The concept of a tax agent, their rights and obligations

Who is who

Experienced accountants and economists remember what exists in the term: tax agents and tax collectors.
Let's see what the similarities and differences are. The concept of “tax agent” is disclosed in the Tax Code of the Russian Federation - Article 24 is devoted to this. This is a person who, in accordance with the requirements of the law, is obliged to calculate and withhold a fiscal payment from the taxpayer, as well as transfer the withheld amounts to the budget of the Russian Federation at the time specified by law.

Until 2007, the concept of “tax collector” existed in taxation practice. They were recognized as persons authorized to collect funds for fiscal payments from taxpayers. Their rights and obligations were regulated by Article 25 of the Tax Code of the Russian Federation. As of January 1, 2007, this article ceased to apply. Currently, the concept of “tax collector” is not used in the legislation of the Russian Federation.

Rights and obligations of taxpayers (payers of fees, payers of insurance premiums)

Each taxpayer (payer of fees, payer of insurance premiums), including your company, has its own rights and obligations. You need to know both and at the same time remember that you have the right to demand compliance with the law from the tax inspectorate.

9 basic rights of taxpayers

1. Receive free information about current taxes and fees from tax authorities at your place of registration.
2. Receive tax return forms (calculations) and explanations on the procedure for filling them out.
3. Use tax benefits if they are provided for by law.
4. Offset or refund amounts of overpaid or overcharged taxes, insurance premiums, penalties, and fines.
5. Provide explanations on the calculation and payment of taxes, insurance premiums, as well as on reports of tax audits carried out.
6. Require tax officials to comply with laws on taxes and fees.
7. Do not comply with unlawful acts and requirements of tax authorities.
8. Appeal, in accordance with the established procedure, acts of tax authorities and actions (inaction) of their officials.
9. To comply with and maintain tax secrets.

9 main responsibilities of taxpayers

1. Pay legally established taxes and fees.
2. Keep records of income and expenses in the prescribed manner.
3. Submit tax returns (calculations).
4. Act as a tax agent.
5. Use cash register equipment (or strict reporting forms).
6. Report to your tax authority about all divisions created on the territory of the Russian Federation (except for branches and representative offices) within 1 month from the date of creation. On changes in information about a separate division - within 3 days from the date of change.
7. Report, using an approved form, to your tax authority about all separate divisions of a Russian organization on the territory of the Russian Federation that are being closed within 3 days from the date of the decision to close.
8. Report, using the approved form, to the tax office about all cases of participation in Russian and foreign organizations within 1 calendar month.
9. Ensure the safety of tax reporting for at least 4 years and accounting reporting for 5 years.

Bear other responsibilities provided for by the legislation on taxes and fees.

Law and order

The rights of a tax payer are regulated by Art. 21 of the Tax Code, obligations of the tax payer - Art. 23 Tax Code.

" Back

Further "

Rights and obligations

According to the Tax Code of the Russian Federation, tax agents are persons who have equal rights with taxpayers. But their responsibilities are specifically spelled out in paragraph 3 of Art. 24 Tax Code of the Russian Federation. They are obliged:

• without errors or violations of deadlines, withhold taxes from payments to taxpayers and transfer them to the budget of the Russian Federation;
• inform in writing about the impossibility of making a withholding and about the amount of the taxpayer’s debt;
• for each taxpayer, keep records of paid income, calculated, withheld and transferred to the budget of the Russian Federation of fiscal fees;
• provide appropriate reporting necessary for control to regulatory authorities;
• keep documents related to the calculation of payments to the budget for at least four years.

Responsibilities

Tax agents are required to:

• correctly calculate the amount of taxes subject to withholding;

• withhold calculated amounts of taxes from funds paid to the counterparty;

• transfer to the budget the withheld amounts of taxes according to the rules established for the payment of taxes (clause 8 of Article 45 of the Tax Code of the Russian Federation);

• promptly submit to the tax office declarations (other documents) on taxes that are withheld from counterparties;

• notify the tax office of the impossibility of withholding tax from the counterparty within one month when the organization learned about it;

• keep documents confirming the calculation, withholding and payment of taxes to the budget for four years.

In addition, tax agents may be assigned other responsibilities provided for by the Tax Code of the Russian Federation.

This is stated in Article 24 of the Tax Code of the Russian Federation.

Tax agents must perform their duties free of charge (letter of the Ministry of Finance of Russia dated February 1, 2011 No. 03-02-07/1-31).

Situation: should the tax agent withhold taxes from the income of the counterparty if, according to the agreement, payment is made in kind?

No, you shouldn't.

Regardless of the form in which the income was paid (cash or in kind), the tax agent is required to calculate the amount of tax to be withheld. However, he must withhold this amount only from funds paid to the counterparty. This is stated in subparagraph 1 of paragraph 3 of Article 24 of the Tax Code of the Russian Federation.

Within a month from the moment when the tax agent became aware of the impossibility of withholding the tax, he must notify the inspectorate about this in writing (subclause 2, clause 3, article 24 of the Tax Code of the Russian Federation). This point is determined depending on the specific situation. For example, the moment when the tax agent becomes aware that he cannot withhold personal income tax is the issuance of prizes (winnings) to clients (citizens) in kind.

The organization is not exempt from performing the duties of a tax agent until the end of the tax period in which income in kind was paid (quarter - for VAT, calendar year - for income tax and personal income tax) (clause 10 of the resolution of June 11, 1999 of the Plenum of the Supreme Court of the Russian Federation No. 41 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 9, letters of the Ministry of Finance of Russia dated March 19, 2007 No. 03-04-06-01/74, Federal Tax Service of Russia dated March 2, 2006 No. 04-1-03/115). Therefore, if before the end of the tax period cash payments in favor of the counterparty took place (including for other transactions), the amount of tax calculated on income in kind must be withheld from them.

Types of tax agents

The Tax Code of the Russian Federation does not directly contain such a concept. Everyone who interacts with a country's tax system acts either as a tax agent or as a taxpayer. As a rule, organizations can be both tax agents and taxpayers. That is, in addition to calculating payments to the budget from their income and operations, companies very often have the obligation to calculate and transfer fiscal fees to the budget for other payers.

An organization can perform agency functions for the following fiscal fees:

• personal income tax;
• VAT;
• income tax.

Let's look at each of them in more detail.

Personal income tax

The obligation to withhold personal income tax arises for any organization. When paying any income to an individual who is not an individual entrepreneur, the company is obliged to withhold personal income tax. Such payments include:

• all remunerations under the employment contract;
• payments under construction contracts and other civil contracts;
• material aid;
• payment for property rental.

The rules for calculating, withholding and transferring personal income tax are prescribed in Chapter 23 of the Tax Code of the Russian Federation. The organization, in addition, is obliged to maintain registers on income paid to individuals and personal income tax amounts withheld and provide reporting to the Federal Tax Service:

• report 6-NDFL - quarterly;
• 2-NDFL certificates - annually.

A special case is brokerage activities. A separate article 226.1 of the Tax Code of the Russian Federation is devoted to the person who withholds personal income tax (broker - tax agent). The broker is obliged to calculate, withhold and transfer to the personal income tax budget when paying income from operations with securities and other derivative financial instruments when carrying out these operations in the interests of the taxpayer on the basis of agreements: for brokerage services, trust management, orders, commissions or agency.

VAT

An organization can become a tax agent for VAT, even if it applies the simplified tax system or UTII, if it performs the following operations:

• acquires or becomes a lessee of state or municipal property;
• will purchase goods from a foreign seller who is not a taxpayer in the Russian Federation.

In this case, the company must draw up an invoice and reflect the transaction in the VAT return by filling out sections 2 and 9. The company has the right to deduct the withheld and transferred agent VAT in the quarter when the goods (work, services) were registered and the withheld VAT is transferred to the budget. But he has the right to do this only if he is a VAT payer.

Income tax

An organization becomes a tax agent for this tax if it pays:

• dividends from another organization;
• interest on state (municipal) securities to other organizations;
• income of a foreign organization from the sale or rental of real estate on the territory of the Russian Federation, from international transportation. A Russian organization has this obligation if the recipient of the income does not have a representative office in the Russian Federation.

The company must notify the Federal Tax Service about the paid income and withheld tax by submitting:

• income tax return - when paying dividends or interest to a Russian organization;
• tax calculation (Order of the Federal Tax Service dated March 2, 2016 No. ММВ-7-3/ [email protected] ) - when paying income to a foreign organization.

Article 24 of the Tax Code of the Russian Federation. Tax agents (current edition)

The commented article defines the legal status of a tax agent, his rights and obligations.

Along with taxpayers (fee payers), the Tax Code of the Russian Federation distinguishes such a group of participants in tax legal relations as tax agents, which are understood as persons authorized to calculate, withhold and pay to the budget the amount of taxes for taxpayers.

It should be noted that an organization as a tax agent, by virtue of the provisions of Article 24 of the Tax Code of the Russian Federation, has the obligation to withhold taxes only from persons who are tax payers and transfer them to the budget.

A similar position was taken by the Federal Antimonopoly Service of the North-Western District in Resolution dated November 26, 2012 N A44-1345/2011.

The duty of the tax agent is to remit the tax withheld from the taxpayer, and not to pay the tax from his own funds.

If the tax agent did not withhold the amount of tax, then, as a general rule, it is impossible to recover from him the amount of tax that he did not withhold. In this situation, the demand for tax payment should be presented to the taxpayer, and not to the tax agent.

This circumstance is due to the fact that in this case the taxpayer continues to be the obligated person. According to the norms of the Tax Code of the Russian Federation, his obligation to pay tax is considered unfulfilled, since the tax agent did not withhold the amount of tax (subclause 5 of clause 3 of Article 45 of the Tax Code of the Russian Federation).

A similar conclusion is contained in paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation”: in the case when no cash payments were made to the taxpayer in the tax period and the amount was withheld tax turned out to be impossible, the tax agent is only obliged to calculate the amount of tax payable by the taxpayer and inform the tax authority about the impossibility of withholding the tax. This provision is based on the fact that the obligated person is the taxpayer, to whom a corresponding demand for tax payment may be made if it is not withheld by the tax agent.

At the same time, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the provisions on non-withholding of tax by an agent are not applicable when paying funds to a foreign person due to the failure of this person to be registered with the Russian tax authorities and the impossibility of its tax administration.

A person can become a tax agent for three taxes - personal income tax, VAT and income tax.

When paying individuals remuneration under employment contracts or other income in cash, including under civil contracts for the performance of work, provision of services or copyright agreements, the organization must calculate and withhold personal income tax from their income and transfer the tax to the budget (Article 226 Tax Code of the Russian Federation).

A person can become a tax agent for VAT if he performs, in particular, the following operations (clauses 2, 3 of Article 161 of the Tax Code of the Russian Federation):

— rents municipal or state property from authorities;

— acquires from a foreign person who is not registered with the tax authorities of the Russian Federation, goods (work, services), the place of sale of which is recognized as the territory of the Russian Federation.

A person becomes a tax agent for income tax (clause 3 of Article 275, clause 4 of Article 286 of the Tax Code of the Russian Federation):

1) when paying dividends;

2) when paying income to a foreign organization that does not have a permanent establishment in the Russian Federation.

Responsibility for unlawful non-transfer of tax amounts subject to withholding and transfer by a tax agent is provided for in Article 123 of the Tax Code of the Russian Federation.

This article provides for liability only in the form of a fine in the amount of 20% of the amount of unwithheld tax. Collection of the entire amount of unwithheld tax means the application of a fine in the amount of 100%, which is not provided for by the norms of the Tax Code of the Russian Federation. In addition, recovery from the applicant of the amount of unwithheld tax is repeated prosecution for one offense, which, in accordance with paragraph 2 of Article 108 of the Tax Code of the Russian Federation, is unacceptable (Resolution of the Ninth Arbitration Court of Appeal dated April 13, 2010 N 09AP-5712/2009-AK in case N A40-138877/00-111-1042).

This position is confirmed by judicial practice, in particular by the Resolutions of the Federal Antimonopoly Service of the Moscow District of September 17, 2007 N KA-A40/9418-07, of March 6, 2008 N KA-A40/1197-08, of October 7, 2008 N KA-A40/9380-08 , dated 04/16/2009 N KA-A40/1191-09-2, dated 08/09/2010 N KA-A40/8463-10, Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 07/27/2011 in case No. A32-30502/2010 and the position of the Federal Tax Service Russia in Moscow, set out in letter dated April 25, 2007 N 20-12/038684.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO PART ONE OF THE TAX CODE OF THE RUSSIAN FEDERATION” (UPDATE)

Yu.M. Lermontov, 2016

Administrative and criminal liability

For failure to fulfill their duties, tax agents bear administrative and criminal liability in accordance with Art. 123 of the Tax Code of the Russian Federation and 199.1 of the Criminal Code of the Russian Federation.

Article 123 of the Tax Code of the Russian Federation provides for a fine of 20% of the amount of tax that was unlawfully not withheld and/or transferred.

Criminal liability (Article 199.1 of the Criminal Code of the Russian Federation) occurs in case of failure to fulfill obligations in personal interests, resulting in non-transfer of tax in a large and especially large amount and provides not only for the imposition of a fine, but also for imprisonment.

Failure to fulfill the duties of a tax agent

If any duties are not fulfilled by the agent, the Federal Tax Service may apply appropriate sanctions.

The liability of tax agents arises when the tax from the taxpayer is not withheld/transferred to the budget, or the withholding and transfer are made, but only partially. The tax agent will face a fine of 20% of the amount subject to withholding and payment, as well as penalties. Tax authorities can apply this measure only when the agent had the opportunity to withhold tax from the taxpayer (Articles 75, 123 of the Tax Code of the Russian Federation).

If the tax agent does not submit the required reports to the Federal Tax Service within the prescribed period, he will also be fined. For a declaration not submitted or submitted late, the tax agent faces a 5% fine, calculated from the amount unpaid under this declaration, for each full and partial overdue month from the day established for its filing. At the same time, the maximum fine is limited to 30% of this amount, and its minimum will be 1000 rubles (Article 119 of the Tax Code of the Russian Federation).

A 6-NDFL calculation submitted late by a tax agent will cost the agent a fine of 1,000 rubles for each full and partial month of delay (Clause 1.2 of Article 126 of the Tax Code of the Russian Federation). In the absence of certificates of income of individuals in Form 2-NDFL, the tax agent will have to pay a fine of 200 rubles for each of the certificates not submitted (clause 1 of Article 126 of the Tax Code of the Russian Federation).

Submission by a tax agent of reports containing unreliable indicators and data threatens him with a fine of 500 rubles for each such document (Article 126.1 of the Tax Code of the Russian Federation).