Question:
The organization applies the simplified tax system and the taxation system in the form of UTII, rents a room with a total area of 80.67 sq. m. The premises sublease agreement states that the premises will be used by the subtenant for the purpose of accommodating:
- sales area of 35.9 sq. m;
- utility room with an area of 6.6 sq. m;
- utility room with an area of 7.13 sq. m;
- accounting premises with an area of 31.04 sq. m.
What area of the premises is taken into account when calculating UTII?
Answer:
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
The Department of Tax and Customs Tariff Policy considered a letter on the procedure for calculating a single tax on imputed income in relation to entrepreneurial activity in the field of retail trade carried out through a leased premises in which the tenant plans to organize a trading floor, and based on the information provided in the letter, informs the following
According to "Article 346.26" of the Tax Code Russian Federation(hereinafter referred to as the Code) the taxation system in the form of a single tax on imputed income may be applied to entrepreneurial activities in the field of retail trade carried out through shops and pavilions with a trading floor area of not more than 150 sq. m for each object of trade organization.
In accordance with "Article 346.29" of the Code, when calculating a single tax on imputed income in relation to entrepreneurial activities in the field of retail trade carried out through objects of a stationary trading network that have trading floors, "the area of the trading floor (in square meters)".
"Article 346.27" of the Code establishes that the area of the trading floor is recognized as part of the store, pavilion (open area), occupied by equipment intended for laying out, demonstrating goods, conducting cash settlements and servicing customers, the area of checkout units and cash booths, the area of workplaces service personnel, as well as the aisle area for customers. The area of the sales area also includes the leased part of the area of the sales area. The area of auxiliary, 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 trading floor is determined on the basis of inventory and title documents.
The inventory and title documents include any documents available to an organization or an individual entrepreneur for an object of a stationary trading network containing the necessary information about the purpose, design features and layout of the premises of such an object, as well as information confirming the right to use this object (contract for the sale of non-residential premises , technical passport for non-residential premises, plans, diagrams, explications, (sublease) of non-residential premises or part (s) thereof, permission for the right to serve visitors in an open area and other documents).
At the same time, it should be noted that based on "Art. 606" Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), under a lease agreement, the lessor undertakes to provide the lessee with property for a fee for temporary possession and use or for temporary use.
Based on "Article 607" of the Civil Code of the Russian Federation, the lease (sublease) agreement must contain data that make it possible to definitely establish the property to be transferred to the tenant as an object of lease.
Please note that in the absence of such data in the lease (sublease) agreement, the condition on the object to be leased is considered not agreed by the parties, and the corresponding agreement is not considered concluded.
Given the above, the calculation of the amount of a single tax on imputed income in relation to the entrepreneurial activity of an organization in the field of retail trade carried out through a leased area, which, according to a sublease agreement, is transferred to the organization of a retail facility with a dedicated trading floor, auxiliary and administrative premises, should be carried out using the physical indicator "sales area (in square meters)".
We also inform you that according to the "Regulations" on the Ministry of Finance of the Russian Federation, approved by Decree of the Government of the Russian Federation of 30.06.2004 N 329, and the "Regulations" of the Ministry of Finance of Russia, approved by Order of the Ministry of Finance of Russia of 03.23.2005 N 45n, the Ministry of Finance of Russia considers individual and collective appeals of citizens and organizations on issues within the jurisdiction of the Ministry. In accordance with the "Regulations" and "Regulations", unless otherwise provided by law, applications for the examination of contracts, constituent and other documents of organizations, as well as for the assessment of specific economic situations, are not considered on the merits.
Deputy Director
Department of Tax
and customs tariff policy
S.V. Razgulin
How to calculate the area of the trading floor of a store (pavilion) when calculating UTII? What documents can confirm the correct calculation? How to correctly determine the area of the trading floor if the tenant subleases part of it?
This question was asked by the company officials. The crux of the matter is as follows.
The company enters into a lease agreement for retail trade. The contract contains information on the total area of the premises and the retail area required for the calculation of UTII. The company then subleases part of the premises. How to draw up documents so as not to overestimate the physical indicator for UTII? Is it necessary to make changes or additions to the original lease agreement, changing the retail space in it, or will it be enough for the tax authorities to provide sublease agreements that show what area the company subleases in order to justify the calculation of the physical indicator (minus the subleased area) ?
The Ministry of Finance considered this issue and gave the following clarifications in letter N 03-11-11/53554 dated December 9, 2013.
To determine UTII in retail through stationary objects with trading floors, a physical indicator is taken into account - “the area of the trading floor”, determined in square meters (clause 3 of article 346.29 of the Tax Code).
What is included in the sales area?
The Tax Code in Article 346.27 includes the following elements in this concept: trade area consists of areas that occupy:
Equipment for laying out, demonstrating goods (racks, showcases, etc.);
A place for cash settlements with customers and their service (cash desk, point of issue of goods);
The area occupied by cash registers and units;
Workplaces for attendants (table, chair, aisles for attendants);
Passages for buyers.
Simply put, a sales area is a place where buyers interact directly with sellers.
The area of the trading floor under the lease agreement is considered as the leased part of the trading floor area.
What is not included in the sales area?
Utility and administrative premises;
Premises for storing, receiving goods and preparing them for sale in places where there is no customer service.
Information about the trading area.
How to calculate the area of the trading floor? Information about the area of the trading floor can be found in title and inventory documents. These can be technical passports, diagrams, plans, explications, purchase and sale agreements, lease and sublease agreements, etc. Those. these are the documents that reflect the purpose and layout of the premises, as well as the right to use this premises (Chapter 26.3 of the Tax Code).
If the documents do not have a clear definition of retail space, you need to draw it yourself to calculate UTII and, accordingly, justify it.
The tenant of the premises, with the consent of the landlord, may sublease the received premises (clause 2, article 615 of the Civil Code of the Russian Federation).
Thus, if a part of the trading floor of a store (pavilion) is subleased by the tenant, UTII is calculated from the area of the trading floor actually participating in retail trade, which is defined as the rented area of the trading floor specified in the lease agreement, minus the area of the trading floor, leased in sublease.
To confirm the data of the physical indicator, in addition to the lease agreement, it is necessary to provide a sublease agreement.
Calculation of UTII for retail for an example, see.
Calculation of physical indicators when combining modes
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Igor, good afternoon.
You need to conclude an additional agreement with the tenant, where it is written that 10 sq. m. you rent for a trading floor, and 20 sq.m. under the warehouse, then all questions will disappear. If you had not one room, but at least some kind of separation, then you could provide the technical plan of the room to the tax office.
Question: Calculus
taxpayer engaged in retail trade, the amount of UTII, if
he subleased part of the rented trading floor of the store
(pavilion).
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
The Department of Tax and Customs Tariff Policy considered the appeal
on the application of the taxation system in the form of a single tax on imputed
income for certain types activities received by electronic
means of communication, and, based on the information contained in the appeal,
reports the following.
In accordance with "p. 3 art. 346.29" of the Tax Code of the Russian
Federation (hereinafter - the Code) for calculating the amount of a single tax on
imputed income for certain types of activities in the implementation
entrepreneurial activity in the field of retail trade through
objects of a stationary trading network with trading floors, it is applied
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 the store, pavilion (open area), occupied by equipment,
intended for laying out, demonstrating goods, holding cash
settlements and customer service, the area of cash registers and
cash booths, the area of workplaces for service personnel, as well as
aisle area for customers.
The area of the trading floor also includes the rented part of the area.
trading floor. The area of utility, administrative and amenity premises, and
also premises for receiving, storing goods and preparing them for sale, in
which no customer service is provided, does not apply to
trading floor area. The area of the trading floor is determined on the basis of
inventory and title documents.
For the purposes of Chap. 26.3 of the Code for inventory and title
documents include any held by the organization or individual
entrepreneur documents for the object of a stationary trading network,
containing the necessary information about the purpose, constructive
features and layout of the premises of such an object, as well as information,
confirming the right to use this object (contract of sale
non-residential premises, technical passport for non-residential premises, plans,
schemes, explications, a lease (sublease) agreement for non-residential premises or
its parts (parts) and other documents).
"Item 2 of Art. 615" of the Civil Code of the Russian Federation
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 trading floor
store (pavilion) calculation of a single tax on imputed income
should be carried out based on the leased area of the trading floor for
subtracting the area of the trading floor, transferred to the sublease. The basis for
reduction of the object of taxation by a single tax on imputed income
is a sublease agreement concluded by the tenant - taxpayer
the said tax.
At the same time, it is reported that this letter of the Department does not contain
legal norms, does not specify normative prescriptions and is not
normative legal act. Written explanations of the Ministry of Finance of Russia on
issues of application of the legislation of the Russian Federation on taxes and
fees are informational and explanatory in nature and do not interfere
taxpayers to be guided by the norms of the legislation of the Russian
Federation on taxes and fees in an understanding that differs from the interpretation,
set out in this letter.
Deputy Director
Department of Tax
and customs tariff policy
R.A.SAHAKYAN
09.12.2013
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I ask you to clarify whether I correctly determine the area of the trading floor, how can I challenge this in the tax office, what documents can serve as evidence in the event of a trial in court?
Igor Tatarinov
Yes, you define the area correctly
THE FEDERAL TAX SERVICE
LETTER
dated February 22, 2005 N 22-2-16 / 232
ABOUT THE ORDER OF APPLICATION OF THE SYSTEM
TAXATION IN THE FORM OF A SINGLE TAX ON IMPUTED
INCOME FOR CERTAIN ACTIVITIES
Federal tax office 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 may be applied by decision of the constituent entity of the Russian Federation in relation to the types of entrepreneurial 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 trading floor area for each trade organization facility of not more than 150 square meters, tents, stalls and other trade organization facilities, both with and without a stationary trading area.
According to Article 346.27 of the Code, for the purposes of Chapter 26.3 of the Code, a stationary trading network means a trading network located in buildings (their parts) and structures specially equipped and intended for trading. A stationary trade network is formed by building systems firmly connected by a foundation to a land plot and connected to engineering communications.
To this category shopping facilities objects of the organization of trade include both those with trading floors (shops, pavilions) and those that do not have trading floors (kiosks, covered markets, fairs, etc.).
A store is a specially equipped stationary building (part of it) intended for the sale of goods and the provision of services to customers and provided with trading, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, and under the pavilion - a building having a trading floor and designed for one or more jobs.
Thus, other objects of a stationary trading network that do not comply with the concepts of a store and a pavilion established by Chapter 26.3 of the Code should be classified as objects of a stationary trading network that do not have a trading floor.
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 a single tax on imputed income is carried out using the physical indicator of the base profitability "sales area in square meters", and through objects of a stationary trading network that do not have a trading floor. hall, - using the physical indicator of the basic profitability "trading place".
At the same time, in accordance with Article 346.27 of the Code, a “trading place” means a place used for making purchase and sale transactions, and a “sales area” of an object of a stationary trading network (shop and pavilion) - the area of all premises of this object 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 organization object containing the necessary information on the purpose, design features and layout of the premises of such an object, as well as information on the legal grounds for using this object (transfer agreement, contract for the sale of non-residential premises; technical passport for non-residential premises, plans, schemes, explications, lease (sublease) agreement for non-residential premises or its part (parts), permission for the right to trade in an open area, etc.).
According to State standard Russian Federation Р51303-99 “Trade. Terms and definitions” (hereinafter referred to as GOST R51303-99), the sales area of a store means a part of the store’s sales area, including the store’s installation area (part of the store’s area occupied by equipment designed for displaying, demonstrating goods, making cash payments and serving customers), the area of cash registers and cash booths, the area of workplaces for service personnel, as well as the area of passages for customers.
Thus, when calculating the amount of a single tax on imputed income by a taxpayer engaged in retail trade through a stationary object of a trade organization that complies with the concepts of a store and a pavilion established by Chapter 26.3 of the Code, the area of \u200b\u200ball the premises of such an object is taken into account (including areas classified by GOST R51303-99 to the area trading floor), as well as open areas actually used by him for the retail trade in goods and the provision of services to customers, which is determined in accordance with the above title and inventory documents.
At the same time, it should be borne in mind that the areas of warehouse, office, utility and other premises of a stationary trade organization facility that are not intended for retail trade and the provision of 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 above purposes.
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 a store and a pavilion established by Chapter 26.3 of the Code, as well as objects that are actually used for shops and pavilions in which the area of the trading floor is not allocated by title and inventory documents), the calculation a single tax on imputed income is made using the physical indicator of the basic profitability "trading place".
I.F.GOLIKOV
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Good afternoon.
Art. 346.27 of the Tax Code of the Russian Federation
area of the trading floor - a part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods, conducting cash settlements and servicing customers, the area of checkout units and cash booths, the area of working places for service personnel, as well as the area of passages for buyers. The area of the sales area also includes the leased part of the area of the sales area. The area of auxiliary, 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 trading floor is determined on the basis of inventory and title documents;
Indicate this definition to the tax authorities and peacefully “resolve” this issue and pay from 10 sq.m.
And if the world does not work out, then my colleagues said everything correctly. The decision of the tax authorities can be challenged in court by presenting relevant evidence.
With regard to retail trade, it is possible using one of the following physical indicators: trading place, trading floor area, trading place area. From the article you will learn in which cases to apply each of these physical indicators and how to determine them.
First of all, we note that a physical indicator characterizes a certain type of “imputed” activity. Therefore, its correct definition directly affects the amount of a single tax payable to the budget. However, with respect to not all "imputed" activities, this is easy to do. One such activity is retail.
According to the provisions of Chapter 26.3 of the Tax Code of the Russian Federation, organizations and retailers, with a single tax, must apply one of the following physical indicators:
- area of the trading floor (in square meters);
- the number of trading places;
- area of the trading place (in square meters);
- the number of employees, including individual entrepreneurs;
- the number of vending machines.
As a rule, there are no difficulties with the last two physical indicators, but we will consider the rest in more detail.
Sales floor area
The physical indicator "sales area (in square meters)" is used when organizations and individual entrepreneurs conduct retail trade through stationary trading network facilities that have trading floors.
In order to pay UTII area sales area should not exceed 150 sq. m. Article 346.27 of the Tax Code of the Russian Federation determines that the area of \u200b\u200bthe trading floor includes:
- part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods;
- the area used for cash settlements and customer service;
— the area of cash registers and cash booths;
— the area of workplaces of service personnel;
— the area of passages for buyers.
Also, the area of the trading floor includes the rented space of the trading floor. But the area of auxiliary, administrative and amenity premises, the area of \u200b\u200bpremises for receiving, storing goods and preparing them for sale, in which customer service is not performed, is not included in the area of \u200b\u200bthe trading floor for the purpose of paying UTII.
The area of the trading floor is determined on the basis of inventory and title documents. Such documents may be a contract for the sale of non-residential premises, a technical passport for non-residential premises, plans, diagrams, explications, (sublease) of non-residential premises or its part (parts), permission for the right to serve visitors in an open area, etc.
It would seem that everything is simple. There are documents that indicate the area of the trading floor, which should be taken into account. But in practice, a situation often arises when they themselves change the area of \u200b\u200bthe trading floor, for example, converting a part into a warehouse. And, as a result, they think single tax based on the smaller area.
Financiers believe that this should never be done. It is necessary to calculate UTII only using the size of the area of the trading floor, which is indicated in the inventory and title documents. And actually used by the organization or individual entrepreneur for the purpose of maintaining a retail sales area does not matter. Such a conclusion is contained, for example, in a letter dated 07.03.2013 No. 03-11-11/94.
Judges basically take the side of taxpayers and, when considering cases, find out the actual area of the trading floor. Thus, in the decision of the Federal Antimonopoly Service of the Volga District dated December 24, 2012 No. A57-9062/2012, the arbitrators found that the total area of the trading floor was divided into a trading area and an area of the utility room by showcases. In the place for receiving, storing goods and preparing them for sale, in the back rooms, there was no equipment intended for laying out, demonstrating goods, making cash payments. Service in the indicated places was not carried out, the access of buyers was prohibited. In this regard, the arbitrators came to the conclusion that for the sale of goods the taxpayer used only the trading area and lawfully calculated UTII from this area.
A similar conclusion is contained in the resolutions of the Federal Antimonopoly Service of the Central District of June 15, 2012 No. A35-3273/2011 and the Federal Antimonopoly Service of the Urals District of October 08, 2012 No. Ф09-9981/11, of January 26, 2011 No. Ф09-10943/10-С3.
The Federal Antimonopoly Service of the East Siberian District, in its resolution dated 13.10.2009 No. A78-3625 / 08, indicated that the obligatory sign of classifying areas as “sales area area” and accounting for a single tax is the actual use of these areas in the implementation of trade. And the burden of proving that the "vnemenschik" used a large area for retail trade rests with the tax authorities.
Similar conclusions are contained in the resolutions of the Federal Antimonopoly Service of the Volga District dated April 11, 2012 No. A57-3313 / 2011, the Federal Antimonopoly Service of the West Siberian District dated October 18, 2010 No. A45-7149 / 2010, the Federal Antimonopoly Service of the Far Eastern District dated July 15, 2011 No. F03-2543 / 2011 and the Federal Antimonopoly Service of the Moscow district dated 04/01/2010 No. КА-А41 / 2694-10.
At the same time, it is worth noting that there are court decisions in which arbitrators took into account only inventory and title documents. At the same time, they noted that such documents should be drawn up by the competent authorities (for example, the BTI authorities). In the decision of the Federal Antimonopoly Service of the Volga-Vyatka District of August 6, 2012 No. A29-6075 / 2011 (upheld by the Determination of the Supreme Arbitration Court of the Russian Federation of December 19, 2012 No. VAS-16459 / 12), the arbitrators refused to accept as evidence of a change in the area of the trading floor the floor plan, which was compiled by a third party individual entrepreneur.
The same conclusions can be found in the resolutions of the Federal Antimonopoly Service of the North-Western District of March 5, 2011 No. A66-6259 / 2010, as well as the FAS of the East Siberian District of February 24, 2012 No. A74-3677 / 2010 and of May 13, 2009 No. A78-4725 / 08-S3-22/186-F02-2154/09.
Thus, in order to avoid claims from outside, we recommend that you make changes to the sales area in time so that it corresponds to the BTI data. In addition, the information in the inventory documents must match the data in the title documents.
Example 1
LLC "Tea plantations", using in the form of UTII, carries out retail trade various types tea and coffee through a shop with a total area of 160 sq. m. The store is located in the city (Oktyabrsky district). In accordance with the inventory plan, the area of the trading floor is 100 square meters. m, the rest of the area is occupied by administrative and storage facilities. Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.
The basic profitability for retail trade carried out through objects of a stationary trading network with trading floors is 1,800 rubles. per month. The physical indicator is the area of the trading floor (in square meters). In this case, it is 100 sq. m. The coefficient K1 in 2014 is 1.672 (order of the Ministry of Economic Development of Russia dated November 7, 2013 No. 652).
According to the decision of the Kirov City Duma dated November 28, 2007 No. 9/4 (as amended by the decision dated November 28, 2012 No. 8/4), the value of K2 in relation to retail trade through stationary trading network facilities with trading floors in the district is 0.44 ( for food items).
Thus, the amount of UTII payable to the budget following the results of the 4th quarter of 2014 will be:
1800 rub. × (100 sq. m + 100 sq. m + 100 sq. m) × 1.672 × 0.44 × 15% = 59,590.08 rubles.
In whole units - 59,590 rubles.
The company has the right to reduce this amount of UTII by paid contributions and temporary disability benefits paid to employees, but not more than 50%.
Trade area
When conducting retail trade through objects of a stationary distribution network that do not have trading floors, as well as through objects of a non-stationary distribution network, the following physical indicators are used:
- the number of trading places;
- area of the trading place (in square meters).
And the choice of which physical indicator to use to calculate UTII depends on the area of \u200b\u200bthe trading place. If the area of the trading place does not exceed 5 sq. m, then the physical indicator "number of trading places" is used if it exceeds 5 sq. m, then "the area of the trading floor." About this - paragraph 3 of article 346.29 of the Tax Code of the Russian Federation.
Let's first consider how to determine the area of \u200b\u200bthe trading place. And we immediately note that the Tax Code of the Russian Federation does not say anything about this. Therefore, we turn to the regulatory authorities for clarification. So, the department's specialists point out that the area of the trading place, as well as the area of the trading floor, should be determined on the basis of inventory and title documents. This is stated in the letters of the Ministry of Finance of Russia dated 08.08.2012 No. 03-11-11 / 231, dated 05.03.2012 No. 03-11-11 / 68, dated 12.26.2011 No. 03-11-11 / 320, dated 08.10.2009 No. 03-11-09/274 and dated May 26, 2009 No. 03-11-09/18. Agree with financiers and tax specialists (letter dated July 27, 2009 No. 3-2-12 / 83).
Note that there are no restrictions on the size of the area of the trading place used for the purposes of "imputed" retail trade, Chapter 26.3 of the Tax Code of the Russian Federation No provision is made for the provisions of Chapter 26.3 of the Tax Code of the Russian Federation and the reduction of the area of the trading place by the area of premises for receiving, storing goods and preparing them for sale where customer service is not provided. The Ministry of Finance of Russia drew attention to this in letters dated 05.03.2012 No. 03-11-11/68, dated 26.12.2011 No. 03-11-11/320, dated 22.12.2009 No. 03-11-09/410, dated 10.08. 2009 No. 03-11-09/274 and dated May 26, 2009 No. 03-11-09/185. See also the letter of the Federal Tax Service of Russia dated 06/25/2009 No. ШС-22-3 / [email protected]
As for the judges, they fully agree with the regulatory authorities. For example, in the resolution of the Federal Antimonopoly Service of the North-Western District dated May 29, 2012 No. A05-10400/2011, the arbitrators indicated that when retailing through an object recognized as a trading place, the physical indicator "shopping area" includes all areas related to this object of trade, including those used for the acceptance and storage of goods. Similar conclusions contain resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 417/11 dated June 14, 2011, Federal Antimonopoly Service of the Volga-Vyatka District dated May 16, 2012 No. A79-6987/2011, No. A11-8979/2010 dated February 13, 2012, Federal Antimonopoly Service of the Moscow District dated February 10, 2012 No. А41-31817/10, Federal Antimonopoly Service of the Central District of March 11, 2011 No. А62-4419/2010 and Federal Antimonopoly Service of the Volga District of February 9, 2010 No. А12-16000/2009.
What if the trade is carried out after several commercial premises that are in the same building? Chapter 26.3 of the Tax Code of the Russian Federation does not allow this. In the letters of the Ministry of Finance of Russia dated December 31, 2010 No. 03-11-11 / 335 and the Federal Tax Service of Russia dated July 2, 2010 No. ShS-37-3 / [email protected] it is said that if retail trade is carried out using several retail facilities that belong to the same store (pavilion) and are located in the same building, then when calculating the amount of UTII, the area of \u200b\u200ball trading floors must be summed up. If retail trade is carried out using several trading facilities that are located in the same building, but are independent stores (pavilions), then when calculating the amount of UTII, the area of \u200b\u200bthe trading floor for each store (pavilion) is taken into account separately according to inventory and title documents.
Consider, for example, the procedure for calculating UTII using the physical indicator "area of the trading place".
Example 2
Let's use the conditions of example 1 and assume that the company retails various types of tea and coffee through a trading place with an area of 5.9 square meters. m, located in mall. The shopping center is located in the city of Kirov (Novovyatsky district). Separate premises for receiving, storing goods and preparing them for sale in this case are not provided. The goods are stored in a showcase, which is a trading place. Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.
The base yield in this case is 1800 rubles. per month. The physical indicator "the area of the trading place (in square meters)" is 5.9 square meters. m. The value of K2 in relation to retail trade through the objects of a non-stationary trading network, the area of \u200b\u200bthe trading place in which exceeds 5 square meters. m, on the territory of the Novovyatsky district is 0.27 (for food products).
The amount of UTII payable to the budget following the results of the IV quarter of 2014 is:
1800 rub. × (5.9 sq. m + 5.9 sq. m + 5.9 sq. m) × 1.672 × 0.27 × 15% = 2157.43 rubles.
In whole units - 2157 rubles.
Now consider another example and note that when using the same physical indicator in different occasions the tax amount can vary significantly. Therefore, organizations and merchants, when planning their trading activities, should carefully approach the choice of the object of trade.
Example 3
MasterOk LLC, which applies the taxation system in the form of UTII, carries out retail trade building materials. For this activity, the company rented a pavilion in the construction market with a total area of 80 square meters. m. At the same time, a counter is installed inside the pavilion, where buyers make payment and receive goods. The counter occupies an area of 6 square meters. m. The product itself is stored in the pavilion, buyers have free access to it for review. The construction market is located in the city of Kirov (Leninsky district). Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.
The basic profitability for this type of activity is 1800 rubles. per month. The physical indicator "the area of the trading place (in square meters)" in this case will be 80 square meters. m. The value of K2 in relation to retail trade through the objects of a non-stationary trading network, the area of \u200b\u200bthe trading place in which exceeds 5 square meters. m, in the district is 0.35 (for non-food products).
The amount of UTII payable to the budget following the results of the II quarter of 2014 is:
1800 rub. × (80 sq. m + 80 sq. m + 80 sq. m) × 1.672 × 0.35 × 15% = 37,920.96 rubles.
In whole units - 37,921 rubles.
The company has the right to reduce this amount of UTII by the paid insurance premiums and sickness benefits paid to employees, but not more than 50%.
Number of trading places
Article 346.27 of the Tax Code of the Russian Federation defines a trading place as a place used for making retail purchase and sale transactions. These include:
- buildings, structures, structures (a part of them) or used for retail purchase and sale transactions;
- objects of retail organization that do not have trading floors (tents, stalls, kiosks, boxes, containers and other objects, including those located in buildings, structures and structures);
— counters, tables, trays (including those located on land plots);
- land plots used for placement of retail trade organization facilities that do not have trading floors, counters, tables, trays, and other objects.
As you can see, the Tax Code of the Russian Federation does not establish specific physical characteristics or minimum requirements for a trading place. In a letter dated 07/05/2005 No. 03-11-04 / 3/2, the financiers indicated that if the goods are released from the warehouse, and the buyer and seller are settled at the company's office, then the number of trading places should be determined by the number of employees involved in the sale.
In a letter dated March 29, 2006 No. 03-11-04/3/169, the Ministry of Finance of Russia considered the situation when a taxpayer rents trading places in the form of separate sections, fenced off with light structures, or in the form of counters for trade food products. In this case, the financiers recommended determining the number of trading places based on the number of separate sections for rent. And if the trading places behind the counters are equipped with scales for weighing products, then the number of trading places behind the counters should be determined by the number of scales placed on them.
In another letter dated 02.07.2007 No. 03-11-04/3/247, employees of the financial department indicated that taxpayers renting stationary trading places behind counters in the covered market building should determine the number of trading places on the basis of lease agreements. A similar conclusion is contained in the letter of the financial department dated 08/06/2010 No. 03-11-10/110.
Judges, in turn, pay attention to all factual circumstances. Thus, the Federal Antimonopoly Service of the West Siberian District, in its resolution No. F04-2192/2007 (33335-A75-19) dated April 12, 2007, indicated that a trading place is defined as a place used to complete purchase and sale transactions.
According to GOST R 51303-99 “Trade. Terms and definitions ”(approved by the Resolution of the State Standard of Russia dated 11.08.99 No. 242-st), a trading place in the implementation of retail trade should be understood as a specially equipped place for direct interaction between the seller and the buyer for the transfer of goods pursuant to a retail sale contract. Such a place is characterized by the presence of a certain spatial isolation and commercial equipment, as well as the possibility of direct contact between the seller and the buyer in the provision of trading services.
Thus, the arbitrators came to the conclusion that several trading places located next to each other can be used as one trading outlet. However, the conditions must be met: there are no internal partitions between them, there is a single assortment of goods, a common CCP, one counter and (or) a seller. Similar conclusions are contained in the resolutions of the Federal Antimonopoly Service of the Urals District of November 19, 2007 No. F09-9383 / 07-S3, the Federal Antimonopoly Service of the Volga District of April 5, 2007 No. A12-16770 / 06 and the Federal Antimonopoly Service of the North Caucasus District of January 16, 2007 No. F08-6177 / 2006- 2527A.
Therefore, taking into account the foregoing, we can conclude that the number of trading places for a “spoofer” should be determined based on a specific situation. However, the UTII taxpayer should be prepared to confirm his position with relevant documents. Since in the absence of any evidence of the number of trading places used, the judges may not support it (see, for example, the decision of the Federal Antimonopoly Service of the North-Western District of March 22, 2007 No. A56-34563 / 2006).
Example 4
LLC "Tea World", applying the taxation system in the form of UTII, carries out retail trade in various types of tea through retail outlets in the form of counters located in several stores in the Moscow region. The number of counters - 5 pieces, each area is 4.9 square meters. m. Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.
The basic profitability for this type of retail trade is 9,000 rubles. per month. The physical indicator "number of trading places" is equal to 5. According to the decision of the Council of Deputies of the city of Kolomna dated October 13, 2005 No. 58-RS (as amended by decision No. 16-RS dated October 31, 2012), the value of K2 in relation to retail trade through objects of a non-stationary trading network, the area of the trading place in which does not exceed 5 square meters. m, is 0.8.
The amount of UTII payable to the budget following the results of the 4th quarter of 2014 will be:
9000 rub. × (5 pcs + 5 pcs + 5 pcs) × 1.672 × 0.8 × 15% = RUB 27,086.40
In whole units - 27,086 rubles.
The organization also has the right to reduce this amount of UTII by paid insurance premiums and temporary disability benefits paid to employees, but not more than 50%.
To all appearances, no one is going to "eliminate the sane as a class" in the near future. So, the questions concerning are still relevant.
Many of the scammers are engaged in retail trade. And a single tax is calculated based on such physical indicators as a trading place or the area of a trading place (Clause 3, Article 346.29 of the Tax Code of the Russian Federation). But it is not always easy for an accountant to determine what status a trading facility has and, accordingly, what physical indicator should be used for calculation. Let's try to be clear.
For reference
If trade is conducted through an object of a stationary trading network, which has a trading floor with an area of \u200b\u200bno more than 150 sq. m, then UTII is calculated based on the physical indicator " sales floor area". If there is no trading floor, then you need to use either the indicator " trading place", if its area does not exceed 5 sq. m, or " sales area", if its area exceeds 5 sq. m.
Is the appointment of premises for "imputed" trade important?
First you need to figure out where in general you can organize the sale of goods at retail in order to calmly apply UTII.
Retail trade is transferred to imputation if it is conducted through objects of a stationary trading network(Subparagraphs 6, 7, paragraph 2 of article 346.26 of the Tax Code of the Russian Federation). These, in turn, include buildings (buildings, premises, etc.), intended or used for trading activities(Article 346.27 of the Tax Code of the Russian Federation). The purpose of the premises is indicated in title and / or inventory documents. These include a contract of sale or lease, technical passport, plans, diagrams, explications.
It would seem that the words used for trading activities" allow the imputation to be applied when trading in any objects, even those that are not trading in their purpose. For example, in a room located in a warehouse or in an industrial zone. And the Ministry of Finance in one of the Letters indicated that the purpose of the premises must be determined not only by documents , but also in fact: how it is actually used (Letter of the Ministry of Finance of Russia dated April 30, 2009 N 03-11-06 / 3/113). However, in their later explanation, the financiers made it clear that the sale of goods in the office is not translated into UTII (Letter of the Ministry of Finance of Russia dated January 23, 2012 N 03-11-06 / 3/2).
There are also two Resolutions of the Supreme Arbitration Court of the Russian Federation, in which the court found it unlawful to apply the imputation due to the fact that the goods were sold in premises that were not intended for this: in the first case - in an administrative office building, in the second - in the premises production shop(Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 1, 2011 N 3312/11, dated February 15, 2011 N 12364/10).
Output
Such an argument as "inconsistency in the purpose of the premises" is not often used in the courts by the tax authorities. And if they refer to him, then, as a rule, he is not the first in the list of claims. But it is absolutely safe to use imputation only when selling goods in designated places.
How to determine the area of the trading floor
In most of the letters, the regulatory authorities, citing the Tax Code, say that the area of the trading floor is determined according to inventory and title documents(Letters of the Ministry of Finance of Russia dated November 15, 2011 N 03-11-11 / 284, dated September 26, 2011 N 03-11-11 / 243). By the way, the situation is similar with the area of the trading place (Letter of the Ministry of Finance of Russia dated 12/15/2009 N 03-11-06/3/289).
Often, disputes between tax authorities and entrepreneurs arise due to the fact that the documents indicate one area of the hall, and another, usually smaller, is used for retail trade. According to the courts, the "imputed" tax should be calculated on the basis of the area actually used in the "imputed" activity, and not declared in the documents (Resolutions of the FAS ZSO dated May 26, 2010 in case N A75-512 / 2009; FAS UO dated April 19, 2010 N Ф09-2486/10-С3). But this also needs to be proven. In the absence of partitions, testimonies, photographs or other evidence confirming that only part of the area was used for trade, the courts take the side of the tax authorities (Resolutions of the FAS PO of 10/14/2010 in case N A72-16399 / 2009; FAS DVO of 07/15/2011 N Ф03-2543/2011).
Advice
If you rent a room, but use only part of it for trade, ensure that everything is clearly stated in the lease agreement regarding the area that you occupy.
If you lease (sublease) some part of the trading floor, you do not need to take into account its area when calculating the "imputed" tax, including if changes have not been made to the inventory documents (Resolution of the Federal Antimonopoly Service of the Far East of January 13, 2011 N F03-9441 /2010) (which is basically impossible in the situation with sublease).
squares premises for receiving and storing goods, administrative and amenity premises etc. (we will conditionally call them auxiliary) are not taken into account when determining the area of the trading floor (Article 346.27 of the Tax Code of the Russian Federation). There will be fewer claims from inspectors if such premises are physically separated from the trading floor itself (Letter of the Ministry of Finance of Russia dated March 26, 2009 N 03-11-09 / 115). Once, the court upheld the sane, relying on a lease agreement, according to which the tenant installed easily removable partitions to separate the trading floor from storage facilities(Resolution of the FAS ZSO dated 10/18/2010 in case N A45-7149 / 2010).
We warn the head
If the purpose of the area used in trading activities has changed or the area of the trading floor has changed, on the basis of which the single tax is calculated, in order to avoid disputes with inspectors, it is better to reflect this in the inventory documents.
Showroom It can also be a trading floor if the goods are sold in it. This is a mandatory condition (especially in the light of the decisions of the Supreme Arbitration Court of the Russian Federation on the possibility of trading only in places designated for this). If different premises are allocated for the demonstration of goods, their payment and release, then the tax is calculated based on the sum of the areas of all these premises (Letter of the Ministry of Finance of Russia dated September 17, 2010 N 03-11-11 / 246). And, at least once, the court agreed with this approach (Resolution of the FAS VSO dated July 26, 2010 in case N A33-14088 / 2009).
It also happens that an entrepreneur (organization) immediately takes several rooms in one building and in all sells goods at retail. For example, an organization rents several separate retail facilities on different floors in a shopping center. Then you can easily calculate UTII for each room separately (Letters of the Ministry of Finance of Russia dated February 1, 2012 N 03-11-06 / 3/5, dated November 3, 2011 N 03-11-11 / 274; Federal Tax Service of Russia dated July 2, 2010 N ШС-37-3/ [email protected]).
But for trade, one room can also be used, simply divided into several departments, for example, by the type of goods sold. Sometimes they do this because different groups goods in the regions, different K2 coefficients are established (Clause 7, Article 346.29 of the Tax Code of the Russian Federation). And sometimes this becomes the only chance for the sane person not to "fly off" from UTII. After all, there is a limitation on the area of the trading floor of 150 square meters. m. How in this case to calculate the "imputed" tax?
Regulatory authorities argue as follows: if the premises are located in the same building and, according to the documents, belong to the same store, then the areas must be summarized (Letter of the Ministry of Finance of Russia dated 02/01/2012 N 03-11-06 / 3/5). At the same time, the belonging of the premises to one object or to different ones is established, of course, according to the inventory documents for the premises (Letter of the Ministry of Finance of Russia dated 03.11.2011 N 03-11-11 / 274).
For the courts, the information indicated in them is not absolute truth. They pay attention to the isolation of the premises (Resolution of the FAS MO dated 08.06.2011 N KA-A41 / 5949-11), to the presence in each store of its own CCP, its own auxiliary premises, its own staff of employees, separate accounting for income, the range of goods sold, targeted the appointment of each part of the premises (Resolutions of the FAS PO dated 09/26/2011 in case N A55-426 / 2011; FAS SKO dated 06/01/2011 in case N A53-16868 / 2010).
In general, whatever your motives for dividing the total area into several parts, it is better to physically separate the rooms from each other, for example, with partitions.
Note
When conducting "imputed" trade and another type of activity in one room for which the general taxation regime or the simplified taxation system is applied, it is necessary to calculate the "imputed" tax from the entire area of \u200b\u200bsuch premises (Letters of the Ministry of Finance of Russia dated 03.29.2011 N 03-11-11 / 74 , dated 07.06.2010 N 03-11-11/158; Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02.11.2010 N 8617/10, dated 10.20.2009 N 9757/09).
How to determine the area of a trading place
The Tax Code does not say what the area of a trading place is and how it is determined. According to the Ministry of Finance, when calculating it, it is necessary to take into account not only the area on which the goods are directly sold, but also the area of auxiliary premises(Letters of the Ministry of Finance of Russia of December 26, 2011 N 03-11-11 / 320, of December 22, 2009 N 03-11-09 / 410). That is, if you rent a container, part of which you use to sell goods, and the other part is used as a warehouse, then you need to calculate the tax from the entire area of \u200b\u200bthe container (Letter of the Ministry of Finance of Russia of December 22, 2009 N 03-11-09 / 410).
Last year, this issue was considered by the Supreme Arbitration Court of the Russian Federation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 N 417/11). The court said about the area of the trading place that it is determined taking into account all the premises that are used for the acceptance and storage of goods. And since then, there has been no more discord in the courts (Resolution of the FAS SKO dated August 31, 2011 in case N A53-22636 / 2010; FAS VVO dated September 28, 2011 in case N A29-1419 / 2011).
But when renting a land plot, where goods are sold through a small kiosk with an area of more than 5 square meters. m, according to the explanations of the Federal Tax Service, it is necessary to calculate UTII only from the area of \u200b\u200bthe kiosk (Letter of the Federal Tax Service of Russia dated 06.25.2009 N ShS-22-3 / [email protected]).
Output
It turns out that in some situations it is more profitable for entrepreneurs to insist that they operate in a room with a trading floor. After all, then they will be able to pay tax on a smaller area.
Trading floor or trading place?
This is perhaps the most frequent and most difficult question, as evidenced by the abundance of judicial practice.
When can we talk about the presence of a trading floor? When there is a certain place in the room for buyers, where they can, moving from one shelf with goods to another, get to know the goods more carefully. A trading place, of course, cannot have a hall. Usually it is a counter or a showcase from which the sale is carried out, and buyers can only stand near it and look at the displayed goods.
According to the Federal Tax Service, if the title, inventory documents for the premises do not indicate anywhere that this is a "shop" or "pavilion", or if some part of the premises is not clearly defined as a "trading floor", then such a premises is considered an object of a stationary trading network without trading floor (Letters of the Federal Tax Service of Russia dated 06.05.2010 N ShS-37-3 / [email protected], dated 27.07.2009 N 3-2-12/83).
Some courts even come to the conclusion that the list of objects that may have a trading floor is exhaustive, that is, it must be either a store or a pavilion (Resolution of the Federal Antimonopoly Service of the Moscow Region of August 14, 2009 N KA-A41 / 6419-09). So, for example, in a former warehouse, the presence of a trading floor still needs to be proven. And in a container-type pavilion, it is a priori, because it is a pavilion (Letter of the Ministry of Finance of Russia dated 03.12.2010 N 03-11-11 / 310).
For reference
Shop- a specially equipped building (part of it) intended for the sale of goods and the provision of services to customers and provided with trading, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale.
Pavilion- a building with a trading floor and designed for one or more jobs (Article 346.27 of the Tax Code of the Russian Federation).
In general, if your sales area does not exceed 5 sq. m, it makes no sense to argue about which physical indicator should be used when calculating the tax. After all, the basic profitability when selling goods on the trading floor will be a maximum of 9,000 rubles. (1800 rubles x 5 sq. m), and exactly the same amount is the basic profitability of a trading place (Clause 3, Article 346.29 of the Tax Code of the Russian Federation). And the hall is less than 5 square meters. m (when taxable income would be less) is difficult to imagine. The K2 coefficients adopted by the regional authorities (Items 4, 7 of Article 346.29 of the Tax Code of the Russian Federation) can make their own adjustments, but even taking them into account, the difference in the final tax amounts is likely to be small. If we are talking on an area of more than 5 sq. m, then the calculation must be carried out from the area of \u200b\u200bthe trading place or the area of \u200b\u200bthe trading floor, the profitability for which is set the same - 1800 rubles. per sq. m.
Output
If the trading place is large, then it is more profitable to equip it in such a way that you have a trading floor. After all, as we have already noted, when determining the area of the trading floor, the area of auxiliary premises is not taken into account. And for trading places - it is taken into account.
If there are auxiliary premises, the court may recognize the object of trade as a store (Resolution of the FAS SZO dated 15.01.2010 in case N A56-36135 / 2009), which means that there will be a trading floor in this object. But these should be adjacent premises, and not a separate hangar or a room in a neighboring building. A similar case was recently dealt with by the Supreme Arbitration Court of the Russian Federation. The court indicated that trade was conducted through an object with a trading floor, because:
- it was specified in the sublease agreement which part of the premises is used as a warehouse, and which part is used for selling goods;
- in accordance with the technical passport and explication, the room consisted of two parts;
- each part of the area was used for its intended purpose.
Consequently, the tax should have been calculated according to the area of the trading floor, and not according to the area of the trading place (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 14.06.2011 N 417/11).
And the court decisions issued after the release of this Decree indicate that it has already been adopted by the courts (Decrees of the FAS VVO dated December 26, 2011 in case N A79-2716 / 2010; FAS ZSO dated November 22, 2011 in case N A45-3709 /2011).
Despite a fair amount judgments regarding trading floors and trading places, there are still many questions regarding the calculation of the single tax. The vague wording of the Tax Code will most likely bring more than one taxpayer to court. But if your trading facility has auxiliary premises, then it is probably more profitable for you to organize trade in such a way that you also have a trading floor. Then you can pay less UTII.
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