What did the Ministry of Finance say?
Paragraph 2, paragraph 7, art. 226 of the Tax Code of the Russian Federation states that Russian organizations - tax agents (that is, organizations from which or as a result of relations with which the taxpayer received income subject to personal income tax) that have separate divisions are required to transfer calculated and withheld personal income tax amounts to the budget at their location, and at the location of each of its separate divisions. The amount of tax payable to the budget at the location of such a unit is determined based on the amount of income subject to taxation accrued and paid to employees of this separate unit, as well as based on the amount of income accrued and paid under civil contracts concluded with individuals by persons of a separate subdivision (authorized persons of a separate subdivision) on behalf of the organization ( paragraph 3 of the above paragraph).
The payment order for the transfer of tax to the budget for each separate division should indicate the checkpoint assigned to the division upon tax registration at the location, as well as the OKTMO code corresponding to the location of the division (see Letter of the Federal Tax Service of Russia dated October 14, 2016 No. BS-4 -11/ [email protected] ). Moreover, in Letter No. 03‑04‑06/62497 dated October 24, 2016, the Ministry of Finance emphasized: Ch. 23 of the Tax Code of the Russian Federation does not contain rules allowing tax agents with separate divisions to independently choose a division through which personal income tax would be transferred (and therefore the ability to submit calculations of personal income tax amounts).
Definition of a separate division
A division of an enterprise is considered to be separate if it meets a number of criteria (Article 11 of the Tax Code of the Russian Federation):
- physical discrepancy between the location and the main company, i.e. detachment from the head office due to territorial parameters;
- creation of more than 1 workplace, which is stationary and equipped for a period of more than 1 month.
For your information! Territorial branches of an enterprise with a legal status of any type are not recognized as independent legal entities and, accordingly, cannot act as independent taxpayers.
An exception is made for enterprises that apply a simplified tax regime. But for each remote structure, the need to maintain records (tax, accounting) and submit reports is provided.
What to do if an employee has two jobs
If an employee is assigned two jobs at the location of the head office and at the location of a separate division, the company must transfer personal income tax from the income of such an employee to the appropriate budgets both at the location of the head office and at the location of the division, taking into account the time actually worked by the employee. This time is determined on the basis of the working time sheet, based on the data from the employee’s location certificates for the corresponding billing period.
Such recommendations are given in Letter of the Ministry of Finance of Russia dated 03/01/2017 No.
03-04-06/11798
.
When should I notify the inspectorate about choosing a unit to pay personal income tax?
The organization must notify the inspectorate of its choice no later than the 1st day of the tax period.
Taking into account the fact that in 2021 holidays are from January 1st to January 10th, tax authorities must be notified on the first working day, January 11th, 2021.
At the same time, you can pay personal income tax taking into account the selected division starting from 2021.
If an organization plans to continue to transfer personal income tax in subsequent years and submit tax reports in the same manner as in 2021, for example, at the place of registration of the responsible OP, then next year there is no need to submit a notification to the Federal Tax Service.
More on the topic:
Accounting for employees working in several separate departments
Personal income tax in 2021 and 2021 - digest
Tax Agent Responsibility
Well, the fairness of these recommendations is difficult to challenge. The mentioned norms are formulated unambiguously, which excludes their double interpretation. And similar explanations about the procedure for paying personal income tax by organizations that have separate divisions are given by regulatory authorities with enviable regularity (note that in a similar manner, tax agents are required to submit tax reporting for the designated tax - a certificate in form 2-NDFL and calculation in form 6-NDFL) . Let's name some of them: letters of the Ministry of Finance of Russia dated December 23, 2016 No. 03-04-06/77778 , dated October 17, 2016 No. 03-05-06-02/60364 , dated December 7, 2015 No. 03-04-06/71413 , Federal Tax Service Russia dated 09.11.2016 No. BS-4-11/ [email protected] , dated 05.10.2016 No. BS-4-11/ [email protected] .
Meanwhile, the above-mentioned tax norms speak of obligation to transfer tax at the place where income is paid to taxpayers; financiers in their explanations also categorically indicate what tax agents with separate divisions must At the same time, the establishment of any obligation (in the situation under consideration, this is the duty of the tax agent to distribute the tax withheld when paying income to taxpayers) must be accompanied by the establishment of punishment (liability) for its violation.
However, in relation to the duty of a tax agent, defined in paragraph 7 of Art. 226 of the Tax Code of the Russian Federation , no liability measures were introduced by tax legislation .
Organization with separate divisions: rules for reporting personal income tax
If the organization includes separate divisions, then, when preparing reports in Form 2-NDFL as a tax agent, it asks the question: to which tax authority should it be submitted? Officials responded to it. (LETTER OF THE MINISTRY OF FINANCE OF THE RF dated 02/06/13 No. 03-04-06/8-35)
Personal income tax: duties of tax agents
When paying income to employees, the organization (employer) is recognized as a tax agent. The main responsibility of the tax agent is to correctly and timely calculate, withhold personal income tax from employees and transfer it to the budget (subclause 1, clause 3, article 24, clause 1, article 226 of the Tax Code of the Russian Federation), as well as provide information on the amounts of income paid.
As a general rule, the amount of tax calculated and withheld from employees is transferred to the budget at the place where the organization is registered (clause 7 of Article 226 of the Tax Code of the Russian Federation).
It’s another matter if such an organization has separate divisions...
Let us recall that in accordance with paragraph 2 of Article 11 of the Tax Code of the Russian Federation, a division is recognized as separate, which is territorially separated (separated) from the organization and at the location of which stationary workplaces are equipped for a period of more than one month. In this case, the division is considered created, even if this is not reflected in the constituent or other organizational and administrative documents of the company. If stationary jobs are not created at the place of work of employees, a separate division does not arise.
If the company has registered separate divisions, payment of personal income tax on payments to personnel working in these divisions must be made at the location of each of them. This rule follows from paragraph 7 of Article 226 of the Tax Code of the Russian Federation and applies regardless of whether the division has a separate balance sheet or current account.
Moreover, if a separate division is registered in the middle of the month, then personal income tax at the place of its registration is paid in proportion to the share of income accrued to employees during work in such a division (letter of the Federal Tax Service of Russia for Moscow dated December 26, 2007 No. 28-11/124267).
Reporting procedure
Every year, no later than April 1, the tax agent must send to the tax authority at the place of his registration information about the income of individuals and the amounts of taxes accrued and withheld from them for the previous tax period (clause 4 of article 24, clause 2 of article 230 of the Tax Code of the Russian Federation) .
Such information is submitted in form 2-NDFL, approved by order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ-7-3/611. The appendix to this order also contains recommendations for filling it out*.
* The procedure for submitting information on the income of individuals is established in the order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-3-/576.
If there are separate divisions
If an organization has one or more separate divisions, certificates in Form 2-NDFL for employees of such divisions must be submitted at their location. That is, to the tax authorities where these units are registered.
This is the procedure for submitting reports that is mentioned in the commented letter.
According to specialists from the main financial department, the obligation of tax agents to submit information in Form 2-NDFL corresponds with the obligation to pay the total amount of personal income tax withheld from taxpayers. Thus, to which tax authority the tax was paid, reporting should go there.
Consequently, information about the income of employees of a separate division must be submitted to the tax authority at its location.
Note that this is not the first such clarification. Similar conclusions are contained in letters from the Ministry of Finance of Russia dated December 16, 2011 No. 03-04-06/3-348 and dated September 21, 2011 No. 03-04-06/3-229.
However, earlier officials argued that information on the income of all employees can be presented at the place of registration of the parent organization (letter of the Ministry of Finance of Russia dated November 13, 2006 No. 03-05-01-04/312, Federal Tax Service of Russia dated March 13, 2008 No. 04-1-05 /0916).
If the organization is registered as the largest taxpayer
An organization that includes separate divisions can be registered as a major taxpayer.
Then all declarations and calculations are submitted to the inspectorate at the place of its registration as the largest taxpayer. This follows from paragraph 3 of Article 80 of the Tax Code of the Russian Federation.
However, with regard to reporting on personal income tax, specialists from the Federal Tax Service of Russia proposed a special procedure.
In their letter dated December 26, 2012 No. ED-4-3/22280, they indicated two possible options for submitting reports for employees of separate divisions.
First, certificates in form 2-NDFL are submitted to the tax authority at the location of the separate division;
Secondly, they are submitted in a “one window” mode to the tax authority at the place of registration as the largest taxpayer.
Organizations have the right to choose the most convenient method for themselves.
Responsibility for failure to report
If a tax agent has not submitted to the tax authority the documents required by the Tax Code or other legislative acts on taxes and fees, then a fine will be imposed on him.
Its size is 200 rubles. for each document not submitted. This is stated in paragraph 1 of Article 126 of the Tax Code of the Russian Federation.
Published in the journal “Documents and Comments” No. 6, March 2013.
What do the judges think?
The Presidium of the Supreme Arbitration Court drew attention to this circumstance in Resolution No. 14519/08 dated March 24, 2009 in case No. A33-356/2008 . As follows from the materials of this case, both tax authorities and lower courts considered that the transfer by a tax agent (having separate divisions) of personal income tax amounts to a local budget other than that provided for by law indicates his failure to fulfill the obligation established by paragraph 7 of Art. 226 Tax Code of the Russian Federation . In their opinion, excessive payment of taxes to one local budget cannot compensate for the losses of another local budget. And this is the basis for holding the tax agent liable under Art. 123 Tax Code of the Russian Federation . Let us remind you: the composition of a tax offense according to this norm is formed by such acts of a tax agent as unlawful non-withholding and (or) non-transfer ( incomplete withholding and (or) transfer ) within the established period of tax.
The senior arbitrators, recognizing this approach of tax authorities and judges to the interpretation of tax rules as incorrect, drew attention to the fact that a tax offense in the sense of Art. 106 of the Tax Code of the Russian Federation recognizes a guilty wrongful act ( action or inaction ) of a taxpayer, tax agent and other persons, for which liability is defined by this Code. But since the Tax Code does not provide for liability for improper performance by a tax agent of his duties, in particular for violation of the procedure for transferring withheld personal income tax when paying income to employees of departments, there are grounds for holding such an agent liable under Art. 123 of the Tax Code of the Russian Federation no.
We emphasize: since the publication of Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 14519/08, the tax rules defining the procedure for transferring personal income tax by organizations with separate divisions have not undergone any fundamental changes. There were also no additional reservations regarding the budget where the tax should be transferred to the tax agent, and in Art. 123 Tax Code of the Russian Federation . This means that an organization that violates only the procedure for transferring personal income tax on income withheld from the income of employees of separate divisions will formally face no threat. Even if the tax authorities punish her, she has a good chance of challenging the legality of such a punishment. By the way, the presence of this legislative “gap” was recognized by Federal Tax Service specialists in Letter No. BS-4-11/14009 dated 08/02/2013 , and the Ministry of Finance recommended taking into account the existing judicial practice in Letter No. 03‑04‑06/51010 dated 10/10/2014 .
Thus, the Presidium of the Supreme Arbitration Court in Resolution No. 784/13 dated July 23, 2013 in case No. A06-9384/2011 also emphasized that incorrect reflection of the OKATO code in payment documents does not lead to the formation of arrears and cannot be considered as a basis for accruing penalties, since how the tax is transferred to the budget system of the Russian Federation by the tax agent within the prescribed period.
Arbitrators, when considering disputes that have arisen in similar situations, often say that tax authorities, having discovered from a tax agent an overpayment of personal income tax for the parent organization and arrears for separate divisions, must themselves offset the tax based on the results of the tax period (see, for example, the Resolution FAS NWO dated January 31, 2014 No. F07-10789/2013 in case No. A56-72308/2012 ).
At the same time, it would be unfair for us to remain silent about the existence of court decisions in which arbitrators indicate that the error in the distribution of personal income tax between budgets, which arose as a result of incorrect execution of payment orders for the transfer of personal income tax withheld when paying income to employees of separate divisions, should be corrected at the tax authorities. agents, any of the interested parties (including the tax agent) can (see, for example, Resolution of the Arbitration Court of the Moscow Region dated 10/06/2015 No. F05-13213/2015 in case No. A41-43272/14 ).
When can you choose a division to pay personal income tax?
If an organization and its separate divisions are located in the same administrative district, or several separate divisions are located within the same district, you can choose which inspectorate to transfer personal income tax to and submit tax reports in respect of employees of these divisions.
You can select a division for personal income tax payment if:
- the organization and its separate divisions are located in the same district;
- the organization itself is located in one district, and all open separate divisions are in another.
In the first case, you can choose either any department or the organization itself as the responsible department for paying personal income tax.
In the second case, personal income tax can be paid at the place of registration of the responsible unit for all units within the district. In this case, the selected OP is responsible for paying the tax.
Previously on the topic:
Personal income tax from the salary of a remote worker of a separate unit: where to transfer?
Separate divisions: how to pay insurance premiums?
