Paid personal income tax on the wrong tax entry. How to return erroneous tax payments from the budget
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Just imagine the end of October 2013, but the tax return simply receives a Declaration for 2012. Maybe it’s worth writing all such letters? Galina1977 10/25/2013, 11:55 Maybe it is worth writing all such letters? Write that you were mistakenly submitted to the wrong tax office, but still, I think, it will be necessary to submit an error letter to the wrong tax office. And it turns out that you now owe the wrong tax.
Anonymous 10/25/2013, 12:15 PM Thanks for the tip. Probably it will be necessary to write something like a notification to the wrong tax one - we inform you that it was then and then that the 2012 STS Declaration was mistakenly sent to your tax office. But ask them what? I won’t write - please do not pay attention to her? 🙂 Galina 1977 10/25/2013, 12:17 pm But to ask what they have? And what to ask for? Just write a fact - we inform you that it was provided ...
Tax payment error
Olga_68 10/18/2013, 11:11 An application for the return of an erroneous payment must be submitted to your inspection Not to your own, but to the one where you transferred it. And returned within 10 calendar days from the date of submission. Anonymous 10/18/2013, 11:12 am That there were no penalties, it is imperative to attach a copy of the payment order - the copy will be credited to the date of payment.
Just by the letter on the nadu of the letter (the Tax Office simply does not see the date of payment - the money does not come to them - but hangs in the UFK) And the letter must be written to OUR tax office Olga_68 10/18/2013, 11:15 am the letter must be written to OUR tax office we had this situation, we were denied theirs. Motivated by the fact that we did not pay them anything. They wrote: where you paid, figure it out there Anonymous 10/18/2013, 11:47 AM This happened in one region, just different inspections. They wrote to where they were mistakenly listed.
Transfer of personal income tax
Clerk.Ru Accounting General accounting Accounting and Taxation the tax has gone to the wrong tax PDA Просмотр полной версии: The tax has gone to the wrong tax Anonymous 17.10.2013, 23:21 Hello. The situation is as follows - they paid the tax on the USN to the wrong tax one. Drew up a piece of paper to the tax office with a request to transfer the tax to the correct details of another tax office.
We looked at the Internet, they described such an option there. Although the majority writes that there must be a re-payment of the tax to its tax office, and then the application must be for a refund of the organization's money from the wrong tax office. This option is understandable, but it is problematic to pay tax again and wait for money. Tell us with our application to the tax office for the transfer of funds that were mistakenly received by them in another tax office, which we are registered with, a positive result is possible.
How to return erroneous tax payments from the budget
Details Source: "Glavbukh" magazine The company has the right to clarify the tax if it was mistakenly transferred to the account of the treasury of another region. To do this, you must submit an application to clarify the payment to the inspection at the place of your registration. This conclusion follows from the letter of the Ministry of Finance of Russia dated 03.06.14 No. 03-02-08 / 26491.
Previously, the Ministry of Finance only allowed the return of payments that accidentally ended up in another region (letters dated 10.08.11 No. 02-04-09 / 3641, dated 02.11.11 No. 02-04-10 / 4819). To do this, the company applied for a return to its inspectorate, and the tax authorities transferred it to the local UFSA. Then the department sent a copy of the application to the Federal Tax Service of the region where the payment was received.
And already this department transferred documents to the treasury. The whole procedure took 14 working days. In the commented letter, the Ministry of Finance has significantly simplified the procedure.
Transferred tax to another tax office by mistake
Tax is transferred to another tax
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Please look at the texts of letters prepared for "correct" and "incorrect" tax. Maybe something needs to be changed? And how can you gently ask for the cancellation of the fine? For correct: ACCEPTANCE LETTER of the tax return for the tax paid in connection with the application of the simplified taxation system. due to the application of the simplified taxation system for 2012. Due to the fact that the tax declaration for the tax paid in connection with the application of the simplified taxation system for 2012. was submitted without violating the established deadlines, the declared amount of tax was timely transferred to the account of the Office of the Federal Treasury for St.
Tax paid to another tax office what to do
List the numbers of payment orders with dates and amounts and write it all in one statement? Yes, the more information, the faster they will find them (we also attached a copy of the payment). Anonymous 10/25/2013, 11:30 Thank you. They just called the tax office, they said that it was worth writing an application to your tax office, and not to the one to which the funds were mistakenly transferred. Galina 1977 10/25/2013, 11:32 am a statement to write to your tax office, Wrong! Where you paid, you have to write there! Anonymous 10/25/2013, 11:32 am And one more question, can anyone have an example of a statement regarding clarification on the STS Declaration? What should I write in it? Thank you Galina 1977 10/25/2013, 11:33 What should I write in it? And what does it mean to clarify the declaration by letter? Submit an updated declaration and that's it.
Anonymous 25.10.2013, 11:49 Yes, everything is correct in the declaration, only it was submitted to the wrong tax office.
Re: I sent taxes to the wrong one. At the beginning of last year, for 2 months I transferred personal income tax to the wrong tax office, to which it was necessary, wrote a letter to the tax office, to which I transferred a letter about redirecting the amounts under p / p No. from in such an amount. After sending the letter electronically, I called and asked when it would be executed, the inspector said that he would do it today. In general, everything is fine. After some time, I requested a personal income tax reconciliation and in the tax office where I originally sent it and in the tax office where I was supposed to send and where it was necessary to redirect. Everything is fine and there are no penalties, i.e. automatic machine, the penalties were counted. "Move on no matter what."
Will be of interest to companies that have separate divisions. The tax authorities, referring to the arbitration practice, assured the company that in the event that personal income tax is paid not at the location of a separate subdivision, but at the location of the parent organization, no penalties will be charged.
As a general rule, organizations that have separate subdivisions are obliged to transfer the amounts of personal income tax withheld from the income of individuals to the budget both at the place of their location and at the location of each of their subdivisions. The basis is clause 7 of Art. 226 of the Tax Code of the Russian Federation. In this case, the amount of tax that must be transferred to the budget at the location of a separate subdivision is determined on the basis of the amount of taxable income accrued and paid to employees of these separate subdivisions. The parent organization must transfer the amounts of personal income tax from the income of employees of separate divisions at the location of such a division.
But what about a situation when the tax for a separate subdivision is mistakenly transferred to the budget at the location of the parent organization? Will interest be charged in this case?
According to the tax authorities, when paying personal income tax not at the location of a separate subdivision, but at the location of the head organization, there is no question of violation of the tax payment deadlines. The fact is that Art. 75 of the Tax Code of the Russian Federation does not contain provisions providing for the dependence of the accrual of penalties on the procedure for distributing tax amounts between budgets of different levels. Therefore, in the situation under consideration, interest should not be charged.
In the commented letter, the tax authorities cited court practice in support of this position. In the decisions of the Federal Antimonopoly Service of the North-Western District of March 31, 2011 No. A56-94715 / 2009, of the Moscow District of 08.10.2008 No. A40-48736 / 07-114-270, the courts indicated the following. Since the amount of tax is transferred to the location of the head organization in full, the repeated payment of the tax by the tax agent at his own expense at the place of registration of the separate subdivision contradicts clause 9 of Art. 226 of the Tax Code of the Russian Federation. The accrual of penalties is possible only if the taxpayer has an actual debt to the budget. In this case, there is no debt to the budget, since the payment of personal income tax is made to the federal budget. This means that the accrual of penalties is illegal.
The Ministry of Finance of Russia expressed its position on the issue in question in a letter dated 10.10.2014 No. 03-04-06 / 51010. The financiers, like the tax authorities, believe that in the situation under consideration, the accrual of penalties is illegal. In addition, in their explanations, they referred to the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 24, 2009 No. 14519/08, which considered the issue of bringing a tax agent to responsibility under Art. 123 of the Tax Code of the Russian Federation for untimely transfer of personal income tax to the budget in a situation where the tax for a separate subdivision is paid at the location of the parent organization. In it, the arbitrators indicated that in this case there would be no fine. After all, the Tax Code does not provide for liability for violation by a tax agent of the procedure for transferring withheld personal income tax.
We thank our reader, Khudova Svetlana Mikhailovna, auditor of LLC "BINAR on Maroseyka", Moscow, for the topic of the article.
Our reader asked for help to understand her situation. The organization is registered in one of the IFTS of the city, divided into districts, and each district has its own OKATO code (as, for example, in Moscow or St. Petersburg). In the same city, she opened a separate division (OP). It was registered in another IFTS of the same city, not in the one in which the organization itself is registered. At the same time, the OKATO codes of the territories where the organization and the OP are located are different.
By the way, such a situation is also possible: the organization and its OP are located in different cities of the region, each city has its own OKATO, but they are all registered in the same interdistrict IFTS of the region. For example, urban settlements of Lyubertsy, Kraskovo, Malakhovka, Oktyabrsky, Tomilino, urban districts Kotelniki, Dzerzhinsky, Lytkarino belong to the interdistrict IFTS of Russia No. 17 for the Moscow region. And each of them has its own OKATO code.
The organization transferred personal income tax for all employees only at the place of its location and indicated the details of the organization itself in payment orders: TIN, KPP and OKATO. Was she doing the right thing? Will the tax authorities have any claims in this case? And if claims are possible, how can they be avoided?
How to pay personal income tax for OP workers
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According to the law, the personal income tax withheld from the income of the OP employees must be transferred to the budget exactly at the location of O P clause 7 of Art. 226 of the Tax Code of the Russian Federation... Therefore, the tax authorities have long insisted on the registration of separate payments for the transfer of personal income tax for each OP. In payment orders, they recommend specifying the details of a specific OP, namely its checkpoint and the OKATO code of the municipality on the territory of which O is located P Letter of the Federal Tax Service of Russia dated 03.08.2011 No. AS-4-3 / 12547; Letters of the Federal Tax Service of Russia in Moscow dated 01.07.2010 No. 20-15 / 3/068888, dated 24.01.2008 No. 28-11 / 006047... As the tax authorities explain, this is necessary in order for personal income tax to fall into the budget of the municipality where the OP is located. In general, the Ministry of Finance adheres to the same position. True, only if each EP is registered with its IFN WITH Letters of the Ministry of Finance of Russia dated 09.12.2010 No. 03-04-06 / 3-295, dated 29.03.2010 No. 03-04-06 / 55, dated 29.03.2010 No. 03-04-06 / 54.
In the situation we are considering, personal income tax for all employees of the organization was transferred by one payment with the details of the organization itself. That is, based on the position of the tax authorities, the organization paid the personal income tax incorrectly. After all, the OKATO codes of municipalities (for example, in Moscow - intracity municipalities), on the territories of which the organization and the OP are located, are different.
What will be the "wrong" transfer of personal income tax
According to tax authorities, violation of the procedure for transferring personal income tax leads to the formation of arrears in the budget of a particular municipality. After all, despite the fact that personal income tax is a federal tax th Art. 13 Tax Code of the Russian Federation and is transferred to the single treasury account, subsequently it is distributed according to the norms between the budgets of different levels. And part of the tax goes to the municipal budget I am clause 2 of Art. 56, paragraph 2 of Art. 61, paragraph 2 of Art. 61.1,... And since the tax is distributed according to the OKATO code, part of the personal income tax (due to the municipality) will go to the budget of the municipality whose OKATO code is indicated in the payment order and clause 16 of the Procedure for accounting by the Federal Treasury of receipts to the budgetary system of the Russian Federation ... approved. By order of the Ministry of Finance of Russia dated 05.09.2008 No. 92n.
For example, if an organization and its OP are located in Moscow, and when transferring tax, the organization indicated the OKATO code at its location, then personal income tax will only go to the budget of that inner-city municipal formation of Moscow, on the territory of which the organization is located. And the budget of another inner-city municipal formation, where the OP is located, do not get anything T subn. 1 p. 1, p. 2, art. 8 of the Law of the city of Moscow dated 08.12.2010 No. 53 "On the budget of the city of Moscow for 2011"; Appendix No. 9 to this Law... And the tax authorities believe that there is an arrears in this budget. Therefore, when checking, they charge pen and clause 1 of Art. 75 of the Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated January 17, 2006 No. 04-1-03 / 21.
By the way, earlier inspectors also imposed a fine on the organization for incorrect transfer of personal income tax in the amount of 20% of the amount to be transferred Yu Art. 123 of the Tax Code of the Russian Federation... But lately they have not done this. After all, the Supreme Arbitration Court, first in 2005, and then in 2009, indicated that the Tax Code of the Russian Federation does not provide for liability for violation of the procedure for transferring withheld personal income tax. And if the organization withheld the tax from all employees and transferred it to the budget in full in a timely manner (even if only at the place of its location), then fine it for not transferring personal income tax under Art. 123 of the Tax Code of the Russian Federation I am Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 24, 2009 No. 14519/08, of August 23, 2005 No. 645/05... But if suddenly the Federal Tax Service Inspectorate tries to fine your organization, you can dispute this fine, referring to the position of the Supreme Arbitration Court of the Russian Federation.
What to object in court
If the tax authorities require you to re-list the personal income tax with the details of the OKATO of each division and charge you a penalty, you can try to resolve this issue first out of court (at the stage of considering disagreements on the verification act). Well, if this does not succeed, then you can argue in court. The chances of success are great.
1. To the requirement to re-transfer personal income tax at the location of the OP You can argue that, in fact, you have already withheld the tax from employees and transferred it to the budget, even if using the wrong details. If you transfer the tax again, you will have to do it at your own expense. And this is expressly prohibited by Ch. 23 NC RF clause 9 of Art. 226 of the Tax Code of the Russian Federation... As an additional argument, you can refer to the explanation of the FTS itself, which indicated that if the organization transferred to the budget the amount of personal income tax in excess of the amount of tax withheld from employee income, then this amount is not personal income tax... This is just money belonging to the organization, "mistakenly transferred to the budgetary system of the Russian Federation." And the organization can only return them to its current account by writing a statement e.
And when you re-transfer the tax, you just get this situation. Indeed, in this case, you will transfer to the budget not the tax withheld from the income of employees (you have already transferred it at the location of the organization itself), but your own money. And then they will have to be returned from the budget according to your application.
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2. On a demand to pay a penalty interest you can give arguments like this:
- penalty - compensation for budget losses as a result of non-receipt of tax amounts in the period To Definition of the Constitutional Court of the Russian Federation dated 04.07.2002 No. 202-О; Resolution of the Constitutional Court of the Russian Federation of December 17, 1996 No. 20-P... And when transferring personal income tax at the location of the organization, and not the OP, the budget of the municipality as a whole received the tax in full. For example, the budget of the city of Moscow has a special status and the budgets of intracity municipalities are an integral part of the unified budget of the city of Moscow. And personal income tax is credited to the city budget in the amount of 100 %nn. 2, 3 tbsp. 56, paragraph 2 of Art. 61.2 of the Budget Code of the Russian Federation; clause 1 of Art. 2, sub. 1 p. 1, p. 2, art. 8 of the Law of the City of Moscow dated 08.12.2010 No. 53; Appendix No. 9 to this Law.
And since there are no arrears on personal income tax, then there are no grounds for calculating penalties and clause 1 of Art. 75 of the Tax Code of the Russian Federation... And many courts share this position T Resolution of the FAS DVO dated 11.10.2011 No. F03-4920 / 2011; FAS SZO dated 20.10.2010 No. A66-15290 / 2009; FAS ZSO dated 13.05.2010 No. A45-9320 / 2009.
But we want to warn you that there are courts that consider it legitimate to accrue interest in case of non-receipt of personal income tax in the local budget T Resolutions of the Federal Antimonopoly Service of the UO dated 22.12.2010 No. F09-10219 / 10-C2; FAS TsO dated 13.02.2009 No. A64-2317 / 08-26;
- the obligation to pay tax is considered fulfilled from the moment the bank receives an order to transfer money to the appropriate account of the Federal Treasury (if the required amount is available on the current account )subn. 1 p. 3, p. 8 of Art. 45 of the Tax Code of the Russian Federation... So, with the correct indication of the Treasury account, the amount of tax goes to the budget system, and there is no arrears in this case. And the fact that the wrong OKATO code is indicated in this payment order does not matter. The court also agrees that there are no grounds for calculating penalties if the OKATO code is incorrectly indicated in payment orders for transferring personal income tax. s clause 7 of Art. 45 of the Tax Code of the Russian Federation; Resolutions of the Federal Antimonopoly Service of Moscow from 29.07.2011 No. КА-A40 / 7917-11, dated 30.06.2011 No. КА-A40 / 6142-11-2, dated 08.10.2010 No. КА-A40 / 11919-10, dated 17.02.2010 No. KA -A40 / 368-10; FAS VSO dated 01.09.2011 No. A33-3885 / 2010, dated 26.04.2010 No. A19-13821 / 09, dated 11.11.2008 No. A33-2043 / 08-F02-5509 / 08; FAS SZO dated March 14, 2011 No. A05-4762 / 2010; FAS TsO dated 08.07.2010 No. A64-6646 / 09; Eighteenth AAS dated 25.05.2010 No. 18AP-3779/2010.
Is it possible to clarify the payment?
The Tax Code stipulates that if an error in a payment order did not result in the non-receipt of tax from the budget to the required account of the Federal Treasury, it can be corrected. To do this, the Inspectorate of the Federal Tax Service must submit an application with a request to clarify the fee f clause 7 of Art. 45 of the Tax Code of the Russian Federation.
As we have already found out, if the OKATO code is incorrectly specified, the tax will still go to the budget. And, for example, the court of the West Siberian District, examining such a dispute, indicated that an error in the OKATO code when transferring personal income tax at the location of the organization, and not the OP, can be corrected by filing an application for clarifying the payment a Resolutions of the FAS ZSO of 23.06.2010 No. A27-19112 / 2009, of 23.06.2010 No. A27-14315 / 2009.
As a rule, tax authorities clarify the entire payment as a whole. And in the situation under consideration, it is necessary to clarify only a part of the incorrectly listed personal income tax. That is, in the application for clarifying the payment, it is necessary to indicate that such and such an amount of personal income tax from the payment order, to which the tax was transferred at the location of the organization, is due for payment for employees of the EP with such and such an OKATO code. The IFTS, in principle, can decide on a partial clarification of the payment for personal income tax, there are no obstacles to this T.
If the tax authorities refuse to partially clarify the payment and say that they can transfer to another OKATO code only the entire amount of personal income tax specified in the payment e Order of the Federal Tax Service of Russia dated 02.04.2007 No. MM-3-10 / [email protected] , then you should not agree to this. After all, if you make such a clarification, you will have an underpayment of personal income tax already at the location of the organization.
It also does not make sense to clarify only some payments (for example, transfer the entire January personal income tax to the OP, leave the entire February personal income tax on the organization). At first glance, it seems that this will help distribute payments between the organization and the OP and reduce the amount of interest. But in fact, difficulties will arise if at some moments there is an overpayment for the employees of the OP. As we have already said, the FTS considers that the amount transferred to the budget and exceeding the tax withheld from employees is not an overpayment for personal income tax. L Letter of the Federal Tax Service of Russia dated 04.07.2011 No. ED-4-3 / 10764... And such overpaid amounts will not be counted off by the tax authorities against future payments for personal income tax.
How to simplify your life?
Problems with incorrect transfer of personal income tax can be avoided. To do this, you need to register all your divisions with one tax office. Indeed, when an organization opens several OP in one municipality in the territories under the jurisdiction of different IFTS (as, for example, in Moscow or St. Petersburg), then the Tax Code of the Russian Federation allows you to choose the responsible OP and register all divisions in one IFTS at its location Yu paragraph 4 of Art. 83 of the Tax Code of the Russian Federation.
Moreover, this can be done even if you first registered at the location of each OP, and then wanted to re-register them. As explained to us in the Federal Tax Service of Russia, the notification of the choice of the tax authority in the form No. 1-6-Accounting Appendix No. 4 to the Order of the Federal Tax Service of Russia dated 11.08.2011 No. YAK-7-6 / [email protected] can be sent at any time. It does not matter how much time has passed since the date of registration of these units. The Inspectorate of the Federal Tax Service at the location of the responsible OP will put your units on record, and the inspections, in which these OPs were previously registered, will deregister them. a clause 2.6 of the Letter of the Federal Tax Service of Russia dated 03.09.2010 No. MN-37-6 / [email protected] .
And when all OP are registered with the same IFTS, then there are no problems with the transfer of personal income tax. As the Ministry of Finance of Russia explained, personal income tax for employees of all OPs can be transferred to the budget at the place of registration of the responsible O P Letters of the Ministry of Finance of Russia dated 21.09.2011 No. 03-04-06 / 3-230, dated 21.02.2011 No. 03-04-06 / 3-37, dated 15.03.2010 No. 03-04-06 / 3-33... In this case, it is necessary to draw up one payment order and indicate in it the checkpoint and OKATO of the responsible OP.
Conclusion
If you have several POs registered with different tax inspectorates, you can pay personal income tax with one payment without any problems only after you register all POs with one tax office.
If you don't want to argue with the tax authorities, then you can:
- <или>re-pay personal income tax at the location of each unit, indicating the correct OKATO codes, and ask the inspection at the location of the organization to return the overpaid personal income tax;
- <или>submit to the Federal Tax Service Inspectorate at the location of the organization an application for offsetting personal income tax paid at this location against personal income tax payable at the location of the divisions.
But keep in mind that both in case of repeated payment of personal income tax and when offsetting, the tax office will charge you penalties for the period from the day when personal income tax should have been transferred at the location of the OP, until the day of its repeated transfer or the inspection makes a decision on offset e nn. 1, 3, pp. 5, 7 Art. 75 of the Tax Code of the Russian Federation... And it is hardly possible to fight off these penalties. After all, by taking these steps, you thereby "plead guilty" in the wrong transfer of personal income tax. So it is better to try to clarify payment orders.
The tax office can no longer fine an entrepreneur for a delay in personal income tax, if he has paid off the debt himself. The reason for the delay is irrelevant. This decision was made by the Constitutional Court in the case of one entrepreneur.
During the on-site audit, the tax authorities discovered that the company had transferred personal income tax later than the deadline. The inspectors issued a fine of 299,403 rubles and a penalty of 4896 rubles. The businessman did not agree with the fine and went to court - to prove that he did not have to pay the fine, because he managed to correct the mistake before the tax office arrived. The city, district and regional courts refused the businessman, and the Supreme Court did not even accept the complaint. Then he turned to the Constitutional Court. The Constitutional Court is great - it confirmed the entrepreneur was right and allowed him not to pay the fine.
The tax authorities will no longer be able to fine entrepreneurs who have corrected the violation on their own - the decision of the Constitutional Court is binding on everyone.
What does it mean?
If a businessman does not transfer personal income tax on time, he is entitled to a fine - 20% of the unpaid amount of taxes (Article 123 of the Tax Code of the Russian Federation).
It happens that a businessman makes a mistake in accounting or incorrectly fills out a declaration. There will be no penalty if he corrects the error, pays the missing tax amount and submits a clarifying declaration. Even if it happens later than the due date for paying taxes. The Tax Code provides for two such cases (cl.
4 tbsp. 81 of the Tax Code of the Russian Federation):
- If a businessman has paid the missing tax amount and filed an amended tax return before he learned that the tax authorities discovered an error or ordered an on-site check.
- If a businessman has submitted a revised declaration after an on-site inspection, during which the inspector did not find errors that underestimate the amount of tax.
In our case, the businessman correctly drew up the declaration, but was late in the payment of personal income tax for his employees. Despite the fact that he himself corrected the violation and paid a late payment penalty before the tax authorities discovered it, the inspector imposed a fine. The tax office considered: since the businessman did not correct anything and did not submit an updated declaration, then paragraph 4 of p. 81 of the Tax Code of the Russian Federation does not apply to it. This means that you can impose sanctions in the form of a fine.
All courts upheld the tax officials' position, but the Supreme Court did not accept the complaint. Then the businessman turned to the Constitutional Court to check the constitutionality of the provisions of Art. 123 of the Tax Code of the Russian Federation and clause 4 of Art. 81 of the Tax Code of the Russian Federation. The court ruled that the provisions of the articles do not contradict the constitution, but confirmed the businessman was right. If a businessman paid a debt and a penalty for late payment of personal income tax before the tax authorities learned about the violation, he should not pay a fine. The reasons for the delay are irrelevant. A precedent has emerged.
How will this affect businessmen?
Previously, tax authorities fined entrepreneurs for late payment of personal income tax, if it was not associated with errors in the declaration. Even if the businessman corrected the violation on his own. Now the inspector will not be able to issue fines regardless of the reason for the delay. The main thing is to correct the violation before the tax authorities discover it. If a fine is still imposed, you can safely sue the tax office. Given the precedent, it won't be difficult to win the trial.
Let's summarize
If you are late in the payment of personal income tax, correct the violation before the tax finds it. Then you won't be fined. The reason for the delay does not matter. If the inspector still appointed a fine, you can safely sue the tax office. The decisions of the Constitutional Court are binding on everyone, so it will not be difficult to win the court.
Penalty for non-payment and late payment of taxes by an individual in 2018
Paying taxes on time is the duty of every taxpayer, ignoring which leads to serious consequences. You will learn about what personal income tax is, by whom it should be paid, and also what penalties exist for non-payment of income and transport taxes, you will learn from the material below.
What is personal income tax
According to paragraph 1 of Art. 3 of the Tax Code of the Russian Federation, everyone is obliged to pay taxes established by law. Failure to pay taxes by an individual is an offense for which tax liability is provided.
"A tax offense is a guilty committed unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, payer of insurance premiums, tax agent and other persons for which this Code establishes responsibility."
(Article 106 of the Tax Code of the Russian Federation)
Personal income tax - personal income tax. The object of taxation is any income (both monetary and natural and material) received in a calendar year.
Income tax payers are:
Tax residents of the Russian Federation;
Individuals non-residents of the Russian Federation who receive income from sources of the Russian Federation.
"Taxpayers of personal income tax (hereinafter in this chapter - taxpayers) are individuals who are tax residents of the Russian Federation, as well as individuals who receive income from sources in the Russian Federation, who are not tax residents of the Russian Federation." (part 1 of article 207 of the Tax Code of the Russian Federation)
In what cases is liability for personal income tax
Responsibility for income tax occurs if the taxpayer, within the established timeframe:
Did not pay tax or did not pay the full amount of tax;
Didn't submit a tax return.
In case of failure to submit a declaration to the taxpayer, he is subject to a fine of 5% of the unpaid tax for each month of its delay in accordance with Part 1 of Art. 199 of the Tax Code of the Russian Federation:
“Failure to submit a tax declaration (calculation of insurance premiums) to the tax authority at the place of registration within the time period established by the legislation on taxes and fees entails the collection of a fine in the amount of 5 percent of the amount of tax (insurance premiums) payable not paid within the period established by the legislation on taxes and fees (additional payment) on the basis of this declaration (calculation of insurance premiums), for each full or incomplete month from the date set for its submission, but not more than 30 percent of the indicated amount and not less than 1,000 rubles. "
Please note: In accordance with Part 5 of Art. 174 of the Tax Code of the Russian Federation, a taxpayer must submit a declaration no later than the 25th day of the month that follows the expired tax period.
The payment of personal income tax by the tax agent must be made no later than the next day on which the income was paid to the taxpayer.
"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." (part 6 of article 226 of the Tax Code of the Russian Federation)
Penalty for non-payment of personal income tax by an individual
The penalty for late payment of personal income tax in 2018 is established under Art. 122 of the Tax Code of the Russian Federation. Depending on the severity of the violation, late payment of personal income tax is subject to a fine ranging from 20% to 40% of the unpaid tax.
Punishment for delay or non-payment of income tax under Part 1 of Art. 122 of the Tax Code of the Russian Federation is 20% of the amount of unpaid tax:
“Failure to pay or incomplete payment of tax amounts (fees, insurance premiums) as a result of understating the tax base (the base for calculating insurance premiums), other incorrect calculation of tax (fees, insurance premiums) or other illegal actions (inaction), if such an act does not contain signs tax offenses provided for in Articles 129.3 and 129.5 of this Code, shall entail the collection of a fine in the amount of 20 percent of the unpaid amount of tax (due, insurance premiums) ”.
The penalty for late transfer of personal income tax in 2018, if the act was committed intentionally, will be 40% of the amount of unpaid tax under Part 3 of Art. 122 of the Tax Code of the Russian Federation:
"The acts provided for by paragraph 1 of this article, committed intentionally, entail the recovery of a fine in the amount of 40 percent of the unpaid amount of tax (due, insurance premiums)."
According to clause 9 of Art. 226 of the Tax Code of the Russian Federation, a fine for non-withholding personal income tax by a tax agent is not charged if the tax was not withheld from employees' income.
“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, in accordance with which tax agents paying income assume obligations to bear the costs associated with the payment of tax for individuals. "
Please note: The taxpayer is not released from the obligation to pay taxes for non-payment of which he was held liable.
"Bringing a person liable for committing a tax offense does not relieve him of the obligation to pay (transfer) the due amounts of tax (due, insurance premiums) and penalties." (part 5 of article 108 of the Tax Code of the Russian Federation)
Check fines at the tax office by last name online
Online tax check of individuals is available in several ways:
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To find out about taxes or debts using the FTS website, you need to go to the taxpayer's personal account. In the "Accrued" section, information about the accrued taxes will be displayed. You can pay for them in the same section. You can find out the debts in the "Overpayment / Debt" section.
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Online check of fines in the tax office on the website of the Federal Bailiff Service is in the "Services" section. To check the fines, select the subsection "Databank of enforcement proceedings" and fill out the questionnaire in the search for individuals.
What is the penalty for non-payment of transport tax for individuals
Transport tax must be paid by December 1 of the year following the expired tax period. Since the tax period under Part 1 of Art. 360 of the Tax Code of the Russian Federation is considered a calendar year, then the tax for 2018 must be paid no later than December 1, 2018.
"The tax is payable by taxpayers - individuals no later than December 1 of the year following the expired tax period." (part 1 of article 363 of the Tax Code of the Russian Federation)
Delay in payment of tax leads to liability in the form of calculating a penalty for each day of delay. The interest percentage is equal to 1/300 of the refinancing rate of the Central Bank.
“Penalty for each day of delay is determined as a percentage of the unpaid tax amount.
The interest rate of interest is taken to be equal to one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time. " (part 4 of article 75 of the Tax Code of the Russian Federation)
Important: The current refinancing rate can be found on the website of the Central Bank.
In case of non-payment of tax, penalties, fines by an individual, the tax is collected in accordance with Art. 48 of the Tax Code of the Russian Federation through the courts.
If you need advice on how to pay a fine to the tax office, or if you want to dispute the fine imposed, contact a lawyer for help.
According to the legal position of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the SAC RF), set out in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23, 2013 No. 784/13 in case No. calculation, withholding and transfer of tax to the appropriate account of the Federal Treasury.
Also, the Presidium of the Supreme Arbitration Court of the Russian Federation came to the conclusion that an incorrect indication of the OKATO code in payment documents does not lead to arrears and cannot be considered as a basis for calculating penalties, since the tax was transferred to the budgetary system of the Russian Federation by the tax agent on time.
In addition, by virtue of the provisions of paragraph 4 of Article 24, subparagraph 1 of paragraph 3 of Article 44, subparagraph 1 of paragraph 3 of Article 45 of the Code, the duty of a tax agent to transfer tax is considered fulfilled from the moment the bank submits an order to transfer to the budget system of the Russian Federation to the corresponding account of the Federal Treasury funds from a bank account if there is a sufficient cash balance on it on the date of payment.
Clause 4 of Article 45 of the Code lists the cases when the obligation to pay tax is not recognized as fulfilled. Among them, the incorrect indication of the details of a separate division of the organization is not provided as one of the grounds for recognizing the obligation to pay tax to the budgetary system of the Russian Federation as not fulfilled.
Also, a similar position is reflected in the ruling of the Supreme Court of the Russian Federation dated 10.03.2015 No. 305-15KG-157 in case No. A40-19592 / 14.
Taking into account the foregoing, an incorrect indication of the details of a separate division of the organization will not be the basis for recognizing the obligation to pay tax to the budgetary system of the Russian Federation as not fulfilled.
At the same time, it should be taken into account that violation of the procedure for transferring tax established by law (transfer of tax amounts to another local budget) cannot compensate for the losses of another local budget.
In addition, this violation of the procedure for transferring tax leads to difficulties in identifying payments by the tax authority, as well as difficulties for the tax agent himself when clarifying the grounds, type and ownership of the payment.
In order to complete the formation of local budgets, to avoid difficulties in specifying the payment, to correctly identify the tax agent and the purpose of the payment, including in the information resources of the tax authorities, the tax agent should transfer the personal income tax in the manner prescribed by paragraph 7 of Article 226 of the Code.
Letter of the Federal Tax Service of Russia dated 09.08.2017 No. GD-4-11 / 15676