What should a tax agent do if personal income tax cannot be withheld? What should a tax agent do if it is impossible to withhold personal income tax? Message about the impossibility of withholding personal income tax.
If during the tax period (calendar year) it is impossible to withhold the amount of calculated tax from the taxpayer, the tax agent must inform the tax authorities, as well as the taxpayer (). Since 2016, the deadline for such a message is March 1 inclusive.
Thus, March 1, 2016 is the deadline for submitting information about the inability to withhold tax for 2015. Our website will help you track the deadline for submitting reports and paying taxes. Bookmark it!
Such a message is submitted in form 2-NDFL. It indicates the amount of income from which tax is not withheld and the amount of tax not withheld.
As a general rule, information in Form 2-NDFL about the impossibility of withholding personal income tax is submitted by the tax agent to the tax authority at the place of its registration (). But for some organizations and individual entrepreneurs there are special rules. In particular, companies with separate divisions submit Form 2-NDFL in this case at the place of registration of the corresponding separate divisions. The largest taxpayers submit messages about the impossibility of withholding tax to the inspectorate at the place of registration as the largest taxpayer. And individual entrepreneurs who use UTII or PSN send a message to the tax authority at the place of registration in connection with the implementation of such activities (,).
When filling out form 2-NDFL to submit information about the impossibility of withholding tax, you must indicate the number “2” in the “Sign” field. Income from which tax is not withheld by the tax agent should be reflected in section 3 of the 2-NDFL certificate (,). When filling out form 2-NDFL, also pay attention to the correctness of the taxpayer’s TIN. If an individual does not have a TIN or is not known to the tax agent, then the column does not need to be filled out. The certificate will be accepted anyway. But for an incorrectly entered TIN, for example, assigned to another individual, they may be subject to tax liability. Such clarifications were given by the tax authorities (letter of the Federal Tax Service of Russia dated February 12, 2016 No. BS-4-11/2303@ "
All organizations and individual entrepreneurs paying income to individuals are required to withhold personal income tax from this income, since according to paragraphs 1 and 2 of Art. 226 of the Tax Code of the Russian Federation they are recognized as tax agents.
But there are situations when it is not possible to withhold tax on income.
For example, when paying a salary in kind or generating income in the form of material benefits (debt forgiveness, giving a gift worth more than 4 thousand rubles). Personal income tax may not be withheld as a result of an error in calculation.
The impossibility of withholding tax and the amount of debt must be reported no later than March 1 of the next year (clause 5 of Article 226 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of the Russian Federation dated March 24, 2017 No. 03-04-06/17225, Federal Tax Service of the Russian Federation dated March 30, 2016 No. BS- 4-11/5443).
A message about the impossibility of withholding tax is Form 2-NDFL with sign “2”.
From the moment of notification, the obligation to pay tax is assigned to the individual, and the organization ceases to perform the functions of a tax agent (letter of the Federal Tax Service of the Russian Federation dated December 2, 2010 No. ШС-37-3/16768@).
The tax must be paid by the taxpayer himself when submitting a personal income tax return to the Federal Tax Service at his location (letter of the Federal Tax Service of the Russian Federation dated August 22, 2014 No. SA-4-7/16692).
Since the deadline is approaching, we decided to talk in more detail about the rules for filling out the 2-NDFL certificate in case of impossibility of withholding tax.
Failure to withhold personal income tax as a result of a calculation error
In case of an error with the calculation, you must withhold tax until the end of the year from the next cash payments to an individual.If there is no such possibility before the end of the year (for example, an error in the calculations was discovered in December), the individual must be informed about the impossibility of withholding tax and his tax office (Article 216, paragraph 5 of Article 226 of the Tax Code of the Russian Federation).
At the same time, they can be fined for failure to withhold only if the individual had the opportunity to withhold tax when paying income. If there was no such opportunity (for example, the income was paid in kind), then it cannot be held accountable. But if such an opportunity arose before the end of the year, and the tax agent still did not withhold the tax, in this case he also faces a fine (Article 123 of the Tax Code of the Russian Federation, paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).
If personal income tax is not withheld from payments to a dismissed employee upon final settlement with him and no payments were made to him by the end of the year, the organization should also send a message about the impossibility of withholding personal income tax to the inspectorate and this employee (Article 216, paragraph 5 of Article 226 of the Tax Code of the Russian Federation ).
Deadline for filing 2-NDFL
If the 2-NDFL certificate reflects information about income from which tax is not withheld, then the deadline for its submission differs from the usual certificate, namely, until March 1 of the following reporting year (Article 216, paragraph 5 of Article 226 of the Tax Code of the Russian Federation, section II Procedure for filling out certificate 2-NDFL).In case of violation of the deadline for submitting a certificate, inspectors may impose a fine of 200 rubles for each certificate.
If the last day of the deadline falls on a weekend, then the last day for submitting the 2-NDFL certificate will be the next next working day (Clause 7, Article 6.1 of the Tax Code of the Russian Federation).
Who and how to send a message about the impossibility of retention
The peculiarity of issuing a 2-NDFL certificate when it is impossible to withhold tax is only that:— in the “Sign” field, code 2 is indicated instead of the usual code 1. Sign “2” means that certificate 2-NDFL is submitted as a message to the tax inspectorate that income has been paid to an individual, but tax has not been withheld from it (clause 5 of Art. 226 Tax Code of the Russian Federation);
— in section 3 - the amount of income from which tax is not withheld;
- in section 5 - the amount of tax calculated but not withheld.
The form must be sent to:
- an individual from whose income personal income tax is not withheld;
- to the tax authority (clause 5 of article 226 of the Tax Code of the Russian Federation).
We recommend sending it by a valuable letter with a description of the attachment, or handing it in person and receiving a receipt on a copy of the document indicating the date of delivery.
The message is sent to the tax authority (clause 5 of Article 226, clause 2 of Article 230, clause 1 of Article 83 of the Tax Code of the Russian Federation):
- organization - at its location, and if the message is submitted in relation to a person working in its separate division - at the location of this division;
- individual entrepreneurs - to the inspectorate at their place of residence, and in relation to employees engaged in activities subject to UTII or PSN - to the tax authority at the place of registration in connection with the implementation of such activities.
After sending a message to the tax authority in form 2-NDFL with attribute “2”, at the end of the year, in general order, it is necessary to submit a certificate 2-NDFL with attribute “1” (Article 216, paragraph 2 of Article 230 of the Tax Code of the Russian Federation, paragraphs 1.1 clause 1 of the Order of the Federal Tax Service of the Russian Federation dated October 30, 2015 No. ММВ-7-11/485@, section II of the Procedure for filling out the 2-NDFL certificate, letter of the Federal Tax Service of the Russian Federation dated March 30, 2016 No. BS-4-11/5443).
If the 2-NDFL certificate is submitted by the successor for the reorganized organization, then in accordance with the changes made by Order of the Federal Tax Service of the Russian Federation dated January 17, 2018 No. ММВ-7-11/19@, he should indicate “4” in the “Sign” field (Chapter II Procedure for filling out certificate 2-NDFL).
An example of filling out a 2-NDFL certificate with sign 2
Alliance LLC in October 2017 rewarded former employee Petr Petrovich Ivanov (resident of the Russian Federation). The price of the gift is 9,500 rubles. Income code - 2720.The deduction amount is 4,000 rubles. Deduction code - 501. Tax base: 5,500 rubles (9,500 rubles - 4,000 rubles).
Personal income tax: 715 rubles (5,500 rubles x 13 percent).
For the same person, you must also submit a 2-NDFL certificate with attribute “1” (letter of the Federal Tax Service of the Russian Federation dated March 30, 2016 No. BS-4-11/5443).
Certificate 2-NDFL will look like this:
Moreover, even if the tax agent did not pay other income, he will need to submit to the inspectorate two identical certificates for the same person, the difference will only be in the indication of presentation (letter of the Ministry of Finance of the Russian Federation dated October 27, 2011 No. 03-04-06/8- 290).
Failure to provide a certificate will entail the same fine in the amount of 200 rubles.
True, there are court decisions in which arbitrators recognize such fines as illegal. They indicate that there is no point in duplicating information (resolutions of the Federal Antimonopoly Service of the Ural District dated September 24, 2013 No. F09-9209/13, dated September 10, 2014 No. F09-5625/14, dated May 23, 2014 No. F09-2820/14, FAS East Siberian District dated 04/09/2013 No. A19-16467/2012), and add that, in accordance with clause 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer.
But it is advisable not to lead to such proceedings. It is better to resend a document, the completion of which does not pose any particular difficulties, than to resolve such issues in court. After all, if you lose, in addition to the fine, you will also have to pay legal costs.
Sanctions
Failure to provide information about the impossibility of withholding is punishable in accordance with paragraph 1 of Art. 126 of the Tax Code of the Russian Federation with a fine of 200 rubles for each unsubmitted document.If the company or individual entrepreneur informed in time about the impossibility of withholding tax, no penalties will be charged. If you do not report the fact of non-withholding, penalties will be charged under Art. 75 of the Tax Code of the Russian Federation.
In addition, officials of the organization may be held administratively liable (clause 1 of Article 126 of the Tax Code of the Russian Federation, note to Articles 2.4, 15.6 of the Code of Administrative Offenses of the Russian Federation).
A tax agent can also be fined for submitting a 2-NDFL certificate with false information (clause 1 of Article 126.1 of the Tax Code of the Russian Federation).
The calculated amount of personal income tax to be withheld for July was: (60,000 rubles. But these clarifications are already more than 11 years old, and a similar rule has never been spelled out in any regulatory document. Kondratieff bonus based on the results of the year’s work.
In such situations, the company is obliged to promptly report the impossibility of withholding personal income tax to the inspectorate and to the citizen himself. The procedure for submitting messages, the procedure for submitting messages to the tax authorities about the impossibility of withholding personal income tax and the amount of tax was approved by order of the Federal Tax Service of Russia dated September 16, 2011. Obviously, it will have to indicate her previous name and address.
The company must submit a message about the impossibility of withholding personal income tax (letter from the Federal Tax Service of Russia dated BS-4-11/20951). Similar explanations are given in the letter of the Ministry of Finance of Russia dated /8-258. The need to notify the taxpayer of the impossibility of withholding personal income tax and the amount of this mandatory payment is due to the fact that for.
Example of notification to a citizen about the impossibility of withholding personal income tax
Sample of filling out investment tax deduction
Let us recall that tax agents for personal income tax are Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income taxed by the above-mentioned tax. This conclusion is contained in the ruling of the Supreme Court of the Russian Federation dated. At the end of the tax period (2014), the organization sends Zaitseva to the tax office.
Attention, form 2-NDFL “Certificate of income of an individual for the year 20_ was approved by order of the Federal Tax Service of Russia dated MMV-7-3/611. This directly follows from paragraphs 1 and 2 of Article 226, subparagraph 2 of paragraph 1 of Article 228 of the Tax Code of the Russian Federation.
Based on the results of the filling control, a corresponding protocol is drawn up. It is required to submit information on form 2-personal income tax only if there is an obligation to withhold personal income tax in principle and it is not possible to fulfill it. Personal income tax calculated from the employee’s income for December was: 630,000 rubles.
It is important to remember that if, after sending messages about the impossibility of withholding tax to the tax office and an individual, the organization has the opportunity to withhold tax, then this is not necessary (clause 228 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated / 8-258, Federal Tax Service of Russia. agreement purchase and sale standard sample download
Wrongful failure to withhold tax by a tax agent, according to the Tax Code, is a tax offense and entails liability in the form of a fine. Considering that this violation is expressed in the failure to transfer tax to the budget within the prescribed period, appropriate penalties are also subject to accrual on the amount of arrears. Well, what if the tax agent simply did not have the opportunity to withhold personal income tax?
According to paragraphs 1 and 2 of Art. 226 of the Tax Code, Russian organizations and individual entrepreneurs are recognized as tax agents for personal income tax in relation to all taxpayer income from which they are the source. The only exception is the income of individuals, the tax on which is calculated and paid according to separate rules established by Art. Art. 214.1, 214.3, 214.4, 214.5, 227, 227.1 and 228 of the Code. The main responsibility of tax agents is to correctly and timely calculate, withhold personal income tax from individuals and transfer it to the budget (clause 1, clause 3, article 24, clause 1, article 226 of the Tax Code).
In the event that the personal income tax was not withheld by the tax agent, the tax authorities do not have the right to directly collect the amount of tax from him. Indeed, in such a situation, it is at the disposal of individuals who have received the corresponding income, and not at all with the tax agent. Accordingly, it is they, as direct taxpayers, who remain obligated to pay the tax. As representatives of the Presidium of the Supreme Arbitration Court of the Russian Federation indicated in Resolution No. 5317/11 of September 20, 2011, collection of this amount from the tax agent’s own funds in this case is unacceptable. Moreover, as for personal income tax, clause 9 of Art. 226 of the Tax Code establishes a direct ban on paying personal income tax at the expense of the tax agent’s own funds.
However, unlawful non-withholding and (or) non-transfer of tax to the budget by a tax agent by virtue of Art. 123 of the Tax Code are a tax offense. Responsibility for it is provided in the form of a fine in the amount of 20 percent of the amount subject to withholding and (or) transfer. In addition, since failure to withhold tax excludes the possibility of its timely payment to the budget, the tax agent cannot avoid the accrual of penalties (Article 75 of the Tax Code).
At the same time, it is not always possible for a tax agent to “withdraw” personal income tax from an employee’s income.
When personal income tax cannot be withheld
Clause 4 of Art. 226 of the Tax Code requires personal income tax to be withheld directly from the taxpayer’s income upon actual payment. However, paying taxes from your own funds, as already mentioned, is prohibited. Thus, in order to fulfill the obligation assigned to him, the tax agent must have exactly the funds that need to be paid to the individual. Meanwhile, according to paragraph 1 of Art. 210 of the Tax Code, when determining the personal income tax base, the taxpayer’s income received not only in cash, but also in kind, as well as income in the form of material benefits, is taken into account. When paying such income, as representatives of the Russian Ministry of Finance confirm in Letter No. 03-04-08/8-258 dated November 17, 2010, the tax agent is simply not able to withhold personal income tax. Moreover, these clarifications from financiers are posted on the official website of the Federal Tax Service in the section “Explanations of the Federal Tax Service, mandatory for use by tax authorities.”
Message about the impossibility of withholding personal income tax
The situation when it is not possible to withhold personal income tax is regulated by clause 5 of Art. 226 of the Tax Code (Letters of the Ministry of Finance of Russia dated August 29, 2011 N 03-04-05/3-611, Federal Tax Service of Russia dated August 19, 2011 N AS-4-3/13626, dated July 16, 2012 N ED- 4-3/11637@, dated October 28, 2011 N ED-4-3/17996). In this case, the duties of the tax agent will be considered fulfilled if he notifies in writing about this fact and the amount of unwithheld tax to both the taxpayer and the tax authority at the place of his registration (Letters of the Ministry of Finance of Russia dated April 5, 2010 N 03-04-06/10 -62, dated February 9, 2010 N 03-04-06/10-12). This must be done within a month after the end of the tax period in which the relevant circumstances arose. But missing this deadline does not mean that the impossibility of withholding tax can no longer be reported.
For your information! Income of an individual in kind includes: payment for goods, services or work, as well as goods received by him, work or services performed in his interests free of charge (clause 2 of Article 211 of the Tax Code).
In any case, it should be borne in mind that for the purpose of applying paragraph 5 of Art. 226 of the Tax Code, the possibility of withholding personal income tax should be absent from the moment an individual receives income until the end of the tax period, that is, the year (Letter of the Ministry of Finance of Russia dated November 17, 2010 N 03-04-08/8-258). The fact is that, according to paragraph 4 of Art. 226 of the Code, the deduction of the accrued tax amount is carried out by the tax agent at the expense of any funds paid by him to the taxpayer (Letter of the Federal Tax Service of Russia dated November 22, 2013 No. BS-4-11/20951). Simply put, if by the end of the year a tax agent pays any money to an individual, he is obliged to “deduct” from them, including personal income tax not withheld earlier, and the provisions of paragraph 5 of Art. 226 of the Tax Code are not applicable in this case.
The form for reporting the impossibility of withholding personal income tax and the amount of tax was approved by Order of the Federal Tax Service of Russia dated November 17, 2010 N ММВ-7-3/611@. It is the same 2-NDFL certificate, only the number “2” is entered in the “Sign” field (Letters of the Ministry of Finance of Russia dated October 27, 2011 N 03-04-06/8-290, Federal Tax Service of Russia dated April 18, 2011 N KE-4-3/6132).
Personal income tax: new rules for declaring income
However, its submission does not relieve the tax agent from the obligation to report to the Federal Tax Service on the results of the year in Form 2-NDFL with sign “1” (Letter of the Ministry of Finance of Russia dated October 27, 2011 N 03-04-06/8-290).
The procedure for submitting a message about the impossibility of withholding personal income tax was approved by Order dated September 16, 2011 N ММВ-7-3/576@ (hereinafter referred to as the Procedure).
If the message is not submitted
As representatives of the Federal Tax Service indicated in Letter No. BS-4-11/20951 dated November 22, 2013, if the tax agent, in the prescribed manner and within the appropriate time frame, informed the taxpayer and the tax authority in writing about the impossibility of withholding personal income tax and its amount, then there are grounds for Inspectors do not charge penalties. Obviously, in such a situation there is no reason to hold the tax agent liable under Art. 123 Tax Code. Indeed, from the moment the corresponding message is sent, the duties of the tax agent are considered fulfilled (Letters of the Ministry of Finance of Russia dated March 12, 2013 N 03-04-06/7337, Federal Tax Service of Russia dated October 26, 2012 N ED-4-3/18174@).
If the requirements of paragraph 5 of Art. 226 of the Tax Code by the tax agent, experts from the Federal Tax Service of Russia indicated in Letter No. BS-4-11/20951 dated November 22, 2013, penalties may be charged to him in accordance with Art. 75 of the Tax Code in the prescribed manner on the date of the decision based on the results of the on-site audit.
At the same time, the fact that the tax agent did not report the impossibility of withholding personal income tax does not essentially change the fact that he could not do this. In this sense, the position of the Federal Tax Service specialists seems quite controversial and even more questionable if their logic is applied to the application of tax liability. In particular, Art. 123 of the Tax Code establishes a fine only for unlawful non-withholding of tax. It is hardly possible to qualify a situation in this way when there is no possibility of withholding tax.
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If the tax agent cannot withhold personal income tax, for example, income was issued in kind and no more cash payments were made to an individual in this tax period, the obligation to withhold tax does not arise (Resolution of the Plenum of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 06/11/1999 N 41/9 (p 10), Federal Antimonopoly Service of the Ural District dated June 10, 2009 N F09-3923/09-S2).
However, in such cases, it is necessary to inform the tax authority, as well as the taxpayer, in writing about the impossibility of withholding tax and about the amount of debt of an individual (clause 5 of Article 226 of the Tax Code of the Russian Federation).
The message is sent to the taxpayer and to the tax office at the place of registration no later than one month from the date of the end of the relevant tax period (clause 2 p.
Inability to withhold personal income tax
3 tbsp. 24, paragraph 5, art. 226 of the Tax Code of the Russian Federation). If the tax period has ended and you have notified the inspectorate and the taxpayer of the impossibility of withholding the corresponding amount of personal income tax, your responsibility as a tax agent ceases (Letters of the Ministry of Finance of Russia dated 04/05/2010 N 03-04-06/10-62, dated 02/09/2010 N 03-04 -06/10-12).
Note
Such rules were introduced on January 1, 2010 (clause 2 of article 2 of the Federal Law of December 27, 2009 N 368-FZ). Until 2010, tax agents were required to report the impossibility of withholding tax only to the tax authority within one month from the day the organization became aware that in the next 12 months it would not be able to withhold personal income tax (clause 5 of Article 226 of the Tax Code of the Russian Federation).
The form of such notification must be approved by the Federal Tax Service of Russia (paragraph 2, paragraph 5, article 226 of the Tax Code of the Russian Federation).
However, at present there is no special form for submitting such information (Letter of the Federal Tax Service of Russia dated September 18, 2008 N 3-5-03/513@).
The specified certificate sent to the tax authority must be accompanied by a statement of the impossibility of withholding tax, drawn up in any form. In particular, it may look like this.
┌──────────────────────────────────────── ───────── ────────────────────────┐ │Alpha LLC Head of the Federal Tax Service No. 4│ │Address: Moscow, st. Krasnaya Sosna, 5 in the Central Administrative District of Moscow│ │TIN 7704502552, checkpoint 770401001 Ivanov I.S.│ │ │ │Ref. N 34 of 01/21/2010 │ │ │ │ │ │ Statement │ │ │ │ Due to the inability to fulfill the duties of a tax agent and withhold personal income tax on income paid to three individuals in kind, on the basis of clause 5 of Art. 226 of the Tax Code of the Russian Federation we inform about the fact that they received income. │ │ Appendix: certificates in form 2-NDFL - 3 copies. │ │ │ │ │ │ │ │ │ │Director of Alpha LLC /Petrov A.A./ Signature│ └─────────────────── ────── ───────────────────────────────────────── ───────┘
Let's illustrate everything stated above with an example.
For example, in February 2010, the Alpha organization awarded the winner of the incentive lottery, citizen A.S. Serov prize. The value of the prize based on the market price of its acquisition was 15,000 rubles. Income in the form of the value of prizes in the amount of more than 4,000 rubles. is subject to personal income tax (paragraph 6, clause 28, article 217 of the Tax Code of the Russian Federation).
Since the income of A.S. Serov was given in kind, then the organization cannot withhold tax on this income. Therefore, no later than January 31, 2011, she must send a message to her tax office about the impossibility of withholding tax.
In particular, in a message in Form 2-NDFL, the organization will indicate the amount of income of an individual in monetary equivalent, determining it in accordance with Art. 211 of the Tax Code of the Russian Federation, will reflect the amount of non-taxable income - 4000 rubles, and will also calculate the amount of tax that an individual must pay on the income received.
The organization must also inform the individual about the impossibility of withholding tax and the amount of debt.
Note
You can find out more about filling out an income certificate in Form 2-NDFL in Chapter. 18 "Certificate of income of an individual (form 2-NDFL)".
There are cases when individuals regularly receive income from an organization (for example, several times during the month), from which personal income tax cannot be withheld. Before 2010, there were two points of view on this matter. Thus, according to the Russian Ministry of Finance, in such situations, a message about the impossibility of withholding tax could be sent to the tax authority once at the end of each month (Letter dated December 15, 2006 N 03-05-01-04/333 (clause 1)).
But the Federal Antimonopoly Service of the Volga Region expressed the following opinion on this matter. He indicated that when paying income on a monthly basis, from which it is impossible to withhold personal income tax, information about the impossibility of withholding tax is submitted at the end of the year, and not monthly after the expiration of the corresponding month (Resolution dated July 15, 2008 N A57-6558/2006-22 (remained in force Determination of the Supreme Arbitration Court of the Russian Federation dated November 19, 2008 N 14718/08)).
We inform you about the impossibility of withholding personal income tax
January 31, 2012 is the last day for tax agents to submit reports about the impossibility of withholding personal income tax and the amount of this mandatory payment for 2011. These persons must send this information to the taxpayer, as well as to the tax office at their place of registration.
According to paragraph 5 of Art. 226 of the Tax Code, if it is impossible to withhold the calculated amount of personal income tax from the taxpayer, the tax agent is obliged, no later than one month from the date of the end of the tax period in which the relevant circumstances arose, to notify in writing the taxpayer and the tax authority at the place of his registration about the impossibility of withholding the tax and the amount of tax.
The tax period for personal income tax is the calendar year (Article 216 of the Tax Code of the Russian Federation).
Let us recall that tax agents for personal income tax are Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income taxed by the above-mentioned tax. In this case, the listed persons are obliged to calculate, withhold from the taxpayer and pay the amount of tax. They must do this in a certain order. Thus, the amount of personal income tax to be transferred to the budget is calculated in accordance with Art. 224 of the Tax Code, taking into account the features provided for in Art. 226 of the Code.
Personal income tax taxpayers are individuals who are tax residents of the Russian Federation or who receive income from sources in the Russian Federation and are not tax residents of the Russian Federation.
Inability to withhold personal income tax
The tax agent may encounter the impossibility of withholding personal income tax, for example, when paying income in kind to the taxpayer or when the latter receives income in the form of material benefits. In addition, the tax agent cannot withhold calculated amounts of personal income tax when he:
- pays to individuals, on the basis of a court decision, amounts of arrears of wages in the amounts determined in court decisions;
- provides its former employees who left due to old-age retirement with free rail travel once a year;
- gives citizens gifts worth more than 4,000 rubles. without paying them any future income in cash.
Attention! When paying income monthly, from which it is impossible to withhold tax, information about the debt is submitted at the end of the year, and not monthly (see, for example, Resolution of the Federal Antimonopoly Service of the Volga District dated July 15, 2008 in case No. A57-6558/2006-22 (upheld in force by the Determination of the Supreme Arbitration Court of the Russian Federation dated November 19, 2008 N 14718/08)).
Let us note that in Letters of the Ministry of Finance of Russia dated April 14, 2009 N 03-04-05-01/181, dated November 14, 2007 N 03-04-06-01/392, Federal Tax Service of Russia dated July 16, 2009 N 3-5-04/1040@ the following clarifications are provided. The organization conducting the lottery is recognized as a tax agent whose responsibilities include calculating the amount of tax, but which is not able to withhold personal income tax due to the lack of cash payments in favor of the taxpayer.
Let's say the tax agent paid the taxpayer income in kind.
Tax authorities have developed a text for a message to the taxpayer about the impossibility of withholding tax
Then, some time before the end of the tax period (calendar year), he paid the taxpayer more income, but in the form of cash. Then the tax agent is obliged to withhold personal income tax from this money, calculated on income in kind. In this case, the withheld tax amounts cannot exceed 50 percent of the payment amount.
After the end of the tax period, when the taxpayer was paid income from which personal income tax was not withheld, and a written message was sent to him and the tax authority about the impossibility of withholding the tax and its amount, the obligation to pay this mandatory payment rests with the taxpayer. In this case, the duty of the tax agent to withhold the corresponding amounts of tax ceases. Similar explanations are given in Letter of the Ministry of Finance of Russia dated November 17, 2010 N 03-04-08/8-258.
According to paragraph 9 of Art. 226 of the Tax Code, payment of personal income tax at the expense of tax agents is not allowed.
The taxpayer, the recipient of income from which personal income tax was not withheld by the tax agent, must independently calculate and pay tax on the basis of paragraphs. 4 paragraphs 1 art. 228 of the Tax Code.
The need to notify the taxpayer of the impossibility of withholding personal income tax and the amount of this mandatory payment is due to the fact that in order to correctly fill out a tax return, he must have information about both the source of payment of income and the amount of income. And the tax authority needs this information for the purpose of exercising tax control, primarily over the recipient of the income.
Order of presentation of messages
The procedure for submitting messages to the tax authorities about the impossibility of withholding personal income tax and the amount of tax was approved by Order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-7-3/576@. This regulatory act came into force on November 8, 2011.
Attention! Order of the Ministry of Taxes of Russia dated October 31, 2003 No. BG-3-04/583 “On approval of reporting forms for personal income tax for 2003” became invalid due to the entry into force of Order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-7-3/576@.
According to this Procedure, the messages under consideration may be:
- submitted by the tax agent to the tax authority personally or through a representative;
- sent in the form of a postal item with an inventory of the contents;
- transmitted electronically in established formats on electronic media or electronically via telecommunication channels (hereinafter referred to as TCS) using a qualified electronic signature of the tax agent or his representative.
Tax agents submit information to the tax authority in the form of a certificate in Form 2-NDFL, valid in the corresponding tax period.
Attention! Form 2-NDFL “Certificate of income of an individual for the year 20__” was approved by Order of the Federal Tax Service of Russia dated November 17, 2010 N ММВ-7-3/611@.
The date of submission of messages is considered:
- when presented personally or by a representative of a tax agent to the tax authority - the date of their actual presentation;
- when sent by mail - the date of their sending by mail with a description of the attachment;
- when transmitted electronically on electronic media or via TKS - the date of their sending, recorded in the confirmation of the date of sending in electronic form via TKS of a specialized telecom operator or tax authority.
Peculiarities
On electronic media, tax agents submit messages about the impossibility of withholding personal income tax and the amount of tax to the tax office in person, through a representative, or send them by mail with a list of the contents.
This information is in the form of file(s) of a specific format. It can be placed on 3.5" floppy disks, CDs, DVDs, flash memory devices. Messages are sent with accompanying registers of information on the income of individuals, which are compiled on paper in two copies for each file.
Messages that have passed format control are considered submitted. The results of format control of the information file are reflected in the corresponding protocol.
On paper, notifications about the impossibility of withholding personal income tax and the amount of tax are submitted by tax agents to the tax office in person, through a representative, or sent by mail with a list of attachments, in the form of a certificate in form 2-NDFL, valid in the corresponding tax period, with an accompanying register in two copies.
Information that has passed the completion control is considered submitted. Information that does not pass this control is removed from the submitted package of documents as erroneous and returned to the tax agent or representative of the tax agent and deleted from the register.
Based on the results of the filling control, a corresponding protocol is drawn up.
Electronically, via the TKS, the tax agent submits messages about the impossibility of withholding personal income tax and the amount of tax to the tax office, without duplicating them on paper or electronic media.
The tax agent sends this information through a specialized telecom operator or through the website of the Federal Tax Service of Russia.
If the amount of information in one file exceeds 3000 documents, then several files must be generated.
Within 10 days from the date of sending the messages, the tax authority sends the agent an electronic register and a protocol for receiving information.
Information that has passed format control and is recorded in the register generated by the tax authority is considered to be presented.
Responsibility
If the tax agent does not promptly inform the tax authority about the impossibility of withholding personal income tax and the amount of tax, then a fine of 200 rubles may be collected from him. for each document not submitted (Article 126 of the Tax Code of the Russian Federation).
In addition, such untimely reporting may be qualified as a gross violation of income accounting rules. This involves holding the tax agent accountable on the basis of Art. 120 Tax Code. According to it, a gross violation by an organization of the rules for accounting for income and (or) expenses and (or) taxable items, if these acts were committed during one tax period, entails a fine of 10,000 rubles.
Zh. Kuzmina
Expert Editor
The organization is obliged to withhold personal income tax from payments in respect of which it is tax agent (Clause 1 and 2 of Article 226, Article 226.1 of the Tax Code of the Russian Federation). However, the tax agent does not always have the opportunity to withhold personal income tax.
For example, the ability to withhold is limited if the employee received a material benefit, income in kind, or became non-resident(In this case, personal income tax must be recalculated at a rate of 30 percent). If the employee did not receive other income in cash or quit immediately after these events, the possibility of withholding personal income tax by the organization that is the source of income is completely excluded. This was stated in the letter of the Ministry of Finance of Russia dated March 19, 2007 No. 03-04-06-01/74. The same situation arises if income in kind was received by a person who is not an employee of the organization (for example, a buyer).
If, after paying income from which tax was not withheld, the employee receives other income in cash, the tax agent has the opportunity to withhold personal income tax that was not previously withheld. In this case, he is obliged to withhold tax from the entire amount of income, including from income paid earlier (letters of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337 and dated November 17, 2010 No. 03- 04-08/8-258, Federal Tax Service of Russia dated November 1, 2012 No. ED-4-3/18519). At the same time, the tax agent must take into account that he has no right to withhold personal income tax in the amount of more than 50 percent of the amount of payment in cash (paragraph 2, paragraph 4, article 226 of the Tax Code of the Russian Federation).
An example of how payment of bonuses in kind is reflected in accounting and taxation (personal income tax cannot be withheld)
In December 2015, the organization issued the economist A.S. Kondratiev Prize based on the results of work for the year. The bonus was issued on the basis of an order from the head of the organization. The employee was given a car as a bonus.
For December, the employee was accrued 630,000 rubles, of which:
- 30,000 rub. – salary payment;
- 600,000 rub. – a bonus given in kind.
Personal income tax calculated on the employee’s income for December was:
630,000 rub. × 13% = 81,900 rub.
Cash payments to the employee amounted to RUB 30,000. The organization’s accountant calculated the maximum amount of personal income tax that can be withheld from an employee’s income:
30,000 rub. × 50% = 15,000 rub.
The amount of tax not withheld amounted to RUB 66,900. (RUB 81,900 – RUB 15,000). The tax agent is obliged to notify about the impossibility of withholding personal income tax in 2015 no later than March 1, 2016 (clause 5 of Article 226 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated October 19, 2015 No. BS-4-11/18217). Within the prescribed period, the organization sent a corresponding message to the tax office and notified Kondratiev himself about this. On the same day, the organization’s accountant made a reversal entry in the accounting for the accrual of personal income tax in the amount of 66,900 rubles. (RUB 81,900 – RUB 15,000).
Informing the tax office
The income paid, from which the tax agent did not (cannot withhold) personal income tax, should be reported to the tax office. The deadline for submitting reports is no later than March 1 after the end of the year in which the income was paid. This period also applies to reports of the impossibility of withholding personal income tax from income paid in 2015.
In addition to the tax office, the taxpayer who received the income must also be notified of the impossibility of withholding personal income tax.
This procedure follows from the provisions of paragraph 5 of Article 226 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337, Federal Tax Service of Russia dated October 19, 2015 No. BS-4-11/18217.
Attention: failure to inform the tax inspectorate about the impossibility of withholding personal income tax is an offense (Article 106 of the Tax Code of the Russian Federation, Article 2.1 of the Code of Administrative Offenses of the Russian Federation), for which tax and administrative liability is provided.
The fine will be:
- 200 rub. – for each case of failure to provide information (i.e. for each message that the tax agent should have sent to the inspectorate, but did not do so) under Article 126 of the Tax Code of the Russian Federation;
- from 300 to 500 rub. – in relation to officials of the organization, for example the manager (Article 15.6 of the Code of Administrative Offenses of the Russian Federation).
In addition, if during an on-site tax audit it is discovered that the organization did not report to the tax inspectorate about income from which personal income tax was not withheld, in addition to penalties, inspectors may charge penalties (letter of the Federal Tax Service of Russia dated November 22, 2013 No. BS- 4-11/20951).
Advice: The accrual of penalties in cases where an organization could not withhold personal income tax, but did not send the appropriate notification to the inspectorate, can be challenged in court.
If the tax agent was not able to withhold personal income tax, there are no grounds for charging penalties in principle. This conclusion is contained in the ruling of the Supreme Court of the Russian Federation dated March 19, 2015 No. 304-KG14-4815. This conclusion corresponds to paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57, according to which the accrual of penalties to the tax agent is possible if personal income tax was withheld but not transferred to the budget. The Federal Tax Service of Russia shares this position, but warns that penalties are not charged if the tax agent notified the inspectorate of the impossibility of withholding tax (letter dated August 22, 2014 No. SA-4-7/16692). In fact, penalties cannot be collected, even if the tax agent did not send such a notice. After all, penalties are a sanction for late payment of tax, and not for the fact that the tax agent did not fulfill his duty to inform the inspectorate (Clause 1 of Article 75 of the Tax Code of the Russian Federation). Consequently, penalties in this case should not be accrued - only liability under Article 126 of the Tax Code of the Russian Federation applies. Still, check out How to fill out a 2-NDFL certificate if tax is withheld but not transferred.
A special procedure is provided for filing reports about the impossibility of withholding personal income tax on transactions with securities. The deadline for filing such messages depends on what happened first:
– a month has passed since the end of the tax period in which no tax was withheld;
– the last agreement between a person and a tax agent, within the framework of which personal income tax was calculated, has expired.
In the first case, the message must be sent to the tax office before March 1 of the year following the expired tax period. In the second, the inspection must be notified within a month from the date of expiration of the agreement under which the personal income tax was accrued.
This is stated in paragraph 14 of Article 226.1 of the Tax Code of the Russian Federation.
Submit messages about the impossibility of withholding tax on forms using Form 2-NDFL (clause 2 of the order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11/485) indicating the number 2 in the “Sign” field. These messages must be transmitted to in the same manner as information on paid income (clause 1 of the Procedure approved by order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-7-3/576).
After the tax agent has notified the tax office and the taxpayer of the impossibility of withholding personal income tax, he must not withhold the missing amount of tax. Even if he later has such an opportunity. If the notification is submitted in a timely manner, then penalties for the amount of unwithheld personal income tax are not charged to the tax agent. The person will have to repay the debt on his own no later than July 15. This follows from the provisions of paragraph 4 of Article 228 of the Tax Code of the Russian Federation, paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 and is confirmed by letters of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337, dated November 17, 2010 No. 03-04-08/8-258, dated February 9, 2010 No. 03-04-06/10-12 and Federal Tax Service of Russia dated August 22, 2014 No. SA-4-7/16692.
Situation: Is an organization obliged to notify an employee of the need to pay personal income tax on his own if he has already been notified of the impossibility of withholding tax on his income?
No, I don't have to. But on its own initiative, the organization can provide such information to the employee.
The fact that the tax agent cannot withhold personal income tax from the income paid, he is obliged to notify the tax office and the taxpayer himself. Messages about the impossibility of withholding tax are submitted on forms in form 2-NDFL with the number 2 indicated in the “Sign” field. This is stated in paragraph 5 of Article 226 of the Tax Code of the Russian Federation.
There is no separate standard form for informing an employee about the impossibility of withholding personal income tax. Moreover, Article 226 of the Tax Code of the Russian Federation does not contain provisions that would oblige the organization to inform the employee in writing about the reasons for the impossibility of withholding personal income tax and his obligation to pay the tax himself. However, on a voluntary basis, an organization can transfer this information to an employee in the form of a message, notification or explanatory note to form 2-NDFL.
Situation: Is it necessary to re-submit Form 2-NDFL at the end of the year if the tax agent previously notified the inspectorate of the impossibility of withholding personal income tax from the income paid? No additional income was paid to the person during the year.
Yes need.
Submission of information about the impossibility of withholding personal income tax from a citizen during the year does not relieve the tax agent from the obligation to submit certificates in Form 2-NDFL at the end of the tax period (clause 2 of Article 230 of the Tax Code of the Russian Federation). Such clarifications are contained in letters of the Ministry of Finance of Russia dated December 29, 2011 No. 03-04-06/6-363, Federal Tax Service of Russia dated October 29, 2008 No. 3-5-04/652 and dated September 18, 2008 No. 3- 5-03/513. At the same time, the amounts of income and calculated tax (including non-withheld tax), which were previously reflected in certificate 2-NDFL with sign 2, are indicated in annual certificates with sign 1 (letter of the Ministry of Finance of Russia dated October 27, 2011 No. 03- 04-06/8-290).
Advice: There are grounds that exempt tax agents from re-submitting 2-NDFL certificates in relation to income from which it is impossible to withhold tax. They are as follows.
If the organization informed the tax inspectorate about a person’s income from which it is impossible to withhold tax, and if the organization did not pay any additional income to this person by the end of the year, there is no need to send a repeated 2-NDFL certificate to the inspectorate. The presence of different criteria for classifying the same income does not affect the composition of the information reflected in the initial certificate. Having submitted the 2-NDFL certificate with sign 2, the tax agent fulfilled the requirements established by paragraph 5 of Article 226 and paragraph 2 of Article 230 of the Tax Code of the Russian Federation. An organization should not duplicate the same information in the 2-NDFL certificate with attribute 1: repeated performance of the same duties is not provided for by tax legislation. Therefore, the penalties provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation should not be applied in the situation under consideration.
Most likely, the tax inspectorate will not agree with such an interpretation of the legislation. Then the tax agent will have to defend the refusal to re-submit reports about the impossibility of withholding personal income tax in court. In arbitration practice there are examples of court decisions confirming the legality of this approach (see, for example, decisions of the Arbitration Court of the Ural District dated September 8, 2015 No. F09-5794/15, FAS Ural District dated September 24, 2013 No. F09-9209/ 13).
An example of a notification to the tax office that an organization cannot withhold personal income tax from the income of employees who have become non-residents
Citizen of Moldova A.S. Kondratyev has been working in the organization under an employment contract since January 2014. In the period from January to July and from November to December 2014, Kondratiev lived in Russia.
The organization pays Kondratiev a monthly salary in the amount of 10,000 rubles.
From January to March 2015 (inclusive) the employee was on a business trip abroad.
For the period from January to June, Kondratyev received a salary in the amount of 60,000 rubles. Kondratyev did not receive any other income subject to personal income tax.
Kondratiev has no children, so he is not provided with standard tax deductions.
The amount of personal income tax withheld and transferred to the budget amounted to 7,800 rubles. (RUB 60,000 × 13%).
As of July 30, 2015, Kondratyev lost his tax resident status (during the previous 12 consecutive months, he was in Russia for less than 183 calendar days).
Due to the change in Kondratiev’s tax status, the accountant recalculated the previously calculated personal income tax at a rate of 30 percent.
In July, Kondratyev received a salary of 10,000 rubles.
The calculated amount of personal income tax to be withheld for July was:
(60,000 rub. + 10,000 rub.) × 30% – 7,800 rub. = 13,200 rub.
The withheld amount of tax cannot exceed 50 percent of the payment amount in cash (paragraph 2, paragraph 4, article 226 of the Tax Code of the Russian Federation). Therefore, the maximum amount of personal income tax that an organization can withhold from Kondratiev’s income for July 2015 is 5,000 rubles. (RUB 10,000 × 50%).
The amount of tax not withheld amounted to RUB 8,200. (RUB 13,200 – RUB 5,000). In accordance with paragraph 5 of Article 226 of the Tax Code of the Russian Federation, on March 1, 2016, the organization sent a message to the tax inspectorate about the impossibility of withholding tax from Kondratiev and notified Kondratiev himself about this.
Situation: Is it necessary to submit information to the tax office about the impossibility of withholding personal income tax from the income of the individual from whom the car was purchased??
No no need.
It is required to submit information in Form 2-NDFL only if there is, in principle, an obligation to withhold personal income tax and it cannot be fulfilled. In the case under consideration, these obligations do not arise for the buyer. The personal income tax on income from the sale of a car must be paid by the individual seller himself.
The purchasing organization is not obliged to calculate, withhold, transfer personal income tax, much less report to the tax office about these amounts. Tax agent obligations do not arise when purchasing property from individuals. This directly follows from paragraphs 1 and 2 of Article 226, subparagraph 2 of paragraph 1 of Article 228 of the Tax Code of the Russian Federation.
The following recommendations will help you figure out when you need to act as a tax agent:
- In what cases does a citizen have an obligation to calculate personal income tax? .
Situation: What to do with the amount of personal income tax that cannot be collected due to the death of an employee?
Do not notify the tax office about the impossibility of withholding personal income tax due to the death of an employee.
If personal income tax was not withheld from his income before the death of an employee, then after death there is no need to withhold it. The death of an employee leads to the termination of his obligations to pay personal income tax (clause 3 of article 44 of the Tax Code of the Russian Federation). When submitting information about an employee’s income for the year, it is advisable to indicate why personal income tax was not withheld. Such clarifications were given by the Russian Ministry of Finance in letter dated January 18, 2006 No. 03-05-01-04/4.
Notifying the tax authority about the impossibility of withholding the calculated amount of personal income tax is one of the responsibilities of the employer as a tax agent for personal income tax. Our expert will tell you how to fulfill this duty and what are the consequences of ignoring it.
Tax agent for personal income tax and his duties
According to tax legislation, personal income tax agents are Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation from which or as a result of relations with which the taxpayer received income.One of the duties of tax agents provided for clause 5 art. 226 Tax Code of the Russian Federation, is a written message to the taxpayer and the tax authority about the impossibility of withholding tax. As noted in Letter of the Federal Tax Service of the Russian Federation dated August 22, 2014 No. SA-4-7/16692, the impossibility of withholding tax arises, for example, in the case of payment of income in kind or the occurrence of income in the form of material benefits.
This duty should not be confused with the duty provided for clause 2 art. 230 Tax Code of the Russian Federation, namely with the obligation to submit to the tax authority at the place of their registration information about the income of individuals of the expired tax period and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation for this tax period.
A notification about the impossibility of withholding tax is submitted no later than one month from the end of the tax period, that is, for income paid in 2014 - no later than 01/31/2015. However, 01/31/2015 falls on a day off - Saturday, therefore, in accordance with clause 7 art. 6.1 Tax Code of the Russian Federation The expiration date is considered to be the next working day following it, that is, 02/02/2015.
Information in accordance with clause 2 art. 230 Tax Code of the Russian Federation are submitted no later than April 1 of the year following the expired tax period, that is, for income paid in 2014 - no later than 04/01/2015.
Form for reporting the impossibility of withholding personal income tax
IN paragraph 5 art. 226 Tax Code of the Russian Federation it is said that the form of notification of the impossibility of withholding personal income tax and the amount of tax and the procedure for submitting it to the tax authority are approved by the federal executive body authorized for control and supervision in the field of taxes and fees. Clause 2 of the Order of the Federal Tax Service of the Russian Federation No. ММВ-7-3/611@ it was established that the message about the impossibility of withholding tax and the amount of tax in accordance with clause 5 art. 226 Tax Code of the Russian Federation submitted in the form approved clause 1 of this order, that is, in the same form in which information is submitted in accordance with clause 2 art. 230 Tax Code of the Russian Federation(Form 2-NDFL).Fill out a message about the impossibility of withholding personal income tax
The procedure for filling out 2-NDFL certificates submitted in accordance with clause 5 art. 226 And clause 2 art. 230 Tax Code of the Russian Federation, varies. Here are the features you should know when filling out the 2-NDFL certificate in force clause 5 art. 226 Tax Code of the Russian Federation.| Help section 2-NDFL | The procedure for filling in the case of submitting a certificate in accordance with clause 5 of Art. 226 Tax Code of the Russian Federation |
| Field "Character" | Enter the number 2 |
| Section 3 “Income taxed at the rate of __%” | When filling out a certificate with sign “2” in section. 3 indicates the amount of income from which tax is not withheld by the tax agent |
| Section 5 “Total amounts of income and tax | Clause 5.1 “Total amount of income” reflects the total amount of income based on the results of the tax period, excluding taxes. |
| based on the results of the tax period at the rate of __%" | gov deductions. This paragraph shows the total amount of income indicated in section. 3 certificates. When filling out a certificate with attribute “2” in clause 5.1, indicate the total amount of income from which tax was not withheld by the tax agent, reflected in section. 3 certificates. In clause 5.3 “Amount of tax calculated” the total amount of tax calculated at the rate specified in section. 3 certificates based on the results of the tax period. When filling out a certificate with attribute “2” in clause 5.3, the total amount of tax calculated but not withheld is indicated. The certificate with attribute “2” does not contain the following: clause 5.4 “Amount of tax withheld”; clause 5.5 “Tax amount transferred”; clause 5.6 “Amount of tax excessively withheld by the tax agent.” Clause 5.7 “Amount of tax not withheld by the tax agent” indicates the calculated amount of tax that the tax agent did not withhold in the reporting (tax) period |
Example
For the period from January to May 2014, Vostok LLC paid its employee a salary in the amount of 75,000 rubles; from this income, 9,750 rubles were calculated, withheld and transferred to the personal income tax budget. In June 2014, the employee received income in kind in the amount of RUB 5,000. The organization calculated personal income tax on this income in the amount of 650 rubles, but did not withhold it. No deductions were provided to the employee. The employee had no other income in 2014.
What personal income tax reporting must an organization submit to the tax authority?
In the case under consideration, the organization must generate two 2-NDFL certificates for this employee: with attribute “1” (it must be submitted no later than 01.04.2015) and attribute “2” (the certificate must be submitted no later than 02.02.2015).
When filling out a certificate with sign “2” in section. 3 indicates the amount of income equal to 5,000 rubles, and in clause 5.3 of section. 5 of the certificate, the calculated amount of tax is entered - 650 rubles, in clause 5.7 of section. 5 reflects the amount of tax not withheld by the tax agent - 650 rubles.
When filling out a certificate with attribute “1” in section. 3 indicates the amount of income - 80,000 rubles, in paragraph 5.3 - 5.5 section. 5 of the certificate indicates the calculated amount of tax - 10,400 rubles, the withheld and transferred amount of tax - 9,750 rubles, and in clause 5.7 of section. 5, the amount of tax not withheld by the tax agent is entered, equal to 650 rubles.
Examples of filling out certificates are given on pages 37 - 38.
Message about the impossibility of withholding personal income tax and the accrual of penalties
IN Letter of the Federal Tax Service of the Russian Federation dated November 22, 2013 No. BS-4-11/20951 the issue of the occurrence of financial consequences for the tax agent in the form of the accrual of penalties in the event that a message about the impossibility of withholding personal income tax is not submitted is considered.Thus, specialists of the main tax department indicated that if the tax agent, in the prescribed manner and within the prescribed time frame, informed the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax in relation to a specific person and the amount of tax, then no penalties are charged to the tax agent.
If the tax agent has not lost the opportunity to withhold personal income tax from the employee’s income, and also has not notified the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax and the amount of tax, penalties may be charged to the tax agent in accordance with Art. 75 Tax Code of the Russian Federation in accordance with the established procedure, on the date of the decision based on the results of the on-site tax audit, the taxpayer must be sent a request to pay tax in accordance with clause 2 art. 70 Tax Code of the Russian Federation.
A similar position is presented in a later clarification of the department - in Letter dated 08/22/2014 No. SA-4-7/16692.
also in Letter no. SA-4-7/16692 tax authorities noted that after the end of the tax period in which the tax agent pays income to an individual, and a written message from the tax agent to the taxpayer and the tax authority at the place of registration about the impossibility of withholding personal income tax, the obligation to pay tax is assigned to the individual, and the tax agent’s obligation to withhold the corresponding tax amounts are terminated.
After notification from the tax agent, the tax must be paid by the taxpayer himself when submitting a personal income tax return to the tax authority at his place of registration.
Responsibility for failure to submit a message about the impossibility of withholding personal income tax
Failure to provide information in Form 2-NDFL (regardless of the basis for sending it) is qualified as failure to provide the tax authority with information necessary for tax control, and according to clause 1 art. 126 Tax Code of the Russian Federation entails a fine of 200 rubles. for each document not submitted.A more interesting issue in this case is liability for failure to provide information with sign “1” in the event that this information has already been submitted with sign “2” and there is no other information about the income of an individual. Taking into account the procedure for filling out the 2-NDFL certificate, in this case the data indicated in the certificates duplicate each other.
For a clearer understanding of the problem, we present the situation discussed in Letter of the Federal Tax Service for Moscow dated 03/07/2014 No. 20-15/021334 . An organization that is a tax agent for personal income tax and does not have the ability to withhold personal income tax from payments in favor of taxpayers, asked the question: is it necessary to submit 2-NDFL certificates with the “1” attribute if the organization has already submitted 2-certificates to the tax authority for these individuals? Personal income tax with sign “2” and there will be no new information in the certificates?
The capital's tax authorities responded: submission of a certificate with sign “2” does not relieve the tax agent from the obligation to submit a certificate with sign “1”.
It should be noted that tax authorities and financiers are adamant on this issue. So, the Ministry of Finance in Letter dated December 29, 2011 No. 03‑04‑06/6-363 indicated that duties of a tax agent provided for in Art. 230 of the Tax Code of the Russian Federation are assigned to the organization regardless of the responsibilities established by Art. 226 Tax Code of the Russian Federation.
Thus, the organization’s fulfillment of the obligation to report the impossibility of withholding tax and the amount of tax in accordance with clause 5 of Art. 226 of the Tax Code of the Russian Federation does not relieve an organization from the obligation to provide information on the income of individuals of the expired tax period and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation in accordance with clause 2 of Art. 230 of the Tax Code of the Russian Federation, including if the organization does not pay the taxpayer other income subject to personal income tax.
Tax officials also adhere to this opinion in court. Thus, in response to statements from tax agents, tax officials give the following arguments:
- the norms of the Tax Code of the Russian Federation do not provide for the exemption of a tax agent from the obligation to provide information about the income of an individual in accordance with clause 2 art. 230 Tax Code of the Russian Federation clause 5 art. 226 Tax Code of the Russian Federation, since these rules presuppose two different grounds for control exercised by the tax authority ( Resolution of the Federal Antimonopoly Service of Ukraine dated September 10, 2014 No. F09-5625/14);
- tax agent, presenting in order clause 5 art. 226 Tax Code of the Russian Federation information about the impossibility of withholding tax amounts, did not fulfill the stipulated clause 2 art. 230 Tax Code of the Russian Federation the obligation to submit to the tax authority information about the income of the same individuals and the amounts of accrued, withheld and transferred taxes on this income (certificate 2-NDFL with sign “1”), and therefore the inspectorate was not able to carry out tax control measures when lack of complete information on the amounts of income received by individuals in the corresponding tax period ( Resolution of the Federal Antimonopoly Service of Ukraine dated May 23, 2014 No. F09-2820/14(Further - Resolution No. F09-2820/14));
- The deadlines for submitting 2-NDFL certificates with features “1” and “2” differ ( Resolution No. F09-2820/14);
- The duties of the tax agent to submit these certificates are enshrined in various norms of the Tax Code of the Russian Federation ( Resolution No. F09-2820/14);
- Current legislation does not provide for the exemption of a tax agent from the obligation to provide information on the income of an individual in accordance with clause 2 art. 230 Tax Code of the Russian Federation in the presence of a message sent on the basis clause 5 art. 226 Tax Code of the Russian Federation (Resolution No. F09-2820/14);
- elements of the offense provided for clause 1 art. 126 Tax Code of the Russian Federation, is formal ( Resolution No. F09-2820/14).
If in relation to any income paid to an individual in 2014, the employer does not have the opportunity to withhold personal income tax, he, acting as a tax agent, is obliged to report this fact to the tax office. The message is drawn up in the form of a certificate in form 2-NDFL and submitted to the tax office no later than 02/02/2015. Ignoring this obligation enshrined clause 5 art. 226 Tax Code of the Russian Federation, entails various sanctions for the tax agent: starting with the accrual of penalties and ending with the accrual of a fine in accordance with clause 1 art. 126 Tax Code of the Russian Federation. According to the Ministry of Finance and the Federal Tax Service, the fulfillment of this obligation does not relieve the obligation to provide information in relation to the same individuals in accordance with clause 2 art. 230 Tax Code of the Russian Federation, even if the individual has no other income. However, the judges have a different opinion on this issue.