Definition of December 30, 2017 No. 309-KG17-19423
The Supreme Court of the Russian Federation in Decision No. 309-KG17-19423 of December 18, 2017 concluded that if the value of gifts given to workers on the occasion of the holiday does not depend on the length of service, position held and the results of labor, occurs.
The crux of the matter is as follows. Employees of the organization received valuable gifts on the occasion of the International Women's Day on March 8. Gifts (each cost was 1500 rubles.) Were issued on the basis of the order of the director.
The inspectors from the FSS stated that payments in the form of a valuable gift were made within the framework of labor relations. Accordingly, the value of gifts is considered as an element of labor remuneration and is subject to insurance premiums.
But the courts of all instances with the position of the fund did not agree, noting the following. The delivery of gifts is due to the holiday on March 8 and is not related to the work activity of employees. Gifts did not differ in value, did not depend on the length of service, position and qualifications of the employee, the results and quality of work. Evidence that the issuance of the holiday date of gifts was regarded as a reward for labor or as compensation, incentive and incentive payments was not presented by the fund.
In addition, the court of first instance reminded that no payments are made for payments and other remunerations under civil law contracts, the subject of which is the transfer of ownership or other proprietary rights to property (property rights). Such contracts include a gift agreement. In this case, the gift contract must be made in writing only if the organization gives a gift worth more than 3000 rubles. In the described situation, gifts were given to employees in the framework of oral contracts, as the cost of each gift was 1500 rubles. Therefore, there are no grounds for assessing contributions.
As the resolution of the Moscow district from 05.06.2017 № A40-185135/16
In the Resolution, as Moscow district on 05.06.2017 № A40-185135/16 noted that the lack of a postcode application for state registration of a legal entity is grounds for refusal of registration.
The point is this. The tax Inspectorate refused to register the Organization due to the fact that the application form Р11001 were not filled paragraph 2.1 of section 2 (not specified zip code). Tax officials said that the information about the address (location) of a legal entity could not be regarded as complete and accurate.
In deciding in favor of inspections, the court pointed to the following. The applicant shall submit accurate and complete address information created by the organization. Address of the legal entity is a mandatory requisite of the application for registration. The location of the company is essential. In particular, they determined the place of performance of obligations, payment of taxes, jurisdiction of disputes. The indication of false information in constituent documents affecting the economic interests of an indefinite circle of persons who can enter into a relationship with society.
Submission of incomplete address information equivalent to the submission of false information created by the organization. And this is the basis for refusal in registration of the legal entity (clause 1 of article 23 of the Federal law from 08.08.2001 № 129-FZ). Because in this situation, index information is absent, the court found the refusal of the inspection of registration is valid.
The argument of the Organization that an index has been specified in the letter of guarantee and the registration authority could make the missing information, the court rejected. Justification —a letter of guarantee is not a document required for registration of a legal entity. In addition, the inspection is not obliged to rectify the documents submitted with incomplete, missing data.
The decision of the Supreme court of 30.05.2017 No. 78-АД17-19
In the Judgment of the Supreme court of 30.05.2017 No. 78-АД17-19 noted that employers or customers of services who has concluded an employment contract or civil law contract on performance of works (rendering of services) with the citizen of the Republic of Belarus do not need to notify the migration service.
The point is this. Under current law, employers and customers of works (services), involving for work of foreigners, are obliged to notify the territorial bodies of the FMS of Russia about the conclusion and termination (cancellation) of such employees employment and civil contracts. This must be done no later than three working days from the date of conclusion (termination, termination) of the contract (paragraph 8 of article 13 of the Federal law from 25.07.2002 № 115-FZ). Failure to notify the FMS on hiring a foreigner involves a serious fine or suspension of activity (h 3 and part 4 of article 18.15 of the administrative code).
A similar problem faced the organization from St. Petersburg. She was fined 400 thousand rubles for the fact that you did not notify the migration service about the employment of the citizen of the Republic of Belarus.
However, the Supreme court ruled the penalty illegal. He referred to the decision of the High Council of Community of Belarus and Russia from 22.06.1996 No. 4. In paragraph 1 of this document reads as follows: acting on the basis of national legislation, the regulation of attraction and use of foreign labor force in relation to the citizens of the Republic of Belarus in the Russian Federation is not applied. The citizens of the state of departure, engaged in labor activities on the territory of the state of employment shall enjoy equal rights with citizens of the state of employment in pay, working time and rest time, health and working conditions, and other matters of labour relations. From the mentioned document says that in respect of the citizens of the Republic of Belarus employed in Russia, and their employers, the provisions of the Law № 115-FZ does not apply. Consequently, even if the employer did not notify the FMS on hiring a citizen of Belarus, it is not the basis for the penalty under article 18.15 of the administrative code.
As the resolution of the Moscow district from 25.05.2017 No. F05-6488/2017
In the Resolution, as Moscow district on 25.05.2017 No. F05-6488/2017 noted that, if the payment system for payment of tax charged in a "troubled" Bank before the expiry of the payment deadline, then to read "stuck" payment in payment of arrears will not work. In this case, the taxpayer will have to pay tax again.
The point is this. The organization has made to the Bank payment order for payment of the single tax STS. The Bank has debited the amount from the settlement account of the organization, but the money did not reach the destination due to lack of funds in the correspondent account. After some time, credit institutions have been revoked license.
Because funds in the budget is not received, the inspection has exposed the requirement about payment of arrears. In response, the taxpayer sent the IRS a letter in which asked to recognize the obligation to pay tax for the year fulfilled. But representatives FNS have refused to offset these amounts, recognizing the organization's actions unfair.
The courts of three instances agreed with the auditors, stating the following. The organization has made to the Bank payment order for payment of the single tax on January 16. While an annual Declaration with the declared amount of tax payable filed with the on March 31. That is a controversial payment system was presented to the Bank before the taxpayer became obliged to pay tax. In addition, information about the financial instability of the Bank was published on the Internet. Accordingly, the organization could pay the tax through the current account opened with another Bank.
Transfer of funds before the deadline of tax payment and taxpayer awareness about the problems of the banking organizations is evidence of its misconduct, said judges. In the end, the arbitrators refused to recognize the obligation to pay the single tax have been fulfilled and ordered the taxpayer to pay the disputed amount of arrears.
Resolution as the far Eastern Federal district from 25.05.2017 № F03-1760/2017
In the Resolution as the far Eastern Federal district from 25.05.2017 № F03-1760/2017 noted that the period of leave child care employee (mother, father, child, other person actually caring for the child) on his application can work on a part-time job with retention of the right to receive benefits (clause 3 of article 256 of the LC RF). It is entitled to "child's" benefit during long trips such employee is not retained.
The point is this. The worker who was on leave to care for a child up to six years, went to work on conditions of incomplete working day. After some time she was sent on a business trip to another city for a few months. During business trips the employee had received average earnings, and "children's" allowance.
According to inspectors from the FSS, in the absence of the place of residence of the child, the employee actually had the opportunity to care for the child. So, allowance for the period of the trip she paid improperly.
In addition, representatives of FSS refused to offset the costs for the payment of "child" benefits for the period after a trip. As stated in the Fund, upon returning from business trip the worker had to file a leave to care for a child. Because the statements from her were not, then the benefit is not expected.
The courts of three instances stated the following. An employee who, during leave to care for the child was sent for a few months on a business trip, had no actual ability to care for the child. Therefore, the "child's" benefit for the period she is not supposed to.
However, with the decision of the FSS in terms of failure to offset the cost of benefits for the period after the end of the assignment judge did not agree. Rationale — the legislation does not provide re-apply for the allowance in the case of departure of the employee on a business trip.
As the resolution of the Moscow district № A40-125687/2016
The Resolution as 10.03.2017 from the Moscow district (case number A40-125687/2016) noted that the tax law comes from the fact that VAT is an important fact of posting of goods (works, services) in accounting. The bill, which capitalized goods (works, services) in this case does not matter. Fact reflect the cost of purchased goods (works, services) on account 08, and not on account 01 cannot serve as a basis for extension of the period provided for in clause 2 of article 173 of the tax code within which the organization can exercise their right to deduction of tax amounts.
As the resolution of the Moscow district from 09.03.2017, № A40-114424/2016
The Resolution as 09.03.2017 from the Moscow district (case number A40-114424/2016) with reference to paragraph 3 of article 269 and article 4 of RSFSR Law of 22.03.1991 No. 948-1 "On competition and restriction of monopolistic activity on commodity markets" noted that affiliated persons - individuals and legal entities, capable of exerting influence on legal entities and (or) physical persons engaged in entrepreneurial activities. Therefore, a controlled taxpayer debts to foreign organization, recognized the outstanding debt if the amount of such debt is more than 12.5 times the difference between the amount of the taxpayer's assets and the value of the taxpayer's obligations before the Russian organization that has the right to dispose more than 20 per cent of the authorized (share) capital (Fund) of a foreign company (legal entity) directly or indirectly owning more than 20 percent authorized (share) capital (Fund) of the taxpayer. Outstanding debt the amount of which is more than 12.5 times the difference between the amount of the taxpayer's assets and the value of the taxpayer's obligations before the Russian organization that is deemed a controlled debt of the taxpayer to foreign organization if the Russian organization has the right to dispose more than 20 per cent of the authorized (share) capital (Fund) of a foreign company (legal entity) directly or indirectly owning more than 20 percent authorized (share) capital (Fund) of the taxpayer.
The decision as Ural district from 21.02.2017 №F09-94/17
The Resolution as Ural district from 21.02.2017 №F09-94/17 noted that if the FSS established organization or entrepreneur discount rate for insurance contributions "injury", then he cannot undo his decision, citing the fact that the insured did not timely contributions.
The point is this. In October 2013, the Department of social insurance Fund established organization discount rate for insurance contributions "injury" for 2014 in the amount of 29 percent. But in 2015, after the inspection, inspectors found that in 2013, the organization did not timely contributions for April, may and June. In this regard, the Fund issued a decree on the abolition of the established discounts, and assessed additional contributions for 2014 in connection with the cancellation of the discount. As stated by the representatives of the FSS, the insured was in breach of paragraph 8 of the Rules establish discounts and surcharges (app. resolution of the Russian government of 30.05.2012 No. 524; hereinafter — the Rules). Under this paragraph, one of the conditions for the establishment of a discount is the timely payment of current insurance premiums.
The courts of three instances have decided that the cancellation of previously granted and used by the insurer discounts is impossible. The arbitrators noted that at the time of application with a statement of discount contributions receivable the organization was not. And the reason for the infringement of terms of payment of insurance premiums for April, may and June 2013 was an unplanned deterioration in 2013, the economic condition of the enterprise. Moreover, the Fund knew about this at the time of adoption of the decision on granting discounts.
In addition, at the time of issuance of the order in 2015 the price has ended. Since the Rules do not establish the procedure and grounds for cancellation of discounts and allowances, and on the date of filing of application about granting of discounts (October 2013) arrears in contributions was not contested then the order of the Fund is illegal.
The determination of the Supreme court of 06.04.2017 No. 306-КГ17-2349
The Supreme court of the Russian Federation in Definition from 06.04.2017 No. 306-КГ17-2349 came to the conclusion that the amount of monetary rewards for many years of diligent work and in connection with the anniversary date are not remunerated. In this regard, these payments in the base for calculation of insurance premiums are not included.
The point is this. The inspectors of the RPF assessed that the organization of insurance contributions on the amount of bonuses paid to employees for many years of diligent work and in connection with anniversaries. According to inspectors, these payments are a form of remuneration, and therefore should be subject to contributions.
However, the courts of all instances, including the Supreme court decision disagreed, stating the following. According to article 129 of the labour code wages (wage worker) is remuneration for work depending on qualification of the worker, complexity, quantity, quality and conditions of work, as well as compensation and incentive payments. And in this case, the disputed payments were of social character. So, employee premiums were paid on the basis of a local act (Provisions on corporate social programmes). In this document it is agreed that the employer shall pay a lump sum remuneration in order to strengthen corporate culture, maintain the corporate spirit and commitment of employees to the enterprise. The corporate flat fee includes: one-time payment to the anniversary date, a lump-sum compensation to the employee in connection with the awarding of honors and awards.
Thus, the amounts paid in premiums associated with the anniversary date of the date of birth or anniversary of employment, are not stimulating, as it does not depend on the skills of workers are non-recurring. Consequently, these awards are not wages and insurance premiums are not taxed.
The determination of the Supreme court of 10.05.2017 No. 302-КГ17-3832
The Supreme court of the Russian Federation in Definition from 10.05.2017 No. 302-КГ17-3832 came to the conclusion, that otsutstvie of experience of the employee, trudoustroeno before maternity leave, combined with other circumstances, evidences not in favor of the employer (e.g., the relationship of the pregnant woman with the head), may be grounds for denial of reimbursement of maternity benefits.
The point is this. Office of FSS denied the company reimbursement for the payment of benefits for pregnancy and childbirth. The reasons for this. The first — from the date of registration as an individual entrepreneur until the moment of employment of the employee, the entrepreneur carried out activities on their own, without employees. Evidence that during this period increased the amount of work the insured had not submitted. Second — this worker is the daughter of the owner, and was hired four months before maternity leave. Third — at the time of employment this employee had no experience or seniority.
The court recognized the legitimate refusal of the Fund. As pointed out by the arbitrators, the insured did not prove the reality of labour relations, the availability of relevant education and experience of the employee. This suggests that the daughter of the businessman was intentionally employed before the occurrence of the insured event in order to illegally obtain funds from the budget.
The determination of the Supreme court of 18.04.2017 No. 304-КГ16-16937
The Supreme court of the Russian Federation in Definition from 18.04.2017 No. 304-КГ16-16937 came to the conclusion that the Individual entrepreneur, who applies the USN with the object of taxation is income minus expenses, is entitled to determine the income for calculating insurance contributions "for themselves" on the basis of the difference between revenues and expenditures.
The point is this. Individual entrepreneur, applying USN, the annual income of which exceeds 300 000 rubles, calculated the additional contribution to the pension Fund on the basis of the difference between revenues and expenditures. However, the inspectors from the office of the FIU stated that entrepreneur, applying USN, calculate pension contributions based on the full amount of income received. In this situation, according to information from the IRS, income entrepreneur in 2014 amounted to about 30 million rubles. So the owner had to transfer to the pension Fund more than 121 thousand rubles. As the contributions in full I have not been paid, the auditors of the FIU has exposed the requirement about payment of arrears and accrued interest.
The courts of three instances agreed with the auditors: for calculation of contributions income of the entrepreneur"promedica" in excess of 300 000 rubles, it is necessary to consider only the revenues specified in article 346.15 of the Tax code. This article provides that in determining the object of taxation are taken into account revenues and non-operating income. Hence, SP may not reduce the amount of income to costs in the calculation of an additional insurance premium.
However, the Supreme court, this position did not agree and sent the case for review. While the Supreme court has referred to the decision of the constitutional court from 30.11.2016 No. 27 in General, this decision concerned entrepreneurs BASED on. The court explained that the income of an individual entrepreneur, paying income tax and not producing payments to natural persons, shall be reduced by the amount of documented expenses, in accordance with the accounting rules for such costs for purposes of calculating and paying personal income tax.
In turn, the Supreme court noted that the principle of determining the object of taxation, payers of personal income tax is similar to the principle of determining the object of taxation for "promensil" with the object of taxation revenue minus expenses. Latest reduce the received income calculated in accordance with article 346.15 of NK of the Russian Federation, in accordance with article 346.16 of the RF tax code the expenses. In this regard, the conclusion of the COP applies to businesses-"promensil", concluded the Supreme court. Reversing the lower courts ' decisions and sent the case for retrial, the armed forces, essentially ruled in favor of the entrepreneur to the USN: annual income is defined as the difference between revenues and expenditures.
The resolution of as Severo-the Caucasian district from 28.03.2017 № A32-34355/2016
In the Decision of the AU Severo-the Caucasian district from 28.03.2017 № A32-34355/2016 noted that if all the entries in the certificate of incapacity are read, the inspection of the FSS is not entitled to refuse the appointment of and payment of benefits solely on the basis that sick leave is filled in a ballpoint pen instead of ink.
The point is this. The territorial authority FSS has not taken to offset the cost of the organization for the payment of sick leave benefits due to the fact that the doctor signed the certificate of incapacity with a ballpoint pen (with blue ink). He thus violated paragraph 56 of the issuance of sick leave, approved by order of the health Ministry of Russia dated 29.06.2011 No. 624н. The paragraph stated that the records in the Gazette are a black ink or with the use of printing devices. Allowed the use of a gel, capillary or fountain pen. To write with a ballpoint pen is prohibited.
But the courts of three instances with the position of the officials disagreed. As pointed out by the arbitrators, irregularities in the registration of sick leave are small. However, they never admitted by the employer and medical institution.
In addition, the FSS letter dated 30.09.2011 No. 14-03-11/15-11575 explained next. The presence of sick leave technical issues of filling does not give the employer the right to require renewal of a certificate of incapacity to refuse the appointment and benefits, if all the entries in the certificate of incapacity to read.
Given that the fact of occurrence of insured event and payment of hospital in dispute was affirmed, the court recognized the failure of the Fund to offset expenses for the payment of benefits illegal.
Resolution as the far Eastern Federal district from 10.04.2017 № F03-924/2017
In the Resolution as the far Eastern Federal district from 10.04.2017 № F03-924/2017 noted that if the insured corrected the error after the deadline for submission of SCB-M, but before she found the pension Fund, the reason for the penalty FIU no.
The point is this. The organization in due time submitted to the FIU data of the individual personified account in the form of szv-M in may 2016. Later when reporting the error, the insured sent a complementing form. Representatives of the RPF assessed the situation. Because the original information was incorrect, but complementary form sent outside the deadline for submission of reports, the organization has provided incomplete and incorrect information on insured persons. And such violation shall be subject to prosecution under article 17 of the Federal law dated 01.04.1996 № 27-FZ. (According to this rule, the penalty for failure to file form szv-M within the prescribed period is 500 rubles for each insured person). In the end, the organization was fined 10500 rubles.
However, the courts of three instances with the position of the Fund did not agree, stating the following. Pursuant to article 15 of Law 27-FZ, the policyholder is entitled to Supplement and clarify the information given to them about the insured persons in coordination with relevant body of the Pension Fund. In this case, the organization corrected the error before it was discovered in the Foundation. This circumstance proves the absence of fault of the insured.
Referees reminded reviewers that the formal approach to the imposition of penalty was invalid. Any sanction should be applied taking into account a number of principles: culpability and wrongfulness of the act, the proportionality of punishment, the presumption of innocence.
The court also referred to the letter of the FIU from 14.12.2004 № KA-09-25/13379. It explained that the FIU considers it possible not to apply the penalty provided for in article 17 of Law No. 27-FZ in the following cases:
if the insured is self-identified the error and provided reliable information in the personified accounting;
if it is within two weeks corrected discovered by the territorial authority FIU error.
The decision as Severo-the Western district from 07.04.2017 № A56-29135/2016
n the Resolution as the Northwest district of 07.04.2017 № A56-29135/2016 noted that the non-payment or incomplete payment of amounts of tax as a result of understating of tax base or for some other reason, is punishable by a fine in the amount of 20 percent of the unpaid amount (article 122 of the tax code). But, if the taxpayer has overpaid tax in the amount exceeding the arrears, the inspectors have the right not to be fined.
The point is this. After the inspection, the Inspectorate assessed additional income, VAT, and bring her to justice under article 122 of the Tax code for failure to pay tax for the fourth quarter.
The taxpayer challenged the penalty in court. The study — he had an overpayment on VAT for the previous period, exceeding the arrears arose. Because the debt tax was not prosecuted illegally.
The courts of first and appeal instances recognised the penalty lawful. However, the court of cassation supported the organization. Judges are reminded of the explanations of the Plenum of the RF set out in the resolution dated 30.07.2013 n 57. It States that to prosecute under article 122 of the Code, if the actions (inaction) of the person led to failure to pay (incomplete payment) tax, that is to the debt. And such debt does not occur if all the following conditions are met:
on the expiration date of the tax for the tax period for which the arrears accrued, the taxpayer had an overpayment of the same tax that is understated, in an amount not less than the understated tax amount;
at the time of issuance of inspection decisions on the results of a tax audit, the overpayment has not been offset against other debts of the taxpayer.
Thus, since the overpayment of tax in earlier period covers the amount of arrears, the grounds for the charge of fines and bringing the Organization to justice was not, said the court.
Decree of the AU of the East-Siberian region from 01.03.2017 №А19-10707 / 2016
In the resolution of the AU of the East Siberian region of 01.03.2017 NoA19-10707 / 2016 it was noted that if the original of the birth certificate of the child is lost, the costs of paying the "child" allowance can be confirmed by a copy.
The crux of the matter is as follows.
The payment of a lump sum for the birth of a child is made by the employer at the expense of the Social Insurance Fund. The procedure and conditions for the appointment and payment of state benefits to citizens with children (hereinafter referred to as the Procedure) was approved by Order No. 1012n of the Ministry of Health and Social Development of the Russian Federation of December 23, Paragraph 28 of this Procedure stipulates that for the payment of a lump sum, a birth certificate is required, among other things.
The organization paid a one-time benefit to the employee, and applied to the FSS branch for reimbursement of funds. The original of the certificate at the time of verification was lost, and a copy of this reference was provided instead. However, representatives of the FSS did not take into account the costs of payment of benefits. Rationale - The procedure does not provide that a copy of this certificate may be provided for the purpose and payment of a lump sum at the birth of the child.
The courts of three instances recognized the decision of the fund as unreasonable, pointing to the following. The basis for the appointment and payment of insurance coverage to the insured person is the occurrence of a documented insurance event (Article 22 of Federal Law No. 165-FZ of July 16, 1999 "On the Fundamentals of Mandatory Social Insurance"). The insured event on compulsory social insurance is recognized, including the birth of a child (children).
In this case, the onset of the insured event (the birth of a child) is proved. During the audit, the organization submitted a copy of the child's birth certificate. In this case, the allowance was paid to the employee on the basis of the original document. In view of the foregoing, the court concluded: the failure to provide a certificate of birth of the child in the framework of the original verification does not indicate a violation of the procedure for payment of benefits.
Resolution No. Ф01-6260 / 2016 of the AU of the Volga-Vyatka District
In Resolution No. Ф01-6260 / 2016 of the Volga-Vyatka District on 06.02.2017, the Voluntary Circuit Circuit circulated the conclusion made by the Constitutional Court regarding the individual applying the FASP regime to Individual Entrepreneurs applying the USN "income minus expenditures" regime.
The court's decision and the arguments used in it allow us to conclude that the IP at the USN-15% can determine the amount of income for calculating the amount of insurance premium for TSOs as the difference between income and expenses.
The crux of the matter is as follows. The amount of "pension" insurance premiums paid by the entrepreneur "for himself" depends on the annual income of the IP. If the income is not more than 300,000 rubles, the amount of payment is fixed. And if the annual income is above 300,000 rubles, then the IP must pay an additional 1% of the amount of income exceeding this amount, but not more than the maximum amount of insurance premiums set by the FIU. The court considered the following dispute. According to the Individual entrepreneur applying the STS regime 15%, the annual income from which an additional insurance premium is calculated is defined as the difference between income and expenses. However, the controllers from the FIU management stated that the SP on the CSS should expect "pension" contributions based on the full amount of the income received. Since the contributions were not paid in full, the controllers demanded payment of arrears and charged penalties.
The courts of the first and appellate instances supported the inspectors. But the arbitration court of the Volga-Vyatka District did not agree with the decision of the lower courts, and sent the case for a new consideration.
As an argument in favor of such a decision, the arbitrators cited the recent ruling of the Constitutional Court of November 30, 2016 No. 27-P. It is curious that this decision of the Constitutional Court was directed at entrepreneurs on the basis of the OCOG. Recall, the high court pointed to the following. When calculating the tax base for personal income tax, individual entrepreneurs have the right to reduce their income by the amount of documented expenses directly related to the extraction of income (professional tax deduction). The composition of expenses is determined in the manner analogous to that established for the purposes of taxation of profit (Clause 1, Article 221 of the Tax Code of the Russian Federation). Under the profit, as a general rule, is understood income, reduced by expenditure.
In spite of the fact that in this decision of the Constitutional Court of the Russian Federation nothing is said about the USN and the single tax, the arbitration court decided that the court's conclusion could be extended to the applicants using the USN regime of 15%.
As a result, the court of cassation overturned the decisions of the courts of the first and appellate instances, sending the case for new consideration.
The Regulation of FAS West Siberian District from 07.04.2016 number A67-6704 / 2015 noted
that the money paid to employees under the direction of their one-day trips are not included in the base for the calculation of insurance premiums.
The point is this. Order on establishment of norms of daily stipulated that employees who are sent on business trips, daily allowances in the amount of 700 rubles, and in the case of one-day trips in connection with business necessity -. "Compensatory payment" in the amount of 700 rubles. These payments in the base for calculation of insurance premiums are not included.
The inspectors from the FIU management said that the day when one-day trips are not provided by the legislation. Consequently, these payments had to charge premiums.
The courts of three instances decided in favor of the organization. As explained by the referees, the disputed payments are not daily in view of the definition contained in the labor legislation. However, based on the direction and content of these economic benefits, they can be recognized as reimbursement of other expenses related to official business, which are produced with the knowledge or permission of the employer. In this connection, said "compensation payment" are not income (economic benefits) of employees aimed at a one-day trip. Since the costs of employees are documented, that these funds are not subject to insurance contributions on the basis of Article 9 of the Federal Law of 24.07.09 number 212-FZ.
The Regulation of FAS Volga-Vyatka district from 7/18/2016 number A82-13922 / 2015 noted
That compensation for the cost of meals not provided the employment contract is of a social character, is not an element of remuneration and, therefore, not subject to insurance contributions.
The point is this. In accordance with the collective agreement the employer partially paid employees set meals in the dining room on the premises. The amounts of compensation to the base for the calculation of insurance premiums were not included. Inspectors FSS stated that the payments made in the framework of the employment relationship, and, accordingly, are subject to contribution under Article 7 of the Federal Law of 24.07.09 № 212-FZ (hereinafter - the Law № 212-FZ).
However, the court did not accept the position of the FSS on the basis of the following arguments. Compensation paid the cost of power in accordance with section 3 "Social Guarantees" of the collective agreement, that is, wearing a social character. It did not depend on the qualifications of employees, complexity, quality of performance, not an element of remuneration, including because it was not available for employment contracts. Consequently, this payment is not recognized the object of taxation of insurance premiums.
In the definition of the Russian Armed Forces from 01.08.2016, № 305-KG16-5939 with reference to Art. 270 of the Tax Code noted
that the payment of severance pay to dismissed workers (compensation) to terminate the contract agreement between the parties not part of the labor costs and has not been established in the form of compensatory payments under the provisions of the Labour Code. Agreement on Amendments to the labor contract workers, according to which to terminate the contract in accordance with para. 1, Art. 77 of the Labour Code, the employer is obliged not later than the date of termination of the employment relationship between the employee and the employer to make a payment of additional financial compensation, legally not recognized by the courts as an integral part of the employment contract, because it does not contain any data and (or) the conditions required to be included in the labor force contract, and concluded shortly before its dissolution.
The Regulation of FAS Moscow District of 01.04.2016g. (Case A40-107960 / 2015 number) noted
That the fact of not signing the original documents by representatives of the counterparty company indicates non-acceptance According to the counterparty of goods and works referred to in these documents, which confirms the lack of implementation of these goods and works, but because of lack of evidence of transfer of goods and works and the transfer of ownership is not the fact of their implementation, that does not allow to speak about the formation of the society of the VAT tax base. Taking into account the norms of art. 247 and 248 of the Tax Code, Art. 9 of the Federal Law "On Accounting" if the customer has not accepted the goods and works, the company had no legal grounds to take no for accounting or for tax accounting are primary documents that also eliminates their implementation for taxation on profit goals.
The Supreme Court ruling of 20.06.2016, the number AKPI16-435 noted
That Nos. 5 para. 1, Art. 32 of the Tax Code, prescribing the tax authorities to be guided by written explanations Russian Ministry of Finance on the use of the RF legislation on taxes and duties, does not oblige the tax authorities be guided by the Russian Finance Ministry replies addressed to specific applicants, rather than the tax authorities. As a response to individual treatment (as acts of casual interpretation), the data to authorized federal executive body, within its competence, they do not contain provisions on the rights and duties personally not certain circle of persons, are information-explanatory nature. The fact that regardless of the actions of the Russian Finance Ministry, unless otherwise established, disputed letters to editorial corrections have been placed in an electronic periodical (Legal Consultant Server, www.consultant.ru), specializing in the dissemination of legal information, does not confirm the existence of these regulations properties.
In the definition of the Russian Armed Forces from 21.06.2016, № 301-KG16-6246 with reference to the provisions of Articles 252, 255, 270 of the Tax Code, Articles 57, 178 of the Labour Code mentioned
that the lump-sum payment upon termination of the employment contract by mutual agreement are not industrial nature, not related to the compensation of employees and the performance of their official duties, because there are no grounds for taking them into account when determining the taxable base for income tax organization.
Russian Armed Forces Ruling on 06.01.2016, the number 307-KG16-5452
In the definition of the Russian Armed Forces from 06.01.2016, № 307-KG16-5452 citing Articles 5,7,8,9 Federal Law of 24.07.2009 № 212-FZ "On Insurance Contributions", Articles 129, 164, 168.1 of the Labour Code of the Russian Federation noted that the compensation for travel on public transport within a specified maximum amount of workers' compensation, constant work which has traveling character included in the job list, entitled to receive such payments made on the basis of local regulations acts of society, are social in nature, are not challenging, do not depend on the skills of workers and the results of labor, complexity, quality, quantity, terms of execution of the work itself, are not pay and do not belong to the remuneration for the performance of labor or other duties, or for material gain, do not have a systematic character, in connection with which these payments are not subject to insurance contributions.
Information letter of the Presidium of the Russian Armed Forces from 07.06.2016, the (Determination of number 305 KG15-14263) brought
That the power to control prices used in transactions between related parties, for their compliance with market prices has a Central Office of the Federal Tax Service of Russia, but not territorial tax authorities (Sec. 2, Art. 105.3, para. 1, Art. 105.5, pp. 1 6 Art. 105.6, para. 1, Art. 105.7, Art. 105.17 of the tax Code. at the same time the interdependence of the participants of transactions itself is not proof of receipt by the taxpayer unjustified tax benefit, and can have legal significance for the purpose of tax control, only if it is established that such interdependence is used participants of the transaction as an opportunity for concerted action, not due to reasonable economic or other reasons.
The Russian Ruling of the Constitutional Court of 06.06.2016, № 1170-On noted
That the members of the Board of Directors and the Audit Commission, while agreeing on the implementation of certain activities in the public interest, take on the responsibility for the implementation of the necessary for this function to manage and (or) control over the activities of the society. This involves the implementation of such activities provided by the law society benefits in favor of members of the Board of Directors and the Audit Commission for the decision of the general meeting of shareholders. In this case the payment of the remuneration may be based on the decision of the general meeting of shareholders as in the presence of the relevant conditions in the contract concluded between a member of the Board of Directors or the Audit Commission and the public, and in the absence of such an agreement. Therefore, these payments should be charged insurance premiums in accordance with the Federal Law of 24.07.2009 № 212-FZ "On insurance premiums."
The Regulation of FAS West Siberian District in the judgment of 24.5.2016 number A27-8705 / 2015 noted
That the amount of VAT accrual of inspection during the audit, could be included in expenses for profits tax purposes.
The point is this. When calculating the tax on profit of organizations included in the VAT expenses, accrual of inspection in connection with the unjustified use of taxpayer UTII. However, the inspectors took off costs. Justification - specified amount of VAT subject to the rules of paragraph 19 of article 270 of the Tax Code, which prohibits to take into account the amount of tax as an expense.
The court's decision
The court upheld the taxpayer, pointing to the next. In paragraph 19 of article 270 of the Tax Code states that the calculation of income tax is not accounted for tax imposed on buyers of goods. And in this case the VAT accrual of inspection during the inspection, buyers did not show, could not be chargeable to them and, accordingly, is subject to payment of the own funds of the organization. Consequently, the amount of VAT, additionally accrued in connection with the unjustified use of UTII included in expenses for income tax on the basis of paragraph 1 of Article 264 of the Tax Code.
Regulation of FAS Moscow District dated 06.29.2016 number A40-158373 / 2014 noted
that the fact that the organization wrongly accrued premiums on non-taxable payment, does not give her the right to include the amount of these contributions to the costs of the taxation of profits.
The point is this. Insurance premiums in the non-budgetary funds are debited in other expenses on the basis of subparagraph 1 of paragraph 1 of Article 264 of the Tax Code. Guided by this standard, the organization has taken into account in the costs of profit tax the amount of insurance premiums, calculated with scholarships for apprenticeship agreements. However, the inspection took off costs and assessed additional income tax. The reason - the payment of apprenticeship agreements are not subject to insurance contributions.
The court agreed with the inspection, specifying the following. In this situation, according to apprenticeship agreements, employees were required to be trained and work under an employment contract with the employer for at least three years. Scholarship students are paid does not depend on the skill, complexity, quality, specific conditions for carrying out the work itself, and therefore is not recognized wages. Thus, since the subject of apprenticeship contract is not the fulfillment of the labor functions scholarship that is paid trainee person, including workers' organizations are not subject to insurance contributions. Accordingly, wrongly paid premiums are not deductible.
Russia's Supreme Court in ruling dated 13/7/2016 number 305 KG16-6052 concluded
The Russian Supreme Court ruling dated 13/7/2016 number 305 KG16-6052 came to the conclusion that the decision by the verification must be signed by the official who considered the case materials. If the inspection report and the objections of the insured examined deputy chief of the RPF, and the decision by the verification was signed by the chief, does not participate in the examination of test materials, it is grounds for cancellation of the decision on additional and penalty.
The point is this. The organization asked the court to annul the FIU management decision to charge additional premiums, penalties and fines. Insured referred to the violation of the decision procedure. To express it in that the decision on the audit has been signed by the head of the territorial fund management, who was not involved in the examination of test materials.
The court found that the fund actually violated the essential conditions of the examination materials testing procedures. Given the similarity of the tax and legal relations in the payment of premiums in this case, apply the provisions of Resolution of the Plenum of the RF from 30.07.2013 № 57. In paragraph 42 of the resolution states: judgment on the results of consideration of tax inspection materials is not the official of the tax authority, which is considered these materials is a violation of the essential conditions of the procedure of the decision of the audit. Indeed, in this case audited deprived of the opportunity to give an explanation directly to the official, who made the decision.
In this situation, check the materials studied deputy chief and chief of the contested decision was made. Thus, considering the circumstances of the audit materials objectively could not be known to the official who did not participate in the consideration of these materials. Contributors, in turn, was unable to give reasoned arguments of the official, who has decided on the audit results. Since the irregularities when considering testing of materials are essential, the court recognized as invalid FIU management solution.
Russia's Supreme Court in ruling dated 22.6.2016 number 303-KG 16-657 concluded
The Russian Supreme Court ruling dated 22.6.2016 KG16-657 number 303 came to the conclusion that if the VAT in the revised declaration the amount of tax to be recovered has increased or remained unchanged compared with the amount recorded in the initial declaration, the taxpayer is not required to pay interest for using the VAT amounts received in a declarative manner.
The point is this. If certain conditions are met (p. 2, 4, 6, 7, Art. 176.1 of the Tax Code), the Organization has the right to use the declarative procedure of VAT reimbursement. In accordance with this order a refund or credit of tax claimed for reimbursement in the declaration, made before the completion of a desk audit of the Declaration.
The right to an accelerated VAT refund took the organization of the Magadan Region. The taxpayer submitted a VAT return, presenting recoverable in a declarative procedure tax 40 million. Rubles. Tax Inspectorate decided to VAT refund. Upon receipt thereof, but before the completion of a desk audit of the initial declaration, the organization submitted to the IRS revised declaration. In it the amount of tax to be recovered has been declared in a larger size - 40.1 million rubles.. Because of this inspection it canceled the earlier decision on the VAT refund, as well as accrued interest to the taxpayer referred to in Article 176.1 of the Tax Code for the use of received in the amount of tax declarative manner.
The Supreme Court concluded that the calculation of interest on the situation described previously refunded VAT amount unduly. Interest rates established by paragraphs 15 and 17 of Article 176.1 of the Tax Code, according to its legal nature, are compensation for losses incurred by the budget in connection with excessive compensation tax. And in the given situation, the taxpayer's actions did not lead to budget losses and were not unlawful nature. On this basis, the court came to the following conclusion. In the case where "utochnenke" the amount of VAT to be recovered, has changed in a big way compared to the amount contained in the initial declaration, interest on the amount refunded by application of VAT is not charged order.
The Regulation of FAS West Siberian District in a ruling of 6/8/2016 number A03-9004 / 2015 noted
AC Resolution of the North Caucasus region in its judgment of 6.3.2016 number A20-3122 / 2015 noted that if a mistake when filling a leaf of invalidity admitted medical institution, but the fact of the disease FSS employee does not dispute the grounds for refusing to accept offset costs on benefits for such sick leave does not.
The point is this. Social Security Fund did not take to offset costs in the amount of 562 thousand. Rubles for the payment of temporary disability benefits. The reason - the certificate of incapacity have been issued in violation of the Order granting sick leave (approved by Order of the RF Ministry of Public Health from 29.06.2011 № 624n; hereinafter - the Order № 624n.). In particular, in a document signature physician absent in the other - correcting entry was entered incorrectly.
The courts of three instances recognized fund unjustified refusal. Referees were reminded verified that the basis for the appointment and payment of insurance coverage is offensive documented accident. This is stated in Article 22 of the Federal Law of 16.07.99 number 165-FZ. In the present case, the facts of occurrence of insurance claims were not challenged in the form of temporary disability. With regard to the violation of the order number 624n when filling sick leave, these violations were committed employees of the hospital. The negative consequences of non-compliance with medical institutions of the current legislation are assigned directly to them, rather than the policyholder. After all, the employer has no right to control the correctness of sick leave (the decision of the RF from 11.12.2012 № 10605/12).
In view of the court came to the following conclusion. Since the errors admitted directly to medical institutions, and the facts are not disputed disability themselves, then the fund had no reason for failing to offset the cost of allowances on controversial sick leave.
The Regulation of FAS West Siberian District in a ruling of 6/8/2016 number A03-9004 / 2015 noted
AC Resolution of the West Siberian District in a ruling of 8/6/2016 number A03-9004 / 2015 noted that if the temporary disability benefits or childcare paid violations, the Social Security Fund may refuse to reimburse funds (recognizing the costs). However, the charge premiums to the amount of allowances unduly paid by the employer is not entitled to the controllers.
The point is this. Due to the incorrect calculation of average earnings and other bugs organization has paid benefits to employees for child care and temporary disability in oversized. In connection with this branch of the FSS refused to set off the overpaid amount and the organization obliged to pay arrears in the amount of missed offset benefits. In this case in the amount of the arrears accrued premiums controllers.
The court found additional charging illegal fees, pointing to the next. Insurance premiums are subject to payment of accrued within the employment relationship (Art. 7 of the Federal Law dated 24.07.2009 number 212-FZ). This provision does not provide an absolute calculation of insurance premiums on the amounts to offset missed. After all, they are not automatically benefit in favor of workers in the framework of labor relations. Disputed amounts are allocated to the payment of temporary disability. Therefore, even if the Social Security Fund did not take to offset the amount of allowances, credit additionally on the amount of insurance premiums is not necessary.
The Regulation of FAS Volga District from 26/04/2016 number F06-7280 / 2016 noted
The Ordinance AS Volga District from 26.4.2016 number F06-7280 / 2016 noted that the transfer of the advance payment of income tax delayed is not a cause for prosecution under article 122 of the Tax Code.
The point is this. During the site inspection organization passed a revised declaration of income tax for the I quarter of 2012, for the first half of 2012, for the first half 2013 with supplementary estimates to the amount of tax payable. Tax recalled paragraph 4 of Article 81 of the Tax Code exempts from liability in the event that at the time of adjusting the taxpayer was not aware of an error is detected by the tax authority or the appointment of their on-site inspection. In this case, the refined declaration presented after the organization learned of the appointment of site inspection. Thus, the taxpayer did not fulfill the conditions provided for in paragraph 4 of Article 81 of the Tax Code, which is the basis for the fine on the basis of paragraph 1 of Article 122 of the Tax Code.
However, the court upheld the taxpayer. The judges reasoned as follows. According to paragraph 1 of Article 122 of the Tax Code, the non-payment or incomplete tax resulting understatement of the tax base subject to a fine in the amount of 20 percent of the unpaid tax. As can be seen, in this article directly points to the liability in the case of "non-payment or partial payment of amounts of tax." In paragraph 20 of Resolution of the Plenum of 30.07.2013 number 57takzhe clarified: underestimation of the tax base constitutes an offense only if such actions (inaction) have led to the tax debt. Meanwhile, the tax period for income tax is a calendar year. The amount of tax is calculated and paid to the budget for advance payments on an accrual basis, and the recalculation is done at the end of the year. Consequently, the Court concluded that, in the case of non-payment or incomplete payment of the advance payment for any tax to the taxpayer can be fined under article 122 of the Tax Code. Can only be fined for tax evasion rather than advance tax payment.
The Regulation AC Northwestern District from 06/05/2016 number A26-6841 / 2015 noted
The Regulation AC Northwestern District from 06/05/2016 number A26-6841 / 2015 noted that during the reorganization, a new legal entity in the form of transformation. In this regard, the assignee can not automatically obtain the right to use the simplified tax system, which had its predecessor. To apply the STS mode, the newly formed organization to be 30 days from the statement date of registration to submit a notification to the tax office. This conclusion follows from the decision of the AU Northwestern District from 05/06/2016 number A26-6841 / 2015.
The point is this. Prior to the reorganization in the form of transformation (change of legal form), the company applied the simplified system of taxation. Assignee considers that it is entitled to automatically continue to use the simplified tax system. However, the tax authorities stated that STS can be used only after the notification of the transition to the special regime. In paragraph 2 of Article 346.13 of the Tax Code states that such notification shall be submitted no later than 30 calendar days from the date of registration of the newly created organization. In this case, the organization sent a notice after the expiry of this period. Therefore, the grounds for the application of the said special regimes there, decided to tax.
The taxpayer appealed to the court. According to the organization, from the provisions of Article 50 of the Tax Code should be that by the newly arisen as a result of reorganization of legal entities, along with other rights and goes right to the use of STS mode. Because the Tax Code does not regulate the procedure for transition to the USN legal entity created by the reorganization, filing the notice within 30 days from the date of the registration statement is not a violation.
However, the appeal court recognized the taxpayer's position incorrect, stating the following. Article 50 of the Tax Code defines the order of execution of obligations on payment of taxes (fees, fines and penalties) in the reorganization of the legal entity, rather than the choice of the tax system. As a result of conversion, a new legal entity. On the basis of paragraph 1 of Article 346.11 and paragraph 2 of Article 346.13 of the Tax Code of the RF range of the simplified tax system is the right of the newly created organization, with appropriate expression of the will must be expressed in the notice, which shall be submitted not later than 30 calendar days from the organization setting the date of registration with the tax authority. In this situation, the predecessor of which is applied the simplified tax system, stop the activity. The newly formed organization was set for tax registration November 24, 2014, and the notification of the transition to the USN filed February 20, 2015, that is to say out of time. Consequently, the tax on company rightly pointed out her lack of the right to use the simplified tax system mode.
The Regulation of FAS Moscow District on 03/24/2016 number A40-35910 / 2015 noted
The Decree of the speaker of the Moscow District 3/24/2016 number A40-35910 / 2015 noted that if the inspectors from the Pension Fund decided to verify, without notifying the insurer of the time and place of the test materials, the decision to charge additional recognized illegal.
The point is this. The inspectors from the regional FIU management attracted the insurer liable for failing to pay contributions on the basis of paragraph 1 of Article 46 of the Federal Law dated 24.07.2009 № 212-FZ (hereinafter - the Law № 212-FZ). The organization refused to pay a fine, stating that the fund has not notified it of the time and place of the desk audit materials. Thus, inspectors have made substantial violation of the order of consideration of materials testing.
The court's decision
The court upheld the insurer, stating the following. Article 39 of the Law № 212-FZ provides that the test person has the right to participate in the review process testing materials. However, his absence is not an obstacle for the investigation verification materials only if the policyholder has been duly notified of the time and place of their consideration.
In a dispute that the judge dismantled speaker of the Moscow District, it was found that the audit report did not contain information about the time and place of the test materials. Evidence that the insurer has been notified with the date the consideration of test materials are also provided.
Thus, without notifying the organization duly considering the revision of the materials, the Fund deprived of the insured the right to submit objections, explanations and additional documents. This indicates a significant violation of the procedures for handling test material and a ground for annulment of a decision reached as a result of such verification, the court pointed out.
The Supreme Court of the Russian Federation in Definition from 5/10/2016 No. 310-KG16-3453 has come to a conclusion
The Supreme Court of the Russian Federation in Determination from 5/10/2016 No. 310-KG16-3453 has come to a conclusion that if in the presence of accounts in different credit institutions the taxpayer shows payment orders on transfer of a tax in "problem" bank, and before the end of the tax (reporting) period, then it demonstrates unfair behavior of the Organization.
The main point such is. On July 18, 2014 the organization has provided to inspectorate of the declaration for the VAT in II and III quarters with a tax amount to payment 1,4 and 1,08 million rubles respectively. In the same day the taxpayer has shown payment orders on transfer of tax amounts in bank. However in the budget only the part of money has arrived. As it has become clear, the remained amount the bank has charged the taxpayer off the settlement account, but to destination has not listed due to the lack of means on correspondent account.
Inspectors have declared that the obligation of the Organization for the tax discharge in this case is not considered completely performed, and have notified the taxpayer on debt on the VAT in the amount of 361 thousand rubles.
The trial court has supported the taxpayer, having referred to point 3 of article 45 of the Tax code Russian Federation. According to this regulation, the obligation on tax payment is considered performed from the date of presentation in bank of the order on money transfer from the account of the taxpayer in bank in the presence on it a sufficient cash remaining balance on the maturity day.
However courts of higher instances, including the Supreme Court of the Russian Federation, have made the decision for benefit of inspection. Arbitrators have specified unfair actions of the taxpayer. About it, according to judges, witnessed the following.
The first. The license at bank has been withdrawn on July 25, that is in a week after sight of payment orders on payment of the VAT. However one week prior to revocation of license the credit institution has suspended acceptance of deposits what repeatedly reported mass media about.
The second. The taxpayer did not transfer funds to partners through "problem" bank, money for the account also did not arrive. Actually in this bank only payment orders on transfer of taxes according to which payment due date has not come were arranged.
The third. The Organization had an account in other credit institution on which there was enough money for budget contribution of tax payments. After July 15, 2014 the taxpayer made all the calculations with partners through this account.
Money transfer on account of payment of the VAT before a payment due date and in case of awareness of the taxpayer on problems at banking organization demonstrates his unfair behavior, judges have specified. Making tax payments through "problem" bank, the taxpayer shall realize possible consequences of not receipt of funds in the budget, however has not taken adequate measures on execution of legally established tax obligation. Taking into account stated, judges have refused to recognize an obligation on the payment of the VAT performed and have obliged the taxpayer to pay a disputed amount of a shortage.
The resolution EXPERT of the Moscow district from 5/11/2016 it is noted No. F05-5284/2016
In the Resolution EXPERT of the Moscow district from 5/11/2016 it is noted No. F05-5284/2016 that if in a settlement period the worker worked at the same employers, as at the time of a loss occurrence (an illness or a maternity leave), then he can receive hospital or decretive benefit both on principle place of employment, and on place of employment on the terms of external combining jobs. And this order works even if the employee has worked in the organization in combination an incomplete settlement period.
The main point such is. The worker has gone on a maternity leave in 2013. At the time of a loss occurrence it has been borrowed from two employers. At the same time on principle place of employment she worked all settlement period (2011 and 2012), and in combination — only one year (2012). The maternity allowance to it was paid by both employers (proceeding from an average salary on each place of employment).
However controllers from department Social Insurance Fund have declared that point 2 of article 13 of the Law No. 255-FZ could be applied only if the woman in two calendar years preceding year of a loss occurrence worked in both organizations. And as in combination she worked only since 2012, to calculate benefit proceeding from average earnings in two prior years, that is for 2011 and 2012, it is impossible. In this case decretive relied only on principle place of employment. As a result expenses of the organization in which the worker is a part-time employee have not been accepted to offsetting.
However the court has not agreed with representatives of the Social Insurance Fund. Arbitrators have noted that in point 2 of article 13 of the Law No. 255-FZ there are no provisions obliging to fulfill in combination two complete calendar years preceding year in which the worker has gone to the decree. Does not contain other restrictions connected with receipt of maternity allowances by persons which work part-time the Law No. 255-FZ also. On this basis the court recognized refusal of fund in recognition of expenses illegal.
In the Resolution EXPERT of the Northwest federal district in the resolution from 4/21/2016 it is noted No. A66-3360/2015
In the Resolution EXPERT of the Northwest federal district in the resolution from 4/21/2016 it is noted No. A66-3360/2015 that lack of copies of service records of the dismissed workers is not the basis for refusal of the Social Insurance Fund in recognition of expenses on allowance payment on pregnancy and childbirth.
The main point such is. The Social Insurance Fund has not accepted to offsetting expenses on allowance payment on pregnancy and childbirth. The reason — the insurer has not provided the copy of the service record of the worker, and without it there is no opportunity to check correctness of calculation of insurance years of service for purpose of benefit.
The insurer has explained that at the time of check the employee did not work in this organization any more. However in Fund have declared that it is necessary to store copies of service records, including, and the dismissed workers. At the same time officials have referred to the rules of calculation and confirmation of insurance years of service approved by the order of the Ministry of Health and Social Development of the Russian Federation from 2/6/2007 No. 91. According to the main document specified to rules confirming the periods of work on the employment contract the service record is. The documents confirming the work periods included in insurance years of service are represented at the destination and allowance payments (item 20 Governed).
The court has supported the organization, having specified the following. The order of the Government of the Russian Federation from 4/16/2003 No. 225 has approved Rules of maintaining and storage of service records, production of forms of the service record and providing employers with them. In point 43 of these Rules it is established: the service records which are not received by workers in case of dismissal are stored poste restante at the employer according to the requirements to their storage established by the legislation on archiving. Does not follow from this regulation that the employer is obliged to keep copies of service records after dismissal of workers. Therefore, the requirement of fund to provide copies of service records of the dismissed workers is illegal.
According to arbitrators, the right to compensation (offsetting) of disputed amounts is confirmed by leaves of disability and documents on expenses on allowance payment. The data on duration of insurance years of service specified the sick leave note, the employer has determined at the time of purpose of benefits based on the service record of the employee. As the Social Insurance Fund has not declared other reasons which have not allowed it to accept expenses, the court recognized refusal in recognition of expenses illegal.
The Supreme Court of the Russian Federation in definition from 5/19/2016 No. 304-KG16-1137 has come to a conclusion
The Supreme Court of the Russian Federation in determination from 5/19/2016 No. 304-KG16-1137 has come to a conclusion that on copies of rail waybills which need to be provided to tax authorities for confirmation of a zero rate of the VAT in case of commodity export a stamp "Release is resolved" is not put down. Respectively, in case of lack of the specified mark tax specialists have no right to make the taxpayer responsible for unreasonable application of a zero rate and to additionally accrue to it a tax.
In case of sales of goods, exported in a customs procedure of export, the VAT is estimated on a zero rate in the presence of the documents listed in point 1 of article 165 of the Tax Code of the Russian Federation. Copies of transport, shipping or other documents which confirm cargo exportation out of borders of the Russian Federation are a part of these documents. In case of commodity exportation through border of the Russian Federation with a state member of the Customs union on which customs control is cancelled the taxpayer shall provide copies of transport and shipping documents with marks of Russian Federation customs. In case of commodity exportation in a customs procedure of export through border of the Russian Federation with a state member of the Customs union to the third countries the customs declaration (its copy) with marks of Russian Federation customs (subitems 3 and 4 of item 1 of Art. 165 of the Tax Code of the Russian Federation) is submitted. At the same time in the Tax code it is not specified on what specifically the document the mark of customs shall be put down. Some tax authorities consider that the stamp of customs shall stand, including, on copies of rail waybills.
The organization from Novosibirsk has faced a similar problem. The taxpayer has exported goods in a customs procedure of export to the Republic of Uzbekistan through the Republic of Kazakhstan which is the member of the Customs union. Goods were transported by rail.
For confirmation of a zero rate of the VAT the taxpayer has submitted the documents specified in article 165 of the Tax Code of the Russian Federation. In particular, copies of rail waybills on which the customs authority has made marks about a station of origin and about date of sending goods have been shown. However the inspectorate has refused to confirm a zero rate of the VAT. The reason - on copies of the rail waybills provided by the taxpayer is not present a stamp "Release is resolved".
Courts of all instances recognized refusal of inspection illegal. In the considered situation the mark "Release Is Resolved" is available on all customs declarations on which number of the corresponding rail waybill is specified. These documents confirm movement of goods. Inspection does not challenge the actual commodity export. As for a stamp "Release is resolved" on copies of rail waybills, its putting down on these documents is not provided by the customs legislation. Therefore, the taxpayer cannot be deprived of the right to application of a zero rate of the VAT due to the lack of the mark "Release Is Resolved" in duplicates of rail waybills.
In the Resolution EXPERT of the Moscow district from 3/15/2016 it is noted No. A40-156074/2014
In the Resolution EXPERT of the Moscow district from 3/15/2016 it is noted No. A40-156074/2014 that if the Social Insurance Fund has out of time compensated funds for allowance payment, then the insurer has the right to require from it interest payment.
The main point such is. The organization has paid to the worker a maternity allowance then has filed in the Social Insurance Fund a petition for compensation of means. The fund has refused. Later the court recognized the decision of officials illegal, and the fund has returned means to the insurer. As it has been made with delay, the organization has decided to collect interest for using someone else's money from fund. Percent have been calculated proceeding from 1/300 refunding rates of the Central Bank for each day of delay (Art. 395 of the Civil Code of the Russian Federation, the p. 11, 14, 17 of Art. 26 of the Federal law of 24.07.09 No. 212-FZ).
Courts of three instances were recognized that the insurer legally requires to pay to him interests. Judges argued as follows. The amount of insurance premiums of the Social Insurance Fund decreases by the amount of the made expenses on payment of an insurance coverage to insured persons. If it is not enough assessed insurance premiums for allowance payment to workers in full, the insurer addresses for means in fund of a social insurance. In turn the territorial authority of the insurer allocates funds within 10 calendar days from the date of provision of all necessary documents.
The federal law from 12/29/2006 No. 255-FZ "About compulsory social insurance on a case of temporary disability and in connection with motherhood" does not regulate a special order of return of excessively paid fees on compulsory social insurance. But considering similarity of the legal nature of insurance premiums for mandatory pension insurance and fees on compulsory social insurance, the court has come to a conclusion that excessively paid fees return to the Social Insurance Fund as it should be, stipulated in Clause 26 Federal laws of 24.07.09 No. 212-FZ. According to this article, the amount of excessively paid fees is subject to return according to the statement of the payer of insurance premiums within one month from the date of receipt of such statement. If return of the amount of excessively paid fees is performed with violation of term, then on the amount of excessively paid fees which is not returned in due time, percent for each calendar day of violation of term of return are charged.
In this case in response to the statement of the insurer for compensation of means the fund has illegally refused. Money has been transferred only after adjudication without charge of percent for untimely return. Thus, as the exceeded expenses over assessed contributions have been returned out of time, the court has obliged officials to pay interests.
In the Resolution EXPERT of West Siberian Federal District in the resolution from 3/29/2016 it is noted No. A03-15391/2015
In the Resolution EXPERT of West Siberian Federal District in the resolution from 3/29/2016 it is noted No. A03-15391/2015 that if the facts of disability and payment of hospital benefits are documented and are not challenged by Social insurance fund, then the insignificant mistakes in case of registration of leaves of disability made by the doctor are not the basis for refusal in recognition of expenses on allowance payment.
The main point such is. Inspectors of the Social Insurance Fund have not accepted to offsetting expenses on allowance payment because of the mistakes made by medical institutions in case of registration of sick leave notes. So, the doctor has undersigned for one leaf of disability ink of blue color (having corrected then on black color). At the same time, record in a leaf of disability shall be executed by ink of black color or using printers (item 65 of the Order of issue of leaves of disability, утв. the order of the Ministry of Health and Social Development of the Russian Federation from 6/29/2011 No. 624n (further — the Order No. 624n)). In other bulletin in the line "Disability Reason" the incorrect two-place code is specified. Also incorrect correction in the line "Place of Employment — the Name of the Organization" has been allowed. We will remind that according to point 65 of the Order No. 624n, wrong record is accurately crossed out, and the correct record is made on the back of the form of a leaf of disability, is confirmed by the record "corrected to trust", the signature and the employer's seal.
At the same time representatives of the Social Insurance Fund have referred to point 10 of the Regulations on Social insurance fund (утв. the order of the Government of the Russian Federation from 2/12/1994 No. 101; further — the Provision No. 101). In it it is told that responsibility for correctness of charge and an expenditure of means of the national social insurance are born by the head of the organization and the chief accountant.
But courts of three instances recognized refusal of fund unreasonable. Arbitrators have specified: the listed shortcomings allowed in case of registration of sick leave notes do not influence data, "having essential value for acceptance to offsetting of expenses on compulsory social insurance". Besides the fund does not challenge the fact of an illness of workers and justification of issue of sick leave notes. That is violations of a special-purpose character of an expenditure of means it is not established.
Also judges have explained to representatives of the Social Insurance Fund that point 10 of the Provision No. 101 obliges the Organization to watch correctness of charge and an expenditure of means of the national social insurance, but not order of issue of disability leaves by the medical organizations.
Taking into account stated, arbitrators have come to a conclusion: the bases for refusal in assignment for expense recovery or in acceptance to offsetting of expenses according to controversial bulletins were not.
The Russian Constitutional Court ruling dated 10.03.2016, № 571-O with reference to the Decree of 17.03.2009 № 5-P noted that per se rules of the field tax audit, suggesting the possibility of revising the size of the tax obligations of the taxpayer for a particular the tax period in comparison with the size of its previously established under the desk tax audit (and hence the removal of the budget previously submitted to the taxpayer the amount of tax rebate), can not be considered as violating the constitutional rights of taxpayers. Moreover, as the provision of judicial control, they are a mechanism for determining the actual size of the tax obligations of the taxpayer, the necessary from the standpoint of compliance with the balance of private and public interests in the field of taxes and fees.
Determination of the Supreme Court dated 12.04.2016 number 306 KG-16-2522
In the definition of the Supreme Court of the Russian Federation from 12/04/2016 number 306-KG16-2522 noted that the termination of a desk audit declarations in connection with the submission of the revised declaration is not a ground for exemption from the taxpayer's tax liability under Article 126 of the Tax Code for failure to submit the documents requested during the audit previous declaration.
The point is this. During a desk audit the revised declaration number 1 tax authorities asked the company for additional documents, confirming the validity of VAT deductions. Deadline for submission - no later than 11 March. March 7 sent to the taxpayer inspection revised declaration number 2. In this case, the documents requested at check first adjusted declaration were not provided. For this reason, inspectors fined the organization on the basis of Article 126 of the Tax Code. The fine amounted to 3 400 rubles (17 documents were requested, the penalty for failure to submit one document is 200 rubles.)
The taxpayer challenged the fine in court. The representative of the organization said that, since the disputed claim was exposed as part of discontinued desk audit the revised declaration number 1, then it does not need to perform. Accordingly, the taxpayer can not be held liable for failure to comply with such a requirement.
However, the courts, including the Supreme Court of the Russian Federation, supported by inspection. Arbitrators noted that during the desk audit, inspectors have the right to request additional information from the taxpayer, explanations and documents confirming the correctness of calculation and timeliness of payment of taxes (Art. 88 of the Tax Code). In turn, the taxpayer is obliged to submit the following documents within 10 days from the date of receipt of the claim (p. 3 and 4 of Art. 93 of the Tax Code). Having analyzed the provisions of Articles 88 and 93 of the Tax Code, the arbitrators came to the following conclusion. Termination of a desk audit of the original declaration in connection with the "utochnenki" is not a ground for exemption from the taxpayer's tax liability under Article 126 of the Tax Code. Thus, the taxpayer was required to submit the documents requested within the specified declaration verification number 1. Submission of an updated Declaration IFTS number 2, including before the deadline allotted for submission of the requested documents, does not relieve him from this obligation.
Resolution of the Plenum of the Russian Armed Forces from 24.03.2016, the number 7
Resolution of the Plenum of the Russian Armed Forces from 24.03.2016, № 7, in order to ensure the unity of the practice of the courts of the provisions of the Civil Code on liability for breach of obligations, brought clarification. For example:
RF Civil Code provisions in the amended Law № 42-FZ amended, for example, Article 317.1 of the Civil Code shall not apply to rights and obligations arising from contracts concluded before the date of its entry into force (until 1 June 2015). In disputes of these contracts should be guided by the previously applied the editorship of the Civil Code with regard to the established practice of its application (Sec. 2, Art. 4, second paragraph n. 4, Art. 421, para. 2, Art. 422 of the Civil Code). However, when deciding on charging interest for failure monetary obligation arising under a prisoner until June 1, 2015 agreement, in respect of periods of delay that occurred on June 1, 2015, the rate of interest is determined in accordance with paragraph 1 of Article 395 of the Civil Code as amended by Law N 42-FZ (n. 83);
the amount of interest to be collected according to the rules of Article 395 of the Civil Code, is determined on the day the court decision on the basis of the periods that occurred before the specified date. Interest on borrowed funds at the request of the plaintiff charged on the day of payment of these funds to the lender. Simultaneously with the establishment of the amount of interest to be recovered, the court in the presence of the plaintiff's claim in the operative part of the decision indicates the collection of interest prior to the actual performance of the obligation (para. 3, Art. 395 of the Civil Code). In this case the date of actual execution of commitments, in particular the payment of the debt to the creditor, is included in the interest calculation period. Calculation of interest accrued after the decision, made in the course of its execution by the bailiff, and in cases established by law - in other bodies and organizations, including the Treasury authorities, banks and other credit organizations, officials and citizens (p. 1, Art. 7, Art. 8, pp. 16, para. 1, Art. 64 and p. 2, Art. 70 of the Law on Enforcement Proceedings). The rate of interest is determined by the average bank interest rates on deposits of individuals that occurred during the periods after the decision (para. 1, Art. 395 of the Civil Code) (p. 48).
AS Resolution of the North-West District of 02/18/2016 number A26-1774/2015
The Regulation of FAS Northwestern District from 02.18.2016 number A26-1774 / 2015 noted that even if the notice of voluntary refusal of the application of the simplified tax system and transition to the Ba mode mode is directed to the inspection skip the deadline, the taxpayer is entitled to apply the general regime of taxation.
The point is this. The organization has notified the tax authority on the transition to the simplified tax system from January 1, 2012, but later decided not to use the "uproschenku" and continued to work on a common tax regime. In this case a notice of refusal to apply the simplified tax system and the transition to the general regime came to an inspection, only 10 July 2012, although by law this document to be lodged no later than 15 January 2012. At the end of the second quarter of 2012, the organization handed over a declaration of VAT, stating the amount of tax to be recovered.
Inspectors said that the use of Ba and wrongfully denied the deduction. Justification is. The taxpayer, who has moved on USN, should remain in this special regimes until the end of the tax period, ie until 31 December. Voluntary withdrawal from the simplified tax system is possible in the case of an appropriate notification in accordance with Article 346.13 of the Tax Code the term - until January 15 of the year in which there was a change of the taxation system. Skipping this term means that the taxpayer must continue to use the simplified tax system before the end of the year.
The trial court agreed with the tax authorities. However, the courts of appeal and cassation courts have recognized that the taxpayer appropriateness of Ba. The transition to the simplified tax system or return to a different tax regime is voluntary (Art. 346.11 of the Tax Code). The voluntary transition to the simplified tax system presupposes the existence of the organization right before the application of "simplified taxation" to change his mind and stay on the common tax regime. Due to the fact that the rejection of the use of the simplified tax system is notifying, untimely submission of the notification is not a reason to recognize the illegal use of a common system of taxation. The fact that the transition to the simplified tax system must be supported by tax accounting in accordance with the requirements of Section 346.24 of the Tax Code, as well as the payment of taxes under the simplified tax system. Thus, defected to the USN are considered organizations that are not only sent to the tax authority notified of the transition to the USN, but actually applied the tax regime. In this case, the organization shall pay the tax and submit reports under the general tax regime, rather than the simplified tax system. Thus, the taxpayer and the appropriateness of Ba said the VAT deduction.
Money given accountability for the acquisition of material assets are not subject to personal income tax only
Russia's Supreme Court in the determination of the number 302, 3.9.2016 16-450 KG came to the conclusion that the money given to accountability for the acquisition of material assets are not subject to personal income tax only if the supporting documents (such as receipts) contain all the requisites established by the legislation, including the specific name of the goods. If some details are not filled or contains general wording "stationery", "household chemicals", "Children's Christmas gifts," the inspectors can recognize cash taxable income of the employee.
The point is this. Employees of the organization received a cash account for household needs. In support costs were submitted expense report with the documents confirming the payment of goods and materials. However, the inspection stated that receipts drawn up in violation of the current legislation. So, they do not indicate the name of the economic entity, prepared the document (as well as name, job title, name of the persons who signed the checks). In addition, the number of checks is no specific product names. Instead, use general language, "business expenses", "stationery", "Products", "household chemicals", "Materials", "spending", "children's Christmas gifts." According to the tax authorities, the absence of properly executed original documents indicates that on payment of the cost of inventories is not confirmed. Accordingly, the petty cash should be included in the taxable income of employees. On this basis, inspectors assessed that the personal income tax in the amount of 430 thousand. Rubles.
The organization appealed to the court. In its defense, the taxpayer claimed that he had taken from the employees expense reports, thus confirming that the money spent on household needs. This means that the taxable income of the personal income tax from the employee does not arise. As proof of posting and expenditure adopted under the cash report for production purposes in the company referred to the statements of account 10.
But the courts of all instances recognized additional taxation justified. First of all, the arbitrators referred to the decision of the Presidium from 03.02.09 №11714 / 08. It states: money given accountability for the acquisition of material assets are not subject to personal income tax only in the case if the workers have documented costs incurred, and commodities and materials adopted by the organization on the account. According to Article 9 of the Federal Law of 06.12.11 number 402-FZ of accounting, every fact of economic life is subject to registration of primary accounting documents. The form such an instrument should contain mandatory requisites established by paragraph 2 of Article 9 of the Law № 402-FZ:
name of the document;
the date of the document;
name of the organization on whose behalf the document drawn up;
the content of the economic operation;
gauges economic operation in physical and monetary terms;
the name of the persons responsible for fulfillment of economic operation and correctness of its registration;
personal signatures of these persons.
In this case, in addition to the already above-mentioned drawbacks in commercial checks were missing their date of drafting and signature of seller; not filled in the column "amount", "price"; instead of the names of specific products simply pointed out that the money issued for the execution of works or services (for example, "ad", "construction contract", "improvement area"). All this indicates the absence of primary documents confirming the purchase of inventory. With regard to the posting of goods on account of 10, that fact, in itself, does not indicate the expenditure of funds is accountable for production needs, said the court. Consequently, the disputed imprest rightly regarded as the inspection of personal income
On the reimbursement of expenses for rental housing nonresident workers
In the definition of the Supreme Court dated 26.02.2016 number 310-KG15-20212 noted that the payment of rental costs to nonresident employees paid by the employer on the basis of a local act, does not apply to incentive payments and is not dependent on the skills of workers. In this regard, the payments are not charged premiums.
The point is this. On the basis of a local act (order) the organization offset the cost of hiring housing workers who have moved from Tambov to St Petersburg. Employees paid a sum of money in a fixed amount - 20 thousand rubles a month.. According to employees of the FIU management to payment data needed to charge premiums. His position controllers argued as follows: workers' compensation costs for rental housing at the new place of residence due to labor relations, it is systematic and stimulating character. Contributions are exempt only those payments that are directly listed in Article 9 of the Federal Law of 24.07.2009 number 212-FZ. Controversial costs in this norm is not named. Consequently, the amount of compensation for rental housing should be subject to insurance premiums in accordance with Article 7 of the Law № 212-FZ.
The courts of all instances, including the Supreme Court, did not agree with the position of the Fund. Article 9 of the Law № 212-FZ, a list of payments that are not subject to taxation of insurance premiums. To those, in particular, all kinds of payments established by the legislation related, inter alia, with the move to work in another locality. By virtue of Article 165 of the Labour Code, employees are given guarantees and compensation when moving to work in another locality. Thus, the disputed compensation payments are staff costs of hiring premises when moving to another country in order to work, the obligation to reimburse which lies on the employer. These expenses are established local act of the organization and are of social nature. Despite the fact that the compensation made in connection with an employment relationship, such payments do not have signs of wages in the sense of Article 129 of the Labour Code, as is not a reward for work, do not apply to incentive payments, do not depend on the employee's qualifications. Consequently, workers compensation costs amount to the monthly rent are not subject to insurance contributions.
The Regulation of FAS Far Eastern District on 27.1.2016 number F03-6295 / 2015
The Regulation of FAS Far Eastern District on 27.1.2016 number F03-6295 / 2015 noted that if the time allotted for the collection of arrears of insurance contributions, has expired, the inspectors from the Pension Fund units do not have the right to charge interest on the arrears.
The point is this. The Organization had overdue arrears of insurance contributions for 2009 in the amount of 1185 rubles. Despite the fact that the debt collection period has expired, on that amount for the period from March 2012 to February 2015 inspectors from the RPF interest charges, which were recovered on an uncontested basis. The inspectors decided that since the organization of an outstanding balance, this is the basis for calculating fines.
The courts of three instances supported by the organization, pointing out the following. According to Parts 1 and 2 of Article 18 of the Federal Law of 24.07.2009 number 212-FZ, the payers of insurance premiums required to timely and fully pay insurance premiums. In the case of non-payment by the due date the obligation to pay them executed forcibly by taking possession of funds on the payer's account (Art. 19 of the Law № 212-FZ). The obligation to pay insurance premiums provided by default interest (Art. 25 of the Law № 212-FZ).
In this case, the Court found that the Fund did not take any measures to forcibly collect the arrears. At the date of the proceedings the possibility of recovery of the said debt has been lost. Therefore, the calculation and collection of penalties on overdue arrears improperly.
Resolution FAS Central District of 10/2/2016 number F10-47 / 2016
The Regulation of FAS Central District of 2.10.2016 number F10-47 / 2016 noted that even if the local organization of the act provides that when a one-day business trip an employee is paid per diem, those payments because of its orientation can be recognized as compensation of other costs associated with the service trip. But such amounts organization is entitled to take into account in tax income spending.
The point is this. The employer directed the employees to travel for one day, out of which they were able to return home every day. This order of the organization was envisaged that the workers assigned on a day trip, are paid "per diem" in the amount of 700 rubles per day.
In the IRS said that the allowance shall be paid at the one-day trips. This is stated in Article 11 of the Regulation on the direction of employees on business trips (approved by the RF Government Decree of 13.10.2008 number 749,. Hereinafter - Regulations). Thus, the cost of daily subsistence allowance at one-day trips should not be taken into account for tax purposes, even if the payment of the amount provided for a local act.
The court's decision
However, the court decided that the organization rightly took into account the disputed costs. Justification is. Article 24 of the Regulations stipulates that the posted worker may be reimbursed other expenses associated with the trip in the manner specified by the collective agreement or local normative act of the organization. Accordingly, the amount of reimbursement at a one-day business trip employee can be taken into account in the taxation of profit as other expenses related to production and sales (cop. 49 para. 1, Art. 264 of the Tax Code).
In this situation, despite the fact that the money in the local act are named as "per diem", in fact they are a compensation in the amount established by the other employee travel expenses. Thus, such amounts may be deductible.
Resolution of 19.1.2016 number 2-P
Russian Constitutional Court in a judgment of 1.19.2016 number 2-P has recognized that existing legal provisions on insurance premiums, do not allow the funds and the courts to mitigate the liability of the insured, do not comply with the Constitution.
Prior to January 1, 2015, paragraph 6 of Article 39 of the Federal Law of 24.07.09 number 212-FZ read: during the review inspection materials the head (deputy head) of the fund unit shall, in particular, to identify the circumstances mitigating or aggravating the responsibility for the offense. These circumstances were mentioned in the article 44 of the Law № 212-FZ.
The new wording of paragraph 6 of Article 39 of the Law № № 212-FZ, which entered into force on 1 January 2015, it stipulated that the monitoring body should reveal only the circumstances precluding guilt of the person in committing the offense (they are listed in Part 1 of Article 43Zakona number 212 FZ). And Article 44 of the Law № 212-FZ has lost power (cop. "And" p. 22 and p. 24, Art. 5 of the Federal Law of 28.06.14 № 188-FZ).
The Constitutional Court considered the appeal of arbitration courts of Moscow and the Penza region, which, when disputes have failed to reduce the fine. In one case, the insurer was fined for failure in the calculation of the period in the form of RSV-1. In its defense, the organization referred to a number of mitigating circumstances (a prolonged restructuring, demolition of the old building of the educational institution, in the absence of state accountant, prosecution for the offense for the first time, and so on.). In another case, the medical institution was held liable for late payments. Insured requested to reduce the fine because the offense is committed for the first time. In addition, fees charged by the audit, have been paid immediately. However, in both cases, the courts have failed to take into account mitigating circumstances due to the above-mentioned amendments to the legislation.
The Constitutional Court of the Russian Federation recognized that the amendments according to which the law on the insurance premiums are excluded provisions for mitigating circumstances, have led to a lack of opportunities to reduce the amount of the fine. This "does not allow to individualize the punishment, take into account the nature and degree of the offender guilty, other relevant circumstances, and thus leads to a violation of the rights of payers of insurance premiums provided by the constitutional principles of legal liability."
On this basis, the High Court declared the impugned provisions of the Law № 188-FZ to the Constitution. Federal legislator entrusted to make the legislation on insurance premiums "changes, allowing to individualize the punishment, take into account the nature and degree of guilt, and other relevant circumstances."
Also in the court order stated: As long as the changes are made to legislation on insurance premiums is used in keeping with the Constitutional Court.
Decree of 27/01/2016 number F06-4898 / 2015 AS Volga District
In the judgment of 27.1.2016 number F06-4898 / 2015 AS Volga region came to the conclusion that the amount of compensation on compulsory medical examinations costs that workers passed before employment, are not subject to insurance contributions, even if the compensation paid after the conclusion of employment contracts.
The point is this.
Before taking a job at the post-sales consultants applicants passed the preliminary examinations. After the physical persons with an employment contract, the employer paid him compensation for the cost of check-ups. The Pension Fund said that the profession of Sales is not included in the list of professions subject to compulsory medical examination, and is not associated with harmful and dangerous production factors. So, the employer is not obliged to reimburse the costs of medical examination. In addition, the cost of the medical examination of compensation paid after the reception of applicants for a job. That is, payments made in the framework of labor relations, and should be subject to fees on the basis of Article 7 of the Federal Law of 24.07.09 № 212-FZ (hereinafter - the Law № 212-FZ).
The court upheld the organization, pointing out the following. Article 213 of the Labour Code establishes the obligation of employers to carry out at its own expense the preliminary (at employment) and periodic (for work) medical examinations of workers engaged in work with harmful and (or) dangerous working conditions, as well as work related to the the movement of transport. If an employee is paid a medical examination at the expense of own funds, the employer shall pay compensation. In this case, the work of shop assistants was associated with traffic (traveling work on the car). Since the passage of medical examination in such a situation it is necessary under the law, the compensation cost of employee medical examination is not subject to insurance contributions on the basis of subparagraph "and" 2stati paragraph 9 of the Law № 212-FZ.
In addition, physical examination was carried out at a time when the employment relationship between the employer and by individuals lacking. The subsequent conclusion of labor contracts and compensation during the existence of an employment relationship have no legal significance, since the events with which the compensation occurred in the absence of labor relations.
In view of the above, the Court concludes that the compensation of the costs of compulsory preliminary medical examination is not subject to insurance contributions.
Russian Constitutional Court of 11.19.2015, № 2731-O
The Russian Ruling of the Constitutional Court of 11.19.2015, № 2731-O pointed out that para. 1, Art. 27 of the Tax Code, defining the concept of the legal representatives of the organization, the taxpayer, by itself does not regulate the number of persons who may be subject to one or other liability for breach of duty to pay taxes. Therefore, the use of a natural person prosecuted under Art. 199 of the Criminal Code (the subjects of the crime can be attributed head of the organization, the taxpayer, the chief accountant (accountant in the absence of the state chief accountant), who are responsible for the signing of the reporting documentation submitted to the tax authorities, to ensure the full and timely payment of taxes and fees ) liability in the form of compensation for the harm (p. 1, Art. 1068 of the Civil Code), does not violate the constitutional rights of the individual. By virtue of Art. 54 Code of Criminal Procedure as a civil defendant may be held natural or legal person who, in accordance with the Civil Code of the Russian Federation is responsible for the harm caused by the crime; about bringing the person or entity as a civil defendant the inquiry officer, the investigator or the judge makes a decision, and the court - a ruling. According to Art. 1068 of the Civil Code a legal entity or a citizen shall compensate the damage caused by its employee in the performance of labor (service, job) duties, and in respect to the rules provided by its head 59 of the Civil Code, "Obligations owing to injury", employees are recognized citizens performing work under an employment agreement (contract), citizens performing work under civil law contracts, provided that they acted or should have acted on the instructions of the respective legal person or citizen and under the control of safe operations.
AS Resolution of the North-West District in the judgment of 14.12.2015 number F07-2649 / 2015
The Regulation of FAS Northwest District in the judgment of 12.14.2015 number F07-2649 / 2015 noted that if an organization pays an individual fee for the guarantee on its credit agreement, then this fee it must pay the insurance premiums.
The point is this. The organization has concluded with the bank credit agreements. As the guarantor acted as natural persons, which is not an employee of the company. For services to the citizen co-signer was paid 450 thousand rubles. Inspectors from the RPF stated that the amount of remuneration needed to charge premiums. The base - natural persons were paid a fee for "services". Consequently, this amount is subject to taxation of insurance premiums on the basis of Article 7 of the Federal Law of 24.07.09 № 212-FZ (hereinafter - the Law № 212-FZ). Since the organization is not accrued premiums for surety fee, it was held liable on the basis of paragraph 1 of Article 47 of the Law № 212-FZ.
The courts have recognized the legitimate decision of the Fund. Referees were reminded that the object of taxation of insurance premiums and the basis for calculating contributions to the organizations making payments and other compensation to individuals are recognized, including payments under civil law contracts, the subject of which is the performance of work, rendering of services. This follows from the provisions of paragraph 1 of Article 7 and paragraph 1 of Article 8 of the Law № 212-FZ.
In this situation, the citizen has the organization a favor by taking on the obligation to respond to the bank for the performance of its obligations under the loan agreements. Organization and natural persons have issued a guarantee agreement. As a result, between the bank and the organization were signed loan agreements with the surety. Thus, the disputed funds paid to an individual in connection with the provision of guarantor services to them in a civil law contract. And these payments are subject to insurance contributions.
AS Resolution of the Ural district from 11.27.2015 number A71-2097 / 2015
The Regulation of FAS Ural district from 11/27/2015 number A71-2097 / 2015 noted that if in the reference 2-PIT, presented to the bank for the loan, and in the help of the same persons, donated by the tax agent in the inspection, specify different salary it does not indicate that the employer submitted to the IRS false information about the employee's income. And accordingly, should not be whether it is possible on the basis of "banking" Help assessed additional premiums.
The point is this. Stating that the organization pays the wages "in envelopes", FIU inspectors assessed that her insurance premiums, and brought to justice in accordance with paragraph 1 of Article 46Federalnogo Law of 24.07.09 number 212-FZ. The conclusion that there is double counting salaries FIU officials made on the basis of information received from the tax authorities. As the inspection certificates in 2-PIT represented workers for the loan contains a higher salary than the references, put into office.
However, the courts of three instances of fines and charge additional fees canceled by entering the following. Firstly, the reclamation of the bank information on the income of natural persons is a violation of personal data protection legislation. Secondly, all the facts that prove the guilt of the insured in violation of the commission, shall be documented. Meanwhile, the amount of income referred to in the certificate on Form 2-PIT for the loan, it does not prove that the insured actually paid such income to the employee. It is possible that it was false information provided by the bank, not to the inspection. After all, the decision to grant a loan depends on the size of the borrower's income, so the insurer could inflate the amount of the employee's request.
Because the FIU management failed to provide objective evidence showing an artificially low wages, additional charging fees, penalties and fines is unfounded, the Court pointed out.
Determination of 02.01.2016 number 306-KG15-18624
Russia's Supreme Court in the determination of the number 306, 1.2.2016 KG15-18624 concluded that an employer who is either reimbursed employee expenses for the child in kindergarten or directly listed parent fee in preschool, is not obliged to charge for such payments insurance contributions.
The point is this. The organization partially reimburse employees for the maintenance costs of children in kindergarten. The collective agreement was confirmed that parents with three or more minor children, as well as single mothers be paid compensation in the following amounts: 80 percent of the amount of parental fee for the first child; 50 per cent - for the second child; 30 percent - for the third and subsequent children in the family. This compensation shall be transferred to employees based applications on their bank cards.
According to RPF officials, these amounts have to be included in the basis for calculating premiums. Justification - payment for the maintenance of employees' children in preschool are not covered by the concept of compensation established by the legislation of the Russian Federation and named in Article 9 of the Federal Law of 24.07.2009 number 212-FZ.
Courts of first instance and appeal courts have supported officials. However, the appeal court and the Supreme Court decided in favor of the organization. As indicated referees controversial compensation does not depend on the labor achievements of the employee and is not a reward for work, in connection with what is social payments. Given that social payments based on a collective agreement are not employees are paid, such amounts are not subject to taxation of insurance premiums.
Decision of 24.11.2015 number AKPI15-1111
Russia's Supreme Court in a decision of 11/24/2015 number AKPI15-1111 concluded that the inventory of property in the course of a tax audit at the Ministry of Finance and regulated by the order of the RF Ministry of 10.03.1999 number 20H / GB-3-04 / 39. According to this document, the taxpayer is obliged to provide labor inspectors for weighing and moving loads, weights, gauges and measuring container (Sec. 2.7 Provisions).
The point is this. The organization appealed to the Supreme Court a statement to recognize invalid the order to the Ministry of Finance and the Tax Ministry on 10.03.1999 number 20H / GB-3-04 / 39. According to the applicant, approved by order of the position leads to additional material costs to ensure the conditions for the inventory. Namely - on compensation of employees, weighing assets, the acquisition of measuring instruments and so on. Meanwhile, in the Tax Code does not set a taxpayer obligation to provide the tax authority or labor force with the necessary equipment to carry out the inventory. Since the order of the Ministry of Finance and the Federal Tax Service for the taxpayer introduces an additional duty, not prescribed by the Tax Code, the document was adopted in violation of the law, said the organization.
The Supreme Court of the applicant's position did not agree, stating the following. In subparagraph 13 of paragraph 1 of Article 89 of the Tax Code states that, if necessary, the inspectors carrying out site inspection can be carried out including an inventory of the property. Mandatory inventory of property enshrined in Article 11 of the Federal Law of 06.12.11 number 402-FZ "On Accounting", paragraph 21 of the Guidelines for accounting of inventories (approved. Ministry of Finance Order of 28.12.2001 number 119n). Thus, fixing in the contested provisions of the requirement that the taxpayer must create the conditions to ensure complete and accurate verification of the actual availability of property, the Ministry of Finance and Ministry of Taxation has not gone beyond the powers granted to, and do not set the requirements, not provided by the legislation on taxes and fees.
the taxpayer's argument that paragraph 2.7 of the Regulation leads to additional material costs, as it requires to acquire additional property, hire labor, the court also rejected. Justification is. Inventory legislator provided in organizations, regardless of their type of activity. Thus, the inventory of premises and areas used by the taxpayer for the extraction of income or related to the content of the objects of taxation, can not be carried out without the manpower to pereveshivaniya and moving loads, weights, measuring and control devices. Consequently, the tax authority's request for these funds is justified. The court noted that the taxpayer is obliged to provide the inspectors during the inventory is only one labor and the equipment which he has.
In view of the above, the Court decided that the order the Ministry of Finance and the Tax Ministry on 10.03.1999 number 20H / GB-3-04 / 39 does not conflict with federal law and does not violate the rights of taxpayers.
Resolution of the Federal District of the Moscow 02.06.2014 city №A40-134321/2013
The Regulation of FAS Moscow District on 02.06.2014 (case number A40-134321 / 2013) with reference to paragraph. 6 tablespoons. 271 and p. 8 Art. 272NK Russian Federation noted that when using the accrual date of recognition of expenses and, therefore, revenue in the form of interest does not depend on the duration of the payment of interest as defined by the terms of contracts and the actual payment of the accrued interest to the lender. Taxpayer's right to inclusion in non-operating expenses and, therefore, non-operating income, the amounts accrued under loan interest is not related to the actual payment of funds to the lender. Therefore, the amount of accrued interest are taken into account for tax purposes in each accounting period, and even if the term of repayment of the loan and transfer of interest for the use of funds is necessary for the next tax period (year).
Resolution of the Federal District of the Moscow 28.05.2014 city №A40-114401/12
The Regulation of FAS Moscow District on 28.5.2014 (case number A40-114401 / 12) noted that, for accounting purposes because of its direct claim of the special provisions. 6.1 20 PBU useful life of fixed assets, which are the subject of the contract lease is determined based on the term of the lease (leasing). Therefore, regardless of the subject, which is reflected on the balance sheet property being leased, such entity shall be entitled to invoke the provisions of para. 20 AR 1.6, setting the useful life of the property equal to the term of the contract. The Decree of the Government of the Russian Federation of 01.01.2002 № 1, which was approved by the classifier, pointed out that the legal act is adopted in accordance with Art. 258 of the Tax Code, ie Classifier is designed primarily for the purposes of the application of tax legislation. This means that the set Classifier deadlines are not binding for the determination of the useful lives of fixed assets for accounting purposes.
Resolution of the Federal District of the Moscow 13.05.2014 city №A40-121701/12-107-602
The Regulation of FAS Moscow District on 13.05.2014 (case number A40-121701 / 12-107-602) with reference to the claims. 25 para. 3 tbsp. 149 claims 1 and n. 2 tbsp. 170 of the Tax Code, noted that if the value of the transferred goods does not exceed 100 rubles., When sending the product for promotional purposes the taxpayer does not charge VAT, but the VAT charged counterparty for promotional items to be included in the cost of the promotional products and is not subject to deductible .
Resolution of the Federal Western Siberian region of 04.07.2014 № A27-15729/2013
FAS West Siberian District in its Resolution of 04.07.2014 № A27-15729 / 2013 came to the conclusion that if the penalty is paid to natural persons, actually compensates its loss, the additional income from physical persons does not arise. Accordingly, to keep personal income tax on the amount of the penalty is not necessary.
The essence of the case is as follows. For the purchase of non-residential premises individuals received credit funds in the bank at 8.5% per annum and have listed their organization seller. In the future, the seller had breached its obligations under the contract. In this regard, he had to return the advance payment and the buyers to pay a penalty of 8.5% paid on the loan.
Representatives of the Tax Inspectorate stated that the amount of compensation cost natural persons are not included in the list of compensation established by paragraph 3 of Article 217 of the Tax Code. Therefore, such payments are subject to personal income tax. Since this was not done, the tax brought the company to liability for breach of duty of a tax agent (Art. 123 of the Tax Code).
However, the Court of Arbitration with the position of the tax authorities did not agree. The arbitrators stated: you can not qualify for any amount of money received as income, excluding contained therein economic benefits. In this situation, due to the termination of the contract on the fault of the seller the buyers loss occurs as the amounts of interest paid by the bank for the loan. Thus, individuals receive a penalty actually compensated for loss and no additional income for them is not created. By itself, a loan could also create economic benefits for individuals, as they did not use the money, and immediately transferred to the seller as a deposit. In view of the Court concluded that because the disputed funds do not create for individuals any economic benefit, they do not fall under the concept of income referred to in Article 41 of the Tax Code, and are not subject to personal income tax.
Resolution of the Federal Central District of 11.07.2014, the №A09-9251 / 2013
FAS Central District in its Resolution of 11.07.2014, № A09-9251 / 2013
came to the conclusion that the tax code does not set the period of decreasing the amount of UTII on paid premiums. Therefore entrepreneurship "vmenenschik" right to reduce the amount of tax on the premiums paid during the same period in the next quarter.
The essence of the case is as follows. Individual entrepreneur of the Bryansk region (applicable UTII mode) in the preparation of the declaration UTII for the I quarter of 2013 reduced the amount of tax on the sum of the fixed payment for the same period. However, the tax inspectors stated that the tax reduced invalid, since the premiums were actually listed in the second quarter (payment was listed on 24 April and the tax paid by April 25). As a result, the taxpayer was fined on the basis of paragraph 1 of Article 122 of the Tax Code for failure to pay the single tax.
Individual entrepreneur went to court and won in three instances. Judge reasoned as follows. Paragraph 2.1 of Article 346.32 of the Tax Code does not indicate that the individual entrepreneur who does not have employees, reduces the amount of a single tax paid in this particular tax period premiums in a fixed size. And in accordance with paragraph 7 of Article 3 of the Tax Code, all of doubt, contradictions and ambiguities in the legislation on taxes and duties shall be interpreted in favor of the taxpayer.
Since the Tax Code does not establish a period of decreasing the amount of contributions paid by UTII "for himself," An individual entrepreneur legitimate when calculating the tax for the I quarter allowed for a fixed payment listed in the II quarter.
Resolution of the Federal Western Siberian region of 06.08.2014, the №A46-12467/2013
FAS West Siberian District in its Resolution of 06.08.2014, № A46-12467 / 2013 issued an opinion that the presence of the person responsible for checking the counterparty due diligence not prove anything.
The essence of the case is as follows. Tax Inspectorate fined the company pursuant to paragraph 1 of Article 122 of the Tax Code of the Russian Federation for the partial payment of VAT and assessed additional expense of 6.5 million. Rubles VAT. The basis for this decision was the conclusion of officials of unjustified tax benefit of the organization. This was evidenced by the following facts. Firstly, contractors deny signing invoices. Secondly, part of the construction contract and the invoices were signed prior to the registration and tax registration organizations counterparties.
The company appealed to the court, stating in his defense following. When formal compliance invoices requirements of Article 169 of the Tax Code signing them by unidentified persons in itself can not serve as absolute proof of fictitious transactions and their focus on illegal minimize the tax burden. In addition, the taxpayer submitted an order for the organization to appoint the person responsible for the verification of credentials of contractors. In the organization believed that this document proves due diligence when entering into contracts with counterparties controversial.
The trial court upheld the taxpayer. However, appeal and cassation decision of the lower court was canceled. Judges are reminded that the basis for the deduction of VAT is the totality of the circumstances: the purchase of goods (works, services) for use in transactions subject to VAT, the reflection of them in the accounting process, the buyer and the presence of a properly issued invoice.
Of the provisions of paragraph 2 of Article 169 of the Tax Code should explicitly prohibit the adoption of deductible VAT on invoices made out with the offense. Since the disputed invoices contained false information, they can not be the basis for the amount of tax deductible.
The court also noted that in itself is an order of determining the person responsible for the verification of credentials of contractors does not show due diligence when selecting contractors. Instructing employees engaged in subcontract work at the facilities, does not confirm the relationship between these workers with questionable contractors. Based on the above arguments, the court found the refusal to deduct VAT and additional taxation lawful.
Resolution of the Federal District of the Moscow 25.04.2014 city №A40-52242/13
Resolution of the Federal District of the Moscow 25.04.2014 (case number A40-52242 / 13) with reference to the Constitutional Court of the Russian Federation of 04.06.2007, № 320-OP recognized as lawful expensed, deductible expenses made by the taxpayer work, which were not accepted by the customer in connection with the improper quality of their performance, despite the fact that on controversial operations revenue is not received by the taxpayer. Since the controversial work was actually carried out, the cost and size are confirmed by relevant documents, termination of the contract by the customer is not a ground for refusal registered the disputed expenses for tax purposes. Controversial costs are recognized in the tax laws as an expense eligible item. 252 of the Tax Code, the validity of which account when calculating the tax base for income tax claims concretized norm. 47 para. 1 tbsp. 264 of the Tax Code.
Resolution of the Federal District of the Moscow 21.04.2014 city A41-34916/13
The Regulation of FAS Moscow District on 21.04.2014 (case number A41-34916 / 13) noted that a literal interpretation of the claims. 1 pt. 9 Art. 15 of the Federal Law of 24.07.2009 № 212-FZ "On insurance premiums ..." implies that payers of insurance premiums required to provide estimates of accrued and paid insurance contributions for each period, regardless of whether payments that are subject to taxation of insurance premiums. In accordance with Clause. 1 tbsp. 46 of the Act on insurance premiums, failure to provide the payer of insurance premiums by the due date calculation of accrued and paid insurance premiums in control authority for the payment of insurance premiums in the place of registration shall entail a fine in the amount of 5 percent of the amount of insurance premiums, accrued expense for the last three months of the reporting (settlement) period for each full or partial month from the date fixed for submission, but not more than 30 percent of this amount and not less than 1 000.
Resolution of the Plenum of the Supreme Arbitration Court of 16.05.2014 N28
The Resolution of the Russian Federation of 16.05.2014 N 28 "On some questions connected with the defense of major transactions and related party transactions" explained particularly challenging major transactions and related party transactions.
In particular, the Plenum of the Supreme Arbitration Court pointed out that the provisions of the Federal Law "On Limited Liability Companies" and "On Joint Stock Companies" are special in relation to Article 173.1 and paragraph 3 of Article 182 of the Civil Code. In connection with this transaction, concluded without the necessary consent of the legal entity, as well as transactions made by the representative of the legal person against a person or against another person, both of which he is not subject to the rules on major transactions and related party transactions, may be challenged by the rules of Article 173.1 and paragraph 3 of Article 182 of the Civil Code.
In the event that a major transaction or related party transaction was approved by the general meeting of shareholders, it may be declared invalid in accordance with paragraph 2 of Article 174 of the Civil Code.
Plenum of the Supreme Arbitration Court explained that the statute of limitations for claims to invalidate the transaction made in violation of the procedures for its approval, calculated from the date when the claimant knew or should have known that such a transaction require the approval in the manner provided by law or the articles of association, at least she has been made before.
It is assumed that a party should have known about the transaction in violation of the procedures for its approval no later than the date of the Annual General Meeting of Shareholders for the year in which the transaction took place, unless the participants of the meeting provides materials could conclude such transaction.
As pointed out by the Plenum of the Supreme Arbitration Court, the explanations contained in the Regulation shall apply also when considering court cases challenging the major transactions and related party transactions of state and municipal unitary enterprises, cooperatives, autonomous institutions and other non-profit organizations, unless otherwise provided by law or follows from the nature of relationships.
Regulation of FAS Moscow District on 04.03.2014 city №A40-17207/13
В Постановлении ФАС Московского округа от 03.04.2014 г. (дело № А40-17207/13) отмечено, что анализ во взаимосвязи положений НК РФ и ГК РФ позволяет сделать вывод, что с момента ликвидации кредитора у налогоплательщика прекращается обязательство по оплате, в связи с чем факт ликвидации относится к иным основаниям, по которым спорная сумма кредиторской задолженности подлежит включению в состав внереализационных доходов того налогового периода, когда кредитор был исключен из ЕГРЮЛ. Следовательно, периодом, в котором следует отражать кредиторскую задолженность для целей бухгалтерского и налогового учета, признается тот период, в котором наступает событие, связанное с моментом прекращения обязательств. При этом именно на налогоплательщика возлагается обязанность своевременно производить инвентаризацию обязательств и относить подлежащие списанию суммы кредиторской задолженности в состав внереализационных доходов в определенный налоговый (отчетный) период.
Resolution of the Federal District of Russia from the Urals city of №F09-2974 06.17.2014/14
FAS Ural District of the Russian Federation in its Resolution of 06.17.2014, № F09-2974 / 14 came to the conclusion that the additional cost to the lump-sum allowance for childbirth and the monthly allowance for child care provided by the collective bargaining agreement, in the basis for calculation of insurance premiums not included.
The essence of the case is as follows.
On the basis of the collective agreement the company at his own expense paid women workers an additional lump sum for the birth of a child (at a rate of 2 times the minimum wage), as well as a monthly allowance for child care up to one and a half to three years ($ 1 minimum wages). Representatives of the Russian Federation Pension Fund decided that the payments are made within the framework of labor relations, and therefore subject to insurance contributions on the basis of Article 7 of the Federal Law of 24.07.09 № 212-FZ.
However, the court with the position of the representatives of the Russian Federation Pension Fund did not agree. Explanation is that the mere fact of existence of an employment relationship between the employer and its employees are not a sign that all payments that accrue to employees are paid for their work. In contrast to the employment contract, which, in accordance with Articles 15 and 16 of the LC RF regulates precisely labor relations, collective agreement in accordance with Article 40 of the LC RF regulates social and labor relations. Welfare payments, based on the collective agreement that are not challenging, independent of workers' skills, complexity, quality, quantity, conditions for carrying out the work itself, not the compensation of employees (remuneration for work), including because it does not provide labor contracts. Consequently, since the additional cost to the benefits provided under the collective bargaining agreement, are not wages, the grounds for assessment of these payments is not, the court ruled.
Determination of the Russian Federation of 09.07.2014, the VAS-8467/14
The Supreme Arbitration Court of the Russian Federation of 09.07.2014 № VAS-8467/14 to refuse to transfer the case to the Bureau concluded that the labor or collective bargaining agreement can be assigned any per diem employees whose work is carried out in a way or a traveling nature. This compensation is not subject to insurance contributions in full, even if the payments are made in a fixed amount of expenditure without supporting documents.
The essence of the case is as follows.
Guided by the norms paragraphs. "and" n. 2 tbsp. 9 of the Federal Law of 24.07.09 № 212-FZ, that compensation payments related to the performance of the employees job duties are not subject to insurance premiums, transport company on the basis of an employment contract, as well as local act to pay their drivers compensation (DSA) in 1000 rubles. for each day spent outside their places of permanent residence. On the amount of compensation premiums not paid.
FSS representatives decided that since payments were made in a fixed amount, then they are allowances for traveling nature of work, that is part of the salary. Therefore, should be subject to insurance premiums.
However, the courts of all levels, including the board of the SAC, the position of the representatives of the FSS. The Court recalled that the basis for calculating insurance premiums are payments accrued to the employee in connection with the performance of his employment duties. In this case, there are two types of compensation: - related to specific conditions and are part of the salary (Article. 129 TC RF); - Established for the purpose of workers compensation costs associated with the performance of their employment or other legal obligations (Art. 164 TC RF).
Compensation payment as a kind of remuneration (Article. 129 TC RF) usually earned of the salary or wage rate and depend on the specific employment outcome. And in this case, a fixed amount of compensation set by the need to compensate for the additional costs associated with living Parlour is the place of permanent residence (DSA). These payments are made regardless of the outcome of labor and depended only on one thing - the number of actually performed in the way of day.
Unlike business trips, to confirm the finding of delivery drivers on the road do not require preparation of travel documents. In this case, the fact of being an employee in traveling confirm reports on business trips, waybills, bills of lading. These documents contain information about the driver, route, duration of the trip and, therefore, allow you to set the amount of compensation depending on the number of days (days) that took place outside the residence.
In view of the above, the Court held that the disputed payments were treated to compensation under articles 164, 168.1 LC RF. But such compensation insurance premiums are exempt under sub-clause. "And" n. 2 tbsp. 9 of the Law № 212-FZ.
SAC refused to transfer the case to the Presidency of the Court.
Determination of the Russian Federation of 07.29.2014, the №VAS-9218/14
The Supreme Arbitration Court of the Russian Federation in the ruling dated 07.29.2014 № VAS-9218/14 came to the conclusion that social payments based on a collective agreement or a local act, are not challenging and not dependent on the skills of workers are not subject to insurance contributions . Therefore, if the employee compensation (his family) on the value of a voucher for spa treatment is paid regardless of the outcome of labor, not of a stimulating character, the premiums on the amount of compensation is not calculated. The same rule applies to the payment of medical services for employees and visiting staff pool.
The essence of the case is as follows. On the basis of local act (Regulations on social security payments), the company reimburse all employees and their families the cost of the pool passes for the spa treatment as well as medical services. According to inspectors from the regional management FIU, these payments are made within the framework of labor relations, and therefore subject to contributions under Article 7 of the Federal Law of 24.07.09 № 212-FZ.
However, the courts of all instances supported by the company. Judge reminded the representatives of the RPF, that the object of calculating insurance contributions for mandatory pension insurance and compulsory health insurance are payments made to an employee for a specific employment outcome. The mere fact of existence of an employment relationship between the company and the employees does not mean that all payments that accrue to individuals, are labor costs.
In this situation, payment vouchers, health services, swimming pool was designed to protect and restore the health of employees and their family members (item 1.2 of the Regulations). A payment that are social in nature, are not challenging and do not depend on the qualifications of employees and complexity of the work itself, pay for work are not. Especially because not covered by labor contracts. Thus, the disputed payments to the base for calculation of insurance premiums are not included.
SAC refused to transfer the case to the Presidency of the Court.
Resolution of the Federal District of the Moscow 02.07.2014, № A40-65246/13
The Regulation of FAS Moscow District on 07.02.2014, the number A40-65246 / 13 concluded that the company should not have to pay VAT on the amount of expenditure on food, so that employees are provided under the collective agreement.
The essence of the case is as follows. Organization on the basis of a collective agreement provides employees with a free lunch. As the cost of food has not been included in the costs when calculating the tax base for income tax, tax inspectors have decided that these costs will have been included in the VAT base. As stated by the tax authorities, lunches transferred to the ownership of employees on a pro bono basis, and such transfer, pursuant to subparagraph 1 of paragraph 1 of Article 146 of the Tax Code, equal to the sale of goods, and therefore subject to VAT. The taxable base for VAT is absent only in the event that the related costs actually taken by the taxpayer in the calculation of income tax.
Courts of three instances supported taxpayer. The main argument - relationships for the provision of free meals to employees due to the collective agreement and relate to labor and not civil law relations.
At the same time, in the opinion of the judges, it does not matter that these costs are not deductible for income tax. Justification is. Obligation to calculate VAT on the transfer of goods (works, services) for their own needs directly related to the inability to take into account the costs of these operations in the calculation of income tax. However, in this case, the company could write off the cost of meals in the cost of labor, but did not. Failure to use the law to include the disputed costs are expensed or incorrectly reflected in the accounting and tax purposes can not cause the object to VAT.
The Court's conclusion was as follows. Since the power is organized to implement the company's operations in accordance with the requirements of the collective agreement, the tax authorities had no grounds for charging VAT on the cost of food workers.
Determination of the Russian Federation of 10.07.2014 № VAS-8732/14
The Supreme Arbitration Court in its decision of 10.07.2014 № VAS-8732/14 came to the conclusion that employers who offer their employees free lunches, are not required to include these funds in the basis for calculation of insurance premiums. The same goes for parents to pay compensation for child worker in a kindergarten.
The essence of the case is as follows. Organization on the basis of a collective agreement was paying child support its employees in kindergarten. Money for the garden remitted directly to educational institutions. Representatives of management FIU stated that the disputed amount needed to be included in the base for the calculation of premiums. Justification is. The list of non-taxable benefits listed in Article 9 of the Law № 212-FZ. At this rate, in particular, it is determined that the imposition of the insurance premiums are exempt certain compensatory payments stipulated by the legislation in favor of workers (n. 2 hours. 1 tbsp. 9 of the Law № 212-FZ). A payment of child support workers in preschool do not fall under the concept of compensation established by the legislation of the Russian Federation and named in Article 9 of the Law № 212-FZ.
In addition, representatives of the RPF assessed that contributions to the cost of a free lunch for employees. According to representatives of the RPF, despite the fact that the employer's obligation to compensate for the cost of food has not been established in any employment or collective agreement, free lunches, in fact, are the reward as part of employment relationships. Therefore, the cost of food had to be included in the basis for calculation of insurance premiums.
The courts of first and second instance agreed with the representatives of FIU: disputed payments are in fact elements of remuneration, and, accordingly, are subject to fees. However, the appeal court, and then board the SAC decided in favor of the company. Judge explained: the mere fact of existence of an employment relationship does not indicate that all payments accrued to the employee, are paying his labor. Compensation cost of meals and fees for kindergarten are social in nature, does not depend on the skills of workers, complexity, quality performance, not an element of remuneration, including because it does not provide employment contracts. Thus, the cost of maintaining employees' children in kindergarten, as well as the cost of a free lunch, the premiums do not need to charge.
In the transfer of the case to the Presidium of the Russian Federation has been denied.
Resolution of the Federal District of the Moscow 04.03.2014 city №A40-13652/12
>В Постановлении ФАС Московского округа от 04.03.2014 г. (дело № А40-13652/12) со ссылкой на п. 4 ст. 328 НК РФ и Постановление Президиума ВАС РФ от 24.11.2009 г. № 11200/09 отмечено, что если в договоре займа обязанность по уплате процентов возникает в момент возврата суммы займа, то и обязанность по учету процентов по этому договору в составе внереализационных доходов в налоговом учёте возникает не на конец каждого месяца, а только в момент полного погашений всей суммы займа (в конце срока займа) или его части (в случае частичного досрочного погашения).
Resolution of the Federal Volga-Vyatka district from 17.06.2014 № A17-162/2013
FAS Volga-Vyatka region in the Decree of 17.06.2014 № A17-162 / 2013 noted that the Russian Tax Code does not envisage any special time to prepare the taxpayer objections to the results of the additional tax control measures. However, when establishing such term inspections should take into account the volume of collected materials to the taxpayer was able to review the documents and prepare objections. Otherwise, the decision on additional be held invalid.
The essence of the case is as follows. To confirm the fact of violations of tax inspectors have carried out additional tax control measures. November 6 the taxpayer was aware of the documents on 285 sheets, and two days later took consideration of audit materials, taking into account the documents received in the course of additional activities.
Individual entrepreneur introduced additions to the objections to the act of on-site inspection. In them, he pointed out that the said consideration of materials testing and additional measures premature as to examine and analyze this volume of documents, as well as for the preparation of reasoned objections to it requires a longer time. Despite this, the supervisors passed a resolution on bringing to justice the individual entrepreneur and additional taxes. The total amount of additional tax assessments and penalties amounted to more than 14 million. Rubles.
According to the taxpayer, the inspection procedure violated the prosecution, as from the date of delivery of the help he was given a short time to give explanations and objections. In response, representatives of the inspection said that given enough time to familiarize themselves with these documents, because they do not install the new circumstances, and only confirms previous findings reported in the tax audit.
However, the courts of three instances supported by individual entrepreneurs. Justification is. Violation of the material terms of procedures for handling test materials is the basis for the annulment of the prosecution (paragraph 14 article 101 of the Tax Code). These essential conditions are to ensure the possibility of the person in respect of which audited, to participate in the process of reviewing the audit materials and an explanation. Judges highlighted: participation of the taxpayer in consideration of materials should be ensured at all stages of tax control. In this case, individual entrepreneur was not provided an opportunity to present objections to the tax offense, identified with the evidence obtained as a result of additional activities. And this is a material breach of the procedures for handling materials. On this basis, the decision on additional and penalty was abolished.
Resolution of the Federal District Urals from 19.06.2014 № F09-3772/14
FAS Ural District in its Resolution of 19.06.2014 № F09-3772 / 14 came to the conclusion that the compensation for the delay in wages, which is the financial responsibility of the employer and paid in connection with employee job duties, insurance premiums are not taxed.
The essence of the case is as follows. Workers were paid cash compensation for the delay in salary.
Representatives of the local branch of the RPF stated that the amount of compensation should be assessed premiums. Rationale - the interest paid by the employer in accordance with Article 236 of the LC RF for salary delay, belong to the species of compensation established by Article 129 of the LC RF, ie are elements of remuneration, and therefore subject to insurance premiums.
However, the Court upheld the company pointing to the next. Incentive and compensation payments are elements of remuneration in the event that possess features of wages: paid for the performance of the employee work performance, their size depends on the complexity, quantity and quality of work, are guaranteed in nature and are made automatically. With regard to compensation for the delay in salary, then it is a liability of the employer to the employee, provides additional protection for workers' rights. In other words, this payment can not be regarded as compensation to employees in connection with their official duties. Consequently, the disputed amount of compensation premiums will be awarded, the court decided.
Resolution of the Plenum of the Russian Federation of 30.05.2014, the №33
Resolution of the Plenum of the Russian Federation of 30.05.2014, № 33, in order to ensure a uniform approach to the resolution of disputes relating to the application of Chapter 21 of the Tax Code of the Russian Federation "Value Added Tax", presented an explanation of arbitration courts. The most significant aspects of the document are as follows:
In determining the tax consequences of the disposal (write-off) of the property as a result of the events beyond the control of the taxpayer (loss of property due to damage, fight, theft, natural disaster, or similar events) should be borne in mind that the basis of the content p. 1 tbsp. 146 of the Tax Code is not a disposal operation to be considered when forming the object of taxation. If at trial established that disposal of property, but not confirmed, that the disposal has taken place as a result of the events beyond the control of the taxpayer, the courts should proceed from the presence of his duties calculate tax under the rules set n. 2 tbsp. 154 of the Tax Code for the sale of the property free of the cases (n. 10).
Failure by the taxpayer in carrying out economic activities of certain requirements established by both public law and civil law (for example, failure to obtain, where necessary licenses, permits or other approvals, failure to registration of the contract, etc.) implies adverse tax consequences for him (eg, inability to use tax exemption for certain operations, use the tax deductions, tax claim for reimbursement from the budget, etc..) only if it is expressly provided the provisions of Part Two of the Tax Code, in particular Art. 149 of the Tax Code (p. 11).
Transfer counterparty goods (works, services) as souvenirs, gifts and bonuses without charging him with a separate fee is subject to VAT as the transfer of the goods free of charge, unless the taxpayer can prove that the price of basic goods includes the cost of souvenirs, gifts and al., and calculated with the basic operation encompasses tax and transfer. In the case of transfer of goods (works, services) for promotional purposes, such operations are subject to taxation on the basis of paragraphs. 25 P. 3 tbsp. 149 of the Tax Code, if the cost of the acquisition (the creation of) units of goods (works, services) exceed $ 100. At the same time can not be regarded as an operation that forms an independent object of taxation, distribution of promotional materials, which is part of the taxpayer to promote the market produced and (or) sold them goods (works, services) in order to increase sales, if these promotional materials do not meet the characteristics of the goods, that is, the property intended to be sold in its own quality (p. 12).
Assignment of buyer demand for the return of monies paid to the seller in the forthcoming transfer of goods (works, services), for example because of the termination of the contract or annulment can not be taxed, because the operation is to return the seller received as an advance payment funds are not subject to taxation. At the same time, with the subsequent assignment of the monetary claim by the assignee, is not a party to the contract sale of goods (works, services), such transaction shall be subject to taxation under the rules set n. 2 tbsp. 155 of the Tax Code (p. 13).
By part. 6 tablespoons. 88 of the Tax Code during the desk audit taxpayers to request the tax authorities are required to submit documents confirming the right to tax deductions for their use. In the application of this provision the courts should take into account the definition of "tax relief" given in Sec. 1 tbsp. 56 of the Tax Code, according to which of the tax benefits granted to individual categories of taxpayers advantages over other taxpayers. In connection with this action item. 6 tablespoons. 88 of the Tax Code applies to those listed in Art. 149 of the Tax Code grounds for exemption from taxation, which by their nature are responsible notion of a tax benefit. Therefore, with reference to the provisions of §. 6 tablespoons. 88 of the Tax Code of the taxpayers are not obliged to records on transactions which are not subject to taxation (n. 2 of Art. 146 of the Tax Code), or exempt from taxation on the basis of Art. 149 of the Tax Code, when such an exemption is not intended to provide specific categories of persons advantages compared to other perpetrators of the same operation, but a special tax rules related transactions (p. 14).
A taxpayer must determine the tax basis according to the rules of Art. 167 of the Tax Code in the case when the next sale of goods (works, services) with the participation of an attorney (commission agent, agent), providing for these purposes the timely receipt of attorney (commission agent, agent) documented evidence of the transactions for the shipment (transfer) of goods (works, services) and payment (ie quarterly) (p. 16).
If the contract is no direct reference to the fact that it set the price does not include the amount of tax and otherwise follows from the circumstances preceding the conclusion of the contract, or other terms of the contract, the courts should proceed from the fact that the demands on the amount of the buyer by the seller released the last of the tax specified in the contract price, which is calculated by the method by assertion. 4 tbsp. 164 of the Tax Code (p. 17).
For the purposes of the provisions of paragraphs. 2.1 p. 1 tbsp. 164 of the Tax Code it applies to freight ekspeditsionnyeuslugi rendered in respect of goods which are the subject of international transportation, regardless of whether an organizer for the International Carriage itself forwarder or zakazchiktransportno forwarding services, or another person (ie, the tax rate 0 percent is used as carriers, providing services to the international carriage of goods at various stages of transportation) (p. 18).
In cases where capital investment in the lease to the tenant in addition to the payment made to the lessor the rent, the tenant may deduct the amount of VAT against him in the general procedure as for the application of Art. 171 of the Tax Code should be seen as a person who acquires the goods (works, services) for the needs of their economic activities. In the case of payment by the lessor of capital expenditures related leasehold improvements to leased property shall be deemed transferred to the lessor to pay for them. In this case, previously adopted by the lessee to deduct the amount of tax imposed them to the lessor in relation to the provisions of par. 1 tbsp. 168 of the Tax Code. In turn, the landlord as the owner of the leased object, who took upon himself the burden of capital investments made against the tenant in this order or the amount of tax can be deducted in accordance with Art. 171 of the Tax Code, or include in the costs when calculating the income tax on the basis of Art. 170 of the Tax Code (p. 26).
By part. 2 tbsp. 173 of the Tax Code positive difference formed by the excess amount of tax deductions over the amount of tax calculated on taxable transactions shall be reimbursed to the taxpayer of the budget upon the submission of their tax return before the expiry of this paragraph, the three-year period. Because of this rule provides otherwise, the tax benefits will be reflected by the taxpayer in the tax return for any of the members of the relevant three-year period of tax periods (p. 27).
The decision of the RF from 12.04.2013 № VAS-13048/13
В Решении ВАС РФ от 04.12.2013 г. № ВАС-13048/13 со ссылкой на пп. 5 п. 2 ст. 265 НК РФ отмечено, что организация, осуществляющая розничную торговлю в магазине
самообслуживания, вправе учесть в составе расходов в целях исчисления налога на прибыль суммы товарных потерь при условии, что виновные лица не установлены. Письмо Минфина России от 06.12.2012 г. № 03-03-06/1/630,обязывающее подтверждение этого факта постановлением следователя органов внутренних дел России о приостановлении или о прекращении уголовного дела, не соответствует п. 1 ст. 252 НК РФ признано не действующим в указанной части.
Resolution of the Federal North Caucasus region of 30.04.14 № A32-6489/2013
FAS North Caucasus region in its Resolution of 30.04.14 № A32-6489 / 2013 came to the conclusion that if the company had applied for change of address, but the appropriate changes are not registered in the register, the inspectors in the old place of registration of the right to make the on-site verification.
The essence of the case is as follows. The organization filed a petition to amend the Incorporation in connection with a change of location. The day before making changes to the register, designated inspection site inspection. The reason for the revision was not only moving company, but the suspicion is that the taxpayer was not engaged in financial and economic activity, but wrongly claimed VAT deduction. The company went to court, claiming that the check is assigned to a non-authorized tax authority. The Organization stated that, in assessing the legality of the decision to conduct the examination must consider not only the date of appointment of the audit, but also the date of creating an account on the audit in a computer program. And in this case, such a record is created after the entity has been put on record in another inspection.
However, the courts have upheld the tax office, pointing to the next. The decision to conduct a field tax audit makes the tax authority at the location of the organization or at the place of residence of an individual (n. 2 of Art. 89 of the Tax Code). The date of removal from the register and registration with the new inspection is a corresponding entry in the Unified State Register of Legal Entities (Entities) or the Uniform State Register of Individual Entrepreneurs (EGRIP). In this case, at the time a decision to conduct on-site inspection organization was still at the same address as the changes made in the Unified were not. Consequently, the decision to conduct on-site inspection is legitimate.
The argument of the fact that the date of the decision of the tax authority should be the date of its creation in the electronic document management system, was also rejected. The Court explained that the start date of a spot-check is the date of adoption by the tax authority of the solution, not the time of its registration in the electronic document management system.
Determination of the Russian Federation of 26.05.2014, the №VAS-5881/14
SAC in a ruling dated 26.05.2014 № VAS-5881/14 (refusal to refer the case to the Presidium of the court) concluded that in areas where there is a regional coefficient, you must first need to determine the average daily wage on the basis of actual earnings, and then determine the average daily wage on the basis of the minimum wage, and the resulting value of the coefficient multiplied by the district. If calculated from the minimum wage and multiplied by a factor of the average daily wage is more than "actual", the benefit is calculated based on the minimum wage, taking into account the coefficient.
The Court pointed out that the district is the coefficient compensation payments for work in special climatic conditions. Therefore, it should be applied on the first stage of the calculation of benefits - in the calculation of the average daily wage (as of the actual time worked, and of the minimum wage), but not when it is calculated allowance.
Accordingly, in areas where there is a regional coefficient, it is necessary to apply the following algorithm for calculating benefits. First you have to determine the average daily wage on the basis of actual earnings. You then need to determine the average daily wage on the basis of the minimum wage, and the resulting value of the coefficient multiplied by the district. If calculated from the minimum wage (at a rate), the average daily wage is more than "actual", the benefit is calculated based on the minimum wage, taking into account the coefficient.
Resolution of the Federal District Urals from 25.04.2014 № F09-2274/14
FAS Ural District in its decision of 25.04.2014 № F09-2274 / 14 came to the conclusion that the failure of the FSS in the decision to offset the cost of benefits for temporary disability is not grounds for additional charges on these insurance premiums.
The lawsuit was the following situation. Due to errors in the certificate of incapacity representatives of the Perm regional branch of the Social Insurance Fund refused to offset the cost of benefits. The Company is obliged to pay the arrears in the amount of missed offset amounts of benefits. In this case, the amount of such arrears auditors accrued premiums.
However, the courts of three instances pointed out by the FSS on the illegality of the decision. For, in fact, the premiums were charged on insurance premiums (arrears). Arbitrators are reminded that insurance premiums are subject to the payment of accrued under the employment relationship (Article. 7 of the Federal Law of 24.07.09 № 212-FZ). Amounts missed to offset spending on benefits are not automatically benefit to employees as part of employment relationships. Failure of the Fund's decision to offset the costs does not change the social orientation of the uncommitted amounts. Errors in sick leave actually involve only the refusal to accept the costs are offset rather than refusal to pay temporary disability benefits, and do not indicate underestimation of the base for calculation of insurance premiums. Therefore, even if the fund does not take social insurance to offset the amount of benefits paid to employees, these amounts donachislyat premiums do not need, the Court concluded.
Resolution of the Federal District Urals from 29.04.2014 № F09-1691/14
FAS Ural District in its Resolution of 29.04.2014 № F09-1691 / 14 came to the conclusion that the failure to deduct VAT on the sole ground that the invoice is a misprint in the VAT, is wrongful.
The essence of the case is as follows. The organization submitted to the inspection of the VAT return, saying the deduction of 90 thousand. Rubles VAT. However, tax deductions and assessed that removed the tax due to the fact that the invoice was a mistake in the TIN. It was a doubling of the numbers in the inn, that is, the identification number was not 10, but from 11-digits. Tax inspectors decided that the VAT does not identify the specific taxpayer that is a violation of paragraph 5 of Article 169 of the Tax Code. Therefore, under such invoice VAT not deductible.
The company went to court and won the case in three instances. Argument to the Court was that, in paragraph 2 of Article 169 of the Tax Code of the Russian Federation said: errors in invoices that do not affect the identification of the seller and buyer of goods (works, services, property rights), shall not constitute grounds for refusal to deduct VAT. In this situation, an incorrect designation VAT invoice is a mistake that will not cause difficulties in the identification of the seller. On this basis, the courts have recognized the company for the right to deduct VAT.
Determination of the Russian Federation of 24.03.2014 № BAC 2849/14
Supreme Arbitration Court in its decision of 24.03.2014 № BAC 2849/14 was of the opinion that the tax overpayment at the application deadline for its return may be considered bad debt and, therefore, taken into account in the determination of cost base for income tax .
The essence of the case is as follows. At the time when the company became aware of the overpayment of property tax, three-year term on its return from the budget had long been ignored. The organization considered such overpayment bad debt and recorded in costs, reduce income tax.
Basing his opinion that the costs in the form of bad debts (debts irrecoverable), which ended the limitation period is recorded as non-operating expenses (cop. 2 p. 2 tbsp. 265, p. 2 of Art. 266 of the Tax Code ).
However, tax inspectors have removed these costs and assessed that the income tax. These actions meet the position the Russian Finance Ministry, who spoke out against the write-off for tax purposes of overpayment of taxes as a bad debt. Several years ago, the Ministry of Finance experts reported that the application for credit or the refund of overpaid tax can be filed within three years from the date of payment of the said sum (p. 7, Art. 78 of the Tax Code). If the company did not do so, the amount of the overpayment is not receivable and bad debt is not recognized in accordance with paragraph 2 of Article 266 of the Tax Code. In other words, the company is to blame that outstay tax refund. In addition, pursuant to paragraph 4 of Article 270 of the Tax Code as the sum of consumption tax are not taken into account in determining the tax base for income tax (Letter dated 08.08.2011 № 03-03-06 / 1/457).
However, the SAC ruled in favor of the company, referring to the definition of the Constitutional Court of 08.02.2007 № 381-OP. In paragraph 2 of the definition states that the amount of overpaid tax is subject to all the constitutional guarantees of property rights, in view of the fact that in this case the tax is paid to the budget without legal obligation and the basis (ie, the overpayment is inherently not a tax, so the point 4 of Article 270 of the Tax Code, which prohibits expensed amount of taxes paid on the overpayment does not apply).
Thus, the amount of the overpayment of tax that is not refunded by the tax authority in connection with the omission of the organization of three years to apply, can be accounted for in the cost for tax purposes as a bad debt, concluded UPU RF, and refused to transfer the case to the Presidium this Court.
Resolution of the Federal Northwest District from 15.05.2014, № A44-3041/2013
FAS Northwestern District in its Resolution of 15.05.2014, № A44-3041 / 2013 came to the conclusion that the gifts to employees on the occasion referred to the collective (labor) contract or a local act, are a form of payment, and therefore included a base for calculation of insurance premiums.
The essence of the case is as follows. Congratulations for workers Fatherland Defender's Day, March 8, and the World Donor Day, the company bought the certificates to a local fitness club for 500, 540, 720, 800 and 900 rubles (the total value of the gifts amounted to 9.7 million. Rubles). According to the employer, gifts did not relate to wages, so a given amount of insurance premiums do not need to charge.
However, in such a position FSS considered erroneous. Auditors FSS said that since the payment in the form of a valuable gift made by the employer with whom the employee is associated labor relations, they are regarded as carried out in the framework of an employment relationship. Gifts to the holiday dates given to employees on the basis of orders of the head of settlement and payroll, with the donation contract in writing were not decorated. Accordingly, the value of the gifts is considered as an element of remuneration and subject to insurance premiums. Since this was not done, the inspectors have fined the company pursuant to paragraph 1 of Article 47 of the Federal Law of 24.07.09 № 212-FZ, in the amount of 284 thousand. Rubles.
The Court recognized the legitimate penalty, stating the following. Article 135 of the Labor Code provides that an employee's salary is set employment contract in accordance with a given employer wage system. The system of remuneration, including bonuses and allowances of incentive-based bonus system and are established by collective bargaining agreements, contracts, local regulations.
In this situation, rewarding employees with valuable gifts made in the order approving the regulations on promotions, which is an integral part of the collective agreement. This local act clearly states: the main criteria for promotion are the efficiency and professionalism of the employee in matters within its competence, in the preparation of documents, execution of orders of the head; timely, good faith, high-quality execution of duties. Moreover, based on the content of employment contracts, incentive payments established by the collective bargaining agreement, are part of the wages.
All this, according to the Court indicates that the disputed payments in the form of gifts made within the framework of labor contracts and labor relations are elements of remuneration. And since they are not named in the list of tax-free payments (Article 9 of the Law № 212-FZ), they shall be subject to insurance premiums.
Resolution of the Federal District of the Moscow 04.21.14 №A41-34916/13
Federal District of Moscow in its Resolution of 21.04.14 № A41-34916 / 13 came to the conclusion that, even if the company does not make payments to individuals, it is required to submit to the FIU payment of accrued and paid insurance premiums. For failure to zero reporting relies fine of 1,000 rubles.
The essence of the case is as follows.
Under current law, for failure to provide the calculation of premiums is a penalty of 5 percent of the amount of insurance premiums, accrued expense for the last three months of the reporting (settlement) period, but not more than 30 percent of this amount and not less than 1 000. This is stated in paragraph 1 of Article 46Federalnogo Act of 24.07.09 № 212-FZ. Guided by this norm, the auditors FIU fined 1,000 rubles for failure to timely "zero" report. Organization with the decision of the Fund did not agree and went to court. In its defense, the insurer said that the business is no longer and has no employees. And since the payment of compensations to individuals is not made, then the amount of the fine for failure to report a zero must be zero.
The Court considered this position Insurer wrong. Justifying it in a way that a business created for entrepreneurial activity for profit, and under normal conditions of economic exchange uses the labor of employees on the basis of employment contracts and contracts of civil nature. Payments to individuals are subject to taxation of insurance premiums. Control over the correctness of calculation and timely payment of insurance premiums for the purpose of ensuring the rights of insured persons on the basis of calculations of contributions. Thus, organizations are payers of insurance premiums due to the presence status of a legal person, regardless of whether they actually make payments to individuals or not. In view of the foregoing, the Court concludes that because the company did not provide the form of RSV-1 within the prescribed period, the supervisors legally imposed minimum fine of 1,000 rubles.
Resolution of the Federal Central District of 25.04.2014, the №A62-2115 / 2013
FAS Central District in its Resolution of 25.04.2014, the №A62-2115 / 2013 came to the conclusion that even if the newly registered company has no employees, it must report to the Federal Tax Service of the average number of employees.
The essence of the case is as follows. Tax inspectors for the city of Smolensk fined the company on the basis of Article 126 of the Tax Code for failure to provide information about the average number of employees for the preceding calendar year. According to auditors, a company incorporated in August 2012, was to present a report on the average number until September 20. The organization refused to pay the fine and go to court. As explained by the plaintiff, in the state of a newly created company had no employees. And if so, then submit to the tax authority information on the average number of employees was not required.
However, the courts of all levels have recognized this approach wrong. The Court recalled that, in the case of a (reorganization) of the report on the average number required to pass the tax office no later than the 20th of the month following the month in which the organization was established (p. 3 tbsp. 80 of the Tax Code). The Tax Code does not relieve the organization who have no employees, from the obligation to submit the specified information. In addition, the average number of employees assigned to the parameters that affect the procedure for the calculation of taxes and the use of different tax regimes. Thus, a newly created organization is obliged to provide information on the average number in a timely manner, regardless of whether they have a full-time employees or not.
Resolution of the Federal Volga Region of 20.03.2014, №A55-12200/2013
FAS Volga District in its Resolution of 20.03.2014, № A55-12200 / 2013. Concluded that the designation of an incorrect TIN in the hotel bill is not grounds for additional taxation of income.
The Court considered the following argument. Employees under report were issued for cash payment of hotel services during the period of official missions. During the test, the tax found that checks hotels and parking lots, paid staff on mission, a nonexistent INN. Tax inspectors said that because the documents contain false information, the disputed costs to take into account the costs can not be. As a result, the company was assessed additional income tax expense in the amount of 200 thousand rubles.
However, the court with your tax inspectors did not agree. The judges noted that the expenditure verification personnel expense report submitted with the application of payments. They contain all the necessary details, including the signature and seal, in which contacts were mentioned hotels and car parks. Inspection argument that the organization, which were home to workers who are not registered in the register, the court rejected. The reason - the duty of the company to check the fact of registration of the Tax Code of accommodations are not available (decision of the Arbitration Court of Samara Region of 13.09.13 № A55-12200 / 2013). As a result, the courts of all instances have come to the conclusion that the company reasonably take into account travel expenses, including the costs and services of the hotel and car park.
Determination of the Russian Federation of 03.19.2014 № VAS-2662/14
The Supreme Arbitration Court of the Russian Federation in the ruling dated 19.03.2014 № VAS-2662/14 came to the conclusion that if the company can prove that workers use the services of a taxi in order to perform job duties, then the fare paid by the employer premiums are not charged .
The essence of the case is as follows. Bank has entered into a contract with a transport company to provide services for the transport of workers by taxi. Trips were made in order to repair the equipment, on-site service, delivery and receipt of the documents in the organs Rosreestra participation in court hearings, and so forth. Taxi service paid to the carrier by the end of the month in non-cash form. The inspectors from the Pension Fund believed that business need to travel by taxi was not. And if so, then the payment by the employer of trips is a personal benefit employee received in kind. Accordingly, the cost of taxi services in accordance with paragraph 6 of Article 8 of the Federal Law of 24.07.09 № 212-FZ to be included in the basis for calculation of insurance premiums.
However, the court with the position of the Pension Fund of the Russian Federation did not agree. Justifying it as follows. From taxation exempt compensation insurance premiums associated with the performance by an individual job duties (cop. "And" n. 2 hours. 1 tbsp. 9 of the Law № 212-FZ). According to article 164 of the Labour Code compensation - monetary payments is established in order to compensate employees costs associated with the performance of their employment or other duties under the LC RF and other federal laws.
In this case, the fact that the travel was for the purpose of performing work duties, indicate the following circumstances. Disputed payments (with taxi services) made on the basis of a civil contract for the provision of services for the transportation of employees of the bank (ie, within the framework of civil and legal relations between the two entities). By the end of each month signed an act of the services provided with details of the date, time, itinerary and cost of services rendered. Also every month for each trip is an internal document of the bank, where in addition to the above findings indicate name of the organization, where to send the employee, and the purpose of the trip. Payment for services performed by the carrier's customer service by wire transfer.
In this case, the inspectors of the Pension Fund of the Russian Federation did not provide evidence that the payment to the carrier made in the interests of individual employees and are their income.
In view of the judges decided that in this situation the cost of taxi service in the base for the calculation of insurance premiums is not included.
Determination of the Presidium of the Supreme Arbitration Court of the Russian Federation of 04.08.2014, the №A73-13807 / 2012
The Presidium of the Supreme Arbitration Court of the Russian Federation at the meeting of 08.04.2014 (Case number A73-13807 / 2012 of the Arbitration Court of the Khabarovsk Territory) has determined that the amount that the employer pays an employee to work on a rotational basis, in the Far North and equivalent areas in as compensation for travel expenses from place of residence to place of work and back to the base for calculation of insurance premiums are not included.
The essence of the case is as follows. The Company reimburses employees working in shifts, the fare from their place of residence of the passport to the gathering place in Khabarovsk (to the central office). Further passage (from the collection site to the sites), the employer pays for itself. According to representatives of the Pension Fund of the Russian Federation, on the premiums available only fare from the assembly to shift sites, and since the payment of travel from the place of residence of workers to the office of the company had to charge the premiums. Since this was not done, the insurer was held liable on the basis of paragraph 1 of Article 47 of the Law № 212-FZ. Additional charges, fines and penalties amounted to more than 2.3 million. Rubles.
The courts of the first three instances supported representatives of the Pension Fund of the Russian Federation. The courts have noted that before an employer really had to pay for transportation workers from their home to the point of collection. Such a duty has been provided by paragraph 2.5 of the Basic provisions on rotational basis Works (approved. Secretariat of Trade Unions and the Ministry of Health of the USSR from 31.12.1987, № 794 / 33-82). However, this rule has been invalidated by the Supreme Court of the Russian Federation of 17.12.1999 № GKPI99-924. In this regard, the courts have concluded that the fare "shift workers" can be attributed to the number of tax-exempt contributions to compensation only if the act of organizing a local collection point set and from the organized workers is delivered to the place of business of the company. That is, in this case from the premiums available fare from the office (gathering place) to the camps. With regard to the reimbursement of the cost of travel from the place of residence of workers to the location of the office of the employer, such amounts are subject to insurance premiums.
The lack of uniformity of arbitration practice on this issue was the reason for the referral of the case to the Presidium of the Russian Federation (the definition of the Russian Federation of 04.03.14 № BAC 16954/13). In this case, the SAC Board noted that the lower courts, in particular, do not take into account the following facts.
First. In the Supreme Court, which invalidated the item in terms of the mandatory payment of travel from their home to the point of collection, did not contain a prohibition of voluntary compensation for the employer costs for employee travel from place of residence to the place of collection.
Second. Delivery costs rabotnikov- "watchmen" of the place of residence (the collection) to the place of work and back, provided the collective bargaining agreement, are the other costs associated with the production and sale, and not to the cost of labor (under. 12.1 p. 1 tbsp . 264 of the Tax Code). Then there are the costs associated with the performance of the employees job duties are not included in the remuneration system.
Third. All kinds of statutory compensation payments related to the implementation of the employees job duties are not subject to insurance contributions (cop. "And" n. 2 hours. 1 tbsp. 9 of the Law № 212-FZ). In accordance with Article 313 of the LC RF additional compensation for employees of "northern" organizations can be established, including collective agreements, agreements and local normative acts based on the financial capacity of the employer.
Based on the foregoing, the panel of judges of the RF, decided to transfer the case to the Presidium, came to the following conclusion. Provided for by the collective agreement for the payment of compensation for workers fare from their home to a collection point and back are compensatory. They are installed in order to compensate employees costs associated with the performance of their work duties, and are not included in wages. Therefore, such payments are not subject to insurance contributions under subparagraph "and" paragraph 2 of Part 1 of Article 9 of the Federal Law of 24.07.09 № 212-FZ.
Presidium meeting on 08.04.2014, the company has also supported abolishing judicial acts first, appellate and cassation.
Resolution of the Federal Western Siberian region of 24.03.2014, the №A75-3926/2013
FAS West Siberian District in its Resolution of 24.03.2014, the number of A75-3926 / 2013 came to the conclusion that the company can not take pictures audit materials as it is a violation of tax secrecy.
The essence of the case is as follows. The company appealed to the tax office to provide it with a room for photographic materials inspection. Tax officials said that when apprised of the audit photographing is prohibited. At the same time, tax inspectors sent the taxpayer a copy of the site inspection with applications for 280 sheets. The organization appealed to the Tax Office against the actions of the chief of the inspection and asked to oblige inspectors to issue audit materials for their photography. However, the Federal Tax Service also refused. The taxpayer appealed to the court, but lost in all instances.
In deciding in favor of the tax office, the Court stated the following. The tax authority is obliged to give the taxpayer a copy of the inspection report and the documents proving the violations found. At the same time, the obligation to provide a copy of all inspection materials check the current legislation does not explicitly provide. In addition, the court stated, in accordance with the provisions of paragraph 1 of Article 102 of the Tax Code, any resulting tax authority (as well as the bodies of internal affairs, investigative bodies, public extra-budgetary fund, the customs authority) information about the taxpayer constitute a tax secret. On the basis of the current legislation, the taxpayer is entitled to consult the test only to the extent that it does not violate the rights and legitimate interests of third parties, the court decided. As inspectors gave the taxpayer the opportunity to familiarize himself with the test by sending him copies of them, the court found no violation of the rights of the company in connection with the refusal to take pictures of documents.
Resolution of the Federal Western Siberian region of 05.03.2014, the №A70-4564/2013
FAS West Siberian District in its Resolution of 05.03.2014, № A70-4564 / 2013 came to the conclusion that the absence of a certificate of incapacity mention of the name of the physician specialty and is a minor mistake, for which the employer is not responsible. Therefore, if the fact of occurrence of insured events is not disputed, the flaws in the ballot, admitted doctor, are not grounds for refusal to take to offset the cost of paying benefits.
The essence of the case is as follows. Tyumen regional branch of the FSS has not taken to offset benefit costs due to errors in the certificate of incapacity. Namely, in the bulletin did not specify the name and specialty of the attending physician; period of leave from work for more than 30 calendar days has been issued without the involvement of the medical commission. According to representatives of the FSS, the employer could not take the employee incorrectly decorated sick leave. Since he did not use this right and paid sick leave, the Fund is not required to reimburse.
The courts of all instances sided with the organizations referred to the next. The very fact of insured accidents on sick leave Social Security Fund is not disputed, and the violations are not substantial. The Fund has not demonstrated that the defects in the design of hospital sheets affect the data, which are essential for decision to offset the costs of compulsory social insurance. In addition, the judge noted that inaccuracies in sick leave were allowed a medical institution. Therefore, the responsibility for such errors can not be attributed to the employer.
In addition to the above arguments the Court noted that the authorities have the right to sue the FSS to healthcare organizations for reimbursement of expenditure on insurance coverage issued by unreasonably or improperly issued a certificate of incapacity.
Resolution of the Federal District of the Moscow 21.02.14 №A41-57760 / 12
Speaker of the Moscow District in its Resolution of 21.02.14 № A41-57760 / 12 came to the conclusion that if the part of the premises is not actually used in trading activities, the payer UTII can not ignore this part of the determination of the physical index "sales area (in square meters) . "
The essence of the case is as follows. The Company applies the mode UTII retail presence, calculated on the basis of a flat tax actually used leased space. However, the inspectors stated that the taxpayer has reduced the tax base, and assessed that UTII counting the benchmark return in accordance with the sales area, which was listed in the title and inventory documents.
However, the court decision on additional tax canceled. As the Court pointed out, mandatory points of reference for the areas classified as "floor space" and the account in the calculation of their UTII is the actual use of space. This should be confirmed by a set of evidence. In this situation, the company introduced a scheme of use of the premises, orders on the allocation of sales area. The taxpayer explained that the business area has been allocated racks and other temporary structures, preventing the passage of visitors. Also during the trial were questioned persons who confirmed that fact under the trading floor was used only part of the premises. On this basis, the court concluded that the company has considered reasonable physical parameters corresponding to the size of actual use of the shopping area.
Link of the tax that the leases and technical certificates BTI do not contain changes in the area of trade halls, the Court rejected. Justification - when the business area is shown with temporary structures, changes in constitutive and inventory documents in accordance with the current legislation is not introduced.
Resolution of the Federal Western Siberian region of 14.03.2014, № A81-2538/2013
FAS West Siberian District in its Resolution of 14.03.2014, № A81-2538 / 2013 came to the conclusion that the application of the regime singled out the USN, which was the property of the reorganized company is not required to recover VAT on the resulting property.
The essence of the case is as follows. As a result of the reorganization in the form of separation was created by a legal person using the USN. On the basis of the transfer balance it got fixed assets. Tax officials said that the company was spun off to recover VAT previously reimbursed by the predecessor of the present property. Since this was not done, the inspectors assessed that tax and interest. Explaining his position, the tax referred to in sub-paragraph 2 of paragraph 3 of Article 170 of the Tax Code. According to this rule, taken to deduct VAT on the purchase of property to restore, if in the future the property will be used by persons who are not VAT payers. Organizations using razhim USN exempt from VAT (p. 2 tbsp. 346.11 of the Tax Code). Consequently, the successor shall restore and make the payment of VAT in respect of the property transferred to it by the reorganized legal entity.
However, the courts of all instances supported by the taxpayer, stating the following. If the reorganized company transfers to the assignee of the property in respect of which it adopted the VAT deduction, the assignee is not required to restore the appropriate amount of tax. This is stated in paragraph 8 of Article 162.1 of the Tax Code. Obligation to recover VAT charged only to those taxpayers applying mode USN, who had previously used the general taxation system.
According to the judges, the VAT should be restored only by the person to whom the tax was refunded, and which formed the source of the recovery of VAT. As the successor organization is not to claim a deduction of VAT on receipt of property, it is not liable to this tax. Therefore, to recover the VAT it is not required, the Court ruled.
Resolution of the Federal District of the Moscow 23.01.2014 city №A40-14698/13-91-51
The Regulation of FAS Moscow District on 23.01.2014 (case number A40-14698 / 13-91-51) noted that, in accordance with Clause 1, Article. 310 of the Tax Code tax on income earned by a foreign organization from sources in the Russian Federation, is calculated and withheld by a Russian organization at each payment of income referred to in Sec. 1 tbsp. 309 of the Tax Code, except as provided in sub. 2 tbsp. 310 of the Tax Code, in the currency of payment of the income. In paragraphs. 4 p. 2 tbsp. 310 of the Tax Code exception is made for the payment of income which, in accordance with international treaties (agreements) are not subject to tax in the Russian Federation, provided that the foreign entity to a tax agent a confirmation set n. 1 tbsp. 312NK Russia. At the same time, by virtue of para. 2 p. 1 tbsp. 312 of the Tax Code such confirmation shall be submitted to the tax agent before the payout date.
Resolution of the Federal District of the Moscow 26.12.2013 city №A40-132828/12
The Regulation of FAS Moscow District on 26.12.2013 (case number A40-132828 / 12), with reference to Articles 100 and 101 of the Tax Code of the Russian Federation noted that the tax authority shall confirm the receipt of the inspection report and the taxpayer notice of the place and time of the material in the case of sending the above documents by mail. The mere fact of sending documents by e-mail a cover letter, as well as the presence of the mark of the Russian Post is not evidence of proper notice and the absence of such evidence may be grounds for annulment of the decision of the tax authority, adopted following the consideration of the audit materials. Moreover, the inspection should be undertaken the necessary and sufficient measures to notify the taxpayer, so having information about the room number for an organization, place of residence CEO, however, ignored the possibility of inspection notify society with all available methods, which led to the violation of the rights of the taxpayer to file an objection to the conclusions inspections contained in the tax audit. Given the above, the company has actually been deprived of the opportunity to participate in the study (refutation) of evidence obtained during the desk audit. In these circumstances, the courts have made a correct conclusion that the tax audit report is considered by the Tax Inspectorate in the absence of representatives of the person from whom the tax liability is not properly notified about the time and place of the tax audit materials. These violations are recognized legislator significant, since they hinder the person in respect of which tests are to participate in the process of reviewing the audit materials personally. Violation of the material terms of the procedure of consideration of a tax audit is the basis for cancellation of the higher tax authority or court decisions of tax authorities to prosecute for tax offenses, or a decision to refuse to prosecute for tax offenses.
Resolution of the Federal District of the Moscow 25.12.2013 city №A40-34818/13
The Regulation of FAS Moscow District on 25.12.2013 (case number A40-34818 / 13) noted that the tax legislation does not contain provisions that provide restoration of a previously lawfully admitted for deduction of VAT in respect of goods lost due to fire, and n. 3 Art. 170 of the Tax Code provides for cases in which the amount of tax deducted by the taxpayer received the goods (works, services), including fixed assets and intangible assets, property rights, subject to recovery. This article contains an exhaustive list of circumstances in which the taxpayer is required to restore a sound decision to deduct VAT on purchases of goods and materials. In this list there is no such basis for the recovery of VAT, as the loss of the goods.
Resolution of the Federal District of the Moscow 16.12.2013 city №A40-33073/13
The Regulation of FAS Moscow District on 16.12.2013 (case number A40-33073 / 13) with reference to paragraph. 4 PBU 1.6, Articles 374 of the Tax Code i375 noted that until the return of the leased property to the permanent improvements to the lessor or reimbursement of expenses incurred is the latest tenant shall be the person performing the capital investment, it is incumbent on their reflection in the accounting, plant and equipment and that it is subject to taxation property.
Determination of the Russian Federation of 31.01.2014 №VAS-497/14
The Supreme Arbitration Court of the Russian Federation in the ruling dated 31.01.14 № BAC 497/14 came to the conclusion that during the desk audit, tax inspectors have the right to demand documents from taxpayers who use tax exemptions. However, it is necessary to delimit benefits from situations in which there is no object of taxation. Transactions are exempt from VAT by virtue of Article 149 of the Tax Code, to the benefits are not treated. Accordingly, the tax inspectors do not have the right to demand that the taxpayers primary documents confirming the performance of such operations.
The essence of the case is as follows. When conducting a desk audit tax office has no right to demand from the taxpayer for more information and documents (paragraph. 7, Art. 88 of the Tax Code). However, this rule there are some exceptions. One of them - the use of taxpayer tax benefits (paragraph. 6 Art. 88 of the Tax Code). Some inspections believe that relate to benefits, including transactions not subject to VAT (their list is enshrined in Article 149 of the Tax Code).
During the desk audit, tax inspectors have requested of the documents confirming the legality of the VAT exemption of operations (granting of loans), referred to in section 7 of the VAT tax return. The request for documents were listed invoices, book sales, loan agreements, payment of interest on loans. The organization has refused to provide the documents and tax inspectors fined the company on the basis of Art. 120 of the Tax Code, "gross violation of the rules of income and expense and the objects of taxation."
The courts of all instances decided in favor of the taxpayer. As pointed judge, recognition for the purposes of taxation of transactions that are exempt from VAT, means that such operations are not included in the tax base of this tax. While the benefits - these are the advantages for certain categories of taxpayers, which include the ability to not pay tax or pay it in a smaller size (p. 1 tbsp. 56 of the Tax Code).
Thus, the exemption from VAT, the Tax Code for certain transactions to the benefits are not equal. Consequently, the organization is not required to submit during the desk audit documents in case in Section 7 Declaration include the operations that are not subject to taxation, including the operations of issuing loans.
Determination of the Russian Federation of 25.02.2014 №VAS-1259/14
The Supreme Arbitration Court of the Russian Federation in the ruling dated 25.02.2014 № BAC 1259/14 came to the conclusion that the lack of professional experience in the employee finding work before maternity leave, no evidence of the creation of the situation, aimed at the unlawful receipt of funds from the Social Security Fund.
The essence of the case is as follows. Regional Office FSS from Kaliningrad refused to reimburse the individual entrepreneur expense worker benefits and maternity leave. According to inspectors, individual entrepreneur has created an artificial situation, aimed at illegal receipt of the Fund. Basis for the conclusion was the fact that the employee has been accepted for the position of store manager for 2.5 months before leaving on vacation for child care. In this case, the insurer before such a post in the staffing absent. In addition, experts FSS drew attention to the fact that the employee has been unemployed for several years, and shortly before the insured event was arranged just two jobs (main and part-time).
The courts of all instances decided in favor of the individual entrepreneur, pointing to the next. The first - the payment of benefits and the adoption of cost does not depend on how long the employee worked before the insured event or the gestational age at the date of employment. Moreover, Article 64 of the Labor Code expressly prohibits an employer to refuse to employ a woman because of her pregnancy.
Second - in workers has a degree in "merchandise." Thus, it is consistent with the requirements of her post. And the fact that she worked as an employee of another and in combination, does not matter. Since the Labor Code allows workers to enter into several contracts to work part-time.
Third - the fact that the earlier an individual entrepreneur was not the head office store is not evidence of the fictitious nature of the employment. In addition, the store was opened shortly before hiring an employee.
Fourth - in support of employment workers were provided with copies of staffing; timesheets; settlement and payroll; invoices, confirming the reception of the goods store manager; cashbook. On this basis, the Court held that because the employee is actually performing its duties, the benefit was paid to her legally.
Determination of the Russian Federation of 13.02.2014 № BAC 808/14
The Supreme Arbitration Court of the Russian Federation in the ruling dated 13.02.2014 № BAC 808/14 concluded that the penalty on the basis of Article 47 of the Federal Law of 24.07.09 № 212-FZ is collected only for non-payment of premiums underestimated the basis for assessment. If their sum is calculated correctly, then there is no reason for the penalty.
The essence of the argument is as follows. Organization of the Volgograd region paid correctly calculated premiums overdue. During this representatives of the Pension Fund have fined the company with reference to Article 47 of the Federal Law of 24.07.09 № 212-FZ on insurance premiums (hereinafter - the Law № 212-FZ). Amount of the fine was more than 400 thousand rubles. The Pension Fund believed that the offender may be prosecuted for the mere failure to transfer within the prescribed period of insurance premiums. That is, even including in the case where the amount of the contributions payable, has been calculated correctly.
However, the courts of all instances with the position of the Pension Fund did not agree. Justification of the following. Of paragraph 1 of Article 47 of the Law № 212-FZ, it follows that the penalty shall be collected only for non-payment or partial payment of insurance premiums as a result of underestimation of the basis for assessment, otherwise their wrong calculation or other unlawful actions (inaction) of contributors. Consequently, if the payer correctly numbered contributions, but their untimely paid, it can not be held liable. In this case, the premiums for OPS and CBOs have been calculated correctly, the base of the contributions are not understated. Hence, the reason for the penalty for failure to pay correctly calculated premiums not ruled Court.
A similar conclusion was reached by the Supreme Arbitration Court in a decision dated 31.05.13 № BAC 3196/13. SAC indicated that the late payment of insurance premiums calculated correctly implies the accrual of penalties, and not a penalty. In this regard, has been recognized as a form of ineffective claim for payment of arrears of premiums (Form 5-FIU), as it provides for a penalty for late execution requirements.
Resolution of the Federal District of the Moscow 23.01.2014 № A40-12523/2013
Federal District of Moscow in its Resolution of 23.01.2014 № A40-12523 / 2013 came to the conclusion that the injury received by an employee in his return from a business trip (including after the arrival of the train), recognized an accident at work. Therefore, the FSS RF to admit expense of temporary disability benefits.
The essence of the argument is as follows. Returning from a business trip, the employee was injured (broken leg). In this case, the accident occurred at the exit of the train (on the platform). The organization paid worker temporary disability benefits and appealed to the FSS to declare the costs of temporary disability. However, representatives of the FSS refused. The main argument - because the injury was received after the arrival of the train, it is not connected with the performance of job duties. The accident was still possible to qualify as insurance, if it occurred during their journey on the transport provided by the employer. But in this situation, transportation for the employee of the station was not provided.
The Court noted the following. Article 229 of the Labor Code requires the employer to convene a commission to investigate the accident. That she has the right to qualify the incident as an accident at work or an accident that is not associated with production (Art. 229.2 LC RF).
In this case, the Commission recognized that the event occurred on a working day at the time the employee returns from a business trip, and the trauma associated with the performance of the employee job duties. Means for qualifying accident at work as an insurance case is only important that the incident took place during working hours and in connection with the performance of job duties (Article. 3 of the Federal Law of 24.07.98 № 125-FZ "On Compulsory Social Insurance against accidents and occupational diseases "). Consequently, the controversial injury should be classified as an industrial accident, the Court ruled.
Resolution of the Federal District of the Moscow 03.10.2013, № A40-788836/12
The Regulation of FAS Moscow District on 10.3.2013 (case number A40-788836 / 12) noted that the design of waybills is mandatory for organizations that meet two criteria: performing work in the road transport and are senders and receivers of goods transported by road . Since the company leased vehicles were used as official vehicles, ships reasonably indicate that the design of waybills in this situation is not mandatory.
Resolution of the Federal District of the Moscow 30.09.2013 city №A40-111374/12-90-558
The Regulation of FAS Moscow District on 30.09.2013 (case number A40-111374 / 12-90-558) with reference to the Decree of the Presidium of the Russian Federation of 25.05.2010 № 15658/09 noted that the taxpayer in support of the arguments of the manifestation they shall be entitled to due diligence to argue in support of contractor selection, bearing in mind that under the terms of business turnover in the implementation of the choice of business entities are assessed not only the conditions of the transaction and their commercial appeal, but also goodwill, the solvency of the counterparty, as well as the risk of default and the provision of their enforcement, the presence of the counterparty necessary resources (capacities, production equipment, skilled personnel)
and relevant experience.
Resolution of the Federal District of the Moscow 25.12.2013 № A40-34818 / 13
The Regulation of FAS Moscow District of 25.12.2013 № A40-34818 / 13 concluded that if the property is purchased for resale, lost (including as a result of the fire), it is customary to deduct the amount of VAT to recover is not necessary.
The essence of the dispute. Assessed that the capital tax of VAT in the amount of more than 8 million. Rubles., As that when goods are lost in a fire is not restored before deducting VAT.
The conclusion of the tax was based on the following interpretation of the provisions of paragraph 2 of Article 171 of the Tax Code. Deductions are made for the amount of VAT charged when buying goods for transactions deemed to be objects of taxation with this tax. Disposals of property, for reasons not related to the implementation, subject to VAT is not. And since the product is blown, it is no longer satisfied the conditions of paragraph 2 of Article 171 of the Tax Code. Therefore VAT previously received deduction, you need to be restored. A similar position is held by the Ministry of Finance of Russia (for example, a letter from 15.05.08 № 03-07-11 / 194).
However, the court upheld the taxpayer. The judges pointed out that the organization has presented evidence that the goods have been destroyed by fire. That evidence began to help the Division of State Fire Supervision, inventory inventory inventory items, report the Chamber of Commerce on the market value of the lost of movable property. In addition, the fact that the fire was not challenged by the tax.
The Court noted that the list of grounds for recovery of VAT is exhaustive (cop. 2 p. 3 of Art. 170 of the Tax Code). Such a basis for recovery of VAT as the loss of the goods therein specified. In addition, the Court emphasized that the condition for obtaining VAT deduction by virtue of Article 171 of the Tax Code of the Russian Federation - is the acquisition of goods for resale and perform other operations recognized as objects of taxation, and not the fact of their subsequent implementation. In view of the Court concluded that the tax code does not require the taxpayer to write off the balance of goods in connection with the disposal (destruction) of the goods, to recover VAT on it.
Resolution of the Federal District of the Moscow 02.10.2013 city №A40-150033 / 12-91-663
The Regulation of FAS Moscow District on 10.2.2013 (case number A40-150033 / 12-91-663) on the issue of imposing penalties on insurers to the Pension Fund of the Russian Federation, the Federal Law of the Russian Federation of 24.07.2009 № 212 - FZ "On insurance premiums ..." the following is noted. Law (p. 6) found that during the consideration of the audit materials (deputy) of the body overseeing the payment of insurance premiums, including, identifies the circumstances precluding a person guilty of an offense or the circumstances mitigating or aggravating responsibility for the offense, . In this case, (1 Article. 44) Law № 212-FZ set unlimited range of circumstances mitigating the liability for an offense that can be recognized as such by a court or regulatory authorities for the payment of insurance premiums, considering the case. Circumstances mitigating or aggravating responsibility for the offense by a court or regulatory authorities for the payment of insurance premiums, considering the case, and taken into account when bringing to this responsibility.
Resolution of the Federal District of the Moscow 18.09.2013 city №A40-19421 / 13-99-60
Regulation of FAS Moscow District on 18.9.2013 (case number A40-19421 / 13-99-60) noted that the preparation of the trip ticket is mandatory only for trucking companies, so the taxpayer has the right to confirm the legality of write-off of lubricants and other instruments without violating other provisions of the tax legislation in the write-off of gasoline and diesel fuel.
Resolution of the Federal District of the Moscow 22.08.2013 city №A40-147336 / 12-115-1029
The Regulation of FAS Moscow District on 22.8.2013 (case number A40-147336 / 12-115-1029) noted that the analysis of the rules of Articles 252, 255 and 270 of the Tax Code, it follows that not all payments arising from the performance of obligations by the taxpayer on labor relations, can be attributed to the cost reducing the tax base for income tax. Labour Code does not provide for the payment of compensation (of compensation) in the event of termination of the employment contract by mutual agreement of the labor contract. The law obliges to pay to lay off employees only monetary compensation for unused annual leave (Article. 127 TC RF). Court proceeds from the legal position laid down in the Decree of the Presidium of the Russian Federation of 01.03.2011 № 13018/10, under which payments to employees for referring to the costs accounted for profits tax purposes, should be directly related to the performance of their employees employment duties within the employment relationship. Please note that, for example, in the Letter to the Russian Finance Ministry of ot29.07.2013 № 03-03-06 / 1/30009 noted that the termination of the contract in connection with the dismissal of an employee organization, as well as on other grounds not provided for in Art. 178 TC RF, severance pay, provided labor or collective bargaining agreement, a supplementary agreement to the employment contract, can be accounted for as an expense, reducing the tax base for corporate income tax.
Resolution of the Federal District of the North-West of 10.12.13 № A56-16143 / 2013
FAS Northwestern District in order dated 10.12.13 № A56-16143 / 2013 came to the conclusion that the fact that the PIT is listed before the employee receives wages, does not mean that the tax has not been paid, and, accordingly, does not is the basis for a fine under Article 123 of the Tax Code for failure to pay tax on the income of individuals.
The essence of the argument is as follows. The organization listed the personal income tax in the budget for a couple of days earlier than the salary paid to the employee. Tax authorities considered that the tax in this case is not paid. Basing his opinion that the personal income tax should be withheld from the taxpayer's income when it is actually paid (paragraph. 4 tbsp. 226 of the Tax Code). If the organization is to transfer the tax payment of wages, therefore the personal income tax withheld from the employee's income is not, and at the expense of the organization. Meanwhile, the tax payment at the expense of tax agents are not allowed (n. 9 Art. 226 of the Tax Code). As a result, the tax authorities have imposed a fine on the Organization in accordance with Article 123 of the Tax Code, as well as personal income tax and accrued interest.
However, the courts of all instances with the arguments of the tax office did not agree, stating the following. Tax laws effectively prohibited to pay personal income tax at the expense of tax agents (n. 9 Art. 226 of the Tax Code). At the same time, Article 45 of the Tax Code states that a taxpayer is entitled to fulfill the obligation to pay tax in advance. This rule applies to tax agents. The decree of the Presidium of 27.07.2011, № 2105 / 11razyasneno that under the early payment refers to the transfer of the tax in the presence of such duties after tax (reporting) period, when the tax base is formed and determined the amount of tax, but before maturity .
The presence or absence of personal income tax arrears should be determined on the basis of primary documents in the context of each physical persons and the dates of payment of wages. In this case, the organization presented the primary documents (statement of earnings, turnover balance sheets, accounts, cards 51, 68.1 and 70), which allow you to check the calculation and deduction of personal income tax for each employee. All documents indicate that the transferred money is tax (PIT). The fact that the tax has been paid prior to the payment of income is not a violation of the tax law and does not indicate a shortage. Consequently, the fine under Article 123 of the Tax Code and penalties in case of early payment of taxes can not be ruled Court.
Resolution of the Federal Far Eastern District of 23.12.13 № F03-6129 / 2013
The Regulation of FAS Far Eastern District of 23.12.13 № F03-6129 / 2013 concluded that the taxpayer in respect of which audited, the auditors may request the copy of the check for the preparation of objections. But at the same time to provide him with an opportunity to copy the material tax audit, the tax authorities are not required.
The essence of the argument is as follows. After testing, the tax authorities sent a copy of the act with the documents confirming the facts of violations of tax laws. The taxpayer decided that was not all audit materials, and addressed to the inspection with a plan to take a picture of the necessary documents. However, the tax authorities refused, citing tax confidentiality (see Art. 32 of the Tax Code) and information security (Art. 6, 16 of the Federal Law of 27.07.06 "On Information, Information Technologies and Protection of Information").
The company required the Court to recognize the wrongful refusal. The company said that some of the documents to verify the inspection received by the date specified in the last invitation to consult the check. Therefore, the refusal of tax inspection in familiarization with the test by photographing deprived the company to get the full amount of information and prepare a reasoned objections to a tax audit.
The courts of all instances decided in favor of the tax authorities stating that the inspection has made copies of the documents to the audit report. Moreover, the content of the objections to the act, which introduced the company, does not mean that the taxpayer having difficulty in getting acquainted with the materials inspection. According to the Court, giving the taxpayer the opportunity to familiarize themselves with checking and sending him copies of them complied with the tax authorities of his right.
Determination of the Russian Federation of 10.10.2013, the №VAS-13490/13
uling dated 10.10.2013, the №VAS-13490/13 concluded the organization may not recover VAT on the implementation of repair at the time of application of the general tax regime, the transition mode USN.
In the course of the investigation it was found that the organization using a common system of taxation, to deduct the VAT paid to the contractor as part of the cost of the leased premises made repairs. After some time, the organization moved to the STS mode and it is under this special regimes began to use the renovated premises.
According to the fiscal authorities in this case the organization was required to restore the specified VAT. And since, the Organization did not, tax inspectors assessed that her tax, as well as related interest and penalties.
The Court noted that, in accordance with subparagraph 2 of paragraph 3 of Article 170 of the Tax Code of the tax, the taxpayer received a deduction for goods (works, services), including the OS and intangible assets, property rights should be restored in the event of further use for transactions that are exempt from VAT. Recovery of the amount subject to tax at the rate previously accepted for deduction, in the case of fixed assets and intangible assets - in the amount proportional to the residual (book) value without revaluation.
From the case indicated that the company used the disputed premises as part of the overall tax regime, and after the transition to the USN. However, the rules of the Code does not contain a procedure and technique and recovery of VAT on works used as the implementation of activities on the common system of taxation, and in the future for the application of special tax regimes. The said order is defined in relation to fixed assets - is proportional to the residual (book) value.
Thus, the Supreme Arbitration Court of the Russian Federation confirmed that in this case, to recover VAT is not required.
Resolution of the Federal District of the Moscow 03.10.2013, № A40-78836/12
FAS Moscow District in its Resolution of 10.03.2013 , the number A40-78836/12 came to the conclusion that if the Company rents cars for business purposes with the crew , then to confirm the costs for fuel waybills registration is not required.
The Court concluded that in this case to confirm spending enough regulations on the provision of services , which include information on the cost of services provided for each vehicle with a crew and given the cost of fuel and maintenance.
The Court pointed out that according to the decision of the Goskomstat 28.111997 № 78 waybill is the primary accounting document for accounting work vehicle and a base for payroll . In this design waybills is mandatory for organizations that meet two criteria : performing work in road transport and non- senders and receivers of goods transported by road . And since in this case the company leased cars were used as official vehicles , then execute waybills there was no need .
In addition, drivers of leased vehicles were employees of the lessor. Society they are not salary is not charged , and the cars are not exploited . That is, the travel list was not to issue the Company, as Lessor A vehicle as drivers were its employees.
Determination of the Presidium of the Russian Federation of 09.05.2013 № VAS-8775/13
Presidium in ruling dated 09.05.2013 , the number VAS-8775/13 in the proceedings before the Court of Arbitration number A67-5123/2012 Tomsk region came to the conclusion that the injury , which he received an employee working in shifts , during the rest period between working shifts, recognized industrial accident .
In the present case the courts of three instances sided FSS . However, the SAC in its determination concluded that the lower courts did not consider labor relations in particular rotational basis .
According to Article 299 of the Labor Code Watch considered a total period, including the course of work on the subject and time rest between . And as the investigation of accidents are subject to those cases which occurred with employees at work in shifts during the rest between (Article 227 TC RF). Moreover, in the present case, the provisions of the labor contract with the injured employee imputed to him the duty to observe the rules of conduct on the territory of the camp , including during rest between . Consequently, finding itself in the shift worker settlement during this holiday was the performance of his job duties . Means an injury which he received is changing - is industrial accidents . Thus, SAC ordered to reimburse the employer FSS expense of temporary disability benefits in full.
Judgment of 07.10.2013, the number VAS-14253/13
SAC in the ruling dated 07.10.2013 , the number VAS-14253/13 concluded that for the recognition of payments under voluntary personal insurance workers in the labor costs , in accordance with paragraph 16 of Article 255 of the Tax Code , the duration of such contracts shall be at least one year.
The point is this. According to the results of the field audit tax assessed that the Company income tax , fines and penalties . The basis was the fact that the company has taken into account when determining the base for income tax payments under LCA , providing for payment by insurers of medical expenses of insured workers. From the text of the agreement indicated that it comes into force on August 2, 2010 and is valid until July 31, 2011 ( 01.08.2010 falls on a Sunday ) .
Addressing the court , the Company appealed to the Regulation of the insurance company , which was awarded a controversial contract . Of them indicated that although the contract is signed and comes into effect from August 2, 2010 , in fact he acted all in August 2010 and the next 11 months , that is, the contract is concluded for one year. However, the Court noted that, based on a literal interpretation of the disputed terms of the insurance contract , in this case the duration of the contract is less than one year . Of its terms does not mean that the will of his hand extended the contract for the entire August 2010 . Since , under Article 425 of the Civil Code on the distribution of contract terms previously arisen relations is possible only by agreement of the parties, which in this case is absent. Takmi , the Court sided with the tax authorities.
Resolution of the Volga Region of 17.09.2013, the number A12-16526/2011
The Regulation Volga Region of 17.09.2013 , the number A12-16526/2011 concluded that the fact that the invoice seller have their actual rather than legal address, does not deprive the buyer of VAT deduction .
The judges noted that in accordance with paragraphs 2 and 3 of paragraph 5 of Article 169 of the Tax Code on the invoice must indicate the name, address and taxpayer identification numbers and the buyer , and the name and address of the consignor and consignee. At the same time, this norm does not specify which of the addresses ( the actual location of the organization or its legal address) must be indicated on the invoice .
The Court also took into consideration the fact that the obligation to produce invoices, giving rise to the application of the tax deduction buyer of goods (works, services) and their reflection in the information set out in Article 169 of the Code rests with the seller. In such circumstances , and given the reality of making business transactions and no evidence of bad faith in the actions of the taxpayer , the judges decided that deprive Organization VAT deduction is unlawful.
Resolution of the Plenum of the Supreme Arbitration Court of 30.07.2013, № 61
Resolution of the Plenum of the Supreme Arbitration Court of 30.07.2013 , the number 61 is brought overview of the practice of disputes related to the validity of the address of the legal entity . Thus , the entity bears the risk of non- legally significant consequences of messages received by its address stated in the register, as well as the risk of not at this address its representative , and such an entity is not entitled to relations with persons in good faith rely on the data about the address of the legal liquidation person to refer to data that is not entered in the said register , as well as the unreliability of the data contained therein ( including improper notice during the proceedings, the court , in a proceeding in a case concerning an administrative offense , etc.) for unless the relevant data entered into liquidation as a result of illegal actions of third parties or otherwise involuntarily legal entity ( § 2 of Art. 51 Civil Code , § § . "in" Section 1, Art . 5 of the Federal Law of 08.08.2001 № 129- FZ).
Judgment of 14.10.2013, the number VAS-13729/13
Supreme Arbitration Court in its decision of 14.10.2013 , the number VAS-13729/13 determined that if a field tax audit carried out on the territory of the taxpayer , that claimed to represent the documents directly to the inspection is not necessary. In such situations need to notify the tax authorities of readiness to provide them with a package of interest to their documentation.
SAC explained his decision by saying that Article 126 of the Tax Code does not contain a peremptory norm , according to which the taxpayer is required to submit the requested documents on the location of the tax authority. Accordingly, to address the question of whether the actions of the audited entity of the offense provisions of Article 93 of the Tax Code should be applied in conjunction with other rules of the tax legislation.
In this situation, the documents were claimed by the tax authority in connection with the on-site inspection , the procedure established by Article 89 of the Tax Code . Such inspection shall be conducted on the territory of the taxpayer ( except his lack of ability to provide space ), where the tax authority officials conducting checks , it must be possible to read the documents related to the calculation and payment of taxes.
System interpretation of Articles 89 and 93 of the Tax Code allowed the Court to conclude that the documents must be presented at the location of officials carrying out site inspection , that is the place of inspection. In the present case, the company sent a letter to the inspection readiness to submit the required documents . Thus , according to the judges, she has performed its duty to provide the tax authority the timely receipt of such documents . Accordingly, the penalties for late submission of documents under Article 126 of the Tax Code were applied unreasonably.
Resolution of the Presidium of the Russian Federation of 23.07.2013 № 2852/13
The Decree of the Presidium of the Russian Federation of 23.07.2013, № 2852/13 with reference to Art. 15 Civil Code and Art. 146 of the Tax Code, noted that the lost profits damages as an element of an economic entity is not regarded as an object of the legislator to VAT irrespective of the fact that this kind of compensation of losses associated with the production activity of the taxpayer, as compensation for damages in the form of lost profits is not an operation for the sale of goods (works, services) and should not be included in the VAT base.
FAS ruling Northwest District from 20.09.2013, the number A66-15138/2012
The Regulation of FAS Northwestern District from 20.09.2013 , the number A66-15138/2012 determined that the mere fact of an employment relationship between the employer and its employees are not a sign that all the payments that have accrued to employees are paid their work.