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An organization or individual entrepreneur can act as a tax agent for personal income tax in the case of payment of income to individuals, for example, in the form of wages under concluded employment contracts; remuneration under civil contracts; rental payments for property leased from an individual. , tax agents are recognized as all organizations and individual entrepreneurs, including those that apply special tax regimes. An exception to this rule is the following payments: - to individual entrepreneurs registered in the prescribed manner; — when purchasing property owned by individuals and property rights; - in the form of remuneration paid to the heirs (legal successors) of the authors of works of science, literature, art, as well as the authors of inventions, utility models and industrial designs; — foreign citizens engaged in labor activities for hire from individuals on the basis of a patent; - on securities. In general, tax agents have the same responsibilities as taxpayers. They are obliged to correctly and timely calculate, withhold from funds paid to taxpayers, and transfer appropriate taxes to the budget. In addition, they must keep internal records of accrued and paid income to taxpayers, calculated, withheld and transferred taxes to the budget system of the Russian Federation, including for each taxpayer, and also report in writing to the tax authority at the place of their registration about the impossibility of withholding tax and the amount of the taxpayer's debt within one month from the day the tax agent became aware of such circumstances. In order to fulfill its obligations, the tax agent must be able to withhold tax. To do this, he must have the taxpayer's funds at his disposal. The Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 N 41/9 provides the following explanations. If the income that is subject to taxation by the tax agent was received by the taxpayer in kind and no cash payments were made to the taxpayer in a given tax period, then the tax agent is not required to withhold tax from the taxpayer. He must inform the tax authority about the impossibility of withholding tax and the amount of debt the taxpayer owes. The Supreme Arbitration Court of the Russian Federation, in Resolution No. 5 of February 28, 2001, came to the conclusion that the offense under Art. 123 of the Tax Code of the Russian Federation, can be imputed to a tax agent only if the latter had the opportunity to withhold tax from the taxpayer, but did not withhold , meaning that the withholding is carried out from funds paid to the taxpayer. For unlawful non-withholding and (or) non-transfer (incomplete withholding and (or) transfer) within the prescribed period of tax amounts subject to withholding and transfer by a tax agent, liability is provided in the form of a fine in the amount of 20% of the amount subject to withholding and (or) transfer. to fulfill an obligation means failure to fulfill an assigned obligation in full. Untimely fulfillment of an obligation means its fulfillment in violation of the established deadline. Thus, the concepts of “failure to fulfill an obligation” and “untimely fulfillment of an obligation” are not identical. A tax agent’s untimely transfer of withheld taxes to the budget cannot be regarded as a failure to fulfill the obligation to transfer taxes. Responsibility under Art. 123 of the Tax Code of the Russian Federation is established only for its complete non-compliance. Late transfer will result in the accrual of penalties, rather than the application of tax sanctions. The Determination of the Supreme Arbitration Court of the Russian Federation dated December 15, 2008 N 16206/08 also states that Art. 123 of the Tax Code of the Russian Federation does not provide for the liability of a tax agent for untimely transfer of personal income tax.
Withholding personal income tax when issuing funds for reporting
During inspections, tax authorities assess additional personal income tax in the following situations. When the employee did not promptly submit to the accounting department an advance report on the expenditure of the funds issued to him, and the employer, in turn, did not take any action to collect the resulting debt from the employee. Consequently, unspent amounts of money are left at the disposal of the employee, as well as in cases of absence or incorrect execution of primary documents attached to the advance report. In the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 15, 2010 in case No. A17-7346/2008, the court recognized the position of the tax inspectorate as unlawful. The tax authority qualified the funds received by the employee under the report as his income due to violations in the preparation of documents confirming the expenditure of cash on entertainment expenses. As the court indicated, the tax agent gave the employee, on account, funds for the purchase of goods and materials (for entertainment expenses), advance reports, primary documents confirming the expenditure of funds were presented by the accountable person and accepted by the tax agent. The inspectorate did not provide evidence that the inventory and materials purchased with accountable funds were not received by the tax agent. Submission of primary documents confirming the expenditure of accountable funds and containing technical errors does not indicate receipt of income (material benefit) by an individual and does not change the basis for their issuance. The Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/03/2009 N 11714/08 states that accountable funds that are not partially returned by the employee are not his income subject to personal income tax .
If the tax agent has not repaid his debt to the taxpayer
It happens that a creditor, for one reason or another, cannot (or does not want) to repay his debt to the taxpayer. This does not mean that there are no tax agent responsibilities.
The Plenum of the Supreme Arbitration Court of the Russian Federation emphasized that although it is impossible to withhold and transfer the tax in this situation, the tax agent has a new obligation - to inform the Federal Tax Service that it is impossible to withhold the tax, as well as the amount of his outstanding debt. This is provided for in subparagraph 2 of paragraph 3 of Article 24 of the Tax Code of the Russian Federation.
We add that in general, such a message must be made within one month from the day the tax agent became aware of the impossibility of withholding tax. And for personal income tax, a separate deadline is established - no later than one month from the end of the tax period in which the relevant circumstances arose (clause 5 of Article 226 of the Tax Code of the Russian Federation). And even if this deadline is missed, the message still needs to be submitted. This was reported by specialists of the Federal Tax Service of Russia in a letter dated 07/06/12 No. ED-4-3/ [email protected] (see “The tax agent is obliged to inform the tax authorities about the impossibility of withholding personal income tax from payments in favor of an individual, even if the deadline for submitting such a message has been missed.” ).
The following situation cannot be excluded: the tax agent paid income to a foreign organization, withheld income tax and reflected it in the tax calculation. But then the money sent to the foreign counterparty was returned due to technical reasons (for example, due to the use of outdated bank details of the recipient). What should a tax agent do? According to officials from the Federal Tax Service of Russia, set out in letter No. ED-4-3/21260 dated December 13, 2012, the tax agent must submit an updated calculation of income tax (see “A Russian organization that, for technical reasons, did not pay income to a foreign company, must submit a “clarification” on income tax”).
Payment of tax by a tax agent at his own expense
Tax agents are required to calculate, withhold and pay the amount of personal income tax to the budget. At the same time, payment of tax at the expense of their own funds is not allowed (clause 9 of Article 226 of the Tax Code of the Russian Federation). The tax agent timely and in full transferred to the budget from its own funds the amounts of personal income tax that were not withheld from taxpayers. In the Resolution of the Federal Antimonopoly Service of the West Siberian District dated November 13, 2007 N F04-7817/2007(40014-A45-19) in case N A45-1793/2007-16/69, the court indicated that in this case the actions of the tax agent do not constitute an offense , provided for in Art. 123 Tax Code of the Russian Federation. True, there is another position according to which it is unlawful to collect tax at the expense of the tax agent’s own funds. In the Resolution of the Federal Antimonopoly Service of the Ural District dated October 14, 2010 N F09-8263/10-C2 in case N A07-22686/2009, the following is noted. The inspectorate unreasonably assessed additional personal income tax to the taxpayer, since it is not the source of the actual payment of wages to individuals, the funds for the payment of wages through the bailiff service were not at the disposal of the tax agent, he did not have the opportunity to withhold personal income tax and transfer it to the budget. The Federal Arbitration Court of the East Siberian District, in its Resolution dated November 26, 2009 in case No. A78-733/2009, noted that the tax agent must fulfill the obligation to transfer the withheld tax, but he cannot be entrusted with the obligation to pay the tax at his own expense, if tax was not withheld from income paid to the taxpayer.
What sanctions are provided for non-payment of tax?
For failure to withhold, not transfer or untimely transfer of personal income tax by a tax agent, liability is established by Art. 123 NK. For such violations, penalties are provided in the amount of 20% of the amount that must be paid. If, at the same time, tax reporting was submitted late, you will have to pay 200 rubles for each 2-NDFL certificate, 1000 rubles for calculating 6-NDFL for all full and partial months of delay. In addition to the fine, the organization must pay penalties, the amount of which depends on the amount of unpaid tax, the time of delay and the refinancing rate (
Late payment of tax
The Letter of the Federal Tax Service of Russia dated February 26, 2007 N 04-1-02/ [email protected] states that the tax agent is subject to prosecution for committing a tax offense under Art. 123 of the Tax Code of the Russian Federation, regardless of the transfer of tax amounts at a later date, including during or after an on-site tax audit (in the absence of circumstances precluding holding a person liable for committing a tax offense or excluding the person’s guilt in committing a tax offense). The amount of tax payable to the withholding agent must be paid on time. For example, according to paragraph 6 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash from the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or, on his behalf, to the accounts of third parties in banks . In other cases, tax agents transfer the amounts of calculated and withheld tax no later than the day following the day the taxpayer actually receives income, for income paid in cash, as well as the day following the day the calculated tax amount is actually withheld, for income received by the taxpayer in kind or in the form of material benefits. Accordingly, unlawful non-transfer (incomplete transfer) of tax amounts subject to withholding and transfer by the tax agent, i.e. tax offense under Art. 123 of the Tax Code of the Russian Federation, occurs when tax is withheld from the taxpayer, and not when it is transferred. According to the tax service, a tax agent, by withholding tax from a taxpayer but not remitting it within the prescribed period, is aware of the illegal nature of his actions (inaction), desires or consciously allows the harmful consequences of such actions (inaction), and also obviously must and can realize this. The transfer by a tax agent of amounts of tax withheld from the taxpayer, but not transferred within the established period, at a later date, including during or after an on-site tax audit, does not affect the guilt of the tax agent. Meanwhile, according to arbitration practice, if the tax is transferred after the established deadline, then the fine under Art. 123 of the Tax Code of the Russian Federation does not apply (Resolutions of the Federal Antimonopoly Service of the Ural District dated November 24, 2009 N F09-9311/09-S3, FAS West Siberian District dated January 22, 2009 N F04-7718/2008 (17480-A03-29)). A similar position exists in the case where the tax was transferred even before the start of the tax audit (Resolutions of the FAS Moscow District dated 02.27.2010 N KA-A40/1259-10, FAS North Caucasus District dated 07.28.2009 in case N A32-10745/ 2008-33/163). In the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 14, 2010 in case No. A32-14406/2010-58/215, the court, recognizing the position of the tax authority as unlawful, indicated that untimely fulfillment of an obligation means its fulfillment in violation of the established deadline. A tax agent’s untimely transfer of withheld taxes to the budget cannot be regarded as a failure to fulfill the obligation to transfer taxes. Responsibility under Art. 123 of the Tax Code of the Russian Federation is established only for failure to fulfill this obligation.
How to make a refund of overpaid personal income tax by a tax agent?
If a tax agent overpaid personal income tax, then he, in fact, reduced the income of an individual by such action. The injured employee has the right to apply to the employer for a refund of the overpaid amount of tax. Tax legislation in paragraph 7 of Art. 78 of the Tax Code of the Russian Federation determines that the statute of limitations for such cases is 3 years, during which a statement can be written.
Read more: Can you get your insurance back after paying off your mortgage?
After receiving a written request from the employee, the tax agent writes a statement to his Federal Tax Service and attaches documents that can confirm the fact of the overpayment. The tax authorities will make a decision within 10 days and inform the employer about it. The tax agent is given the right to choose one of two ways to repay the debt:
- Offset the overpayment against future personal income tax payments.
- Transfer the identified amount of overpayment to the taxpayer's account.
If it is not possible to return the tax through the employer, the taxpayer has the right to apply for a tax refund directly to the Federal Tax Service. How to draw up an application for a personal income tax refund in this case, see our article.
The taxpayer independently paid the tax payable by the tax agent
From the analysis of judicial practice, we can conclude that the tax authority does not have the right to hold the tax agent liable under Art. 123 of the Tax Code of the Russian Federation, if the taxpayer independently calculated and paid the tax on time . For example, in the Resolution of the Federal Antimonopoly Service of the Moscow District dated January 26, 2010 N KA-A40/15099-09 in case N A40-83081/08-80-312, additional assessment of personal income tax, penalties and fines for an organization was recognized as unlawful, since taxpayers who received income paid the tax themselves . The Federal Arbitration Court of the Ural District, in its Resolution dated May 13, 2009 N F09-2909/09-S3 in case N A76-22171/2008-42-760, considered the following situation. The entrepreneur paid remuneration to the individual under the lease agreement, but did not withhold or transfer personal income tax on this amount. However, the tax was calculated and paid by the individual on time. Having assessed all the circumstances, the court came to the conclusion that holding the entrepreneur liable under Art. 123 of the Tax Code of the Russian Federation in such a situation is unlawful. It should be taken into account that there is another position. Thus, in the Resolution of the Federal Antimonopoly Service of the Ural District dated March 5, 2008 N F09-1106/08-S2, the court found that the organization did not transfer personal income tax on income paid to an individual under a lease agreement. In this case, the tax was paid by the taxpayer himself. By virtue of the direct instructions of the law, the responsibility for calculating, withholding and transferring personal income tax to the budget on amounts of income paid to individuals is assigned to the tax agent. Consequently, the inspection has the right to hold the agent accountable under Art. 123 of the Tax Code of the Russian Federation and charge penalties, even if the tax was paid by an individual independently.
Fine for non-payment of personal income tax by a tax agent in 2021
If the employer fails to withhold or pay income tax from the enterprise, a penalty of 20% of the corresponding amount to be withheld or transferred may be collected (Article 123). The same rule applies to cases of incomplete withholding (payment to the budget) of income tax.
Additionally, in case of late payment of accrued and withheld amounts of income tax, the tax agent will have to transfer penalties to the treasury at the rate in accordance with clause 4 of Art. 75. The general limitation period for the collection of sanctions is limited to 3 years (clause 1 of Article 113). After the specified period, the tax authorities will not be able to hold the offender accountable.
Note! Separate sanctions are provided by the Tax Code for those tax agents who violated the approved deadlines for filing income tax reports. The amounts of fines are listed in stat. 126 and 126.1. Read more about fines for 6-personal income tax here.
Payment of penalties for violation of tax payment deadlines from the tax agent’s own funds
If the tax payment deadlines are violated, the agent must pay a penalty. In general, charging penalties on the amount of unwithheld tax, as well as bringing the tax agent to tax liability are legal. Penalties are a way of ensuring the fulfillment of the obligation to pay taxes and fees. In addition, penalties are a legal restoration measure of state coercion, of a compensatory nature, for late payment of taxes to the budget and must be collected from the subject of tax legal relations who is charged with such an obligation. The official position of the tax authorities is that they have the right to collect penalties at the expense of the agent in cases where personal income tax is not withheld from the income of an individual (Letter of the Federal Tax Service of Russia dated July 25, 2006 N BE-6-04 / [email protected] , Resolution of the Presidium Supreme Arbitration Court of the Russian Federation dated May 16, 2006 N 16058/05). In the Resolution of January 12, 2010 N 12000/09 in case N A56-48706/2007, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that if the tax agent does not withhold personal income tax from the taxpayer’s income and the inspectorate is refused to collect a penalty from him, such a refusal will not ensure compensation to the state for damages from late and incomplete payment of taxes. Based on this, the court recognized the decision of the tax authority to collect penalties from the organization as lawful. The Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 22, 2007 N 16499/06 in case N A47-16231/2005AK-25 states that a tax agent who has not withheld personal income tax from an individual must pay penalties at his own expense . This is due to the fact that the obligation to pay personal income tax to the budget rests with tax agents.
What to do if personal income tax is not withheld
If it was not possible to pay the tax this month, it must be done before the end of the year with the next payments to the employee. If it is not possible to withhold personal income tax in full until the end of the year, you should inform the tax office and the employee about this. The same must be done if the tax was not withheld when settling with a dismissed employee.
The message is issued in the form of a 2-NDFL certificate, which must be sent before March 1 of the next year. If this deadline is violated, the organization will be charged a fine of 200 rubles for each document. The notification is sent to the tax authority in paper form in person or by mail, or in electronic form. The certificate is sent to an individual by a valuable letter or in person against a signature confirming receipt.
In what case does the Federal Tax Service have no right to block the account of a tax agent?
The rules for suspending transactions on bank accounts apply not only to taxpayers, but also to tax agents. This follows from paragraph 11 of Article 76 of the Tax Code of the Russian Federation.
However, as the Plenum of the Supreme Arbitration Court of the Russian Federation indicated, it is not always possible to block a tax agent’s account. One of the grounds for blocking, namely late submission of a declaration, does not apply to tax agents.
The fact is that, according to paragraph 1 of Article 80 of the Tax Code of the Russian Federation, only taxpayers submit declarations. As for a tax agent who did not submit a tax calculation on time, operations on the tax agent’s account cannot be suspended on this basis.
Payments are made during the tax period
Let's consider two options with clear examples: when payments are made to an employee in cash during the entire tax period (that is, a year) and when such payments are not expected.
Example No. 1.
In June 2021, employee Potapenko G.N. was accrued and paid vacation pay for 2 weeks of vacation in the total amount of RUB 28,673.00. Potapenko G.N. is a resident of the Russian Federation. Of the accrued vacation pay, 1,600.00 rubles were withheld and transferred to the personal income tax budget. Employees are not provided with personal income tax deductions.
However, the accountant made a mistake in calculating the tax, since the amount of personal income tax subject to withholding should be equal to RUB 3,727.00. (RUB 28,673.00 × 13%=RUB 3,727.00). That is, the tax on vacation pay was not withheld in full. A shortcoming in the calculation was discovered by the accountant on December 1, 2021 Potapenko G.N. continues to work and receives income in cash to the present day.
In the situation considered, the organization, as a tax agent, is recommended to recalculate the amount of personal income tax for the employee for the period from June 2017 to December 2021 inclusive and withhold until the end of the tax period (that is, until the end of 2021) from the employee’s cash income the missing amount of personal income tax 2127.00 rub. (for example, from wages, bonuses, sick leave, etc.) and transfer it to the budget. But at the same time, it is important to remember that the total amount of personal income tax withheld should not exceed 50% of the income paid in cash to the employee (clause 4 of Article 226 of the Tax Code of the Russian Federation).
Further, in connection with the recalculation of personal income tax, you need to submit an adjustment declaration 6-personal income tax for six months and 9 months of 2021, and before April 2, 2021, submit a declaration 6-personal income tax and certificates 2-personal income tax for the entire year 2021.
Note! Additional tax can be withheld from an employee’s taxable income in cash only within the current tax period. In 2021, deductions can no longer be made. This is evidenced by the Letter of the Federal Tax Service of the Russian Federation dated October 26, 2016 No. BS-4-11/ [email protected] That is, in the example described above, the accountant has the opportunity to withhold the missing personal income tax in the amount of 2172.00 rubles. from the income of Potapenko G.N. for December 2021
As for the collection of penalties for untimely withholding, there are two opinions - the Supreme Arbitration Court of the Russian Federation and the Federal Tax Service of the Russian Federation. Thus, the Supreme Arbitration Court of the Russian Federation, in its Resolution No. 57 of July 30, 2013, explains that penalties may be collected from a tax agent who did not withhold tax. However, the Federal Tax Service of the Russian Federation, in its letter No. ED-4-2/13600 dated August 4, 2015, states the following: due to the fact that transfer of personal income tax at the expense of a tax agent is not allowed, there are no grounds for collecting unwithheld tax from the tax agent , which means there are no grounds for collecting penalties, that is, if the personal income tax was not withheld by the employer, therefore, there should be no penalties.
But since the opinions of YOU and the Federal Tax Service differ, and besides, if the failure to withhold personal income tax is not justified, then the collection of penalties by the tax authority from the employer in the event of untimely withholding of tax (as described in example 1) may still be acceptable.
Let us remind you that the penalty is calculated based on 1/300 of the current refinancing rate, the amount of tax debt and the number of days overdue for payment.
If the tax inspectorate demands payment of penalties and fines, then they will definitely need to be repaid, otherwise you can expect the organization’s current account to be blocked.
The fundamental question is: is the tax a loss?
Can a tax authority recover losses from a tax agent who unlawfully failed to withhold tax from a taxpayer and, accordingly, did not transfer it to the budget?
This issue has become one of the key ones in the draft resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation”* (hereinafter referred to as the Draft), which is currently being actively discussed.
