Can tax add-on personal income tax. Extra charge of personal income tax on dismissed employees
We analyze the situation in more detail.
1. From the question it’s clear that a field tax audit has been assigned to you.
This is possible and legitimate even after your loss of IP status.
It is a pity that you could not participate in it personally. Now, as colleagues have pointed out correctly, you need to take an active part in this process using the entire arsenal of funds provided to the taxpayer of the Tax Code of the Russian Federation.
2. From the question it is clear that according to the results of the audit, the Act of verification was drawn up. Hurry to the tax office and file an objection to it in writing. Read the Act and there should be indicated on your right to file an objection within a month. If this deadline has already been missed, then a decision will be issued that you have the right to appeal to a higher tax authority.
3. The question is serious and it is not possible to give any specific advice without seeing the documents and not knowing other nuances. Is the procedure for conducting tax audits and so on? And all this is important in your case. Therefore, I would advise you, in order to avoid mistakes in the answers of colleagues and fortune-telling, to turn to lawyers on this topic with documents to develop a position. But you have to hurry.
4. On the merits of claims already made to you, I can say one thing.
The verification is legitimate from the point of view of the Tax Code of the Russian Federation.
Loss of documents as a result of force majeure does not exempt you from confirming expenses for this taxable item according to the simplified taxation system.
In accordance with paragraphs. 3, 8 p. 1 art. 23 of the Tax Code of the Russian Federation, taxpayers are required to keep records of their income (expenses) and objects of taxation, if such a duty is provided for by legislation on taxes and fees; for 4 years, ensure the safety of accounting and tax accounting data and other documents necessary for calculating and paying taxes, including documents confirming the receipt of income, expenses (for organizations and individual entrepreneurs), as well as payment (withholding) of taxes.
In this case, the absence of documents as a basis for calculating taxes will not save from additional charges. The fact is that Art. 31 of the Tax Code of the Russian Federation gives the tax authorities the opportunity to apply the so-called settlement method for additional taxes, and this is confirmed by judicial practice.
clause 7 of this article: determine the amount of taxes payable by taxpayers to the budget system of the Russian Federation, by calculation on the basis of the information about the taxpayer available to them, as well as data on other similar taxpayers in cases of refusal of the taxpayer to allow tax officials to inspect production, warehouse, trade and other premises and territories used by the taxpayer to generate income or related to the maintenance of taxable items, not represented for more than two months, the tax authority has received the documents necessary for calculating taxes, the lack of accounting for income and expenses, accounting for taxable items or keeping records in violation of the established procedure, which made it impossible to calculate taxes;
The tax, if it has been calculated, the tax on the turnover is simply not right for you, using the current account (I don’t know exactly how it happened). She is obliged to take into account expenses within the framework of the calculation method, and even more so if there are such operations on the account. The matter is complicated in general.
In any case, if there are expenses on the current account, then they can be restored. At the same time, in court, if you prove that you informed the tax authority about the fire, it will be easier to present something additionally.
As a mistake of such an approach to inspection and the possibility of reducing tax assessments in court, I will give the Resolution of the Supreme Arbitration Court of the Russian Federation. Read and use my advice to find competent people and do not start the situation. This will not go away by itself, believe me.
Plenum of the Supreme Arbitration Court of the Russian Federation
RESOLUTION of July 30, 2013 N 57
ABOUT SOME ISSUES ARISING WHEN APPLICATION BY THE ARBITRATION COURTS OF THE PART OF THE FIRST-TAX CODE OF THE RUSSIAN FEDERATION
8. In accordance with subparagraph 7 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation, tax authorities are entitled to determine the amount of taxes payable by taxpayers to the budget system of the Russian Federation, by settlement on the basis of the information they have about the taxpayer, as well as data on other similar taxpayers in case of refusal the taxpayer to allow officials of the tax authority to inspect industrial, warehouse, trade and other premises and territories used by the taxpayer to generate income or to data containing the objects of taxation, failure to submit for more than two months to the tax authority the documents necessary for calculating taxes, the lack of accounting for income and expenses, accounting for objects of taxation or keeping records in violation of the established procedure, which led to the inability to calculate taxes.
Applying the aforementioned norm, the courts must take into account that when determining by the tax authority on the basis of it the amount of taxes payable by the taxpayer to the budget system of the Russian Federation, not only the income of the taxpayer, but also its expenses should be determined by calculation.
At the same time, the burden of proof that the amount of income and (or) expenses determined by the tax authority according to the rules of subparagraph 7 of paragraph 1 of Article 31 of the Code does not correspond to the actual conditions of the taxpayer’s economic activity rests with the latter, since it is he who bears the risks associated with the emergence of grounds for application by the tax authority of the calculation method for determining tax amounts.
The stated approach should be guided both in the event that the taxpayer does not have the relevant documents, and if they are recognized as inappropriate.
In the absence or recognition of inadequate documents for individual transactions performed by the taxpayer, the income (expense) of these operations is determined by the tax authority according to the rules of this subparagraph, taking into account data on similar operations of the taxpayer himself.
It should be taken into account that, on the basis of subparagraph 7 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation, the taxpayer cannot be provided with tax deductions for value added tax, since the provisions of paragraph 1 of Article 169 and paragraph 1 of Article 172 of the Code establish special rules for acquiring the right of the taxpayer to these deductions .
In general, there are chances to reduce, but only God can guarantee this, and not lawyers, taking into account the circumstances of the case.
In accordance with paragraphs. 7 p. 1 art. 31 of the Tax Code of the Russian Federation, tax authorities can determine the amount of taxes payable by taxpayers by calculation, including in the absence of accounting for income and expenses, accounting for taxable items or keeping records in violation of the established procedure, which led to the inability to calculate taxes.
According to paragraph 1 of Art. 207 of the Tax Code of the Russian Federation, individual income tax payers are recognized as individuals who are tax residents of the Russian Federation, as well as individuals who receive income from sources in Russia, who are not tax residents of the Russian Federation.
There are two points of view on this issue.
There is no official position.
There is a court decision containing the following conclusion: the provisions of paragraphs. 7 p. 1 art. 31 of the Tax Code do not apply to a tax agent.
At the same time, there are opposing court decisions.
See documents for more details.
Position 1. The Inspectorate does not have the right to charge additional personal income tax to a tax agent by settlement
Decision of the Federal Antimonopoly Service of the West Siberian District dated 02.07.2008 N Ф04-3901 / 2008 (7296-А81-41) in the case of N A81-4225 / 2007
The court noted that in accordance with paragraphs. 7 p. 1 art. 31 of the Tax Code of the Russian Federation, tax authorities have the right to determine by calculation the amount of taxes payable by taxpayers. However, when calculating personal income tax, the organization is a tax agent. Therefore, the provisions of this article of the Tax Code do not apply to it.
Position 2. Inspectorate may accrue personal income tax to a tax agent by settlement
Resolution of the Federal Antimonopoly Service of the Volga Region dated February 26, 2008 in case No. A72-933 / 2007
The court recognized as proven the fact that the entrepreneur paid income to individuals from whom personal income tax was not withheld. Guided by paragraph 1 of Art. 210, p. 1, 2 Art. 226 of the Tax Code of the Russian Federation, the court indicated that the tax authority reasonably determined the amount of tax by calculation.
Resolution of the Federal Antimonopoly Service of the Volga Region dated July 31, 2007 in the case of N A72-529 / 07-12 / 4
The court found that the organization did not pay wages and did not keep tax cards, thereby not fulfilling the duties of a tax agent. The court indicated that the inspection reasonably accrued personal income tax on the basis of paragraphs. 7 p. 1 art. 31 of the Tax Code.
Decision of the Federal Antimonopoly Service of the Ural District of 01/18/2007 N F09-11893 / 06-C2 in the case of N A71-709 / 05
The court found that the organization kept double payroll records. This led to an underestimation of the personal income tax base. Having examined all the evidence, the FAS came to the conclusion that the inspection reasonably applied paragraphs. 7 p. 1 art. 31 of the Tax Code for the calculation of taxes by calculation.
The Federal Tax Service of Russia issued a letter explaining under what circumstances inspectors can charge additional personal income tax on citizens' income (letter of the Federal Tax Service of Russia dated November 16, 2015 N BS-4-11 / 20019 @ "").
Auditors have the right to do this if they independently prove the fact of receipt by the natural person of undeclared income, and not of expenses incurred by the taxpayer, they will establish the source of funds, the type of income and the date it was received by the citizen. Moreover, income verification is possible only in the framework of tax control measures.
At first glance, the conclusions in the letter of the Federal Tax Service of Russia are very obvious, because it is not in vain that even the tax itself is called a tax on income, not the expenses of individuals. But it’s worth recalling a number of high-profile court cases when the courts took the side of the tax authorities, which additionally accrued the personal income tax payers precisely on the basis of the expenses incurred.
So, for example, in the Belgorod Region, the tax inspectorate calculated personal income tax on the basis of the expenses incurred by the taxpayer for the acquisition of a land plot (). The arguments of the auditors in court were:
- lack of tax returns in the form of 2-NDFL, which reflects income proportionate to the expenses incurred;
- lack of a permanent place of work for a long time.
It was on the basis of this that the court ruled in favor of the tax authority.
The courts adhered to a similar point of view for a long time - until June 2015 (,).
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Changes in tax
and accounting legislation from 01.01.2016.
However, already at the end of June 2015, the Armed Forces of the Russian Federation in its summer review of judicial practice adopted the opposite position (). He explained that in accordance with the tax legislation of the personal income tax, income is taxed, not taxpayer expenses. The fact of the acquisition of property only indicates that an individual incurred expenses in this reporting period and does not confirm receipt of funds in the same tax period. The very fact of revenue generation must be proved by the tax authority, not the taxpayer, based on the presumption of innocence of the latter ().
Now, the Federal Tax Service of Russia in its November letter not only explains the position of the Armed Forces, but also obligatorily brings it to the attention of lower tax authorities.
The procedure for the collection and return of personal income tax is regulated by article 231 of the Tax Code. Taxpayers have many questions, therefore, we will focus on the most common cases, as well as give recommendations on how to reflect the actions for the recalculation, collection and return of personal income tax in the programs of the 1C: Enterprise 8 system.
Tax charge
The current rules for collecting personal income tax have not changed. Therefore, if the tax agent for some reason did not withhold personal income tax from the income of an individual or did not fully withhold the tax, then the missing amounts must be recovered from the taxpayer. Tax withholding may be due to the following reasons:
- by mistake, if you provided an extra deduction or incorrectly entered the income code;
- recalculation for the previous period, and income increased;
- an individual has lost the status of a tax resident.
If the employee continues to work, earn income, then after correcting a mistake, recalculating or changing the status during the next calculation of personal income tax in the accounting programs of the 1C: Enterprise 8 system, the amount will be automatically charged and the missing amount will be deducted.
If tax evasion is discovered when it is not possible to withhold tax (if the employee quit or the tax period has ended), then the organization will not be able to recover personal income tax. Clause 5 of Article 226 of the Tax Code of the Russian Federation states that if it is not possible to withhold the calculated amount of personal income tax from the taxpayer, the tax agent must notify the tax payer and the tax authority in writing about this and the amount of tax using the certificate of form 2-NDFL approved by order of the Federal Tax Service of Russia November 17, 2010 No. MMV-7-3 / 611 @.
For this, it is necessary to generate a 2-NDFL certificate in paper or electronic form in the program and send it to the taxpayer and tax authority at the place of registration. In cases of 2011, this must be done no later than January 31, 2012.
Return personal income tax
Excessively accrued tax may be for the same reasons as under-assessed.
The general procedure for the return and offset of excessively paid and collected tax amounts is established by 79 of the Tax Code of the Russian Federation. The new edition of paragraph 1 of Article 231 of the Tax Code of the Russian Federation (entered into force on 01.01.2011) clarified the rules for the return of personal income tax to an individual from whom the tax agent for any reason unnecessarily withheld tax.
If the reason for excessively withholding tax is in the changed state of deductions or incomes, then from the beginning of the current year, the tax agent is obliged to inform the natural person from whom he previously unnecessarily withheld tax about each such fact within 10 business days from the day when it became known to the agent. In this case, the excessively withheld amount of personal income tax shall be indicated. The form of communication is not regulated and may be arbitrary.
An excessively withheld tax amount shall be refunded on the basis of a written statement by the taxpayer (paragraph 1 of Article 231 of the Tax Code of the Russian Federation). Therefore, we recommend that tax agents (employers) include in the message a phrase about the need to write such a statement. It should also be pointed out that a taxpayer can be returned with an excessively withheld tax amount only in non-cash form. Therefore, the taxpayer’s application must indicate the bank account to which the money owed to him should be transferred.
The message can be sent to the taxpayer or sent by mail.
The requirement that the taxpayer timely inform the taxpayer about the existing overpayment of tax that appeared last year in the Tax Code of the Russian Federation is not accompanied by a regulation on recording the fact of detection of excessive personal income tax withholding from taxpayer income. The liability of the tax agent for not informing the taxpayer is also not provided.
Having received from the taxpayer an application for the return of excessively withheld personal income tax, the employer decides at what expense it will be returned. Refunds are possible at the expense of personal income tax amounts to be transferred to the budget system of the Russian Federation for upcoming payments both for this taxpayer and other taxpayers from whose income the agent withholds tax (paragraph 3 of clause 1 of article 231 of the Tax Code of the Russian Federation). How to make a return is selected based on the amount of tax refunded and the deadline for its return. The agent must return the tax to the taxpayer within three months from the day he receives the relevant taxpayer application. Since the beginning of this year, the tax agent has been legally granted the right to refund excessively paid tax at the expense of its own funds, without waiting for the receipt of funds from the tax authority (paragraph 9 of paragraph 1 of article 231 of the Tax Code of the Russian Federation). However, the Ministry of Finance of Russia repeatedly reminded (letters of the Ministry of Finance of Russia dated 05/11/2010 No. 03-04-06 / 9-94, dated 08/25/2009 No. 03-04-06-01 / 222) that the return of personal income tax is necessary only at the expense of tax amounts withheld from payments of this individual.
In order to return personal income tax to “1C: Enterprise 8”, you need to enter a document in the database Return personal income tax: Desktop program "1C: ZUP 8" -\u003e bookmark Taxes and Contributions -> Return personal income tax (fig. 1).
Fig. 1
Based on the document, you should transfer money: Menu Action -\u003e Based on -\u003e Salary payable (fig. 2).
Fig. 2
But, pay attention - there is no liability for not informing about excessively withheld tax. In addition, the informed employee is not required to insist on the return of personal income tax. That is, if the employee continues to work and did not submit applications for tax refunds, then during the next calculations of personal income tax in 1C: Enterprise 8 programs, the automatically excessively accrued amount will be taken into account when calculating personal income tax. In the Tax Code of the Russian Federation there is no prohibition to continue the offset of excessively withheld tax in the next tax period. For example, an employee has an overpayment of personal income tax already in December. This situation will be in 2011 for employees with a third child or a disabled child. Recall that the Federal Law of November 21, 2011 No. 330-FZ increased the standard deductions for personal income tax on children retroactively, that is, from January 1, 2011.
If employees submit applications and provide documents stating that the child is disabled or third in the family, it will be necessary to enter information on these deductions from 01.01.2011 (Fig. 3). Take advantage Assistant editing deductions for childrento facilitate the replacement of deductions for third and subsequent children. Assistant call commands on the desktop of the program “1C: Salary and personnel management 8” -\u003e bookmark Taxes -> Editing deductions for children and in the menu Taxes and Contributions.
Fig. 3
If a deduction for a disabled child has already been instituted, then its value will automatically change. These employees will have an overpayment of tax. Employees may not have time or do not want to apply for the return of personal income tax. When the 2-NDFL report is submitted to the IFTS, the tax agent will indicate the amount of the overpayment there. The taxpayer may not apply to the IFTS for a tax refund. A tax agent is an organization, and in 2012 may continue to read out the amount of overpayment in the calculation. This approach is implemented in the "1C: Enterprise 8" programs.
If an overpayment of income tax for individuals is discovered when the employee is no longer working in the organization, the tax agent reports the overpayment of the tax at the end of the tax period in the 2-NDFL report to the tax authority and notifies the taxpayer about this, and the taxpayer should be returned with excess deductions contact the tax office of residence.
Recalculation of taxes upon acquiring the status of a resident of the Russian Federation
An excessively withheld amount of personal income tax arises in the event of a change in taxpayer status from a non-resident to a resident of the Russian Federation. A non-resident paid personal income tax at a rate of 30%. After an individual is recognized as a tax resident of the Russian Federation, these incomes are subject to taxation at a rate of 13% in accordance with paragraph 1 of Article 224 of the Tax Code of the Russian Federation.
Until 2011, such overpayments were refundable. Changes in the law have misled users. The ban on the refund of personal income tax overpayments arising in connection with a change in taxpayer status does not mean that you do not have to recalculate the tax at a rate of 13% and take into account overpayments at the next accruals.
Letters of the Ministry of Finance of Russia dated 12.08.2011 No. 03-04-08 / 4-146 and the Federal Tax Service of Russia dated 09.06.2011 No. ED-4-3 / 9150 indicate that the tax agent calculates, withholds and pays personal income tax payments to the budget system of the Russian Federation with taking into account the tax status of the taxpayer, determined at each date of payment of income. Having determined on a certain date a change in non-resident status to resident status, when calculating personal income tax, it takes into account amounts that were previously charged at a rate of 30%.
In this case, users of the 1C: Enterprise 8 system programs do not need to do anything. It is enough to indicate only a change in taxpayer status and recalculation will be done automatically when calculating personal income tax.
The letter of the Ministry of Finance of Russia dated November 22, 2010 No. 03-04-06 / 6-273 indicates two cases in which tax refunds can be made only at the IFTS: a change in the status of a resident of the Russian Federation, property deduction.
If an employee applies to the employer for a property tax deduction not from the first month of the tax period, the deduction is granted starting from the month of the appeal.
The excess tax withholding may be refunded by the tax authority when the taxpayer submits a tax return to the inspection based on the results of the tax period.
The Ministry of Finance in its letters repeatedly indicates that those tax amounts that were withheld in the prescribed manner prior to receiving the taxpayer’s request for a property tax deduction and relevant tax authority confirmation are not “excessively withheld”.
However, representatives of the Federal Tax Service of Russia in a letter dated 09.06.2011 No. ЕД-4-3 / 9150 indicate that the refund of excessively withheld tax upon changing the status of a resident of the Russian Federation can be carried out by the tax agent-employer during this tax period.
In a letter to the Ministry of Finance of Russia dated September 28, 2011 N 03-04-06 / 6-242, Deputy Director of the Department of Tax and Customs Tariff Policy S. V. Razgulin replies that the above letter of the Federal Tax Service is a request to the Ministry of Finance of Russia, to which appropriate clarifications are given. And the letter of the Ministry of Finance dated 08.08.2011 No. 03-04-08 / 4-146, which was issued in response to a request from the Federal Tax Service, unequivocally indicates that in accordance with paragraph 1.1 of Article 231 of the Tax Code of the Russian Federation, the provisions of which entered into force on January 1, 2011. , the taxpayer shall be refunded to the taxpayer in accordance with the acquired status of a resident of the Russian Federation by the tax authority in which he was registered at his place of residence (place of stay). Refunds are made when the taxpayer submits a tax return at the end of the specified tax period, as well as documents confirming the status of a tax resident of the Russian Federation in this tax period, in the manner established by Article 78 of the Tax Code.
Thus, in the event that an organization employee acquires the status of a tax resident of the Russian Federation, the tax amount is refunded based on the tax period total.
Users of “1C: Enterprise 8” programs only need to specify the date of the change in taxpayer status and recalculation will be done automatically when calculating personal income tax.
The fact of civil law transactions with the aim of lawfully attributing the income received from such operations to UTII must be proved documented. Such a conclusion can be drawn from the decree of the AC of the North-Western District.
According to the results of an on-site inspection of an individual entrepreneur using UTII and the simplified tax system, personal income tax was assessed as the tax inspectorate concluded that the business operations of the SpetsAvto LLC entrepreneur were unrealistic.
The courts found that in 2010 and 2011, an individual entrepreneur was a payer of UTII in the form of "activity of non-specialized motor freight transport", and therefore submitted quarterly tax returns for this tax to the tax authority. At the same time, since 2011, the applicant has applied the simplified tax system and in 2011 he submitted a “zero” tax return for this type of tax.
The Inspectorate found that during the period from 01.01.2010 to 12.31.2011, the services of the SpetsAvto LLC received 59,466,000 rubles from the settlement account of the businessman. (in 2010 - 76,000 rubles, in 2011 - 59,390,000 rubles) for the provision of motor transport with the purpose of payment "transport services under the contract dated 01.12.2010 No. 045/2010", which are IP. attributed the activities subject to tax UTII. At the same time, the funds received were withdrawn by the entrepreneur from the account immediately after their receipt.
When conducting tax control measures in relation to the specified counterparty, the tax authority established that SpetsAvto LLC does not have material and labor resources, is not located at the legal address of the location, it has no expenses for conducting business activities.
The applicant did not provide evidence of the provision by the applicant of transport services for the carriage of goods, commodity and freight bills in the case file are missing.
The courts recognized the conclusion of the tax authority that the income received by the applicant on unrealistic business transactions that really could not have taken place in the circumstances established by the tax authority, and the income that was not used by him in entrepreneurial activity, was not related to the applicant's entrepreneurial activity, but actually received it as an individual.
At the same time, the courts did not agree with the tax authority regarding the fine under Article 126 of the Tax Code - the entrepreneur was charged a fine of 28,000 rubles for not submitting the documents requested by the tax office. The penalty is collected not only from the requested documents (indicated in the demand), but also from the fact that the taxpayer has them, which are not presented to them by the tax authority. Establishing a fine based on the assumption that the taxpayer has at least one of the requested types of documents, as well as any other calculation method not provided for by the legislation on taxes and fees, is unacceptable, as repeatedly indicated by higher judicial authorities.
In addition, the court indicated that the documents were requested in connection with the applicant's alleged business activities, while the decision was made in relation to the individual and non-business income.