Good afternoon, dear colleagues.
At the beginning of 2021, the Internet was blown up by numerous videos where people calling themselves specialists and consultants in the field of taxation solemnly announced that all taxes and fees were abolished in the Russian Federation! And at the same time, paragraph 5 of Art. was read out with enthusiasm and delight. 12 Tax Code of the Russian Federation:
“federal, regional and local taxes and fees are abolished by this Code.”
And, after reading this, they came to the conclusion that taxes in the Russian Federation have been abolished and there is no need to pay them. But none of them bothered to read the articles that were written earlier or look at the points that were written in Art. 12 of the Tax Code of the Russian Federation before clause 5 or after it. And none of them bothered to understand that what we are talking about here is that both federal and regional taxes and fees can be either established only by this Code, by amending the Tax Code of the Russian Federation, or abolished only by the Code. That is, neither the government, nor the president, nor the Constitutional Court, nor any other body can establish additional taxes or cancel them; they are established and repealed only by the laws of the Russian Federation after amendments are made to this Code. This caused a storm of misunderstandings.
I have also repeatedly noticed that in the comments under my articles and videos, someone writes that there is no need to pay taxes at all! Type RF is a joint stock company, or LLC, or other commercial organization. And that this is a commercial organization, registered in the USA, etc. Complete trash.
The news that blew up the Internet
And at the end of December 2021, there was a video, after which even my friends asked me to clarify whether the guy on the Internet was telling the truth... This friend read an article from the Tax Code of the Russian Federation, which says that from January 1, 2021, property taxes will be abolished. And that individuals may not pay taxes on property, land, and transport. All this must happen voluntarily.
This wonderful man, who calls himself a tax consultant, quoted Art. 45.1 Tax Code of the Russian Federation. It came into force on October 29, 2021. In fact, it just started working in 2021. And he quoted the following to us:
“The single tax payment of an individual is recognized as funds voluntarily transferred to the budget system of the Russian Federation to the appropriate account of the Federal Treasury by a taxpayer - an individual to fulfill the obligation to pay personal income tax in accordance with paragraph 6 of Article 228 of this Code, transport tax, land tax and (or) property tax for individuals.”
Quoting this, he says: “Well, look, now individuals may or may not pay transport tax, property tax and land tax. They must do this voluntarily." And it never occurred to anyone to clarify what a single tax payment is.
What is actually stated in the Tax Code?
Rumors and speculation about the abolition of taxes arose due to paragraph 5 of Article 12 of the Tax Code of the Russian Federation:
Federal, regional and local taxes and fees are abolished by this Code.
This paragraph sounds exactly like that, and it is not fake. But this only means that the abolition of any tax is possible only by making appropriate changes to the Tax Code. If the Government decides to abolish one of the taxes throughout the country or in one of the regions, this will require a law on the basis of which certain articles and paragraphs of the Tax Code of the Russian Federation will lose force. No other official document will have legal force.
Let's put an end to this issue
Does any of you in your right mind and sober memory think that our state will take it like this and exempt you from all taxes under paragraph 5 of Art. 12 of the Tax Code of the Russian Federation? Or will all Russian citizens be exempted from property tax and transport tax? In short, you understand... The Earth will sooner move off its axis, and the Sun will fly away to a neighboring galaxy, than any of you will wait for some state to exempt its citizens from taxes. Yes, now, let's run away!
This year I’ll tell you how taxes will increase next year. You don't pay enough! They will increase them for you. But to reduce? Why are you stunned?
How to correctly understand the statement that a single tax payment of an individual is recognized as funds voluntarily transferred to the budget system? What is it about? Each of us pays tax on an apartment, a house, land, a car, etc. And we have paid these taxes and continue to pay them. There is Art. 45 of the Tax Code of the Russian Federation, where everything is written, there is a whole chapter on property taxes and transport tax. Nothing changes in this regard. The tax authorities have sent paper notices that you must pay property taxes, and will continue to do so. If you have a personal account, you will be sent a notice of payment of property tax through it. And you will pay.
But now the state has decided to do well for itself. The state allowed individuals to take a wad of money and give it to the federal treasury. And this money will remain with the federal treasury until it runs out. The money may be enough to pay property taxes for the next five years. And this money sits for 5 years, and the state takes and pays your taxes every year.
That is, you decided that you need to put 400 thousand rubles towards property taxes for the next 5 years and took this money to the state. They are in the federal treasury account. The deadline for paying taxes has already arrived - in the fall, the state pulls 40 thousand rubles in taxes from your account and pays it off. All. You have 360 thousand left. Another year passes, the state still takes and pays off your property taxes. And so on, year after year. That is, a single tax payment is the money that you voluntarily gave to the federal treasury to pay your future taxes. And the state will take this money from there in order to pay your taxes for you:
“The offset of the amount of a single tax payment of an individual is carried out by the tax authority independently against the upcoming payments of the taxpayer - an individual for the taxes specified in paragraph 1 of this article, or against the payment of arrears on these taxes and (or) debts on the corresponding penalties payable in in accordance with Article 64 of this Code, interest.
The decision to offset the amount of a single tax payment of an individual is made by the tax authority at the place of residence of this individual (place of stay - if such a person does not have a place of residence on the territory of the Russian Federation), and if the taxpayer does not have a place of residence and place of stay in the territory of the Russian Federation of the Russian Federation - the tax authority at the location of one of the real estate objects owned by such person.”
Commentary on Article 58 of the Tax Code of the Russian Federation
In accordance with paragraph 37 of Art. 1 of Law No. 137-FZ Art. 58 of the Tax Code of the Russian Federation, which establishes the procedure for paying taxes and fees, is set out in a new edition.
It is worth highlighting four significant innovations in Art. 58 Tax Code of the Russian Federation. Let's take a closer look at them.
In paragraph 3 of Art. 58 of the Tax Code of the Russian Federation (as amended by Law N 137-FZ) establishes a rule that provides for the payment of preliminary tax payments during the tax period - advance payments.
Let's jump ahead and say the following. If advance payments are made later than the deadlines established by the legislation on taxes and fees, penalties are accrued on the amount of late advance payments in the manner prescribed by Art. 75 of the Tax Code of the Russian Federation.
Let us recall that in paragraph 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On some issues of application of part one of the Tax Code of the Russian Federation (hereinafter referred to as Resolution No. 5), the Plenum of the Supreme Arbitration Court of the Russian Federation explained how courts should act when considering disputes related to collection of penalties. Thus, judges must proceed from the fact that the penalties provided for in Art. 75 of the Tax Code of the Russian Federation, can be recovered from the taxpayer if, by virtue of the law on a specific type of tax, the advance payment is calculated based on the results of the reporting period on the basis of the tax base determined in accordance with Art. Art. 53 - 54 Tax Code of the Russian Federation.
Clause 20 of Resolution No. 5 provides such justification for this position. Within the meaning of paragraph 1 of Art. 75 of the Tax Code of the Russian Federation, penalties are payable by the taxpayer in the event of arrears, that is, the amount of tax not paid within the period established by law. In accordance with Art. Art. 52 - 55 of the Tax Code of the Russian Federation, the amount of tax must be calculated based on the results of not only each tax period, but also - in cases established by law - each reporting period.
From this position of the Supreme Arbitration Court of the Russian Federation it followed that the accrual of penalties is possible only if an advance payment is provided for based on the results of the reporting period; if the Tax Code of the Russian Federation establishes a more frequent frequency of payment of advance payments, then penalties are not accrued.
Example.
The crux of the matter.
The tax authority sent the taxpayer a request to pay penalties for late transfer of monthly advance payments for the unified social tax. The taxpayer did not pay the penalty voluntarily, so the tax authority appealed to the arbitration court.
The court's position.
According to Art. 75 of the Tax Code of the Russian Federation, penalties are recognized as an amount of money that a taxpayer must pay in the event of payment of due amounts of taxes or fees later than the deadlines established by the legislation on taxes and fees. The penalty is accrued for each calendar day of delay in fulfilling the obligation to pay a tax or fee, starting from the day following the tax or fee payment established by the legislation on taxes and fees, and is determined as a percentage of the unpaid amount of the tax or fee.
In accordance with the provisions of Art. Art. 52 - 55 of the Tax Code of the Russian Federation, the taxpayer calculates the amount of tax based on the results of each tax (and in cases established by law, reporting) period on the basis of the tax base, that is, based on the actual financial results of its economic activities for a given tax (reporting) period.
A tax period may consist of one or more reporting periods, following which advance payments are made (Clause 1, Article 55 of the Tax Code of the Russian Federation).
In paragraph 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On some issues of application of part one of the Tax Code of the Russian Federation” it is explained that when considering disputes related to the collection of penalties from a taxpayer for late payment of advance payments, it is necessary to proceed from the fact that the penalties provided for in Art. 75 of the Tax Code of the Russian Federation, can be recovered from the taxpayer if, by virtue of the law on a specific type of tax, the advance payment is calculated based on the results of the reporting period on the basis of the tax base determined in accordance with Art. Art. 53 and 54 of the Tax Code of the Russian Federation.
The tax period for the unified social tax is the calendar year, the reporting periods are the first quarter, six months and nine months of the calendar year (Article 240 of the Tax Code of the Russian Federation).
According to Art. 243 of the Tax Code of the Russian Federation during the reporting period, based on the results of each calendar month, taxpayers calculate monthly advance tax payments based on the amount of payments and other remunerations accrued from the beginning of the tax period until the end of the corresponding calendar month, and the tax rate. The amount of the monthly advance tax payment payable for the reporting period is determined taking into account the previously paid amounts of monthly advance payments. Monthly advance payments are due no later than the 15th day of the following month. Based on the results of the reporting period, taxpayers calculate the difference between the amount of tax calculated on the basis of the tax base, calculated on an accrual basis from the beginning of the tax period to the end of the corresponding reporting period, and the amount of monthly advance payments paid for the same period, which is payable within the deadline established for submission tax calculations.
The taxpayer reflects data on the amounts of calculated and paid advance payments, data on the amount of tax deduction used by the taxpayer, as well as on the amounts of actually paid insurance premiums for the same period in the calculation submitted no later than the 20th day of the month following the reporting period. period, to the tax authority in a form approved by the Ministry of Finance of Russia.
The difference between the amount of tax payable at the end of the tax period and the amounts of tax paid during the tax period must be paid no later than 15 days from the day established for filing a tax return for the tax period, or offset against future tax payments or refunds taxpayer in the manner provided for in Art. 78 of the Tax Code of Russia.
From these norms it follows that for non-payment (late payment) of monthly advance payments for the unified social tax, penalties cannot be accrued, since the reporting period for this tax is not a calendar month.
(Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 25, 2006 N A29-6611/2005a.)
Similar conclusions were made regarding monthly advance payments for the unified social tax also in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 27, 2006 N A29-5202/2005a, and the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 21, 2005 N A29-8573/ 2004a, Resolution of the FAS Volga District dated April 11, 2006 N A65-36384/2005-SA2-34, Resolution of the FAS North Caucasus District dated April 17, 2006 N F08-1311/2006-542A.
Note that this situation was also typical for monthly advance payments calculated based on the actual profit received.
Example.
The crux of the matter.
The tax authority conducted an on-site tax audit; based on the results of the audit, an act was drawn up, on the basis of which a decision was made, by which the taxpayer was asked to pay penalties on monthly advance payments of income tax. Having disagreed with the decision, the taxpayer appealed to the arbitration court.
The court's position.
According to Art. 52 of the Tax Code of the Russian Federation, the taxpayer independently calculates the amount of tax payable for the tax period based on the tax base, tax rate and tax benefits.
In accordance with Art. 55 of the Tax Code of the Russian Federation, a tax period is understood as a calendar year or another period of time in relation to individual taxes, at the end of which the tax base is determined and the amount of tax payable is calculated. A tax period may consist of one or more reporting periods, following which advance payments are made.
Article 285 of the Tax Code of the Russian Federation recognizes the calendar year as the tax period for income tax. The reporting periods for this tax are the first quarter, six months and nine months of the calendar year.
According to Art. 286 of the Tax Code of the Russian Federation, at the end of each reporting (tax) period, taxpayers calculate the amount of the advance payment based on the tax rate and profit subject to taxation, calculated on an accrual basis from the beginning of the tax period to the end of the reporting (tax) period. During the reporting period, taxpayers calculate the amount of the monthly advance payment in the manner established by Art. 286 Tax Code of the Russian Federation.
Based on the above, the amount of the monthly advance payment is an interim (within the reporting period) payment and is calculated on the basis of data for previous reporting periods, that is, by calculation. The Tax Code of the Russian Federation does not provide for the possibility of collecting from the taxpayer advance payments for taxes calculated by calculation without reference to the actual financial results of the taxpayer’s activities and paid during the tax period.
In accordance with Art. 75 of the Tax Code of the Russian Federation, the fulfillment of the obligation to pay taxes is ensured by penalties. In this case, penalties are the amount of money that the taxpayer is obliged to pay when paying the due amounts of taxes later than the deadlines established by law.
Paragraph 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 5 of February 28, 2001 “On some issues of application of part one of the Tax Code of the Russian Federation” provides that penalties can be collected from the taxpayer only if, by virtue of the law on a specific type of tax, an advance payment calculated based on the results of the reporting period on the basis of the tax base determined in accordance with Art. Art. 53 and 54 of the Tax Code of the Russian Federation.
Tax legislation does not provide for the collection of penalties from a taxpayer for violating the deadline for making advance payments of income tax.
The court of first instance found that the tax authority assessed penalties for late payment of monthly advance payments, calculated based on the estimated amount of profit for the taxable period and the tax rate, which contradicts the above-mentioned norms of the Tax Code of the Russian Federation.
Since the tax authority did not provide evidence of the taxpayer’s transition in the disputed period to monthly payment of advance payments calculated on the basis of the actual profit received, and tax legislation does not provide for the collection of penalties from the taxpayer for violating the deadline for paying monthly advance payments calculated on the basis of the estimated amount of profit, the conclusion is court on the invalidity of the contested decision regarding the accrual of penalties on advance payments of income tax is legal.
(Resolution of the Federal Antimonopoly Service of the West Siberian District dated June 7, 2006 N F04-3470/2006(23270-A45-26).)
Similar conclusions also, for example, took place in the Resolution of the FAS Volga-Vyatka District dated July 29, 2004 N A17-3556/5/342, the FAS Resolution of the North-Western District dated April 26, 2005 N A13-11533/04-05 .
Adoption of the new edition of clause 3 of Art. 58 of the Tax Code of the Russian Federation allows the calculation of penalties even if the amount of the monthly advance payment is an interim (within the reporting period) payment.
In paragraph 3 of Art. 58 of the Tax Code of the Russian Federation also establishes a rule according to which violation of the procedure for calculating and (or) paying advance payments cannot be considered as a basis for holding a person accountable for violating the legislation on taxes and fees.
Note that due to the absence of such a norm in the Tax Code of the Russian Federation, the situation with bringing to responsibility for violating the terms of payment of advance payments was contradictory.
For example, in the Letter of the Ministry of Taxes of Russia dated August 7, 2002 N ШС-6-14/ [email protected] advance payments for the unified social tax are calculated by taxpayers - employers based on the actual financial results of their activities, the application of responsibility provided for in Art. 122 of the Tax Code of the Russian Federation, for non-payment (incomplete payment) of the unified social tax based on the results of reporting periods is legal.
And in the Letter of the Ministry of Finance of Russia dated February 16, 2005 N 03-02-07/1-31 it is stated:
“Clause 1 of Article 122 of the Tax Code of the Russian Federation provides for liability for non-payment or incomplete payment of tax as a result of underestimation of the tax base, other incorrect calculation of tax or other unlawful actions (inaction) based on the results of the tax period. The Tax Code of the Russian Federation does not provide for liability for non-payment or incomplete payment of advance payments based on the results of reporting periods.”
In paragraph 16 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 N 71, a similar conclusion was made:
“In case of failure to make or incomplete payment of an advance payment for any tax, a fine provided for in Article 122 of the Tax Code of the Russian Federation cannot be collected from the taxpayer.”
Despite the position of the Ministry of Finance of Russia and the Presidium of the Supreme Arbitration Court of the Russian Federation, tax authorities “locally” formed the practice of holding people accountable for non-payment or incomplete payment of advance payments based on the results of reporting periods. This is confirmed by the abundant arbitration practice on this issue, which is positive for the taxpayer. The courts unanimously came to the conclusion that Art. 122 of the Tax Code of the Russian Federation directly indicates the onset of liability in the event of non-payment or incomplete payment of only tax amounts, and not the advance payment of tax, the collection of a fine by tax authorities from the taxpayer based on the results of the reporting period (quarter or month) is unlawful (Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated September 28, 2005 N F03-A51/05-2/3168, FAS North-Western District dated November 3, 2005 N A56-26472/04; FAS Moscow District dated November 11, 2004 N KA-A41/10387-04).
The norm introduced by Law No. 137-FZ in paragraph 3 of Art. 58 of the Tax Code of the Russian Federation, in fact, consolidates the position of the Ministry of Finance of Russia and the courts regarding the illegality of bringing to responsibility for violation of the procedure for calculating and (or) paying advance payments.
In paragraph 4 of Art. 58 of the Tax Code of the Russian Federation (as amended by Law N 137-FZ) establishes a mechanism for paying taxes through the cash desk of the local administration or through the organization of the federal postal service.
Thus, tax payment is made in cash or non-cash form.
In the absence of a bank, taxpayers (tax agents) who are individuals can pay taxes through the cash desk of the local administration or through the federal postal service.
In this case, the local administration and the federal postal organization are obliged to:
accept funds in payment of taxes, correctly and timely transfer them to the budget system of the Russian Federation to the appropriate account of the Federal Treasury for each taxpayer (tax agent). In this case, there is no fee for accepting funds;
keep records of funds accepted for payment of taxes and transferred to the budget system of the Russian Federation for each taxpayer (tax agent);
When accepting funds, issue receipts to taxpayers (tax agents) confirming the receipt of these funds. The form of the receipt issued by the local administration is approved by the federal executive body authorized for control and supervision in the field of taxes and fees;
submit to the tax authorities (tax authorities officials), upon their requests, documents confirming the receipt of funds from taxpayers (tax agents) in payment of taxes and their transfer to the budget system of the Russian Federation.
Funds accepted by the local administration from the taxpayer (tax agent) in cash, within five days from the date of their receipt, are subject to deposit in a bank or federal postal organization for their transfer to the budget system of the Russian Federation to the appropriate account of the Federal Treasury.
If, due to a natural disaster or other force majeure circumstance, funds received from a taxpayer (tax agent) cannot be deposited within the prescribed period into a bank or federal postal service organization for their transfer to the budget system of the Russian Federation, the specified period is extended until eliminate such circumstances.
For failure to fulfill or improper fulfillment of the duties provided for in this paragraph, the local administration and the federal postal service organization are liable in accordance with the legislation of the Russian Federation.
The application of liability measures does not relieve the local administration and the federal postal service organization from the obligation to transfer to the budget system of the Russian Federation funds received from taxpayers (tax agents) for the payment and transfer of taxes.
In paragraph 6 of Art. 58 of the Tax Code of the Russian Federation (as amended by Law N 137-FZ) establishes a rule according to which the taxpayer is obliged to pay tax within one month from the date of receipt of the tax notice, if a longer period of time for paying the tax is not indicated in this tax notice.
