Art. 226 of the Tax Code of the Russian Federation with comments

Subjects

Tax agents under Art. 226 of the Tax Code of the Russian Federation recognizes those registered and operating in Russia:

Organizations.
Notaries and lawyers in private practice.
Individual entrepreneurs.

This category also includes separate divisions of foreign companies. Tax agents are distinguished from payers by their responsibilities. They are responsible for calculating, withholding and directing taxes on the income their employees receive to the budget. Deductions from the profits of lawyers are made by bureaus, colleges and legal consultations.

General procedure

It is established by clause 1 of Art. 226 Tax Code of the Russian Federation. As provided by the provisions, the obligation to determine (calculate), withhold and transfer the amount of personal income tax to the budget fund is imposed on the entities from which or within the framework of the relationship with which the citizen (payer) received the income specified in the second paragraph of the norm in question. These persons are considered tax agents. To them, paragraph one of Art. 226 of the Tax Code of the Russian Federation refers to:

Domestic organizations.
Privately practicing notaries and lawyers.
Individual entrepreneurs.
Separate structural units of foreign companies in Russia.

The amount subject to withholding from income is calculated according to the rules of Article 224 of the Code, taking into account the special reservations provided for by the norm in question. As stated in Art. 226 of the Tax Code of the Russian Federation, the amount of tax on the profits of lawyers is calculated, withheld and transferred by colleges, legal consultations, and bureaus.

General procedure (clause 2 of Article 226 of the Tax Code of the Russian Federation)

Taxes are calculated and paid in relation to any profit of the payer, the source of which is an agent (individual entrepreneur/organization). The exception is revenues, the calculation and deduction of which is made in accordance with norms 214.3-214.6, 227-228 and art. 226.1 Tax Code of the Russian Federation. When calculating, previously withheld amounts are taken into account. In cases specified in Article 227.1, payments are reduced by the amount of fixed advances paid by the entities.

Article 226 of the Tax Code of the Russian Federation. Procedure and deadlines for tax payment by tax agents

1. 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 obliged 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 by this article. Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers.

The persons specified in paragraph one of this paragraph are referred to in this chapter as tax agents.

2. 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 (except for income in respect of which calculation of amounts and payment of tax are carried out in accordance with Articles 214.3, 214.4, 214.5, 214.6, 226.1, 227 and 228 of this Code), with offset of previously withheld tax amounts, and in the 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.

3. 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) in respect of which the tax rate is applied established by paragraph 1 of Article 224 of this Code, accrued to the taxpayer for a given period, with the offset of the amount of tax withheld in previous months of the current tax period.

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.

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.

4. Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon their actual payment, taking into account the specifics established by this paragraph.

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.

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.

5. 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 tax, the amount of income from which tax is not withheld, and the amount of tax not withheld.

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.

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.

6. 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.

7. The total amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of which 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.

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.

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.

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.

7.1. 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 workers) 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.

8. The total amount of tax withheld by a tax agent from the income of individuals for whom he is recognized as a source of income, exceeding 100 rubles, is transferred to the budget in the manner prescribed by this article. If the total amount of withheld tax payable to the budget is less than 100 rubles, it is added to the amount of tax payable to the budget in the next month, but no later than December of the current year.

9. Payment of tax at the expense of tax agents is not allowed.
When concluding agreements and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume obligations to bear the costs associated with paying tax for individuals. < Article 225 of the Tax Code of the Russian Federation > Article 226.1 of the Tax Code of the Russian Federation

Calculation specifics

Calculation of tax amounts under Art. 226 of the Tax Code of the Russian Federation is carried out on the date on which the payer actually received income. It is determined according to Article 223. Calculation is carried out on an accrual basis from the beginning of the period in relation to all income. The exception is profit that is received from equity participation in an enterprise. In relation to income subject to taxation, the rate provided for in paragraph one of Article 224 is applied. When calculating, the amounts withheld from the payer in the previous months of the reporting period are taken into account. Deductions from profits for which other rates are used, as well as income received in connection with equity participation, are calculated separately for each payment. The calculation is carried out without taking into account receipts from other agents and amounts of mandatory payments withheld by them.

UrDela.ru

Part 1. 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 obliged 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 by this article. Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers.

The persons specified in paragraph one of this paragraph are referred to in this chapter as tax agents.

Part 2. 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 exception of income in respect of which calculation and payment of tax are carried out in accordance with Articles 214.1, 227 and 228 of this Code with offset of previously withheld tax amounts.

Part 3. Tax amounts are calculated by tax agents on an accrual basis from the beginning of the tax period based on the results of each month in relation to all income in respect of which the tax rate established by paragraph 1 of Article 224 of this Code is applied, accrued to the taxpayer for a given period, with offset of the withheld in previous months of the current tax period tax amounts.

The amount of tax in relation to income for which other tax rates are applied is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer. 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.

Part 4. Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon actual payment.

The tax agent withholds the accrued amount of tax from the taxpayer at the expense of any funds paid by the tax agent to the taxpayer upon actual payment of these funds to the taxpayer or on his behalf to third parties. In this case, the withheld tax amount cannot exceed 50 percent of the payment amount. 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.

Part 5. If it is impossible to withhold from the taxpayer the calculated amount of tax, the tax agent is obliged, no later than one month from the date of the end of the 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 and the amount of tax.

The form of notification of the impossibility of withholding tax and the amount of tax and 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.

Part 6. Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash from the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or, on his behalf, to the accounts of third parties in banks.

In other cases, tax agents transfer the amounts of calculated and withheld tax no later than the day following the day the taxpayer actually receives income - for income paid in cash, as well as the day following the day of actual withholding of the calculated amount of tax - for income received by the taxpayer in kind or in the form of material benefits.

Part 7. 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 at the place of registration of the tax agent with the tax authority.

Tax agents - Russian organizations specified in paragraph 1 of this article that have separate divisions are required to transfer calculated and withheld tax amounts both at their location and at the location of each of their separate divisions.

The amount of tax payable to the budget at the location of the separate division is determined based on the amount of income subject to taxation accrued and paid to the employees of these separate divisions.

Part 8. The total amount of tax withheld by a tax agent from the income of individuals for whom he is recognized as a source of income, exceeding 100 rubles, is transferred to the budget in the manner prescribed by this article. If the total amount of withheld tax payable to the budget is less than 100 rubles, it is added to the amount of tax payable to the budget in the next month, but no later than December of the current year.

Part 9. Payment of tax at the expense of tax agents is not allowed.
When concluding agreements and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume obligations to bear the costs associated with paying tax for individuals. ‹ Article 225 (Tax Code of the Russian Federation). Procedure for calculating tax Up Article 227 (Tax Code of the Russian Federation). Peculiarities of calculating tax amounts for certain categories of individuals. The procedure and terms for payment of tax, the procedure and terms for payment of advance payments by specified persons ›

Hold

In paragraph four of Art. 226 of the Tax Code of the Russian Federation states that tax is collected from the payer’s income upon actual payment. If the subject receives a profit in kind or in the form of material benefit, it is carried out at the expense of any amounts of money paid by the agent. The amount of deduction levied cannot be more than 50% of cash income. This paragraph does not apply to agents acting as credit institutions in relation to the withholding and deduction of tax amounts from profits received by their clients in the form of material benefits. The exception is direct employees of such class=”aligncenter” width=”700″ height=”212″[/img]

Income Features

As provided in paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, agents are required to withhold the calculated amount of personal income tax directly from the payer’s receipts at the time of their actual receipt. A number of features are taken into account. If income is provided in kind or presented as a material benefit, withholding is made from any remuneration that is presented in cash. However, it cannot be more than 50% of the amount of money paid. Rules clause 4 art. 226 of the Tax Code of the Russian Federation are not subject to application to agents acting as credit organizations when withholding and deducting tax on income received by clients (except for those who are employees) in the form of material benefits established in accordance with Article 212 of the Code.

Impossibility of retention (clause 5 of Article 226 of the Tax Code of the Russian Federation)

In a number of cases, the agent cannot collect and, accordingly, deduct established tax amounts from the payer’s income. In these situations, the subject must, no later than 1.03 of the period following the end of the year in which the specified circumstances occurred, send a notification to the control body and the subject from which the withholding was not made. It indicates the amount of profit and tax not allocated to the budget. The form of the notification and the procedure for sending it are determined by the executive federal institution of government.

KBK for transferring tax amounts

In 2022, the following personal income tax codes are in effect (order of the Ministry of Finance of Russia dated 06/08/2021 No. 75n):

182 1 0100 110 - code for transferring personal income tax on income up to 5 million rubles paid by a tax agent to a taxpayer. The exception is income received in accordance with Art. 227, 227.1, 228 Tax Code of the Russian Federation.
182 1 0100 110 - code for transferring personal income tax on income over 5 million rubles,
182 1 0100 110 - code for transferring personal income tax received by an individual - an individual entrepreneur, a notary or lawyer or a person carrying out other business activities under Art. 227 Tax Code of the Russian Federation.
182 1 0100 110 - transfer of tax on personal income received under Art. 228 Tax Code of the Russian Federation.
182 1 0100 110 - code for transferring tax on the income of foreign citizens carrying out activities in accordance with the patent. The personal income tax payment in this case is a fixed advance payment and is made on the basis of Art. 227.1 Tax Code of the Russian Federation.

The nuances of paying personal income tax can be found in the section “Time limits and procedures for paying personal income tax.”

Important point

In paragraph 5 of Art. 226 of the Tax Code of the Russian Federation speaks separately about tax agents - domestic companies with separate divisions, companies classified as the largest payers, as well as individual entrepreneurs registered with the control service at the place of their activities related to the use of UTII or the patent taxation system. They must report the amounts of profit from which no deduction was made, as well as the amount of payments not allocated to the budget in the manner established in paragraph two of Article 230.

Special cases

If it is impossible to withhold from the payer during the period of calculated tax, the agent, in accordance with the provisions of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, must, no later than 1.03 years following the period within which the circumstances arose, send a written notification to the control body. The notice indicates the amount from which personal income tax was not deducted and its amount. The form of notification of the impossibility of making a deduction, the amount of revenue and tax not transferred to the budget, the rules for providing the message are established by the federal executive institution authorized for fiscal control and supervision. In paragraph 5 of Art. 226 of the Tax Code of the Russian Federation separately stipulates the actions of agents - Russian enterprises that have separate divisions, classified as the largest payers, individual entrepreneurs registered at the address of business and using UTII or the patent system. If they are unable to make proper withholding, they are also required to report this to the control authority. The notification is sent in the manner established by Article 230 (paragraph two) of the Code.

Term

It is defined in paragraph 6 of Art. 226 Tax Code of the Russian Federation. Agents must calculate and withhold the established amounts no later than the day following the date of profit payment. Clause 6 art. 226 of the Tax Code of the Russian Federation also provides that in the case of providing a subject with income in the form of benefits for the period of incapacity (illness), including for caring for sick children, as well as in the form of vacation pay, the transfer must be made no later than the last date of the month in which the specified payments were made.

Responsibility of the tax agent – penalties and fines for non-payment

The duties of the tax agent for personal income tax regarding the transfer of tax amounts may not be fulfilled or partially fulfilled. Such situations often arise if the income is paid in kind or represents a material benefit received by an individual.

Read about the duties of a tax agent when paying an employee income in kind in the material “Did the individual receive income in kind? Perform the duties of a tax agent .

Here it is necessary to deduct money payments due to the person himself or to a third party on behalf of the recipient of the income. The amount of withholding corresponds to the amount of the payment arrears and the newly accrued tax, if any (paragraph 2, paragraph 4, article 226 of the Tax Code of the Russian Federation).

If payments to the debtor under personal income tax will no longer be made or the amount of payments is not enough to cover the debt, the tax agent for personal income tax is obliged to notify the tax authorities and the taxpayer about this. This should be done before March 1 after the end of the tax period (subclause 2, clause 3, article 24, clause 5, article 226 of the Tax Code of the Russian Federation). Sending a message relieves the agent of the obligation to withhold personal income tax amounts from this person. The obligation to pay tax will arise on the taxpayer himself upon receipt of a tax notice from the Federal Tax Service.

It is also noted that if the tax agent did not report the impossibility of withholding personal income tax to either the tax service or the taxpayer or did not lose such an opportunity, then penalties may be assessed on the amount of arrears to the personal income tax agent based on the results of an on-site tax audit (letter from the Federal Tax Service of Russia dated November 22, 2013 No. BS-4-11/20951 and No. SA-4-7/16692 dated August 22, 2014). A message about the impossibility of withholding tax must be sent even if the deadline for its submission is missed (letter of the Federal Tax Service of Russia dated July 16, 2012 No. ED-4-3 / [email protected] ).

Read more about 2-NDFL for 2022 in the materials on our website.

In addition to penalties, tax authorities have the right to impose a fine for non-payment of personal income tax by a tax agent.

For more information about the responsibility of this category of taxpayers and when a fine is imposed for non-payment of personal income tax by a tax agent, read the article “What liability is provided for non-payment of personal income tax”.

But a fine can be avoided if:

1. 6-NDFL was submitted to the Federal Tax Service without delay;

2. The amount of personal income tax is correctly indicated in the form (without underestimation);

3. The tax and penalties are paid before the tax authorities find out about the non-payment.

Such rules are in force from January 28, 2019 and apply to legal relations that arose before this date. We talked about the details here.

Also find out about the innovations in imposing fines on tax agents starting in 2022.

To what budget should the amounts be allocated?

In paragraph seven of Art. 226 of the Tax Code of the Russian Federation states that payments are made at the place of residence (registration) of the agent, unless another procedure is provided for by law. Agents - organizations in whose structure separate divisions are formed, must transfer the calculated and withheld amounts both to the budget at the address of their location and the location of their branches. Individual entrepreneurs using the patent system or UTII must make mandatory payments at the place of registration.

Place of tax payment

The total amount of personal income tax, determined and withdrawn by the agent from the payer, in relation to whom it is considered a source of income, is sent to the budget at the agent’s registration (residence) address, unless other rules are provided for in clause 7 of Art. 226 Tax Code of the Russian Federation. Domestic enterprises specified in the first paragraph that have divisions (separate) are required to make transfers both at their location and at the location of each structural unit. In the latter case, the amount of personal income tax is determined in accordance with the amount of income subject to taxation, accrued and issued to employees, as well as arising from the terms of civil contracts concluded with individuals on behalf of the enterprise. Agents who have the status of entrepreneurs, are registered at the address where they conduct business and use UTII/patent system are required to transfer the tax amounts calculated and withheld from them from the income of hired employees to the place of registration as an individual entrepreneur.

Art. 226 Tax Code of the Russian Federation: comments

The occurrence of tax agent obligations is associated with the payment of income to individuals. The subject does not have the right to refuse them if he acts as a source of income for payers. Meanwhile, there is a dispute over the issue relating to the payment of advances to employees under the terms of civil law agreements. According to a number of officials of the Ministry of Finance and some judges, payment of funds for services not yet provided or work not performed obliges the enterprise to withhold income tax and pay it to the budget. However, in practice there are a number of decisions that determine that an advance cannot be considered as an object of taxation until the individual fulfills his obligations.

Income in kind

In cases where an enterprise paid an individual with products, but other than this income, no cash payments were made to him, the company cannot withhold income tax. In such a situation, the employee himself must calculate and pay personal income tax to the budget. At the same time, the enterprise has an obligation under clause 5 of Art. 226 of the Tax Code of the Russian Federation, send a notice to the control body about the inability to withhold tax and transfer it to the budget. The article specifies a one-month notice period. Law No. 113 extended this period. Thus, the enterprise is obliged to send a notification in accordance with paragraph 5 of Art. 226 of the Criminal Code of the Russian Federation no later than 1.03 of the year following the expired one, in which, accordingly, the withholding was not carried out. This rule is effective from January 1st. 2016

Exceptions

Meanwhile, the above rule does not apply to all subjects. Paragraph two of Article 226 stipulates that the source of income in a number of cases does not fulfill the duties of an agent. The following must pay personal income tax on their own:

Persons with the status of individual entrepreneurs - from income from their activities.
Privately practicing notaries and other similar citizens - based on income earned in the process of work.

Individuals who have received income also independently perform the duties of calculating, withholding and sending tax to the budget:

Under civil law agreements that were concluded with another individual who does not act as an agent. These include, for example, lease/lease transactions.
From sources located in other countries.
From the sale of material assets owned by an individual.
In the form of winnings paid by the organizers of betting, lottery and other risk-based games.

Those citizens from whose remuneration the agent was unable to make deductions and deductions also pay personal income tax on their own. This is, in particular, typical for income received in non-monetary form. All payers mentioned above must submit a declaration to the control authority at the address of residence at the end of the period.

Changes to the article

In addition to increasing the period for notifying control authorities and the payer of the impossibility of withholding, other amendments were made to the norm in question. In particular, they touched upon clause 6 of Art. 226 of the Tax Code of the Russian Federation establishes a single date for tax transfer. It coincides with the number following the day of actual payment of income. In the previous edition, tax on vacation and sick pay was to be deducted on the day they were received by individuals. The amended article moved this deadline to the end of the month in which these payments were made.

Control Service Notification

It is mandatory if the agent, for one reason or another, was unable to withhold and transfer the calculated amount of personal income tax to the budget. The notification to the control body is sent as prescribed in paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, no later than a month from the end of the period in which these impeding circumstances appeared. The notification must be in writing. It is sent to the agent's account address. The document must indicate the fact of the impossibility of withholding and transferring the obligatory payment, the amount of income and tax.