The concept of residents and non-residents for tax purposes. What is the difference between a tax resident and a non-resident

Who is a “tax resident” and how does he differ from a tax non-resident?

In this article, I tried to answer all the questions related to, as well as situations where citizens of the Russian Federation, for some reason, stayed abroad for more than six months, while receiving regular income or managed to sell some property during the same period of time (apartment, house, other real estate, car, jewelry, etc.).

Tax legislation is written in such a way that after reading it no one will ever understand who tax non-residents are and how to define it - after all, in the Tax Code of the Russian Federation (TC) there is neither a clear and understandable definition of the concept of “tax resident”, nor the concept of “tax non-resident”

tax non-resident- this is an individual who is in Russia for less than 183 days during a calendar year.

Note: the procedure for determining the status of a tax resident of the Russian Federation is given, based on the provisions of the Tax Code of the Russian Federation. Meanwhile, by virtue of Art. 7 of the Tax Code of the Russian Federation, if an international treaty of the Russian Federation establishes rules and norms other than those provided for by the legislation of the Russian Federation on taxes and fees, then the rules and norms of international treaties are applied. This means that an international agreement may, among other things, establish a different procedure for determining residence. As an example, the Letter of the Federal Tax Service of Russia dated 01.10.2012 N OA-3-13/3527@ gives:

    Agreement between the Government of the Russian Federation and the Government of the Republic of Cyprus “On the avoidance of double taxation in relation to taxes on income and capital” dated December 5, 1998 (Article 4);

    Agreement between the Government of the Russian Federation and the Government of Ukraine "On the avoidance of double taxation of income and property and the prevention of tax evasion" dated 02/08/1995 (Article 4).

(! ) At the same time, the Tax Code of the Russian Federation did not contain provisions obliging taxpayers to notify the tax authorities about the fact of loss of the status of a tax resident of the Russian Federation, as well as about confirmation of the status of a non-resident of Russia.

As we see, to determine the status of an individual, only one criterion is important - the time spent on the territory of Russia, and other criteria (including citizenship) are of no importance. At the same time (according to paragraph 2 of Article 207 of the Tax Code) physical. a person is considered to be located on the territory of the Russian Federation in cases where an individual. a person travels outside the territory of the Russian Federation for a short-term (less than 6 months):

  • training;

    performance of labor or other duties related to the performance of work (provision of services) in offshore hydrocarbon fields.

Note: It is important to note that the basis for counting the period of short-term study or treatment abroad in the number of days of stay on the territory of the Russian Federation is the purpose of departure: short-term study or treatment. If an individual was abroad for other purposes and during this period underwent training (treatment) there for up to six months, the days of training (treatment) during the period of stay in the Russian Federation are not included. In particular, similar explanations regarding short-term training can be found in Letter of the Ministry of Finance of Russia dated September 26, 2012 No. 03-04-05/6-1128.

Documents confirming the presence of an individual outside the Russian Federation for treatment or training may be contracts with medical (educational) institutions for treatment (training), certificates issued by medical (educational) institutions indicating the provision of treatment (training), indicating time of treatment (training), as well as copies of the passport with border crossing marks from the border control authorities (Letter of the Ministry of Finance of the Russian Federation dated June 26, 2008 N 03-04-06-01/182).

Documents confirming the actual presence of individuals outside the Russian Federation for the purpose of treatment may be copies of pages of a foreign passport with special (medical) visas issued by consular authorities of foreign states, and marks of border control authorities on crossing the border, as well as copies of contracts with foreign medical institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated May 27, 2016 No. OA-3-17/2417@, dated June 10, 2016 No. ZN-3-17/2619@).

Documents confirming the actual presence of individuals outside the Russian Federation for study purposes may be copies of pages of a foreign passport with special (study) visas issued by consular authorities of foreign states, and marks of border control authorities on crossing the border, as well as copies of agreements with foreign educational institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated October 15, 2015 N OA-3-17/3850@).

The answer to the question of tax status is also a puzzle for those people who are going to leave Russia for a long time on a business trip or for permanent residence, and therefore sell their property - an apartment, land, house, garage, car and other property.

But this is a fundamental question for any person, on which depends what tax should be withheld from the income of such a person (personal income tax or personal income tax) - 13% or 30%, because the difference of 2.3 times is very significant.

There is no clarification on whether taxpayers must confirm their status as tax residents of the Russian Federation or not, and no information on the order in which tax agents should do this.

And if you consider that both the tax legislation itself and the opinion of the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation change like the weather in September, then it becomes sad.

The procedure for determining the status of “tax resident - non-resident” or how to calculate the period of 12 months and 183 days when determining the status of an individual

What does it practically mean to stay “at least 183 calendar days over the next 12 consecutive months”?

In practice this means that:

    the presence or absence of Russian citizenship has no significance for determining status tax resident (non-resident) does not have (i.e., citizens of the Russian Federation, foreign citizens and stateless persons can be both tax residents and non-residents);

    any continuous 12-month period is taken into account, which can begin in one year and end in another (this is relevant for paying salaries to non-residents);

    the final status of the taxpayer is determined at the end of the calendar year (clause 3 of Article 225 of the Tax Code), since the tax period for personal income tax is a calendar year.

    Note: Income in connection with work for hire carried out in the Russian Federation by citizens of member states of the Eurasian Economic Union is subject to personal income tax at a tax rate of 13% starting from the first day of their work in the territory of the Russian Federation. At the same time, based on the results of the tax period, the final tax status of an individual is determined depending on the time of his stay in the Russian Federation in a given tax period. If, at the end of the tax period, the organization’s employees did not acquire tax resident status (stayed in the Russian Federation for less than 183 days), their income received in this tax period is subject to personal income tax at a rate of 30% (letter of the Ministry of Finance of Russia dated February 27, 2019 No. 03-04-06/12764).

The 183-day period is determined by adding up all calendar days on which the taxpayer was in Russia for 12 consecutive months.

This 183-day period includes the day of entry into the Russian Federation and exit from Russia. This conclusion is confirmed by the explanations of the Federal Tax Service, set out in the Letter of the Federal Tax Service of Russia dated June 10, 2015 No. OA-3-17/2276@.

Here it is necessary to pay attention to the fact that the 183-day period is not interrupted by periods of travel outside the Russian Federation for short-term (less than six months) treatment or training of the taxpayer.

Note: Although:

We suggest starting from:

For these reasons, I propose to determine the status:
  • proceed from the above definition of tax resident (non-resident) status;
  • Clause 3 of Article 225 of the Tax Code, according to which the tax period for personal income tax is a calendar year;
  • apply (in writing) to the Federal Tax Service at the place of your residence (stay) or the location of the real estate.

Our point of view was also confirmed by the Ministry of Finance of the Russian Federation, which in its Letter dated 04/21/2016 No. 03-08-RZ/23009 prohibited the use of letters that set out this position, since it contradicts tax legislation,

Features of the "tax non-resident" status

Having the status “tax non-resident of the Russian Federation” has the following features:

    persons who are not tax residents of the Russian Federation are payers of personal income tax only on income, received from sources in the Russian Federation;

    determination of tax resident status is made on each date of payment of income (this rule is relevant when paying regular income (salaries and other regular payments) and is aimed at not withholding excess tax from the moment when an individual becomes a tax resident);

    a refund of overpaid tax (personal income tax) can now be obtained only at the end of the calendar year and only through the tax office;

    Note: the right applies if the property is sold before December 31, 2018. From January 1, 2019, such income is exempt from personal income tax.

Tax rates for personal income tax (NDFL) for tax residents and non-residents

The income that an individual received is as follows (TC):

    for tax residents - 13%;

    for tax non-residents - 30%.

For tax non-residents who are from July 1, 2010, income from employment is subject to personal income tax at a rate of 13%.

According to the Federal Tax Service of the Russian Federation, a rate of 13% is applied if the corresponding payments are provided for in an employment or civil law contract. Other payments made in favor of foreign highly qualified specialists (material assistance, gifts, etc.) must be subject to personal income tax at a tax rate of 30%.

Tax rates for personal income tax for citizens of the Republic of Belarus working in Russia and citizens of the Russian Federation working in Belarus

Confirmation of the presence of citizens of the Republic of Belarus in the Russian Federation is carried out in accordance with the general procedure, taking into account the provisions of the Protocol to the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on the avoidance of double taxation and the prevention of tax evasion in relation to taxes on income and property dated April 21, 1995, signed on January 24 .2006 (hereinafter referred to as the Protocol).

According to Article 1 of the Protocol, remuneration received by a citizen of the Russian Federation or the Republic of Belarus in relation to employment, if (for example) an agreement is concluded between the organization and a citizen of the Republic of Belarus employment contract, providing for his stay on Russian territory for at least 183 days, the income of such an employee organizations received from sources in the Russian Federation, are subject to tax at a rate of 13 percent from the date of commencement of employment.

This conclusion is confirmed by the explanations of the Ministry of Finance of the Russian Federation (for example, Letters of the Ministry of Finance of the Russian Federation dated April 14, 2011 No. 03-04-05/6-259, dated February 21, 2011 No. 03-04-05/6-112).

Tax withholding at a higher rate and its recalculation are carried out only if the labor activity of a Belarusian employee in Russia was terminated (i.e. the employment contract was terminated) before the expiration of 183 days. In this case, the obligation to pay the amount of tax adjusted as a result of recalculation is fulfilled by the individual independently - the tax agent is not obliged to withhold additional tax from his income. Penalties and fines are not charged in these cases.

Income under a civil law agreement is equal to employment, therefore the tax agent withholds personal income tax on income paid to such a citizen of a member country of the EAEU at a rate of 13% from the first day of his work in Russia (Letter of the Ministry of Finance of Russia dated July 17, 2015 No. 03 -08-05/41341).

tax return of a patent under Article 227 1 of the Tax Code.

Features of taxation of citizens of Ukraine

The Governments of Russia and Ukraine concluded an Agreement dated 02/08/1995 “On the avoidance of double taxation of income and property and the prevention of tax evasion” (hereinafter referred to as the Agreement).

Under the terms of paragraph 1 of Article 15 of the Agreement Income of Ukrainian citizens from employment in Russia is subject to personal income tax in Russia. But if a citizen of Ukraine worked in Russia for a total of less than 183 calendar days during a calendar year, then his income is subject to taxation in Ukraine.

To do this (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), an employee who is a citizen of Ukraine should submit to the employer and to the tax authority where the employer is registered with the tax authorities, confirmation of his permanent residence on the territory of Ukraine, issued by the tax authorities of Ukraine.

who have received temporary asylum in Russia,

The calculation and payment of personal income tax, as well as the filing of a tax return by foreign citizens engaged in paid labor activities in the Russian Federation on the basis of a patent issued in accordance with Federal Law No. 115-FZ of July 25, 2002, are carried out in the manner established by Article 227 1 of the Tax Code.

Features of taxation for citizens of the Republic of Kazakhstan

The Convention of October 18, 1996 “On the elimination of double taxation and the prevention of tax evasion on income and capital”, hereinafter referred to as the Convention, is in force between the Russian Federation and the Republic of Kazakhstan.

Article 15 of the Convention provides that remuneration received by a resident of the Republic of Kazakhstan in connection with employment carried out in the Russian Federation is taxable only in the Republic of Kazakhstan if:

    The recipient is located in Russia during the period or periods not exceeding an aggregate of 183 days in any 12 months;

    Remuneration is paid by the employer or on behalf of the employer, non-resident of Russia;

    The remuneration is not paid by a permanent establishment or a permanent base that the employer has in Russia.

Translated from Russian into understandable terms, this means that if a citizen of the Republic of Kazakhstan lives and works in Russia for less than 183 days in a calendar year or the salary is paid by a tax non-resident of the Russian Federation, then the salary for the performance of labor duties (i.e., under an employment contract) not subject to personal income tax() in Russia, but is subject to taxation in the Republic of Kazakhstan.

To be exempt from paying personal income tax in Russia on income (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), it is necessary to provide official confirmation that a citizen of the Republic of Kazakhstan is its tax resident.

Similar agreements (conventions) on the elimination of double taxation have also been concluded with Kyrgyzstan, Tajikistan and some other states.

According to the provisions of Article 73 of the Treaty on the Eurasian Economic Union of May 29, 2014 (came into force on January 1, 2015), income in connection with employment received by citizens of the Republic of Belarus, the Republic of Kazakhstan and the Republic of Armenia, from January 1, 2015 are taxed at a tax rate of 13 percent, starting from the first day of their work on the territory of the Russian Federation(clarifications given in Letter of the Ministry of Finance of Russia dated January 27, 2015 N 03-04-07/2703 and Letter of the Federal Tax Service of Russia dated February 10, 2015 N BS-4-11/1561@ “On the taxation of income from employment received by citizens of the Republic of Belarus , the Republic of Kazakhstan and the Republic of Armenia, in connection with the entry into force on 01/01/2015 of the Treaty on the Eurasian Economic Union of May 29, 2014").

The calculation and payment of personal income tax, as well as the filing of a tax return by foreign citizens engaged in paid labor activities in the Russian Federation on the basis of a patent issued in accordance with Federal Law No. 115-FZ of July 25, 2002, are carried out in the manner established by Article 227 1 of the Tax Code.

Features of taxation of income of citizens of Armenia

From the provisions of paragraph 2 of Article 14 of the Agreement between the Russian Federation and the Republic of Armenia on the elimination of double taxation on income and property dated December 28, 1996, it follows that income paid to a resident of Armenia by a Russian employer may be taxed in the Russian Federation.

On January 1, 2015, the Treaty on the Eurasian Economic Union came into force. From the provisions of Article 73 of this Treaty, it follows that from January 1, 2015, income paid by Russian employers, including individuals, to citizens of Armenia under employment contracts, is taxed in Russia at a rate of 13 percent, regardless of the tax status of the recipients of this income, if the work is performed by them on Russian territory.

Features of taxation of income of citizens of Kyrgyzstan

On August 12, 2015, the Treaty on the Accession of Kyrgyzstan to the Eurasian Economic Union came into force, which means that Kyrgyz citizens:

  • can work in Russia without a labor patent;
  • The duration of the temporary stay (residence) of migrant workers from Kyrgyzstan and members of their families on the territory of our country is determined by the duration of the labor or civil contract concluded with the employer. If these agreements are terminated after 90 days from the date of entry into Russia, Kyrgyz citizens have the right to enter into a new agreement within 15 days without leaving;
  • Since July 20, 2015, migrant workers who arrived to work in Russia, as well as members of their families, are exempt from the obligation to register for migration within 30 days from the date of entry. When entering Russia with documents that allow the affixing of marks to cross the state border, citizens of Kyrgyzstan are exempt from filling out a migration card, provided that their period of stay does not exceed 30 days from the date of entry;
  • Kyrgyz migrant workers are exempt from undergoing the procedure for recognizing educational documents issued in their country.

The Federal Tax Service of Russia in its Letter dated August 27, 2015 N ZN-4-11/15078 “On the taxation of income of individuals” explained that:

The procedure for returning personal income tax to a non-resident when changing status during the year

From January 1, 2011, the procedure for returning personal income tax when changing status during the calendar year has fundamentally changed - now:

It is important to know that the recalculation and subsequent refund of personal income tax occurs only for the year in which the taxpayer’s status changed and he became a tax resident. For example, he came to Russia in September 2013 and immediately (in September) got a job. After 6 months (from April 2014), such an employee became a tax resident. In such a situation, this taxpayer can count on a refund of overpaid personal income tax.

Thus, from January 1, 2011, a special procedure for the return of personal income tax amounts was introduced in connection with the recalculation of the income tax of an individual after he acquired the status of a tax resident of the Russian Federation.

Such recalculation is carried out by the tax authority at the place where the taxpayer is registered at the end of the tax period upon submission of the following documents:

Based on these documents, the tax authority is obliged to make a decision on the return of the amount of overpaid tax within 10 days from the date of receipt of the taxpayer’s application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of a joint reconciliation report of the taxes paid by him, if such a joint reconciliation was carried out (clause 8 of Article 231 of the Tax Code).

It is up to you to decide whether to use such recommendations or not. But you need to keep in mind that this situation is called your tax risk, i.e. the one who recommends does not risk anything, and the tax agent will be responsible for the implementation of such recomendations.

Necessary documents justifying and confirming the status of tax resident or non-resident

Whether taxpayers must confirm their tax resident status or not, there is not a word in the Tax Code of the Russian Federation - it would be funny if it were not for the choice between rates of 13% and 30% on income. But this is a very important issue, including for an accountant, since the organization, as a tax agent, must withhold and transfer to the budget the amount of personal income tax on the income it pays to employees, and since the rates differ by 2.3 times, this is very significant moment.

From January 1, 2011, tax agents are required to independently develop tax registers for data on individuals and determine the procedure for reflecting information in them. Such registers must necessarily contain data that allows you to identify the taxpayer, determine his status, the type and amount of income paid to him, deductions provided, the date of payment of income, withholding and transfer of tax, as well as details of the payment order (based on paragraph 1 of Article 230 of the Tax Code of the Russian Federation ).

In other words, in order to justify the legality of applying a particular income taxation procedure, it is necessary to document and confirm the tax status of an individual.

Since a specific list of documents that would justify (confirm) the tax status of a taxpayer was not established by the Tax Code of the Russian Federation or any other regulatory documents before 2017, such confirmation is possible on the basis of any documents that allow establishing the number of calendar days of stay of an individual persons on the territory of the Russian Federation during the previous 12 consecutive months. This conclusion is confirmed by the explanations of the Federal Tax Service (for example, Letter of the Federal Tax Service of Russia dated December 30, 2015 No. ZN-3-17/5083).

The Federal Tax Service has considered an appeal regarding the procedure for confirming the fact that an individual - a citizen of Russia has lost the status of a tax resident of the Russian Federation and reports the following.

There is no special procedure for determining the tax status (residency) of an individual for the purposes of applying the legislation of the Russian Federation on controlled foreign companies (CFCs). Currently, this concept is disclosed in Chapter 23 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) “Income Tax for Individuals”. However, the provisions of this paragraph do not contain indications of the start or end dates regarding which the 12-month period should be reported, within which it is necessary to take into account the number of days of the taxpayer’s stay in the Russian Federation.

According to the letter of the Ministry of Finance of the Russian Federation dated April 18, 2007 N 01-СШ/19, sent to the Federal Tax Service of Russia, the establishment of this fact for the purposes of applying Chapter 23 of the Code is associated with the taxpayer’s obligation to calculate and pay tax on the income received by him for the corresponding tax period ( calendar year).

In this case, we are talking about the payment of tax by such a person independently on the basis of the provisions of Articles 228 and 229 of the Code, including on income received from sources outside of Russia, which includes the profit of a CFC. In such a situation, tax residents are recognized as individuals who are actually in the Russian Federation for at least 183 calendar days for the period from January 1 to December 31 of the corresponding calendar year.

When registering a business and hiring foreign workers, as well as when trading currency or opening an account in a foreign bank, a citizen may encounter concepts such as resident and non-resident.

Resident, non-resident - what is the difference between them

Difference between resident and non-resident in rights and responsibilities before one's own and before a foreign state. The government of any country is interested in attracting foreign capital for the long term.

The longer a foreigner works and the longer the factories of foreigners operate in the country, the greater privileges they can count on. A resident has more rights and opportunities than a non-resident. This is its main difference, the rest follows from this provision.

Legislative regulation

The concept of resident and non-resident is spelled out in the Tax Code(Article 207) and in the law “On Currency Regulation”. However, these concepts are used not only in business and finance.

This also applies to labor relations - to migrants and those people who want to move to another country. At the same time, both an individual and a legal entity can act as a resident or non-resident.

The status itself does not provide any preferential right in obtaining citizenship, but long-term residence in the country is considered one of the factors facilitating its acquisition. a positive sign.

But it should be borne in mind that the stay must be absolutely legal. It does not matter whether a foreigner or citizen is a resident or non-resident, he bears full responsibility for his actions on the territory of the state.

How to become a resident

To become a resident no need to obtain citizenship in the host country, moreover, to obtain this status you can not have any citizenship at all. What is important is the fact of staying more than six months in the country and the presence of any activity that is not prohibited by law in that country.

There is no need to apply to the authorities to obtain resident status. Usually a foreigner receives them using documents that confirm the fact of his presence in the country. It could be:

  • visa;
  • documents confirming the fact that he has an official job;
  • documents confirming a residence permit;
  • documents indicating that he is engaged in business in this country.

You can use any documents that confirm that he has been in the country for at least six months. Even a student ID or student visa will do.

Advantages of staying in the country as a resident

However, for businessmen and investors, in order to get the same tax rate as for residents (13%), it is necessary to stay in the country for at least a year. For non-residents the tax rate is 30%.

In this case, the resident can open an account in any bank, freely engage in foreign exchange transactions, apply for benefits and support from the host state.

Almost everyone who comes to another country strives to become a resident. The reason is simple - if it is impossible to obtain citizenship, this way to get license, almost equal to those of the local population. This is not only a lower tax rate, but also the opportunity to register a business much faster and with a smaller package of documents.

There are no downsides to being a resident. This is due to the fact that foreigners strive to stay in the country as long as possible and produce as much goods and services in it as possible or invest funds in its development.

In fact, this is one of the mechanisms for attracting foreign investment, including labor - cheap labor, no matter how it is criticized, is one of the ways to reduce the cost of production and make goods more accessible to the widest segments of the population.

In what cases can you lose your resident status?

Citizens who live throughout their entire life in the country are residents automatically. But as already said, residency and citizenship are not the same thing. Therefore, in some cases, a citizen may lose his resident status even in his homeland if he stays in another country for a long time.

Resident status is not given for centuries, and even a native resident can lose it. Loss of status is possible if a person out of place of his residence for more than a year. It makes no difference whether he is a citizen of this country or another.

Also human may lose status resident if he commits any crime in the territory of the host country, including for violating the visa regime. If the visa was issued for only a few days or months, but the visitor has lived for more than a year, he will not become a resident, and for violating the law he will be deported.

In all other cases (including when on a business trip or vacation abroad), the period of stay abroad is not included in the number of days of stay in Russia.

This procedure follows from paragraph 2 of Article 207 of the Tax Code of the Russian Federation. This conclusion is also confirmed by the Russian Ministry of Finance in a letter dated July 26, 2007 No. 03-04-06-01/268.

An example of determining a person’s tax status (resident or non-resident) for personal income tax purposes. During the year, the person repeatedly went on business trips abroad

The work of Moldovan citizen A.S. Kondratieva is associated with business trips. During 2015 (365 days), he was sent on business trips abroad three times for periods of 100, 20 and 40 days (excluding the day of departure from Russia and return to Russia). The total duration of official business trips abroad was 160 days.

In addition, Kondratiev went on vacation abroad for 24 days (excluding the day of departure from Russia and return to Russia).

In total, over the past 12 months, Kondratiev has carried out:

  • abroad – 184 days (160 days + 24 days);
  • on the territory of Russia 181 days (365 days - 184 days), that is, less than 183 days.

Kondratiev is recognized as a tax non-resident.

Situation: Is the 12-month period interrupted when determining the tax status of a foreigner who, due to the expiration of his residence permit in Russia, leaves the country? Next year he will enter the Russian Federation again.

No, it is not interrupted.

The legislation establishes a uniform procedure by which a person’s tax status is determined when calculating personal income tax for non-residents.

If over the next 12 consecutive months a person has been in Russia for 183 calendar days or more, he is considered taxable .

If during the next 12 consecutive months a person was in Russia for less than 183 calendar days, he is taxable .

This follows from the provisions of paragraph 2 of Article 207 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 5, 2008 No. 03-04-06-01/115.

The use of a 12-month period to determine the tax status of a personal income tax payer is mandatory. Moreover, if a person pays personal income tax on his own income, then the 12-month period is equal to the calendar year in which the income was received (Clause 2 of Article 207, Articles 216 and 228 of the Tax Code of the Russian Federation). Interruption of this period is not provided for by law (including for reasons, for example, termination or re-conclusion of an employment contract, departure and re-entry into the territory of Russia). At the same time, the number of days a person stays in Russia (less than or more than 183 days) during a 12-month period may be interrupted. This is confirmed by the provisions of paragraph 2 of Article 207 of the Tax Code of the Russian Federation.

If a person traveled abroad for treatment or study (for a period of no more than six months), then the 12-month period is not interrupted. The duration of trips is included in the calculation of 183 days (Clause 2 of Article 207 of the Tax Code of the Russian Federation). In this case, the purpose of the trip must be confirmed documented (for example, when undergoing treatment - an agreement with a medical institution, a certificate indicating the time of its implementation and a copy of the passport with a border control stamp) (letter of the Ministry of Finance of Russia dated June 26, 2008 No. 03-04-06- 01/182).

If a person left the Russian Federation for other reasons (including in connection with the re-issuance of migration documents, termination of an employment contract), then the 12-month period by which the person’s tax status is determined is also not interrupted. However, days spent abroad must be excluded from the calculation of 183 days (letter of the Ministry of Finance of Russia dated May 26, 2011 No. 03-04-06/6-123).

Documents confirming short-term stay abroad

Documents confirming a person’s presence outside Russia for short-term treatment or training include:

  • contracts with medical (educational) institutions for treatment (training);
  • certificates issued by medical (educational) institutions indicating the completion of treatment (training) indicating its time;
  • copies of passport pages with special visas and border control stamps on border crossings.

At the same time, there are no restrictions on age, types of educational institutions and disciplines studied, medical institutions and diseases, or the list of countries in which training or treatment takes place.

This is stated in the letters of the Ministry of Finance of the Russian Federation dated June 26, 2008 No. 03-04-06-01/182, the Federal Tax Service of Russia dated October 15, 2015 No. OA-3-17/3850 and dated July 20, 2012 No. OA3- 13/2525.

Traveling abroad is only important for calculating the number of days of stay in Russia (less than or more than 183 days). It does not interrupt the course of the 12 month period.

This procedure follows from paragraph 2 of Article 207 of the Tax Code of the Russian Federation.

It is possible that over the course of a year (for example, seven months) the number of days a person stays in Russia will reach 183 days. In this case he becomes . And this status cannot change until the end of the year. This is confirmed by letters from the Ministry of Finance of Russia dated March 29, 2007 No. 03-04-06-01/94 and dated March 29, 2007 No. 03-04-06-01/95.

An example of determining a person’s tax status (resident or non-resident) for personal income tax purposes

In June 2014, A.V. Lvov received income from the sale of the car.

Lviv must calculate personal income tax on the amount received and transfer it to the budget independently (subclause 2, clause 1, article 228 of the Tax Code of the Russian Federation).

To find out what rate to take to calculate personal income tax, Lvov must determine its tax status (resident or non-resident).

The tax period for personal income tax is a year (Article 216 of the Tax Code of the Russian Federation). Lviv must calculate and transfer the tax to the budget based on its results - when the year ends (clause 4 of Article 228 of the Tax Code of the Russian Federation). Therefore, Lvov determined its tax status as of January 1, 2015 (when 2014 ended, in which it received income from the sale of a car).

The 12 months preceding this date are the period from January 1 to December 31, 2014 (365 days).

During this period, Lvov left Russia only once - for 28 days during vacation (excluding the day of departure from Russia and return to Russia). During this time, the course of the 12-month period during which Lviv must determine his time in Russia (more or less 183 days) is not interrupted. However, the 28 days that Lvov vacationed abroad are not included in the calculation of the time spent in Russia (more or less 183 days).

Thus, over the next 12 consecutive months of 2014, Lvov spent in the Russian Federation:
365 days – 28 days = 337 days

Since Lvov spent more than 183 days in Russia (337 days > 183 days) over the 12 consecutive months of 2014, he is a tax resident of Russia.

Situation: Does a residence permit confirm the time of a person’s actual stay in Russia? The actual time of stay in the Russian Federation must be calculated to determine the tax status of a person (resident or non-resident) for the purposes of calculating personal income tax

No, it doesn't confirm.

The legislation does not contain a list of documents by which the number of days of stay in Russia can be determined to determine tax status. These can be any documents confirming the fact that a person is in the country. Thus, the dates of entry into and exit from Russia can be determined by the marks:

  • in the passport;
  • in a diplomatic passport;
  • in the service passport;
  • in the seafarer’s passport (seafarer’s identity card);
  • in the migration card;
  • in the refugee's travel document, etc.

If there is no mark in the passport (for example, a person came from Ukraine or the Republic of Belarus), then other documents may be proof of stay in Russia. For example, documents on registration of residence, receipts for hotel accommodation. For working people - timesheets or certificates from the place of work issued on the basis of these timesheets. For students - a certificate from the place of study, which confirms the actual attendance of the educational institution.

This follows from letters of the Ministry of Finance of Russia dated January 13, 2015 No. 03-04-05/69536, Federal Tax Service of Russia dated May 25, 2011 No. AS-3-3/1855.

A residence permit confirms only the right of a foreign citizen (stateless person) to permanent residence in Russia, as well as to free entry into Russia and exit from the country. For stateless persons, a residence permit is also an identity document. This is stated in paragraph 1 of Article 2 of the Law of July 25, 2002 No. 115-FZ.

Thus, a residence permit confirms a citizen’s right to reside in the Russian Federation (certifies his identity), but is not a document confirming the actual time a person is in the country.

Resident is legal or physical a person registered in a given country, to whom national law fully applies.

Non-resident- This legal, individual, acting in one state, but permanently registered and residing in another.

These can also be organizations and organizations that are not legal entities. persons created in accordance with the laws of foreign states, or foreign diplomatic and other official missions located in the country, as well as international organizations, their branches and representative offices.

As a rule, the term is used in relation to the rights and obligations of persons in financial and tax legal relations.

In some states residents only foreign citizens and foreign organizations that have full rights and obligations within their country of residence are named.

Residents of Russia include:

Individuals who are citizens Russia, with the exception of citizens Russia recognized as permanent residents of a foreign state in accordance with the legislation of that state;

foreign citizens and stateless persons permanently residing in Russia on the basis of a residence permit provided for by Russian legislation;

Legal entities created in accordance with Russian legislation;

branches, representative offices and other divisions located outside the territory of Russia legal persons

created in accordance with Russian legislation;

diplomatic missions, consular offices of Russia and other official missions of Russia located outside the territory of Russia, as well as permanent missions of Russia at interstate or intergovernmental organizations;


itself, constituent entities of Russia, Russian municipalities.

Non-residents include:

Individuals permanently residing outside the Russian Federation, incl. temporarily located on its territory;

Legal entities created in accordance with the laws of foreign states and with a location outside the Russian Federation;

Enterprises and organizations that are not legal entities, created in accordance with the laws of foreign states and with a location outside the Russian Federation;

diplomatic and other missions located in the Russian Federation;


branches and representative offices of non-residents located in the Russian Federation. An economic entity is a resident of the country where its main place of residence is located, regardless of its citizenship . Residence companies

determined by the place of registration and location, and not the place of operations.

Sources

Wikipedia - The Free Encyclopedia, WikiPedia

mabico.ru - Mabico


inventech.ru - Library. 2013 .

See what “Resident and non-resident” are in other dictionaries:

    NON-RESIDENT- [English] non resident not permanently residing in a given place] legal entity. 1) a legal entity registered in another country; 2) an individual permanently residing in another country; regime of taxation and legislative regulation for n.... ... Dictionary of foreign words of the Russian language

    NON-RESIDENT- 1) a legal entity operating in a given country, but registered in another; 2) an individual operating in one country but permanently residing in another. Special tax rules may be established for non-residents. See also … Economic dictionary

On taxation of individuals who are non-residents of the Russian Federation 1. Determination of the status of an individual
For the purposes of paying personal income tax (NDFL), individuals are divided into tax residents of the Russian Federation and persons who are not them - non-residents. Different tax rates are applied to the income of residents and non-residents - 13 percent and 30 percent (clauses 1 and 3 of Article 224 of the Tax Code of the Russian Federation).
Tax residents are individuals who stay in our country for at least 183 calendar days over the next 12 consecutive months (Clause 2 of Article 207 of the Tax Code of the Russian Federation).
This period is not interrupted even when an individual travels outside the Russian Federation for short-term (less than six months) treatment or training. You can confirm your stay abroad for the purposes of treatment or study with the following documents:
- an agreement (or certificate) with an educational (medical) institution;
- a copy of the passport with marks from the border control authorities about crossing the border (letter of the Ministry of Finance of Russia dated June 26, 2008 No. 03-04-06-01/182).
Regardless of the actual time spent in the Russian Federation, Russian military personnel serving abroad, as well as employees of state authorities and local governments sent to work outside the Russian Federation, are recognized as tax residents.

2. How to count 183 days?
Article 6.1 of the Tax Code of the Russian Federation establishes that the course of a period calculated in days begins the next day after the calendar date or the occurrence of an event (action) that determines its beginning.
In this regard, the period of actual presence of the employee on the territory of the Russian Federation begins the next day after the calendar date, which is the day of his arrival on the territory of the Russian Federation. The day of departure abroad is considered the day of stay in the Russian Federation.
When determining tax status, only the actual, documented time of an individual’s stay in the Russian Federation is important. The intentions of an individual regarding the time spent in the Russian Federation are not taken into account when determining his tax status. Determination of tax status based on the expected (including based on an employment contract) time spent in the Russian Federation is not provided for by the Code (Letters of the Ministry of Finance of Russia dated November 7, 2007 N 03-04-06-01/377, dated June 25, 2007 N 03-04 -06-01/200, dated 06/13/2007 N 03-04-06-01/185).
The exception is cases of hiring citizens of Belarus who are recognized as tax residents of the Russian Federation from the moment of concluding an employment contract with an employer - a Russian organization for a period of at least 183 days in a calendar year (see Letters of the Ministry of Finance of the Russian Federation dated March 29, 2007 N 03-04-06- 01/94, dated 12/26/2005 N 03-05-01-04/396, dated 08/15/2005 N 03-05-01-03/82).

3. What documents can be used to confirm your presence on the territory of the Russian Federation?
The dates of arrival on the territory of Russia and departure from Russia are established according to the border control marks in the international passport.
If an individual is a citizen of a foreign state with which the Russian Federation has a valid agreement on a visa-free regime, then in order to obtain confirmation for the period specified in the application, additional documents are submitted confirming the actual presence of this person on the territory of the Russian Federation for at least 183 days within 12 next consecutive months. Such documents may be, for example, a certificate from the place of work in the Russian Federation, a copy of a time sheet from other organizations, copies of contracts for paid services, copies of air and railway tickets, etc. (Letter of the Ministry of Finance of Russia dated 02/05/2008 N 03- 04-06-01/31).
It should be borne in mind that a residence permit is not a document indicating the actual time of a citizen’s stay in the country, but only confirms the right of an individual to reside in it, as well as his right to free exit and entry into the country (Clause 1 of Art. 2 of the Federal Law of July 25, 2002 N 115-FZ “On the legal status of foreign citizens in the Russian Federation”). The Tax Code does not provide for a special procedure for determining the tax status of individuals depending on citizenship. Responsibility for the correctness of its determination for the individual recipient of the income lies with the organization that is the tax agent (Letter of the Ministry of Finance of Russia dated October 26, 2007 N 03-04-06-01/362).

4. Personal income tax rate (NDFL)
Tax rates are also set depending on whether the individual is a resident:
- for residents - 13%, unless otherwise provided by this article;
- for non-residents - 30% (except for income received in the form of dividends from equity participation in the activities of Russian organizations, for which the tax rate is 15%).
If the tax status of an employee changes, personal income tax amounts are recalculated from the moment when his status for the tax period can no longer change, or at the end of the tax period.
If, at the end of the tax period, the employee is a tax resident, then based on his income from sources in the Russian Federation, the amount of tax previously calculated at a rate of 30% should be recalculated at a rate of 13% as from a resident (Letter of the Ministry of Finance of Russia dated November 22, 2007 N 03-04 -06-01/406).
If, based on the results of any tax period, an individual will not be a tax resident (for example, in the case of final departure from the Russian Federation before reaching 183 days of stay in the Russian Federation in a given calendar year), and the tax on income paid before departure was withheld based on the availability for each date of actual receipt of income (taking into account the 12-month period preceding each such date) tax resident status at a rate of 13%, then the amount of tax payable must be recalculated at a rate of 30% (Letter of the Ministry of Finance of Russia dated July 4, 2007 N 03 -04-06-01/210).
This recalculation is carried out from the beginning of the tax period in which the change in tax status occurred.

5. Elimination of double taxation
In accordance with paragraph 3 of Article 224 of the Tax Code of the Russian Federation, a tax rate of 30 percent is established in relation to all income received by individuals who are not tax residents of the Russian Federation.
According to Article 7 of the Tax Code of the Russian Federation, if an international treaty of the Russian Federation containing provisions relating to taxation and fees establishes rules other than those provided for by this Code and the regulatory legal acts on taxes and (or) fees adopted in accordance with it, then the rules and norms apply international treaties of the Russian Federation.
In accordance with paragraph 2 of Article 232 of the Tax Code of the Russian Federation, in order to obtain tax privileges provided for by an international treaty, the taxpayer must submit to the tax authorities of the Russian Federation official confirmation that he is a resident of the state with which the Russian Federation has entered into an agreement valid during the relevant tax period (or its parts) treaty (agreement) on the avoidance of double taxation. Confirmation can be submitted both before payment and within one year after the end of the tax period based on the results of which the taxpayer claims to receive tax privileges.
In the absence of such confirmation, taxation of income received by a person who is not a tax resident of the Russian Federation is carried out at a rate of 30 percent.

6. Taxation with the unified social tax (UST)
As a general rule, payments to foreign employees are subject to UST in the same manner as payments to Russian employees. UST must be accrued for payments and remuneration made to foreigners under labor and civil contracts, the subject of which is the performance of work (provision of services) or copyright agreements, in accordance with clause 1 of Art. 236, paragraph 1, art. 237 Tax Code of the Russian Federation.
Despite the fact that, as a general rule, payments to foreigners are subject to UST in the same way as payments to Russians, there is still one peculiarity here. And it lies in the fact that the procedure for calculating the amount of unified social tax payable to the federal budget is influenced by the status of a foreigner in Russia. In particular, a foreigner is permanently residing, temporarily residing or temporarily staying on the territory of the Russian Federation.
This is due to the fact that the amount of the unified social tax is determined separately by the federal budget, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Compulsory Medical Insurance Fund and the Federal Compulsory Compulsory Medical Insurance Fund (clause 1 of Article 243 of the Tax Code of the Russian Federation). In this case, the tax calculated for payment to the federal budget for each individual is subject to reduction by the amount of insurance premiums accrued for the same period for compulsory health insurance (tax deduction). This is established in paragraph. 2 p. 2 art. 243 Tax Code of the Russian Federation.
In turn, contributions to compulsory pension insurance are accrued only for payments to those foreigners who permanently or temporarily reside in the Russian Federation (clause 1, article 7 of the Federal Law of December 15, 2001 N 167-FZ “On Compulsory Pension Insurance in the Russian Federation”, hereinafter - Federal Law N 167-FZ), i.e. insured. Insured persons are persons who are subject to compulsory pension insurance in accordance with Federal Law N 167-FZ. Insured persons are citizens of the Russian Federation, as well as foreign citizens and stateless persons permanently or temporarily residing on the territory of the Russian Federation
Thus, if a foreign employee is in the territory of the Russian Federation with the status of a temporary stayer, then the tax deduction under the Unified Social Tax does not apply to this employee.

7. About notification of tax authorities
In accordance with paragraph 4 of paragraph 8 of Article 18 of the Federal Law of July 25, 2002 N 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation”, the employer or customer of work (services) who invited a foreign citizen to the Russian Federation for the purpose of carrying out labor activities or who have concluded a new employment contract or a civil contract with a foreign worker in the Russian Federation for the performance of work (provision of services), are required to notify the tax authority at the place of their registration about the attraction and use of foreign workers within ten days from the date of filing the application for extradition to a foreign citizen of an invitation for the purpose of carrying out work activities, or the arrival of a foreign citizen at the place of work or place of stay, or the receipt by a foreign citizen of a work permit, or the conclusion of a new employment contract or a civil law contract with a foreign worker in the Russian Federation for the performance of work (providing services), or suspension or cancellation of permission to attract and use foreign workers, or suspension or cancellation of a work permit for a foreign citizen registered as an individual entrepreneur, or cancellation of a work permit for a foreign worker.
The employer is obliged to notify the tax authority when at least one of the listed grounds occurs, but in relation to each of the foreign citizens involved in labor activities.
For failure to notify the tax authority of the employment of a foreign citizen or stateless person in the Russian Federation on the basis of Part 3 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation, an employer - legal entity may be held administratively liable in the form of a fine in the amount of four hundred thousand to eight hundred thousand rubles or in the form of suspension of activities for a period of up to ninety days. A fine in the amount of thirty-five thousand to fifty thousand rubles is imposed on officials for this offense, and on citizens - in the amount from two thousand to five thousand rubles.

Taxation Department for Individuals
Office of the Federal Tax Service
in Kamchatka region