Since services rendering to the population without use of cash registers envisages keeping of strict records which are equalized to a cash receipt, the decree of the Government of the Russian Federation establishes the possibility to make an electronic form with the help of an automated system. The following requirements are mentioned:
a) there must be a protection against non-sanctioned access to the automated system, all the operations with the paper’s form should be identified, registered and saved for no less than 5 years;
б) while filling the form and document output the automated system should save the unique number and series number of a form.
3. The decision of the Supreme Arbitrary Court of the Russian Federation from 21 January 2008 No 14430/07 on the right of a tax-payer to apply property mortgage and not only a guarantee of a third party, on which taxation bodies insisted, as means to secure the execution of the liability on taxes and fees payment in case the dates for their payment are changed. Due to this fact some statements of regulatory documents issued by the Federal Tax Service of the Russian Federation are recognized as invalid.
4. The letter of the Ministry of Finance of the Russian Federation from 29 April 2008 No 01-SSh/30 clarifies the issue of the procedure for calculation and payment of the profit tax by budgetary institutions from the incomes received from renting of the property in federal ownership which was granted for them on conditions of day-to-day management.
According to chapter 25 of the Tax Code of the Russian Federation budgetary institutions, receiving incomes from a profitable activity are subject to pay profit taxes for organizations. At the same time, in the opinion of the Ministry of Finance of the Russian Federation there is no mechanism to guarantee execution of statements of budgetary and tax legislation of the Russian Federations to taxation of incomes, received from renting of the property in federal ownership, which do not allow making budgetary institutions answerable because of lack of the guilt.
According to the existing procedure, Согласно действующему порядку, in conformity with the order of the Ministry of Finance of the Russian Federation 30.06.2004 N 57n profits from renting of the property in federal ownership and granted to the budgetary institutions on conditions of day-to-day management are deposited for the balance account 40101 “Profits distributed by the Federal Treasury bodies among the levels of the budget system of the Russian Federation” wholly before payment of taxes and later are directed to subsidize those expenditures of these institutions in the form of additional budget financing.
Lack of the guilt for tax offence is one of the circumstances that make it impossible to take legal actions against the person for commitment of tax offence according to paragraph 2 article 109 of the Tax Code of the Russian Federation.
The Ministry of Finance of the Russian Federation clarifies that the territorial bodies of the Federal Treasury should take orders of payment by the budgetary institutions for organizations’ profit tax payment from renting, considered by the balance account 40101.
5.According to the Resolution of the Plenum of the Supreme Arbitrary Court of the Russian Federation from 10 April 2008 No 22 some issues concerning application of article 160 of the Civil Code of the Russian Federation are elucidated. (on recognizing deals made with the aim which is deliberately conflicting the norms of law, order and moral as invalid).
There are the deals whose aims, as well as establishment of rights and liabilities on their making, or desirable change or abolition of existing rights and liabilities (article 153 of the Civil Code) are deliberately conflicting the basis of law, order and moral. The Supreme Arbitrary Court clarifies that the aim of the deal can be recognized as deliberately conflicting the basis of law, order and moral only if during the court investigation, such design is found at least with one of the parties.
As to this point, recognition of deal as subject to article 169 differs from economic consequences of it as subject to article 170 (recognition of deal as invalid).
For deals made with the aim which is deliberately conflicting the norms of law, order and moral as invalid article 169 of the Civil Code envisages special consequences of invalidity such as following: restitution nonadmission and levy of parties for the benefit of the Russian Federation all received (owing) by the deal – both sides acting intentionally – and one-side restitution with simultaneous levy of all received (owing) by one party for the benefit of the Russian Federation – only one party of the deal acting with design.
In case the deal is recognized as invalid according to the article 170 the tax body calculates additional tax liabilities that result from tax evasion.
The Plenum of the Supreme Arbitrary Court of the Russian Federation draws attention to the fact that it is necessary for courts while considering disputes, arising from administrative, tax or other kinds of public relationships should take into account that according to article 169 of the Civil Code of the Russian Federation recovery of everything received (owed) by the deal for the benefit of the Russian Federation is the measure that is applied only as a special consequence of recognizing a deal as invalid. That is if a deal is recognized as a subject to article 169 of the Civil Code of the Russian Federation other sanctions established for committing public offences (administrative, tax etc.) cannot be applied.
For instance, the demand to apply consequences of recognizing a deal as invalid in the form of recovery of the received (owed) according to the deal for the benefit of the Russian Federation can be made according to article 169 of the Civil Code of the Russian Federation within the framework of task for control over production and realization of ethanol, alcohol and alcohol containing production, when deals directed for goods which can be dangerous for citizens’ health and life production and sale are disputed.
At the same time the demand of a tax body to apply the consequences of recognition the deals as invalid can be grounded by the fact that such a deal can was concluded in order to evade from taxes does not belong to the authority of a tax body since recovery of everything received (owed) by such a deal is not a measure, directed towards securing the tax payments to the budget.
That is why if during a tax examination of the fact whether the taxation base was deliberately lowered because of incorrect juridical qualification of the deals made by a tax-payer and estimation of tax consequences of their execution, the tax body following subparagraph 3 paragraph 2 article 45 of Tax Code of the Russian Federation has a right to change juridical qualification of the deal, status and nature of tax-payer’s activity independently and apply to the court with the demand to recover underpaid taxes (fines, duties). Then the court decides whether the re-qualification mentioned was well-grounded within the framework of tax dispute consideration. It is the court only that defines rights and liabilities of the tax-payer basing on the real economic content of the operation or all the operations regarded in their interrelations.
6. The letter of the Ministry of Finance of the Russian Federation from 24 April 2008 No 03-04-06-01/clarifies the issue whether the organization purchasing securities from natural persons is a tax agent and whether it should submit information on sums paid by the natural persons for the securities purchased from them to tax bodies to calculate personal incomes tax.
According to the explanation give by the Ministry of Finance of the Russian Federation, if an organization buys securities from natural persons on the basis of purchase-and-sale agreements without signing contracts for broker services, trustee management etc, it is not regarded as a tax agent, according to article 214.1 of the code, and it does not have to calculate and submit to tax bodies data on the incomes paid.
This position of the Ministry of Finance is not indisputable. In fact, the Ministry of Finance in its letter interprets application of chapter 226 (specific features of personal incomes tax calculation by tax agents) as to profits received from operations with securities (article 214.1), restricting the notion of tax agent by the list of persons, mentioned in article 214.1. At the same time in the article (214.1) the following is referred to as tax agent: “a broker, trustee or another person accomplishing transactions on the basis of trustee agreement, commission agreement or another agreement for the benefit of the taxpayer”. The notion of “another person accomplishing transactions for the taxpayer’s benefit” gives grounds for quite broad definition of the tax agents, accomplishing transactions with securities. On one hand, article 226 defines a tax agent as a “Russian organizations. Individual businessmen, solicitors having private practice, barristers, establishing barrister bureaux, as well as independent representations of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer has received incomes”, on the other hand it contains paragraph 2, where it is states that “calculation of the amounts and payments of tax according to the present article are made for all incomes of taxpayer whose source is the tax agent, except for the incomes concerning which the calculation and payment of the tax are made according to the articles 214.1 … ”. Comparison of the regulations stated in articles 214.1 and 226 cannot present juridical grounds for restriction of the list of persons recognized as tax agents applied by the Ministry of Finance. That is why it should be noted that the Ministry of Finance of the Russian Federation has introduced some (not arising from the Tax Code of the Russian Federation) limitations for the list of the persons, who, due to the functions they perform, should act as tax agents and inform tax bodies on incomes paid to natural persons by them – that is to apply paragraph article 226 and paragraph 2 article 230. Such a position of the Ministry of Finance of the Russian Federation might lead to the losses in taxation base and ungrounded growing in costs of tax administration due to necessity for tax bodies to collect information to check incomes, declared by natural persons as a tax base.
7. The Federal Law from 30 April 2008 No 55-FZ makes changes to the Tax Code of the Russian Federation in connection with the Federal Law “On additional insurance contributions to the savings part of the pension and government support for pension savings”, which defined the procedure for financing and cofinancing of additional insurance contributions for pension’s savings part (employer’s contributions paid for the benefit of the insured and sums of contributions received for co-financing of pension’s savings).
Contributions for co-financing as a part of governmental support and employer’s contributions are not subject to personal income tax if they do not exceed RUR 12000 a year per one employee for whom the contributions were paid by the employee.
The limit of social tax deduction was increased from RUR 100 thousand to RUR 120 thousand by agreements of voluntary pension insurance and for payment of additional insurance contributions for pension’s savings part.
Contributions made by the employee in the sum of those really made are not subject to single social tax if they do not exceed RUR 12000 a year per one employee, for whose benefit the employer made contributions (these contributions are referred to as expenditures for labor remuneration and in the sum together with contributions by agreements of long-term insurance of employees’ life, voluntary pension insurance or nongovernment pension provision – part 1,7 paragraph 16 article 255 of the Tax Code of the Russian Federation).
The statements come into force on 1 January 2009.
8. The letter of the Ministry of Finance of the Russian Federation and Federal Tax Service of the Russian Federation from 5 May 2008 No ShS-6-3/331@ explains the issue of documental support for the right of a tax-payer to receive social tax deduction for the sums of pension contributions paid by employees to nongovernmental pension funds registered in the territory of the Russian Federation.
The following documents, for instance, are regarded as those: the agreement for non-governmental pension provision, according to which the depositor is to pay pension contributions to the non-government pension fund for his own benefit or for the benefit of other participant of the non-government pension fund, payment documents testifying payment of pension contributions by taxpayer-depositor, documents, testifying relations with persons, for whose benefit the tax-payer is going to make contributions.
In case enterprise’s (organization’s) employees signed agreements of non-government pension provision with non-government pension fund and pension contributions to non-government pension fund’s accounts are made by the enterprise’s (organization’s) accounts department with one payment order with attachment of the list, containing information on depositors and sums of contributions, and the sum necessary for transfer is withheld directly from the depositors’ wages, to obtain tax deductions while applying to a tax body taxpayers should additionally submit excerpts from the list in the established form, giving the information on the particular depositor and sums of pension contributions transferred on his behalf during taxation period.
Материалы этого сайта размещены для ознакомления, все права принадлежат их авторам.
Если Вы не согласны с тем, что Ваш материал размещён на этом сайте, пожалуйста, напишите нам, мы в течении 1-2 рабочих дней удалим его.