Avoid paying income tax. It became easier to avoid a penalty for late payment of personal income tax

is a fair question asked by many business owners. Personal income tax is a tax calculated as a percentage of total income individuals. All owners of companies that are employers must pay personal income tax in a timely manner. But, unfortunately, this does not always work out. In this article we will tell you how not to be in the "penal battalion".

What the law says

Interaction tax service takes place in accordance with the rules established by the legislation of the Russian Federation. And this means that fines must also take place in accordance with official regulations. If you have been fined unreasonably, you are entitled to a reduction in the personal income tax penalty. To reduce or completely challenge the fine, you need to know some provisions of the law. With this knowledge, you can avoid charging a fine in advance or challenge it if it is unfair and unreasonable.

The basic rules, in accordance with which the penalty is calculated, are spelled out in Art. 70 of the Tax Code of the Russian Federation. Here you will find information regarding the deadlines for notifying the taxpayer of a fine. If the tax inspectorate does not comply with the requirements, it can be concluded that the requirements of the law are violated. In the future, this fact may play into the hands of the taxpayer, just like other extenuating circumstances, the presence of which allows you to send a petition for a personal income tax fine to reduce or cancel it.

Extenuating circumstances

To avoid a penalty for late payment of tax or other personal income tax violations, you need to know about extenuating circumstances that can help you. But keep in mind that the attitude of different tax authorities and court representatives to such “indulgences” is not the same. If such circumstances are discovered by the tax inspectorate, it is very difficult to get them to cancel the decision. In practice, tax authorities reduce fines themselves in 5% of cases or less, while the courts, on the contrary, consider the circumstances of the case more carefully and cut fines several times and more frequently. However, going to court is not a panacea either.

Circumstances are classical (traditional) and atypical.

Classic extenuating circumstances

These are the circumstances that occur most frequently. These include the following:

• Previously, the entrepreneur was not involved in tax liability. Here is an example of a precedent for the court to cancel a tax decision for this reason. However, precedent Russian law is not, therefore, the decision on this basis lies with the court.
• Absence of malicious intent or impossibility to prove it.
• Repentance for what they have done, recognition of their own guilt, understanding of the seriousness of the situation.
• The good faith of the owner of the company in relation to the payment of other tax contributions (this circumstance may act as a mitigating circumstance, but will not be a guarantee that the punishment will be mitigated or canceled, since this good faith should be the norm).
• Company recognition.
• bad financial condition entrepreneur, the presence of other debts, the threat of bankruptcy.
• Absence in the company of a full-time employee responsible for accounting work. The circumstance mitigates guilt not if the company simply did not take care of its presence, but for a more compelling reason. For example, an employee is on vacation, on sick leave, or quit, and a replacement has not yet been found in his place. This circumstance also cannot be considered a full justification, but the court can reduce the amount of the fine.
• status of a public institution.
• The status of a city-forming enterprise.
• Conducting social or charitable activities, supplying food and other types of wealth government agencies(boarding schools, orphanages, etc.).

Unusual extenuating circumstances

This list is rather arbitrary, since non-standard circumstances are therefore non-standard. This information was gathered from actual court cases that resulted in reduced sentences.

• If the taxpayer is charged a fine that is too large relative to the amount of non-payment, this may serve as a mitigating circumstance, since it is disproportionate to the severity of the violation that the taxpayer is charged with. But it makes sense to talk about disproportion if the tax has been paid by the time of the trial.
• It is important to pay attention to the delay time. If the deadline for skipping tax payments is insignificant (from 1 to 10 days), you can count on loyalty.
• If the taxpayer independently found and corrected errors, this may serve as a mitigating circumstance. In this situation, the overall responsibility and diligence of the taxpayer is usually assessed. If for the rest tax contributions he has an overpayment, this can serve as a mitigating circumstance.
• If the taxpayer has not submitted documents to the inspection upon request, experts pay attention to additional factors. For example, was the volume of requested documents excessive? The reasons for the loss of documents are also clarified: if they were lost as a result of a technical failure, fire or other force majeure, this will be qualified as a mitigating circumstance.

In addition, there are individual reasons, among which the taxpayer has a disability, a serious illness or is in old age.

Petition for cancellation or reduction of a fine

The tax inspectorate must consider each situation in detail and identify extenuating circumstances on its own. But it is not necessary to hope for it. In practice, this rarely happens. It is best to find all the facts that can play into your hands and make a formal petition.

The petition must indicate that it is sent to take into account extenuating circumstances, and list them. If the application is rejected or ignored, you must take a second step and send a request to the Federal Tax Service. In the event that the highest tax authority does not respond to your request or refuses to consider it, you must go to court. Going to court does not have to be the third step. You can apply immediately, bypassing the appeal to the inspection.

In 2019, the procedure for submitting Form 6-NDFL for employers was introduced. It allows you to control the timeliness of tax payments. Indeed, in accordance with Article 123 of the Tax Code of the Russian Federation, penalties are provided for non-payment of personal income tax in 2019. The amount will be 20% of the amount of delay and additional penalties. This does not take into account the number of days during which the payment was overdue.

There are no extenuating circumstances in determining the amount of the fine. Therefore, even if the tax authorities did not send a receipt on time, sanctions will be applied.

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According to experts, the measure is considered legal. But sometimes the injustice of decisions is noted. After all, citizens may suffer due to the shortcomings of the tax inspectorate.

To avoid such situations, it is important to know the deadline for paying taxes. If you deposit funds before a certain date, you will not have to pay fines.

Provisions by law

Personal income tax must be paid within the time limits specified in Article 226 of the Tax Code of the Russian Federation. If the date is missed, then the Federal Tax Service has the right to fine the violator. The amount of sanctions will be 20% of the payment amount. This rule applies to all taxpayers.

More severe penalties apply to tax agents. They can be prosecuted under the law even under criminal law.

The deadlines for payment for employers are prescribed in article 226 of the Tax Code of the Russian Federation. At the same time, they do not need to focus on the norms of Articles 227 and 228.

Collection of a fine can be carried out by the inspectorate in two cases. In the first, the penalty is applied in the absence of withholding tax from the funds that are transferred to the employee. Sanctions are also applied to organizations that did not transfer fees to the state budget in a timely manner.

Such norms are reflected in Article 123 of the Tax Code of the Russian Federation. In addition, the payment rules are prescribed in the Letter of the Ministry of Finance of the Russian Federation No. 03-02-07 / 1/8500, which was published on 03/19/2013.

Despite the accrued fine, the tax agent must still deduct personal income tax. On the basis of paragraph 1 of Article 46 and paragraph 1 of Article 47 of the Tax Code of the Russian Federation, collection can be carried out by tax authorities in a compulsory manner. In case of violation of the terms of payment, the organization will be required to pay penalties. The amount is determined in accordance with the duration of the delay.

Central issues

Penalties for non-payment of personal income tax in 2019 are provided for many categories of taxpayers. It is important to know how much the violator of the law will have to pay and what changes have been introduced into the legislation since the beginning of the year.

Who should pay

Personal income tax is withheld from each employee by the employer. It is 13%, which are set at the state level.

If a citizen is a resident of the country, then when calculating it is important to know the total amount of income in the territory of the state and beyond its borders. For non-residents the tax base determined only on the basis of Russian income.

Taxes for the labor activity of employees are deducted by employers. The status of the institution and its organizational form are not taken into account. Foreign citizens pay patent tax in advance in the prescribed value.

If specialists carry out private practice, their income is obtained from self-employment. The procedure for withholding tax is prescribed in articles 226 and 227 of the Tax Code of the Russian Federation.

When does it end taxable period, organizations should send to tax office for each employee. The document reflects the amount of total income and tax withheld. Reporting is due by April 1 of the year following the reporting year.

The onset of responsibility

Sometimes employers do not contribute tax fees, but the inspection does not reveal violations. It is important to know how long it takes to hold him accountable.

The term may vary depending on the method of obtaining income:

• in cash;
• natural goods;
• in the form of material benefit;
• non-cash way.

Some employers, in order to avoid paying tax, use an envelope payroll system. In this case, the amount of taxes and insurance contributions is reduced.

If tax inspectors reveal violations, the employer will have to pay 40% of the debt. But offenders are often not afraid of this. Therefore, the issue of not only increasing penalties, but also other measures of struggle is being decided by law.

After the offense is committed, the employer will need to pay a fine. It is calculated depending on certain circumstances. It is important to know the situations when additional funds cannot be withheld, as well as the powers of the tax authorities in calculating such payments.

When paying a penalty, it is important to write down the details correctly. For each taxpayer, a special one is provided.

Last changes

Penalties in 2019 remained unchanged, but adjustments were made to the procedure for withholding personal income tax:

• tax from vacation pay calculated together with the direct calculation of benefits.
• A certificate in the form 2-NDFL is submitted with full tax withholding until April 3, 2019, and with incomplete tax - until March.
• Previously, the transfer of personal income tax had to be carried out on the day of the issuance of wages. Now the employer is allowed to do it the next day.
• Social payments can be transferred at the place of employment. Previously, taxpayers had to visit the territorial office of the Federal Tax Service directly.

It is worth remembering that allocate income to which taxation does not apply.

These include:

• state benefits related to motherhood, childhood, unemployment;
• scholarships
• pension payments;
• one-time transfers for the birth of a child or for burial;
• inheritance or donation income;
• interest on deposits;
• gifts and prizes received, the value of which does not exceed four thousand rubles;
• certificate for receiving maternity capital.

What is the amount of the fine for non-payment of personal income tax in 2019

There are severe penalties for non-payment of income tax.

It can occur in accordance with Article 123 of the Tax Code of the Russian Federation when:

• no transfer of funds to the budget;
• partial payment;
• failure to pay taxes.

The amount of the fine will be 20 percent of the total debt.

There are cases in the event of which the employer may not be held liable. They are reflected in Article 109 of the Tax Code of the Russian Federation.

These include:

• lack of corpus delicti;
• availability of evidence that the tax agent or payer is not guilty;
• the offender is under 16 years of age;
• term limitation period expired.

Penalty can be applied within three years from the date of violation. This rule is spelled out in article 113 of the Tax Code of the Russian Federation.

If the employer has not submitted reports or paid tax, the Federal Tax Service may initiate an on-site audit.

After violations are identified, it can be:

• a penalty has been charged;
• a penalty is provided;
• The case has been referred to the prosecutor's office.

In the latter case, the likelihood of bringing the employer to criminal liability is high. Then the fine will increase to 500 thousand rubles. In case of special gravity of the act, deprivation of liberty for a term of up to six years is provided.

In some cases, employers want to reduce taxes or avoid penalties. To do this, they need to study practical advice. It is also important to find out in advance the terms during which the debt is repaid.

How to avoid or reduce

In some situations, even when an unlawful act is committed, there is no liability.

This is possible with:

• making personal income tax in advance, before receiving income;
• transfer of tax to the budget before the payment of wages to employees;
• transfer of funds to the NSF of the head office instead of the inspectorate in charge of the branch;
• non-payment of tax, since the acquisition was made from extra-budgetary funds.

In such situations, the employer can defend his rights and avoid administrative liability.

There are situations when it is possible to legally reduce the amount of penalties.

When determining the penalty, it is important to consider extenuating circumstances:

• technical errors of the program;
• change in the leadership of the organization;
• admission of guilt by the employer;
• no arrears on other charges;
• social sphere of activity of the institution.

If at least one of the signs is present, then the fine can be halved. If this clause is ignored by the tax authorities, the tax agent may apply to the judicial authorities.

Correct determination of the date

To exclude a fine, you need to know the date when taxes must be transferred to the budget.

For each type of income, special terms are provided:

Without withholding personal income tax a fine is charged, but the arrears cannot be recovered.

Sanctions for agents, individuals and payers

Withholding and transfer to the budget of 13% of the tax is provided by employers, as well as private practitioners and foreign firms.

If the obligations are not met, then a fine of 20% of the debt is applied to them. The exception is income in kind.

Ordinary individuals must also make deductions when they receive income from the sale of property, receiving a prize or winning the lottery. If they ignore the requirements of the law, then a fine is provided for them in the same amount.

For particularly large violations, the amount increases to 40%. Among such situations, there is a decrease in the amount of income in an illegal way, as well as the use of illegal deductions.

Individual entrepreneurs make tax deductions on certain types of income. If the tax base is reduced, an individual entrepreneur may be subject to a fine of 20% of the debt amount. tax crimes punishable by 40% of the fine of the amount of the debt.

Payment terms

The tax payment is made in statutory terms. Despite the payment of wages in the form of an advance and a basic payment, deductions are made once at the end of the month.

Terms vary depending on the payment method:

Individual entrepreneurs and individuals pay personal income tax at the end of the reporting period. Funds must be received no later than July 15 of the following year.

" № 6/2013

A company can avoid the need to withhold personal income tax when paying income to an individual if it instructs another organization to do this for itself in accordance with Article 313 of the Civil Code of the Russian Federation. This will make it possible to transfer the moment of payment of personal income tax to the next year. At the same time, a friendly organization that paid income for the company is not a tax agent in relation to an individual. This advantageous conclusion for companies was reached by the judges in the decision of the Federal arbitration court West Siberian District dated November 21, 2012 No. A27-2237 / 2012.

In accordance with paragraph 1 of Article 313 of the Civil Code of the Russian Federation, the fulfillment of an obligation may be assigned by the debtor to a third party. Which does not constitute a case of change of person in obligation. Since it is not a transfer of debt (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 29, 2001 No. 65). Consequently, the source of income for an individual is still not a friendly counterparty who has assumed the obligation to pay the debt, but the original creditor. who must either keep next payments, or inform the inspection about the impossibility of such retention.

Idea shared Elizabeth Lyndina,

Assessing the safety of an idea

official

Larisa Semina, Adviser of the State Civil Service of the Russian Federation, 2nd class:

“If at the end of the year the company has debts to the budget for withheld but not transferred tax, then this will definitely cause claims. In addition, in an agreement with a third party, the company must instruct him to pay the individual income already minus personal income tax.

expert

Igor Bogomolov, consultant on taxes and fees:

“A company that has instructed a third party to transfer money to an individual must know that it is obliged to withhold and pay tax to the budget. In this case, such an order to a third-party organization must be given for an amount reduced by the amount of the calculated personal income tax.

Victoria Tsirulnikova, Chief Accountant NISA LLC:

practitioner

“Given that some employers do not want to pay taxes, in this way they simply shift the obligation to transfer personal income tax to the recipients of income themselves. Consequently, individuals have an additional obligation to pay tax.

Delayed payment of personal income tax (PIT)? Penalty, penalty. Can this be avoided and what needs to be done.

Personal income tax is a very tricky tax. Only for this tax in case of late payment, a fine of 20% of the unpaid tax amount is threatened. Even if you delayed payment by only one day, you cannot avoid a fine.

Our company receives a lot of inquiries about the legality of charging a fine for personal income tax, with minimum delay period payment of tax, which is only 1-2 days. In addition, there are situations where the penalty for previous periods, for example, for 2016, 2017, was received only now, while the act itself tax audit dated from the previous period.

At the beginning of 2018, the Resolution of the Constitutional Court of the Russian Federation of February 6, 2018 No. 6-P was issued, according to which, for small delays in the payment of personal income tax no penalty will be charged. The same decision states that:

1. if the company has paid personal income tax, as well as interest on it late, but before the discovery of the fact of late transfers of personal income tax tax authority;
2. late payment of personal income tax and penalties were unintentional;
3. late payment of personal income tax was the result of an omission (technical or other error);
4. if the reporting was not misrepresented,

then the taxpayer is exempt from tax liability.

If you find late payment of personal income tax before submitting the calculation in the form 6-personal income tax, we recommend urgently pay the amount of unpaid tax, as well as the amount of interest on this tax.

If you find an error in the Calculation of 6-personal income tax, then we recommend first pay personal income tax and penalties, and then submit an updated calculation according to the form 6-NDFL.

If you have already received a tax audit act, in which you are held liable for a small tax delay in the form of a fine, then we recommend make written objections for a tax audit.

An example of a written objection is given below:

In IFTS No. 22 in Moscow

From OOO "Kolobok"

105540, Moscow, st. Beregovaya, 14,

floor 2, room. thirteen

TIN 7722324456 KPP 772201001

PSRN 12377346564478

WRITTEN OBJECTIONS

according to the act of tax audit

Inspectorate of the Federal Tax Service No. 22 for Moscow in relation to the company Kolobok Limited Liability Company conducted a tax audit, as a result of which a tax audit report N 15-11 / 5312 of 07/26/2018 was drawn up. The report was received via electronic communication channels October 12, 2018, which confirms the notice of receipt. Previously, Kolobok LLC did not receive a tax audit report and at the same time was not notified of the time for reviewing the audit materials. In this case, our company was completely deprived of the opportunity to give its objections and explanations, which is unacceptable. The decision based on the results of such an audit is subject to cancellation. This follows from the provisions of paragraph 2 of paragraph 14 of Article 101 tax code RF.

In addition, the taxpayer asks to take into account extenuating circumstances in accordance with subparagraph 3 of paragraph 1 of Article 112 of the Tax Code of the Russian Federation. The delay in paying the amount of personal income tax was only 1 day. The deadline for paying personal income tax is 02/02/2018, the company "Kolobok" LLC paid personal income tax on 02/03/2018. One day delay in payment was due to reinstallation software which prevented payment from being made on time.

The Decree of the Constitutional Court of the Russian Federation dated February 6, 2018 No. 6-P states that “a tax agent held liable for tax liability for failure to fulfill the obligation to withhold and (or) transfer taxes, in any case, has the right to count on the possibility of establishing significant circumstances in his case that determine the individualization of punishment, in particular, taking into account mitigating circumstances, for example, if the period of untimely transfer of tax is insignificant. Given the above, in accordance with Articles 100, 101 of the Tax Code of the Russian Federation, we ask, based on the results of consideration of tax audit materials:

1) not to charge a fine for personal income tax in the amount of 25,000 rubles for the 1st quarter of 2018.

General Director of LLC "Kolobok"

_________________ / Vatrushkin D. A./

Found the fact of non-payment - pay the tax and penalties, if necessary, submit an updated calculation. We have received a tax audit act - competently draw up written objections with reference to the Resolution of the Constitutional Court.

Controllers argue as follows. Accountable amounts for which the employee did not report are his debt to the company. The organization has the right to withhold the debt from the debtor's salary no later than one month from the date when the deadline for submitting the advance report expired (Article 137 of the Labor Code of the Russian Federation). If the employer does not withhold money, the tax authorities have the right to recognize this amount as a payment in favor of the employee within the framework of labor relations and impose insurance premiums (subparagraph 1, paragraph 1, article 420 of the Tax Code of the Russian Federation, paragraph 5 of the appendix to the letter of the FSS of Russia dated 14.04.15 No. 02-09-11/06–5250). In addition to additional assessment of contributions, the tax authorities will also fine the company for non-payment and for distorting personalized accounting information. If the employee later reports for the accountable amounts, the organization has the right to recalculate the contributions. However, all this can be avoided if you follow the rules.

The company's attempts to return the money will prove the lack of economic benefits

If the tax authorities make claims, it is advisable for the company to try to return the money already during the audit. For example, if the amount of accountable funds is significant, enter into a written agreement with the employee that he returns the money in installments over a long period of time. The fact of such an agreement and the first returns will prove the absence of income. The fact that an employee has violated the deadlines for submitting an advance report is not a reason to charge additional personal income tax.

In one of the cases, the director of the company did not report on accountable funds for more than a year. During this time, the debt has grown to 88 million rubles. and offered the company to keep with this personal income tax amounts, imposed a fine and added penalties. The organization managed to win the dispute - the accountant and the company reissued part of the amount as a loan, the director returned part to the company’s cash desk, and the company returned part to judicial order. The company decided to deduct the rest from the salary in the amount of 50 percent.

The inspectors tried to challenge such reissuances and returns, as they occurred after the inspection. But the court sided with the company. By default, imprest amounts are issued with a report or return condition. Inspections must prove otherwise. They did not provide evidence that the worker received economic benefit. All their arguments in favor of additional charges were based only on the violation of the deadline for submitting the advance report. The society tried to repay the debt, even after a tax audit. Consequently, in fact, the employee did not receive income, therefore, fines and penalties are unlawful (decree of the AC Central District No. Ф10-2385/2016 dated 19.07.16).

The Arbitration Court of the Central District agreed with this decision in its resolution of November 2, 2016 No. F10-3997 / 2016. The director will present documents regarding the funds issued during the trial. He returned the other part to the cash register. The court overturned the award decision.

It is better to give out money for a long time. It's safer

The Company has the right to establish a separate period for each accountable amount. You need to fix this in an order or memo. You can prescribe single term report for everyone or fix different deadlines depending on the level of the position or on the purpose of the money. For example, an accountant has three months to buy rare parts and account for these expenses. The term of the report on the purchase of household needs is three working days.

However, the above orders need to be created in advance. In one of the cases, the society set a period of 24 months for reporting on money. But she lost the trial, because she presented an order for such a long term already during the trial. During the inspection of the company, the tax authorities did not see him. The judges considered the company's actions to be evasion of additional charges, therefore they did not take the order into account (Decree of the Third AAC dated September 28, 2015 No. 03AP-4126/2015).

If you miss the statute of limitations, you will have to pay personal income tax

If more than three years have passed from the date when the employee was supposed to report on accountable amounts or return them, . The company will not be able to return the overdue debt even through the court. In such cases, the judges recognize that the employee received an economic benefit that is subject to personal income tax (Resolutions of the North-Western Arbitration Court of July 14, 2016 No. F07-5021 / 2016, Central of November 2, 2016 No. F10-3997 / 2016 districts). If the limitation period has not expired, the accountable money is the debt of the employee (Resolution of the Fourth AAC dated 03/25/15 No. 04AP-726/2015).

To protect themselves, organizations sign agreements with employees to repay the debt in installments, acts, reconciliation acts, or receive letters from them recognizing the debt. In such ways, companies launch the limitation period in a new circle (Article 203 of the Civil Code of the Russian Federation, clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 29, 2015 No. 43). But the act of reconciliation or other documents must be signed before the expiration of the limitation period, otherwise they will not save you from the claims of the tax authorities (decree of the AC of the North-Western District of July 14, 2016 No. Ф07-5021 / 2016).

It is necessary to indicate the basis for the issuance of accountable funds

The money issued against the report cannot be considered a labor payment to the employee, the decision of the Volga District Arbitration Court of December 9, 2015 No. F06-3232 / 2015 was recognized. The company issues funds for the employee to purchase goods or work for her needs. Money and goods do not become the property of the accountable. The absence of supporting documents does not prove that the employee has received an economic benefit. The same conclusion was reached by the Arbitration Court of the West Siberian District in its decision No. A27-16522/2013 dated September 30, 2014.

A similar conclusion is contained in the resolution of the Arbitration Court of the Volga District dated December 25, 2015 No. F06-4463 / 2015 (upheld by the decision of the RF Armed Forces dated April 21, 2016 No. 306-KG16-3205).

However, if an organization systematically issues accountable funds and the director and at the same time do not indicate their appointment, the inspectors will file a claim (Decree of the Central Administrative District of 02.11.16 No. F10-3997 / 2016). Which side the court takes will depend on the circumstances of the case.

To avoid litigation, it is worth indicating the grounds for issuing money in memos or orders: for the purchase of goods, for household needs, etc. But the purpose of accountable funds must correspond to the position of the employee. For example, a director can be given money for entertainment expenses.

In one case, a company gave money to an employee. As the basis for the issuance of funds, she indicated - the issuance of an interest-free loan to another company. TO advance report the employee has attached the borrower's credit slips. The inspectors suspected fraud and included the accountable amounts in the employee's income. The court withdrew additional charges (decree of the Arbitration Court of the North-Western District of 01.27.15 No. A42-3672 / 2012).

Supporting documents must be attached to the costs

If the employee still has a debt, then the organization’s main counterargument is the ability to recover it. But if the company has already accepted an unconfirmed expense report from the employee and written off his debt, she should operate with the reality of costs. For example, the results of work, services or purchased goods. If the company paid the debt to the counterparty through an accountant, you need to present reconciliation acts with this counterparty.

In one of the court proceedings, the organization took into account goods without documents. Employees attached to the advance reports acts of the working commission, certificates-reports, as well as orders of the director of the company for each of the accountable persons. The company considered that individuals reported for the money. But the tax authorities did not agree with this, they included these amounts in the income of employees and taxed it with contributions. The court sided with the company. He pointed out that the tax authorities did not provide evidence that the society received materials, goods, works and services free of charge. Consequently, the company paid for them, and the accountable money cannot be considered the income of individuals (decree of the AC Ural District No. Ф09-7999/15 dated 11.11.15). However, so far this is only one case in favor of the company, so it is not a fact that the tax authorities will also lose next time.

Errors in advance reports threaten additional charges

In one of the cases, the court recognized the correctness of the tax authorities, since in primary documents, which the company attached to the expense report, there was no position, last name, first name and patronymic of the person who signed them. The sales receipts did not contain the name of the goods, but only the general phrases: “household expenses” or “stationery”. There were also no dates for the preparation of documents, the columns “quantity”, “price of goods” were not filled in, there was no signature of the seller. In this case, the accountable amounts can be considered the income of the employee. So considered the Supreme Court of the Russian Federation in the ruling of 09.03.16 No. 302-KG16-450. The same conclusion was reached by the Arbitration Court of the North Caucasus District in its decision No. Ф08-2743/2016 dated May 23, 2016.

In another case, the director of the company received a report of 4.7 million rubles, and confirmed the expenses with contracts with individuals. They were interrogated, it turned out that individuals never sold materials to the company and did not receive any money from it, except for their salary. In addition, the goods that were specified in the sales contracts were neither written off nor the rest of the materials. The court took the side of the tax authorities and supported the additional charges (Decree of the FAS of the East Siberian District dated 01.24.14 No. A19-2278 / 2013).

Another example is that employees applied checks of organizations that did not have registered cash desks to the expense report. As a result, the controllers included accountable money in the income of individuals. The court upheld them. ( Decree of the AC of the North Caucasus District dated 07.07.15 No. Ф08-3967 / 2015).

The regularity of payments will prove their salary nature

If the employees have not yet reported on the previous amounts, the procedure for maintaining the cash register of operations prohibits issuing new amounts to them under the report. But many companies do not pay attention to this ban. In one of the cases individual entrepreneur monthly transferred money to the cards of his employees for several years. In the purpose of the payment, he indicated "for economic needs." However, the employees did not report, did not return the balance, and the individual entrepreneur did not try to return his money. When the tax authorities checked the IP, the limitation period for payments for 2010 and the first half of 2011 had already passed. As a result, the court sided with the inspectors and recognized all such amounts as income of individuals, regardless of whether the statute of limitations passed on them or not (decree of the Arbitration Court of the North-Western District of April 21, 2016 No. F07-957 / 2016).

If the imprest payments are made regularly, it will be like a salary. Especially if these amounts correspond to the level of wages. Sometimes an organization pays an employee a low wages, and gives out the difference in the form of accountable funds. In this case, fiscals can draw a conclusion about the salary nature of payments.