Notice of loss of the right to use the simplified taxation system (simplified taxation system)

The simplified taxation system is one of the most popular tax regimes in the Russian Federation. The simplified tax system has many advantages, ranging from the ability to include the payment of contributions in tax calculations to the minimum amount of reporting. There are fewer disadvantages, but these factors must be taken into account, otherwise the business entity may lose the right to use the simplified tax system. In a number of cases, the taxpayer decides to voluntarily “leave the simplified tax system” in order to apply other tax regimes. Let's figure out in what cases the right to use the simplified tax system is lost and what the consequences of this event are for the taxpayer.

Main limits of the simplified tax system

The conditions under which a taxpayer has the opportunity to work on a simplified basis are set out in Art. Art. 346.12, 346.13 Tax Code of the Russian Federation. They are valid in the current tax period and will be relevant in the future, since the deflator coefficient for limits on the simplified tax system is frozen until 2021 (see Federal Law No. 243 dated 07/03/16).

The conditions are as follows:

The company has no more than 100 employees.
Cost of fixed assets (residual) up to 150 million rubles.
The income limit for the tax (reporting) period is up to 150 million rubles.
The share of participation in the fixed capital of the company of other legal entities should not exceed 25%.
The company must not have branches.
The company should not engage in certain types of activities (banking, insurance, pawnshops, mining of mineral resources, work of notaries, advocacy, etc. (Article 346.12, paragraph 3)).

On a note. To switch to the special regime from next year, you need to have revenue for 9 months of the current year of no more than 112.5 million rubles.

If at least one of the conditions is not met, the business entity loses the right to use the simplification.

The restrictions do not apply to the company's representative offices, only to its branches (the ban has been canceled since 2021). Restrictions on the share of participation do not apply to non-profit organizations, consumer cooperatives, and economic societies; a special procedure has been established for companies consisting of contributions from public organizations of disabled people.

Voluntary loss of the right to the simplified tax system

Despite the benefits of this tax regime, sometimes it becomes necessary to part with it voluntarily. To make the transition to another regime, you need to notify the Federal Tax Service of your refusal to work on the simplified tax system by filling out the form. 26.2-3 and transferring it to the tax office before 15.01 of the year in which the transition from OSNO is planned. This is stated in Art. 346.13, clause 6 of the Tax Code of the Russian Federation.

You can voluntarily switch not only to OSNO, but also to UTII, if the type of activity of the company provides such an opportunity (Tax Code of the Russian Federation, Article 346.26-2). Notification of the transition to imputation must be submitted within 5 days (working days) from the beginning of the year.

You cannot voluntarily switch from a simplified regime to another BUT regime before the end of the tax period; changing the tax regime is possible only from the beginning of the year.

Filling out a notice of loss of the right to use the simplified tax system

This message is written on a standard form according to form No. 26.2-2, which can be obtained at the local branch of the Federal Tax Service or taken from 1C 8. The document is filled out either by hand in block letters or in any other machine-readable (suitable for recognition by a scanner) method.

Filling procedure:

TIN and checkpoint of the organization.
Code of the Federal Tax Service inspection where it is registered.
The name of the LLC or the last name, first name and patronymic (if any) of the individual entrepreneur.
Payer sign.
Date of transition to the new taxation system (implied by OSN).
Paragraphs of Articles 346.12 and 346.14, which were violated, resulting in a forced transition to the OSN.
The period is indicated.
At the very bottom, the full name of the head of the paying organization or again the full name of the individual entrepreneur is affixed, a signature and the date of the message are affixed.

Such a message is either personally submitted by the taxpayer (individual entrepreneur, head of the company or his trusted employee), or sent to the Federal Tax Service in electronic form.

Preservation of the right to the simplified tax system and legislative risks

Most companies do not want to part with the simplified tax system, trying to circumvent the established limits in one way or another. The main problem is exceeding the revenue limit for the period, after which the company is automatically deprived of the right to the simplified tax regime.

Typically, a number of “tricks” are used with a high risk of tax sanctions for the company:

The conclusion of two contracts (purchase and sale and loan), and the first involves shipment, and the second - actual payment. Under the loan agreement, the funds are then returned, and payment for the shipped goods is made in the new period and is not included in the calculation of the income limit. This method contains considerable risk, since the Federal Tax Service in court can prove the fact of manipulation by analyzing bank data.
Some companies, in order to lower the limit, make various kinds of refunds to customers in the current period in order to receive them again in the next period, by agreement with counterparties.
By agreement with the counterparty, money is accepted after the expiration of the deadlines for which the limit is considered, for example, payment for goods from the previous year is received in the new year.

However, these methods of concealing actual revenue are subject to careful consideration by fiscal authorities, and often in courts. Judicial practice is not reassuring for companies: a significant part of decisions are made in favor of the Federal Tax Service, with all the ensuing sanctions. An example is the decision in case A26-7732/2014 dated 09/03/15, considered in the SZO arbitration. The court recognizes such manipulations as concealment of proceeds.

A company that does not want to lose the simplified tax system because it has a branch can register a new structural unit as a representative office. Of all the ways to maintain a simplified regime, this is one of the safest, since it is recognized by the courts as legal (see Post of the FAS SZO No. A05-9537/2010 dated 11-04-11, FAS SKO No. A32-4638/2010 dated 11-08-10, etc.).

Consequences of losing the right to the simplified tax system

Having lost for one reason or another the right to apply the simplified tax assessment regime and making the transition to the general system, the taxpayer is obliged to solve a number of problems:

Restoration of a detailed control unit using primary documentation. When working on the simplified taxation system, as a rule, in-depth analytics are not required.
Organization of accounting for income tax, value added tax, and property tax. Calculations are made according to the same rules as for new organizations or individual entrepreneurs using OSNO.

On a note. Do not forget to submit a simplified tax return before the 25th day of the month following the moment of loss of the right to the simplified tax system (Article 346.23-2 of the Tax Code of the Russian Federation).

When switching to a common system, you need to take into account the difference in approaches: the cash method and the accrual method.

It is necessary to calculate:

accounts receivable;
accounts payable that were not repaid before the transition;
residual value of property assets.

It is necessary to remember:

Revenue not paid during the simplification is included in income when applying the general system in the first month (Tax Code of the Russian Federation, Article 346.25, clause 2 (1), letter of the Federal Tax Service No. SD-4-3/6, 09-01-18 ).
Advances received before the start of the application of the general system are included in the calculation of tax on the simplified tax system, regardless of the moment of shipment of goods, and expenses on shipped goods reduce income tax (Tax Code of the Russian Federation, Article 251-1(1), letter No. 03-11-06 /2/8 Ministry of Finance dated 01/28/09). Expenses also include all unpaid debts for services, wages and contributions (Article 346.25 of the Code, a number of letters from the Ministry of Finance, for example, dated 05/03/17).
MC paid for and purchased during the simplification, used as a product, can be sold already on the general system. They can be taken into account at the time of calculating income tax (determination of the Supreme Council No. 306-KG15-289 dated 06-03-15 and letters from the Ministry of Finance).
When calculating VAT, it is necessary to take into account only those transactions for which payment took place after the start of the application of the general system. For example, an advance for products received before the transition is not included in the calculations for this tax.

Main

Loss of the right to the simplified tax system, voluntary or forced, leads to a significant number of problematic issues that arise both in tax and accounting.
A voluntary transition to another NU system is possible only at the end of the year, at the beginning of the next period.
When switching to UTII, accounting will be significantly simplified, and the general system, on the contrary, involves its detailing.
During the transition period, it is necessary to organize the accounting system for income taxes, property taxes, and VAT, and to expand the analytical component of accounting.
Attempts to circumvent the conditions for using the simplified tax system by concealing income and other risky actions may lead to litigation and decisions not in favor of the taxpayer.

Loss of the right to use the simplified tax system: consequences for the taxpayer

Some are just planning to switch to the simplified tax system in 2009, while others, on the contrary, have already lost the right to use the special regime. What actions should be taken in such a situation? How to calculate taxes if you lose the right to use the simplified tax system? How to account for transition costs? The answers to these and other questions are in our article.

Loss of the right to use the simplified tax system

The taxpayer can independently refuse to use the simplified tax system, but circumstances often arise in which he loses the right to use the special regime at the end of the reporting (tax) period. This happens if at least one of the events named in paragraph 4 of Article 346.13 of the Tax Code of the Russian Federation occurs.

1. The amount of income of the taxpayer at the end of the tax (reporting) period in 2008 exceeded 26.8 million rubles (taking into account the deflator coefficient established for the current year by order of the Ministry of Economic Development of Russia dated October 22, 2007 No. 357) (see also the letter of the Ministry of Finance Russia dated January 31, 2008 No. 03-11-04/2/22).

2. During the reporting (tax) period, representative offices or branches were formed in the organization, and appropriate changes were made to the constituent documents.

3. The organization began to engage in those types of activities in which the use of the simplified tax system is prohibited (production of excisable goods, gambling business and others mentioned in paragraph 3 of Article 346.12 of the Tax Code of the Russian Federation).

4. During the reporting (tax) period, the share of participation of other organizations in a company using the simplified tax system exceeded 25 percent (see, for example, letter of the Ministry of Finance of Russia dated December 21, 2007 No. 03-11-04/2/311).

5. The maximum average number of employees (100 people) was exceeded in any reporting or tax period. This indicator is calculated in the manner prescribed by Rosstat Resolution No. 69 dated November 20, 2006 (as amended on November 23, 2007). According to this document (clauses 86–92), the average number of people in an organization includes:

– average number of employees;

– average number of external part-time workers;

– the average number of people performing work under civil contracts.

Individuals with whom copyright agreements or property transactions (for example, lease agreements) have been concluded are not included in the number of those who performed work under civil contracts (see also letter of the Ministry of Finance of Russia dated August 16, 2007 No. 03-11-04/ 2/199).

6. The residual value of fixed assets and intangible assets of the organization, determined in accordance with the legislation of the Russian Federation on accounting, exceeded 100 million rubles. It is important that when determining the residual value of fixed assets and intangible assets, objects that are subject to depreciation and are recognized as depreciable property in accordance with Chapter 25 of the Tax Code are taken into account, but the residual value is assessed according to accounting data.

7. The taxpayer applying the taxation object “income” has entered into a simple partnership.

8. The taxpayer applying the taxation object “income” has entered into a property trust management agreement.

In each of the listed cases, the taxpayer is considered to have lost the right to apply the simplified taxation system from the beginning of the quarter in which the above circumstances arose.

The amounts of taxes payable when using a different tax regime are calculated and paid in the manner prescribed by the legislation of the Russian Federation on taxes and fees for newly created organizations or newly registered individual entrepreneurs. Taxpayers do not pay penalties and fines for late payment of monthly payments during the quarter in which they switched to a different tax regime (clause 4 of Article 346.13 of the Tax Code of the Russian Federation).

Notification of loss of the right to use the simplified tax system

A taxpayer who has lost the right to use the simplified tax system and has switched to a different taxation regime is obliged to report this to the tax office within 15 calendar days after the expiration of the reporting (tax) period in which he went beyond the permissible limits (clause 5 of article 346.13 of the Tax Code of the Russian Federation ).

Form No. 26.2-5 “Notification of loss of the right to use the simplified taxation system” was approved by order of the Ministry of Taxes of Russia dated September 19, 2002 No. VG-3-22/495 (as amended by order of the Federal Tax Service of Russia dated September 2, 2005 No. SAE- 3-22/421). The message can be sent by mail (preferably by a valuable letter) or submitted directly to the tax office.

A taxpayer who has switched from a simplified system to a different taxation regime has the right to switch again to a “simplified system” no earlier than a year after he lost the right to use it (clause 7 of Article 346.13 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated July 28, 2004 No. 22-2-16/1313, dated October 13, 2004 No. 03-03-02-04/1/26, etc.).

Filing a return and paying the minimum tax

For taxpayers who have lost the right to further use the simplified system during a calendar year, the tax period for the single tax is the reporting period preceding the quarter from which taxpayers are considered to have switched to the general regime. This has been repeatedly explained by specialists from the Ministry of Finance and the Federal Tax Service of Russia (see letters from the Ministry of Finance of Russia dated October 19, 2006 No. 03-11-05/234, dated June 8, 2005 No. 03-03-02-04/1-138, dated 24 May 2005 No. 03-03-02-04/2/10, Federal Tax Service of Russia dated February 21, 2005 No. 22-2-14/224).

Until 2009, taxpayers submitted returns quarterly, and tax returns for a single tax submitted for the reporting period, following which the taxpayer loses the right to use the simplified tax system, are equated to tax returns for the tax period.

However, since 2009, due to the new wording of Article 346.23 of the Tax Code of the Russian Federation, the declaration will need to be submitted once a year: for organizations - no later than March 31 of the year following the expired tax period, and for entrepreneurs - before April 30 of the following year.

The law does not establish any special deadlines for filing a return for the tax period for taxpayers who have lost the right to use the simplified tax system - thus, it is likely that such a taxpayer can submit reports at any time after the transition to the general tax regime, but no later than the dates indicated above.

In any case, if the amount of the single tax calculated based on the results of such an “interrupted” tax period turns out to be less than the amount of the minimum tax for the same period, the taxpayer will need to pay the minimum tax after the expiration of the reporting period in which he lost the right to use the simplified tax system, but not later than the deadlines established for the submission of tax returns under the simplified tax system (clause 7 of article 346.21 of the Tax Code of the Russian Federation).

Example 1

In 2008, the entrepreneur applied the simplified tax system with the object of taxation “income minus expenses.” Since the fourth quarter of 2008, he lost the right to use the simplified tax system, since in October his income exceeded 26.8 million rubles. Moreover, the amount of tax calculated in the general manner for 9 months of 2008 is less than the amount of the minimum tax calculated for the same period.

From October 1, 2008, an individual entrepreneur had to switch to the general taxation regime due to the loss of the right to use the simplified tax system (clause 4 of article 346.13 of the Tax Code of the Russian Federation). He also had to calculate the amount of the minimum tax in the amount of 1 percent of the income received for 9 months of 2008 and transfer it no later than October 25, 2008, and also submit a declaration within this period indicating the amount of the minimum tax.

Switching to the accrual method

Organizations that have applied a simplified taxation system, when switching to calculating the tax base for corporate income tax using the accrual method, comply with the following rules (clause 2 of Article 346.25 of the Tax Code of the Russian Federation):

– recognize as income the money received in the amount of proceeds from the sale of goods (performance of work, provision of services, transfer of property rights) during the period of application of the simplified system, payment (partial payment) of which was not made before the date of transition to calculating the tax base for income tax on accrual method;

– recognize as expenses the costs of purchasing during the period of application of the simplified system of goods (work, services, property rights) that were not paid (partially paid) by the taxpayer before the date of transition to calculating the tax base for income tax on the accrual basis, unless otherwise provided for by Chapter 25 of the Tax Code.

These transactions are associated with the abandonment of the cash method in favor of the accrual method when recognizing income and expenses.

Such income and expenses are recognized as income (expenses) of the month of transition to calculating the tax base for corporate income tax using the accrual method.

Example 2

An organization applying the simplified tax system with the tax object “income minus expenses” acquired raw materials and materials in September 2008. They were released into production in December 2008. From January 1, 2009, the company switches to the general taxation regime. Payment for the specified raw materials and supplies was made in February 2009.

The taxpayer was not able to take into account the cost of materials in expenses, being on the simplified tax system, since they were not paid. He writes off the cost of materials released into production in January 2009, that is, in the month of transition to the general taxation regime.

Formation of the residual value of depreciable property

If an organization switches from the simplified tax system (regardless of the object of taxation) to the general regime and has fixed assets and intangible assets, the acquisition costs (construction, production, creation, etc.) of which were incurred during the period of application of the general regime before the transition to the simplified system ", are not fully transferred to expenses for the period of application of the simplified tax system, in tax accounting on the date of transition the residual value of fixed assets and intangible assets is determined by reducing the residual value determined on the date of transition to the simplified tax system by the amount of expenses determined for the period of application of the simplified tax system in the manner provided for in paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation.

According to the explanations of the Russian Ministry of Finance, from January 1, 2008, this procedure applies both to organizations that used a simplified system with the object “income minus expenses” and. The latter must determine the amount of expenses for the acquisition (creation) of fixed assets and intangible assets, as well as the amount of expenses for modernization, completion, etc. of fixed assets, provided for in paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation, by calculation, despite the fact that it is included in expenses was not included and did not reduce the tax base for the single tax.

Since 2009, this rule has been introduced directly into paragraph 3 of Article 346.25 of the Tax Code of the Russian Federation.

It is necessary to keep in mind that since organizations that used the simplified system with the object “income” did not record their expenses, the amount of their residual value is taken into account in tax accounting on the date of transition according to the rules established by paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation (letter of the Ministry of Finance and the Federal Tax Service of Russia dated November 28, 2007 No. SK-6-02/912, letter of the Ministry of Finance of Russia dated November 13, 2007 No. 03-11-02/266).

Exercise of the right to deduct VAT

Organizations and entrepreneurs that applied the simplified system, when switching to the general regime, comply with the following rule: VAT amounts presented to the taxpayer using the simplified system when purchasing goods (work, services) that were not classified as expenses deducted from the tax base when applying The simplified tax system is accepted for deduction upon transition to the general regime in the general manner.

This also applies to taxpayers who used the “income” object, who did not have the right to recognize any expenses during the period of application of the simplified tax system.

The specified amounts of VAT are accepted for deduction on the basis of invoices issued by sellers when the taxpayer purchases goods (work, services), and subject to the further use of these goods for transactions subject to VAT (clause 6 of Article 346.25, clause 2 of Art. 171 and paragraph 1 of Article 172 of the Tax Code of the Russian Federation).

Loss of the right to use the simplified tax system based on a patent

Article 346.25.1 of the Tax Code of the Russian Federation provides for the possibility of using the simplified tax system on the basis of a patent. It exists for individual entrepreneurs engaged in one of the types of activities named in this article, if in the region where they work, this is provided for by the legislation of the subject of the Russian Federation.

Such an entrepreneur loses the right to apply a simplified system based on a patent from the beginning of the period for which the patent was issued if:

– his income, as provided for in paragraph 4 of Article 346.13 of the Tax Code of the Russian Federation, for 2008 will exceed 26.8 million rubles;

– he attracts hired workers in his business activities (including under civil contracts). Until 2009, it was prohibited for an entrepreneur to use the labor of other persons under a patent, but since 2009 it is possible, but no more than five people per tax period based on the average number of employees (Clause 2.1 of Article 346.25.1 of the Tax Code of the Russian Federation, introduced by Federal Law of July 22, 2008 No. 155-FZ). In this case, the tax period is considered to be the validity period of the patent (clause 4 of Article 346.25.1 of the Tax Code of the Russian Federation). Thus, from 2009, the right to use the simplified tax system based on a patent will be lost when attracting more employees;

– he carries out, on the basis of a patent, a type of entrepreneurial activity not provided for in the law of a constituent entity of the Russian Federation;

– he did not pay 1/3 of the cost of the patent no later than 25 calendar days after the start of business activities based on the patent (clause 9 of Article 346.25.1 of the Tax Code of the Russian Federation).

After losing the right to use the simplified tax system, the entrepreneur must pay taxes in accordance with the general taxation regime.

An individual entrepreneur is obliged to inform the tax authority about the loss of the right to use the simplified system based on a patent and the transition to a different taxation regime within 15 calendar days from the beginning of the application of a different regime.

The right to switch again to a simplified system based on a patent arises for an individual entrepreneur no earlier than three years after he has already lost the right to use the simplified tax system based on a patent.

M. Klimova, buhkadr.ru