Article 224 of the Tax Code of the Russian Federation. Tax rates

Article 224 of the Tax Code of the Russian Federation. Tax rates (current version)

As the tax authority indicated, income received by tax residents from the sale of real estate (including apartments) is subject to taxation under the personal income tax at a rate of 13 percent (see letter of the Federal Tax Service of the Russian Federation for Moscow dated December 31, 2010 N 20-14 /4/ [email protected] ).

The letter of the Ministry of Finance of Russia dated August 19, 2013 N 03-04-05/33799 states that amounts of money received by an individual lender that exceed the loan amount issued to the borrower organization, being income (economic benefit) of the lender, are subject to income tax individuals in the prescribed manner. In relation to the specified income of paragraph 1 of Article 224 of the Tax Code of the Russian Federation, a tax rate of 13 percent is established.

In a letter dated December 1, 2010 N 03-04-06/6-279, the official body explained that the amount of the principal debt (loan), as well as the amount of debt in the form of interest on the loan, forgiven by the bank to an individual, is subject to personal income tax in accordance with the generally established procedure at a rate of 13 percent.

And in a letter dated January 13, 2011 N 20-14/4/001320, the tax department noted that for income for which a tax rate of 13 percent is established, the tax base is defined as the monetary expression of such income subject to taxation, reduced, in particular , for the amount of property tax deduction provided for in Article 220 of the Tax Code of the Russian Federation.

In a letter dated October 21, 2010 N 03-04-06/8-254, the Russian Ministry of Finance explained that taxation of income received by tax residents of the Russian Federation in the form of periodic payments under a license agreement is carried out on the basis of paragraph 1 of Article 224 of the Tax Code of the Russian Federation at a rate of 13 percent .

As the regulatory authority indicated, individual entrepreneurs using the simplified taxation system are exempt, on the basis of paragraph 3 of Article 346.11 of the Tax Code of the Russian Federation, from paying personal income tax on other income taxed at a rate of 13 percent (see letter dated October 8, 2010 N 03-11 -11/260).

And in a letter dated 01.10.2010 N 03-04-06/2-232, the Ministry of Finance of Russia noted that income paid by a consumer company to its participants is not recognized as dividends and is subject to taxation on personal income tax on a general basis using the rate established by paragraph 1 of Article 224 of the Tax Code of the Russian Federation, in the amount of 13 percent.

As the tax department indicated, income received by an individual who is a tax resident of the Russian Federation from the exercise of rights of claim against a Russian organization on the territory of the Russian Federation is subject to personal income tax at a rate of 13 percent (see letter dated September 30, 2010 N 20- 14/4/ [email protected] ).

In letter dated September 23, 2010 N 20-15/3/100407, the tax department came to the conclusion that income of individuals received from leasing or other use of property is recognized as an object of taxation and is subject to personal income tax according to the tax authorities. the rate of 13 percent established by paragraph 1 of Article 224 of the Tax Code of the Russian Federation, regardless of the type of lease agreement.

In a letter dated 08/26/2010 N 03-04-06/3-189, the official body explained that when distributing the profit of a consumer society between its members in any other way, including in proportion to the participation of shareholders in the economic activities of the consumer society, such income of the company’s participants cannot be recognized as a dividend and are subject to personal income tax at the rate of 13 percent established by paragraph 1 of Article 224 of the Tax Code of the Russian Federation.

And in a letter dated 08/17/2010 N 03-04-05/2-463, the Ministry of Finance of Russia explained that in the event of the sale of property received during the liquidation of an LLC, a new type of income arises, subject to taxation on personal income tax on a general basis using the rate , established by paragraph 1 of Article 224 of the Tax Code of the Russian Federation.

In a letter dated 07/08/2010 N 20-14/4/ [email protected] , the tax department explained that when taxing income received by an individual who is a tax resident of the Russian Federation as a gift from an individual, a tax rate of 13 percent is applied, provided for paragraph 1 of article 224 of the Tax Code of the Russian Federation.

As the regulatory authority indicated, income in the form of interest from organizations located outside the Russian Federation is taxed at a rate of 13 percent (see letter dated February 24, 2010 N 3-5-04 / [email protected] ).

Federal Law dated July 27, 2010 N 207-FZ “On Amendments to Chapter 23 of Part Two of the Tax Code of the Russian Federation”, paragraph 2 of Article 224 of the Tax Code of the Russian Federation was supplemented with the following paragraph: in the form of payment for the use of funds of members of a credit consumer cooperative (shareholders) , as well as interest on the use by an agricultural credit consumer cooperative of funds raised in the form of loans from members of an agricultural credit consumer cooperative or associated members of an agricultural credit consumer cooperative, to the extent that they exceed the amounts specified in Article 214.2.1 of this Code.

This tax regulation comes into force on January 1, 2011.

In a letter dated December 24, 2010 N 03-04-05/6-742, the official body explained that from January 1, 2011, income in the form of fees for the use of funds of members of the cooperative by a credit consumer cooperative is not subject to personal income tax if the conditions are met , established by paragraph 27.1 of Article 217 of the Tax Code of the Russian Federation.

The tax base for such income is determined in accordance with Article 214.2.1 of the Tax Code of the Russian Federation.

The income of members of a credit consumer cooperative, insofar as it exceeds the amount established by Article 214.2.1 of the Tax Code of the Russian Federation, is subject to personal income tax at a rate of 35 percent.

Analyzing paragraph 2 of Article 224 of the Tax Code of the Russian Federation, the Ministry of Finance of Russia clarified that the provisions of paragraph 2 of Article 224 of the Tax Code of the Russian Federation do not apply to income in the form of the value of winnings received in competitions held for the purpose of advertising the manufacturer or seller of goods.

Thus, if a competition of scientific and innovative projects is not held for the purpose of advertising goods, works and services, income in the form of the value of winnings received by the winners of such a competition is subject to personal income tax at a rate of 13 percent (see letter dated 09.08 .2010 N 03-04-05/2-441).

Official position.

The letter of the Ministry of Finance of Russia dated February 28, 2013 N 03-04-05/1-157 explains that currently a single rate of 13 percent is established for the taxation of most types of income of individuals. At the same time, for income not related to the taxpayer’s performance of work (provision of services), the Tax Code of the Russian Federation has established an increased rate of 35 percent.

The introduction of a single personal income tax rate of 13 percent for most types of income, simultaneously with the expansion of the circle of taxpayers, contributed to the legalization of wages by many employers and, in connection with this, an increase in the receipt of personal income tax into the budget system of the Russian Federation.

The current system of taxation on personal income allows us to speak of a balanced approach that takes into account the interests of both taxpayers and the budget system of the Russian Federation. A single tax rate of 13 percent is a factor in the investment attractiveness of the Russian Federation. The calculation and payment of tax and its administration by tax authorities have been significantly simplified.

The letter of the Ministry of Finance of Russia dated March 26, 2014 N 03-04-05/13261 addressed the issue of personal income tax taxation of the value of winnings (a car) received from participation in an incentive lottery. The Russian Ministry of Finance indicated that the incentive lottery is not a game based on risk, and the provisions of paragraph 2 of Article 224 of the Tax Code of the Russian Federation apply to income from participation in it, according to which a tax rate of 35 percent is applied to the value of any winnings and prizes received in held competitions, games and other events for the purpose of advertising goods, works and services, in part exceeding 4000 rubles.

Important!

Thus, from the analysis of paragraph 2 of Article 224 of the Tax Code of the Russian Federation and the position of the official bodies, it follows that the amount of winnings received in the incentive lottery, not exceeding 4,000 rubles, is not subject to personal income tax. Accordingly, the obligation of an individual to submit a tax return for personal income tax does not arise.

The letter of the Ministry of Finance of Russia dated 08.08.2013 N 03-04-06/32085 explains that in connection with a change in the terms of the loan agreement based on a settlement agreement in terms of reducing the interest rate on the loan to 0.1 percent per annum, the taxpayer has a material benefit determined by in accordance with subparagraph 2 of paragraph 2 of Article 212 of the Tax Code of the Russian Federation, and the amount of tax is calculated using a tax rate of 35% established in paragraph 3 of paragraph 2 of Article 224 of the Tax Code of the Russian Federation.

If the bank and the borrower enter into an agreement for the bank to forgive the borrower's debt on penalties accrued for improper fulfillment of obligations under the loan agreement, the debtor client is relieved of the obligation to pay them and has the opportunity to dispose of funds at his own discretion, that is, he has an economic benefit and , respectively, income in the amount of the amount of debt forgiven by the bank for the payment of penalties.

The amount of debt on penalties forgiven by the bank to the client does not fall under Article 212 of the Tax Code of the Russian Federation, since this type of material benefit is not provided for by this article.

Such amounts of economic benefit (income) are subject to personal income tax in the generally established manner using a tax rate of 13 percent.

In a letter dated January 19, 2011 N 03-04-05/6-11, the Russian Ministry of Finance explained that when calculating the tax base for interest income on bank deposits, two amounts must be taken into account - the amount of accrued interest on the deposit and the amount calculated based on refinancing rate (rates) of the Bank of Russia, increased by five percentage points, effective (effective) during the period for which interest is accrued.

If the refinancing rate of the Bank of Russia changes when determining the tax base, the new refinancing rate is applied from the date of its establishment.

Arbitrage practice.

In practice, taxpayers have questions, for example, an individual entrepreneur using a simplified taxation system received an interest-free loan from an individual who does not have the status of an individual entrepreneur.

Does an individual entrepreneur have income in the form of material benefits received from savings on interest for the use of borrowed funds, subject to personal income tax?

Paragraph 1 of Article 346.11 of the Tax Code of the Russian Federation provides that the simplified taxation system for organizations and individual entrepreneurs is applied along with other taxation regimes provided for by the legislation of the Russian Federation on taxes and fees.

By virtue of paragraph 3 of Article 346.11 of the Tax Code of the Russian Federation, the application of a simplified tax system by individual entrepreneurs provides for their exemption, in particular, from the obligation to pay personal income tax (in relation to income received from business activities, with the exception of tax paid on income taxed under tax rates provided for in paragraphs 2, 4 and 5 of Article 224 of the Tax Code of the Russian Federation).

Thus, paragraph 2 of Article 224 of the Tax Code of the Russian Federation provides that the tax rate for personal income tax is set at 35 percent in relation to the amount of savings on interest when taxpayers receive borrowed (credit) funds in terms of exceeding the amounts specified in paragraph 2 of Article 212 of the Tax Code RF.

At the same time, it should be taken into account that in accordance with subparagraph 1 of paragraph 1 of Article 212 of the Tax Code of the Russian Federation, the income of a taxpayer of personal income tax received in the form of material benefits is, in particular, the material benefit received from savings on interest for the use of borrowed funds by the taxpayer ( credit) funds received from organizations or individual entrepreneurs, with the exception of material benefits received in connection with transactions with bank cards during the interest-free period established in the agreement on the provision of a bank card, and material benefits received from savings on interest for using borrowed ( credit) funds for new construction or acquisition on the territory of the Russian Federation of a residential building, apartment, room or share(s) in them, if the taxpayer has the right to receive a property tax deduction in accordance with subparagraph 2 of paragraph 1 of Article 220 of the Tax Code of the Russian Federation.

Thus, Article 212 of the Tax Code of the Russian Federation does not provide for such a type of income as material benefits received from savings on interest for the use by a taxpayer of personal income tax of borrowed funds received from an individual.

Thus, an individual entrepreneur who has received an interest-free loan from an individual who is not an individual entrepreneur does not have income in the form of material benefits received from savings on interest for the use of borrowed funds, subject to personal income tax.

Accordingly, the provisions of paragraph 2 of Article 224 of the Tax Code of the Russian Federation do not apply in the situation under consideration.

Tax authorities come to a similar conclusion (letter of the Ministry of Finance of Russia dated 08/18/2009 N 03-11-09/284) and the courts (Resolution of the Federal Antimonopoly Service of the Volga District dated 07/08/2009 N A06-175/2009).

Federal Law of May 19, 2010 N 86-FZ “On Amendments to the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation” and Certain Legislative Acts of the Russian Federation” (hereinafter referred to as Law N 86-FZ) paragraph 3 of Article 224 of the Tax Code of the Russian Federation was presented in a new edition.

Law No. 86-FZ sets the tax rate at 30 percent in relation to all income received by individuals who are not tax residents of the Russian Federation, with the exception of income received, in particular, from carrying out labor activities as a highly qualified specialist in accordance with Federal Law dated July 25, 2002 N 115-FZ “On the legal status of foreign citizens in the Russian Federation” in respect of which the tax rate is set at 13 percent.

In a letter dated 15.03.2011 N 03-04-09/6-73, the regulatory authority noted that in order to recognize a foreign citizen as a highly qualified specialist in order to apply a personal income tax rate of 13 percent to his income, it is necessary to have a contract concluded by the employer (customer of the work) , services) with such a person an employment or civil law contract indicating in it the amount of remuneration for carrying out activities in the Russian Federation of at least two million rubles based on one year.

Federal Law of April 21, 2011 N 77-FZ “On Amendments to Articles 224 and 333.29 of Part Two of the Tax Code of the Russian Federation and Article 19 of the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation”, paragraph 3 of Article 224 of the Tax Code of the Russian Federation is supplemented with a new paragraph, according to which, from the performance of labor activities by participants in the State Program for Assisting the Voluntary Resettlement to the Russian Federation of compatriots living abroad, as well as members of their families who jointly moved to a permanent place of residence in the Russian Federation, in respect of which the tax rate is set at 13 percent.

In a letter from the Ministry of Finance of Russia dated January 23, 2013 N 03-04-05/9-57, the following situation was considered: The organization held a competition of works of painting and graphics. The winners of the competition were awarded cash prizes. According to paragraph 2 of Art. 224 of the Tax Code of the Russian Federation, in relation to income in the form of the value of any winnings received in competitions held for the purpose of advertising goods, a personal income tax rate of 35% is applied. The competition was not held for the purpose of advertising the organizer’s products; accordingly, the income of the competition winners should be subject to personal income tax at a rate of 13%. As part of the competition, the brand attribute (logo) of the general partner and the competition partner was placed on information materials about the competition. What personal income tax rate applies to income in the form of a cash bonus paid to the winners of the competition.

On this issue, the Russian Ministry of Finance indicated that if a competition for paintings and graphics was not held for the purpose of advertising goods, works and services, income in the form of the value of winnings received by the winners of such a competition is subject to personal income tax at a rate of 13 percent.

Analyzing paragraph 3 of Article 224 of the Tax Code of the Russian Federation, the Russian Ministry of Finance explained that a tax rate of 30 percent is established in relation to all income received by individuals who are not recognized as tax residents of the Russian Federation, with the exception, in particular, of income in the form of dividends from equity participation in activities of Russian organizations, in respect of which the tax rate is set at 15 percent.

The above provisions of the Tax Code of the Russian Federation apply regardless of the citizenship of individuals receiving income in the form of dividends (see letter dated 04/06/2011 N 03-04-05/6-229).

And in a letter dated 01.10.2010 N 03-04-05/2-578, the official body indicated that the income of a taxpayer who is not a tax resident of the Russian Federation, received from the sale of securities in the Russian Federation, relates to income from sources in the Russian Federation and are subject to personal income tax at a rate of 30 percent.

Analyzing paragraph 4 of Article 224 of the Tax Code of the Russian Federation, the tax authority explained that the calculation of personal income tax in respect of dividends received by individuals who are tax residents of the Russian Federation is carried out in accordance with paragraph 4 of Article 224 of the Tax Code of the Russian Federation at a rate of 9 percent (see letter dated November 27, 2008 N 18-15/3/ [email protected] ).

In a letter dated 09/06/2010 N 03-04-06/2-203, the Ministry of Finance of Russia explained that if part of the property received by a taxpayer who is a resident of the Russian Federation in the form of cash is recognized as a dividend in accordance with the legislation of a foreign state, then taxation is applied to such part the rate provided for in paragraph 4 of Article 224 of the Tax Code of the Russian Federation.

Arbitrage practice.

In practice, organizations have questions about tax rates, for example, in an organization (LLC), a different procedure has been established for the distribution of profits between the participants of the organization (LLC), namely, dividends are paid disproportionate to their shares in the authorized capital.

At what tax rate will dividends be taxed in this case?

The Tax Code of the Russian Federation does not answer the question of what tax rate will be applied to dividends that are paid to participants disproportionately to their shares in the authorized capital.

On this matter, there is an official point of view, according to which the income of taxpayers - participants in an LLC who are tax residents of the Russian Federation, received when the LLC’s profits are distributed disproportionate to their shares, are subject to taxation on personal income tax on a general basis using the rate established by paragraph 1 of the article 224 of the Tax Code of the Russian Federation (see letter of the Ministry of Finance of Russia dated November 11, 2005 N 03-05-01-04/353)

In a letter dated April 19, 2007 N 20-12/ [email protected] (a), the tax authority came to a similar conclusion, according to which part of the organization’s net profit distributed among its participants (participant) is disproportionate to their (his) shares (share) in the charter capital is not recognized as dividends for tax purposes, but is considered as a payment from profits remaining after taxes. Consequently, for tax purposes, these payments are subject to taxation at the general rate (for both legal entities and individuals).

Thus, according to the tax authorities and the Russian Ministry of Finance, dividends paid to participants disproportionately to their shares in the authorized capital are taxed at a rate of 13 percent.

However, arbitration courts take the opposite position on this matter.

In its Resolution of the Federal Antimonopoly Service of the Moscow District dated May 25, 2009 N KA-A41/4239-09, it came to the conclusion that in accordance with the provisions of Article 43 of the Tax Code of the Russian Federation and paragraph 4 of Article 224 of the Tax Code of the Russian Federation, part of the net profit of the company is distributed among its participants in proportion their shares in the authorized capital of the company are recognized for tax purposes as personal income tax as payment of dividends, in respect of which a preferential tax rate of 9 percent is established.

In the event of a disproportionate distribution of profits between the participants of the company, the amounts paid in excess of dividends proportional to the share in the authorized capital of the company should be qualified in accordance with subparagraph 10 of paragraph 1 of Article 208 of the Tax Code of the Russian Federation as other income of an individual that is not recognized for tax purposes as dividends and for tax purposes with tax. for the income of individuals, these payments are taken into account at a general rate of 13 percent.

Consequently, according to the arbitration courts, only amounts that exceed payments distributed in proportion to shares in the authorized capital are taxed at a rate of 13 percent.

In law enforcement practice, organizations also have other questions about what tax rates are subject to application, for example, an organization (consumer cooperative) pays dividends to participants disproportionately to their shares in a mutual fund.

At what tax rate will dividends be taxed in this case?

The Tax Code of the Russian Federation does not answer the question at what tax rate will be applied to dividends paid to members of a consumer cooperative disproportionately to their shares in the mutual fund.

There is no judicial practice on this issue, however, there is an official position according to which, when distributing the profit of a consumer company between its members in another way, including in proportion to the participation of shareholders in the economic activities of the consumer company, such income of the company’s participants cannot be recognized as a dividend and is subject to taxation personal income tax at the rate of 13 percent established by paragraph 1 of Article 224 of the Tax Code of the Russian Federation (see letter dated August 26, 2010 N 03-04-06/3-189).

A similar position is contained in the letter of the Ministry of Finance of Russia dated 04/06/2006 N 03-05-01-04/82.

In practice, taxpayers have questions about what rate will be taxed on dividends that were paid to the participants of the organization during the year at the expense of the organization’s interim profit, if at the end of the year the taxpayer organization incurred a loss?

The Tax Code of the Russian Federation does not answer the question at what tax rate will be applied to dividends that were paid to the participants of the organization during the year at the expense of the interim profit of the organization, if at the end of the year the taxpayer organization incurred a loss.

There is no judicial practice on this issue, however, there is an official position according to which if at the end of the tax period, according to the financial statements, the taxpayer incurred a loss, that is, there is no profit remaining after income tax, dividends paid from interim net profit in the first quarter, half a year or nine months, that is, until the end of the tax period, cannot be considered for profit tax purposes as dividends based on the results of this tax period. In this case, the income of shareholder organizations must be included in non-operating income that forms the tax base for income tax (clause 8 of Article 250 of the Tax Code of the Russian Federation); for individuals, these payments are recognized as income subject to personal income tax at a rate of 13 percent ( see letter of the Federal Tax Service of the Russian Federation dated March 19, 2009 N ShS-22-3/ [email protected] ).

Thus, dividends that were paid to the participants of the organization during the year at the expense of the interim profit of the organization, if at the end of the year the taxpayer organization incurred a loss, are taxed at a rate of 13 percent.

Please note that paragraph 3 of Article 224 of the Tax Code of the Russian Federation was supplemented by two paragraphs that were introduced by Federal Law No. 77-FZ of April 21, 2011 “On Amendments to Articles 224 and 333.29 of Part Two of the Tax Code of the Russian Federation and Article 19 of the Federal Law “On legal status of foreign citizens in the Russian Federation" and Federal Law dated November 7, 2011 N 305-FZ "On amendments to certain legislative acts of the Russian Federation in connection with the implementation of measures of state support for shipbuilding and shipping" respectively.

Based on paragraph 5 of clause 3 of the commented article, the tax rate is set at 30 percent in relation to all income received by individuals who are not tax residents of the Russian Federation, with the exception of income received from labor activities by participants in the State Program for Assistance to Voluntary Resettlement in the Russian Federation. Federation of compatriots living abroad, as well as members of their families who have moved together for permanent residence in the Russian Federation, in respect of whom the tax rate is set at 13 percent.

The state program to assist the voluntary resettlement of compatriots living abroad to the Russian Federation was approved by Decree of the President of the Russian Federation of June 22, 2006 N 637.

Official position.

The letter of the Federal Tax Service of Russia dated August 20, 2012 N ED-3-3/ [email protected] states that if an individual is a tax resident of the Russian Federation, then his income for performing labor duties on the territory of the Russian Federation is subject to personal income tax according to rate of 13 percent. If this person is not a tax resident of the Russian Federation, then the specified income is subject to taxation at a rate of 30 percent.

If an individual who is not a tax resident of the Russian Federation at the beginning of the tax period, from whose income personal income tax is withheld at a rate of 30 percent, at the end of this tax period was in the Russian Federation for more than 183 days, then he has the right to apply to tax authority at the place of residence (place of stay) for the refund of the amount of personal income tax in connection with his acquisition of the status of a tax resident of the Russian Federation in the manner established by paragraph 1.1 of Article 231 of the Tax Code of the Russian Federation.

However, if an individual is a participant in the State program, then his income under an employment contract is subject to personal income tax at a rate of 13 percent, regardless of the tax status of this person.

Based on the last paragraph of paragraph 3 of Article 224 of the Tax Code of the Russian Federation, the tax rate is set at 30 percent in relation to all income received by individuals who are not tax residents of the Russian Federation, with the exception of income received from the performance of labor duties by crew members of ships flying the State flag Russian Federation, in respect of which the tax rate is set at 13 percent.

Official position.

In the letter of the Federal Tax Service of Russia dated September 16, 2013 N BS-2-11/ [email protected], the issue of personal income tax taxation of income from work in the Russian Federation of a foreign citizen who has moved to a permanent place of residence in the Russian Federation is considered. On this issue, the Russian Ministry of Finance gave the following clarification.

If before the end of the tax period an individual acquires the status of a tax resident of the Russian Federation and his status will no longer change, then starting from the month of acquiring the status, the tax agent (employer) takes into account the amounts of tax withheld from income at a rate of 30 percent when determining the tax base on an accrual basis. all amounts of income of a given person.

If the amounts of tax withheld at the rate of 30 percent are not partially or completely offset by the tax agent, then an individual at the end of the tax period has the right to apply to the tax authority at the place of residence (place of stay) for a refund of the amount of personal income tax in connection with the acquisition of status of tax resident of the Russian Federation in the manner established by paragraph 1.1 of Article 231 of the Tax Code of the Russian Federation.

At the same time, the Russian Ministry of Finance reports that the above procedure for taxation of personal income is not discriminatory in nature and applies equally to citizens of the Russian Federation and to citizens of other states.

Paragraph 4 of the commented article establishes a personal income tax rate of 9 percent in relation to income from equity participation in the activities of organizations received in the form of dividends by individuals who are tax residents of the Russian Federation.

Official position.

The letter of the Ministry of Finance of Russia dated August 21, 2013 N 03-04-06/34229 considers the following situation: an LLC (broker) entered into a securities loan agreement on behalf and at the expense of an individual. During the validity period of the agreement, the issuer of securities paid dividends, which were transferred by the borrower to an individual. At what rate are dividends taxed?

On this issue, the Department of the Ministry of Finance of Russia indicated that in relation to income in the form of dividends received by an individual creditor during the validity period of the securities loan agreement, the tax rates provided for in paragraphs 3 and 4 of Article 224 of the Tax Code of the Russian Federation for income from equity participation in the activities of organizations are applied .

Important!

Please note that if dividends are paid in shares of the joint stock company paying the dividends, then such payments are not recognized as dividends for the purposes of the Tax Code of the Russian Federation.

Official position.

The letter of the Ministry of Finance of Russia dated 03/05/2013 N 03-04-05/4-177 considers the position: an individual - a tax resident of the Russian Federation is the founder of a foreign legal entity that does not carry out activities, does not have branches or representative offices in the territory of the Russian Federation. At what personal income tax rate are dividends received by an individual from a foreign legal entity taxed? Is a foreign legal entity a tax agent?

The Russian Ministry of Finance indicated that a taxpayer who is a tax resident of the Russian Federation independently pays tax on income in the form of dividends received from a foreign organization at a rate of 9 percent.

Arbitrage practice.

The Resolution of the Seventh Arbitration Court of Appeal dated 02/08/2013 N A27-15508/2012 explains that part of the net profit of the company, distributed among its participants in proportion to their shares in the authorized capital of the company, is recognized for tax purposes as the payment of dividends, in respect of which, in accordance with paragraph 4 of Article 224 of the Tax Code of the Russian Federation establishes a preferential tax rate (9 percent). In this case, net profit is determined according to the financial statements of the company in accordance with the Chart of Accounts for accounting the financial and economic activities of organizations and the Instructions for the application of the Chart of Accounts for accounting for the financial and economic activities of organizations, which are approved by Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 N 94n.

Based on paragraph 5 of the commented article, the tax rate is set at 9 percent for income in the form of interest on mortgage-backed bonds issued before January 1, 2007, as well as for the income of the founders of trust management of mortgage coverage received on the basis of the acquisition of mortgage participation certificates, issued by the mortgage coverage manager before January 1, 2007.

Based on Article 2 of the Federal Law of November 11, 2003 N 152-FZ “On Mortgage Securities,” a mortgage participation certificate is a registered security certifying its owner’s share in the right of common ownership of the mortgage coverage, the right to demand from the person who issued it proper trust management of the mortgage coverage, the right to receive funds received in fulfillment of obligations, the requirements for which constitute mortgage coverage, as well as other rights provided for by the specified Federal Law.

Interest on mortgage-backed bonds is paid in accordance with Article 10 of Law No. 152-FZ.

Analyzing paragraph 5 of Article 224 of the Tax Code of the Russian Federation, the Ministry of Finance of Russia explained that paragraphs 4 and 5 of Article 224 of the Tax Code of the Russian Federation provide for taxation of income from equity participation in the activities of organizations received in the form of dividends by individuals who are tax residents of the Russian Federation, as well as income in the form of interest on bonds with mortgage coverage issued before January 1, 2007, and income of the founders of the trust management of the mortgage coverage received on the basis of the acquisition of mortgage participation certificates issued by the mortgage coverage managers before January 1, 2007.

The above-mentioned income is subject to personal income tax at a rate of 9 percent (see letter of the Ministry of Finance of Russia dated October 8, 2010 N 03-11-11/260).

Clause 6 of Article 224 of the Tax Code of the Russian Federation was introduced by Federal Law dated November 2, 2013 N 306-FZ “On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation.”

The commented paragraph establishes that the tax rate for personal income tax is set at 30 percent in relation to income on securities issued by Russian organizations, the rights to which are accounted for in a securities account of a foreign nominee holder, a securities account of a foreign authorized holder and (or) a securities account of depository programs, paid to persons whose information was not provided to the tax agent in accordance with the requirements of Article 214.6 of the Tax Code of the Russian Federation.

Official position.

The letter of the Ministry of Finance of Russia dated 04/07/2014 N 03-08-05/15476 considered the issue of personal income tax and income tax on income from securities transferred by the depository to a foreign authorized holder (collective investment fund) - a tax resident of the Grand Duchy of Luxembourg.

On this issue, the Department of the Ministry of Finance of Russia explained that if the actual recipient of income from securities is a tax resident of a state with which there is such a valid international treaty, the tax agent applies the tax rate established by this treaty.

Income from securities transferred by the depositary to a foreign authorized holder is taxed at a rate of 30% in accordance with paragraph 4.2 of Article 284 and paragraph 6 of Article 224 of the Tax Code of the Russian Federation.

Zero income tax rate - who is it for?

The right to a 0% rate according to Art. 284 of the Tax Code of the Russian Federation have the following organizations:

Educational and medical - in relation to the total amount of tax. The features and conditions of its use are enshrined in Art. 284.1 Tax Code of the Russian Federation. Dividends and income on debt obligations are taxed using generally established rates.
Residents of a technology-innovative special economic zone, as well as residents of tourist and recreational special economic zones, united by a government decision into a cluster - in terms of tax to the federal budget. The period of application of the zero rate is from January 1, 2012 to January 1, 2022, and in terms of tax to the federal budget for resident “tourists” - from January 1, 2012 to January 1, 2023. Conditions for applying the 0% rate:

having resident status (the rate can be applied from the 1st day of the reporting period following the one in which this status was obtained; if resident status is lost, the right to 0% is lost from the 1st day of the period in which the status is lost);
maintaining separate records of income (expenses) received from activities within and outside the specified special zones.

Agricultural producers (clause 2 of article 346.2 of the Tax Code of the Russian Federation) and fishery organizations (subclause 1 or 1.1 of clause 2.1 of article 346.2 of the Tax Code of the Russian Federation). The rate applies to profits from activities related to the sale of agricultural products produced by them, as well as the sale of their own produced and processed agricultural products.
Participants in regional investment projects - in terms of federal income tax. The rules of application are established in paragraph 2 of Art. 284.3 and paragraph 2 of Art. 284.3-1 Tax Code of the Russian Federation. For those applying the rules of paragraph 2 of Art. 284.3, this right is valid until 2029.
Participants in the free economic zone - tax to the federal budget from activities carried out in accordance with the agreement on the implementation of activities in the free economic zone. The rate is applied for 10 consecutive tax periods starting from the period in which profit was first received from the sale of goods (work, services) produced under such an agreement. Separate accounting is required.
Organizations with the status of a resident of the territory of rapid socio-economic development or the free port of Vladivostok are subject to tax to the federal budget. Application specifics should be found in Art. 284.4 Tax Code of the Russian Federation.
Organizations providing social services to citizens. The rate applies from 2015 to 2022 for tax in general, except for dividends and income on debt obligations. Features and conditions of use are given in Art. 284.5 Tax Code of the Russian Federation.
Participants of the Special Economic Zone created in the Magadan Region, for activities specified in the agreement on its implementation. It is necessary to maintain separate records by type of activity. Violation of the terms of the agreement on the implementation of activities leads to the need for restoration and payment of tax (with penalties) for the entire period that the participant is in the register of the Special Economic Zone.
Central Bank of the Russian Federation.
Participants of the Skolkovo project - in relation to profits received after the termination of the use of the exemption provided for in paragraph. 3 p. 2 art. 246.1 Tax Code of the Russian Federation. Exceeding the established income limit during the period of loss of the right to exemption entails the need to restore and pay the tax (with penalties) for this tax period. At the same time, for 2017-2021, additional conditions have been introduced under which a participant may be obliged to restore and pay tax for the period of loss of the right to exemption.

Under certain conditions, a zero rate applies to dividends received by Russian legal entities and foreign organizations that have independently recognized themselves as tax residents of the Russian Federation.

In addition, a 0% rate can be applied to certain “debt” income, as well as to profit from operations on the sale or other disposal (including redemption) of participation interests in the authorized capital of Russian organizations, as well as shares of Russian organizations (taking into account the specifics of Art. 284.2 and 284.2.1 of the Tax Code of the Russian Federation).

Find out about the nuances of applying special rates in the Ready-made solution from ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.

What are the income tax rates on dividends?

For dividends, clause 3 of Art. 284 of the Tax Code of the Russian Federation defines 3 rates: 0, 13 and 15%.

For a Russian organization, dividends received by it (both from Russian and foreign companies) are generally subject to income tax at a rate of 13%.

A 0% rate may be applied to this income under certain conditions: you must continuously own for at least 365 calendar days at least half of the authorized capital of the dividend-paying organization or depositary receipts giving the right to receive at least half of all dividends paid by it .

For information on the specifics of calculating the holding period, including during reorganization, read the article “Conditions for applying the zero rate on income tax when receiving dividends .

In order to confirm the right to a 0% rate, taxpayers are required to submit to the tax authorities documents confirming the dates of acquisition of ownership of the deposit (share) or depositary receipts. The Ministry of Finance of Russia orders that these same documents be presented to the tax agent along with confirmation of their presentation to the tax authorities (letters dated 02/24/2009 No. 03-03-06/1/78, dated 06/09/2008 No. 03-03-06/2/68).

Such documents, in particular, include purchase and sale or exchange agreements, decisions on the placement of issue-grade securities, agreements and decisions on reorganization in various forms, balance sheets, transfer acts, decisions on the issue of securities, reports on the results of the issue of securities, etc. The main thing is that they contain the date of acquisition of ownership of the deposit or depositary receipts.

When paying dividends by a foreign organization, a zero rate is applied to organizations whose state of permanent location is not included in the list of states and territories approved by the Ministry of Finance of Russia that provide preferential tax treatment and (or) do not provide for the disclosure and provision of information when conducting financial transactions (offshore zones) .

Dividends received by a foreign company (on shares of Russian organizations or from participation in capital in another form) are taxed at a rate of 15%.

Let us recall that the tax on dividends is calculated and paid by the source of payment - the tax agent. At the same time, the entire tax goes to the federal budget (clauses 3, 6 of Article 284 of the Tax Code of the Russian Federation).

Read about the specifics of taxation depending on the type of income in the article “Tax agent for income tax when paying income to a foreign organization .

What features are there regarding rates for foreign companies?

It all depends on whether the company has a permanent representative office in the Russian Federation.

Attention! The signs of a permanent establishment are enshrined in clause 2 of Art. 306 of the Tax Code of the Russian Federation.

If there is such a representative office, then the activities carried out through it are subject to income tax at a general rate of 20% (clause 6 of Article 307 of the Tax Code of the Russian Federation).

The exceptions are:

dividends from Russian organizations;
income from the distribution of profit or property of organizations, other persons or their associations, including during their liquidation;
interest income on state and municipal issue-grade securities, mortgage-backed bonds and bonds issued by Russian organizations.

They are taxed at the rates for dividends and interest discussed above. Moreover, a 0% rate for dividends cannot be applied by foreign companies recognized as residents of the Russian Federation under the terms of an international treaty or having management bodies on the territory of the Russian Federation.

In relation to the income of a foreign company not related to activities through a representative office in the Russian Federation, the following rates apply:

10% - from income from the use, maintenance or rental (charter) of ships, aircraft or other mobile vehicles or containers (including trailers and auxiliary equipment necessary for transportation) in connection with international transport;
20% - on all other income, except dividends and interest on debt obligations.

Attention! In the first case (there is a permanent representative office), income tax is calculated and paid by this representative office itself (clause 8 of Article 307 of the Tax Code of the Russian Federation). At the same time, it is distributed between budgets in the usual manner: 2% - to the federal, 18% - to the regional (and for the period 2017-2024 - 3% and 17%, respectively). In the second case (there is no representative office), the obligation to withhold and pay tax falls on the Russian organization - the tax agent (Article 310 of the Tax Code of the Russian Federation). In this case, the entire tax at rates of 20 and 10% is credited to the federal budget (clauses 2, 6 of Article 284 of the Tax Code of the Russian Federation).

For information on what to do if the tax was not withheld by the agent, read the material “Payment of unwithheld income tax by the agent from his own funds will relieve him from collection.”

In addition to foreign companies, a tax at a rate of 20% is paid by taxpayers who are controlling persons on income in the form of profit of foreign companies controlled by them (clauses 1.6, 6 of Article 284 of the Tax Code of the Russian Federation).

For information on the rules for calculating tax by foreign legal entities and the Russian companies that control them, read the article “Nuances of calculating income tax by foreign organizations .