Article 346.32 of the Tax Code of the Russian Federation. Procedure and deadlines for paying a single tax (current version)
Taxpayers who, after submitting a single tax return for the corresponding tax period, have paid the amount of insurance contributions for compulsory pension insurance for the last month of the expired reporting (calculation) period for insurance premiums or for previous reporting (calculation) periods for insurance contributions, have the right to clarify their tax obligations for the single tax for the expired tax period(s), by submitting updated (correcting) tax returns for the single tax to the tax authority in the prescribed manner.
Previously, a similar point of view was expressed in the letter of the Ministry of Taxes and Taxes of Russia dated March 2, 2004 N 22-2-14/ [email protected]
Thus, based on the position of the Russian Ministry of Finance and tax authorities, the calculated amount of the single tax on imputed income should be reduced only by the amounts of insurance contributions actually paid for compulsory pension insurance.
"Arbitrage practice".
However, in judicial practice there is no uniform position on this issue.
According to some courts, Determination of the Constitutional Court of the Russian Federation N 92-O states that the possibility of reducing the amount of the single tax on imputed income calculated for the tax period is associated by the legislator not with the period in which insurance premiums for compulsory pension insurance were actually paid, but with the period , for which these contributions are calculated and paid, therefore, the exercise of the right to deduct insurance contributions for compulsory pension insurance calculated for the calculation period cannot be made dependent on the date of actual payment of these insurance contributions by taxpayers of the single tax on imputed income (see, for example , Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated October 3, 2006 N A82-228/2006-29).
Similar conclusions are set out in Resolutions of the Federal Antimonopoly Service of the Ural District dated July 19, 2006 N F09-6122/06-S1, FAS West Siberian District dated September 5, 2006 N F04-5569/2006(25816-A03-23), N F04-5507/2006 (25818-A03-7), dated 08/28/2006 N F04-5268/2006(25544-A03-41), dated 08/24/2006 N F04-9672/2005(25512-A75-29), dated 08/10/2006 N F04 -4925/2006(25191-A70-19), dated 08/01/2006 N F04-4840/2006(24957-A27-27), N F04-4692/2006(24828-A70-27), N F04-4691/2006 (24813-A70-27), N Ф04-4690/2006(24812-А70-27), N Ф04-4688/2006(24808-А70-27), N Ф04-4610/2006(24839-А70-19), N Ф04-4608/2006(24831-А70-19), dated 07/27/2006 N Ф04-4548/2006(24686-А27-19), N Ф04-4547/2006(24685-А27-19), dated 07/24/2006 N Ф04-4475/2006(24633-А70-25), N Ф04-4474/2006(24632-А70-25), N Ф04-4473/2006(24631-А70-25), N Ф04-4476/2006(24634 -A70-25), dated July 18, 2006 N F04-4429/2006(24521-A03-23), N F04-4389/2006(24494-A03-23), N F04-4383/2006(24488-A70-23 ), N Ф04-4382/2006(24490-А70-23), N Ф04-4365/2006(24495-А03-19), N Ф04-4348/2006(24477-А03-23), N Ф04-4347/2006 (24478-A03-23), dated 07/12/2006 N F04-4338/2006(24476-A03-35), dated 07/03/2006 N F04-4032/2006(23974-A03-34).
The courts note that the fact of violation of the deadline for payment of insurance premiums does not affect the taxpayer’s right to reduce the amount of the single tax on imputed income payable for the same period as the paid insurance premiums. At the same time, in these Resolutions, the courts indicate that based on the analysis of paragraph 1 of Article 23, paragraphs 2, 6 of Article 24 of Law N 167-FZ, payment of insurance premiums can be made not only during the billing period, but also before a certain date of the year following the expired billing period.
In addition, the courts indicate that liability for incomplete payment of insurance premiums is provided not by Article 122 of the Tax Code of the Russian Federation, but by the provisions of Law No. 167-FZ. Thus, the Federal Antimonopoly Service of the West Siberian District, in Resolution dated July 4, 2006 N F04-3904/2006 (23975-A03-7), comes to the conclusion that insurance premiums are not classified as taxes and are individually compensated payments. Responsibility for non-payment or incomplete payment of insurance premiums is established by paragraph 2 of Article 27 of Law No. 167-FZ.
However, regarding the right of taxpayers to reduce the calculated amount of the single tax on imputed income by calculated but not paid amounts of insurance contributions for compulsory pension insurance, as well as regarding the legality of holding the taxpayer liable under paragraph 1 of Article 122 of the Tax Code of the Russian Federation for non-payment or incomplete payment of the specified amounts of insurance contributions , in arbitration practice there is an opposite position.
Example.
The crux of the matter.
Based on the results of a desk audit of the tax return submitted by the taxpayer for the single tax on imputed income for the 2nd quarter of 2005, the tax authority made a decision to bring the taxpayer to tax liability under paragraph 1 of Article 122 of the Tax Code of the Russian Federation. At the same time, the taxpayer is asked to pay the amounts of not fully paid tax and the corresponding penalties. The basis for the decision was the fact that the taxpayer, in the opinion of the tax authority, unlawfully reduced the amount of the single tax on imputed income calculated for payment by the amount of calculated but not paid insurance contributions for compulsory pension insurance for the same period, which resulted in non-payment of the single tax .
The taxpayer did not fulfill the demands sent to him for the payment of additional tax, penalties and fines within the established period, which served as the basis for the tax authority to apply to the arbitration court for their collection.
The crux of the matter.
In accordance with paragraph 2 of Article 346.32 of the Tax Code of the Russian Federation (as amended in force in 2005), the amount of the single tax on imputed income calculated for the tax period is reduced by the taxpayer by the amount of insurance contributions for compulsory pension insurance, carried out in accordance with the legislation of the Russian Federation, paid for the same period of time when taxpayers pay remuneration to their employees employed in areas of the taxpayer’s activity for which a single tax is paid, as well as for the amount of insurance premiums in the form of fixed payments paid by individual entrepreneurs for their insurance.
From the analysis of the above rule of law it follows that it provides for the possibility of reducing the amount of the single tax on imputed income calculated for the tax period only by the amount of insurance premiums paid for the same period. Consequently, the court indicated that reducing the amount of the said tax payable by the amount of accrued but not paid insurance premiums is unlawful.
According to the court, the reference to Definition of the Constitutional Court of the Russian Federation dated 04/08/2004 N 92-O (hereinafter referred to as Definition N 92-O) in this case is unfounded, since Definition N 92-O does not imply the possibility of a taxpayer reducing the amount of a single tax by imputed income from the amount of calculated but not paid insurance contributions for compulsory pension insurance.
Taking into account the above rules and circumstances of the case and since the materials of the case established the fact of incomplete payment by the taxpayer of the single tax on imputed income, the court found it lawful to bring the taxpayer to tax liability provided for in paragraph 1 of Article 122 of the Tax Code of the Russian Federation.
Thus, the decision of the tax authority, in the opinion of the court, is lawful (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated 09/06/2006, 08/30/2006 N F03-A51/06-2/2814).
According to some courts, from the analysis of the provisions of paragraph 2 of Article 346.32 of the Tax Code of the Russian Federation and Definition N 92-O, it follows that the right to deduct insurance contributions for compulsory pension insurance when calculating the single tax on imputed income is conditioned by the actual payment of insurance contributions by the taxpayer, therefore, a reduction in the amount the said tax payable on the amount of accrued but not paid insurance premiums is unlawful (see, for example, Resolution of the Federal Antimonopoly Service of the Central District dated September 18, 2006 N A64-149/06-11).
The FAS of the Far Eastern District comes to such conclusions, in addition to the above Resolution, also in Resolutions dated November 22, 2006, November 15, 2006 N F03-A73/06-2/4187 and dated October 25, 2006, October 18, 2006 N F03-A51/ 06-2/3608. In these Resolutions, the court recognized the legality of bringing the taxpayer to tax liability, provided for in paragraph 1 of Article 122 of the Tax Code of the Russian Federation, for non-payment or incomplete payment of insurance contributions for compulsory pension insurance.
And the Federal Antimonopoly Service of the Volga Region in Resolution dated October 13, 2006 N A55-772/06 notes that during the year the amount of insurance contributions for compulsory pension insurance in the form of a fixed payment is taken into account by taxpayers - individual entrepreneurs in those tax periods for the single tax in which it was actually paid by them. In the Resolution dated September 22, 2006, the FAS Volga District also indicates that the amount of the single tax calculated for the tax period is reduced by the amount of insurance premiums paid for the same period of time, that is, the determining factor is the actual payment of insurance premiums.
"Current problem."
In accordance with paragraph 2 of Article 6 of Law No. 167-FZ, for the purposes of this Law, individuals who voluntarily enter into legal relations under compulsory pension insurance in accordance with Article 29 of Law No. 167-FZ are treated as policyholders.
Based on paragraph 2 of Article 14 of Law No. 167-FZ, policyholders are required to pay insurance premiums to the Pension Fund budget on time and in full and keep records related to the calculation and transfer of insurance premiums to the said budget.
According to paragraph 1 of Article 28 of Law N 167-FZ, individual entrepreneurs, lawyers, and notaries engaged in private practice pay the amount of insurance contributions to the Pension Fund budget in the form of a fixed payment.
By paragraph 2 of Article 28 of Law No. 167-FZ, the amount of the fixed payment per month is established based on the cost of the insurance year, annually approved by the Government of the Russian Federation.
In arbitration practice, there are disputes between taxpayers and tax authorities regarding the question of whether a taxpayer applying the taxation system in the form of a single tax on imputed income has the right to reduce the amount of tax on fixed payments to the Pension Fund of the Russian Federation in the event that he does not carry out activities subject to taxation single tax.
"Arbitrage practice".
According to the courts, the tax authority’s arguments that due to the failure to carry out activities in a specific month of the tax period under a single tax on imputed income (quarter), the taxpayer did not have the right to reduce the tax on fixed payments for this month cannot be taken into account, since this requirement does not follow from paragraph 2 of Article 346.32 of the Tax Code of the Russian Federation.
This was noted, in particular, by the Federal Antimonopoly Service of the Volga-Vyatka District in Resolution No. A38-7977-17/661-2005 dated May 24, 2006, referring to the Decree of the Constitutional Court of the Russian Federation dated May 12, 2005 No. 211-O and indicating that the obligation to pay insurance premiums in the form of fixed payments arise for an individual entrepreneur from the moment he acquires the specified status and is not related to the actual implementation of business activities and receipt of income.
In the Resolution of August 15, 2006 N F09-6908/06-S1, the Federal Antimonopoly Service of the Ural District also indicated that the provisions of paragraph 2 of Article 346.32 of the Tax Code of the Russian Federation do not contain such a condition for reducing the amount of the single tax calculated for the tax period as the taxpayer performing taxable activities for this period .
In accordance with paragraph 3 of Article 346.32 of the Tax Code of the Russian Federation, tax returns based on the results of the tax period are submitted by taxpayers to the tax authorities no later than the 20th day of the first month of the next tax period.
In accordance with paragraph 1 of Article 80 of the Tax Code of the Russian Federation, a tax return is a written statement of the taxpayer about the objects of taxation, about income received and expenses incurred, about sources of income, about the tax base, tax benefits, about the calculated amount of tax and (or) other data, serving as the basis for the calculation and payment of tax.
Paragraph 2 of paragraph 1 of Article 80 of the Tax Code of the Russian Federation establishes that a tax return is submitted by each taxpayer for each tax payable by this taxpayer, unless otherwise provided by the legislation on taxes and fees.
In accordance with paragraph 6 of Article 80 of the Tax Code of the Russian Federation, a tax return (calculation) is submitted within the deadlines established by the legislation on taxes and fees.
Clause 7 of Article 80 of the Tax Code of the Russian Federation establishes that the forms of tax declarations (calculations) and the procedure for filling them out are approved by the Ministry of Finance of Russia, unless otherwise provided by the Tax Code of the Russian Federation.
"Attention!"
Order of the Ministry of Finance of Russia dated January 17, 2006 N 8n (hereinafter referred to as Order N 8n) approved the form of the tax return for the single tax on imputed income for certain types of activities, as well as the Procedure for filling it out.
At the same time, the changes made to Order No. 8n by Order of the Ministry of Finance of Russia dated December 19, 2006 No. 177n (hereinafter referred to as Order No. 177n) came into effect starting with the submission of a tax return for the single tax on imputed income for certain types of activities for the first tax period of 2007 .
These changes affected the form of the title page, section 1 of the declaration “The amount of the single tax on imputed income for certain types of activities, subject to payment to the budget according to the taxpayer,” as well as the Procedure for filling them out.
"Current problem."
Thus, the taxpayer could be faced with the problem of which forms to submit returns on (old or new).
"Official Position"
For example, in the letter of the Office of the Federal Tax Service of Russia for Moscow dated 06.06.2005 N 09-10/39710 it is stated that if the taxpayer submits a document not in the established form to the tax authority as a tax return, the taxpayer’s obligation to submit the declaration to the tax authority follows considered unfulfilled.
Consequently, the tax authority has the right to apply to the specified taxpayer, as a way to ensure the fulfillment of the obligation to pay taxes and fees, the suspension of transactions on bank accounts in accordance with Article 76 of the Tax Code of the Russian Federation, as well as the penalties established by Article 119 of the Tax Code of the Russian Federation.
"Arbitrage practice".
However, judicial practice on this issue is in favor of the taxpayer. In such a situation, arbitration courts indicate that Article 119 of the Tax Code of the Russian Federation establishes liability for failure to submit a tax return within the prescribed period. This article does not provide for tax liability for submitting a tax return in an unspecified (old) form. This position was expressed, for example, in the Resolutions of the FAS of the West Siberian District dated 04/06/2005 N F04-1990/2005(10068-A27-23), FAS of the North-Western District dated 11/16/2004 N A56-18597/04, dated 02.11. 2004 N A56-18734/04.
The Federal Tax Service of Russia in letter No. MM-6-01/ [email protected] dated February 11, 2005, gave two instructions to lower tax authorities on this issue:
— the tax authority does not have the right to refuse to accept a tax return from a taxpayer when it is submitted in a form approved in accordance with the established procedure, valid on the date of submission;
— if, after the tax authority has accepted a tax return, a new tax return form is approved or changes and (or) additions are made to the current form, the taxpayer is not required to submit a tax return on the newly approved form.
"Attention!"
It is worth noting that the declaration can be submitted electronically in accordance with the Procedure for submitting a tax return in electronic form via telecommunication channels, approved by Order of the Ministry of Taxes of Russia dated 04/02/2002 N BG-3-32/169 “On approval of the Procedure for submitting a tax return in electronic form via telecommunication channels.”
"Attention!"
In general, according to paragraph 4 of Article 80 of the Tax Code of the Russian Federation, a tax return can be submitted by a taxpayer applying the taxation system in the form of a single tax on imputed income to the tax authority personally or through a representative, sent by mail with an inventory of the contents, or transmitted via telecommunication channels.
In accordance with Article 29 of the Tax Code of the Russian Federation, an authorized representative of a taxpayer is an individual or legal entity authorized by the taxpayer to represent his interests in relations with tax authorities (customs authorities, authorities of state extra-budgetary funds), other participants in relations regulated by the legislation on taxes and fees.
"Attention!"
Officials of tax authorities, customs authorities, bodies of state extra-budgetary funds, internal affairs bodies, judges, investigators and prosecutors cannot be authorized representatives of the taxpayer.
An authorized representative of a taxpayer-organization exercises his powers on the basis of a power of attorney issued in the manner established by the civil legislation of the Russian Federation.
An authorized representative of a taxpayer - an individual - exercises his powers on the basis of a notarized power of attorney or a power of attorney equivalent to a notarized one in accordance with the civil legislation of the Russian Federation, an authorized representative of a taxpayer-organization - on the basis of a power of attorney issued in the manner established by the civil legislation of the Russian Federation.
Clause 1 of Article 185 of the Civil Code of the Russian Federation determines that a power of attorney is a written authority issued by one person to another person for representation before third parties. A written authorization to carry out a transaction by a representative may be presented by the represented directly to the relevant third party.
In accordance with paragraph 2 of Article 185 of the Civil Code of the Russian Federation, a power of attorney for transactions requiring a notarial form must be notarized, except for cases provided for by law.
In addition, in accordance with paragraph 5 of Article 185 of the Civil Code of the Russian Federation, a power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so by its constituent documents, with the seal of this organization attached.
"Official position."
The Moscow Department of the Ministry of Taxes and Taxes of Russia in a letter dated June 24, 2003 N 11-04/33517 explained that the issuance of a notarized power of attorney for representation in relations between an organization and the tax authority is not provided for by law.
"Attention!"
By virtue of paragraph 1 of Article 186 of the Civil Code of the Russian Federation, a power of attorney that does not indicate the date of its execution is void. On this basis, the tax authority may not accept tax returns.
"Attention!"
As explained in the letter of the Ministry of Finance of Russia dated April 10, 2006 N 03-06-06-03/08, an individual entrepreneur must certify with a notary a power of attorney for his accountant, who will submit reports for him to the tax authority.
The fact is that in this situation, according to the Russian Ministry of Finance, the accountant is a representative of the taxpayer - an individual who, by virtue of paragraph 3 of Article 29 of the Tax Code of the Russian Federation, exercises his powers on the basis of a notarized power of attorney.
By virtue of paragraph 2 of paragraph 4 of Article 80 of the Tax Code of the Russian Federation, the tax authority does not have the right to refuse to accept a tax return submitted by a taxpayer applying the taxation system in the form of a single tax on imputed income, in the established form (established format), and is obliged to put it on the copy at the request of the taxpayer tax return stamp on acceptance and the date of its receipt when receiving a tax return on paper, or give the taxpayer an acceptance receipt in electronic form when receiving a tax return via telecommunication channels.
Based on paragraph 3 of paragraph 4 of Article 80 of the Tax Code of the Russian Federation, when sending a tax return by mail, the day of its submission is considered the date of sending the postal item with a description of the attachment. When transmitting a tax return via telecommunication channels, the day of its submission is considered the date of its dispatch.
"Current problem."
When a taxpayer applying the taxation system in the form of a single tax on imputed income submits reports by mail, one of the most common mistakes taxpayers make is sending tax returns not by letter with a list of attachments, but by regular registered mail. In this case, the taxpayer risks finding himself in a situation where if the tax authority does not receive the letter, a fine will be imposed on him. The receipt of the post office in this case does not exempt from liability, since it does not follow from it that the contents of the item are exactly the required reporting form.
"Official position."
This position is reflected, for example, in paragraph 4 of the Review of the results of consideration of complaints against decisions of tax authorities, actions (inactions) of their officials for the second half of 2003 - the first half of 2004, communicated by a letter from the Department of the Ministry of Taxes of Russia for Moscow dated 12.10. 2004 N 11-15/65542, namely “sending a declaration by registered mail (with a postal receipt and delivery receipt attached) does not confirm the fact that the organization sent the declaration. The organization has not followed the procedure for sending the declaration by post, namely, there is no inventory of the contents.”
"Arbitrage practice".
Note that arbitration courts often do not share this position and indicate that the absence of an inventory of investments is not a circumstance indicating a failure to submit a tax return (see, for example, Resolution of the Federal Antimonopoly Service of the East Siberian District dated November 30, 2005 N A33-8372/05-F02 -5419/05-C1 and FAS Volga District dated November 24, 2005 N A55-5453/2005-44).
At the same time, it should be noted that judicial practice on this issue is ambiguous. For example, the Federal Antimonopoly Service of the West Siberian District, in Resolution dated December 19, 2005 N F04-8073/2005(16771-A27-15), during the consideration of a tax dispute regarding the collection of a fine for late submission of tax returns, indicated that the register of postal items is not accepted as proper evidence, since it does not contain an inventory of postal attachments, and therefore it is impossible to determine what exactly was sent by the taxpayer.
"Current problem."
A taxpayer may find himself in a situation where the tax authority refuses to accept the accounting and tax statements of an organization due to the absence of a mark (stamp) from the territorial statistics body on the submission of financial statements to it. Such requirements of tax authorities do not comply with the law (see, for example, letter of the Ministry of Finance of Russia dated December 18, 2004 N 16-00-10/3).
"Current problem."
Currently, the practice of submitting tax reports to the tax authority through a commercial correspondence delivery service has become widespread; in this regard, I would like to draw the attention of taxpayers to the fact that, by virtue of Article 29 of the Federal Law of July 7, 2003 N 126-FZ “On Communications” and the Resolution Government of the Russian Federation dated February 18, 2005 N 87, postal services are licensed. The tax authority may bring the taxpayer to tax liability under Article 119 of the Tax Code of the Russian Federation, indicating that the stamp of the commercial correspondence delivery service does not confirm the dispatch of the postal item, since the commercial correspondence delivery service does not have a license to provide postal services.
"Arbitrage practice".
Arbitration courts also pay attention to the need for a postal service operator to have a license (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated January 29, 2004 N KA-A40/11460-03).
When submitting tax returns and financial statements to the tax authority via telecommunication channels, the taxpayer does not have to submit paper copies of tax returns and financial statements.
Acceptance of tax returns and financial statements submitted electronically on electronic recording media (hereinafter referred to as electronic media) is carried out by employees of the taxpayer relations department.
When submitting tax returns and financial statements to the tax authority on electronic media, the submission of paper copies of tax returns and financial statements is mandatory.
"Attention!"
Taking into account the changes made to the Tax Code of the Russian Federation by Federal Law No. 137-FZ of July 27, 2006, Order No. 177n established that if the taxpayer discovers the fact of non-reflection or incomplete reflection of information, as well as errors leading to an understatement of the amount of tax payable, or inaccurate information , as well as errors that do not lead to an underestimation of the amount of tax payable, the taxpayer submits an updated declaration to the tax authority.
The updated declaration is submitted to the tax authority in the form that was in force during the tax period for which the corresponding changes are made. When recalculating the tax base and tax amount, the results of tax audits conducted by the tax authority for the tax period for which the tax base and tax amount are recalculated are not taken into account.
If errors (distortions) are detected in the calculation of the tax base relating to previous tax (reporting) periods in the current tax (reporting) period, the tax base and tax amount are recalculated for the period in which these errors (distortions) were made. If it is impossible to determine the period of errors (distortions), the tax base and tax amount are recalculated for the tax (reporting) period in which the errors (distortions) were identified.
"Official position."
Clause 1 of Article 119 of the Tax Code of the Russian Federation establishes that failure by a taxpayer to submit a tax return to the tax authority at the place of registration within the deadline established by the legislation on taxes and fees in the absence of signs of a tax offense provided for in clause 2 of this article, entails a fine in the amount of 5 percent of the tax amount, payable (additional payment) on the basis of this declaration, for each full or partial month from the day established for its submission, but not more than 30 percent of the specified amount and not less than 100 rubles.
In accordance with the procedure for calculating deadlines established by the legislation on taxes and fees, a period calculated in months expires on the corresponding month and day of the last month of the period. If the end of the period falls on a month in which there is no corresponding date, then the period expires on the last day of that month (Article 6.1 of the Tax Code of the Russian Federation).
If the amount of tax to be paid (surcharge) on the basis of tax returns not submitted on time for the tax paid in connection with the application of the taxation system in the form of a single tax on imputed income is zero, then the fine for failure to submit each return in accordance with paragraph 1 of Article 119 of the Tax Code of the Russian Federation should be 100 rubles.
At the same time, it should be taken into account that paragraph 2 of Article 119 of the Tax Code of the Russian Federation does not establish the minimum amount of the fine for failure to submit a tax return for more than 180 days.
This is noted in the letter of the Ministry of Finance of Russia dated February 13, 2007 N 03-02-07/1-63.
"Current problem."
In arbitration practice, there are disputes between taxpayers and tax authorities on the issue of whether a taxpayer applying the tax system in the form of a single tax on imputed income is subject to tax liability under paragraph 1 of Article 119 of the Tax Code of the Russian Federation in the event of failure to submit the appropriate tax return for the tax period, in in which there is no single tax amount to be paid (it is equal to zero).
"Official position."
According to the tax authorities, the fine provided for in paragraph 1 of Article 119 of the Tax Code of the Russian Federation, in any case, cannot be less than 100 rubles (see, for example, letter of the Ministry of Taxes of Russia dated July 4, 2001 N 14-3-04/1279-T890).
Thus, the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation on this issue is set out in paragraph 7 of the information letter dated March 17, 2003 N 71 “Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of part one of the Tax Code of the Russian Federation,” which states that “the taxpayer’s absence based on the results of a specific tax period, the amount of tax payable does not in itself relieve him from the obligation to submit a tax return (Article 80 of the Tax Code of the Russian Federation) for a given tax period, unless otherwise established by the legislation on taxes and fees.”
The Ministry of Finance of Russia, in a letter dated December 22, 2004 N 03-06-05-04/84, supported this position of the Supreme Arbitration Court of the Russian Federation regarding the taxpayer’s failure to submit a tax return for the single tax on imputed income within the time limit established by paragraph 3 of Article 346.32 of the Tax Code of the Russian Federation.
"Arbitrage practice".
However, the established judicial practice on this issue is ambiguous.
According to some courts, as can be seen from the commented Resolution, based on the systemic interpretation of the norms of Articles 346.29 of the Tax Code of the Russian Federation and 346.32 of the Tax Code of the Russian Federation, it follows that payment of tax does not depend on the actual income of the taxpayer, therefore, the submission of a tax return for a single tax on imputed income is even mandatory in the absence of real income. Similar conclusions are also reflected in the Resolutions of the Federal Antimonopoly Service of the Ural District dated 03/21/2006 N F09-1768/06-S1, N F09-1764/06-S1, dated 03/15/2006 N F09-1512/06-S7, dated 02/27/2006 N F09 -941/06-S1, dated 02/07/2006 N F09-114/06-S1.
However, it should be noted that in judicial practice there is also an opposite point of view, according to which if the taxpayer does not carry out activities subject to a single tax on imputed income, then he was not a payer of the specified tax and he does not have the obligation to submit tax single tax declarations to the tax authority.
Example.
The crux of the matter.
The tax authority conducted a desk tax audit of the tax return submitted by the taxpayer on April 21, 2005 for the single tax on imputed income for the 1st quarter of 2005 and found that the declaration was submitted to the tax authority in violation of the deadline established by law. The amount of tax payable to the budget, according to the submitted declaration, amounted to zero rubles.
Having considered the audit materials, the tax authority made a decision to bring the taxpayer to tax liability provided for in paragraph 1 of Article 119 of the Tax Code of the Russian Federation.
The taxpayer, voluntarily, did not pay the fine within the time period established in the tax authority’s request, so the tax authority applied to the arbitration court to collect it.
The court's position.
In accordance with subparagraph 4 of paragraph 1 of Article 23 of the Tax Code of the Russian Federation, taxpayers are required to submit to the tax authority at the place of registration in the prescribed manner tax returns for the taxes that they are obliged to pay, if such an obligation is provided for by the legislation on taxes and fees.
According to Article 19 of the Tax Code of the Russian Federation, taxpayers and payers of fees are organizations and individuals who, in accordance with the Tax Code of the Russian Federation, are obliged to pay taxes and (or) fees, respectively.
Paragraph 1 of Article 346.28 of the Tax Code of the Russian Federation provides that payers of the single tax on imputed income are organizations and individual entrepreneurs carrying out business activities subject to a single tax on the territory of the constituent entity of the Russian Federation in which a single tax has been introduced.
The list of types of business activities in respect of which the taxation system in the form of a single tax on imputed income for certain types of activities can be applied is established in paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation.
By virtue of paragraph 3 of Article 346.32 of the Tax Code of the Russian Federation, tax returns for the single tax on imputed income for certain types of activities based on the results of the tax period are submitted by taxpayers no later than the 20th day of the first month of the next reporting period.
Failure by a taxpayer to submit a tax return to the tax authority at the place of registration within the deadline established by the legislation on taxes and fees is the basis for the application of liability measures under paragraph 1 of Article 119 of the Tax Code of the Russian Federation.
As evidenced by the case materials, the tax authority did not provide evidence that the taxpayer carried out business activities in the 1st quarter of 2005, which were subject to a single tax on imputed income, that is, he did not prove that the taxpayer in the specified period was a payer of the said tax and had obligation to submit a return for this tax.
Under such circumstances, the court concluded that there were no legal grounds for bringing the taxpayer to tax liability provided for in paragraph 1 of Article 119 of the Tax Code of the Russian Federation.
Such conclusions are also reflected, in particular, in the Resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 20, 2006 N A82-8252/2005-14, dated January 23, 2006 N A82-8367/2005-37, dated October 10, 2005 N A38-2623- 4/338-2005, FAS of the North-Western District dated 06/28/2006 N A05-1762/2006-9, dated 06/06/2006 N A42-460/2006.
Tax Code of the Russian Federation, Article 346.32 of the Tax Code of the Russian Federation
1. Payment of the single tax is made by the taxpayer based on the results of the tax period no later than the 25th day of the first month of the next tax period to the budgets of the budget system of the Russian Federation at the place of registration with the tax authority as a single tax payer in accordance with paragraph 2 of Article 346.28 of this Code .
2. The amount of single tax calculated for the tax period is reduced by the amount:
- 1) insurance contributions for compulsory pension insurance, compulsory social insurance in case of temporary disability and in connection with maternity, compulsory medical insurance, compulsory social insurance against industrial accidents and occupational diseases, paid (within the calculated amounts) in a given tax period in compliance with the legislation of the Russian Federation;
- 2) expenses for payment in accordance with the legislation of the Russian Federation of temporary disability benefits (except for industrial accidents and occupational diseases) for days of temporary disability of the employee, which are paid at the expense of the employer and the number of which is established by Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, in the part not covered by insurance payments made to employees by insurance organizations that have licenses issued in accordance with the legislation of the Russian Federation to carry out the relevant type of activity, according to agreements with employers in favor of employees in the event of their temporary disability (except for industrial accidents and occupational diseases) for days of temporary disability, which are paid at the expense of the employer and the number of which is established by Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”;
- 3) payments (contributions) under voluntary personal insurance contracts concluded with insurance organizations that have licenses issued in accordance with the legislation of the Russian Federation to carry out the relevant type of activity, in favor of employees in the event of their temporary disability (except for industrial accidents and occupational diseases) for days of temporary disability, which are paid at the expense of the employer and the number of which is established by Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity.” The specified payments (contributions) reduce the amount of the single tax if the amount of insurance payment under such contracts does not exceed the amount of temporary disability benefits determined in accordance with the legislation of the Russian Federation (except for industrial accidents and occupational diseases) for days of temporary disability of the employee that are paid at the expense of the employer and the number of which is established by Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity.”
2.1. The insurance payments (contributions) and benefits specified in paragraph 2 of this article reduce the amount of the single tax calculated for the tax period if they are paid in favor of employees employed in those areas of the taxpayer’s activity for which the single tax is paid.
In this case, the amount of the single tax cannot be reduced by the amount of expenses specified in this paragraph by more than 50 percent.
Individual entrepreneurs who do not make payments and other remuneration to individuals reduce the amount of the single tax on insurance premiums paid for compulsory pension insurance and compulsory health insurance in a fixed amount.
3. Tax returns based on the results of the tax period are submitted by taxpayers to the tax authorities no later than the 20th day of the first month of the next tax period.
