Article 226 of the Tax Code of the Russian Federation. Features of tax calculation by tax agents. Procedure and deadlines for tax payment by tax agents.

1. Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received the income specified in paragraph 2

of this article are obliged to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with
Article 225
of this Code, taking into account the specifics provided for by this article. Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers.

(as amended by Federal Laws dated December 29, 2000 N 166-FZ

, dated December 31, 2002
N 187-FZ
, dated July 27,
N 137-FZ
, dated July 24, 2007
N 216-FZ
, dated November 23, 2020
N 372-FZ
)

Mentioned in paragraph one

of this paragraph, persons are referred to in this chapter as tax agents.

(as amended by the Federal Law

dated July 27, 2006 N 137-FZ)

Unless otherwise provided in paragraph 2

or
the second paragraph of paragraph 6 of Article 226.1
of this Code, Russian organizations and individual entrepreneurs who make payments under agreements for the purchase and sale (exchange) of securities concluded by them with taxpayers are also recognized as tax agents.

(paragraph introduced by Federal Law

dated September 29, 2019 N 325-FZ;
in ed. Federal Law
of November 23, 2020 N 374-FZ)

When determining the tax base for transactions with securities based on a taxpayer’s application, the tax agents specified in this paragraph take into account actual and documented expenses that are associated with the acquisition and storage of the relevant securities and that the taxpayer incurred without the participation of a tax agent.

(paragraph introduced by Federal Law

dated September 29, 2019 N 325-FZ)

As documentary evidence of the relevant expenses, an individual must submit originals or duly certified copies of documents on the basis of which this individual made the relevant expenses, brokerage reports, documents confirming the fact of transfer of rights to the relevant securities to the taxpayer, the fact and amount of payment of the relevant expenses . If an individual submits original documents, the tax agent is obliged to make certified copies of such documents and store them for five years.

(paragraph introduced by Federal Law

dated September 29, 2019 N 325-FZ)

2. Calculation of amounts and payment of tax in accordance with this article are carried out in relation to all income of the taxpayer, the source of which is a tax agent, with offset of previously withheld tax amounts (except for income in respect of which tax amounts are calculated in accordance with Article 214.7

of this Code), and in cases and in the manner provided for in
Article 227.1
of this Code, also taking into account the reduction by the amount of fixed advance payments paid by the taxpayer.

Peculiarities of calculation and (or) payment of tax on certain types of income are established by Articles 214.3

,
214.4
,
214.5
,
214.6
,
214.7
,
226.1
,
227
and
228
of this Code.

(Clause 2 of the Federal Law

dated November 27, 2017 N 354-FZ)

3. Tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with Article 223

of this Code, on a cumulative basis from the beginning
of the tax period
in relation to all income in respect of which the tax rate established by
paragraph 1
or 3.1 of Article 224 of this Code is applied, accrued to the taxpayer for a given period, with the offset of the tax amount withheld in previous months of the current tax period.

(as amended by Federal Laws dated May 2, 2015 N 113-FZ

, dated November 27, 2017
N 354-FZ
, dated November 23, 2020
N 372-FZ
)

The amount of tax applied to income for which other rules

tax rates are calculated by the tax agent separately for each amount of specified income accrued to the taxpayer.

(as amended by Federal Laws dated May 2, 2015 N 113-FZ

, dated November 23, 2020
N 372-FZ
)

The tax amount is calculated without taking into account the income received by the taxpayer from other tax agents and the tax amounts withheld by other tax agents.

4. Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon their actual payment, taking into account the specifics established by this paragraph.

(as amended by the Federal Law

dated 02.05.2015 N 113-FZ)

When paying the taxpayer income in kind

or the taxpayer receives income in the form of
material benefit,
the calculated amount of tax is withheld by the tax agent at the expense of any income paid by the tax agent to the taxpayer in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of income paid in cash.

(as amended by the Federal Law

dated 02.05.2015 N 113-FZ)

The provisions of this paragraph do not apply to tax agents that are credit organizations with regard to the withholding and payment of tax amounts on income received by clients of these credit organizations (except for clients who are employees of these credit organizations) in the form of material benefits determined in accordance with subparagraphs 1

and
2 paragraphs 1 of Article 212
of this Code.

(paragraph introduced by Federal Law

dated July 19, 2009 N 202-FZ)

5. If it is impossible to withhold the calculated amount of tax from the taxpayer during the tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding tax, the amount of income from which tax is not withheld, and the amount of tax not withheld.

(as amended by the Federal Law

dated 02.05.2015 N 113-FZ)

The form of notification about the impossibility of withholding tax, the amount of income from which tax was not withheld, and the amount of unwithheld tax, as well as the procedure for submitting it to the tax authority, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

(as amended by the Federal Law

dated 02.05.2015 N 113-FZ)

Tax agents are Russian organizations with separate divisions, organizations classified as the largest taxpayers, individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) patent taxation system, report the amounts of income from which tax is not withheld and the amount of tax not withheld in a manner similar to the procedure provided for in paragraph 2 of Article 230

of this Code.

(paragraph introduced by Federal Law

dated 02.05.2015 N 113-FZ)

(Clause 5 as amended by the Federal Law

dated July 19, 2009 N 202-FZ (as amended on December 27, 2009))

6. Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day of payment of income to the taxpayer.

When paying a taxpayer income in the form of temporary disability benefits (including benefits for caring for a sick child) and in the form of vacation pay, tax agents are required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made.

(Clause 6 as amended by the Federal Law

dated 02.05.2015 N 113-FZ)

7. The amount of tax calculated at the tax rate specified in paragraph 1

or 3.1 of Article 224 of this Code, and withheld by the tax agent from the taxpayer, in respect of whom it is recognized as a source of income, is paid to the budget in the following order:

(as amended by the Federal Law

dated November 23, 2020 N 372-FZ)

if at the time of payment of the tax to the budget, the amount of tax calculated and withheld by the tax agent from the taxpayer, calculated on an accrual basis from the beginning of the tax period, is less than 650 thousand rubles or equal to 650 thousand rubles, the tax is paid at the place of registration (place of residence) of the tax agent at the tax authority, as well as at the location of each of its separate divisions;

(as amended by the Federal Law

dated November 23, 2020 N 372-FZ)

if at the time of payment of the tax to the budget, the amount of tax calculated and withheld by the tax agent from the taxpayer, calculated on an accrual basis from the beginning of the tax period, exceeded 650 thousand rubles, the tax is paid at the place of registration (place of residence) of the tax agent with the tax authority, and also at the location of each of its separate divisions in the following order:

(paragraph introduced by Federal Law

dated November 23, 2020 N 372-FZ)

the amount of tax is paid separately in the part missing up to 650 thousand rubles, relating to the part of the tax base up to 5 million rubles inclusive;

(paragraph introduced by Federal Law

dated November 23, 2020 N 372-FZ)

the part of the tax amount exceeding 650 thousand rubles relating to the part of the tax base exceeding 5 million rubles is paid separately.

(paragraph introduced by Federal Law

dated November 23, 2020 N 372-FZ)

The amount of tax calculated at other tax rates and withheld by the tax agent from the taxpayer, in respect of whom it is recognized as a source of income, is paid to the budget at the place of registration (place of residence) of the tax agent with the tax authority, as well as at the location of each of its separate divisions.

(paragraph introduced by Federal Law

dated November 23, 2020 N 372-FZ)

The amount of tax payable to the budget at the location of a separate division of the organization is determined based on the amount of income subject to taxation accrued and paid to employees of this separate division, as well as based on the amount of income accrued and paid under civil contracts concluded with by individuals of a separate division (authorized persons of a separate division) on behalf of such an organization.

(as amended by the Federal Law

dated November 28, 2015 N 327-FZ)

Tax agents are individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) a patent tax system, from the income of employees are required to transfer calculated and withheld tax amounts to the budget at the place of registration in connection with the implementation of such activities.

(paragraph introduced by Federal Law

dated 02.05.2015 N 113-FZ)

Tax agents are Russian organizations specified in paragraph 1

of this article, having several separate divisions on the territory of one municipality, have the right to transfer the calculated and withheld tax amounts to the budget at the location of one of such separate divisions or at the location of the organization, if the specified organization and its separate divisions are located on the territory of one municipality education chosen by the tax agent independently, taking into account the procedure established
by paragraph 2 of Article 230
of this Code.

(paragraph introduced by Federal Law

dated September 29, 2019 N 325-FZ)

7.1. For the purposes of this chapter, tax agents are also recognized as Russian organizations that transfer amounts of allowance, salary, wages, and other remuneration (other payments) to military personnel and civilian personnel (federal civil servants and workers) of the Armed Forces of the Russian Federation.

The total amount of tax calculated and withheld by the tax agent from the specified amounts is transferred to the budget in the manner provided for in paragraph 7

of this article, without applying the provisions on the need to pay tax to the budget at the location of the separate divisions of the tax agent.

(as amended by the Federal Law

dated November 23, 2020 N 372-FZ)

(Clause 7.1 introduced by Federal Law

dated November 30, 2016 N 399-FZ)

8. The total amount of tax withheld by a tax agent from the income of individuals for whom he is recognized as a source of income, exceeding 100 rubles, is transferred to the budget in the manner prescribed by this article. If the total amount of withheld tax payable to the budget is less than 100 rubles, it is added to the amount of tax payable to the budget in the next month, but no later than December of the current year.

ConsultantPlus: note.

Clause 9 art. 226 regarding the payment of tax at the expense of the tax agent when additionally accruing (collecting) personal income tax amounts at a rate of 15% for the first quarter of 2021 does not apply in the case of the tax agent independently transferring the specified amounts before 07/01/2021 (Federal Law dated November 23, 2020 N 372- Federal Law

).

9. Payment of tax at the expense of tax agents is not allowed, except for cases of additional assessment (collection) of tax based on the results of a tax audit in accordance with this Code in the event of unlawful non-withholding (incomplete withholding) of tax by a tax agent. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume obligations to bear the costs associated with paying tax for individuals.

(as amended by the Federal Law

dated September 29, 2019 N 325-FZ)

ConsultantPlus: note.

Art. 226.1 (as amended by Federal Law No. 372-FZ dated November 23, 2020) applies

in relation to income received starting from 01/01/2021.

What is the procedure for paying personal income tax?

1. The party making the payments (for example, the employer or the tenant) withholds and transfers the tax to the budget.

2. An individual pays the tax independently.

If the party making payments to an individual acts as a tax agent, and itself withholds and pays personal income tax to the budget in full, the individual does not have any additional responsibilities.

However, there are cases when an organization or individual entrepreneur making payments to an individual does not perform the functions of tax agents or for some reason was unable to withhold tax. In this case, they are obliged to inform both the tax office and the recipient of the income about this (clause 5 of Article 226 of the Tax Code of the Russian Federation). You can notify a citizen that taxes were not withheld and paid on payments made in his favor at the time in any form. A copy of the certificate submitted to the tax office indicating the amounts paid is added to the message so that the individual has an idea of ​​what tax will need to be paid. Information about paid amounts, as well as non-withheld personal income tax amounts, is transmitted in the first month of the year (before February 1) following the reporting month.

An individual who has learned of the existence of a debt to the budget is obliged no later than April 30 of the year following the reporting period to submit a tax return in form 3-NDFL (clause 1 of Article 229 of the Tax Code of the Russian Federation). If April 30 falls on a weekend, the declaration must be submitted no later than the next working day, and the deadline for filing the declaration is not postponed if the specified date falls on a holiday. The taxpayer is obliged to submit the declaration to the tax office at his place of residence, either in person, or through a representative with a power of attorney, or by mail in a valuable letter with a list of the contents (clause 4 of Article 80 of the Tax Code of the Russian Federation).

The tax itself should be paid no later than July 15 of the year following the reporting period, having previously specified the details for its payment (clause 4 of Article 228 of the Tax Code of the Russian Federation).

If the deadlines for submitting a declaration and paying the tax are violated, the tax office has the right to assess additional tax, as well as oblige the taxpayer to pay penalties and fines. The fine for violating the deadlines for filing a personal income tax return is levied in the amount of 5% of the unpaid tax amount for each full or partial month from the day established for its submission. The minimum amount of administrative punishment in this case is 1 thousand rubles, the maximum is 30% of the tax amount (clause 1 of Article 119 of the Tax Code of the Russian Federation). The fine for non-payment of tax can be 20% of the unpaid amount or 40% if the tax authorities prove the taxpayer’s intentional failure to fulfill his obligations. Penalties are accrued for each calendar day of delay in personal income tax payment in the amount of 1/300 of the Central Bank refinancing rate.

If the taxpayer proves that he filed a return on time, correctly calculated the amount of tax, but did not pay it on time, on the basis of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57, it will be possible to appeal the decision to impose a fine for non-payment of tax. In this case, tax authorities have the right to charge only penalties.

Clause 3 of Article 226 of the Tax Code of the Russian Federation

Tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with Article 223 of this Code, on an accrual basis from the beginning of the tax period in relation to all income (except for income from equity participation in an organization, as well as income in respect of which the amounts are calculated tax is carried out in accordance with Article 214.7 of this Code), in respect of which the tax rate established by paragraph 1 of Article 224 of this Code, accrued to the taxpayer for a given period, is applied, with the offset of the amount of tax withheld in previous months of the current tax period. (As amended by Federal Laws dated May 2, 2015 No. 113-FZ; dated November 27, 2017 No. 354-FZ)

The amount of tax in relation to income in respect of which other tax rates are applied, as well as to income from equity participation in an organization, is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

The tax amount is calculated without taking into account the income received by the taxpayer from other tax agents and the tax amounts withheld by other tax agents.

What gifts should I pay personal income tax on?

According to Article 228 of the Tax Code of the Russian Federation, gifts made by loved ones - spouses, children, grandparents, half-siblings, adoptive parents - are not taxed. If the gift is given by the employer, then the tax is automatically calculated from the value of the gift and, in accordance with Article 24 of the Tax Code of the Russian Federation, as well as Article 226 of the Tax Code of the Russian Federation, is withheld by the donor. But if the organization has not assumed any tax obligations (which is additionally reported), then the individual who received the gift is obliged to independently calculate and pay personal income tax. Gifts worth up to 4 thousand rubles received during the tax period (year) are not subject to income tax on the basis of clause 28 of Article 217 of the Tax Code of the Russian Federation. If the value of the gift/gifts exceeds the specified amount, then the tax is calculated as follows: tax amount = (value of the gift - 4 thousand rubles), multiplied by the corresponding personal income tax rate. If the gift is made by an individual who is not a family member or close relative, personal income tax will have to be paid only if the gift is real estate, a vehicle or shares (shares, shares). There is no need to pay tax on gifts in any other form.

How to pay personal income tax on winnings?

In case of receiving income in the form of winnings in a lottery, in a casino or on slot machines, an individual is obliged to independently file a declaration, calculate and pay personal income tax. However, if the cash prize was received in sweepstakes or bookmakers, when paying it out, the organizers of such events are required to withhold tax from the amount awarded. Otherwise, they are obliged to notify the individual about his obligation to independently pay personal income tax (clause 1 of Article 210 of the Tax Code of the Russian Federation, clause 2 of clause 2 of Article 211 of the Tax Code of the Russian Federation, clause 2 of Article 214.7 of the Tax Code of the Russian Federation, clause 1 of Article 226 of the Tax Code of the Russian Federation , paragraph 5, paragraph 1, Article 228 of the Tax Code of the Russian Federation).

Income in the form of advertising prizes, savings on interest on loans and others...

But there is a certain category of income for which an individual entrepreneur must always pay personal income tax on his own, regardless of what taxation system he is on (subclause 3, clause 1, article 346.15 of the Tax Code of the Russian Federation). Such income includes:

To make our explanations presented in this article more clear to you, we decided to duplicate them in the form of a visual diagram:

When is personal income tax transferred from an employee’s vacation pay?

Until recently, this was a controversial issue and there were disagreements in the legal environment regarding the timing of personal income tax deductions from vacation pay. Since 2021, the situation has been settled - data has been added to Article 226 of the Tax Code of the Russian Federation, clarifying the position of paragraph 6. Article 226 of the Tax Code of the Russian Federation with comments for 2021 implies that the amount of tax on such personal income. persons, as vacation pay, must be transferred by the tax agent no later than the last day of the month in which these vacation pay were paid. Previously, there was a different opinion, supported by many court decisions. It was believed that the tax should be transferred no later than the day when the employee (or authorized representatives in his place) actually received the amount of vacation pay into his account. However, cassation courts quite often came to a conclusion that is now enshrined in law. They established that the tax should be transferred on the last day of the month in which the payment of vacation pay was made. In their decisions, the judges indicated that vacation pay is equal to the employee’s salary, and therefore the transfer and deduction of personal income tax from the amount of vacation pay should occur in the same way as from salary - on the last day of the month (clause 2 of Article 223 of the Tax Code of the Russian Federation). Turning to Article 226 of the Tax Code of the Russian Federation with comments for 2021, one can now see the legislative consolidation of this position. So, when paying sick leave and vacation pay to employees in 2021, employers transfer personal income tax no later than the last day of the month in which these payments were made.

Clause 4 of Article 226 of the Tax Code of the Russian Federation

Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon actual payment, taking into account the specifics established by this paragraph. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

When paying a taxpayer income in kind or receiving income in the form of a material benefit, the tax agent withholds the calculated amount of tax from any income paid by the tax agent to the taxpayer in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of income paid in cash. (As amended by Federal Law dated May 2, 2015 No. 113-FZ)

The provisions of this paragraph do not apply to tax agents that are credit organizations with regard to the withholding and payment of tax amounts on income received by clients of these credit organizations (except for clients who are employees of these credit organizations) in the form of material benefits determined in accordance with subparagraphs 1 and 2 paragraphs 1 of Article 212 of this Code. (Paragraph introduced - Federal Law dated July 19, 2009 No. 202-FZ)

When is personal income tax transferred if the salary is paid in installments in the form of an advance and payment?

It is legally recognized that the date of receipt of income in the form of wages is the last day of the working month (Article 223 of the Tax Code of the Russian Federation). But Article 226 of the Tax Code of the Russian Federation with comments 2021 contains an indication that tax agents transfer the amounts of personal income tax withheld from the employee’s income no later than the date following the day of payment. Recently, the legislator clarified that when paying vacations and paying disability benefits, tax is deducted on the last day of the month in which the payments were made. According to official opinion, if the salary is paid in installments, then the tax is withheld and transferred to the budget once - when calculated at the end of the month, while observing the rules of Article 226 of the Tax Code of the Russian Federation. Therefore, until the end of the working month, income in the form of an advance is not recognized as received. When withholding personal income tax, the advance amount is included in the monthly wages made at the end of the working month, and the tax on this amount is paid on the day of final payment. This position is not controversial. It is shared by the Ministry of Finance, the Tax Service, judges and experts.

Income in the form of interest from bank deposits

Another type of income of an individual entrepreneur, for which personal income tax must be withheld and paid by an organization as a tax agent, is income in the form of interest on bank deposits. This is precisely the requirement contained in paragraph 4 of Art. 214.2 Tax Code of the Russian Federation.

NOTE! The key phrase is “bank deposits”. That is, an individual entrepreneur does not have to pay personal income tax himself and report on it only for income received in the form of interest on deposits in banks located in the Russian Federation (letter of the Ministry of Finance of Russia dated July 12, 2017 No. 03-04-06/44445).

If the interest was received as a result of placing loans in organizations that are not banks, in this case:

• entrepreneurs using the simplified tax system include interest received in non-operating income (letter of the Ministry of Finance of Russia dated 04/06/2017 No. 03-11-11/20549);
• Entrepreneurs with a patent and UTII independently calculate personal income tax from interest income, transfer it to the budget and submit reports on it.

Entrepreneurs must adhere to the same procedure described above when taxing income received from other business activities:

• when applying the simplified tax system, income is taken into account when calculating the single tax;
• when applying UTII, Unified Agricultural Tax and a patent, the individual entrepreneur independently pays personal income tax on income (but provided that other business activities do not fall under the patent, UTII and Unified Agricultural Tax).

In what cases an individual entrepreneur must pay personal income tax, find out here.

When can the functions of a tax agent be assigned to a trustee?

According to the Civil Code of the Russian Federation, property can be transferred to trust management, which does not entail the transfer of ownership of it to the manager. But such a manager makes transactions with this property on his own behalf. If physical a person, for example, decides to conclude a deposit agreement not personally, but through a trustee, then the manager concludes the agreement on his own behalf, albeit at the expense of the trustor’s money. Since the agreement with the bank was not concluded by an individual. person, then the income from the deposit agreement is an individual. the person does not receive. In this case, the citizen receives income from trust management, and not from a bank deposit. According to paragraph 1 of Article 226 of the Tax Code of the Russian Federation, an organization from interaction with which a citizen-taxpayer received income can be recognized as a tax agent. Since a citizen entered into a trust management agreement and received income from interaction with the manager, then, falling under the definition, the trustee can be recognized as a tax agent. The individual will be the recipient of income under the deposit agreement concluded by the trustee. Personal income tax on this income will be withheld when the money is paid to the individual by the trustee.