarations does not indicate the legality of the application of the specified about the special tax regime.
However, by the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 15, 2010 No. 563/10 (hereinafter referred to as the Decree No. 563/10), Decree No. A79-6037 / 2009 was canceled.
According to the Presidium of the Supreme Arbitration Court of the Russian Federation, the organization retained the profile of activities carried out by the enterprise before its privatization, remaining an agricultural producer. Having registered the corresponding transformation of a legal entity, the organization applied the Unified Agricultural Tax for about two years in the absence of any comments from the tax authority on the results of in-house audits of tax returns submitted during the specified period.
In view of the foregoing, the Presidium of the Supreme Arbitration Court of the Russian Federation concluded that if the organization, after registration, did not submit a written statement of intent to pay the unified agricultural tax, then in this case this could not serve as a basis for bringing it to tax liability and recalculating its tax liabilities under the general taxation system.
Prior to the adoption of Decree No. 563/10, the authorities insisted on the obligation to submit an application for the transition to the UAT system to the tax authority when transforming a legal entity (letter of the Ministry of Finance of Russia dated July 4, 2008 No. 03-11-04 / 1/11). After the appearance of Decree No. 563/10, the tax authorities agreed with the position of the Presidium of the Supreme Arbitration Court of the Russian Federation (clause 39 of the Review of Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation on Tax Disputes, set out in the letter of the Federal Tax Service of Russia dated 12.08.11 No. SA-4-7 / [email protected]).
Income received by an organization-participant of a simple partnership agreement
Until recently, there was no consensus on the issue of whether income, according to which only the production and sale of agricultural products is carried out by several agricultural producers, is taken into account when determining the share of income that gives such an organization the right to apply the tax system in the form of payment of the Unified Agricultural Tax.
In accordance with paragraph 9 of Art. 250 of the Tax Code of the Russian Federation, non-operating income is recognized in the form of income distributed in favor of the taxpayer with his participation in a simple partnership and taken into account in the manner provided for in paragraph 4 of Art. 278 of the Tax Code of the Russian Federation.
According to the Ministry of Finance of Russia, expressed in a letter dated July 5, 2011 No. 03-11-09 / 39, art. 346.2 of the Tax Code of the Russian Federation does not provide for the right of organizations and individual entrepreneurs when participating in a simple partnership to take into account in order to obtain the status of an agricultural producer when determining in the total income from the sale of goods (works, services) the share of income from the sale of agricultural products produced by these organizations and individual entrepreneurs, including products its primary processing, produced by them from agricultural raw materials of their own production, income received from the sale of agricultural products produced under a simple partnership agreement and distributed among the participants. In this letter, the Ministry of Finance of Russia also noted that the financial authority had previously given clarifications, according to which, in order to obtain the status of an agricultural commodity producer, when determining in the total income from the sale of goods (works, services) the share of income from the sale of agricultural products produced by these organizations and individual entrepreneurs, including products of its primary processing, produced by them from agricultural raw materials of their own production, income from the sale of agricultural products produced within the framework of a simple partnership and distributed among the participants, were not taken into account (letter dated 14.07.09 No. 03-11-06/1/31) .
In judicial practice, there are different points of view on the issue under consideration.
In the Determination of the Supreme Arbitration Court of the Russian Federation of October 8, 2010 No. VAC-9534/10, it is indicated that from paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, which determines that UAT payers are organizations and individual entrepreneurs producing agricultural products, it follows that the right to apply this special tax regime is associated primarily with the type of activity carried out by the taxpayer, and not with which category the income received from this activity, for tax purposes.
Neither the norm of paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, nor other provisions of Chapter 26.1 of the Tax Code of the Russian Federation do not exclude the possibility of applying the taxation system for agricultural producers in the event that the performance of work at certain stages of the production of agricultural products is carried out by the taxpayer with the involvement of other organizations by concluding work contracts with them, paid services or contracts about joint activities. Chapter 26.1 of the Tax Code of the Russian Federation does not contain a prohibition similar to that provided for in clause 2.1 of Art. 346.26 of the Tax Code of the Russian Federation (in accordance with this rule, the use of a special taxation regime in the form of UTII is excluded when carrying out the type of activity falling under this regime under a simple partnership agreement).
In addition, the Federal Antimonopoly Service of the North Caucasus District, in its decision No. A32-25409 / 2008-3 / 418 dated May 31, 2010, considered correct the conclusion of the lower court that the legislation did not introduce restrictions on classifying participants in a joint activity agreement as agricultural producers in the manner prescribed by Chapter 26.1 of the Tax Code of the Russian Federation.
At the same time, in the resolution of the Federal Antimonopoly Service of the Volga District dated May 13, 2010 No. A57-24991 / 2009 (hereinafter - Resolution No. A57-24991 / 2009) it is noted that from the requirement of paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, it does not follow that when determining the status of an individual taxpayer as an agricultural producer for the purposes of calculating the UAT, income from the sale of agricultural products of this taxpayer includes income from the sale of products, individual stages of production of which were carried out by third-party organizations or individual entrepreneurs.
However, in Decree No. 9534/10 of December 28, 2010 (hereinafter referred to as Decree No. 9534/10), the Presidium of the Supreme Arbitration Court of the Russian Federation canceled Decree No. the sale of agricultural products produced within the framework of joint activities, is lawfully taken into account by it when resolving the issue of the right to apply the taxation system for agricultural producers.
In letter No. 03-11-09 / 39, the Ministry of Finance of Russia adjusted its position on the issue under consideration and drew attention to the need to use the conclusions of Decree No. 9534/10 in the work, taking into account the actual circumstances of the case under consideration, without giving them a universal character.
So, if an organization is a party to a simple partnership agreement, in accordance with which only the production and sale of agricultural products is carried out by several agricultural producers, then when determining the share of income from the sale of agricultural products produced by the organization, including products of its primary processing, made from agricultural raw materials of its own production , in the total income from the sale of goods (works, services) for the purposes of applying Chapter 26.1 of the Tax Code of the Russian Federation, it is possible to take into account income from the sale of agricultural products received under a joint activity agreement, as provided for in Resolution No. 9534/10.
However, if the simple partnership agreement is not related to the production and sale of agricultural products, or if such production and sale are not the main or predominant activities under the simple partnership agreement, then when determining the share of income that gives the organization the right to apply the taxation system for agricultural producers, Decree No. 9534/10 is not taken into account.
