Definition of the taxpayer as a condition for establishing taxes. Conditions under which the tax is considered established

A tax is considered established only when the taxpayers and elements of taxation are determined, namely:

Object of taxation;

The tax base;

Taxable period;

tax rate;

The procedure for calculating tax;

Procedure and terms of tax payment.

Taxpayers and payers of fees organizations and individuals who, in accordance with the Tax Code of the Russian Federation, are obliged to pay taxes and (or) fees, respectively, are recognized.

In some cases, the subjects of tax legal relations are tax agents- persons who, in accordance with the Tax Code, are responsible for accruing, withholding from taxpayers and transferring taxes to the appropriate budget (off-budget fund). Income tax agents individuals(personal income tax) of most categories of taxpayers are employers, other organizations that are a source of income for individuals.

Objects of taxation may be transactions for the sale of goods (works, services), property, profit, income, the cost of goods sold (work performed, services rendered) or another object that has cost, quantitative or physical characteristics, with the presence of which the taxpayer has legislation on taxes and fees connects the obligation to pay tax. Each tax has an independent object of taxation, determined in accordance with the Tax Code of the Russian Federation.

The tax base represents the cost, physical or other characteristics of the object of taxation.

tax rate represents the amount of tax charges per unit of measurement tax base. The tax base and the procedure for its determination, as well as tax rates for federal taxes set by NK.

In the cases specified in the Code, the rates federal taxes may be set by the government Russian Federation in the manner and within the limits determined by the Code.

The tax base and the procedure for its determination by regional and local taxes set by NK. Tax rates for regional and local taxes are established by the laws of the constituent entities of the Russian Federation, regulatory legal acts of representative bodies of local self-government, within the limits established by the Code.

Procedure for calculating tax. The taxpayer independently calculates the amount of tax payable for taxable period based on the tax base, tax rate and tax benefits.

In cases stipulated by the legislation of the Russian Federation on taxes and fees, the obligation to calculate the amount of tax may be assigned to tax authority or tax agent. In these cases, no later than 30 days before the due date for payment, the tax authority sends a tax notice to the taxpayer. IN tax notice the amount of the tax to be paid, the calculation of the tax base, and the deadline for paying the tax must be indicated.

Under tax period refers to a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. A tax period may consist of one or more reporting periods, following which advance payments are made.

Deadlines for paying taxes and fees set for each tax and duty.

When paying a tax and a fee in violation of the deadline for payment, the taxpayer (payer of the fee) shall pay penalties in the manner and on the terms provided for by the Tax Code.

The deadlines for paying taxes and fees are determined by the calendar date or the expiration of a period of time calculated in years, quarters, months, weeks and days, as well as an indication of an event that must occur or occur, or an action that must be performed.

In cases where the calculation of the tax base is made by the tax authority, the obligation to pay tax arises no earlier than the date of receipt of the tax notice.

General mode

General tax regime is the main tax regime for legal entities and individual entrepreneurs. The traditional system is mandatory applied by those taxpayers whose conditions do not fit any taxation system. In addition, subject to conditions, if you do not notify tax office on the transition to a special tax regime, then the general tax regime will apply to you as an individual entrepreneur or to your organization automatically.

The main taxes paid under the general regime:

value added tax,

corporate property tax,

Income tax of organizations (except for individual entrepreneurs),

Personal income tax.

The main feature of the general taxation regime is the need to record, calculate and pay VAT. Many organizations using common system taxation, refuse to work with counterparties that are exempt from VAT.

2. special tax regimes. They provide for a special procedure for determining the elements of taxation, as well as exemption from the obligation to pay certain taxes and fees. These modes include:

1) simplified taxation system;

2) the system of taxation in the form of a single tax on imputed income for certain types of activities;

3) taxation system for agricultural producers;

4) the system of taxation in the implementation of production sharing agreements;

5) patent system taxation.

When applying any special taxation regime, enterprises pay single tax , which is calculated differently for each of the three special regimes (USN, UTII and ESHN). At the same time, taxpayers are exempted from paying VAT (except for VAT payable when goods are imported into the customs territory of the Russian Federation), property tax, income tax and UST. Exemption from paying certain types of taxes is the main advantage of applying special regimes.

Taxpayers (payers of fees) are organizations and individuals who are obligated to pay taxes (fees).

In some cases, the tax may be shifted by the payer (subject) to another person, who is thus its ultimate payer, or tax bearer.

Tax agents - persons who are responsible for calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation.

Elements of taxation:

object of taxation;

the tax base;

taxable period;

tax rate;

the procedure for calculating the tax;

procedure and terms of tax payment.

tax incentives and the reasons for their use.

The object of taxation is the sale of goods (works, services), property, profit, income, expense or other circumstance that has a cost, quantitative or physical characteristic, with the presence of which the legislation on taxes and fees connects the taxpayer's obligation to pay tax.

Each tax has an independent object of taxation, determined in accordance with paragraph 2 of the Tax Code.

Under property the Code refers to the types of objects of civil rights (with the exception of property rights) related to property in accordance with the Civil Code of the Russian Federation.

Commodity for the purposes of this Code, any property sold or intended for sale is recognized. In order to regulate relations related to the collection of customs payments, other property, determined by the Customs Code of the Russian Federation, also applies to goods.

work for taxation purposes, an activity is recognized, the results of which have a material expression and can be implemented to meet the needs of an organization and (or) individuals.

service for the purposes of taxation, an activity is recognized, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity.

Implementation goods, works or services, an organization or an individual entrepreneur shall recognize, respectively, the transfer on a reimbursable basis (including the exchange of goods, works or services) of the ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another person, and in cases provided for by this Code, the transfer of ownership of goods, the results of work performed by one person for another person, the provision of services by one person to another person - free of charge.

It is not recognized as the sale of goods, works or services: for example, the transfer of property, if such a transfer is of an investment nature (in particular, contributions to the authorized (share) capital of business companies and partnerships, contributions under a simple partnership agreement (joint activity agreement), share contributions V mutual funds cooperatives).

For taxation purposes, the price of goods, works or services specified by the parties to the transaction is accepted. It is assumed that this price corresponds to the level of market prices.

The tax authorities, when exercising control over the completeness of the calculation of taxes, have the right to check the correctness of the application of transaction prices (Article 40):

1) between related persons;

2) on commodity exchange (barter) transactions;

3) when making foreign trade transactions;

4) with a deviation of more than 20 percent upwards or downwards from the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

The tax base is the cost, physical or other characteristics of the object of taxation.

Taxpayers-organizations calculate the tax base at the end of each tax period based on register data accounting and (or) on the basis of other documented data on objects subject to taxation or related to taxation.

If errors (distortions) are found in the calculation of the tax base relating to previous tax (reporting) periods, in the current tax (reporting) period, the tax base and the amount of tax are recalculated for the period in which the indicated errors(distortion). If it is impossible to determine the period of errors (distortions), the recalculation of the tax base and the amount of tax is carried out for the tax (reporting) period in which errors (distortions) are revealed.

Individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices calculate the tax base at the end of each tax period based on income and expense accounting data and business transactions in order

Other taxpayers - individuals calculate the tax base on the basis of information received in established cases from organizations and (or) individuals on the amounts of income paid to them, on objects of taxation, as well as data own accounting income received, objects of taxation, carried out in arbitrary forms.

Tax period - a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. A tax period may consist of one or more reporting periods.

If the organization was created after the beginning of the calendar year, the first tax period for it is the period from the date of its creation to the end of this year. In this case, the day of establishment of the organization is recognized as the day of its state registration.

When an organization is created on a day falling within the time period from December 1 to December 31, the first tax period for it is the period from the date of creation to the end of the calendar year following the year of creation.

The tax rate is the amount of tax charges per unit of measurement of the tax base.

The procedure and terms for paying taxes and fees are established for each tax and fee.

The deadlines for paying taxes and fees are determined by the calendar date or the expiration of a period of time calculated in years, quarters, months and days, as well as an indication of an event that must occur or occur, or an action that must be performed. If the tax base is calculated by the tax authority, then not earlier than the date of receipt of the tax notice.

Tax is paid in cash or non-cash form. Organizations pay taxes in a non-cash form from their current account. The payment of tax is made by a single payment of the entire amount of tax, or it may be provided for the payment during the tax period of preliminary tax payments - advance payments.

When paying a tax and a fee with a violation of the payment deadline, the taxpayer (payer of the fee) pays penalties in accordance with the Tax Code. The amount of penalty interest is paid in addition to the amounts of tax or fee due. The fine is charged for each calendar day of delay in the performance of the obligation, starting from the day following the day set for payment. It is determined from the unpaid amount of tax or fee as 1/300 of the refinancing rate of the Central Bank effective at that time.

Taxpayers (payers of fees) are organizations and individuals who are obligated to pay taxes (fees).

Tax agents - persons who are responsible for calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation.

Elements of taxation:

object of taxation;

the tax base;

taxable period;

tax rate;

the procedure for calculating the tax;

procedure and terms of tax payment.

tax incentives and grounds for their use.

Each tax has an independent object of taxation, determined in accordance with paragraph 2 of the Tax Code.

Under property the Code refers to the types of objects of civil rights (with the exception of property rights) related to property in accordance with the Civil Code of the Russian Federation.

work for taxation purposes, an activity is recognized, the results of which have a material expression and can be implemented to meet the needs of an organization and (or) individuals.

service for the purposes of taxation, an activity is recognized, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity.

For taxation purposes, the price of goods, works or services specified by the parties to the transaction is accepted. It is assumed that this price corresponds to the level of market prices.

The tax authorities, when exercising control over the completeness of the calculation of taxes, have the right to check the correctness of the application of transaction prices (Article 40):

1) between related persons;

2) on commodity exchange (barter) transactions;

3) when making foreign trade transactions;

4) with a deviation of more than 20 percent upwards or downwards from the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

The tax base is the cost, physical or other characteristics of the object of taxation.

Taxpaying organizations calculate the tax base at the end of each tax period based on the data of accounting registers and (or) on the basis of other documented data on objects subject to taxation or related to taxation.

If errors (distortions) are found in the calculation of the tax base relating to previous tax (reporting) periods, in the current tax (reporting) period, the tax base and the amount of tax are recalculated for the period in which the indicated errors (distortions) were committed. If it is impossible to determine the period of errors (distortions), the recalculation of the tax base and the amount of tax is carried out for the tax (reporting) period in which errors (distortions) are revealed.

Individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices calculate the tax base at the end of each tax period on the basis of income and expense accounting data and business transactions in the manner

The remaining taxpayers - individuals calculate the tax base on the basis of information received in established cases from organizations and (or) individuals on the amounts of income paid to them, on objects of taxation, as well as data on their own accounting of income received, objects of taxation, carried out in arbitrary forms.

The tax rate is the amount of tax charges per unit of measurement of the tax base.

The procedure and terms for paying taxes and fees are established for each tax and fee.

The tax is considered established only if the taxpayers and elements of taxation are precisely defined, namely:

1) object of taxation;

2) tax base;

3) tax period;

4) tax rate;

5) the procedure for calculating the tax;

6) procedure and terms for tax payment.

In necessary cases, when establishing a tax, an act of legislation on taxes and fees may also provide for tax benefits and grounds for their use by the taxpayer.

According to the provisions of Art. 17 of the Tax Code of the Russian Federation, when establishing fees, their payers and taxation elements are determined in relation to specific fees.

Establishing a tax means the adoption of a legislative act for the purpose of assigning the name of the tax, classifying it as federal, regional or local and determining the taxpayer and the main elements of taxation.

federal taxes are established exclusively by the provisions of the Tax Code of the Russian Federation, lower representative bodies cannot change any element of the federal tax.

Regional taxes are established by the Tax Code of the Russian Federation, but the legislation of the constituent entities of the Russian Federation can change tax rates, the procedure and terms of payment, within the limits specified in the Tax Code of the Russian Federation, as well as the additional benefits provided and their main application. Benefits are not among the main elements, they may not be established at all.

Local taxes are established by the Tax Code of the Russian Federation, but the acts of the representative bodies of municipalities may change the rates, procedure and terms of payment.

Enter tax (fee) - means to accept legislative act appropriate level for the purpose of tax collection.

The tax base represents a value, physical or other characteristic of the object of taxation. The tax rate is the amount of tax charges per unit of measurement of the tax base. The tax base and the procedure for determining it, as well as the tax rates for federal taxes and the amount of fees for federal fees, are established by the Tax Code of the Russian Federation.

The tax base and the procedure for determining it for regional and local taxes are established by the Tax Code of the Russian Federation. Tax rates for regional and local taxes are set accordingly by the laws of the constituent entities of the Russian Federation, regulatory legal acts of the representative bodies of municipalities within the limits established by the Tax Code of the Russian Federation (Article 53 of the Tax Code of the Russian Federation).

Under the tax period refers to a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. The tax period may consist of one or more reporting periods (Article 55 of the Tax Code of the Russian Federation).

In Art. 17 of the Tax Code of the Russian Federation are defined General terms establishment of taxes and fees. A tax is considered established only when the taxpayers and elements of taxation are determined.

Legislative definitions of tax and fee are given in Art. 8 of the Tax Code of the Russian Federation.

Under tax is understood as a mandatory, individually gratuitous payment levied from organizations and individuals in the form of alienation of property, economic management or operational management belonging to them Money for the purpose of financial support for the activities of the state and (or) municipalities.

Under collection understood compulsory contribution levied from organizations and individuals, the payment of which is one of the conditions for making fees in respect of payers government bodies, local governments, other authorized bodies and officials of legally significant actions, including the granting of certain rights or the issuance of permits (licenses).

In accordance with paragraph 6 of Art. 3 of the Tax Code of the Russian Federation, one of the main principles of legislation on taxes and fees is the provision that when establishing taxes, all elements of taxation should be determined, namely:

object of taxation;
the tax base;
taxable period;
tax rate;
the procedure for calculating the tax;
procedure and terms of tax payment.

Paragraph 3 of Art. 11 of the Tax Code of the Russian Federation establishes that the definitions of "taxpayer", "object of taxation", "tax base", "tax period" and other specific concepts and terms of the legislation on taxes and fees are used in the meanings determined in the relevant articles of the Tax Code of the Russian Federation.

According to paragraph 1 of Art. 38 Tax Code of the Russian Federation object of taxation is the sale of goods (works, services), property, profit, income, expense or other circumstance having a cost, quantitative or physical characteristic, with the presence of which the legislation on taxes and fees connects the taxpayer with the obligation to pay tax.

In accordance with paragraph 1 of Art. 53 Tax Code of the Russian Federation the tax base represents the cost, physical or other characteristics of the object of taxation. tax rate represents the amount of tax charges per unit of measurement of the tax base.

Individual entrepreneurs calculate the tax base at the end of each tax period on the basis of income and expense accounting data and business transactions in the manner determined by the Russian Ministry of Finance.

The remaining taxpayers - individuals calculate the tax base on the basis of data on taxable income received from organizations in established cases, as well as data on their own accounting of taxable income, carried out in arbitrary forms.

In accordance with paragraph 1 of Art. 55 of the Tax Code of the Russian Federation under tax period refers to a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. A tax period may consist of one or more reporting periods.

Paragraph 1 of Art. 52 of the Tax Code of the Russian Federation defines tax calculation procedure. The taxpayer independently calculates the amount of tax payable for the tax period based on the tax base, tax rate and tax benefits. In cases stipulated by the legislation of the Russian Federation on taxes and fees, the obligation to calculate the amount of tax may be assigned to the tax authority or tax agent. If the obligation to calculate the amount of tax is assigned to the tax authority, then no later than 30 days before the due date for payment, the tax authority sends a tax notice to the taxpayer.

General provisions about the procedure and terms of tax payment enshrined in Art. 57 and 58 of the Tax Code of the Russian Federation. Tax is paid by a single payment of the entire amount of tax or in another manner provided for by the Tax Code of the Russian Federation and other acts of legislation on taxes and fees. Payment of taxes is made in cash or non-cash form. The amount of tax payable shall be paid (transferred) by the taxpayer or tax agent within the established time limits. The deadlines for paying taxes are determined by a calendar date or the expiration of a period of time calculated in years, quarters, months, weeks and days, as well as an indication of an event that must occur or occur, or an action that must be performed.

In necessary cases, when establishing a tax, an act of legislation on taxes and fees may also provide for tax benefits and grounds for their use by the taxpayer.

tax incentives- these are the advantages provided by certain categories of taxpayers provided for by the legislation on taxes and fees in comparison with other taxpayers, including the opportunity not to pay tax or pay it in smaller size(Article 56 of the Tax Code of the Russian Federation).

Tax incentives are optional (optional) elements of taxation. When establishing tax incentives, the legislator must determine the grounds for their use by the taxpayer. By general rule it is not allowed to establish privileges of an individual nature.

The grounds for tax benefits are various circumstances with which the Tax Code of the Russian Federation and other regulatory legal acts on taxes connect their provision. Tax incentives can be provided when establishing not only federal taxes, but also regional, local taxes, which follows from Art. 12 of the Tax Code of the Russian Federation.

According to the legal position expressed by the Constitutional Court of the Russian Federation in Ruling No. 162-0 dated 05.07.2001, benefits provided to taxpayers do not apply to mandatory elements of taxation. Based on the meaning of paragraph 2 of Art. 17 of the Tax Code of the Russian Federation, tax benefits and the grounds for their use by the taxpayer may be provided for in acts of legislation on taxes and fees only in cases necessary, in the opinion of the legislator; since the establishment of benefits is not mandatory when determining the essential elements of the tax, the absence of such benefits for other categories of taxpayers does not affect the assessment of the legitimacy of establishing the tax itself.

Taxes may not be discriminatory and various applied on the basis of social, racial, national, religious and other similar criteria. It is not allowed to establish tax benefits depending on the form of ownership, the presence (absence) of citizenship of individuals or the place of origin of capital (Article 3 of the PC RF).

It is important to know that the absence (non-establishment) of one of the main elements of taxation gives grounds to recognize the tax as not established.

The current version of the Tax Code of the Russian Federation establishes only two fees (both are federal): fees for the use of objects of the animal world and for the use of objects of aquatic biological resources and a state fee. When establishing a fee, the legislator determines their payers and the elements of taxation in relation to specific fees.

In the current tax legislation of the Russian Federation, the concept of "collection" has a collective meaning. It covers both actual fees and duties.

Key differences between fees and taxes are as follows:

1) if taxes are individually gratuitous, then the fees are paid in connection with the provision of certain public services to the payer by the state;
2) when paying the fee, of particular importance is the desire of the payer to enter into public law relations with the state, the freedom of choice of the payer;
3) the purpose of establishing the fee is compensation additional costs states related to the provision of specific public law services to a specific payer;
4) fees are one-time, while taxes are paid, as a rule, periodically;
5) when establishing the tax, the actual ability of the taxpayer to pay the tax is taken into account. The amount of the fee corresponds to the scope of public services provided.

According to A. A. Yalbulganov, such a sign as "the commission of legally significant actions" is an essential sign that makes it possible to distinguish between "tax" and "fee". However, it seems that in relation to the signs of a tax, the sign of actions is additional, and not alternative, i.e. and obligation, and individual gratuitousness, and financing of the activities of the state characterize the nature of the collection.

Legal regulation taxation in the Russian Federation: lecture notes on the first part tax code Russian Federation / ed. A. N. Kozyrina. C. 3.
Tax law Russia in questions and answers: textbook. allowance / ed. A. A. Yalbulganova. S. 5.