If an organization or individual entrepreneur uses taxation as a tax regime, then they must know all the subtleties and features of calculating this tax fee. And there are a lot of them in it. Let's start in order.
Basic moments
According to the law, those commercial organizations and individual entrepreneurs who are engaged in certain types of activities have the right to work under UTII. Their list is prescribed in the All-Russian Classifier of Services to the Population and partially in OKVED. However, specific areas of activity in which it is possible to use UTII in each region are determined individually at the level of local authorities. In turn, they are guided by the economic and territorial characteristics of the region.
When developing his enterprise in one direction or another, every businessman should know whether it falls under UTII or not. This is important for the reason that if the use of “imputation” is possible, then a company or individual entrepreneur can significantly.
The transition to UTII is a strictly voluntary procedure.
How does UTII differ from other forms of taxes?
The most important difference between UTII is that the tax here is paid not on the actual profit received, but on the estimated future income. At the same time, a single tax replaces several tax payments at once, such as personal income tax, VAT, property tax and profit tax.
UTII for retail trade
Quite often, “imputation” is used specifically in the retail industry. This is beneficial for businessmen: if business is going well, then, regardless of the amount of income, they need to pay a strictly defined amount of taxes to the state budget. True, this is also where the main drawback of UTII lies: in the case when trade is at zero or an organization, just like an individual entrepreneur, for some reason stopped conducting its activities, but did not have time to notify the tax service about it, you will still have to pay the “imputation”.
Conditions for using UTII for retail
Not every trading company has the right to use the special UTII regime in its work. There are a number of restrictions that must be taken into account if you want to work according to “imputation”. Here they are:
- The sales area of the company should not exceed 150 sq.m. Otherwise, trade must be conducted either through a non-stationary network or on premises without a sales floor;
- catering establishments cannot use “imputation”;
- Sellers of fuel: gasoline, gas, and motor oils do not have the right to work under imputation;
- entrepreneurs delivering their products to customers through online stores or mail.
These and some other individual entrepreneurs and organizations working in the field of retail sales cannot use UTII. A complete list of restrictions can be found in the Tax Code of the Russian Federation.
Formula and main parameters for calculating UTII in retail trade
As when calculating any other tax, accountants of enterprises and organizations located on UTII must know the formula by which this tax is calculated. According to UTII it will be like this:
BD x FP x K1 x K2 x 15% = UTII
Explanations:
DB– basic profitability. At its core, this is the estimated monthly income for certain types of activities. As of 2016, in retail it is equal to 1,800 rubles per square meter;
FP– physical indicator. For different areas, the physical indicator can be different phenomena, for example, for transport companies it is the vehicles involved in work, for companies providing household services to the population it is the number of personnel. If we talk about retail trade, then the physical indicator here will be the area of the sales floor.
Please note: to reduce tax payments when concluding a lease agreement for a store or retail department, it is better to immediately distinguish between retail and warehouse premises. This is important because only the area of the sales floor, that is, the object for making a profit, is used to calculate the tax.
K 1– a coefficient established at the federal level and reflecting the amount of inflation. In the language of economists, this coefficient is otherwise called a deflator. This indicator changes once a year by a special order of the Ministry of Economic Development.
K 2— a coefficient that is developed by regions of the Russian Federation at the local level. It takes into account many factors at once: such as seasonality, operating hours of an enterprise or individual entrepreneur, employee salaries, etc. In order to find out K 2, you need to contact the tax office at the place of registration;
% — the size of the tax rate.
Let's look at examples of UTII calculations in different cases. All initial data are taken for 2016.
Example 1 (sales area 5-150 sq.m.)
In the first example, let’s take a retail space of 70 sq.m. The store is located in a region where K2 is 0.6.
In total we have:
Basic income – 1800;
Physical indicator – 70;
% — 15;
K 1 - 1.798;
K 2 - 0.6;
Now let's move directly to the calculation:
UTII = 1800 x 70 x 1.798 x 0.6 x 15% = 20389.32 rubles
This is the amount of tax that a taxpayer must pay for one month.
Example 2 (sales area less than 5 sq.m.)
If the area of the retail space does not exceed 5 sq.m., then a different formula must be used for calculation. In this case, such parameters as the basic profitability and the physical indicator will be a strictly defined constant value of 9000.
In the example below, let the area of the retail outlet be 3 sq.m. The region is the same with K 2 equal to 0.6.
The initial data is:
Basic income + physical indicator – 9000;
% — 15;
K 1 – 1, 798;
K 2 – 0.6;
We calculate UTII:
UTII = 9000 x 1.798 x 0.6 x 15% = 1456.38 rubles
- this is exactly how much the owner of, for example, a kiosk with a sales area of 3 sq.m. must pay to the treasury under UTII for one month of work.
Example 3 (trade of mixed goods)
Here we provide a more detailed calculation, taking into account some factors influencing tax reduction.
Attention! If an enterprise trades in multiple types of goods at once, you should study regional K2 very carefully. In some cases, this can significantly reduce the tax. Let's give a specific example.
Let's take a wine store with an area of 25 sq.m. as a taxable object. Regional K2 for alcoholic beverages in a given region will be equal to 1.
We calculate using the above formula:
1800*25*1.798*1*0.15=12136.5 rubles.
Since UTII must be paid quarterly, we multiply the resulting amount by 3.
As a result, we have 36409.5 - this is how much we need to pay to the state budget for one quarter
However, in this case, there is a little trick that can be quite legally used to reduce taxes. A liquor store sells not only alcohol, but also various types of products (including snacks), which means it can be regarded as a mixed food store. But for this category the coefficient is completely different – only 0.27.
1800*25*1.798*0, 27*0.15=3, 276.85 * 3 = 9830.5 rubles
Thus, the difference between the first and second calculations is 26,579 rubles.
But this is not the limit. If we consider this calculation from the point of view of an individual entrepreneur, then he can reduce this tax on contributions paid to the Pension Fund and the Compulsory Medical Insurance Fund for himself in the amount of 100%, but only on the condition that they were made regularly and without delay. If there are sellers, this tax is reduced by 50% of payments made for them to extra-budgetary funds.
With a competent approach and taking into account all factors, the tax paid under UTII can be significantly reduced. As can be seen from the above example, its size is affected by payments to the Pension Fund and the Compulsory Medical Insurance Fund, in addition, if you correctly take into account the basic profitability (and it is different for each type of activity), then you can optimize the UTII in an even more interesting way.
- When is the single tax calculated based on the availability of retail locations?
- On what basis is the area of the hall determined?
Olga Mishchenko, magazine expert
Trading floor or retail space?
How to calculate “imputed” tax
The “imputed” tax for retail trade is calculated on the basis of one of the indicators: “sales area”, “trading place”. The basic yield in the first case is 1,800 rubles per sq. m. m, in the second - 9,000 rubles per place. If a businessman rents a premises larger than 5 sq. m. m, it is more profitable for him not to call it a hall (5 x 1800 = 9000). Unfortunately, you won’t be able to choose at your own discretion.
Hall - an area (including rented) intended for the passage and service of customers, where equipment for demonstrating products is located. That is, if consumers can go inside the premises where they can examine and purchase goods, the tax is determined based on the area. These include shops and pavilions.
Sales through premises that do not have a hall for customer service and display of goods are subject to a single tax based on the indicator “trading
The trading place is used only for making purchase and sale transactions, that is, transferring goods and receiving payment
place". This becomes a place used only for making purchase and sale transactions, in other words, transferring goods and receiving payment.
Often the choice of indicator depends on how the merchant equips the point. For example, an individual entrepreneur rents part of a retail space in a store of 14 square meters. m. There are demonstration stands and counters, and between them there is a small path for visitors. In fact, it is impossible to serve people in such an area. The Russian Ministry of Finance, in letter dated March 15, 2005 No. 03-06-05-05/27, calls the “path” a trading floor. Since customers have the opportunity to go inside, the businessman must take into account the area. The same applies to merchants who rent part of the hall of a hypermarket or any self-service store. After all, buyers pass between the racks located in the rented area. Doesn't matter
Often the choice of indicator depends on how the merchant equips the outlet
that the passages are common to all shopping areas owned by different entrepreneurs (letter of the Ministry of Finance of Russia dated March 24, 2006 No. 03-11-05/77). Only when a retail outlet is equipped so that visitors do not have access to the pavilion, for example, a counter is installed, then it will be a trading place.
Deceptive document
The area of the sales area is taken from inventory and title documents. These include any papers for the premises, which contain information about its purpose, features, as well as confirming the right of use - registration certificate, plan and diagrams of the building, explications, lease or sale agreement. For example, the lease agreement states that a businessman receives a premises of 100 square meters. m, of which 90 sq. m are intended for trade, and 10 are for storing goods. In this situation, the tax is determined only from 90 square meters. m. The fact is that in the calculations of UTII, utility rooms, warehouses,
When buyers have the opportunity to go inside the premises where they can view and purchase goods, UTII is determined based on the area of the hall
areas where goods are received, stored, and prepared for sale. An exception is that if these territories are actually used for sales, buyers are allowed here. Then they are taken into account (letter of the Ministry of Finance of Russia April 24, 2006 No. 03-11-05/109). As an example, we note the resolution of the Federal Arbitration Court of the East Siberian District dated March 28, 2006 No. A19-20211/05-9-F02-1181/06-S1, where the entrepreneur indicated in the contract that of the rented 84 sq. m retail area is 1 sq. m, from which he paid UTII. The step is quite risky, as it attracts the attention of controllers. The businessman was lucky that the inspectors could not prove otherwise, and the judges proceeded from the information in the documents.
You should not abuse this move, nor should you blindly focus on papers. Even if the premises in the technical passport, contract, or any document are not called “store” or “pavilion”, but it is indicated that it is, say, a warehouse. The status for selecting an indicator is determined based on actual use (letter of the Ministry of Finance of Russia dated October 15, 2004 No. 03-06-05-05/11). Where visitor access is real, UTII is taken from the area.
E.V. Labutina, auditor of AUDIT-Partner LLC
When selling goods at retail, to calculate UTII, the use of the indicator “trading place” or “sales area” is of great importance, since the amount of tax depends on the use of a specific term. How to correctly determine the indicator so as not to violate the Tax Code and be able to protect your interests in a dispute with a tax inspector or in a legal dispute? Let's look into the situation.
Let's separate the flies from the cutlets
The object of taxation for the application of UTII is the imputed income of the taxpayer (clause 1 of Article 346.29 of the Tax Code of the Russian Federation). This refers to the potential income of a single tax payer, calculated taking into account a set of factors that directly influence its receipt, and used to calculate the amount of a single tax at the established rate.At the same time, the amount of imputed income, according to clause 2 of Art. 346.29 of the Tax Code of the Russian Federation, is calculated as the product of the basic profitability for a certain type of business activity, calculated for the tax period, and the value of the physical indicator characterizing this type of activity.
The law establishes two indicators for the type of activity “retail trade”: “sales area (in square meters)” and “sales space”. Despite the fact that the provisions of Ch. 26.3 of the Tax Code of the Russian Federation contain detailed instructions, including conceptual apparatus, on in what cases which indicator should be used; the practical application of these norms clearly demonstrates that these instructions need to be improved.
For example, paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation divides trade into:
Retail trade carried out through stationary retail chain facilities with trading floors;
Retail trade carried out through stationary retail chain facilities that do not have sales floors;
Retail trade through non-stationary retail chain facilities.
As can be seen from the data given in the table above, the option of paying for a “trading space” is the most attractive.
In order to correctly determine the physical indicator of basic profitability, it is necessary to consider in detail the concepts of Article 346.27 of the Tax Code of the Russian Federation.
In accordance with the requirements of Art. 346.27 of the Tax Code of the Russian Federation, a retail network located in specially equipped buildings (parts thereof) and structures intended for trading is considered stationary. In other words, a stationary retail network is formed by building systems that are firmly connected by a foundation to a land plot and connected to utilities.
A store is a specially equipped stationary building (part of it) intended for the sale of goods and provision of services to customers and provided with retail, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale;
Pavilion - a building that has a sales area and is designed for one or more workplaces;
A kiosk is a building that does not have a sales area and is designed for one seller’s workplace.
According to the current legislation, only those stores and pavilions whose sales area does not exceed 150 square meters can be transferred to UTII. m. In this case, the area of the trading floor is understood as the area of all premises and open areas used by the taxpayer for trade, determined on the basis of inventory and title documents, with the exception of utility, administrative and utility premises, as well as premises for receiving, storing goods and preparing them for sales that do not serve visitors. Note that this edition of Ch. 26.3 of the Tax Code of the Russian Federation - which clearly excludes utility, administrative, and storage premises from the area of the trading floor - came into force on April 1, 2005.
However, in the text of Ch. 26.3 of the Tax Code of the Russian Federation does not specify what exactly is included in the concept of “inventory and title documents”. At the same time, both the Ministry of Finance of Russia and the Ministry of Taxes of Russia (now the Federal Tax Service of Russia) have repeatedly expressed the opinion that title and inventory documents include any documents available to the taxpayer for a stationary retail chain facility that contain the necessary information about the purpose, design features and layout of the premises such an object, as well as information confirming the right to use this object, in particular:
Transfer agreement (purchase agreement) of non-residential premises;
Technical passport for non-residential premises;
Plans, diagrams, explications;
Lease (sublease) agreement for non-residential premises or its part(s);
Permission to serve visitors in an open area
This is stated in letters of the Ministry of Finance of Russia dated December 21, 2004 No. 03–06–05–05/43 and dated May 7, 2004 No. 04–05–12/25, in letters of the Ministry of Taxes of Russia dated March 2, 2004 No. 22–2–14/ 336@ and dated 01.08.2003 No. 22–2–14/1757-AB026 and in some other clarifications of the financial and tax departments.
Non-stationary, according to Chap. 26.3 of the Tax Code of the Russian Federation, a trading network operating on the principles of distribution and distribution trade, as well as other objects of trade organization that are not classified as a stationary trading network, are considered. For example, an open area and a tent.
In our opinion, the issue of physical indicators must be resolved in each specific case based on the characteristics of a particular retail outlet.
According to sub. 4 p. 2 tbsp. 346.26 of the Tax Code of the Russian Federation, when deciding on the need to apply UTII, an object directly operated by the taxpayer is considered, and when choosing a physical indicator, it is necessary to take into account the characteristics of this particular object. If the facility directly operated by the taxpayer does not have a sales area, then the “sales location” indicator should be used.
The content of the agreement will also be of no small importance here. If the area is not defined in it, then it will be easier to prove that the tax must be paid from the retail space. In addition, the use of a particular physical indicator can be confirmed by inventory and title documents.
Judicial practice is in favor of taxpayers!
There is arbitration practice of making decisions on the issue under consideration in favor of taxpayers. For example, the Federal Antimonopoly Service of the West Siberian District, in resolution dated February 24, 2005 No. F04–495/2005 (8576-A03–19), indicated that retail space directly rented by an entrepreneur (11 and 9.5 sq. m.) does not have sales floors and correspond to the concept of “trading place”, defined by Art. 346.27 Tax Code of the Russian Federation. Since the tax authority did not provide evidence confirming the entrepreneur’s use of trading floors for retail trade, the court refused to satisfy the claims (to collect arrears on a single tax calculated based on the indicator “sales area”).Similar decisions were made by the same court on January 11, 2005 in case No. F04–9232/2004 (7492-A03–19) and on December 9, 2004 in case No. F04–8791/2004 (6897-A03–19).
The courts usually justify the decision on the illegality of using the indicator “trading place” by the presence of a trading floor directly at the taxpayer. So, for example, in the resolution of the Federal Antimonopoly Service of the West Siberian District dated September 22, 2004 No. Ф04–6704/2004 (А46–4853–27), the arbitration court established that it was the area actually occupied by the entrepreneur that corresponded to the characteristics of a trading floor (it has a separate entrance, the location of the control -cash machine, seller’s workplace, stands and display cases with goods, aisles for customers). A similar decision was made by the Federal Antimonopoly Service of the Ural District (resolution No. F09–4726/04-AK dated November 30, 2004).
Official letters from regulatory authorities do not contain any clear explanations on this issue. Thus, the Ministry of Finance of Russia answered a question from an entrepreneur about the applicability of the physical indicator “trading space” when renting a fenced-off retail space in a store in the form of a kiosk (i.e., without a sales area) answered very vaguely. He indicated that the indicator “trading place” should be used if the premises used for retail trade do not comply with the requirements established by Chapter. 26.3 of the Tax Code of the Russian Federation on the concept of a store (see letter dated 02.02.2005 No. 03–06–05–05/07). But what to do in the case when the premises themselves correspond to the concept of “shop”, and trade is carried out from its part, in which there is no trading floor, the Ministry of Finance did not inform.
Another problem is the absence of Art. 346.27 of the Tax Code of the Russian Federation the very concept of “trading floor”. There is a concept of “sales area”, but it only helps to determine which premises should be excluded from the calculation (for example, warehouse, administrative, etc.) if the “sales area” indicator is used, and the answer to the question of how does not determine whether the taxpayer’s area includes a sales area.
The wording “the area of all premises used for trade” gives tax authorities grounds to consider as a trading floor any area used for trade in a stationary building (for example, a wholesale warehouse from which goods are sold for cash).
The law is like a drawbar, as the court turned, so it turned out
Some trading floor criteria are attempted to shape the courts when reviewing the materials of specific cases.For example, the Federal Antimonopoly Service of the North-Western District recognized that the premises used by an entrepreneur for trade have a trading floor, on the grounds that it is equipped with a counter, display cases and has a place for serving visitors (resolution dated February 14, 2005 No. A26-6098/04 –29).
In another case, the court decided that the part of the retail premises used by the entrepreneur does not correspond to the characteristics of a trading floor, since it is designed for one sales place of the seller, it does not have a self-service area and aisle area for customers (Resolution of the Federal Antimonopoly Service of the Ural District dated December 14, 2004 No. F09-5266/ 04-AK). The same FAS in another case took advantage of the provisions of Art. 65 of the Arbitration Procedure Code of the Russian Federation on the obligation of the tax authority to prove its reasons. Since the tax authority was unable to prove the existence of a trading floor in the premises used by the taxpayer, the court recognized the use of the indicator “trading place” as lawful (Resolution of the Federal Antimonopoly Service of the Ural District dated January 18, 2005 No. F09-5871/04-AK).
The criterion of a trading floor as a place in which there must be aisle areas for customers is also used in decisions of the Federal Antimonopoly Service of the West Siberian District (see resolutions dated January 11, 2005 No. F04-9232/2004 (7492-A03-19) and dated December 2, 2004 No. Ф04–8494/2004 (6606-А03–19)). If there are no such areas, then the use of the “trading place” indicator is considered legal.
The labyrinths of Chapter 26.3 of the Tax Code of the Russian Federation are not for the faint of heart
If a retail facility does not meet any of the criteria for a stationary retail chain, then it should be classified as a non-stationary retail chain facility. As follows from the definitions of Art. 346.27 of the Tax Code of the Russian Federation, only buildings (parts thereof) and structures that are specially equipped and intended for trading can be classified as a stationary retail network.Consequently, if a taxpayer carries out retail trade from a premises that does not meet these criteria, then, regardless of the presence (absence) of a sales area, he has the right to use the “trading place” indicator.
Let's take a closer look at the characteristics of a stationary retail chain.
1. The building (part of it) must be specially equipped.
What could this mean? In our opinion, the presence of display cases, counters, shelving, refrigeration units (if necessary), etc. Equipping a room in this way is not difficult, therefore, this condition can be met for any room. In this case, the degree of “equipment” is determined depending on the nature of trade and the desire of the taxpayer.
2. The building (part of it) must be intended for trading.
By whom it is “intended”, the Tax Code does not specify. However, current legislation requires mandatory cadastral and technical registration (inventory) of all real estate objects, as well as state registration of rights to real estate objects and transactions with it (Articles 1 and 2 of the Federal Law of July 21, 1997 No. 122-FZ “On State registration of rights to real estate and transactions with it"). Consequently, the purpose of the property should be determined on the basis of inventory and title documents for the building (structure). The rules for maintaining the Unified State Register of Rights to Real Estate and transactions with it, approved by Decree of the Government of the Russian Federation dated February 18, 1998 No. 219, determine that the certificate of state registration of rights must indicate, among other things, a description of the object of right (clause 74 of the Rules ).
Since the description of a real estate object in the Unified State Register is made with an indication of the main purpose of the object, for example: residential, non-residential building, industrial, warehouse, commercial premises, etc. (Clause 30 of the Rules), it can be assumed that the purpose of the object will be indicated in the certificate.
As for technical inventory documents (technical passport, explication, etc.), they indicate the purpose of the property is mandatory.
From the above we can conclude that the purpose of real estate is always determined in advance. It cannot be changed by installing commercial equipment on the premises or by a lease agreement specifying trade as the purpose of use.
Apparently, the Ministry of Finance was guided by similar reasoning when it answered the taxpayer’s question about the choice of a physical indicator in the case of retail trade in premises rented for these purposes in the building of the House of Communications (the type of building was determined from the documents as industrial).
As the Ministry of Finance explained, if the title and inventory documents do not identify such premises as part of the building, specially equipped and intended for trading, then this object should be considered as an object of a non-stationary retail chain and the physical indicator “trading place” should be used to calculate UTII (see letter Ministry of Finance of Russia dated March 26, 2004 No. 04–05–12/16).
The new position of the chief financial department is as follows.
The technical passport for the premises is a document that only confirms the occupied space, but the status of the premises is determined based on the conditions of its actual use. Therefore, premises can be classified as objects of a non-stationary retail chain only if during use they do not comply with the requirements established by Chapter. 26.3 of the Tax Code of the Russian Federation to the concept of a store (see letters from the Ministry of Finance of the Russian Federation dated 08/31/2004 No. 03–06–05–05/02, dated 09/01/2004 No. 03–06–05–05/03, dated 09/06/2004 No. 03–06– 05–04/13, dated 10/15/2004 No. 03–06–05–05/11).
However, the criterion “intended for trade” is also present in the definition of a store given in Art. 346.27 Tax Code of the Russian Federation. Therefore, determining the status of a premises only based on the conditions of its use is contrary to the Tax Code of the Russian Federation.
Let us note that “imputers” who use the “trading place” indicator when trading from a non-stationary trading network have the right to refer to the above letter of the Ministry of Finance of the Russian Federation dated March 26, 2004 No. 04–05–12/16 (containing a more favorable position for taxpayers). According to sub. 3 p. 1 art. 111 of the Tax Code of the Russian Federation, compliance with written explanations of the Ministry of Finance is a circumstance that relieves the taxpayer from tax liability. So, at least this letter will exempt you from a fine, but the additional assessment of taxes and penalties depends on what the position of the courts will be.
If, nevertheless, we are guided by the new position of the Russian Ministry of Finance on this issue, then the choice of a physical indicator when trading from a premises not intended for these purposes should be made based on other characteristics of the store:
The premises must be specially equipped for the sale of goods and provision of services to customers;
The premises must be provided with retail, utility, administrative and amenity premises, as well as premises for receiving, storing and preparing goods for sale.
In addition, as follows from the definition of “stationary retail chain,” the premises must have a sales area.
In our opinion, even if we proceed from this interpretation of this issue by the Ministry of Finance, the single tax for trading from an office must still be calculated using the “trading place” indicator. As for trading from a warehouse or from other premises that are not intended for trade according to documents, it all depends on how well these premises correspond to the characteristics of a store.
Definition of the concept of “trading place” in Art. 346.27 of the Tax Code of the Russian Federation is (a place used for making purchase and sale transactions). However, it is formulated in such a way that it gives rise to different interpretations.
Let's start with the fact that a transaction is an institution of civil law. According to paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation, used in the Tax Code of the Russian Federation, are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.
Under a purchase and sale transaction (or rather, under an agreement), one party (the seller) undertakes to transfer the property into ownership of the other party (the buyer), and the buyer undertakes to accept this thing and pay a certain monetary price for it (clause 1 of Article 454 of the Civil Code of the Russian Federation ).
Civil law does not determine the place where the transaction is concluded. Speaking about the place of the transaction, the author of this definition apparently meant the place where the parties fulfill their obligations under the contract. Since purchase and sale is carried out in cash, the place of performance of obligations under the contract should be considered the seller’s point of sale.
The question arises: how to calculate the number of retail spaces? If one entrepreneur works in his own kiosk, then everything is obvious. What if there are three employees working behind three counters, and the money goes through one cash register? What is considered the place of transaction - the cash register or the counter? At the cash register, the buyer performs his responsibilities for the transaction, and at the counter, the seller.
The practical interpretation of this definition, in our opinion, is that a trading place is a seller’s workplace. Although another point of view is also possible.
Another problem with retail space is that property owners often use the wording “retail space” in the lease agreement to their understanding, thus denoting a dedicated retail location in a market or other retail facility. And the tax authorities, having seen such an agreement, draw conclusions on the number of retail locations based on it.
For example, the Federal Antimonopoly Service of the Central District considered a situation where an individual entrepreneur who rented a trade counter paid rent in accordance with the contract for two standard retail spaces (since this counter, according to the calculations of the market administration, allowed the work of two sellers). But the entrepreneur worked alone, so he calculated UTII as for one trading place.
Guided by the lease agreement, the tax authority demanded that the taxpayer pay additional UTII, but the court supported the entrepreneur. As the FAS indicated, in this case, the amount of payment collected from the tenant for the use of the retail space of one counter cannot serve as a determining indicator of the number of retail spaces that are subject to UTII taxation (see Resolution No. A54-1153/04-C2 dated 05.08.2004).
Similar decisions were made by the FAS of the Volga District (see resolutions dated December 9, 2004 No. A12-19074/04-S25 and dated April 25, 2002 No. A06-1376u-19k/01).
Changes to UTII coming into force on January 1, 2006.
Federal Law No. 101-FZ of July 21, 2005 expanded the types of business activities that are transferred to the payment of UTII.At the same time, again, clause 2.1 of Art. 346.26 of the Tax Code of the Russian Federation indicates that if the types of activities named in this article are carried out within the framework of a simple partnership agreement (agreement on joint activities), then they cannot be transferred to UTII.
But controversial issues between UTII payers and tax authorities have been resolved in terms of:
Calculation of area when deciding on the transition of retail trade and public catering enterprises to UTII, that is, the area is determined separately for each facility;
Definitions of the concept of retail trade: entrepreneurial activity related to the trade of goods (including in cash, as well as using payment cards), based on purchase and sale agreements;
Taxation of motor transport organizations that provide services for the transportation of passengers and goods. Motor transport organizations can switch to UTII if they own by right of ownership or other right (use, possession and/or disposal) no more than 20 vehicles;
Definitions of public catering services: these include the production of culinary products and confectionery products, the creation of conditions for the consumption and sale of industrial products, purchased goods, as well as leisure activities;
Transfer to UTII for public catering organizations that do not have a hall to serve visitors.
From 01/01/2006, owners of kiosks, tents, vending machines and other similar facilities providing public catering services will pay UTII.
Law dated July 21, 2005 No. 101-FZ separately introduced as payers of UTII organizations that place advertising on vehicles, which include trucks and cars of organizations, as well as public transport (buses, trams, trolleybuses), water transport (river vessels ) and even trailers, semi-trailers, trailers. In this case, the place for placing information or installed advertising boards, signs and electronic displays is the roof and side surfaces of the bodies, and the basic profitability from each vehicle is 10 thousand rubles.
Starting from 2006, the following are also transferred to UTII:
Services for temporary accommodation and residence of citizens, that is, the hotel business, but it must be taken into account that the total area of sleeping quarters should not exceed 500 square meters. m;
Activities for the provision of temporary use of trading places in markets and other places of trade that do not have a hall for serving visitors. The principle of calculating UTII operates as in non-stationary retail trade, and a retail location is taken as an indicator of basic profitability.
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Provorova Anna
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Igor, good afternoon.
You need to enter into an additional agreement with the tenant, where it is stated that 10 sq. m. you rent for a retail space, and 20 sq.m. under the warehouse, then all questions will disappear. If you had more than one premises, but at least some division, then you could provide the tax office with a technical plan for the premises.
Question: About calculus
by a taxpayer engaged in retail trade, the amount of UTII, if
he subleased part of the leased sales area of the store
(pavilion).
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
The Department of Tax and Customs Tariff Policy reviewed the appeal
on the application of the taxation system in the form of a single tax on imputed
income for certain types of activities received via electronic
means of communication, and, based on the information contained in the appeal,
reports the following.
In accordance with “p. 3 tbsp. 346.29" of the Tax Code of the Russian Federation
Federation (hereinafter referred to as the Code) to calculate the amount of the single tax on
imputed income for certain types of activities when carrying out
entrepreneurial activity in the field of retail trade through
objects of a stationary retail chain that has trading floors, applies
physical indicator “sales area (in square meters)”.
According to “Art. 346.27" of the Code, the area of the trading floor is understood as
part of a store, pavilion (open area) occupied by equipment,
intended for displaying, demonstrating goods, conducting monetary
settlements and customer service, area of cash registers and
cash registers, the area of working places for service personnel, as well as
aisle area for customers.
The area of the sales area also includes the rented part of the area
trading floor. The area of utility, administrative and amenity premises, and
as well as premises for receiving, storing goods and preparing them for sale, in
which customer service is not provided does not apply to
trading floor area. The area of the sales area is determined based on
inventory and title documents.
For the purposes of ch. 26.3 of the Code for inventory and title
documents include any available to an organization or individual
entrepreneur documents for a stationary retail chain facility,
containing the necessary information about the purpose, constructive
features and layout of the premises of such a facility, as well as information
confirming the right to use this object (purchase and sale agreement
non-residential premises, technical passport for non-residential premises, plans,
diagrams, explications, lease (sublease) agreement for non-residential premises or
its parts (parts) and other documents).
“Clause 2 of Art. 615" Civil Code of the Russian Federation
it is established that the tenant has the right, with the consent of the landlord, to rent
leased property for sublease (sublease).
In this regard, when the tenant subleases part of the sales area
store (pavilion) calculation of the single tax on imputed income
should be carried out based on the rented area of the sales area for
minus the sales area subleased. The basis for
reducing the object of taxation with a single tax on imputed income
is a sublease agreement concluded by the tenant - the taxpayer
the specified tax.
At the same time, it is reported that this letter from the Department does not contain
legal norms, does not specify regulatory requirements and is not
regulatory legal act. Written clarifications from the Russian Ministry of Finance on
issues of application of the legislation of the Russian Federation on taxes and
fees are of an informational and explanatory nature and do not interfere
taxpayers are guided by the norms of Russian legislation
Federation on taxes and fees in an understanding different from the interpretation
set out in this letter.
Deputy Director
Tax Department
and customs tariff policy
R.A. SAHAKYAN
09.12.2013
received
fee 33%
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Goryunov Evgeniy
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I ask you to clarify whether I am determining the area of the sales area correctly, how can I challenge this with the tax authorities, what documents can serve as evidence in the event of a trial in court?
Igor Tatarinov
Yes, you determine the area correctly
THE FEDERAL TAX SERVICE
LETTER
dated February 22, 2005 N 22-2-16/232
ABOUT THE SYSTEM APPLICATION PROCEDURE
TAXATION IN THE FORM OF A SINGLE TAX ON IMPLEMENTED
INCOME FOR SELECTED TYPES OF ACTIVITY
The Federal Tax Service reports.
In accordance with Article 346.26 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), the taxation system in the form of a single tax on imputed income for certain types of activities can be applied by decision of a constituent entity of the Russian Federation in relation to the types of business activities provided for in paragraph 2 of this article of the Code, including and in relation to retail trade carried out through shops and pavilions with a sales floor area for each trade facility of no more than 150 square meters, tents, trays and other trade facilities, both with and without a stationary retail space.
According to Article 346.27 of the Code, for the purposes of Chapter 26.3 of the Code, a stationary retail chain is understood as a retail chain located in buildings (parts thereof) and structures specially equipped and intended for trading. A stationary retail network is formed by building systems firmly connected by a foundation to a land plot and connected to utilities.
This category of retail facilities includes trade organization facilities both with trading floors (shops, pavilions) and without trading floors (kiosks, covered markets, fairs, etc.).
A store is understood as a specially equipped stationary building (part of it), intended for the sale of goods and provision of services to customers and provided with retail, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, and a pavilion - a building , which has a sales area and is designed for one or more workplaces.
Thus, other objects of a stationary retail chain that do not comply with the concepts of store and pavilion established by Chapter 26.3 of the Code should be classified as objects of a stationary retail chain that do not have a sales area.
According to Article 346.29 of the Code, when carrying out retail trade through objects of a stationary trading network that have trading floors, the calculation of the single tax on imputed income is carried out using the physical indicator of basic profitability “sales area in square meters”, and through objects of a stationary trading network that do not have trading floors. hall, - using the physical indicator of the basic profitability “trading place”.
Moreover, in accordance with Article 346.27 of the Code, a “trading place” is understood as a place used for making purchase and sale transactions, and the “trading floor area” of a stationary retail chain facility (store and pavilion) is the area of all premises of this facility and open areas, used by the taxpayer for trade, determined on the basis of inventory and title documents.
Such documents include any documents available to the taxpayer for a stationary trade facility that contain the necessary information about the purpose, design features and layout of the premises of such a facility, as well as information about the legal grounds for using this facility (transfer agreement, purchase and sale agreement of non-residential premises; technical passport for non-residential premises, plans, diagrams, explications, lease (sublease) agreement for non-residential premises or part (parts), permission to conduct trade in an open area, etc.).
According to the State Standard of the Russian Federation R51303-99 “Trade. Terms and Definitions" (hereinafter referred to as GOST R51303-99), the area of the store's sales floor is understood to be part of the store's sales area, including the store's installation area (part of the store's area occupied by equipment intended for displaying, demonstrating goods, making cash payments and servicing customers), the area of cash registers and cash registers, the area of service personnel's workplaces, as well as the area of aisles for customers.
Thus, when calculating the amount of a single tax on imputed income by a taxpayer engaged in retail trade through a stationary trade facility that corresponds to the concepts of store and pavilion established by Chapter 26.3 of the Code, the area of all premises of such a facility is taken into account (including the areas classified by GOST R51303-99 as the area trading floor), as well as open areas actually used by him for retail trade in goods and provision of services to customers, which is determined in accordance with the above-mentioned title and inventory documents.
It should be borne in mind that the areas of warehouse, office, utility and other premises of a stationary trade organization facility, not intended for conducting retail trade and providing services to customers, are taken into account by the taxpayer when calculating the single tax on imputed income only if such premises they are actually used for the purposes stated above.
When a taxpayer carries out retail trade through other stationary objects of a retail trade organization (objects that do not correspond to the concepts of store and pavilion established by Chapter 26.3 of the Code, as well as objects actually used for stores and pavilions, in which the sales floor area is not allocated by title and inventory documents) calculation the single tax on imputed income is carried out using the physical indicator of the basic profitability “trading place”.
I.F.GOLIKOV
received
fee 33%
Good afternoon.
Art. 346.27 Tax Code of the Russian Federation
area of the trading floor - part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods, conducting cash payments and servicing customers, the area of cash registers and cash booths, the area of working places for service personnel, as well as the area of passages for buyers. The area of the trading floor also includes the rented part of the trading floor area. The area of utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, does not apply to the area of the trading floor. The area of the sales area is determined on the basis of inventory and title documents;
Point out this definition to the tax authorities and peacefully “settle” this issue and pay per 10 sq.m.
And if the world doesn’t work out, then my colleagues said everything correctly. The decision of the tax authorities can be challenged in court by presenting relevant evidence.
When calculating UTII for this type of activity, use a physical indicator - the area of the sales floor (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). The basic profitability indicator is 1800 rubles. per month from 1 sq. m of area (clause 3 of article 346.29 of the Tax Code of the Russian Federation).
For the purposes of applying UTII, the concept of “trading floor” is not defined by tax legislation. In this regard, the tax service recommends being guided by the definition of a trading floor, which is given in GOST R 51303-99 (letter of the Federal Tax Service of Russia dated July 2, 2010 No. ШС-37-3/5778). According to this definition, a sales area is understood as a specially equipped main part of a store’s trading premises, intended to serve customers (clause 43, section 2.3 of GOST R 51303-99).
Establish the area of the sales area according to the data of title and inventory documents (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation). For example, this could be a purchase and sale agreement for non-residential premises, a technical passport, plans, diagrams, explications, a lease (sublease) agreement for non-residential premises or part thereof (paragraph 24 of Article 346.27 of the Tax Code of the Russian Federation).
Include the following in the sales area:
- part of a store, pavilion (open area) occupied by equipment for displaying, demonstrating goods, making payments and serving customers;
- area of cash registers and booths;
- area of working places for service personnel;
- aisle area for customers;
- rented part of the retail space.
Exclude from the sales floor area:
- area of utility rooms;
- area of administrative and amenity premises;
- area of premises for receiving, storing goods and preparing them for sale, in which customer service is not provided.
Such requirements are contained in paragraph 22 of Article 346.27 of the Tax Code of the Russian Federation.
In addition, to calculate UTII, you can exclude the area leased (subleased) from the sales area. To do this, the landlord (or the tenant subletting part of the retail space) must have documents confirming the size of the area that is not used by him for retail trade. Such documents may be lease (sublease) agreements, which indicate the size of the area transferred to the tenant (subtenant).
Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated December 9, 2013 No. 03-11-11/53554.
As a general rule, when calculating UTII, the area of cash registers and booths must be included in the area of the sales floor (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation).
However, this procedure applies if the cash register is located directly in the sales area of a stationary retail facility. If the cash register is removed from the sales floor or located in another room, then do not take into account the area it occupies when calculating UTII. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated November 6, 2006 No. 03-11-04/3/443.
If the warehouse is equipped with a sales area, calculate UTII based on its area. If there is no sales area in the warehouse, use the number of sales places or their area to calculate UTII.
Thus, the answer to this question depends on the characteristics of the retail facility.
To calculate UTII from retail trade (except for delivery and distribution), the following physical indicators are used:
- the area of the trading floor, if the premises used belong to a stationary network that has trading floors (shops and pavilions);
- the number of retail spaces, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network and its area is less than 5 square meters. m;
- area of retail space, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network, and its area is more than 5 square meters. m.
This follows from paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.
Fixed network facilities with trading floors include buildings that simultaneously meet the following requirements:
- intended for trading and connected to engineering communications (paragraph 13, 14 of article 346.27 of the Tax Code of the Russian Federation);
- equipped with premises for trade (display of goods) and customer service, trading floors (this follows from the definitions of a store and a pavilion - paragraph 26, 27 of Article 346.27 of the Tax Code of the Russian Federation).
Thus, if a warehouse is intended for trading and is equipped with the necessary trading premises, this means that it belongs to the facilities of a stationary trading network. As for the condition of connection to utilities (electrical and heat networks, water supply, sewerage), then, according to the Ministry of Finance of Russia, it is not mandatory (letter of the Ministry of Finance of Russia dated January 12, 2006 No. 03-11-05/4).
To determine which retail facility the premises belong to (with or without a sales area), refer to the title and inventory documents. If the warehouse meets the definition of a store or pavilion, that is, it is equipped with a sales area, calculate the UTII based on its area. If there is no sales area in the warehouse, to calculate UTII use:
- number of retail spaces (if the area of each of them does not exceed 5 sq. m);
- area of retail places (for retail places whose area exceeds 5 sq. m).
This follows from the provisions of paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.
According to the Russian Ministry of Finance, if an organization does not use the premises for its technical purpose, then appropriate changes should be made to the inventory documents (technical passport). To do this, you need to carry out a technical inventory (letters dated April 9, 2007 No. 03-11-04/3/107, dated April 9, 2007 No. 03-11-05/65, dated July 4, 2006 No. 03-11 -04/3/335 and dated April 24, 2006 No. 03-11-05/109).
Situation: how to calculate UTII if an organization uses the same sales area for different types of activities? For example, for wholesale and retail operations or for retail trade and the provision of household services, catering services.
If the trading floor is used to conduct different types of activities, when calculating UTII, the entire area of the hall must be taken into account.
In particular, this should be done if the organization conducts both retail and wholesale operations in the same sales area; conducts retail trade and provides household services or catering services; retails purchased goods and goods of its own production. This is stated in letters of the Ministry of Finance of Russia dated April 2, 2013 No. 03-11-11/128, dated April 22, 2009 No. 03-11-06/3/101, dated July 3, 2008 No. 03-11- 04/3/311, dated April 13, 2007 No. 03-11-04/3/115.
The entire area must be taken into account even if the same hall is used for retail trade under different tax regimes. For example, if part of retail trade is associated with the sale of excisable goods (not transferred to UTII), and part is associated with the sale of other goods. Despite the fact that in such a situation only part of the sales floor is used for activities within the framework of UTII, the tax must be calculated based on the total area. Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated September 11, 2012 No. 03-11-11/276.
The position of the financial department is explained by the absence in Chapter 26.3 of the Tax Code of the Russian Federation of a mechanism for the distribution of retail space that is simultaneously used to conduct several types of activities or to conduct one type of activity under different tax regimes. The legality of this approach is confirmed by Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2009 No. 9757/09.
Correction factors
In addition to the physical indicator and basic profitability, when calculating UTII from the area of trading floors, use the following values:
- deflator coefficient K1 (clause 4 of article 346.29 of the Tax Code of the Russian Federation);
- correction factor K2 (clause 4 of article 346.29 of the Tax Code of the Russian Federation).
In this case, the value of coefficient K1 is not rounded, but the value of coefficient K2 is rounded to three decimal places (clause 11 of article 346.29 of the Tax Code of the Russian Federation).
Tax rate
If local authorities have not established a reduced tax rate, calculate the amount of UTII at a rate of 15 percent (Article 346.31 of the Tax Code of the Russian Federation).
The tax base
To calculate UTII, first determine the tax base for the reporting quarter. This can be done using the formula:
| Tax base for UTII for the quarter | = | Basic profitability per month (RUB 1,800) | × | The area of the trading floor used for purchase and sale transactions in the first month of the quarter | + | The area of the trading floor used for purchase and sale transactions in the second month of the quarter | + | The area of the trading floor used for purchase and sale transactions in the third month of the quarter | × | × | K2 |
The value of the physical indicator - the area of the sales floor - is included in the calculation of UTII rounded to whole units (clause 11 of Article 346.29 of the Tax Code of the Russian Federation). When rounding the size of a physical indicator, discard values less than 0.5 units, and round 0.5 units or more to a whole unit (letter of the Ministry of Finance of Russia dated June 16, 2009 No. 03-11-11/111).
Change in physical indicator
If during the quarter the area of the sales floor increased or decreased, take into account the changes from the beginning of the month in which they occurred (clause 9 of Article 346.29 of the Tax Code of the Russian Federation).
Calculation of UTII
Having determined the size of the tax base, calculate the amount of UTII for the reporting quarter. To do this, use the formula:
This follows from subparagraph 10 of paragraph 5.2 of the Procedure, approved by order of the Ministry of Finance of Russia dated January 23, 2012 No. ММВ-7-3/13.
An example of calculating UTII from retail trade through facilities with trading floors. The sales area changed during the tax period
Alpha LLC trades retail through its own store and applies UTII.
In 2016, the value of the deflator coefficient K1 is 1.798. The value of the correction factor K2 by local authorities is set at 0.7. The tax rate is 15 percent.
The sales area of the organization's store (according to technical documentation) is 80 square meters. m. On February 10, a premises of 10 square meters was added to the trading floor. m (corresponding changes have been made to the technical documentation).
Thus, the sales floor area used by Alfa in retail trading was:
- in January - 80 sq. m;
- in February - 90 sq. m;
- in March - 90 sq. m.
Imputed income for calculating UTII for the first quarter was:
1800 rub./sq. m × (80 sq. m + 90 sq. m + 90 sq. m) × 0.7 × 1.798 = 589,025 rub.
UTII for the first quarter is equal to:
RUB 589,025 × 15% = 88,354 rub.