Voluntary refusal to use the simplified tax system. Complex issues of transition to a common tax system

Firms and entrepreneurs can refuse the simplified tax system voluntarily. Then, from the beginning of the new year, they must switch to the regular taxation system.

To do this, they need to fill out a notification (form 26.2–3, approved by order of the Federal Tax Service of Russia dated November 2, 2012 No. ММВ-7-3 / [email protected] ) and report their decision to the tax office by January 15. The format for submitting the notification in electronic form was approved by order of the Federal Tax Service of Russia dated November 16, 2012 No. ММВ-7-6/ [email protected]

However, judges do not agree with officials. Thus, the arbitrators of the FAS Central District pointed out the following. Since the transition from the simplified tax system to the general taxation system after a year is carried out voluntarily, filing an application to terminate the use of the “simplified system” is of a notification nature. Violation of the deadline for filing a notification does not entail any tax consequences (resolution of January 16, 2014 No. A68-276/2013).

Switching to a different tax regime in the middle of the year

According to tax authorities, an entrepreneur cannot change the simplified system to PSN in the middle of the year (letter of the Federal Tax Service of Russia dated September 20, 2020 No. SD-4-3 / [email protected] ).

The rationale is very simple. As stated in paragraph 6 of Article 346.13 of the Tax Code, firms and individual entrepreneurs using the simplified tax system can switch to a different taxation regime only from the beginning of next year. To do this, you need to fill out a notification in form 26.2-3, which is sent to the Federal Tax Service by January 15 of the year in which the tax system is changing.

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An organization that had been using the simplified tax system for three years switched to the general regime from the beginning of 2012, but for some reason did not send a notification to the inspectorate. At the end of the first quarter, the organization submitted a VAT return to the tax authorities, in which it declared a certain amount of tax to be reimbursed from the budget.

The controllers conducted a desk audit of the submitted declaration, as a result of which the tax refund was denied. Moreover, the inspectors made a decision against the company to hold it liable for non-payment (incomplete payment) of tax * (3). The company was charged additional VAT and fines and penalties were imposed.

The basis for the decision was the conclusions of tax inspectors about the company’s unlawful declaration of VAT tax deductions, since it applies the simplified tax system.

The company did not agree with the decision of the tax inspectorate and, after an unsuccessful attempt to resolve the dispute in a higher tax authority, went to court. Courts of all instances overturned the inspectorate's decision to hold the company liable for taxation and to refuse to reimburse VAT from the budget. The decision of the courts of first and appellate instances was approved by the FAS of the Central District * (4).

Further disputes on this issue and attempts to revise adopted judicial acts can be considered unproductive. By the ruling of the Supreme Arbitration Court of the Russian Federation, the request for a supervisory review of judicial acts in the case of invalidating the decision of the tax inspectorate in terms of additional VAT assessment was rejected and the transfer of the case to the Presidium of the Supreme Arbitration Court of the Russian Federation was refused *(5).

The Supreme Arbitration Court of the Russian Federation in its ruling, in particular, indicated that the courts correctly concluded that refusal to apply the simplified tax system is the right of the company and is of a notification nature, the company conducted business activities, prepared primary documents and submitted tax returns that comply with the general taxation system, in connection with which its use of this tax regime and VAT deductions is justified.

When refusal is not possible

Firstly, voluntary refusal of the simplified system, even if the inspectorate is notified, is impossible until the end of the tax period * (6). For example, an organization decided to voluntarily abandon the use of the simplified tax system in the middle of the calendar year, notified the tax office about this in June, then defended its position in court and predictably lost*(7).

Please note that in the situation discussed at the beginning of the article, the organization voluntarily switched to the general taxation regime from the beginning of the new tax period (calendar year), and therefore was able to successfully defend its position in court, despite the fact that it did not notify the tax authority about this.

Secondly, it is impossible to partially abandon the use of the simplified tax system for certain types of activities. Let's consider a specific situation.

The entrepreneur turned to the Russian Ministry of Finance with a request to explain why it is impossible to combine different taxation regimes. And this is the answer an individual entrepreneur received from the Russian Ministry of Finance*(8).

First of all, in this answer, attention is drawn to the position of the Russian Ministry of Finance, which boils down to the essentially permissive nature of the refusal to apply the simplified taxation system on the basis of a written notification. However, as stated at the beginning of the article, this position is not supported by the courts, and, in our opinion, the interpretation of the rules of tax law given by the court is a priority (since 2013, notification of the tax office about the transition to the general regime is a prerequisite for changing the regime).

As for the combination of different tax regimes, such a combination is possible only for UTII and the general regime or UTII and the simplified system or patent and simplified taxation systems. This is explained by the very nature of the single tax on imputed income for certain types of activities. If, under the general or simplified system, all types of activities of the taxpayer are subject to taxation, under UTII - only those that are named in the Tax Code *(9).

In conclusion, we recall that the transition from a simplified system to a general system may be mandatory. Such a transition is required if, at the end of the reporting (tax) period, the company’s taxable income exceeded 60 million rubles and (or) during the reporting (tax) period there was a discrepancy with other requirements established by law. Such a company is considered to have lost the right to apply the simplified tax system from the beginning of the quarter in which the specified excess and (or) non-compliance with other requirements occurred *(10).

How and when can you switch from the simplified tax system to the general tax regime?

Section updated July 26, 2020

Determining the residual value

It is clear that if the regime changes, you will still continue to use property in business. The only question is how to determine its remaining value for tax purposes under the new taxation regime. When switching from a special regime to a general one, one of your first actions is to determine the residual value of fixed assets for tax accounting.

In this case, you determine the residual value as of the transition date as follows:

• first, form the residual value of fixed assets and intangible assets as of the transition date;
• then reduce it by the amount of expenses that were incurred during the period of application of the simplified tax system.

Example 1 A company purchased equipment that was paid for and put into operation in February 2012, that is, during the period of application of the simplified tax system. In September 2012, income exceeded the established limit of 60 million rubles. and the company lost the right to apply the simplified tax system. The cost of the equipment was 80,000 rubles. (including VAT RUB 12,203). The useful life is seven years and depreciation is calculated using the straight-line method. Note that in accounting, equipment is included in fixed assets at its original cost, including VAT. Accrued depreciation amounts are included in expenses. Also, for tax accounting purposes, we accept the cost of equipment as fixed assets. Its cost is formed taking into account the VAT presented by the supplier of fixed assets. The costs of purchasing property are taken into account after the facility is put into operation in equal shares on the last day of the reporting (tax) period. In our case, the company violated the established requirements for the revenue limit in September, that is, from the third quarter of 2012 it is considered to have lost the right to apply the simplified tax system. Also in this situation, we believe that the company can include the costs of purchasing equipment in the expenses taken into account during the period of application of the simplified tax system for the six months. After switching to OSNO, the company cannot include in expenses the costs of acquiring fixed assets taken into account when applying the simplified tax system. The accountant will make the following entries. In February 2012: Debit 08-4 “
Purchase of fixed assets” Credit 60 “Settlements with suppliers and contractors” - 80,000 rubles.
— equipment has been capitalized; Debit 01 “Fixed assets” Credit 08-4
- 80,000 rubles.
— purchased equipment is included in fixed assets; Debit 60 Credit 51 “Current accounts”
- 80,000 rubles.
— payment for the equipment is transferred to the supplier. Monthly from March to September 2012: Debit 20 “Main production” Credit 02 “Depreciation of fixed assets”
- 952 rubles.
(RUB 80,000: 7 years x 1/12) - reflects the amount of accrued depreciation. In September 2012: Debit 99 “Profits and losses” Credit 68
“Calculations for taxes and fees” - 571.2 rubles.
- reflected by PNO. Monthly since October 2012: Debit 20 Credit 02
- 952 rub.
— reflects the amount of accrued depreciation; Debit 99 Credit 68
- 190.4 rub. (952 rubles x 20%) - reflected by the PNO.

An important and controversial point. How to determine the cost of fixed assets for those payers who used the simplified tax system with the object “income”? After all, they did not take into account expenses when determining the tax base according to the simplified tax system.

The controllers have a clear answer to this question - companies that apply the simplified tax system with the object “income” do not take into account the amounts of expenses incurred during the period of application of the “simplified tax system”.

This means that if the property was purchased, paid for and put into operation at the time of application of the simplified tax system with the object “income”, then the residual value at the time of transition to the general regime is not determined by these payers (letter of the Federal Tax Service of Russia dated October 2, 2012 No. ED -4-3/ [email protected] ).

Let us pay special attention to the “simplified” ones who used the “income” object and switched to OSNO. When switching to OSNO using the accrual method, the specified category:

1) recognizes as income payment for goods supplied during the period of application of the simplified tax system;

2) as an expense, recognizes payment for goods received during the period of application of the simplified tax system.

They recognize income and expenses on the date of transition to OSNO.

This is stated in the letter of the Ministry of Finance of Russia dated January 29, 2009 No. 03-11-06/2/12.

Notification of refusal from the simplified tax system: form

There is no approved form for such a notification, so you can notify the Federal Tax Service of your refusal to apply the simplified form in any form. But the easiest way is to fill out the form recommended by the Federal Tax Service (form No. 26.2-3 (Appendix No. 3 to the Order of the Federal Tax Service dated November 2, 2012 N MMV-7-3 / [email protected] )).

Notifications of refusal to use the simplified tax system can be made through the ConsultantPlus system.

If you decide to use the form recommended by the Federal Tax Service, but want to submit the notification in electronic form, then its electronic format can be found in Appendix No. 3 to the Order of the Federal Tax Service dated November 16, 2012 N ММВ-7-6/ [email protected]

Procedure

On the transition to another tax regime in accordance with the provisions of clause 6 of Art. 346.13 of the Tax Code (hereinafter - the Code) is required to notify the tax office at the location of the organization (place of residence - for an individual entrepreneur). This norm also establishes the deadline within which this notification must be sent to the tax office - no later than January 15 of the year in which the transition to a different taxation regime is expected. For example, the tax authority must be notified of the refusal to apply the simplified tax system from January 1, 2020 by January 15, 2020.

In principle, this notification can be compiled in any form. The main thing is that it contains all the necessary details that make it possible to unambiguously identify both the taxpayer who decided to part with the simplified tax system and the tax authority to which such a notification is submitted. On the other hand, in order not to lose sight of any significant point, it is advisable to use the notification form, which was approved by Order of the Federal Tax Service of Russia dated November 2, 2012.

N ММВ-7-3/ [email protected] However, we emphasize that this form is advisory in nature. And if the notification is presented on a form that the taxpayer developed independently, then the inspectorate must still accept it, and it is considered that the tax authority is duly notified of the taxpayer’s will.

We also note that the notification can be submitted electronically. Its Format was approved by Order of the Federal Tax Service of Russia dated November 16, 2012 N ММВ-7-6/ [email protected]

Deadline for refusal of the simplified tax system

Tax authorities must be informed that the payer will no longer use the simplified tax system no later than January 15 of the year in which it is planned to apply a different taxation regime (clause 6 of article 346.13). True, if January 15 falls on a weekend, then the last day for submitting the notification is postponed to the first working day following this weekend (Clause 7, Article 6.1 of the Tax Code of the Russian Federation).

Keep in mind that if you submit a notification outside the deadline, you will remain on the simplified tax system and will not be able to apply a different tax regime (Letter of the Federal Tax Service dated 08/12/2015 N GD-4-3/14234).

Main limits of the simplified tax system

The conditions under which a taxpayer has the opportunity to work on a simplified basis are set out in Art. Art. 346.12, 346.13 Tax Code of the Russian Federation. They are valid in the current tax period and will be relevant in the future, since the deflator coefficient for limits on the simplified tax system is frozen until 2021 (see Federal Law No. 243 dated 07/03/16).

The conditions are as follows:

1. The company has no more than 100 employees.
2. Cost of fixed assets (residual) up to 150 million rubles.
3. The income limit for the tax (reporting) period is up to 150 million rubles.
4. The share of participation in the fixed capital of the company of other legal entities should not exceed 25%.
5. The company must not have branches.
6. The company should not engage in certain types of activities (banking, insurance, pawnshops, mining of mineral resources, work of notaries, advocacy, etc. (Article 346.12, paragraph 3)).

On a note. To switch to the special regime from next year, you need to have revenue for 9 months of the current year of no more than 112.5 million rubles.

If at least one of the conditions is not met, the business entity loses the right to use the simplification.

The restrictions do not apply to the company's representative offices, only to its branches (the ban has been canceled since 2020). Restrictions on the share of participation do not apply to non-profit organizations, consumer cooperatives, and economic societies; a special procedure has been established for companies consisting of contributions from public organizations of disabled people.

Refusal from the simplified tax system: what else you need to remember to do

The transition from a simplified tax regime to another tax regime most often entails additional responsibilities:

And, of course, the ex-simplified person must remember to file a tax return under the simplified tax system and pay tax for the last year of application of the simplified tax system.

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