Question - answer
Question
Is it possible to register an LLC at the home address of the founder (director)?
Answer:
In accordance with the legislation, the location of a legal entity is determined by the place of its state registration (clause 2 of article 54 of the Civil Code of the Russian Federation, clause 2 of article 4 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies"). According to paragraph 2 of Art. 8 of the Federal Law of 08.08.2001 No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs", an organization can be registered at the location of its sole executive body or a person who can act on behalf of the organization without a power of attorney. Please note that there should be ability to communicate with the company at the registered address (subparagraph "in" paragraph 1 of article 5 of the Federal Law of 08.08.2001 No. 129-FZ). It should be considered that Federal Law of 08.02.1998 No. 14-FZ does not contain any restrictions regarding the place of registration of the organization. Thus, an LLC can be registered both at the home address of the founder and at the home address of the director. (See letter of the Federal Tax Service of Russia dated 23.09.2011 No. PA-21-6 / 293, clause 4 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.07.2013 No. 61).
Question
Do I need to put a stamp in the work books of employees?
Answer:
The seal in the work book of employees should be affixed only if available. Starting 27.10.2016 in par. 2 clause 2.2, paragraph. 2 clause 2.3 of the Instructions for filling out work books (approved by the decree of the Ministry of Labor of the Russian Federation of 10.10.2003 No. 69), changes have been made, according to which the seal of the organization or the seal of the personnel service is affixed only if available. In addition, in a letter dated October 31, 2016 No. 589n, the Ministry of Labor of Russia indicated that affixing a seal on the first page of a work book, an insert in a work book, as well as in cases provided for in paragraphs. 1 p. 35 and para. 4, clause 41 of the Rules for maintaining and storing work books (that is, upon dismissal of an employee and when drawing up an income and expense book for recording forms of work books and a book for recording the movement of work books) is carried out only if the employer has a seal. If the organization does not have a seal, the entries made in the employee's work book during work in this organization are certified by the signature of the employer or the person responsible for maintaining work books (except for the cases specified in clause 36 of the Rules).
Question
Is it legal to conduct a tax audit against an individual entrepreneur who has ceased operations?
Answer:
The tax inspectorate has the right to conduct inspections (including field inspections) of both existing individual entrepreneurs and individuals who have lost this status (ceased entrepreneurial activity) and excluded from the USRIE. The taxpayer's obligation to pay tax is terminated in the cases listed in paragraph 3 of Art. 44 of the Tax Code of the Russian Federation. Loss of the status of an individual entrepreneur by a citizen is not a basis for exemption from this obligation. According to paragraphs. 2 p. 1 art. 31 and Art. 89 of the Tax Code of the Russian Federation, tax authorities have the right to conduct tax audits in accordance with the procedure established by the Tax Code of the Russian Federation, including field tax audits of individual taxpayers. Moreover, the Tax Code of the Russian Federation does not make the possibility of such verification dependent on the acquisition or loss by a citizen of the status of an individual entrepreneur (other special legal status) or on the conduct of certain activities by him (see the definition of the Constitutional Court of the Russian Federation of 25.01.2007 No. 95-О-О). During the on-site inspection, a period not exceeding three calendar years preceding the year in which the decision to conduct the inspection was made, including the period when an individual is engaged in activities as an individual entrepreneur, can be checked. The taxpayer is obliged to provide the opportunity for the officials conducting the inspection to familiarize themselves with the documents related to the calculation and payment of taxes. Also, the documents necessary for verification may be requested from the taxpayer in the manner prescribed by Article 93 of the Tax Code of the Russian Federation. The Ministry of Finance of Russia adheres to a similar position (see letters dated 03.10.2017 No. 03-02-07 / 2/64141, dated 23.01.2012 No. 03-02-08 / 6). Tax control in the form of inspections is aimed at ensuring the fulfillment of the obligation to pay tax or due, which terminates with the liquidation of the organization, and in the case of an individual - with the death of the taxpayer or with the recognition of him as deceased (subparagraphs 3, 4, paragraph 3 of Art. 44 of the Tax Code RF). This, referring to the court decision, was reported by the Federal Tax Service of Russia on its website (decision of 12.04.19 No. SA-3-9 / 3547).
Question
Does the inspectorate have the right to check prices for transactions that are not considered controlled, but were made between related parties?
Answer:
In paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, the following is established: if the terms of transactions between related parties differ from the terms of comparable transactions between non-related entities, then all income that could be received by the related person is accounted for tax purposes. The Tax Code directly establishes only one form of price control for transactions between related parties - checking prices for their compliance with market prices. Such a check is carried out by the Federal Tax Service of Russia in relation to a limited number of controlled transactions (Article 105.17 of the Tax Code of the Russian Federation). At the same time in par. 3 p. 1 art. 105.17 of the Tax Code of the Russian Federation states that in the course of field and office audits, territorial tax authorities cannot verify the validity of prices for controlled transactions made by related parties. At the same time, not all transactions that are concluded between related parties are recognized as controlled. The question is as follows. If the entities are interdependent, will prices be checked for those transactions between them that are not deemed to be controlled? Prices for those transactions between related parties that are not recognized as controlled can be checked within the framework of in-house and field audits. This follows from the explanations of the Ministry of Finance of Russia and judicial practice. The rationale for this point of view is as follows. Article 54.1 of the Tax Code of the Russian Federation prohibits taxpayers from unjustifiably reducing their obligations to budgets as a result of distortion in accounting and reporting of information about the facts of economic life and objects of taxation. In addition, the tax benefit for a specific transaction (operation) may be recognized as unjustified if the tax authority has managed to prove one of the following facts: the main purpose of the operation is non-payment (offset, refund) of the tax amount; the obligation under the transaction was performed by an inappropriate person. Also, certain provisions of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 12.10.2006 No. 53 "On the Assessment by Arbitration Courts of the Reasonableness of a Tax Benefit by a Taxpayer" are still applicable. At the same time, the unreasonableness of reducing obligations to the budget is proved by the tax authorities when carrying out tax control measures (clause 5 of article 82 of the Tax Code of the Russian Federation). In particular, these include tax audits (Articles 88, 89 of the Tax Code of the Russian Federation) and price audits for controlled transactions by related parties (Article 105.17 of the Tax Code of the Russian Federation). The first is carried out by the territorial tax authorities, the second - by the Federal Tax Service of Russia itself. Moreover, to determine the reliable amount of income (profit, revenue), the Federal Tax Service of Russia uses the methods for determining reasonable prices specified in Ch. 14.3 of the Tax Code of the Russian Federation, - the method of comparable market prices, the method of the subsequent sale price, etc. According to the Russian Ministry of Finance and courts, territorial tax authorities can also apply these methods during a regular tax audit. In other words, prices in transactions that are not considered controlled (including between related parties) can also be checked. This is explained by the fact that the unjustified tax benefit revealed in the course of an on-site or cameral tax audit presupposes its sum total. At the same time, the Tax Code of the Russian Federation does not provide for a closed list of methods for such an assessment, and also does not contain a ban on the use in this case of the methods established by Ch. 14.3 of the Tax Code of the Russian Federation. (See the letter of the Ministry of Finance of Russia dated January 14, 2019 No. 03-12-11 / 1/746, Resolution of the CA of the East Siberian District dated August 21, 2018 No. F02-3431 / 2018 - upheld by the ruling of the Supreme Court of the Russian Federation dated December 25, 2018 No. 302-KG18-21402).
Question
Can the inspection issue fine for failure to submit a notification of a controlled transaction?
Answer:
As a general rule, the taxpayer must annually notify the tax authorities of completed controlled transactions (clause 1 of article 105.16 of the Tax Code of the Russian Federation). To do this, a special notification must be submitted to the inspection at the location no later than May 20 of the next year (clause 2 of article 105.16 of the Tax Code of the Russian Federation). For failure to submit a fine of 5,000 rubles was established. (Article 129.4 of the Tax Code of the Russian Federation). If the inspection, during a tax audit (monitoring), discovers controlled transactions, information about which was not submitted, the inspectors are obliged to notify the Federal Tax Service of Russia (clause 6 of article 105.16 of the Tax Code of the Russian Federation), because only the Federal Tax Service of Russia is authorized to audit controlled transactions (clause 1 Article 105.17 of the Tax Code of the Russian Federation). The act of bringing to responsibility under article 129.4 of the Tax Code of the Russian Federation is drawn up by the territorial FTS.
Question
Is it possible for the company to pay a fitness subscription to employees and what is the taxation procedure for these payments?
Answer:
Payment (partial payment) to employees for sports activities (membership card for visiting a fitness club, swimming pool, gym, etc.) can be guaranteed by a collective agreement, if a corresponding condition is included there. In addition, payment for sports activities can be considered not as part of the "social package", but as expenses for the implementation of measures to improve the working conditions and labor protection of workers (Article 226 of the Labor Code of the Russian Federation, clause 32 of the Standard List, approved by order of the Ministry of Health and Social Development of Russia dated 01.03.2012 No. 181n). So, you can compensate employees for sports in clubs and sections, conduct physical culture and sports events, purchase sports equipment, create sports clubs, playgrounds for sports, etc. Expenses for the implementation of measures to improve working conditions and labor protection should be at least 0.2 percent of the amount of costs for the production of products (works, services) per year. Let us explain the following regarding tax consequences. Income tax Most often, auditors and some courts refer to paragraph 29 of Art. 270 of the Tax Code of the Russian Federation and explain that the cost of physical culture events and sports does not reduce taxable profit (letters of the Ministry of Finance of Russia dated 31.10.2014 No. 03-03-06 / 1/55280, dated 30.10.2014 No. 03-03-06 / 2 / 54994, dated October 29, 2014 No. 03-03-06 / 1/54903, dated October 17, 2014 No. 03-03-06 / 1/52376, dated February 16, 2012 No. 03-03-06 / 4/8, Federal Tax Service of Russia for in Moscow dated 29.08.2008 No. 21-11 / 082010 @, resolution of the Federal Antimonopoly Service of the West Siberian District dated 24.01.2013 No. A45-15793 / 2012). Therefore, if the organization is not ready to enter into a dispute with the tax authorities, it is advisable to ignore these costs. It should be borne in mind that in practice it is still possible to write off the disputed costs. Firstly, these amounts can be written off as expenses for the implementation of measures to improve working conditions and labor protection on the basis of paragraphs. 7 p. 1 of Art. 264 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated 09.08.2011 No. 03-03-06 / 4/95). After all, the employer finances them in accordance with the requirements of labor legislation (namely, the Model List and Article 226 of the Labor Code of the Russian Federation). Secondly, if the payment for fitness (swimming pool, gym, etc.) is guaranteed by a collective agreement, then you can try to take into account the amounts in question in labor costs under paragraph 25 of Art. 255 of the Tax Code of the Russian Federation. This approach is supported by judicial practice (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District of 04/14/2011 No. KA-A40 / 2726-11). In addition, the Ministry of Finance of Russia did not object to it earlier (see letter dated 15.03.2012 No. 03-03-06 / 1/130). So, the possibility of writing off the costs of paying for the services of a fitness club for employees remains controversial. Therefore, if an organization wants to avoid claims from the tax authorities, then we recommend not taking into account the costs of paying for the services of a fitness club. If the employer is ready to argue, then the legality of accounting for season tickets, or according to PP. 7 p. 1 of Art. 264 of the Tax Code of the Russian Federation, or under paragraph 25 of Art. 255 of the Tax Code of the Russian Federation, you can try to prove it in court. VAT With regard to VAT, the issue is also not resolved unequivocally. Subscriptions to the fitness club are given to specific employees, so the tax authorities may consider that in this case there is an object of VAT taxation (clause 1 of clause 1 of article 146 of the Tax Code of the Russian Federation). In this they are supported by some courts (see, for example, the resolution of the FAS of the Volgo-Vyatka District of 16.07.2010 No. A29-8359 / 2009). Accordingly, it is safer to charge VAT. However, this is not the only possible approach in this situation. For more details see the recommendation article in the reference book "Value Added Tax". Personal income tax According to the official position, when employees purchase subscriptions to a fitness club, the latter receive income in kind (clause 1, clause 2, article 211 of the RF Tax Code). The amount of income is determined based on the cost of the services provided (clause 1 of Art. 211 of the Tax Code of the Russian Federation). In this case, the tax agent is obliged to keep records of income paid in favor of individuals (letters of the Ministry of Finance of Russia dated April 18, 2012 No. 03-04-06 / 6-117, Federal Tax Service of Russia for Moscow dated August 29, 2008 No. 21-11 / 082010 @ ). Note that some courts indicate that the payment of the cost of sports and recreation services for employees is not subject to personal income tax, since in this case the amount of income received by a particular employee cannot be determined (see, for example, resolution of the FAS of the Ural District of 10.26.2010 No. F09-8909 / 10-C3). However, in our opinion, this approach is not safe: after all, the income of each employee can be determined by the number of visits to the fitness club. Consequently, personal income tax should be withheld from such income when paying wages. In the opinion of the inspectors, the employer must charge insurance premiums to funds for the cost of the subscription, including contributions "for injuries" (letter of the FSS of Russia dated 17.11.2011 No. 14-03-11 / 08-13985). They explain this by the fact that such payments are made within the framework of labor relations, they are not indicated in the list of payments exempted from taxation by these contributions (part 1 of article 7 of the Federal Law of 24.07.2009 No. 212-FZ, clause 1 of article 20.1 Federal Law of 24.07.1998 No. 125-FZ). However, the courts believe differently: the payment of subscriptions to a fitness club (sports and recreation center), provided for by the collective agreement, is not subject to fees (see, for example, Resolution of the AC of the Volgo-Vyatka District of October 27, 2014 No. A43-2494 / 2014).
Question
An individual entrepreneur initially, when registering, in the information on the codes of types of activity, indicated one type of activity - General medical practice (code according to OKVED - 86.21). The entrepreneur applies the simplified tax system for this type of activity. At the same time, he also receives income from the rental of non-residential premises. The property lease activity was not initially declared at registration. Are there sanctions for conducting activities that are not named in the USRIE?
Answer:
State registration of an individual as an individual entrepreneur (IE) is carried out on the basis of his application (according to form No. Р21001 from Appendix No. 13 to the order of the Federal Tax Service of Russia No. ММВ-7-6 / 25 @ dated 25.01.2012) and other necessary documents provided for in cl. 1 tbsp. 22.1 of the Federal Law of 08.08.2001 No. 129-FZ (hereinafter - Law No. 129-FZ). In the application, among other data, the codes of the types of economic activities that the entrepreneur intends to carry out are indicated. From July 11, 2016, for these purposes, it is necessary to use the All-Russian Classifier of Economic Activities OKVED2 OK 029-2014 (instead of OKVED OK 029-2001), see the letter of the Federal Tax Service of Russia dated 24.06.2016 No. GD-4-14 / 11306 @. Based on the information reflected in the application, information about the entrepreneur is entered into the USRIP (clauses 2, 4, article 5 of Law No. 129-FZ). As follows from paragraph 5 of Art. 5 of Law No. 129-FZ, if the entrepreneur subsequently changes the information that he indicated earlier in the application (and which is included in the USRIP), the entrepreneur must report this to the inspectorate at the place of residence within three working days. An exception is the change in information about: - passport data and place of residence of the entrepreneur; - licenses received by him; - TIN, date of registration with the tax authority; - number and date of registration as an insured with the Pension Fund of the Russian Federation and the FSS of Russia. The entrepreneur is not obliged to provide this information on his own. Changes in OKVED codes do not apply to exceptions. Therefore, the entrepreneur needs to notify the inspectorate about the additional type of activity within the specified time. To do this, you need to submit an application according to the form No. Р24001 from Appendix No. 14 to the order of the Federal Tax Service of Russia dated 25.01.2012 No. ММВ-7-6 / 25 @. Note that failure to submit the specified information to the tax authority entails administrative liability of the entrepreneur in the form of a fine from 5,000 rubles to 10,000 rubles (Article 2.4, part 4 of Article 14.25 of the Administrative Code of the Russian Federation), and their untimely submission is liability in the form of a warning or a fine in the amount of 5,000 rubles (article 2.4, part 3 of article 14.25 of the Code of Administrative Offenses of the Russian Federation). In addition, if the activity, information about which is included in the USRIP, is taxed under the simplified tax system, then proceeds from activities that the entrepreneur did not report to the inspectorate should be taxed with personal income tax. The regulatory authorities insist on this (see letters of the Ministry of Finance of Russia dated 13.08.2013 No. 03-11-11 / 32808, dated 01.02.2012 No. 03-11-11 / 21, dated 19.12.2011 No. 03-11-11 / 318)
Question
The company changed its legal address in the middle of the year. Accordingly, the KPP, OKATO, IFTS have changed. Part of personal income tax is listed according to the old KPP and OKATO, part - according to a new one. How to properly submit personal income tax reporting?
Answer:
Article 84 of the Tax Code of the Russian Federation determines the procedure for registering and deregistering organizations and individuals. In accordance with paragraph 4 of Art. 84 of the Tax Code of the Russian Federation, when the location of the organization changes, deregistration is carried out by the tax authority in which the organization was previously registered. The registration of an organization with the tax authority at a new location is carried out on the basis of documents received from the tax authority at the previous location of the organization. In accordance with paragraph 2 of Art. 230 of the Tax Code of the Russian Federation, personal income tax reporting must be submitted by the organization to the tax authority at the place of registration. Consequently, personal income tax reporting is submitted at a new place of registration.
Question
Please advise which tax regime to choose to create a new legal entity. I plan to bring Polish equipment for bottling drinks and carbonated water to the territory of the Russian Federation and sell it to Russian legal entities and possibly the CIS countries with engineering services.
Answer:
Hello, in your case by default we suggest main tax regime. When importing goods into the territory of the Russian Federation, the importer must calculate VAT at a rate of 10% or 18%, depending on the type of imported goods (clause 5 of article 164 of the Tax Code of the Russian Federation). The type of goods is determined by the code of the commodity nomenclature of foreign economic activity (TN VED). Income tax rate is 20 percent. For a complete answer, digitization of activities and tax planning, additional information is required.
Question
Hello, the company pays quarterly advance payments of income tax. Income and expenses are accounted for on an accrual basis. Can the costs of the current quarter be included in the next period (next quarter)?
Answer:
Hello. In accordance with paragraph 1 of Art. 272 of the Tax Code of the Russian Federation, expenses under the accrual method are recognized in the reporting (tax) period in which they arise based on the terms of transactions (regardless of the time of actual payment of funds or other form of payment). When the transaction does not contain such conditions, the taxpayer has the right to distribute the costs independently (paragraph 2 of clause 1 of article 272 of the Tax Code of the Russian Federation). Accordingly, if it is clearly seen from the terms of the agreement that the taxpayer's costs relate to a specific reporting period, the organization does not have the right, at its own discretion, to refer them to another reporting period.
Question
Hello, the company is planning to purchase an online CCP. Is it necessary to keep a cash book under the new procedure for using CCP?
Answer:
The procedure for conducting cash transactions (cash books) by legal entities was approved by Bank of Russia Ordinance No. 3210-U of March 11, 2014. The new procedure for the application of CRE, which entered into force on July 15, 2016, does not cancel the organization's obligation (regardless of the taxation system) to keep a cash book (form No. KO-4, approved by the decree of the State Statistics Committee of the Russian Federation of August 18, 1998 No. 88). Therefore, if an organization uses an online cash register, it is still necessary to maintain a cash book.
Question
Please advise, when transferring accounting to you for outsourcing in which program accounting will be maintained? For two years no records were kept. What documents are needed for restoration?
Answer:
Hello. Accounting is carried out in the program 1 Enterprise 8.3 Accounting and 1ZUP 8.2 Salary and personnel management. On the issue of restoring accounting, at least a bank statement is required. For a more complete understanding of the situation, we will contact you shortly.