Transfer of personal income tax at the expense of the agent of the consequences. Is it possible by law to pay personal income tax and insurance premiums before paying salaries? What does this mean for the employer? What is the risk
Commentary to the Decree of the Federal Antimonopoly Service of the North-Western District of December 10, 2013 N A56-16143 / 2013 "On the refusal to satisfy the cassation appeal of the tax inspectorate against the decision of the court that refused to consider the advance transfer of personal income tax by a tax agent as a violation of tax legislation"
What they came up with in one of the tax inspectorates in St. Petersburg is more than creative. The tax authorities out of the blue found grounds to recover the second time from the company - the tax agent, listed before the income in the form of wages was paid to employees.
That's just the FAS of the North-Western District in the commented Decree of December 10, 2013 N A56-16143 / 2013 did not appreciate such creativity. He supported the conclusions of the courts of first and appellate instances, which disagreed with the decision of the tax inspectorate. But dashing trouble is the beginning! The tax authorities can try to go even higher - to the Supreme Arbitration Court of the Russian Federation. And he, as we know, can sometimes make creative decisions too ...
Payment of personal income tax to the budget before salary payment
The company transferred personal income tax to the budget even before it paid wages to its employees. It was a fatal step.
Transfer of tax from own funds
In accordance with Art. 24 of the Tax Code of the Russian Federation recognizes persons who are responsible for calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation. Tax agents transfer withheld taxes in the manner prescribed by the Tax Code of the Russian Federation for the payment of taxes by a taxpayer.
Paragraph 3 of Art. 226 of the Tax Code of the Russian Federation establishes that the amounts of personal income tax are calculated by tax agents on an accrual basis from the beginning of the tax period at the end of each month in relation to all taxable at a rate of 13% income accrued to the taxpayer for this period, offset by the amount of tax withheld in previous months of the current tax period.
Tax agents are required to withhold the accrued amount of personal income tax directly from the taxpayer's income when they are actually paid (clause 4, article 226 of the Tax Code of the Russian Federation). Withholding from the taxpayer of the accrued amount of tax is carried out by the tax agent at the expense of any funds paid by the tax agent to the taxpayer, in the event of the actual payment of these funds to the taxpayer or on his behalf to third parties.
By virtue of paragraph 6 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to transfer the amounts of calculated and withheld personal income tax no later than the day of actual receipt of cash in the bank for the payment of income, as well as the date of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or, on his behalf, to the accounts of third parties in banks.
The date of actual receipt of income is defined as the day of payment of income, including the transfer of income to the taxpayer's accounts in banks or, on his behalf, to the accounts of third parties, when receiving income in cash (clause 1, clause 1, article 223 of the Tax Code of the Russian Federation). And when receiving income in the form of wages, the date of actual receipt by the taxpayer of such income is recognized the last day of the month for which he was accrued income for the performed labor duties.
And here the tax authorities report that since the company transferred the amount of personal income tax before it paid the employees wages, then it (de jure) transferred the amount of tax at its own expense, which is prohibited by law. This means that the amount paid is not recognized as a transfer of tax, respectively, the company has arrears, fines and penalties!
That's it!
The fulfillment of the obligation to pay tax also applies to tax agents
It was not so easy for the court to refute the logic of constructing the conclusions of the tax authorities purely legally. Nevertheless, he did it.
By virtue of paragraph 4 of Art. 24, paras. 1 p. 3 art. 44 and pp. 1 p. 3 art. 45 of the Tax Code of the Russian Federation, the obligation of a tax agent to transfer tax is considered fulfilled from the moment an instruction is presented to the bank for transferring funds to the budget system of the Russian Federation to the appropriate account of the Federal Treasury from a bank account if there is a sufficient cash balance on it on the payment date.
In the same paragraph 1 of Art. 45 of the Tax Code of the Russian Federation establishes that the obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees. However, the taxpayer has the right to fulfill the obligation to pay tax ahead of schedule. At the same time, the rule on early payment of tax applies to for tax agents(Clause 8, Article 45 and Clause 2, Article 24 of the Tax Code of the Russian Federation).
Further, the court referred to the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 17, 2002 N 2257/02, which dealt with the issue of early payment of tax. There, the judges indicated that the said rule meant payment of tax if there is a corresponding obligation, but before the deadline established by law. Since Art. 45 of the Tax Code of the Russian Federation is applied to fulfill a tax obligation, then another payment in accordance with the general rules is considered completed only if funds are received by the budget.
There is also the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 27, 2011 N 2105/11. It was also said there that the rule on early payment of tax means the payment of tax, if there is a corresponding obligation, after the end of the tax or reporting period, when the tax base is formed and the amount of tax payable is determined, but before the statutory payment deadline. Since this provision applies only to bona fide taxpayers, the provisions of Art. 45 of the Tax Code of the Russian Federation are applied taking into account the circumstances characterizing the taxpayer and his good faith in fulfilling the tax obligation, including its existence.
On our own, we note that all this talk about the good faith of the taxpayer was largely caused by the fact that in the cases under consideration it was about tax payments hanging in problem banks, and the tax authorities suspected taxpayers of creating artificial tax evasion schemes.
In the case considered in the commented Resolution, the amount of personal income tax to be transferred to the budget, calculated on the basis of primary documents, was determined by the company correctly. Based on this, the court considered that as of the moment the tax was transferred to the budget, the amount of tax had already been determined.
Since the payment went to the appropriate account of the Federal Treasury, there were no debts for the company as a tax agent. Therefore, it is impossible to talk about the presence of arrears.
Our opinion
To be honest, we could not find the official opinion of officials on this issue. There is a Letter of the Federal Tax Service of Russia dated 10/19/2011 N ED-3-3 / [email protected], which says that if an organization transfers more personal income tax to the budget than it withheld from an employee, then the excess amount is not a tax. In this case, companies are advised to apply to the tax office with an application for the return of erroneously transferred funds.
Some experts suggest that the amount of early transferred tax at the expense of the organization, from the point of view of the Federal Tax Service of Russia, is not regarded as a tax.
We repeat, there is still no specific position of officials on the issue under consideration.
But even if you just turn on the logic, the position of the tax authorities looks completely flawed.
Firstly, the transferred amount of personal income tax will reduce the amount of wages given to employees. This means that the payment is still made at the expense of the employees, and not the employer. Otherwise, the strange logic of the tax authorities can be brought to the point of absurdity. It turns out that the company must first give the full amount of wages into the hands of employees. Thus, the money from the company's funds will formally turn into employees' funds (after all, the company pays salaries to employees at its own expense). But part of the money must be immediately taken away from the workers to pay the tax. Agree that this is, to put it mildly, absurd.
Secondly, personal income tax can be transferred not later the day the money is transferred to the bank for the payment of wages (clause 6, article 226 of the Tax Code of the Russian Federation). Purely formal early payment of personal income tax occurs no later than the day of transfer. Well, where did the tax authorities see a violation here?
To date, tax legislation obliges all taxpayers to transfer the established fees within the time period provided for by law. Despite this, many employers have a question, is it possible to transfer salary payments earlier?
What does the law say?
So, before answering the question of whether it is possible to pay personal income tax before paying salaries, it is necessary to understand what personal income tax is, who should transfer it to the budget, and also what is the deadline for its transfer.
personal income tax- tax fee, which is paid by payers recognized as residents of the Russian Federation, in the amount of 13% of the amount of income that they received for a certain period.
Such a fee is usually transferred by the employer after the salary of the employee is calculated.
In the case when a person is engaged in self-employed activities, the obligation to transfer is assigned to him.
In accordance with the provisions of the Tax Code of the Russian Federation, personal income tax must be transferred no later than the date that follows the date of payment of funds. There are no other provisions in the law.
Is it possible to pay personal income tax before the payment of wages?
Returning to the question of whether it is possible to pay personal income tax before paying salaries, the legislation unequivocally answers - No, transfer of a tax payment, as a fulfillment of the duty of a tax agent until the moment of accrual of funds is not allowed.
This position is reflected in the decision of the Federal Tax Service dated 05.05.16 No. SA-4-9/8116. In accordance with this regulatory document, the employer is obliged to perform the function of a tax agent only after the salary has been accrued and the amount in the established amount can be withheld from it. Such funds cannot be transferred in advance (see). The Ministry of Finance adheres to the same position (letter dated 16.09.14 No. 03-04-06/46268).
Consequences
What is the danger of paying personal income tax before paying salaries?
The transferred funds before the fact of salary accrual will not be counted by the tax service as a fulfillment of the obligation of the organization. This means that after the date of transfer, penalties will be applied to the organization.
In addition, in order to return the funds, the organization will have to administratively apply to the tax service with a request for a refund.
Payment of income tax in advance. What does the Tax Code say? Letter of the Ministry of Finance of the Russian Federation of September 16, 2014 N 03-04-06 / 46268. Decision of the Federal Tax Service of Russia dated 05.05.2016 No. SA-4-9 / [email protected]
Tax Code on the payment of personal income tax
According to the Tax Code of the Russian Federation, the calculation of personal income tax by a tax agent is carried out from the actually accrued (clause 2 of article 223 of the Tax Code) wages, the accrued amount of tax is withheld directly from the taxpayer's income when they are actually paid (clause 4 of article 226 of the Tax Code) and transferred to the budget no later than the day following the day of payment of income to the taxpayer (clause 6 of article 226 of the Tax Code). It should be borne in mind that the date of accrual and the date of payment of income in this case may not coincide (clause 1 of article 223 of the Tax Code is an exception).
Since the payment of tax at the expense of tax agents is not allowed (clause 9 of article 226 of the Tax Code), it is impossible to transfer personal income tax in advance, according to the Tax Code.
The same applies to the transfer of personal income tax, calculated from the amount of vacation pay, taxable benefits, settlements upon dismissal.
Examples from personal experience of how an error can occur when paying personal income tax:
- since personal income tax has already been calculated from the wages actually accrued on the last day of the month and its amount is known, the accountant may, by mistake or unknowingly, transfer it together with contributions to social funds earlier than the day the wages are actually paid;
- re-transfer of already paid personal income tax from vacation pay in the past month, together with the main personal income tax payment in the current month for the previous one.
Excerpts from articles 223 and 226 of the Tax Code of the Russian Federation as amended on 07/03/2016:
Paragraph 1 of Article 223 of the Tax Code:
For the purposes of this chapter, unless otherwise provided paragraphs 2 - 5 of this article, the date of actual receipt of income is defined as the day:
1) payment of income, including the transfer of income to the accounts of the taxpayer in banks or, on his behalf, to the accounts of third parties - when receiving income in cash ...
Paragraph 2 of Article 223 of the Tax Code:
When receiving income in the form of wages, the date of actual receipt by the taxpayer of such income is the last day of the month for which he was accrued income for the performed labor duties in accordance with the employment agreement (contract). (as amended by Federal Law No. 166-FZ of December 29, 2000)
In case of termination of labor relations before the expiration of the calendar month, the date of actual receipt by the taxpayer of income in the form of wages is the last day of work for which he was accrued income. (As amended by Federal Law No. 216-FZ of July 24, 2007)
Paragraph 3 of Article 226 of the Tax Code:
The calculation of tax amounts is carried out by tax agents on an accrual basis from the beginning of the tax period at the end of each month in relation to all income in respect of which the tax rate established by paragraph 1 of Article 224 of this Code is applied, accrued to the taxpayer for this period, with an offset of the current tax withheld in previous months tax period. (as amended by Federal Law No. 166-FZ of December 29, 2000)
Paragraph 4 of Article 226 of the Tax Code:
Tax agents are required to withhold the accrued amount of tax directly from the taxpayer's income when they are actually paid.
Paragraph 6 of Article 226 of the Tax Code:
Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day of payment of income to the taxpayer. (as amended by Federal Law No. 113-FZ of May 2, 2015)
When paying a taxpayer income in the form of benefits for temporary disability (including benefits for caring for a sick child) and in the form of vacation pay, tax agents are required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made. (as amended by Federal Law No. 113-FZ of May 2, 2015)
Paragraph 9 of Article 226 of the Tax Code:
Payment of tax at the expense of tax agents is not allowed. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume the obligation to bear the costs associated with the payment of tax for individuals.
If personal income tax has already been transferred in advance
If you have transferred personal income tax in advance, it will not be credited to the corresponding CCC. True, only if a tax audit reveals this - and 6-NDFL is now to help them. Before the introduction of 6-personal income tax, the tax authorities did not notice much (from personal experience).
But in the old days, before January 1, 2016, there were some nuances. For example, tax agents with a non-cash form of payment of wages were required to pay personal income tax no later than the day the income was transferred to the accounts of their taxpaying employees (that is, both payments had to go through on the same day). The tax authorities checked and compared the time of sending a payment order for the payment of wages and the time of sending a payment order for the payment of personal income tax, and if the payment of personal income tax took place earlier, it was considered advance and, accordingly, not valid.
What should I do if I mistakenly made a transfer of personal income tax in advance?
1. Since it is not possible to offset the erroneously paid amounts against future payments for the specified tax, it is necessary to apply to the tax authority with an application for the return to the organization's current account of the amount that is not a tax on personal income and erroneously transferred to the budget system of the Russian Federation (Letter of the Federal Tax Service dated July 4, 2011 No. ED-4-3 / 10764 "On tax refund").
2. Pay the tax on personal income in the prescribed manner in full, without waiting for the return of previously paid funds.
Letter of the Ministry of Finance of the Russian Federation of September 16, 2014 N 03-04-06 / 46268
Letter of the Ministry of Finance of the Russian Federation of September 16, 2014 N 03-04-06 / 46268 "PIT: on the return (offset) of tax amounts withheld and transferred from income in the form of wages before the date it is received by the taxpayer":
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
LETTER
dated September 16, 2014 N 03-04-06 / 46268The Department of Tax and Customs Tariff Policy has considered the letter of LLC on the issue of transferring personal income tax to the budget and, in accordance with Article 34.2 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), explains the following.
In accordance with paragraph 2 of Article 223 of the Code, the date of actual receipt by the taxpayer of income in the form of wages is the last day of the month for which he was accrued income for the performed labor duties in accordance with the employment agreement (contract). On the last day of the month for which the taxpayer was accrued income in the form of wages, the tax agent calculates the amounts of tax on an accrual basis from the beginning of the tax period based on the results of each month accrued to the taxpayer for this period, offsetting the amount of tax withheld in previous months of the current tax period ( paragraph 3 of Article 226 of the Code).
Therefore, before the expiration of the month, income in the form of wages cannot be considered received by the taxpayer. Accordingly, there are no grounds for calculating the tax to be withheld and transferred to the budget.
On the basis of paragraph 4 of Article 226 of the Code, tax agents are obliged to withhold the accrued amount of tax directly from the taxpayer's income when they are actually paid.
According to paragraph 6 of Article 226 of the Code, tax agents are obliged to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash in the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or, on his behalf, to the accounts of third parties. persons in banks.
At the same time, payment of tax at the expense of tax agents is not allowed (paragraph 9 of Article 226 of the Code).
Consequently, the transfer of personal income tax by a tax agent in advance, that is, before the date the taxpayer actually receives income, is not allowed.If the organization - tax agent has made an excessive payment on account of personal income tax in advance, it is not possible to offset the erroneously paid amounts against future payments for the specified tax. In this case, the tax agent should apply to the tax authority with an application for the return to the settlement account of the organization of the amount erroneously transferred to the budget system of the Russian Federation, and pay the personal income tax in accordance with the established procedure in full, regardless of the return of previously paid funds.
Director of the Tax Department
and customs tariff policy
I.V. TRUNIN
Decision of the Federal Tax Service of Russia dated 05.05.2016 No. SA-4-9 / [email protected]
Reprint of the abridged version of the Decision with website of the Federal Tax Service of Russia :
SA-4-9/ [email protected]
Decision date: 05.05.2016
Solution number: SA-4-9/ [email protected]
The tax authority that made the decision: Central Office of the Federal Tax Service of Russia
Articles of the Tax Code: Article 24, Article 75, Article 226
Type of tax: Personal Income Tax
The topic of the tax dispute: The transferred amount of funds to the budget until the withholding of personal income tax is own funds, not personal income tax
The position of the tax authority, non-normative acts whose actions (inaction) are being appealed: The Company, in violation of Articles 24, 226 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), unlawfully did not transfer the withheld amount of personal income tax in 2011 as a tax agent, in connection with which, the applicant additional personal income tax and the corresponding amounts of penalties.
Position of the taxpayer: The Company does not partially agree with the decision, as it believes that the tax authority did not take into account the Applicant's personal income tax overpayment as of 01/01/2011, formed in connection with the payment of personal income tax by a payment order dated 12/22/2010. The budget had these funds at its disposal, and therefore there are no grounds for assessing additional tax and the corresponding amount of penalties.
The legal position of the tax authority that issued the decision on the complaint:
Clause 5 of Article 24 of the Code establishes that a tax agent shall be liable for failure to perform or improper performance of the duties assigned to him in accordance with the legislation of the Russian Federation.
According to paragraph 4 of Article 226 of the Code, tax agents are required to withhold the accrued amount of tax directly from the taxpayer's income when they are actually paid.
Paragraph 6 of Article 226 of the Code provides that tax agents are obliged to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash in the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or on his behalf to third party bank accounts. (There was a mistake here. As of the date of the Decision - 05/05/2016 - paragraph 6 of Article 226 of the Code provides that tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day the income is paid to the taxpayer. Comment "Time does not wait.")
According to paragraph 9 of Article 226 of the Code, payment of tax at the expense of tax agents is not allowed.
Article 231 of the Code at the expense of forthcoming tax payments provides only for the return to the taxpayer of the excessively withheld amount of tax.
Thus, the amount transferred to the budget system of the Russian Federation, which exceeds the amount of the tax on personal income actually withheld from the income of individuals, is not a tax on personal income. The transfer of the specified amount was made illegally.
The tax agent has the right to apply to the tax authority with an application for the return to the settlement account of the organization of the amount that is not a tax on personal income and erroneously transferred to the budget system of the Russian Federation.
It follows from the materials of the on-site tax audit that the company partially did not transfer tax to the budget at the time of withholding the amount of personal income tax from individuals (taxpayers).
In addition, the fact that the company accrued and withheld personal income tax from taxpayers earlier established by Chapter 23 of the Code is not confirmed by the materials of the on-site tax audit.
Under such circumstances, the Federal Tax Service considers the conclusion of the tax authority that the company violated articles 24, 226 of the Code, expressed in the unlawful non-transfer of the withheld amount of personal income tax in 2011 as a tax agent, in connection with which, the applicant was charged additional personal income tax and the corresponding amount of penalties, justified and relevant legislation on taxes and fees.
For one reason or another (due to an error, intentionally, in connection with the subsequent possible shortage of funds in the current account), companies transfer personal income tax in a larger amount than they withheld from the employee. However, according to the regulatory authorities, it is impossible to reduce current personal income tax payments by the amount of such an overpayment.
In practice, a situation is common when, having transferred an excess amount of personal income tax (for example, due to a counting error), a company transfers an amount less in the next period, that is, it independently offsets the overpaid amount of personal income tax.
If this rule works for “ordinary” taxes, then the situation is different with regard to personal income tax. Many tax agents are faced with the fact that they ignore the overpayment, charge penalties and fines on the unpaid amount of personal income tax.
In order to understand the reason for additional personal income tax charges in such a situation, let us turn to the definition of a tax agent.
The concept of a tax agent
The concept of tax agents is given in Article 24 of the Tax Code of the Russian Federation. Tax agents are persons who are responsible for calculating, withholding from an individual and transferring taxes to the budget system of the Russian Federation. The functions of a tax agent include the correctness and timeliness of calculating and withholding taxes from the funds paid to taxpayers, as well as transferring them to the appropriate accounts of the Federal Treasury.
In terms of personal income tax, the fulfillment of the duty of a tax agent consists in withholding the accrued amount of tax directly from the income of an individual when they are actually paid (clause 4, article 226 of the Tax Code of the Russian Federation). Failure to fulfill the duties of a tax agent entails the accrual of penalties and fines (Article 75, Article 123 of the Tax Code of the Russian Federation).
When calculating personal income tax, the main role is played by the date of actual receipt of income. It is the date of actual receipt of income that determines the moment of deduction and transfer of personal income tax.
Date of actual receipt of income
Each type of income has its own date of actual receipt. For example, when receiving income in cash, the date of income is defined as the day of payment of income, including the transfer of income to the taxpayer's accounts in banks or, on his behalf, to the accounts of third parties (clause 1, article 223 of the Tax Code of the Russian Federation).
When receiving income in the form of wages, the date of actual receipt of income is the last day of the month for which the employee was accrued income (clause 2, article 223 of the Tax Code of the Russian Federation). That is, the employee receives income in the form of wages only on the last day of the month (Letters of the Ministry of Finance of the Russian Federation dated October 27, 2015 No. 03-04-07 / 61550, dated July 22, 2015 No. 03-04-06 / 42063).
The accrued amount of personal income tax from temporary disability benefits and vacation pay is subject to transfer no later than the last day of the month in which they are paid (clause 6 of article 226 of the Tax Code of the Russian Federation).
Tax agents are required to withhold the calculated amount of personal income tax directly from the employee's income when they are actually paid (clause 4, article 226 of the Tax Code of the Russian Federation).
In practice, there are many different situations when it is not clear at what point an employee has income and, accordingly, the obligation of a tax agent to calculate, withhold and transfer the amount of personal income tax.
Explanations of the date of withholding personal income tax in difficult situations are discussed in the Letter of the Ministry of Finance of the Russian Federation dated July 25, 2016 No. 03-04-06 / 43479. In the Letter, representatives of the financial department took into account the position given in the Ruling of the Supreme Court of the Russian Federation dated May 11, 2016 No. 309-KG16-1804.
Example #1
The salaries of the company's employees are paid twice a month:
Advance payment - on the last day of the current month;
The final payment is on the 15th of the next month.
Assuming that the amount of personal income tax is not withheld from the advance, the company paid personal income tax only at the time of the final settlement with employees, that is, on the 15th day of the next month.
During the audit, tax inspectors recognized the company's actions as unlawful, charged penalties and fined the tax agent on the basis of Article 123 of the Tax Code of the Russian Federation.
As an argument, the tax agent argued that when wages are paid twice a month, the obligation to withhold and transfer personal income tax to the budget arises only once at the final calculation of the employee's income at the end of each month for which he was accrued income.
However, the supreme judges did not find the tax agent's argument persuasive. Since the income (advance) was paid to employees on the last day of the month, the tax agent had an obligation to calculate and withhold personal income tax in accordance with paragraph 2 of Article 223 of the Tax Code of the Russian Federation.
That is, in this example, the employer was obliged to withhold personal income tax both on the date of the advance payment and on the date of payment of the second part of the salary to the employee.
Transfer of personal income tax in a larger volume
Often, companies mistakenly or deliberately transfer the amount of personal income tax to the budget in a larger amount than actually withheld from an individual. At the same time, the purpose of the payment indicates "Tax on personal income." Such actions often lead to tax disputes with the tax authorities. And if earlier the tax inspectorate could see the amount of paid and accrued personal income tax only after submitting a report in the form 2-personal income tax, which is submitted once a year, now the tax authorities see the payment of personal income tax quarterly according to certificates 6-personal income tax.
How dangerous is "advance" personal income tax? How do tax authorities qualify such actions of the company?
The position of the regulatory authorities
For a number of years, the regulatory authorities believed that the listed "advance" personal income tax should be paid again (Letters of the Federal Tax Service of the Russian Federation dated September 29, 2014 No. BS-4-11 / [email protected], dated July 25, 2014 No. BS-4-11 / 14507, the Ministry of Finance of the Russian Federation dated September 16, 2014 No. 03-04-06 / 46268, dated September 1, 2014 No. 03-04-06 / 43711). The letter of the Federal Tax Service of the Russian Federation dated 05.05.2016 No. SA-4-9 / 81160 was no exception in this sense. The reason is that the amount of personal income tax deducted from the income of an individual is transferred to the budget, and personal income tax cannot be transferred at the expense of own funds (clause 9 of article 226 of the Tax Code of the Russian Federation).
Therefore, the amount paid in advance is not considered tax and in order to fulfill the duties of a tax agent, personal income tax must be paid again (for example, when paying wages - no later than the day following the day the income is paid - clause 6 of article 226 of the Tax Code of the Russian Federation). If this is not done, then with a high degree of probability, the tax authorities will charge additional penalties and a fine in the amount of 20% of the unpaid amount of personal income tax (Article 123 of the Tax Code of the Russian Federation). An excessively transferred (before the deadline) amount of tax cannot be credited, but can only be returned on the basis of an application submitted to the tax office.
arbitration practice.
Let us analyze the decisions of the courts regarding the legitimacy of offsetting the overpayment of personal income tax that arose in connection with the transfer of tax in a larger volume.
It should be noted that today the judicial practice is developing in favor of the tax agent, despite the fact that the regulatory authorities with enviable constancy refuse companies to offset the excessively transferred tax to pay off the debt.
The reason for the refusal is that payment of tax at the expense of tax agents is not allowed (clause 9 of article 226 of the Tax Code of the Russian Federation).
Example #2
For 2 years, the company has been transferring payments to the budget with the purpose of "Income Tax on Individuals" in a larger amount than was withheld from an individual, in connection with which, an overpayment of personal income tax arose.
Subsequently, when paying income to an individual, the company withheld the calculated amount of personal income tax from his income, but did not transfer it to the budget, assuming that he had the right to offset the overpaid tax.
However, during the audit, the tax authorities considered the company's actions as a tax offense under Article 123 of the Tax Code of the Russian Federation, which resulted in the non-transfer of personal income tax amounts within the prescribed period, and the amounts paid in advance were qualified as tax paid at the expense of the tax agent's own funds.
The courts of two instances upheld the arguments of the tax inspectorate regarding the violation of the deadlines for transferring personal income tax to the budget.
The court of cassation reversed the decisions of the previous courts on the basis of the following arguments.
As a general rule, the obligation to pay tax must be fulfilled within the time period established by the legislation on taxes and fees (paragraph 2, clause 1, article 45 of the Tax Code of the Russian Federation). The taxpayer has the right to fulfill the obligation to pay tax ahead of schedule. At the same time, the rule on early payment of tax also applies to tax agents (clause 8, article 45 and clause 2, article 24 of the Tax Code of the Russian Federation).
The judges of the cassation instance analyzed the rules for offsetting tax established by Article 78 of the Tax Code of the Russian Federation. The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is made for the relevant types of taxes and fees, as well as for penalties accrued on the relevant taxes and fees.
The rules established by Article 78 of the Tax Code of the Russian Federation also apply to the offset or refund of overpaid advance payments, fees, penalties and fines and apply to tax agents (clause 14 of Article 78 of the Tax Code of the Russian Federation).
Thus, based on the analysis of the above norms, it is entitled to set off the amounts of overpaid taxes, which are federal, against future payments, as well as repayment of personal income tax arrears.
In this situation, the company transferred personal income tax in advance, as a tax agent, and subsequently, when paying income to the taxpayer, it always withheld the calculated personal income tax from the taxpayer's income.
As the court noted, the payment of personal income tax at the expense of the tax agent will take place when personal income tax is paid by the tax agent not “for the taxpayer”, but “instead of the taxpayer”, that is, when income is paid, personal income tax is calculated and transferred to the budget, but is not withheld by the tax agent from income taxpayer.
And therefore, the early transfer by the personal income tax company of the composition of the offense established by Art. 123 of the Tax Code of the Russian Federation, does not form.
In addition, by virtue of the legal position of the Constitutional Court of the Russian Federation, set out in the ruling of February 8, 2007 No. 381-0-P, all guarantees of property rights apply to the overpaid tax.
In this tax dispute, the cassation instance made an important conclusion for tax agents: under such conditions, the refusal to recognize personal income tax paid by the tax agent ahead of time as a tax creates artificial grounds for bringing the tax agent to tax liability, and the offset of these amounts as tax and fixing by the tax authority the absence of arrears is an obstacle to bringing to tax liability (Resolution of the Arbitration Court of the Moscow District of July 28, 2016 No. A40-128534 / 2014).
In the Decisions of the Arbitration Court of the Yamalo-Nenets Autonomous Okrug of May 25, 2016 No. A81-978 / 2016, the Arbitration Court of the Kamchatka Territory of June 15, 2015 No. A24-244 / 2015, the Decrees of the Arbitration Court of the Volga-Vyatka District of February 19, 2016 No. A38 -6347/2012, West Siberian District dated October 26, 2015 No. A27-1682/2015, East Siberian District dated June 10, 2015 No. А58-4233/20144, Ural District dated May 26, 2015 No. Ф09- 2467/15 and No. Ф09-10188/14 dated 06.02.2015 also rejected the argument of the tax inspectorate that the amount of personal income tax transferred by the tax agent in excess is not an overpaid tax payment, since payment of tax at the expense of the tax agent is not allowed ( Clause 9, Article 226 of the Tax Code of the Russian Federation).
It should be noted that in the database of arbitration cases there are court decisions that support the position of the tax authorities.
for instance
In Resolution of the Arbitration Court of the North-Western District dated June 19, 2015 No. A56-41307 / 2014, the court agreed with the arguments of the tax inspectorate on holding the tax agent liable under Article 123 of the Tax Code of the Russian Federation due to the transfer of personal income tax to the budget before the payment of income to an individual.
If the company has transferred personal income tax excessively, then it should apply to the tax office with an application for a tax refund. Indeed, according to the regulatory authorities, this amount cannot be set off against future personal income tax payments, but can only be returned. To do this, you must submit an application in free form (Letters of the Ministry of Finance of the Russian Federation of November 12, 2014 No. 03-04-06 / 57158 and the Federal Tax Service of the Russian Federation of July 4, 2011 No. ED-4-3 / 10764).
However, when returning the overpayment of personal income tax to, tax agents may also face difficulties. If tax registers (in particular, account cards and) are not submitted, the tax inspectorate has the right to refuse to refund the tax and the courts support the inspectorate.
Example #3
The company mistakenly transferred personal income tax to the budget and applied to the tax office with a request for a refund.
In a statement, the company noted that the specified amount of tax was not withheld from individuals. Only a copy of the payment order was attached to the return application.
The tax inspectorate refused to refund the tax amount to the company, pointing out that these documents were not enough. Without tax registers (account cards and were requested), it is impossible to determine the amount of the tax overpayment.
In deciding in favor of the tax inspectorate, the judges proceeded from the following:
the fact of filing an application for the return to the current account of the amount erroneously transferred to the budget does not indicate the existence of grounds for the return of this amount automatically;
It is necessary for the tax agent to document that the personal income tax was transferred to the budget in excess of the amount of tax actually withheld from the income of individuals, is not related to the performance of the duty of a tax agent, but is transferred erroneously from its own funds;
in order for the tax authority to be able to determine the nature of the amount paid by the applicant, the company had to submit supporting documents (tax registers, account cards 68 “Calculations for taxes and fees”, 70 “Calculations with personnel for remuneration”), since in the absence of analytical accounting according to the account, it is not possible to conclude that there is an overpayment (non-payment) of personal income tax, and also to qualify, due to which the overpayment (non-payment) of personal income tax has arisen: at the expense of the tax agent’s own funds or due to incorrect calculation of personal income tax for the taxpayer;
by itself, the list of payment orders for payment of personal income tax does not allow determining the presence of an overpayment (non-payment) of personal income tax; in payment orders, the amount of payment for the specified period is indicated without a breakdown by specific individuals; the register of information on the income of individuals is a reference generalizing information.
And since the company did not provide evidence to confirm the overpayment of tax and did not attach the corresponding document testifying to the erroneously excessive payment, the courts concluded that the tax authority had no grounds for returning the amount of money (Resolution of the Arbitration Court of the West Siberian District of October 30, 2015 No. A67-8760/2014).
conclusions
The safest option for a tax agent is to avoid overpayment of personal income tax at their own expense.
The most unsafe option, which with a high degree of probability will lead to tax disputes, is to independently read out the overpaid personal income tax against upcoming payments.
If, nevertheless, the company allowed an overpayment of personal income tax, then it is best to contact the tax office with a request for a refund. True, the tax agent must document the existence of an overpayment by submitting tax accounting registers to the tax office.
In your situation, there will not necessarily be penalties, since you transferred personal income tax ahead of time, and not later. If the tax authorities deduct your payments towards personal income tax from your salary, then there will be no penalties. If not, you may have to transfer personal income tax again and then pay penalties, and return the amounts transferred in advance from the budget. Therefore, we advise you to first make a reconciliation of personal income tax payments at the Federal Tax Service Inspectorate and find out whether or not your payments dated 03/25/2016 and 04/11/2016 were credited to personal income tax. Now more about this.
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Penalties are charged for late payments of taxes, fees and contributions. But you have a different situation. You transferred personal income tax before you paid salaries to employees. You can pay taxes ahead of schedule (clauses 1 and 8 of article 45 of the Tax Code of the Russian Federation). The problem is that you transfer personal income tax as a tax agent. Therefore, they must first withhold the tax from the salaries of employees, and then transfer it to the budget. And it is unacceptable to transfer tax at the expense of the organization's own funds (clause 9, article 226 of the Tax Code of the Russian Federation).
This is confirmed by the letters of the Ministry of Finance of Russia dated 06/01/2016 No. 03-04-06 / 4321, dated 10.07.2014 No. 03-04-06 / 33737 and the Federal Tax Service of Russia dated 07.25.2014 No. BS-4-11 / 14507.
Therefore, the tax authorities may consider that the personal income tax transferred to the budget in advance is not personal income tax, but an erroneously paid amount. And it must be returned from the budget by writing an application (Article 78 of the Tax Code of the Russian Federation). And transfer the personal income tax again (letters of the Federal Tax Service of Russia of July 25, 2014 No. BS-4-11 / 14507, the Ministry of Finance of Russia of November 12, 2014 No. 03-04-06 / 57158).
And in this case, you will have to pay penalties. They are calculated as follows (Article 75 of the Tax Code of the Russian Federation).
Calculate the number of days late in this order. The first day is the day following the legal deadline for payment. The last one is the day when personal income tax is transferred to the budget. Personal income tax from wages should be transferred to the budget no later than the next day after payment. Thus, for personal income tax from the March salary, the first day of delay will be March 31, and for personal income tax from the April salary - April 28 (clause 6 of article 226 of the Tax Code of the Russian Federation).
The last day of delay is the day when you transfer personal income tax to the budget again (if the tax authorities did not count your payments transferred in advance).
Now about the refinancing rate. In 2016, it was equated to the key rate (Decree No. 3894-U of December 11, 2015). And from the beginning of the year until June 13, 2016 inclusive, the key rate was 11%, from June 14 to September 18 - 10.5%, and from September 19 to the present - 10%. So if you calculate the penalties yourself, you will have to apply 3 different rates for different periods: from the first day of delay to June 13, from June 14 to September 18 and September 19 to the date of payment. You can also calculate the amount of the penalty using the calculator on the website of the Simplify magazine at this link http://calc..php
Option one - payments are credited. Then you will not have any penalties or other sanctions.
Option two - payments are not credited because the tax was paid ahead of time. And the inspectors considered these amounts not as personal income tax, but as erroneous payments.
In this case, you will have to transfer personal income tax again. And the amounts transferred in advance should be returned from the budget. To do this, you need to write an application to the IFTS (Article 78 of the Tax Code of the Russian Federation).
Since you transfer the tax after the deadline, you will be charged interest. You can calculate them yourself using the formula given above. Or wait until the IFTS issues a claim for the amount of interest. Penalties are not charged on penalties, so it is not necessary to rush to pay them to the budget.
One important point. Sometimes tax authorities fine organizations for early payment of personal income tax under Article 123 of the Tax Code of the Russian Federation. They explain this in such a way that the amount transferred ahead of time is not personal income tax, and since personal income tax has not been paid, the organization has not fulfilled the duties of a tax agent and must pay a fine. But such a fine can be disputed, because the tax amount went to the budget and there is no arrears for the tax agent (letter of the Federal Tax Service of Russia dated September 29, 2014 No. BS-4-11 / 19716 and resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23, 2013 No. 784/13).
And further. If the IFTS has not credited your payments as personal income tax, and you do not want to transfer the tax again, you can challenge the decision of the IFTS in court. You will be able to prove the legitimacy of early payment of tax.
The arguments are like this. The legislation provides for the right to fulfill the obligation to pay tax ahead of schedule. This right applies not only to taxpayers, but also to tax agents (clause and article 45 of the Tax Code of the Russian Federation). However, using this opportunity, it should be borne in mind that by the time the tax is transferred, the tax agent should have a corresponding obligation.
The obligation of a tax agent to transfer personal income tax to the budget can be considered arising if the following conditions are simultaneously met:
- the salary for the past month has been accrued (the management of the organization approved the payroll for the issuance of salaries);
- the amount of personal income tax to be withheld from the income of each employee is determined (in the accounting, entries related to the withholding of personal income tax were made, and accounts payable were formed on account 68, sub-account "Personal income tax settlements").
Under such conditions, the organization may transfer the withheld amount of personal income tax to the budget ahead of schedule. The inspectors will have no grounds to recognize this amount paid at the expense of the tax agent. The legal position allowing to draw such a conclusion is formulated in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 27, 2011 No. 2105/11, of December 17, 2002 No. 2257/02 and the FAS of the North-Western District of December 10, 2013 No. A56-16143 / 2013).
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