Ndfl of a separate subdivision where to pay. Transfer of personal income tax, if there are separate divisions: what is important for an accountant. Which divisions and what income are we talking about?

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Under agreements concluded by separate subdivisions with individuals, personal income tax will need to be paid at the location of the separate subdivisions. This tax payment procedure is determined by Federal Law No. 113-FZ dated May 2, 2015 “On Amendments to Parts One and Two of the Tax Code of the Russian Federation in order to increase the responsibility of tax agents for non-compliance with the requirements of legislation on taxes and fees”.

Recall that, in accordance with the current version of the Tax Code of the Russian Federation, organizations that have separate subdivisions are required to transfer the withheld amounts of personal income tax both at the place of the parent organization and at the place of each separate subdivision. At the same time, personal income tax payable at the location of a separate subdivision is accrued and withheld from the income of employees of these separate subdivisions.

7 art. 226 of the Tax Code of the Russian Federation).

But a separate subdivision can also pay income to individuals who are not employees of a separate subdivision, for example, under civil law contracts. Where in this case to pay personal income tax: at the place of a separate subdivision or at the place of the parent organization?

Based on the direct interpretation of the above norm of the Tax Code of the Russian Federation, we can conclude that separate divisions are required to pay personal income tax from the income of employees, that is, individuals with whom labor contracts are concluded. Moreover, the place of work of such employees should be the corresponding separate subdivision. However, according to financial departments, a separate subdivision that has concluded, for example, a civil law contract with an individual, needs to transfer tax at its location (letters of the Ministry of Finance dated 08/06/2012 No. 2012 No. 03-04-06/3-327).

From January 1, 2016, the amendments made to paragraph 7 of Article 226 of the Tax Code of the Russian Federation will come into force. According to them, at the location of the separate subdivision, personal income tax will be transferred, withheld not only from the income of its employees, but also from other individuals with whom the separate subdivision enters into contracts.

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According to paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, Russian organizations from which or as a result of relations with which the taxpayer received income are required to calculate, withhold from the taxpayer and pay the amount of personal income tax to the budget. This rule also applies to those organizations that have separate divisions in their composition.

A few words about the separate division

Representative offices and branches are named as separate subdivisions in the Civil Code. In particular, Art. 55 of the Civil Code of the Russian Federation, the following definition is given: a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them. The branch is also separated from the legal entity, is located outside its location, performs its functions or part of them, including the functions of a representative office.

Representative offices and branches are not legal entities. They are endowed with the property of the legal entity that created them and act on the basis of the provisions approved by it. In the constituent documents of a legal entity, there must be an indication of their existence.

What is a separate division in the light of tax legislation? According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a subdivision is recognized as a separate one, which is territorially separated (separated) from the organization and at the location of which stationary workplaces are equipped for a period of more than one month. In this case, the subdivision is considered to be created, even if this is not reflected in the constituent or other organizational and administrative documents of the organization.

On the responsibilities of an organization that has a separate subdivision

An organization that has separate subdivisions in its composition must fulfill the obligations provided for by its tax legislation.

Registration with the tax authority

An organization that includes separate subdivisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate subdivisions, if this organization is not registered with the tax authority at the location of this separate subdivision on the grounds provided for Tax Code of the Russian Federation (Article 83).

In accordance with the legislation of the Russian Federation, the location of the organization, its separate divisions in the form of branches and representative offices are determined through the corresponding addresses. One of the identifying features of a separate subdivision of an organization that is not a branch or representative office is also recognized as the address at which this organization carries out activities that differ from the address (location) of the organization itself.

In practice, the question often arises: if a separate subdivision has changed its address, what is the procedure for registering an organization with a tax authority in this case?

Unfortunately, neither tax nor civil legislation defines what is meant by a change in the location of a separate subdivision of an organization, nor does it establish the procedure for accounting for separate subdivisions of an organization in the tax authorities in connection with a change in their location. The financial department agreed with this and expressed a similar point of view in its latest Letters dated 08.05.2009 N 03-02-07 / 1-236, dated 11.06.2009 N 03-02-07 / 1-309. In them, the Ministry of Finance, in particular, indicated that at present, with the participation of the Federal Tax Service, it has developed a draft order on approving the procedure for registering organizations at the location of their separate divisions. In particular, it provides for the possibility of registering with the tax authorities of an organization at the location of its branches (representative offices) on the basis of an application for registration, which is submitted by the organization to the registering tax authority simultaneously with the submission of an application for amendments to the constituent documents of a legal entity in relation to the relevant branch (representative office). Further, the Ministry of Finance assured that the main direction of tax policy is to improve the procedure for registering organizations and individuals with tax authorities. At the same time, it is proposed to simplify the existing procedure for accounting for organizations in the tax authorities at the location of their separate subdivisions.

Readers are also concerned about another issue, also related to registration with the tax authorities.

Does the organization have the obligation to register with the tax authority at the location of the employee if the employee performs his labor function in another region (is on a business trip), while a stationary workplace is not organized for him, a separate subdivision is not opened?

As noted above, for the purposes of tax legislation in accordance with paragraph.

2 tbsp. 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped.

At the same time, the workplace is considered stationary if it is created for a period of more than one month. However, as indicated by the Ministry of Finance in the Letter of 10.04.2009 N 03-02-07 / 1-176, art. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

In the decisions of arbitration courts, in particular in the Resolutions of the FAS MO dated 30.07.2004 N KA-A41 / 6389-04, the FAS SKO dated 09.21.2006 N F08-4234 / 2006-1814A, dated 11.29.2006 N F08-6161 / 2006- 2552A, it is noted that the equipment of a stationary workplace means the creation of all the conditions necessary for the performance of labor duties, as well as the very performance of such duties. The form of organization of work (shift method or business trip), the period of stay of a particular employee at the stationary workplace created by the organization do not have legal significance for registering a legal entity at the location of its separate subdivision. If an organization sends its employees on a business trip to perform work without creating stationary jobs, the obligation to register with the tax authorities at the place where such work is performed does not arise.

Withholding and payment of personal income tax

Paragraph 7 of Art. 226 of the Tax Code of the Russian Federation provides that tax agents - Russian organizations with separate subdivisions, are obliged to transfer the calculated and withheld amounts of tax both at their location and at the location of each of their separate subdivisions. The amount of tax payable to the budget at the location of a separate subdivision is determined based on the amount of income subject to personal income tax, accrued and paid to employees of these separate subdivisions. These norms also apply to the income of individuals received by them not only as a result of labor activity, but also on other grounds, for example, under work contracts, leases, and copyright agreements.

The Ministry of Finance provided relevant explanations about this in Letters No. 03-02-07/1-469 dated November 20, 2008, and No. 03-05-01-04/198 dated June 22, 2005.

In practice, there are several options for generating income associated with a separate division of the organization:

employees work at the location of a separate subdivision;
employees work in the parent organization, but income is paid at the location of the separate subdivision;
employees work in several separate divisions;
employees work in a separate subdivision, which is registered in the middle of the month.

In the first case, everything is clear: those amounts of personal income tax that are calculated and withheld at the location of a separate subdivision must be transferred to the budget at the location of a separate subdivision. This is once again reminded by the Ministry of Finance in the Letter of 05.06.2009 N 03-04-06-01 / 127, similar explanations were given in earlier Letters of 05.19.2006 N 03-05-01-04 / 129, dated 16.09 .2003 N 04-04-06/172.

In the second case, if the employees have entered into an agreement with the parent organization and are on its staff, but work at the location of the separate subdivision, then personal income tax on their income must be paid at the location of the separate subdivision (Letter of the Ministry of Finance of Russia dated 06.29.2006 N 03-05-01 -04/194).

In the third case, if employees work in several branches (separate subdivisions) of the organization during the month, then personal income tax from their income should be transferred to the appropriate budgets at the location of each branch, taking into account the time worked by this employee in each subdivision (Letters of the Ministry of Finance of Russia dated 05.06. 2009 N 03-04-06-01/128, dated 01/24/2008 N 03-04-06-01/16).

In the case when a separate subdivision is registered in the middle of the month, personal income tax is paid to the budget at the place of registration of a separate subdivision in proportion to the share of income accrued during work in such a subdivision. This clarification is contained in the Letter of the Federal Tax Service for the city of Moscow dated December 26, 2007 N 28-11 / 124267.

Does the procedure for paying personal income tax depend on the availability of a current account, a separate balance sheet for a separate division?

We will answer right away that the procedure for paying personal income tax depends on whether a separate unit has a current account and a separate balance sheet or not.

In an earlier Letter of the Federal Tax Service of Russia dated March 13, 2006 N 04-1-03 / 132 "On the taxation of personal income" it was explained that if separate divisions do not have a separate balance sheet and current account, then personal income tax should be withheld from the income of employees of separate divisions organization, transfer of tax is carried out at the location of these separate subdivisions. At the same time, the parent organization must keep records of paid income, calculated and withheld tax separately for the parent organization and a separate subdivision. A similar point of view is stated in the commented Letter of the Ministry of Finance of Russia dated 05.06.2009 N 03-04-06-01 / 127.

If the separate subdivision has all of the above, then the tax is paid by the separate subdivision independently in the usual manner. The Ministry of Finance in Letter N 03-04-06-01/2 of 16.01.2007, in addition to the above, reported the following: if a separate subdivision of an organization pays income to its employees, and its head is authorized by a legal entity to represent the interests of a legal entity in the tax authorities by proxy at the location of the separate subdivision, then such a separate subdivision acts as a legal entity as a tax agent in respect of income paid by the separate subdivision to its employees.

That is, such a separate subdivision is obliged to calculate, pay and transfer to the budget at the place of its registration the personal income tax from the income of its employees.

M.R. Zaripova

Journal Expert

"Salary:

Accounting

and taxation"

The tax is transferred at the place where the organization is registered for tax purposes.

If the organization has separate divisions (branches or representative offices), the tax is paid both at the location of the parent organization and at the location of its divisions. At the same time, personal income tax payable at the location of a separate subdivision is accrued and withheld from the income of employees of these separate subdivisions.

7 art. 226 of the Tax Code of the Russian Federation).

Employees are persons who perform labor functions under employment contracts. But a separate subdivision can also pay income to individuals who are not employees of a separate subdivision, for example, under civil law contracts. Where in this case to pay personal income tax: at the location of a separate subdivision or at the location of the parent organization? Based on the direct interpretation of the above norm of the Tax Code of the Russian Federation, we can conclude that separate divisions are required to pay personal income tax from the income of employees, that is, individuals with whom labor contracts are concluded. Moreover, the place of work of such employees should be the corresponding separate subdivision.

Earlier, the financial department explained that a separate subdivision that has concluded a civil law contract with an individual also needs to transfer tax at its location (letters of the Ministry of Finance dated August 6, 2012 No. 03-04-06 / 3-216, dated November 22, 2012 G.

No. 03-04-06/3-327). Now this gap has been closed. Since January 1, 2016, paragraph 7 of Article 226 of the Tax Code of the Russian Federation has been changed. According to the changes, at the location of a separate subdivision, personal income tax is transferred, withheld not only from the income of its employees (under labor contracts), but also from the income of other individuals with whom the separate subdivision enters into civil law contracts (Federal Law of May 2, 2015 No. No. 113-FZ).

The amount of tax payable at the location of the subdivisions is determined based on the amount of income paid to the employees of these subdivisions.

If jobs are established for an employee both at the main office and in a separate subdivision, then personal income tax must be transferred to the appropriate budgets both at the location of the organization and at the location of each separate subdivision, taking into account the time actually worked by such an employee (based on the worksheet time, taking into account the information about the location of the employee for the relevant billing period). This was explained by the Ministry of Finance of Russia in a letter dated March 1, 2017 No. 03-04-06 / 11798.

A situation is possible when an employee combines positions in the parent organization and a branch. In this case, personal income tax from his income for the performance of labor duties in the parent organization must be transferred at the location of the organization, and the tax calculated from the additional payment for combining positions in the branch - at the location of the branch.

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Letter from the Ministry of Finance of the Russian Federation
No. 03-04-06/21479 of 04/07/2017

The Department of Tax and Customs Policy has considered the letter on the transfer of personal income tax to the budget and, in accordance with Article 34.2 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), explains the following.

In accordance with paragraph 1 of Article 650 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), under a building or structure lease agreement, the lessor undertakes to transfer the building or structure to the tenant for temporary possession and use or for temporary use.

Paragraph 1 of Article 651 of the Civil Code establishes that a lease agreement for a building or structure is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434 of the Civil Code).

At the same time, a lease agreement for a building or structure concluded for a period of at least a year is subject to state registration and is considered concluded from the moment of such registration (paragraph 2 of Article 651 of the Civil Code).

Thus, an additional agreement that changes the terms of a real estate lease agreement is subject to state registration. The consequences of not registering an additional agreement in relation to such an agreement are identical to the consequences of not registering the main contract.

Personal income tax of a separate subdivision where to pay 2018

According to paragraph 1 of Article 83 of the Code, for the purpose of tax control, organizations that include separate subdivisions located on the territory of the Russian Federation are subject to registration with the tax authorities at the location of each of their separate subdivisions.

In accordance with paragraph 7 of Article 226 of the Code, the total amount of tax calculated and withheld by a tax agent from a taxpayer in respect of which it is recognized as a source of income is paid to the budget at the place of registration of the tax agent in the tax authority, unless otherwise established by the specified paragraph.

According to the second paragraph of clause 7 of Article 226 of the Code, it is established that tax agents - Russian organizations that have separate subdivisions, are obliged to transfer the calculated and withheld amounts of tax to the budget both at their location and at the location of each of their separate subdivisions.

At the same time, the third paragraph of the said clause of Article 226 of the Code establishes that the amount of tax payable to the budget at the location of a separate subdivision of the organization is determined based on the amount of taxable income accrued and paid to employees of this separate subdivision, as well as based on the amounts of income, accrued and paid under civil law contracts concluded with individuals by a separate subdivision (authorized persons of a separate subdivision) on behalf of such an organization.

If the main lease agreement for real estate with a lessor - an individual is initially signed by an authorized person of the first separate subdivision, and an additional agreement amending the terms of the lease agreement is subsequently signed by an authorized person of the second separate subdivision, then if the rules applicable to the main agreement and the additional agreement are identical established by the Civil Code, the amount of tax calculated and withheld by the tax agent from the specified income is subject to transfer to the budget at the location of the second separate subdivision.

At the same time, it is reported that this letter of the Department does not contain legal norms, does not specify regulatory requirements and is not a regulatory legal act. Written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees, sent to taxpayers and (or) tax agents, are of an informational and explanatory nature and do not prevent taxpayers, tax authorities and tax agents from being guided by the norms of the legislation of the Russian Federation on taxes and fees in the understanding different from the interpretation set forth in this letter.

Deputy Director of the Department V.A. PROKAEV

Expert comment

Personal income tax for a separate division - where to pay?

Separate subdivisions: payment of personal income tax

A few words about the separate division

On the responsibilities of an organization that has a separate subdivision

An organization that has separate subdivisions in its composition must fulfill the obligations provided for by its tax legislation.

Registration with the tax authority

In practice, the question often arises: if a separate subdivision has changed its address, what is the procedure for registering an organization with a tax authority in this case?

Readers are also concerned about another issue, also related to registration with the tax authorities.

As noted above, for the purposes of tax legislation, in accordance with paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. At the same time, the workplace is considered stationary if it is created for a period of more than one month. However, as indicated by the Ministry of Finance in the Letter of 10.04.2009 N 03-02-07 / 1-176, art. 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

Withholding and payment of personal income tax

In practice, there are several options for generating income associated with a separate division of the organization:

employees work at the location of a separate subdivision;
employees work in the parent organization, but income is paid at the location of the separate subdivision;
employees work in several separate divisions;
employees work in a separate subdivision, which is registered in the middle of the month.

How to pay personal income tax in the presence of separate divisions

This clarification is contained in the Letter of the Federal Tax Service for the city of Moscow dated December 26, 2007 N 28-11 / 124267.

Does the procedure for paying personal income tax depend on the availability of a current account, a separate balance sheet for a separate division?

We will answer right away that the procedure for paying personal income tax depends on whether a separate unit has a current account and a separate balance sheet or not.

M.R. Zaripova

Journal Expert

"Salary:

Accounting

and taxation"

The procedure for paying personal income tax by separate divisions

personal income tax WHEN THERE IS SEPARATE SUBDIVISIONS

Payment of personal income tax by an organization with separate subdivisions

Russian organizations are recognized as tax agents for personal income tax, one of the duties of which is the correctness and timeliness of the calculation and deduction from taxpayers - individuals of the specified tax and its transfer to the budget. Consider how this duty should be performed by organizations with separate divisions.

Reference. Separate subdivision

The definition of a separate subdivision is given in paragraph 2 of Art. 11 of the Tax Code of the Russian Federation. Thus, a subdivision is considered separate if it is territorially separated from the organization and stationary workplaces are equipped at its location.

The recognition of a subdivision of an organization as separate is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of this organization, and on the powers vested in the specified subdivision.

Territorial isolation means the location of a structural unit geographically separate from the parent organization and outside the administrative-territorial unit of its registration, controlled by one or another tax authority. That is, a subdivision is territorially isolated from the parent organization if it is located in the territory where tax accounting and tax control is carried out by a different tax authority than the one in which the organization is registered as a taxpayer.

The workplace is considered stationary if it is created for a period of more than one month. At the same time, the worker is recognized as the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (Article 209 of the Labor Code of the Russian Federation).

The equipment of a stationary workplace means the creation of all the conditions necessary for the performance of labor duties, as well as the very performance of such duties. This follows from the Decrees of the Federal Antimonopoly Service of the Moscow District of July 30, 2004 N KA-A41 / 6389-04, the Federal Antimonopoly Service of the North Caucasus District of September 21, 2006 N F08-4234 / 2006-1814A and of November 29, 2006 N F08-6161 / 2006-2552A .

If the employees of the organization perform work on the basis of an employment contract and at the same time no stationary jobs have been created for them, then there are no grounds for registering with the tax authorities of the organization at the place where such work is performed (Letter of the Ministry of Finance of Russia dated 03.11.2009 N 03-02- 07/1-493).

Tax agents - Russian organizations that have separate subdivisions, are obliged to pay the calculated and withheld amounts of personal income tax both at their location and at the location of each separate subdivision (paragraph 2, clause 7, article 226 of the Tax Code of the Russian Federation).

The amount of personal income tax transferred to the budget at the location of a separate subdivision is determined based on the amount of taxable income accrued and paid to employees of these separate subdivisions (paragraph 3, clause 7, article 226 of the Tax Code of the Russian Federation). Therefore, if an employee of an organization works in several separate subdivisions for a month, then the parent organization calculates and pays personal income tax from his income to the appropriate budgets at the location of each separate subdivision based on the length of time in the tax period worked by the taxpayer in them. In the case when a separate subdivision is registered in the middle of the month, the parent organization pays personal income tax to the budget at the place of registration of the separate subdivision in proportion to the share of income accrued to the employee during his work in this subdivision.

Suppose an employee works for a month both in a separate subdivision and in the parent organization, then personal income tax is paid from his income both at the location of the separate subdivision and at the location of the parent organization - based on the period worked in them.

Separate divisions of the organization may or may not have a separate balance sheet and current account. Consider how organizations should pay personal income tax in each case.

A separate subdivision is not allocated to a separate balance sheet and does not have a current account

In such a situation, the parent organization must keep records of income received from it by individuals, separately for the parent organization and separately for a separate division. In addition, the parent organization is obliged to pay the calculated and withheld amounts of personal income tax from the income of employees both at the place of its registration and at the place of registration of separate subdivisions. At the same time, it is necessary to draw up separate payment orders for each separate division, indicating in them the checkpoint assigned to the divisions upon registration, as well as the corresponding OKATO code<1>municipality, to whose budget personal income tax is transferred.

<1>The All-Russian classifier of objects of administrative-territorial division (OKATO) was approved by the Decree of the State Standard of Russia dated July 31, 1995 N 413.

The parent organization has the right to transfer the amount of personal income tax withheld from the income of employees of separate structural divisions located on the territory of one municipality, with one payment order, if these separate divisions are registered with the same tax authority and have the same checkpoint<2>.

<2>Such clarifications are given in the Letter of the Ministry of Finance of Russia dated 03.07.2009 N 03-04-06-01 / 153.

Thus, the parent organization is responsible for accruing and paying income to employees of a separate division that does not have a separate balance sheet and current account. She must also report on the income received by these employees by submitting relevant information to the tax authority at the location of the separate subdivision.

The procedure for paying personal income tax discussed above is applicable in cases where separate divisions are not allocated to a separate balance sheet and do not have a current account. What happens if a separate subdivision is allocated to a separate balance sheet, has a current account and performs the duties of a tax agent?

A separate subdivision is allocated to a separate balance sheet and has a current account

A separate subdivision with a separate balance sheet can act as a legal entity as a tax agent for accruing and paying income to employees of the subdivision, calculating and withholding personal income tax from payments made, as well as transferring tax to the budget. In addition to a separate balance sheet, the unit must have a current account and make payments in favor of individuals. The management of the parent organization should also appoint the head of the separate division as its authorized representative. Thus, the head of a separate subdivision is issued a power of attorney to represent the interests of a legal entity in the tax authorities at the location of a separate subdivision<3>.

<3>Letter of the Ministry of Finance of Russia dated 16.01.2007 N 03-04-06-01/2.

Note. Branches and other separate subdivisions of Russian organizations fulfill the obligations of organizations for the payment of taxes and fees at the location of these branches and other separate subdivisions in the manner prescribed by the Tax Code (Article 19 of the Tax Code of the Russian Federation).

In accordance with the provisions of Art. 230 of the Tax Code of the Russian Federation, the separate subdivision in question is obliged:

keep records of the income that it pays and the amounts of tax that it withholds from an individual to the budget;
submit to the tax authority at the place of its registration information on the income of individuals and the amounts of accrued and withheld tax.

If a separate subdivision has a separate balance sheet and current account, pays income to employees, withholds personal income tax from them and pays it to the budget, then it independently submits information about the income of individuals and the amount of accrued and withheld tax to the tax authority at the place of its registration. In this case, it is not required to re-submit the same information to the tax authority at the place of registration of the parent organization.

Consequently, the amounts of personal income tax calculated and withheld from the income of employees of a separate subdivision must be paid to the budget at the place of registration of the corresponding separate subdivision, regardless of whether it has a separate balance sheet or not.

Separate subdivisions are located in the same municipality in the territories under the jurisdiction of different tax authorities

In paragraph 1 of Art. 83 of the Tax Code of the Russian Federation provides for the following. An organization that includes separate subdivisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each separate subdivision, if it is not registered with the tax authority at the location of this separate subdivision on the grounds provided for by the Tax Code.

If several separate divisions of an organization are located in the same municipality in the territories under the jurisdiction of different tax authorities, the registration of the organization may be carried out by the tax authority at the location of one of them. Moreover, the organization chooses this unit on its own (clause 4, article 83 of the Tax Code of the Russian Federation).

From the above, the following conclusions can be drawn.

Where to pay personal income tax in the presence of separate divisions?

4 tbsp. 83 of the Tax Code of the Russian Federation. In this case, personal income tax calculated and withheld from the income of employees of all separate subdivisions located in this municipality must be transferred to the budget at the place of registration of the named separate subdivision.

Second conclusion. The organization gets registered with the tax authorities at the location of each separate subdivision. Then the amounts of personal income tax calculated and withheld from the income of employees of such separate subdivisions must be transferred to the budget at the place of registration of each separate subdivision based on the amount of taxable income calculated and paid to employees of these subdivisions<4>.

<4>Similar explanations are given in the Letter of the Ministry of Finance of Russia dated March 15, 2010 N 03-04-06 / 3-33.

If the calculated amount of personal income tax cannot be withheld

Tax agents are required to withhold the calculated amount of tax directly from the taxpayer's income when they are actually paid (clause 4, article 226 of the Tax Code of the Russian Federation).

It happens that the taxpayer received income subject to personal income tax from a tax agent, for example, in kind and no cash payments were made to him in this tax period. In this case, the tax agent cannot withhold personal income tax from such a taxpayer.<5>. However, the tax agent is obliged, no later than one month from the end date of the tax period in which the relevant circumstances arose, to inform the taxpayer and the tax authority at the place of its registration in writing about the impossibility to withhold personal income tax and the amount of tax. The basis - pp. 2 p. 3 art. 24 and paragraph 5 of Art. 226 of the Tax Code of the Russian Federation. This provision has been in force since January 1, 2010 (clause 2, article 2 of the Federal Law of December 27, 2009 N 368-FZ). Recall that before 2010, tax agents reported the impossibility of withholding tax and the amount of the taxpayer's debt only to the tax authority within one month from the moment the relevant circumstances arose.

<5>Decree of the Federal Antimonopoly Service of the Urals District of June 10, 2009 N F09-3923 / 09-C2 in case N A47-3113 / 2008-AS-32.

At the same time, the procedure for notifying the tax authority regarding income from operations with securities and operations with financial instruments of futures transactions about the impossibility of withholding the calculated amount of personal income tax has remained the same. So, according to paragraph 18 of Art. 214.1 of the Tax Code of the Russian Federation, if it is impossible to withhold from the taxpayer the calculated amount of tax (in whole or in part), the tax agent (broker, trustee, person performing operations under an agency agreement, commission agreement, agency agreement in favor of the taxpayer, another person recognized as a tax agent in accordance with Tax Code) within one month from the moment of occurrence of this circumstance in writing notifies the tax authority at the place of its registration of the impossibility of the said withholding and the amount of the taxpayer's debt. The payment of tax in this case is made in accordance with Art. 228 of the Tax Code of the Russian Federation.

The obligation of a tax agent to notify the tax authority in writing of the impossibility of withholding personal income tax from the taxpayer and the amount of tax is due to the need for the tax authority at the place of residence of an individual to have an evidence base to ensure the procedure for collecting personal income tax from the taxpayer that was not withheld by the tax agent.

Note. The obligation to provide information on the income of individuals is directly related to the obligation to pay personal income tax at the place of registration of the tax agent in the tax authority. That is, information about the income of employees of separate divisions is submitted to the tax authority at the location of the separate division (to the tax authority to which personal income tax is transferred).

The form of the notice and the procedure for its submission to the tax authority are approved by the federal executive body authorized to exercise control and supervision in the field of taxes and fees. However, at present there is no special form for submitting such information.

At the same time, in paragraph 3 of the Order of the Federal Tax Service of Russia of October 13, 2006 N SAE-3-04 / [email protected] <6>when submitting the above information to the tax authorities, tax agents are recommended to use form 2-NDFL "Information on the income of an individual for 20___ year", approved by the mentioned Order.

<6>Valid as amended and supplemented by Orders of the Federal Tax Service of Russia dated December 20, 2007 N MM-3-04 / [email protected], dated 30.12.2008 N MM-3-3/ [email protected] and dated 22.12.2009 N MM-7-3/ [email protected]

Submission of information to the tax authority on the impossibility of withholding the calculated amount of tax from an individual does not relieve the tax agent from the obligation to submit information in the form 2-NDFL in relation to this individual and at the end of the tax period in the manner established by paragraph 2 of Art. 230 of the Tax Code of the Russian Federation. Recall that according to paragraph 2 of Art. 230 of the Tax Code of the Russian Federation, tax agents submit to the tax authority at the place of registration information on the income of individuals and the amounts of taxes accrued and withheld in the tax period annually no later than April 1 of the year following the expired tax period.

Note. The tax period for personal income tax is a calendar year (Article 216 of the Tax Code of the Russian Federation).

Example. In March 2010, Alfa LLC issued the loader A.A. Petrov income in kind. Until the end of the year, the company did not make cash payments to the specified employee.

Since the income was issued only in kind, Alpha LLC does not have the opportunity to withhold personal income tax from the income received by A.A. Petrov. Therefore, before January 31, 2011, the organization must inform in writing the tax authority at the place of registration, as well as the taxpayer, about the impossibility to withhold personal income tax and the amount of tax.

In addition, information about the income of A.A. Petrov in the form 2-NDFL LLC "Alfa" is obliged to send to the tax authority at the place of registration no later than April 1, 2011. Then the company, as a tax agent, will fulfill its obligations regarding the provision of information on the income of individuals.

Zh.V. Kuzmina

Journal Expert

"Russian Tax Courier"

A subdivision is recognized as separate, which is territorially separated (separated) from the institution and at the location of which stationary workplaces are equipped for a period of more than one month (paragraph 20, clause 2, article 11 of the Tax Code of the Russian Federation). At the same time, the unit is considered to be created, even if this is not reflected in the constituent or other organizational and administrative documents of the institution (Letters of the Ministry of Finance of Russia dated March 29, 2010 N 03-04-06 / 53, Federal Tax Service of Russia for the city of Moscow).

Transfer of personal income tax, if there are separate divisions: what is important for an accountant

Moscow dated 13.07.2009 N 20-15 / 3 / [email protected]).

If stationary jobs are not created at the place of work of employees, a separate subdivision does not arise (Letter of the Ministry of Finance of Russia dated 03.11.2009 N 03-02-07 / 1-493).

If a state (municipal) institution has separate subdivisions, personal income tax must be paid, including at the location of each of them. This follows from par. 2 p. 7 art. 226 of the Tax Code of the Russian Federation (see, for example, Letters of the Ministry of Finance of Russia of 08/07/2012 N 03-04-06 / 3-222, of 12/20/2011 N 03-04-06 / 3-352, of 12/16/2011 N 03-04 -06 / 3-347, Federal Tax Service of Russia for Moscow dated 05.20.2010 N 20-15 / 3 / [email protected]) <2>.

<2>This requirement is established only for Russian legal entities. Foreign organizations located on the territory of the Russian Federation are not required to do this (Letter of the Federal Tax Service of Russia for Moscow dated January 23, 2009 N 18-15 / [email protected], Decree of the Federal Antimonopoly Service of the North-Western District of 14.01.2008 N A56-2929 / 2007).

Personal income tax on the income of employees of a separate subdivision is paid at the location of such a subdivision. Moreover, this does not depend on whether it has a separate balance sheet or a settlement (personal) account (Letters of the Ministry of Finance of Russia dated 04.07.2011 N 03-04-06/3-159, dated 03.29.2010 N 03-04-06/55, 03/29/2010 N 03-04-06/54, dated 08/24/2009 N 03-04-06-01/219).

However, regarding who should pay the tax - the head office or the branch - the regulatory authorities do not have a unanimous opinion.

So, in separate explanations, officials indicate that a separate subdivision, which has a separate balance sheet and a current (personal) account, pays personal income tax on its own (Letters of the Federal Tax Service of Russia dated 17.04.2009 N 3-5-04 / [email protected], Federal Tax Service of Russia for Moscow dated March 29, 2010 N 03-04-06 / 54). At the same time, it is also necessary that the head of such a separate subdivision has a power of attorney giving him the authority to represent the interests of a legal entity in the tax authorities (Letters of the Ministry of Finance of Russia of July 16, 2008 N 03-04-06-01 / 210, of January 16, 2007 N 03- 04-06-01/4, dated 16.01.2007 N 03-04-06-01/2).

However, there is another opinion: regardless of whether a separate subdivision has a separate balance sheet and a settlement (personal) account, the head institution at the location of the separate subdivision should pay personal income tax (Letter of the Federal Tax Service of Russia for Moscow dated May 20, 2010 N 20-15 / 3 / [email protected]).

Given the ambiguous opinion of the regulatory authorities on this issue, in order to avoid claims, we recommend that you contact your tax office for additional clarifications.

If an institution pays personal income tax at the location of a separate subdivision, the amount of tax must be determined based on the income of individuals who work in a branch or receive income from it for other reasons, for example, under work contracts, leases, copyright agreements. This follows from par. 3 p. 7 art. 226 of the Tax Code of the Russian Federation (see also Letters of the Ministry of Finance of Russia of June 18, 2010 N 03-04-06 / 3-124, of March 29, 2010 N 03-04-06 / 53, of March 29, 2010 N 03-04-06 / 54 , Federal Tax Service of Russia dated 08/03/2011 N AS-4-3 / 12547, Federal Tax Service of Russia for Moscow dated 05/20/2010 N 20-15 / 3 / [email protected], Decree of the Federal Antimonopoly Service of the North-Western District of 05.02.2010 N A56-10280 / 2008).

In this case, the actual place of work of the employee must be taken into account.

For example, an employee works part-time in the head office and its branch. Consequently, personal income tax from the income of an individual for the performance of labor duties in the head office must be transferred at the place of its location. And the tax calculated from payments for work in the branch - at the location of the branch (Letter of the Ministry of Finance of Russia dated April 14, 2011 N 03-04-06 / 3-89 (clause 1)).

If an employee works in several branches (separate subdivisions) of an institution during a month, then personal income tax from his income should be transferred to the appropriate budgets at the location of each such subdivision. Moreover, taking into account the time worked by this employee in each unit (Letters of the Ministry of Finance of Russia dated 05.06.2009 N 03-04-06-01 / 128, dated 01.24.2008 N 03-04-06-01 / 16). Personal income tax is paid in the same manner if the employee works for a month both in the head office and in a separate subdivision (Letters of the Ministry of Finance of Russia dated September 21, 2011 N 03-04-06 / 3-231, dated March 29, 2010 N 03-04 -06/55).

When transferring tax, the parent institution must indicate in the payment order for each separate subdivision the following data (Letters of the Ministry of Finance of Russia dated 03.07.2009 N 03-04-06-01 / 153, Federal Tax Service of Russia for Moscow dated 01.07.2010 N 20-15 / 3/068888, dated 20.05.2010 N 20-15/3/ [email protected]):

- details of the department of the Federal Treasury and the tax inspectorate of the region in which the separate subdivision is located and is registered with the tax authorities;

- checkpoint assigned to the unit;

- OKATO code of the municipality to whose budget personal income tax is transferred.

As the Ministry of Finance of Russia notes, if several divisions are located in the same municipality, registered with the same tax authority and have the same checkpoint, the tax can be transferred with one payment order (Letter dated 03.07.2009 N 03-04-06-01 / 153).

If separate subdivisions are located on the territory of one municipality or a city of federal significance (Moscow or St. Petersburg), but are subordinate to different tax authorities, the institution can be registered at the location of one of such subdivisions of its choice on the basis of paragraph 4 of Art. 83 of the Tax Code of the Russian Federation. Accordingly, the tax withheld from the income of employees of these divisions is paid to the tax authority at the location of one of the separate divisions selected by the institution for registration (Letters of the Ministry of Finance of Russia dated 06.22. .2011 N 03-04-06/3-230, dated 12/09/2010 N 03-04-06/3-295, dated 07/01/2010 N 03-04-06/8-138).

In the event that an institution is registered at the location of each separate division, it must pay personal income tax at the place of registration of each division (Letters of the Ministry of Finance of Russia of September 21, 2011 N 03-04-06 / 3-230, of December 9, 2010 N 03 -04-06/3-295, dated 07/01/2010 N 03-04-06/8-138, Federal Tax Service of Russia dated 08/03/2011 N AS-4-3/12547).

However, according to the Federal Tax Service of Russia, in relation to the city of Moscow in 2012, a different procedure should apply. This is due to the fact that on the basis of Part 2 of Art. 5 of the Law of the City of Moscow dated 07.12.2011 N 62, the formation of budget revenues of urban districts in 2012 at the expense of personal income tax deductions is carried out according to established standards. As the tax authorities indicate, payment of personal income tax at the location of one of the divisions is possible only if all divisions are located on the territory of not only one subject of the Russian Federation, but also one municipality. If the institution has separate subdivisions on the territory of different municipal (city) districts of Moscow, the tax should be transferred to the budget at the location of each separate subdivision (Letter of the Federal Tax Service of Russia dated August 29, 2012 N ZN-4-1 / [email protected]).

It should be noted that the tax on the income of employees sent by an institution to another subject of the Russian Federation in order to open a separate subdivision is transferred at the location of the head institution. This rule is valid until the created unit is registered with the tax authorities (Letter of the Ministry of Finance of Russia dated 08.08.2012 N 03-04-06 / 3-223).

Moreover, if a separate subdivision is registered in the middle of the month, then personal income tax is paid to the budget at the place of its registration in proportion to the share of income accrued during work in such a subdivision. Such clarifications are contained in the Letter of the Federal Tax Service of Russia for Moscow dated December 26, 2007 N 28-11 / 124267.

In conclusion, we note that a separate subdivision can pay income not only to its employees, but also to freelance workers - individuals with whom civil law contracts are concluded. In this case, according to the explanations of the Ministry of Finance of Russia, personal income tax must also be transferred at the location of a separate subdivision (Letters dated 08/06/2012 N 03-04-06 / 3-216, dated 08/06/2012 N 03-04-06 / 8-220 ( 1), dated 07/04/2011 N 03-04-06 / 3-159, dated 06/01/2011 N 03-04-06 / 3-126).

However, the Federal Tax Service of Russia for Moscow does not support the position of the financial department. The tax authorities indicate that tax on income paid by a separate subdivision to an individual on the basis of a civil law agreement concluded with him should be paid at the place of registration of the head institution (Letter of the Federal Tax Service of Russia for Moscow dated February 26, 2009 N 20-15 / 3 / 017148).

Given the ambiguous explanations of the regulatory authorities, we recommend that you clarify the procedure for transferring personal income tax in this case in your territorial inspection.

Payment of personal income tax by an organization with separate subdivisions

Reference. Separate subdivision

Separate divisions of the organization may or may not have a separate balance sheet and current account. Consider how organizations should pay personal income tax in each case.

A separate subdivision is not allocated to a separate balance sheet and does not have a current account

In such a situation, the parent organization must keep records of income received from it by individuals, separately for the parent organization and separately for a separate division.

In addition, the parent organization is obliged to pay the calculated and withheld amounts of personal income tax from the income of employees both at the place of its registration and at the place of registration of separate subdivisions. At the same time, it is necessary to draw up separate payment orders for each separate division, indicating in them the checkpoint assigned to the divisions upon registration, as well as the corresponding OKATO code<1>municipality, to whose budget personal income tax is transferred.

<1>The All-Russian classifier of objects of administrative-territorial division (OKATO) was approved by the Decree of the State Standard of Russia dated July 31, 1995 N 413.

<2>Such clarifications are given in the Letter of the Ministry of Finance of Russia dated 03.07.2009 N 03-04-06-01 / 153.

A separate subdivision is allocated to a separate balance sheet and has a current account

<3>Letter of the Ministry of Finance of Russia dated 16.01.2007 N 03-04-06-01/2.

In accordance with the provisions of Art. 230 of the Tax Code of the Russian Federation, the separate subdivision in question is obliged:

keep records of the income that it pays and the amounts of tax that it withholds from an individual to the budget;
submit to the tax authority at the place of its registration information on the income of individuals and the amounts of accrued and withheld tax.

Separate subdivisions are located in the same municipality in the territories under the jurisdiction of different tax authorities

From the above, the following conclusions can be drawn.

Conclusion one. So, the organization has several separate divisions in one municipality in the territories under the jurisdiction of different tax authorities. Therefore, it is registered at the location of one of these separate subdivisions chosen by it. Reason - paragraph 4 of Art. 83 of the Tax Code of the Russian Federation. In this case, personal income tax calculated and withheld from the income of employees of all separate subdivisions located in this municipality must be transferred to the budget at the place of registration of the named separate subdivision.

<4>Similar explanations are given in the Letter of the Ministry of Finance of Russia dated March 15, 2010 N 03-04-06 / 3-33.

If the calculated amount of personal income tax cannot be withheld

Tax agents are required to withhold the calculated amount of tax directly from the taxpayer's income when they are actually paid (clause 4, article 226 of the Tax Code of the Russian Federation).

<5>Decree of the Federal Antimonopoly Service of the Urals District of June 10, 2009 N F09-3923 / 09-C2 in case N A47-3113 / 2008-AS-32.

Note. The tax period for personal income tax is a calendar year (Article 216 of the Tax Code of the Russian Federation).

Example. In March 2010, Alfa LLC issued the loader A.A. Petrov income in kind. Until the end of the year, the company did not make cash payments to the specified employee.

Zh.V. Kuzmina

Journal Expert

"Russian Tax Courier"

Separate subdivisions: payment of personal income tax

A few words about the separate division

On the responsibilities of an organization that has a separate subdivision

An organization that has separate subdivisions in its composition must fulfill the obligations provided for by its tax legislation.

Registration with the tax authority

In practice, the question often arises: if a separate subdivision has changed its address, what is the procedure for registering an organization with a tax authority in this case?

Readers are also concerned about another issue, also related to registration with the tax authorities.

What to do if personal income tax for "separation" is listed at the place of registration of the company

The form of organization of work (shift method or business trip), the period of stay of a particular employee at the stationary workplace created by the organization do not have legal significance for registering a legal entity at the location of its separate subdivision. If an organization sends its employees on a business trip to perform work without creating stationary jobs, the obligation to register with the tax authorities at the place where such work is performed does not arise.

Withholding and payment of personal income tax

In practice, there are several options for generating income associated with a separate division of the organization:

employees work at the location of a separate subdivision;
employees work in the parent organization, but income is paid at the location of the separate subdivision;
employees work in several separate divisions;
employees work in a separate subdivision, which is registered in the middle of the month.

Does the procedure for paying personal income tax depend on the availability of a current account, a separate balance sheet for a separate division?

We will answer right away that the procedure for paying personal income tax depends on whether a separate unit has a current account and a separate balance sheet or not.

M.R. Zaripova

Journal Expert

"Salary:

Accounting

and taxation"

More related articles

Payment of personal income tax by separate divisions

In accordance with paragraph 7 of Art. 226 of the Tax Code of the Russian Federation, tax agents (Russian organizations, individual entrepreneurs) with separate subdivisions, acting as tax agents, are obliged to transfer the withheld amounts of personal income tax to the budget both at their location and at the location of each of their separate subdivisions.

The Ministry of Finance of Russia in a letter dated August 7, 2012 No. 03-04-06 / 3-222 explained:

the amounts of tax payable to the budget at the location of the separate subdivision are calculated based on the income paid to the employees of these subdivisions;

the amounts of personal income tax must be transferred at the place of registration of a separate subdivision;

information on the income of individuals - must be submitted at the place of registration of a separate subdivision.

If the divisions of the organization are located in different municipalities and are registered with different tax inspectorates, then it is obliged to transfer the accrued and withheld amounts of personal income tax to the budget both at its location and at the location of each of its separate divisions (clause 7 of article 226 Tax Code of the Russian Federation). It is necessary to pay personal income tax at the location of each separate subdivision, regardless of whether such a separate subdivision has a separate balance sheet or current account. In this case, payment orders are issued separately for each separate subdivision, indicating the checkpoint assigned to it and the corresponding OKTMO code of the municipality, to the budget of which personal income tax is paid.

But if separate divisions belong to one tax tax, you can transfer one payment order. This was stated in the letter of the Ministry of Finance of Russia dated July 3, 2009 No. 03-04-06-01 / 153.

The payment of personal income tax at the location of one of the separate divisions of the organization is applicable only when all separate divisions are in the same city, but are registered with different tax authorities.

If several separate divisions are located in the same municipality (or in the cities of Moscow and St. Petersburg), but in territories under the jurisdiction of different tax inspectorates, the organization has a choice:

1) register with the inspection at the location of each unit and also separately pay personal income tax;

2) choose one of the separate divisions in this municipality and register at its location so that taxes, including personal income tax, are paid exactly at the location of this division (letter of the Ministry of Finance of Russia dated September 21, 2011 No. 03-04-06 / 3 -230). The organization indicates information about the choice of the tax inspectorate in the notification that it sends to the inspectorate at its location.

The employee during the reporting year works in different separate divisions.

Sometimes employees work simultaneously in several separate divisions. Personal income tax should then be transferred to the appropriate budgets at the location of each unit based on hours worked.

If during the month the employee officially worked both at the head office and at the additional one, then the tax must be calculated for each address, taking into account the hours worked. And transfer it with different payments ( Letter of the Ministry of Finance of Russia dated September 19, 2013 No. 03-04-06/38889).

EXAMPLE

How to distribute personal income tax if an employee worked in different divisions of the company in one month.

Employee Ivanov A.S. has a salary of 45,000 rubles. There are 21 working days in September 2013. Since there were no other payments in September, Ivanov's daily earnings are 2142.86 rubles. (45,000 rubles: 21 days).

From September 1 to September 15 (10 working days), the employee worked at the head office located in Moscow. During this time, he was credited with 21,428.60 rubles. (2142.86 rubles × 10 days). Personal income tax amounted to 2786 rubles. (21428.60 rubles × 13%).

And from September 16 to September 30 (11 working days) - in a separate subdivision located in Chelyabinsk. During this time, he was credited with 23,571.46 rubles. (2142.86 rubles × 11 days). Personal income tax amounted to 3064 rubles. (23,571.46 rubles × 13%).

Similarly, you need to do if the employee combines the main job at the head office with part-time work in a branch of the same organization (letter of the Ministry of Finance of Russia dated April 14, 2011 No. 03-04-06 / 3-89).

Where to pay personal income tax if an employee on a business trip works in another unit?

If an employee travels to other divisions on a business trip, personal income tax is transferred to the main place of work. This is due to the fact that he is not paid salaries in other departments. A similar situation is considered in the letter of the Ministry of Finance of Russia dated August 8, 2012 No. 03-04-06 / 3-223.

Where to pay personal income tax if the employee was transferred to another unit in the middle of the month?

If an employee is transferred to work in another division, the corresponding amounts of personal income tax will need to be paid already at the location of this division. Moreover, if the unit is registered in the middle of the month, personal income tax for this month will also need to be paid separately: in proportion to the share of income accrued to the employee during work in this unit (letter of the Federal Tax Service of Russia for Moscow dated December 26, 2007 No. 28- 11/124267).

The employee worked in several separate divisions, and then took a vacation during this period.

If an employee worked in several departments and goes on vacation, personal income tax from his income, including vacation payments, must be transferred to the budget at the location of the department in which he was issued a vacation (letter of the Ministry of Finance of Russia dated August 17, 2012 No. 03-04 -06/8-250).

How to issue a payment order for payment of personal income tax for a separate division.

When transferring tax, the head office must indicate in the payment order for each separate subdivision the following data:

details of the department of the Federal Treasury and the tax inspectorate of the region in which the separate subdivision is located and is tax registered;

Checkpoint assigned to the unit;

OKTMO code of the municipality to whose budget personal income tax is transferred.

You can find more detailed information in the letters: Ministry of Finance of Russia dated 07/03/2009 N 03-04-06-01/153, Federal Tax Service of Russia for Moscow dated 07/01/2010 N 20-15/3/068888, dated 05/20/2010 N 20-15/3/ [email protected]

The company mistakenly transferred personal income tax to the IFTS of the parent organization, but it should have been to the IFTS of a separate division, will the company be fined?

According to the tax authorities, if an error is made in the details, the obligation to transfer tax cannot be considered fulfilled. The tax agent should once again transfer personal income tax using the correct details, pay penalties, and then claim the erroneously transferred amount of tax. This is where the difficulties for the tax agent arise.

So, in one case, an LLC erroneously transferred personal income tax at the location of a separate subdivision. The IFTS refused to refund the tax due to the fact that a refund can only be made after an on-site tax audit.

However, the arbitration court found that, according to paragraph 6 of Art. 78 of the Tax Code of the Russian Federation, the amount of overpaid tax is subject to refund upon a written application of the taxpayer within one month from the date of receipt by the tax authority of such an application. Refunds are made only after offsetting the amount of overpaid tax to pay off the arrears (debts).

It does not follow from this provision that an on-site tax audit is necessary for the refund. Nevertheless, the IFTS brought the case to the court of cassation, which confirmed that the tax authorities had come up with conditions for a refund. In addition, the court confirmed the legality of collecting penalties from the Federal Tax Service Inspectorate for a delay in tax refunds (Resolution of the FAS ZSO dated 01.20.2011 N A67-3340 / 2010).

It should be noted that the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 645/05 of August 23, 2005, noted that the Tax Code of the Russian Federation does not provide for liability for improper performance by a tax agent of his duties, in particular for violation of the transfer procedure withheld by personal income tax. If personal income tax was withheld and transferred on time and in full, but with incorrect details in the payment order, then the tax inspectorate has no reason to hold the tax agent liable for tax liability in the form of a fine in the amount of 20% of the unpaid amount under Art. 123 of the Tax Code of the Russian Federation.

Now the tax authorities and the Federal Treasury have the opportunity to independently redistribute between the budgets the amount of tax credited to the corresponding accounts.

And if so, then the payment of personal income tax at the place of registration of a legal entity instead of paying tax at the location of a separate subdivision cannot entail the accrual of penalties in accordance with paragraph 1 of Art. 75 of the Tax Code of the Russian Federation, since penalties are recognized as the amount of money that the tax agent must pay in the event that the due amounts of taxes are paid at a later date than established by the legislation on taxes and fees.

Since the money was transferred on time, and the tax office did not exercise its right to clarify the payment, there are no grounds for collecting personal income tax and penalties.

Often, the tax authorities refer to sub. 4 p. 4 art. 45 of the Tax Code of the Russian Federation and the procedure for accounting by the Federal Treasury of revenues to the budget system of the Russian Federation ... approved. Order of the Ministry of Finance of Russia dated December 16, 2004 N 116n. By virtue of this Procedure, the bodies of the Federal Treasury cannot independently redistribute the funds received between the budgets of the constituent entities of the Russian Federation.

The Presidium of the Supreme Arbitration Court of the Russian Federation put an end to this controversial issue. In the Ruling dated July 23, 2013, the court indicated that the fulfillment of the obligation to pay tax is not made dependent on the correctness of the indication of OKATO in payment documents and this violation of the procedure for paying tax cannot lead to the accrual of penalties. With the correct indication of the account of the Federal Treasury, personal income tax in any case enters the budget system of the Russian Federation. Tax authorities and bodies of the Federal Treasury have the opportunity to independently redistribute the appropriate amount of tax between budgets.

After that, the FTS issued a letter dated August 2, 2013 N BS-4-11 / 14009, which states that: since the enterprise tax on personal income was withheld and transferred in a timely manner and in full, the inspectorate had no reason to bring him to tax liability for article 123 of the Code.

We provide income tax returns.

No later than April 1, organizations must report on income. To which inspection should I send form No. 2-NDFL, if the company has a separate division, at the location of the parent company or division?

The Letter of the Ministry of Finance of the Russian Federation dated 03.12.08 No. 03-04-07-01 / 244 states that the organization has the right to choose which tax authority to submit information in form No. 2-NDFL for employees of separate divisions.

The right of choice is used by the divisions that pay wages to their employees and transfer personal income tax from the settlement account of their division.

Where to report on 2-personal income tax if a separate division is not allocated to a separate balance sheet and does not have a current account?

Such companies are also given the right to choose. An organization, acting as a tax agent, has the right to submit information in the form N 2-NDFL on the income of individuals and the amounts of accrued and withheld tax on employees of a separate subdivision to the tax authority at the place of tax registration of the head organization or at the place of tax registration of a separate subdivision . Officials agree on this issue. The Ministry of Finance explained this situation in a letter dated August 28, 2009 N 03-04-06-01/224. The Federal Tax Service, in turn, in a letter dated April 10, 2009 N 20-15 / 3 / [email protected]

The procedure for paying personal income tax, including by separate divisions

When paying income to their employees, tax agents are required to calculate, withhold personal income tax from taxpayers and pay it to the budget. As a general rule, the tax is paid by the tax agent at his location. However, organizations with separate subdivisions pay personal income tax in a different manner. The procedure for paying VAT by separate divisions will be discussed in the material below.

Before considering the very procedure for paying personal income tax by organizations with a branched structure, it is necessary to recall what is understood in Russian tax law as a separate subdivision of an organization.

According to paragraph 20 of clause 2 of article 11 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. A separate subdivision of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision. At the same time, the workplace is considered stationary if it is created for a period of more than one month.

As you can see, for the recognition of a structural unit of an organization as its separate subdivision, the creation of jobs is of key importance. By virtue of Article 209 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

If stationary jobs are not created at the location of the structural unit of the organization, then a separate subdivision does not arise. The same clarifications are contained in the letters of the Ministry of Finance of Russia dated May 24, 2013 No. 03-02-07 / 1 / 18634, dated July 28, 2011 No. 03-02-07 / 1-265, dated November 3, 2009 No. 03-02- 07/1-493.

Note that in the presence of stationary jobs, it matters for how long they are created. The Tax Code of the Russian Federation directly indicates that this period should exceed one month, therefore, if the duration of work in one locality lasts no more than one month, then the organization’s activities in such conditions do not lead to the creation of separate divisions. Similar explanations are contained in the letter of the Ministry of Finance of Russia dated July 10, 2008 No. 03-02-07 / 1-271.

Please note that the decision to recognize the territorially separate structure of the company as a separate subdivision is within the competence of the organization itself. However, if in doubt, an organization can always contact the tax authority for help in resolving this issue. This right of the organization follows from the interconnection of the norms of paragraph 9 of Article 83 of the Tax Code of the Russian Federation and subparagraph 1 of paragraph 1 of Article 21 of the Tax Code of the Russian Federation. This is also indicated by the Ministry of Finance of Russia in its letter dated October 4, 2013 No. 03-02-07/1/42722.

Article 226 of the Tax Code of the Russian Federation is devoted to the peculiarities of the calculation and payment of personal income tax by tax agents.

According to this article, the following persons are recognized as tax agents for personal income tax, from whom or as a result of relations with which the taxpayer received taxable income:

– Russian organizations;

– separate subdivisions of foreign organizations in the Russian Federation;

Letter No. 03-04-06/6-277 of September 13, 2012 of the Ministry of Finance of Russia states that if a foreign organization pays income to an individual not through a separate subdivision in the Russian Federation, it is not a tax agent.

- individual entrepreneurs;

- notaries in private practice;

- Lawyers who have established law offices.

According to the general rule, enshrined in paragraph 7 of Article 226 of the Tax Code of the Russian Federation, the total amount of personal income tax calculated and withheld by the tax agent from the taxpayer, in respect of which he is recognized as a source of income, is paid at the place of registration of the tax agent in the tax authority.

At the same time, such a category of tax agents as Russian organizations that have separate subdivisions are required to transfer the calculated and withheld tax amounts both at their location and at the location of each of their separate subdivisions (paragraph 2 of clause 7 of Article 226 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated December 23, 2014 No. 03-04-06 / 66648, dated November 21, 2013 No. 03-03-07 / 50224, dated August 7, 2012 No. 03-04-06 / 3-222, dated December 20 2011 No. 03-04-06/3-352).

This rule applies exclusively to Russian organizations that have separate subdivisions in their structure. Foreign organizations with a branch network in the Russian Federation pay personal income tax in the general manner - at the location of their representative office in the Russian Federation. A similar conclusion is contained in the letter of the Federal Tax Service of Russia for the city of Moscow dated January 23, 2009 No. 18-15 / [email protected], as well as in the decision of the Federal Antimonopoly Service of the North-Western District of January 14, 2008 in case No. A56-2929 / 2007.

Moreover, as officials explain in the letter of the Ministry of Finance of Russia dated July 4, 2011 No. 03-04-06 / 3-159, it does not matter whether a separate division of a Russian company is allocated to a separate balance sheet or not. At the same time, who exactly should transfer the tax - the separate division itself or the parent company of the Tax Code of the Russian Federation does not explain. Regulatory authorities do not give a clear answer to this question. According to the opinion of the financiers, stated in the letter dated March 29, 2010 No. 03-04-06 / 54, the tax can be paid by the separate division itself, allocated to a separate balance sheet and having its own current account. At the same time, representatives of the tax authorities in the capital believe that personal income tax at the location of a separate subdivision of the organization should be transferred by the parent company itself. This opinion is stated in the letter of the Federal Tax Service of Russia for the city of Moscow dated May 20, 2010 No. 20-15 / 3 / [email protected]

In order to exclude the occurrence of tax risks, we recommend that the tax agent apply with a corresponding request to his tax office.

If a taxpayer pays personal income tax at the location of a separate subdivision, then the amount of tax should be determined based on the income of individuals who work in a separate subdivision or receive income from it for other reasons, for example, under work contracts, leases, copyright agreements. This follows from paragraph 3 of clause 7 of Article 226 of the Tax Code of the Russian Federation. This fact is confirmed by the letters of the Ministry of Finance of Russia dated June 1, 2011 No. 03-04-06 / 3-128, dated June 18, 2010 No. 03-04-06 / 3-124, the Federal Tax Service of Russia dated August 3, 2011 No. AS-4 -3 / 12547, Federal Tax Service of Russia for the city of Moscow dated May 20, 2010 No. 20-15 / 3 / [email protected]

Given the above, we can conclude that the parent organization is obliged to keep records of income received from it by individuals, separately for the parent organization and separately for a separate division. In addition, the parent organization must pay the calculated and withheld amounts of personal income tax both at its location and at the location of separate divisions.

At the same time, if each separate division of the organization is assigned a separate checkpoint, a payment order for the transfer of personal income tax must be issued for each such separate division, including in the case when registration of several separate divisions in accordance with paragraph 4 of Article 83 of the Tax Code of the Russian Federation is carried out at the location of one of them. Such clarifications are given in the letter of the Ministry of Finance of Russia dated June 22, 2012 No. 03-04-06 / 3-174.

Note!

If an employee of an organization works in several separate divisions for a month, then in accordance with the letter of the Federal Tax Service of Russia dated October 26, 2012 No. ED-4-3 / [email protected], personal income tax from the income of such an employee must be transferred to the appropriate budgets at the location of each such separate subdivision, taking into account the hours worked in each separate subdivision.

At the same time, according to the opinion of the Ministry of Finance of Russia, expressed in a letter dated January 30, 2015 No. 03-04-06 / 3505, it does not matter in which of the separate divisions such an employee works on the date of payment of income.

Note that personal income tax from the income of employees sent by the organization to another subject of the Russian Federation in order to open a separate subdivision is transferred at the location of the parent organization. This rule is valid until the created unit is registered with the tax authorities. Such clarifications are given in the letter of the Ministry of Finance of Russia dated August 8, 2012 No. 03-04-06 / 3-223.

Note that a separate subdivision can pay income not only to employees working under labor contracts, but also to freelancers - individuals with whom civil law contracts are concluded. In such a situation, according to the clarifications of the financial department given in letters No. 03-04-06 / 3-216 of August 6, 2012, No. 03-04-06 / 8-220 of August 6, 2012, No. 03-04-06/3-159, personal income tax must also be transferred at the location of a separate subdivision.

However, the Federal Tax Service of Russia for the city of Moscow expresses a different position. The tax authorities indicate that tax on income paid by a separate subdivision to an individual on the basis of a civil law agreement concluded with him must be paid at the place of registration of the parent organization (letter of the Federal Tax Service of Russia for the city of Moscow dated February 26, 2009 No. 20-15 / 3 / 017148).

Taking into account the ambiguous opinion of the regulatory authorities, we recommend that taxpayers clarify the procedure for transferring personal income tax in this case in their territorial tax office.

We remind you that the terms for transferring tax to the budget by a tax agent depend on the form of payment of income to taxpayers - individuals. Thus, tax agents are obliged to transfer the amounts of calculated and withheld tax no later than the day of actual receipt of cash in the bank for the payment of income, as well as the day of transfer of income from the accounts of tax agents in the bank to the accounts of the taxpayer or on his behalf to the accounts of third parties in banks.

In other cases, tax agents transfer the amounts of calculated and withheld tax no later than the day following the day the taxpayer actually receives income - for income paid in cash, as well as the day following the day the tax is actually withheld - for income received by the taxpayer in kind or in the form of material benefit (paragraph 6 of Article 226 of the Tax Code of the Russian Federation).

If, in violation of the tax payment procedure, personal income tax is transferred not at the place of registration of a separate subdivision, but at the location of the organization itself, then controllers will bring the tax agent to tax liability under Article 123 of the Tax Code of the Russian Federation.

According to the specified norm, the unlawful non-withholding and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of the amounts of tax subject to withholding and transfer by a tax agent entails a fine in the amount of 20% of the amount subject to withholding and (or) enumeration.

Moreover, the tax agent will also be calculated the amount of penalties for the resulting arrears on the basis of Article 75 of the Tax Code of the Russian Federation. It is this conclusion that follows from the letter of the Federal Tax Service of Russia dated December 29, 2012 No. AS-4-2 / 22690 "On tax audits".

In practice, arbitrators tend to take a different position. They point out that the payment of personal income tax at the expense of the tax agent is contrary to the current norms of paragraph 9 of Article 226 of the Tax Code of the Russian Federation, and penalties should not be collected, since, according to Article 75 of the Tax Code of the Russian Federation, they are charged on the amount of unpaid tax. In the situation under consideration, there is no arrears to the budget. Such conclusions were made in the decisions of the Federal Antimonopoly Service of the Central District dated March 23, 2012 in case No. A35-1973 / 2011, the Federal Antimonopoly Service of the North-Western District dated December 1, 2010 in case No. A56-95584 / 2009, the Federal Antimonopoly Service of the Far Eastern District dated October 11, 2011 No. F03-4920/2011 in case No. A51-2751/2011.

Moreover, the arbitrators give another argument: the tax authority, having discovered a tax agent’s arrears and overpayments on personal income tax that arose as a result of a violation of the tax transfer procedure, must independently make a set-off, guided by the norms of paragraph 1 of Article 78 of the Tax Code of the Russian Federation, and not charge penalties on the amount arrears (decisions of the Federal Antimonopoly Service of the North-Western District dated July 30, 2012 in case No. A56-48850/2011, dated July 16, 2012 in case No. A44-4027/2011).

There are cases when the tax inspectorate in this situation also imposes a fine on the tax agent under Article 123 of the Tax Code of the Russian Federation for failure to fulfill the obligations to withhold and transfer tax.

In this case, the majority of arbitrators take the side of the taxpayers, given that the organizations did not have debts to the budget, although the procedure for transferring personal income tax was violated (decrees of the Federal Antimonopoly Service of the West Siberian District of August 8, 2013 in case No. A67-4029/2012, Moscow District dated January 17, 2011 No. КА-А40/17435-10 in case No. А40-4800/10-115-55).

At the same time, in the decision of the Federal Antimonopoly Service of the Volga District of April 28, 2012 in case No. A57-4502 / 2011, the court indicated that the payment of personal income tax calculated from the income of employees of a separate subdivision at the location of the parent organization means that the amount of tax was not received by the budget of the municipality, in which the division is located. Consequently, according to the arbitrators, in this case, the organization should be charged penalties and a fine under Article 123 of the Tax Code of the Russian Federation.

Thus, the regulatory authorities do not have a unanimous opinion on this issue, and therefore, in the event of a dispute with them, the organization must be ready to defend its position in court. In this case, there is a high probability of winning this dispute in court.

Note!

From January 1, 2016, some paragraphs of Article 226 of the Tax Code of the Russian Federation will be amended by Federal Law No. 113-FZ dated May 2, 2015 "On Amendments to Parts One and Two of the Tax Code of the Russian Federation in order to increase the responsibility of tax agents for non-compliance with the requirements of legislation on taxes and fees."

In particular, paragraph 6 of this article will be reworded, according to which tax agents will be required to transfer the amount of calculated and withheld tax no later than the day following the day the income is paid to the taxpayer. When paying a taxpayer income in the form of temporary disability benefits (including allowance for caring for a sick child) and in the form of vacation pay, tax agents will be required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made.

Paragraph 3 of clause 7 of Article 226 of the Tax Code of the Russian Federation will contain the following information: the amount of tax payable to the budget at the location of a separate subdivision is determined based on the amount of taxable income accrued and paid to individuals under contracts concluded with these separate subdivisions.

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