The simplified taxation system is used by taxpayers along with other taxation regimes. This is stated in paragraph 1 of Art. 346.11 of the Tax Code of the Russian Federation.
However, in practice, an organization can only combine the simplified tax system with UTII. And individual entrepreneurs can combine "simplification" with both UTII and the patent taxation system.
So, it is impossible to work simultaneously on the simplified tax system and on the general taxation system, since each of these regimes applies to all types of activities that the taxpayer conducts.
The "simplification" is also incompatible with the ESHN due to a direct indication of this in paragraphs. 13 p. 3 art. 346.12 of the Tax Code of the Russian Federation.
In addition, the USN is not entitled to apply organizations that are engaged in the gambling business and pay tax on the gambling business.
It is also impossible to combine "simplification" with the taxation system when fulfilling production sharing agreements. After all, the participants in such an agreement are not transferred to the simplified tax system (clause 11, clause 3, article 346.12 of the Tax Code of the Russian Federation).
Thus, at the same time, an organization can only apply the simplified tax system and UTII. "Vmenenka" is applied voluntarily in relation to the types of activities for which the taxpayer has switched to paying UTII and is registered with the inspection, provided that this special regime has been introduced in the relevant territory (Article 346.28 of the Tax Code of the Russian Federation). Therefore, if in relation to the types of activities listed in paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation, UTII is applied, then for other types of activities the organization has the right to apply the simplified tax system.
USN and UTII can be applied by an organization and for one type of activity specified in paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation, but at the same time, separate subdivisions (objects) through which such activities are carried out should not be located:
On the territory of one municipal district;
- on the territory of the federal cities of Moscow and St. Petersburg;
- in the territory of several districts of one city district.
Thus, the combination of UTII and STS for one type of activity is unacceptable for objects that are located:
- on the territory of one municipality;
- in the territory of one city of federal significance.
Let's give an example, organization "X" is engaged in wholesale trade and applies the simplified tax system. It also sells goods at retail in the territory where a taxation regime in the form of UTII has been introduced for retail trade. In such a situation, for retail, organization "X" can apply UTII, and for wholesale - USN.
It should be noted that when combining the USN and UTII, it is necessary to keep separate records (clause 7 of article 346.26 of the Tax Code of the Russian Federation).
Individual entrepreneurs can combine the simplified tax system not only with UTII in the manner described above, but also with the patent taxation system. The patent system of taxation is applied to the types of activities for which an individual entrepreneur has received a patent. For other activities, you have the right to apply the simplified tax system.
As a general rule, organizations that apply the simplified tax system do not pay income tax (paragraph 1, clause 2, article 346.11 of the Tax Code of the Russian Federation).
However, this exemption does not apply to certain types of income. Therefore, with some of them you must pay tax yourself and submit reports to the tax office. For other taxable income, this will be done for you by a tax agent - the person from whom you received such income.
So, when working on the simplified tax system, income tax is paid on the following income (paragraph 1, clause 2, article 346.11 of the Tax Code of the Russian Federation):
1) from dividends.
Moreover, if a Russian organization paid you dividends, then it acts as a tax agent, i.e. must withhold income tax from these incomes and transfer it to the budget (clause 2, article 275 of the Tax Code of the Russian Federation). Thus, in this case, you do not need to pay the tax yourself.
If you received dividends from a foreign organization, you must calculate and pay income tax on them in the general manner.
2) from interest on securities specified in paragraph 4 of Art. 284 of the Tax Code of the Russian Federation, namely:
- on government securities of the member states of the Union State (the Russian Federation, the Republic of Belarus);
- government securities of subjects of the Russian Federation;
- municipal securities;
- mortgage-backed bonds.
3) from the income of the founders of trust management of mortgage coverage received on the basis of mortgage participation certificates.
You must calculate and pay the tax yourself.
In addition, when receiving income from which you must pay income tax under the simplified tax system on your own, you need to file a declaration for this tax with the tax authority.
Foundation and legal basis
The system of taxation in the form of ESHN - the single agricultural tax - is one of the five special tax regimes. It is intended for use in agriculture, as the name suggests.
Like all other special regimes, the ESHN replaces the payment of income tax and VAT, and the ESHN also replaces the payment of corporate property tax.
The unified agricultural tax was introduced by chapter 26.1 of the Tax Code of the Russian Federation. Reporting forms, as usual, are established by the financial department. Also, the legal framework for the UAT can include explanations from the Ministry of Finance and the Federal Tax Service of the Russian Federation - these explanations are not of a regulatory nature, but help to understand various aspects of the application of the tax.
The procedure for switching to ESHN
The transition to a single agricultural tax is a voluntary matter. It is necessary to decide on the desire to apply the EAT by December 31 of the year preceding the year from which the EAT will be applied. It is during this period - until December 31 - that you need to submit a notification to the tax authority at your location (place of residence). It contains data on the share of income from the sale of agricultural products produced by the taxpayer.
A newly created organization or a newly registered individual entrepreneur has the right to notify of the transition to the payment of unified agricultural tax no later than 30 calendar days from the date of registration with the tax authority indicated in his certificate.
Pay attention!
Special conditions for notification of the transition to the Unified Agricultural Tax are established by Article 346.3 of the Tax Code of the Russian Federation for organizations that are included in the unified state register of legal entities on the basis of Article 19 of the Federal Law of November 30, 1994 N 52-FZ.
Organizations and entrepreneurs that have not submitted a notification of the transition to UAT payment within the established time limits are not recognized as UAT payers and, accordingly, will not be able to apply this taxation regime in the new year.
Taxpayers who switched to paying the unified agricultural tax are not entitled to switch to other taxation regimes until the end of the tax period.
If at the end of the tax period the taxpayer ceases to comply with the above mandatory conditions, then he is considered to have lost the right to apply the unified agricultural tax from the beginning of the year in which this violation was committed or revealed.
If the taxpayer has lost the right to apply the UAT, he is obliged to inform the tax authority about the transition to a different taxation regime within 15 days after the expiration of the reporting (tax) period.
Taxpayers have the right to switch from UAT to another taxation regime from the beginning of a new calendar year. To do this, you must again notify the tax authority at the location of the organization (or the place of residence of the individual entrepreneur) no later than January 15.
Taxpayers who have switched to a different taxation regime are entitled to switch back to paying the Unified Agricultural Tax no earlier than one year after the loss of the right to apply it.
Taxpayers
UAT taxpayers- These are organizations and individual entrepreneurs that are agricultural producers and have switched to paying a single agricultural tax in the manner prescribed by the Tax Code of the Russian Federation.
Agricultural producers can be:
- Organizations and individual entrepreneurs:
- producing agricultural products;
- carrying out its primary and subsequent (industrial) processing (including on leased fixed assets);
- selling these products.
All of the above conditions must be met at the same time. If a company does not produce agricultural products, but only buys it, processes it and sells it, then they cannot become a UAT payer.
A prerequisite for switching to the UAT is that based on the results of work for the calendar year preceding the year in which the application for the transition to payment of the UAT is submitted, the share of income from the sale of agricultural products produced must be at least 70% of the taxpayer's total income.
- Agricultural consumer cooperatives - if, based on the results of their work for the previous calendar year, the share of their income from the sale of agricultural products of their own production by members of these cooperatives, as well as from work (services) for members of these cooperatives, is at least 70% of the total income.
- Town- and village-forming Russian fisheries organizations, the number of employees in which, taking into account family members living with them, is at least half of the population of the corresponding settlement. For them, the following conditions are mandatory (for the transition to the ESHN):
- in the total income from the sale of goods (works, services) for the previous year, the share of their income from the sale of their catches and (or) fish and other products produced on their own from them is at least 70%;
- they carry out fishing on the vessels of the fishing fleet owned by them, or use them on the basis of charter agreements (bareboat charter and time charter).
- Fishery organizations and individual entrepreneurs.
Mandatory conditions for the transition to the ESHN:
- the average number of employees, for each of the two calendar years preceding the filing of the notification, does not exceed 300 people;
- in the total income from the sale of goods (works, services), the share of income from the sale of their catches of aquatic biological resources and (or) fish and other products from aquatic biological resources produced on their own from them for the previous year is at least 70%.
A complete list of agricultural producers who are entitled to switch to the payment of the Unified Agricultural Tax is indicated in Article 346.2 of the Tax Code of the Russian Federation.
Not entitled to switch to the payment of the unified agricultural tax:
- organizations and individual entrepreneurs engaged in the production of excisable goods;
- organizations engaged in organizing and conducting gambling;
- state, budgetary and autonomous institutions.
Agricultural products for the purpose of taxation of the UAT include:
- crop production of agriculture and forestry;
- livestock products, incl. obtained as a result of growing and growing fish, as well as other aquatic biological resources.
The closed list of agricultural products was approved by Decree of the Government of the Russian Federation of July 25, 2006 N 458.
Tax exemption
Organizations that have switched to paying the Unified Agricultural Tax are exempted from the obligation to pay:
- corporate income tax;
- corporate property tax;
Individual entrepreneurs who have switched to paying the Unified Agricultural Tax are exempted from the obligation to pay:
- personal income tax (in relation to income received from entrepreneurial activity);
- tax on property of individuals (in relation to property used for entrepreneurial activities);
- value added tax (with the exception of VAT payable upon import of goods into the territory of the Russian Federation and other territories under its jurisdiction).
Other taxes and fees are paid in accordance with the legislation of the Russian Federation on taxes and fees.
Pay attention!
Organizations and individual entrepreneurs who are payers of the unified agricultural tax are not released from the duties of tax agents.
Object of taxation and tax base
The object of taxation under the Unified Agricultural Tax is income reduced by expenses. The procedure for determining income and expenses is established by Article 346.5 of the Tax Code of the Russian Federation.
The tax base is the monetary value of income reduced by the amount of expenses.
The date of receipt of income is the day of receipt of funds to bank accounts and (cash desk), receipt of other property (works, services), property rights, as well as repayment of debt in another way (cash method).
Costs are recognized as costs after they are actually paid.
Incomes and expenses in foreign currency are recalculated into rubles at the exchange rate of the Central Bank of the Russian Federation, established respectively on the date of receipt of income (the date of expenses). Incomes received in kind are taken into account on the basis of the contract price, taking into account market prices determined by the rules of Art. 105.3 NK.
The tax base can be reduced for the tax period by the amount of the loss received as a result of previous tax periods. Taxpayers have the right to carry forward the loss to future tax periods within 10 years following the tax period in which this loss was received.
Organizations are required to keep records of their performance indicators necessary for calculating the tax base and the amount of unified agricultural tax, based on accounting data.
Individual entrepreneurs may not keep accounting records, but they are obliged to keep records of income and expenses for the purposes of calculating the tax base for the UAT in the book of income and expenses of individual entrepreneurs using the UAT. The form and procedure for filling out this book are approved by Order of the Ministry of Finance of Russia dated December 11, 2006 N 169n.
Pay attention!
Taxable period
The tax period is a calendar year.
The reporting period is half a year.
tax rates
The tax rate for the UAT is set by the Tax Code at 6% and is generally unchanged.
However, since 2015, for Crimea and Sevastopol, the possibility of lowering the UAT rate has been introduced. For the period 2015-2016 these regional authorities could reduce the rate to 0%. For the period 2017-2021 reduction is possible only up to 4%.
In 2016, both in Sevastopol and in the Republic of Crimea, a tax rate was set at the Unified Agricultural Tax in the amount of 0.5%.
In 2017, by the Laws of the Republic of Crimea and the city of Sevastopol, the UAT rate was increased to a minimum of 4%.
Pay attention!
According to paragraph 2 of Art. 346.8 of the Tax Code of the Russian Federation, the UAT rate established by the laws of Crimea and Sevastopol for 2017 will not increase until 2021, that is, during this entire period it will be equal to 4%.
The procedure for calculating and paying ESHN. Reporting
When applying the ESHN, the tax is calculated as a percentage of the tax base corresponding to the tax rate. The taxpayer must calculate the tax himself according to the rules established by the Tax Code of the Russian Federation.
Based on the results of the reporting period, it is necessary to calculate the amount of the advance payment, based on the tax rate and the actual income received, reduced by the amount of expenses calculated on an accrual basis from the beginning of the tax period to the end of the half year. The advance payment must be paid no later than 25 calendar days from the end of the reporting period.
After the expiration of the tax period, taxpayers submit tax returns and pay unified agricultural tax to the tax authorities:
- organizations - at their location;
- individual entrepreneurs - at their place of residence.
You must submit your tax return and pay tax for the previous year no later than March 31 of the year.
The tax return form was approved by order of the Federal Tax Service of Russia dated July 28, 2014 N ММВ-7-3 / [email protected] It can be submitted both in paper and electronic form.
Upon termination of activity as an agricultural producer, an organization or an individual entrepreneur must pay tax and submit a declaration for the UAT no later than the 25th day of the month following the one in which, according to the notification, the activity was terminated.
Pay attention!
Taxpayers whose average number of employees for the previous calendar year exceeds 100 people, as well as newly created organizations whose number of employees exceeds the specified limit, submit tax returns and calculations only in electronic form. The same rule applies to the largest taxpayers.
You can see more about electronic reporting.
A complete list of federal electronic document management operators operating in a particular region can be found on the official website of the Office of the Federal Tax Service of Russia for the constituent entity of the Russian Federation.
ESHN: what's new in 2017?
From January 1, 2017, taxpayers applying the Unified Agricultural Tax can take into account the costs of conducting an independent assessment of the qualifications of employees. The corresponding changes were made by the Federal Law of July 3, 2016 N 251-FZ in paragraphs. 26 p. 2 art. 346.5 of the Tax Code of the Russian Federation.
In 2017, by the Laws of the Republic of Crimea and the city of Sevastopol, the UAT rate was increased to the minimum possible 4% and, in accordance with paragraph 2 of Art. 346.8 of the Tax Code of the Russian Federation, the UAT rate will no longer increase until 2021, that is, during this entire period it will be equal to 4%.
Pay attention!
When paying arrears for all taxes, from October 1, 2017, the rules for calculating penalties will change. In case of a long delay, large amounts of penalties will have to be paid - this applies to arrears that arose after October 1, 2017. Changes have been made to the rules for calculating penalties, which are established for organizations in paragraph 4 of Art. 75 of the Tax Code of the Russian Federation.
If, starting from the specified date, the payment is overdue by more than 30 days, the interest will be calculated as follows:
- based on 1/300 of the refinancing rate of the Central Bank of the Russian Federation, effective from the 1st to the 30th calendar days (inclusive) of such a delay;
- based on 1/150 of the refinancing rate of the Central Bank of the Russian Federation, relevant for the period starting from the 31st calendar day of delay.
In case of delay of 30 calendar days or less, the legal entity will pay penalties based on 1/300 of the refinancing rate of the Central Bank of the Russian Federation.
The changes are provided for by the Federal Law of May 1, 2016 N 130-FZ.
If arrears are paid before October 1, 2017, the number of days of delay does not matter, the rate in any case will be 1/300 of the Central Bank refinancing rate. Recall that since 2016 the refinancing rate is equal to the key rate.
Individual entrepreneurs (IP) (including Income of members of a peasant (individual) farm, received in this farm from the production and sale of agricultural products, as well as from the production of agricultural products, their processing and sale, is not taxed for 5 years, counting from the year of registration of the farm, if earlier such a norm is not applied.
"\u003e Peasant (farmer) farms) * engaged in the production of agricultural products can use the single agricultural tax (ESKhN) - a tax regime that was developed and introduced specifically for agricultural producers.2. Who can switch to ESHN?
ESHN can be applied:
- Individual entrepreneurs who produce, process and sell agricultural products;
- Individual entrepreneurs providing services in the field Field preparation, sowing, cultivation and cultivation of crops, seed preparation, pruning of fruit trees and vines, harvesting and the like. And Keeping animals, caring for them, driving and grazing, examining the condition of the herd, culling poultry and the like.*;
- Sole proprietors engaged in the catching of aquatic biological resources.
At least 70% of all IP income must come from sales of agricultural products grown or services rendered. There are additional conditions for fishery IPs engaged in catching aquatic biological resources.
Not entitled to apply ESHN:
- Individual entrepreneurs engaged in the production of excisable goods.
We are talking about services that, in accordance with OKVED (All-Russian Classification of Economic Activities), belong to ancillary activities in the field of crop production and post-harvest processing of agricultural products (sowing crops, pruning fruit trees, harvesting, grazing, etc.).
3. What taxes are exempted from individual entrepreneurs after switching to the Unified Agricultural Tax?
Individual entrepreneurs applying the unified agricultural tax, Exemption is possible provided that the amount of income from the sale of goods (works, services) excluding tax on the Unified Agricultural Tax in the same calendar year or for the previous tax period did not exceed in aggregate:
- for 2018 - 100 million rubles;
- for 2019 - 90 million rubles;
- for 2020 - 80 million rubles;
- for 2021 - 70 million rubles;
- for 2022 and subsequent years - 60 million rubles.
- on the income of individuals in relation to income from entrepreneurial activities (at the same time, the use of the Unified Agricultural Tax does not relieve the individual entrepreneur from performing the functions of calculating, withholding and transferring personal income tax from the wages of employees);
- on the property of individuals (in relation to property used for entrepreneurial activities);
- value added (except for VAT payable upon importation of goods at customs, as well as upon execution of a simple partnership agreement or an agreement on trust management of property)*.
If an individual entrepreneur has employees, the use of the simplified tax system does not exempt him from paying insurance premiums for their mandatory pension and medical insurance.
From January 1, 2019, UAT payers will also be required to pay value added tax.
4. How is the single agricultural tax calculated?
The object of taxation (tax base) for the Unified Agricultural Tax is the monetary value of individual entrepreneur income, reduced by the amount of expenses incurred. The tax base can also be reduced by the amount of the loss incurred in previous years.
The tax rate for this tax is 6%*. The amount of tax paid is calculated by multiplying the tax base by 0.06.
In the Moscow Region, the single agricultural tax rate has been set at 0% since January 1, 2019.
5. How to switch to ESHN?
Applying the ESHN or paying taxes under some other taxation system is a voluntary choice of an individual entrepreneur.
You can switch to ESHN at the same time as. In this case, the notification of the transition must be submitted to the FTS inspectorate at the place of residence, together with a package of documents for registration, or within the next 30 calendar days.
If an individual entrepreneur is already applying some other taxation system, then he can switch to the UAT only from the beginning of the next calendar year. The notification of the transition must be submitted to the FTS inspectorate no later than December 31.
And vice versa: taxpayers paying a single agricultural tax are not entitled to switch to a different taxation regime before the end of the tax period.
6. How and when to pay tax?
Individual entrepreneurs who switched to UAT pay tax and advance payments. The amount of payments based on the results of the reporting (half-year) and tax (calendar year) periods is determined by the taxpayer independently. Documents confirming the correctness of advance payments are not submitted to the FTS inspection.
Advance payments are paid no later than 25 calendar days from the end of the reporting period (half year). Paid advance payments are credited against the tax at the end of the tax period.
Unified agricultural tax on the basis of the results of the tax period, individual entrepreneurs must pay no later than March 31 of the year following the expired tax period.
Budget classification codes, which are indicated on receipts or bank documents for payment of advance payments and tax, are posted on the website of the Federal Tax Service.
If the last day of the deadline for paying the tax (advance payment) falls on a weekend or non-working holiday, the payer is obliged to transfer the tax on the next working day following it.
Since the state has recently paid increased attention to the activities of agricultural enterprises, we considered it appropriate to analyze the problems that taxpayers have to face when applying a special tax regime for agricultural producers.
Organizations and individual entrepreneurs that are agricultural producers in accordance with Chapter 26.1 of the Tax Code of the Russian Federation have the right to voluntarily switch to paying a single agricultural tax (USHT) in the manner prescribed by this chapter of the Tax Code of the Russian Federation (Clause 2, Article 346.1 of the Tax Code of the Russian Federation).
VAT deduction upon transition to the Unified Agricultural Tax
In practice, there are often situations when goods are purchased and used by the taxpayer before the transition to the UAT regime, and paid for after it. Accordingly, the question arises of the possibility of applying the VAT deduction.
Article 346.1 of the Tax Code of the Russian Federation provides that the taxation system for agricultural producers is applied along with the general taxation regime. The transition to the payment of the unified agricultural tax or the return to the general taxation regime is carried out by organizations and individual entrepreneurs voluntarily.
Article 346.2 of the Tax Code of the Russian Federation establishes that organizations and individual entrepreneurs who have switched to paying the UAT in the manner prescribed by Chapter 26.1 of the Tax Code of the Russian Federation are recognized as UAT payers. Based on the meaning of Art. 346.2 and 346.3 of the Tax Code of the Russian Federation, agricultural producers can switch to the UAT regime.
Paragraph 6 of Art. 346.2 of the Tax Code of the Russian Federation it is determined that they are not entitled to switch to the payment of the unified agricultural tax:
- organizations and individual entrepreneurs engaged in the production of excisable goods;
- organizations and individual entrepreneurs engaged in entrepreneurial activities in the field of gambling;
- state-owned, budgetary and autonomous institutions (in connection with the entry into force of the Federal Law of May 8, 2010 No. 83-FZ “On Amendments to Certain Legislative Acts of the Russian Federation in connection with the improvement of the legal status of state (municipal) institutions”).
Thus, only payers of this tax can enjoy the right to tax deductions and reimbursement from the VAT budget.
By virtue of p.p. 3 p. 2 art. 170 of the Tax Code of the Russian Federation, the amounts of VAT presented to the buyer when purchasing goods (works, services), including fixed assets and intangible assets, by persons who are not VAT payers in accordance with Chapter 21 of the Tax Code of the Russian Federation or exempted from the obligation to calculate and pay it, are included in the costs of production and sale of goods (works, services).
According to the official position of the Ministry of Finance of Russia, if persons who have switched to the simplified tax system or the taxation system in the form of UTII calculate for payment to the budget the amount of VAT on goods (work, services) shipped (performed, rendered) before the transition to such special tax regimes, then these persons have the right to deduct the amount of tax on goods (works, services) used in the implementation of transactions for the sale of goods (works, services) that are subject to VAT, but paid after the transition to special tax regimes (letter dated 19.12.05 No. 03-04-15/116). Despite the fact that this letter refers to UTII and the simplified tax system, it seems possible to extend this point of view to the payment of the unified agricultural tax, which is also a special tax regime.
There are separate court decisions confirming the stated official position (decisions of the Federal Antimonopoly Service of the Volga District of July 17, 08 No. A12-10958 / 07, the Federal Antimonopoly Service of the Urals District of December 24, 2007 No. Ф09-10650 / 07-С2).
However, most arbitration courts take the opposite position. The courts point out that if VAT is paid by a taxpayer after switching to a special tax regime, then he does not have the right to deduct the amount of this tax (Decree of the Federal Antimonopoly Service of the Urals District of August 18, 2009 No. Ф09-5876 / 09-С2, 1.02. 06 No. Ф09-34/06-С2, Federal Antimonopoly Service of the North Caucasian District dated 08.28.08 No. Ф08-5017/2008, Federal Antimonopoly Service of the Northwestern District dated 06.30.06 No. А66-911/2005).
In addition, this position was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 4287/05 dated September 13, 2005.
It should be noted that the considered problem is relevant in relation to transactions made before January 1, 2006, as well as after the specified date, for which the condition on the actual payment of tax amounts is preserved, since at that time the rule was applied on the deduction of VAT amounts presented to the taxpayer and paid them when purchasing goods (works, services) on the territory of the Russian Federation, while paragraph 20 of Art. 1 of the Federal Law of July 22, 2005 No. 119-FZ “On Amendments to Chapter 21 of Part Two of the Tax Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation on Taxes and Fees as Invalid” in the first paragraph of clause 2 of Art. 171 of the Tax Code of the Russian Federation, the words "and paid by him" were excluded.
If the UAT payer issued an invoice
In judicial practice, controversial situations arise when UAT payers indicate VAT amounts on invoices. In such cases, the tax authorities consider that the obligation to pay VAT arises, but taxpayers argue that such errors cannot be the basis for paying VAT.
According to paragraph 3 of Art. 346.1 of the Tax Code of the Russian Federation (as amended by Federal Law No. 306-FZ of November 27, 2010 “On Amendments to Part One and Part Two of the Tax Code of the Russian Federation and the Law of the Russian Federation “On Tax Authorities of the Russian Federation”) organizations that are UAT payers , are not recognized as VAT payers (with the exception of VAT payable in accordance with the Tax Code of the Russian Federation when goods are imported into the territory of the Russian Federation and other territories under its jurisdiction, as well as VAT paid in accordance with Article 174.1 of the Tax Code of the Russian Federation).
By virtue of paragraph 3 of Art. 169 of the Tax Code of the Russian Federation, only VAT payers are required to draw up invoices. Therefore, an organization that has switched to paying unified agricultural tax, when carrying out operations subject to this single tax, should not draw up invoices.
Based on paragraph 5 of Art. 173 of the Tax Code of the Russian Federation, in the event that an organization that has switched to paying the Unified Agricultural Tax, issues an invoice to the buyer of goods (works, services) with the allocation of the amount of VAT, the entire amount of tax indicated in this invoice is payable to the budget.
The legitimacy of this norm was confirmed by the Constitutional Court of the Russian Federation in the Ruling of November 7, 2008 No. 1049-О-О. At the same time, the Ministry of Finance of Russia notes that, according to paragraphs. 8 p. 2 art. 346.5 of the Tax Code of the Russian Federation, the amounts of VAT paid on the purchase of goods (works, services) used in the implementation of operations subject to the Unified Agricultural Tax are taken into account as expenses when determining the object of taxation with a single tax (letters dated 12.07.05 No. 03-04-11 / 152 and 31.03.04 No. 04-03-11/51).
On the issue of applying VAT by an organization that is a payer of the Unified Agricultural Tax, when issuing an invoice to the buyer with the allocation of the amount of VAT, the Ministry of Finance of Russia in a letter dated 15.04.10 No. sell goods subject to VAT. At the same time, VAT calculated and paid to the budget from payment (partial payment) received on account of the supply of these goods is not accepted for deduction.
Similar explanations are given by the financial authority regarding the issuance of an invoice by a person applying a different special tax regime (letters of the Ministry of Finance of Russia dated May 16, 2011 No. 03-07-11 / 126, April 29, 2010 No. 03-07-14 / 30 , March 17, 2010, No. 03-07-11/66). Judicial practice supports this position.
As the higher court notes in the decision of the Federal Antimonopoly Service of the Central District dated March 28, 2011 No. A14-5181-2010135 / 33, the lower courts reasonably took into account that the taxpayer applied the taxation system in the form of unified agricultural tax in the disputed tax period and was not a VAT payer , as a result of which he has an obligation to pay tax to the budget in the event that an invoice is issued to the buyer with the allocation of the amount of VAT on the basis of paragraphs. 1 p. 5 art. 173 of the Tax Code of the Russian Federation.
Application of ESHN in the absence of income
In law enforcement practice, there are disputes on the issue of the possibility of applying the UAT by a taxpayer who had no income from the sale of agricultural products in the tax period.
According to paragraph 5 of Art. 346.2 of the Tax Code of the Russian Federation, agricultural producers (with the exception of those specified in clauses 2-4 of this paragraph) are entitled to transfer to the payment of the unified agricultural tax if, based on the results of work for the calendar year preceding the calendar year in which the organization or individual entrepreneur submits an application for transfer to the payment of UAT, in the total income from the sale of goods (works, services), the share of income from the sale of agricultural products produced by them, including primary processing products produced by them from agricultural raw materials of their own production, is at least 70%.
The Federal Tax Service of Russia in a letter dated November 24, 2010 No. ShS-37-3 / [email protected] clarifies the issue of the loss of the status of agricultural producers in the absence of taxpayers' income from the sale of agricultural products produced by them. In accordance with paragraph 2 of Art. 346.3 of the Tax Code of the Russian Federation, a newly created organization or a newly registered individual entrepreneur has the right to apply for the transition to the payment of unified agricultural tax within five days from the date of registration with the tax authority indicated in the certificate of registration with the tax authority, issued in accordance with paragraph 2 of Art. . 84 of the Tax Code of the Russian Federation. In this case, the taxpayer is considered to have switched to the payment of unified agricultural tax in the current tax period. At the same time, the tax period in accordance with Art. 346.7 of the Tax Code of the Russian Federation, a calendar year is recognized.
Paragraph 4 of Art. 346.3 and paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, in particular, it is established that if, according to the results of the tax period, the share of income of the UAT payer from the sale of agricultural products produced by him, including primary processing products produced by him from agricultural raw materials of his own production, in the total income from the sale of goods (works, services) amounted to less than 70%, then the taxpayer is not an agricultural producer and is considered to have lost the right to apply the Unified Agricultural Tax from the beginning of the tax period in which the violation of this restriction was made.
Thus, the main condition that allows the application of the taxation system in the form of UAT is the implementation of the production process by the taxpayer, as well as the receipt of income from its implementation.
If the taxpayer who switched to paying the Unified Agricultural Tax, following the results of the tax period, violated the above restriction, including due to the taxpayer's lack of income from the sale of agricultural products, then in accordance with paragraph 4 of Art. 346.3 of the Tax Code of the Russian Federation, he loses the right to apply the ESHN from the moment of registration with the tax authority.
A taxpayer who has lost the right to apply the UAT, within one month after the expiration of the tax period in which he committed the violation, must recalculate tax liabilities for VAT, corporate income tax, personal income tax, corporate property tax, property tax individuals for the entire tax period in the manner prescribed by the legislation of the Russian Federation on taxes and fees for newly created organizations or newly registered individual entrepreneurs. In addition, such a taxpayer pays penalties for late payment of these taxes and advance payments on them.
However, the jurisprudence on this issue has an opposite position. Thus, the Federal Antimonopoly Service of the Far Eastern District, in its resolution No. F03-2288/2010 dated April 21, 2010, came to the conclusion that the fact of the absence of income from the sale of agricultural products does not indicate the loss of the status of an agricultural producer by the taxpayer, in connection with which the tax authority had no reason to recognize him as having lost his right to ESHN.
VAT deductions upon transition from UAT to the general taxation system
In practice, the issue of the legitimacy of applying tax deductions for VAT in the event of a transition from paying the unified agricultural tax to the general taxation regime when recalculating tax liabilities is controversial.
In this case, the arbitration courts come to the unanimous opinion that since the taxpayer did not calculate and pay the unified agricultural tax, i.e. did not apply a special taxation regime from the very beginning of the calendar year, and all legal relations are regulated according to the rules of the general taxation regime, then the use of a VAT deduction is lawful (for example, resolutions of the Federal Antimonopoly Service of the North Caucasus District dated November 28, 06 No. F08-6071 / 2006-2511A and the Federal Antimonopoly Service of the West Siberian District dated June 11, 2008 No. F04-2600/2008 (6445-A03-41).
Application of ESHN in the order of succession
Disputes often arise on the issue of the possibility of applying the UAT by taxpayers who are successors of reorganized legal entities without submitting an appropriate application to the tax authority, if the legal entity had already applied this special regime before the reorganization.
Based on the meaning of Art. 50 of the Tax Code of the Russian Federation, the obligation to pay taxes of a reorganized legal entity, as well as the due amounts of fines imposed on a legal entity for committing tax offenses before the completion of its reorganization, is performed by its successor (successors) in the manner established by this article of the Tax Code of the Russian Federation. At the same time, in order to resolve the issue under consideration, one should proceed from the fact that, by virtue of paragraph 1 of Art. 57 of the Civil Code of the Russian Federation, transformation is one of the forms of reorganization of a legal entity, and according to paragraph 5 of Art. 58 of the Civil Code of the Russian Federation, the transformation of a legal entity of one type into a legal entity of another type is, in fact, a change in the legal form of a legal entity.
In addition, on the basis of clause 4 of the Regulations on the Federal Tax Service, approved by Decree of the Government of the Russian Federation of September 30, 2004 No. 506 (hereinafter referred to as the Regulations), the Federal Tax Service of Russia conducts its activities directly and through its territorial bodies in cooperation with other federal executive bodies authorities, executive authorities of the constituent entities of the Russian Federation, local governments and state non-budgetary funds, public associations and other organizations.
According to paragraph 5.3.1 of the Regulations, the Federal Tax Service of Russia carries out state registration of legal entities and individuals as individual entrepreneurs and peasant (farm) enterprises.
It should be noted that earlier arbitration courts did not have a unified position on this issue.
As stated in the decision of the Federal Antimonopoly Service of the Urals District dated September 21, 2009 No. Ф09-7009 / 09-С2, the taxpayer organization is the full legal successor of the organization that applied the tax regime in the form of payment of the unified agricultural tax. Since in this case there is a universal succession, the right of the reorganized legal entity to apply the taxation regime in the form of payment of unified agricultural tax passes to the newly emerged legal entity along with other rights.
The taxpayer calculated and paid the single tax, submitted tax reporting on it, i.e. by his actions confirmed the will to transfer to the specified tax regime. At the same time, the obligation of the reorganized person to apply for the transition to a special tax regime in the event that the organization paid the unified agricultural tax before the reorganization is not provided for by the current legislation.
At the same time, the Federal Antimonopoly Service of the Volga-Vyatka District, in its resolution of October 22, 2009 No. A79-6037 / 2009 (hereinafter referred to as the Resolution No. A79-6037 / 2009), when considering the situation related to the question of the legality of the application of the Unified Agricultural Tax by an organization that is the legal successor of the state unitary enterprise through the transformation of the enterprise through privatization and an agricultural producer that continued to apply the named tax regime, but did not submit an application for the transition to the payment of the Unified Agricultural Tax, notes that the organization did not fulfill one of the conditions for the possibility of applying a special tax regime in the form of payment of the Unified Agricultural Tax, and therefore unlawfully used this taxation regime, and the organization’s reference to the fact that tax declarations for unified agricultural tax were submitted to the tax authority during the audited period, as well as the absence of any comments from the tax authority on the results of desk audits of these declarations does not indicate the legality of the application of the specified about the special tax regime.
However, by the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 563/10 dated June 15, 2010 (hereinafter referred to as the Decree No. 563/10), Decree No. A79-6037/2009 was canceled.
According to the Presidium of the Supreme Arbitration Court of the Russian Federation, the organization retained the profile of activities carried out by the enterprise before its privatization, remaining an agricultural producer. Having registered the corresponding transformation of a legal entity, the organization applied the Unified Agricultural Tax for about two years in the absence of any comments from the tax authority on the results of in-house audits of tax returns submitted during the specified period.
In view of the foregoing, the Presidium of the Supreme Arbitration Court of the Russian Federation concluded that if the organization, after registration, did not submit a written statement of intent to pay the unified agricultural tax, then in this case this could not serve as a basis for bringing it to tax liability and recalculating its tax liabilities under the general taxation system.
Prior to the adoption of Decree No. 563/10, the authorities insisted on the obligation to submit an application for the transition to the UAT system to the tax authority when transforming a legal entity (letter of the Ministry of Finance of Russia dated July 4, 2008 No. 03-11-04 / 1/11). After the appearance of Decree No. 563/10, the tax authorities agreed with the position of the Presidium of the Supreme Arbitration Court of the Russian Federation (clause 39 of the Review of Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation on Tax Disputes, set out in the letter of the Federal Tax Service of Russia dated 12.08.11 No. SA-4-7 / [email protected]).
Income received by an organization-participant of a simple partnership agreement
Until recently, there was no consensus on whether income, according to which only the production and sale of agricultural products is carried out by several agricultural producers, is taken into account when determining the share of income that gives such an organization the right to apply the taxation system in the form of payment of the Unified Agricultural Tax.
In accordance with paragraph 9 of Art. 250 of the Tax Code of the Russian Federation, non-operating income is recognized in the form of income distributed in favor of the taxpayer with his participation in a simple partnership and taken into account in the manner prescribed by paragraph 4 of Art. 278 of the Tax Code of the Russian Federation.
According to the Ministry of Finance of Russia, expressed in a letter dated July 5, 2011 No. 03-11-09 / 39, art. 346.2 of the Tax Code of the Russian Federation does not provide for the right of organizations and individual entrepreneurs when participating in a simple partnership to take into account in order to obtain the status of an agricultural producer when determining in the total income from the sale of goods (works, services) the share of income from the sale of agricultural products produced by these organizations and individual entrepreneurs, including products its primary processing, produced by them from agricultural raw materials of their own production, income received from the sale of agricultural products produced under a simple partnership agreement and distributed among the participants. The Ministry of Finance of Russia also noted in this letter that the financial authority had previously given clarifications, according to which, in order to obtain the status of an agricultural commodity producer, when determining in the total income from the sale of goods (works, services) the share of income from the sale of agricultural products produced by these organizations and individual entrepreneurs, including products of its primary processing, produced by them from agricultural raw materials of their own production, income from the sale of agricultural products produced within the framework of a simple partnership and distributed among participants, were not taken into account (letter dated 14.07.09 No. 03-11-06/1/31) .
In judicial practice, there are different points of view on the issue under consideration.
In the Determination of the Supreme Arbitration Court of the Russian Federation of October 8, 2010 No. VAC-9534/10, it is indicated that from paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, which determines that UAT payers are organizations and individual entrepreneurs producing agricultural products, it follows that the right to apply this special tax regime is associated primarily with the type of activity carried out by the taxpayer, and not with which category the income received from this activity, for tax purposes.
Neither the norm of paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, nor other provisions of Chapter 26.1 of the Tax Code of the Russian Federation do not exclude the possibility of applying the taxation system for agricultural producers in the event that the work at certain stages of the production of agricultural products is carried out by the taxpayer with the involvement of other organizations by concluding work contracts with them, paid services or contracts about joint activities. Chapter 26.1 of the Tax Code of the Russian Federation does not contain a prohibition similar to that provided for in clause 2.1 of Art. 346.26 of the Tax Code of the Russian Federation (in accordance with this rule, the use of a special taxation regime in the form of UTII is excluded when carrying out the type of activity falling under this regime under a simple partnership agreement).
In addition, the Federal Antimonopoly Service of the North Caucasus District, in its decision No. A32-25409 / 2008-3 / 418 dated May 31, 2010, considered it correct that the lower court concluded that the legislation did not introduce restrictions on classifying participants in a joint activity agreement as agricultural producers in the manner prescribed by Chapter 26.1 of the Tax Code of the Russian Federation.
At the same time, in the resolution of the Federal Antimonopoly Service of the Volga District dated May 13, 2010 No. A57-24991 / 2009 (hereinafter - Resolution No. A57-24991 / 2009) it is noted that from the requirement of paragraph 2 of Art. 346.2 of the Tax Code of the Russian Federation, it does not follow that when determining the status of an individual taxpayer as an agricultural producer for the purposes of calculating the UAT, income from the sale of agricultural products of this taxpayer includes income from the sale of products, individual stages of production of which were carried out by third-party organizations or individual entrepreneurs.
However, in Decree No. 9534/10 of December 28, 2010 (hereinafter referred to as Decree No. 9534/10), the Presidium of the Supreme Arbitration Court of the Russian Federation canceled Decree No. the sale of agricultural products produced within the framework of joint activities, is lawfully taken into account by it when resolving the issue of the right to apply the taxation system for agricultural producers.
In letter No. 03-11-09 / 39, the Ministry of Finance of Russia adjusted its position on the issue under consideration and drew attention to the need to use the conclusions of Decree No. 9534/10 in work, taking into account the actual circumstances of the case under consideration, without giving them a universal character.
So, if an organization is a party to a simple partnership agreement, in accordance with which only the production and sale of agricultural products is carried out by several agricultural producers, then when determining the share of income from the sale of agricultural products produced by the organization, including products of its primary processing, made from agricultural raw materials of its own production , in the total income from the sale of goods (works, services) for the purposes of applying Chapter 26.1 of the Tax Code of the Russian Federation, it is possible to take into account income from the sale of agricultural products received under a joint activity agreement, as provided for in Resolution No. 9534/10.
However, if the simple partnership agreement is not related to the production and sale of agricultural products, or if such production and sale are not the main or predominant activities under the simple partnership agreement, then when determining the share of income that gives the organization the right to apply the taxation system for agricultural producers, Decree No. 9534/10 is not taken into account.
Firms and companies that are producers of agricultural products have the right to switch to paying a single agricultural tax. In this case, they lose the obligation to pay ordinary taxes - income tax (for individual entrepreneurs - personal income tax), VAT and property tax, which replaces one general budget payment for them. Accordingly, for such taxpayers, both the tax and the reporting period for the Unified Agricultural Tax are provided for separately by the legislation.
Reporting period for the unified agricultural tax
According to Article 346.7 of the Tax Code, the reporting period for the unified agricultural tax is recognized as half a year. The tax period on the basis of the same article is a year.
Agricultural tax is paid in advance. This means that at the end of the reporting period, that is, half a year, the payer is obliged to independently calculate the tax payment and transfer it to the IFTS. Firms pay with the tax office at their legal address, individual entrepreneurs - at their registration address. The period during which the amount must be transferred is 25 calendar days from the end of the six months. Thus, it is necessary to transfer the advance payment according to the Unified Agricultural Tax before July 25. The declaration is not submitted during this period. So the reporting period for agricultural tax is relevant only in the context of budget settlements.
At the end of the year, both firms and individual entrepreneurs calculate the final payment as part of the application of the agricultural special regime. It is determined on the basis of the annual tax base, that is, income minus expenses and a tax rate of 6%. The total amount of the unified agricultural tax is transferred to the IFTS minus the previously transferred advance payment. The term for transferring the annual payment under the EKHSN is March 31. It is the same for organizations and individual entrepreneurs. The agricultural tax return must also be filed by the same date.
Example
Romashka LLC is a payer of the UAT. According to the results of the first half of the year, the tax base under the special regime amounted to 450,000 rubles. The amount of annual income minus expenses amounted to 670,000 rubles.
The reporting period for ESHN is half a year. Based on its results, by July 25, Romashka LLC will transfer to the Federal Tax Service Inspectorate:
450,000 x 6% = 27,000 rubles.
The amount of the annual tax will be:
670,000 x 6% = 40,200 rubles.
Thus, before March 31 of the year following the tax period, the company is obliged to pay extra to the IFTS:
40,200 - 27,000 = 13,200 rubles.
It should be especially noted that, despite the absence of the obligation to submit a semi-annual declaration, and the very name of the semi-annual payment is “advance”, payers of the UAT have no right not to transfer it. Although the legislation does not provide for penalties for late advance payments, penalties for late transfer of such an amount will be with one hundred percent probability. They are calculated traditionally, according to the formula 1/300 of the key rate of the amount owed for each day of delay in payment. The accrual of penalties in such situations occurs at the end of the tax year after the filing of the declaration. It is from it that controllers learn about the amounts that taxpayers were required to transfer based on the results of the six months and the year as a whole.
