Lease agreement with an individual personal income tax. The tax implications of leasing from an individual for an employee. personal income tax under an agreement with an individual

1. How to draw up a property lease agreement with an employee or other individual.

2. What is more profitable: compensation for the use of an employee's personal car or payment under a rental agreement.

3. Taxation and accounting of lease payments in favor of an individual.

It is difficult to imagine an organization or an entrepreneur who manages in their activities without using at least a minimum amount of property resources. “Standard” property, without which doing business is now almost impossible, includes, for example, office equipment, computers, telephones. However, in most cases, an office, a car, equipment, etc. are also required to conduct business activities. The list of used property can be very diverse depending on the scale and specifics of the business. At the same time, not all organizations can afford to acquire everything they need as property, and many simply do not see the point in this (extra maintenance costs, property tax, etc.). It is much more convenient to use someone else's property, for example, to rent. If the landlord is a legal entity or an individual entrepreneur, then, as a rule, there are no difficulties with drawing up an agreement and accounting for rental expenses. But if the landlord is your employee or other individual, you need to be prepared for certain nuances in the execution of the transaction, taxation and accounting reflection, which will be discussed in this article.

Documentation of the lease of property of an individual

If you rent property from an individual, then the procedure for documenting such a transaction, as well as taxation on it does not depend on whether this individual is an employee or not. The lease of property of an individual is formalized by an agreement, according to which the lessor (individual) undertakes to provide the tenant (organization or individual entrepreneur) with property for a fee for temporary possession and use or for temporary use (Article 606 of the Civil Code of the Russian Federation). When drawing up a lease agreement, the following features must be taken into account:

• Form of lease agreement written, since one of the parties is a legal entity (IP) (Article 609 of the Civil Code of the Russian Federation).

• Rental period- is established by agreement of the parties. If the lease period is not specified, the contract is considered concluded for an indefinite period (Article 610 of the Civil Code of the Russian Federation).

! Note: If a lease agreement for a building or structure is concluded for a period of more than one year, it is subject to mandatory state registration. Therefore, in order to avoid this procedure, the contract must clearly state the lease term, not exceeding a year.

• Rental object– must be specified in the contract.

In addition, the contract must specify all the main characteristics that allow you to uniquely identify the property to be transferred as an object of lease. Otherwise, the lease agreement is invalidated (Article 607 of the Civil Code of the Russian Federation). For example, if the rental object is a car, you must specify all its main characteristics: make, model, year of manufacture, registration number, title number, etc. If the premises are subject to transfer - its address, area, composition, attach a diagram.

! Note: when drawing up a lease agreement, it is necessary to request from the lessor documents confirming his ownership of the transferred property. If the landlord is not the owner of the property, he must provide documents that give him the right to make transactions for the transfer of property for rent on behalf of the owner.

• Rent- the amount, procedure and terms of payment of lease payments are established in the contract by agreement of the parties. If the procedure and terms for paying rent are not specified in the contract, they are accepted as the procedure and terms applicable to similar property in comparable circumstances (clause 1, article 614 of the Civil Code of the Russian Federation). The amount of rent can be changed no more than once a year (Clause 3, Article 614 of the Civil Code of the Russian Federation).

• Duties of the parties- are determined by the contract. By default (unless otherwise provided in the contract), major repairs of the property that is the object of lease are carried out by the lessor, and current repairs are carried out by the tenant.

• Car rent– it is necessary to prescribe the nature of the lease in the contract: with or without a crew.

Renting a car with a crew assumes that the lessor not only provides his vehicle for temporary possession and use, but also provides services for its management and technical operation (Article 632 of the Civil Code of the Russian Federation). Renting without a crew, respectively, involves only providing the vehicle for temporary possession and use (Article 642 of the Civil Code of the Russian Federation). In accordance with the Civil Code, under a lease agreement for a vehicle with a crew, the obligation to carry out major and current repairs is assigned to the lessor, and under a lease agreement without a crew, to the tenant (Articles 634, 644 of the Civil Code of the Russian Federation). In the rental agreement for a vehicle with a crew, it is better to separately indicate the amount of the rent, as well as the amount due to the lessor for the services of driving the vehicle and technical operation. Such a distinction in the future will avoid problems with the calculation of personal income tax and insurance premiums.

When drawing up a property lease agreement with an employee or other individual, I suggest you use ready-made sample contracts:

The transfer of property under a lease agreement is formalized by an act of acceptance and transfer. The act must list all the main characteristics of the leased property, its shortcomings, damage, etc., since after the conclusion of the contract, the responsibility for maintaining the leased property in proper condition lies with the tenant. The return of property from the lease is documented by an act of return.

Personal income tax on income of an individual from the lease of property

Income of an individual from the rental of property subject to income tax at a rate of 13% (for tax residents) or 30% () (clause 4 clause 1 article 208 of the Tax Code of the Russian Federation). Regardless of whether the landlord is in an employment relationship with the tenant or not, the tenant organization is a tax agent. Therefore, it is the tenant who must calculate, withhold and transfer personal income tax from the rent to the budget when it is actually paid to an individual (paragraphs 1 and 4 of article 226 of the Tax Code of the Russian Federation). In addition, the tenant organization is obliged to submit to the tax office at the end of the year information in the form 2-NDFL regarding the income of the lessor.

In the 2-NDFL certificate, the income of an individual from the rental of property is reflected with the code "2400". In the event that a rental agreement for a vehicle with a crew is concluded, the following are reflected separately in the certificate: rent with the code “2400”, as well as fees for management and technical operation services with the code “2010” (Appendix 3 to the Order of the Federal Tax Service of Russia dated 17.11 .2010 No. ММВ-7-3/ [email protected]"On approval of the form of information on the income of individuals and recommendations for filling it out, the format of information on the income of individuals in electronic form, reference books").

! Note: the inclusion in a property lease agreement with an individual of the condition that the tenant is not a tax agent and the landlord must independently pay personal income tax from the rent to the budget, contradicts the tax legislation of the Russian Federation. Therefore, regardless of the existence of such a condition, the tenant organization is recognized as a tax agent in relation to the lessor-individual, that is, the responsibility for the completeness and timeliness of payment of personal income tax from rent lies entirely with the organization. In case of failure to fulfill its obligations as a tax agent, the organization may be held liable under Art. 123 of the Tax Code of the Russian Federation (a fine of 20% of the tax amount to be withheld and transferred to the budget). The Ministry of Finance of the Russian Federation adheres to this position in letters dated 04.29.2011 No. 03-04-05 / 3-314 and dated 07.15.2010 No. 03-04-06 / 3-148.

Insurance contributions from the rent to an individual

Rent paid to an employee or other individual under a property lease agreement, not subject to insurance premiums for compulsory pension, medical, social insurance (part 3, article 7 of the Federal Law of July 24, 2009 No. 212-FZ), as well as contributions for insurance against accidents and occupational diseases (Article 5 of the Federal Law of July 24, 1998 No. 125- FZ).

However, if you have entered into a vehicle rental agreement with an individual with a crew, then in addition to the rent, it provides for payment to the individual for management services. The second component of payment (for services) from a legal point of view refers to payments to an individual under a civil law contract, the subject of which is the provision of services. Therefore, from the amount of payment to an individual for services in driving a vehicle and technical operation, an organization must pay insurance premiums in the PFR, MHIF, FSS (in case of temporary disability and in connection with motherhood) (part 1 of article 7 of the Federal Law of July 24, 2009 No. 212-FZ). Insurance contributions to the FSS in terms of insurance against accidents at work and occupational diseases are paid if this is provided for in the vehicle rental agreement itself with a crew.

Income tax, USN

Organizations applying the general taxation system they have a right take into account the rent payments for the leased property as part of other expenses associated with production and sales (clause 10 clause 1 article 264 of the Tax Code of the Russian Federation). At the same time, such expenses must be economically justified and documented. To document the expenses, a lease agreement and an acceptance certificate are sufficient. That is, it is not required to draw up monthly acts on the services provided, if their preparation is not expressly provided for by the lease agreement (Letters of the Ministry of Finance of Russia dated 10/13/2011 No. 03-03-06/4/118, dated 03/24/2014 No. /12764).

! Note: Taxpayers using the accrual method take into account rent as expenses for the last day of the reporting (tax) period (clause 3, clause 7, article 272 of the Tax Code of the Russian Federation).

In addition to the rent itself, the tenant can reduce the taxable base for the costs of repairing the leased property (current and capital), if the obligation for such repairs is assigned to him under the lease agreement (paragraphs 1 and 2 of article 260 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated May 29. 2008 No. 03-03-06/1/339). In addition, tax accounting can also include expenses related to the operation of the leased property, for example, used under a lease agreement: for fuel, parking, insurance (if the lease agreement assigns the responsibility for insurance to the tenant).

USN payers can also take into account rental payments for the use of property as part of expenses (clause 4, clause 1, article 346.16 of the Tax Code of the Russian Federation). In this case, the date of acceptance for tax accounting of such expenses will be the date of their actual payment, that is, the date of payment of rent for the past periods.

In practice, there are two main options for renting an apartment for an employee:

1. The organization independently, as a tenant, concludes a lease agreement and independently makes the payment of the relevant lease payments.
2. The lease agreement is concluded by the employee, and the organization compensates the employee for the corresponding expenses for the payment of rental payments.

According to the question presented, your organization uses the first option for renting an apartment. In this case, the employee has taxable income in the form of the amount of rent paid by the organization (Articles 210, 211 of the Tax Code of the Russian Federation). The source of income is the employer organization, it has the obligation of a tax agent to calculate, withhold and transfer the corresponding amount of personal income tax to the budget (Article 226 of the Tax Code of the Russian Federation). The employer in this case, in the generally established manner, accrues insurance premiums for the amount of rent for housing for an employee (part 1, article 7, article 9 of Federal Law No. 212-FZ).

Landlord's income persons from renting out an apartment are subject to personal income tax (clause 4, clause 1, article 208, clause 1, article 209 of the Tax Code of the Russian Federation). Your organization will be a tax agent, and when paying rent, you need to calculate personal income tax and transfer it to the budget (clause 1, article 226 of the Tax Code of the Russian Federation). The organization will also have to calculate and pay insurance premiums, in accordance with Federal Law No. 212-FZ.

The lease agreement is signed by the employee

In this case, the contract is concluded between an individual, without involving a legal entity. In other words, the employee of the organization himself concludes an apartment rental agreement with the landlord, and the employer reimburses the cash costs of his employee.

personal income tax

The object of personal income tax for tax residents of the Russian Federation is the income received by them from sources in the Russian Federation and (or) from sources outside the Russian Federation (Article 209 of the Tax Code of the Russian Federation). Article 41 of the Tax Code of the Russian Federation defines income as an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such a benefit can be assessed, and determined for individuals, in accordance with Chapter 23 of the Tax Code of the Russian Federation.

If an organization rents housing for its employees, or pays them money to pay for housing rent, the employees generate an economic benefit (income), since the organization bears the cost of renting housing for them (Letter of the Ministry of Finance of the Russian Federation dated May 28, 2008 No. 03-04-06-01 / 142, Federal Tax Service for Moscow dated January 18, 2007 No. 21-11 / [email protected]).

Therefore, if an organization compensates its employee for the cost of renting housing, then from the amount of such compensation it is obliged to withhold personal income tax and transfer it to the budget as a tax agent.

Lessor - individual

Taxpayers specified in paragraph 1 of Art. 228 of the Tax Code of the Russian Federation, independently calculate the amount of tax payable to the relevant budget, in the manner prescribed by Art. 225 of the Tax Code of the Russian Federation.

Such taxpayers, in particular, include individuals who have received amounts of remuneration from individuals and organizations that are not tax agents on the basis of concluded employment contracts and civil law contracts, including income from employment contracts or lease agreements for any property (clauses 1 item 1 article 228 of the Tax Code of the Russian Federation, Letter of the Federal Tax Service of Russia for the city of Moscow dated March 18, 2011 No. 20-14 / 4 / [email protected]).

In accordance with paragraph 2 of Art. 228 of the Tax Code of the Russian Federation, taxpayers (lessor-individual) who received income under a lease (lease) agreement independently calculate the amount of tax payable to the relevant budget in the manner prescribed by Article 225 of the Tax Code of the Russian Federation.

At the same time, taxpayers who have received income under a contract of employment are required, no later than April 30 of the year following the expired tax period, to submit a tax declaration to the IFTS at the place of permanent residence (clause 1, article 229 of the Tax Code of the Russian Federation).

Insurance premiums

Insured organizations that make payments and other remuneration to individuals are recognized as payers of insurance premiums (clause “a”, clause 1, part 1, article 5 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the Territorial Compulsory Medical Insurance Funds).

In accordance with Part 1 of Art. 7 of Federal Law No. 212-FZ, the objects of taxation of insurance premiums for organizations are payments and other remuneration accrued by them in favor of individuals, in particular, under labor and civil law contracts.

Payments that are not subject to insurance premiums are listed in Art. 9 of Law No. 212-FZ, among them the amount of payment for housing rent for employees or its compensation is not mentioned.

Thus, the employer must, in accordance with the generally established procedure, accrue insurance premiums in the amount of compensation for the rent for housing for the employee.

At the same time, insurance premiums should not be charged by the organization for the amount of income received by the lessor-individual, since the organization and the lessor are not connected by contractual relations with each other.

Thus, when applying the second version of the contract, the organization will have to accrue and pay personal income tax and insurance premiums from the amount of compensation to its employee's rent.

At the same time, the landlord a person must independently report and pay personal income tax on income received from renting an apartment.

Communal payments

According to the question presented, your organization pays a rent to an individual landlord, which consists of a fixed payment and utility costs for the premises rented from him.

As noted above, your organization is recognized as a tax agent in relation to such income of an individual and, accordingly, must fulfill the obligations of calculating, withholding and transferring personal income tax to the budget in the manner prescribed by Art. 226 of the Tax Code of the Russian Federation.

In doing so, the following should be borne in mind.

The owner bears the burden of maintaining the property belonging to him (Article 210 of the Civil Code of the Russian Federation). On this basis, the maintenance of the property, including the payment of utility bills, is the responsibility of the owner, regardless of whether this premises is used by the owner himself or rented out by him.

At the same time, citizens are free to conclude an agreement, and its terms are determined at the discretion of the parties (Article 421 of the Civil Code of the Russian Federation).

An agreement is considered concluded if an agreement is reached between the parties in the form required in the relevant cases on all essential terms of the agreement (clause 1, article 432 of the Civil Code of the Russian Federation). Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, according to the statement of one of the parties, an agreement should be reached.

On this basis, the landlord and the tenant have the right to provide for the following in the lease agreement:

• the costs of certain utilities (which are recorded by metering devices (electricity and water)) will be reimbursed to the lessor in the amount of the actual payment, since their amount depends on their actual consumption. The basis for this will be paid bills directly by the lessor-individual. In this case, in relation to the specified amounts of compensation, the lessor does not receive income subject to personal income tax.

For information

In our opinion, the contract should provide for the following conditions:

• record the readings of consumption metering devices at the time of renting out the property;
• actually consumed volumes of electricity and water are recorded in acts on a monthly basis;
• the lessor-individual pays utility bills on his own according to the readings of instruments for actual consumption;
• the organization reimburses the expenses of the lessor-individual after the presentation of invoices for making payments to them.

Skorokhvatova Rimma Ivanovna - tax consultant

The material presented in this article is provided for informational purposes only and may not be applicable in a particular situation, and should not be taken as a guarantee of future results. For specific questions, we recommend contacting our specialists.
We draw attention to the need to take into account changes in legislation that have occurred since the date of preparation of the material.

All actions of a tax agent for calculating personal income tax from income in the form of rent, withholding tax when paying income to an individual and transferring it to the budget are strictly regulated by the Tax Code. Consider the features of the payment of personal income tax under a lease agreement with an individual and the timing of the transfer of personal income tax under lease agreements.

The obligation for personal income tax from payments to an individual who is not an individual entrepreneur for renting premises depends on the type of rent payments, that is, on how the tenant pays for the component - utilities. Consider three options for rental calculations.

Option 1. The rent includes only the fee for the space provided

The rent includes only the fixed part, which is set in the form of a fee for the provided space. Utilities are paid separately on invoices presented by the landlord and thus constitute a variable part of the rent.

Payments in the form of such rent are recognized as income under paragraphs. 4 p. 1 art. 208 of the Tax Code of the Russian Federation, and the company paying the income is recognized as a tax agent by virtue of clause 1. item 2 of article 226, art. 228 of the Tax Code of the Russian Federation in relation to this individual - the lessor. Therefore, personal income tax must be withheld from this type of rent.

Option 2. The rent includes the cost of utilities

The cost of utilities is already included in the rent in a fixed amount of payments per month. That is, the landlord in advance, by calculation, on the basis of actual data for previous periods, predicted the amount of future utilities.

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In this case, the income, including the payment of utility bills, received by an individual, is subject to taxation - Letter of the Ministry of Finance of the Russian Federation of March 15, 2017 No. 03-04-05 / 15280. Therefore, personal income tax must be withheld from this type of rent.

Option 3. Reimbursement of utilities

The landlord compensates the tenant for utilities on the basis of the attached supporting documents upon the fact of its use.

If an organization reimburses an individual for the cost of utilities: electricity, gas, water supply, heat supply, in the amount of its actual consumption, accounted for by meters, then refundable amount is not income individuals and, therefore, it is not necessary to withhold personal income tax from such compensation, by virtue of the Letter of the Ministry of Finance dated 17.04.2013 No. 03-04-06 / 12985.

You just need to worry about a decent package of supporting documents that the tenant pays exactly his own expense. The recommended list of documents is presented in the material "".

When calculating personal income tax, you must be guided by:

• the norms of chapter 23 "Tax on personal income";
• explanatory letters from the regulatory authorities of the Ministry of Finance of the Russian Federation, the Federal Tax Service of the Russian Federation;
• approved by the Accounting Policy for the purposes of personal income tax.

In the tax policy for the purposes of personal income tax, a tax accounting system is approved specifically for this tax in the form of a list of primary accounting documents, forms of tax accounting registers and the procedure for reflecting in them analytical tax accounting data on income, tax base, amounts calculated, withheld, transferred personal income tax for each individual face.

For payments under lease agreements for premises, GPC agreements, you need to know the time frame for recognizing income, withholding and paying personal income tax.

Below are the requirements of the legislation on the timing of transactions performed by a tax agent and on control on the lines of form 6-NDFL in relation to a lease agreement with an individual:

Who pays personal income tax under a lease agreement with an individual

A company acting as a tax agent for rent payments needs to withhold personal income tax from income received under a lease agreement and pay it to the budget. It is impossible to shift the transfer of personal income tax to the lessor - an individual cannot.

It is important to remember that personal income tax in any case must be paid by the tenant - the organization, having previously withheld the calculated tax directly from the amount of payments of the individual.

The amount of tax is determined based on the amount of remuneration received by an individual in the form of rent using a rate of 13% in accordance with paragraph 1 of Art. 224 of the Tax Code of the Russian Federation, taking into account the declared tax deductions in accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation.

The table of allowed deductions under lease agreements is given in the material "".

The organization can conclude a lease agreement for premises, buildings and vehicles with both a legal entity and an individual. If everything is simple with a legal entity, then when recording transactions with an individual, there are features enshrined in Article 226 of the Tax Code of the Russian Federation.

Reflection by an accountant of a lease agreement with a legal entity:

1. Conclusion of a contract for the lease of premises, buildings or vehicles.

In this case, the tenant must, on the basis of the acceptance certificate, reflect the leased property in his account.

We create a posting with an accounting certificate:

Dt 001 CT----- on the value of the leased property.

This value can be agreed in the contract, fixed in the certificate of book value from the lessor or calculated. The calculation is based on the monthly cost of the rent * for the duration of the contract.

1. Every month, the accountant will reflect the received act on the lease of real estate from the landlord with the following postings:

Dt X - Kt 60.01- for the amount of rent without VAT (X- cost account, which depends on the type of property being rented and the purpose of its use, it can be: 26, 20, 44, etc.)

Dt 19.04 - Kt 60.01- for the amount of VAT received from the service provider

If there is a correctly executed invoice (see Government Decree No. 1137), then the accountant has the opportunity to put the input VAT deductible and reduce his tax amount payable:

Dt 68.02 - CT 19.04- for the amount of VAT according to the act.

If the prepayment was transferred to the lessor, then another posting will be generated under the act:

Dt 60.01 Kt 60.02- advance payment.

Reflection by an accountant of a lease agreement with an individual:

1. We conclude a contract for the lease of premises, buildings, vehicles. A legal entity and an individual entrepreneur will ask the lessor for documents certifying the ownership of an individual to this object, if this is not done, then problems may arise in the future.

In this case, the tenant must, on the basis of the acceptance certificate, reflect the leased property in his account. We create a posting with an accounting certificate:

Dt 001 Kt----- on the value of the leased property.

This cost can be agreed in the contract or calculated. The calculation is based on the monthly cost of the rent * for the duration of the contract.

1. On a monthly basis, on the basis of a lease agreement, the organization will transfer the rent to an individual for the use of the facility. At this moment, article 226 of the Tax Code of the Russian Federation comes into force.

The organization - the payer will act as a tax agent for the payment of personal income tax (tax on income of an individual). Wiring:

Dt 60.01 Kt 51 (50)- for the amount of rent without personal income tax at a rate of 13%

Dt 68.01 Kt 51- payment of personal income tax by the organization as a tax agent

Dt X Kt 60.01- writing off the cost of rent with personal income tax to the expenses of the enterprise

Dt 60.01 Kt 68.01- accounting statement reflects the company's debt to the budget for the payment of personal income tax as a tax agent.

It is necessary to transfer personal income tax to the budget no later than the day following the date of receipt of income by an individual.

In addition, the organization is required to submit a quarterly report on this individual

6-personal income tax and at the end of the year a certificate 2-personal income tax to the tax office.

/ "Accounting encyclopedia "Profirosta"
28.06.2017

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Payment of personal income tax at the expense of tax agents is not allowed

The employee is sent on a long business trip. The enterprise pays for the housing to the landlord for its employee under a contract of employment. The landlord is an individual - a tax resident of the Russian Federation. By agreement of the parties, the amount of the rent is 20,000 rubles. per month, as well as personal income tax, which is paid by the employer.

What is the procedure for submitting information to the tax office in the form of 2-NDFL for the landlord? How to reflect this amount in the form of 6-personal income tax?

After considering the issue, we came to the following conclusion:

For income paid by a tax agent to an individual under an employment contract, there are no special features for filling out or submitting forms 2-NDFL and 6-NDFL.

Form 2-NDFL with attribute 1 is submitted by the tax agent in the general manner no later than April 1 of the year following the expired tax period.

In the form 6-NDFL, the operation of paying rent to an individual should be reflected both in the lines of section 1 (020, 040, 070), and in section 2 in lines 100-140. See below for details.

Rationale for the conclusion:

General procedure for paying personal income tax when renting property from an individual

Income of an individual - a tax resident of the Russian Federation from renting out residential premises in the general manner is subject to personal income tax at a rate of 13% (clause 1 of article 41, article 209, clause 1 of article 224 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated 04.04.2017 N 03-04-09 / 19981, Federal Tax Service of Russia dated 04.23.2015 N BS-4-11 / [email protected]).

In the case when the tenant (tenant) is a Russian organization, this organization, when paying rent to a taxpayer who is not an individual entrepreneur, is recognized as a tax agent whose duties include calculating personal income tax, withholding it from the taxpayer and transferring the withheld amount to the budget (clause 1 Article 24, paragraph 1, paragraph 2 of Article 226 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated 08.27.2015 N 03-04-05 / 49369, dated 09.18.2013 N 03-04-06 / 38698, dated 08.16.2013 N 03-04-06 / 33598, dated 02.27.2013 N 03-04-06 / 5601, dated 07.20.2009 N 03-04-06-01 / 178, see also letter of the Ministry of Finance of Russia dated 06.17.2013 N 03-04 -06/22517).

According to paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, the calculation of the amounts of personal income tax is carried out by tax agents on the date of actual receipt of income, determined in accordance with Art. 223 of the Tax Code of the Russian Federation. Since there is no special procedure for determining the date of actual receipt of income for income in the form of rent, such income paid in cash is considered received on the day of its payment, including transfer to the taxpayer's accounts in banks or, on his behalf, to the accounts of third parties ( subclause 1 clause 1 article 223 of the Tax Code of the Russian Federation). By virtue of paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, tax agents are obliged to withhold the accrued amount of tax directly from the income of the taxpayer when they are actually paid.

This means that the tax agent must calculate and withhold the calculated amount of personal income tax on the date of the next lease payment. And the amounts of the calculated and withheld tax should be transferred no later than the day following the day the income is paid to the taxpayer (clause 6, article 226 of the Tax Code of the Russian Federation).

Please note that the payment of personal income tax at the expense of tax agents is not allowed. When concluding contracts and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume the obligation to bear the costs associated with the payment of personal income tax. This is directly stated in paragraph 9 of Art. 226 of the Tax Code of the Russian Federation.

At the same time, the above procedure for calculating, withholding from the taxpayer and paying tax is generally mandatory. The provisions of a civil law contract cannot change the obligations established by the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 09.03.2016 N 03-04-05 / 12891, dated 02.06.2015 N 03-04-06 / 31829). The financial department draws attention to the fact that the conditions in the contract regarding the fulfillment of obligations for the payment of personal income tax, contrary to the procedure established by the Tax Code of the Russian Federation, will be void (letter of the Ministry of Finance of Russia dated April 29, 2011 N 03-04-05 / 3-314).

In other words, in the situation under consideration, personal income tax must be calculated from the amount of rent (20,000 rubles) and tax should be withheld from this income when the funds are actually paid to the landlord.

Forms 2-NDFL and 6-NDFL

Paragraph 2 of Art. 230 of the Tax Code of the Russian Federation, tax agents for personal income tax are obliged to submit to the tax authority at the place of their registration:

A document containing information on the income of individuals in the past tax period and the amounts of tax calculated, withheld and transferred to the budget system of the Russian Federation for this tax period for each individual. To date, such a document is submitted in the form 2-NDFL (hereinafter - Form 2-NDFL), approved by order of the Federal Tax Service of Russia dated October 30, 2015 N MMV-7-11 / [email protected] The same order established the procedure for filling out the 2-NDFL form (hereinafter referred to as the Procedure for filling out 2-NDFL);

Quarterly calculation of the amounts of personal income tax calculated and withheld by the tax agent - form 6-personal income tax (hereinafter - form 6-personal income tax). Form 6-NDFL and the procedure for filling out this calculation (hereinafter referred to as the Procedure for filling out 6-NDFL) were approved by order of the Federal Tax Service of Russia dated 10/14/2015 N MMV-7-11 / [email protected]

It should be noted that there are no special features for filling out or submitting these forms for cases of payment of income to individuals under civil law contracts, in particular under a lease (hiring) agreement.

Forms 2-NDFL and 6-NDFL are filled out by the tax agent based on the data contained in the tax accounting registers (Section 1 of the Procedure for filling out 2-NDFL, clause 1.1 of the Procedure for filling out 6-NDFL). In this connection, first of all, it is necessary to correctly fill in such registers.

Recall, in accordance with paragraph 1 of Art. 230 of the Tax Code of the Russian Federation, tax agents keep records of income received from them by individuals in the tax period, tax deductions granted to individuals, calculated and withheld taxes in tax accounting registers. Forms of tax accounting registers and the procedure for reflecting in them analytical data of tax accounting, data of primary accounting documents are developed by the tax agent independently and must contain, among other things, information that makes it possible to identify the taxpayer.

Data on an individual - the recipient of income are reflected in Section 2 of the 2-NDFL form. Moreover, based on Section IV of the Procedure for filling out 2-NDFL, Section 2 of Form 2-NDFL "Data on an individual - income recipient" must be filled in by a tax agent based on the data of the taxpayer's identity document. As follows from the letter of the Federal Tax Service of Russia dated April 27, 2016 N BS-17-11 / 63, when paying income to an individual in the form of rent, tax agents have the opportunity to reconcile the personal data of income recipients to identify the person to whom these payments are made. These actions are primarily aimed at maintaining the interests of the taxpayers themselves.

Form 2-NDFL is submitted by the tax agent in the general manner no later than April 1 of the year following the expired tax period, indicating the sign "1" (Section II of the Procedure for filling out 2-NDFL). When rent is paid to the landlord in cash, it is not necessary to talk about the impossibility of withholding the calculated amount of tax from the taxpayer. However, if for any reason the calculated personal income tax is not withheld during the tax period, then, guided by paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, the tax agent will additionally, no later than March 1 of the year following the expired tax period, be required to submit a 2-NDFL form with the sign "2". The procedure for submitting form 2-NDFL to the tax authorities was approved by order of the Federal Tax Service of Russia dated September 16, 2011 N MMV-7-3 / [email protected]

In the form 6-NDFL, information identifying taxpayers is not reflected. Section 1 of Form 6-NDFL shall indicate the amounts of accrued income, calculated and withheld tax, summarized for all individuals, on an accrual basis from the beginning of the tax period at the appropriate tax rate. Section 2 indicates the specific dates for the actual receipt by individuals of income and tax withholding, the corresponding amounts, as well as the timing of tax transfer (clauses 3.1, 4.1, 4.2 of the Procedure for filling out 6-NDFL). Moreover, as the authorities have repeatedly explained, section 2 of the 6-NDFL form for the corresponding submission period reflects only those transactions that were made in the last three months of this period (see, for example, letters of the Federal Tax Service of Russia dated January 25, 2017 N BS-4-11 / [email protected], dated April 27, 2016 N BS-4-11/7663).

In particular, the operation of paying income to an individual in the form of rent should be reflected in the following lines of section 1 (clause 3.3 of the Procedure for filling out 6-NDFL):

Line 010 "Tax rate";

Line 020 "Amount of accrued income" - this line will include the total amount of lease payments paid to the taxpayer as of the reporting date from the beginning of the tax period;

Line 040 "Amount of calculated tax" - on this line it is necessary to reflect the amount of personal income tax calculated from these payments on an accrual basis from the beginning of the tax period;

Line 070 "Amount of tax withheld" - this line will include the total amount of tax withheld on an accrual basis from the beginning of the tax period. And since the calculation and deduction of personal income tax from income in the form of rent is made on one date (the date of actual payment of funds), this indicator, in the general case, will correspond to the indicator of line 040.

In section 2 of the 6-NDFL form, specific dates relating to the last three months of the submission period should be indicated. For example, with the actual payment of funds to the landlord on August 10, 2017, section 2 of the 6-NDFL form, submitted as of the reporting date on September 30, 2017, must be filled out as follows (clause 4.2 of the Procedure for filling out 6-NDFL):

Line 100 - 08/10/2017;

Line 110 - 08/10/2017;

Line 120 - 08/11/2017;

Line 130 - 20,000.00 (i.e. the amount of the rent without deducting the amount of tax withheld);

Line 140 - 2600.00 (the amount of tax calculated at a rate of 13% of income in the amount of 20,000 rubles and deducted directly from this income when it is actually paid to the taxpayer).