Stationary retail chain with trading floors
A stationary trading network with trading floors is a trading network located in buildings and structures (parts thereof) intended for trading, which have separate premises equipped with special equipment intended for conducting retail trade and serving customers.
This category of retail facilities includes shops and pavilions. Stationary retail chain without sales floors
Stationary retail chain
that does not have trading floors is a trading network located in buildings, structures and structures (parts thereof) intended for trading, which do not have separate and specially equipped premises for these purposes, as well as in buildings, structures and structures (parts thereof), used for concluding retail purchase and sale contracts, as well as for conducting auctions.
Understanding the difference in trade objects is necessary for correct registration as a payer of imputed tax, as well as for calculating the UTII tax.
Stationary retail chain facilities
- retail markets
- trade fairs
- kiosks
- tents
- vending machines
Trade establishments can be located
- in separate buildings
- on the first floors of built-in and attached buildings, residential buildings or non-residential buildings
- in the structure (composition) of shopping centers and shopping complexes
What is a shopping complex?
A shopping complex is a collection of trading enterprises that sell a universal range of goods and provide a wide range of services, as well as centralizing the functions of economic services for trading activities.
What is a shopping center?
A shopping center is a collection of trading enterprises and/or service enterprises that sell a universal range of goods and services located in a certain territory.
UTII: Retail trade
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In accordance with the legislation on taxes and fees of the Russian Federation, in addition to the general taxation regime, special taxation regimes may be applied when certain conditions or restrictions are met.
Thus, a special taxation regime has been introduced for retail trade in the form of a single tax on imputed income (hereinafter referred to as UTII). According to ch. 26.3 of the Tax Code of the Russian Federation, the taxation system in the form of UTII is not applied to all types of business activities. The list of types of business activities that fall under UTII is indicated in paragraph 2 of Art. 346.26 Tax Code of the Russian Federation.
In accordance with paragraphs. 6, 7 p. 2 art. 346.26 UTII is applied to two types of business activities classified as retail trade:
- retail trade carried out through shops and pavilions with a sales floor area of no more than 150 sq. m for each trade organization facility;
- retail trade carried out through kiosks, tents, trays and other objects of a stationary trading network that do not have sales floors, as well as objects of a non-stationary trading network.
Thus, retail trade carried out through other trade organizations, or retail trade carried out in areas larger than 150 sq. m are subject to taxation in accordance with the general or simplified taxation regime. Let us note that on the basis of the Federal Law of July 22, 2008 N 155-FZ “On Amendments to Part Two of the Tax Code of the Russian Federation” from January 1, 2009 in accordance with paragraphs. 7 paragraph 2 art. 346.26 of the Tax Code of the Russian Federation, kiosks, tents, trays do not have to be classified as objects of a stationary retail chain that does not have sales floors.
For taxation purposes under retail trade in accordance with the provisions of Art. 346.27 of the Tax Code of the Russian Federation refers to business activities related to the trade of goods (including in cash, as well as using payment cards) on the basis of retail sales contracts. This type of activity must be systematic in nature in order for this activity to be recognized as entrepreneurial (Article 2 of the Civil Code of the Russian Federation). Entrepreneurial activity includes independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.
The courts are of a similar opinion. Their position boils down to the fact that one-time implementation of purchase and sale transactions should not be recognized as retail trade as a type of business activity accepted for the purposes of UTII taxation. This position is set out, in particular, in the Resolution of the Federal Antimonopoly Service of the North-Western District dated May 23, 2007 N A52-2523/2006/2.
In practice, sellers, in addition to retail trade, provide additional services to customers, such as assembly, bringing them to a condition suitable for use (pre-sale preparation). According to clarifications of the Ministry of Finance of Russia dated October 19, 2007 N 03-11-04/3/412, these services relate to retail trade services in accordance with the All-Russian Classifier of Services to the Population, and therefore are subject to the taxation system in the form of UTII.
Along with additional services to customers, the retailer can also provide additional services to suppliers and manufacturers of goods. In relation to such services, the determining point for the purposes of UTII taxation is the basis on which these specified services are provided. If an agreement for the provision of additional services is concluded separately, then this type of business activity cannot be recognized as subject to UTII. If additional services are provided within the framework of a supply agreement, then income received from this type of activity is subject to UTII within the framework of retail trade. This point of view is also shared by the Russian Ministry of Finance (see Letter dated December 11, 2007 N 03-11-04/3/488).
Note that the concepts of “product” and “area of retail space” or “area of sales floor (in square meters)”. The area of a retail space is understood as the total area of the land plot occupied by the station, the size of which is determined on the basis of inventory or title documents.
In accordance with Law N 155-FZ, retail trade also does not include the sale of goods based on samples and catalogs outside a stationary retail network through telephone communications. Let us recall that from January 1, 2008, retail trade for the purposes of applying UTII did not include the sale of goods based on samples and catalogs outside a stationary retail network through teleshopping and computer networks. Fiscal authorities do not always agree with this provision. Thus, the Letter of the Ministry of Finance of Russia dated January 28, 2008 N 03-11-04/3/23 states that trade in goods on orders via telephone communications through operators without the use of any trade organization object for these purposes cannot be classified as stationary or non-stationary trade, including delivery or carry-out trade and, accordingly, is not subject to the taxation system in the form of UTII.
For example, the business activity carried out by an organization in the sale of bottled water and other related products by accepting orders for the specified product via telephone through operators in the office with subsequent free delivery to customers cannot be transferred to the taxation system in the form of UTII. In this case, it is recommended to separate real trade in the office, distribution and distribution from trade in goods according to samples and catalogs outside the stationary distribution network and work on two taxation systems.
Retail trade also includes the sale through vending machines of goods and (or) public catering products manufactured in these vending machines. Let us recall that in accordance with the Federal Law of May 17, 2007 N 85-FZ “On Amendments to Chapters 21, 26.1, 26.2 and 26.3 of Part Two of the Tax Code of the Russian Federation” from January 1, 2008 to a stationary retail chain that does not have retail outlets halls, for the purposes of applying UTII, include vending machines and the tax is levied on the vending machine as on a trading place. In accordance with paragraph. 21 Art. 346.27 of the Tax Code of the Russian Federation, from January 1, 2008, vending machines were excluded from public catering facilities that do not have a customer service area. Vending machines are classified as objects of a stationary retail chain that do not have sales areas. Thus, from January 1, 2008, when installing and operating vending machines, including those for the production of drinks from dry ingredients and water, the taxpayer must pay tax on retail trade (and not on catering services), determining the basic profitability in the amount of 9,000 rubles . from one trading place (vending machine). Since vending machines belong to the objects of a non-stationary trading network, the transfer of vending machines for rent as a type of entrepreneurial activity is subject to the taxation system in the form of UTII. Objects of trade not listed in paragraph. 15th century 346.27, relate to objects of a non-stationary retail network.
When carrying out retail trade through vending machines, for the purposes of calculating the single tax, a physical indicator in the form of a trading place should be used. If delivery trade is carried out outside a stationary retail network using specialized or specially equipped vehicles for trade, as well as mobile equipment used only with the vehicle (including mobile vending machines), then when calculating the single tax, a physical indicator in the form of quantity should be used workers, including individual entrepreneurs.
In practice, it is recommended to clearly distinguish between mobile and non-mobile vending machines, and also to be guided by Letters of the Ministry of Finance of Russia dated January 25, 2008 N 03-11-04/3/21 and dated July 4, 2007 N 03-11-05/144.
If an organization or individual entrepreneur installs several vending machines on the territory of one municipality, served by different tax inspectorates, then he is obliged to register as a UTII payer with one of the tax authorities at the location where one of the vending machines is installed in this municipality. If vending machines of an organization or individual entrepreneur are installed on the territory of several municipalities served by different tax inspectorates, then the organization or individual entrepreneur is required to register for taxation as a UTII payer with the tax authority at the place of installation of each of the vending machines in each of the municipalities, in which the specified business activity is carried out. A similar point of view is contained in the Letter of the Ministry of Finance of Russia dated November 13, 2006 N 03-11-04/3/488, which remains valid even after changes come into force in accordance with Law N 155-FZ.
Retail trade through a pre-order terminal is not recognized as an activity subject to UTII (see Letter of the Ministry of Finance of Russia dated December 25, 2007 N 03-11-04/3/517). However, according to experts, such a terminal corresponds to the concept of a stationary retail chain facility that does not have a sales area. In accordance with Art. 346.26 of the Tax Code of the Russian Federation, trade through objects of a stationary retail chain that do not have a sales area, according to catalogs and samples, is subject to UTII. Therefore, most likely, the taxpayer will have to prove the legality of using UTII for this type of activity in court.
According to Art. 492 of the Civil Code of the Russian Federation, under a retail purchase and sale agreement, a seller selling goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities. Consequently, if an organization or individual entrepreneur sells goods under supply contracts, they do not have the right to apply the UTII system, since, as established in Art. 506 of the Civil Code of the Russian Federation, under a supply agreement, goods are supplied for use in business activities or other purposes not related to personal and family consumption.
Thus, the defining difference between supply contracts and retail sales contracts is the ultimate goal of purchasing the goods. If a product is used for personal family purposes not related to business activities, then its sale will be recognized as retail trade, and therefore subject to UTII. If the goods are purchased for subsequent use in business activities, then such sales will not be recognized as retail trade for the purposes of UTII taxation.
The requirements for a retail purchase and sale agreement are established by Art. 493 Civil Code of the Russian Federation. A retail purchase and sale agreement is considered concluded from the moment a cash receipt and (or) sales receipt or other document confirming payment for the goods is issued to the buyer.
If, when selling goods, an organization (individual entrepreneur) draws up an invoice, an invoice highlighting the amount of VAT, keeps journals of received and issued invoices, purchase books and sales books, then such sales cannot be recognized as retail trade and are subject to taxation in accordance with the general taxation regime or in accordance with the simplified taxation regime (see Letters of the Ministry of Finance of Russia dated 01/23/2007 N 03-11-05/9, dated 08/15/2006 N 03-11-04/3/375, dated 06/23/2006 N 03 -11-04/3/314).
Thus, for the purposes of taxation of UTII in retail trade, not only the final purpose of using the purchased product, but also the procedure for processing primary documents is of decisive importance.
According to the clarifications of the Supreme Arbitration Court of the Russian Federation, retail trade is the sale of goods to legal entities and individual entrepreneurs if these goods are purchased from a retail seller. The purchased goods must be intended to support the current activities of the organization of a legal entity or individual entrepreneur as an economic entity. Thus, to whom goods are sold at retail - an organization, an individual entrepreneur or an individual - does not matter. It is important that the final purpose of using the purchased product is not of an entrepreneurial nature (see Letter of the Ministry of Finance of Russia dated 04/01/2008 N 03-11-04/3/162).
Note that the illegality of using UTII in relation to retail trade must be proven by the tax authority, and not the taxpayer. Therefore, often in practice, the majority of court decisions are made in favor of the taxpayer due to the lack of evidence from the tax authorities of the purchase of goods for purposes not related to personal, family, or home consumption, since it seems quite problematic to control the fact of purchasing goods from a retailer for commercial purposes.
The fact is that the provisions of Ch. 26.3 of the Tax Code of the Russian Federation does not oblige the UTII payer to check the final purpose of the goods purchased from him at retail. However, according to the Russian Ministry of Finance, retailers should still be interested in the ultimate purpose of purchasing goods (see Letters dated January 28, 2008 N 03-11-04/3/29, dated November 26, 2007 N 03-11-04/3/462 ).
A number of letters from the Russian Ministry of Finance indicate goods the sale of which cannot be recognized as retail trade for the purposes of UTII taxation, in particular:
— cash register equipment, as well as spare parts and consumables for it, scales, banknote detectors, etc.;
— trade equipment and similar equipment;
— office equipment and similar equipment;
— dental materials and similar materials.
In relation to the sale of the specified goods, i.e. those, the use of which for personal purposes not related to business activities seems very unlikely, this position is shared by the judicial authorities (see Resolutions of the FAS Volga District dated January 30, 2007 N A12-13219/06-C51, FAS Volga-Vyatka District dated 01/15/2007 N A43-562/2006-40-16).
So, in accordance with Art. 346.26 of the Tax Code of the Russian Federation, retail trade through stationary retail chain facilities with sales areas of no more than 150 square meters is subject to UTII taxation. m, as well as retail trade through stationary and non-stationary retail chain facilities that do not have sales floors. According to Art. 346.27 of the Tax Code of the Russian Federation, a stationary trading network is understood as a trading network located in buildings, structures, structures intended for trading, connected to utilities. Consequently, in order for a trading network to be recognized as a stationary trading network, it must, firstly, be intended for trading and, secondly, be connected to utilities.
From January 1, 2009, in accordance with Law N 155-FZ, a stationary retail network must not only be intended for trade and connected to utilities, but also actually be used for conducting trade activities. This change in legislation seems to be very significant for both taxpayers and tax authorities.
Along with the stated requirement, the Tax Code of the Russian Federation does not explain to which utilities the retail network must be connected in order to be considered stationary. Therefore, there is a very extensive arbitration practice regarding this issue. Some courts believe that connecting only to electrical networks can already be considered a sign of a stationary trading network, others do not share the position of the former, based on the fact that for these purposes it is also necessary to connect the trading facility to sewer networks, water supply and heating.
For the purposes of UTII taxation of retail trade, objects of a stationary retail chain may or may not have sales floors. Note that the Tax Code of the Russian Federation does not provide a definition of a trading floor, but does contain a definition of the area of a trading floor, which is used as a physical indicator for directly calculating the amount of tax payable to the budget. In this regard, in practice, controversial issues arise regarding what is recognized as a trading floor. The courts are inclined to believe that a trading floor is a specially equipped room where direct service is provided to visitors. In accordance with Art. 346.26 of the Tax Code of the Russian Federation for the purposes of taxation of UTII retail trade through a stationary retail chain facility with sales floors, the area of the latter should not exceed 150 square meters. m.
Please note that the area limit is set for one retail facility. The problem is how to distinguish between objects of trade and what is meant by one object. The division of objects, and therefore a separate determination of the area, occurs on the basis of the presence of demarcation features. Among such features are the presence of cash register equipment, separate utility rooms, separate entrances to trade organization facilities, etc. If trade organization facilities meet the specified criteria, then the taxpayer has the right to determine the area of the trading floor separately for each trade organization facility (see Letter Ministry of Finance of Russia dated 05/07/2007 N 03-11-04/3/142).
If there are demarcation marks for objects of trade organization, the procedure for drawing up title and (or) inventory documents does not matter. This fact was pointed out by the judicial authorities (see Resolutions of the Federal Antimonopoly Service of the Volga District dated September 28, 2006 N A12-5432/06-C10 and the Federal Antimonopoly Service of the Northwestern District dated April 9, 2007 N A13-2847/2006-11).
So, in retail trade through objects of a stationary retail chain that have trading floors, the UTII payer determines the area of the trading floor on the basis of title and (or) inventory documents. In accordance with Art. 346.29 of the Tax Code of the Russian Federation, the physical indicator in relation to this type of business activity is the area of the sales floor. In this case, the basic yield is 1800 rubles. per month. Under the basic profitability in accordance with Art. 346.27 of the Tax Code of the Russian Federation is understood as a conditional monthly profitability, therefore, since the tax period according to UTII of the Tax Code of the Russian Federation is defined as a quarter, when calculating the amount of tax payable to the budget, 1800 rubles are required. multiply by three.
Retail trade can also be carried out through a stationary retail chain that does not have sales floors. According to Art. 346.27 of the Tax Code of the Russian Federation, the object of a stationary retail chain that does not have trading floors is understood to mean a retail chain located in buildings, structures and structures (parts thereof) intended for trading, which do not have separate and specially equipped premises for these purposes, as well as in buildings buildings and structures (parts thereof) used for concluding retail purchase and sale contracts, as well as for conducting auctions. This category of retail facilities includes indoor markets (fairs), shopping malls, kiosks, vending machines (except for mobile ones) and other similar facilities.
As can be seen from the definition given in the Tax Code of the Russian Federation, the list of objects of a stationary retail chain that does not have trading floors remains open, therefore, any objects that meet the criteria established in Art. 346.27 Tax Code of the Russian Federation. Thus, in Letters of the Ministry of Finance of Russia dated May 22, 2006 N 03-11-04/3/267 and dated February 8, 2006 N 03-11-04/3/69 it is explained that, based on the definition given in the Tax Code of the Russian Federation, stationary facilities retail chains that do not have sales floors, in particular, may include:
- separate objects of a retail trade organization located on land plots and not subject to movement during the entire period of time stipulated by the agreements for their placement and (or) their lease or sublease agreements (tents, stalls, containers);
— bus stations;
— railway stations;
— administrative and educational buildings;
— clinics and other facilities with permanent retail locations;
— cultural and exhibition centers for the duration of exhibitions, fairs and other events;
- markets and shopping centers that transfer for temporary possession and (or) use structurally separate trading sections that are not classified as shops or pavilions.
In accordance with paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation, retail trade, subject to UTII, can be carried out through non-stationary retail chain facilities. According to Art. 346.27 of the Tax Code of the Russian Federation, a non-stationary trading network is understood as a trading network operating on the principles of delivery and distribution trade, as well as objects of trade organization that are not classified as a stationary trading network. Delivery trade is retail trade carried out outside a stationary retail network using specialized or specially equipped vehicles for trade, as well as mobile equipment used only with the vehicle. This type of trade includes trade using a car, a car shop, a car shop, a toner, a trailer, a mobile vending machine.
Only a vending machine used together with a vehicle is considered a mobile vending machine (see Letter of the Ministry of Finance of Russia dated January 25, 2008 N 03-11-04/3/21). Therefore, vending machines that can be installed and/or dismantled for the purpose of moving to another point of sale are not considered to be a mobile vending machine.
Retail trade is recognized as retail trade carried out outside a stationary retail network through direct contact between the seller and the buyer in organizations, in transport, at home or on the street. This type of trade includes trade from hands, trays, baskets and hand carts.
It should be noted that the defining feature for recognizing a trade object as non-stationary is its connection to utilities. Consequently, if in the title and (or) inventory documents the object of trade is indicated as non-stationary, but in fact it is used as a stationary trading network, then UTII will be assessed in relation to the object of the stationary trading network (see Letter of the Ministry of Finance of Russia dated January 26, 2007 N 03- 11-05/12).
In accordance with Art. 346.29 of the Tax Code of the Russian Federation for retail trade through stationary and non-stationary retail chain facilities that do not have sales floors, as well as for delivery and distribution trade, different physical indicators are established.
For retail trade through stationary and non-stationary retail chain facilities that do not have sales floors, the area of the retail space in which does not exceed 5 square meters. m, the physical indicator of the area of the “retail space” has been established. This physical indicator corresponds to a basic profitability of 9,000 rubles. per month.
For delivery and peddling trade, the physical indicator “number of employees, including individual entrepreneurs” has been established; the basic profitability amount is 4,500 rubles. In accordance with Art. 346.27 of the Tax Code of the Russian Federation, the number of employees is the average number of employees for each calendar month of the tax period, including part-time workers, contract workers and other civil law contracts.
Retail trade, UTII
Transition to UTII, application of imputation and payment of tax
Payment of trade tax and reduction of taxes on collection amounts
Calculation and payment of trade tax
Trade fee
Patent taxation system: catering services
Non-stationary trading network
In accordance with paragraph 3 of Art. 346.43 Tax Code of the Russian Federation non-stationary trading network
a trading network operating on the principles of distribution and peddling trade is recognized, as well as objects of trade organization that are not classified as a stationary trading network.
Distribution trade includes retail trade carried out outside a stationary retail network using specialized or specially equipped vehicles for trade, as well as mobile equipment used only with traditional and non-stationary distribution network" data-autoload-project="Stationary and non-stationary distribution network" >
