The country's tax legislation establishes the obligation of all employers to annually report on the average number of personnel employed in the enterprise. This report is drawn up on a one-page form, KND form 1110018 “Information on the average number of employees for the previous year,” approved by order of the Federal Tax Service dated March 29, 2007 No. MM-3-25/174. It reflects information on the number of staff units and the number of employees. An important point in the preparation of the document is the correct calculation of the average headcount, and in submitting to the regulatory authorities - do not forget to meet the deadlines established by the Federal Tax Service for submitting the SSR report, since the tax authorities provide for a fine for failure to provide information on the average payroll number (SSR), as well as for late submission of the document .
Before moving on to information about penalties, let’s find out who and when submits this reporting to the tax office, and why it is important both for the Federal Tax Service and for any enterprise.
Information about the SChR
The following are required to provide information about the SSR:
- Companies of all legal forms of ownership;
- Entrepreneurs using hired personnel;
- Private practitioners entering into employment contracts.
Individual entrepreneurs without employees should not report on this form. The NSR report allows tax authorities to monitor compliance with legislative norms that delimit the status of enterprises based on the number of employees, i.e., on the basis of the submitted document, they establish that the company belongs to a small and medium-sized enterprise or large business. For the employer, the main thing remains the correct calculation of the average number of personnel and, of course, timely submission of information to the Federal Tax Service.
Fine for late submission of average headcount for 2017
Failure to comply with the established deadlines for submitting a report or completely ignoring legal requirements becomes a reason for holding the employer liable. Based on the norms of paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, tax authorities can fine a company or entrepreneur 200 rubles. Clause 1 of Art. 156 of the Code of Administrative Offenses establishes punishment for officials - they will have to pay a fine in the amount of 300 to 500 rubles.
Despite the fact that the size of the sanctions does not seem serious, the consequences for the company can be very sad. The fact is that a fine for failure to submit the average number of employees in the specified insignificant amount is not the only “punishment”; the legislator is not limited to it. Tax authorities also use other methods to influence violators. For example, an employer may lose its status as a SME and will be excluded from the relevant register (due to the fact that the tax authorities do not know the number of employees of the company). Naturally, in this state of affairs, the enterprise will not be able to use the benefits provided for the categories of small and medium-sized businesses, having lost much more than the damage incurred in the form of a two-hundred-ruble fine.
Thus, it is better for employers to meet the deadlines for submitting information without provoking regulatory authorities to impose a fine for the average number of employees. In 2021, as in previous years, all of the listed sanctions applied to violators are in effect.
Information on the average number of employees
This information must be submitted to the tax authority no later than January 21, 2013 (the last day of the submission period, January 20, falls on a day off Sunday. By virtue of the norm of paragraph 7 of Article 6 of the Tax Code of the Russian Federation, the deadline is considered to be the next working day following it). Organizations provide this information at their location, the largest taxpayers - at the place of registration as such, individual entrepreneurs - at their place of residence.
This information is necessary for tax authorities to determine the method of filing tax returns during the calendar year by organizations and individual entrepreneurs.
A tax return, which is a written statement of the taxpayer about the objects of taxation, about income received and expenses incurred, about sources of income, about the tax base, tax benefits, about the calculated amount of tax and (or) about other data that serves as the basis for the calculation and payment of tax, as is known, the following can be submitted:
• on paper in the prescribed form or
• in electronic form in the established format (paragraph 1, paragraph 3, article 80 of the Tax Code of the Russian Federation).
Taxpayers whose average number of employees for the previous calendar year exceeded 100 people must submit tax returns only in electronic form, unless a different procedure for submitting information classified as state secret is provided for by the legislation of the Russian Federation (paragraph 2, paragraph 3, article 80 of the Tax Code RF). All other taxpayers can use any of the above methods for submitting reporting documents.
Information on the average number of employees for the previous calendar year must be provided to all organizations, regardless of their organizational and legal form (letter of the Ministry of Finance of Russia dated March 27, 2008 No. 03-02-07/1-131, Federal Tax Service of Russia dated July 9, 2007 No. CHD-6- 25/536).
In some cases, the Tax Code of the Russian Federation obliges taxpayers to attach the necessary documents to the tax return (calculation). Taxpayers who must submit returns electronically have the right to choose the method of their submission, since the obligation to submit electronically to the tax authority documents attached to the tax return (calculation) is not established by the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated April 13, 2007 No. 03 -02-07/2-69).
No exceptions have been made for the provision of information on the average number of employees to “simplified” and “imputed” employees.
Let us remind you that organizations and individual entrepreneurs have the right to use a simplified taxation system if the average number of employees for the tax (reporting) period does not exceed 100 people (subclause 15, clause 3, article 346.12 of the Tax Code of the Russian Federation). Since the average number of employees is included in the average number of employees (for more details, see below), for such taxpayers the application of a special tax regime means that they automatically comply with the limitation on the average number of employees.
An identical rule to limit the use of UTII exists in Chapter 26.3 of the Tax Code of the Russian Federation: taxpayers whose average number of employees for the previous calendar year exceeds 100 people are not transferred to pay a single tax (subclause 1, clause 2.2, Article 346.26 of the Tax Code of the Russian Federation, as amended by the Federal Law dated 06.25.12 No. 94-FZ “On amendments to parts one and two of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation” (subparagraph “e”, paragraph 21, article 2)). Let us note that until the beginning of this year, there was a limit on the average number of employees for “imputed workers”.
Therefore, it is logical to believe that for organizations and individual entrepreneurs carrying out only types of activities that are transferred to the payment of UTII, the average number of employees for the previous calendar year definitely did not exceed 100 people.
Despite the above, tax authorities do not exclude “simplified” and “pure” “imputed” persons from the persons required to submit the information in question.
It would seem, what is the point of providing this information to individual entrepreneurs who in 2012 used the simplified tax system based on a patent? After all, using the patent “simplification”, they had to comply with the restriction on attracting hired workers to business activities, including under civil contracts: the average number of such workers should not exceed five people for the tax period (clause 2.1 of Article 346.25. 1 of the Tax Code of the Russian Federation). In addition, the obligation to submit to the tax authority a declaration on the tax paid in connection with the use of the simplified taxation system was not established for them (clause 11 of Article 346.25.1 of the Tax Code of the Russian Federation).
Let us note that the rule regarding the absence of an obligation to submit a tax return to the tax authorities for taxes paid in connection with the use of a patent taxation system has been preserved in Chapter 25.5 “Patent taxation system” of the Tax Code of the Russian Federation, which entered into force on January 1, 2013 (Article 346.52). Tax Code of the Russian Federation). The average number of employees at which an individual entrepreneur has the right to use it has increased slightly: it should not exceed 15 people during the tax period for all types of business activities carried out by him (Clause 5 of Article 346.43 of the Tax Code of the Russian Federation).
The Russian Ministry of Finance clearly believes that all taxpayers - individual entrepreneurs are required to submit this information to the tax authority within the prescribed period. And the officials justified their position by the fact that the mentioned paragraph 3 of Article 80 of the Tax Code of the Russian Federation does not provide for the exemption of individual entrepreneurs, including those who do not have employees, from submitting such information to the tax authority within the prescribed period (letter of the Ministry of Finance of Russia dated March 20, 2012 No. 03 -02-08/2320, dated 02/03/12 No. 03-02-08/9).
The Ministry of Finance of Russia cited the same thesis in letter No. 03-02-07/1-178 dated July 17, 2012, justifying the need to submit information to the tax authorities about the average number of employees by an organization that did not have hired employees.
Officials strongly recommend submitting the information in question to non-profit organizations, including garage and construction cooperatives (letter of the Ministry of Finance of Russia dated 06/09/12 No. 03-02-08/50).
Let us note that at the beginning of last year, financiers informed that the Federal Tax Service of Russia, with the participation of the Ministry of Finance of Russia, was preparing a draft order to amend the order of the Federal Tax Service of Russia dated March 29, 2007 No. MM-3-25/174, which approved the form “Information on the average headcount for the previous calendar year." At the same time, the issue of indicating in the recommendations for filling out the form information on the average number of employees (given in the appendix to the letter of the Federal Tax Service of Russia dated April 26, 2007 No. ChD-6-25/353) persons in respect of whom this order will not apply, in particular individual entrepreneurs who do not have hired employees (letters from the Ministry of Finance of Russia dated 03/20/12 No. 03-02-08/23, dated 03/20/12 No. 03-02-08/24). Unfortunately, at the time of signing the issue, the original editions of both the order and recommendations for filling out are still in effect.
It follows from the above that information on the average number of employees for the previous year is required to be submitted to the tax authority by all organizations and individual entrepreneurs, regardless of what taxation regime they apply and whether they have employees.
Calculation algorithm
The legislator in the mentioned paragraph 3 of Article 80 of the Tax Code of the Russian Federation did not make any additional references to the procedure for determining the average number of employees. In the given standards for limiting the average number of employees of the “simplified” and “imposed” workers, reference is made to the procedure established by the federal executive body authorized in the field of statistics. Such a federal body, according to Decree of the Government of the Russian Federation dated June 2, 2008 No. 420, is Rosstat (clause 1 of the Regulations on the Federal State Statistics Service).
The average number of employees as of the established date was proposed to be determined by the mentioned recommendations on the procedure for filling out the information form in accordance with the Procedure for filling out and submitting the federal state statistical observation form No. 1-T “Information on the number and wages of employees by type of activity” (approved by the resolution of Rosstat dated 09.10.06 No. 56). Currently, this form is approved by Rosstat order No. 407 dated July 24, 2012.
The average number of employees for the year in accordance with paragraph 3 of the instructions for filling out this form of federal statistical observation is determined by summing the average number of employees for all months of the reporting year and dividing the resulting amount by 12.
The average number of employees per month is calculated by summing the number of employees for each calendar day of the month, that is, from the 1st to the 30th or 31st (for February - to the 28th or 29th), including holidays ( non-working days) and weekends, and dividing the resulting amount by the number of calendar days of the month.
The procedure for determining the average number of employees per month is described in more detail in the Instructions for filling out federal statistical observation forms: No. P-1 “Information on the production and shipment of goods, No. P-3 “Information on the financial condition of the organization,” No. P-4 “Information on the number, wages and movement of workers”, No. P-5 (m) “Basic information about the activities of the organization” and in the Instructions for filling out the federal statistical observation form No. PM “Information on the main indicators of the activities of a small enterprise” (approved by orders of Rosstat from 24.10.11 No. 435, dated 30.12.11 No. 531, respectively, hereinafter - instructions No. P-4, instructions No. PM).
Calculation of the average number of employees for a month is made on the basis of a daily record of the number of employees according to the employee working time sheet (forms No. T-12 and T-13). The payroll number is clarified on the basis of orders for hiring (Form No. T-1), termination of an employment contract (Form No. T-8), transfer of workers to another job (Form No. T-5) and granting leave (Form No. T-6 , all of the listed forms are approved by Resolution of the State Statistics Committee of Russia dated 01/05/04 No. 1). The number of employees on the payroll for a weekend or holiday (non-working) day is taken to be equal to the number of employees on the payroll for the previous working day. If there are two or more weekends or holidays (non-working) days in a row, the number of payroll employees for each of these days is taken to be equal to the number of payroll employees for the working day preceding the weekend and holiday (non-working) days.
The list of employees includes employees who worked under an employment contract and performed permanent, temporary or seasonal work for one day or more, as well as working owners of organizations who received wages in this organization.
The list of employees for each calendar day takes into account both those actually working and those absent from work for any reason. The list of employees who are included in the payroll in whole units is given in paragraph 11 of instructions No. MP. In particular, this list includes:
• those who actually showed up for work, including those who did not work due to downtime;
• those who were on business trips, if they retain their salary in this organization, including employees who were on short-term business trips abroad;
• those who did not show up for work due to illness or in connection with the performance of state or public duties;
• hired with a probationary period;
• sent away from work to educational institutions to improve their skills or acquire a new profession (specialty), if their salary is maintained;
• those on annual and additional leave provided in accordance with the law, collective agreement and employment contract, including those on leave followed by dismissal;
• those who received a day of rest for working on weekends or holidays (non-working days);
• hired to replace absent employees (due to illness, maternity leave, child care leave);
• who, with the permission of the administration, were on leave without pay for family reasons and other valid reasons;
• those who committed absenteeism.
Paragraph 12 of instructions No. MP provides a list of persons who are not included in the payroll. In particular, these include the following persons:
• hired part-time from other organizations;
• those who performed work under civil contracts;
• transferred to work in another organization, if their wages are not maintained, as well as those sent to work abroad;
• sent by organizations to study at educational institutions outside of work, receiving a scholarship at the expense of these organizations;
• with whom an apprenticeship agreement for vocational training has been concluded with a stipend paid during the apprenticeship period.
Note that an employee on the payroll and
• issued additionally for half-time or full-time;
• registered as an internal part-time worker;
• with whom a civil law contract has been concluded - is taken into account in the payroll as one person (a whole unit).
However, not all employees who are included in the payroll are included in the average payroll. These, in particular, include (clause 13.1 of instructions No. MP):
• women who were on maternity leave, persons who were on leave in connection with the adoption of a newborn child directly from a maternity hospital, as well as on additional leave to care for a child;
• employees studying in educational institutions and on additional leave without pay, as well as those entering educational institutions who were on leave without pay to take entrance exams in accordance with the legislation of the Russian Federation.
The opposite situation is also possible: persons who are not on the payroll must be counted in the average payroll as whole units based on the days they report to work. This applies to persons recruited to work under special contracts with government organizations for the provision of labor (military personnel and persons serving sentences of imprisonment).
Example 1
The number of employees of the organization as of December 30, 2011 (the last working day of this year) was 98 people. On January 16, 20, 26 and 30, 2012, the organization hired 3, 2, 4 and 3 people, respectively, and on January 12, 19 and 24, 2, 1 and 3 people left, respectively. As of December 30, 4 employees were on maternity leave, 2 employees studying at a university took additional leave without pay from January 16.
Data on the organization's payroll for each calendar day of January 2012 are shown in Table 1.
The total number of man-days worked by the organization’s employees in January was 2882 man-days. (93 + 93 + 93 + + … + 94 + 96 + 96). Based on this, the average headcount of the organization for this month will be 93 people. (92.97 (2882 person days : 31 days)).
By agreement between the employee and the employer, a part-time working day can be established (Article 93 of the Labor Code of the Russian Federation). The parties have the right to establish this mode of operation both when concluding an employment contract and subsequently when the employee submits a corresponding application. When determining the average number of employees, such persons are taken into account in proportion to the time worked.
The algorithm for determining the average number of this category of workers is as follows. First, the total number of man-days worked by these employees is calculated. To do this, the total number of man-hours worked by them in the reporting month is divided by the length of the working day based on the length of the working week:
• by 8 hours (with a five-day working week) or by 6.67 hours (with a six-day working week) - with a 40-hour working week;
• for 7.2 hours or for 6 hours - with a 36-hour working week;
• for 4.8 hours or for 4 hours - with a 24-hour work week.
Dividing the resulting value by the number of working days according to the calendar in the reporting month, we arrive at the average number of part-time workers for the reporting month in terms of full employment (clause 13.3 of instructions No. MP).
Continuation of example 1
Let’s add a condition: the organization has established a normal work schedule - a five-day week with a normal working week of 40 hours (Article 91 of the Labor Code of the Russian Federation). Eight employees perform their functional duties part-time. The working day for one of them is 3 hours, for two - 4 hours, for three - 5 hours, and for the remaining two - 6 hours. In January 2012, they all worked 16 working days.
The first employee worked 48 hours in January (3 hours/day x 16 days), two who worked 4 hours a day worked 64 hours (4 hours/day x 16 days), three worked 80 hours each. (5 hours/day x 16 days), the remaining two - 96 hours (6 hours/day x 16 days). Dividing the total number of hours they worked, 608 man-hours (48 hours x 1 person + 64 hours x 2 people + + 80 hours x 3 people + 96 hours x 2 people), by the duration of daily work, 8 hours /day, we get the total number of man-days worked by them in January. These turned out to be 76 person-days. (608 person-hours: 8 hours/day). Based on this, the average number of part-time workers in January is 5 people. (4.75 (76 person-days: 16 days)).
Note that persons who worked part-time at the initiative of the employer are counted in the average number of employees as whole units. Similarly, employees who, in accordance with the legislation of the Russian Federation, have reduced working hours, including disabled people, are taken into account as whole units.
The set of values of the average number of persons who work full-time and part-time gives the value of the average number of employees of the organization for the month.
End of example 1
We use the data obtained in the first and second parts of the example: the average number of full-time employees of the organization is 93 people, part-time - 5 people.
Consequently, the average number of employees of the organization for January 2012 was 98 people. (93 + 5).
The average number of employees for the year, as mentioned above, is determined as the quotient of dividing the total values of the average number of employees for all months of the reporting year by their number in the year - 12.
Example 2
Let's add the condition of example 1: data on the average number of employees for 2012 are given in Table 2.
Although in the fourth quarter of 2012 the average monthly number of employees exceeded 100 people, its value for the year was 99 people. (98.92 people ((97 people + 98 people + 96 people + 94 people + + 93 people + 98 people + 98 people + 97 people + + 100 people + 102 people + 105 people + + 109 people) : 12)). And it does not exceed the threshold level established by the legislator of 100 people. (99 < 100). Therefore, the organization has the right to choose the method of submitting tax returns (calculations) - on paper or electronically.
The calculated value is 99 people. When filling out the form, the organization indicates information about the average number of employees for the previous calendar year.
Form and format of presentation
Information on the average number of employees for the previous calendar year can be submitted, like tax returns, on paper or electronically.
As mentioned above, when presenting the information in question on paper, the form approved by the aforementioned order of the Federal Tax Service of Russia No. MM-3-25/174 is used. The document presented states:
• INN and KPP of the taxpayer, as well as the full name of the organization (TIN, last name, first name, patronymic of an individual entrepreneur);
• name of the tax authority to which the information is submitted and its code;
• the average number of employees, as well as the date as of which this indicator was calculated. Since the information is presented for the previous calendar year, the fields “day”, “month”, “year” indicate January 1, 2013, namely “01”, “01”, “2013”.
The accuracy and completeness of the information provided is confirmed by the head of the organization (individual entrepreneur) or a representative of the taxpayer. If the head of the organization signs, then his last name, first name and patronymic are indicated, the signature is certified by the seal of the organization, and the date of signature is indicated. If the information is submitted by an individual entrepreneur, then he puts his signature and indicates the date of signing.
When confirming the accuracy and completeness of the information, the organization representing the taxpayer puts the signature of the head of the authorized organization, which is certified by the seal of the organization, and the date of signing is affixed. When confirming the accuracy and completeness of information by an individual - a representative of the taxpayer, the individual’s signature is affixed and the date of signing is indicated. The name of the document confirming the authority of the representative is also indicated, and a copy of this document is attached.
When submitting a document electronically, the format used for presenting information on the average number of employees for the previous calendar year in electronic form (based on XML) (version 4.01), part LXXXII (approved by order of the Federal Tax Service of Russia dated July 10, 2007 No. MM-3-13/421 ).
Liability for failure to provide
Failure to submit information on the average number of employees before January 21, 2013 will be classified by the fiscal authorities as failure to submit information necessary for tax control within the prescribed period. Responsibility for such an offense is provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation. According to this norm, penalties in this case are 200 rubles. (letter of the Ministry of Finance of Russia dated 06/07/11 No. 03-0207/1-179).
Arbitration practice on this issue is ambiguous.
Thus, the judges of the Federal Antimonopoly Service of the Volga District considered that the obligation to provide information on the average number of employees for the previous calendar year was assigned to all taxpayers, regardless of whether it was an organization or an individual entrepreneur.
In the resolution of the FAS of the Volga District dated May 17, 2012 No. A12-16770/2011 (the decision of the Supreme Arbitration Court of the Russian Federation dated August 17, 2012 No. VAS-10686/12 refused to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the manner of supervision), they supported the tax inspectorate, whose decision an individual entrepreneur was brought to tax liability for failure to provide zero information on the average number of employees for the calendar year.
In concluding that the entrepreneur has an obligation to provide the inspection with the information in question for the previous calendar year, despite the absence of employees, the court of first instance was guided by the provisions contained in subparagraph 6 of paragraph 1 of Article 23 and paragraph 3 of paragraph 3 of Article 80 of the Tax Code of the Russian Federation. The specified paragraph of Article 80 of the Tax Code of the Russian Federation does not provide for the failure to submit to the tax authority by taxpayers - individual entrepreneurs who do not have employees, information about the average number of employees. Based on this, the judges came to the conclusion that the actions of the entrepreneur constituted a tax offense, liability for which is provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation. In this regard, the court did not establish any grounds indicating the illegality of the disputed decision of the inspectorate.
In another resolution of the FAS of the Volga District, dated January 31, 2012 No. A12-10269/2011 (the decision of the Supreme Arbitration Court of the Russian Federation dated April 13, 2012 No. VAS-4673/12 refused to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the manner of supervision), the actions of tax officials, those who have drawn up an act on the discovery of facts indicating tax offenses provided for by the Tax Code of the Russian Federation, on the basis of Article 101.4 of the Tax Code of the Russian Federation (applied in the case of independent detection by the inspectorate of facts of tax offenses and recording them in the act), are recognized as legitimate.
The judges of the Federal Antimonopoly Service of the Central District, based on an analysis of the totality of the provisions of paragraphs 2 and 3 of paragraph 3 of Article 80 of the Tax Code of the Russian Federation, considered that the code does not directly establish the obligation of taxpayers who are not employers (who do not have employees) to submit to the tax authority information on the average number of non-existent employees . Taking this into account, they considered the actions of the trial court and the appellate court lawful, which satisfied the application of an individual entrepreneur to invalidate the decision of the fiscal authorities to bring him to tax liability under paragraph 1 of Article 126 of the Tax Code of the Russian Federation for failure to provide information on the average number of employees for the previous calendar year (FAS resolution Central District dated April 16, 2012 No. A09-6084/2011).
In the situation under consideration, the violator may also be brought to administrative liability under paragraph 1 of Article 15.6 of the Code of Administrative Offenses of the Russian Federation. Failure to submit within the time limit established by the legislation on taxes and fees (or refusal to submit) documents drawn up in the prescribed manner and (or) other information necessary for tax control entails the imposition of an administrative fine:
• for citizens - in the amount of 100 to 300 rubles;
• for officials - from 300 to 500 rubles.
Tax authorities, as is known, have the right to suspend transactions on taxpayer accounts in the manner prescribed by the Tax Code of the Russian Federation (subclause 5, clause 1, article 31 of the Tax Code of the Russian Federation). Suspension of transactions on an account means the bank’s termination of all debit transactions on this account, unless otherwise provided by paragraph 2 of Article 76 of the Tax Code of the Russian Federation. It happens that they try to make such a decision for failure to provide information on the average number of employees.
In this case, the arbitration courts oppose the tax authorities. Since the suspension of transactions on bank accounts applies:
• to ensure the execution of a decision to collect a tax, fee, penalty and (or) fine (clause 1 of Article 76 of the Tax Code of the Russian Federation) or
• in the event that this taxpayer-organization fails to submit a tax return to the tax authority within 10 days after the expiration of the established deadline for submitting such a declaration (clause 3 of Article 76 of the Tax Code of the Russian Federation).
Information on the average number of employees, the obligation to submit which is provided for in paragraph 3 of clause 3 of Article 80 of the Tax Code of the Russian Federation, is not a tax return. The possibility of suspending transactions on taxpayer bank accounts for failure to provide information submitted in addition to the tax return is not provided for by the Tax Code of the Russian Federation (resolutions of the Federal Antimonopoly Service of the Moscow District dated March 12, 2009 No. KA-A40/1265-09, dated March 2, 2009 No. KA-A40/1026 -09, dated 02.25.09 No. KA-A40/603-09, dated 01.29.09 No. KA-A40/13357-08).
Mid-year reporting
It was stated above that newly created (including during reorganization) organizations during the calendar year, the number of employees of which exceeds 100 people, must send tax returns (calculations) to the tax authority in established formats in electronic form. In this regard, all newly created organizations are required to provide information on the average number of employees. And they need to submit such information no later than the 20th day of the month following the month in which the organization was created (reorganized). In this case, when filling out the approved form, indicate the first day of the month following the date of their registration.
In most cases, the registration of a new organization does not coincide with the first day of the month. The average number of employees in organizations that worked for less than a full month is determined by dividing the total number of employees on the payroll for all days of operation of the organization in the reporting month, including weekends and holidays (non-working days) for the period of work, by the total number of calendar days in the reporting month (p 13.7 instructions No. MP).
Example 3
On November 7, 2012, the organization formed as a result of the reorganization of a legal entity was registered. The number of employees on the organization's payroll this month is shown in Table 3.
The amount of man-days worked by payroll employees in November, subject to inclusion in the average payroll, amounted to 3,095 man-days. (114 + 114 + … + 136 + 136), the calendar number of days in this month is 30, based on this, the average number of employees for the month was 103 people. (103.17 (3095 person-days: 30 days)).
Let us turn once again to paragraphs 2 and 3 of paragraph 3 of Article 80 of the Tax Code of the Russian Federation. In introducing the obligation to submit declarations electronically for newly created organizations, the legislator used the concept of “number of employees.” There is no decoding of such a concept either in instructions No. MP or instructions No. 4-P. Both of these instructions state that the number of employees on the payroll for each day must correspond to the data in the employee working time sheet, on the basis of which the number of workers who showed up and did not show up for work is established (paragraph 5, paragraph 10 of instructions No. MP, paragraph 4 clause 78 of instructions No. 4-P).
If we take this as the basis for determining the number of employees, it turns out that tax returns must be submitted electronically to newly formed organizations that, as of the last day of the first month of their activity, have more than 100 employees on their payroll.
At the same time, these organizations are required to provide information on the average number of employees no later than the 20th day of the month following the month in which the organization was created (reorganized). The tax authorities also recalled this in the mentioned letter of the Federal Tax Service of Russia No. CHD-6-25/353. This letter conveyed to lower tax authorities recommendations for filling out the information form. They, in turn, were instructed to bring recommendations to taxpayers.
In the line “Average number of employees as of...”, the fiscal authorities recommended indicating the average number of employees of an organization (individual entrepreneur) as of January 1 of the current year, for the previous calendar year. Unfortunately, there was no clarification for newly formed organizations.
Newly formed organizations, in our opinion, should use this line to show the average number of employees as of the 1st day of the second month of operation, that is, for the first month of operation.
End of example 3
Since the organization was formed in November 2012, it indicates “12/01/2012” and “103” people in the information form. She was required to submit this form no later than December 20, 2012.
Registration of a legal entity on November 7 means that the first tax period for it for taxes for which the tax period is a calendar year is the period from the date of creation to the end of the given year (Clause 2 of Article 55 of the Tax Code of the Russian Federation), that is, from November 7 until December 31, 2012.
It follows from this that the organization must submit tax returns for VAT for the fourth quarter of 2012 and income tax for 2012 in electronic form. If an organization, in addition, has an obligation to submit tax returns for other taxes, the tax periods for which are a month, a quarter and a calendar year, then they must be sent to the tax office in electronic form.
If the organization operated for an incomplete year (was created after January), then when calculating the average number of employees for the year, the value of the denominator in the fraction, 12, does not change, but the numerator sums up the values of the average number of employees for all months of the organization’s operation (clause 13.8 of procedure No. MP ).
Example 4
Let’s add the conditions of example 3: the average number of employees for December is 221 people.
Although in each month of the organization’s business activity in 2012 its average headcount exceeded 100 people, the value of this number for the year will be only 27 people. ((103 people + 221 people) : 12).
She indicates this value in the corresponding field of the information form for 2012.
And this means that in 2013 the organization has the right to choose in what form to send tax returns to the fiscal authorities - on paper or electronically.
In paragraph 3 of paragraph 3 of Article 80 of the Tax Code of the Russian Federation, as can be seen, two norms are established: general for all taxpayers for submitting information for the year and special for newly formed organizations for submitting information after the first month of business activity. But registration of a legal entity can occur in December. And the end of the first month of the organization’s entrepreneurial activity coincides with the end of the calendar year. In this case, the taxpayer must comply with the special norm for newly formed organizations and provide information on the average number of employees for December.
It was stated above that restrictions for “simplers” and “imputers” on the application of the corresponding special tax regime are established based on the average number of employees. According to paragraph 9 of instructions No. MP and paragraph 77 of instructions No. 4P, this value is defined as the totality of:
• average number of employees;
• average number of external part-time workers;
• the average number of employees performing work under civil contracts.
In this case, the average number of external part-time workers is calculated in accordance with the procedure for determining the average number of people working part-time (clause 14 of instructions No. MP). The average number of persons (including foreign citizens) who performed work under civil contracts, the subject of which is the performance of work and the provision of services, per month is calculated according to the methodology for determining the average number. These employees are counted for each calendar day as whole units throughout the entire contract period, regardless of the period of payment of remuneration. The number of employees for the previous working day is taken as a weekend or holiday (non-working day) (clause 15 of instructions No. MP).
Organizations whose physical indicator is the number of employees must also determine the average number of employees for each calendar month of the tax period (paragraph 35 of Article 346.27 of the Tax Code of the Russian Federation). That is, when determining this physical indicator, all individuals are taken into account, including those working part-time and with whom civil contracts have been concluded for the performance of work and the provision of services.
Ilya OGUDIN, auditor
