Payment and refund of state fees for an accountant: postings and tax accounting

Government duty

In accordance with the Tax Code of the Russian Federation, a state duty is a fee levied on organizations and individuals when they apply to state bodies, local governments, other bodies and (or) officials who are authorized in accordance with the legislative acts of the Russian Federation , legislative acts of the constituent entities of the Russian Federation and regulatory legal acts of local governments, for the performance of legally significant actions in relation to these persons provided for by the Tax Code, with the exception of actions performed by consular offices of the Russian Federation, namely:

when applying to courts of general jurisdiction, to magistrates;
when applying to arbitration courts;
when applying to the Constitutional Court of the Russian Federation and constitutional (statutory) courts of the constituent entities of the Russian Federation;
for notarial acts;
for actions related to civil registration;
for actions related to the acquisition of citizenship of the Russian Federation or renunciation of citizenship of the Russian Federation, as well as entry into the Russian Federation or departure from the Russian Federation;
for actions related to the official registration of a program for electronic computers, a database and an integrated circuit topology;
for the actions of authorized government agencies in the implementation of federal assay supervision;
for the actions of the authorized executive body during the state registration of medicinal products;
for the actions of the authorized executive body during the state registration of medical devices;
for state registration of legal entities, political parties, mass media, issues of securities, property rights, vehicles, etc.

Among other things, the Tax Code of the Russian Federation provides for state duties for:

the right to use the names “Russia”, “Russian Federation” and words and phrases formed on their basis in the names of legal entities;
the right to export cultural values, collectibles

paleontology and mineralogy;

issuing permits for transboundary movement of hazardous waste;
issuing permits for the export from the territory of the Russian Federation, as well as for the import into the territory of the Russian Federation, of species of animals and plants, their parts or derivatives, subject to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

How to take into account the cost of state duty for income tax purposes and under the simplified tax system

Tax accounting of state duty depends on its type.

The state duty for registering rights to real estate and for registering cars both under the OSN and under the simplified tax system is taken into account depending on when it is paid:

if before the facility is put into operation, it is included in the initial cost of the operating system;
if after putting the facility into operation, it is taken into account in expenses at a time.

The state fee paid by an organization when filing an application, statement of claim, complaint (appeal, cassation or supervisory) in court (arbitration or general jurisdiction), both under the OSN and under the simplified tax system, is taken into account in expenses.

The state fee, which the court decides to reimburse the defendant, is taken into account:

1) the defendant has expenses:

in case of OSN - on the date of entry into force of the court decision;
under the simplified tax system - on the date of payment;

2) the plaintiff’s income:

in case of OSN - on the date of entry into force of the court decision;
under the simplified tax system - on the date of receipt of money.

In other cases, both under the OSN and under the simplified tax system, the state duty is taken into account in expenses on the payment date, which always coincides with the accrual date.

This also applies to state fees for state registration:

changes made to the organization's charter (Unified State Register of Legal Entities);
real estate lease agreement concluded for a period of at least one year;
rights to land plots.

State duty under the simplified tax system

Under the simplified taxation system (STS), the state duty paid to the budget is also subject to inclusion in the expenses of the enterprise.

When satisfying the claim, the defendant will have to take into account the amount to be reimbursed to the plaintiff in expenses, and the plaintiff - accordingly, in income. The accounting date will be the date of actual payment of funds (clause 1 of Article 346.17, clause 31 of clause 1 of Article 346.16 of the Tax Code of the Russian Federation).

If the state duty is refunded at the request of the applicant upon refusal to go to court or on other grounds established by the Tax Code:

when applying the simplified tax system with the object of taxation “Income”, the returned amount of state duty is not taken into account when determining the object of taxation;
when applying the simplified tax system with the tax object “Income - Expense”, the returned amount is not taken into account, provided that the paid amount was not previously taken into account as an expense (Letter of the Ministry of Finance of Russia dated December 21, 2021 No. 03-11-11/85518).

Accounting for state duty for profit tax purposes

Regardless. If the company wins and the state duty is reimbursed by the losing party, the company will simply include this amount in income. Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated January 18, 2005 N 03-03-01-04/2/8 Question: LLC requests clarification of the following. The organization filed a claim with the Moscow Arbitration Court and paid the state fee. The case was pending when the organization abandoned the claim in connection with the settlement of the dispute, the refusal was accepted by the court, and the proceedings were terminated. Is it legal to attribute the costs of paying state duty to reduce the tax base for income tax in this situation? Answer: The Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation has considered your letter dated November 25, 2004. and reports the following. In accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), expenses for the purpose of calculating income tax are recognized as economically justified expenses, confirmed by documents drawn up in accordance with the legislation of the Russian Federation, provided that they were incurred to carry out activities aimed at to receive income. Article 265 of the Code establishes that non-operating expenses not related to production and sales include reasonable costs for carrying out activities not directly related to production and (or) sales. Subparagraph 10 of paragraph 1 of Article 265 of the Code determines that non-operating expenses include legal expenses and arbitration fees. According to Article 101 of the Arbitration Procedural Code of the Russian Federation, court costs consist of state fees and legal costs associated with the consideration of the case by the arbitration court. At the same time, paragraph 1 of Article 102 of the Arbitration Procedural Code of the Russian Federation establishes that state fees are paid for statements of claim, other statements and complaints in the manner and in the amounts established by federal law. Thus, the cost of paying the state fee when filing a claim with the arbitration court reduces the tax base for corporate income tax. However, the paid state fee is subject to partial or full refund if the proceedings are terminated or the application is left without consideration by a court of general jurisdiction or an arbitration court (subparagraph 3 of paragraph 1 of Article 333.40, Chapter 25.3 “State Duty” of the Code). In this case, in our opinion, the amount of the returned state duty should be included in non-operating income. A copy of this response has been sent to the Department of Profit (Income) Taxation of the Federal Tax Service of Russia. Deputy Director of the Department A.I. Ivaneev

Non-operating expenses

The entire list can be found in. By the way, it is open().

are recognized in tax accounting if they are economically justified and documented (). And the date of recognition of the expense will depend on what kind of expense it is.

For example, the amounts of fines, penalties, and other sanctions for violation of contractual and debt obligations are recognized either on the date of recognition of the debt by the debtor, or on the date of entry into force of the court decision (). Other non-operating expenses are also justified expenses of the organization that are not related to production and sales, but are not directly named in. For example, other non-operating expenses include expenses in the form of:

the amount of the arbitration fee paid in accordance with the rules of the permanent arbitration court (), etc.
premiums and discounts provided under the service agreement (, );

Because the

Tax accounting of expenses for paying state duty when going to court

Almost any organization may have a situation where disputes with counterparties have to be resolved through the courts. In this case, additional costs inevitably arise, including the payment of state duties. The article describes how to correctly account for such expenses for tax purposes.

Article 101 of the Arbitration Procedural Code determines that legal costs consist of state fees and legal costs associated with the consideration of the case by the arbitration court.

State duty is a mandatory fee levied on organizations and individuals in accordance with Art. Art. 333.16 and 333.17 ch. 25.3 Tax Code of the Russian Federation. The grounds, rules for payment, as well as the procedure for granting a deferment or installment plan for the payment of state duties are established in accordance with the legislation of the Russian Federation on taxes and fees. This is stated in Art. 102 of the Arbitration Procedure Code of the Russian Federation.

The Tax Code stipulates that state duty payers are organizations that apply to courts of general jurisdiction, arbitration courts or magistrates for consideration of cases. In addition, they also recognize organizations that act as defendants when considering cases in courts, and in the event that the court decision is not made in their favor and the plaintiff is exempt from paying state duty (Article 333.17 of the Tax Code of the Russian Federation).

According to paragraphs. 1 clause 1 art. 333.18 of the Tax Code of the Russian Federation, when applying to arbitration courts, the state fee is paid before filing a statement of claim.

The amount of the state duty depends on the nature of the claim (property or non-property) and its price. In cases considered in arbitration courts, the size of the state duty and the specifics of its payment by organizations are determined in Art. Art. 333.21 and 333.22 of the Tax Code of the Russian Federation.

According to Art. 110 of the Arbitration Procedure Code of the Russian Federation, an organization that wins a dispute can reimburse its legal costs at the expense of the losing party. If the court partially satisfied the claim, legal costs may be divided between the parties in proportion to the size of the satisfied claims. If the persons participating in the case agree on the distribution of legal costs by a decision of the arbitration court, these costs are charged in accordance with this agreement. The basis is clause 4 of Art. 110 Arbitration Procedure Code of the Russian Federation.

How is state duty accepted for tax accounting?

The procedure for recognizing state duty in tax accounting is as follows. If we are talking about the state duty for registering vehicles or real estate, which was paid before putting such objects into operation, the duty increases their initial cost. And if paid later, it is expensed (Letters of the Ministry of Finance dated 06/08/2012 No. 03-03-06/1/295, dated 02/11/2011 No. 03-03-06/1/89, dated 06/01/2007 No. 03-03- 06/2/101). When tax accounting is also kept in accounts, we can say that, for example, for the state duty paid on real estate, the entries in accounting and tax accounting will be similar. Also, say, in terms of state fees to court, accounting and tax accounting will be close. And there are usually no differences.

For the purpose of calculating income tax, the “expenditure” state duty is taken into account as part of other expenses associated with production and sales (clause 1, clause 40, clause 1, article 264 of the Tax Code of the Russian Federation). In this case, the state duty reimbursed on the basis of a court decision is taken into account by the defendant in expenses, and by the plaintiff in income on the date the court decision enters into legal force (Letters of the Ministry of Finance dated January 13, 2015 No. 03-03-06/1/69458, dated July 24, 2013 No. 03- 03-05/29184).

The peculiarity of accounting for state duty under the simplified tax system “income minus expenses” is that it is recognized at the time of payment (clause 22, clause 1, article 346.16, clause 1, article 346.17 of the Tax Code of the Russian Federation).

Reflection of transactions for payment of state duty for tax purposes

In tax accounting, legal costs and arbitration fees referred to in Art. Art. 101 and 102 of the Arbitration Procedure Code of the Russian Federation are included in non-operating expenses (clause 10, clause 1, article 265 of the Tax Code of the Russian Federation).

If income and expenses are accounted for on an accrual basis, then the costs associated with paying the state fee when filing a claim in court are recognized on the date of accrual of the specified fee. That is, the costs of paying state fees are taken into account for tax purposes at the time they arise, regardless of the date of the court’s decision. This follows from the provisions of paragraphs. 1 clause 7 art. 272 of the Tax Code of the Russian Federation.

If the organization uses the cash method, then expenses are recognized after the actual payment of the state duty (clause 3, clause 3, article 273 of the Tax Code of the Russian Federation).

In the corporate income tax return for the reporting (tax) period, the amount of non-operating expenses in the form of state duty is reflected in line 200 “Non-operating expenses - total” of Appendix No. 2 to sheet 02 and is included in the final line 040 “Non-operating expenses” of sheet 02.

In accounting, expenses associated with the consideration of cases in courts are reflected in account 91 “Other income and expenses.” Basis - Instructions for using the Chart of Accounts. The fact is that the costs of paying the state duty when filing a statement of claim with the arbitration court are not related to the production and sale of products, goods, works, services. Therefore, in accounting, such costs are recognized as other non-operating expenses (clause 12 of PBU 10/99). Moreover, they are taken into account in the reporting period in which they were made, regardless of the time of actual payment of funds and other form of implementation (assuming the temporary certainty of the facts of economic activity). This is stated in paragraph 18 of PBU 10/99.

Costs in the form of state fees are recognized on the date the statement of claim is accepted for proceedings in accordance with a copy of the court ruling sent to the persons participating in the case. A copy is sent no later than the next day after the date of the ruling (clauses 3 and 5 of Article 127 of the Arbitration Procedure Code of the Russian Federation). The cost of paying the state duty is taken into account in the amount indicated in the payment document.

Example 1. On September 1, 2006, ZAO Severstroy filed a claim with the arbitration court to recover a penalty in the amount of 180,000 rubles from its supplier. for violation of the terms of a business contract. On the same day, before submitting the application, Severstroy CJSC paid the state fee.

The amount of state duty was calculated based on paragraphs. 1 clause 1 art. 333.21 Tax Code of the Russian Federation. It states that in property cases considered in arbitration courts, if the value of the claim is from 100,001 to 500,000 rubles. The state duty is 3,500 rubles. plus 2% of the amount exceeding RUB 100,000.

Thus, for ZAO Severstroy the state duty is 5,100 rubles. .

The staffing table of ZAO Severstroy does not include the position of a lawyer. Therefore, the organization used the services of a third-party lawyer. RUB 14,900 was spent to pay for these services.

Thus, the legal costs of Severstroy CJSC include:

state fee for filing a claim in court - 5100 rubles;
lawyer services - 14,900 rubles.

CJSC Severstroy accounts for income and expenses for profit tax purposes using the accrual method.

The court hearing took place on September 22, 2006. Based on its results, the organization’s claim was satisfied in the amount of 120,000 rubles. The arbitration court decided to transfer this amount to the bank account of Severstroy CJSC within 10 days, as well as reimburse the organization for legal expenses.

The court calculated the amount of state fees and legal costs to be reimbursed by the defendant in proportion to the size of the satisfied claims:

(RUB 5,100 + RUB 14,900) x RUB 120,000 : 180,000 rub. = 13,333 rub.

The defendant agreed with the court's decision, and on September 28, 2006, the amounts awarded by the court were transferred in full to the bank account of Severstroy CJSC.

The accountant of ZAO Severstroy recorded these transactions as follows:

September 1, 2006:

Debit 68 subaccount “Calculations for payment of state duties” Credit 51

5100 rub. — the amount of state duty for consideration of the case in the arbitration court is transferred;

Debit 91-2 Credit 68 subaccount “Calculations for payment of state duties”

5100 rub. — the amount of state duty paid is reflected as part of non-operating expenses;

Debit 91-2 Credit 76

RUB 14,900 — the costs of paying a lawyer in accordance with the concluded agreement are taken into account;

September 22, 2006:

Debit 76 Credit 91-1

120,000 rub. — the defendant’s debt to pay a penalty is reflected in the amount awarded by the court;

Debit 76 Credit 91-1

RUB 13,333 — the defendant’s debt for reimbursement of legal expenses by court decision is reflected;

September 28, 2006:

Debit 51 Credit 76

RUB 133,333 (RUB 120,000 + RUB 13,333) - the account of Severstroy CJSC received funds from the defendant in pursuance of the arbitration court decision.

In tax accounting, the accountant of ZAO Severstroy reflected the following amounts:

as part of non-operating expenses - 20,000 rubles. (RUB 5,100 + RUB 14,900);
as part of non-operating income - 133,333 rubles. (RUB 120,000 + RUB 13,333).