Article 226 of the Tax Code of the Russian Federation. Features of tax calculation by tax agents

Clause 1 of Article 226 of the Tax Code of the Russian Federation

Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received the income specified in paragraph 2 of this article, are required to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Article 224 of this Code, taking into account the specifics provided for in this article.
Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers. (As amended by Federal Laws dated December 29, 2000 No. 166-FZ; dated December 31, 2002 No. 187-FZ; dated July 27, 2006 No. 137-FZ; dated July 24, 2007 No. 216-FZ) The persons specified in paragraph one of this paragraph are referred to as this chapter by tax agents. (As amended by Federal Law No. 137-FZ dated July 27, 2006)

Clause 2 of Article 226 of the Tax Code of the Russian Federation

Calculation of amounts and payment of tax in accordance with this article are carried out in relation to all income of the taxpayer, the source of which is a tax agent, with the offset of previously withheld tax amounts (with the exception of income in respect of which tax amounts are calculated in accordance with Article 214.7 of this Code), and in cases and in the manner provided for in Article 227.1 of this Code, also taking into account the reduction by the amount of fixed advance payments paid by the taxpayer.

Peculiarities of calculation and (or) payment of tax on certain types of income are established by Articles 214.3, 214.4, 214.5, 214.6, 214.7, 226.1, 227 and 228 of this Code.

(Clause as amended by Federal Law dated November 27, 2017 No. 354-FZ)

What tax agents are not allowed to do

The interaction of tax agents with staff and tax authorities should be carried out precisely according to the scheme “withheld personal income tax from wages → paid wages minus personal income tax → transferred personal income tax to the federal budget → reported to the Federal Tax Service of Russia about the time and amount of withholding”

. Tax agents, whether organizations or individual entrepreneurs, do not have the right to perform the following actions:

• pay personal income tax from your own funds (except for cases where personal income tax was additionally assessed after a tax audit);
• undertake an obligation to fully/partially pay personal income tax at your own expense and include such clauses in employment agreements or civil law agreements (civil law);
• shift the responsibility for calculating and paying tax to the employee (personal income tax payer).

Clause 3 of Article 226 of the Tax Code of the Russian Federation

Tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with Article 223 of this Code, on an accrual basis from the beginning of the tax period in relation to all income (except for income from equity participation in an organization, as well as income in respect of which the amounts are calculated tax is carried out in accordance with Article 214.7 of this Code), in respect of which the tax rate established by paragraph 1 of Article 224 of this Code, accrued to the taxpayer for a given period, is applied, with the offset of the amount of tax withheld in previous months of the current tax period. (As amended by Federal Laws dated May 2, 2015 No. 113-FZ; dated November 27, 2017 No. 354-FZ)

The amount of tax in relation to income in respect of which other tax rates are applied, as well as to income from equity participation in an organization, is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

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

Clause 4 of Article 226 of the Tax Code of the Russian Federation

Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon actual payment, taking into account the specifics established by this paragraph. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

When paying a taxpayer income in kind or receiving income in the form of a material benefit, the tax agent withholds the calculated amount of tax from any income paid by the tax agent to the taxpayer in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of income paid in cash. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

The provisions of this paragraph do not apply to tax agents that are credit organizations with regard to the withholding and payment of tax amounts on income received by clients of these credit organizations (except for clients who are employees of these credit organizations) in the form of material benefits determined in accordance with subparagraphs 1 and 2 paragraphs 1 of Article 212 of this Code. (Paragraph introduced - Federal Law dated July 19, 2009 No. 202-FZ)

There's an exception to the rule

Federal Law No. 325-FZ of September 29, 2019 “On Amendments to Parts One and Two of the Tax Code of the Russian Federation” (hereinafter referred to as Federal Law No. 325-FZ) introduced changes, in particular, to paragraph 5 of Art. 208 and paragraph 9 of Art. 226 Tax Code of the Russian Federation. The innovations came into force on January 1, 2022.

According to paragraph 9 of Art. 226 of the Tax Code of the Russian Federation in the new edition, the tax authority has the right to make additional assessments (collection) of personal income tax based on the results of a tax audit in the event of unlawful non-withholding (incomplete withholding) of tax by a tax agent at the expense of the tax agent’s own funds.

At the same time, based on clause 5 of Art. 208 of the Tax Code of the Russian Federation in the new edition, personal income tax amounts paid by a tax agent for a taxpayer at his own expense, when additionally accrued (collected) by the tax authority of such amounts based on the results of a tax audit in the event of their unlawful non-withholding (incomplete withholding), are not recognized as income of an individual.

Accordingly, if the tax agent has not fully withheld personal income tax from an individual, then based on the results of the audit, tax will be charged to him, and the tax agent will have to pay it at his own expense.

Clause 5 of Article 226 of the Tax Code of the Russian Federation

If it is impossible to withhold the calculated amount of tax from the taxpayer during the tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding the tax, about the amounts of income from which tax has not been withheld and the amount of tax not withheld. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

The form of notification about the impossibility of withholding tax, the amount of income from which tax was not withheld, and the amount of unwithheld tax, as well as the procedure for submitting it to the tax authority, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

Tax agents are Russian organizations with separate divisions, organizations classified as the largest taxpayers, individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) patent taxation system, report the amounts of income from which tax is not withheld and the amount of unwithheld tax in a manner similar to the procedure provided for in paragraph 2 of Article 230 of this Code. (Paragraph introduced - Federal Law dated 02.05.2015 No. 113-FZ)

(Clause as amended by Federal Law dated July 19, 2009 No. 202-FZ)

Withholding personal income tax from an employee in case of tax payment at the expense of a tax agent

So, if, based on the results of the audit, the tax agent paid personal income tax to the budget at the expense of his funds, then there is a great temptation to withhold these amounts from the individual. Especially if the employee is still working and receiving income from this tax agent.

But tax officials believe that there is no need to withhold anything from anyone in this case (Letter dated January 10, 2020 No. BS-4-11 / [email protected] ). They justify this with the following rules.

According to paragraphs. 9 clause 3 art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax is considered fulfilled by the taxpayer from the day the tax agent presents to the bank an order to transfer funds to the budget system of the Russian Federation to the appropriate account of the Federal Treasury to pay the tax based on the results of a tax audit in the event of unlawful non-withholding (incomplete withholding) of the corresponding amounts of tax by a tax agent from the tax agent's bank account if there is a sufficient cash balance on it on the day of payment.

Disposition of clause 5 of Art. 208 of the Tax Code of the Russian Federation provides for an exception to the rules when, in the event of additional assessment (collection) of tax by the tax authority based on the results of a tax audit at the expense of the tax agent’s own funds, such personal income tax amounts are not recognized as income of an individual.

It follows from the above rules that after the tax agent has paid such personal income tax amounts for the taxpayer at his own expense, there are no grounds for the tax agent to further withhold personal income tax amounts from the income of an employee with whom the employment relationship has not been terminated. This is the opinion of the Federal Tax Service.

Clause 6, Article 226 of the Tax Code of the Russian Federation

Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day of payment of income to the taxpayer.

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

(Clause as amended by Federal Law dated May 2, 2015 No. 113-FZ)

What are the responsibilities of a personal income tax agent in 2022?

The list of all obligations imposed on the tax agent is presented in the text of Art. 230 Tax Code of the Russian Federation. Tax agents are required to do only 4 things:

1. Calculate the amount of personal income tax on all payments made by the tax agent himself in favor of individuals.
2. Withhold tax at the current tax rate on personal income.
3. Timely and in full transfer the withheld personal income tax amounts to the federal budget.
4. Provide timely reports on forms 2-NDFL and 6-NDFL on the amounts of personal income tax withheld from staff salaries and transferred to the treasury.

Important!

The tax agent can count the overpayment of personal income tax against future personal income tax payments, but there are restrictions established by the Russian Ministry of Finance.

Clause 7, Article 226 of the Tax Code of the Russian Federation

The total amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of whom it is recognized as a source of income, is paid to the budget at the place of registration (place of residence) of the tax agent with the tax authority, unless a different procedure is established by this paragraph. (As amended by Federal Laws dated December 29, 2000 No. 166-FZ; dated July 27, 2010 No. 229-FZ; dated May 2, 2015 No. 113-FZ)

Tax agents - Russian organizations specified in paragraph 1 of this article that have separate divisions are required to transfer calculated and withheld tax amounts to the budget both at their location and at the location of each of their separate divisions. (As amended by Federal Laws dated December 29, 2000 No. 166-FZ; dated July 27, 2010 No. 229-FZ)

The amount of tax payable to the budget at the location of a separate division of the organization is determined based on the amount of income subject to taxation accrued and paid to employees of this separate division, as well as based on the amount of income accrued and paid under civil contracts concluded with by individuals of a separate division (authorized persons of a separate division) on behalf of such an organization. (As amended by Federal Law No. 327-FZ dated November 28, 2015)

Tax agents are individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) a patent tax system, from the income of employees are required to transfer calculated and withheld tax amounts to the budget at the place of registration in connection with the implementation of such activities. (Paragraph introduced - Federal Law dated 02.05.2015 No. 113-FZ)

Payment of personal income tax by separate divisions

For organizations that have separate divisions, a special procedure for paying personal income tax applies.

From the income that was received by employees of a separate division, personal income tax must be transferred according to the details of the tax office in which this division is registered (paragraph 3, paragraph 7, article 226 of the Tax Code of the Russian Federation). This procedure applies both to employees working under employment contracts and to employees who work under civil contracts (letter of the Ministry of Finance of Russia dated November 22, 2012 No. 03-04-06/3-327).

If an employee works in the head office of an organization, and part-time in its separate division, transfer the personal income tax amount separately:

• from income received at the head office to the tax office at the location of the organization;

• from income received in a separate division to the tax office at the location of this division.

If during a month an employee works in several separate departments, then personal income tax on his income should be transferred to the location of each of them. Moreover, this must be done taking into account the salary accrued to the employee for the time actually worked in each department. This was stated in the letter of the Ministry of Finance of Russia dated September 19, 2013 No. 03-04-06/38889. If an employee was sent to a separate division of the organization on a business trip, then personal income tax on his income should be transferred to the location of the organization. This conclusion follows from the letter of the Federal Tax Service of Russia dated May 15, 2014 No. SA-4-14/9323.

An example of calculating and transferring personal income tax from the salary of an employee who worked in different separate divisions of the organization

In September, storekeeper Bespalov worked in three divisions of Alpha LLC: - from September 2 to 10 - in the head office of the organization; – from September 11 to 20 – in a separate unit located in Balashikha, Moscow region; – from September 23 to 30 – in a separate unit located in the city of Pokrov, Vladimir region (Alfa-1 enterprise).

Bespalov's salary is 45,000 rubles. The employee is not entitled to standard tax deductions. Salaries are calculated by the accounting department of the Alpha head office. The amount of personal income tax from Bespalov’s salary for September amounted to 5,850 rubles. (RUB 45,000 × 13%). In order to correctly transfer the tax to the location of each division of the organization, the Alpha accountant distributed the amount of personal income tax in proportion to the salary accrued to Bespalov for the time actually worked in each division.

There are 21 working days in September. The amounts of personal income tax that Alpha must transfer to the budgets at the location of its divisions are: - head office (Moscow) - 1950 rubles. (5850 RUR: 21 days × 7 days); – subdivision in Balashikha – 2229 rubles. (5850 RUR: 21 days × 8 days); – division in the city of Pokrov (enterprise “Alfa-1”) – 1671 rubles. (5850 RUR: 21 days × 6 days).

The head office of Alpha is registered with the Federal Tax Service of Russia No. 43 in Moscow. TIN of the organization - 7743123456, checkpoint - 774301001. OKTMO for paying taxes - 45338000.

In Pokrov, the division (enterprise "Alfa-1") is registered with the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 11 for the Vladimir Region. At the place of registration of the Alpha division, KPP 332101001 was assigned. OKTMO for paying taxes - 17646120. The division is allocated to a separate balance sheet, has its own current account and the authority to transfer taxes from the head office.

In Balashikha, at the place of registration of the Alpha division, KPP 500101108 was assigned. OKTMO for paying taxes - 46704000. The division does not have a separate current account and authority to pay taxes from the head office. Consequently, personal income tax for employees working in this division is transferred by the head office, indicating the Inspectorate of the Federal Tax Service of Russia for the city of Balashikha as the recipient.

Payment orders for the transfer of personal income tax indicate the following details of payers and recipients:

Personal income tax on the income of a homeworker must be transferred to the location of either the head office of the organization or a separate division that can be recognized as a homeworker’s workplace. Whether the homeworker should be registered for tax purposes is determined by the tax office based on the terms of the employment contract concluded between the organization and the homeworker. Such clarifications are contained in letters of the Ministry of Finance of Russia dated May 23, 2013 No. 03-02-07/1/18299 and dated March 18, 2013 No. 03-02-07/1/8192, Federal Tax Service of Russia dated January 18, 2011 No. PA-4-6/449.

But personal income tax on the income of remote employees must be transferred to the location of the organization’s head office. Unlike homeworkers, separate units cannot arise at the place of work of remote employees. This follows from the provisions of Article 312.1 of the Labor Code of the Russian Federation and is confirmed by letter of the Ministry of Finance of Russia dated December 1, 2014 No. 03-04-06/61300.

An organization that has several separate divisions opened in one municipality, but in the territories of different tax inspectorates, can register for taxation at the location of one of them (paragraph 3, paragraph 4, article 83 of the Tax Code of the Russian Federation). Personal income tax can be transferred to this tax office for all separate divisions located on the territory of the municipality. If an organization is registered at the location of each of its separate divisions, personal income tax must be transferred to the place of registration of each of them.

The procedure for transferring personal income tax in the cities of Moscow and St. Petersburg, which have intra-city municipalities that may have independent local budgets, has some peculiarities. Organizations registered in these cities can also take advantage of the provisions of paragraph 3 of paragraph 4 of Article 83 of the Tax Code of the Russian Federation and register at the location of one of their separate divisions. However, such organizations must transfer personal income tax to local budgets at the location of each specific separate division, even if they are located in territories beyond the jurisdiction of the tax inspectorate with which the organization is registered. That is, in payment documents it is necessary to indicate OKTMO of the intra-city municipality at the actual location of the separate subdivision.

Such clarifications are contained in letters of the Ministry of Finance of Russia dated February 21, 2011 No. 03-04-06/3-37, dated July 1, 2010 No. 03-04-06/8-138, dated March 15, 2010 No. 03- 04-06/3-33 and the Federal Tax Service of Russia dated August 29, 2012 No. ZN-4-1/14304 and dated August 3, 2011 No. AS-4-3/12547.

Situation: can a separate division of an organization independently transfer to the budget the personal income tax withheld from the employees working in it?

Yes maybe.

To do this, the head office of the organization must assign the duties of a tax agent for personal income tax to a separate unit. The transfer of such powers can be formalized by a power of attorney, which is usually issued to the head of a separate division (clause 3 of Article 55 of the Civil Code of the Russian Federation). Based on this power of attorney, the separate division will calculate, withhold and transfer to the budget (at its location) the personal income tax withheld from the employees working in it. In addition, the unit will be required to maintain records of income paid. This follows from the provisions of paragraphs 4 and 7 of Article 226 and Article 230 of the Tax Code of the Russian Federation. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated December 3, 2008 No. 03-04-07-01/244.

For organizations that have several separate divisions of the organization located in one municipality (for Moscow and St. Petersburg - on the territory of one city) and subordinate to different tax inspectorates, a special procedure for paying personal income tax applies.

An example of transferring personal income tax to the budget, withheld from the income of employees of a separate division of the organization

The head office of Alpha LLC is located in Moscow. The organization has a separate division in Astrakhan. It is registered with the Federal Tax Service of Russia for the Kirov region of Astrakhan. The head of the unit was issued a power of attorney to perform the duties of a tax agent for personal income tax.

In March, employees of the separate division received a salary in the amount of 200,000 rubles. The amount of personal income tax withheld was 26,000 rubles. Salaries were paid on April 5. On the same day, personal income tax was transferred to the budget of Astrakhan from the account of a separate division of the organization. At the end of the year, the division’s accountant submitted a certificate in form 2-NDFL to the tax office for the Kirov district of Astrakhan.

Situation: does the tax inspectorate have the right to fine an organization under Article 123 of the Tax Code of the Russian Federation if the entire amount of personal income tax (including for separate divisions) is transferred to the budget at the location of the organization’s head office?

No, it doesn't.

Paragraph 7 of Article 226 of the Tax Code of the Russian Federation provides that an organization that is a tax agent with separate divisions must transfer the amounts of withheld personal income tax both to the location of the head office of the organization and to the location of each of its separate divisions. However, liability for failure to comply with this procedure is not established by tax legislation. Therefore, if personal income tax is withheld correctly and transferred to the budget in a timely manner, then the tax inspectorate has no grounds for bringing the tax agent to justice under Article 123 of the Tax Code of the Russian Federation. Even if the entire amount of personal income tax was transferred to the budget at the location of the organization’s head office.

The legality of this approach is confirmed by the letter of the Federal Tax Service of Russia dated August 2, 2013 No. BS-4-11/14009 and sustainable arbitration practice (see, for example, resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 24, 2009 No. 14519/08, FAS Moscow District dated January 17, 2011 No. KA-A40/17435-10, dated October 13, 2009 No. KA-A40/10725-09, Central District dated February 13, 2009 No. A64-2317/08-26, Northwestern District dated February 4, 2008 No. A56-29822/2006).

Situation: does the tax office have the right to charge penalties if the entire amount of personal income tax is transferred by an organization to the budget at the location of its head office? The head office and separate divisions are located in different regions of the Russian Federation.

No, you have no right.

Russian organizations that have separate divisions are required to transfer withheld personal income tax amounts both to their location and to the location of each separate division (clause 7 of Article 226 of the Tax Code of the Russian Federation). That is, the tax withheld from the income of an employee of a separate unit must be paid to the budget in the region where this unit is located.

However, a penalty is a sanction that is levied for the fact that the tax is paid late (Article 75 of the Tax Code of the Russian Federation). The legislation does not provide for any other grounds for applying this sanction. Therefore, if the tax agent transferred the personal income tax within the prescribed period, it is unlawful to charge penalties. Even if the transfer violated the order of tax distribution between the budgets of different regions.

Similar clarifications are contained in the letter of the Federal Tax Service of Russia dated April 7, 2015 No. BS-4-11/5717. Representatives of the tax service support their position with established arbitration practice. And most courts believe that the accrual of penalties is possible only if the tax agent has an actual debt to the budget.

If the entire amount of withheld personal income tax (including for separate divisions) is transferred to the location of the organization’s head office, then the organization as a tax agent does not have arrears. Consequently, there are no grounds for accruing penalties. Such conclusions are reflected, for example, in the resolutions of the Federal Antimonopoly Service of the Moscow District dated January 17, 2011 No. KA-A40/17435-10, dated October 8, 2008 No. KA-A40/8752-08, and the Northwestern District dated March 31, 2011 No. A56-94715/2009, dated August 2, 2007 No. A56-12516/2006.

Clause 7.1, Article 226 of the Tax Code of the Russian Federation

For the purposes of this chapter, tax agents are also recognized as Russian organizations that transfer amounts of allowance, salary, wages, and other remuneration (other payments) to military personnel and civilian personnel (federal civil servants and employees) of the Armed Forces of the Russian Federation.

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

(Clause introduced - Federal Law dated November 30, 2016 No. 399-FZ)

Tax agent reporting for personal income tax: 2-NDFL, 3-NDFL, 6-NDFL

Tax agents are required to report to the tax authorities on the amounts of withheld tax on personal income using several types of reporting forms: