Who is who
Experienced accountants and economists remember what exists in the term: tax agents and tax collectors.
Let's see what the similarities and differences are. The concept of “tax agent” is disclosed in the Tax Code of the Russian Federation - Article 24 is devoted to this. This is a person who, in accordance with the requirements of the law, is obliged to calculate and withhold a fiscal payment from the taxpayer, as well as transfer the withheld amounts to the budget of the Russian Federation at the time specified by law.
Until 2007, the concept of “tax collector” existed in taxation practice. They were recognized as persons authorized to collect funds for fiscal payments from taxpayers. Their rights and obligations were regulated by Article 25 of the Tax Code of the Russian Federation. As of January 1, 2007, this article ceased to apply. Currently, the concept of “tax collector” is not used in the legislation of the Russian Federation.
Tax rates
The Tax Code of the Russian Federation provides not one, but five current tax rates: 9%, 13%, 15%, 30% and 35%, of which only the tax rate of 13% is general, and all the rest are special, the application of which depends on the tax status individual and the type of income received. At the same time, the maximum rate of 35% is taxed on the income of an individual in the form of prizes, lottery winnings, interest received on ruble deposits in banks, etc. As for individual entrepreneurs, the amount of tax to be withheld and paid to the budget is calculated at a rate of 13%, on a monthly accrual basis from the beginning of the tax period. In addition, the Tax Code of the Russian Federation provides for the possibility of offsetting the amount of tax withheld in previous months of the current tax period. The personal income tax itself is withheld by the individual entrepreneur - the tax agent from the taxpayer's income directly when paying wages or remuneration. In this case, the date of receipt of wages is considered to be the last day of the month for which it was accrued, and the date of receipt of remuneration under a civil contract is the day of its payment. Considering that personal income tax is generally withheld from any funds, when paying income in kind, tax is withheld upon the first payment of funds in the form of vacation pay, wages, etc.
Rights and obligations
According to the Tax Code of the Russian Federation, tax agents are persons who have equal rights with taxpayers. But their responsibilities are specifically spelled out in paragraph 3 of Art. 24 Tax Code of the Russian Federation. They are obliged:
- without errors or violations of deadlines, withhold taxes from payments to taxpayers and transfer them to the budget of the Russian Federation;
- inform in writing about the impossibility of making a withholding and about the amount of the taxpayer’s debt;
- for each taxpayer, keep records of paid income, calculated, withheld and transferred to the budget of the Russian Federation of fiscal fees;
- provide appropriate reporting necessary for control to regulatory authorities;
- keep documents related to the calculation of payments to the budget for at least four years.
Responsibilities of a tax agent – Article 230 of the Tax Code of the Russian Federation
Tax legislation establishes what a personal income tax agent must do. Article number 230 of the Tax Code of the Russian Federation contains a small but comprehensive list from which the responsibilities of a tax agent for personal income tax are visible:
- calculate tax on payments to individuals;
- withhold tax;
- transfer tax amounts to the budget;
- within the prescribed period, report on the calculated, withheld and transferred to the budget income tax in forms 2-NDFL and 6-NDFL.
It is important to perform all the above operations correctly and within the time limit established in the Tax Code of the Russian Federation. ConsultantPlus experts explained in detail how to do this. Full trial access to K+ is available for free. This ready-made solution will help you correctly calculate personal income tax, this material will tell you about the procedure for withholding personal income tax, and this instruction will introduce you to the nuances of transferring personal income tax to the budget.
To fulfill his duties, a tax agent must be able to withhold tax. Payment of tax amounts must be made exclusively on payments to individuals. A tax agent has no right to pay taxes from his own funds. It is also prohibited to include clauses on the payment of tax amounts at the expense of the tax agent for personal income tax in the terms of an employment or civil contract (clause 9 of Article 226 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated July 11, 2017 No. 03-04-06/43981, dated August 30 .2012 No. 03-04-06/9-263). It is also impossible to shift the payment of personal income tax from the agent to the taxpayer himself.
However, the Supreme Court believes that it is impossible to punish a taxpayer for early payment of income tax (see resolution No. 305-KG17-15396 dated December 21, 2017).
The Ministry of Finance allowed the overpayment of personal income tax to be counted against future payments for this tax, but with restrictions. Read more here.
Also, starting from 2022, the tax agent has the right to pay personal income tax from his own funds in the case where the tax was additionally assessed during the audit. See details here.
Types of tax agents
The Tax Code of the Russian Federation does not directly contain such a concept. Everyone who interacts with a country's tax system acts either as a tax agent or as a taxpayer. As a rule, organizations can be both tax agents and taxpayers. That is, in addition to calculating payments to the budget from their income and operations, companies very often have the obligation to calculate and transfer fiscal fees to the budget for other payers.
An organization can perform agency functions for the following fiscal fees:
- personal income tax;
- VAT;
- income tax.
Let's look at each of them in more detail.
What are the responsibilities of a tax agent?
The list of obligations provided for fulfillment by the tax agent is not long, but it is worth observing.
1. Calculate personal income tax on payments to employees, on time and in a timely manner
2. withhold tax from them, and also notify the tax authority in writing about the impossibility of calculating tax, no later than a month from the day when this fact became known
3. transfer 13% to the budget
4.report tax every quarter in form 6NDFL and once a year in form 2NDFL
Important!! In order for an organization to be able to withhold income tax, it must be paid from employee payments and nothing else. It is prohibited by law to make any changes to employment contracts regarding the payment of this tax on the income of an individual.
Tax agents are organizations and individual entrepreneurs that are registered with the tax authority in Russia and purchase goods from foreigners, who, in turn, are not registered with the tax authorities in Russia, and also if intermediary relations arise between them.
Important! In this case, they are required to act as a tax agent, regardless of whether they are a VAT payer.
2) In the case when government agencies lease federal property, they are recognized as lessees and also act as a tax agent.
3) When an enterprise sells confiscated property, for example a bank, or property without an owner, it must also act as a tax agent.
Personal income tax
The obligation to withhold personal income tax arises for any organization. When paying any income to an individual who is not an individual entrepreneur, the company is obliged to withhold personal income tax. Such payments include:
- all remunerations under the employment contract;
- payments under construction contracts and other civil contracts;
- material aid;
- payment for property rental.
The rules for calculating, withholding and transferring personal income tax are prescribed in Chapter 23 of the Tax Code of the Russian Federation. The organization, in addition, is obliged to maintain registers on income paid to individuals and personal income tax amounts withheld and provide reporting to the Federal Tax Service:
- report 6-NDFL - quarterly;
- 2-NDFL certificates - annually.
A special case is brokerage activities. A separate article 226.1 of the Tax Code of the Russian Federation is devoted to the person who withholds personal income tax (broker - tax agent). The broker is obliged to calculate, withhold and transfer to the personal income tax budget when paying income from operations with securities and other derivative financial instruments when carrying out these operations in the interests of the taxpayer on the basis of agreements: for brokerage services, trust management, orders, commissions or agency.
Who is the tax agent for personal income tax?
The following persons are recognized as tax agents for personal income tax (clause 1 of Article 226 of the Tax Code of the Russian Federation):
- Russian organizations;
- individual entrepreneurs;
- notaries and lawyers engaged in private practice or having law offices;
- separate divisions of foreign companies.
The tax base for personal income tax is payments to taxpayers at the expense of the tax agent (clause 9 of Article 226 of the Tax Code of the Russian Federation, letters of the Federal Tax Service of the Russian Federation dated 02/06/2017 No. GD-4-8/, Ministry of Finance dated 12/15/2017 No. 03-04-06/84250 ).
If a company hires personnel under an employee supply agreement, then the functions of a tax agent for personal income tax remain with the executing organization, since it is the organization that makes direct payments to individuals under employment contracts (letter of the Ministry of Finance of Russia dated November 6, 2008 No. 03-03-06/8/618 ).
Individuals who are not registered as individual entrepreneurs who make payments in favor of individuals who are employees are not recognized as tax agents. In this case, recipients of funds must independently calculate and pay personal income tax (letter of the Ministry of Finance of Russia dated July 13, 2010 No. 03-04-05/3-390).
The list of income subject to personal income tax is presented in Art. 208 Tax Code of the Russian Federation.
Read more about the features of calculating and withholding income tax in the article “Calculation of personal income tax (personal income tax): procedure and formula.”
VAT
An organization can become a tax agent for VAT, even if it applies the simplified tax system or UTII, if it performs the following operations:
- acquires or becomes a lessee of state or municipal property;
- will purchase goods from a foreign seller who is not a taxpayer in the Russian Federation.
In this case, the company must draw up an invoice and reflect the transaction in the VAT return by filling out sections 2 and 9. The company has the right to deduct the withheld and transferred agent VAT in the quarter when the goods (work, services) were registered and the withheld VAT is transferred to the budget. But he has the right to do this only if he is a VAT payer.
Is it necessary to reflect the additional tax assessed by the inspectorate in forms 6-NDFL and 2-NDFL?
According to the Federal Tax Service, the amounts of personal income tax paid by the tax agent for the taxpayer at his own expense, when the inspectorate additionally accrues such amounts based on the results of a tax audit, taking into account the provisions of clause 5 of Art. 208 of the Tax Code of the Russian Federation (as amended by Federal Law No. 325-FZ) are not subject to reflection in information on the income of individuals of the expired tax period and the amounts of tax calculated, withheld and transferred to the budget system of the Russian Federation (in Form 2-NDFL) (Letter dated 10.01. 2020 No. BS-4-11/ [email protected] ).
Accordingly, such amounts of personal income tax paid by the tax agent for the taxpayer at his own expense are also not shown in the calculation of the amounts of personal income tax calculated and withheld by the tax agent (in Form 6-NDFL). Hello Guest! Offer from "Clerk"
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Income tax
An organization becomes a tax agent for this tax if it pays:
- dividends from another organization;
- interest on state (municipal) securities to other organizations;
- income of a foreign organization from the sale or rental of real estate on the territory of the Russian Federation, from international transportation. A Russian organization has this obligation if the recipient of the income does not have a representative office in the Russian Federation.
The company must notify the Federal Tax Service about the paid income and withheld tax by submitting:
- income tax return - when paying dividends or interest to a Russian organization;
- tax calculation (Order of the Federal Tax Service dated March 2, 2016 No. ММВ-7-3/ [email protected] ) - when paying income to a foreign organization.
