Current clarifications on the issue of illegality of submitting UTII declarations with “zero” indicators

Features of the UTII declaration

A UTII declaration is, in essence, a statement from the taxpayer about why he chose this taxation regime and what indicators he uses when calculating the tax. If a taxpayer pays UTII, he is obliged to submit a declaration for this tax (subclause 4, clause 1, article 23, clause 1, article 80 of the Tax Code of the Russian Federation).

At the same time, imputed income, which is the object of taxation under this regime, is calculated based on potentially possible, and not actually received, income (paragraph 2 of article 346.27, paragraph 1 of article 346.29 of the Tax Code of the Russian Federation). Consequently, the tax return must be completed taking into account possible income.

The presence or absence of real income of the “imputed” person does not affect the amount of UTII. In any case, the tax must be calculated on the basis of available physical indicators.

Thus, the UTII payer must pay a single tax, calculated in the declaration based on physical indicators.

Zero reporting of individual entrepreneurs on the simplified tax system

Even if an entrepreneur does not conduct business, he submits a declaration under the simplified tax system within the prescribed period and in the prescribed form. The difference between zero reporting and regular reporting is that dashes are indicated in the fields in which digital indicators should appear. Tax officials should know that the individual entrepreneur did not submit a declaration and did not pay taxes due to the fact that he did not conduct business activities, and he does not conceal income.

Individual entrepreneurs are often confused between two situations in which there was no activity and when they have no income. For example, if an entrepreneur finds himself in the red while running a business, he must submit a declaration not zero, but with specific indicators. The book of income and expenses of an individual entrepreneur is filled out even if all its indicators are zero. This is required so that in the future the request of the tax authorities can be satisfied.

Lack of activity by the “imputed” person is not a reason to submit a zero declaration

If the “imputed” person has ceased to conduct business, he needs to write an application to the tax office about deregistration as a UTII payer.

Look for forms in the article “Deregistration of UTII: conditions and terms.”

Without such an application, he will have to submit a UTII declaration, completed and with the tax calculated for payment. Since the taxpayer still has physical indicators, this is considered the basis for calculating imputed income and, accordingly, tax.

Filing a zero UTII declaration in this situation is illegal. This is the unanimous position of officials and judges (see letters of the Ministry of Finance dated July 2, 2012 No. 03-11-11/196, dated February 10, 2012 No. 03-11-06/3/8, resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 23, 2013 No. F03- 6469/2013, left in force by the Determination of the Supreme Arbitration Court of the Russian Federation dated February 26, 2014 No. VAS-1903/14).

How not to pay UTII if your business is stopped due to coronavirus, find out in the material from ConsultantPlus. If you do not already have access to this legal system, a full access trial is available for free.

Zero reporting of individual entrepreneurs on the OSN

The above-mentioned declarations of individual entrepreneurs on the OSN must be submitted within the prescribed period. The formation of a book of income and expenses occurs according to the general scheme provided for all individual entrepreneurs. You should also know that VAT returns are provided electronically. This requirement applies even if the entrepreneur files a zero declaration.

If an individual entrepreneur has not previously been engaged in conducting business (there are no transactions or movements on his current account), then he has the right not to send reporting documents electronically. In this case, it will be sufficient to fill out a single simplified declaration, which is sent in any form, both electronic and on paper.

A single declaration on the OSN is considered as a replacement for VAT reports, while the entrepreneur retains the obligation to submit 3-NDFL. If there is a strong desire, it is possible to replace the individual entrepreneur’s reporting on the simplified tax system (in the absence of income and movements in the current account) with a single simplified declaration. However, in terms of the time spent filling out a single simplified declaration, this method can be compared with a regular zero report under the simplified tax system.

There are no physical indicators: is it possible to submit a zero declaration?

If the UTII payer does not conduct business due to the loss of physical indicators (for example, when carrying out retail trade, he terminates the lease agreement for his retail space), when submitting the declaration, one must be guided by the explanations of the regulatory authorities. And they are ambiguous.

Thus, the Ministry of Finance insists that the filing of zero declarations on UTII is not provided for by the legislation of the Russian Federation. In his opinion, the “imputed person” must submit to the tax authorities a declaration with the amount of tax calculated for payment, even in the absence of physical indicators (letters dated 04/15/2014 No. 03-11-09/17087, dated 07/03/2012 No. 03-11-06/ 3/43).

In this case, the Ministry of Finance, in letter No. 03-11-09/53916 dated October 24, 2014 (hereinafter referred to as letter No. 03-11-09/53916), proposes to fill out a declaration based on the indicators specified in the last UTII declaration submitted to the tax authorities. This letter also provides an example of the procedure for filling out the declaration. So, if it is impossible to indicate in the declaration a physical indicator for the first month of the quarter (the lease agreement for the retail space was terminated), this indicator must be taken from the last submitted declaration. In the next months of the quarter, when the lease agreement has already been concluded, the indicators are reflected on the basis of the new agreement. Thus, physical indicators must be indicated in the UTII tax return for each month of the quarter.

The Federal Tax Service indicates the following: if the ownership or use of property necessary for this activity is terminated, then there are no physical indicators for calculating UTII. In this case, the amount of UTII payable for the corresponding tax period will be 0 rubles (see Information dated September 19, 2016).

You can learn about the calculation of physical indicators in retail trade from the material “How to calculate the area of ​​a sales floor for the purposes of applying UTII?”.

Unified income tax declaration: deadline and procedure for submission

If you are an imputed person, then you must submit a tax return to the tax authority within the prescribed period. The document is required to be provided; a fine is provided for late submission of the declaration (or absence thereof).

Declaration form

When submitting UTII tax returns, you need to fill out the declaration form in the prescribed form, indicating the following basic data:

• Information about you as a taxpayer (name of organization/full name of individual entrepreneur, TIN code, contact phone number);
• The type of activity you conduct (code according to the KVED classifier);
• Codes for the reorganized organization;
• Information about the taxpayer's representative - for organizations. Individual entrepreneurs fill out this column if the declaration is submitted through a proxy;
• Confirmation of document acceptance (date, full name, signature of the Federal Tax Service officer).

Next, you need to fill in information about the type of activity (code), indicate data for calculating tax (return per unit of physical indicator, coefficients), carry out the calculation directly and indicate the amount of tax to be paid. If, as part of the “imputation”, you pay tax on several types of activities, then in the declaration you need to indicate the amount of payment for each type.

Deadline and procedure for filing a declaration

The law obliges “imputed” persons to submit a declaration quarterly, the same frequency is provided for paying taxes to the budget. The reporting document must be submitted to the fiscal service at the end of the quarter, before the 20th day of the next month (for the 1st quarter of 2021 - before 04/20/17). You are given another 5 days to transfer the tax amount to the budget (for the 1st quarter of 2021 - until 04/25/17).

You can submit a document in any way convenient for you:

• Contact the INFS in person;
• Send the papers by mail, filling out a letter with notification and a list of attachments;
• Submit the package of documents through a representative, having previously issued a notarized power of attorney;
• By sending the document electronically, using the Internet resource of the Federal Tax Service (registration on the Federal Tax Service website, submitting the form through the “Personal Account”).

What are the risks of filing a zero UTII return to the tax authorities?

Based on the inconsistency of the above explanations, as well as established judicial practice, filing a zero UTII return is fraught with claims from the tax authorities.

Inspectors, following the explanations from letter No. 03-11-09/53916, will most likely charge additional tax based on the physical indicators given in the last submitted UTII declaration. In addition, they will charge penalties for late payment of taxes and may impose fines.

If the taxpayer’s physical indicators are preserved, then according to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157, the court decision will definitely be in favor of the tax authorities. In the absence of physical indicators, you can try to challenge the additional assessed tax amounts, but there is no guarantee that the court will side with the taxpayer. As examples of disputes won by taxpayers, let us cite, perhaps, the resolution of the Arbitration Court of the West Siberian District dated August 17, 2016 No. F04-3635/2016 and resolution 12 AAS dated November 21, 2014 3 A12-15103/2014.

Deduction by cash register

This section is completely new and was introduced to “decipher” the deduction for cash registers. Each block of lines 010-050 contains information about one cash register:

1. Name.
2. Factory number.
3. Registration number with the Federal Tax Service.
4. Registration date.
5. Purchase costs (within the established limit of 18,000 rubles per unit of cash register).

In our case, dashes are placed in all lines of the section.

Application for deregistration - solution to the problem

The most reliable way to avoid a conflict with regulatory authorities is to submit to the inspectorate, in the absence of activity, an application for deregistration as a UTII payer. Then no declarations will be required - neither zero, nor with accrued taxes.

You can read about how a taxpayer is deregistered in the article “What is the procedure for deregistering a UTII payer who has ceased activity?”

Many letters from officials and judicial acts were issued before 2013, when taxpayers were required to apply UTII if their activities met the criteria of this regime (Chapter 26.3 of the Tax Code of the Russian Federation). But it can be assumed that the conclusions made in these letters and decisions regarding the submission of a non-zero or zero UTII declaration in the absence of activity have not lost their relevance at the present time.

Zero tax calculation

This part of the report calculates the total tax amount for all OKTMO and types of activities, taking into account deductions. In section 3, line 040 was added in the new form, reflecting the “cash” deduction.

1. Line 005 indicates the taxpayer's characteristics. Attribute “1” is assigned if the “imputer” makes payments to individuals. If the taxpayer is an entrepreneur without employees, then characteristic “2” corresponds to him.
2. Line 010 reflects the total amount of accrued UTII from all sections 2, i.e. in our case - zero.
3. Lines 020 and 030 contain the amounts of insurance premiums and other payments paid for employees and for themselves (for individual entrepreneurs), which reduce the amount of UTII payable. If such payments were made during the period, then they can be indicated in these lines for reference.
4. Line 040 reflects the amount of deduction for the purchase of cash registers. It is unlikely that a businessman who has suspended work will buy a new cash register, so in this case we indicate zero.
5. Line 050 contains the amount of tax payable, taking into account deductions. Even if lines 020 – 040 contain non-zero indicators, line 050 still needs to be set to zero - the value in it cannot be negative (clause 6, clause 6.1 of the Procedure).

This might also be useful:

• Coefficients K1 and K2 UTII for 2021
• Changes in UTII for individual entrepreneurs in 2021
• UTII for individual entrepreneurs in 2021

• Basic UTII yield in 2021
• Codes of types of entrepreneurial activity UTII
• Calculation of UTII for less than a month in 2021

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Regulations for submitting reports and sanctions for violation

The procedure for submitting a declaration does not depend on whether it is “zero” or not. Clause 3 of Art. 346.32 of the Tax Code of the Russian Federation establishes that the UTII report must be submitted no later than the 20th day after the end of the tax period. Because 10/20/2018 is a Saturday, then taking into account the rules for postponing deadlines, the UTII declaration for the 3rd quarter of 2021 must be submitted no later than 10/22/2018.

But the fine for violating the deadlines for submitting a “zero” report is applied in a special manner. The point is that Art. 119 of the Tax Code of the Russian Federation connects the amount of the fine with the period of delay and the amount of tax payable specified in the declaration. Because in the “zero” report there is no amount to be paid “by definition”, then for any delay the same minimum fine is applied - 1000 rubles.

Also, additional sanctions may be applied for violating the deadlines for filing a declaration.

Firstly, this is an administrative fine in the amount of 300 to 500 rubles, imposed on responsible persons under Article 15.5 of the Code of Administrative Offenses

Also, the tax authority, if there is a delay of more than 10 days, has the right to block the taxpayer’s accounts (clause 3 of Article 76 of the Tax Code of the Russian Federation). And in this case, the fact that the report is “zero” does not matter.

Conclusion

The procedure for filing a zero UTII declaration for the 3rd quarter of 2018 is not clearly regulated by law. Regulatory authorities give conflicting explanations on this matter, so disputes with tax authorities are very likely. The safest solution in case of suspension of activities would be to temporarily withdraw from tax registration under UTII. If the “imputed” person nevertheless decides to submit a “zero” report, then it is better to do this using a new form.

Sources

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