According to subparagraphs 8 and 9 of paragraph 2 of article 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of UTII can be applied to catering services provided through the organization's facilities Catering with a visitor service area of ​​no more than 150 sq. m for each catering facility, as well as through catering facilities that do not have a customer service hall.

Based on Article 346.27 of the Tax Code of the Russian Federation, a building (part of it) or a structure intended for the provision of catering services, having a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or ) purchased goods, as well as for leisure activities. This category of objects includes restaurants, bars, cafes, canteens, snack bars.

A catering facility that does not have a customer service hall means a catering facility that does not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods. This category of objects includes kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars and other similar catering outlets.

In addition, we note that catering services for the purposes of Chapter 26.3 of the Tax Code of the Russian Federation include services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities. Public catering services do not include services for the production and sale of excisable goods specified in subparagraph 3 of paragraph 1 of Article 181 of the Tax Code of the Russian Federation.

According to the national standard GOST R 50647-2010 “Public catering. Terms and definitions”, approved by the order of Rosstandart dated November 30, 2010 N 576-st, public catering is understood as a set of enterprises of various organizational and legal forms and individual entrepreneurs engaged in the production, sale and organization of consumption of culinary products.

Thus, the activity of a catering facility, both with a visitor service hall and without a visitor service hall, regardless of its location and type, also provides for the organization of the consumption of purchased products on the spot.

In the situation under consideration, on the line of the food court in the shopping center, where the organization plans to open a catering point, there is an area for eating. However, in this area for visitors to the shopping center, conditions are organized for the consumption of products from several similar catering outlets.

At the same time, it should be noted that in almost every large shopping center or shopping complex there are so-called restaurant lines (food courts), the principle of serving visitors on which, as a rule, is organized in the manner described above. Accordingly, the condition for organizing the consumption of purchased products on the spot, regardless of the fact that the organization is not leased out part of the area of ​​the visitor service hall in the shopping center, in this case will be fulfilled.

Thus, in the situation under consideration, the organization's activities can be attributed to "imputed" catering services provided through a catering facility that does not have a customer service hall. count single tax will be necessary using the physical indicator “number of employees, including individual entrepreneur". Similar explanations are contained in the letter of the Ministry of Finance of Russia dated 04/09/2010 N 03-11-06 / 3/56.

The organization plans to open a food court in a shopping center. The area for cooking, the distribution line will be provided for rent. There will be no private eating area. There is such an area in the shopping center, but it is not rented to the organization. This eating area will be used by visitors to the shopping center, while the food court of the shopping center will have several such catering outlets. Is the organization entitled to pay UTII in this case?

According to paragraphs. 8 p. 2 art. 346.26 of the Tax Code of the Russian Federation, “imputation” includes activities in the provision of catering services through catering facilities with a customer service hall of no more than 150 sq. m. To such catering facilities on the basis of Art. 346.27 of the Tax Code of the Russian Federation includes restaurants and cafes. Accordingly, if an organization or an individual entrepreneur provides catering services through a restaurant or cafe, the area of ​​\u200b\u200bthe customer service hall in which does not exceed 150 sq. m, then they can switch to paying a single tax on imputed income.

Note. Organizations and entrepreneurs providing catering services must be registered as tax authority at the place of provision of such services (clause 2 of article 346.28 of the Tax Code of the Russian Federation).

Terms. Restaurant- a public catering establishment with a wide range of dishes of complex manufacture, including custom-made and signature dishes and products, alcoholic, soft, hot and other types of drinks, flour confectionery and bakery products, tobacco products, purchased goods, high level services and, as a rule, in combination with the organization of recreation and entertainment.

Cafe- a public catering enterprise for organizing catering and recreation for consumers with the provision of a limited range of public catering products compared to a restaurant, selling branded, custom-made dishes, products, alcoholic and non-alcoholic drinks.

This is stated in Art. 346.27 of the Tax Code of the Russian Federation and GOST R 50762-2007, approved by the Order of Rostekhregulirovanie dated December 27, 2007 N 475-st.

However, to switch to this special mode, fulfillment of this condition alone is not enough. There are others. Firstly, an organization or an individual entrepreneur must comply with the requirements of clause 2.2 of Art. 346.26 of the Tax Code of the Russian Federation. Secondly, in the municipal district, urban district or in the city of federal significance, where the restaurant or cafe is located, in relation to the specified type of activity, it has been introduced. Thirdly, public catering services are recognized as such for the purpose of paying a single tax on imputed income. Fourthly, a restaurant or cafe must be owned by an organization or an individual entrepreneur on the basis of ownership or be transferred to them for use under a lease or other similar agreement (Letter of the Ministry of Finance of Russia dated 03.20.2007 N 03-11-04 / 3/72 and the Resolution of the FAS West Siberian District dated July 26, 2007 N F04-5208 / 2007 (36853-A81-29)).

What is meant by catering services?

In accordance with Art. 346.27 of the Tax Code of the Russian Federation public catering services in order to pay a single tax on imputed income services are recognized for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as for leisure activities. Services for the production and sale of beer, alcoholic products (drinking spirits, vodka, alcoholic beverages, cognacs, wine and other food products with an ethyl alcohol volume fraction of more than 1.5%, with the exception of wine materials) are not included in public catering services.

At the same time, what should be understood by culinary products and confectionery, in Ch. 26.3 of the Tax Code of the Russian Federation is not specified. So, given the provisions of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, let's turn to GOST R 50647-94 "Public catering. Terms and definitions" and GOST R 53041-2008 "Confectionery and semi-finished confectionery products. Terms and definitions".

Note. GOST R 50647-94 and GOST R 53041-2008 were approved respectively by the Decree of the State Standard of Russia dated February 21, 1994 N 35 and the Order of Rostekhregulirovanie dated December 15, 2008 N 402-st.

They say that a culinary product is a set of dishes, culinary products and culinary semi-finished products, and a confectionery product is a multicomponent food product, ready to eat, having a certain predetermined shape, obtained as a result of technological processing of the main types of raw materials (sugar, flour, fats, cocoa products), with or without food ingredients, food additives and flavors. Confectionery is divided into the following groups: chocolate, cocoa, sugary confectionery, flour confectionery.

Thus, if culinary products and (or) confectionery products are sold to visitors in a restaurant or cafe, then an organization or an individual entrepreneur can apply a taxation system in the form of UTII in relation to this type of activity.

At the same time, it should be noted that in order to classify activities as public catering services, the implementation of one sale of culinary products and (or) confectionery products is still not enough. It is also necessary that one more condition be met, namely: conditions for the consumption of the specified products have been created in the catering facility. Not only regulatory authorities agree with this position, but also judges (Letters of the Ministry of Finance of Russia dated 01.07.2009 N 03-11-09 / 233, dated 01.26.2009 N 03-11-06 / 3/10, dated 07.21.2006 N 03 -11-04/3/359 and the Decree of the Federal Antimonopoly Service of the Volga District of March 11, 2009 in case N A12-11657/2008).

Now consider several situations in which questions may arise in choosing a taxation system.

If the production and sale of culinary products are carried out in different places

Claims from the regulatory authorities in this case, although they take place, are not substantiated. This is due to the fact that in order to recognize the activities of catering services Ch. 26.3 of the Tax Code of the Russian Federation does not establish such a requirement as the sale of culinary products and confectionery products in the same place where they were produced. The main thing is that these products are sold through their own service network (Resolution of the Federal Antimonopoly Service of the West Siberian District of March 30, 2010 in case N A27-10571 / 2009).

Thus, if culinary products and (or) confectionery products are sold through kiosks, tents and culinary shops (departments) operating at a restaurant or cafe, then such activities are recognized as catering services.

If a cafe (restaurant) delivers its products to customers

Today, many restaurants (cafes) have small halls and cannot serve a large number of guests. Therefore, along with cooking, they often deliver ready meals. In this regard, the question arises: will such activities for the purposes of Ch. 26.3 of the Tax Code of the Russian Federation to be recognized as catering services? Since in this case conditions are not created for the consumption of manufactured products directly in the catering facility, entrepreneurial activity related to the delivery of ready-made meals to consumers does not correspond to the concept of "catering services" established by Art. 346.27 of the Tax Code of the Russian Federation, and cannot be transferred to the payment of UTII. Delivery related transactions should be taxed under common system taxation or USN (Letters of the Ministry of Finance of Russia dated 12/10/2010 N 03-11-06/3/166, dated 07/12/2010 N 03-11-06/3/101 and dated 05/13/2010 N 03-11-11/133) .

By the way, the sale of culinary products to take away, that is, without the consumption of these products on the spot, will also not be included in public catering services for the purpose of paying UTII (Letter of the Ministry of Finance of Russia dated 06.12.2006 N 03-11-04 / 3/528).

Sale of purchased goods

In cafes and restaurants, in addition to products own production, very often purchased goods are sold. To what kind of "imputed" type of activity should such a sale be attributed - to retail trade or catering services? The Presidium of the Supreme Arbitration Court of the Russian Federation in Decree N 17123/08 of 23.06.2009 indicated that the sale of purchased food products at retail through a public catering organization is an activity for the provision of public catering services. And the regulatory authorities attributed the sale of not only food, but also non-food products to public catering services. For example, in Letters No. 03-11-04/3/148 dated March 24, 2008 and No. 03-11-04/3/170 dated May 22, 2007, the Ministry of Finance of Russia indicated that the sale of purchased cigarettes and lighters through public catering facilities refers to catering services and can be transferred to the payment of UTII.

Note that if ready-to-drink soft drinks and cocktails purchased for subsequent sale (milk, sour-milk, fermented, fruit, etc.) in the manufacturer's packaging and packaging are sold through retail outlets, then this entrepreneurial activity for the purpose of paying UTII is retail trade (Letter Ministry of Finance of Russia dated December 17, 2009 N 03-11-09 / 403).

Sale of alcoholic products

As you know, when selling alcoholic products on the territory of the Russian Federation, companies should be guided by the rules federal law dated November 22, 1995 N 171-FZ "On state regulation of the production and circulation of ethyl alcohol, alcoholic and alcohol-containing products" and the Rules for the sale of certain types of goods, approved by Decree of the Government of the Russian Federation dated January 19, 1998 N 55.

Based on them, documents for alcoholic products (waybills and certificates for them, certificates of conformity and quality certificates) must be located directly at the outlet. The seller must be ready to present them at the first request of the buyer or the regulatory authority. This is also evidenced by arbitrage practice(Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 12, 2010 in case N A29-11272 / 2008).

As for the "imputed" public catering, it includes the sale in restaurants and cafes of only purchased alcoholic beverages and beer, both in the packaging and packaging of the manufacturer, and without it (Letters of the Ministry of Finance of Russia dated 30.07.2009 N 03-11-06 / 3 / 199, of 16.06.2008 N 03-11-04/3/275 and of 17.12.2007 N 03-11-04/3/497). For more information on the taxation of the sale of alcoholic products, see Table. 1.

Table 1. Taxation of the sale of alcoholic products shares

Kind of activity	Taxation system
Production of alcoholic products and beer and their subsequent sale through a catering facility	This type of activity is not no catering services nor retail trade for the purpose of paying UTII, therefore, from the income received must pay taxes within the general systems or USN
Sale of alcoholic products and beer of own production through a retail network
Implementation via object catering purchased alcoholic beverages and beer	to "imputed" public services food
Sales through retail network of purchased alcoholic products and beer	This type of activity is to "imputed" retail trade

Production of cocktails and soft drinks

Production and sale of non-alcoholic drinks and cocktails, except for phyto-cocktails, obtained by mixing the relevant ingredients immediately before use in restaurants and cafes, are classified as catering services and are subject to taxation in the form of UTII.

Thus, freshly squeezed juices are produced by mechanical cooking of fruits and vegetables to give them new properties, which makes them suitable for consumption in the form of drinks. If subsequently these juices are sold through public catering facilities, then such activities are recognized as public catering services and transferred to the payment of UTII (Letter of the Ministry of Finance of Russia dated 04.28.2007 N 03-11-05 / 85).

But the preparation of teas, herbal cocktails, infusions, decoctions and other non-alcoholic beverages of plant origin used by visitors as strengthening medical drugs, according to the Russian Ministry of Finance, does not apply to public catering services (Letter of December 17, 2009 N 03-11-09 / 403 ). This is due to the fact that, in accordance with the All-Russian classifier of species economic activity, products and services (OKDP) production and consumption of drinks with the use of medicinal plant materials are phytotherapy services (code 8512503), which must be provided by polyclinics and private doctors.

Note. OKDP approved by the Decree of the State Standard of Russia of 08/06/1993 N 17.

The sale of oxygen cocktails will also be taxed under the general regime or the simplified taxation system. Let's explain why. According to Appendix N 1 to the Nomenclature classifier of medical devices and medical equipment (medical devices), approved by the Order of Roszdravnadzor dated 09.11.2007 N 3731-Pr / 07, special medical equipment is used to prepare oxygen cocktails, namely an apparatus for preparing singlet-oxygen mixtures (cocktails) (code 168 4408). Besides, State Register medicines of Roszdravnadzor determined the purpose of use and the formulation of the oxygen cocktail. Thus, an oxygen cocktail is recognized as a drug.

Organization of leisure in a cafe

Very often, the services of restaurants and cafes include activities to organize the leisure of visitors. And what about leisure services for the purpose of paying a single tax on imputed income? Let us turn to the All-Russian classifier of services to the population OK 002-93, approved by the Decree of the State Standard of Russia dated June 28, 1993 N 163. According to its provisions, leisure services include the organization of musical services, concerts, variety programs and video programs, the provision of newspapers, magazines, board games, gaming vending machines, billiards. A similar opinion is shared by the financial department (Letter of the Ministry of Finance of Russia dated August 31, 2006 N 03-11-04 / 3/399).

Note. The organization of leisure is not a mandatory criterion for classifying restaurants and cafes as UTII payers.

Take note. Payment for the public performance of musical works

So, restaurants and cafes, along with catering services, can provide leisure services for their visitors. Moreover, in relation to restaurants and cafes of the luxury class, the presence of a stage in which is a mandatory requirement, live music cannot be separated from catering services (GOST R 50762-2007 "Catering services. Classification of catering establishments" approved by the Order of Rostekhregulirovanie dated December 27 .2007 N 475-st). Therefore, charging a separate fee for live music in these catering facilities is illegal.

It is worth noting that in other restaurants and cafes, charging for live music is a direct violation of paragraph 2 of Art. 16 of the Law of the Russian Federation of 07.02.1992 N 2300-1 "On Protection of Consumer Rights", since the opportunity to use public catering services (ordering dishes) is made dependent on payment for live music.

An additional fee may be charged only for those services that the consumer can avoid without giving up the catering service. Therefore, when charging an additional fee for the public performance of musical works, if the visitor refuses to pay for this service, he must be offered another hall for the consumption of the ordered products.

However, for the recognition of leisure activities as catering services, it is not enough just to provide the above services. It is also necessary to take into account where the conditions for this are created (Table 2).

Table 2. Application of UTII in relation to leisure activities

Room features for leisure	Kind of activity	Taxation system
Venue for holding leisure constructively separated from the hall visitor service	Activity for leisure regarded as independent view entrepreneurial activities	Income received from implementation of the activities should be taxed under the general regime or USN
Site visitors catering can pass with snacks and (or) drinks in the premises for leisure or in these rooms are service tables	Activity for leisure regarded as accompanying services Catering	Activity for the organization of leisure visitors in this case recognized "imputed" services Catering

Determine the area of ​​the customer service hall

As you know, a modern restaurant or cafe often includes not only a hall for the consumption of cooked products, but also a dressing room, many corridors, a kitchen, a billiard room, a bowling alley, a dance floor or a stage. Therefore, "imputers" often have a question about what premises are included in the area of ​​​​the visitors' service hall when calculating UTII in relation to the provision of catering services. Let's try to figure it out.

According to Art. 346.27 of the Tax Code of the Russian Federation, the area of ​​\u200b\u200bthe visitor service hall is understood as area of ​​specially equipped premises(open areas) of a public catering facility intended for consumption finished culinary products, confectionery and (or) purchased goods, as well as for leisure. That is, areas where food consumption by visitors and their leisure activities (kitchen, places for serving dishes, utility rooms, etc.) are not provided for should not be taken into account in the area of ​​\u200b\u200bthe visitor service hall (Letters of the Ministry of Finance of Russia dated 03.02.2009 N 03-11 -06/3/19 and dated 03/21/2008 N 03-11-04/3/143).

In order to determine the indicated area, one should use the inventory and title documents (Article 347.27 of the Tax Code of the Russian Federation).

Recall that the inventory and title documents include any documents available to the taxpayer containing information on the appointment, design features and the layout of the premises of such an object, as well as information that confirms the right to use this object. It can be like a contract for the sale of non-residential premises, a technical passport for non-residential premises, plans, diagrams, explications, as well as a lease (sublease) agreement for non-residential premises or part (s) thereof, permission for the right to serve visitors in an open area and many other documents.

Thus, if the area of ​​the visitor service hall is allocated in the documents, then it is this area that must be taken into account when calculating the single tax on imputed income. If a restaurant or cafe uses a smaller area than indicated in the documents, then UTII can be calculated from the actual area used. However, in this case, in order to avoid disputes with regulatory authorities, we advise you to conduct a technical inventory and make appropriate changes to the documents. That is, clearly indicate in them exactly what area is intended for food consumption and leisure activities for customers (Letter of the Ministry of Finance of Russia dated 01.25.2010 N 03-11-06 / 3/8).

Note. A similar opinion is shared by the judges (Resolutions of the Federal Antimonopoly Service of the West Siberian District of March 29, 2010 in case No. A45-13412 / 2009, the Federal Antimonopoly Service of the Volga District of July 15, 2010 in case No. A12-20984 / 2009 and the Federal Antimonopoly Service of the Central District of December 19, 2007 in case No. A36-1291/2007).

By the way, according to the arbitrators, taxpayers can confirm the actual use of the area of ​​the catering facility with such documents as lease agreements, acts on redevelopment, repair or reconstruction, estimates of work performed, plans for leased premises (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated 08.10.2010 in the case N A27-673 / 2010 and the Federal Antimonopoly Service of the North Caucasus District dated January 26, 2010 in case N A63-5939 / 2009-C4-17).

When the Leisure Area is Included in the Visitors Hall Area

So, according to Art. 346.27 of the Tax Code of the Russian Federation, the area for leisure activities should be taken into account when determining the area of ​​the service hall. However, this provision does not always apply. If the premises intended for the provision of leisure services, structurally isolated from the premises in which public catering services are directly provided, then the area of ​​​​such premises not taken into account in the area of ​​the visitors' service hall(Letters of the Ministry of Finance of Russia dated March 26, 2010 N 03-11-06 / 3/46, dated April 15, 2010 N 03-11-06 / 3/60 and dated August 31, 2006 N 03-11-04 / 3/399).

Thus, if, for example, a billiard room is separated from the customer service hall, where food is consumed, by partitions and visitors cannot eat there, then the area intended for playing billiards is not taken into account in the area of ​​the customer service room.

Example 1 . OOO "Magnolia" provides catering services through the restaurant, which belongs to him on the right of ownership. The area of ​​the restaurant, according to the inventory and title documents, is 185 square meters. m, of which the kitchen occupies 17 sq. m, utility rooms - 19 sq. m, cashier's place and showcase - 5 sq. m. Are catering services subject to the taxation system in the form of UTII in this case? If so, what area of ​​the visitor service hall should be taken into account when calculating UTII?

Solution

In accordance with par. 20 st. 346.27 of the Tax Code of the Russian Federation, restaurants are catering facilities that have a customer service hall. Therefore, in order to apply UTII, it is necessary to have a visitor service hall of no more than 150 sq. m.

In accordance with the lease agreement, the entire occupied area is one catering facility. But since some of the premises are not used for eating and spending leisure time (kitchen, utility rooms, cashier's place and shop windows), the area of ​​​​the visitors' service hall will be 144 sq. m (185 sq. m - 17 sq. m - 19 sq. m - 5 sq. m). Thus, in this case, the restaurant has the right to switch to a taxation system in the form of UTII.

UTII payable will be calculated on the basis of the physical indicator "the area of ​​​​the visitor service hall (in square meters)" in the amount of 144 square meters. m.

If the restaurant (cafe) has several halls for serving visitors

In practice, such situations, when a restaurant or cafe uses several customer service halls to provide catering services, are quite common. How to determine the physical indicator in this case?

Based on the provisions of paragraphs. 8 p. 2 art. 346.26 of the Tax Code of the Russian Federation, the area of ​​\u200b\u200bthe hall or halls for serving visitors must be determined as a whole for the catering facility.

Thus, if a restaurant or cafe has several halls for serving visitors, then when calculating UTII, the total area of ​​\u200b\u200bthese halls will be taken into account (Letters of the Ministry of Finance of Russia dated 04/30/2009 N 03-11-06/3/116, dated 06/27/2008 N 03-11 -04/3/300 and dated 03/06/2007 N 03-11-04/3/63).

When considering disputes, judges accept the following circumstances as evidence that catering services are provided through one facility with several halls. Namely: the visitor service halls have common utility rooms, a common kitchen, common service personnel, a common cash register, etc. This conclusion is contained in the Resolutions of the Federal Antimonopoly Service of the North-Western District of February 11, 2010 in case N A26-3172 / 2009 and the Federal Antimonopoly Service of the Moscow District of 10/17/2007 No. КА-А41/9776-07.

If catering services are provided through several catering facilities, each of which has its own customer service hall, then when calculating UTII, the area of ​​the customer service hall must be considered separately for each facility. The presence of several catering facilities can be established on the basis of inventory and title documents (Letter of the Ministry of Finance of Russia dated March 30, 2007 N 03-11-04 / 3/98 and Resolution of the Federal Antimonopoly Service of the Volga District dated June 16, 2009 in case N A57-16468 / 2008).

Example 2 . Appetite Center LLC, which provides catering services, owns a restaurant, on one floor of which there is a visitor service hall with an area of ​​148 sq. m, and on the other - an area of ​​63.7 sq. m. According to the inventory and title documents, these premises have a single entrance, a common kitchen, and common utility rooms. Can an organization switch to a taxation system in the form of UTII?

Solution

Since in this case, according to the inventory and title documents, the customer service rooms are located in one restaurant and have a single entrance, a common kitchen, and single utility rooms, for the purposes of applying the taxation system in the form of UTII, the area must be determined in total for two service rooms.

Thus, the total area of ​​the customer service hall in the restaurant LLC "Center of Appetite" is 211.7 square meters. m (148 sq. m + 63.7 sq. m), that is, exceeds the established limit of 150 sq. m. m. Accordingly, the organization in relation to catering services is not entitled to switch to the payment of UTII.

We calculate the amount of the single tax

For activities related to the provision of catering services through restaurants and cafes, physical indicator is the area of ​​the visitor service hall(in square meters) and the basic yield is set at 1,000 rubles. per month per square meter.

Example 3 . Let's use the conditions of example 1 and assume that the company provides catering services on the territory of the city of Velikiye Luki. Calculate the amount of UTII payable for the 1st quarter of 2011.

Solution

In 2011, the value of K1 is 1.372. The value of K2 in the territory of Velikie Luki for this type of activity is 0.77.

The tax base for UTII for the 1st quarter of 2011 is 456,382.08 rubles. . The amount of the calculated UTII will be 68,457.31 rubles. (456,382 rubles x 15%).

By the way, the company has the right to reduce the amount of UTII payable by the amount of paid insurance premiums and paid sickness benefits, but not more than 50%.

Please clarify the issue related to the activities of the food court. How this system works, who works at these sites, working conditions, the application of OKVED and taxation systems.

Answer

The food court is largely a non-self-sustaining business and dependent on the mall. Working conditions at the food court should be found out in each case from the management of shopping centers.

In the food court system, an organization (kitchen) manufactures culinary products and sells them to consumers through a public catering facility (open area) that is in the use (ownership) of a third-party organization.

If the provision of public catering services does not create conditions for the consumption and (or) sale of finished culinary products, leisure activities, then the organization's entrepreneurial activity does not correspond to the concept of "public catering services" defined, and, therefore, is subject to the general taxation regime.

OKVED can be, for example, 55.30 - "Activity of restaurants and cafes."

Also, subject to the conditions in relation to the activity, the simplified tax system can be applied.

Rationale

From the Letter of the Ministry of Finance of Russia dated August 29, 2006 No. 03-11-04 / 3 / 391 [On the procedure for applying the provisions of Chapter 26.3 "The taxation system in the form of a single tax on imputed income for certain types of activities" tax code Russian Federation]

Question

Our organization - a tenant for the implementation of activities in the field of catering services entered into a lease agreement for the premises intended for the production and sale of culinary products and located on the fourth floor of the shopping and entertainment complex. In accordance with the lease agreement, we rent a room on the area of ​​​​which the direct preparation of dishes is carried out. There is no service hall on the leased territory. (The contract is attached) For the convenience of visitors, the landlord independently organized a specially equipped area where visitors consume the purchased culinary products. This area is also used by visitors to other catering facilities similar to ours and located next door on the same floor (the so-called "food court" system). The site and equipment on it belong to the lessor. The lease agreement between our organization and the landlord does not provide for payment for it, the use of this site and the equipment located on it.*

Visitors to the entertainment complex can either take the culinary products purchased from us or eat them at the site described above.

Nature of activity

Some organizations and entrepreneurs are expressly prohibited from using simplified taxation. For example, when their activities are related to insurance, microfinance or the production of excisable goods.*

Conditions for the use of USN

By general rule Only those who comply with the following quantitative and cost restrictions can apply simplified taxation: *

• ( , Tax Code of the Russian Federation);

The above conditions must be observed by both those who are already using simplified taxation, and those who are just going to switch to this regime (, Tax Code of the Russian Federation).

Income limit for those who want to switch to the simplified tax system

Starting from 2014, the income limit for switching to simplified taxation (45,000,000 rubles) is annually indexed to (). Previously established deflator coefficients are not taken into account when indexing.

The maximum amount of income for the transition to simplified taxation from the next year is determined by the formula:

For example, the maximum income for the nine months of 2016, which will allow the use of simplified taxation starting from 2017, is 59,805,000 rubles. (45,000,000 rubles × 1.329).*

Newly created organizations and first-time registered entrepreneurs have the right to apply simplified taxation from the date of tax registration (). Since such organizations (entrepreneurs) did not carry out any activity before registration, the restriction on the maximum amount of income does not apply to them.

Income limit for those who already apply the simplified tax system

Starting from 2014, the income limit for the further application of the special regime is 60,000,000 rubles, annually indexed to (). Previously established deflator coefficients are not taken into account when indexing.

The maximum amount of income that allows you to apply simplified tax during the year, determine by the formula: *

For example, in 2016, a taxpayer can apply simplified taxation until his income exceeds 79,740,000 rubles. (60,000,000 rubles × 1.329).*

This follows from the provisions of Article 346.13 of the Tax Code of the Russian Federation.

From the Decree, the Classifier of the State Standard of Russia dated November 6, 2001 No. 454-ST, OK 029-2001 (NACE rev. 1) “On the adoption and entry into force of OKVED (as amended on December 14, 2011)”

55.3	Restaurant activities
55.30	Activities of restaurants and cafes
	This grouping includes:*
	- production, sale and organization of consumption directly on the spot of culinary products, sale of drinks, sometimes accompanied by some form of entertainment programs:
	- restaurants and cafes with full restaurant service
	- self-service catering establishments
	- activities of snack bars (fast food enterprises)
	- provision of food in railway carriages - restaurants and on ships
	- sale of culinary products by restaurants and cafes outside the enterprise
	This grouping does not include:
	- vending machines, see

Composition of catering services

An organization providing public catering services in a municipality where the use of UTII is allowed for such activities may apply this special tax regime.

UTII covers a set of public catering services:

• for the manufacture of culinary products and (or) confectionery;

• creating conditions for the consumption and (or) sale of finished culinary products, confectionery and (or) purchased goods;

• spending leisure time.

This is stated in paragraph 19 of Article 346.27 of the Tax Code of the Russian Federation.

Catering services do not include the sale of products manufactured in vending machines (stationary and mobile). For the purposes of taxation of UTII, such activities are recognized as retail trade (Article 346.27 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated October 27, 2008 No. 03-11-04 / 3 / 483).

Situation: what relates to leisure services when calculating UTII from activities for the provision of catering services?

Leisure services in the calculation of UTII include entertainment for visitors to catering.

The Tax Code of the Russian Federation does not contain a definition of leisure services. To answer this question, one should turn to other branches of legislation (clause 1, article 11 of the Tax Code of the Russian Federation).

According to the classifier OK 002-93 (code 122500), leisure services include:

• music service, holding concerts, variety programs and video programs;

• provision of newspapers, magazines, board games, slot machines, billiards.

The organization of such entertainment events for visitors to public catering for the purpose of applying UTII is recognized as an activity in the field of public catering, subject to the simultaneous fulfillment of two conditions:

• leisure services are provided in the same premises as the catering services themselves (letters of the Ministry of Finance of Russia dated February 3, 2009 No. 03-11-06 / 3/19, dated February 9, 2006 No. 03-11-04 / 3 /75). Moreover, if, for example, billiards is separated from the bar by a light partition and visitors can go there with drinks and food, it is considered that leisure services (billiards) are provided in the catering premises (letter of the Ministry of Finance of Russia dated August 31, 2006 No. 03-11-04 /3/399);

• entertainment is not a separate type of activity of the organization, subject to taxation under other tax regimes.

Situation: does the sale of alcoholic beverages and cigarettes in a cafe refer to catering services when calculating UTII?

Yes, it does, except for alcoholic beverages and home-brewed beer.

UTII applies to catering services, including those provided through a cafe with a customer service hall with an area of ​​\u200b\u200bno more than 150 square meters. m (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). At the same time, catering services are understood, in particular, as activities for the sale of certain purchased goods (paragraph 19 of article 346.27 of the Tax Code of the Russian Federation). These include alcoholic beverages and cigarettes purchased for resale. The sale of purchased food and beverages, including alcoholic beverages, both in packaging and packaging, and without them, at public catering outlets does not apply to retail trade. Thus, their sale, if it occurs through catering facilities, is included in catering services. So, in relation to these services, the organization can apply UTII.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated November 7, 2014 No. 03-11-11 / 56159.

The sale of alcoholic beverages and beer of own production is not transferred to UTII. From these operations, the organization must pay taxes under the general taxation system. This procedure is provided for by subparagraph 8 of paragraph 2 of Article 346.26 and paragraph 19 of Article 346.27 of the Tax Code.

UTII payers

UTII can be paid from catering services:

• organizations (entrepreneurs) that carry out this activity through visitor service halls, the area of ​​​​which does not exceed 150 square meters. m for each item. For example, cafes, restaurants, canteens, snack bars, bars;

• organizations (entrepreneurs) that organize meals for visitors in facilities that do not have visitor service halls. These include kiosks, tents, as well as culinary shops (departments) at restaurants, bars, cafes, canteens, eateries, etc.

Advice: if it is beneficial for an organization to apply UTII, and the area of ​​​​the visitor service hall exceeds 150 sq. m, try to reduce this figure. For example, part of the premises can be rented out.

The leased areas will not have to be taken into account when calculating the limit value, which limits the use of UTII, and the organization will be able to switch to this tax regime (letter of the Ministry of Finance of Russia dated November 25, 2004 No. 03-06-05-04 / 57). However, rental income will have to pay taxes in accordance with the general or simplified taxation system.

In addition, UTII can be used by educational, medical and social institutions that receive income from the provision of catering services.

An exception to this rule is catering services that simultaneously meet the following criteria:

• are a prerequisite for the functioning of such institutions (for example, providing food for patients in hospitals or children attending preschool educational institutions);

• find themselves in facilities with a visitor service hall with an area of ​​​​not more than 150 square meters. m;

• are provided directly by the institution itself (cooking food and creating conditions for its consumption is provided by the employees of the institution).

If an educational, medical or social institution provides meals to its employees (for example, doctors, educators or technical staff) for a fee, then such activities are also not transferred to UTII. Depending on the applicable taxation system, income tax or a single tax with simplification must be paid on the income received.

This procedure follows from the provisions of subparagraphs 8, 9 of paragraph 2, as well as subparagraph 4 of paragraph 2.2 of Article 346.26 of the Tax Code and is confirmed in letters from the Ministry of Finance of Russia dated October 28, 2009 No. 03-11-06 / 3/255, dated October 26, 2009 No. 03-11-06/3/251.

When providing catering services, payers of the unified agricultural tax who sell products of their own production through catering facilities are not entitled to apply UTII (clause 2.1 of article 346.26 of the Tax Code of the Russian Federation).

Conditions for the use of UTII

It is possible to use UTII in the provision of catering services, regardless of what form of settlement with the visitor the organization (entrepreneur) uses. It can be cash, non-cash, using plastic cards or a mixed form (letters of the Ministry of Finance of Russia dated December 24, 2007 No. 03-11-04 / 3/516 and dated February 22, 2007 No. 03-11-05 / 34).

It also does not matter who orders and pays for services - individuals, organizations or entrepreneurs (letter of the Ministry of Finance of Russia dated August 9, 2013 No. 03-11-06 / 3 / 32245). So, it is possible to apply UTII even if the organization provides catering services on the basis of a state or municipal contract (letter of the Ministry of Finance of Russia dated May 21, 2013 No. 03-11-11 / 17969).

Situation: Does it fall under UTII activity an organization that provides catering services in two cafes? The area of ​​halls of service of visitors: in one cafe - 70 sq.m. m, in the other - 200 sq. m.

It does, but only for one object.

The right of an organization to pay UTII when providing catering services through facilities with an area of ​​\u200b\u200bno more than 150 square meters. m does not depend on whether it conducts similar activities through objects whose area exceeds the specified limit (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). Therefore, from the activities of the cafe, in which the area of ​​\u200b\u200bthe customer service hall is 70 square meters. m, pay UTII.

Provision of catering services through facilities with an area of ​​more than 150 sq. m is not subject to transfer to UTII. Consequently, taxes must be paid from the activities of the second cafe according to the general taxation system or according to simplified taxation (clause 7 of article 346.26, clause 4 of article 346.12 of the Tax Code of the Russian Federation). A similar point of view is stated in the letter of the Federal Tax Service of Russia dated March 9, 2005 No. 22-1-12 / 315.

Situation: does the activity of an Internet cafe fall under UTII?

It is eligible if, in addition to accessing the Internet, visitors can use catering services.

Thus, the answer to this question depends on the nature of the services that an Internet cafe provides to visitors.

If visitors receive only access to the Internet, then from such activities the organization must pay taxes under the general taxation system or a single tax with simplification. If, in addition to accessing the Internet, visitors can use catering services, then such activities can be transferred to UTII. Provided that catering services meet the criteria established in subparagraphs 8 or 9 of paragraph 2 of article 346.26 of the Tax Code of the Russian Federation, and in the municipality where the Internet cafe is located, these services are subject to UTII (clause 1 of article 346.26 of the Tax Code of the Russian Federation).

A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated May 7, 2007 No. 03-11-04/3/148.

Situation: do services for the delivery of home-made hot meals on consumer orders (to offices, residential premises, etc.) fall under UTII??

No, they don't.

In terms of their content, such services do not meet the requirements that tax legislation imposes on activities in the field of catering and retail trade.

Organizations providing catering services can apply UTII only under certain conditions. They are given in subparagraphs 8 and 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. So, UTII can be paid by public catering organizations with a service hall area of ​​\u200b\u200bno more than 150 square meters. m or selling food products through facilities that do not have a customer service hall. The latter include kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars, etc. products on site. Offices, residences and other similar places specified in orders for the delivery of hot meals cannot be recognized as catering facilities. Thus, the delivery of hot meals at the location of customers (to offices, to homes) does not comply with the conditions for the use of UTII in the provision of catering services.

It should be noted that for the purposes of UTII, the sale of products of own production is not recognized as retail (paragraph 12 of article 346.27 of the Tax Code of the Russian Federation). Therefore, even if we consider the sale of food at the location of customers as the sale of goods at retail, in relation to such activities it is necessary to apply a general or simplified system of taxation.

Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated May 26, 2014 No. 03-11-06/3/24936, dated May 2, 2012 No. 03-11-06/3/29.

Advice: there are arguments that allow organizations to apply UTII in relation to services for the delivery of hot meals of their own manufacture at the location of customers. They are as follows.

UTII covers the totality of such types of public catering services as:

• services for the manufacture of culinary products and (or) confectionery;

• services for creating conditions for the consumption and (or) sale of finished culinary products, confectionery and (or) purchased goods;

• leisure services.

This is stated in article 346.27 of the Tax Code of the Russian Federation.

An integral part of the activity for the provision of catering services may be the delivery of finished culinary products to customers at their location. If the provision of such services is provided for by contracts concluded by a catering organization, then they are also subject to UTII (subject to other conditions). Some arbitration courts recognize the legitimacy of this approach (see, for example, the decision of the Federal Antimonopoly Service of the West Siberian District of April 14, 2009 No. F04-2196 / 2009 (4457-A67-19)).

Situation: does UTII cover the provision of catering services in restaurants operating on trains or on ships?

No, it doesn't.

Activities for the provision of catering services can be transferred to UTII:

• through facilities with visitor service halls (no more than 150 sq. m);

• through facilities that do not have visitor service halls.

This is stated in subparagraphs 8 and 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation.

Restaurant cars and restaurants on motor ships have service halls. However, for the purpose of applying UTII, a building (part of it) or a building that has a specially equipped room for eating and organizing leisure activities is recognized as a catering facility with a customer service hall (Article 346.27 of the Tax Code of the Russian Federation). According to the All-Russian Classifier of Fixed Assets, vehicles (trains, motor ships) do not belong to buildings or structures. Therefore, activities for the provision of catering services in restaurants that operate on trains or on ships are not transferred to the payment of UTII. Similar explanations are contained in the letters of the Ministry of Finance of Russia dated June 15, 2007 No. 03-11-04/3/218 and dated December 5, 2006 No. 03-11-04/3/524. Some courts share the point of view of the financial department (see, for example, the decision of the Federal Antimonopoly Service of the North-Western District of January 14, 2010 No. А56-20453 / 2008).

Advice: there are arguments that allow the use of UTII in the provision of catering services in restaurants operating on trains or on ships. They are as follows.

First, according to the All-Russian Classifier of Fixed Assets, vehicles include vehicles designed to move people and goods. The main purpose of dining cars and restaurants on motor ships is to provide catering services, and not to transport people and goods. Such facilities can be considered mobile catering establishments and classified as buildings (similar to stationary catering facilities), and not Vehicle. This is discussed in the introduction to the OKOF.

Secondly, the main criterion for the belonging of mobile restaurants to catering facilities is the activities that the organization conducts using these facilities. It does not follow from the provisions of articles 346.26 and 346.27 of the Tax Code of the Russian Federation that catering facilities must be located in real estate. That is, the activities of restaurants operating on trains or on ships may fall under UTII. There are examples in arbitration practice judgments, confirming the legitimacy of such an approach (see, for example, paragraph 5 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 5, 2013 No. 157, the determination of the Supreme Arbitration Court of the Russian Federation of May 25, 2009 No. VAS-4430/09, the decision of the Federal Antimonopoly Service of the Urals District of 15 December 2008 No. Ф09-9263/08-С2).

It should be noted that in connection with the release of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157, arbitration practice on this issue should become uniform.

Situation: does it fall under the organization for the production and sale of culinary products (confectionery)? There is no hall for customer service in the retail space.

The answer to this question depends on whether the trade organization creates conditions for the consumption of manufactured products.

The sale of products of own production does not apply to retail trade (paragraph 12 of article 346.27 of the Tax Code of the Russian Federation). Therefore, in relation to the activities for the sale of culinary products (confectionery) manufactured by a trade organization, the UTII regime provided for by subparagraphs 6 and 7 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation (retail trade) does not apply.

In the situation under consideration, the sale of culinary products (confectionery) of own production can be qualified as an activity for the provision of catering services through facilities that do not have visitor service halls. In relation to such activities, the use of UTII is also allowed. However, this requires that, in addition to selling food products, the organization creates conditions for visitors to consume them on the spot (for example, places tables for eating next to the trading place, provides visitors with cutlery). This procedure follows from the provisions of subparagraph 9 of paragraph 2 of Article 346.26, paragraphs 22 and 24 of Article 346.27 of the Tax Code of the Russian Federation.

Therefore, if a trade organization creates conditions for the consumption of manufactured culinary products (confectionery), it can apply UTII on the basis of subparagraph 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. If such conditions are not created, taxes must be paid on the production and sale of culinary products (confectionery) in accordance with the general or simplified taxation system.

Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated October 3, 2013 No. 03-11-11 / 41042, dated May 17, 2013 No. 03-11-11 / 161, dated January 23, 2012 No. 03-11-11 / 10, July 1, 2009 No. 03-11-09/233, January 26, 2009 No. 03-11-06/3/10. In arbitration practice, there are examples of court decisions confirming the legitimacy of such an approach (see, for example, the decision of the Federal Antimonopoly Service of the Central District dated March 26, 2013 No. A54-4101 / 2012).

Situation: what taxes should the hotel pay on OSNO on the cost of breakfast, which it included in the cost of living? The activity of the restaurant opened at the hotel was transferred to UTII.

From the cost of catering services, which are included in the cost of hotel services, you need to pay taxes provided for by the general taxation system. That is - VAT and income tax.

This follows from the provisions of paragraph 2 of article 153 and paragraph 2 of article 248 of the Tax Code, according to which the revenue (income) that forms tax base, is determined on the basis of all receipts related to settlements for goods (works, services) sold.

Since the cost of breakfast is included in the price of the room and is paid by the guest according to a single document (invoice, receipts, etc.), there are no grounds to exclude it from the revenue from hotel activities. Accordingly, there are no grounds for recognizing income from the sale of breakfasts received as part of activities transferred to UTII. The amount of UTII that the organization pays from the operation of the restaurant is calculated based on the area of ​​\u200b\u200bthe customer service hall (clause 3 of article 346.29 of the Tax Code of the Russian Federation). This amount does not depend on the number and cost of catering services, therefore double taxation does not occur in the situation under consideration.

Economically justified and documented expenses associated with the provision of breakfasts reduce the revenue from the provision of hotel services (clause 1, article 252 of the Tax Code of the Russian Federation). The input tax from the cost of food products used for preparing breakfasts is deductible (subclause 1, clause 2, article 171 of the Tax Code of the Russian Federation). However, an organization can use both rights only if it keeps separate records of income, expenses and input VAT associated with different types of activities (clause 7 of article 346.26, clause 9 of article 274, clause 4 of article 170 of the Tax Code RF). In particular, an organization can apply a VAT deduction provided that the input tax on products that are spent on preparing breakfasts and on providing other catering services (within the framework of UTII) is accounted for separately. This follows from paragraph 4 of Article 170 of the Tax Code.

Attention: the lack of separate accounting for income and expenses associated with activities under the general taxation system and UTII can serve as a basis for bringing the organization to tax and administrative liability (Article 120 of the Tax Code of the Russian Federation, Article 15.11 of the Code of Administrative Offenses of the Russian Federation).

Advice: To reduce the tax base for VAT and income tax, exclude the proceeds from the sale of breakfast from the cost of hotel services. To do this, organize separate accounting for income and expenses related to the provision of hotel services (excluding the cost of breakfast) and catering services.

Fix the method of maintaining separate accounting in accounting policy organizations for tax purposes (clauses 6 and 7 of article 346.26 of the Tax Code of the Russian Federation). The provision of breakfasts can be attributed to the additional services provided by the hotel (subparagraph "h" of paragraph 10 of the Rules approved by Decree of the Government of the Russian Federation of October 9, 2015 No. 1085). The cost of additional services (providing breakfast to hotel guests) is better reflected in separate primary documents.

The procedure for calculating UTII

The procedure for calculating UTII from catering services depends on whether the catering facility has a customer service hall or not.

Availability of a service hall

If the catering facility has a customer service hall (canteens, cafes and restaurants), the physical indicator for calculating UTII is the area of ​​the service hall (clause 3, article 346.29 of the Tax Code of the Russian Federation). It should not be more than 150 sq. m (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). The indicator of basic profitability for this type of activity is 1000 rubles. per month for 1 sq. m of the area of ​​​​the hall (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

Information on the area of ​​​​the premises where catering services are provided, take from the inventory and title documents (Article 346.27 of the Tax Code of the Russian Federation). For example, a technical passport for non-residential premises, a contract for the sale of premises, plans, schemes, explications, a lease (sublease) agreement for premises or part (s) thereof, permission for the right to serve visitors in an open area, etc. (letters from the Ministry of Finance of Russia dated August 29, 2012 No. 03-11-11/259, dated August 8, 2012 No. 03-11-11/231).

Situation: what premises belong to the visitor service hall when calculating UTII for catering services?

The concepts of "catering facility" and "area of ​​the service hall" should be distinguished.

A catering facility means a building (part of it) or a structure that has a specially equipped room (open area) for the provision of catering services. This is a specially equipped place and is a visitor service hall. This is stated in article 346.27 of the Tax Code of the Russian Federation.

Thus, the object of the catering organization is a complex that includes production, administrative, utility, and other premises necessary for doing business. While the service hall is only a part of this room, where the direct service of visitors takes place. The area of ​​\u200b\u200bthe service hall is the indicator that is used when calculating UTII. When determining the area of ​​the service hall, do not take into account the kitchen, distribution and heating areas finished products, the place of the cashier, as well as utility rooms (see, for example, letters from the Ministry of Finance of Russia dated March 21, 2008 No. 03-11-04 / 3/143, the Federal Tax Service of Russia for the Moscow Region dated May 2, 2006 No. 22-19- I / 0192, resolutions of the Federal Antimonopoly Service of the Urals District of November 15, 2007 No. F09-8749 / 07-S3, of the Central District of December 19, 2007 No. A36-1291 / 2007, of the Volga District of June 26, 2007 No. A65-17953 /2006-CA1-19).

When calculating UTII, take into account not only your own, but also rented areas. Do not include in the calculation only those that are leased (sublease) or not used (for example, are under repair). This is stated in the letter of the Ministry of Finance of Russia dated November 25, 2004 No. 03-06-05-04 / 57.

If, according to the inventory documents, for the provision of catering services, a room is used, parts of which are not structurally separated from each other and are located in one property, then when calculating UTII, the total area of ​​\u200b\u200bthe premises should be taken into account (letter of the Ministry of Finance of Russia dated March 31, 2011 No. 03-11- 06/3/38). For example, the calculation of the tax should also include the areas of leisure facilities (billiard rooms, dance halls, etc.) and open areas that are combined (combined) with the visitor service hall. This follows from the letters of the Ministry of Finance of Russia dated August 31, 2006 No. 03-11-04 / 3/399 and the Federal Tax Service of Russia for the Moscow Region dated May 2, 2006 No. 22-19-I / 0192.

If the places of leisure are structurally separated from the visitor service hall, do not take into account their area when calculating UTII (letter of the Ministry of Finance of Russia dated July 8, 2008 No. 03-11-03 / 14).

Situation: when calculating UTII for catering services, is it necessary to take into account the area of ​​\u200b\u200bthe summer cafe located in front of the restaurant? Tables for visitors are located in the open area. Guests are served by the restaurant staff.

Yes need.

Include the area of ​​the summer cafe in the calculation of the total area of ​​the restaurant. If the resulting figure exceeds 150 sq. m, refuse to use UTII.

In the situation under consideration, a cafe, which in the summer is located on the territory adjacent to the restaurant, should be qualified as an open area - a place specially equipped for public catering located on a land plot (paragraph 25 of article 346.27 of the Tax Code of the Russian Federation). The area of ​​such facilities in public catering organizations is recognized as part of the visitor service hall (paragraph 23 of article 346.27 of the Tax Code of the Russian Federation).

Since the visitors of the summer cafe are served by the restaurant staff, the independent functioning of the open area is impossible. Consequently, the restaurant and the outdoor area of ​​the summer cafe are recognized as a single catering facility. In this case, the total area of ​​​​the visitor service hall for calculating UTII is determined as the sum of all areas used by the organization. Such clarifications are contained in the letter of the Ministry of Finance of Russia dated March 19, 2013 No. 03-11-06/3/8505.

The area of ​​​​the territory on which an open cafe is organized in the summer is determined on the basis of any title and inventory documents available to the organization. For example, under a lease agreement land plot under a summer cafe or permits for the right to serve visitors in an open area. This conclusion is confirmed by the provisions of paragraph 24 of Article 346.27 of the Tax Code of the Russian Federation.

If the total area of ​​the visitor service hall (the area of ​​the restaurant hall and summer cafe) exceeds 150 sq. m, the organization must abandon the use of UTII and switch to another tax regime. This follows from the provisions of subparagraph 8 of paragraph 2 of article 346.26 and paragraph 3 of paragraph 3 of article 346.28 of the Tax Code of the Russian Federation.

Catering enterprises with several objects of their activity must calculate the area of ​​​​the service hall for each of them separately (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). At the same time, all catering facilities must be separated in the inventory and title documents. Otherwise, they should be considered as a single complex, and when determining the area of ​​the service hall, the total area of ​​all objects should be taken into account. This follows from the letters of the Ministry of Finance of Russia dated January 31, 2006 No. 03-11-04 / 3/51, dated July 26, 2005 No. 03-11-04 / 3/34.

No service hall

If the catering facility does not have a customer service hall (kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, eateries, etc.), the physical indicator for calculating UTII is the number of employees, including an individual entrepreneur (p. 3 article 346.29 of the Tax Code of the Russian Federation). The value of the basic profitability for this type of activity is 4500 rubles. per month from each employee (clause 3 of article 346.29 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated April 8, 2008 No. 03-11-04 / 3/182).

UTII tax is payable quarterly. Accordingly, information about the size of UTII in a particular quarter should be reflected in tax return and billed quarterly. There is nothing complicated in this calculation, but certain nuances must be taken into account. What you need to consider and how to calculate UTII for catering (cafes, eateries, pizzerias, restaurants, etc.), we will tell in this article.

The formula for calculating UTII for catering.

The calculation of UTII for catering is done according to the general formula:

Nenvd \u003d BD x (FP1 + FP2 + FP3) x K1 x K2 x Nst

Nenvd	The amount of UTII tax for the corresponding quarter
DB	basic return
FP1	physical indicator in the 1st month of the quarter
FP2	physical indicator in the 2nd month of the quarter
FP3	physical indicator in the 3rd month of the quarter
K1	correction factor K1 (coefficient-deflator)
K2	correction factor K2
Nst	UTII tax rate

Please note that this formula is not suitable for all cases. If an individual entrepreneur or company was in the status of a UTII payer, not all taxable period(the corresponding quarter), for example, due to the registration of your business or the termination of activities in the middle of the quarter, then the calculation of UTII is done in proportion to this time. See how to do it.

Before proceeding to the actual calculations, a few words about the components of this formula.

Basic return and physical indicator for catering services.

For different catering facilities, the database and FP are different. For catering facilities with service hall The database is 1,000 rubles. from each meter of the service hall (1,000 rubles -, and 1 sq. M. - a physical indicator). For example, for a cafe with a service hall measuring 50 sq. m. DB x FP will be 50,000 rubles. (50 sq. m. x 1,000 rubles) for 1 full month.

For catering facilities no service rooms The database is set at 4,500 rubles, and the FP determines the number of employees (including the IP itself). For example, for a diner with 2 employees, DB x FP will be 4,500 rubles. x 2 \u003d 9,000 rubles. for 1 full month.

If the owner of the diner is an individual entrepreneur, then it will also need to be taken into account in the calculation of UTII. DB x FP will then be 4,500 rubles. x 3 \u003d 13,500 rubles. for 1 full month.

Adjusting coefficients K1, K2 and tax rate for public catering.

As for the coefficient K1, the so-called deflator coefficient, then it is annually . In 2016, K1 is set at 1.798. This coefficient is the same throughout the Russian Federation and is valid throughout the year.

But the K2 coefficient is set by local authorities in order to take into account the peculiarities of doing business in the relevant territory. To find its values, you need to familiarize yourself with the decisions of local representative bodies. This can be done using the official website of Nalog.Ru. See more about this.

With regard to the tax rate, it should be taken into account that local authorities can set in the range from 7.5% to 15%. If such local decisions are not made, then the rate of 15% established by the Tax Code of the Russian Federation applies. To learn how, without leaving your home, to find out what tax rates apply in the area you are interested in, see the video below.

An example of calculating UTII for catering with a hall.

Let's assume that LLC "Phoenix" has a cafe in Nalchik, which employs 5 employees, with a service area of ​​50 square meters. m. The coefficient K2 in the city of Nalchik for this activity is 0.79. Let's calculate UTII for a cafe for the 3rd quarter of 2016.

• Nenvd =
• BD x (FP1 + FP2 + FP3) x K1 x K2 x 15% =
• 1,000 x (50 + 50 + 50) x 1.798 x 0.79 x 0.15 =
• RUB 31,959.45

An example of calculating the UTII tax for catering without a service hall.

Let's say an individual entrepreneur has a snack bar without a service hall with an area of ​​​​8 square meters. m. with 2 employees. The coefficient K2 is 0.5. tax rate 12 %. We will calculate the tax for the 3rd quarter.

• Nenvd =
• BD x (FP1 + FP2 + FP3) x K1 x K2 x 12% =
• 4,500 x (3 + 3 + 3) x 1.798 x 0.5 x 0.12 =
• RUB 4,369.14

What is more profitable?

Public catering services can be carried out not only on UTII, but also in other tax regimes (