Article 24 of the Tax Code of the Russian Federation. Tax agents (current edition)

Who are tax agents

The legal status of tax agents is prescribed in Article 24 of the Tax Code of the Russian Federation.
Paragraph 1 of this article states that tax agents are persons whom the Tax Code of the Russian Federation obliges to calculate and withhold fiscal payments from the taxpayer and transfer them to the budget of the Russian Federation. They are a kind of intermediaries between the Federal Tax Service and the taxpayer. The intermediary withholds amounts to be transferred to the budget of the Russian Federation only from cash payments to the taxpayer. If it is not possible to withhold the fiscal tax, then the regulatory authorities (in this case, the Federal Tax Service) must be notified about this. This must be done within one month from the day on which it became known. And if it is impossible to withhold personal income tax, no later than March 1 of the year following the year of payment of income. In this case, responsibility for paying the fiscal fee passes entirely to the payer.

Who are we talking about?

Not only Russian organizations, but also individual entrepreneurs, representatives of private practices (detectives, notaries, lawyers), as well as ordinary citizens can be recognized as a tax agent (TA).

The current legal status of tax agents is enshrined in Article 24 of the Tax Code of the Russian Federation. Thus, in Russia you can become an RA only for three types of tax obligations:

1. Personal income tax. The employer acts as an NA for its employees. That is, when calculating wages and other remuneration for work, the employer is obliged to withhold personal income tax.
2. VAT. An entity that has nothing to do with this type of fiscal obligation can become an RA for value added tax. Operations in which an economic entity becomes subject to VAT are named in Art. 146, 161 and 171 of the Tax Code of the Russian Federation. For example, a company that uses the simplified tax system (exempt from VAT) leases or acquires state and/or municipal property. In this case, the company automatically becomes an NA.
3. Income tax. A company becomes an NA if it accrues and pays dividends to its founders - legal entities. They are also companies that pay income from the placement of valuable government (municipal) securities. Or companies that pay income to foreign companies that do not have permanent representative offices in Russia become NAs.

Consequently, NAs pay taxes and fees to the budget from other people's income. While taxpayers calculate fiscal payments directly from their funds or income.

What are the responsibilities?

The list of what tax agents are required to do is given in paragraphs 3 of Article 24 of the Tax Code of the Russian Federation. These include:

• timely and correct calculation and withholding of fiscal fees from funds paid to the taxpayer;
• transfer of withheld amounts to the budget of the Russian Federation within the time limits established by law;
• notification to the Federal Tax Service about the impossibility of withholding tax;
• submission of reports necessary for control to the Federal Tax Service;
• accounting of calculated, withheld and transferred taxes for each taxpayer;
• ensuring the safety of documents necessary to verify the correctness of calculation and deduction of fiscal payments.

Also, the Tax Code of the Russian Federation may provide for other obligations for certain types of taxes. For example, not only the Federal Tax Service must be notified about the impossibility of withholding personal income tax, but also the taxpayer himself.

Rights and obligations

Along with ordinary taxpayers, tax agents have similar rights and responsibilities. A comprehensive concept of who tax agents are, their rights and obligations are discussed in Article 24 of the Tax Code of the Russian Federation.

Key rights of tax agents:

1. Receive free information and clarifications from representatives of the Federal Tax Service regarding the application of tax regimes, types and rules.
2. Request unified forms and demand clarification on the rules for filling them out and submitting them to the Federal Tax Service.
3. Take advantage of statutory deductions, benefits and concessions if you have legal rights to use them.
4. Receive an installment plan, deferment or debt restructuring or an investment fiscal loan if there are good reasons.
5. Claim for a timely return or credit of over-transferred funds to the budget.
6. Initiate reconciliations of mutual settlements with government agencies, receive appropriate corrections, extracts and explanations.
7. Refuse to carry out illegal or unlawful actions of Federal Tax Service inspectors and other officials.

The main responsibilities of tax agents: perform timely and reliable calculations, withholding and transfer of amounts of fiscal obligations to the budgets of the appropriate level. In addition to this obligation, the following are assigned to the NA:

• within a month, inform the Federal Tax Service about the impossibility of withholding fiscal debt from the taxpayer;
• keep reliable records of accrued and paid income, as well as withheld amounts of taxes and fees, separately for each taxpayer;
• promptly provide reports and documents confirming the accuracy and completeness of the calculations made;
• ensure the safety of documentation confirming the facts of transactions performed for 4 calendar years.

This list is not exhaustive. Thus, for a specific type of fiscal obligations (personal income tax, VAT and income tax), officials have provided additional obligations.

Taxes for which agency responsibilities may arise

Organizations perform the duties of tax agents in relation to three taxes:

• personal income tax;
• VAT;
• income tax.

Our table will help you understand in what cases the obligation of agency arises:

Article 24 of the Tax Code of the Russian Federation. Tax agents (current edition)

The commented article defines the legal status of a tax agent, his rights and obligations.

Along with taxpayers (fee payers), the Tax Code of the Russian Federation distinguishes such a group of participants in tax legal relations as tax agents, which are understood as persons authorized to calculate, withhold and pay to the budget the amount of taxes for taxpayers.

It should be noted that an organization as a tax agent, by virtue of the provisions of Article 24 of the Tax Code of the Russian Federation, has the obligation to withhold taxes only from persons who are tax payers and transfer them to the budget.

A similar position was taken by the Federal Antimonopoly Service of the North-Western District in Resolution dated November 26, 2012 N A44-1345/2011.

The duty of the tax agent is to remit the tax withheld from the taxpayer, and not to pay the tax from his own funds.

If the tax agent did not withhold the amount of tax, then, as a general rule, it is impossible to recover from him the amount of tax that he did not withhold. In this situation, the demand for tax payment should be presented to the taxpayer, and not to the tax agent.

This circumstance is due to the fact that in this case the taxpayer continues to be the obligated person. According to the norms of the Tax Code of the Russian Federation, his obligation to pay tax is considered unfulfilled, since the tax agent did not withhold the amount of tax (subclause 5 of clause 3 of Article 45 of the Tax Code of the Russian Federation).

A similar conclusion is contained in paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation”: in the case when no cash payments were made to the taxpayer in the tax period and the amount was withheld tax turned out to be impossible, the tax agent is only obliged to calculate the amount of tax payable by the taxpayer and inform the tax authority about the impossibility of withholding the tax. This provision is based on the fact that the obligated person is the taxpayer, to whom a corresponding demand for tax payment may be made if it is not withheld by the tax agent.

At the same time, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the provisions on non-withholding of tax by an agent are not applicable when paying funds to a foreign person due to the failure of this person to be registered with the Russian tax authorities and the impossibility of its tax administration.

A person can become a tax agent for three taxes - personal income tax, VAT and income tax.

When paying individuals remuneration under employment contracts or other income in cash, including under civil contracts for the performance of work, provision of services or copyright agreements, the organization must calculate and withhold personal income tax from their income and transfer the tax to the budget (Article 226 Tax Code of the Russian Federation).

A person can become a tax agent for VAT if he performs, in particular, the following operations (clauses 2, 3 of Article 161 of the Tax Code of the Russian Federation):

— rents municipal or state property from authorities;

— acquires from a foreign person who is not registered with the tax authorities of the Russian Federation, goods (work, services), the place of sale of which is recognized as the territory of the Russian Federation.

A person becomes a tax agent for income tax (clause 3 of Article 275, clause 4 of Article 286 of the Tax Code of the Russian Federation):

1) when paying dividends;

2) when paying income to a foreign organization that does not have a permanent establishment in the Russian Federation.

Responsibility for unlawful non-transfer of tax amounts subject to withholding and transfer by a tax agent is provided for in Article 123 of the Tax Code of the Russian Federation.

This article provides for liability only in the form of a fine in the amount of 20% of the amount of unwithheld tax. Collection of the entire amount of unwithheld tax means the application of a fine in the amount of 100%, which is not provided for by the norms of the Tax Code of the Russian Federation. In addition, recovery from the applicant of the amount of unwithheld tax is repeated prosecution for one offense, which, in accordance with paragraph 2 of Article 108 of the Tax Code of the Russian Federation, is unacceptable (Resolution of the Ninth Arbitration Court of Appeal dated April 13, 2010 N 09AP-5712/2009-AK in case N A40-138877/00-111-1042).

This position is confirmed by judicial practice, in particular by the Resolutions of the Federal Antimonopoly Service of the Moscow District of September 17, 2007 N KA-A40/9418-07, of March 6, 2008 N KA-A40/1197-08, of October 7, 2008 N KA-A40/9380-08 , dated 04/16/2009 N KA-A40/1191-09-2, dated 08/09/2010 N KA-A40/8463-10, Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 07/27/2011 in case No. A32-30502/2010 and the position of the Federal Tax Service Russia in Moscow, set out in letter dated April 25, 2007 N 20-12/038684.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO PART ONE OF THE TAX CODE OF THE RUSSIAN FEDERATION” (UPDATE)

Yu.M. Lermontov, 2016

Responsibility for failure to fulfill the duties of a tax agent

The liability of tax agents for failure to fulfill their duties is prescribed in Article 123 of the Tax Code of the Russian Federation. It provides for a fine of 20% of the amount not withheld from the taxpayer and not transferred to the budget.

On January 28, 2019, amendments to Article 123 of the Tax Code of the Russian Federation introduced by Federal Law No. 546-FZ of December 27, 2018, come into force. From now on, it will be possible to avoid a 20% fine if the tax agent:

• the calculation for the corresponding budget payment has been submitted without violating the deadlines;
• the calculation reflects the entire amount to be withheld, there are no facts of non-reflection and errors that led to an underestimation of the amount that needs to be transferred to the budget;
• the amount of tax and the corresponding penalties are listed until the late payment is detected by the regulatory authorities.

In addition to the fine, penalties are paid for each day of delay in transferring payment to the budget. They are calculated in accordance with Article 75 of the Tax Code of the Russian Federation depending on the period of delay:

• up to 30 calendar days - based on 1/300 of the refinancing rate;
• over 30 calendar days - based on 1/150 of the refinancing rate.

About the consequences of paying tax for another person

In letter dated 09/02/2020 No. 03-03-06/1/76900, financiers drew attention to the fact that the “agency” norms of the Code do not oblige the tax agent to pay the budget for the taxpayer with his own funds. However, by virtue of Article 45 of the Tax Code of the Russian Federation, tax payment can be made for the taxpayer by another person.

The company does not take into account expenses in the form of funds transferred under credit or loan agreements, and does not recognize what is received to repay borrowings in income. Nothing depends on how the borrowings are formalized (clause 12, article 270, subclause 1, clause 1, article 251 of the Tax Code of the Russian Federation). Hence the conclusion of the Ministry of Finance: if a company, as a third party, pays off the budget for a taxpayer, then it does not reflect the amounts received from him later as income.

That is, in this situation, debt obligations arise between these persons by virtue of civil legislation (Article 313 of the Civil Code of the Russian Federation). At the same time, the company that made the payment will not have a “profitable” expense, even if the funds spent will not be reimbursed in the future (letters from the Ministry of Finance dated June 28, 2017 No. 03-03-06/1/40668, dated February 12, 2020 No. 03-03 -06/1/9422).

The payment document must clearly indicate for whom the tax was transferred. Explanations on the preparation of such papers are given in the letters of the Federal Tax Service dated January 25, 2018 No. ZN-3-22/ [email protected] and dated February 2, 2018 No. ZN-3-22/ [email protected] , Information dated April 11, 2017. You can fill out a document to pay taxes, fees, and other amounts for third parties on the website of the Federal Tax Service of Russia: https://service.nalog.ru/payment/.

What way out of the situation did the Ministry of Finance advise?

The Ministry of Finance recalled the right to pay tax for another person, which is provided by Article 45 of the Tax Code.

In his opinion, nothing prevents a tax agent, as an independent organization, from paying tax for another company.

However, in this case the question arises of how to formalize these relations between firms.

The Ministry of Finance believes that in this case, borrowing relationships arise between organizations.

At the same time, the funds received to repay the debt are not income tax income (clause 10, clause 1, article 251 of the Tax Code).

And the funds with which this debt was repaid are not taken into account as expenses (Clause 12, Article 270 of the Tax Code).

These rules apply regardless of how the loan relationship was formalized.

Therefore, according to the Ministry of Finance, if a company, as a third party, paid tax to the budget for another organization, then the funds that should be returned to it to pay off the debt do not need to be included in income tax income.

More on the topic:

Paying taxes for a third party - problems and limitations

Basic provisions

In accordance with paragraph 1 of Art.
24 of the Tax Code of the Russian Federation, tax agents are persons who, in accordance with the Tax Code of the Russian Federation, are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation. According to Art. 24 of the Tax Code of the Russian Federation, tax agents are obliged to:

correctly and timely calculate, withhold from funds paid to taxpayers, and transfer taxes to the budget system of the Russian Federation to the appropriate accounts of the Federal Treasury (see resolutions of the Federal Antimonopoly Service of the West Siberian District dated May 20, 2013 in case No. A27-17528/2012, FAS Central District dated 04.14.06 in case No. A14-8935-2005/334/33, FAS North Caucasus District dated 09.27.05 No. F08-4477/2005–1769A in case No. A32-13142/2005– 51/397); notify in writing the tax authority at the place of your registration about the impossibility of withholding tax and the amount of the taxpayer’s debt within one month from the day the tax agent became aware of such circumstances (see the resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 25, 2002 in case No. F03 -A73/02–2/2660); keep records of accrued and paid income to taxpayers, calculated, withheld and transferred taxes to the budget system of the Russian Federation, including for each taxpayer (see the resolution of the Federal Antimonopoly Service of the East Siberian District dated September 2, 2003 in case No. A33-20070/02- S3-F02-2713/03-S1); submit to the tax authority at the place of your registration the documents necessary to exercise control over the correctness of calculation, withholding and transfer of taxes (see resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 2, 2012 in case No. A28-5002/2011, dated November 28, 2011 in case No. A29-2853/2011, FAS Central District dated 08.28.06 in case No. A35-9977/05-C18); for four years, ensure the safety of documents necessary for the calculation, withholding and transfer of taxes; perform other duties provided for by the Tax Code of the Russian Federation. For example, tax agents for personal income tax are required to inform taxpayers about the facts of excessive tax withholding and the amounts of excessively withheld personal income tax, as indicated by paragraph 1 of Art. 231 Tax Code of the Russian Federation. Moreover, the law gives the personal income tax agent only 10 days from the date of discovery of such a fact for such actions.