Certificate 2-NDFL is recognized as a universal document because:
- on the one hand, this is a form of reporting to the tax authorities;
- on the other hand, it is included in the package of documents required by an individual to submit at the request of various institutions to justify income.
How to get a 2-NDFL certificate? Legal entities independently fill out and print it at the request of an individual. If a personal income tax certificate is needed by a student of a higher educational institution, it is obtained from the dean’s office, and the working person receives it from the employer.
For information on where else to request the specified paper, read the material “Where can I get (get) a 2-NDFL certificate?” .
Where can you need help? To any authority where information about income is required. For example, when applying for a loan from a credit company, a 2-NDFL certificate must be submitted along with the loan application, in which the bank can see the solvency of the future debtor.
Read more in the materials:
- « Certificate 2-NDFL in bank form ;
- “Checking by banks of the 2-NDFL certificate for a loan.
Sometimes a company requests an application from an employee addressed to the manager with a 2-NDFL certificate attached. For example, such a situation may arise when a citizen starts a new job.
How to request this form and what you need to pay attention to when preparing it is described in the material “Sample application for issuing a 2-NDFL certificate” .
If an organization refuses to issue a personal income tax certificate, we recommend that you read the publication “The procedure for issuing a 2-NDFL certificate to an employee” .
And about what data employers use to form 2-NDFL certificates, read the material « How to prepare reports and calculate personal income tax for the year? » .
Where to download the 2-NDFL certificate form 2018-2019 for free
Any employer should take note that when preparing a 2-NDFL certificate, the main thing is not to make a mistake in choosing one form of document or another, since officials often update reporting forms. Another change occurred with the document for 2018, which is due in 2019. A new form of 2-NDFL certificate is used for it, or rather two new forms. One of them is intended for reporting to the Federal Tax Service, the second for issuance to an individual.
You can download both forms. And you will find comments from the Federal Tax Service on the use of new forms.
What the new form and sample of the 2-NDFL certificate for 2018-2019 look like
For 2018, personal income tax certificates are issued on the form approved. by order of the Federal Tax Service of Russia dated October 2, 2018 No. ММВ-7-11/566@. You can download this 2-NDFL form on our website by clicking on the link .
It is often difficult to select the right form to reflect adjustments to the 2-NDFL certificate previously submitted to the Federal Tax Service.
If for some reason you need to make clarifications to the personal income tax certificate for the previous year, then the adjustments are made to 2-NDFL on the form that was valid in the tax period for which the information is submitted. This is stated in the material “For clarification, 2-NDFL - previous form” .
You can find the form and sample 2-NDFL for 2017, and for 2015-2016.
Certificate 2-NDFL is issued using:
- specialized software;
The material is devoted to this in more detail “How to correctly make a 2-NDFL certificate” .
- online services.
The help contains information:
- about the employer;
- individuals;
- income paid ( Read more about income codes for them in this material );
- the amount of deductions;
- calculated and withheld or non-withheld personal income tax.
We advise you to study our publication “Tax deduction codes for personal income tax - table for 2018-2019” .
The composition of the 2-NDFL certificate and its sample are presented in more detail in the article “Certificate on form 2-NDFL for the year - sample filling” .
An important column in the 2-NDFL certificate is the “Sign” column, which determines whether deduction was made or not.
Read about the types and interpretation of symbols in the specified column in the material “We fill in the taxpayer’s attribute in the 2-NDFL certificate” .
For information about the income of employed persons, employers do not need to send a personal income tax certificate to the tax office, read here material .
The completed and printed certificate requires the approval of responsible employees of the enterprise.
Read about who performs this duty in the article. “Who has the right to sign a 2-NDFL certificate?” .
You can also read the comments on filling out personal income tax certificates prepared for individual entrepreneurs.
Details are in the material “Features of the 2-NDFL certificate for individual entrepreneurs” .
To submit a report for 2018, you can download the 2-NDFL certificate on our website using the link.
To which tax inspectorate is the 2-NDFL form submitted if the taxpayer has changed his legal address?
You will find the answer to this question in the note “How to submit personal income tax reporting when changing address” .
Currently, there are 2 ways to submit a personal income tax certificate to the Federal Tax Service:
- on paper;
- in electronic form via TKS.
You will learn about the deadlines set for submitting certificates from the publications:
Read about the penalties provided for by law in the article. “What is the responsibility for failure to submit 2-NDFL?” .
So, the 2-NDFL certificate is currently very popular, and primarily because this document can provide an assessment of the financial condition of an individual. Want to stay up to date on legislative developments related to this report? Follow the news in our section
A. K. Popov, expert of the magazine “Remuneration: Accounting and Taxation”
Notifying the tax authority about the impossibility of withholding the calculated amount of personal income tax is one of the responsibilities of the employer as a tax agent for personal income tax. Our expert will tell you how to fulfill this duty and what are the consequences of ignoring it.
Tax agent for personal income tax and his duties
According to tax legislation, personal income tax agents are Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation from which or as a result of relations with which the taxpayer received income.One of the duties of tax agents provided for clause 5 art. 226 Tax Code of the Russian Federation, is a written message to the taxpayer and the tax authority about the impossibility of withholding tax. As noted in Letter of the Federal Tax Service of the Russian Federation dated August 22, 2014 No. SA-4-7/16692, the impossibility of withholding tax arises, for example, in the case of payment of income in kind or the occurrence of income in the form of material benefits.
This duty should not be confused with the duty provided for clause 2 art. 230 Tax Code of the Russian Federation, namely with the obligation to submit to the tax authority at the place of their registration information about the income of individuals of the expired tax period and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation for this tax period.
A notification about the impossibility of withholding tax is submitted no later than one month from the end of the tax period, that is, for income paid in 2014, no later than 01/31/2015. However, 01/31/2015 falls on a day off - Saturday, therefore, in accordance with clause 7 art. 6.1 Tax Code of the Russian Federation The expiration date is considered to be the next working day following it, that is, 02/02/2015.
Information in accordance with clause 2 art. 230 Tax Code of the Russian Federation are submitted no later than April 1 of the year following the expired tax period, that is, for income paid in 2014 - no later than 04/01/2015.
Form for reporting the impossibility of withholding personal income tax
IN paragraph 5 art. 226 Tax Code of the Russian Federation it is said that the form of notification of the impossibility of withholding personal income tax and the amount of tax and the procedure for submitting it to the tax authority are approved by the federal executive body authorized for control and supervision in the field of taxes and fees. Clause 2 of the Order of the Federal Tax Service of the Russian Federation No. ММВ-7-3/611@ it was established that the message about the impossibility of withholding tax and the amount of tax in accordance with clause 5 art. 226 Tax Code of the Russian Federation submitted in the form approved clause 1 of this order, that is, in the same form in which information is submitted in accordance with clause 2 art. 230 Tax Code of the Russian Federation(Form 2-NDFL).
Fill out a message about the impossibility of withholding personal income tax
The procedure for filling out 2-NDFL certificates submitted in accordance with clause 5 art. 226 And clause 2 art. 230 Tax Code of the Russian Federation, varies. Here are the features you should know when filling out the 2-NDFL certificate in force clause 5 art. 226 Tax Code of the Russian Federation.
|
Help section 2-NDFL |
The procedure for filling in the case of submitting a certificate in accordance with clause 5 of Art. 226 Tax Code of the Russian Federation |
|
Field "Character" |
Enter the number 2 |
|
Section 3 “Income taxed at the rate of __%” |
When filling out a certificate with sign “2” in section. 3 indicates the amount of income from which tax is not withheld by the tax agent |
|
Section 5 “Total amounts of income and tax |
Clause 5.1 “Total amount of income” reflects the total amount of income based on the results of the tax period, excluding taxes. |
|
based on the results of the tax period at the rate of __%" |
gov deductions. This paragraph shows the total amount of income indicated in section. 3 certificates. When filling out a certificate with attribute “2” in clause 5.1, indicate the total amount of income from which tax was not withheld by the tax agent, reflected in section. 3 certificates. In clause 5.3 “Amount of tax calculated” the total amount of tax calculated at the rate specified in section. 3 certificates based on the results of the tax period. When filling out a certificate with attribute “2” in clause 5.3, the total amount of tax calculated but not withheld is indicated. The certificate with attribute “2” does not contain the following: – clause 5.4 “Amount of tax withheld”; – clause 5.5 “Tax amount transferred”; – clause 5.6 “Amount of tax excessively withheld by the tax agent.” Clause 5.7 “Amount of tax not withheld by the tax agent” indicates the calculated amount of tax that the tax agent did not withhold in the reporting (tax) period |
Example
For the period from January to May 2014, Vostok LLC paid its employee a salary in the amount of 75,000 rubles; from this income, 9,750 rubles were calculated, withheld and transferred to the personal income tax budget. In June 2014, the employee received income in kind in the amount of RUB 5,000. The organization calculated personal income tax on this income in the amount of 650 rubles, but did not withhold it. No deductions were provided to the employee. The employee had no other income in 2014.
What personal income tax reporting must an organization submit to the tax authority?
In the case under consideration, the organization must generate two 2-NDFL certificates for this employee: with attribute “1” (it must be submitted no later than 01.04.2015) and attribute “2” (the certificate must be submitted no later than 02.02.2015).
When filling out a certificate with sign “2” in section. 3 indicates the amount of income equal to 5,000 rubles, and in clause 5.3 of section. 5 of the certificate, the calculated amount of tax is entered - 650 rubles, in clause 5.7 of section. 5 reflects the amount of tax not withheld by the tax agent - 650 rubles.
When filling out a certificate with attribute “1” in section. 3 indicates the amount of income - 80,000 rubles, in paragraph 5.3 - 5.5 section. 5 of the certificate indicates the calculated amount of tax - 10,400 rubles, the withheld and transferred amount of tax - 9,750 rubles, and in clause 5.7 of section. 5, the amount of tax not withheld by the tax agent is entered, equal to 650 rubles.
Examples of filling out certificates are given on pages 37 – 38.
Message about the impossibility of withholding personal income tax and the accrual of penalties
IN Letter of the Federal Tax Service of the Russian Federation dated November 22, 2013 No. BS-4-11/20951the issue of the occurrence of financial consequences for the tax agent in the form of the accrual of penalties in the event that a message about the impossibility of withholding personal income tax is not submitted is considered.
Thus, specialists from the main tax department indicated that if the tax agent, in the prescribed manner and within the stipulated time frame, informed the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax in relation to a specific person and the amount of tax, then penalties are not charged to the tax agent.
If the tax agent has not lost the opportunity to withhold personal income tax from the employee’s income, and also has not notified the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax and the amount of tax, penalties may be charged to the tax agent in accordance with Art. 75 Tax Code of the Russian Federation in accordance with the established procedure, on the date of the decision based on the results of the on-site tax audit, the taxpayer must be sent a request to pay tax in accordance with clause 2 art. 70 Tax Code of the Russian Federation.
A similar position is presented in a later clarification of the department - in Letter dated 08/22/2014 No. SA-4-7/16692.
also in Letter no. SA-4-7/16692tax authorities noted that after the end of the tax period in which the tax agent pays income to an individual, and a written message from the tax agent to the taxpayer and the tax authority at the place of registration about the impossibility of withholding personal income tax, the obligation to pay tax is assigned to the individual, and the tax agent’s obligation to withhold the corresponding tax amounts are terminated.
After notification from the tax agent, the tax must be paid by the taxpayer himself when submitting a personal income tax return to the tax authority at his place of registration.
Responsibility for failure to submit a message about the impossibility of withholding personal income tax
Failure to provide information in Form 2-NDFL (regardless of the basis for sending it) is qualified as failure to provide the tax authority with information necessary for tax control, and according to clause 1 art. 126 Tax Code of the Russian Federation entails a fine of 200 rubles. for each document not submitted.
A more interesting issue in this case is liability for failure to provide information with sign “1” in the event that this information has already been submitted with sign “2” and there is no other information about the income of an individual. Taking into account the procedure for filling out the 2-NDFL certificate, in this case the data indicated in the certificates duplicate each other.
For a clearer understanding of the problem, we present the situation discussed in Letter of the Federal Tax Service for Moscow dated 03/07/2014 No. 20-15/021334 . An organization that is a tax agent for personal income tax and does not have the ability to withhold personal income tax from payments in favor of taxpayers, asked the question: is it necessary to submit 2-NDFL certificates with the “1” attribute if the organization has already submitted 2-certificates to the tax authority for these individuals? Personal income tax with sign “2” and there will be no new information in the certificates?
The capital's tax authorities responded: submission of a certificate with sign “2” does not relieve the tax agent from the obligation to submit a certificate with sign “1”.
It should be noted that in this matter tax specialists and financiersadamant. So, the Ministry of Finance in Letter dated December 29, 2011 No. 03‑04‑06/6-363 indicated that duties of a tax agent provided for in Art. 230 of the Tax Code of the Russian Federation are assigned to the organization regardless of the responsibilities established by Art. 226 Tax Code of the Russian Federation.
Thus, the organization’s fulfillment of the obligation to report the impossibility of withholding tax and the amount of tax in accordance with clause 5 of Art. 226 of the Tax Code of the Russian Federation does not relieve an organization from the obligation to provide information on the income of individuals of the expired tax period and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation in accordance with clause 2 of Art. 230 of the Tax Code of the Russian Federation, including if the organization does not pay the taxpayer other income subject to personal income tax .
Tax officials also adhere to this opinion in court. Thus, in response to statements from tax agents, tax officials give the following arguments:
– the norms of the Tax Code of the Russian Federation do not provide for the exemption of a tax agent from the obligation to provide information about the income of an individual in accordance with clause 2 art. 230 Tax Code of the Russian Federation in the presence of a message sent on the basis clause 5 art. 226 Tax Code of the Russian Federation, since these rules presuppose two different grounds for control exercised by the tax authority ( Resolution of the Federal Antimonopoly Service of Ukraine dated September 10, 2014 No. F09-5625/14);
– tax agent, presenting in order clause 5 art. 226 Tax Code of the Russian Federation information about the impossibility of withholding tax amounts, did not fulfill the stipulated clause 2 art. 230 Tax Code of the Russian Federation the obligation to submit to the tax authority information about the income of the same individuals and the amounts of accrued, withheld and transferred taxes on this income (certificate 2-NDFL with sign “1”), and therefore the inspectorate was not able to carry out tax control measures when lack of complete information on the amounts of income received by individuals in the corresponding tax period ( Resolution of the Federal Antimonopoly Service of Ukraine dated May 23, 2014 No. F09-2820/14(Further - Resolution No. F09-2820/14));
– The deadlines for submitting 2-NDFL certificates with features “1” and “2” differ ( Resolution No. F09-2820/14);
– The duties of the tax agent to submit these certificates are enshrined in various norms of the Tax Code of the Russian Federation ( Resolution No. F09-2820/14);
– Current legislation does not provide for the exemption of a tax agent from the obligation to provide information on the income of an individual in accordance with clause 2 art. 230 Tax Code of the Russian Federation in the presence of a message sent on the basis clause 5 art. 226 Tax Code of the Russian Federation (Resolution No. F09-2820/14);
– elements of the offense provided for clause 1 art. 126 Tax Code of the Russian Federation, is formal ( Resolution No. F09-2820/14).
What do the judges say? How do they motivate their decisions? The good news for tax agents is that there is positive arbitration practice on this issue. At the same time, the judges indicate that the tax agent, having submitted to the inspectorate a 2-NDFL certificate with sign “2”, which also contained all the necessary information to be indicated in the 2-NDFL certificate with sign “1”, fulfilled the duties regulated clause 5 art. 226 And clause 2 art. 230 Tax Code of the Russian Federation, in connection with which they satisfy the requirements of tax agents and recognize the decisions of the inspectorate as invalid. The arbitrators came to these conclusions resolutions of the FAS VSO dated 04/09/2013 No. A19-16467/2012, FAS UO dated September 10, 2014 No. F09-5625/14, dated 05/23/2014 No. F09-2820/14, dated 09/24/2013 No. F09-9209/13. In addition, the judges note that this interpretation of the provisions clause 5 art. 226, clause 2 art. 230, Art. 126 Tax Code of the Russian Federation also consistent with the requirements clause 7 art. 3 Tax Code of the Russian Federation, according to which all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees).
* * *
If in relation to any income paid to an individual in 2014, the employer does not have the opportunity to withhold personal income tax, he, acting as a tax agent, is obliged to report this fact to the tax office. The message is drawn up in the form of a certificate in form 2-NDFL and submitted to the tax office no later than 02/02/2015. Ignoring this obligation enshrined clause 5 art. 226 Tax Code of the Russian Federation, entails various sanctions for the tax agent: starting with the accrual of penalties and ending with the accrual of a fine in accordance with clause 1 art. 126 Tax Code of the Russian Federation. According to the Ministry of Finance and the Federal Tax Service, the fulfillment of this obligation does not relieve the obligation to provide information in relation to the same individuals in accordance with clause 2 art. 230 Tax Code of the Russian Federation, even if the individual has no other income. However, the judges have a different opinion on this issue.
Order of the Federal Tax Service of the Russian Federation dated November 17, 2010 No. ММВ-7-3/611@ “On approval of the form of information on the income of individuals and recommendations for filling it out, the format of information on the income of individuals in electronic form, reference books.”
Certificate 2-NDFL for 2016 with sign 2 or a message about the impossibility of withholding personal income tax must be submitted no later than March 1. Certificate 2-NDFL has changed. For the form and sample filling, see the article.
When to inform inspectors about the impossibility of withholding personal income tax for 2016
The organization is obliged to withhold personal income tax from payments to individuals for whom it is a tax agent (clauses 1, 2 of Article 226, Article 226.1 of the Tax Code of the Russian Federation). But this is not always possible. For example, if a company gives a non-monetary gift to a third party, it has nothing to withhold tax from. In this case, the income paid, from which the tax agent did not (cannot withhold) personal income tax, should be reported to the tax office. The deadline for submitting messages is no later than March 1 of the next year (clause 5 of Article 226 of the Tax Code of the Russian Federation).
In addition to the tax inspectorate, the taxpayer who received the income is also notified of the impossibility of withholding personal income tax (letter from the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337, Federal Tax Service of Russia dated October 19, 2015 No. BS-4-11/18217 ).
Important!
A special procedure is provided for reporting the impossibility of withholding personal income tax on transactions with securities. The deadline for filing such messages depends on what happened first:
- a month has passed since the end of the tax period in which the tax was not withheld;
- The last agreement between the person and the tax agent, within the framework of which personal income tax was calculated, has expired.
In the first case, the message must be sent to the tax office before March 1 of the next year. In the second, the inspection must be notified within a month from the date of expiration of the agreement under which personal income tax was accrued (clause 14 of Article 226.1 of the Tax Code of the Russian Federation).
In what form should inspectors be informed about the impossibility of withholding personal income tax?
Messages about the impossibility of withholding tax are submitted in Form 2-NDFL (clause 2 of the order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11/485). In the “Attribute” field, enter the number 2. These messages must be transmitted in the same order as information about paid income (clause 1 of the Procedure approved by Order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-7-3/576). The calculated tax amount is entered in line 5.3 “Calculated tax amount”. It is also transferred to line 5.7 “Amount of tax not withheld by the tax agent.” Income from which tax was not withheld is reflected in section 3 of the certificate.
After the tax agent has notified the tax office and the taxpayer of the impossibility of withholding personal income tax, he must not withhold the missing amount of tax. Even if he later has such an opportunity. If the notification is submitted on time, then penalties for the amount of unwithheld personal income tax are not charged to the tax agent. A person will have to pay off the debt independently on the basis of a tax notice that the inspectorate will send to him. The tax payment deadline is no later than December 1 of the year following the one in which the income was received.
How 2-NDFL certificates have changed (sign 2)
No later than March 1, 2017, you must send 2-NDFL certificates to the inspectorate and employees about the impossibility of withholding tax for 2016. See how to fill them out. Read how these certificates differ from ordinary ones.
Tax. In 2-NDFL certificates, which the company submits no later than March 1, it is necessary to show only the tax not withheld from the employee (clause 5 of Article 226 of the Tax Code of the Russian Federation). This often happens to dismissed employees whose personal income tax has been recalculated or their debt has been written off. In regular 2-NDFL certificates, the company reflects all tax calculated, withheld and transferred in 2016 (clause 2 of Article 230 of the Tax Code of the Russian Federation).
Term. A certificate of unwithheld tax must be submitted before March 1, 2017 inclusive. And regular certificates - no later than April 3, 2017. The law specifies the deadline of April 1, but in 2017 this is a day off. Therefore, the deadline is postponed to the next working day.
Sign. If personal income tax cannot be withheld, put item 2 in the 2-NDFL certificate (section II of the Procedure, approved by order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11/485). In regular certificates, indicate sign 1.
Format. Certificate 2-NDFL about the impossibility of withholding tax can be sent electronically. But there is no such requirement in the Tax Code of the Russian Federation. Therefore, you can submit it on paper (letter of the Federal Tax Service of Russia dated April 18, 2011 No. KE-4-3/6132). Submit regular 2-personal income tax forms electronically if you paid income to 25 employees or more.
Recipients.A certificate with sign 2 must be submitted to the tax office and handed over to the debtor. After this, there is no need to withhold the missing tax amount. Even if such an opportunity arises. The Federal Tax Service will send a notification to the individual, on the basis of which he will pay the tax himself before December 1 (clause 6 of article 228 N To the Russian Federation ). Regular 2-NDFL certificates must be submitted only to the tax office. And they are issued to employees only upon application (clause 3 of article 23 0 Tax Code of the Russian Federation).
Sample of filling out certificate 2-NDFL with sign 2 in 2017
Carefully!
The fine for each failed 2-NDFL certificate is 200 rubles. And for mistakes in it - 500 rubles.
What income codes should be reflected in 2-NDFL?
In certificates for 2016, reflect the new income codes. We have listed them in the table:
|
Name of income |
|
|---|---|
|
Dividends |
|
|
Interest, including discount, received on a debt obligation of any type, with the exception of: |
|
|
Income of the founders of the trust management of mortgage coverage received on the basis of the acquisition of mortgage participation certificates issued by the mortgage coverage manager before January 1, 2007. |
|
|
Other insurance payments under insurance contracts |
|
|
Insurance payments under insurance contracts in the form of payment for the cost of health resort vouchers |
|
|
Income in the form of excess amounts of insurance payments over the amounts of insurance premiums multiplied by the average annual refinancing rate of the Bank of Russia for each year, under a voluntary life insurance agreement, except for voluntary pension insurance agreements (subclause 2, clause 1, article 213 of the Tax Code of the Russian Federation) |
|
|
Income in the form of insurance payments under voluntary property insurance contracts (including civil liability insurance) exceeding the market value of the insured property or the cost of its repair, taking into account the paid insurance premiums (Clause 4 of Article 213 of the Tax Code of the Russian Federation) |
|
|
Insurance premiums under insurance contracts that are paid for individuals from their own funds: |
|
|
Income in the form of cash (redemption) amounts paid under insurance contracts (except for voluntary pension insurance contracts), in case of early termination of insurance contracts in terms of excess of the amounts of insurance premiums paid by the taxpayer |
|
|
Income in the form of cash (redemption) amounts paid upon termination of a voluntary pension insurance contract, reduced by the amount of insurance premiums paid by the taxpayer, in respect of which the social tax deduction provided for in subparagraph 4 of paragraph 1 of Article 219 of the Tax Code of the Russian Federation was not provided |
|
|
Income in the form of cash (redemption) amounts paid upon termination of a non-state pension agreement |
|
|
Amounts of insurance contributions in respect of which the payer was provided with a social tax deduction provided for in subparagraph 4 of paragraph 1 of Article 219 of the Tax Code of the Russian Federation (upon termination of the voluntary pension insurance agreement) |
|
|
Amounts of insurance contributions in respect of which the payer was provided with a social tax deduction provided for in subparagraph 4 of paragraph 1 of Article 219 of the Tax Code of the Russian Federation (upon termination of the non-state pension agreement) |
|
|
Pensions paid under non-state pension agreements and concluded: |
|
|
Income received from the rental or other use of property (except for similar income from the rental of any vehicles and communications equipment, computer networks) |
|
|
Income received from transactions with securities traded on the organized securities market |
|
|
Income from transactions with securities not traded on the organized securities market |
|
|
Traded on the organized market and |
|
|
Income from transactions with derivative financial instruments not traded on an organized market |
|
|
securities, stock indices or other derivative financial instruments, the underlying asset of which is securities or stock indices |
|
|
Income received from transactions with securities not traded on the organized securities market, which at the time of their acquisition met the requirements for traded securities |
|
|
Income in the form of interest on a loan received from a set of repo transactions |
|
|
Income in the form of interest received in the tax period under a set of loan agreements |
|
|
Income from operations related to the opening of a short position that is the object of repo operations |
|
|
Income received from the sale of shares in the authorized capital of the organization |
|
|
Income received as a result of the exchange of securities transferred under the first part of the repo |
|
|
Income in the form of the actual value of a share in the authorized capital, paid when a participant leaves the organization |
|
|
Income received from transactions with securities applying |
|
|
Income from transactions with securities, not applying on the organized securities market, accounted for on an individual investment account |
|
|
Income from transactions with derivative financial instruments, which apply on the organized market and whose underlying asset is securities, stock indices or other derivative financial instruments, the underlying asset of which is securities or stock indices accounted for in an individual investment account |
|
|
Income from transactions with derivative financial instruments, not applying on the organized securities market, accounted for on an individual investment account |
|
|
Income from transactions with derivative financial instruments, which apply on the organized market and the underlying asset of which is not securities, stock indices or other financial instruments of futures transactions, the underlying asset of which is securities or stock indices accounted for in an individual investment account |
|
|
Income received from transactions with securities not traded on the organized securities market, which at the time of their acquisition met the requirements for traded securities accounted for in an individual investment account |
|
|
Income received from the assignment of rights of claim under an agreement for participation in shared construction (an investment agreement for shared construction or under another agreement related to shared construction) |
|
|
Income in the form of interest on a loan received from a set of repo transactions accounted for in an individual investment account |
|
|
Income in the form of interest received in the tax period on a set of loan agreements accounted for in an individual investment account |
|
|
Income from operations related to the opening of a short position that is the object of repo transactions accounted for in an individual investment account |
|
|
Income received as a result of the exchange of securities transferred under the first part of the repo, accounted for in an individual investment account |
|
|
Remuneration for performing labor or other duties; In addition to payments under civil contracts |
|
|
Directors' remuneration and other similar payments received by members of the organization's governing body (board of directors or other similar body) |
|
|
Amounts of bonuses paid for production results and other similar indicators provided for by the laws of the Russian Federation, employment agreements (contracts) and (or) collective agreements (paid not at the expense of the organization’s profits, not at the expense of special-purpose funds or targeted revenues) |
|
|
Amounts of remuneration paid from the organization’s profits, special-purpose funds or targeted revenues |
|
|
Payments under civil contracts (except for royalties) |
|
|
Vacation pay |
|
|
Author's fees for the creation of works of sculpture, monumental and decorative painting, decorative and applied art, easel painting, theatrical and film set art and graphics, made in various techniques |
|
|
Royalties for the creation of musical works: |
|
|
Remuneration to the heirs (legal successors) of the authors of works of science, literature, art, as well as discoveries, inventions and industrial designs |
|
|
Temporary disability benefits |
|
|
Income from: |
|
|
Payment by organizations or individual entrepreneurs for goods (work, services) or property rights, including utilities, food, recreation, training for an individual |
|
|
Income in kind, in the form of full or partial payment for goods, work performed, services provided in the interests of an individual |
|
|
Payment in kind |
|
|
Material benefit received from savings on interest for the taxpayer’s use of borrowed (credit) funds received from organizations or individual entrepreneurs |
|
|
Material benefit received from the acquisition of goods (work, services) under civil contracts from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer |
|
|
Material benefit received from the acquisition of securities |
|
|
Material benefit received from the acquisition of derivative financial instruments |
|
|
Financial assistance (except for financial assistance specified in codes 2760, 2761 and 2762) |
|
|
Cost of gifts |
|
|
The cost of prizes in cash and in kind received at competitions and competitions that are held on the basis of decisions of the Government of the Russian Federation and other government bodies (local government) |
|
|
The cost of winnings and prizes received at competitions, games and other events for the purpose of advertising goods, works and services |
|
|
The value of prizes in cash and in kind received at competitions and competitions. Provided that these events are not carried out according to decisions of the Government of the Russian Federation and other government bodies (local government) and not for the purpose of advertising goods (works and services) |
|
|
Financial assistance provided by employers to their employees, as well as to their former employees who resigned due to retirement due to disability or age |
|
|
Financial assistance provided to disabled people by public organizations of disabled people |
|
|
Amounts of one-time financial assistance provided by employers to employees (parents, adoptive parents, guardians) upon the birth (adoption) of a child |
|
|
Reimbursement (payment) by employers for the cost of purchased medications prescribed by the attending physician to the following persons: |
|
|
Reimbursement of the cost of medications purchased by the taxpayer (payment for the taxpayer) prescribed by the attending physician, in other cases not falling under paragraph 28 of Article 217 of the Tax Code of the Russian Federation |
|
|
The amount of assistance (in cash and in kind), as well as the value of gifts received: |
|
|
Interest (discount) received upon payment of a bill presented for payment |
|
|
Income received from transactions with foreign currency |
|
|
Income in the form of winnings received from a bookmaker's office and betting |
|
|
Interest on bank deposits |
|
|
Income in the form of fees for the use of funds of members of a consumer credit cooperative (shareholders) Interest on the use by an agricultural credit consumer cooperative of funds raised in the form of loans from members of an agricultural credit consumer cooperative or associated members of an agricultural credit consumer cooperative (from January 1, 2011) |
|
|
Other income. For example: scholarships; compensation for delayed wages (in part exceeding the minimum amount) |
How to fill out certificate 2-NDFL with sign 2
Look at a sample certificate 2-NDFL about the impossibility of withholding personal income tax:
If you do not inform the Federal Tax Service about the impossibility of withholding personal income tax, inspectors may find out about this during an on-site inspection. Then they have the right to fine you 200 rubles for each unsubmitted certificate. (Article 126 of the Tax Code of the Russian Federation).
Is it necessary to submit information to the tax office about the impossibility of withholding personal income tax from the income of the individual from whom the car was purchased?
No no need.
It is required to submit information in Form 2-NDFL only if there is, in principle, an obligation to withhold personal income tax and it cannot be fulfilled. In the case under consideration, these obligations do not arise for the buyer. The personal income tax on income from the sale of a car must be paid by the individual seller himself.
The purchasing organization is not obliged to calculate, withhold, transfer personal income tax, much less report to the tax office about these amounts. Tax agent obligations do not arise when purchasing property from individuals. This directly follows from paragraphs 1 and 2 of Article 226, subparagraph 2 of paragraph 1 of Article 228 of the Tax Code of the Russian Federation.
Notifying the tax authority about the impossibility of withholding the calculated amount of personal income tax is one of the responsibilities of the employer as a tax agent for personal income tax. Our expert will tell you how to fulfill this duty and what are the consequences of ignoring it.
Tax agent for personal income tax and his duties
According to tax legislation, personal income tax agents are Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation from which or as a result of relations with which the taxpayer received income.One of the duties of tax agents provided for clause 5 art. 226 Tax Code of the Russian Federation, is a written message to the taxpayer and the tax authority about the impossibility of withholding tax. As noted in Letter of the Federal Tax Service of the Russian Federation dated August 22, 2014 No. SA-4-7/16692, the impossibility of withholding tax arises, for example, in the case of payment of income in kind or the occurrence of income in the form of material benefits.
This duty should not be confused with the duty provided for clause 2 art. 230 Tax Code of the Russian Federation, namely with the obligation to submit to the tax authority at the place of their registration information about the income of individuals of the expired tax period and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation for this tax period.
A notification about the impossibility of withholding tax is submitted no later than one month from the end of the tax period, that is, for income paid in 2014 - no later than 01/31/2015. However, 01/31/2015 falls on a day off - Saturday, therefore, in accordance with clause 7 art. 6.1 Tax Code of the Russian Federation The expiration date is considered to be the next working day following it, that is, 02/02/2015.
Information in accordance with clause 2 art. 230 Tax Code of the Russian Federation are submitted no later than April 1 of the year following the expired tax period, that is, for income paid in 2014 - no later than 04/01/2015.
Form for reporting the impossibility of withholding personal income tax
IN paragraph 5 art. 226 Tax Code of the Russian Federation it is said that the form of notification of the impossibility of withholding personal income tax and the amount of tax and the procedure for submitting it to the tax authority are approved by the federal executive body authorized for control and supervision in the field of taxes and fees. Clause 2 of the Order of the Federal Tax Service of the Russian Federation No. ММВ-7-3/611@ it was established that the message about the impossibility of withholding tax and the amount of tax in accordance with clause 5 art. 226 Tax Code of the Russian Federation submitted in the form approved clause 1 of this order, that is, in the same form in which information is submitted in accordance with clause 2 art. 230 Tax Code of the Russian Federation(Form 2-NDFL).Fill out a message about the impossibility of withholding personal income tax
The procedure for filling out 2-NDFL certificates submitted in accordance with clause 5 art. 226 And clause 2 art. 230 Tax Code of the Russian Federation, varies. Here are the features you should know when filling out the 2-NDFL certificate in force clause 5 art. 226 Tax Code of the Russian Federation.| Help section 2-NDFL | The procedure for filling in the case of submitting a certificate in accordance with clause 5 of Art. 226 Tax Code of the Russian Federation |
| Field "Character" | Enter the number 2 |
| Section 3 “Income taxed at the rate of __%” | When filling out a certificate with sign “2” in section. 3 indicates the amount of income from which tax is not withheld by the tax agent |
| Section 5 “Total amounts of income and tax | Clause 5.1 “Total amount of income” reflects the total amount of income based on the results of the tax period, excluding taxes. |
| based on the results of the tax period at the rate of __%" | gov deductions. This paragraph shows the total amount of income indicated in section. 3 certificates. When filling out a certificate with attribute “2” in clause 5.1, indicate the total amount of income from which tax was not withheld by the tax agent, reflected in section. 3 certificates. In clause 5.3 “Amount of tax calculated” the total amount of tax calculated at the rate specified in section. 3 certificates based on the results of the tax period. When filling out a certificate with attribute “2” in clause 5.3, the total amount of tax calculated but not withheld is indicated. The certificate with attribute “2” does not contain the following: clause 5.4 “Amount of tax withheld”; clause 5.5 “Tax amount transferred”; clause 5.6 “Amount of tax excessively withheld by the tax agent.” Clause 5.7 “Amount of tax not withheld by the tax agent” indicates the calculated amount of tax that the tax agent did not withhold in the reporting (tax) period |
Example
For the period from January to May 2014, Vostok LLC paid its employee a salary in the amount of 75,000 rubles; from this income, 9,750 rubles were calculated, withheld and transferred to the personal income tax budget. In June 2014, the employee received income in kind in the amount of RUB 5,000. The organization calculated personal income tax on this income in the amount of 650 rubles, but did not withhold it. No deductions were provided to the employee. The employee had no other income in 2014.
What personal income tax reporting must an organization submit to the tax authority?
In the case under consideration, the organization must generate two 2-NDFL certificates for this employee: with attribute “1” (it must be submitted no later than 01.04.2015) and attribute “2” (the certificate must be submitted no later than 02.02.2015).
When filling out a certificate with sign “2” in section. 3 indicates the amount of income equal to 5,000 rubles, and in clause 5.3 of section. 5 of the certificate, the calculated amount of tax is entered - 650 rubles, in clause 5.7 of section. 5 reflects the amount of tax not withheld by the tax agent - 650 rubles.
When filling out a certificate with attribute “1” in section. 3 indicates the amount of income - 80,000 rubles, in paragraph 5.3 - 5.5 section. 5 of the certificate indicates the calculated amount of tax - 10,400 rubles, the withheld and transferred amount of tax - 9,750 rubles, and in clause 5.7 of section. 5, the amount of tax not withheld by the tax agent is entered, equal to 650 rubles.
Examples of filling out certificates are given on pages 37 - 38.
Message about the impossibility of withholding personal income tax and the accrual of penalties
IN Letter of the Federal Tax Service of the Russian Federation dated November 22, 2013 No. BS-4-11/20951 the issue of the occurrence of financial consequences for the tax agent in the form of the accrual of penalties in the event that a message about the impossibility of withholding personal income tax is not submitted is considered.Thus, specialists from the main tax department indicated that if the tax agent, in the prescribed manner and within the stipulated time frame, informed the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax in relation to a specific person and the amount of tax, then penalties are not charged to the tax agent.
If the tax agent has not lost the opportunity to withhold personal income tax from the employee’s income, and also has not notified the taxpayer and the tax authority at the place of his registration in writing about the impossibility of withholding personal income tax and the amount of tax, penalties may be charged to the tax agent in accordance with Art. 75 Tax Code of the Russian Federation in accordance with the established procedure, on the date of the decision based on the results of the on-site tax audit, the taxpayer must be sent a request to pay tax in accordance with clause 2 art. 70 Tax Code of the Russian Federation.
A similar position is presented in a later clarification of the department - in Letter dated 08/22/2014 No. SA-4-7/16692.
also in Letter no. SA-4-7/16692 tax authorities noted that after the end of the tax period in which the tax agent pays income to an individual, and a written message from the tax agent to the taxpayer and the tax authority at the place of registration about the impossibility of withholding personal income tax, the obligation to pay tax is assigned to the individual, and the tax agent’s obligation to withhold the corresponding tax amounts are terminated.
After notification from the tax agent, the tax must be paid by the taxpayer himself when submitting a personal income tax return to the tax authority at his place of registration.
Responsibility for failure to submit a message about the impossibility of withholding personal income tax
Failure to provide information in Form 2-NDFL (regardless of the basis for sending it) is qualified as failure to provide the tax authority with information necessary for tax control, and according to clause 1 art. 126 Tax Code of the Russian Federation entails a fine of 200 rubles. for each document not submitted.A more interesting issue in this case is liability for failure to provide information with sign “1” in the event that this information has already been submitted with sign “2” and there is no other information about the income of an individual. Taking into account the procedure for filling out the 2-NDFL certificate, in this case the data indicated in the certificates duplicate each other.
For a clearer understanding of the problem, we present the situation discussed in Letter of the Federal Tax Service for Moscow dated 03/07/2014 No. 20-15/021334 . An organization that is a tax agent for personal income tax and does not have the ability to withhold personal income tax from payments in favor of taxpayers, asked the question: is it necessary to submit 2-NDFL certificates with the “1” attribute if the organization has already submitted 2-certificates to the tax authority for these individuals? Personal income tax with sign “2” and there will be no new information in the certificates?
The capital's tax authorities responded: submission of a certificate with sign “2” does not relieve the tax agent from the obligation to submit a certificate with sign “1”.
It should be noted that tax authorities and financiers are adamant on this issue. So, the Ministry of Finance in Letter dated December 29, 2011 No. 03‑04‑06/6-363 indicated that duties of a tax agent provided for in Art. 230 of the Tax Code of the Russian Federation are assigned to the organization regardless of the responsibilities established by Art. 226 Tax Code of the Russian Federation.
Thus, the organization’s fulfillment of the obligation to report the impossibility of withholding tax and the amount of tax in accordance with clause 5 of Art. 226 of the Tax Code of the Russian Federation does not relieve an organization from the obligation to provide information on the income of individuals of the expired tax period and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation in accordance with clause 2 of Art. 230 of the Tax Code of the Russian Federation, including if the organization does not pay the taxpayer other income subject to personal income tax.
Tax officials also adhere to this opinion in court. Thus, in response to statements from tax agents, tax officials give the following arguments:
- the norms of the Tax Code of the Russian Federation do not provide for the exemption of a tax agent from the obligation to provide information about the income of an individual in accordance with clause 2 art. 230 Tax Code of the Russian Federation clause 5 art. 226 Tax Code of the Russian Federation, since these rules presuppose two different grounds for control exercised by the tax authority ( Resolution of the Federal Antimonopoly Service of Ukraine dated September 10, 2014 No. F09-5625/14);
- tax agent, presenting in order clause 5 art. 226 Tax Code of the Russian Federation information about the impossibility of withholding tax amounts, did not fulfill the stipulated clause 2 art. 230 Tax Code of the Russian Federation the obligation to submit to the tax authority information about the income of the same individuals and the amounts of accrued, withheld and transferred taxes on this income (certificate 2-NDFL with sign “1”), and therefore the inspectorate was not able to carry out tax control measures when lack of complete information on the amounts of income received by individuals in the corresponding tax period ( Resolution of the Federal Antimonopoly Service of Ukraine dated May 23, 2014 No. F09-2820/14(Further - Resolution No. F09-2820/14));
- The deadlines for submitting 2-NDFL certificates with features “1” and “2” differ ( Resolution No. F09-2820/14);
- The duties of the tax agent to submit these certificates are enshrined in various norms of the Tax Code of the Russian Federation ( Resolution No. F09-2820/14);
- Current legislation does not provide for the exemption of a tax agent from the obligation to provide information on the income of an individual in accordance with clause 2 art. 230 Tax Code of the Russian Federation in the presence of a message sent on the basis clause 5 art. 226 Tax Code of the Russian Federation (Resolution No. F09-2820/14);
- elements of the offense provided for clause 1 art. 126 Tax Code of the Russian Federation, is formal ( Resolution No. F09-2820/14).
If in relation to any income paid to an individual in 2014, the employer does not have the opportunity to withhold personal income tax, he, acting as a tax agent, is obliged to report this fact to the tax office. The message is drawn up in the form of a certificate in form 2-NDFL and submitted to the tax office no later than 02/02/2015. Ignoring this obligation enshrined clause 5 art. 226 Tax Code of the Russian Federation, entails various sanctions for the tax agent: starting with the accrual of penalties and ending with the accrual of a fine in accordance with clause 1 art. 126 Tax Code of the Russian Federation. According to the Ministry of Finance and the Federal Tax Service, the fulfillment of this obligation does not relieve the obligation to provide information in relation to the same individuals in accordance with clause 2 art. 230 Tax Code of the Russian Federation, even if the individual has no other income. However, the judges have a different opinion on this issue.
The organization is obliged to withhold personal income tax from payments in respect of which it is tax agent (Clause 1 and 2 of Article 226, Article 226.1 of the Tax Code of the Russian Federation). However, the tax agent does not always have the opportunity to withhold personal income tax.
For example, the ability to withhold is limited if the employee received a material benefit, income in kind, or became non-resident(In this case, personal income tax must be recalculated at a rate of 30 percent). If the employee did not receive other income in cash or quit immediately after these events, the possibility of withholding personal income tax by the organization that is the source of income is completely excluded. This was stated in the letter of the Ministry of Finance of Russia dated March 19, 2007 No. 03-04-06-01/74. The same situation arises if income in kind was received by a person who is not an employee of the organization (for example, a buyer).
If, after paying income from which tax was not withheld, the employee receives other income in cash, the tax agent has the opportunity to withhold personal income tax that was not previously withheld. In this case, he is obliged to withhold tax from the entire amount of income, including from income paid earlier (letters of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337 and dated November 17, 2010 No. 03- 04-08/8-258, Federal Tax Service of Russia dated November 1, 2012 No. ED-4-3/18519). At the same time, the tax agent must take into account that he has no right to withhold personal income tax in the amount of more than 50 percent of the amount of payment in cash (paragraph 2, paragraph 4, article 226 of the Tax Code of the Russian Federation).
An example of how payment of bonuses in kind is reflected in accounting and taxation (personal income tax cannot be withheld)
In December 2015, the organization issued the economist A.S. Kondratiev Prize based on the results of work for the year. The bonus was issued on the basis of an order from the head of the organization. The employee was given a car as a bonus.
For December, the employee was accrued 630,000 rubles, of which:
- 30,000 rub. – salary payment;
- 600,000 rub. – a bonus given in kind.
Personal income tax calculated on the employee’s income for December was:
630,000 rub. × 13% = 81,900 rub.
Cash payments to the employee amounted to RUB 30,000. The organization’s accountant calculated the maximum amount of personal income tax that can be withheld from an employee’s income:
30,000 rub. × 50% = 15,000 rub.
The amount of tax not withheld amounted to RUB 66,900. (RUB 81,900 – RUB 15,000). The tax agent is obliged to notify about the impossibility of withholding personal income tax in 2015 no later than March 1, 2016 (clause 5 of Article 226 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated October 19, 2015 No. BS-4-11/18217). Within the prescribed period, the organization sent a corresponding message to the tax office and notified Kondratiev himself about this. On the same day, the organization’s accountant made a reversal entry in the accounting records for the accrual of personal income tax in the amount of 66,900 rubles. (RUB 81,900 – RUB 15,000).
Informing the tax office
The income paid, from which the tax agent did not (cannot withhold) personal income tax, should be reported to the tax office. The deadline for submitting reports is no later than March 1 after the end of the year in which the income was paid. This period also applies to reports of the impossibility of withholding personal income tax from income paid in 2015.
In addition to the tax office, the taxpayer who received the income must also be notified of the impossibility of withholding personal income tax.
This procedure follows from the provisions of paragraph 5 of Article 226 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337, Federal Tax Service of Russia dated October 19, 2015 No. BS-4-11/18217.
Attention: failure to inform the tax inspectorate about the impossibility of withholding personal income tax is an offense (Article 106 of the Tax Code of the Russian Federation, Article 2.1 of the Code of Administrative Offenses of the Russian Federation), for which tax and administrative liability is provided.
The fine will be:
- 200 rub. – for each case of failure to provide information (i.e. for each message that the tax agent should have sent to the inspectorate, but did not do so) under Article 126 of the Tax Code of the Russian Federation;
- from 300 to 500 rub. – in relation to officials of the organization, for example the manager (Article 15.6 of the Code of Administrative Offenses of the Russian Federation).
In addition, if during an on-site tax audit it is discovered that the organization did not report to the tax inspectorate about income from which personal income tax was not withheld, in addition to penalties, inspectors may charge penalties (letter of the Federal Tax Service of Russia dated November 22, 2013 No. BS- 4-11/20951).
Advice: The accrual of penalties in cases where an organization could not withhold personal income tax, but did not send the appropriate notification to the inspectorate, can be challenged in court.
If the tax agent was not able to withhold personal income tax, there are no grounds for charging penalties in principle. This conclusion is contained in the ruling of the Supreme Court of the Russian Federation dated March 19, 2015 No. 304-KG14-4815. This conclusion corresponds to paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57, according to which the accrual of penalties to the tax agent is possible if personal income tax was withheld but not transferred to the budget. The Federal Tax Service of Russia shares this position, but warns that penalties are not charged if the tax agent notified the inspectorate of the impossibility of withholding tax (letter dated August 22, 2014 No. SA-4-7/16692). In fact, penalties cannot be collected, even if the tax agent did not send such a notice. After all, penalties are a sanction for late payment of tax, and not for the fact that the tax agent did not fulfill his duty to inform the inspectorate (Clause 1 of Article 75 of the Tax Code of the Russian Federation). Consequently, penalties in this case should not be accrued - only liability under Article 126 of the Tax Code of the Russian Federation applies. Still, check out How to fill out a 2-NDFL certificate if tax is withheld but not transferred.
A special procedure is provided for filing reports about the impossibility of withholding personal income tax on transactions with securities. The deadline for filing such messages depends on what happened first:
– a month has passed since the end of the tax period in which no tax was withheld;
– the last agreement between a person and a tax agent, within the framework of which personal income tax was calculated, has expired.
In the first case, the message must be sent to the tax office before March 1 of the year following the expired tax period. In the second, the inspection must be notified within a month from the date of expiration of the agreement under which the personal income tax was accrued.
This is stated in paragraph 14 of Article 226.1 of the Tax Code of the Russian Federation.
Submit messages about the impossibility of withholding tax on forms using Form 2-NDFL (clause 2 of the order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11/485) indicating the number 2 in the “Sign” field. These messages must be transmitted to in the same manner as information on paid income (clause 1 of the Procedure approved by order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-7-3/576).
After the tax agent has notified the tax office and the taxpayer of the impossibility of withholding personal income tax, he must not withhold the missing amount of tax. Even if he later has such an opportunity. If the notification is submitted in a timely manner, then penalties for the amount of unwithheld personal income tax are not charged to the tax agent. The person will have to repay the debt on his own no later than July 15. This follows from the provisions of paragraph 4 of Article 228 of the Tax Code of the Russian Federation, paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 and is confirmed by letters of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337, dated November 17, 2010 No. 03-04-08/8-258, dated February 9, 2010 No. 03-04-06/10-12 and Federal Tax Service of Russia dated August 22, 2014 No. SA-4-7/16692.
Situation: Is an organization obliged to notify an employee of the need to pay personal income tax on his own if he has already been notified of the impossibility of withholding tax on his income?
No, I don't have to. But on its own initiative, the organization can provide such information to the employee.
The fact that the tax agent cannot withhold personal income tax from the income paid, he is obliged to notify the tax office and the taxpayer himself. Messages about the impossibility of withholding tax are submitted on forms in form 2-NDFL with the number 2 indicated in the “Sign” field. This is stated in paragraph 5 of Article 226 of the Tax Code of the Russian Federation.
There is no separate standard form for informing an employee about the impossibility of withholding personal income tax. Moreover, Article 226 of the Tax Code of the Russian Federation does not contain provisions that would oblige the organization to inform the employee in writing about the reasons for the impossibility of withholding personal income tax and his obligation to pay the tax himself. However, on a voluntary basis, an organization can transfer this information to an employee in the form of a message, notification or explanatory note to form 2-NDFL.
Situation: Is it necessary to re-submit Form 2-NDFL at the end of the year if the tax agent previously notified the inspectorate of the impossibility of withholding personal income tax from the income paid? No additional income was paid to the person during the year.
Yes need.
Submission of information about the impossibility of withholding personal income tax from a citizen during the year does not relieve the tax agent from the obligation to submit certificates in Form 2-NDFL at the end of the tax period (clause 2 of Article 230 of the Tax Code of the Russian Federation). Such clarifications are contained in letters of the Ministry of Finance of Russia dated December 29, 2011 No. 03-04-06/6-363, Federal Tax Service of Russia dated October 29, 2008 No. 3-5-04/652 and dated September 18, 2008 No. 3- 5-03/513. At the same time, the amounts of income and calculated tax (including non-withheld tax), which were previously reflected in certificate 2-NDFL with sign 2, are indicated in annual certificates with sign 1 (letter of the Ministry of Finance of Russia dated October 27, 2011 No. 03- 04-06/8-290).
Advice: There are grounds that exempt tax agents from re-submitting 2-NDFL certificates in relation to income from which it is impossible to withhold tax. They are as follows.
If the organization informed the tax inspectorate about a person’s income from which it is impossible to withhold tax, and if the organization did not pay any additional income to this person by the end of the year, there is no need to send a repeated 2-NDFL certificate to the inspectorate. The presence of different criteria for classifying the same income does not affect the composition of the information reflected in the initial certificate. Having submitted the 2-NDFL certificate with sign 2, the tax agent fulfilled the requirements established by paragraph 5 of Article 226 and paragraph 2 of Article 230 of the Tax Code of the Russian Federation. An organization should not duplicate the same information in the 2-NDFL certificate with attribute 1: repeated performance of the same duties is not provided for by tax legislation. Therefore, the penalties provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation should not be applied in the situation under consideration.
Most likely, the tax inspectorate will not agree with such an interpretation of the legislation. Then the tax agent will have to defend the refusal to re-submit reports about the impossibility of withholding personal income tax in court. In arbitration practice there are examples of court decisions confirming the legality of this approach (see, for example, decisions of the Arbitration Court of the Ural District dated September 8, 2015 No. F09-5794/15, FAS Ural District dated September 24, 2013 No. F09-9209/ 13).
An example of a notification to the tax office that an organization cannot withhold personal income tax from the income of employees who have become non-residents
Citizen of Moldova A.S. Kondratyev has been working in the organization under an employment contract since January 2014. In the period from January to July and from November to December 2014, Kondratiev lived in Russia.
The organization pays Kondratiev a monthly salary in the amount of 10,000 rubles.
From January to March 2015 (inclusive) the employee was on a business trip abroad.
For the period from January to June, Kondratyev received a salary in the amount of 60,000 rubles. Kondratyev did not receive any other income subject to personal income tax.
Kondratiev has no children, so he is not provided with standard tax deductions.
The amount of personal income tax withheld and transferred to the budget amounted to 7,800 rubles. (RUB 60,000 × 13%).
As of July 30, 2015, Kondratyev lost his tax resident status (during the previous 12 consecutive months, he was in Russia for less than 183 calendar days).
Due to the change in Kondratiev’s tax status, the accountant recalculated the previously calculated personal income tax at a rate of 30 percent.
In July, Kondratyev received a salary of 10,000 rubles.
The calculated amount of personal income tax to be withheld for July was:
(60,000 rub. + 10,000 rub.) × 30% – 7,800 rub. = 13,200 rub.
The withheld amount of tax cannot exceed 50 percent of the payment amount in cash (paragraph 2, paragraph 4, article 226 of the Tax Code of the Russian Federation). Therefore, the maximum amount of personal income tax that an organization can withhold from Kondratiev’s income for July 2015 is 5,000 rubles. (RUB 10,000 × 50%).
The amount of tax not withheld amounted to RUB 8,200. (RUB 13,200 – RUB 5,000). In accordance with paragraph 5 of Article 226 of the Tax Code of the Russian Federation, on March 1, 2016, the organization sent a message to the tax inspectorate about the impossibility of withholding tax from Kondratiev and notified Kondratiev himself about this.
Situation: Is it necessary to submit information to the tax office about the impossibility of withholding personal income tax from the income of the individual from whom the car was purchased??
No no need.
It is required to submit information in Form 2-NDFL only if there is, in principle, an obligation to withhold personal income tax and it cannot be fulfilled. In the case under consideration, these obligations do not arise for the buyer. The personal income tax on income from the sale of a car must be paid by the individual seller himself.
The purchasing organization is not obliged to calculate, withhold, transfer personal income tax, much less report to the tax office about these amounts. Tax agent obligations do not arise when purchasing property from individuals. This directly follows from paragraphs 1 and 2 of Article 226, subparagraph 2 of paragraph 1 of Article 228 of the Tax Code of the Russian Federation.
The following recommendations will help you figure out when you need to act as a tax agent:
- In what cases does a citizen have an obligation to calculate personal income tax? .
Situation: What to do with the amount of personal income tax that cannot be collected due to the death of an employee?
Do not notify the tax office about the impossibility of withholding personal income tax due to the death of an employee.
If personal income tax was not withheld from his income before the death of an employee, then after death there is no need to withhold it. The death of an employee leads to the termination of his obligations to pay personal income tax (clause 3 of article 44 of the Tax Code of the Russian Federation). When submitting information about an employee’s income for the year, it is advisable to indicate why personal income tax was not withheld. Such clarifications were given by the Russian Ministry of Finance in letter dated January 18, 2006 No. 03-05-01-04/4.
