Advance payments under the simplified procedure were calculated incorrectly. How to fix it?

Fine for late payment of tax according to the simplified tax system

Sanctions for failure to submit a simplified declaration

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Simplified taxation is attractive as long as you regularly fulfill your obligations as a taxpayer. As soon as you stop doing this, the same sanctions apply as for everyone else, and there are no concessions here.

What are the consequences of late payment of taxes under the simplified tax system? It depends on what exactly you did wrong: you didn’t pay an advance or an annual tax.

Is it necessary to pay advances under the simplified tax system?

The obligation to calculate and pay advances according to the simplified tax system for any of the two objects of taxation is provided for in Art. 346.21 Tax Code of the Russian Federation. So the answer is: yes, definitely. You can avoid paying an advance only if there is nothing to pay. For example:

The simplifier with the object “income minus expenses” received a loss.
An individual entrepreneur with the “income” object reduced the payment to zero. Let us remind you that only individual entrepreneurs who do not have employees can do this.

IMPORTANT! Individual entrepreneurs who have employees, as well as organizations, through deductions, can save no more than half of the tax under the simplified tax system “income”. Therefore, they will have an advance payment in any case. Well, if there was income, of course.

So what happens when the advance is not paid? Let's talk.

Calculate your total tax amount for 2015

After you have recorded all the indicators for 2015 in the Income and Expense Book, calculate the tax for the year. So, if you work on the simplified tax system with the object of taxation being income , then calculate the amount of accrued tax by multiplying all your income by the rate of 6%. And then reduce the tax on insurance premiums transferred for the year and temporary disability benefits issued (clause 3.1 of Article 346.21 of the Tax Code of the Russian Federation). But no more than 50%. Or completely - if you are an entrepreneur without employees. If you are registered in Moscow and paid a trade tax, you can also reduce the tax by its amount. Moreover, without restrictions (letter of the Ministry of Finance of Russia dated October 2, 2015 No. 03-11-11/56492).

If your object of taxation is income minus expenses , first charge tax for the year at the usual rate - 15% or at a reduced rate provided for by regional law. Also, do not forget that you have the right to reduce the tax base for the year by past losses and last year’s difference between the minimum and “simplified” taxes if you had to pay the minimum (clauses 6 and 7 of Article 346.18 of the Tax Code of the Russian Federation). Next, calculate the minimum tax for the current year as 1% of the amount of income received (clause 6 of Article 346.18 of the Tax Code of the Russian Federation). Compare the calculated indicators of the minimum and “simplified” taxes. The larger amount will be the amount payable at the end of the year.

Penalties on tax advances under the simplified tax system

The most well-known and expected consequence of non-payment of advances under the simplified tax system, and for any taxes advancing the budget, is penalties. They are calculated from the unpaid amount for each day of delay, starting from the next day after the end of the payment period and up to and including the day of payment. The penalty rate for individual entrepreneurs is 1/300 of the refinancing rate, for organizations - 1/300 of the rate for the first 30 days of delay and 1/150 starting from the 31st day. The amount of penalties cannot exceed the amount of the payment for which they are accrued (Article 75 of the Tax Code of the Russian Federation).

Read more about calculating penalties on our website.

Our calculator will help you calculate them.

Is it possible to reduce the amount of penalties? Find out in ConsultantPlus. Get free demo access to K+ and go to the material to see a detailed answer to this question.

Tax authorities were recommended to reduce penalties for non-payment of advance payments under the simplified tax system

The Federal Tax Service explained how penalties are calculated for late payment of advance tax payments under the simplified tax system, if at the end of the year the tax amount was less than the amount of advance payments.

In a letter dated January 13, 2020 No. SD-4-3/ [email protected] , the department reminds that paragraph 3 of Article 346.21 of the Tax Code of the Russian Federation instructs simplifiers to calculate the amount of the advance tax payment based on the tax rate and actual income received at the end of each reporting period. Income is considered an accrual total from the beginning of the year until the end of the first quarter, half year, and 9 months, respectively, taking into account previously calculated amounts of advance tax payments.

Advance payments are paid no later than the 25th day of the first month following the expired quarter. If advance payments are made at a later date, penalties will be charged.

The Plenum of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 57 dated July 30, 2013, indicated that the procedure for calculating these penalties does not depend on whether the corresponding advance payments are paid during or at the end of the reporting period, or whether they are calculated on the basis of a tax base reflecting the real financial results of the taxpayer. Accordingly, if at the end of the year the amount of tax turned out to be less than the amount of advance payments due during this year, penalties accrued for non-payment of such advance payments are subject to a proportional reduction.

The Federal Tax Service prescribes this approach to be taken into account, including in relation to taxpayers of the simplified tax system.

This means that if at the end of the year the amount of tax according to the simplified tax system (the calculated amount of tax, reduced by the amount of insurance premiums and trade tax paid) turned out to be less than the amount of advance payments, then the penalties accrued for non-payment of such advance payments are subject to a commensurate reduction.

BUKHPROSVET

A penalty is an amount of money that a taxpayer must pay if taxes are paid later than the deadlines established by the Tax Code of the Russian Federation. The amount of penalties is paid in addition to the amounts of tax and fine due for payment. As a general rule, penalties for late payment of taxes, unlike tax penalties, cannot be reduced. A penalty is charged for each day of non-payment. The amount of the penalty is determined as a percentage of the unpaid tax amount.

The amount of penalties accrued on tax arrears cannot exceed the amount of the arrears itself. For individual entrepreneurs, the interest rate of the penalty is 1/300 of the Central Bank refinancing rate. For organizations whose delay in tax payment does not exceed 30 days, a penalty is also charged in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation. If the delay in fulfilling the tax payment obligation exceeds 30 days, then special rules apply.

For a period of delay of up to 30 days, a penalty will be charged in the amount of 1/300 of the refinancing rate. For all subsequent days of delay, a penalty is charged in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation. Penalties are not charged on the amount of arrears that the payer incurred as a result of his compliance with written explanations on the procedure for calculating and paying taxes.

Explanations to the tax office according to the simplified tax system

Without waiting for any payments, the tax office may ask you to explain. In this case, you will receive an information letter asking you to tell why there is no money. If you have a reasonable and well-reasoned explanation for this, please respond. But if you don't answer, nothing will happen to you. This is not a request for explanations, for failure to provide which there is a fine, but just a letter. Let us remind you that the tax office has the right to request information or documents in limited cases, and this does not apply to them.

What to do if the contract does not contain exact delivery dates?

The Consumer Rights Protection Law obliges the seller to specify in the sales contract a clear delivery date for the goods if the seller takes an advance payment from the consumer for such goods. Therefore, the buyer, when ordering goods and making an advance payment, has the right to demand the execution of a purchase and sale agreement, which will indicate the exact delivery time (a specific date or a certain period from the moment of making the advance payment).

If your contract still does not contain a specific delivery date, then Article 314 of the Civil Code of the Russian Federation will come to the rescue: if the obligation does not provide for a specific fulfillment period, the obligation must be fulfilled within seven days from the date the creditor submits a demand for its fulfillment. That is, in your claim for the transfer of paid goods, you can set a 7-day deadline for execution. In this case, you will be able to accrue a penalty under Article 23.1 of the PSA from the next day after the deadline of 7 days expires from the date the store receives the claim.

Fine under the simplified tax system, collection of advances, seizure of property, account blocking

Tax authorities do not have the right to impose a fine for non-payment of advances under the simplified tax system. First of all, because a fine can only be issued for non-payment of tax for the year. For failure to pay advances under the simplified tax system, such liability does not apply. In addition, in order to receive a fine, you must distort the tax base, and you have not yet declared it.

As for the collection of uncollected amounts, seizure of property and blocking of an account, none of the indicated actions in relation to advances not paid by the simplifier during the year is impossible. To carry out each of them, tax authorities must have accurate information about the amount of arrears. But with advances under the simplified tax system before the taxpayer submits a declaration, this is impossible.

When you submit it and the tax authorities see the whole picture, then you cannot avoid demands for payment. Moreover, they will charge it for the entire amount of advances for the year, even if at the end of the year there will be less tax or no tax at all. Fail to pay, and the money will be forcibly written off. But this can also be circumvented: simply postpone submitting the declaration until the last day of the reporting period.

We described how this method works here.

Overpayment of advance

Overpayment may occur in the following cases:

The organization made payments on profit at the “income” object, and the final annual amount turned out to be greater than the tax balance.
The amount of advance payments paid was greater than the total annual tax.
An error was made in the payment documents, and a larger advance was transferred than was necessary.

If you discover an overpayment, the company should contact the tax authorities. There are two options to resolve the overpayment situation:

Set off against the next quarter's payment;
Return to the organization's bank account.

If the company has accrued penalties, the overpayment goes towards paying off these penalties.

Reduction of penalties by the court

Unfortunately, judicial practice has not yet always followed the path of collecting penalties under the law on the protection of consumer rights in full. The courts reduce the amount of the penalty based on Article 333 of the Civil Code of the Russian Federation. However, there are clarifications from the Plenum of the Supreme Court of the Russian Federation No. 17 dated June 28, 2012 on this issue. According to the Supreme Court, the application of Article 333 of the Civil Code of the Russian Federation in cases of protection of consumer rights is possible in exceptional cases and at the request of the defendant with the obligatory indication of the reasons why the court believes that reducing the amount of the penalty is permissible.

Read more: The court reduces the penalty for protecting consumer rights, what to do?

Read also: How to calculate a penalty of 1% of the price of the goods for each day of delay? How to calculate a penalty of 3% of the price of work for each day of delay

Is it possible to ask for damages along with the penalty under 23.1 of the Law of the Law of the Russian Federation?

Yes, you can. A long wait for an ordered product can create real inconvenience for the buyer. For example, let's say you make a down payment on a car using a loan. Naturally, in this case, the bank will require you to take out CASCO and MTPL insurance. Plus, you will pay the bank interest on the loan every month. If the delivery time for the car is delayed, you may lose interest in waiting for it and prefer to buy the car at another car dealership. In this case, it turns out that you wasted money on insurance and in vain took out a loan. That is, you will have real losses in the form of the insurance premium paid and interest on the loan. Article 23.1 of the Consumer Protection Act clearly states that you have a right to claim compensation for these losses.