Today, tax legislation obliges all taxpayers to transfer established fees within the period prescribed by law. Despite this, many employers have a question: is it possible to transfer salary payments earlier?
What does the law say?
So, before answering the question of whether it is possible to pay personal income tax before paying wages, you need to understand what personal income tax is, who should transfer it to the budget, and also what is the deadline for its transfer.
Personal income tax– a tax fee paid by payers recognized as residents of the Russian Federation in the amount of 13% of the amount of income they received for a certain period.
Such a fee is usually transferred by the employer after the employee’s wages are calculated.
In the case where a person is independently engaged in entrepreneurial activity, the obligation to transfer is assigned to him.
In accordance with the provisions of the Tax Code of the Russian Federation, personal income tax must be transferred no later than the date that follows the date of payment of funds. The law does not contain other provisions.
Is it possible to pay personal income tax before paying wages?
Returning to the question of whether it is possible to pay personal income tax before paying wages, the legislation clearly answers - No, transfer of a tax payment as a performance of the duty of a tax agent until the moment of accrual of funds is not allowed.
This position is reflected in the decision of the Federal Tax Service dated 05.05.16 No. SA-4-9/8116. In accordance with this regulatory document, the employer is obliged to perform the function of a tax agent only after wages have been accrued and an amount in the established amount can be withheld from it. Such funds cannot be transferred in advance (see). The Ministry of Finance adheres to the same position (letter dated September 16, 2014 No. 03-04-06/46268).
Consequences
What are the consequences of paying personal income tax before paying wages?
The transferred funds before the salary is calculated will not be counted by the tax service as fulfillment of the organization’s obligation. This means that after the transfer date, penalties will be applied to the organization.
Additionally, in order to return the funds, the organization will have to administratively contact the tax service with a request for a refund.
For one reason or another (due to an error, intentionally, due to a subsequent possible lack of funds in the current account), companies transfer personal income tax in a larger amount than they withheld from the employee. However, according to the regulatory authorities, it is impossible to reduce current personal income tax payments by the amount of such an overpayment.
In practice, a common situation is when, having transferred an excess amount of personal income tax (for example, due to a counting error), the company transfers a smaller amount in the next period, that is, it independently offsets the overpaid amount of personal income tax.
If this rule works for “ordinary” taxes, then the situation is different with regard to personal income tax. Many tax agents are faced with the fact that the tax office ignores overpayments and charges penalties and fines on the unpaid amount of personal income tax.
In order to understand the reason for additional personal income tax assessments in such a situation, let us turn to the definition of a tax agent.
Tax agent concept
The concept of tax agents is given in Article 24 of the Tax Code of the Russian Federation. Tax agents are persons who are entrusted with the responsibility for calculating, withholding from an individual and transferring taxes to the budget system of the Russian Federation. The functions of a tax agent include the correctness and timeliness of calculation and withholding of taxes from funds paid to taxpayers, as well as transfer to the appropriate accounts of the Federal Treasury. In terms of personal income tax, the fulfillment of the duty of a tax agent is to withhold the accrued amount of tax directly from the income of an individual upon their actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation). Failure to fulfill the duties of a tax agent entails the accrual of penalties and fines (Article 75, Article 123 of the Tax Code of the Russian Federation).When calculating personal income tax, the main role is played by the date of actual receipt of income. It is the date of actual receipt of income that determines the moment of deduction and transfer of personal income tax.
Date of actual receipt of income
Each type of income has its own date of actual receipt. For example, when receiving income in cash, the date of income is defined as the day the income is paid, including the transfer of income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties (clause 1 of Article 223 of the Tax Code of the Russian Federation).When receiving income in the form of wages, the date of actual receipt of income is the last day of the month for which the employee was accrued income (clause 2 of Article 223 of the Tax Code of the Russian Federation). That is, income in the form of wages arises for the employee only on the last day of the month (Letters of the Ministry of Finance of the Russian Federation dated October 27, 2015 No. 03-04-07/61550, dated July 22, 2015 No. 03-04-06/42063).
The accrued amount of personal income tax on temporary disability benefits and vacation payments must be transferred no later than the last day of the month in which they were paid (clause 6 of Article 226 of the Tax Code of the Russian Federation).
Tax agents are required to withhold the calculated amount of personal income tax directly from the employee’s income upon actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation).
In practice, many different situations arise when it is not clear at what point an employee’s income arises and, accordingly, the tax agent’s obligation to calculate, withhold and transfer the amount of personal income tax.
Explanations of the date of personal income tax withholding in difficult situations are discussed in Letter of the Ministry of Finance of the Russian Federation dated July 25, 2016 No. 03-04-06/43479. In the Letter, representatives of the financial department took into account the position given in the Ruling of the RF Armed Forces dated May 11, 2016 No. 309-KG16-1804.
EXAMPLE No. 1.
Salaries to company employees are paid twice a month:
- advance payment - on the last day of the current month;
- final payment is due on the 15th of the next month.
During the audit, tax inspectors recognized the company’s actions as unlawful, assessed penalties and fined the tax agent on the basis of Article 123 of the Tax Code of the Russian Federation.
The tax agent argued that when paying wages twice a month, the obligation to withhold and transfer personal income tax to the budget arises only once during the final calculation of the employee’s income based on the results of each month for which income was accrued to him.
However, senior judges did not find the tax agent's argument convincing. Since income (advance) to employees was paid on the last day of the month, the tax agent had an obligation to calculate and withhold personal income tax amounts in accordance with clause 2 of Article 223 of the Tax Code of the Russian Federation.
That is, in this example, the employer was obliged to withhold personal income tax both on the date of the advance payment and on the date of payment of the second part of the salary to the employee.
Transfer of personal income tax in a larger volume
Often, companies mistakenly or deliberately transfer personal income tax to the budget in a larger amount than is actually withheld from an individual. In this case, the purpose of payment indicates “Income tax for individuals”. Such actions often lead to tax disputes with tax authorities. And if previously the tax inspectorate could see the amount of personal income tax paid and accrued only after submitting a report on form 2-NDFL, which is submitted once a year, now tax officials see the payment of personal income tax quarterly using 6-NDFL certificates. How dangerous is “advance” personal income tax? How do tax authorities qualify such company actions?
Position of regulatory authorities
For a number of years, regulatory authorities believed that the listed “advance” personal income tax should be paid again (Letters of the Federal Tax Service of the Russian Federation dated September 29, 2014 No. BS-4-11/19714@, dated July 25, 2014 No. BS-4-11 /14507, Ministry of Finance of the Russian Federation dated September 16, 2014 No. 03-04-06/46268, dated September 1, 2014 No. 03-04-06/43711). The letter of the Federal Tax Service of the Russian Federation dated May 5, 2016 No. SA-4-9/81160 was no exception in this sense. The reason is that the amount of personal income tax withheld from the income of an individual is transferred to the budget, but personal income tax cannot be transferred at the expense of one’s own funds (clause 9 of Article 226 of the Tax Code of the Russian Federation).
Therefore, the amount paid ahead of time is not considered tax and, in order to fulfill the duties of a tax agent, personal income tax must be paid again (for example, when paying wages - no later than the day following the day of payment of income - clause 6 of Article 226 of the Tax Code of the Russian Federation). If this is not done, then with a high degree of probability, tax authorities will charge additional penalties and a fine in the amount of 20% of the unpaid amount of personal income tax (Article 123 of the Tax Code of the Russian Federation). The amount of tax transferred in excess (before the established deadline) cannot be offset, but can only be returned on the basis of an application submitted to the tax office.
Arbitration practice
Let us analyze court decisions regarding the legality of offsetting overpayments of personal income tax that arose in connection with the transfer of tax in a larger volume.It should be noted that today, judicial practice is in favor of the tax agent, despite the fact that regulatory authorities consistently refuse to allow companies to offset the excessively transferred tax against debt repayment.
The basis for refusal is that payment of tax at the expense of tax agents is not allowed (clause 9 of Article 226 of the Tax Code of the Russian Federation).
EXAMPLE No. 2.
For 2 years, the company transferred payments to the budget with the purpose of “Individual Income Tax” in a larger volume than was withheld from the individual, and therefore, an overpayment of personal income tax arose.
Subsequently, when paying income to an individual, the company withheld the calculated amount of personal income tax from his income, but did not transfer it to the budget, assuming the right to offset the overpaid tax.
However, during the audit, the tax authorities considered the company’s actions to be a tax offense under Article 123 of the Tax Code of the Russian Federation, which was expressed in the failure to transfer personal income tax amounts within the prescribed period, and the amounts paid in advance were qualified as tax paid at the expense of the tax agent’s own funds.
The courts of two instances supported the arguments of the tax inspectorate regarding the violation of the deadlines for transferring personal income tax to the budget.
The cassation court overturned the decisions of previous courts based on the following arguments.
As a general rule, the obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees (paragraph 2, paragraph 1, article 45 of the Tax Code of the Russian Federation). The taxpayer has the right to fulfill the obligation to pay tax ahead of schedule. At the same time, the rule on early payment of tax also applies to tax agents (clause 8 of Article 45 and clause 2 of Article 24 of the Tax Code of the Russian Federation).
The cassation judges analyzed the rules for tax offset established by Article 78 of the Tax Code of the Russian Federation. The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is carried out for the corresponding types of taxes and fees, as well as for penalties accrued on the corresponding taxes and fees.
The rules established by Article 78 of the Tax Code of the Russian Federation also apply to the offset or return of amounts of overpaid advance payments, fees, penalties and fines and apply to tax agents (Clause 14 of Article 78 of the Tax Code of the Russian Federation).
Thus, based on the analysis of the above rules, the tax agent has the right to offset the amount of overpaid taxes, which are federal, against upcoming payments, as well as repayment of arrears on personal income tax.
In this situation, the company transferred personal income tax in advance, as a tax agent, and subsequently, when paying income to the taxpayer, always withheld the calculated personal income tax from the taxpayer’s income.
As the court noted, payment of personal income tax at the expense of a tax agent will take place when personal income tax is paid by the tax agent not “for the taxpayer,” but “instead of the taxpayer,” that is, when paying income, personal income tax is calculated and transferred to the budget, but is not withheld by the tax agent from the income taxpayer.
And therefore, the early transfer by the personal income tax company of the offense established by Art. 123 of the Tax Code of the Russian Federation, does not form.
In addition, due to the legal position of the Constitutional Court of the Russian Federation, set out in the ruling dated 02/08/2007 No. 381-0-P, all guarantees of property rights apply to overpaid taxes.
In this tax dispute, the cassation court made an important conclusion for tax agents: under such conditions, the refusal to recognize personal income tax paid by the tax agent ahead of schedule creates artificial grounds for bringing the tax agent to tax liability, and the offset of these amounts as tax and recording by the tax authority the absence of arrears is an obstacle to bringing to tax liability (Resolution of the Moscow District Administration of July 28, 2016 No. A40-128534/2014).
In the Decisions of the Autonomous Okrug of the Yamalo-Nenets Autonomous Okrug dated May 25, 2016 No. A81-978/2016, the Autonomous Authority of the Kamchatka Territory dated June 15, 2015 No. A24-244/2015, and the Resolutions of the Autonomous District of the Volga-Vyatka District dated February 19, 2016 No. A38 -6347/2012, West Siberian District dated October 26, 2015 No. A27-1682/2015, East Siberian District dated June 10, 2015 No. A58-4233/20144, Ural District dated May 26, 2015 No. F09- 2467/15 and dated 02/06/2015 No. Ф09-10188/14, the tax inspector’s argument that the amount of personal income tax excessively transferred by the tax agent is not an overpaid tax payment was also rejected, since payment of tax at the expense of the tax agent is not allowed ( Clause 9 of Article 226 of the Tax Code of the Russian Federation).
It should be noted that in the database of arbitration cases there are court decisions that support the position of the tax authorities. For example, in the Resolution of the Arbitration Court of the North-Western District dated June 19, 2015 No. A56-41307/2014, the court agreed with the tax inspectorate’s arguments regarding holding a tax agent liable under Article 123 of the Tax Code of the Russian Federation due to the transfer of personal income tax to the budget before the payment of income to an individual face.
If a company has overpaid personal income tax, it should contact the tax office with an application for a tax refund. After all, according to the regulatory authorities, this amount cannot be offset against future personal income tax payments, but can only be returned. To do this, you must submit an application in free form (Letters of the Ministry of Finance of the Russian Federation dated November 12, 2014 No. 03-04-06/57158 and the Federal Tax Service of the Russian Federation dated July 4, 2011 No. ED-4-3/10764).
However, when returning the overpaid personal income tax to the current account, tax agents may also face difficulties. If tax registers are not provided (in particular, cards for accounts 68 and 70), the tax inspectorate has the right to refuse a tax refund and the courts support the inspection.
EXAMPLE No. 3.
The company mistakenly transferred personal income tax to the budget and applied to the tax office for a refund.
In the statement, the company noted that the specified amount of tax was not withheld from individuals. Only a copy of the payment order was attached to the refund application.
The tax office refused to refund the tax amount to the company, indicating that these documents were not enough. Without tax registers (cards were requested for accounts 68 “Calculations for taxes and fees” and 70 “Settlements with personnel for wages”) it is impossible to determine the amount of overpayment of tax.
When deciding in favor of the tax inspectorate, the judges proceeded from the following:
The fact of filing an application for the return to the current account of the amount erroneously transferred to the budget does not indicate the existence of grounds for the return of this amount automatically;
- the tax agent must document that personal income tax is transferred to the budget in excess of the amount of tax actually withheld from the income of individuals, is not related to the performance of the duty of a tax agent, and is transferred erroneously from one’s own funds;
In order for the tax authority to be able to determine the nature of the amount paid by the applicant, the company had to submit supporting documents (tax registers, account cards 68 “Calculations for taxes and fees”, 70 “Settlements with personnel for wages”), since in the absence of analytical accounting in account 70, it is not possible to draw a conclusion about the presence of an overpayment (non-payment) of personal income tax, as well as to qualify what caused the overpayment (non-payment) of personal income tax: at the expense of the tax agent’s own funds or due to incorrect calculation of personal income tax for the taxpayer;
The list of payment orders for payment of personal income tax in itself does not allow determining the presence of overpayment (non-payment) of personal income tax; in payment orders the amount of payment for the specified period is indicated without breakdown by specific individuals; The register of information on the income of individuals is reference general information.
And since the company did not provide evidence to confirm the overpayment of tax and did not attach a corresponding document indicating an erroneously excessive payment, the courts came to the conclusion that the tax authority had no grounds for returning the amount of money (Resolution of the AS of the West Siberian District dated October 30, 2015 No. A67-8760/2014).
conclusions
The safest option for a tax agent is to avoid overpaying personal income tax using your own funds.The most unsafe option, which will most likely lead to tax disputes, is to independently offset the overpaid personal income tax against future payments.
If, after all, the company overpaid personal income tax, then it is best to contact the tax office with an application for a refund. True, the tax agent must document the existence of an overpayment by submitting tax registers to the tax office.
Irina Starodubtseva, expert auditor, RosCo – Consulting and Audit company
For one reason or another (due to an error, intentionally, due to a subsequent possible lack of funds in the current account), companies transfer personal income tax in a larger amount than they withheld from the employee. However, according to the regulatory authorities, it is impossible to reduce current personal income tax payments by the amount of such an overpayment.
In practice, a common situation is when, having transferred an excess amount of personal income tax (for example, due to a counting error), the company transfers a smaller amount in the next period, that is, it independently offsets the overpaid amount of personal income tax.
If this rule works for “ordinary” taxes, then the situation is different with regard to personal income tax. Many tax agents are faced with the fact that they ignore overpayments and charge penalties and fines on the unpaid amount of personal income tax.
In order to understand the reason for additional personal income tax assessments in such a situation, let us turn to the definition of a tax agent.
Tax agent concept
The concept of tax agents is given in Article 24 of the Tax Code of the Russian Federation. Tax agents are persons who are entrusted with the responsibility for calculating, withholding from an individual and transferring taxes to the budget system of the Russian Federation. The functions of a tax agent include the correctness and timeliness of calculation and withholding of taxes from funds paid to taxpayers, as well as transfer to the appropriate accounts of the Federal Treasury.
In terms of personal income tax, the fulfillment of the duty of a tax agent is to withhold the accrued amount of tax directly from the income of an individual upon their actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation). Failure to fulfill the duties of a tax agent entails the accrual of penalties and fines (Article 75, Article 123 of the Tax Code of the Russian Federation).
When calculating personal income tax, the main role is played by the date of actual receipt of income. It is the date of actual receipt of income that determines the moment of deduction and transfer of personal income tax.
Date of actual receipt of income
Each type of income has its own date of actual receipt. For example, when receiving income in cash, the date of income is defined as the day the income is paid, including the transfer of income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties (clause 1 of Article 223 of the Tax Code of the Russian Federation).
When receiving income in the form of wages, the date of actual receipt of income is the last day of the month for which the employee was accrued income (clause 2 of Article 223 of the Tax Code of the Russian Federation). That is, income in the form of wages arises for the employee only on the last day of the month (Letters of the Ministry of Finance of the Russian Federation dated October 27, 2015 No. 03-04-07/61550, dated July 22, 2015 No. 03-04-06/42063).
The accrued amount of personal income tax on temporary disability benefits and vacation payments must be transferred no later than the last day of the month in which they were paid (clause 6 of Article 226 of the Tax Code of the Russian Federation).
Tax agents are required to withhold the calculated amount of personal income tax directly from the employee’s income upon actual payment (Clause 4 of Article 226 of the Tax Code of the Russian Federation).
In practice, many different situations arise when it is not clear at what point an employee’s income arises and, accordingly, the tax agent’s obligation to calculate, withhold and transfer the amount of personal income tax.
Explanations of the date of personal income tax withholding in difficult situations are discussed in Letter of the Ministry of Finance of the Russian Federation dated July 25, 2016 No. 03-04-06/43479. In the Letter, representatives of the financial department took into account the position given in the Ruling of the RF Armed Forces dated May 11, 2016 No. 309-KG16-1804.
Example No. 1
Salaries to company employees are paid twice a month:
Advance - on the last day of the current month;
Final payment is due on the 15th of the next month.
Believing that the amount of personal income tax was not withheld from the advance payment, the company paid personal income tax only at the time of final settlement with employees, that is, on the 15th of the next month.
During the audit, tax inspectors recognized the company’s actions as unlawful, assessed penalties and fined the tax agent on the basis of Article 123 of the Tax Code of the Russian Federation.
The tax agent argued that when paying wages twice a month, the obligation to withhold and transfer personal income tax to the budget arises only once during the final calculation of the employee’s income based on the results of each month for which income was accrued to him.
However, senior judges did not find the tax agent's argument convincing. Since income (advance) to employees was paid on the last day of the month, the tax agent had an obligation to calculate and withhold personal income tax amounts in accordance with clause 2 of Article 223 of the Tax Code of the Russian Federation.
That is, in this example, the employer was obliged to withhold personal income tax both on the date of the advance payment and on the date of payment of the second part of the salary to the employee.
Transfer of personal income tax in a larger volume
Often, companies mistakenly or deliberately transfer personal income tax to the budget in a larger amount than is actually withheld from an individual. In this case, the purpose of payment indicates “Income tax for individuals”. Such actions often lead to tax disputes with tax authorities. And if previously the tax inspectorate could see the amount of personal income tax paid and accrued only after submitting a report on form 2-NDFL, which is submitted once a year, now tax officials see the payment of personal income tax quarterly using 6-NDFL certificates.
How dangerous is “advance” personal income tax? How do tax authorities qualify such company actions?
Position of regulatory authorities
For a number of years, regulatory authorities believed that the listed “advance” personal income tax should be paid again (Letters of the Federal Tax Service of the Russian Federation dated September 29, 2014 No. BS-4-11/19714@, dated July 25, 2014 No. BS-4-11 /14507, Ministry of Finance of the Russian Federation dated September 16, 2014 No. 03-04-06/46268, dated September 1, 2014 No. 03-04-06/43711). The letter of the Federal Tax Service of the Russian Federation dated May 5, 2016 No. SA-4-9/81160 was no exception in this sense. The reason is that the amount of personal income tax withheld from the income of an individual is transferred to the budget, but personal income tax cannot be transferred at the expense of one’s own funds (clause 9 of Article 226 of the Tax Code of the Russian Federation).
Therefore, the amount paid ahead of time is not considered tax and, in order to fulfill the duties of a tax agent, personal income tax must be paid again (for example, when paying wages - no later than the day following the day of payment of income - clause 6 of Article 226 of the Tax Code of the Russian Federation). If this is not done, then with a high degree of probability, tax authorities will charge additional penalties and a fine in the amount of 20% of the unpaid amount of personal income tax (Article 123 of the Tax Code of the Russian Federation). The amount of tax transferred in excess (before the established deadline) cannot be offset, but can only be returned on the basis of an application submitted to the tax office.
Arbitration practice.
Let us analyze court decisions regarding the legality of offsetting overpayments of personal income tax that arose in connection with the transfer of tax in a larger volume.
It should be noted that today, judicial practice is in favor of the tax agent, despite the fact that regulatory authorities consistently refuse to allow companies to offset the excessively transferred tax against debt repayment.
The basis for refusal is that payment of tax at the expense of tax agents is not allowed (clause 9 of Article 226 of the Tax Code of the Russian Federation).
Example No. 2
For 2 years, the company transferred payments to the budget with the purpose of “Individual Income Tax” in a larger volume than was withheld from the individual, and therefore, an overpayment of personal income tax arose.
Subsequently, when paying income to an individual, the company withheld the calculated amount of personal income tax from his income, but did not transfer it to the budget, assuming the right to offset the overpaid tax.
However, during the audit, the tax authorities considered the company’s actions to be a tax offense under Article 123 of the Tax Code of the Russian Federation, which was reflected in the failure to transfer personal income tax amounts within the prescribed period, and the amounts paid in advance were qualified as tax paid at the expense of the tax agent’s own funds.
The courts of two instances supported the arguments of the tax inspectorate regarding the violation of the deadlines for transferring personal income tax to the budget.
The cassation court overturned the decisions of previous courts based on the following arguments.
As a general rule, the obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees (paragraph 2, paragraph 1, article 45 of the Tax Code of the Russian Federation). The taxpayer has the right to fulfill the obligation to pay tax ahead of schedule. At the same time, the rule on early payment of tax also applies to tax agents (clause 8 of Article 45 and clause 2 of Article 24 of the Tax Code of the Russian Federation).
The cassation judges analyzed the rules for tax offset established by Article 78 of the Tax Code of the Russian Federation. The offset of the amounts of overpaid federal taxes and fees, regional and local taxes is carried out for the corresponding types of taxes and fees, as well as for penalties accrued on the corresponding taxes and fees.
The rules established by Article 78 of the Tax Code of the Russian Federation also apply to the offset or return of amounts of overpaid advance payments, fees, penalties and fines and apply to tax agents (Clause 14 of Article 78 of the Tax Code of the Russian Federation).
Thus, based on the analysis of the above norms, one has the right to offset the amount of overpaid taxes, which are federal, against upcoming payments, as well as repayment of arrears on personal income tax.
In this situation, the company transferred personal income tax in advance, as a tax agent, and subsequently, when paying income to the taxpayer, always withheld the calculated personal income tax from the taxpayer’s income.
As the court noted, payment of personal income tax at the expense of a tax agent will take place when personal income tax is paid by the tax agent not “for the taxpayer,” but “instead of the taxpayer,” that is, when paying income, personal income tax is calculated and transferred to the budget, but is not withheld by the tax agent from the income taxpayer.
And therefore, the early transfer by the personal income tax company of the offense established by Art. 123 of the Tax Code of the Russian Federation, does not form.
In addition, due to the legal position of the Constitutional Court of the Russian Federation, set out in the ruling dated 02/08/2007 No. 381-0-P, all guarantees of property rights apply to overpaid taxes.
In this tax dispute, the cassation court made an important conclusion for tax agents: under such conditions, the refusal to recognize personal income tax paid by the tax agent ahead of schedule creates artificial grounds for bringing the tax agent to tax liability, and the offset of these amounts as tax and recording by the tax authority the absence of arrears is an obstacle to bringing to tax liability (Resolution of the Moscow District Administration of July 28, 2016 No. A40-128534/2014).
In the Decisions of the Autonomous Okrug of the Yamalo-Nenets Autonomous Okrug dated May 25, 2016 No. A81-978/2016, the Autonomous Authority of the Kamchatka Territory dated June 15, 2015 No. A24-244/2015, and the Resolutions of the Autonomous District of the Volga-Vyatka District dated February 19, 2016 No. A38 -6347/2012, West Siberian District dated October 26, 2015 No. A27-1682/2015, East Siberian District dated June 10, 2015 No. A58-4233/20144, Ural District dated May 26, 2015 No. F09- 2467/15 and dated 02/06/2015 No. Ф09-10188/14, the tax inspector’s argument that the amount of personal income tax excessively transferred by the tax agent is not an overpaid tax payment was also rejected, since payment of tax at the expense of the tax agent is not allowed ( Clause 9 of Article 226 of the Tax Code of the Russian Federation).
It should be noted that in the database of arbitration cases there are court decisions that support the position of the tax authorities.
For example
In the Resolution of the Arbitration Court of the North-Western District dated June 19, 2015 No. A56-41307/2014, the court agreed with the tax inspectorate’s arguments regarding holding the tax agent liable under Article 123 of the Tax Code of the Russian Federation due to the transfer of personal income tax to the budget before the payment of income to an individual.
If a company has overpaid personal income tax, it should contact the tax office with an application for a tax refund. After all, according to the regulatory authorities, this amount cannot be offset against future personal income tax payments, but can only be returned. To do this, you must submit an application in free form (Letters of the Ministry of Finance of the Russian Federation dated November 12, 2014 No. 03-04-06/57158 and the Federal Tax Service of the Russian Federation dated July 4, 2011 No. ED-4-3/10764).
However, when returning personal income tax overpayments, tax agents may also face difficulties. If tax registers (in particular, account cards and ) are not provided, the tax inspectorate has the right to refuse a tax refund and the courts support the inspection.
Example No. 3
The company mistakenly transferred personal income tax to the budget and applied to the tax office for a refund.
In the statement, the company noted that the specified amount of tax was not withheld from individuals. Only a copy of the payment order was attached to the refund application.
The tax office refused to refund the tax amount to the company, indicating that these documents were not enough. Without tax registers (cards for accounts and ) were requested, it is impossible to determine the amount of tax overpayment.
When deciding in favor of the tax inspectorate, the judges proceeded from the following:
the fact of filing an application for the return to the current account of the amount erroneously transferred to the budget does not indicate the existence of grounds for the return of this amount automatically;
The tax agent must document that personal income tax was transferred to the budget in excess of the amount of tax actually withheld from the income of individuals, is not related to the performance of the duty of a tax agent, and was transferred erroneously from its own funds;
In order for the tax authority to be able to determine the nature of the amount paid by the applicant, the company had to provide supporting documents (tax registers, account cards 68 “Calculations for taxes and fees”, 70 “Settlements with personnel for wages”), since in the absence of analytical accounting Based on the account, it is not possible to draw a conclusion about the presence of an overpayment (non-payment) of personal income tax, as well as to qualify what caused the overpayment (non-payment) of personal income tax: at the expense of the tax agent’s own funds or due to incorrect calculation of personal income tax for the taxpayer;
the list of payment orders for payment of personal income tax in itself does not allow determining the presence of overpayment (non-payment) of personal income tax; in payment orders the amount of payment for the specified period is indicated without breakdown by specific individuals; The register of information on the income of individuals is reference general information.
And since the company did not provide evidence to confirm the overpayment of tax and did not attach a corresponding document indicating an erroneously excessive payment, the courts came to the conclusion that the tax authority had no grounds for returning the amount of money (Resolution of the AS of the West Siberian District dated October 30, 2015 No. A67-8760/2014).
conclusions
The safest option for a tax agent is to avoid overpaying personal income tax using your own funds.
The most unsafe option, which will most likely lead to tax disputes, is to independently offset the overpaid personal income tax against future payments.
If, after all, the company overpaid personal income tax, then it is best to contact the tax office with an application for a refund. True, the tax agent must document the existence of an overpayment by submitting tax registers to the tax office.
The early payment of personal income tax raised doubts among inspectors. The fact is that for a long time the company transferred personal income tax before income to employees. Read what helped the company in court.
Early payment of personal income tax has become the subject of dispute
What they argued about: the company transferred personal income tax before paying income. The tax authorities issued a fine. They decided that the amounts transferred to the budget were not taxes.
Who did win: company.
Winning argument: the company withheld taxes from employee salaries. This means that it was not her own funds that went into the budget, but personal income tax.
The company transferred the tax in advance. Often even before giving employees wages and withholding personal income tax. They did this in order not to be late with taxes and to protect themselves from penalties.
During the audit, tax officials stated that the company pays personal income tax from its own money. But the Tax Code prohibits doing this. The organization must pay employees income and withhold tax and only then transfer personal income tax. The company did everything the other way around, and for this the inspectors issued a fine of 221,460 rubles. (Article 123 of the Tax Code of the Russian Federation).
The organization did not agree with the fine, went to court and won the case (resolution of the Moscow District Arbitration Court dated July 28, 2016 in case No. A40-128534/14). What arguments worked in court?
Early payment of personal income tax is not safe
It is safer to refuse advances on personal income tax, especially since it has become much easier for tax authorities to find early tax. Now they don’t need to come to the company to check for this. It is enough to compare the data in 6-NDFL with the payments in the budget settlement card.
Both the Ministry of Finance and the Federal Tax Service believe that it is impossible to pay personal income tax in advance (letters dated July 22, 2015 No. 03-04-06/42063, dated July 25, 2014 No. BS-4-11/14507). In addition, some explanations from officials contradict others.
On the one hand, tax officials insist that the amount transferred in excess of the withheld personal income tax is not a tax (decision of the Federal Tax Service on the complaint dated May 5, 2016 No. SA-4-9/8116). On the other hand, they say that there should be no fine for early personal income tax (letter dated September 29, 2014 No. BS-4-11/19716).
Inspectors from inspectorates also act unpredictably. Early payment of personal income tax may cause them doubts. Some count the overpayment of personal income tax against future payments, others refuse to do this, charge penalties and issue a fine.
And judicial practice is contradictory. Some companies prove that they did not pay the tax out of their own pockets (resolution of the Arbitration Court of the Ural District dated February 6, 2015 in case No. A47-5098/2013). But there are also decisions in favor of the tax authorities (resolution of the Arbitration Court of the North-Western District dated June 19, 2015 in case No. A56-41307/2014).
To avoid disputes, transfer personal income tax exactly on time - maximum the next day after payment of income (clause 6 of Article 226 of the Tax Code of the Russian Federation). Just make sure that there are no errors in personal income tax payments. Otherwise, the tax authorities will report that you have arrears.
The employer is also responsible for paying into the funds for his employees. In case of transfer of income tax, the company acts as a tax agent, and when paying contributions, it acts as a braider.
Both roles in the field of tax law impose certain obligations on an economic entity that has labor relations with individuals.
One of these responsibilities is the timely payment of all tax and non-budgetary amounts. The tax agent is responsible for failure to comply with payment deadlines.
What to do if tax payments are made earlier, before salaries are paid, what does the employer face for this?
For a long time, there was a dispute between tax authorities and business entities about when to pay tax.
Tax officials argued that the day an employee receives income is considered the day he receives money from the bank to pay salaries to the company’s employees.
Many courts have supported this position.
From 01/01/2016 Art. 226 of the Tax Code of the Russian Federation has been amended, and in the new edition it directly binds the duty of an agent pay income tax on the day the payer receives income, and not with the day the enterprise receives funds for these purposes.
This means that if the employee does not receive the money through the cash register on time and the amount is transferred to a deposit, the tax must be paid the next day after the physical issuance of the salary.
From January 1, 2017, the administrator for payment of contributions has changed.
Until this date, pension contributions and compulsory medical insurance contributions were paid to the Pension Fund, and social insurance contributions to the Social Insurance Fund.
Now almost all contributions are paid to the Federal Tax Service, reporting is also submitted there.
Only one type of contribution needs to be transferred to the Social Insurance Fund - for injuries.
Despite such significant changes in the administration of the wage fund, the timing of the transfer of these payments has not changed.
Contributions calculated on salary are transferred no later than the 15th day of the month, following the calculated one. If the payment date coincides with a holiday or weekend, the due date is postponed to the next working day.
Can income tax be paid before salary is issued?
In accordance with paragraphs. 2 clause 1.1 art. 223 Tax Code of the Russian Federation the date of actual payment of income is considered the last day of the month, for which the salary was accrued. On this day, income tax is calculated.
Therefore, pay personal income tax in advance (for example, from an advance), as well as No early payment of wages.
This threatens the employer with possible fines, since payment for a specific month will not be counted.
Is it possible to transfer insurance premiums in advance?
Clause 1 Art. 45 NK allows taxes to be paid earlier payday. Clause 9 of the same article clarifies that this rule also applies to contributions.
But in real life, there are cases when it is beneficial for an enterprise to pay insurance amounts in advance before paying wages.
For example, when receiving a loan, banks sometimes require certain amounts of contributions to the budget as confirmation of the borrower’s reliability.
What to do if earnings are not paid, but taxes are transferred?
If income tax is paid before the deadline established by law, it will not be counted.
What is the employer facing for this?
Penalties and penalties will not be charged for this particular payment, since formally there is no violation.
But, if an economic entity does not pay personal income tax on time, then penalties in the amount of 20% of the arrears cannot be avoided.
Therefore, the enterprise tax must be paid again, and demand a refund of the paid amount as erroneously paid.
What are the consequences for an employer of paying insurance payments earlier? In the case of contributions, the same consequences as in relation to personal income tax will not arise.
The deadline for paying insurance premiums is not tied to the day the income is received, therefore the payer has the right to transfer them earlier.
If contributions are paid before wages are issued, the actual base may differ from the preliminary one, both downward and upward.
If the final base is less than the employer calculated earlier, then the amount of overpayment will be applied towards the following periods, or you can write a request for a refund.
