The Supreme Court protected the rights of taxpayers who were not notified by the tax authority of the loss of the right to apply the simplified tax system

The simplified taxation system is one of the most popular tax regimes in the Russian Federation. The simplified tax system has many advantages, ranging from the ability to include the payment of contributions in tax calculations to the minimum amount of reporting. There are fewer disadvantages, but these factors must be taken into account, otherwise the business entity may lose the right to use the simplified tax system. In a number of cases, the taxpayer decides to voluntarily “leave the simplified tax system” in order to apply other tax regimes. Let's figure out in what cases the right to use the simplified tax system is lost and what the consequences of this event are for the taxpayer.

Contributing events and actions

An organization is obliged to switch to the general taxation regime if in any quarter the following occurs:

• excess of the amount of income equal to 64,020 thousand rubles ((60,000,000 rubles x 1.067), where 1.067 is the deflator coefficient established for 2014 (approved by order of the Ministry of Economic Development of Russia dated November 7, 2013 No. 652)). When determining the amount of income, income from sales and non-operating income are taken into account. We must not forget that advances received from counterparties should be included in the calculation of the maximum amount of revenue. But dividends received from other organizations are not taken into account when determining the income limit. Financiers recently recalled this in a letter dated August 25, 2014 No. 03-11-06/2/42282;
• exceeding the average number of employees (100 people);
• excess of the residual value of fixed assets that are used to generate income (100,000,000 rubles);
• being included in the prohibited list from Article 346.12 of the Tax Code. For example, an organization loses the right to apply the simplified tax system if it engages in the production of excisable goods or registers branches or representative offices, or increases the total number of shares of participation of other organizations in its authorized capital to an amount exceeding 25 percent of its value.

Note that individual entrepreneurs have slightly fewer such events. For example, they do not have the opportunity to register branches (representative offices), as well as increase the participation shares of other organizations in the authorized capital, since they do not have an authorized capital. In addition, the condition for exceeding the residual value of fixed assets affects only organizations, and it does not apply to individual entrepreneurs (subclause 16, clause 3, article 346.12 of the Tax Code of the Russian Federation).

If at least one of the above events occurs, the “simplified” person will lose the right to apply the special regime from the beginning of the quarter in which this event occurred. He will be obliged to return to the general taxation system and pay generally established taxes.

Reference

The form for reporting the loss of the right to use the simplified tax system (form No. 26.2-2) is given in Appendix No. 2 to the order of the Federal Tax Service of Russia dated November 2, 2012 No. ММВ-7-3/829. The format for its presentation in electronic form was approved by order of the Federal Tax Service of Russia dated November 16, 2012 No. ММВ-7-6/878.

You will have to report your return to the general regime to your tax office within 15 calendar days after the end of the quarter in which the right to the simplified tax system was lost.

Let's look at an example of how an organization can lose the right to the simplified tax system due to excess income.
Example 1
A company applies the simplified tax system in 2014. Revenue from goods sold (work, services) for January - September of the current year amounted to 59,470,500 rubles, the amount of non-operating income for this period was 5,210,840 rubles. At the end of 9 months, the organization’s income reached 64,681,340 rubles (59,470,500 rubles + 5,210,840 rubles). And it exceeded the income limit established for the current year for the simplified tax system (64,681,340 rubles > 64,020,000 rubles). Since the condition for applying the “simplified tax” for income was violated in the third quarter, the organization loses the right to apply the simplified tax system from the beginning of this quarter. In this regard, from July 1, 2014, she needs to calculate and pay taxes in accordance with the general taxation system. The company must inform the tax office at the place of registration about the transition to the general taxation regime by October 15, 2014, using form No. 26.2-2.

When the right to apply the simplified tax system is lost

This must be done after 15 calendar days from the end of the reporting (tax) period in which the right to the simplified tax system was lost. In our considered example, the expiration date for filing a notice of transition to the general taxation regime will end on October 15, 2021.

If a company does not promptly submit a notification of a change in the tax regime, it faces a fine of 200 rubles.

It is also necessary to remember that if you terminate the application of the simplified taxation system, you will need to submit a declaration no later than the 25th day of the month following the quarter in which the right to use the simplified taxation system was lost. According to our example, it will be necessary to submit a declaration under the simplified tax system before October 25, 2021.

Be attentive to changes in activity. Consider the situations in which you lose the right to apply the simplified taxation system. Report promptly when such situations arise.

If you need help preparing a message or are interested in accounting services, call (495) 661-35-70

Author: Shiryaeva Natalya

What to do when returning to general mode

After returning to the general regime, former “simplified” residents will have to pay regular taxes:

• organizations – VAT, profit tax, corporate property tax;
• for individual entrepreneurs – VAT, personal income tax, property tax for individuals.

In addition, you will need to choose an accounting method for calculating income tax - cash or accrual.

If you choose the cash method to work in the general mode, then you will not have any particular difficulties, since you used the same method under the simplified tax system. But it is available only to those whose average revenue (excluding VAT) over the last four quarters has not exceeded one million rubles (clause 1 of Article 273 of the Tax Code of the Russian Federation).

An alternative to the cash method is the accrual method. In the future we will talk only about him.

If you intend to use this method, then problems may arise when leaving the "simplified" one. For example, for transactions in respect of which:

• an unprocessed prepayment has been received;
• an advance was issued to suppliers and contractors for future supplies of goods (works, services);
• goods have been shipped (work completed, services provided) to customers, but not yet paid for by them;
• goods (work, services) have been received from suppliers, but not paid for by you.

If you apply PBU 18/02 “Accounting for corporate income tax calculations,” then due to different rules for the formation of income and expenses, you will have to accrue differences, tax assets and liabilities.

Income accounting

So, you have chosen the accrual method. In this case, when transitioning from the “simplified” regime to the general regime, we recommend remembering one basic “transitional” rule: all “transitional” income and expenses must be taken into account once - either within the framework of the “simplified” regime or within the general regime.

Thus, on the first day of the quarter from which the general regime is applied, “profitable” income will need to include all proceeds from the sale of goods that were not paid during the period of application of the simplified tax system.

The situation with advances is different. Having received an advance when working for the simplified tax system, you had to pay a single tax on it. Therefore, after the transition to the general regime, revenue for shipped goods (work, services) for which this advance was received does not need to be taken into account when calculating income tax.

Thus, when shipping goods (works, services), you recognize revenue in accounting, but not in tax accounting. Therefore, reflect a permanent negative difference. Use it to calculate the permanent tax asset:

DEBIT 68 subaccount “Calculations for income tax” CREDIT 99 subaccount “Permanent tax assets”
– a permanent tax asset has been accrued.
If you shipped goods (work, services) while working on a simplified platform, then the unpaid proceeds were not included in taxable income. Therefore, having received payment, being already in the general regime, attribute it to non-operating income as income “of previous years, identified in the reporting (tax) period” (clause 10 of Article 250 of the Tax Code of the Russian Federation). In this situation, revenue is recognized in tax accounting, but not in accounting. As a result, a positive permanent difference and a permanent tax liability appear:

DEBIT 99 subaccount “Permanent tax liabilities” CREDIT 68 subaccount “Calculations for income tax”
– a permanent tax liability has been accrued.
Thus, on the proceeds of goods (works, services) shipped but not paid for under simplified conditions, you must pay income tax in the first reporting period.

Let us show with an example how to apply PBU 18/02 when changing tax regimes.
Example 2
In December 2012, an organization bought a passenger car and put it into operation.
The book value of the car is 650,000 rubles, the useful life is 37 months in accounting and 60 months in tax accounting. In 2013, the company operated under the general tax regime, calculating income and expenses on an accrual basis. In accordance with the accounting policy in both accounts, depreciation was calculated using the straight-line method. In accounting, depreciation was calculated monthly on the car in the amount of 17,568 rubles (650,000 rubles: 37 months). In tax accounting, depreciation was calculated monthly in the amount of 10,833 rubles (650,000 rubles: 60 months). As a result, the company had a temporary deductible difference in the amount of 6,735 rubles (17,568 rubles - 10,833 rubles) and a deferred tax asset: DEBIT 09 CREDIT 68 subaccount “Calculations for income tax” – 1,347 rubles.
(RUB 6,735 × 20%) – deferred tax asset accrued. Since 2014, the organization has switched to a “simplified” system. By the beginning of 2014, the residual value of the car was:

• in accounting – 439,184 rubles (650,000 rubles – 17,568 rubles x 12 months);
• in tax accounting – 520,004 rubles (650,000 rubles – 10,833 rubles x 12 months).

Since a company using the simplified tax system cannot pay off the deferred tax asset and reduce income tax on it, it must be written off. This was done in 2013.

On December 31, the accountant made the following entry in accounting:

DEBIT 99 CREDIT 09
– 16,164 rub.
((520,004 rubles – 439,184 rubles) x 20%) – the deferred tax asset is written off. For the entire 2014 (the time of work on the simplified tax system), the organization has the right to write off as expenses part of the cost of the car in the amount of 260,002 rubles (520,004 rubles x 50%). Every quarter, the accountant records the amount of 65,000 rubles (260,000 rubles: 4 quarters) in the book of income and expenses.

However, the company worked on a simplified basis for only 6 months, having registered a branch. By the time of the return to the general taxation system (July 1, 2014), the residual value of the car turned out to be equal to:

• in accounting – 333,776 rubles (439,184 rubles – 17,568 rubles x 6 months);
• in tax accounting – 390,004 rubles (520,004 rubles – 65,000 rubles x 2 quarters).

The organization's accountant restored the temporary deductible difference in the amount of 80,820 rubles (520,004 rubles - 439,184 rubles) and the deferred tax asset written off during the transition to the simplified system:

DEBIT 99 CREDIT 09
– 16,164 rub.
– the written-off deferred tax asset was restored. For six months of work on "simplified" depreciation was accrued:

• in accounting – 105,408 rubles (17,568 rubles x 6 months);
• in tax accounting written off as expenses - 130,000 rubles (65,000 rubles x 2 quarters).

Thus, as of June 30, 2014, the temporary deductible difference was partially repaid in the amount of RUB 24,592 (RUB 130,000 – RUB 105,408).

On July 1, 2014, the accountant made the following entries in the accounting records:

DEBIT 44 CREDIT 02
– 105,408 rub.
– depreciation has been calculated on the vehicle; DEBIT 68 subaccount “Calculations for income tax” CREDIT 09
– 4918 rub.
(RUB 24,592 x 20%) – the deferred tax asset is partially repaid. From July 2014, the company will continue to charge depreciation in its accounting records in the amount of 17,568 rubles per month.

In tax accounting, it will be calculated based on the residual value of the car. This is stated in paragraph 3 of Article 346.25 of the Tax Code. And since the useful life of the machine has been established, we must proceed from it.

At the beginning of July 2014, the car had already been in use for 18 months. This means that its remaining useful life is 19 months in accounting and 42 months in tax accounting.

The depreciation amount will be:

• in accounting – 17,568 rubles;
• in tax accounting – 9286 rubles (390,004 rubles: 42 months).

That is, a temporary deductible difference will arise in accounting in the amount of 8,282 rubles (17,568 rubles - 9,286 rubles) for 19 months (as long as the car is depreciated in accounting):

DEBIT 44 CREDIT 02
– 17,568 rub.
– depreciation has been calculated on the vehicle; DEBIT 09 CREDIT 68 subaccount “Calculations for income tax”
– 1656 rubles.
(RUB 8,282 x 20%) – deferred tax asset accrued. After 19 months, depreciation will no longer be calculated in accounting, but will continue to be calculated in tax accounting (in the amount of 9,286 rubles). From this point on, temporary deductible differences and deferred tax assets will be gradually repaid until the vehicle is fully depreciated on the tax books. Every month the Progress accountant will make the following entries:

DEBIT 68 subaccount “Calculations for income tax” CREDIT 09
– 1656 rub. (RUB 8,282 x 20%) – the deferred tax asset is partially repaid.

Expense accounting

Let us turn again to the main transitional rule. In accordance with it, the cost of goods (work, services) that were purchased during the period of work in the “simplified” regime, and paid for after leaving the special regime, can reduce taxable profit in the first reporting period of work in the general regime.

According to financiers, only former “simplifiers” with the object “income minus expenses” can take into account unpaid expenses when switching to a common system. Those who used the “income” object do not have the right to do so (letters of the Ministry of Finance of the Russian Federation dated 04/04/2013 No. 03-11-06/2/10983, dated 01/19/2012 No. 03-03-06/1/20 and dated 29.01. 2009 No. 03-11-06/2/12).

However, the judges in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 6, 2010 No. Ф03-8167/2010 indicated that the costs incurred under the simplified tax system must be taken into account in the general regime, regardless of which object of taxation was applied in the special regime. The specifics of the transition from the simplified tax system to the general system are established by paragraph 2 of Article 346.25 of the Tax Code for all organizations without exception. The fact that this rule is not applied by “simplified people” with the object “income” is not mentioned in this article. The arbitrators came to a similar conclusion in the resolution of the Federal Antimonopoly Service of the Ural District dated October 4, 2010 No. F09-8094810-S3 in case No. A50-3582/2010.

Consequently, an organization applying the simplified tax system with the object “income”, when switching to the general regime, can take into account in expenses accounts payable for goods (works, services) and property rights acquired during the period of application of the special regime. But given the opinion of officials on this issue, they will most likely have to defend their position in court.

Changes to the simplified tax system in 2018-2021

The 2021 change, effective January 2021, is an increase in limits and rates for simplifiers.

The main change in the work of simplifiers from 2021 is the abolition of benefits on insurance premiums for businesses with the types of activities named in Art. 427 Tax Code of the Russian Federation. Now firms and individual entrepreneurs pay contributions at a general rate of 30%.

From September 29, 2019, you can write off expenses for fixed assets, the rights to which are subject to state registration, without waiting for the submission of documents for registration.

The main change under the simplified tax system in 2021 is that the new KUDIR form (approved by Order of the Ministry of Finance dated October 22, 2012 No. 135n as amended by Order of the Ministry of Finance dated December 7, 2016 No. 227n) from 01/01/2018 is mandatory for use by all simplifiers.

In 2021, more amendments were adopted regarding the simplified tax system. So, since 2017:

• For the simplified tax on the difference between income and expenses and the minimum tax under the simplified tax system, there is a single BCC - 18210501021011000110.
• A new declaration form is in effect. Lines appeared in it to reflect the amounts of the trade fee and the reduced rate under the simplified tax system “income” (order of the Federal Tax Service of the Russian Federation dated February 26, 2016 No. ММВ-7-3/99).
• For the period 2017-2021, taxpayers of Crimea pay tax under the simplified tax system “income” at a rate of 4%, and the simplified tax system “income-expenses” - 10% (Law of the Republic of Crimea dated October 26, 2016 No. 293-ZRK/2016).
• The maximum residual value of fixed assets increased to 150 million rubles. (in 2021 it was 100 million rubles).
• Increased to 112.5 million rubles. income limit for 9 months of the year in which the notification of transition to the simplified tax system for the next year is submitted. Indexation of this limit has also been suspended until 2021. This limit applies if you submit an application to switch to the simplified tax system from 2021.
• “Simplers” can take into account the costs of conducting an independent assessment for compliance with qualification requirements (clause 33 of Article 346.16 of the Tax Code of the Russian Federation).
• The list of preferential types of activities that allow reducing the rate of insurance premiums for “simplified” workers is given in accordance with OKVED-2 (approved by order of Rosstandart dated January 31, 2014 No. 14-st). The amendment was introduced by Law No. 355-FZ of November 27, 2017 and is valid for legal relations that arose from January 1, 2017.

Determining the cost of fixed assets and intangible assets

It may happen that by the time you lose your right to the simplified tax system, the cost of any fixed assets or intangible assets will not be fully taken into account in your expenses. The question arises: is it possible to “complete” it after losing the simplified tax system?

If fixed assets (intangible assets) were acquired during the period of application of the simplified tax system, then everything will depend on the object of taxation.

For example, if the “simplified person” used the object “income”, then after the loss of the simplified tax system the cost of fixed assets (intangible assets) cannot be included in expenses when calculating income tax (letter of the Federal Tax Service of Russia dated October 2, 2012 No. ED-4-3/16539, Ministry of Finance of Russia dated 07.12.2012 No. 03-03-06/1/633).

But if the “simplifier” used the “income minus expenses” object, then the unaccounted cost of the objects is written off as “profitable” expenses through depreciation. In this case, the residual value of fixed assets (intangible assets) on the date of transition to the general regime is determined as the difference between the initial cost of the object and the cost written off as expenses when applying the “income-expenditure” simplified tax system.

Answers to common questions

Question: Our organization meets all the necessary criteria that allow us to apply a simplified taxation system. But in the first quarter the average number of employees was 61 people, in the 2nd quarter 85 people, and in the 3rd quarter – 105 people. That is, from the 4th quarter we should switch to OSNO? Has our company already lost the right to use the simplified tax system?

Answer: Based on the data provided by you, it is necessary to calculate the average number of employees for 9 months. Based on the presented values, the average number of employees is (61 + 85 + 105) / 3 = 84 people. That is, the average number of employees for 9 months is 84 people, which means you can continue to use the simplified tax system.

Question: Our company is evaluating the possibility of the right to switch to the simplified tax system. However, our company’s balance sheet includes external improvement objects that exceed the stipulated limit on the cost of fixed assets. Do we have the right to switch to the simplified tax system?

Answer: External improvement objects in accounting are registered as fixed assets. However, they are not subject to depreciation. Therefore, when calculating the cost of fixed assets for the transition to the simplified tax system, external improvement objects are not subject to accounting.

Question: Is it necessary to include external part-time workers when determining the average number of employees?

Answer: It is necessary, and when calculating the average number of employees, it is necessary to take into account not only external part-time workers, but also those employees with whom GPC agreements have been concluded. That is, the average number of employees consists of: full-time employees, external part-time workers and employees hired under a civil process agreement to perform certain work.

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Insurance premiums

Some “simplified” workers, before losing the right to the simplified tax system, calculated insurance contributions to extra-budgetary funds using general tariffs: 26 percent in the Pension Fund, 2.9 percent in the Social Insurance Fund, 5.1 percent in the Federal Compulsory Medical Insurance Fund. If such an organization loses the right to use the simplified tax system, then no changes will occur in terms of calculation and payment of contributions. It will continue to use general tariffs.

note

If the policyholder loses the right to apply reduced insurance premium rates, then in the RSV-1 Pension Fund calculation, compiled at the end of the period when this right was lost, two subsections 2.1 will need to be filled out - separately for each premium rate.

Things are different if the former “simplified” applied a reduced rate of insurance premiums. The category of beneficiaries, in particular, includes companies engaged in textile and clothing production, furniture production, construction, healthcare, and the provision of social services (subclause 8, clause 1, article 58 of Law No. 212-FZ of July 24, 2009).

If they are from a special regime, then from the beginning of the quarter when they lose the right to use the simplified tax system, they are required to pay insurance premiums at the basic rates (letter of the Ministry of Health and Social Development of Russia dated November 24, 2011 No. 5004-19). And if the loss of the simplified payment becomes known only in the last month of the quarter, contributions for the first, and maybe even the second, months will need to be additionally charged and paid.

In this case, you will not have to pay a penalty. After all, the restored amount of insurance premiums is not an additional payment due to incomplete payment of insurance premiums on time. And for previous periods, the reduced tariff was applied lawfully. Therefore, there are no grounds for charging a penalty (letter from the Ministry of Labor of Russia dated 05/04/2014 No. 17-4/ОOG-243, dated 07/05/2013 No. 17-3/1084).

An example will show what to do with reporting.
Example 3
Let's return to the conditions of example 2. Since the organization switched to the general regime from July 1, 2014, starting from the third quarter it must apply general insurance premium rates. Different tariff codes are provided for “simplified” and “general” tariffs. Therefore, in the calculation of the RSV-1 Pension Fund for 9 months of 2014 and for 2014, the company must include two sheets each of subsection 2.1 “Calculation of insurance premiums according to the tariff” of section 2. In subsection 3.5 “Calculation of the compliance of conditions for the right to apply a reduced tariff for paying insurance contributions by insurance premium payers specified in clause 8 of part 1 of article 58 of the Federal Law of July 24, 2009 No. 212-FZ” section 3, data for the first half of 2014 should be indicated, confirming the legality of using reduced insurance premium rates.

Results

In 2021, the income limit for using the simplified tax system is 150 million rubles.
for the annual income of a simplifier and 112.5 million rubles. for the previous 9 months for income that allows you to switch to the simplified tax system. From 2021, the income limit will increase to 200 million rubles. It should be borne in mind that some income that is not subject to simplified tax is not taken into account when calculating income. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Income tax

After switching to the general regime, you need to calculate taxes as if you were a newly created organization (clause 4 of Article 346.13 of the Tax Code of the Russian Federation).
Newly created ones can pay advance income tax payments quarterly. But they are forced to comply with the condition: sales revenue should not exceed one million rubles per month or three million rubles per quarter. Having violated the specified limit, the company will have to pay monthly advance payments from the next reporting (tax) period (clause 5 of Article 287 of the Tax Code of the Russian Federation). At the same time, there is no need to pay penalties for late transfer of advance payments to the “transition” quarter (clause 4 of Article 346.13 of the Tax Code of the Russian Federation). Example 4
LLC from July 1, 2014 switched from the simplified tax system to the general tax regime. Revenue from sales of products amounted to: in July - 800,000 rubles, in August - 1,100,000 rubles and in September - 1,200,000 rubles. Based on paragraph 2 of Article 286, paragraph 5 of Article 287 and paragraph 4 of Article 346.13 of the Tax Code, the company is obliged to pay a quarterly advance payment based on the results of the third quarter. But since revenue in the third quarter exceeded 3,000,000 rubles (3,100,000 rubles > 3,000,000 rubles), the company must make monthly advance payments during the next reporting period (fourth quarter). The amount of each payment will be 1/3 of the amount of the advance payment calculated for the third quarter.

If a company incurred a loss during the application of the simplified tax system, then after returning to the general regime it cannot take it into account in tax accounting.

Simplified tax system in 2020-2021: income limit

The maximum amount (limit) of income for applying the simplified tax system is annually indexed by a deflator coefficient.
This is how para. 4 p. 4 art. 346.13 Tax Code of the Russian Federation. However, for the period 2017-2019, the income limit is fixed at 150 million rubles, and the rule that provides for indexation of the limit is suspended until 01/01/2020. Thus, in 2017-2019, the deflator coefficient was not used to determine the income limit for applying the simplified tax system. And for 2021 it is set equal to 1. From 2021, the income limit will be 200 million rubles. At the same time, simplified tax rates will also increase. We told you how to apply increased limits and rates under the simplified tax system in 2021 here.

Thus, in 2021, the income and cost limits for fixed assets for the simplified tax system are as follows:

• annual income - no more than 150 million rubles;
• income for 9 months for the transition to the simplified tax system - 112.5 million rubles;
• the residual cost of the OS for switching to the simplified tax system and using this special mode is 150 million rubles.

Read about the specifics of calculating and paying simplified tax in this section of our website.

If, based on the results of the 1st quarter, six months, 9 months, or year, the taxpayer’s income under the simplified tax system exceeds the established limit, he will lose the right to use the simplified tax system.

ConsultantPlus experts explained in detail what to do if the income exceeded the limit and the taxpayer lost the right to use the simplified tax system. To do everything correctly, get trial access to the system and go to the Ready solution.

VAT

“Simplers” are not VAT payers, with the exception of VAT on the import of goods and when carrying out transactions under simple partnership agreements (joint activity agreements).

Therefore, difficulties in calculating this tax after the loss of the special regime may arise if the “simplified” person receives an advance payment, but ships goods (performs work, provides services), transfers property rights, having already switched to the general regime. In this case, he must include the prepayment amount in “simplified” income and pay a single tax on it.

After switching to the general regime, the company (entrepreneur) is obliged to issue VAT invoices to customers and pay tax to the budget. But since the prepayment was received during the period of work on the “simplified” system, VAT was not included in it.

Therefore, after switching to the general regime, draw up an additional agreement with the buyer to the contract, increasing its amount by VAT. The buyer will remit the tax to you.

If the terms of the contract cannot be changed, you will pay VAT to the budget at your own expense. As a result, you will lose a significant part of your profit.

Working on the simplified tax system, a company can purchase materials for production needs and goods for resale.

She must include the input VAT on materials in “simplified” expenses in full in the period when the materials are paid to the seller and posted to the warehouse.

The company will include input VAT on goods purchased for resale in expenses in proportion to the cost of goods paid to the seller and shipped to the buyer.

However, the organization may not use part of the resources during the period of work under the “simplified” tax regime, but do so under the general tax regime. Since inventories were not included in expenses when calculating the single tax, the company has the right to deduct VAT on them when it becomes a tax payer (clause 6 of Article 346.25 of the Tax Code of the Russian Federation). After all, the resources will now be used in operations subject to VAT. Such a VAT deduction can be applied from the first quarter, in which work resumes under the general regime (letter of the Ministry of Finance of Russia dated March 15, 2011 No. 03-07-11/53).

A more complex option is also possible, when a company buys inventories under the general regime, accepts VAT on them for deduction, and then becomes a payer of the simplified tax system.
The company recovers the deductible VAT and takes it into account as part of other expenses. At the same time, part of the goods purchased under the general regime of activity, and the other - after returning to the general taxation system. It will not be possible to deduct the recovered VAT on inventories that were not used while working on the simplified system. Since this is not provided for by the Tax Code (letters of the Ministry of Finance of Russia dated June 23, 2010 No. 03-07-11/265, dated January 27, 2010 No. 03-07-14/03, dated June 30, 2009 No. 03-11-06/3/174 ). Example 5
In November last year, an LLC, working in general mode, bought goods for 118,000 rubles (including VAT - 18,000 rubles).
We didn't manage to sell them last year. Since the beginning of this year, I have worked in this mode for six months, having lost the right to it from the beginning of the third quarter. During this time, goods worth 60,000 rubles were sold. The company was then forced to return to paying regular taxes. The accountant reflected transactions with this batch of goods with postings: in November 2013 DEBIT 41 CREDIT 60 - 100,000 rubles. (118,000 – 18,000) – goods are accepted for accounting; DEBIT 19 CREDIT 60 – 18,000 rub. – VAT on goods is taken into account; DEBIT 68 subaccount “Calculations for VAT” CREDIT 19 – 18,000 rub. – accepted for deduction of VAT on goods; DEBIT 60 CREDIT 51 – 118,000 rub. – goods have been paid to the supplier. December 31, 2014 DEBIT 19 CREDIT 68 subaccount “VAT calculations” – 18,000 rubles. – input VAT on goods has been restored; DEBIT 91 subaccount “Cost of sales” CREDIT 19 – 18,000 rub.
– the recovered VAT is written off as other expenses. An invoice for VAT amounting to 18,000 rubles was entered into the sales book.

The “fate” of VAT on fixed assets and intangible assets depends on the period of their purchase (creation, construction, etc.): before the transition to the simplified system or while working on the simplified system.

If a company acquired a non-current asset under the general taxation system, then on the eve of the transition to the simplified system, it restores the input VAT, writing it off as other expenses.

If a non-current asset was acquired by a “simplified” person, then the VAT presented by the supplier must be taken into account in the cost of the property. When putting a fixed asset into operation (accepting intangible assets for accounting), the tax can be written off as an expense.

If the object was not put into operation, then the costs of its purchase were not taken into account when calculating the “simplified” tax (subclause 1, clause 3, article 346.16 of the Tax Code of the Russian Federation). Consequently, the organization also did not take into account the amount of input VAT in expenses that reduce the tax base. It follows from this that after the transition to the general taxation regime, input VAT on non-current assets that were not put into operation under the simplified tax system can be deducted in the generally established manner (clause 1 of Article 172 of the Tax Code of the Russian Federation). The same is stated in letters of the Ministry of Finance of Russia dated March 17, 2010 No. 03-11-06/2/36 and dated January 29, 2009 No. 03-07-10/03.

About the deduction of VAT when “flying” with the simplified tax system.

An economic entity that has lost the right to use the simplified tax system automatically becomes a VAT payer for all the reasons established by Chapter. 21 Tax Code of the Russian Federation.

According to paragraph 6 of Art. 346.25 of the Tax Code of the Russian Federation, such a taxpayer receives the right to deduct the VAT amounts indicated in the invoices of suppliers when purchasing goods (work, services, property rights), which were not classified as expenses deducted from the tax base when applying the “simplified tax system”. Please note: this norm does not say a word about the selected object of taxation. In fact, we are talking about part of the same accounts payable that is taken into account in profitable expenses. So, if we interpret the mentioned norm literally, then any

When switching to OSNO, a “simplified person” can declare for deduction the amounts of VAT charged to him in the first quarter of work in this mode:

• for raw materials, supplies and tools purchased but not released into production (operation) and not paid for during the period of application of the simplified tax system;
• for goods purchased and sold, but not paid to suppliers during the period of application of the simplified tax system;
• for goods purchased but not sold during the period of application of the simplified tax system;
• for construction work accepted during the period of application of the simplified tax system, and goods purchased during this period for the construction of the OS, if the constructed facility was put into operation after the transition to the OSNO.

For goods (works, services) paid during the period of application of the simplified tax system, but received after the transition to the general regime, the taxpayer can claim VAT for deduction after accepting them for accounting.

But, alas, to take advantage of the right to deduction provided by clause 6 of Art. 346.25 of the Tax Code of the Russian Federation, only entities that have previously used the “simplified approach” with the object “income minus expenses” can receive a claim from controllers without the risk of receiving a claim from controllers. The fact is that the Constitutional Court of the Russian Federation adopted a decision according to which “simplified people” - “income earners” are deprived of such a right, since they already enjoyed a tax benefit in the form of a lower tax rate under the simplified tax system (Definition dated January 22, 2014 No. 62-O) . The country's highest court indicated that by voluntarily switching to the simplified tax system, taxpayers themselves choose the object of taxation, that is, they independently decide when and how it is more profitable for them to dispose of their rights, including taking into account the tax consequences of their actions (the size of the tax rate, features of tax accounting, etc.).

The Federal Tax Service recommended this legal position for use in the work of lower tax authorities (Letter dated July 17, 2015 No. SA-4-7 / [email protected] ). And although the author of the article does not agree with this position, there is no point in challenging it in court: too many arbitrators use it when resolving tax disputes under similar circumstances[15].

Organizational property tax

The object of taxation for corporate property tax is movable and immovable property, which is taken into account on the balance sheet as fixed assets according to accounting data.

The tax base for this tax is calculated, in particular, based on the residual value of real estate and movable property accepted for accounting as fixed assets before January 1, 2013 (clause 1, subclause 8, clause 4, article 374 of the Tax Code of the Russian Federation).

And even if by the time you lose the “simplified tax” the value of your fixed asset has been completely written off in tax accounting, but not completely written off in accounting, it must be included in the base for calculating property tax.

Since, when switching from the simplified tax system to the general regime, taxes are considered as for a newly created organization, for calculating the tax, the residual value of fixed assets in those months when is taken equal to zero (clause 1 of article 375, clause 4 of article 346.13 of the Tax Code of the Russian Federation).

note

Starting from 2015, “simplified” people become payers of corporate property tax, paid in respect of real estate objects, the tax base for which is determined as their cadastral value (clause 2 of Article 346.11 as amended by Law No. 52-FZ dated April 2, 2014).

Payment of “general regime” taxes and reporting on them

Based on the results of the quarter in which you began to apply the general regime, you will need to pay taxes and report them to the Federal Tax Service. The table below will help you not to forget anything.

Last declaration

Having lost the right to the simplified tax system, the former “simplified tax” must calculate the single tax for the last time and submit a “simplified” declaration.

If you leave the simplified system before the end of the year, the last reporting period for the single tax is also the last tax period (letter of the Federal Tax Service of Russia dated March 27, 2012 No. ED-4-3/5146). And the last tax period, as controllers indicate, will be considered the reporting period preceding the quarter from the beginning of which the company switches to the general regime.

Thus, for a “simplified” person with the object “income,” the last payment for the “simplified” tax will be the payment for the reporting period preceding the quarter in which the right to the simplified tax system was lost. All he has to do is submit a tax return for this reporting period. This must be done no later than the 25th day of the first month following the quarter in which the company lost the right to the special regime (clause 3 of Article 346.23 of the Tax Code of the Russian Federation).

This rule also applies to most “simplified” people with the object “income minus expenses”. Why most and not all? The fact is that, under certain conditions, some firms and entrepreneurs are required to calculate and pay a minimum tax of one percent of the amount of income received. This happens if the amount of tax calculated at the end of the tax period in the general manner is less than the amount of the minimum tax calculated for the same period. Or when a loss is received at the end of the tax period (clause 6 of Article 346.18 of the Tax Code of the Russian Federation).

For a long time, officials strongly recommended using this procedure for calculating the minimum tax for “simplified” people who had lost the right to use the special regime before the end of the year (letter of the Federal Tax Service of Russia dated March 27, 2012 No. ED-4-3/5146, Ministry of Finance of Russia dated June 8, 2005 No. 03-03- 02-04/1-138, dated 05.24.2005 No. 03-03-02-04/2/10).

The Presidium of the Supreme Arbitration Court of Russia came to a similar conclusion. In the resolution dated July 2, 2013, senior judges indicated that the tax period in relation to the simplified tax system is the reporting period preceding the quarter in which the “simplified” lost the right to apply this tax regime.

This means that a company (entrepreneur) that has lost the right to the income-expenditure simplified tax system will need to submit a final declaration and transfer the tax itself no later than the 25th day of the first month following the quarter in which it lost the opportunity to apply the special regime (clause 7 of Art. 346.21, paragraph 3 of Article 346.23 of the Tax Code of the Russian Federation).

Let's look at an example of how to pay tax and file a return in this case.
Example 6
An organization worked for a year using the simplified tax system, paying a single tax on the difference between income and expenses. For six months, she received income in the amount of 30,500,000 rubles, expenses for this period amounted to 29,000,000 rubles. In September, the company's income exceeded the permissible limit. As a result, the company lost the right to a simplified regime in the third quarter. The amount of the advance payment for the single tax for the half-year was: (30,500,000 rubles – 29,000,000 rubles) × 15% = 225,000 rubles. The amount of the minimum tax for the tax period is: RUB 30,500,000. × 1% = 305,000 rub. Since the minimum tax is greater than the single tax, the company must submit a final return and pay the minimum tax. The tax must be transferred no later than the 25th day of the first month following the third quarter, i.e. no later than October 25 of the current year. The company's accountant must send a message to the tax office about the loss of the right to use the simplified tax system in form 26.2-2 no later than October 15 of the current year.

Thus, if an organization has lost the right to use the simplified tax system during the year and has not completed the entire tax period under this special regime, it is not exempt from paying the minimum tax (if there are appropriate grounds for this).

Boris Svain, for the magazine “Practical Accounting”

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Preservation of the right to the simplified tax system and legislative risks

Most companies do not want to part with the simplified tax system, trying to circumvent the established limits in one way or another. The main problem is exceeding the revenue limit for the period, after which the company is automatically deprived of the right to the simplified tax regime.

Typically, a number of “tricks” are used with a high risk of tax sanctions for the company:

1. The conclusion of two contracts (purchase and sale and loan), and the first involves shipment, and the second - actual payment. Under the loan agreement, the funds are then returned, and payment for the shipped goods is made in the new period and is not included in the calculation of the income limit. This method contains considerable risk, since the Federal Tax Service in court can prove the fact of manipulation by analyzing bank data.
2. Some companies, in order to lower the limit, make various kinds of refunds to customers in the current period in order to receive them again in the next period, by agreement with counterparties.
3. By agreement with the counterparty, money is accepted after the expiration of the deadlines for which the limit is considered, for example, payment for goods from the previous year is received in the new year.

However, these methods of concealing actual revenue are subject to careful consideration by fiscal authorities, and often in courts. Judicial practice is not reassuring for companies: a significant part of decisions are made in favor of the Federal Tax Service, with all the ensuing sanctions. An example is the decision in case A26-7732/2014 dated 09/03/15, considered in the SZO arbitration. The court recognizes such manipulations as concealment of proceeds.

A company that does not want to lose the simplified tax system because it has a branch can register a new structural unit as a representative office. Of all the ways to maintain a simplified regime, this is one of the safest, since it is recognized by the courts as legal (see Post of the FAS SZO No. A05-9537/2010 dated 11-04-11, FAS SKO No. A32-4638/2010 dated 11-08-10, etc.).