How to reduce retail space for tax purposes. Calculation of UTII for retail trade

05.07.2016

The “crisis period” in the country’s economy forces businessmen to think about legal tax cuts. If an entrepreneur is engaged in trading activities and applies UTII, then the amount of the “single” tax directly depends on the trading area. The smaller the area, the lower the tax. Is it possible to reduce UTII if temporary structures are used in the sales area?

Basis of dispute

The inspectorate conducted an on-site tax audit of the entrepreneur. Based on the results of such an audit, a decision was made to bring the businesswoman to tax liability and additionally assess her taxes, penalties and fines in a total amount of more than 11 million rubles. The basis for the additional assessment of personal income tax, VAT, and the corresponding amounts of penalties and fines was the tax authority’s conclusion that the taxpayer had unlawfully used the special UTII regime during the audited period. Businesswoman drove commercial activities, namely, retail trade on an area exceeding 150 square meters. m, but at the same time used UTII as a taxation system. Having disagreed with the inspection's decision, the businesswoman challenged it in court.

Taxpayer position

The entrepreneur rented two non-residential premises: one with an area of ​​104 sq. m. m, other – 163 sq. m. Both premises were part of a large trading floor with a total area of ​​730.5 sq. m. m.

The entrepreneur used the smaller room of the two as shopping room, and the larger room is organized as a warehouse. At the same time, the sales area was fenced off from the warehouse with non-permanent partitions and shelving. In support of this, the businesswoman presented annexes to the lease agreements, which graphically display the area being rented out and indicate the temporary partitions that separate the sales area from the warehouse space.

Thus, in the opinion of the entrepreneur, she legally applied the special UTII regime based on the area of ​​the trading floor (104 sq. m), and additional tax charges should be declared invalid.

Position of the tax authority

The inspection claims that the individual entrepreneur conducted trading activities on an area exceeding 150 square meters. m, and in support of this he gives the following arguments.

1. During the inspection, the Federal Tax Service established the interdependence of the entrepreneur with the landlord, whose head is the businesswoman’s husband, which means that there is a fact of concealment of the real area used for trade.
2. Maintaining retail on an area exceeding 150 sq. m, is confirmed by the testimony of witnesses, namely: sales consultants, cashiers, accountants, storekeepers and loaders - both dismissed and those working for the taxpayer.
3. According to the technical passport with an explanation of the floor plan, the entrepreneur rented premises at number 22, which means “trading floor”. The total area of ​​the “trading floor,” according to the explication, is 730.5 square meters. m. At the same time, there is no main wall dividing the territory of the hall. The technical passport also does not contain information about the location of sales departments on the floor; in the explication, the area of ​​the sales floor is determined in relation to the entire floor of the building without highlighting the areas of stores or departments.

These arguments confirm the entrepreneur’s unlawful use of the taxation system in the form of a single tax on imputed income in the period under review, since trading activity was carried out on an area exceeding 150 square meters. m. Thus, the inspection justifiably assessed additional personal income tax, VAT, penalties and a fine to the businesswoman.

The court decided

Resolution of the Arbitration Court of the West Siberian District
dated April 22, 2016 No. F04-1037/2016 in case No. A70-6147/2015

Taxation system in the form of UTII for individual species activities applies to retail trade carried out through shops and pavilions with a sales area of ​​no more than 150 square meters for each trade facility (subclause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation).

When calculating the single tax on imputed income, physical indicators are used that characterize the type entrepreneurial activity and basic profitability per month (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). A physical indicator for retail trade carried out through stationary facilities trading network having trading floors is the area of ​​the trading floor in square meters.

The area of ​​a sales floor is a part of a store, pavilion (open area) occupied by equipment intended for displaying, demonstrating goods, making cash payments and servicing customers, the area of ​​cash registers and cash booths, the area of ​​work places for service personnel, as well as the area of ​​passages for buyers (Article 346.27 of the Tax Code of the Russian Federation).

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.

According to the case materials, the landlord provided the entrepreneur with temporary possession and use for a fee. non-residential premises to accommodate a sales area of ​​104 sq. m.

The courts found that the individual entrepreneur used another premises for storing goods; To this end, she entered into another lease agreement for part of the premises with a total area of ​​163 sq. m. m, the boundaries of which are indicated in the premises plan in the annex to the lease agreement.

At the same time, the part of the premises used for retail trade was fenced off by non-permanent partitions and shelving from the part of the premises used for storing goods.

The floor plan graphically indicates the rented area, and also displays temporary partitions, which allows you to individualize the rented area of ​​the sales area.

The court, declaring the inspectorate’s decision illegal, drew attention to several points:

• the presence of temporary partitions (made of plasterboard) and shelving does not indicate that both rooms were not separated from each other;
• it is impossible to draw a conclusion about the use of the entire rented area based on the floor plan, since it contains information regarding the entire building without highlighting the areas of shops or departments;
• in fact, a trading floor with a total area of ​​730.5 square meters. m consisted of several premises, which were structurally separate sections, separated from each other by collapsible (non-permanent) partitions, which were installed by the owner of the premises;
• explanations for the premises cannot serve as a basis for additional tax assessment, since these documents do not indicate that the taxpayer had any rights to use retail space not specified in the lease agreements;
• in the explication of the technical passport the rented premises are not indicated, since they are separated by temporary partitions;
• the fact that temporary partitions were installed by the tenant is confirmed by witness testimony.

The judges note that the inspections, measurements of retail space and photography presented in the case materials by the tax authority, which recorded the fact of the use of the entire trading floor on both floors shopping center, cannot be evidence since they were received in 2014. The audited period in which the inspectorate made a decision on additional taxes is limited to 2010–2012.

The arbitrators recognized the decision of the tax authority to assess additional taxes, penalties and fines under the general taxation system as unlawful. The judges concluded that if a trading floor consists of several rooms that are separated from each other by collapsible temporary partitions, and part of the fenced-off room is not used for trading, then UTII is calculated based on the size of the used area of ​​the hall.

The tax system in the form of UTII (Chapter 26.3 of the Tax Code of the Russian Federation), although no longer mandatory, still remains a popular tax regime in small businesses. Currently, imputation is valid throughout the country, except Moscow. The schemes below allow you to effectively optimize single tax in the context of the most common types of activities.

How not to optimize UTII and how to reduce risks when implementing schemes

The simplest and most common way to reduce the imputed tax is to simply underestimate the physical indicators of basic profitability. For example, a company enters into a lease agreement that specifies a sales area that is obviously less than the real one. This allows you to minimize UTII by understating the footage. In this case, the lease agreement is concluded with a friendly or “accommodating” lessor. Which provides the opportunity for such manipulation in the contract.

Unfortunately, this scheme can only be called “black”. Because she directly violates tax law. After all, part of the object’s area seems to simply not exist. In this situation, the company only hopes that it will not be checked by inspectors or that it will be possible to come to an agreement with them. Therefore, this option for optimizing UTII cannot be recommended.

Moreover, in practice, companies have developed many completely legal schemes that allow for effective optimization of the imputed tax. Nevertheless, in all the described schemes there remain risks arising from the classification of business splitting as a way of obtaining unjustified tax benefits.

Let us remind you that if the judges find that main goal company was to obtain tax savings in the absence of intention to implement real economic activity, then recognition of the validity of receiving a tax benefit may be denied. Let us note that the Presidium of the Supreme Arbitration Court of the Russian Federation considers the discrepancy between the organization’s documents and its actual business transactions to be a sign of receiving an unjustified tax benefit. That is, when for tax purposes transactions that are not determined by business purposes are taken into account (clause 9 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53).

Another principle of tax security when optimizing UTII is the absence of affiliation of participants in transactions, even indirect. In addition, for the safe use of crushing circuits retail business it is advisable to comply following conditions their applications:

• separate sales areas should be separated by partitions;
• lack of a single cash center;
• absence common brand, connecting tenants shopping complex into a single whole, or it must be legalized through licensing agreements or franchising;
• selection of different tax inspectorates by participants in the scheme, and, if possible, registration of group companies in different regions of the country.

“Correct” underestimation of area legally reduces UTII in retail and catering

What are the savings? Allows you to reduce the amount of UTII by reducing such basic profitability indicators as retail space or the area of ​​the service hall in public catering.

How the scheme works. Unlike the option described above, the excess space does not “hang in the air”, but is officially used by the same company, but for other activities. For example, part of the sales floor is rented by the owner under a separate lease agreement for use as a warehouse, or even better, as an exhibition hall. However, there is no formal retail trade there.

However, if desired, scrupulous inspectors will be able to prove that customers have the opportunity to walk around this part of the premises, select goods there and almost take them directly from the shelves. And also get acquainted with prices. In this case, the chances of additional UTII charges are very high.

In this situation, it would be more correct to rent out the excess space to a friendly person for the same exhibition hall (see Diagram 1). In this case, the counterparty will apply a different tax regime, different from UTII. Because it will not have the right to it due to the large retail area. In particular, the counterparty may engage in wholesale trade y the same product and apply a common taxation system. Or, just like the imputator, sell it at retail, but in a simplified manner. At the same time, the UTII payer should reflect the maximum possible turnover, and his neighbor - the minimum.

Scheme 1. Reducing the sales area by renting out part of the premises

The same scheme can be applied to catering. For example, a restaurant on UTII rents a small area of ​​the service hall, and a nearby bar with a stage and a “smoking room” located on a simplified street rents the rest. Although it may be more profitable to do the opposite. It all depends on the size of the revenue and profitability of the restaurant and bar.

Manipulating the trade markup for entrepreneurs who do not maintain accounting allows them to reduce taxes

What are the savings? The retail trader who pays UTII receives the maximum trade markup, while the individual entrepreneur located in the same store who uses the general system or a simplified system receives the minimum markup. In this case, the imputed tax on the amount trade margin does not depend in any way, and the taxes of a friendly individual entrepreneur will be minimal.

How the scheme works. The scheme is an extreme version of the previous one. The store is divided into two unequal parts (see diagram 2). A smaller part of it is rented individual entrepreneur on UTII. At the same time, the area rented by him must obviously be less than 150 square meters. m (subclause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation). Or it may even be symbolic, like the amount of imputed tax.

Scheme 2. Artificially inflating or understating trade margins by retail entrepreneurs

Most of the retail space is rented by another entrepreneur using a common system or a simplified system with an “income minus expenses” object. At the same time, the maximum volume of purchases in total terms is carried out through this individual entrepreneur. However, a relatively smaller portion of the proceeds makes it through its cash register. Thus, an entrepreneur in the general regime has a small trade markup and pays minimum taxes on this amount - personal income tax and VAT or a simplified tax. In turn, the imputator purchases a minimum volume of goods. But a significant portion of the proceeds goes through his cash register. It turns out that he has a huge trading premium.

This scheme can be classified as "gray". After all, it is built on the absence of an individual entrepreneur’s obligation to keep accounting records (Article 2, subparagraph 1, paragraph 2, Article 6 of the law of December 6, 2011 No. 402-FZ). Consequently, tax officials will not have the actual opportunity to conduct an inventory of goods and catch entrepreneurs manipulating the size of the trading margin. Especially if the supplier of both traders is a friendly individual entrepreneur who also does not do accounting.

We also note that in a more conservative version of the scheme under consideration, no manipulations with the trade markup, that is, artificial inflations or understatements, will be required. In this case, a pre-selected product with a high profit margin is passed through the impostor. And through his neighbor, who uses a common system or a simplification - low-margin.

Using an impostor as a supplier of retail goods

What are the savings? A symbolic tax is paid under UTII instead of paying a simplified tax or taxes when using the general system*.

How the scheme works. The purchase of goods is carried out in person with the imputed activity of “retail trade” (see diagram 3). He, including formally, may have a small retail space for rent, up to 5 square meters. m or retail space. In addition, the imputed person may be engaged in delivery or peddling retail trade (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). In any case, the amount of imputed tax paid should be small. Next, the UTII subject sells the goods for cash to a simplified person with the object “income minus expenses,” masking wholesale under retail.

Scheme 3. Conducting wholesale trade under the guise of retail

In this case, the goods are sold at the highest possible price in the given situation. That is, close to the price of further final sale at “real” retail. So that the simplifiers are left with only a minimum markup, which almost leads them to pay a minimum tax in the amount of 1 percent of income (clause 6 of Article 346.18 of the Tax Code of the Russian Federation). But just almost - so as not to draw attention to the scheme. In practice, they often pay a single tax in a slightly larger amount, for example 1.1 percent of income. Expenses for the purchase of goods are documented by simplifiers with sales receipts.

The above-mentioned sale for cash is fundamental in the scheme. For the payment of UTII and the legal qualification of activities as retail trade, the form of payment, of course, does not matter. But retail trade is usually done for cash. In addition, retail sales for cash - the only way sell goods without identifying the buyer in any way. This means that when checking a “retail” seller, it will not be clear that its buyers are entirely companies and individual entrepreneurs. Consequently, controllers should have no doubt about the retail nature of its activities.

Cash cash To pay the supplier for UTII, simplified workers take from their cash retail proceeds. The procedure in force since January 1, 2012 cash transactions, approved by the Regulation of the Bank of Russia dated October 12, 2011 No. 373-P, this does not violate. You can also get money from a bank using a check or cash card. Entrepreneurs using the simplified tax system can also do this through debit bank cards.

The restriction established by the Central Bank of the Russian Federation on cash payments in the amount of 100 thousand rubles per transaction (clause 1 of the Bank of Russia Directive No. 1843-U dated June 20, 2007) should not be violated in this scheme. For this, the sum of each cash receipt The seller's imputation should not exceed exactly this amount. After all, in retail trade, one transaction is one cash receipt.

The tax scheme described above can be considered “gray” in the sense that it is based on sham transactions - the actual conduct of wholesale trade by the imputator under the guise of retail trade. However, the letter of the law is not violated here. The seller pays UTII because he enters into contracts retail purchase and sale(Article 346.27 of the Tax Code of the Russian Federation). To do this, it is enough to fulfill two conditions:

• the seller must be a “retail seller”, in particular, have samples of the goods, cash machine, sales area, carry out delivery of purchases there, arrange a retail outlet with a sign and a “consumer corner” (GOST R 51303-99, approved by Resolution of the State Standard of Russia dated 08/11/99 No. 242-st);
• the seller must transfer to the buyer goods intended for personal, family, home or other use not related to business activities (Clause 1 of Article 492 of the Civil Code of the Russian Federation).

Other uses may be, for example, the needs non-profit organizations or learning goals. In the scheme, the described condition is not violated. It's about only about the seller’s intention to sell the goods for certain purposes, and he had it. Technically, this intention can be indicated by placing a corresponding notice on the trading floor. For example: “Dear customers, the goods sold in our store are not intended for use in business activities.” It is noteworthy that there is no mention of the buyer’s intentions or actions in the definition given in Article 492 of the Civil Code of the Russian Federation.

In addition, the possibility of selling goods at retail to organizations and individual entrepreneurs is confirmed by the Plenum of the Supreme Arbitration Court of the Russian Federation (clause 5 of Resolution No. 18 dated October 22, 1997). Moreover, senior judges also agree that the retailer should not worry about the goals of customers (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07/05/11 No. 1066/11). The Presidium directly stated that the Tax Code of the Russian Federation does not establish an obligation for sellers to exercise control over the subsequent use by the buyer of the goods purchased by him.

Thus, the main thing for the UTII subject is to make every effort to designate its type of activity. Namely, retail trade in goods not intended for use in business activities.

Allocation of premises in the warehouse for settlements allows you to pay UTII from the sales location

What are the savings? Allows you to reduce the size of UTII, and in some cases retain the right to use it.

How the scheme works. In this scheme, warehouse real estate is used for retail trade. To do this, the company uses partitions to create a small room for payments in its warehouse. And pays UTII on it with trading place(clause 3 of article 346.29 of the Tax Code of the Russian Federation). Moreover, according to the lease agreement, this area will be intended specifically for retail trade. While the rest of the significant part of the rented area is for storing goods (see diagram 4). According to senior judges, in this case the company must pay tax only on the area of ​​​​the separated retail space (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 No. 417/11) . However, in order to exclude claims regarding the wording of the lease agreement regarding the intended use of the premises, the lessor must be an independent person.

Scheme 4. Division of warehouse space to reduce UTII

Manipulations with the number of personnel and the number of vehicles allow you to maintain the right to UTII

What are the savings? Allows you to reduce the amount of imputed tax by understating such a physical indicator as the number of employees. And in some cases, retain the right to UTII if the actual number of employees exceeds 100 people (subclause 1, clause 2.2, article 346.26 of the Tax Code of the Russian Federation).

How the scheme works. Some of the personnel of the company using UTII are transferred to outsourcing. To do this, the imputationist can fire some of his employees and register them with a friendly organization. And it’s best to hire them there right away. The outsourcer will provide the imputed services corresponding to his type of activity. For example, when providing household services, this will be a regular subcontract agreement.

For retail trade, a comprehensive contract for the provision of paid services for organizing the trading process can be concluded. The principle of freedom of contract allows the parties to enter into such a contract (Article 421 of the Civil Code of the Russian Federation). Its subject will include normal duties, performed by sellers, loaders, storekeepers, security guards and even cashiers. Sometimes in practice such an agreement is replaced by a more familiar agency agreement. After all, according to it, the agent can be entrusted with both legal actions, for example, accepting cash proceeds at the cash desk, and others, that is, virtually any actions (Article 1005 of the Civil Code of the Russian Federation).

An alternative option may be not one comprehensive contract for all functions at once, but several special ones. This could be, in particular, a storage agreement - for the functionality of storekeepers, an accounting service agreement, a subscriber service agreement computer equipment, an agreement for loading and unloading operations, for consulting buyers, an agency agreement for the purchase of goods. At the same time, the employees of the outsourcing company will not be included in the average number of employees of the imputing company (decrees of the Federal arbitration court Ural District dated 03.08.12 No. F09-7078/12, Seventeenth Arbitration Court of Appeal dated 07.02.12 No. 17AP-14304/2011-AK).

Similarly, in practice, another physical indicator, the number of vehicles, is decreasing. For example, transport company can rent no more than 20 cars (subclause 5, clause 2, article 346.26 of the Tax Code of the Russian Federation). The rest will be rented by its friendly “sub-carrier” - a simplified company or an individual entrepreneur using a patent taxation system (subclauses 10, 11, clause 2, article 346.43 of the Tax Code of the Russian Federation). This is the same as in the case of household services, will help transport organization maintain the right to UTII, as well as reduce the amount of the tax itself. At the same time, it is more profitable for the imputed revenue to be maximized. Including due to the fact that he will get the cars that bring the maximum income. Whereas the “sub-carrier” gets the least profitable old equipment (see diagram 5).

Scheme 5. Reducing the number of imputed employees using outsourcing

Note also that due to the negative judicial practice When implementing this scheme, it is better not to use outstaffing. In addition, the State Duma is currently considering bill No. 451173-5 on the regulation of agency labor, the content of which will continue to change and be finalized. This carries additional risks and, in the future, makes the use of outstaffing in tax schemes an even less attractive option.

Fragmentation of a business also fragments its physical characteristics for UTII purposes

What are the savings? Allows you to reduce the tax burden by maintaining the right to use UTII.

How the scheme works. In practice, business division is carried out to preserve the right to a special regime, including UTII (see diagram 6). This happens when the company is not satisfied with alternative tax regimes due to the high tax burden and increased attention from inspectors. Often, in order to maintain the right to UTII, a company artificially divides one store into several separate premises, the area of ​​which individually does not exceed the limit of 150 square meters. m (resolution of the Federal Arbitration Court of the Volga-Vyatka District dated March 25, 2013 No. A82-4455/2012).

Scheme 6. Fragmentation of a subject to preserve the right to UTII

The same operation is carried out in public catering, in this case the customer service hall is divided. When providing transport services The car park is being split up. Of course, the business fragmentation scheme is also used to reduce the average number of company employees. At the same time, all imputations operate as a single organization. True, there are often no partitions between trading floors, but there is a common cash register area, as well as a common warehouse without physically separating the territory of each of the tenants.

Judicial practice regarding tax schemes of business fragmentation is developing negatively. However, it is possible to predict that arbitration judges will soften their attitude towards companies in connection with the appearance of the precedent ruling of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/09/13 No. 15570/12.

How to bypass the restriction on the composition of founders to preserve the right to imputation

How the scheme works. Practice shows that there are several ways to maintain the right to a special regime in a given situation. Firstly, at least 75 percent of the company’s capital can be transferred to the real owners of the business - individuals. But in practice, it is better not to allow direct affiliation with other companies participating in the scheme.

Secondly, you can use nominal individual founders. At the same time, there are different ways to limit their rights. In particular, the company's charter may provide that a majority of votes on general meeting participants belongs to real business owners. Although their share in the authorized capital may be small. The director may be limited in the amount of transactions he can conclude independently.

Also in practice, refusal documents are used that are drawn up in advance, but without a date. They can be re-signed periodically. For companies with limited liability this may be a statement from the nominal person about leaving the company and a receipt for receiving the share of net assets due to him. For joint stock company- transfer order for shares, agreement for the purchase and sale of shares, receipt of money for shares.

And finally, in April 2013 The State Duma adopted in the first reading bill No. 225123-6, which removes restrictions for non-residents on participation in the authorized capital of Russian small enterprises. Perhaps this will lead to the removal of relevant restrictions on the use of UTII. And behind a non-resident company, you can ultimately hide the real owners of the business - Russians.

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If an individual entrepreneur plans to engage in retail trade, one of the most convenient tax regimes for him will be UTII. This mode allows you to conduct business without using cash register equipment, without maintaining financial statements. Be sure to check out. It exempts you from paying personal income tax and VAT. To switch to UTII, you need to take into account the following requirements:

• the number of employees hired by the individual entrepreneur should not exceed 100 people;
• The maximum permitted area of ​​the sales area is 150 square meters. m.

A businessman using UTII pays the state 15% of his imputed income. Imputed income for retail trade is calculated taking into account retail space, basic profitability and special coefficients.

First of all, let’s consider what is included in the concept of “retail space”:

• part of the premises on which shelving, counters and display cases are located for displaying goods;
• space for customer service (passages, sales desks, etc.);
• part of the premises intended for settlements with customers.

Important: utility, administrative and warehouse premises do not belong to retail space and are not taken into account when paying the single tax.

In order to calculate the tax that an individual entrepreneur needs to pay on retail space, you also need to know the basic profitability and coefficients K1 (deflator coefficient) and K2 (adjustment coefficient). These indicators can always be clarified on the official website of the Federal Tax Service. For retail trade in 2016, the basic profitability is set at 1,800 rubles per month, the K1 indicator is 1.798. As for the adjustment coefficient, its value is set by municipal authorities for each specific region, and it can be no less than 0.005 and no more than 1. For the convenience of calculating the tax base, you can apply a special formula,

Substituting known data into the formula, we obtain the same imputed income (tax base), from which we then transfer 15% as UTII to the state treasury.

Important: an individual entrepreneur using UTII can legally use tax deduction. The amount of tax can be reduced by the amount of insurance contributions that the individual entrepreneur pays for his employees. The deduction cannot be more than 50% of UTII.

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Retail tax for individual entrepreneurs

In addition to UTII, entrepreneurs working in retail trade can use other tax regimes. Most often, individual entrepreneurs give preference to the simplified tax system. There are reasons for this: a less cumbersome reporting system compared to the OSN and a smaller tax amount. There are 2 taxation options when using the simplified tax system:

• the object is the income of an individual entrepreneur and is taxed at a rate of 6%;
• the object is the profit of the individual entrepreneur, the rate is 15%.

For those entrepreneurs whose expenses are not too high (not exceeding 60%), the best solution would be to choose the first option. However, in retail trade, the percentage of expenses is usually quite high, so individual entrepreneurs more often resort to the “Income-Expenses” simplified tax system. Accordingly, the tax that an individual entrepreneur pays on retail trade in this case is 15% of his profit.

It is important to understand that all existing expenses must be documented, in other words, proven. For this there is one system.

Individual entrepreneur sales tax in 2016

In 2014, the Minister of Finance of the Russian Federation came up with the idea of ​​returning the long-forgotten sales tax. The purpose of the bill he introduced was additional funding for the regions, because A. Siluanov proposed granting the right to establish a sales tax to the regional authorities. It was assumed that already in 2015, with a tax rate of 3%, it could bring the regions up to 200 billion rubles. But the government abandoned this idea, justifying the refusal by the inevitability of entrepreneurs going into the shadows, cutting costs and, ultimately, rising prices. The bill was rejected. Thus, individual entrepreneurs do not have to pay sales tax in 2016.

What taxes does an individual entrepreneur engaged in wholesale trade pay?

There are often entrepreneurs who, in addition to retail trade, sell goods and wholesale, or are engaged exclusively in wholesale trade. In this case, a general taxation system would be preferable. It's all about VAT. Most companies cooperating with wholesalers pay this tax. It is possible for them to reduce their VAT by the amount of “input VAT” that they pay when purchasing goods from a wholesaler. Accordingly, if an individual entrepreneur engaged in wholesale trade applies one of the special tax regimes and is not a VAT payer, he may lose many clients.

If an individual entrepreneur engaged in wholesale trade , works on OSN, then he pays the following taxes:

• Personal income tax, amounting to 13% of the income that the business brings to him;
• VAT in the amount of 18% (in 2015 this value remained unchanged);
• property tax.

In addition, if an individual entrepreneur is an employer, then he is obliged to withhold and pay personal income tax to the treasury from the salaries of his employees.

To summarize, I would like to emphasize that there is no universal tax regime that would suit absolutely everyone. What is profitable and convenient for some businesses may not be acceptable for others. To choose the right option for your business, you need to carefully analyze all aspects of your business. A correctly chosen tax system will help an individual entrepreneur who is engaged in trade to optimize their expenses.

" № 7/2016

Does the tenant have the right to calculate UTII based on the actually used area of ​​the trading floor if he independently separated the storage space with temporary partitions?

The organization rented a retail facility. Since there were no warehouses or utility rooms in the rented areas, the organization installed temporary partitions and equipped them independently (this is stipulated in the lease agreement). When calculating UTII, she used the physical indicator “sales area” based on the actual area used. However, the tax authorities considered this to be unlawful and added additional taxes. In its Resolution dated May 20, 2016 in case No. A71-9313/2015, the AS UO took the side of the fiscals. Read more about this matter in this article.

We are studying the case materials...

In the explanation to the floor plan of the building, the rented premises are indicated as a trading floor with an area of ​​128 sq. m. m. Since there were no warehouse and utility rooms in the leased areas, the organization, having installed temporary partitions (showcases, counters, portable structures), equipped them independently (an additional agreement was drawn up to the lease agreement, according to which the tenant is provided with a retail and warehouse premises with a total area of 128 sq. m, of which 5 sq. m - retail space, 100 sq. m. - storage area, 23 sq. m. - utility room area). Accordingly, when calculating UTII, the organization used the physical indicator of 5 square meters. m. Is this approach legal? Inspectors and judges think not.

Reading tax laws

To calculate the amount of UTII taking into account the type of business activity - retail trade, carried out through the objects of a stationary trading network that has trading floors, the physical indicator “trading floor area (in sq. m)” is used (clause 3 of Article 346.29 of the Tax Code of the Russian Federation).

It would seem that by indicating as a physical indicator the area of ​​the sales floor actually used in business activities, the organization is doing the right thing. However, in Art. 346.27 of the Tax Code of the Russian Federation contains the following clause: the area of ​​the sales floor is determined on the basis of inventory and title documents.

Analyzing the position of the judges

There is uncertainty in this dispute. On the one hand (according to the explanation to the floor plan of the building), the non-residential premises are a trading floor with an area of ​​128 square meters. m. On the other hand (under the lease agreement) – the area of ​​the sales area is only 5 sq. m. m, the rest is storage and utility rooms. Let us recall that in this dispute the court supported the tax authorities, who assessed additional tax using the value of the physical indicator of 128 square meters. m.

So what happens, the tenant cannot rely on the data contained in the lease agreement? It is impossible to answer this question unequivocally - in each case one must proceed from the specific circumstances of the case.

As the court found out, the disputed premises with an area of ​​128 square meters. m was structurally isolated from other premises, had a separate entrance door, and there were no major partitions. Based on the presented layout plan for the store, the sales area (5 sq. m. area) is located in the middle of the warehouse area (100 sq. m.), from the general hall of the shopping center the buyer enters directly into the warehouse space, the passage to the sales area is not marked. Moreover, according to the protocol of the witness's interrogation, changes to the lease agreement were made at the request of the tenant without actual redevelopment.

As a result of the consideration of the case, the court concluded that the part of the premises fenced off by the entrepreneur point of sale for storage (warehousing) of goods using display cases, counters and other portable structures cannot be recognized as ancillary (storage) premises, since the premises itself presuppose its constructive isolation and special equipment. In this case, the court stated that the annex to the lease agreement is not a title or inventory document.

Similar conclusions can be found in other court decisions.

Details of the resolution	Judges' findings
Resolution of the Supreme Court of the Russian Federation dated January 18, 2016 in case No. A79-1326/2015	The part of the premises of the retail outlet fenced off by the tenant for storing goods using display cases and counters cannot be recognized as ancillary (warehouse) premises. Counters, showcases, curtains can only be considered as conditional boundaries with gaps
Resolution of the AS ZSO dated June 15, 2016 in case No. A45-5796/2015	Since the total area of ​​the trading floor is not structurally divided into any parts, including warehouses, storage rooms, or administrative premises (this follows from the technical passport of the premises, building plans, explanations to them, lease agreements, additional agreements to contracts, floor plan ), the physical indicator must be calculated from the total area of ​​the rented premises

Let's get acquainted with the opinions of officials

The situation analyzed in the article has been of concern to taxpayers for a long time. For example, in Letter No. 03‑11‑11/333 of the Ministry of Finance of the Russian Federation dated December 28, 2010, an individual entrepreneur asked the question: are utility, administrative and service premises, as well as premises for receiving and storing goods, structurally separate from the trading floor if the premises separated (separated from the retail space of the trading floor) not by capital, but by temporary partitions not specified in the technical (cadastral) passport of the property (only in the annex to the lease agreement)? Should these premises be included in the total area of ​​the trading floor for the purpose of UTII taxation?

As often happens, officials avoided a direct answer, but from their answer one can conclude that this is permissible.

When calculating the single tax on imputed income and determining the area of ​​the trading floor, one should be guided by inventory and (or) title documents, in this case, a lease agreement, which must clearly indicate the area of ​​​​the trading floor of the premises leased to an individual entrepreneur.

Drawing conclusions

Currently, fiscal officials are focused on collecting taxes. Therefore, the exclusion of part of the retail space by an organization (IP) from the calculation of the physical indicator for the purpose of calculating UTII is one of the frequent causes of tax disputes. Judges often echo officials.

In the case under consideration, of course, the attention of the tax authorities was attracted by the indication in the UTII declaration of an unlawfully small (5 sq. m) area of ​​the sales area compared to the total area commercial premises 128 sq. m. Also, inspectors will notice a violation if, for the same retail item, the area of ​​the trading floor suddenly decreases (for example, in the dispute considered in the Resolution of the Supreme Court of the Russian Federation of December 15, 2015 in case No. A04-9307/2014, the size of the physical indicator of the area of ​​the retail space from January 2011 to January 2012 was 42 sq. m., from February to May 2012 - 32 sq. m., despite the fact that the tenant did not contact the landlord regarding the installation of additional partitions in the rented premises, or equipment for a utility room for storing goods. ).

Officials do not see a crime in the fact that the area of ​​a retail space can be determined based on the terms contained in the lease agreement. However, it must be taken into account that during the field trip tax audit representatives of the inspection can go to the site and assess the correctness of the application of the physical indicator, as they say, after the fact. Therefore, if a similar situation arises in the activities of an organization, you can count on a positive outcome of the case only if the information specified in the lease agreement corresponds to reality, that is, the trading object is actually divided into several premises (albeit by non-permanent, but still walls) , and the inspectors will verify the nature of use of each of the premises, provided that this division is confirmed by documents (lease agreement, acceptance certificate of the leased object, documents confirming the installation of partitions (“primary” for the purchase of materials, certificate of work performed, etc.)) . The part of the premises of the retail outlet fenced off by the tenant for storing goods using display cases and counters cannot be recognized as ancillary (warehouse) premises.