Providing explanations to the tax office regarding 6-NDFL
Form 6-NDFL is submitted by tax agents quarterly, starting from 2021 (Order of the Federal Tax Service of the Russian Federation dated October 14, 2015 No. ММВ-7-11/450). After checking the received Calculation, if inconsistencies, inaccuracies or errors are detected, tax authorities can send a request for clarification, which requires a response, or for making corrections to the Calculation. Explanations regarding 6-NDFL must be provided to the tax office no later than 5 working days after receiving the request (clause 3 of Article 88 and clause 2 of Article 105.29 of the Tax Code of the Russian Federation).
You should not ignore the demands of the tax authorities, because... For a tax agent, this is fraught with a fine of 5,000 rubles, and if the requirement is not fulfilled again within a calendar year - 20,000 rubles. (clause 1 of article 129.1 of the Tax Code of the Russian Federation).
There is no set form for drawing up explanations, so they can be drawn up in any form. It is important that the explanations are convincingly formulated and justified.
Explanatory note about the reason for non-payment of personal income tax
Filling out the calculation does not always go smoothly. After all, no one is immune from mistakes and from what foot the tax inspector got up today. That's why we decided to bring it for you.
Inevitable Document
Since 2021, the range of responsibilities of tax agents has expanded dramatically. Every quarter you have to submit reports on form 6-NDFL. As soon as it arrives at the inspectorate, tax officials immediately begin to study it. Moreover, this happens within the framework of desk control, on the premises of the Federal Tax Service. That is, the presence of a representative of the company that submitted the next payment is not expected.
The problem is that during such an audit, the inspection specialist, while studying your reporting, may have questions about filling it out. And only a tax agent can remove them.
But it’s better to be able to predict such situations.
When, for example, due to an error in 6 personal income tax, explanations to the tax office could immediately clarify the company’s position and its reputation as a conscientious tax agent.
We will talk about the most common such situations below and along the way we will give an example of explanations to the tax office regarding 6 personal income tax. The form and content of this calculation appendix are not regulated in any way by law. Therefore, freedom of creativity is already your trump card. But I think that the approach to this document should be approximately the same when giving explanations as part of a tax audit.
Towards zero settlement
It has already become an established practice that Form 6-NDFD with zero columns does not need to be sent to the inspectorate. Meanwhile, this does not prevent the inspection from asking why you did not submit the calculation. And it's better to answer. Moreover, sometimes it makes sense to proactively submit such a letter.
19.4 Code of Administrative Offenses of the Russian Federation).
Initially, the accrual indicators are compared with the calculation of 6-NDFL, after which the payment is compared with the actual documentation. The company may also be charged a penalty if the tax is not paid on time.
At the tax office, the timeliness of tax assessment is carried out by comparing the dates written in line 120 and the date when the actual payment of the tax amount to the budget was registered.
The current version of Art. 123 of the Tax Code of the Russian Federation establishes liability for tax agents for unlawful failure to withhold and transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of tax amounts subject to withholding and transfer by the tax agent: a fine of 20% of the amount subject to withholding or transfer.
Even in the Letter of the Ministry of Finance of Russia dated 04.04.2017 No. 03-02-08/19755 it was said that the Tax Code of the Russian Federation does not provide for the release of a tax agent from liability depending on the period of unlawful failure by him to fulfill the established obligation to withhold and transfer the amount of tax to the budget system of the Russian Federation. As for the reason why personal income tax was not paid on time, financiers note that the absence of a person’s guilt in committing a tax offense in accordance with paragraphs. 2 p. 1 art.
109 of the Tax Code of the Russian Federation is a circumstance that precludes bringing this person to justice for committing a tax offense. When applying a tax sanction, the court or tax authority considering the case takes into account circumstances that exclude the person’s guilt in committing a tax offense, or circumstances that mitigate liability for committing a tax offense (Articles 111 and 112 of the Tax Code of the Russian Federation).
But in practice, neither the lack of intent to commit a tax offense, nor the commission of a tax offense for the first time, nor the difficult financial situation of the tax agent, nor any other reasons were accepted by the tax authorities as circumstances excluding or mitigating guilt in this case.
In Letter No. 03-04-05/16172 dated March 15, 2018, representatives of the Ministry of Finance directly indicated that the tax agent does not transfer his own funds, but funds withheld directly from the taxpayer’s income upon their actual payment. Accordingly, by failing to remit personal income tax within the prescribed period, the tax agent is illegally using taxpayers’ funds, which is unacceptable.
At the same time, in practice, tax authorities tried to apply Art. 123 of the Tax Code of the Russian Federation and in the case of timely payment of personal income tax to the budget, but with errors in the payment order, for example, when paying personal income tax by a separate division of the organization. Although, according to the legal position of the Supreme Arbitration Court, a tax agent is recognized as having fulfilled its obligations to the budget system of the Russian Federation in the event of calculation, withholding and transfer of tax to the appropriate account of the Federal Treasury (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23.
2013 No. 784/13 in case No. A06-9384/2011). Also, the Presidium of the Supreme Arbitration Court came to the conclusion that incorrect indication of the OKATO code in payment documents does not lead to the formation of arrears and cannot be considered as a basis for accrual of penalties, since the tax was transferred to the budget system of the Russian Federation by the tax agent within the prescribed period.
A similar position is reflected in the Ruling of the Supreme Court of the Russian Federation dated March 10, 2015 No. 305-KG15-157 in case No. A40-19592/14. Accordingly, indicating the details of an organization instead of indicating the details of its separate division is not a basis for recognizing the obligation to pay tax to the budget system of the Russian Federation as unfulfilled.
The Letter of the Federal Tax Service of Russia dated November 24, 2017 No. GD-4-11/23852 clearly states that the Tax Code of the Russian Federation does not provide for liability for improper performance by a tax agent of its duties, in particular for violation of the procedure for transferring withheld personal income tax. Consequently, if the tax agent withheld personal income tax and transferred it in a timely manner and in full, the tax authority has no grounds to bring him to tax liability in accordance with Art. 123 Tax Code of the Russian Federation. This position was reflected in the Resolution of the Supreme Arbitration Court of the Russian Federation dated March 24, 2009 No. 14519/08.
At the same time, tax authorities remind that violation of the procedure for transferring taxes leads to difficulties in identifying payments by the tax authority, as well as difficulties for the tax agent himself in clarifying the grounds, type and identity of the payment. It's hard to disagree with this.
PERSONNEL (100) 5.1. Vacation (7) 5.10 Salary (5) 5.2. Maternity benefits (1) 5.3. Sick leave (7) 5.4.
Dismissal (11) 5.5. General (21) 5.6. Local acts and personnel documents (8) 5.7. Occupational safety (8) 5.8. Hiring (3) 5.9.
Foreign personnel (1) 6. Contractual relations (34) 6.1. Bank of contracts (15) 6.2. Conclusion of an agreement (9) 6.3.
Additional agreements to the contract (2) 6.4.
Termination of the contract (5) 6.5.
Claims (3) 7. Legislative framework (37) 7.1.
5.1. Art. 23 of the Tax Code of the Russian Federation). If receipt of the electronic request is not confirmed, this threatens to block the taxpayer’s bank accounts (Clause 3 of Article 76 of the Tax Code of the Russian Federation). There is no officially approved sample explanatory letter sent in response to the Federal Tax Service's request for clarification.
Is this legal? It is right that the requirements submitted by the Federal Tax Service may not have the stamp of the tax authority (letter of the Federal Tax Service of the Russian Federation NED-3-2/2739 dated July 15, 2015). Question No. 3.
The tax office has no right to charge you a fine for refusing to provide explanations. However, it is in your best interests to provide explanations, because
Based on discrepancies between the declaration data and the tax authorities, you may be charged additional taxes or payments, and this is more complicated.
Rate the quality of the article. It is best, of course, in such a situation to predict such a course of events, and if any error is discovered, it is best to immediately submit the necessary explanations to 6-NDFL in order to clarify the position of the company, as well as its reputation as a conscientious agent performing the duties assigned to it obligations. In case of zero
4): “...a disproportionately large fine can turn from a measure of influence into a tool for suppressing economic independence and initiative, excessive restriction of freedom of enterprise and property rights, which, by virtue of... the Constitution of the [RF]...ch.
1 tbsp. 34, part 1-3 art. 35, part 3 art. 55 of the Constitution of the Russian Federation is unacceptable.” It often happens that a company or entrepreneur has been fined, but they have nothing to object to on the merits of the violation committed - yes, they are guilty... And this is where mitigating circumstances can come to the rescue, because:
- If there is at least one such circumstance, the tax penalty must be reduced by at least half. 3 tbsp. 114 Tax Code of the Russian Federation. Moreover, the minimum fine may also be reduced (for example, 1000 rubles for late submission of the declaration, paragraph 1 of Art.
Aelita LLC received a requirement to provide
If you withheld personal income tax, but did not transfer it (untimely transferred) it to the budget, then in addition you will be charged a penalty. Penalties must be paid together with the amount of arrears for personal income tax or after payment of the entire amount of such tax. In accordance with the information provided, the response to the Federal Tax Service can be drawn up as follows: “LLC___ when calculating wages for July 2021.
withheld personal income tax in the amount of___. When transferring the amount of personal income tax to the budget on ____(date), the payment order by mistake did not reflect the entire amount of withheld tax; ___ (amount) was transferred. This error was discovered and corrected by us on ___(date) ourselves. Along with the personal income tax surcharge, we calculated and paid penalties.
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How to fill out a personal income tax payment form
Registration procedure
Explanations to the tax office: errors 6-NDFL
Before submitting 6-NDFL, the calculation must be checked for compliance with the control ratios (letter of the Federal Tax Service of the Russian Federation dated March 13, 2017 No. BS-4-11/4371). If this is not done, the camera will reveal, for example, a discrepancy between the 6-NDFL calculation data and the 2-NDFL certificates, or other violations due to which the calculation will not be accepted by the inspectorate. The list of main violations in form 6-NDFL was recently published by the Federal Tax Service of the Russian Federation in letter dated November 1, 2017 No. GD-4-11/22216.
A common reason for tax authorities to request clarification is a technical error in the calculation. The tax agent may make a simple typo that will distort the indicators and lead to logical inconsistencies. For example, when entering the amount of tax deductions, an extra zero was indicated, and as a result, the deductions exceeded the amount of income.
In addition to explanations to the tax office regarding 6-NDFL, a sample of which we provide, you must submit to the Federal Tax Service a corrected form with updated indicators.
To the Head of the Federal Tax Service of Russia No. 43 for Moscow
from Antares LLCINN 7701111111/KPP 770000000
OGRN 12345678910111
Ref No. 12/34 dated 11/19/2017
Explanations
In response to your request No. 0001-111-33/222 dated November 15, 2017, we inform you of the following:
in the calculation we presented on form 6-NDFL for 9 months of 2017, a technical error was made - a typo, which resulted in a discrepancy: the amount of tax deductions on line 030 exceeded the amount of accrued income on line 020. Corrected calculation on form 6-NDFL for 9 months of 2021 submitted to the Federal Tax Service on November 19, 2017 (attached a copy).
Appendix: copy of the calculation in form 6-NDFL for 9 months of 2017
General Director Pavlov V.V. Pavlov
In 2-NDFL, income is less than what employees declared in 3-NDFL.
Perhaps an employee of your company filed a 3-NDFL return for last year. For example, to declare income from the sale of a car or to receive a deduction for the purchase of an apartment, treatment or study.
Inspectors, after checking the declaration with the certificate, sometimes discover that the income in 2-NDFL is less than in the declaration. For tax authorities, such inconsistencies are one of the signs that the company is issuing shady salaries.
These types of discrepancies are not the concern of the company accountant. Indeed, how does an organization know why a person declared more income than in the 2-NDFL certificate? Maybe it was a typo. Or the citizen received additional income from other organizations or from the sale of property, etc.
And if so, the person himself must explain to the inspectors the origin of income in 3-NDFL. The company may limit itself to reporting that there are no errors in its 2-NDFL certificates.
We invite you to read: We pay health insurance contributions from the payroll in kopecks
Of course, before this you need to check again to see if there are any inaccuracies in the certificates.
Explanations if there are no errors in 6-NDFL
The Federal Tax Service can send a demand not only when obvious errors are detected, but also in a number of other cases. The reason for requesting clarification can be anything that interests the inspectors: a discrepancy between the amounts of withheld and transferred tax, withholding personal income tax earlier than the salary is paid, or the lack of transfer of tax to the budget, etc.
In this case, according to Form 6-NDFL, tax explanations are given without providing a “clarification”, because the report was drawn up correctly, but it is necessary to explain the reason for the situation that arose. For example, a discrepancy between the calculation and transfer of tax arose due to the fault of the bank, which did not transfer funds from the tax agent’s current account on time. To confirm your words, you need to attach all available documents (bank statements, copies of payment slips, etc.) to your explanations.
Explanation of zero calculation
All tax agents provide the 6-NDFL calculation form. This need is enshrined in Art. 230 NK. Employers or customers who pay wages to their employees are tax agents.
If no payments were made during the reporting period, then f. There is no need to submit 6-NDFL. Indeed, in such a situation, companies or individual entrepreneurs no longer act as tax agents.
There is no need to send forms with zero indicators to the tax authorities. But it still won’t hurt to provide an explanation indicating the reasons for the absence of the document. This will serve as reinsurance against additional stress, the appearance of which is inevitable after communicating with the tax authorities.
The letter is drawn up in the following format:
To the Head of the Federal Tax Service of the Russian Federation No. 7
according to Saratov R. M. Revov
From
Address (legal, actual):
About the absence of the need to provide f. 6-NDFL for the first quarter of 2021
In the first quarter of 2021, there were no payroll payments or related deductions. Income tax was not transferred to the budget. Therefore, the company did not provide a calculation according to f. 6-NDFL for the first quarter of the current year.
Director ________________________________ P. A. Voitenkov
