Encyclopedia of solutions. Accounting for loss of the right to use the simplified tax system

STS is a simplified taxation system. Some companies have the right to apply it if they meet the conditions specified by law.

If the conditions giving the right to use the simplified tax system are violated, then the organization must send to the Federal tax service(submit to the local branch) a message about the loss of the right to conduct business under the “simplified tax system” and the transition to the general taxation system - OSN, or OSNO.

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To generate the message, form 26.2-2 is used, which was approved by the Federal Tax Service by Order No. ММВ-7-3/829@ dated November 2, 2012. It provides an example of a special form, as well as instructions for filling it out.

A notice of loss of the right to use the simplified tax system must contain:

  • full name of the organization;
  • taxable period(code) with which the work on the simplified tax system was completed;
  • the reasons why the company lost the right to “simplified taxation”, indicating links to the relevant articles of the Tax Code of the Russian Federation;
  • Full name, signature of the taxpayer or person representing him, and date.

Submission deadlines - the message must be submitted to the Federal Tax Service within 15 days after the expiration of the tax period in which the conditions for applying the simplified taxation system to this organization were violated.

Clarifications in the law

The law, namely the Tax Code in Article 346.13, paragraph 4, specifies that those enterprises that meet the following conditions have the right to “simplified tax” in 2020:

  • Their amount of income does not exceed a certain limit - so, to work under the simplified tax system, it is necessary that the amount of its income for the 1st-3rd quarters of 2020 does not exceed 79 million 740 thousand rubles (taking into account the deflator coefficient defined for this period as 1.329. From 2020 until 2020, the deflator coefficient is not applied, the maximum amount of income is fixed in the Tax Code and is equal to 150 million rubles. Excess of income above this level automatically deprives you of the right to the simplified tax system, and this is the most common reason indicated in the standard message.
  • The organization does not have internal divisions - representative offices or branches, which are separately included in the constituent documents.
  • The organization does not conduct activities in which the use of the simplified tax system is impossible, for example, it is not a bank, pawnshop, casino or gambling house, or is not engaged in the production of goods subject to excise tax (a detailed list is determined by Article 346.12 Tax Code).
  • In no tax (reporting) period did the share of other companies in this organization exceed 25%.
  • The maximum average number of employees, including part-time workers and employees on civil contracts, did not exceed 100 people. Persons with whom copyright agreements or lease agreements were concluded are not considered.
  • The residual value of the company's fixed assets does not exceed 150 million rubles (valuation method - according to data).
  • The payer for the object of taxation “income” is not a member of a simple partnership and has not entered into an agreement trust management property.

Violation of any of these points is a reason for switching from the simplified tax system to some other taxation system, most often to the main one. At the same time, taxpayers are not required to pay penalties and fines for late tax payments during the quarter during which the transition to the new system was carried out - Article 346.13 of the Tax Code of Russia.

Basic steps

In order to correctly switch from the simplified tax system to another form of taxation, while avoiding problems, it is necessary to timely submit tax message about the loss of the right to use the simplified tax system, the VAT return for the quarter in which the right to the “simplified tax” was lost, and. In addition, you may be required to provide other documents.

Operations with documents

A notice of loss of the right to the simplified tax system must be submitted no later than 15 days from the date of expiration of the right to the simplified tax system in the reporting period-quarter. A declaration according to the simplified tax system must be attached to it, but it can be submitted later, before the 25th of the month following the reporting period.

After this, the company automatically switches to the main taxation system. And it must submit a VAT (value added tax) tax return for the quarter in which the right to the simplified tax system was lost (no later than the 25th of the next month).

An income tax return is also submitted, also for the quarter in which the right to “simplified tax” was lost. If it is I, II or III, then no later than the 28th of the following month, if IV - then until March 28 of the next year, and this will be a declaration for the entire year.

Additionally, if an organization has assets on its balance sheet that are separately taxed based on their book value, then a declaration on property tax. The deadline for filing this declaration depends on local regional legislation, namely on whether it provides for quarterly reporting periods.

If yes, then the property tax declaration is submitted by the 30th day of the month following the quarter; if not (and also if the simplified tax system was no longer used in the fourth quarter) - by March 30 of the following year.

Paying taxes

Taxes under the simplified tax system in case of loss of the right to it are paid for the entire year, but in fact only for the period in which the company lost this tax benefit. So, if the loss occurred starting from the second quarter, then the tax according to the simplified tax system for the year is calculated only based on the data for the first quarter. If lost from the 3rd - for six months, and so on.

Starting from the first month of the quarter that follows the one in which the loss of the right to the “simplified tax” occurred, she applies the main tax system, and the first taxes on it are paid based on the results of the quarter in which the loss of the right to “simplified tax” occurred.

Thus, VAT is paid in the amount of one third of the total amount, but MONTHLY, for 3 months of the quarter following the one for which VAT must be paid, no later than the 25th day of each month. For example, VAT calculated for II 1st quarter, is paid as follows: 1/3 in October, 1/3 in November, 1/3 in December (until the 25th of each month).

Income tax is paid in quarterly advance payments, but not later than 27 days of the month following the last one in the reporting quarter. So, for the first quarter “for profit” you will have to pay until April 28. But in the case of the fourth quarter, income tax is due until March 28 of the new year, and it is calculated from October 1 to December 31.

The payment deadlines and procedure for paying property taxes depend on legislative framework the region of Russia where the payer is registered.

Accounting nuances

The transition to a general taxation system obliges enterprises to charge additional VAT on their goods and services, but at the same time gives the right to file for reimbursement of VAT charged by suppliers.

Immediately after the transition to OSN, it is necessary to mention VAT in a separate line in documents written out to clients. If the company has not previously issued invoices, it will have to start generating them, since they are the basis for the company’s clients to submit applications to the tax office.

VAT is added to the initial cost of services provided, work performed or goods supplied, as well as on advances transferred by buyers.

VAT is required to be paid. If a situation occurs where a supply contract was concluded in one quarter, when the simplified tax system was in effect, and delivery under it is carried out in another, when the company switched to OSNO, then it is necessary either to agree with the second party to change the contract price (with VAT added to it) , or pay this tax from the enterprise budget.

If the enterprise switches back to the simplified tax system in the next quarter, then the VAT on goods, services or work must be restored, but this can only be done if the subject of the value added tax - the goods and work themselves - has not yet been used in any way.

Restoration is carried out in the period immediately preceding the return to the simplified tax system; the restored VAT is included in “Other expenses”.

Filling out a notice of loss of the right to use the simplified tax system

This message is written on a standard form according to form No. 26.2-2, which can be obtained at the local branch of the Federal Tax Service or taken from 1C 8. The document is filled out either by hand in block letters or in any other machine-readable (suitable for recognition by a scanner) method.

Filling procedure:

  1. Code of the Federal Tax Service inspection where it is registered.
  2. The name of the LLC or the last name, first name and patronymic (if any) of the individual entrepreneur.
  3. Payer sign.
  4. Date of transition to the new taxation system (implied by OSN).
  5. Paragraphs of Articles 346.12 and 346.14, which were violated, resulting in a forced transition to the OSN.
  6. The period is indicated.
  7. At the very bottom, the full name of the head of the paying organization or again the full name of the individual entrepreneur is affixed, a signature and the date of the message are affixed.

Such a message is either personally submitted by the taxpayer (individual entrepreneur, head of the company or his trusted employee), or sent to the Federal Tax Service in electronic form.

Mid-year option

If an organization “got out of bounds” and was forced to switch from the simplified tax system to the special tax system in the middle of the year, for example, in the third quarter, then it immediately turns out to be a payer of VAT and income tax. In this regard, collisions often arise.

The most common situation is when an organization entered into an agreement with a clearly stated price, for example, for the supply of goods in the quarter when the simplified tax system was in effect, and the contract was executed - the goods were delivered - in another quarter, when taxes were actually calculated according to the simplified tax system.

In this case, the procedure for accounting for debit and credit is regulated by Article 346.25, paragraph 2 of the Tax Code, and consists of the following:

  • Income from any revenue received for the provision of services, sale of goods, real estate rights, etc. during the period of validity of the “simplified tax”, which were not paid BEFORE the date of transition to the OSN, are recognized as income, and they are subject to income tax on an accrual basis.
  • Any expenses of the organization that were planned under concluded agreements and other immutable obligations during the “simplified tax” period, but had not yet been paid at the time of the transition to the OSN, are recognized as expenses, unless Chapter No. 25 of the Tax Code implies otherwise. Expenses can only include those specified in Article 346.16 of the Tax Code.

In any case, when switching from the simplified tax system to the OSNO, income tax is applied using the accrual method, since the law provides only this option.

The following rules apply regarding VAT. If at the time of the transition from the simplified tax system to the OSNO (at the same time an obligation to pay VAT is formed) the organization had any contract for the supply of goods or performance of work that has not yet been executed, the organization has the right to change the price of the contract without changing the total amount , i.e. simply by allocating VAT from there by reducing your own profits. It is not possible to impose additional VAT on the price of an already concluded contract.

Consequences

The main consequences of an unplanned loss of the right to the simplified tax system is the need to pay separately income tax and value added tax, as well as in some cases - on property, which leads to the complication of the enterprise's tax reporting, loss of profit due to additional taxes and complications in relations with counterparties, agreements with which were concluded without VAT, with the expectation of a different amount of revenue and other taxation.

27.10.2014 print

Organizations and individual entrepreneurs using the simplified taxation system this year may lose the right to use it if certain conditions are violated. If an unplanned loss of the simplified tax does occur, the general taxation regime will have to be applied starting from the quarter in which the violation occurred. In this article we will tell you what steps will need to be taken during such a forced transition and what the main rule of the transition period is.

To begin with, let us remind you that not all companies and individual entrepreneurs can apply the simplified tax system. Full list those who are prohibited by law from working under simplified conditions are contained in. These include firms with branches or representative offices, banks, insurers, investment and non-governmental pension funds, manufacturers of excisable goods, companies involved in the gambling business, government and budgetary institutions and etc.

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.

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 calculated as for a newly created organization, to calculate the tax, the residual value of fixed assets in those months when the company applied the “simplified system” is accepted equal to zero ( , ).


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).

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.

When leaving the simplified system before the end of the year, the last reporting period By single tax is also the last tax period (). 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 ().

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 (letters of the Federal Tax Service of Russia dated 03/27/2012, Ministry of Finance of Russia dated 06/08/2005 No. 03-03-02-04/1-138, dated May 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

The organization worked for a year on 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 six months was:
(30,500,000 rub. - 29,000,000 rub.) × 15% = 225,000 rub.

The amount of the minimum tax for the tax period is equal to:
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 accountant must send to tax office notification of 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”


Practical accounting

The simplified taxation system is a special system, a special taxation regime, the right to use which is not granted to all entrepreneurs. In this article we will tell you about the right to use the simplified tax system and help business managers decide on the possibility of using the simplified tax system in their activities.

Who has the right to apply the simplified tax system

All questions regarding simplified system taxation are regulated by Chapter 26.2 of the Tax Code Russian Federation. The simplified taxation system involves exempting the taxpayer from a number of tax payments:

Taxes from which taxpayers of the simplified tax system are exempt Explanation
Legal entities
Income taxException:
  • persons controlling foreign companies (clause 1.6 of Article 284 of the Tax Code of the Russian Federation);
  • operations with certain types of debt obligations (clause 4 of article 284 of the Tax Code of the Russian Federation)
Property taxException: real estate, the tax base of which is calculated based on the cadastral value
VATException:
  • import of goods;
Individuals (IP)
Personal income taxException:
  • income in the form of dividends (clause 3 of Article 284 of the Tax Code of the Russian Federation);
  • the cost of winnings and prizes in excess of 4,000 rubles;
  • interest on income on deposits in banks in the Russian Federation;
  • savings on interest upon receipt borrowed money in the part exceeding the amount of interest based on 2/3 of the Central Bank refinancing rate (in rubles) and 9% above the amount of interest (in foreign currency);
  • interest income on mortgage-backed bonds;
  • income from use Money in consumer cooperatives.
Property tax for individualsIn relation to property used for business activities.

Exception: real estate, the tax base of which is calculated based on the cadastral value
VATException: import of goods;

carrying out operations under a simple partnership agreement, investment partnership, property trust management agreement, concession agreement (Article 174.1 of the Tax Code of the Russian Federation)

Who has the right to switch to the simplified tax system?

The notice states:

  • selected object of taxation;
  • residual value of fixed assets;
  • the amount of income as of October 1 of the current year.

It should be noted that the entrepreneur submits not an application, but a notification to tax authority, i.e. he independently takes full responsibility for the decision made.

You can submit a notification starting from October 1 and up to December 31, but you can start applying the simplified tax system only from January 1 of the following year. Newly created organizations wishing to apply the simplified tax system are required to notify the tax authorities within 30 days from the date of registration.

Example 1. Individual entrepreneur Profitable D.D. received a certificate of registration as a taxpayer on 03/10/2017. He will have to notify the tax authorities about the transition to the simplified tax system no later than 04/07/2017. The tax authorities, in turn, do not provide any notifications about the application of the simplified tax system by an organization or entrepreneur.

If confirmation is required decision taken about the transition to the “simplified” system, it is better to request an information letter, which will be provided by the Federal Tax Service without fail. It is possible to switch from a simplified taxation system to another only at the end of the tax period. Thus, an entrepreneur needs to make an informed decision before notifying the tax authorities about the transition to the simplified tax system.

Who does not have the right to apply the simplified tax system

The following organizations (individual entrepreneurs) do not have the right to apply the simplified taxation system (Article 346.12 of the Tax Code of the Russian Federation):

  • organizations with branches;
  • banks;
  • insurers;
  • non-state pension funds;
  • investment funds;
  • professional participants in the securities market;
  • pawnshops;
  • organizations engaged in the extraction and sale of mineral resources;
  • organizations engaged in the production of excisable goods;
  • organizations engaged in gambling activities;
  • notaries and lawyers conducting private activities;
  • organizations that have switched to agricultural tax;
  • organizations in which the share of participation of other organizations is more than 25%;
  • organizations with more than 100 employees;
  • organizations whose residual value of fixed assets exceeds 150 million rubles;
  • state and budgetary institutions;
  • organizations that have not notified the tax authorities about the transition of the simplified tax system by December 31 or no later than 30 calendar days after tax registration for newly created organizations;
  • microfinance organizations;
  • private employment agencies.

When can you lose the right to use the simplified tax system?

Entrepreneurs may lose the right to use the simplified tax system in cases where:

  • at the end of the tax period, income exceeded 150 million rubles;
  • the average number of employees exceeded 100 people;
  • the residual value of fixed assets amounted to more than 150 million rubles.

The taxpayer must notify the tax authorities of the loss of the right to use the simplified tax system within 15 days after the end of the reporting period (first quarter, half a year, nine months), i.e. must be reported on time:

  • until April 15;
  • until July 15;
  • until October 15.

In this case, the declaration must be submitted no later than the 25th day of the month following reporting period, i.e.:

  • until April 25;
  • until July 25;
  • until October 25.

Example 2. LLC "ABV" leading activities, subject to the simplified tax system, ceased to exist on March 18, 2017. It is necessary to submit a declaration to the tax authority and pay the tax by April 25, 2017.

Who and under what conditions can apply the simplified tax system?

The taxpayer has the right to apply the simplified tax system, provided that the following requirements are met:

  • the rules for applying the simplified tax system specified in Article 346.12 in relation to the types of activities of the organization are not violated (the list is indicated in the section “Who does not have the right to apply the simplified tax system?” of this article);
  • share of participation third party organizations does not exceed 25%
  • the average number of employees is no more than 100 people per year;
  • the residual value of fixed assets as of January 1, 2017 does not exceed 150 million rubles;
  • the amount of income does not exceed 150 million rubles for 9 months from the beginning of the tax period.

Example 3. ABC LLC in the reporting period for the first quarter of 2017 indicates income equal to 152 million rubles. Thus, ABC LLC is obliged to begin conducting its activities in accordance with the general taxation system from the 2nd quarter. If ABC LLC does not voluntarily express a desire to change the taxation system, it will be forced to work in accordance with the general taxation system.

Criteria for a simplified taxation system

In order to make a decision to switch to a simplified taxation system, an entrepreneur needs to very clearly understand the criteria of the simplified tax system:

Deadlines for submitting reports and paying taxes under the simplified tax system

The calculation of tax under the simplified tax system is carried out incrementally from the previous one and is taken into account in advance payments; the final payment will be calculated in the tax return. The timing of advance payments does not depend on the status of the taxpayer ( entity or individual entrepreneur):

The deadline for submitting a tax return for the tax period and paying the finally calculated tax depends on the status of the taxpayer:

The tax return is submitted after the end of the tax period, i.e. next calendar year.

List of legislative acts regulating law

List of legislative acts:

Category “Questions and Answers”

Question No. 1. Our organization is quite large in the region in terms of the number of jobs. We meet all the criteria that allow us to apply the simplified tax system, but in the 1st quarter the average number of employees was 60 people, in the 2nd quarter 80 people, in the 3rd quarter 110 people. Does this mean that we should switch to a general taxation regime from the 4th quarter?

For the simplified taxation system, the reporting periods are as follows: first quarter, half a year, nine months. In accordance with these periods, you need to determine the average number of employees for nine months, which will be (60 + 80 + 110) / 3 = 83 people. Thus, the average number of employees for nine months was 83 people, which allows you to continue working on the simplified tax system.

Question No. 2. We are planning a transition to the simplified tax system, but one fact confuses us - does the cost of benches, lawns, etc. external improvement objects to limit the cost of fixed assets?

External improvement objects in accounting are accepted on the balance sheet of the organization as fixed assets, but depreciation in tax accounting they are not subject to. In this regard, when calculating the cost of fixed assets in order to switch to simplified tax system objects external improvements are not taken into account.

Question No. 3. Should we take into account external part-time workers when calculating the average number of employees?

When calculating the average number of employees, you are obliged not only to take into account external part-time workers, but also employees with whom your organization has entered into civil contracts for the period of work. Thus, the average number of employees in an organization will consist of:

  • full-time employees;
  • external part-time workers;
  • employees hired for the period of performing a certain type of work.
Some are just planning to switch to the simplified tax system in 2009, while others, on the contrary, have already lost the right to use the special regime. What actions should be taken in such a situation? How to calculate taxes if you lose the right to use the simplified tax system? How to account for transition costs? The answers to these and other questions are in our article.
Loss of the right to use the simplified tax system

The taxpayer can independently refuse to use the simplified tax system, but circumstances often arise in which he loses the right to use the special regime at the end of the reporting (tax) period. This happens if at least one of the events named in paragraph 4 of Article 346.13 of the Tax Code of the Russian Federation occurs.

1. The amount of income of the taxpayer at the end of the tax (reporting) period in 2008 exceeded 26.8 million rubles (taking into account the deflator coefficient established for the current year by order of the Ministry of Economic Development of Russia dated October 22, 2007 No. 357) (see also the letter of the Ministry of Finance Russia dated January 31, 2008 No. 03-11-04/2/22).

2. During the reporting (tax) period, representative offices or branches were formed in the organization, and appropriate changes were made to the constituent documents.

3. The organization began to engage in those types of activities in which the use of the simplified tax system is prohibited (production of excisable goods, gambling business and others mentioned in paragraph 3 of Article 346.12 of the Tax Code of the Russian Federation).

4. During the reporting (tax) period, the share of participation of other organizations in a company using the simplified tax system exceeded 25 percent (see, for example, letter of the Ministry of Finance of Russia dated December 21, 2007 No. 03-11-04/2/311).

5. The maximum average number of employees (100 people) was exceeded in any reporting or tax period. This indicator is calculated in the manner prescribed by Rosstat Resolution No. 69 dated November 20, 2006 (as amended on November 23, 2007). According to this document (clauses 86-92), the average number of people in an organization includes:

Average number of employees;

Average number of external part-time workers;

The average number of people performing work under civil contracts.

Individuals with whom copyright agreements or property transactions (for example, lease agreements) have been concluded are not included in the number of those who performed work under civil contracts (see also letter of the Ministry of Finance of Russia dated August 16, 2007 No. 03-11-04/ 2/199).

6. Residual value of fixed assets and intangible assets organizations, determined in accordance with the legislation of the Russian Federation on accounting, exceeded 100 million rubles. It is important that when determining the residual value of fixed assets and intangible assets, objects that are subject to depreciation and are recognized as depreciable property in accordance with Chapter 25 of the Tax Code are taken into account, but the residual value is assessed according to accounting data.

7. The taxpayer applying the taxation object “income” has entered into a simple partnership.

8. The taxpayer applying the taxation object “income” has entered into a property trust management agreement.

In each of the listed cases, the taxpayer is considered to have lost the right to apply the simplified taxation system from the beginning of the quarter in which the above circumstances arose.

The amounts of taxes payable when using a different taxation regime are calculated and paid in the manner prescribed by the legislation of the Russian Federation on taxes and fees for newly created organizations or newly registered individual entrepreneurs. Taxpayers do not pay penalties and fines for late payment of monthly payments during the quarter in which they switched to a different tax regime (clause 4 of Article 346.13 of the Tax Code of the Russian Federation).

Notification of loss of the right to use the simplified tax system

A taxpayer who has lost the right to use the simplified tax system and has switched to a different taxation regime is obliged to report this to the tax office within 15 calendar days after the expiration of the reporting (tax) period in which he went beyond the permissible limits (clause 5 of article 346.13 of the Tax Code of the Russian Federation ).

Form No. 26.2-5 “Notification of loss of the right to use the simplified taxation system” was approved by order of the Ministry of Taxes of Russia dated September 19, 2002 No. VG-3-22/495 (as amended by order of the Federal Tax Service of Russia dated September 2, 2005 No. SAE- 3-22/421). The message can be sent by mail (preferably by a valuable letter) or submitted directly to the tax office.

A taxpayer who has switched from a simplified system to a different taxation regime has the right to switch again to a “simplified system” no earlier than a year after he lost the right to use it (clause 7 of Article 346.13 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated July 28, 2004 No. 22-2-16/1313, dated October 13, 2004 No. 03-03-02-04/1/26, etc.).

Filing a return and paying the minimum tax

For taxpayers who have lost the right to further use the simplified system during a calendar year, the tax period for the single tax is the reporting period preceding the quarter from which taxpayers are considered to have switched to the general regime. This has been repeatedly explained by specialists from the Ministry of Finance and the Federal Tax Service of Russia (see letters from the Ministry of Finance of Russia dated October 19, 2006 No. 03-11-05/234, dated June 8, 2005 No. 03-03-02-04/1-138, dated 24 May 2005 No. 03-03-02-04/2/10, Federal Tax Service of Russia dated February 21, 2005 No. 22-2-14/224).

Until 2009, taxpayers submitted returns quarterly, and tax returns for a single tax submitted for the reporting period, following which the taxpayer loses the right to use the simplified tax system, are equated to tax returns for the tax period.

However, since 2009, in force new edition Article 346.23 of the Tax Code of the Russian Federation, the declaration will need to be submitted once a year: for organizations - no later than March 31 of the year following the expired tax period, and for entrepreneurs - before April 30 of the following year.

The law does not establish any special deadlines for filing a return for the tax period for taxpayers who have lost the right to use the simplified tax system - thus, it is likely that such a taxpayer can submit reports at any time after the transition to the general tax regime, but no later than the dates indicated above.

In any case, if the amount of the single tax calculated based on the results of such an “interrupted” tax period turns out to be less than the amount of the minimum tax for the same period, the taxpayer will need to pay the minimum tax after the expiration of the reporting period in which he lost the right to use the simplified tax system, but not later than the deadlines established for submission tax returns according to the simplified tax system (clause 7 of article 346.21 of the Tax Code of the Russian Federation).

Example 1

In 2008, the entrepreneur applied the simplified tax system with the object of taxation “income minus expenses.” Since the fourth quarter of 2008, he lost the right to use the simplified tax system, since in October his income exceeded 26.8 million rubles. Moreover, the amount of tax calculated in the general manner for 9 months of 2008 is less than the amount of the minimum tax calculated for the same period.

From October 1, 2008, an individual entrepreneur had to switch to the general taxation regime due to the loss of the right to use the simplified tax system (clause 4 of article 346.13 of the Tax Code of the Russian Federation). He also had to calculate the amount of the minimum tax in the amount of 1 percent of the income received for 9 months of 2008 and transfer it no later than October 25, 2008, and also submit a declaration within this period indicating the amount of the minimum tax.

Switching to the accrual method

Organizations that have applied a simplified taxation system, when switching to calculating the tax base for corporate income tax using the accrual method, comply with the following rules (clause 2 of Article 346.25 of the Tax Code of the Russian Federation):

Recognize as income the money received in the amount of proceeds from the sale of goods (performance of work, provision of services, transfer of property rights) during the period of application of the simplified system, payment (partial payment) of which was not made before the date of transition to calculating the tax base for income tax using the method accruals;

Recognize as expenses the costs of purchasing during the period of application of the simplified system of goods (work, services, property rights) that were not paid (partially paid) by the taxpayer before the date of transition to calculating the tax base for income tax on the accrual basis, unless otherwise provided Chapter 25 of the Tax Code.

These transactions are associated with the abandonment of the cash method in favor of the accrual method when recognizing income and expenses.

Such income and expenses are recognized as income (expenses) of the month of transition to calculating the tax base for corporate income tax using the accrual method.

Example 2

An organization applying the simplified tax system with the tax object “income minus expenses” acquired raw materials and materials in September 2008. They were released into production in December 2008. From January 1, 2009, the company switches to the general taxation regime. Payment for the specified raw materials and supplies was made in February 2009.

The taxpayer was not able to take into account the cost of materials in expenses, being on the simplified tax system, since they were not paid. He writes off the cost of materials released into production in January 2009, that is, in the month of transition to the general taxation regime.

Formation of the residual value of depreciable property

If an organization switches from the simplified tax system (regardless of the object of taxation) to the general regime and has fixed assets and intangible assets, the acquisition costs (construction, production, creation, etc.) of which were incurred during the period of application of the general regime before the transition to the simplified system ", are not fully transferred to expenses for the period of application of the simplified tax system, in tax accounting on the date of transition the residual value of fixed assets and intangible assets is determined by reducing the residual value determined on the date of transition to the simplified tax system by the amount of expenses determined for the period of application of the simplified tax system in the manner provided for in paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation.

According to the explanations of the Ministry of Finance of Russia, from January 1, 2008, this procedure applies both to organizations that used a simplified system with the object “income minus expenses” and to companies with the object “income”. The latter must determine the amount of expenses for the acquisition (creation) of fixed assets and intangible assets, as well as the amount of expenses for modernization, completion, etc. of fixed assets, provided for in paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation, by calculation, despite the fact that it is included in expenses was not included and did not reduce the tax base for the single tax.

Since 2009, this rule has been introduced directly into paragraph 3 of Article 346.25 of the Tax Code of the Russian Federation.

It is necessary to keep in mind that since organizations that used the simplified system with the object “income” did not record their expenses, the amount of their residual value is taken into account in tax accounting on the date of transition according to the rules established by paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation (letter of the Ministry of Finance and the Federal Tax Service of Russia dated November 28, 2007 No. SK-6-02/912, letter of the Ministry of Finance of Russia dated November 13, 2007 No. 03-11-02/266).

Exercise of the right to deduct VAT

Organizations and entrepreneurs that applied the simplified system, when switching to the general regime, comply with the following rule: VAT amounts presented to the taxpayer using the simplified system when purchasing goods (work, services) that were not classified as expenses deducted from the tax base when applying The simplified tax system is accepted for deduction upon transition to the general regime in the general manner.

This also applies to taxpayers who used the “income” object, who did not have the right to recognize any expenses during the period of application of the simplified tax system.

The specified amounts of VAT are accepted for deduction on the basis of invoices issued by sellers when the taxpayer purchases goods (work, services), and subject to the further use of these goods for transactions subject to VAT (clause 6 of Article 346.25, clause 2 of Art. 171 and paragraph 1 of Article 172 of the Tax Code of the Russian Federation).

Loss of the right to use the simplified tax system based on a patent

Article 346.25.1 of the Tax Code of the Russian Federation provides for the possibility of using the simplified tax system on the basis of a patent. It exists for individual entrepreneurs engaged in
one of the types of activities named in this article, if in the region where they work, this is provided for by the legislation of the subject of the Russian Federation.

Such an entrepreneur loses the right to apply a simplified system based on a patent from the beginning of the period for which the patent was issued if:

His income, provided for in paragraph 4 of Article 346.13 of the Tax Code of the Russian Federation, for 2008 will exceed 26.8 million rubles;

He attracts hired workers in his business activities (including under civil contracts). Until 2009, it was prohibited for an entrepreneur to use the labor of other persons under a patent, but since 2009 it is possible, but no more than five people per tax period based on the average number of employees (Clause 2.1 of Article 346.25.1 of the Tax Code of the Russian Federation, introduced Federal law dated July 22, 2008 No. 155-FZ). In this case, the tax period is considered to be the validity period of the patent (clause 4 of Article 346.25.1 of the Tax Code of the Russian Federation). Thus, from 2009, the right to use the simplified tax system based on a patent will be lost when attracting more employees;

He carries out, on the basis of a patent, a type of entrepreneurial activity not provided for in the law of the constituent entity of the Russian Federation;

He did not pay 1/3 of the cost of the patent no later than 25 calendar days after the start of business activities based on the patent (clause 9 of Article 346.25.1 of the Tax Code of the Russian Federation).

After losing the right to use the simplified tax system, the entrepreneur must pay taxes in accordance with the general taxation regime.

An individual entrepreneur is obliged to inform the tax authority about the loss of the right to use the simplified system based on a patent and the transition to a different taxation regime within 15 calendar days from the beginning of the application of a different regime.

The right to switch again to a simplified system based on a patent arises for an individual entrepreneur no earlier than three years after he has already lost the right to use the simplified tax system based on a patent.

N.G. Bugaeva, economist

Unplanned loss of the right to simplified taxation system

How to painlessly switch to general mode

To apply the simplified tax system, you must comply with a whole list of conditions. Some of them can be controlled, and some cannot. And if the right to use the simplified tax system is lost, then the general taxation regime will have to be applied from the beginning of the quarter in which at least one of the conditions was violated clause 3 art. 346.12, paragraph 4 of Art. 346.13 Tax Code of the Russian Federation. Let's talk about what will need to be done during such a forced transition.

The reasons for the “failure” from the simplified tax system and the mandatory set of actions in this regard

An organization is obliged to switch to a general taxation regime if in a certain quarter, in particular clause 3 art. 346.12, paragraph 4 of Art. 346.13 Tax Code of the Russian Federation:

  • <или>she opened a branch or representative office;
  • <или>the share of participation in its authorized capital of other organizations was more than 25%;
  • <или>the accounting residual value of its fixed assets exceeded 100 million rubles;
  • <или>the average number of its employees exceeded 100 people;
  • <или>its income since the beginning of the year has exceeded 60 million rubles;
  • <или>she began to conduct a type of activity “prohibited” for the application of the simplified tax system (for example, she got into the gambling business).

About the loss of the right to simplified taxation system need to to report to your tax office within 15 calendar days after the end of the quarter in which any of the above events occurred clause 5 art. 346.13 Tax Code of the Russian Federation. To do this, send a notification to the tax authorities in the form approved by the Federal Tax Service. form 26.2-2, approved. By Order of the Federal Tax Service dated November 2, 2012 No. ММВ-7-3/829@.

Submit a declaration using the simplified tax system the former simplified person must no later than the 25th day of the month following the quarter when the “rally” with the simplified clause 1 art. 346.19, paragraph 3 of Art. 346.23 Tax Code of the Russian Federation. The declaration must be drawn up for the period from the beginning of the year to the quarter in which the organization lost the right to the simplified tax system clause 4 art. 346.13 Tax Code of the Russian Federation. That is, if the loss of the right occurred in the fourth quarter of 2013, then you will need to report using the simplified tax system no later than January 27, 2014 (since January 25 falls on a Saturday), submitting a declaration for 9 months of 2013. This period will be a tax period for the organization period according to the simplified tax system.

At the same time it will be necessary pay tax under the simplified tax system clause 7 art. 346.21, paragraph 3 of Art. 346.23 Tax Code of the Russian Federation. Moreover, if on the “income-expenditure” simplified tax system the amount of tax payable for an incomplete tax period is less than the minimum tax, then it will be necessary to pay exactly this to the budget - 1% of the income in clause 6 art. 346.18 Tax Code of the Russian Federation; clause 2 of the Federal Tax Service Letter No. ED-4-3/5146@ dated March 27, 2012; Letter of the Federal Tax Service dated March 10, 2010 No. 3-2-15/12@; Resolution of the Presidium of the Supreme Arbitration Court of July 2, 2013 No. 169/13.

“Transitional” expenses/income

After switching to the general regime, you need to calculate taxes (income tax, VAT, property tax) as if you were a newly created organization clause 4 art. 346.13 Tax Code of the Russian Federation. And you will need to choose an accounting method for calculating income tax - cash or accrual. From the point of view of accounting for “transitional” income and expenses, of course, it is more convenient to use the cash method. But it is available only to those whose average revenue (excluding VAT) over the last four quarters did not exceed 1 million rubles. clause 1 art. 273 Tax Code of the Russian Federation That is, to an extremely limited number of people. An alternative to it is the accrual method. clause 1 art. 271, paragraph 1, art. 272 Tax Code of the Russian Federation. Next we will talk about him.

Cost accounting. The procedure for accounting for costs when switching to OSNO from "income-expenditure" simplifications are given in the table. Naturally, we are talking only about those costs that were not included in the base under the simplified tax system.

Type of costs and their payment Date of recognition in expenses for OSNO subp. 2 p. 2 art. 346.25 Tax Code of the Russian Federation
Raw materials, materials not paid for before switching to OSNO clause 1 art. 254, paragraph 2 of Art. 272 Tax Code of the Russian Federation If not written off for production before the transition to OSNO, then the date of write-off for production (except for raw materials and materials taken into account in the cost of finished products and pp. 1, 2 tbsp. 319 Tax Code of the Russian Federation)
If written off for production before switching to OSNO, then
Works, services not paid before the transition to OSNO clause 1 art. 254, paragraph 2 of Art. 272 Tax Code of the Russian Federation If the acceptance certificate is signed before the transition to OSNO, then the 1st day of the quarter from which OSNO is applied
Goods sold but not paid to the supplier before the transition to OSNO subp. 3 p. 1 art. 268, sub. 2 p. 2 art. 346.17 Tax Code of the Russian Federation 1st day of the quarter from which OSNO is applied
Goods not sold before the transition to OSNO (both paid and not paid to the supplier) subp. 3 p. 1 art. 268, sub. 2 p. 2 art. 346.17 Tax Code of the Russian Federation Date of transfer to buyer
Salaries accrued but not paid before the transition to OSNO 1st day of the quarter from which OSNO is applied
Insurance premiums accrued but not paid before the transition to OSNO 1st day of the quarter from which OSNO is applied

If the former simplifier used object "income" then, according to the Ministry of Finance, any expenses related to the period of application of the simplified tax regime cannot be taken into account when switching to the general regime, in particular the cost of goods purchased under the simplified tax system, but paid for under the general regime clause 2 of the Letter of the Ministry of Finance dated January 19, 2012 No. 03-03-06/1/20;. Therefore, if you are faced with a forced transition from the “profitable” simplified tax system to the general regime and want to include “transitional” expenses in the calculation of the “profitable” base, be prepared for claims from the tax authorities.

Although the court once said that after the “rally” with the simplified tax system, it is possible to take into account “transitional” expenses when calculating income tax, regardless of the object of taxation used by the simplifier Resolution of the Federal Antimonopoly Service No. F03-8167/2010 dated December 6, 2010.

Similar problems may arise with the recognition of unpaid wages and insurance premiums as expenses. At least in the case of changing the object of taxation from “income” to “income minus expenses”, the Ministry of Finance spoke out against accounting for such expenses for tax purposes Letter of the Ministry of Finance dated 09/07/2010 No. 03-11-06/2/142. Since the indicated amounts relate to the period when the organization applied the “income” simplification and it could not have expenses as such. When “failure” with the “profitable” simplified tax system, controllers sometimes reason in a similar way. But fortunately, the courts side with the former simplifiers in Resolution of the FAS VSO dated December 3, 2010 No. A69-02/2010; 2 AAS dated 05.05.2011 No. A29-9378/2010.

Income accounting. On the 1st 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 subp. 1 item 2 art. 346.25 Tax Code of the Russian Federation. But if you took into account advances in your income during the simplification, then, on the contrary, you no longer need to take into account the revenue from these prepaid shipments in your OSNO income. clause 1 art. 346.17 Tax Code of the Russian Federation; Letter from the Federal Tax Service for Moscow dated May 14, 2010 No. 16-15/050711@.

In general, do not forget the main “transitional” rule: all “transitional” income and expenses must be taken into account once - either within the framework of the simplification or within the framework of the general regime.

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 some operating systems will not be fully taken into account in your expenses. Will you be able to “finish” it after the “departure” from the simplified tax system?

SITUATION 1. The OS was purchased before the simplification was applied. After the transition from the simplified tax system to the general mode, the unaccounted cost of fixed assets can be included in expenses through depreciation clause 3 art. 346.25 Tax Code of the Russian Federation. It must be calculated on the residual value of such fixed assets, which is calculated using the formula:

Using the above formula, former “profitable” simplifiers can also calculate the residual value of the fixed assets. They determine the last indicator in the formula by calculation (despite the fact that before this they did not take their expenses into account in tax accounting at all).

SITUATION 2. The OS was acquired during the period of application of the simplified tax system. Then it all depends on the object of taxation:

  • <если>the simplifier used the object “income”, then after the “departure” from the simplified tax system the cost of fixed assets cannot be included in “profitable” expenses Letters of the Federal Tax Service dated October 2, 2012 No. ED-4-3/16539@; Ministry of Finance dated December 7, 2012 No. 03-03-06/1/633. True, sometimes former simplifiers managed to prove the opposite in court. Resolution 14 of the AAS of September 10, 2012 No. A13-4110/2012; 13 AAS dated June 30, 2009 No. A21-9258/2008;
  • <если>the simplifier used the object “income minus expenses”, then the unaccounted cost is written off as “profitable” expenses through depreciation Letter of the Ministry of Finance dated March 15, 2011 No. 03-11-06/2/34. In this case, the residual value of the operating system is determined as follows:

VAT in the transition period

When a simplifier becomes a “general regime” person, he goes into the category of VAT payers clause 4 art. 346.13 Tax Code of the Russian Federation. This means that he must charge VAT:

  • from the cost of goods sold (work, services) shipped starting from the quarter in which the switch to OSNO;
  • from advances received starting from the quarter in which he switched to OSNO.
About paying VAT in a situation where the transition from a special regime to a general regime occurred retroactively, read:

You will also need to issue invoices subp. 1 clause 1 art. 146, paragraph 3 of Art. 168 Tax Code of the Russian Federation. Moreover, all this will have to be done, even if you learned about the loss of the right to the simplified tax system at the end of the quarter.

If from the beginning of the “transitional” quarter until the moment of the “gathering” the simplifier sold something without VAT, then you will still have to charge and pay tax:

  • <или>at your own expense;
  • <или>at the expense of the buyer, if he agrees to pay additional tax or you can recover VAT through the court.

If, during the period of application of the simplified tax system, you received advances, the shipment of which will take place under the general regime, then the sale will also be subject to VAT.

When issuing invoices for shipments that took place in the quarter of the “gathering”, but before you learned about the loss of the right to use the simplified tax system, it is better to put on the invoices the same dates that are indicated on the primary document (invoices, acts and etc.). Of course, if you want the buyer to have no problems with deducting VAT.

In invoices and acts, the cost must also be indicated including VAT. But it is clear that in documents drawn up from the beginning of the “transition” quarter and before it became clear that you have lost the right to the simplified tax system, there will be no VAT. As a result, after switching to OSNO, you will need to correct the primary data by highlighting VAT in prices clause 7 art. 9 of the Law of December 6, 2011 No. 402-FZ.

Input VAT on the cost of purchased goods (works, services) that were not used in activities during the period of application of the simplified tax system (and were not included in expenses) can be deducted in the quarter of the “flight” with a simplified clause 6 art. 346.25 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 04/04/2013 No. 03-11-06/2/10983. But only if you used the “income-expenditure” simplified tax system. This rule does not apply to those who used the “income” object Resolution of the Federal Antimonopoly Service of October 24, 2012 No. A57-664/2012; FAS NWO dated 08/16/2012 No. A13-17735/2011, dated 12/15/2011 No. A05-3687/2011.

As for the input VAT on the operating system, if it was put into operation during the period of application of the simplified tax system, the VAT on it after the transition to the general regime will not be deductible. Letter of the Ministry of Finance dated 03/05/2013 No. 03-07-11/6648. And if it was put into operation after the simplified tax system was removed, then VAT can be deducted, even if it was purchased during the period of application of the “profitable” simplified tax system Letter of the Ministry of Finance dated October 1, 2013 No. 03-07-15/40631; Clause 2 Letter of the Ministry of Finance dated March 17, 2010 No. 03-11-06/2/36.

Organizational property tax

The tax base is calculated based on the residual value and clause 1, sub. 8 clause 4 art. 374 Tax Code of the Russian Federation; pp. 4, 5 PBU 6/01:

  • real estate;
  • movable property, accepted for accounting as OS before 01/01/2013.

And even if by the time you “follow” the simplified tax system, the value of your operating system has been completely written off in tax accounting, but not completely written off in accounting, you need to include it in the base for calculating property tax.

To calculate the tax, the residual value of fixed assets in those months when the company applied the simplified tax system is taken equal to zero. clause 1 art. 375, paragraph 2 of Art. 55, paragraph 4, art. 346.13 Tax Code of the Russian Federation. After all, when “leaving” the simplified form, as noted above, taxes are calculated as for a newly created organization and Letter of the Federal Tax Service dated November 11, 2010 No. ШС-37-3/15203.

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.

Tax What and when is paid for the quarter in which there was a “failure” with the simplified tax system When is the declaration/calculation of advance payments submitted?
VAT 1/3 of the amount of tax payable according to the declaration no later than the 20th day of each month of the quarter following the quarter in which there was a “failure” with the simplified tax system clause 1 art. 174 Tax Code of the Russian Federation No later than the 20th day of the month following the quarter in which there was a “failure” with the simplified tax system clause 5 art. 174 Tax Code of the Russian Federation
Income tax. If the right to simplified taxation system is lost:
  • <или>in any quarter except the fourth quarter
 Advance payment no later than the 28th day of the month following the quarter of the “rally” with the simplified tax system clause 1 art. 287, paragraph 3 of Art. 289 Tax Code of the Russian Federation No later than the 28th day of the month following the quarter of the “gathering” with the simplified tax system clause 3 art. 289 Tax Code of the Russian Federation
  • <или>in the fourth quarter
 Tax no later than March 28 of the following year clause 1 art. 287, paragraph 4 of Art. 289 Tax Code of the Russian Federation No later than March 28 of the following year