Tax agent for personal income tax: who is, responsibilities and BCC

Who is the tax agent for personal income tax?

The following persons are recognized as tax agents for personal income tax (clause 1 of Article 226 of the Tax Code of the Russian Federation):

• Russian organizations;
• individual entrepreneurs;
• notaries and lawyers engaged in private practice or having law offices;
• separate divisions of foreign companies.

The tax base for personal income tax is payments to taxpayers at the expense of a tax agent (clause 9 of Article 226 of the Tax Code of the Russian Federation, letters of the Federal Tax Service of the Russian Federation dated 02/06/2017 No. GD-4-8/ [email protected] , Ministry of Finance dated 12/15/2017 No. 03-04 -06/84250).

If a company hires personnel under an employee supply agreement, then the functions of a tax agent for personal income tax remain with the executing organization, since it is the organization that makes direct payments to individuals under employment contracts (letter of the Ministry of Finance of Russia dated November 6, 2008 No. 03-03-06/8/618 ).

Individuals who are not registered as individual entrepreneurs who make payments in favor of individuals who are employees are not recognized as tax agents. In this case, recipients of funds must independently calculate and pay personal income tax (letter of the Ministry of Finance of Russia dated July 13, 2010 No. 03-04-05/3-390).

The list of income subject to personal income tax is presented in Art. 208 Tax Code of the Russian Federation.

Read more about the features of calculating and withholding income tax in the article “Calculation of personal income tax (personal income tax): procedure and formula.”

Responsibilities of a tax agent – ​​Article 230 of the Tax Code of the Russian Federation

Tax legislation establishes what a personal income tax agent must do. Article number 230 of the Tax Code of the Russian Federation contains a small but comprehensive list from which the responsibilities of a tax agent for personal income tax are visible:

• calculate tax on payments to individuals;
• withhold tax;
• transfer tax amounts to the budget;
• within the prescribed period, report on the calculated, withheld and transferred to the budget income tax in forms 2-NDFL and 6-NDFL.

It is important to perform all the above operations correctly and within the time limit established in the Tax Code of the Russian Federation. ConsultantPlus experts explained in detail how to do this. Full trial access to K+ is available for free. This ready-made solution will help you correctly calculate personal income tax, this material will tell you about the procedure for withholding personal income tax, and this instruction will introduce you to the nuances of transferring personal income tax to the budget.

To fulfill his duties, a tax agent must be able to withhold tax. Payment of tax amounts must be made exclusively on payments to individuals. A tax agent has no right to pay taxes from his own funds. It is also prohibited to include clauses on the payment of tax amounts at the expense of the tax agent for personal income tax in the terms of an employment or civil contract (clause 9 of Article 226 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated July 11, 2017 No. 03-04-06/43981, dated August 30 .2012 No. 03-04-06/9-263). It is also impossible to shift the payment of personal income tax from the agent to the taxpayer himself.

However, the Supreme Court believes that it is impossible to punish a taxpayer for early payment of income tax (see resolution No. 305-KG17-15396 dated December 21, 2017).

The Ministry of Finance allowed the overpayment of personal income tax to be counted against future payments for this tax, but with restrictions. Read more here.

Also, starting from 2021, the tax agent has the right to pay personal income tax from his own funds in the case where the tax was additionally assessed during the audit. See here for details.

In what cases can punishment be avoided?

If the violating tax agent has mitigating circumstances, the amount of the fine is reduced by at least 2 times (clause 3 of Article 114 of the Tax Code of the Russian Federation).

Read also: Petition to the tax office to reduce the amount of the fine

Penalties for untimely withholding and remittance of tax can be completely avoided if all the following conditions are simultaneously met (clause 2 of Article 123 of the Tax Code):

• the tax calculation was submitted to the Federal Tax Service on time;
• the reporting form contains all information in full, without errors or understatements of the tax base;
• the entire tax amount is transferred to the budget (along with any penalties due) until the error is discovered by the tax authorities or until an on-site audit is scheduled.

The tax agent can independently correct errors in reporting by submitting updated documents to the Federal Tax Service as soon as he discovers inaccuracies in the previously submitted information.

Responsibility of the tax agent – ​​penalties and fines for non-payment

The duties of the tax agent for personal income tax regarding the transfer of tax amounts may not be fulfilled or partially fulfilled. Such situations often arise if the income is paid in kind or represents a material benefit received by an individual.

Read about the duties of a tax agent when paying an employee income in kind in the material “Did the individual receive income in kind? Perform the duties of a tax agent .

Here it is necessary to deduct money payments due to the person himself or to a third party on behalf of the recipient of the income. The amount of withholding corresponds to the amount of the payment arrears and the newly accrued tax, if any (paragraph 2, paragraph 4, article 226 of the Tax Code of the Russian Federation).

If payments to the debtor under personal income tax will no longer be made or the amount of payments is not enough to cover the debt, the tax agent for personal income tax is obliged to notify the tax authorities and the taxpayer about this. This should be done before March 1 after the end of the tax period (subclause 2, clause 3, article 24, clause 5, article 226 of the Tax Code of the Russian Federation). Sending a message relieves the agent of the obligation to withhold personal income tax amounts from this person. The obligation to pay tax will arise on the taxpayer himself upon receipt of a tax notice from the Federal Tax Service.

It is also noted that if the tax agent did not report the impossibility of withholding personal income tax to either the tax service or the taxpayer or did not lose such an opportunity, then penalties may be assessed on the amount of arrears to the personal income tax agent based on the results of an on-site tax audit (letter from the Federal Tax Service of Russia dated November 22, 2013 No. BS-4-11/20951 and No. SA-4-7/16692 dated August 22, 2014). A message about the impossibility of withholding tax must be sent even if the deadline for its submission is missed (letter of the Federal Tax Service of Russia dated July 16, 2012 No. ED-4-3 / [email protected] ). To submit the message, form 2-NDFL with sign 2 is used.

For a life hack from the specialists of our website, see the material “[LIFE HACK] Checking whether you need to submit a 2-NDFL with sign 2.”

In addition to penalties, tax authorities have the right to impose a fine for non-payment of personal income tax by a tax agent.

For more information about the responsibility of this category of taxpayers and when a fine is imposed for non-payment of personal income tax by a tax agent, read the article “What liability is provided for non-payment of personal income tax”.

But a fine can be avoided if:

1. 6-NDFL was submitted to the Federal Tax Service without delay;

2. The amount of personal income tax is correctly indicated in the form (without underestimation);

3. The tax and penalties are paid before the tax authorities find out about the non-payment.

Such rules are in force from January 28, 2019 and apply to legal relations that arose before this date. We talked about the details here.

Also find out about the innovations when imposing fines on tax agents in 2021.

KBK for transferring tax amounts

In 2020-2021, the following personal income tax codes are in effect (orders of the Ministry of Finance of Russia dated November 29, 2019 No. 207n, dated June 8, 2020 No. 99n):

1. 182 1 0100 110 - code for transferring personal income tax on income paid by a tax agent to a taxpayer. The exception is income received in accordance with Art. 227, 227.1, 228 Tax Code of the Russian Federation.
2. 182 1 0100 110 - code for transferring personal income tax received by an individual - an individual entrepreneur, a notary or lawyer or a person carrying out other business activities under Art. 227 Tax Code of the Russian Federation.
3. 182 1 0100 110 - transfer of tax on personal income received under Art. 228 Tax Code of the Russian Federation.
4. 182 1 0100 110 - code for transferring tax on the income of foreign citizens carrying out activities in accordance with the patent. The personal income tax payment in this case is a fixed advance payment and is made on the basis of Art. 227.1 Tax Code of the Russian Federation.

The nuances of paying personal income tax can be found in the section “Time limits and procedures for paying personal income tax.”

Who is who

Experienced accountants and economists remember what exists in the term: tax agents and tax collectors.
Let's see what the similarities and differences are. The concept of “tax agent” is disclosed in the Tax Code of the Russian Federation - Article 24 is devoted to this. This is a person who, in accordance with the requirements of the law, is obliged to calculate and withhold a fiscal payment from the taxpayer, as well as transfer the withheld amounts to the budget of the Russian Federation at the time specified by law.

Until 2007, the concept of “tax collector” existed in taxation practice. They were recognized as persons authorized to collect funds for fiscal payments from taxpayers. Their rights and obligations were regulated by Article 25 of the Tax Code of the Russian Federation. As of January 1, 2007, this article ceased to apply. Currently, the concept of “tax collector” is not used in the legislation of the Russian Federation.

How to make a refund of overpaid personal income tax by a tax agent?

If a tax agent overpaid personal income tax, then he, in fact, reduced the income of an individual by such action. The injured employee has the right to apply to the employer for a refund of the overpaid amount of tax. Tax legislation in paragraph 7 of Art. 78 of the Tax Code of the Russian Federation determines that the statute of limitations for such cases is 3 years, during which a statement can be written.

After receiving a written request from the employee, the tax agent writes a statement to his Federal Tax Service and attaches documents that can confirm the fact of the overpayment. The tax authorities will make a decision within 10 days and inform the employer about it. The tax agent is given the right to choose one of two ways to repay the debt:

• Offset the overpayment against future personal income tax payments.
• Transfer the identified amount of overpayment to the taxpayer's account.

If it is not possible to return the tax through the employer, the taxpayer has the right to apply for a tax refund directly to the Federal Tax Service. How to draw up an application for a personal income tax refund in this case, see our article.

Results

The employer has tax agent responsibilities in relation to income tax on payments to employees.
The employer must timely calculate, withhold and transfer personal income tax to the budget, as well as report to the budget on income tax amounts. Failure of a tax agent to fulfill his duties is a reason for a fine from regulatory authorities. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Taxes for which agency responsibilities may arise

Organizations perform the duties of tax agents in relation to three taxes:

• personal income tax;
• VAT;
• income tax.

Our table will help you understand in what cases the obligation of agency arises: