Review of letters from the Ministry of Finance of Russia and the Federal Tax Service of Russia for October – December 2021.
1. In a letter dated October 14, 2021 No. SD-4-3/ [email protected] Federal Tax Service of the Russian Federation
clarified the issue of the place of payment of personal income tax on income in the form of wages for employees subject to transfer to remote work by organizations with separate divisions.
Legal entities are created in the form of a bar association, a law office or a legal consultation and are legal entities (Article 123.16-2 of the Civil Code of the Russian Federation) and have the right to have separate divisions.
As a result of the transfer of employees to remote work, there is no need to have stationary workplaces, which involves the termination of lease agreements and the deregistration of separate divisions of the legal profession (tax agent) from tax registration. In this case, it will be legal to pay personal income tax at the place of registration of the branch in which the employee performs duties according to the staff schedule.
At the same time, attracting remote workers in itself does not create separate divisions of organizations (letters of the Ministry of Finance of Russia dated May 29, 2021 No. 03-15-06/38981, dated January 19, 2021 No. 03-02-07/1/3617, dated December 1, 2014 No. 03-04-06/61300).
From January 1, 2021, tax agents - Russian organizations that have several separate divisions on the territory of one municipality, have the right to transfer calculated and withheld tax amounts to the budget at the location of one of such separate divisions chosen by the tax agent (clause 7, article 226 Code, clause 16, article 2, clause 3, article 3 of the Federal Law of September 29, 2021 No. 325-FZ).
2. In
letter dated November 13, 2021 No. 03-04-05/99236, the Ministry of Finance of the Russian Federation
considered it legal for a tax agent (including a lawyer who established a lawyer’s office) to withhold and transfer to the budget personal income tax from an advance (prepayment) paid to an individual in within the framework of a civil contract (the work completion certificate was not signed).
This clarification contradicts the letter of the Ministry of Finance of Russia dated June 11, 2019 No. 21-08-11/42596 “On the payment of personal income tax”, according to which advance payment of wages is not subject to personal income tax.
According to the rules of paragraph 2 of Art. 223 of the Tax Code of the Russian Federation, when receiving income in the form of wages, the date of actual receipt by the taxpayer of such income is the last day of the month for which he was accrued income for work duties performed in accordance with the employment agreement (contract). As follows from sub. 6) clause 1 art. 223 of the Tax Code of the Russian Federation, personal income tax on advances to employees sent on a business trip is withheld and paid to the budget not at the time of issue, but on the last day of the month in which the advance report is approved after the employee returns from the business trip.
Until an individual fulfills his obligations both under an employment and civil law contract, the customer and the employer have no obligation to settle accounts with him. Consequently, it is premature to consider an advance (prepayment) as income of an individual. The Tax Code of the Russian Federation does not indicate otherwise.
It is no coincidence that the Letter is provided with the caveat that written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees, sent to taxpayers and (or) tax agents, are of an informational and explanatory nature and do not prevent taxpayers, tax authorities and tax agents from being guided by the norms of the legislation of the Russian Federation on taxes and fees in an understanding different from the interpretation set out in this letter.
3. In letter dated November 20, 2021 No. 03-15-05/101219 Ministry of Finance of the Russian Federation
responded negatively to the proposal to reduce fixed insurance premiums for 2021 and 2021. for lawyers.
In pursuance of the list of instructions of the President of the Russian Federation V.V. Putin No. Pr-818 dated May 15, 2021, following a meeting on issues related to the sanitary and epidemiological situation in the Russian Federation, held on May 11, 2021, the Federal Law of June 8, 2021 No. 172-FZ “On the introduction of amendments to part two of the Tax Code of the Russian Federation." It provides for the provision only to individual entrepreneurs engaged in areas of activity most affected by the worsening situation due to the spread of the new coronavirus infection, according to the list approved by Decree of the Government of the Russian Federation of April 3, 2021 No. 434, the opportunity to reduce the fixed amount of insurance premiums for 2021 d. by the amount of the minimum wage.
Taking into account the fact that in today's situation the costs of the state's social obligations are increasing, proposals to reduce the fixed amounts of insurance premiums for lawyers for 2021 and 2021 are proposed. The Ministry of Finance of the Russian Federation is not considered.
4. In letter dated November 20, 2021 No. 03-15-03/101230 Ministry of Finance of the Russian Federation
also rejected the proposal to reduce the fixed amounts of insurance premiums for retired lawyers and provide them with a deferment in the payment of insurance premiums.
The Ministry of Finance of the Russian Federation referred that this was not provided for by the instructions of the President of the Russian Federation V.V. Putin, tax legislation of the Russian Federation. In addition, the department recalled that if a citizen is a recipient of an old-age pension, the insurance contributions paid affect the recalculation of the pension received.
5. In a letter dated December 1, 2021 No. BS-4-11/ [email protected] Federal Tax Service of the Russian Federation
clarified the issues of calculation and payment by tax agents (including lawyers who established law offices) of personal income tax on personal income exceeding 5 million rubles for the tax period (starting from 2021), as well as filling out the calculation of tax amounts for income of individuals calculated and withheld by the tax agent (form 6-NDFL).
The attachment to the letter provides examples of filling out the calculation of the amounts of personal income tax calculated and withheld by the tax agent.
6. In
a letter dated December 4, 2021 No. 03-04-05/106356, the Ministry of Finance of the Russian Federation
explained that according to the norms of the Tax Code of the Russian Federation and the provisions of the Federal Law of May 31, 2002 No. 63-FZ “On advocacy and advocacy in the Russian Federation”, as part of the professional tax deduction, expenses for payment of payments for residential premises partially used by a lawyer as a lawyer’s office may be taken into account.
Moreover, taking into account the fact that the relevant expenses must be documented and directly related to the extraction of the corresponding income, they can be taken into account as part of the professional tax deduction in the part that is directly related to advocacy.
Previously, a similar legal position was expressed in the Decision of the Federal Tax Service of Russia dated February 12, 2021 No. KCh-3-9/ [email protected] and in the ruling of the Constitutional Court of the Russian Federation dated July 18, 2021 No. 2171-O. At the same time, neither the Constitutional Court nor the Federal Tax Service considered the situation when the residential premises were used for lawyering not completely, but partially.
By letter of December 10, 2021 No. BS-4-11/20427 of the Federal Tax Service of the Russian Federation
brought these clarifications to the lower tax authorities.
7. In letter dated December 15, 2021 No. 03-01-11/109419 Ministry of Finance of the Russian Federation
considered an appeal on the issue of tax exemption for military pensioners.
Having repeated the norms of the Tax Code of the Russian Federation, allowing pensioners to apply special tax regimes (STP), benefits for land tax, property tax for individuals and transport tax (at the regional level), the Ministry of Finance of the Russian Federation announced that they do not have benefits for paying insurance premiums.
The provisions of Ch. 34 of the Tax Code of the Russian Federation does not provide for the exemption of insurance premium payers - lawyers, including pensioners, from paying insurance premiums for themselves, with the exception of periods, in particular, of caring for a group I disabled person, a disabled child or a person who has reached the age of 80 years, etc., specified in clause 1, -8 part 1 art. 12 of Federal Law No. 400-FZ (clause 7 of Article 430 of the Code), during which they did not carry out the relevant activities, subject to their submission to the tax authority at the place of registration of an application for exemption from payment of insurance premiums and supporting documents, as well as for periods during which the status of a lawyer is suspended, subject to the submission of an application for exemption from payment of insurance contributions to the tax authority at the place of registration.
Federal Tax Service: Letter No. BS-4-11/ [email protected] dated 04/05/2017
Question: In what month are vacation pay accrued (December 2021 or January 2021) to an employee for the purpose of generating a 2-NDFL certificate and a 6-NDFL report, if he goes on vacation from January 9 to January 13, 2021, and vacation pay is paid on December 30 .2016?
Answer: Federal Tax Service in connection with the letter from LLC on the issue of reflecting income in the form of vacation pay in the calculation of the amounts of personal income tax calculated and withheld by the tax agent (Form 6-NDFL) (hereinafter referred to as the calculation according to Form 6-NDFL), and the certificate of income of individuals (form 2-NDFL) reports the following.
In accordance with paragraph 3 of paragraph 2 of Article 230 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), tax agents submit to the tax authority at the place of their registration a calculation in form 6-NDFL for the first quarter, half a year, nine months - no later than the last day of the month following for the relevant period, for the year - no later than April 1 of the year following the expired tax period, in the form, formats and in the manner approved by order of the Federal Tax Service of Russia dated October 14, 2015 N ММВ-7-11/ [email protected]
Section 1 of the calculation in Form 6-NDFL is compiled on an accrual basis for the first quarter, half a year, nine months and a year (hereinafter referred to as the presentation period).
Section 2 of the calculation in Form 6-NDFL for the corresponding submission period reflects those transactions that were carried out over the last three months of this period.
If a tax agent performs an operation in one presentation period and completes it in another period, then this operation is reflected in the presentation period in which it is completed. In this case, the operation is considered completed in the submission period, in which the deadline for transferring the tax occurs in accordance with paragraph 6 of Article 226 and paragraph 9 of Article 226.1 of the Code.
In accordance with subparagraph 1 of paragraph 1 of Article 223 of the Code, the date of actual receipt of income in the form of vacation pay is defined as the day of payment of income, including the transfer of income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties.
According to paragraph 4 of Article 226 of the Code, tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon their actual payment, taking into account the specifics established by this paragraph.
When paying a taxpayer income in the form of temporary disability benefits (including benefits for caring for a sick child) and in the form of vacation pay, tax agents are required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made (clause 6 of Article 226 of the Code ).
In accordance with paragraph 7 of Article 6.1 of the Code, in cases where the last day of the period falls on a day recognized in accordance with the legislation of the Russian Federation as a weekend and (or) a non-working holiday, the end of the period is considered to be the next working day following it.
If the employee’s vacation payment was made on December 30, 2016, but the deadline for transferring personal income tax on the said payment in accordance with paragraph 6 of Article 226 and paragraph 7 of Article 6.1 of the Code occurs in another submission period, namely 01/09/2017, then Regardless of the date of direct transfer of tax to the budget, this operation is reflected in lines 020, 040, 070 of section 1 of the calculation in form 6-NDFL for 2021.
In section 2 of the calculation in form 6-NDFL for the first quarter of 2021, the transaction in question is reflected as follows:
line 100 indicates 12/30/2016;
on line 110 - 12/30/2016;
on line 120 - 01/09/2017 (taking into account the provisions of paragraph 7 of Article 6.1 of the Code);
on lines 130 and 140 - the corresponding total indicators.
In accordance with the Procedure for filling out the form of information on the income of an individual “Certificate of income of an individual” (form 2-NDFL), approved by order of the Federal Tax Service of Russia dated October 30, 2015 N ММВ-7-11/ [email protected] , section 3 indicates information on income accrued and actually received by an individual in cash and in kind, as well as in the form of material benefits by month of the tax period, and corresponding deductions.
In the column “Month” of section 3 of the certificate in form 2-NDFL, the serial number of the month of the tax period corresponding to the date of actual receipt of income, determined in accordance with the provisions of Article 223 of the Code, is indicated in chronological order.
Since income in the form of vacation pay, taking into account subparagraph 1 of paragraph 1 of Article 223 of the Code, is considered to be actually received in December 2021, the month “12” (December) is indicated in the “Month” column of Section 3 of the Individual Income Certificate for 2021.
Valid
state councilor
Russian Federation
2 classes
S.L.BONDARCHUK
05.04.2017
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
THE FEDERAL TAX SERVICE
LETTER
dated March 14, 2021 N BS-4-11/ [email protected]
The Federal Tax Service has considered the LLC’s request regarding the application of the provisions of Article 227.1 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) and reports the following.
For the questions set out in Example 1 of the request.
In the case under consideration, the taxpayer, a foreign citizen, paid one-time fixed advance payments for a patent, the validity period of which relates to different tax periods.
Based on the provisions of paragraph 5 of Article 13.3 of the Federal Law of July 25, 2002 N 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law of July 25, 2002 N 115-FZ), a patent to a foreign citizen is issued (extended) for a period , for which personal income tax has been paid in the form of a fixed advance payment.
In accordance with paragraph 4 of Article 227.1 of the Code, a fixed advance tax payment is paid by the taxpayer at the place of activity on the basis of the issued patent before the start date of the period for which the patent is issued (extended) or reissued.
Based on the provisions of paragraph one of paragraph 6 of Article 227.1 of the Code, the total amount of tax on the income of taxpayers is calculated by tax agents and is subject to reduction by the amount of fixed advance payments paid by such taxpayers for the period of validity of the patent in relation to the corresponding tax period.
According to the Federal Tax Service of Russia, after receiving from the tax authority a Notification confirming the right to reduce the calculated amount of tax by the amount of fixed advance payments paid by the taxpayer (hereinafter referred to as the Notification) for 2021, the tax agent has the right to reduce the calculated amount of tax in 2016 by the amount of previously paid fixed advance payments. advance payments due in 2021.
For the questions set out in Example 2 of the request.
The provisions of paragraph two of paragraph 6 of Article 227.1 of the Code determine that the reduction of the calculated amount of tax is carried out during the tax period only with one tax agent at the choice of the taxpayer, subject to the receipt by the tax agent of the corresponding Notification from the tax authority.
Thus, if a foreign citizen carries out labor activity in the corresponding tax period for several employers, the foreign citizen has the right to exercise his right to reduce the calculated amount of tax by the entire amount of fixed advance payments paid by him for the period of validity of the patent when contacting any of the employers (tax agents) provided that previously, in relation to the corresponding tax period, a Notification in relation to the specified foreign citizen was not issued to other tax agents.
For the questions set out in Example 3 of the request.
In accordance with the provisions of paragraph four of paragraph 6 of Article 227.1 of the Code, the tax authority sends a Notification within a period not exceeding 10 days from the date of receipt of the tax agent’s application, if the tax authority has information received from the territorial body of the federal executive body in the field of migration about the fact conclusion by the tax agent with the taxpayer of an employment contract or a civil contract for the performance of work (provision of services) and the issuance of a patent to the taxpayer, and provided that previously, in relation to the relevant tax period, such notification by the tax authorities in relation to the specified taxpayer was not sent to tax agents.
At the same time, in the situation under consideration, the tax agent applied in the corresponding tax period with an application to confirm the right to reduce the calculated amount of personal income tax by the amount of fixed advance payments paid by the taxpayer (hereinafter referred to as the Application) and received from the tax authority in relation to the specified taxpayer the corresponding Notification.
Next, the foreign citizen’s work with the specified tax agent was terminated, and subsequently the foreign citizen acquired a new patent and concluded a new contract for work with the same tax agent.
From the provisions of Article 13.3 of the Federal Law of July 25, 2002 N 115-FZ, it follows that a foreign citizen may have two issued patents in one period (year), one of which was issued in the previous year and its validity expired in the corresponding year, and the second a patent was obtained by a foreign citizen after the expiration of the previous patent.
Taking into account the provisions of Article 227.1 of the Code, in the opinion of the Federal Tax Service of Russia, the tax agent has the right to reduce the calculated amount of tax by the amount of fixed advance payments paid by the taxpayer for the period of validity of all patents in the corresponding tax period.
At the same time, due to the fact that earlier in the corresponding tax period a Notification was issued to the tax agent in relation to the specified foreign citizen, in the opinion of the Federal Tax Service of Russia, there is no need for the tax agent to submit a new Application to the tax authority.
Valid
state councilor
Russian Federation
2 classes
S.L.BONDARCHUK
14.03.2016
