All organizations and individual entrepreneurs paying income to individuals are required to withhold personal income tax from this income, since according to paragraphs 1 and 2 of Art. 226 of the Tax Code of the Russian Federation they are recognized as tax agents.
But there are situations when it is not possible to withhold tax on income. For example, when paying a salary in kind or generating income in the form of material benefits (debt forgiveness, giving a gift worth more than 4 thousand rubles). Personal income tax may not be withheld as a result of an error in calculation.
The impossibility of withholding tax and the amount of debt must be reported no later than March 1 of the next year (clause 5 of Article 226 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of the Russian Federation dated March 24, 2017 No. 03-04-06/17225, Federal Tax Service of the Russian Federation dated March 30, 2016 No. BS- 4-11/5443).
A message about the impossibility of withholding tax is Form 2-NDFL with sign “2”.
Notification of the impossibility of withholding personal income tax must be done in the form approved by Order of the Federal Tax Service of the Russian Federation dated October 2, 2018 No. ММВ-7-11/ [email protected]
From the moment of notification, the obligation to pay tax is assigned to the individual, and the organization ceases to perform the functions of a tax agent (letter of the Federal Tax Service of the Russian Federation dated December 2, 2010 No. ШС-37-3/ [email protected] ). The tax must be paid by the taxpayer himself when submitting a personal income tax return to the Federal Tax Service at his location (letter of the Federal Tax Service of the Russian Federation dated August 22, 2014 No. SA-4-7/16692).
Since the deadline is approaching, we decided to talk in more detail about the rules for filling out the 2-NDFL certificate in case of impossibility of withholding tax.
Failure to withhold personal income tax as a result of a calculation error
In case of an error with the calculation, you must withhold tax until the end of the year from the next cash payments to an individual.
If there is no such possibility before the end of the year (for example, an error in the calculations was discovered in December), the individual must be informed about the impossibility of withholding tax and his tax office (Article 216, paragraph 5 of Article 226 of the Tax Code of the Russian Federation).
At the same time, they can be fined for failure to withhold only if the individual had the opportunity to withhold tax when paying income. If there was no such opportunity (for example, the income was paid in kind), then it cannot be held accountable. But if such an opportunity arose before the end of the year, and the tax agent still did not withhold the tax, in this case he also faces a fine (Article 123 of the Tax Code of the Russian Federation, paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).
If personal income tax is not withheld from payments to a dismissed employee upon final settlement with him and no payments were made to him by the end of the year, the organization should also send a message about the impossibility of withholding personal income tax to the inspectorate and this employee (Article 216, paragraph 5 of Article 226 of the Tax Code of the Russian Federation ).
Payment of personal income tax at the expense of the tax agent
Can an employer pay personal income tax for its employee from its own funds?
Until January 1, 2022, the Tax Code directly prohibited the transfer of personal income tax at the expense of organizations and individual entrepreneurs that made payments to individuals. From January 1, 2022, payment of personal income tax at the expense of a tax agent is permitted in the event of additional assessment (collection) of tax based on the results of a tax audit in the event of unlawful non-withholding (incomplete withholding) of tax by the tax agent (clause 9 of Article 226 of the Tax Code of the Russian Federation). The specified norm can be applied, incl. and within the framework of Art. 226.1 Tax Code of the Russian Federation.
At the same time, the norm of paragraph 9 of Art. 226 of the Tax Code of the Russian Federation does not have retroactive force (clause 2 of Article 5 of the Tax Code of the Russian Federation). Therefore, the tax authorities have no grounds for collecting from the tax agent amounts of additional personal income tax, the obligation to withhold, calculate and transfer which arose before January 1, 2022.
Who and how to send a message about the impossibility of retention
The peculiarity of issuing a 2-NDFL certificate when it is impossible to withhold tax is only that:
- in the “Sign” field, code 2 is indicated instead of the usual code 1. Sign “2” means that the 2-NDFL certificate is submitted as a message to the tax office about that income has been paid to an individual, but tax has not been withheld from it (clause 5 of Article 226 of the Tax Code of the Russian Federation);
— in the Appendix “Information on income and corresponding deductions by month of the tax period” the amount of income actually paid, from which tax was not withheld, is reflected in a separate line according to the corresponding income codes;
Section 2 “Total amounts of income and tax based on the results of the tax period” indicates:
- in the “Total amount of income” field - the total amount of income from which tax is not withheld;
- in the “Amount of tax calculated” field - the amount of tax accrued but not withheld;
- in the fields “Tax amount withheld”, “Tax amount transferred”, “Tax amount excessively withheld by the tax agent” - zeros;
- in the field “Amount of tax not withheld by the tax agent” - once again the amount of tax accrued but not withheld.
The form must be sent to:
- an individual from whose income personal income tax is not withheld;
- to the tax authority (clause 5 of article 226 of the Tax Code of the Russian Federation).
A message can be sent to an individual in any way that can confirm the fact and date of sending the message.
The specific method is not defined by tax legislation. We recommend sending it by a valuable letter with a description of the attachment, or handing it in person and receiving a receipt on a copy of the document indicating the date of delivery. The message is sent to the tax authority (clause 5 of Article 226, clause 2 of Article 230, clause 1 of Article 83 of the Tax Code of the Russian Federation):
- organization - at its location, and if the message is submitted in relation to a person working in its separate division - at the location of this division;
- individual entrepreneurs - to the inspectorate at their place of residence, and in relation to employees engaged in activities subject to UTII or PSN - to the tax authority at the place of registration in connection with the implementation of such activities.
The message can be submitted in the form of a paper document (in person or by post with a list of attachments) or in electronic form via telecommunication channels (clause 3 of the Procedure approved by Order of the Federal Tax Service of the Russian Federation dated September 16, 2011 No. ММВ-7-3 / [email protected] ) .
After sending a message to the tax authority in form 2-NDFL with attribute “2”, at the end of the year, in general order, it is necessary to submit a certificate 2-NDFL with attribute “1” (Article 216, paragraph 2 of Article 230 of the Tax Code of the Russian Federation, paragraphs 1.1 clause 1 of the Order of the Federal Tax Service of the Russian Federation dated October 30, 2015 No. ММВ-7-11/ [email protected] , section II of the Procedure for filling out the 2-NDFL certificate, letter of the Federal Tax Service of the Russian Federation dated March 30, 2016 No. BS-4-11/5443).
If the 2-NDFL certificate will be submitted by the successor for the reorganized organization, then in accordance with the changes made by Order of the Federal Tax Service of the Russian Federation dated January 17, 2018 No. ММВ-7-11 / [email protected] , in the “Sign” field he should indicate “4” ( Chapter II of the Procedure for filling out the 2-NDFL certificate).
Preparation of information about the impossibility of withholding personal income tax in “1C: Enterprise Accounting”
Check the following:
1. The program reflects all income received by individuals during the tax period.
2. The program contains information about the right to tax deductions and reflects the actual deductions provided, the amounts of calculated, withheld and transferred tax are calculated and taken into account.
3. Correct filling of personal data of individuals in respect of whom reporting will be submitted. Namely: full name, date of birth, citizenship, code of the type of identity document, its series and number. To check, you can use the Employee Personal Data report ( Salaries and Personnel – HR Reports – Employee Personal Data report
).
4. Relevance of the program release.
We recommend using the Personal Income Tax Analysis by Month
,
Analysis of personal income tax by date of receipt of income
,
Analysis of personal income tax by supporting documents
,
Detailed analysis of personal income tax by employee
(
Salaries and personnel - Salary reports
).
To prepare information in Form 2-NDFL about the impossibility of withholding personal income tax, use the document Certificate 2-NDFL for transmission to the tax authority (section Salaries and Personnel). To prepare reporting information, create a new document using the Create
.
For information about the impossibility of withholding personal income tax, automatic completion is not provided in the program, so the document must be filled out manually.
In the document form, please provide the following information:
Year
– year for which information is provided
Organization
– the organization on behalf of which the information is generated
date
– date of compilation of information
OKTMO/KPP when paying income
– OKTMO code of the location of the organization and the checkpoint of the organization or a separate division of the organization
IN INFS (code)
– four-digit code of the tax authority with which the organization is registered and where it is intended to submit reports.
This code is used to form the file name. By default, for organizations and their separate divisions (allocated to a separate balance sheet), the field is filled in with the Federal Tax Service code, which is indicated in the Organizations
.
For separate divisions (which are not allocated to a separate balance sheet), the Federal Tax Service code is filled in with the code indicated in the Divisions
. If necessary, you can specify an arbitrary code of the Federal Tax Service where the reports are supposed to be sent
Type of certificates
–
On the impossibility of withholding personal income tax
.
If an organization generates information, for example, for a reorganized organization or for a closed separate division, then select in the field - About the impossibility of withholding, for a reorganized organization, closed OP
.
Reorganization
section that appears ; if primary certificate forms are provided, the switch should be set to the Initial
(installed by default)
Signatures
(at the bottom of the form) you must indicate the person responsible for signing the information and his position.
The information can be signed by a tax agent or his authorized representative acting on the basis of a power of attorney. The type of signatory is indicated in the directory Registration with the tax authority
.
If it is selected that the reporting is signed by the Representative
, then additional information about the representative is indicated, then this information is automatically used to substitute the 2-NDFL certificate in printed form and electronic download files.
In this case, in the Certificate 2-NDFL document for transmission to the tax authority,
information about the signatory does not need to be entered (
the Certificate signed
and
Position
are not displayed).
If it is selected that the reporting is signed by the Manager
, then in the document form
Certificate 2-NDFL for transmission to the tax authority,
you must manually indicate the person signing the information and his position. Please note that sending information to the Federal Tax Service in electronic form must be carried out using the digital signature of this particular person.
In accordance with the Procedure for filling out 2-NDFL, when filling out information due to the impossibility of withholding tax, you should indicate only the amount of income actually received, from which there was no
tax withheld, as well as the amount of tax calculated but not withheld from this income.
In the tabular part of the document, manually indicate the individual or list of persons for whom you need to transfer information about the impossibility of withholding tax using the Selection
.
As a result, the tabular part will automatically include those amounts of income and taxes that relate to the OKATO and KPP for individuals indicated in the header of the document. A separate certificate is generated for each individual. To go directly to the generated 2-NDFL certificate, double-click (or Enter button) on the line with the desired individual. employee document form 2-NDFL
opens .
The form consists of bookmarks - 13%, 30%, 35%, 15%, 9%, 10%, 5%
. The headings of the tabs indicate the personal income tax rate, in relation to which detailed data is indicated - information about the income received in the organization, the amount of tax that was calculated and not withheld. The certificate data is corrected manually.
Let's look at the example of a gift in kind. The issuance of a gift in kind is registered in tax accounting with the document Personal Income Tax Accounting Operation
.
The reports reflect the amount of tax for an individual that is calculated but not withheld
When filling out the information you must indicate:
On the bookmark 13%
The details must indicate:
- Month
– December (the month in which the date of actual receipt of income falls)
- Income
– income code 2720 and income amount 5,000 rubles.
- Deduction
– code 501 and deduction amount 4,000 rubles.
In the Income Amounts
:
- General
– 5,000 rub.
- Taxable
– 1,000 rub.
In the Tax Amounts
:
- Counted
– 130 rub.
- Credited av. payments
– 0 rub.
- Not held
– 130 rub.
- Held
– 0 rub.
- Listed
– 0 rub.
- Unnecessarily withheld
– 0 rub.
OK
button .
Data on the Personal data
are filled in automatically.
If some personal data is not filled in or filled in incorrectly, you can
change the personal data of an individual Edit The edited data will be updated in the form automatically.
After preparing the information, document Certificate 2-NDFL for transmission to the tax authority
should be written down.
Draw your attention to! For an individual for whom information about the impossibility of withholding personal income tax was submitted, the organization is also obliged, no later than March 1, 2022, to submit reporting information on the individual’s income in Form 2-NDFL with attribute 1. But in these reporting information (unlike information about the impossibility of withholding personal income tax), it is necessary to indicate all the income of an individual received in the reporting year from a tax agent, as well as the full amounts of calculated and withheld tax.
To prepare information about the income of individuals at the location of a separate division, it is necessary to enter a new copy of the document Certificate 2-NDFL for transmission to the tax authority
.
In the document form, in the OKTMO/KPP
, you should select the OKTMO code of the location of the unit and the KPP of the separate unit.
Before submitting information to the Federal Tax Service, it is recommended to check it for errors. To do this, click on the Check
located at the top of the document form (or directly in
the employee’s 2-NDFL
).
In order to receive a file with information on income for transmission to the Federal Tax Service in electronic form in established formats on electronic media, you must click on the Upload
and in the dialog box that appears, select the directory in which to save the file. The program assigns a name to the file automatically.
If necessary, you can display printed forms of income certificates 2-NDFL and the Register of Certificates. To do this, use the Print
.
If a certificate of income and tax amounts of an individual in form 2-NDFL is drawn up to provide information about the impossibility of withholding personal income tax, then (according to the Procedure for filling out the form)
2
is entered Attribute .
If the organization is connected to the 1C-Reporting service, then it can be sent to the tax authority directly from the program. Before sending information, it is recommended to perform format and logical control of filling out the information. To do this, click on the Send
and select
Check online
.
To send information, click the Send
and select
Send to a regulatory authority
.
After the information is accepted by the tax authority, the document Certificate 2-NDFL for transmission to the tax authority
It is recommended to protect against modification.
the Certificates accepted by the tax authority and archived
checkbox and post the document. You cannot edit the document after this, but if necessary, you can by unchecking the specified checkbox.
An example of filling out a 2-NDFL certificate with sign 2
Alliance LLC in October 2022 rewarded former employee Petr Petrovich Ivanov (resident of the Russian Federation).
The price of the gift is 9,500 rubles. Income code - 2720. Deduction amount - 4,000 rubles. Deduction code - 501. Tax base: 5,500 rubles (9,500 rubles - 4,000 rubles).
Personal income tax: 715 rubles (5,500 rubles x 13 percent).
For the same person, you must also submit a 2-NDFL certificate with attribute “1” (letter of the Federal Tax Service of the Russian Federation dated March 30, 2016 No. BS-4-11/5443).
Certificate 2-NDFL will look like this:
Moreover, even if the tax agent did not pay other income, he will need to submit to the inspectorate two identical certificates for the same person, the difference will only be in the indication of presentation (letter of the Ministry of Finance of the Russian Federation dated October 27, 2011 No. 03-04-06/8- 290).
Failure to provide a certificate will entail the same fine in the amount of 200 rubles.
True, there are court decisions in which arbitrators recognize such fines as illegal. They indicate that there is no point in duplicating information (resolutions of the Federal Antimonopoly Service of the Ural District dated September 24, 2013 No. F09-9209/13, dated September 10, 2014 No. F09-5625/14, dated May 23, 2014 No. F09-2820/14, FAS East Siberian District dated 04/09/2013 No. A19-16467/2012), and add that, in accordance with clause 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer.
But it is advisable not to lead to such proceedings. It is better to resend a document, the completion of which does not pose any particular difficulties, than to resolve such issues in court. After all, if you lose, in addition to the fine, you will also have to pay legal costs.
