After the death of the car owner (declaring him dead), the transport tax debt, as well as fines and penalties, must be paid by the heirs. But only within the value of the inherited property.
Similar explanations are contained in the letter of the Ministry of Finance of Russia dated October 19, 2011 No. 03-02-07 / 1-373.
If a vehicle registered for a minor child, the obligation to pay transport tax is assigned to his legal representatives (parents, adoptive parents, guardians, trustees). Such clarifications are contained in the letter of the Federal Tax Service of Russia dated October 23, 2012 No. BS-2-11/666.
Situation: who pays the transport tax on a vehicle transferred by proxy?
The vehicle tax must be paid by the person to whom the vehicle subject to this tax is registered (paragraph 1 of article 357 of the Tax Code of the Russian Federation).
And the fact that the owner issued a power of attorney to another person does not cancel his obligation to pay tax.
Situation: Do I need to pay transport tax on a car with transit numbers?
No, it doesn `t need.
The obligation to pay transport tax arises only from the moment the car is registered with the traffic police (Article 357 of the Tax Code of the Russian Federation). Registration of a car in the traffic police and the issuance of signs "Transit" are different registration actions. When issuing a transit number, a corresponding mark is made in the vehicle passport, while a certificate of its registration is not issued (clause 33.1 of the Administrative Regulations approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001).
In particular, the signs "Transit" must be received:
– in connection with the export of the car outside Russia for permanent residence;
- when driving a car to the manufacturer for revision (re-equipment);
– when driving the car to the place of sale or registration.
In the first case, the issuance of transit numbers occurs after the deregistration of the car (clause 43 of the Administrative Regulations, approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001).
In other cases, the signs "Transit" are issued before the car is registered (clauses 4 and 33 of the Administrative Regulations, approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001).
Thus, the presence of transit plates on a car does not mean that it is registered with the traffic police. This means that you do not need to pay transport tax on it.
The list of vehicles subject to transport tax is given in table.
Situation: Do I have to pay transport tax on trailers and semi-trailers?
No, it doesn `t need.
Vehicles from which transport tax must be paid are listed in paragraph 1 of article 358 tax code RF. Non-self-propelled ground vehicles (including trailers and semi-trailers) are not specified in this paragraph. Thus, they do not need to pay transport tax.
A similar point of view is shared by the tax department (clause 12 methodological recommendations, approved by order of the Ministry of Taxes of Russia dated April 9, 2003 No. BG-3-21 / 177).
The following are exempted from transport tax:
The following modes of transport are exempted from transport tax, in particular:
In the latter case, the controllers explained that the exemption must be confirmed annually. Why do the following documents need to be submitted to the tax office each time:
A complete list of tax-exempt vehicles is given in paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
Situation: is it necessary to submit documents confirming the theft of a car to the inspection in order to be exempted from transport tax?
Yes need.
If the fact of hijacking (theft) of a vehicle is documented, it is not subject to transport tax (subclause 7, clause 2, article 358 of the Tax Code of the Russian Federation). This fact can be confirmed by certificates of the internal affairs bodies that are investigating such crimes (clause 17.4 of the Methodological Recommendations approved by order of the Ministry of Taxes of Russia dated April 9, 2003 No. BG-3-21 / 177, paragraph 2 clause 5 of the Rules approved by order Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001).
The basis for stopping the payment of transport tax is the original certificate of theft. However, if the owner of the vehicle can only submit a copy of the certificate issued by the relevant division of the Russian police department, he is not deprived of the right to exemption from transport tax. In this case, the tax inspectorate will apply for confirmation of the fact of theft to the police department indicated in the photocopied document. This procedure is given in the letter of the Federal Tax Service of Russia dated May 13, 2015 No. BS-3-11 / 1919.
If a person does not have a police department certificate about the theft of a vehicle, but there are any other documents confirming the fact of theft, the right to exemption from paying transport tax will have to be defended in court (letter of the Federal Tax Service of Russia dated April 7, 2010 No. 3-3-07 /475).
After receiving the supporting documents, the inspection will recalculate the tax on its own. During the search period (from the moment the fact of theft is confirmed and until the car is returned to the owner or the criminal case is terminated (suspended), the stolen vehicle will not be subject to transport tax. At the same time, the months in which the car was stolen and returned to the owner are included in the period the vehicle was with the owner (letter of the Federal Tax Service of Russia dated April 7, 2010 No. 3-3-07 / 475).
After the termination or suspension of the criminal case on theft, the vehicle can be deregistered in the traffic police. To do this, it is necessary to submit to the traffic police an application and a letter from the preliminary investigation authorities on the suspension (termination) of the criminal case (paragraph 2, clause 5 of the Rules, approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001).
If the investigation into the theft is not suspended (not terminated), and the car is not found, the criminal case will be terminated two years after the theft (clause 3, part 1, article 24 of the Criminal Procedure Code of the Russian Federation). In this case, it will be possible to remove the car from registration only after the expiration of this period. Before deregistration of a car, it is necessary to confirm the fact of its theft annually in order to be exempted from taxation. This is stated in the letters of the Federal Tax Service of Russia dated May 13, 2015 No. BS-3-11 / 1919, dated April 7, 2010 No. 3-3-07 / 475.
In each region of Russia (oblast, krai, etc.), tax benefits can be established for certain categories of citizens. The list of beneficiaries is approved by the laws of the constituent entities of the Russian Federation (regions, territories, republics). This follows from paragraph 3 of Article 12, Articles 14 and 356 of the Tax Code of the Russian Federation.
For example, transport tax benefits for Moscow residents are approved by Article 4 of the Law of the City of Moscow dated July 9, 2008 No. 33. See their list in table.
Transport tax benefits for residents of the Moscow Region are approved by the Law of the Moscow Region dated November 24, 2004 No. 151/2004-OZ. See their list in table.
If you are entitled to a benefit, then in order to receive it, apply to the inspection application form , given in the letter of the Federal Tax Service of Russia dated November 16, 2015 No. BS-4-11 / 19976.
Situation: is it necessary to pay transport tax if the car was purchased on credit. Is the car registered with the traffic police?
Yes need.
A person is obliged to pay transport tax from a vehicle registered to him (paragraph 1 of article 357 of the Tax Code of the Russian Federation).
At the same time, the legislation does not provide for a benefit for cars purchased on credit. According to the Tax Code of the Russian Federation, the obligation to pay transport tax does not depend on the means by which the owner purchased the vehicle: own or borrowed.
Thus, from the moment when a person has registered a car in the traffic police, he has an obligation to pay transport tax (paragraph 1 of article 357 of the Tax Code of the Russian Federation).
Situation: is it necessary to pay transport tax on a car that is material evidence in a criminal case? The car is not actually used.
The answer to this question, first of all, depends on whether the car is registered with the traffic police or not.
If the car is not registered, then you will not have to pay tax (Article 357 of the Tax Code of the Russian Federation). In this case, the tax inspectorate will not have data in order to calculate the tax and send a notification to the owner to pay the transport tax (Article 362, Clause 3 of Article 363 and Clause 4 of Article 57 of the Tax Code of the Russian Federation).
If the car is registered, the tax will have to be paid. The obligation to pay tax arises from the moment the vehicle is registered. This follows from Article 357 of the Tax Code of the Russian Federation.
Exceptions are the following cases:
This follows from paragraph 3 of Article 356 and paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
At the same time, the law does not provide for a benefit for cars transferred as evidence in a criminal case.
The tax department adheres to a similar position (see, for example, the letter of the Federal Tax Service of Russia for Moscow dated March 3, 2008 No. 18-08/4/020096).
Situation: Do I need to pay vehicle tax on a rental car?
No, it doesn `t need.
The transport tax must be paid by the one for whom the vehicle subject to this tax is registered (paragraph 1 of article 357 of the Tax Code of the Russian Federation).
The law provides for a number of exceptions to this rule. Including registration of a vehicle leased under a leasing agreement. Such a vehicle can be registered to both the lessor (lessor) and the lessee (lessee). This is stated in paragraphs 22 and 48.1 of the Rules, approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001.
A person (not an entrepreneur) who rents a car enters into a lease or rental agreement with the lessor (Articles 632, 642 and 627 of the Civil Code of the Russian Federation). Under such a transaction, no exceptions are provided for in the rules for registering vehicles. It is registered to the owner (landlord).
Thus, the car lessee does not need to pay transport tax.
Situation: Do I need to pay transport tax if the owner rents a car?
Yes need.
The owner can register a vehicle (clause 20 of the Rules approved by Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001, clause 4 of the Methodological Recommendations approved by Order of the Ministry of Taxes of Russia dated April 9, 2003 No. BG-3-21 / 177) .
The law provides for a number of exceptions to this rule. Including registration of a vehicle leased under a leasing agreement. Such a vehicle can be registered to both the lessor (lessor) and the lessee (lessee). This is stated in paragraphs 22 and 48.1 of the Rules, approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001.
However, leasing agreements are usually concluded in the area of entrepreneurial activity(paragraph 1 of the Law of October 29, 1998 No. 164-FZ).
A person (not an entrepreneur) who rents a car concludes a lease or rental agreement with the tenant (Articles 632, 642 and 627 of the Civil Code of the Russian Federation). Under such a transaction, no exceptions are provided for in the rules for registering vehicles. It is registered to the owner (landlord).
Thus, the owner-lessor must pay transport tax on the car rented.
Exceptions are the following cases:
This follows from paragraph 3 of Article 356 and paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
Situation: is it necessary to pay transport tax on a car that has been seized. Is the car registered with the traffic police?
Yes need.
A person is obliged to pay transport tax from a vehicle registered to him (paragraph 1 of article 357 and article 358 of the Tax Code of the Russian Federation).
Exceptions are the following cases:
This follows from paragraph 3 of Article 356 and paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
At the same time, the legislation does not provide for a benefit for vehicles that have been seized.
In addition, the seizure of property does not provide that the owner will be permanently deprived of the right of ownership. The seizure of property may temporarily restrict the right to dispose (in some cases, use) this property. This follows from paragraph 2 of Article 1 and paragraph 2 of Article 235 of the Civil Code of the Russian Federation.
Thus, as long as the vehicle is registered to a person, he must pay vehicle tax. Regardless of whether this property is under arrest or not.
Situation: Is it necessary to pay transport tax on a car purchased for use as spare parts? The car is registered with the traffic police.
Yes need.
A person is obliged to pay transport tax from a vehicle registered to him (paragraph 1 of article 357 and article 358 of the Tax Code of the Russian Federation).
Exceptions are the following cases:
This follows from paragraph 3 of Article 356 and paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
At the same time, the legislation does not provide for a benefit for vehicles purchased for use as spare parts.
A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated May 6, 2006 No. 03-06-04-04 / 15. The obligation to pay transport tax will cease after the vehicle is deregistered (Article 357, Clause 3, Article 362 of the Tax Code of the Russian Federation).
Advice: in order not to pay transport tax on cars that are purchased for use as spare parts, do not register them with the traffic police.
The owner is obliged to register with the traffic police only those vehicles that are intended for movement on highways common use. This is stated in paragraph 1 of the Rules approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001. If the car was originally purchased for use as spare parts, then it is not necessary to register it. Indeed, in this case, it will not be used as a vehicle. And from an unregistered car, you do not need to pay transport tax (clause 1, article 358 of the Tax Code of the Russian Federation).
Situation: is it necessary to pay transport tax on cars that have been in long-term repairs for several months after an accident? The car is registered with the traffic police.
Yes need.
A person is obliged to pay transport tax from a vehicle registered to him (paragraph 1 of article 357 and article 358 of the Tax Code of the Russian Federation).
Exceptions are the following cases:
This follows from paragraph 3 of Article 356 and paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
At the same time, the legislation does not provide for a benefit for vehicles that are under repair.
A similar point of view was expressed in the letters of the Ministry of Finance of Russia dated August 31, 2011 No. 03-05-06-04 / 269, dated July 3, 2008 No. 03-05-06-04 / 39.
Situation: is it necessary to pay a transport tax on a water vehicle that is operated only in the summer?
Yes need.
Water vehicles are recognized as an object of taxation by transport tax (clause 1, article 358 of the Tax Code of the Russian Federation, paragraph 9, clause 2 of the Methodological Recommendations approved by order of the Ministry of Taxes of Russia dated April 9, 2003 No. BG-3-21 / 177).
From a registered vehicle, a person is obliged to pay transport tax (paragraph 1 of article 357 and article 358 of the Tax Code of the Russian Federation).
Exceptions are the following cases:
This follows from paragraph 3 of Article 356 and paragraph 2 of Article 358 of the Tax Code of the Russian Federation.
At the same time, the legislation does not provide for a privilege for vehicles, including water vehicles, the operation of which depends on the season. Consequently, the transport tax in this case must be paid in full for the entire calendar year, regardless of the time of actual use of the vehicle.
A similar point of view was expressed in the letter of the Federal Tax Service of Russia dated January 27, 2012 No. BS-3-11/241.
Situation: is it necessary to pay transport tax on a car that was sold, but not deregistered with the traffic police?
Yes need.
The transport tax must be paid by the one for whom the vehicle subject to this tax is registered (paragraph 1 of article 357 and article 358 of the Tax Code of the Russian Federation). Therefore, if the owner who sold the car did not remove it from the register, he will pay transport tax.
The tax inspectorate calculates the transport tax on cars based on data that comes from the traffic police (Article 362 of the Tax Code of the Russian Federation and clause 2 of the Decree of the Government of the Russian Federation of August 12, 1994 No. 938).
Therefore, until it is deregistered, the tax inspectorate will send notifications to a person for the payment of transport tax (Article 357 and Clause 3, Article 363 of the Tax Code of the Russian Federation).
In order not to pay tax on a sold car, you need to deregister it with the traffic police. After that, the traffic police will submit updated information to the tax office. And the owner who registers the car for himself will pay the tax (Article 357 of the Tax Code of the Russian Federation).
Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated July 5, 2013 No. 03-05-06-04 / 26030.
The tax inspectorate must register the owner of the vehicle at the location of the vehicle belonging to him. This location is:
The tax inspectorate makes the statement on its own, without the participation of a person, on the basis of information that comes from the bodies that carry out state registration of vehicles.
This follows from the provisions of clause 2 of article 11, clauses 1 and 5 of article 83, clause 4 of article 85 of the Tax Code of the Russian Federation.
Situation: do I need to register as a transport tax payer at the inspection of the new place of residence? The car was deregistered by the traffic police at the old place of residence and registered at the new one.
No, it doesn `t need.
The Tax Inspectorate independently registers the owner of the car - the payer of transport tax. She does this without the participation of a person on the basis of information that comes from the traffic police. This follows from paragraph 5 of Article 83 and paragraph 4 of Article 85 of the Tax Code of the Russian Federation.
Thus, you do not need to contact the tax office of the new place of residence in order to register as a vehicle tax payer.
Based on the same information, the tax office:
But what if the owner of a registered vehicle has not received a notice of tax payment? In this case, he is obliged to inform the inspectorate in writing about the availability of vehicles. Submit a report to the tax office at the place of residence or at the location of the transport. This must be done by December 31st of the year following tax period. Be sure to attach a document on the state registration of the vehicle to the message.
The message form was approved by order of the Federal Tax Service of Russia dated November 26, 2014 No. ММВ-7-11/598.
If the owner is granted a benefit in the form of a complete exemption from paying tax, it is not necessary to submit such a message to the inspection.
This follows from the provisions of paragraph 2.1 of Article 23 of the Tax Code of the Russian Federation.
Attention: from January 1, 2017, tax liability will be introduced for failure to report (late notification) about the availability of vehicles.
The amount of the fine will be 20 percent of the unpaid tax (clause 12, article 1, part 3, article 7 of the Law of April 2, 2014 No. 52-FZ).
Department of Tax and Customs Tariff Policy<…>on the issue of stopping the payment of transport tax and corporate property tax announces the following.
In accordance with Article 357 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), transport tax taxpayers are persons who, in accordance with the legislation Russian Federation vehicles recognized as an object of taxation are registered. The objects of taxation are cars and other vehicles registered in accordance with the established procedure in accordance with the legislation of the Russian Federation (clause 1 of article 358 of the Code).
Thus, the obligation to pay transport tax is made dependent on the registration of the vehicle, and not on the actual possession of the vehicle by the taxpayer.
The termination of the collection of transport tax is provided for by the Code in the event of deregistration of the vehicle in the registration authorities. Other grounds for stopping the collection of transport tax (with the exception of the theft of a vehicle or the emergence of the right to tax break) not installed.
According to Article 362 of the Code, the tax calculation is terminated from the month following the month when the vehicle is deregistered by the registration authorities.
Considering the above, the payment of transport tax is terminated from the month following the month of its deregistration with the registration authorities.
According to Article 373 of the Code, organizations that have property recognized as an object of taxation in accordance with Art. 374 of the Code.
Paragraph 1 of Article 374 of the Code establishes that the objects of taxation for Russian organizations recognized as movable and real estate(including property transferred for temporary possession, use, disposal, trust management, contributed to joint activities or received under a concession agreement), accounted for on the balance sheet as fixed assets in the manner established for maintaining accounting, unless otherwise provided by Articles 378 and 378.1 of the Code.
When organizing the accounting of fixed assets, one should be guided by the Accounting Regulation "Accounting for Fixed Assets" (PBU 6/01), approved by Order of the Ministry of Finance of the Russian Federation No. 26n dated March 30, 2001, in accordance with which assets are accepted as fixed assets while , established by paragraph 4 of PBU 6/01, and are subject, in accordance with paragraph 29 of PBU 6/01, to be written off from accounting upon their disposal.
Consequently, fixed assets are subject to corporate property tax until they are disposed of in the manner stated above.
Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation S.V. Razgulin
Expert comment
Many firms found themselves in a situation where, having no money to pay off debts, they had to part with their property. This property is seized by bailiffs for subsequent sale at auction and repayment of debts. Often the property that is seized is the company's cars.
In this regard, accountants have questions regarding the payment of transport tax. After all, transport is still listed in the traffic police, but the company cannot actually use it.
On this issue, the financial department has long been of a firm opinion that the obligation to pay transport tax is made dependent solely on the registration of the vehicle, and not on its actual presence or use. In other words, until the car is deregistered, its owner is obliged to pay tax. It does not matter whether this vehicle is in good working order, whether it actually exists or only on paper. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated January 24, 2012 No. 03-05-06-04 / 09, as well as in the commented document. A similar opinion is shared by the Federal Tax Service of Russia (letter dated January 27, 2012 No. BS-3-11 / 241).
What the judges say
In judicial practice, most of the disputes on this issue were resolved not in favor of organizations. At the same time, the argument that there is no obligation to pay transport tax due to the seizure by the investigating authorities was not taken into account by the Constitutional Court of the Russian Federation. This is stated in the Definition of September 29, 2011 No. 1267-О-О.
In practice, there are also disputes with the tax authorities, in which the main argument of the organization was the assertion that in fact the company no longer owns the car. But the judges ignored these arguments and took the side of the inspectors.
Among other judgments, there is one in which the arbitrators supported the company. They made the following conclusion: since vehicles are the objects of taxation, the fact of their registration in the absence of the object of taxation itself cannot entail the obligation to pay transport tax (Decree of the Volga-Vyatka District of 05.27.2010 in case No. A38-2593 /2009).
However, the Presidium of the Supreme Arbitration Court of the Russian Federation put an end to this issue. The supreme arbitrators recognized the correctness of the regulatory authorities and ruled that the write-off of the vehicle from the balance sheet of the organization without removing it from the register in the registering government agency does not release her from the obligation to calculate and pay transport tax. The judges explained their position simply: by virtue of the imperative provisions of Articles 357, 358, 362 of the Tax Code of the Russian Federation, the recognition of persons as taxpayers, the determination of the object of taxation and the emergence of an obligation to calculate and pay vehicle tax is based on information about vehicles and persons on which they are registered.
Thus, without removing the car from the registration, companies will have to pay for it. Appeal to the court of a positive result, most likely, will not bring.
Expert "NA" D.A. Nacharkin
Writing off a vehicle from the organization's balance sheet without deregistration with the registering state body does not relieve the taxpayer to whom the vehicle is registered from the obligation to calculate and pay transport tax, except in cases where the taxpayer did not have an objective opportunity to take appropriate actions to remove registered vehicle.
The Judicial Collegium notes that in the case where the current tax law connects the moment of occurrence of the obligation to pay tax or the termination of such obligation with the actions of the taxpayer, and the latter is obliged, including to apply to the competent authorities with an application for registration or deregistration of the relevant object of taxation, that is, registration is declarative in nature, risks the occurrence of adverse consequences of failure to perform such actions lies precisely on the taxpayer.
The company pointed out the presence of an objective obstacle to deleting an aircraft from the aircraft register, since these actions are impossible without the submission of an act of decommissioning a civil aircraft, drawn up based on the results of inspection, defect detection, disassembly and its disposal.
Meanwhile, until the completion of the investigation of the criminal case on the fact of this aviation accident by the Department for the Investigation of Particularly Important Cases of the Moscow Interregional Investigation Department on Transport of the Investigative Committee of the Russian Federation, it was not possible for the taxpayer to carry out all the named actions.
The tax authority and the courts ignored this circumstance, attaching decisive importance only to the fact of state registration of the vessel, as the only condition for the emergence of the obligation to pay transport tax, without taking into account the indicated circumstances of an objective nature.
This conclusion is contained in the Ruling of the Supreme Court of the Russian Federation dated February 17, 2015 in case No. 306-KG14-5609.
The norms of tax legislation that establish the object of taxation of transport tax are designed for a conscientious taxpayer who performs the duties of state registration of vehicles. Positive consequences in the form of the absence of an obligation to pay transport tax are impossible for an unscrupulous taxpayer
The basis for the decision in the disputed part was the conclusions of the inspection that the company, when calculating the transport tax, did not include in tax base unregistered but actually operated vehicles.
Recognizing that the failure to fulfill the obligation to state registration of vehicles does not entail the exclusion of these vehicles from the number of objects of taxation for transport tax, the courts, meanwhile, proceeded from the fact that the norms of tax legislation establishing the object of taxation of transport tax are designed for a conscientious taxpayer who performs responsibilities for the state registration of vehicles. Positive consequences in the form of the absence of the obligation to pay transport tax are impossible for an unscrupulous taxpayer. At the same time, the inspectorate did not provide any evidence of unfair behavior of the company in order to evade payment of the transport tax. When considering the dispute, the courts took into account the insignificant period of time from the moment the vehicles were purchased to their registration.
Transport tax in accordance with Art. 14 of the Tax Code of the Russian Federation refers to regional taxes, which to a large extent form the revenue base of regional and local budgets. Therefore, its maximum collection is so important for local officials. However, not all owners vehicles rush to fulfill their constitutional obligation to pay this tax. Often the pretext is the unsatisfactory condition of the roads, which causes numerous accidents and breakdowns of cars. As a rule, motorists themselves have to eliminate their consequences at their own expense. Not conducive to the filling of regional and local budgets and introduced not so long ago the possibility of selling cars without deregistration in the traffic police. Let's talk about the tax results of the current vehicle registration procedure today.
Let's consider a situation from practice. For example, in July 2015, an organization sold a car to a legal entity. In the same month, the vehicle (TC) was written off the balance sheet. Under the terms of the contract of sale, the new owner is obliged, within five calendar days from the date of transfer of the car, to change his registration data in the traffic police. With this in mind, the organization calculated the transport tax for the past year, based on the actual time of ownership of the sold car - seven months. Based on the results of a desk audit of the transport tax declaration for 2015, the inspection assessed additional tax up to an annual amount, since, according to information received from the traffic police, the new owner re-registered the car only in January 2016. Are additional charges legal, because as of 01.01.2016 the vehicle was not listed on the balance sheet, and the organization itself, under the contract, has no obligation to deregister the car?
Consequently, the obligation to pay transport tax is made dependent on the state registration of the vehicle, and not on the actual presence or use of this vehicle by the taxpayer. This opinion is also shared by officials of regulatory authorities (see letters of the Ministry of Finance of Russia dated February 18, 2016 No. 03-05-06-04 / 9050, the Federal Tax Service of Russia dated August 28, 2013 No. [email protected]), and judges (see Ruling of the Constitutional Court of the Russian Federation of March 24, 2015 No. 541-O).
An exception to this rule is the cases provided for in par. 3 - 5 Art. 357 (this rule lists persons who are not recognized as transport tax payers) and paragraph 2 of Art. 358 of the Tax Code of the Russian Federation (here named vehicles that are not subject to taxation).
According to paragraph 1 of Art. 362 of the Tax Code of the Russian Federation, taxpayers - legal entities calculate the amount of transport tax (advance payment) on their own. And as follows from paragraph 3 of the named article (as amended in 2015), the obligation to pay tax arises for the taxpayer from the month of putting the vehicle on state registration and terminates from the month following the month of deregistration of this vehicle in the registering organs.
From 01/01/2016, the moment of occurrence (loss) of the obligation to pay transport tax is determined in a different manner. Changes in paragraph 3 of Art. 362 of the Tax Code of the Russian Federation federal law No. 396-FZ dated December 29, 2015. According to the updated norm, starting from the first reporting period of 2016, the tax is calculated depending on the date of registration (deregistration) of the vehicle in the relevant state body.
So, if the vehicle is registered until the 15th number inclusive or deregistered after the 15th number, then when calculating the transport tax for full month the month of registration (deregistration) of the vehicle is taken.
In turn, if the registration of the vehicle has occurred after the 15th number or removal of the vehicle from the registration was carried out until the 15th date inclusive, then the month of registration (deregistration) not taken into account when calculating tax.
From the above legal norms it follows: a vehicle (in our situation, a car) is an object of taxation as long as it remains registered with the taxpayer in the manner prescribed by law. Termination of registration is recognized as the basis for the termination of the collection of transport tax. Other reasons for non-calculation of this tax by taxpayers - legal entities (except for the theft of a vehicle or the emergence of the right to a tax benefit) are not established by law.
By virtue of paragraph 1 of Art. 88 of the Tax Code of the Russian Federation during desk audits tax authorities are guided, among other things, by information received from the registration authorities. The duty of the latter to provide the information necessary for tax control, enshrined in paragraph 4 of Art. 85 of the Tax Code of the Russian Federation, which states that the bodies that register the vehicle are required to report to tax inspections information about these objects and their owners within ten days from the date of the corresponding registration. In addition, this information must be updated annually by February 15 of the year following the reporting year.
Thus, since the tax authorities are not empowered to register and record the vehicle, when checking the correctness of the calculation of transport tax by organizations, they are guided by information received from the registration authorities, since the law does not provide otherwise. This means that in the situation under consideration, the inspectors lawfully charged the taxpayer with additional transport tax up to an annual amount. After all, from the provisions of Ch. 28 of the Tax Code of the Russian Federation it follows that the fact of writing off the vehicle from the balance sheet of the organization, as well as the latter’s lack of obligation to deregister the car with the traffic police, does not matter for calculating the tax.
The subject of this judicial trial became vehicles written off by the organization from the balance due to disposal. Meanwhile, the tax authorities gave the designated position supreme judges universal character and began to apply it, including to transactions for the sale of vehicles. The judicial authorities consider this admissible (see, for example, the Resolution of the First Arbitration Court of Appeal dated January 26, 2016 in case No. А79-4212/2015).
Subsequently, the Judicial Collegium for Economic Disputes of the Armed Forces of the Russian Federation demonstrated a slightly different (less formal) approach to the procedure for calculating transport tax (Determination No. 306-KG14-5609 dated February 17, 2015 in case No. A55-23180 / 2013).
The arbitrators explained: the conclusion of the Presidium of the Supreme Arbitration Court was made taking into account the fact that when disposing (writing off) the vehicle entity under which it is registered, obliged remove it from the register on the specified basis with the traffic police at the place of registration, by submitting the relevant documents, registration marks and Title.
With this the Judicial Board fully agrees. In her opinion, if the current tax legislation links the moment of termination of the calculation and payment of tax with the actions of the taxpayer, on which duty by applying to the competent authorities with an application for deregistration of the relevant object of taxation, then the risks of adverse consequences of not taking such actions (payment of tax from the missing vehicle) lie precisely on the taxpayer. However, such risks can arise only if the taxpayer there was no objective possibility deregister the vehicle.
Based on this definition, the fact of state registration of the vehicle can not treated by the courts as the only condition the taxpayer is liable to pay transport tax. It is also necessary to establish whether the payer must take appropriate actions to stop the tax accrual (in particular, deregister the vehicle with the registration authority). And if these actions are not taken, check if there were any objective obstacles to this (see Resolution of the AC of the ZSO dated 03.03.2016 No. F04-46 / 2015 in case No. A03-13035 / 2015).
The answer is unequivocal: no, it shouldn't. The procedure for registration with the traffic police is regulated by the Administrative Regulations of the Ministry of Internal Affairs on the provision public service on registration of motor vehicles and trailers for them (hereinafter referred to as the Administrative Regulations). In its paragraph 65, only two grounds for deregistration of a vehicle are established:
According to clause 3 of Decree of the Government of the Russian Federation No. 938 and clause 4 of the Rules, the new owner or the person who owns, uses or disposes of the vehicle on his behalf is assigned ten days after purchase.
Violation of the rules of state registration of vehicles is fraught with bringing the organization and its officials to administrative responsibility. According to Part 1 of Art. 19.22 of the Code of Administrative Offenses of the Russian Federation, the amount of penalties is:
As you can see, the current procedure for registering vehicles with the traffic police entails certain unfavorable tax consequences for their former owners. This circumstance more than once served as the basis for the appeal of the latter to the Constitutional Court.
Example - Definition of the Constitutional Court of the Russian Federation dated May 21, 2015 No. 1035-O. According to the applicant, the provisions of Art. 357, 358 and 362 of the Tax Code of the Russian Federation unreasonably impose on persons who have lost the right to own a vehicle the obligation to pay transport tax, despite the fact that the timeliness of making changes to the registration data of such a vehicle depends on the actions of the new owner. Having considered the complaint, the judges came to the conclusion that the said tax norms did not violate the constitutional rights of the applicant - former owner vehicle.
The arbitrators noted: the federal legislator, establishing in Ch. 28 of the Tax Code of the Russian Federation, the transport tax, linked the occurrence of an object of taxation with the fact of registration of a vehicle for a taxpayer. Meanwhile, the Administrative Regulations provide the possibility of deregistration of the vehicle at the request of the previous owner in the event that the new owner fails to fulfill the obligation to make changes to the registration data within ten days from the date of purchase of the car and provided that the registration of this car for the new owner is not confirmed.
Indeed, clause 60.4 of the Administrative Regulations establishes that the submission to the registration authority by the seller of the car of an application and documents on the conclusion of a transaction aimed at its alienation is the basis for terminating the registration of the vehicle for this person.
Thus, the judicial authorities regard the actions of the former owner of the vehicle to deregister it with the traffic police as a right, not an obligation. Moreover, he can use this right only when certain events occur.
Paragraph 5 of the Rules stipulates that vehicle owners obliged, in particular, to change the registration data in case of expiration of the temporary registration period, disposal of the vehicle, change of owner (ownership). The norm does not specify which owners (new or former) are in question. We believe that here we mean buyers - new owners of the vehicle, because sellers - former owners after the alienation of the car, they cease to be such. There are no other obligations under the Rules.
Thus, the former owner, in principle, is not obliged to track the fate of the car he sold, to control the fulfillment by the new owner of the obligation to re-register it with the traffic police. But in this case, negative tax consequences may arise for the seller, because he will remain a transport tax payer as long as he is listed as the owner of the vehicle in the registration authorities, regardless of the fact that it has not been available for a long time.
To avoid such risks, the Ministry of Internal Affairs advises motorists to re-register the vehicle in the traffic police department immediately at the time of its sale. Moreover, now this can be done in any region of the country - regardless of the place of residence of the former and new owner of the car (see question 3 of the Clarification of the Ministry of Internal Affairs of Russia dated 10/17/2013 "On the application of the provisions of the administrative regulations for the registration of vehicles").
The legal position set forth in this definition was brought to the attention of the Federal Tax Service by the territorial tax authorities for use in their work by Letter No. SA-4-7/ dated July 17, 2015 [email protected]
These are persons directly involved in the organization and holding of the Olympic and Paralympic Games held in Russia in 2014, as well as the World Cup, which will be held in 2018.
Among the vehicles that are not subject to taxation, there are, in particular, special vehicles for the disabled, received (purchased) through the social security authorities; agricultural machinery used for its intended purpose by agricultural producers; vehicles that are stolen.
The legal position set forth in this definition was brought to the attention of the Federal Tax Service by the territorial tax authorities for use in their work by Letter No. SA-4-7/ dated July 17, 2015 [email protected]
Approved by Order of the Ministry of Internal Affairs of Russia dated 07.08.2013 No. 605, effective from 10/15/2013.
Annex 1 to the Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001.
Decree of the Government of the Russian Federation of August 12, 1994 No. 938 “On the state registration of motor vehicles and other types of self-propelled equipment on the territory of the Russian Federation”.
Persons on whom a vehicle recognized as an object of taxation is registered are recognized. However, there are a number of exceptions to this rule. And not so long ago this list was expanded.
In accordance with Art. 357 of the Tax Code (hereinafter referred to as the Code), transport tax payers are persons who, in accordance with the legislation of the Russian Federation, have registered vehicles that are the object of taxation. Accordingly, from the moment of state registration of the car in the traffic police, the organization is recognized as a transport tax payer.
In their explanations, the regulatory authorities have repeatedly drawn the attention of taxpayers to the fact that the obligation to pay transport tax is made dependent on, and not on its actual presence or use. The termination of the collection of transport tax is provided for by the Code in the event of deregistration of the vehicle in the registration authorities. There are no other grounds for stopping the collection of transport tax (with the exception of theft of the vehicle or the emergence of the right to a tax benefit) January 2012 N 03-05-06-04 / 09, March 24, 2011 N 03-05-06-04 / 123, Federal Tax Service of Russia dated January 27, 2012 N BS-3-11 / 241, etc. .d.).
Thus, in the general case, as long as a car is registered for an organization, in relation to this vehicle it is recognized as a payer of transport tax with all that is called the consequences. In this case, you will have to pay tax and submit reports to the IFTS according to general rules.
However, there is an exception to this rule, which, in principle, we have already named. We are talking about a situation where a car registered to a company was stolen. Subparagraph 7 of paragraph 2 of Art. 358 of the Code expressly provides that the objects of taxation for the transport tax are not wanted vehicles. However, everything is not so simple. In accordance with this rule, in order to stop accruing transport tax, it is necessary that the fact of theft be documented by an authorized body.
By virtue of clause 17.4 of the Guidelines for the application of Ch. 28 of the Code in the event of theft (theft) of a vehicle, taxpayers submit to tax authority a document confirming the fact of its theft (return). Such is issued by the bodies of the Ministry of Internal Affairs of Russia (GUVD, ATS, ATC, etc.), carrying out work on the investigation and disclosure of crimes, including theft (theft) of vehicles.
The Ministry of Finance of Russia in the Letter of August 9, 2013 N 03-05-04-04 / 32382 explained that the collection of tax in relation to a vehicle that is stolen is terminated starting from the month following the month in which the theft was committed. A document confirming the fact of theft may be a certificate of theft, which is issued by the authorities involved in the investigation and disclosure of theft (theft) of vehicles.
At the same time, officials noted that in addition to the mentioned certificate, the fact of hijacking can also be confirmed by a certificate of initiation of a criminal case. And if the month in which the car was stolen is impossible to determine for one reason or another, then the collection of transport tax is terminated from the month following the month in which the criminal case was initiated.
Example 1. In February 2015, a car was stolen from Romashka LLC. This fact is confirmed by the certificate of the Ministry of Internal Affairs. In June 2015, the car was found and returned to the community.
Since, when calculating the transport tax, the month of theft and the month of the return of the vehicle are included in the period of its stay with the taxpayer, the transport tax for 2015 should be calculated taking into account the coefficient equal to 0.75 (9 months : 12 months).
It must be taken into account that a stolen vehicle is not subject to transport tax only during the period of its search. Moreover, if the search period, which, alas, is quite common in practice, stretches for several years, then the fact that the car is wanted must be confirmed annually, up to deregistration of the stolen vehicle.
In this regard, it seems appropriate to remove the "missing" car from the register so that the tax authorities do not have "unnecessary" questions. Such an opportunity is provided for in paragraph 5 of the Rules for the registration of motor vehicles and trailers for them in the State Inspectorate for Road Safety of the Ministry of Internal Affairs of the Russian Federation, approved by Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 N 1001.
Example 2. A certificate issued by the Ministry of Internal Affairs confirms that in February 2015, a car was stolen from Gvozdika LLC. Suppose that by the end of the year this vehicle will not be found. In this case, the transport tax is paid for 2015 with a coefficient of 0.1667 (2 months : 12 months).
Note! For the purpose of stopping the collection of transport tax, it is necessary to submit to the tax authority a certificate confirming the fact of theft. That is, for example, a copy of the application submitted to the Ministry of Internal Affairs that the vehicle was stolen is not enough in such situations. After all, such a statement is one-sided and does not directly confirm the fact of hijacking (see, for example, Resolutions of the FAS of the Ural District of September 3, 2013 N F09-6557 / 13, FAS of the North Caucasus District of October 31, 2011 N A15- 2503/2010 etc.).
We also note that both the original certificate of theft and its copy can be submitted to the tax authority. The difference is that, having received a copy, the tax authorities will send a request to the authority that issued this certificate to make sure that the fact of theft really takes place (see Letter dated May 13, 2015 N BS-3-11 / [email protected]).
Until recently, the list of cases where a taxpayer could “save” on transport tax in relation to a vehicle registered to him was limited to only three situations (see, for example, Letter of the Federal Tax Service of Russia dated January 27, 2012 N BS-3-11 / 241 ):
The Ministry of Finance of Russia in the Letter dated May 6, 2015 N 03-05-06-04 / 26019 also indicated that there are no other grounds for stopping the collection of transport tax by the Code. At the same time, officials noted that if it is impossible to pay the tax on time and if there are grounds provided for in paragraph 2 of Art. 64 of the Code, the taxpayer has the right to apply to the authorized body with an application for a deferral or installment plan for tax payment.
In the same time arbitrage practice is not limited to a literal interpretation of the norms of Ch. 28 of the Code.
The fact is that, as we have already said, the payers of the transport tax are persons on whom vehicles that are the object of taxation are registered in the prescribed manner. It turns out that in order not to pay transport tax, you simply do not need to register the car. That's real savings for you.
Of course, the tax authorities do not agree with this approach (that is, in this part, the inspectors read the provisions of the Code with a reservation). And on this issue, their courts support. Thus, the Supreme Court of the Russian Federation, in Ruling No. 301-KG14-2926 of October 29, 2014, indicated that the norms of tax legislation establishing the object of transport taxation are designed for a conscientious taxpayer who performs the duties of state registration of vehicles. And positive consequences in the form of the absence of the obligation to pay transport tax are impossible for an unscrupulous taxpayer.
Thus, the lack of vehicle registration is not at all a reason not to pay transport tax. It all depends on why the car was not registered on time. And if in this case the fault of the taxpayer takes place (intentionally did not register the vehicle with the traffic police), then you will have to pay in full.
On the other hand, suppose that due to certain circumstances, the organization, on the contrary, cannot deregister the car, for example, there are some legal obstacles. Do I need to pay transport tax on this vehicle under such circumstances?
The Supreme Court of the Russian Federation in the Ruling of February 17, 2015 in case N 306-KG14-5609 in this part indicated that in the case when the current tax legislation connects the moment of the occurrence of the obligation to pay tax or the termination of such obligation with the actions of the taxpayer and the latter is assigned the obligation, among other things, to apply to the competent authorities with an application for registration or deregistration of the relevant object of taxation, that is, registration is of a declarative nature, the risks of adverse consequences of not taking such actions lie with the taxpayer, but ...
At the same time, the judges ruled in favor of the taxpayer. In the case under consideration, the company did not have the opportunity to deregister the vehicle simply because the necessary documents were not issued by another government agency ... and also for a good reason. That is, in fact, the taxpayer was held hostage by the situation. He is forced to pay tax on a vehicle that he, in fact, no longer has (there was an accident), only on the grounds that this vehicle has not been deregistered. Moreover, the taxpayer cannot remove it from the register, since in this particular case it did not depend on him.
It is noteworthy that this definition Supreme Court RF N 306-KG14-5609 is contained in the Review of decisions of the Armed Forces, which the Federal tax service sent by Letter dated July 17, 2015 N СА-4-7 / [email protected] for the information of the tax authorities "on the ground" so that they use it in their work. This allows us to conclude that the Federal Tax Service has finally agreed that not only the fact of registration of the vehicle for the taxpayer, but also objective circumstances that allow or, conversely, prevent him from deregistering the vehicle, are of paramount importance.
Thus, in fact, the Federal Tax Service (not without the help of the Supreme Court) recognized a common truth: in the absence of the taxpayer's fault that the car was not deregistered, he does not have an obligation to pay transport tax in relation to it. However, do not forget that in any case, you will have to document the moment when the vehicle actually dropped out of the transport tax base.
October 2015
