Calculation of ENVD in retail with examples. Trade area for ENVD: how to determine in practice
Trading floor area
Retail trade is carried out through shops and pavilions. It can be transferred to the taxation system in the form of UTII only in one case. The trading floor area should not exceed 150 sq. m for each object of the organization of trade.
Let's turn to. The area of a trading floor is a part of a store, a pavilion (open area) occupied by equipment intended for displaying, displaying goods, conducting cash settlements and servicing customers, the area of checkout points and checkout booths, the area of service personnel, as well as the area of passageways for customers. The leased part of the trading floor area also belongs to the trading floor area.
The area of the trading floor does not apply to the area of auxiliary, administrative and utility rooms, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided.
The area of the trading floor is determined on the basis of inventory and title documents.
Such documents include any documents that the taxpayer has on the object of the organization of trade. They contain information:
About the appointment, design features and the layout of the premises of such an object;
- on the right to use this object.
It can be non-residential premises, technical passport for non-residential premises, plans, schemes, explications, (sublease) of non-residential premises or its part (parts), etc.
Let's look at an example.
The Day organization rents from individual entrepreneur shop. They entered into a lease.
Under the terms of this document, the total area of the store is 200 sq. m. At the same time, 50 sq. m. m is the sum of the areas of utility rooms and a warehouse, and 150 sq. m - the area of the trading floor.
The size of the floor space of the store used by the Kniga organization for retail trade does not exceed 150 square meters. m. This is confirmed by the lease. In such a situation, The Day organization is obliged to tax UTII activities in retail trade. Of course, subject to all other conditions established by Ch. 26.3 of the Tax Code of the Russian Federation.
What to do if within tax period has your retail space changed?
For example, you assigned part of the premises for an additional warehouse, rented it out, etc. You have the right to reduce the value of the physical indicator "trading floor area" for calculating UTII. The new value of the indicator can be applied from the beginning of the month in which it was changed. The basis is clause 9 of Art. 346.29 of the Tax Code of the Russian Federation. However, this can be done only if there are appropriate title and inventory documents. It is advisable to submit these documents together with the declaration. In this case, in this case, the document of title (order of the head to change the purpose of the premises, lease agreement, etc.) must in mandatory supplemented by an inventory (explication or BTI certificate). About this - the letter of the Ministry of Finance of Russia No. 03-11-04 / 3/411.
Is it possible to calculate the area of the sales area only on the basis of the lease agreement data?
The documents of title are not enough to reliably determine the area of the trading floor. For this, both a lease agreement for non-residential premises and inventory documents are used, including the explication issued by the BTI (Letter of the Ministry of Finance of Russia N 03-11-05 / 10).
If so, are there any actions to be taken?
If you have made a redevelopment, then you must conduct an unscheduled technical inventory. This obligation arises from the norms of the Regulation on State Technical Accounting and Technical Inventory in Russian Federation objects capital construction approved by Decree of the Government of the Russian Federation N 921 (see Letter of the Ministry of Finance of Russia N 03-11-05 / 17).
That is, inventory documents must always correspond to the actual state of affairs. We recommend that you re-register inventory documents in a timely manner so that the actual area of the trading floor corresponds to the BTI data. Also monitor the compliance of the data of title and inventory documents.
What is meant by a trading place
A trading location is a location used to conduct retail sales transactions. Trading places include:
Buildings, structures, structures (their parts) and (or) land used to carry out retail sale and purchase transactions;
- objects of the organization of retail trade that do not have trading floors (tents, stalls, kiosks, boxes, containers and other objects, including those located in buildings, structures and structures);
- counters, tables, trays (including those located on land plots);
- land plots used for the placement of objects of the organization of retail trade, which do not have trading floors, counters, tables, trays and other objects.
Shopping area area
How to determine the area of a retail space in relation to retail trade? It is possible on the basis of various inventory documents ( technical documentation to the object of trade, explication, plan, etc.).
Along with inventory documents, the basis for determining the area of a trading place may be documents of title (including a lease (sublease) agreement for a trading place).
V current edition ch. 26.3 of the Tax Code of the Russian Federation, there is no norm that the area of a trading place does not include areas intended for receiving, storing goods, preparing them for sale, and other similar areas. Such a norm is established only in relation to trade through shops and pavilions (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation).
Therefore, the area of the place where you store the goods or carry out its pre-sale preparation, as well as the place for the passage of buyers, will have to be taken into account when calculating UTII (see, for example, Letter of the Ministry of Finance of Russia N 03-11-05 / 67). For example, the "Day" organization rents a room with total area 35 sq. m in the covered construction market. In this room, the organization simultaneously stores goods purchased in bulk and sells them at retail. A special counter is installed at the entrance to the premises. After him, the representative of The Day organization pays off with the buyers and gives out the packaged goods. The area on which the calculations are carried out and the goods are issued is 5.8 sq. m.
Despite the fact that most of the area of the rented premises is used for storing goods, the area of the retail space will be 35 sq. m.
Less than 5 sq.m.
If the area of the trading place through which the trade is carried out is less than or equal to 5 sq. m, then you must apply the physical indicator "trading location". The basic profitability per unit of physical indicator per month in this case will be 9000 rubles.
The area is more than 5 sq.m
The area of the trading place through which the trade is conducted is more than 5 sq. m. The physical indicator for retail trade will be "the area of the trading place (in square meters)".
The basic profitability per unit of physical indicator per month in this case will be 1800 rubles.
N.G. Bugaeva, economist
Substitution of concepts, or How to correctly calculate UTII in retail
How to distinguish a trading floor from a trading place and how to determine their area
The texts of the Letters of the Ministry of Finance and the Federal Tax Service mentioned in the article can be found: section "Financial and personnel consultations" of the ConsultantPlus systemTo all appearances, no one is going to "liquidate the imputed practitioners as a class" in the near future. This means that the issues related to the calculation of UTII are still relevant.
Many of the claimants are in the retail business. AND single tax calculated on the basis of such physical indicators as the area of the trading floor, the trading place or the area of the trading places and clause 3 of Art. 346.29 of the Tax Code of the Russian Federation... But it is not always easy for an accountant to determine what is the status of a trade object and, accordingly, what physical indicator should be used for calculation. Let's try to be clear.
Is the appointment of a premise important for "imputed" trade
First you need to figure out where you can organize the sale of goods at retail in order to calmly apply UTII.
If trading is carried out through a stationary object trading network with a trading floor of no more than 150 sq. m, then UTII is calculated based on the physical indicator "Trading floor area". If there is no trading floor, then you need to use either the indicator "Trading place", if its area does not exceed 5 sq. m, or - "Shopping area", if its area exceeds 5 sq. m.
Retail trade is transferred to imputation if it is conducted through objects of a stationary retail network and sub. 6, 7 p. 2 art. 346.26 of the Tax Code of the Russian Federation. These, in turn, include buildings (structures, premises, etc.), intended or used for trading activities and Art. 346.27 of the Tax Code of the Russian Federation. The purpose of the premises is indicated in the title and / or inventory documents... These include a sales or lease agreement, technical data sheet, plans, diagrams, explications.
Seemingly words "Used for trading activities "allow you to use imputation when trading in any objects, even those that are not trading for their intended purpose. For example, in a room located in a warehouse or in an industrial area. And the Ministry of Finance in one of the letters indicated that the purpose of the premises must be determined not only by documents, but also by the fact: how it is actually used Letter of the Ministry of Finance dated April 30, 2009 No. 03-11-06 / 3/113... However, in their later explanation, the financiers made it clear that the sale of goods in the office is not transferred to UTII. Letter of the Ministry of Finance dated January 23, 2012 No. 03-11-06 / 3/2.
There are also two decisions of the Supreme Arbitration Court, in which the court considered the use of imputation as illegal due to the fact that the goods were sold in premises that were not intended for this: in the first case - in an administrative office building, in the second - in the premises of a production workshop. Resolutions of the Presidium of the Supreme Arbitration Court dated 01.11.2011 No. 3312/11, dated 15.02.2011 No. 12364/10.
OUTPUT
An argument such as “inconsistency in the purpose of the premises” is not often used by tax authorities in courts. And if they do refer to him, then he, as a rule, is not the first in the list of claims. But it is absolutely safe to use imputation only when selling goods in designated places.
How to determine the area of a sales area
The regulatory authorities in most letters, citing the NK, say that the area of the trading floor is determined by on inventory and title documents m Letters of the Ministry of Finance dated November 15, 2011 No. 03-11-11 / 284, dated September 26, 2011 No. 03-11-11 / 243. A similar situation, by the way, and with the area of shopping places a Letter of the Ministry of Finance dated 15.12.2009 No. 03-11-06 / 3/289.
Often, disputes between tax authorities and entrepreneurs arise due to the fact that one area of the hall is indicated in the documents, and the other is used for retail trade, as a rule, smaller. According to the courts, the "imputed" tax should be calculated on the basis of the area actually used in the "imputed" activity, and not declared in the documents x Resolutions of the FAS ZSO dated May 26, 2010 No. A75-512 / 2009; FAS UO dated 19.04.2010 No. F09-2486 / 10-C3... But you also need to be able to prove this. In the absence of partitions, testimony, photographs or other evidence confirming that only part of the area was used for trade, the courts side with the tax authorities in FAS PO Resolution of October 14, 2010 No. A72-16399 / 2009; FAS DVO dated 15.07.2011 No. F03-2543 / 2011.
If you rent a room, but use only a part of it for trade, make sure that everything is clearly spelled out in the lease agreement regarding the area that you occupy.
If you lease (sublease) a certain part of the sales area, you do not need to take into account its area when calculating the "imputed" tax, including if no changes were made to the inventory documents Resolution of the FAS DVO dated 13.01.2011 No. F03-9441 / 2010(which is basically impossible in a sublease situation).
Squares premises for receiving and storing goods, administrative and amenity premises and so on (let's conditionally call them auxiliary) are not taken into account when determining the area of the trading floor a Art. 346.27 of the Tax Code of the Russian Federation... There will be fewer claims from inspectors if such premises are physically separated from the trading floor itself. Letter of the Ministry of Finance dated 26.03.2009 No. 03-11-09 / 115... Once the court supported the claimant, relying on a lease agreement, according to which the tenant installed easily removable partitions to separate the trading floor from the warehouse. Resolution of the FAS ZSO dated 18.10.2010 No. A45-7149 / 2010.
WARNING THE LEADER
If the purpose of the area used in trading activities has changed or the area of the trading floor has changed, on the basis of which the single tax is calculated, in order to avoid disputes with inspectors, it is better to reflect this in the inventory documents.
Showroom it can also be a trading floor if the goods are sold in it. This is a prerequisite (especially in the light of the decisions of the Supreme Arbitration Court on the possibility of trading only in designated places). If different premises are allocated for the demonstration of goods, their payment and leave, then the tax is calculated based on the sum of the areas of all these premises. Letter of the Ministry of Finance dated 17.09.2010 No. 03-11-11 / 246... And at least once the court agreed with this approach. Resolution of the FAS VSO dated July 26, 2010 No. A33-14088 / 2009.
It also happens that an entrepreneur (organization) immediately borrows several rooms in one building and in all sells goods at retail. For example, an organization rents in a shopping center several separate retail objects on different floors. Then you can easily charge UTII for each room separately and Letters of the Ministry of Finance dated 01.02.2012 No. 03-11-06 / 3/5, dated 03.11.2011 No. 03-11-11 / 274; FTS dated 02.07.2010 No. ShS-37-3 / [email protected] .
But for trade, one room can also be used, simply divided into several departments, for example, according to the type of goods sold. Sometimes this is done due to the fact that different K2 coefficients are set for different groups of goods in the regions. clause 7 of Art. 346.29 of the Tax Code of the Russian Federation... And sometimes it becomes the only chance for an attorney not to “fly off” from UTII. After all, there is a limitation of the trading floor area of 150 sq. m. How, in this case, to calculate the "imputed" tax?
The regulatory authorities reason like this: if the premises are located in the same building and according to the documents refer to the same store, then the areas need to be summed up Letter of the Ministry of Finance dated 01.02.2012 No. 03-11-06 / 3/5... In this case, the belonging of the premises to the same object or to different ones is established, of course, according to the inventory documents on the premises. Letter of the Ministry of Finance dated 03.11.2011 No. 03-11-11 / 274.
For the courts, the information indicated in them is not an absolute truth. They pay attention to the isolation of the premises. Resolution of the Federal Antimonopoly Service of Moscow on 08.06.2011 No. KA-A41 / 5949-11, for the presence in each store of its own KKT, its auxiliary premises, its own staff of workers, for separate accounting of income, the range of goods sold, special purpose every part of the room FAS PO Resolution of September 26, 2011 No. A55-426 / 2011; FAS SKO dated 01.06.2011 No. A53-16868 / 2010; FAS UO dated 05/18/2010 No. F09-3552 / 10-C3; FAS TsO dated 02.08.2010 No. A62-8066 / 2009.
In general, whatever your motives for dividing the total area into several parts, it is better to physically separate the rooms from each other, for example, with partitions.
How to determine the area of a retail space
The Tax Code does not say what the area of a trading place is and how it is determined. According to the Ministry of Finance, when calculating it, it is necessary to take into account not only the area on which the goods are directly sold, but also the area of auxiliary premises Letters of the Ministry of Finance dated December 26, 2011 No. 03-11-11 / 320, dated December 22, 2009 No. 03-11-09 / 410. That is, if you rent a container, part of which you use for the sale of goods, and the other part for a warehouse, then the tax must be calculated from the entire area of the container a Letter of the Ministry of Finance dated December 22, 2009 No. 03-11-09 / 410.
Last year this issue was considered by YOU. The court said about the area of the trading place that it is determined taking into account all the premises that are used for receiving and storing goods. And since then, in the courts of discord, there is no more Resolution of the Federal Antimonopoly Service of the NKR dated 31.08.2011 No. A53-22636 / 2010; FAS VVO dated 28.09.2011 No. A29-1419 / 2011; FAS UO dated 19.09.2011 No. F09-5821 / 11.
But when renting a land plot on which goods are sold through a small kiosk with an area of more than 5 sq. m, according to the Federal Tax Service, you need to calculate UTII only from the area of the kiosk a Letter of the Federal Tax Service dated June 25, 2009 No. ShS-22-3 / [email protected] .
OUTPUT
It turns out that in some situations it is more profitable for entrepreneurs to insist that they operate in a room with a trading floor. After all, then they will be able to pay tax on a smaller area.
Trading floor or trading place?
This is perhaps the most frequent and most complex issue, as evidenced by the abundance of judicial practice.
When can we talk about the presence of a sales area? When a certain place is allocated in the room for buyers, where they can, moving from one shelves with goods to others, more attentively get acquainted with the goods. Naturally, a trading place cannot have a hall. Usually it is a counter or showcase from which the sale is carried out, and buyers can only stand near it and examine the laid out product.
According to the Federal Tax Service, if it is not indicated anywhere in the title, inventory documents for the premises that this is a "store" or "pavilion", or some part of the premises is not clearly defined as a "trading floor", then such a premise is considered an object of a stationary trading network without trading floor a Federal Tax Service letters dated 06.05.2010 No. ShS-37-3 / [email protected], dated July 27, 2009 No. 3-2-12 / 83.
Some courts even come to the conclusion that the list of objects that may have a trading floor is exhaustive, that is, it must be either a store or a pavilion. Resolution of the FAS MO dated 14.08.2009 No. KA-A41 / 6419-09... So, for example, in a former warehouse, the presence of a trading floor still needs to be proved. And in the container-type pavilion, it is a priori, because it is a pavilion Letter of the Ministry of Finance dated 03.12.2010 No. 03-11-11 / 310.
Shop- a specially equipped building (part of it) intended for the sale of goods and the provision of services to customers and provided with trade, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale.
Pavilion- a building that has a sales area and is designed for one or more workplaces Art. 346.27 of the Tax Code of the Russian Federation.
In general, if your retail space does not exceed 5 sq. m, there is no point in arguing about which physical indicator should be used when calculating the tax. After all, the basic profitability when selling goods on the trading floor will be a maximum of 9,000 rubles. (1800 rubles x 5 sq. M), and exactly the same amount is the basic profitability of trading places a clause 3 of Art. 346.29 of the Tax Code of the Russian Federation... And the hall is less than 5 sq. m (when the taxable income would be less) is difficult to imagine. The K2 coefficients adopted by the regional authorities can make their own adjustments nn. 4, 7 Art. 346.29 of the Tax Code of the Russian Federation but even so, the difference in final tax amounts is likely to be small. If we are talking about an area of more than 5 sq. m, then the calculation must be carried out from the area of the trading place or the area of the trading floor, the profitability for which is set to be the same - 1800 rubles. per sq. m.
OUTPUT
If the trading place is large, then it is more profitable to equip it in such a way that you have a trading floor. Indeed, as we have already noted, when determining the area of a sales area, the area of auxiliary premises is not taken into account. And for trading places - it is taken into account.
If there are auxiliary premises, the court may recognize the object of trade in shops Resolution of the FAS SZO dated 15.01.2010 No. A56-36135 / 2009, which means that there will be a trading floor in this facility. But these should be adjacent premises, and not a free-standing hangar or a room in an adjacent building. A similar case was recently examined by YOU. The court indicated that trading was conducted through the facility with a trading floor when:
- in the sublease agreement it was spelled out which part of the premises is used as a warehouse, and which part of the goods are sold for;
- in accordance with the technical passport and explication, the room consisted of two parts;
- each part of the area was used for its intended purpose.
Consequently, the tax should have been calculated on the basis of the area of the trading floor, and not on the area of the trading places, but Resolution of the Presidium of the Supreme Arbitration Court of 14.06.2011 No. 417/11.
And the court decisions made after the release of this Resolution indicate that it has already been adopted by the courts and Resolution of the FAS VVO dated 26.12.2011 No. A79-2716 / 2010; FAS ZSO dated 22.11.2011 No. A45-3709 / 2011.
Despite the fair amount judgments there are still a lot of questions about the calculation of the single tax regarding sales areas and shopping places. The vagueness of the Tax Code is likely to bring more than one taxpayer to court. But if your trade facility has auxiliary premises, then it is probably more profitable for you to organize trade in such a way that you also have a trade hall. Then you can pay less UTII.
A retailer or service provider Catering, applies UTII. When calculating the "imputed" tax, physical indicators specific to this taxation system are taken into account, based on the calculation of the area of premises used in the activity. At the same time, not only the amount of tax payable, but also the very possibility of using UTII by an entrepreneur depends on the correctness of determining their total footage. Therefore, it is important to know which premises are not taken into account. This will help the tips that can be found in jurisprudence.
It is possible to save on the "imputed" tax by reducing the area of premises accounted for for tax purposes. This can be done on absolutely legal grounds... Consider three types of premises that do not need to be included in the calculation of the physical indicator when calculating UTII.
Premises being renovated
Most often, retail premises are rented by individual entrepreneurs. And often, before starting work, they make repairs or even reconstruction in them. A situation is possible when part of the premises is still at the stage of preparatory work, and part of it can already be used for trade. When determining the physical indicator for calculating UTII "area of the trading floor (in square meters)", the individual entrepreneur may be faced with the question of whether it is necessary to take into account those areas that are not yet in use.
For your information
Collapse Show
According to sub. 6 p. 2 art. 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of UTII can be applied to retail trade carried out through shops and pavilions with a sales area of no more than 150 sq. m for each object of the organization of trade. The physical indicator in this case is "the area of the trading floor (in square meters)".
To answer this question, one should refer to the definition of what is recognized as the area of the trading floor. It is given in Art. 346.27 of the Tax Code of the Russian Federation.
Fragment of the document
Collapse Show
<...>trading floor area - a part of a store, a pavilion (open area) occupied by equipment intended for displaying, displaying goods, conducting cash settlements and servicing customers, the area of checkout points and checkout booths, the area of workstations of service personnel, as well as the area of aisles for buyers. The leased part of the trading floor area also belongs to the trading floor area. The area of auxiliary, administrative and utility rooms, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not performed, does not apply to the area of the trading floor. The area of the trading floor is determined on the basis of inventory and title documents<...>
The areas where the renovation works are being carried out are not directly mentioned here. At the same time, it can be assumed that since an entrepreneur does not carry out trading activities through such premises, they should not be taken into account when determining the area of a trading floor for tax purposes at this stage. After the completion of the repair work, the footage of these premises will affect the final physical indicator. True, most likely, if an entrepreneur decides to temporarily exclude areas where repairs or reconstruction are being carried out, tax inspectorates, which approach this issue more formally, will not agree with him. Nevertheless, judicial practice confirms the legitimacy of such a decision.
Arbitrage practice
Collapse Show
A similar situation was the subject of consideration by the FAS of the Northwestern District.
So, during the exit tax audit the inspection found that the individual entrepreneur did not include in the area of the trading floor for tax purposes the premises where repairs and reconstruction were carried out. Tax officials considered that these actions led to an underreporting tax base, and on this basis brought the entrepreneur to justice and charged him with a single "imputed" tax. Disagreeing with the decision of the tax authority, the entrepreneur went to court.
The judges found out that during the audited period the individual entrepreneur rented premises with a total area of 141.2 sq. m. However, not the entire area of the rented premises was involved in the retail trade. The fact is that the basements were still undergoing reconstruction and renovation work. In support of this, the entrepreneur presented a reconstruction project, an agreement for the provision of repair services, local estimates, building permits, etc. entrepreneur.
In a ruling of 15.10.2012 in case No. A42-8611 / 2010 with reference to the provisions of Chapter 26.3 of the Tax Code, the court concluded that when calculating the tax base for UTII, the area of all premises actually used for carrying out activities is taken into account. As a result, the areas where repairs and reconstruction are carried out are not taken into account. The decision of the inspectorate to bring the entrepreneur to justice and to charge him with the UTII amount was declared unlawful by the court.
Area used for storing goods
When calculating the area of a sales area, premises used for storing goods are not taken into account. This conclusion suggests itself from the analysis of the definition of this physical indicator. Indeed, in article 346.27 of the Tax Code of the Russian Federation, the area of ancillary, administrative and utility premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not performed, does not apply to the area of the trading floor. But it is important to have confirmation that these areas are used for the specified purposes. Otherwise, tax inspectors may recognize them as part of the retail space. The likelihood of this is quite high, as evidenced by the fact that courts often have to consider disputes about the inclusion of warehouses in the trading area. However, the position of the courts on this issue is unambiguous.
Arbitrage practice
Collapse Show
In its resolution dated 03.06.2013 No. F03-1604 / 2013, the FAS of the Far Eastern District drew particular attention to the fact that for the purpose of paying the single tax on imputed income, the actual use of the area in trade is important, and not the way of separating the retail space from other premises. He came to this conclusion when considering a dispute between an entrepreneur and the tax inspectorate about whether it is necessary to take into account the premises used for storing goods for tax purposes.
The entrepreneur, on the basis of a sublease agreement, rented a premise with a total area of 24 sq. m, located in the store. As part of the retail business, he installed a partition in this room, thereby separating the sales area from the warehouse. As a result of these actions, the trading floor area was 16 sq. m, the area of the premises for storing goods - 8 sq. m. When calculating the unified tax on imputed income, an individual entrepreneur used the physical indicator "area of the trading floor (in square meters)", equal to 16 square meters. m. The room for storing goods is equipped with items and does not provide customer service.
As for the tax inspectorate, it did not dispute the fact of the existence of the premises for storing the goods in essence. However, she believed that since the room was divided into two parts only by a temporary partition, it was one. This means that the tax must be calculated taking into account the total area of 24 sq. m. But the court sided with the entrepreneur and the decision of the tax inspectorate to charge him a single tax on imputed income was declared unlawful.
Collapse Show
Nadezhda Bovaeva, accountant of CJSC "Condor"
It should be noted that in judicial practice there are also decisions according to which the areas for acceptance and storage of goods must be included in the calculation of the area of the trading place. True, they are mainly associated with the mistakes of the entrepreneur himself. A striking example is the decree of the Federal Antimonopoly Service of the Volgo-Vyatka District of 12.24.2012 in case No. A38-1707 / 2012.
According to the results office check tax office additionally accrued UTII to an individual entrepreneur, since the individual entrepreneur unlawfully underestimated the value of the physical indicator "area of a trading place" by the area used for storing goods.
As the judges found out, the entrepreneur was retailing footwear on the rented part of the non-residential premises. According to the lease agreement and the acceptance certificate for the sale of goods, the individual entrepreneur is granted the right of temporary paid use non-residential premises with a total area of 20.2 sq. m, which is located on the territory of the shopping complex and is an isolated trade section without division into retail space and warehouse premises.
According to Art. 346.27 of the Tax Code of the Russian Federation, a stationary trading network that does not have trading floors is located in buildings, structures and structures intended for trading, which do not have separate and specially equipped premises for these purposes, as well as used for concluding retail sales contracts and for holding tenders. These include covered markets (fairs), shopping malls, kiosks, vending machines, etc. A necessary criterion to classify the premises as objects of a stationary trading network with trading floors, it is the presence of auxiliary and administrative premises, as well as premises for receiving, storing goods and preparing them for sale.
Trading refers to the place used to carry out retail purchase and sale transactions. It includes buildings, structures, structures and land plots used for retail sale and purchase transactions, as well as retail and catering facilities that do not have sales and service halls (tents, stalls, kiosks, boxes, containers and other objects , including those located in buildings, structures and structures), counters, tables, trays (including those located on land plots), land plots used for placing retail trade (public catering) facilities that do not have trading floors (service rooms visitors), counters, tables, trays and other objects.
The entrepreneur's argument that the division of the premises by trade equipment into retail and warehouse space is a sufficient basis for the allocation of a trading floor was rejected by the judges. This is due to the fact that the separated part of the premises of the outlet for storing (storing) goods with the help of showcases, counters and other portable structures cannot be recognized as a utility room. After all, the very concept of "premises" presupposes its constructive isolation and special equipment. The merchant did not submit documents related to the reorganization of the premises.
The judges concluded that the disputed premises do not belong to the objects of a stationary trading network with a trading floor. And when retail trade is carried out through an object recognized as a trading place, the physical indicator "area of a trading place" includes all areas related to this trade item, including those used for receiving and storing goods.
Bar counter area
On the basis of paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation, the "imputed" types of activity include the provision of catering services through public catering facilities with an area of the visitor service hall of no more than 150 sq. m for each public catering facility.
Fragment of the document
Collapse Show
Article 346.27 of the Tax Code of the Russian Federation
<...>a public catering facility that has a visitor service hall - a building (part of it) or a structure intended for the provision of public catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, and also for leisure activities. This category of catering facilities includes restaurants, bars, cafes, canteens, snack bars;
<...>area of the visitor service hall - the area of specially equipped premises (open areas) of the public catering facility intended for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities, determined on the basis of inventory and title documents<...>
At the same time, the visitor service hall includes only the area that is intended directly for eating and spending leisure time. The area of other rooms, for example, kitchens, points of distribution and heating finished products, cashier's place, utility rooms, etc. for the purpose of paying UTII, the area of the visitor service hall is not included. The Ministry of Finance of Russia spoke about this in its letter dated 03.02.2009 No. 03-11-06 / 3/19.
But, despite such unambiguous explanations of the financial department, in practice there are disputes regarding areas that are not directly mentioned in this letter. It is, in particular, about bar counters. However, the disputes are understandable: tax authorities believe that their territories are uniquely related to those where visitors directly consume products, and taxpayers insist on including these areas in the list of places for distributing finished products and cashier's places. Let's see what the judges think about it.
Arbitrage practice
Collapse Show
According to the results on-site inspection the tax inspectorate brought the taxpayer liable under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation for incomplete payment of the unified tax on imputed income. The reason was the conclusion of the tax authority on the underestimation of the physical indicator "area of the service hall" by an area of 18.3 square meters. m, occupied by a bar.
The Federal Antimonopoly Service of the Central District found out that the disputed area (18.3 sq. M.) Was occupied by a bar counter, behind which were display cases for displaying culinary products, refrigeration equipment, equipment for heating and cooking food, and a cash register. Evidence that there was a consumption of culinary products by visitors in this area or directly at the bar, tax authority not presented.
In addition, the bar counter is separated from other parts of the premises by an evacuation passage, the area of which was not the subject of the lease agreement and the prohibition to occupy it with furniture and equipment was expressly provided for in the acts of acceptance and transfer of the leased areas.
As a result, the court ruled unlawful the inspectorate's decision to hold the taxpayer liable under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, for incomplete payment of UTII. The Federal Antimonopoly Service of the Central District brought its conclusions in the decision of November 21, 2012 in case No. A35-4212 / 2012.
If an organization or an individual entrepreneur uses as a tax regime, then they must know all the subtleties and features of the calculation of this tax collection... And there are a lot of them in it. Let's start in order.
Basic moments
According to the law, those commercial organizations and individual entrepreneurs who are engaged in certain types of activities have the right to work on UTII. Their list is spelled out in the All-Russian Classifier of Services to the Population and partly in the OKVED. However, the specific areas of activity in which it is possible to use UTII in each region are determined individually at the level local authorities... In turn, they are guided by the economic and territorial characteristics of the region.
Developing his enterprise in one direction or another, every businessman should know whether it falls under UTII or not. This is important for the reason that if the use of imputation is possible, then a company or an individual entrepreneur can be essential.
The transition to UTII is a strictly voluntary procedure.
What is the difference between UTII and other forms of taxes
The most important difference between UTII is that tax is paid here not on the actual profit received, but on the estimated future income. At the same time, a single tax replaces several tax payments, such as personal income tax, VAT, property tax and income tax.
UTII for retail
Quite often, imputation is used in the retail trade. This is beneficial for businessmen: if the business is going well, then regardless of the amount of income, they need to pay in the state budget strictly defined amount of taxes. The truth here is also the main disadvantage of UTII: in the case when trade is at zero or an organization, just like an individual entrepreneur, for some reason, ceased to conduct their activities, but did not have time to notify about it tax office, "Imputation" will still have to pay.
Conditions for applying UTII for retail
Not every trading company has the right to use a special UTII mode in its work. There are a number of restrictions that must be taken into account if you want to work on "imputation". Here they are:
- the area of the sales area in the company should not exceed 150 sq. m. Otherwise, trade must be conducted either through a non-stationary network, or in a room without a trading floor;
- catering establishments cannot use imputation;
- sellers of fuel: gasoline, gas, as well as engine oils are not allowed to work on imputation;
- entrepreneurs who deliver their products to customers through online stores or mail.
These and some other individual entrepreneurs and organizations working in the field of retail sales cannot use UTII. A complete list of restrictions can be found in Tax Code RF.
Formula and basic parameters for calculating UTII in retail
As in the calculation of any other tax, accountants of enterprises and organizations located on UTII must know the formula by which this tax is calculated. According to UTII, it will be like this:
DB x FP x K1 x K2 x 15% = UTII
Explanations:
DB- basic profitability. At its core, this is the estimated monthly income for certain types of activities. For 2016 in retail it is equal to 1,800 rubles per square meter;
FP- physical indicator. For different areas, a physical indicator can be different phenomena, for example, for transport companies these are cars involved in work, for companies that provide domestic services population is the number of personnel. If we talk about retail trade, then the physical indicator here will be the area of the trading floor.
For your information: in order to reduce tax payments when concluding a lease agreement for a store or a sales department, it is better to immediately distinguish between retail and warehouse premises. This is important, since only the area of the trading floor is used to calculate the tax, that is, the object for making a profit.
K 1- coefficient set at the federal level and reflecting the size of inflation. In the language of economists, this coefficient is otherwise called a deflator. This indicator change once a year by a special order of the Ministry of Economic Development.
K 2- coefficient, which is developed by the regions of the Russian Federation at the local level. It takes into account many factors at once: such as seasonality, operating hours of an enterprise or individual entrepreneur, wage employees, etc. In order to find out K 2, you must contact the tax office at the place of registration;
% - the size of the tax rate.
Let's consider examples of UTII calculations in different cases. All initial data are taken for 2016.
Example 1 (sales area 5-150 sq.m.)
In the first example, let's take a retail space of 70 sq. M. The store is located in a region where K 2 is 0.6.
In total we have:
Basic income - 1800;
Physical indicator - 70;
% — 15;
K 1 - 1.798;
K 2 - 0.6;
Now let's go directly to the calculation:
UTII = 1800 x 70 x 1.798 x 0.6 x 15% = 20389.32 rubles
This is the amount of tax that the taxpayer must pay in one month.
Example 2 (sales area less than 5 sq.m.)
If the area of the retail space does not exceed 5 sq.m., then a different formula must be used for the calculation. In this case, such parameters as the basic return and the physical indicator will be a strictly defined unchanged value of 9000.
In the example below, let the area of the outlet be 3 sq. M. The region is the same with K 2 equal to 0.6.
The initial data are as follows:
Basic income + physical indicator - 9000;
% — 15;
K 1 - 1.798;
K 2 - 0.6;
We consider UTII:
UTII = 9000 x 1.798 x 0.6 x 15% = 1456.38 rubles
- this is how much the owner of, for example, a kiosk with a retail space of 3 sq.m. must pay to the treasury for UTII for one month of work.
Example 3 (trade in mixed goods)
Here is a more detailed calculation, taking into account some of the factors affecting the tax reduction.
Attention! If the company trades in many types of goods at once, you should carefully study the regional K 2. In some cases, this can significantly reduce the tax. Let's give a concrete example.
Let's take a liquor store with an area of 25 sq.m. as an object of taxation. Regional K 2 for alcoholic beverages in this region will be equal to 1.
We count according to the above formula:
1800 * 25 * 1.798 * 1 * 0.15 = 12136.5 rubles.
Since UTII must be paid quarterly, we multiply the amount received by 3.
As a result, we have 36409.5 - this is how much you have to pay to the state budget for one quarter
However, in this case, there is a little trick that can be legitimately used to reduce the tax. The wine shop sells not only alcohol, but also various types of products (including snacks), which means that it can be regarded as a mixed food. And for this category, the coefficient is completely different - only 0.27.
1800 * 25 * 1.798 * 0.27 * 0.15 = 3.276.85 * 3 = 9830.5 rubles
Thus, the difference between the first and second calculation is 26,579 rubles.
But this is not the limit. If we consider this calculation from the point of view of an individual entrepreneur, then he can reduce this tax on contributions paid to the Pension Fund and the MHIF for himself in 100%, but only on the condition that they were made regularly and without delays. If there are sellers, this tax is reduced by 50% of payments made for them to extra-budgetary funds.
With a competent approach and taking into account all factors, the tax paid for UTII can be significantly reduced. As can be seen from the above example, payments to the Pension Fund and the MHIF affect its size, in addition, if we take into account correctly basic return(and it is different for each type of activity), then you can optimize UTII even more interesting.