Loss of the right to the simplified tax system, tax overpayment, assignment of a TIN

Loss of the right to the simplified tax system

1.

You must switch to OSNO from the beginning of the quarter in which you violated the conditions for applying the simplified tax system (clause 4 of article 346.13 of the Tax Code of the Russian Federation).

Within 15 calendar days after the end of this quarter, you must inform the inspectorate about the transition (clause 5 of Article 346.13 of the Tax Code of the Russian Federation).

To do this, submit a message about the loss of the right to use the simplified tax system according to the recommended form N 26.2-2, approved by Order of the Federal Tax Service of Russia dated November 2, 2012 N ММВ-7-3/ [email protected]

From the beginning of the quarter in which you failed the simplified tax system, calculate and pay taxes according to the general taxation system. If you switched from the simplified tax system to OSNO on time, then you will not have to pay fines and penalties for late transfer of taxes and advance payments (clause 4 of article 346.13 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated July 14, 2015 N 03-11-09/40378 ( sent by Letter of the Federal Tax Service of Russia dated August 12, 2015 N GD-4-3/14234)).

In addition, you must pay additional tax according to the simplified tax system for the last period in a “simplified” manner (for example, if you need to calculate the minimum tax). This must be done no later than the 25th day of the month following the quarter in which you lost the right to it (clause 7 of article 346.21, clause 3 of article 346.23 of the Tax Code of the Russian Federation). If the last day of the deadline falls on a non-working day, submit the declaration no later than the next working day (Clause 7, Article 6.1 of the Tax Code of the Russian Federation).

Ready-made solution: How to switch to OSNO if you lose the right to use the simplified tax system (ConsultantPlus, 2020) {ConsultantPlus}

2.

You can submit a message using the form recommended by the Federal Tax Service of Russia, on paper in person (through a representative) or by mail. Or send it electronically via TKS.

Submit the message no later than the 15th day of the month following the quarter in which you lost the right to use the simplified tax system.

It's easy to fill out the form.

Ready-made solution: How to submit a message about the loss of the right to use the simplified tax system (ConsultantPlus, 2020) {ConsultantPlus}

3.

Notice of loss of the right to use the simplified taxation system (form N 26.2-2)

Order of the Federal Tax Service of Russia dated November 2, 2012 N ММВ-7-3/ [email protected] “On approval of document forms for applying the simplified taxation system” {ConsultantPlus}

4.

You must calculate and pay the final single tax for the last period using the simplified tax system no later than the 25th day of the month following the quarter in which you lost the right to the special regime. If you lost your right to the simplified tax system in the middle of the year, your last tax period under the simplified system will coincide with the last reporting period before the quarter in which you “flew” from it (clause 4 of article 346.13, clause 7 of article 346.21, p. 3 Article 346.23 of the Tax Code of the Russian Federation, clause 2 of the Letter of the Federal Tax Service of Russia dated 03/27/2012 N ED-4-3/ [email protected] , Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07/02/2013 N 169/13).

For example, the Alpha organization lost its right to the simplified tax system in the third quarter of 2021. She must calculate and pay the final tax amount according to the simplified tax system for the period from January 1 to June 30 no later than October 26, 2020, because October 25 is a day off.

If you applied the simplified tax system with the object “income minus expenses” and the tax amount for the last tax period was less than 1% of your income, then you need to calculate and pay the minimum tax. In this case, it does not matter which period was the last tax period for you under the “simplified tax system”: a full year or less (clause 2 of the Letter of the Federal Tax Service of Russia dated March 27, 2012 N ED-4-3/ [email protected] , Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 2, 2013 N 169/13).

Starting from the quarter in which you lost the right to “simplified tax”, you must calculate and pay taxes from which you were exempt (clause 4 of Article 346.13 of the Tax Code of the Russian Federation):

income tax and advance payments thereon;

property tax on the average annual value (advance payments);

VAT.

For late payment of monthly payments during the quarter in which you switched to OSN, you do not pay penalties and fines (paragraph 3, paragraph 4, article 346.13 of the Tax Code of the Russian Federation).

advance payments in the same way as newly created organizations (clause 4 of Article 346.13 of the Tax Code of the Russian Federation). For this:

Determine how you will pay advance income tax payments.

Please note that you do not need to pay monthly advance payments during the quarter in which you lost your right to the simplified tax. You will not face penalties and fines for non-payment (clause 5 of Article 287, clause 6 of Article 286, clause 4 of Article 346.13 of the Tax Code of the Russian Federation);

determine the first period for which you need to make an advance payment;

calculate the advance payment based on the profit received in the first income tax period and submit a declaration.

For example, if you lost your right to the simplified tax system in the third quarter, you need to calculate advance payments based on the profit received in the third quarter and submit a declaration for nine months.

income tax at the end of the year in the general manner: as the product of the tax base and the rate minus advance payments (clause 1 of Article 286, clause 1 of Article 287 of the Tax Code of the Russian Federation).

Ready-made solution: How to calculate taxes during the transition period when switching from the simplified tax system to the special tax system (ConsultantPlus, 2020) {ConsultantPlus}

5.

Charge VAT on all taxable transactions starting (clauses 4, 6, Article 346.13 of the Tax Code of the Russian Federation):

The 1st day of the quarter in which you lost your right to special treatment.

So, you need to charge VAT if after this date you (clause 4 of article 166, clause 1 of article 167 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated May 24, 2018 N 03-07-11/35126):

received an advance against the upcoming delivery. You can then deduct this tax (clause 8 of Article 171, clause 6 of Article 172 of the Tax Code of the Russian Federation);

shipped goods, performed work, provided services (even if you received an advance payment for delivery during the period of application of the simplified tax system).

If you receive payment for a supply that occurred during the period of application of the simplified tax system, you do not need to charge VAT on its amount.

Also, after switching to OSN, you need to issue invoices (including when receiving advances), register them in the sales book (clause 3 of article 168, clause 3 of article 169 of the Tax Code of the Russian Federation, clause 1 of the Rules for maintaining the sales book) . If the right to the simplified tax system is lost during the quarter, this must also be done for those transactions that occurred from the beginning of the quarter until the moment of loss.

For example, if an organization lost the right to the simplified tax system in August, then for transactions from July 1 it is necessary to charge VAT, issue invoices and register them in the sales book.

We recommend that you contact your counterparty with a proposal to conclude an additional agreement. In it you will indicate the new price of goods (works, services, property rights) including VAT. However, if the counterparty refuses to adjust the price, you will have to charge VAT on top of the price and pay the tax from your own funds.

If you applied the simplified tax system with the object “income minus expenses ,” then you can deduct “input” VAT, which you had the right to, but did not have time to take into account in the costs under the simplified tax system. The right to deduction arises in the first quarter after the transition to the general regime, if all conditions for this are met. This means, among other things, that you will use purchases for transactions subject to VAT (clause 6 of Article 346.25 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated December 30, 2015 N 03-11-06/2/77709, Federal Tax Service of Russia dated March 16, 2015 N GD-4-3/ [email protected] ).

For example, you can claim tax as a deduction (clause 1, clause 3, article 346.16, clauses 1, 2, clause 2, article 346.17 of the Tax Code of the Russian Federation, clause 16 of the Review of the practice of courts considering cases related to the application of chapters 26.2 and 26.5 of the Tax Code of the Russian Federation in relation to small and medium-sized businesses, approved by the Presidium of the Armed Forces of the Russian Federation dated July 4, 2018, sent by Letter of the Federal Tax Service of Russia dated July 30, 2018 N KCH-4-7/14643, Letter of the Ministry of Finance of Russia dated October 1, 2013 N 03-07-15/40631 ):

for goods purchased for resale that you did not manage to sell during the period of application of the simplified tax system;

for materials and raw materials supplied to you for production, which you did not pay for and did not use during the period of application of the special regime;

for the costs of constructing the operating system, which was put into operation after the transition to the operating system. If you put the OS into operation before switching to OSN, the deduction cannot be applied.

To deduct, register supplier invoices in the purchase book (clause 1 of the Rules for maintaining the purchase book).

If you applied the simplified tax system with the object “income” , you cannot deduct the “input” VAT that was presented to you under the simplified tax system (Letters of the Ministry of Finance of Russia dated 04/07/2020 N 03-07-11/27295, dated 09/01/2017 N 03 -07-11/56374, Federal Tax Service of Russia dated July 17, 2015 N SA-4-7/ [email protected] , Determination of the Constitutional Court of the Russian Federation dated January 22, 2014 N 62-O).

Ready-made solution: VAT when switching from the simplified tax system to the OSN (ConsultantPlus, 2020) {ConsultantPlus}

6.

Having “gotten away” from the simplified tax system, simplifiers usually offer buyers to retroactively change the terms of contracts - to indicate the price including VAT in them. Can the former simplifier issue invoices with VAT to buyers whose contracts were changed in violation of the 5-day deadline for goods shipped in October? What does this threaten him with?

— Changing the price of a contract after its conclusion is permitted in cases and under the conditions provided for by the contract, the law or in the manner prescribed by law <5>. Changes to the contract can be made by agreement of the parties <6>. And in some cases, the agreement can be changed at the request of one of the parties by a court decision <7>. As a general rule, a change in a contract entails a change in the obligations of the parties only for the future. But the parties can also agree on the effect of changes retroactively <8>.

If, as a result of changes to the contract, the price of goods is set retroactively including VAT, or the primary documents are changed, then I believe it is possible to issue invoices on the date of loss of the right to the simplified tax system.

Let's say the goods were shipped to the buyer on 10/02/2017 and 10/16/2017. After losing the right to the simplified tax system, the former simplifier agreed with the buyer that the price of goods shipped starting from 10/01/2017 includes VAT. Changes were made to the invoices dated 10/02/2017 and 10/16/2017 - the VAT amount is indicated. Then on 11/03/2017 the former simplifier, in my opinion, can issue invoices for these goods.

In this case, the deadline for issuing invoices will be missed. However, tax legislation does not establish liability for such a violation.

— Will the buyer, a VAT payer, to whom the former simplifier issued an invoice in violation of the 5-day period, be able to deduct the VAT allocated in it?

— According to arbitration practice and the position of the Ministry of Finance, violation of the deadline for issuing an invoice cannot be the reason for refusal to deduct VAT. This means that the buyer, a VAT payer, has the right to deduct the tax presented by the former simplifier in connection with a change in the terms of the contract in relation to goods (work, services) sold by him in the quarter of loss of the right to the simplified tax system <9>.

— Olga Sergeevna, let’s assume that the former simplifier did not make changes to contracts with buyers and to the primary documents. He calculated VAT “on top” of the price and paid it at his own expense. And the former simplifier did not issue invoices to buyers for goods shipped in the fourth quarter of 2017 before October 29, 2017. Does he need to prepare invoices in one copy only for recording in the sales ledger? Will the lack of invoices lead to a fine under Art. 120 of the Tax Code of the Russian Federation?

— No, in this case the preparation of an invoice is not provided for by law. And the absence of an invoice in such a situation also cannot be regarded as a gross violation for which a fine is established under Art. 120 Tax Code of the Russian Federation.

— But if the former simplifier does not prepare invoices, what documents should he register in the sales book?

— In the sales book it is possible to register primary documents drawn up during the shipment of goods (performance of work, provision of services) in October, earlier than 10/29/2017. In this case, in column 13 of the sales book, you should indicate the cost of goods (work, services) from the primary document, increased by the amount of calculated VAT. In addition, for registration in the sales book, it is possible to draw up a consolidated invoice for goods shipped from the beginning of the quarter until the date of loss of the right to the simplified tax system. This consolidated invoice should be dated 11/03/2017.

Interview: VAT registers of the former simplifier (“General Ledger”, 2021, N 23) {ConsultantPlus}

7.

Article: “Gathering” from “simplified” and VAT deductions (Durnovo D.V.) (“VAT: problems and solutions”, 2021, N 11) {ConsultantPlus}

When the right to apply the simplified tax system is lost

This must be done after 15 calendar days from the end of the reporting (tax) period in which the right to the simplified tax system was lost. In our considered example, the expiration date for filing a notice of transition to the general taxation regime will end on October 15, 2021.

If a company does not promptly submit a notification of a change in the tax regime, it faces a fine of 200 rubles.

It is also necessary to remember that if you terminate the application of the simplified taxation system, you will need to submit a declaration no later than the 25th day of the month following the quarter in which the right to use the simplified taxation system was lost. According to our example, it will be necessary to submit a declaration under the simplified tax system before October 25, 2021.

Be attentive to changes in activity. Consider the situations in which you lose the right to apply the simplified taxation system. Report promptly when such situations arise.

If you need help preparing a message or are interested in accounting services, call (495) 661-35-70

Author: Shiryaeva Natalya