Personal income tax in the presence of separate divisions. Personal income tax for a separate division How to pay personal income tax for a separate division

The company has several separate divisions on the territory of different municipal districts of Moscow. To what address should personal income tax be paid to the budget? Is it possible to transfer personal income tax for all employees to the legal address of the company?

By virtue of clause 2 of Art. 11 of the Tax Code of the Russian Federation, a division that is territorially separated from the organization and at the location of which stationary workplaces are equipped is recognized as a separate division. In this case, a workplace is considered stationary if it is created for a period of more than one month. Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division.

At the location of each of the divisions, the organization is subject to tax registration (Clause 1, Article 83 of the Tax Code of the Russian Federation). Moreover, in accordance with paragraph 4 of Art. 83 of the Tax Code of the Russian Federation, if several separate divisions of an organization are located on the territory of Moscow, but are subordinate to different tax authorities, the organization has the right to choose one division for tax registration. To do this, you should send a notification about the choice of inspection in form No. 1-6-Accounting (approved by order of the Federal Tax Service of Russia dated August 11, 2011 No. YAK-7-6/488@) to the tax authority at the location of the organization.

According to Art. 19 of the Tax Code of the Russian Federation, separate divisions of Russian organizations perform the duties of these organizations to pay taxes and fees at the location of these separate divisions in the manner prescribed by the Tax Code of the Russian Federation.

Clause 7 of Art. 226 of the Tax Code of the Russian Federation establishes that tax agents—Russian organizations with separate divisions—are obliged to transfer calculated and withheld tax amounts to the budget both at their location and at the location of each of their separate divisions.

Thus, in general, an organization is obliged to transfer personal income tax to the location of each of its separate divisions.

Is there an exception to the situation when registration is carried out at the location of one of the separate divisions of the organization? The Russian Ministry of Finance believes that it is.

Thus, in letter No. 03-04-06/3-174 dated June 22, 2012, financiers explained that if an organization that has several separate divisions in Moscow in territories under the jurisdiction of different tax authorities is registered in accordance with clause 4 Art. 83 of the Tax Code of the Russian Federation at the location of one of such separate divisions determined by the organization, then the personal income tax calculated and withheld from the income of employees of all separate divisions located in Moscow can be transferred to the budget at the place of registration of such a separate division. In this case, the payment order will need to be issued separately for each separate division, since each separate division of the organization located in Moscow is assigned a separate checkpoint.

Meanwhile, the tax authorities are against this approach.

The Federal Tax Service of Russia, in a letter dated August 29, 2012 No. ZN-4-1/14304@, explained that registration with one territorial tax authority of separate divisions located on the territory of various municipalities of Moscow, falling under the jurisdiction of various tax inspectorates of Moscow , is legal. At the same time, when deciding on the payment of personal income tax at the location of one of the separate divisions of the organization, it should be taken into account that the Law of Moscow dated December 7, 2011 No. 62 “On the budget of the city of Moscow for 2012 and the planning period of 2013 and 2014” provides for the formation income from the budgets of urban districts in 2012 through personal income tax deductions according to established standards. (Note that similar norms are contained in Moscow Law No. 54 of November 19, 2014 “On the budget of the city of Moscow for 2015 and the planning period of 2016 and 2017.”)

In this regard, payment of personal income tax at the location of one of the separate divisions of the organization is applicable only when all the separate divisions of the organization are located on the territory of not only one subject of the Russian Federation, but also one municipal entity within this subject. Under such conditions, the amounts of personal income tax withheld from the income of employees of all separate divisions are subject to credit to the same budget of the constituent entity of the Russian Federation and the local budget.

If an organization that has separate divisions on the territory of different municipal (city) districts of Moscow is registered in accordance with paragraph. 3 paragraph 4 art. 83 of the Tax Code of the Russian Federation at the location of one of such separate divisions, then the transfer of personal income tax, calculated and withheld from the income of employees of all separate divisions located in Moscow, to the budget at the place of registration of such a separate division will lead to an unlawful outflow of funds from municipal budgets ( urban) districts of Moscow.

In order to avoid these negative consequences, the Federal Tax Service of Russia in the letter in question recommends that tax agents be guided by the provisions of paragraph. 2 clause 7 art. 226 of the Tax Code of the Russian Federation and transfer the calculated and withheld tax amounts to the budget at the location of each separate division.

Taking into account the above, it is impossible to exclude the risk of claims from the tax authorities if the company pays personal income tax on the amount of income of employees of a separate division at the place of registration of the company (legal address).

To determine the level of risk of bringing an organization to tax liability in such a situation, we will analyze the existing arbitration practice on this issue.

According to the Presidium of the Supreme Arbitration Court of the Russian Federation, the Tax Code of the Russian Federation does not provide for liability for violation of the procedure for transferring withheld personal income tax (Resolution No. 14519/08 dated March 24, 2009). Consequently, if an organization mistakenly transfers the tax withheld from an employee of a division not to the location of this division (but, for example, to the place of registration of another division or parent organization, which is located on the territory of the same subject of the Russian Federation), liability under Art. 123 of the Tax Code of the Russian Federation does not arise. The conclusions of the senior arbitrators are supported by both regulatory authorities (letters of the Ministry of Finance of Russia dated October 10, 2014 No. 03-04-06/51010, Federal Tax Service of Russia dated August 2, 2013 No. BS-4-11/14009), and some lower courts (resolutions of the Federal Antimonopoly Service of the Ural District dated 10.10.2012 No. F09-9057/12, North-Western District dated 14.03.2011 in case No. A05-4762/2010, dated 20.10.2010 in case No. A66-15290/2009 (Determination of the Supreme Arbitration Court of the Russian Federation dated 25.02.2011 No. VAS- 16910/10 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), Moscow District dated May 19, 2010 No. KA-A40/4516-10, etc.).

The financial and tax departments also indicate that penalties under Art. 75 of the Tax Code of the Russian Federation are not accrued in this case, since they are accrued for violation of the deadline, and not the place of tax payment (letter of the Ministry of Finance of Russia dated October 10, 2014 No. 03-04-06/51010, Federal Tax Service of Russia dated April 7, 2015 No. BS-4-11 /5717@).

The courts also give the following argument in support of taxpayers: the tax authority, having discovered an arrears and overpayment of personal income tax from a tax agent that arose as a result of a violation of the procedure for transferring taxes, must independently make an offset, guided by paragraph 1 of Art. 78 of the Tax Code of the Russian Federation, and not to charge penalties on the amount of arrears (see, for example, resolutions of the Federal Antimonopoly Service of the North-Western District dated July 30, 2012 No. A56-48850/2011, dated July 16, 2012 No. A44-4027/2011).

The article will tell you how to draw up and submit a calculation using Form 6-NDFL, what fines a tax agent faces if you fill out 6-NDFL incorrectly, and how to pay personal income tax for employees.

Question: According to clause 7 of Article 226 of the Tax Code of the Russian Federation, tax agents - Russian organizations with separate divisions are required to transfer calculated and withheld personal income tax amounts to the budget, both at their location and at the location of each separate division. Is it necessary to keep records separately for each separate division? if: the parent organization and existing separate divisions (retail stores) are located in the same municipality (one OKTMO), subordinate to the same tax inspectorate, but registered at each address of the separate division (with different checkpoints). Is it possible to keep records of the checkpoint of the parent organization? (calculation, withholding and transfer of personal income tax, as well as reporting). After all, we believe that there is no fundamental significance for punishment, since the tax was paid to the budget of one region, in one municipality, in which both the parent organization and each OP are located. What are the violations, risks and responsibilities?

Answer: The current version of Ch. 23 of the Tax Code of the Russian Federation prescribes the payment of personal income tax separately for each separate division. Even if these separate divisions are located in the same city and are located on the territory of the same Federal Tax Service. Even records are kept only at the head office and all salaries of employees, including OP employees, are also paid by the head office. The same applies to submitting reports - calculations in form 6-NDFL and certificates in form 2-NDFL - they must be submitted separately for each OP.

Since separate divisions are already registered with the tax authorities, it is impossible to select one division for submitting personal income tax reports and transferring this tax.

Responsibility is possible only for errors contained in submitted reports. The fact is that it is impossible to fine and charge penalties for the fact that personal income tax was transferred at the place of registration of the head office (letters of the Federal Tax Service dated 08/02/2013 No. BS-4-11/14009, dated 04/07/2015 No. BS-4-11/ 5717). But the fine for false information (you entered the checkpoint incorrectly) will be 500 rubles for each 6-NDFL calculation and each erroneous 2-NDFL certificate.

How to draw up and submit a calculation using Form 6-NDFL

Where to submit 6-NDFL calculations

Calculations in form 6-NDFL must be submitted to the tax inspectorate at the place of registration of tax agents (clause 2 of Article 230 of the Tax Code). As a rule, organizations submit such calculations to the inspectorate where they are registered at their location, and entrepreneurs - at their place of residence. This follows from paragraph 1 of Article 83 and Article 11 of the Tax Code. However, depending on the status of the organization (entrepreneur) and the source of income payment, the procedure for submitting calculations in Form 6-NDFL may be different. The following table will help you navigate in all situations:

No.	Who and where receives income?	Where to submit form 6-NDFL	Base
1	Head office employees receive income from the head office	To the tax office at the location of the head office	clause 2 art. 230 NK
2	Employees of separate divisions receive income from separate divisions	To the tax inspectorates at the location of separate divisions. Complete Form 6-NDFL for each separate division. Even if these divisions are registered with the same tax office Was the separate division liquidated (closed)? Provide the place of registration of such a division with a calculation for the last tax period, that is, for the period of time from the beginning of the year until the day the liquidation (closing) of the separate division was completed
3	Employees simultaneously receive income both in the head office and in separate divisions		Letters of the Ministry of Finance dated 08/07/2012 No. 03-04-06/3-222, Federal Tax Service dated 05/30/2012 No. ED-4-3/8816
	? by income for time worked at the head office	To the inspectorate at the location of the organization’s head office (indicating the checkpoint and OKTMO code of the head office)
	? by income for time worked in separate units	To the inspectorate at the location of each separate unit (indicating the checkpoint and OKTMO code of the corresponding separate unit)
4	Employees of separate divisions receive income from separate divisions that are located in the same municipality, but in the territories of different tax inspectorates	To the inspectorate at the place of registration. You can register at any inspection office on the territory of the municipality. Submit calculations to this inspection for all separate divisions located on the territory of the municipality
5	Employees of an entrepreneur who works on UTII or a patent taxation system	To the inspectorate at the place of business on UTII or the patent tax system Have you stopped operating on UTII or PSN? Provide at the place of conduct of such activity for the last tax period, that is, for the period of time from the beginning of the year to the day the business ceased under this special regime	para. 6 paragraph 2 art. 230 NK
6	Employees of an entrepreneur who combines UTII and simplified tax system	For employees engaged in activities on UTII - to the inspectorate at the place of such activity For employees engaged in activities on the simplified tax system - to the inspectorate at the place of residence of the entrepreneur	letter of the Federal Tax Service dated 01.08.2016 No. BS-4-11/13984
7	Employees of organizations that are major taxpayers, including separate divisions	To territorial tax inspectorates in the same manner as ordinary organizations	para. 5 p. 2 art. 230 Tax Code, letter of the Federal Tax Service dated December 19, 2016 No. BS-4-11/24349

What fines does a tax agent face if they fill out 6-NDFL incorrectly or submit a payment late?

Responsibility for violations under 6-NDFL

Inspectors can fine for violations of 6-NDFL in two cases:

Did not submit 6-NDFL or submitted the payment late

The fine for a tax agent is 1000 rubles. for each full or partial month from the day established for submitting the calculation to the inspection (clause 1.2 of Article 126 of the Tax Code). Inspectors count the period of delay from this day until the date on which the 6-NDFL was submitted. Moreover, they have the right to fine you within 10 working days. That is, before the desk audit is completed.

If you don’t submit 6-NDFL at all, then inspectors may block the tax agent’s account. To do this, they have 10 days from the date when the deadline for submitting the calculation expired (letter of the Federal Tax Service dated 08/09/2016 No. GD-4-11/14515).

Provided false information in calculations

The fine for each payment with false information is 500 rubles. But if you discovered an error and submitted an updated calculation before the tax inspectors noticed it, there will be no sanctions ().

Inspectors may impose a fine due to any error in the calculation in Form 6-NDFL. For example, they overestimated or underestimated the amount of income, confused the dates in a block of lines 100-120, etc. But in some cases, inspectors reduce the fine, citing mitigating circumstances (clause 1 of Article 112 of the Tax Code). These are cases where the tax agent, due to an error:

did not underestimate the tax;

did not create adverse budgetary consequences;

did not violate the rights of individuals.

Inspectors can fine not only the organization, but also the responsible employees. For example, a manager. The fine in this case ranges from 300 to 500 rubles. ().

How to pay personal income tax for employees, founders and executors under the GPA

How to transfer personal income tax to separate divisions to the budget

For organizations that have separate divisions, a special procedure for paying personal income tax applies.1

From the income that employees receive from a separate division, personal income tax must be transferred according to the details of the tax office in which this division is registered. This procedure is applied regardless of what contract the employee works under: labor or civil law. This follows from paragraph 3 of paragraph 7 of Article 226 of the Tax Code and letters of the Ministry of Finance dated November 22, 2012 No. 03-04-06/3-327, Federal Tax Service dated February 1, 2016 No. BS-4-11/1395.

An employee works in several departments

If an employee works in the head office of an organization, and part-time in its separate division, transfer the personal income tax amount separately:

from income received at the head office - to the tax office at the place of registration of the company;

from income received in a separate division - to the tax office at the address of this division.

If during a month an employee works in several separate departments, then transfer personal income tax on his income to the place of registration of each of them. Calculate the tax taking into account the salary accrued to the employee for the time actually worked in each of the divisions and in the head office. This is stated in the letters of the Ministry of Finance dated 02/06/2018 No. 03-04-06/6908, dated 03/01/2017 No. 03-04-06/11798.

If an employee was sent to a separate division of the organization on a business trip, then personal income tax on his income should be transferred to the tax office of the head office. This conclusion follows from the letter of the Federal Tax Service dated May 15, 2014 No. SA-4-14/9323.

In April, storekeeper Bespalov worked in three divisions of Alpha LLC:
- from April 2 to April 10 - at the head office of the organization;
- from April 11 to April 20 - in a separate unit located in the city of Balashikha, Moscow region;
- from April 23 to April 30 - in a separate unit located in the city of Pokrov, Vladimir region (Alpha-1 enterprise).

Bespalov's salary is 30,000 rubles. He is entitled to a standard deduction for a child in the amount of 1,400 rubles. Salaries are calculated by the accounting department of the Alpha head office. The amount of personal income tax from Bespalov’s salary for April amounted to 3,718 rubles. ((30,000 rub. - 1,400 rub.) x 13%). In order to correctly transfer the tax according to the details of the three inspections, the accountant distributed the amount of personal income tax in proportion to the salary accrued to Bespalov for the time actually worked in each department.

There are 21 working days in April. The amounts of personal income tax that Alpha must transfer to the budgets at the addresses of its divisions are:
- head office (Moscow) - 1239 rubles. (RUB 3,718: 21 days x 7 days);
- subdivision in Balashikha - 1416 rubles. (RUB 3,718: 21 days x 8 days);
- division in Pokrov (Alfa-1 enterprise) - 1062 rubles. (RUB 3,718: 21 days x 6 days).

The head office of Alpha is registered with the Federal Tax Service No. 43 in Moscow. INN of the organization - 7743123456, checkpoint - 774301001. OKTMO for paying taxes - 45338000.

In the city of Pokrov, the division (enterprise "Alfa-1") is registered with the Interdistrict Inspectorate of the Federal Tax Service No. 11 for the Vladimir Region. At the place of registration of the Alpha division, KPP 332101001 was assigned. OKTMO for paying taxes - 17646120. The division is allocated to a separate balance sheet, has its own current account and the authority to pay taxes from the head office.

In the city of Balashikha, at the place of registration of the Alpha division, KPP 500101108 was assigned. OKTMO for paying taxes - 46704000. The division does not have a separate current account and authority to pay taxes from the head office. Consequently, personal income tax for employees working in this division is transferred by the head office, indicating the Federal Tax Service Inspectorate for the city of Balashikha as the recipient.

Personal income tax on the income of a home-based employee list at the place of registration of either the head office of the organization or a separate division that can be recognized as a homeworker’s workplace. Whether a homeworker should be registered for tax purposes is determined by the tax office based on the terms of the employee’s employment contract. Such clarifications are in letters of the Ministry of Finance dated 05.23.2013 No. 03-02-07/1/18299 and dated 03.18.2013 No. 03-02-07/1/8192, Federal Tax Service dated 01.18.2011 No. PA-4-6/449.

Personal income tax for remote employees Always pay at the place of registration of the head office. Unlike a homeworker, a separate unit does not arise at the address where the remote employee works. This follows from the provisions of the Labor Code and is confirmed by letter of the Ministry of Finance dated December 1, 2014 No. 03-04-06/61300.

Employees in different departments within the same municipality

An organization that has several separate divisions opened in one municipality, but in the territories of different tax inspectorates, can register for taxation at the address of one of them (paragraph 6, paragraph 4, article 83 of the Tax Code). Personal income tax can be transferred to this tax office for all separate divisions located on the territory of the municipality.

If an organization is registered at the address of each of its separate divisions, then personal income tax must be transferred to the place of registration of each of them. In this case, you cannot select one division through which you are going to pay personal income tax for all separate structures. There are no such rules in Chapter 23 of the Tax Code (letter of the Federal Tax Service dated March 27, 2018 No. GD-4-11/5666).

Employees work in different departments in Moscow, St. Petersburg, Sevastopol

Personal income tax in Moscow, St. Petersburg and Sevastopol must be paid according to special rules. These cities have intra-city municipalities, which may have independent local budgets. Organizations registered in these cities can also take advantage of the provisions of paragraph 6 of paragraph 4 of Article 83 of the Tax Code and register at the location of one of their separate divisions. However, such organizations must transfer personal income tax to local budgets at the address of each specific separate division. Even if they are located in territories beyond the jurisdiction of the tax office with which the organization is registered. That is, in payment documents you need to indicate OKTMO of the intra-city municipality at the actual address of the separate subdivision.1

Such clarifications are contained in letters of the Ministry of Finance dated 02/21/2011 No. 03-04-06/3-37, dated 07/01/2010 No. 03-04-06/8-138, dated 03/15/2010 No. 03-04-06/3-33 and the Federal Tax Service dated October 14, 2016 No. BS-4-11/19528 and dated August 29, 2012 No. ZN-4-1/14304.

Situation: Do inspectors have the right to fine an organization under Article 123 of the Tax Code if it transferred personal income tax for separate divisions using the details of the Federal Tax Service of the head office?

No, you have no right.

The rule that an organization with separate divisions must transfer the amounts of withheld personal income tax both to the place of registration of the head office and to the inspection department of each division is stated in Article 226 of the Tax Code. However, liability for violation of this rule is not established by law. Therefore, if you withheld personal income tax correctly and transferred it to the budget on time, then there are no grounds for a fine).

Situation: Does the tax inspectorate have the right to charge penalties if the organization paid the entire amount of personal income tax using the details of the head office inspection? The head office and separate divisions are located in different regions of the Russian Federation

No, you have no right.

Russian organizations that have separate divisions are required to transfer withheld personal income tax amounts both to their own address and to the address of each division (). That is, the tax withheld from the income of an employee of a branch or representative office must be paid to the budget in the region where this branch is located.

However, penalties are a sanction that tax authorities impose on those who pay taxes late (). The legislation does not provide for other grounds for penalties. Therefore, if the tax agent transferred the personal income tax within the prescribed period, then it is unlawful to charge penalties. Even if, upon payment, the tax was incorrectly distributed between the budgets of different regions.

Similar clarifications are in the letter of the Federal Tax Service dated 04/07/2015 No. BS-4-11/5717. Representatives of the tax service support their position with established arbitration practice. And most courts believe that penalties can be charged only if the tax agent has an actual debt to the budget.

If the entire amount of withheld personal income tax, including for separate divisions, was transferred to the place of registration of the organization’s head office, then the organization as a tax agent does not have any arrears. There are no grounds for penalties. Such conclusions are reflected, for example, in the resolutions of the Federal Antimonopoly Service of the Moscow District dated January 17, 2011 No. KA-A40/17435-10). Inaccurate data are considered to be those errors that:

complicated tax control (for example, due to an error, inspectors were unable to identify the recipient of the income);

led to late or incomplete payment of personal income tax;

violated the rights of individuals (for example, the inspectorate, due to an error, denied a citizen tax deductions for personal income tax).

If the organization indicated the TIN of an individual correctly, but made a mistake in the passport data, there will be no fine. This conclusion was made by the Federal Tax Service in its decision dated December 22, 2016 on complaint No. SA-4-9/24731@. The decision was published on the official website of the tax service on April 10, 2017.

Decisions on complaints that the Federal Tax Service publishes on the official website are binding on tax inspectors. If you are fined for incorrect personal data of an employee in the certificate, refer to decision No. SA-4-9/24731@. Inspectors must remove the fine.

There will also be no fine if the tax agent himself discovers the error and corrects the information in a timely manner (before the inspection finds the error). Moreover, early submission of certificates will not save you from a fine. Let’s say an organization submitted forms 2-NDFL in February. In March, the inspection discovered inaccuracies and notified the organization about it. In such a situation, even if the organization corrects all errors and submits updated certificates by April 1, it will still be fined. This procedure is provided for in paragraph 1 of Article 126.1 of the Tax Code. There are similar explanations in

One of the responsibilities of Russian organizations is the correct calculation and withholding of this tax from taxpayers’ income (received as a result of labor or civil relations with a Russian organization). and timely transfer of it to the country’s budget system(Article 226 of the Tax Code of the Russian Federation).
In addition, Art. 230 of the Tax Code of the Russian Federation, tax agents are also assigned responsibilities for keeping records of income (according to Form 1-NDFL), paid to individuals, and submission of information in form 2-NDFL to the tax authority.
In the article we will look at how Russian organizations with separate divisions should fulfill these responsibilities.

Separate division

Before considering the responsibilities of a tax agent, let's say a few words about identifying characteristics.
Separated by virtue of clause 2 of Art. 11 of the Tax Code of the Russian Federation recognizes a unit that is territorially separated from the organization and at the location of which stationary workplaces are equipped (According to Article 209 of the Labor Code of the Russian Federation, a workplace is defined as a place where an employee must be or where he needs to arrive in connection with his work and which is directly or is indirectly under the control of the employer (clause 1 of article 11 of the Tax Code of the Russian Federation)). In this case, a workplace is considered stationary if it is created for a period of more than one month.

Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division (Letter of the Ministry of Finance of Russia dated March 29, 2010 N 03-04-06/53 ).
From the definition of the concept " separate division“It follows that in a situation where exclusively civil law contracts are concluded between an organization and individuals to carry out activities outside the location of the organization, there are no grounds for registering a legal entity for tax purposes at the place where these activities are carried out.
There are no such grounds in the case where stationary jobs are not created at the place of work of employees. These conclusions follow from Letter of the Ministry of Finance of Russia dated November 3, 2009 N 03-02-07/1-493.
In Letter dated 02/18/2010 N 03-02-07/1-67, the financial department (with reference to arbitration practice) stated the following. The equipment of a stationary workplace means the creation of all conditions necessary for the performance of work duties, as well as the very performance of such duties. At the same time, the form of work organization (rotation work or business trip), the period of stay of a specific employee at the created stationary workplace do not have legal significance for registering a legal entity at the location of its separate unit.
According to financiers, to resolve the issue of the presence or absence of signs of a separate division of an organization, an essential condition is the nature of the relationship between the organization and its employees.
Please note that the activities of a homeworker who has entered into an appropriate employment contract with the employing organization may be recognized as the activities of a separate division of this organization. This is stated in the Letter of the Federal Tax Service of Russia dated January 18, 2011 N PA-4-6/449. If difficulties arise in determining the place of tax registration of such a division, the tax authorities, guided by clause 9 of Art. 83 of the Tax Code of the Russian Federation, it is advised to submit a package of documents either to the tax authority at the location of the organization, or to the tax authority at the place of the employee’s activities.
It should be noted that the Ministry of Finance of Russia in Letter dated May 24, 2006 N 03-02-07/1-129 on this issue expressed the opposite point of view.
According to paragraph 4 of Art. 83 of the Tax Code of the Russian Federation, registration with the tax authorities of a Russian organization at the location of its separate divisions (with the exception of a branch, representative office) is carried out by tax authorities on the basis of messages submitted (sent) by this organization in accordance with clause 2 of Art. 23 Tax Code of the Russian Federation.

To submit such messages, paragraphs. 3 p. 2 art. 23 of the Tax Code of the Russian Federation provides the following deadlines:
- one month - in case of creating a separate division of a Russian organization;
- three days - to make changes to information (including a change of location) about a separate unit.
If an organization has several separate divisions in one municipality (as well as in the federal cities of Moscow and St. Petersburg in territories under the jurisdiction of different tax authorities), the organization can be registered for tax purposes at the location of one of them. Moreover, this choice is an organization, according to clause 4 of Art. 83 of the Tax Code of the Russian Federation, has the right to do it independently. The main thing is to notify the tax authority at the location of the parent organization about this (Letter of the Ministry of Finance of Russia dated August 18, 2010 N 03-01-15/7-183).

Procedure for paying personal income tax

According to paragraph 7 of Art. 226 of the Tax Code of the Russian Federation, an organization that has separate divisions is obliged to pay personal income tax, including at the location of each of them. The amount of tax payable to the budget at the location of the separate division is determined based on the amount of income of individuals received not only under employment contracts, but also under civil law contracts (Letter of the Ministry of Finance of Russia dated March 29, 2010 N 03-04-06/ 53).
In this regard, we note some nuances. If an employee of an organization works in several separate divisions during the month, then personal income tax from the income of such an employee must be transferred to the appropriate budgets at the location of each such separate division, taking into account the actual time worked in each separate division (Letter of the Ministry of Finance of Russia dated 06/05/2009 N 03- 04-06-01/128). According to the financial department, the same should be done in the case where an employee works for a month both in the parent organization and in a separate division (Letter dated March 29, 2010 N 03-04-06/55).
Payment of personal income tax is made to the budget at the location of the corresponding separate division of the organization, regardless of whether it has a separate balance sheet and current account or not (Letter of the Ministry of Finance of Russia N 03-04-06/55).

Note. Payment of personal income tax is made to the budget at the place of registration of the separate division, regardless of its allocation to a separate balance sheet and the presence of a current account.

If a separate division is not allocated to a separate balance sheet and does not have a current account, this responsibility is performed by the parent organization. If there are several separate divisions, an organization registered with the tax authorities at the location of each of them transfers personal income tax amounts to the budget at the place of registration of each such division (Letters of the Ministry of Finance of Russia dated December 9, 2010 N 03-04-06/3-295, dated 07/01/2010 N 03-04-06/8-138).
To do this, she issues separate payment orders for each separate division, indicating the checkpoint assigned to it upon tax registration and the corresponding OKATO code of the municipality to whose budget the personal income tax is transferred (Letters of the Ministry of Finance of Russia dated July 3, 2009 N 03-04-06-01/ 153, Federal Tax Service of Russia for Moscow dated July 1, 2010 N 20-15/3/068888).
An exception is the situation when several separate divisions are located in one municipality. In this case, the parent organization has the right to transfer tax on the income of employees of these divisions in one payment (Letter of the Ministry of Finance of Russia N 03-04-06-01/153), since the calculated and withheld personal income tax on the income of employees of all separate divisions located in this municipality (or in the federal cities of Moscow and St. Petersburg), is transferred to the budget at the place of registration of one of them (Letter of the Ministry of Finance of Russia dated February 21, 2011 N 03-04-06/3-37).
Separate divisions that have a separate balance sheet and current account, making payments in favor of individuals, can independently fulfill the obligation to calculate, withhold and transfer tax to the budget (Letter of the Federal Tax Service of Russia dated April 17, 2009 N 3-5-04/460@). At the same time, the capital's tax authorities insist that the obligation to pay personal income tax in any case should be fulfilled only by the parent organization (Letter dated May 20, 2010 N 20-15/3/052927@).
We believe that for proper fulfillment in this situation of the obligation provided for in paragraph 7 of Art. 226 of the Tax Code of the Russian Federation, it is not of fundamental importance from which current account the tax is paid, the main thing is that it is transferred to the budget of the region in which the separate division is located.

If the personal income tax payment procedure is violated...

Perhaps the most common mistake associated with the payment of personal income tax calculated and withheld from the income of employees of a separate division is the transfer of this tax amount to the budget at the location of the parent organization. In other words, when in payment orders, instead of the OKATO code of the municipal entity at the place of registration of the separate division, the tax agent indicates the OKATO code at the location of the parent organization. In this case, the Federal Treasury account in payment orders is indicated as correct.
Fine. In practice, this circumstance is often the basis for bringing the tax agent to liability under Art. 123 Tax Code of the Russian Federation.

Note. Responsibility provided for in Art. 123 of the Tax Code of the Russian Federation, occurs only in the case when the tax agent unlawfully does not transfer or transfers an incomplete amount of tax.

At the same time, the fulfillment of the obligation to pay tax does not depend on the correct indication of the OKATO code in payment documents (Clause 4 of Article 45 of the Tax Code of the Russian Federation). If the Federal Treasury account is correctly indicated, the tax amount in any case goes to the Russian budget system (Resolution of the Federal Antimonopoly Service ZSO dated June 23, 2010 in case No. A27-14315/2009).

From the literal interpretation of Art. 123 of the Tax Code of the Russian Federation it follows that liability, according to this norm, occurs only in the case when the tax agent unlawfully does not transfer or transfers an incomplete amount of tax subject to withholding and transfer by the tax agent.
Thus, the indication in the payment order of the transfer of tax calculated from the income of employees of the unit, the OKATO code of the municipality at the location of the parent organization does not lead to failure to fulfill the obligation established in clause 7 of Art. 226 Tax Code of the Russian Federation. In this case, only the procedure for transferring personal income tax is violated (Resolution of the Federal Antimonopoly Service of the Central District of February 13, 2009 in case No. A64-2317/08-26), therefore, the grounds for holding the tax agent liable under Art. 123 of the Tax Code of the Russian Federation, absent. This conclusion was reached by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 14519/08 dated March 24, 2009.
Taking into account the position of the highest arbitrators, the tax agent will most likely be able to challenge in court the actions of the tax authorities aimed at bringing him to justice under Art. 123 of the Tax Code of the Russian Federation and the imposition of penalties (see Resolutions of the Federal Antimonopoly Service of the Moscow Region dated May 19, 2010 N KA-A40/4516-10, dated October 13, 2009 N KA-A40/10725-09). Please note once again that in all the examples from arbitration practice listed in this section, the tax was paid to the correct account of the Federal Treasury.

In this situation, the demands of the tax authority to re-pay the amount of personal income tax to the budget at the location of the separate division will also be unlawful, since in this case there are no grounds for inviting the tax agent to pay the tax at his own expense (Resolution of the Federal Antimonopoly Service of the Central Election Commission dated 07/08/2010 in case No. A64- 6646/09).

Note. By virtue of clause 9 of Art. 226 of the Tax Code of the Russian Federation, payment of tax at the expense of tax agents is not allowed.

Penalty. Regarding the issue of accrual of penalties in a situation where the parent organization transfers personal income tax calculated and withheld from the income of employees of separate divisions at its location, the following must be taken into account.
Accrual of penalties by virtue of clause 1 of Art. 75 of the Tax Code of the Russian Federation is possible only if the taxpayer has an actual debt to the budget.
According to the Federal Tax Service of Russia (Letter dated October 31, 2005 N 04-1-02/844@), if the parent organization and the separate division are located in the same subject of the Russian Federation, then arrears do not arise (after all, the tax in this case is credited to the same budget ), which means that there are no grounds for accruing penalties in the case of personal income tax transfer in full at the location of the parent organization (see also Resolutions of the Federal Antimonopoly Service of the North-West District dated October 20, 2010 in case No. A66-15290/2009, FAS Moscow Region dated May 19, 2010 No. KA- A40/4516-10).

At the same time, there are court decisions in which directly opposite conclusions are made, for example in the Resolutions of the FAS UO dated December 22, 2010 N F09-10219/10-S2, FAS VSO dated September 10, 2008 N A33-356/08-F02-3828/ 08. Moreover, after the adoption of the last of the named Resolutions, the tax agent, not agreeing with the accrued penalties, appealed the decision of the FAS VSO by appealing to the Presidium of the Supreme Arbitration Court of the Russian Federation (the above-mentioned Resolution dated March 24, 2009 N 14519/08), while in relation to the accrued penalties the decision (under reasons unknown to us) was not appealed.
In a situation where the parent organization and a separate division are located in different constituent entities of the Russian Federation, judicial practice has also not reached a consensus regarding the legality of accruing penalties.
Some decisions conclude that penalties are not charged, since this tax is federal and the direction of part of the funds to one municipal budget instead of another indicates only a violation of the procedure for its payment, and not the deadlines (see Resolution of the Federal Antimonopoly Service of the Moscow Region dated January 17, 2011 N KA-A40/17435-10, dated 10/08/2008 N KA-A40/8752-08).

Note. Personal income tax, in accordance with Art. 13 of the Tax Code of the Russian Federation, is a federal tax and is obligatory for payment throughout the Russian Federation.

In particular, the FAS NWO, in its Resolution dated August 2, 2007 in case No. A56-12516/2006, emphasized that penalties in this situation, in accordance with Art. 75 of the Tax Code of the Russian Federation, can only be accrued to the tax agent (which, by virtue of clause 7 of Article 226 of the Tax Code of the Russian Federation, is the parent organization), and not to a separate division. Since personal income tax was paid to the budget at the place of registration of the parent organization, there are no grounds for accruing penalties.
Later, in the Resolutions of 03.12.2010 in case No. A05-3474/2010, of 02.11.2010 in case No. A56-11197/2010, of 19.10.2010 in case No. A56-81805/2009, the FAS SZO expressed the opposite point of view (see . also Resolutions of the FAS Moscow Region dated October 13, 2009 N KA-A40/10725-09, FAS Central District dated February 13, 2009 in case N A64-2317/08-26).
Please note that the above arbitration practice concerns situations that arose before January 1, 2008. Federal Law of July 27, 2006 N 137-FZ in Art. 78 of the Tax Code of the Russian Federation, changes were made (which apply from January 1, 2008) to allow offsets not by budget levels, but by types of taxes.
According to paragraph 3 of Art. 78 of the Tax Code of the Russian Federation, the tax authority is obliged to inform the taxpayer (tax agent) about each fact of excessive payment of tax that has become known to him, and, by virtue of clause 5 of the said article, to independently make an offset against the arrears. If there is an overpayment and arrears of personal income tax in the same amount in the budgets of different subjects of the Federation, the tax authority, starting from the named date, must carry out an offset, and not accrue arrears and penalties. Such conclusions were made by the Federal Antimonopoly Service of the North-West Zone in the Resolution dated 03/04/2011 in case No. A56-43014/2010, recognizing the accrual of penalties for personal income tax for the tax period 2008 as unlawful. While the accrual of penalties for the periods 2006 and 2007. The cassation court found it lawful.
In this regard, we consider it appropriate to recall that if personal income tax is transferred to the budget not at the place of registration of the unit, but at the location of the parent organization, the tax agent has the right to make clarifications to the payment orders. This opportunity is provided to him by the norm established by paragraph 7 of Art. 45 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated 02/07/2011 N 03-02-07/1-39).

According to this rule, a tax agent can clarify the OKATO code by submitting a corresponding application to the tax authority at the location of the parent organization. If there is such an application (and after a joint reconciliation of calculations, if any), the tax authority makes a decision to clarify the payment. In this case, the payment is specified on the day of actual payment of the tax to the budget system of the Russian Federation to the appropriate account of the Federal Treasury.

Note. According to paragraph 7 of Art. 45 of the Tax Code of the Russian Federation, a tax agent has the right to submit an application to the tax authority to clarify the OKATO code in the payment order.

In addition, the tax authority is obliged to recalculate penalties accrued on the amount of tax for the period from the date of its actual payment to the budget system of the Russian Federation to the appropriate account of the Federal Treasury until the day the tax authority makes a decision to clarify the payment.
Thus, by contacting the tax office with an application to clarify the OKATO code in payment orders for the transfer of personal income tax, the tax agent, apparently, will be able to save himself not only from the claims of controllers, but also from additional costs for paying penalties. And in court, this statement can serve as an additional argument when appealing the unlawful accrual of penalties. For example, in the above-mentioned Resolution of the Federal Antimonopoly Service UO dated December 22, 2010 N F09-10219/10-C2, the tax agent’s request was denied, since the fact that he applied to the tax authority with an application to clarify the payment due to an error when filling out a payment order has not been confirmed.
Let us add that the tax authority is unlikely to clarify the payment if you contact it with such a statement after the expiration of a three-year period from the date of transfer of the tax to the budget system (such a need may arise in a situation where an error in filling out a payment order is revealed, for example, based on the results of a field visit tax audit). Despite the absence in Art. 45 of the Tax Code of the Russian Federation for a special period during which the taxpayer can apply to the tax authority with an application to clarify the payment, controllers will most likely be guided by clause 7 of Art. 78 of the Tax Code of the Russian Federation, which establishes the period during which the taxpayer, directly through the tax authority, can refund (offset) the amount of overpaid tax. This is evidenced by the explanations given by the Ministry of Finance of Russia in Letter dated July 31, 2008 N 03-02-07/1-324. And in Letter dated November 26, 2008 N 03-02-07/1-478, financiers recommended that taxpayers go straight to court to clarify payment beyond a three-year period, but provided that three years have not passed from the moment the tax agent found out or should was informed about an error in the payment order (clause 2 of the Constitutional Court of the Russian Federation of June 21, 2001 N 173-O, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 13, 2010 N 17372/09).

The procedure for recording income and submitting information in form 2-NDFL

As noted above, in addition to the obligation to calculate, withhold and pay personal income tax, tax agents by virtue of Art. 230 of the Tax Code of the Russian Federation are also required to keep records of the income of individuals in Form 1-NDFL, provide them with tax deductions, and also submit information in Form 2-NDFL to the tax authority.
Since this norm states that the tax agent submits information about income to the tax authority at the place of its registration, the question arises: does this mean only the place of registration of the organization itself or the place of registration of both the organization itself and its separate divisions?
Taking into account the latest clarifications from officials of the financial department, which note that the obligation of tax agents to provide information on the income of individuals to the tax authority at the place of their registration corresponds with the obligation of tax agents to pay the amount of tax (see Letters dated 09.12.2010 N 03-04-06 /3-295, dated 08/16/2010 N 03-04-06/3-180, dated 08/28/2009 N 03-04-06-01/224), we can draw the following conclusion: separate divisions of organizations, not being tax agents, has the right to fulfill the duties of tax agents assigned to the organization by legislation on taxes and fees.

Note. According to officials, the obligation of a tax agent to submit information in Form 2-NDFL to the tax authority at the place of its registration corresponds with the obligation to pay tax.

In other words, such a division has the right not only to independently calculate personal income tax from the income of employees and transfer it to the budget at the place of its registration, but also to provide information on accrued and withheld amounts of tax (The procedure for filling out a 2-NDFL certificate by an organization that has separate divisions is explained in the Letters Federal Tax Service of Russia dated February 24, 2011 N KE-4-3/2975, dated October 14, 2010 N ShS-37-3/13344) to the tax authority with which it is registered. Similar explanations are contained in Letters of the Federal Tax Service of Russia dated January 22, 2009 N 3-5-04/038@, Ministry of Finance of Russia dated December 3, 2008 N 03-04-07-01/244.

In arbitration practice, there are decisions in which courts recognize as unlawful the actions of tax authorities who hold tax agents accountable (provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation) for failure to provide information in Form 2-NDFL about the income of employees of separate divisions at the place of registration of the parent organization ( see Resolutions of the FAS ZSO dated April 27, 2009 N F04-2593/2009 (5604-A70-26), FAS VSO dated February 12, 2009 N A33-7606/08-F02-228/09).
At the same time, Moscow tax authorities express the opinion that information on the income of employees of separate divisions can be provided both at the place of registration of the organization and at the place of registration of the separate division (Letters dated 07/01/2010 N 20-15/3/068888, dated 01/21/2010 N 20-15/3/4619).

Note! If during the tax period an employee worked both in a separate division and in the parent organization, information about his income must be submitted, respectively, to the tax authority at the location of the separate division and to the tax authority at the location of the parent organization. This is what the Russian Ministry of Finance thinks in Letter dated March 29, 2010 N 03-04-06/55. Whereas, according to the Federal Tax Service of Russia, it is more appropriate to submit information about the income of such an employee to the tax authority at the place of registration of the parent organization (Letter dated March 13, 2008 N 04-1-05/0916@).

When a separate division is not allocated to a separate balance sheet and does not have a current account, we believe that the question does not arise about who should fulfill the duties of a tax agent - the parent organization or the division. Of course, in such a situation, these responsibilities are assigned to the parent organization.
Let us note that in order to properly fulfill the obligation to submit certificates to the tax authority in form 2-NDFL (Article 230 of the Tax Code of the Russian Federation), the head of a separate division must have a power of attorney to represent the interests of the parent organization at the location of the separate division (since the tax agent, by virtue of clause 7 Article 226 of the Tax Code of the Russian Federation in any case is the parent organization). This is evidenced by the explanations given in Letters of the Ministry of Finance of Russia dated January 16, 2007 N 03-04-06-01/2, Federal Tax Service of Russia dated March 7, 2007 N 23-3-04/238@.
In this regard, we note that income certificates submitted to the tax authority in Form 2-NDFL must be issued on behalf of the legal entity and signed by the head of the unit on the basis of a power of attorney to represent his interests in the tax authorities. Such certificates must also be certified by the seal of the department (Order of the Federal Tax Service of Russia dated November 17, 2010 N 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 ").

The procedure for paying personal income tax by separate divisions is quite precisely regulated by paragraph 7 of Article 226 of the Tax Code of the Russian Federation. According to this paragraph, tax agents - Russian organizations with separate divisions are required to transfer calculated and withheld tax amounts to the budget both at their location and at the location of each of their separate divisions, that is, at the place of registration of the tax agent with the tax authority. However, when calculating and paying taxes, errors may be made, for example, tax is transferred not to the place of registration of a separate division, but to the place of registration of the parent organization. In this case, the accountant has a question: is it legal to charge penalties if personal income tax is paid in this way? On the one hand, it can be considered that the obligation to pay tax has been fulfilled, but on the other hand, that it has been fulfilled improperly. However, the issue of the relationship between the accrual of penalties and the distribution of tax amounts between the budgets of the parent company and a separate division is not regulated by tax legislation. The answer to this question was given by the Federal Tax Service in letter dated April 7, 2015 No. N BS-4-11/5717@. Let's consider.

The concept of a separate division is established by Article 11 of the Tax Code of the Russian Federation. This is any division territorially isolated from it, at the location of which stationary workplaces are equipped, created for a period of more than one month. Moreover, recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division.

Taxpayers - Russian organizations are required to report to the tax authority at their location about all separate divisions created by them on the territory of the Russian Federation (with the exception of branches and representative offices) within one month from the date of creation of the separate division (clause 3, paragraph 2, article 23 Tax Code of the Russian Federation). Registration is carried out by tax authorities on the basis of messages sent by this organization in form N S-09-3-1 (approved by order of the Federal Tax Service of Russia dated 06/09/2011 N ММВ-7-6/362@) within five working days from the date of receipt the specified message.

Let us note that the fulfillment by an organization of the obligation to report the creation of a separate division does not depend on the presence of this separate division having a separate balance sheet, current account, as well as the accrual of payments and other remuneration in favor of individuals.

Also, a tax agent-organization has an obligation to submit to the tax authority at the place of its registration information about the income of individuals for the expired tax period and the amounts accrued, withheld and transferred to the budget system of the Russian Federation for this tax annually no later than April 1 of the year following the expired tax period. period, according to form 2-NDFL (clause 2 of article 230 of the Tax Code of the Russian Federation).

This information about the income of employees of a separate division must be provided to the tax authority at the location of the separate division to which personal income tax is transferred from the income of these employees. This position is justified by the fact that tax agents must submit information about the income of individuals to the tax authority in the same order in which the tax itself is paid (Letter of the Ministry of Finance of Russia dated January 22, 2013 N 03-04-06/3-17). Tax authorities adhere to a similar position (Letter of the Federal Tax Service of Russia for Moscow dated February 27, 2012 N 20-15/016463@).

Thus, the parent organization must transfer the amount of tax withheld from wages and other income of individuals received for work in a separate unit to the location of such unit. Article 75 of the Tax Code of the Russian Federation does not contain provisions providing for the dependence of the accrual of penalties on the procedure for distributing tax amounts between budgets of different levels. Therefore, in the case of payment of personal income tax not at the location of a separate division, but at the location of the parent organization, there is no talk of violating the deadlines for paying the tax.

The courts also share this point of view. For example, the Federal Antimonopoly Service of the North-Western District indicated in its Resolution that since the tax amount was transferred in full to the location of the parent organization, repeated payment of the tax by the tax agent at the expense of its own funds at the place of registration of the separate division is contrary to paragraph 9 of Article 226 of the Tax Code of the Russian Federation. The accrual of penalties is possible only if the taxpayer has an actual debt to the budget. In this case, the accrual of penalties is unlawful (Resolution of the Federal Antimonopoly Service of the North-Western District dated March 31, 2011 in case No. A56-94715/2009). Confirmation can also be found in the Resolution of the FAS Moscow District dated October 8, 2008 in case No. A40-48736/07-114-270, the Resolution of the FAS Moscow District dated January 17, 2011 in case No. A40-4800/10-115-55 and others ( Letter dated April 7, 2015 No. N BS-4-11/5717@).

Back in 2007, the Federal Tax Service for Moscow indicated that it is impossible to pay taxes centrally, with one payment order at the location of the parent organization, both for employees of the head office and for employees of a separate division (Letter of the Federal Tax Service for Moscow dated 06/05/2007 N 28-11/052734).

However, there is an exception to this rule; we are talking about the location of several separate divisions of an organization in one municipality, the federal cities of Moscow, St. Petersburg and Sevastopol in territories under the jurisdiction of different tax authorities. In this case, the organization can be registered by the tax authority at the location of one of its separate divisions, determined by this organization independently (clause 4 of Article 83 of the Tax Code of the Russian Federation).

In this case, personal income tax calculated and withheld from the income of employees of all separate divisions located in this municipal entity must be transferred to the budget at the place of registration of such a separate division (letter of the Ministry of Finance of Russia dated June 22, 2012 N 03-04-06/3-174) .

Please note that the possibility of paying personal income tax and submitting reports for separate divisions located in the same municipality as the head office is not refuted by the regulatory authorities, but is not confirmed either (letter of the Ministry of Finance of Russia dated January 22, 2013 N 03-04-06/ 3-17). Therefore, it can be said that in the notification of the choice of tax authority, the organization can also indicate the tax authority of the head office. At the same time, personal income tax amounts from employees of a separate division paid to the budget at the location of the parent organization, provided that they are credited to the same budget, cannot be considered as tax (letter of the Federal Tax Service dated October 31, 2005 N 04-1-02/844 ).

We thank our reader, Khudova Svetlana Mikhailovna, auditor of BINAR on Maroseyka LLC, Moscow, for the topic of the article.

Our reader asked for help understanding her situation. The organization is registered with one of the Federal Tax Service Inspectors of the city, divided into districts, and each district has its own OKATO code (as, for example, in Moscow or St. Petersburg). In the same city, she opened a separate division (OP). It was registered with another Federal Tax Service Inspectorate of the same city, not the one in which the organization itself is registered. At the same time, the OKATO codes of the territories where the organization and the OP are located are different.

By the way, the following situation is also possible: the organization and its OP are located in different cities in the region, each city has its own OKATO, but they are all registered with the same inter-district Federal Tax Service Inspectorate of the region. For example, interdistrict Inspectorate of the Federal Tax Service of Russia No. 17 for the Moscow region includes the urban settlements of Lyubertsy, Kraskovo, Malakhovka, Oktyabrsky, Tomilino, the urban districts of Kotelniki, Dzerzhinsky, Lytkarino. And each of them has its own OKATO code.

The organization transferred personal income tax for all employees only at its location and indicated the details of the organization itself on the payment slips: TIN, KPP and OKATO. Did she do the right thing? Will the tax authorities have any complaints in this case? And if claims are possible, how to avoid them?

How to pay personal income tax for OP employees

According to the law, personal income tax withheld from the income of employees of an OP must be transferred to the budget exactly at the location of the OP P clause 7 art. 226 Tax Code of the Russian Federation. Therefore, tax authorities have long insisted on issuing separate payments for the transfer of personal income tax for each OP. They recommend indicating the details of a specific OP in payment slips, namely its checkpoint and the OKATO code of the municipality on whose territory the OP is located. P Letter of the Federal Tax Service of Russia dated August 3, 2011 No. AS-4-3/12547; Letters of the Federal Tax Service of Russia for Moscow dated July 1, 2010 No. 20-15/3/068888, dated January 24, 2008 No. 28-11/006047. As tax officials explain, this is necessary so that personal income tax gets into the budget of the municipality where the OP is located. In general, the Ministry of Finance adheres to the same position. True, only if each OP is registered with its own IFN WITH Letters of the Ministry of Finance of Russia dated December 9, 2010 No. 03-04-06/3-295, dated March 29, 2010 No. 03-04-06/55, dated March 29, 2010 No. 03-04-06/54.

In the situation we are considering, personal income tax for all employees of the organization was transferred in one payment slip with the details of the organization itself. That is, based on the position of the tax authorities, the organization paid personal income tax incorrectly. After all, OKATO codes of municipalities (for example, in Moscow - intracity municipalities), in the territories of which the organization and the OP are located, are different.

What will be the “wrong” transfer of personal income tax?

According to tax authorities, violation of the procedure for transferring personal income tax leads to the formation of arrears in the budget of a particular municipality. After all, despite the fact that personal income tax is a federal tax th Art. 13 Tax Code of the Russian Federation and is transferred to a single treasury account, subsequently it is distributed according to standards between budgets of different levels. And part of the tax goes to the municipal budget I clause 2 art. 56, paragraph 2 of Art. 61, paragraph 2 of Art. 61.1,. And since the tax is distributed according to the OKATO code, part of the personal income tax (due to the municipality) will go to the budget of the municipality whose OKATO code is indicated in the payment order And clause 16 of the Procedure for accounting by the Federal Treasury of revenues to the budget system of the Russian Federation... approved. By Order of the Ministry of Finance of Russia dated September 5, 2008 No. 92n.

For example, if an organization and its OP are located in Moscow and when transferring tax, the organization indicated the OKATO code at its location, then personal income tax will only go to the budget of the intra-city municipality of Moscow on whose territory the organization is located. And the budget of another intra-city municipality, where the OP is located, will not receive anything T subp. 1 clause 1, clause 2 art. 8 of the Law of Moscow dated December 8, 2010 No. 53 “On the budget of the city of Moscow for 2011”; Appendix No. 9 to this Law. And tax officials believe that there is arrears in this budget. That’s why they charge a penalty when checking And clause 1 art. 75 Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated January 17, 2006 No. 04-1-03/21.

By the way, previously inspectors also imposed a fine of 20% of the amount to be transferred on the organization for incorrect transfer of personal income tax. Yu Art. 123 Tax Code of the Russian Federation. But lately they haven't been doing that. After all, the Supreme Arbitration Court, first in 2005 and then in 2009, indicated that the Tax Code of the Russian Federation does not provide for liability for violation of the procedure for transferring withheld personal income tax. And if the organization withheld tax from all employees and transferred it in full to the budget in a timely manner (even if only at its location), then it should be fined for failure to transfer personal income tax under Art. 123 of the Tax Code of the Russian Federation is prohibited I Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 24, 2009 No. 14519/08, dated August 23, 2005 No. 645/05. But if suddenly the Federal Tax Service Inspectorate tries to fine your organization, you can challenge this fine, referring to the position of the Supreme Arbitration Court of the Russian Federation.

What to object to in court

If the tax authorities demand that you re-translate your personal income tax with the OKATO details of each division and charge you a penalty, you can try to resolve this issue first in a pre-trial manner (at the stage of considering disagreements on the audit report). Well, if this fails, then you can argue in court. The chances of success are high.

1. To the request to re-list personal income tax at the location of the OP You can argue that, in fact, you have already withheld tax from employees and transferred it to the budget, even if using the wrong details. If you remit the tax again, you will have to do it at your own expense. And this is directly prohibited by Ch. 23 NK RF clause 9 art. 226 Tax Code of the Russian Federation. As an additional argument, you can refer to the explanation of the Federal Tax Service itself, which indicated that if an organization transferred to the budget an amount of personal income tax that exceeds the amount of tax withheld from the income of employees, then this amount is not personal income tax. This is simply money belonging to the organization, “erroneously transferred to the budget system of the Russian Federation.” And the organization can only return them to its current account by writing a statement e.

And when you re-translate the tax, this is exactly the situation you get. After all, in this case, you will no longer transfer to the budget the tax withheld from the income of employees (you have already transferred it to the location of the organization itself), but your own money. And then they will have to be returned from the budget according to your application.

2. On demand to pay penalties you can make arguments like this:

• penalty - compensation for budget losses as a result of non-receipt of tax amounts on time To Determination of the Constitutional Court of the Russian Federation dated July 4, 2002 No. 202-O; Resolution of the Constitutional Court of the Russian Federation dated December 17, 1996 No. 20-P. And when personal income tax was transferred to the location of the organization, and not the OP, the budget of the municipality as a whole received the tax in full. For example, the budget of the city of Moscow has a special status and the budgets of intra-city municipalities are an integral part of the unified budget of the city of Moscow. And personal income tax is credited to the city budget in the amount of 100 %pp. 2, 3 tbsp. 56, paragraph 2 of Art. 61.2 of the Budget Code of the Russian Federation; clause 1 art. 2, sub. 1 clause 1, clause 2 art. 8 of the Law of Moscow dated December 8, 2010 No. 53; Appendix No. 9 to this Law.

And since there is no arrears on personal income tax, then there are no grounds for accruing penalties And clause 1 art. 75 Tax Code of the Russian Federation. And many courts share this position T Resolution of the Federal Antimonopoly Service of the Far East Branch of October 11, 2011 No. F03-4920/2011; FAS NWO dated October 20, 2010 No. A66-15290/2009; FAS ZSO dated May 13, 2010 No. A45-9320/2009.

But we want to warn you that there are courts that consider it legal to charge penalties for non-receipt of personal income tax to the local budget T Resolution of the Federal Antimonopoly Service UO dated December 22, 2010 No. Ф09-10219/10-С2; FAS Central Election Commission dated February 13, 2009 No. A64-2317/08-26;

• the obligation to pay tax is considered fulfilled from the moment of presentation to the bank of an order to transfer money to the appropriate Federal Treasury account (if the required amount is available in the current account )subp. 1 clause 3, clause 8 art. 45 Tax Code of the Russian Federation. So, if the Treasury account is correctly indicated, the tax amount goes to the budget system, and in this case there is no arrears. And the fact that the wrong OKATO code is indicated in this payment does not matter. The court also agrees that there are no grounds for accruing penalties if the OKATO code is incorrectly indicated on payment slips for the transfer of personal income tax. s clause 7 art. 45 Tax Code of the Russian Federation; Resolutions of the Federal Antimonopoly Service of the Moscow Region dated July 29, 2011 No. KA-A40/7917-11, dated June 30, 2011 No. KA-A40/6142-11-2, dated October 8, 2010 No. KA-A40/11919-10, dated February 17, 2010 No. KA -A40/368-10; FAS VSO dated 09/01/2011 No. A33-3885/2010, dated 04/26/2010 No. A19-13821/09, dated 11/11/2008 No. A33-2043/08-F02-5509/08; FAS NWO dated March 14, 2011 No. A05-4762/2010; FAS CO dated 07/08/2010 No. A64-6646/09; Eighteenth AAS dated May 25, 2010 No. 18AP-3779/2010.

Is it possible to clarify the payment?

The Tax Code provides that if an error in a payment order does not result in the tax not being transferred to the budget to the required Federal Treasury account, it can be corrected. To do this, you need to submit an application to the Federal Tax Service with a request to clarify the fee and clause 7 art. 45 Tax Code of the Russian Federation.

As we have already found out, if the OKATO code is indicated incorrectly, the tax still goes to the budget. And, for example, the court of the West Siberian District, examining a similar dispute, indicated that an error in the OKATO code when transferring personal income tax to the location of the organization, and not the OP, can be corrected by filing an application for clarification of payment A Resolutions of the Federal Antimonopoly Service No. A27-19112/2009 dated June 23, 2010, No. A27-14315/2009 dated June 23, 2010.

As a rule, tax authorities clarify the entire payment. And in the situation under consideration, only part of the incorrectly listed personal income tax needs to be clarified. That is, in the application for clarification of payment, it is necessary to indicate that such and such an amount of personal income tax from the payment slip, to which the tax was transferred to the location of the organization, is due for payment by employees of the OP with such and such OKATO code. The Federal Tax Service Inspectorate, in principle, can decide to partially clarify the personal income tax payment; there are no obstacles to this T.

If the tax authorities refuse to partially clarify your payment and say that they can transfer only the entire personal income tax amount indicated in the payment slip to another OKATO code e Order of the Federal Tax Service of Russia dated April 2, 2007 No. MM-3-10/187@, then you should not agree to this. After all, if you make such a clarification, you will have an underpayment of personal income tax at the location of the organization.

It also makes no sense to make clarifications only for some payments (for example, transfer the entire January personal income tax to the OP, leave the entire February one to the organization). At first glance, it seems that this will help distribute payments between the organization and the OP and reduce the amount of penalties. But in reality, difficulties will arise if at some point there is an overpayment for the OP’s employees. As we have already said, the Federal Tax Service believes that the amount transferred to the budget and exceeding the tax withheld from employees is not an overpayment of personal income tax L Letter of the Federal Tax Service of Russia dated July 4, 2011 No. ED-4-3/10764. And the tax authorities will not count such overpaid amounts against future personal income tax payments.

How to simplify your life?

Problems with incorrect transfer of personal income tax can be avoided. To do this, you need to register all your divisions with one tax office. After all, when an organization opens several OPs in one municipality in territories under the jurisdiction of different Federal Tax Service Inspectors (as, for example, in Moscow or St. Petersburg), the Tax Code of the Russian Federation allows you to select the responsible OP and register all divisions with one Federal Tax Service Inspectorate at its location Yu clause 4 art. 83 Tax Code of the Russian Federation.

Moreover, this can be done even if you first registered at the location of each OP, and then wanted to re-register them. As the Federal Tax Service of Russia explained to us, the notification of the selection of a tax authority in the form No. 1-6-Accounting Appendix No. 4 to the Order of the Federal Tax Service of Russia dated August 11, 2011 No. YAK-7-6/488@ can be sent at any time. It does not matter how much time has passed since the date of registration of these units. The Federal Tax Service Inspectorate at the location of the responsible OP will register your units, and the inspectorates in which these OP were previously registered will remove them from their register. A clause 2.6 Letter of the Federal Tax Service of Russia dated 09/03/2010 No. MN-37-6/10623@.

And when all OPs are registered with the same Federal Tax Service, then there are no problems with transferring personal income tax. As the Ministry of Finance of Russia explained, personal income tax for employees of all OPs can be transferred to the budget at the place of registration of the responsible O P Letters of the Ministry of Finance of Russia dated September 21, 2011 No. 03-04-06/3-230, dated February 21, 2011 No. 03-04-06/3-37, dated March 15, 2010 No. 03-04-06/3-33. In this case, you need to draw up one payment slip and indicate in it the checkpoint and OKATO of the responsible OP.

Conclusion

If you have several OPs registered with different tax inspectorates, you can pay personal income tax without problems with one payment only after you register all OPs with one tax office.

If you don’t want to argue with the tax authorities, then you can:

• <или>re-pay the personal income tax at the location of each unit, indicating the correct OKATO codes, and ask the inspectorate at the location of the organization to return the overpaid personal income tax;
• <или>submit to the Federal Tax Service at the location of the organization an application to offset the personal income tax paid at this location against the personal income tax payable at the location of the units.

But keep in mind that both when re-paying personal income tax and when offset, the tax inspectorate will charge you penalties for the period from the day when personal income tax should have been transferred to the location of the OP until the day of its re-transfer or the inspectorate makes a decision on offset e pp. 1, 3, pp. 5, 7 tbsp. 75 Tax Code of the Russian Federation. And it’s unlikely that you’ll be able to fight off these penalties. After all, by taking these actions, you thereby “admit yourself guilty” of incorrectly transferring personal income tax. So it’s better to try to clarify the payments.