Advances during the year and minimum tax: we optimize the tax burden under the simplified tax system

Who pays the minimum tax

At the end of each year, all individual entrepreneurs and organizations using the simplified tax system “Income minus expenses” calculate two

tax:

• Ordinary tax, i.e. (income - expenses) x 15%.
• Minimum tax, i.e. (income) x 1%.

It is the tax that turns out to be higher than the other that individual entrepreneurs and organizations must pay to the tax authority. Thus, the single tax of the simplified tax system “Income minus expenses” (regular tax) cannot be less

minimum tax, i.e. one percent of income.

note

that the difference between the usual and paid minimum tax can be included in expenses in the following tax periods (based on the results of the following years).

Simplified tax system “income minus expenses”: when to pay the minimum tax

The tax base for a single “simplified” tax is the difference between income and expenses recognized in the manner established by Art. 346.15 – 346.17 Tax Code of the Russian Federation. The result obtained (if it is positive) is multiplied by the tax rate of 15% or another adopted in the region. You can see tax rates by region in our material. Advance payments are calculated and paid quarterly (by the 25th day of the month after the quarter). The tax itself is calculated at the end of the year.

The minimum tax under the simplified tax system “income minus expenses” is calculated in the amount of 1% of the amount of income received for the year (clause 6 of article 346.18 of the Tax Code of the Russian Federation). It is paid if the amount of “regular” tax at the end of the year is less than 1% of taxable income for the same period. The minimum tax cannot be avoided even in the event of a loss, when expenses exceed income, and there is no basis for calculating the usual simplified tax system. For the minimum tax, there is no base only in one case - when the “simplified” person had no income at all during the tax period.

The deadlines for transferring the minimum tax are the same as for the regular “simplified” tax, taking into account the postponement of weekends and holidays:

• legal entity - March 31 of the following reporting year (for payment for 2017 - 04/02/2018);
• Individual entrepreneur – April 30 of the next year (tax for 2021 is paid no later than 05/03/2018).

Please note that the minimum tax under the simplified tax system for “income” in 2021, as before, is not provided for by tax legislation.

Example of calculating the minimum tax

At the end of the year, an individual entrepreneur or organization has the following indicators: income - 1,000,000 rubles, expenses - 940,000 rubles.

1. The tax according to the simplified tax system is equal to (1,000,000 rubles – 940,000 rubles) x 15% = 9,000 rubles.
2. The minimum tax is 1,000,000 rubles x 1% = 10,000 rubles.

Conclusion:

in this case, you will have to pay the minimum tax (10,000 rubles), since it turned out to be more than the single tax of the simplified tax system (9,000 rubles). Also, do not forget that the difference between the regular and minimum tax (1,000 rubles) can be taken into account as expenses next year.

Read about how to pay taxes online here.

Entrust reporting to specialists

The role of the tax burden in assessing the taxpayer

The definition of the tax burden in relation to working with taxpayers was introduced by the Federal Tax Service of the Russian Federation and is contained in its two main documents:

• Order of the Federal Tax Service of the Russian Federation dated May 30, 2007 No. MM-3-06/ [email protected] , dedicated to the total tax burden, calculated as the share of all taxes due in the accounting (excluding VAT) amount of sales proceeds.
• Letter of the Federal Tax Service of the Russian Federation dated July 17, 2013 No. AS-4-2/12722, which examines the tax burden in more detail (in terms of specific taxes and certain tax regimes with options for their calculation).

Note! Currently, the letter of the Federal Tax Service dated July 17, 2013 No. AS-4-2/12722 is not valid. It was canceled by Federal Tax Service letter No. ED-4-15 dated July 25, 2017/ [email protected] At the same time, the principle for calculating the tax burden given in it can still be used by controllers now. Therefore, we will still talk about it in detail further.

Both documents of the Federal Tax Service are devoted to the issues of verification and analysis of reports submitted by taxpayers in order to identify errors or intentional distortions in them, as a result of which candidates are selected for additional audit activities. At the same time, the results of processing the actual data of these reports are regularly entered into the first of them, making it possible to judge the average values ​​of the level of tax burden and profitability indicators of industries.

Despite the obvious focus on the tax authorities, both of these documents contain information that is of definite value for the taxpayer, since it allows him to independently do the following when using this information:

• Assess the deviation of your business performance from national and industry averages.
• Calculate those reporting indicators that are important for the Federal Tax Service when assessing candidates for an on-site tax audit.
• Prepare convincing arguments to support the correctness of your position regarding the organization of accounting and tax calculation.
• Make forecast calculations of tax payments taking into account the prospects for the development of your activities.
• Compare options for available taxation systems in order to reduce the tax burden.

How to pay taxes on the simplified tax system throughout the year

Below are instructions for paying the simplified tax system:

1. During the year, it is impossible to say for sure whether or not you will have to pay the minimum tax, because it is calculated only at the end of the year. Therefore, each reporting period (quarter) it is necessary to make advance payments in the usual manner, i.e. (income - expenses) x 15%.
2. After the end of the year, individual entrepreneurs and organizations determine what tax they need to pay. The deadlines for paying the minimum and regular taxes are the same and coincide with the deadline for filing a simplified tax return. For individual entrepreneurs - no later than April 30, for organizations - no later than March 31.
3. If it turns out that you need to pay a minimum tax, then its amount can be reduced by the advance payments already paid. In addition, if their amount turns out to be more than the minimum tax, then you do not need to pay it. The remaining part of the advance payments can be taken into account when paying taxes next year or returned by writing an application to the tax office.
4. From 2021, the minimum tax will need to be paid on the same BCC that is established for the single tax of the simplified tax system with the object “income minus expenses” - 182 1 0500 110
   . According to this BCC, it will be necessary to pay the final tax for 2021.

Will there be penalties for non-payment of advances?

If during the year income exceeds expenses, you must pay advance payments despite loss projections2.
Penalties are charged on the amount of late advance payments3. Attention! If at the end of the year the amount of tax calculated in the general manner is less than the amount of the calculated minimum tax, then the minimum tax must be paid1.

At the same time, at the end of the year, the amount of penalties should be adjusted. They can be charged only for an amount not exceeding the minimum tax4. For example, you transferred an advance payment of 20,000 rubles to the budget. for the first quarter. And no more advances were transferred to the budget (neither for six months, nor for 9 months). Based on the results of half a year and 9 months, calculated advance payments amounted to 30,000 rubles. (cumulative total from the beginning of the year). And at the end of the year the minimum tax is 15,000 rubles. Then there should be no penalties for non-payment of advances at all (RUB 15,000 < RUB 20,000). But if the minimum tax had been equal to 25,000 rubles, then penalties should have been accrued only in the amount of 5,000 rubles. (25,000 rubles - 20,000 rubles), and not 10,000 rubles. (30,000 rub. - 20,000 rub.).

Penalties for non-payment of advances are subject to calculation until the date of their actual payment or, in case of non-payment, until the due date for payment of the relevant tax5.

What determines the size of the profit load

The tax burden for income tax is directly related to the value of the indicators that form the formula for its calculation:

• The calculated tax, the amount of which, in turn, directly depends on the applied rate. The usual rate is 20%, but in some cases it can be reduced (Article 284 of the Tax Code of the Russian Federation). The lower the tax, the lower the burden.
• Income from sales, determined according to tax accounting data and depending on the volume of ordinary activities of the taxpayer. Given the same tax amounts, the higher the income, the lower the tax burden will be.
• Non-operating income taken into account for tax purposes. For the same tax amount, the higher this income, the lower the tax burden.

In addition, the load is influenced by the following factors:

• The volume of sales expenses and non-operating expenses, the values ​​of which directly affect the amount of the tax base from which the tax is calculated. The higher the expenses, the lower the tax.
• The presence of losses from previous years, which, if taken into account in the period under review, even in the presence of income (from sales and non-sales), can reduce the tax base and, accordingly, the tax itself to zero.
• The use of tax benefits, which, just like losses from previous years, can, despite the presence of income, significantly reduce the amount of tax.

If the load is determined from a different base (for example, from accounting income), its impact on the amount of the load will be the same as that of the indicators that make up the denominator of the calculation formula given in the letter from the Federal Tax Service.

Main criteria for OSNO

The main share of budget revenue comes from two taxes paid when applying OSNO: income tax and VAT. Therefore, the main part of the text of letter No. AS-4-2/ [email protected]

When considering income tax, the attention of the Federal Tax Service is drawn to:

• Losses reflected in the declaration.
• The tax burden on it is low: for legal entities in the production sector - less than 3%, for trading companies - less than 1%.

For VAT, two indicators are considered together:

• The percentage of deductions in the tax calculated from the tax base. It does not raise questions if it turns out to be below the average level for the constituent entity of the Russian Federation or the value of 89%. The calculation of this ratio does not include accruals and deductions of VAT of the tax agent, on advances and construction work.
• Low tax burden. Its quantitative indicators are not given in the said letter. In the absence of sales at a 0% rate, they can be considered low with the same figures as for income tax: less than 3% for production and less than 1% for trade. A high share of sales with a 0% rate will significantly change the picture of calculating the tax burden for this tax, but at the same time will serve to explain deviations from the average figures for the region or industry.

Based on the percentage ratio of the amount of these two taxes (if necessary, other taxes paid are added to them) and the amount of revenue shown in the profit and loss statement, the value of the total tax burden of the taxpayer using the OSNO system is judged.

Formula for tax burden for income tax

The tax burden for income tax, according to the wording contained in letter No. AS-4-2/12722 in the section devoted to the criteria for selecting taxpayers for consideration by commissions, is the quotient expressed as a percentage by dividing the amount accrued on the tax return payable by the total the amount of income reflected in the same declaration (from sales and non-sales). In the form of a formula it will be displayed like this:

NNprib = 100 × Nprib / (Dreal + Dvner),

Where:

NNprib – tax burden for income tax;

Nprib – income tax reflected for payment on line 180 of sheet 02 of the declaration;

Dreal – income from sales indicated in line 010 of sheet 02 of the profit declaration;

Dvner – non-operating income indicated in line 020 of sheet 02 of the profit declaration.

It is in relation to this calculation that in the same section of the text of the letter from the Federal Tax Service, those values ​​​​of the tax burden on profit were given that serve as criteria for classifying it as low.

A similar formula for calculating this indicator is also contained in Appendix No. 3 to the specified letter from the Federal Tax Service. The Federal Tax Service does not consider other options for its definition. And nothing prevents the taxpayer from making a similar calculation for his own purposes in relation to, for example, a base consisting of similar income taken from accounting data and not tax accounting. To do this, you need to put in the denominator the amount of sales revenue and other income, including interest, having received them from the profit and loss statement or from the accounting registers.

Minimum tax: problems of offset of advance payments

The calendar year is coming to an end, and with it the tax period for the single tax paid in connection with the application of the simplified tax system. It's time to sum up the financial and economic activities of the enterprise for the year and, of course, optimize tax payments to the budget. For “simplified people” who apply the object of taxation “income minus expenses”, the issue of offsetting advance payments against the payment of the minimum tax is relevant in the event of an obligation to pay the minimum tax. When do these obligations arise and is it possible to carry out such a tax offset in practice?

A taxpayer who has chosen income as an object of taxation, reduced by the amount of expenses, pays the minimum tax in the manner prescribed by clause 6 of Art. 346.18 Tax Code of the Russian Federation . At the end of the year, “simplified” taxpayers who have chosen income as their tax base, reduced by the amount of expenses, must compare the accrued single tax with its minimum amount and, if the first amount is less than the second, pay the minimum tax to the budget. The amount of the minimum tax is calculated for the tax period in the amount of 1% of the tax base, which is income determined in accordance with Art. 346.15 Tax Code of the Russian Federation .
Please note : the obligation to calculate the minimum tax, compare its amount with the tax accrued in the general order and, if the first exceeds the second, pay it to the budget arises for the taxpayer only at the end of the tax period. This is indicated in the Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated July 15, 2004 No. 03-03-05/2/50 “On the minimum tax under a simplified taxation system . Based on the results of the first quarter, six months or nine months, the taxpayer does not have such an obligation, and in declarations submitted at the end of the reporting periods, line 100 of Section 2 must be crossed out. And only at the end of the year can semantic meanings be added to it.

Since the minimum tax is set at 1% of the tax base, taxpayers who do not carry out activities during the tax period and therefore do not have this base do not pay it. Explanations on this issue are given in Letter No. 21-09/05150 of the Department of Tax Administration for Moscow dated January 26, 2004 : in the absence of income determined in accordance with the established procedure, the taxpayer does not have a tax base for calculating the minimum tax and, accordingly, the obligation to pay it .

The algorithm for determining the need to pay the minimum tax is as follows. Necessary:

1) determine the amount of income;

2) form a tax base (subtract expenses from income);

3) calculate the amount of tax (tax base multiplied by 15%);

4) determine the amount of the minimum tax (income multiplied by 1%);

5) compare the single tax and the minimum tax;

6) if the minimum tax is exceeded, pay it to the budget.

As a rule, no difficulties arise with this calculation. In accordance with paragraph 7 of Art. 346.21 and paragraph 1 of Art. 346.23 of the Tax Code of the Russian Federation , tax payable upon expiration of the tax period is paid by organizations no later than March 31 of the year following the expired tax period.

Also, problems will not arise for organizations that incurred losses during the reporting periods. These taxpayers did not make advance payments at the end of the reporting periods; therefore, they must transfer the entire accrued amount of the minimum tax to the budget.

In practice, this happens extremely rarely. More often, taxpayers had a tax base in at least one reporting period, and they made advance payments to the budget. Those enterprises that are forced to pay the minimum tax can hardly be called financially prosperous, so the issue of effective use of working capital is acute for them. And at the time the obligation to pay the minimum tax arises, these organizations have already made advance payments for the single tax for this tax period. And it would be logical to offset the advance payments made against the minimum tax and pay the missing difference. But the problem is that these tax payments have different BCCs. According to Order of the Ministry of Finance of the Russian Federation dated December 8, 2006 No. 168n “On approval of instructions on the procedure for applying the budget classification of the Russian Federation” :

–18210501020011000110 – a single tax levied on taxpayers who have chosen income reduced by the amount of expenses as an object of taxation;

–18210501030011000110 – a single minimum tax credited to the budgets of state extra-budgetary funds.

The budget classification codes in force in 2007 are also given in the Letter of the Federal Tax Service of the Russian Federation dated December 22, 2006 No. ШС-6-10/ [email protected] “On the direction of the list of tax classification codes for budget revenues of the Russian Federation administered by the Federal Tax Service in 2007. ”

Thus, due to differences in the KBK codes, the problem arises of offsetting advance payments for the single tax paid under the simplified tax system against the payment of the minimum tax.

Tax offset procedure

In accordance with paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax can be considered fulfilled, in particular, after the tax authority or court has issued it in the manner established by Art. 78 of the Tax Code of the Russian Federation , decisions on the offset of excessively paid or excessively collected amounts of taxes.

In addition, Article 78 of the Tax Code of the Russian Federation stipulates that the amount of overpaid tax is subject to offset against the taxpayer's upcoming payments for this or other taxes, repayment of arrears, or refund to the taxpayer. In this case, the offset of the amount of overpaid tax against future payments is carried out on the basis of a written application from the taxpayer by decision of the tax authority. Such a decision is made within five days after receipt of the application, provided that this amount is sent to the same budget (non-budgetary fund) to which the overpaid amount of tax was sent. The refund of the amount of overpaid tax is carried out at the expense of the budget (non-budgetary fund) into which the overpayment was made, within one month from the date of filing the application for refund.

At the same time, paragraph 5 of Art. 78 of the Tax Code of the Russian Federation provides for the direction of the amount of overpaid tax to fulfill obligations to pay taxes or fees, pay penalties, repay arrears, if this amount is sent to the same budget (extra-budgetary fund) to which the overpaid amount of tax was sent.

The amount of overpaid tax is subject to refund upon a written application from the taxpayer within one month from the date the tax authority receives such an application ( Clause 6, Article 78 of the Tax Code of the Russian Federation ) in the absence of debts on taxes, fines, and penalties. An application for a credit or refund of the amount of overpaid tax may be submitted within three years from the date of payment of the specified amount. The decision to refund the amount of overpaid tax is made by the tax authority within 10 days from the date of receipt of the taxpayer’s application for a refund of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of the act of joint reconciliation of the taxes paid by him, if such a reconciliation was carried out ( clause 7 , 8, Article 78 of the Tax Code of the Russian Federation ).

However, the financial authorities have taken the position that such a set-off is impossible. They insist that, despite the quarterly advance payments already paid, the taxpayer must pay the minimum tax in full. How do they motivate their demands?

According to paragraph 2 of Art. 56 and paragraph 1 of Art. 146 of the Budget Code , the single tax levied in connection with the application of the simplified tax system and the minimum tax by level of the budget system are distributed as follows:

According to Art. 346.22 of the Tax Code of the Russian Federation, amounts of taxes (single and minimum) are credited to the accounts of the Federal Treasury for their subsequent distribution to budgets of all levels and budgets of state extra-budgetary funds in accordance with the budget legislation of the Russian Federation.
Thus, based on the fact that the single and minimum taxes are distributed according to different deduction rates, financiers and tax specialists have concluded that these are different taxes. As evidence, they point out that these taxes have different BCC codes. This discrepancy in the distribution of taxes between budgets is what causes the tax authorities’ fierce reluctance to offset advance payments against the payment of the minimum tax. Thus, if taxpayers at the end of a tax period become obligated to pay the minimum tax, the amounts of quarterly advance payments of the single tax previously paid by them for the past reporting periods shall be returned to such taxpayers or offset against their upcoming advance payments for the single tax for the following reporting periods in the manner , provided for in Article 78 of the Tax Code of the Russian Federation. In this case, the minimum tax must be paid in full. This opinion of financiers and tax authorities is contained in letters of the Ministry of Finance of the Russian Federation dated March 28, 2005 No. 03-03-02-04/1/92 , dated December 29, 2004 No. 03-03-02-04/1/110 , Federal Tax Service for Moscow dated 12/20/2004 No. 21-09/81642 , dated 11/09/2004 No. 21-09/72180 .

Arbitration practice on this issue is heterogeneous. The taxpayers sided with, in particular:

–FAS UO ( Resolution dated 02/09/2005 No. F09-163/05AK );

–FAS DO ( Resolution dated April 27, 2005 No. F03-A51/05-2/667 );

–FAS CO ( Resolution No. A09-7485/04-12 dated February 28, 2005 ).

These courts came to the conclusion that advance payments for the single tax paid by the taxpayer at the end of the tax period should be included in the payment of the minimum tax.

Not all arbitration courts were on the side of taxpayers. For example, he defended the tax authorities of the FAS NWZ, pointing out in Resolution No. A42-3386/2005-29 dated September 23, 2005 that the tax inspectorate lawfully invited the center to pay the minimum tax and did not offset the amounts of advance payments for the single tax against the payment of the minimum tax .

Uniformity in court decisions was introduced by Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 1, 2005 No. 5767/05 , with the release of which there will no longer be court decisions in favor of the tax authorities.

Satisfying the company's application, the courts came to the conclusion that it was permissible to offset the amounts of advance payments against the payment of the minimum tax and recognized the inspectorate's refusal as unlawful.

The amount of tax calculated at the end of the year is subject to reduction by the amount of advance payments made during the tax period (clause 5 of Article 346.21 of the Code).

The minimum tax is a single tax, the amount of which is determined based on the results of the economic activities of organizations for the tax period, regardless of the procedure for calculating the single tax.

Consequently, at the end of the tax period, the taxpayer pays a single tax, calculated according to the rules provided for in Article 346.21 of the Code, or paragraph 6 of Article 346.18 of the Code - for the minimum tax, taking into account advance payments made in this tax period.

Under such circumstances, the contested judicial acts are subject to remain unchanged, the application of the Interdistrict Inspectorate of the Federal Tax Service No. 5 for the Bryansk Region is not satisfied.

It would seem that the issue of offsetting advance payments towards the payment of the minimum tax has been resolved. But the Ministry of Finance has its own position on this issue, referring to the opinion of the Supreme Arbitration Court: a decision to offset paid advance payments against the minimum tax is possible only within the limits of funds received by the specified state extra-budgetary funds.

Amounts of paid advance payments that are credited to other budgets (state extra-budgetary funds), in the absence of arrears and debts on penalties accrued on the same budgets (state extra-budgetary funds), are subject to return to the taxpayer ( Letter of the Ministry of Finance of the Russian Federation dated December 28, 2005 No. 03-11 -02/83 ).

And this year, there has been no fundamental change in the position of the tax authorities on this issue: it is still proposed to either return the overpayment of advance payments to the taxpayer’s bank account or offset it against the payment of advance payments for subsequent reporting periods in accordance with Art. 78 of the Tax Code of the Russian Federation ( Letter of the Federal Tax Service for Moscow dated January 15, 2007 No. 18-11/3/ [email protected] ).

Letter of the Ministry of Finance of the Russian Federation dated September 21, 2007 No. 03-11-04/2/231 is devoted to the issue of offsetting advance payments towards the payment of the minimum tax under “simplified taxation”. At first glance, it may seem that financiers have finally given the go-ahead for the offset of advance payments for the single tax under the simplified tax system to pay the minimum tax. But is it?

The latest letter from the Ministry of Finance does not give confidence in resolving this issue. It, of course, contains a reference to the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 1, 2005 No. 5767/05 But financiers remind that in accordance with paragraphs. 4 p. 3 art. 45 of the Code, the obligation to pay tax is considered fulfilled from the day the tax authority makes a decision to offset the amounts of overpaid taxes or amounts of excessively collected taxes, penalties, fines towards the fulfillment of the obligation to pay the corresponding tax ( Letter of the Ministry of Finance of the Russian Federation dated September 21, 2007 No. 03-11-04/ 2/231 ). Apparently, they are confident that the taxpayer will still not be able to receive a decision from the tax authorities to offset advance payments against the payment of the minimum tax. But the Ministry of Finance did not seem to refuse such an opportunity, as the Presidium of the Supreme Arbitration Court of the Russian Federation decided.

Tax authorities are unlikely to change their approach when carrying out tax offsets, and the practice of refusing to offset advance payments against the payment of the minimum tax will continue. The only way for taxpayers to defend their rights is to go to court.

Taxpayers who do not want problems with the tax inspectorate have two options: offset the amount of overpaid tax against upcoming payments of taxes and fees, or return the overpayment to their current account on the basis of Art. 78 of the Tax Code of the Russian Federation . And at the same time, fully pay the entire amount of the minimum tax.