The Supreme Court protected the rights of taxpayers who were not notified by the tax authority of the loss of the right to apply the simplified tax system

To begin with, let us remind you that not all companies and individual entrepreneurs can apply the simplified tax system. A complete list of those who are prohibited by law from working in a simplified job is contained in Article 346.12 of the Tax Code. These include companies with branches or representative offices, banks, insurers, investment and non-state pension funds, manufacturers of excisable goods, gambling companies, government and budget institutions, etc.

Switching to simplified mode is not that difficult. It's hard to stay on it. To do this, the “simplifier” must constantly keep certain events and actions under control.

Contributing events and actions

An organization is obliged to switch to the general taxation regime if in any quarter the following occurs:

• excess of the amount of income equal to 64,020 thousand rubles ((60,000,000 rubles x 1.067), where 1.067 is the deflator coefficient established for 2014 (approved by order of the Ministry of Economic Development of Russia dated November 7, 2013 No. 652)). When determining the amount of income, income from sales and non-operating income are taken into account. We must not forget that advances received from counterparties should be included in the calculation of the maximum amount of revenue. But dividends received from other organizations are not taken into account when determining the income limit. Financiers recently recalled this in a letter dated August 25, 2014 No. 03-11-06/2/42282;
• exceeding the average number of employees (100 people);
• excess of the residual value of fixed assets that are used to generate income (100,000,000 rubles);
• being included in the prohibited list from Article 346.12 of the Tax Code. For example, an organization loses the right to apply the simplified tax system if it engages in the production of excisable goods or registers branches or representative offices, or increases the total number of shares of participation of other organizations in its authorized capital to an amount exceeding 25 percent of its value.

Note that individual entrepreneurs have slightly fewer such events. For example, they do not have the opportunity to register branches (representative offices), as well as increase the participation shares of other organizations in the authorized capital, since they do not have an authorized capital. In addition, the condition for exceeding the residual value of fixed assets affects only organizations, and it does not apply to individual entrepreneurs (subclause 16, clause 3, article 346.12 of the Tax Code of the Russian Federation).

If at least one of the above events occurs, the “simplified” person will lose the right to apply the special regime from the beginning of the quarter in which this event occurred. He will be obliged to return to the general taxation system and pay generally established taxes.

Reference

The form for reporting the loss of the right to use the simplified tax system (form No. 26.2-2) is given in Appendix No. 2 to the order of the Federal Tax Service of Russia dated November 2, 2012 No. ММВ-7-3/829. The format for its presentation in electronic form was approved by order of the Federal Tax Service of Russia dated November 16, 2012 No. ММВ-7-6/878.

You will have to report your return to the general regime to your tax office within 15 calendar days after the end of the quarter in which the right to the simplified tax system was lost.

Let's look at an example of how an organization can lose the right to the simplified tax system due to excess income.
Example 1
A company applies the simplified tax system in 2014. Revenue from goods sold (work, services) for January - September of the current year amounted to 59,470,500 rubles, the amount of non-operating income for this period was 5,210,840 rubles. At the end of 9 months, the organization’s income reached 64,681,340 rubles (59,470,500 rubles + 5,210,840 rubles). And it exceeded the income limit established for the current year for the simplified tax system (64,681,340 rubles > 64,020,000 rubles). Since the condition for applying the “simplified tax” for income was violated in the third quarter, the organization loses the right to apply the simplified tax system from the beginning of this quarter. In this regard, from July 1, 2014, she needs to calculate and pay taxes in accordance with the general taxation system. The company must inform the tax office at the place of registration about the transition to the general taxation regime by October 15, 2014, using form No. 26.2-2.

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

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

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

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

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

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

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

If an organization operating under the simplified tax system has ceased to exist, it is necessary to submit a declaration to the tax authorities by the 25th day of the month following the month of termination of activity. Tax payment must be made during the same period.

What to do when returning to general mode

After returning to the general regime, former “simplified” residents will have to pay regular taxes:

• organizations – VAT, profit tax, corporate property tax;
• for individual entrepreneurs – VAT, personal income tax, property tax for individuals.

In addition, you will need to choose an accounting method for calculating income tax - cash or accrual.

If you choose the cash method to work in the general mode, then you will not have any particular difficulties, since you used the same method under the simplified tax system. But it is available only to those whose average revenue (excluding VAT) over the last four quarters has not exceeded one million rubles (clause 1 of Article 273 of the Tax Code of the Russian Federation).

An alternative to the cash method is the accrual method. In the future we will talk only about him.

If you intend to use this method, then problems may arise when leaving the "simplified" one. For example, for transactions in respect of which:

• an unprocessed prepayment has been received;
• an advance was issued to suppliers and contractors for future supplies of goods (works, services);
• goods have been shipped (work completed, services provided) to customers, but not yet paid for by them;
• goods (work, services) have been received from suppliers, but not paid for by you.

If you apply PBU 18/02 “Accounting for corporate income tax calculations,” then due to different rules for the formation of income and expenses, you will have to accrue differences, tax assets and liabilities.

Exercise of the right to deduct VAT

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

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

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

Income accounting

So, you have chosen the accrual method. In this case, when transitioning from the “simplified” regime to the general regime, we recommend remembering one basic “transitional” rule: all “transitional” income and expenses must be taken into account once - either within the framework of the “simplified” regime or within the general regime.

Thus, on the first day of the quarter from which the general regime is applied, “profitable” income will need to include all proceeds from the sale of goods that were not paid during the period of application of the simplified tax system.

The situation with advances is different. Having received an advance when working for the simplified tax system, you had to pay a single tax on it. Therefore, after the transition to the general regime, revenue for shipped goods (work, services) for which this advance was received does not need to be taken into account when calculating income tax.

Thus, when shipping goods (works, services), you recognize revenue in accounting, but not in tax accounting. Therefore, reflect a permanent negative difference. Use it to calculate the permanent tax asset:

DEBIT 68 subaccount “Calculations for income tax” CREDIT 99 subaccount “Permanent tax assets”
– a permanent tax asset has been accrued.
If you shipped goods (work, services) while working on a simplified platform, then the unpaid proceeds were not included in taxable income. Therefore, having received payment, being already in the general regime, attribute it to non-operating income as income “of previous years, identified in the reporting (tax) period” (clause 10 of Article 250 of the Tax Code of the Russian Federation). In this situation, revenue is recognized in tax accounting, but not in accounting. As a result, a positive permanent difference and a permanent tax liability appear:

DEBIT 99 subaccount “Permanent tax liabilities” CREDIT 68 subaccount “Calculations for income tax”
– a permanent tax liability has been accrued.
Thus, on the proceeds of goods (works, services) shipped but not paid for under simplified conditions, you must pay income tax in the first reporting period.

Let us show with an example how to apply PBU 18/02 when changing tax regimes.
Example 2
In December 2012, an organization bought a passenger car and put it into operation.
The book value of the car is 650,000 rubles, the useful life is 37 months in accounting and 60 months in tax accounting. In 2013, the company operated under the general tax regime, calculating income and expenses on an accrual basis. In accordance with the accounting policy in both accounts, depreciation was calculated using the straight-line method. In accounting, depreciation was calculated monthly on the car in the amount of 17,568 rubles (650,000 rubles: 37 months). In tax accounting, depreciation was calculated monthly in the amount of 10,833 rubles (650,000 rubles: 60 months). As a result, the company had a temporary deductible difference in the amount of 6,735 rubles (17,568 rubles - 10,833 rubles) and a deferred tax asset: DEBIT 09 CREDIT 68 subaccount “Calculations for income tax” – 1,347 rubles.
(RUB 6,735 × 20%) – deferred tax asset accrued. Since 2014, the organization has switched to a “simplified” system. By the beginning of 2014, the residual value of the car was:

• in accounting – 439,184 rubles (650,000 rubles – 17,568 rubles x 12 months);
• in tax accounting – 520,004 rubles (650,000 rubles – 10,833 rubles x 12 months).

Since a company using the simplified tax system cannot pay off the deferred tax asset and reduce income tax on it, it must be written off. This was done in 2013.

On December 31, the accountant made the following entry in accounting:

DEBIT 99 CREDIT 09
– 16,164 rub.
((520,004 rubles – 439,184 rubles) x 20%) – the deferred tax asset is written off. For the entire 2014 (the time of work on the simplified tax system), the organization has the right to write off as expenses part of the cost of the car in the amount of 260,002 rubles (520,004 rubles x 50%). Every quarter, the accountant records the amount of 65,000 rubles (260,000 rubles: 4 quarters) in the book of income and expenses.

However, the company worked on a simplified basis for only 6 months, having registered a branch. By the time of the return to the general taxation system (July 1, 2014), the residual value of the car turned out to be equal to:

• in accounting – 333,776 rubles (439,184 rubles – 17,568 rubles x 6 months);
• in tax accounting – 390,004 rubles (520,004 rubles – 65,000 rubles x 2 quarters).

The organization's accountant restored the temporary deductible difference in the amount of 80,820 rubles (520,004 rubles - 439,184 rubles) and the deferred tax asset written off during the transition to the simplified system:

DEBIT 99 CREDIT 09
– 16,164 rub.
– the written-off deferred tax asset was restored. For six months of work on "simplified" depreciation was accrued:

• in accounting – 105,408 rubles (17,568 rubles x 6 months);
• in tax accounting written off as expenses - 130,000 rubles (65,000 rubles x 2 quarters).

Thus, as of June 30, 2014, the temporary deductible difference was partially repaid in the amount of RUB 24,592 (RUB 130,000 – RUB 105,408).

On July 1, 2014, the accountant made the following entries in the accounting records:

DEBIT 44 CREDIT 02
– 105,408 rub.
– depreciation has been calculated on the vehicle; DEBIT 68 subaccount “Calculations for income tax” CREDIT 09
– 4918 rub.
(RUB 24,592 x 20%) – the deferred tax asset is partially repaid. From July 2014, the company will continue to charge depreciation in its accounting records in the amount of 17,568 rubles per month.

In tax accounting, it will be calculated based on the residual value of the car. This is stated in paragraph 3 of Article 346.25 of the Tax Code. And since the useful life of the machine has been established, we must proceed from it.

At the beginning of July 2014, the car had already been in use for 18 months. This means that its remaining useful life is 19 months in accounting and 42 months in tax accounting.

The depreciation amount will be:

• in accounting – 17,568 rubles;
• in tax accounting – 9286 rubles (390,004 rubles: 42 months).

That is, a temporary deductible difference will arise in accounting in the amount of 8,282 rubles (17,568 rubles - 9,286 rubles) for 19 months (as long as the car is depreciated in accounting):

DEBIT 44 CREDIT 02
– 17,568 rub.
– depreciation has been calculated on the vehicle; DEBIT 09 CREDIT 68 subaccount “Calculations for income tax”
– 1656 rubles.
(RUB 8,282 x 20%) – deferred tax asset accrued. After 19 months, depreciation will no longer be calculated in accounting, but will continue to be calculated in tax accounting (in the amount of 9,286 rubles). From this point on, temporary deductible differences and deferred tax assets will be gradually repaid until the vehicle is fully depreciated on the tax books. Every month the Progress accountant will make the following entries:

DEBIT 68 subaccount “Calculations for income tax” CREDIT 09
– 1656 rub. (RUB 8,282 x 20%) – the deferred tax asset is partially repaid.

On income recognition.

In the first month of the quarter in which the right to use the simplified tax system was lost, the taxpayer must recognize as part of his income the amounts of proceeds from the sale of goods, performance of work, provision of services during the period of application of the simplified tax system, payment (partial payment) for which was not made by the buyer until dates of transition to OSNO (clause 1, clause 2, article 346.25 of the Tax Code of the Russian Federation). This is understandable: what was not recognized as income using the cash method is considered income using the accrual method. That is, part of the receivables associated with goods (works, services) actually delivered but not paid for should be included in taxable income, regardless of the date of repayment of the debt. These amounts are qualified as income from previous years identified in the reporting (tax) period (clause 10 of Article 250 of the Tax Code of the Russian Federation). The question arises: what to do with another component of “receivables” - advances paid to suppliers? Well, by definition they cannot be recognized as income and for this reason they are not included in “transitional” income. When using the accrual method, prepayment amounts are not recognized as expenses on the basis of clause 14 of Art. 270 of the Tax Code of the Russian Federation[8], so they are not taken into account when determining “transition” expenses.

Regarding advances received

during the period of application of the simplified tax system in payment for services provided after the transition to the basic tax system, such amounts were already taken into account as part of taxable income under the simplified tax system and tax was paid on them. Therefore, it is quite logical that after the transition to OSNO, the taxpayer should not include in income the cost of goods (work, services) sold on account of the advance received earlier[9].

Expense accounting

Let us turn again to the main transitional rule. In accordance with it, the cost of goods (work, services) that were purchased during the period of work in the “simplified” regime, and paid for after leaving the special regime, can reduce taxable profit in the first reporting period of work in the general regime.

According to financiers, only former “simplifiers” with the object “income minus expenses” can take into account unpaid expenses when switching to a common system. Those who used the “income” object do not have the right to do so (letters of the Ministry of Finance of the Russian Federation dated 04/04/2013 No. 03-11-06/2/10983, dated 01/19/2012 No. 03-03-06/1/20 and dated 29.01. 2009 No. 03-11-06/2/12).

However, the judges in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 6, 2010 No. Ф03-8167/2010 indicated that the costs incurred under the simplified tax system must be taken into account in the general regime, regardless of which object of taxation was applied in the special regime. The specifics of the transition from the simplified tax system to the general system are established by paragraph 2 of Article 346.25 of the Tax Code for all organizations without exception. The fact that this rule is not applied by “simplified people” with the object “income” is not mentioned in this article. The arbitrators came to a similar conclusion in the resolution of the Federal Antimonopoly Service of the Ural District dated October 4, 2010 No. F09-8094810-S3 in case No. A50-3582/2010.

Consequently, an organization applying the simplified tax system with the object “income”, when switching to the general regime, can take into account in expenses accounts payable for goods (works, services) and property rights acquired during the period of application of the special regime. But given the opinion of officials on this issue, they will most likely have to defend their position in court.

On recognition of expenses.

By virtue of paragraphs. 2 p. 2 art. 346.25 of the Tax Code of the Russian Federation, in the month of transition from the simplified tax system to the basic tax system, the taxpayer recognizes expenses for the acquisition during the period of application of the “simplified system” of goods, works, services that were not paid for

(including partially) before the date of transition, unless otherwise provided by Chapter. 25 Tax Code of the Russian Federation. These expenses are qualified as non-operating expenses (clause 1, clause 2, article 265 of the Tax Code of the Russian Federation).

The Ministry of Finance has repeatedly explained that the above norm refers only to expenses that a “simplified person” could take into account when taxing, that is, those named in Art. 346.16, taking into account the provisions of paragraph 2 of Art. 346.17 of the Tax Code of the Russian Federation on the moment of their recognition[10]. For this reason, for example, there is no way to take into account when calculating taxable profit the amount of bad debts that arose during the period of application of the simplified tax system (Letter of the Ministry of Finance of Russia dated June 23, 2014 No. 03-03-06/1/29799).

A reasonable question arises: is it possible to apply the transitional provisions of paragraphs. 2 p. 2 art. 346.25 of the Tax Code of the Russian Federation, a taxpayer whose income was the object of taxation? Previously, financiers spoke out categorically: expenses related to tax periods in which the object of taxation in the form of income was applied are not taken into account

[eleven]. However, such an approach did not always find understanding among the arbitrators, who sided with the former “simplified” “income earners”. After all, the legislator, formulating the provisions of paragraph 2 of Art. 346.25 of the Tax Code of the Russian Federation, without mentioning the object of taxation. The most striking example of such a decision of the judges was the Resolution of the AS PO dated October 24, 2014 in case No. A72-339/2014, upheld by the Ruling of the Supreme Court of the Russian Federation dated March 6, 2015 No. 306-KG15-289. And so the Federal Tax Service included the aforementioned judicial act in the review of court decisions of the Armed Forces of the Russian Federation, sent for use in the work of lower tax authorities (Letter dated July 17, 2015 No. SA-4-7 / [email protected] ). However, the Ministry of Finance also admitted that the application of paragraphs. 2 p. 2 art. 346.25 of the Tax Code of the Russian Federation does not depend on the object of taxation under the simplified taxation system (Letter dated December 22, 2014 No. 03-11-06/2/66188).

Thus, when switching to the OSNO, the taxpayer has the right to include in expenses the accounts payable to suppliers and contractors generated when applying the simplified taxation system, regardless of the object of taxation chosen during the use of this special regime, however, provided that the corresponding expenses are, in principle, provided for in Chapter . 26.2 Tax Code of the Russian Federation.

One more point: in paragraphs. 2 p. 2 art. 346.25 of the Tax Code of the Russian Federation talks about expenses for the acquisition of goods, work, services, property rights, but in reality the taxpayer has the right to take into account expenses in the form of accrued wages, insurance premiums, taxes, etc. - financiers do not object (see, for example, letters dated 01.06.2007 No. 03‑11‑04/2/154, dated 06.10.2006 No. 03‑11‑02/711).

It should also be noted that “transition” expenses are recognized unless otherwise provided by the provisions of Chapter. 25 Tax Code of the Russian Federation. This means that the costs must, firstly, be confirmed by documents, and secondly, actually implemented. If according to the rules of Ch. 25 of the Tax Code of the Russian Federation, the moment of recognition of expenses has not yet arrived, then in the first month after the transition to OSNO such expenses are not recognized, the moment of its accounting is postponed until the date determined in accordance with Chapter. 25 Tax Code of the Russian Federation. For clarity, we present a table.

* See also Letter of the Federal Tax Service of Russia dated July 17, 2015 No. SA-4-7/ [email protected]

Determining the cost of fixed assets and intangible assets

It may happen that by the time you lose your right to the simplified tax system, the cost of any fixed assets or intangible assets will not be fully taken into account in your expenses. The question arises: is it possible to “complete” it after losing the simplified tax system?

If fixed assets (intangible assets) were acquired during the period of application of the simplified tax system, then everything will depend on the object of taxation.

For example, if the “simplified person” used the object “income”, then after the loss of the simplified tax system the cost of fixed assets (intangible assets) cannot be included in expenses when calculating income tax (letter of the Federal Tax Service of Russia dated October 2, 2012 No. ED-4-3/16539, Ministry of Finance of Russia dated 07.12.2012 No. 03-03-06/1/633).

But if the “simplifier” used the “income minus expenses” object, then the unaccounted cost of the objects is written off as “profitable” expenses through depreciation. In this case, the residual value of fixed assets (intangible assets) on the date of transition to the general regime is determined as the difference between the initial cost of the object and the cost written off as expenses when applying the “income-expenditure” simplified tax system.

Income not included in the calculation

The calculation does not include income that is not subject to a single tax under the simplified tax system. Such income includes:

• income specified in Art. 251 of the Tax Code of the Russian Federation (subclause 1, clause 1.1, article 346.15 of the Tax Code of the Russian Federation);
• income of the organization in the form of dividends and interest on certain types of securities provided for in subparagraph. 3 and 4 tbsp. 284 of the Tax Code of the Russian Federation (subclause 2 of clause 1.1 of Article 346.15 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated December 7, 2011 No. ED-4-3/ [email protected] );
• dividends that the participants of the simplified organization decided not to withdraw (law of September 30, 2017 No. 286-FZ);
• income of individual entrepreneurs subject to personal income tax at the rates provided for in sub. 2 and 5 tbsp. 224 of the Tax Code of the Russian Federation (subclause 3, clause 1.1, article 346.15 of the Tax Code of the Russian Federation);
• interest on bank deposits of individual entrepreneurs - the Ministry of Finance believes that they should be subject to income tax, and not simplified tax (according to the provisions of Article 214.2 of the Tax Code of the Russian Federation and recommendations of the Ministry of Finance from letters dated 04/06/2017 No. 03-11-11/20549 and dated 09/04/2014 No. 03-11-06/2/44294);
• personal money of a “simplified” individual entrepreneur, deposited into a current account or cash register (letter of the Ministry of Finance dated April 19, 2016 No. 03-11-11/24221);
• security payment (letter of the Ministry of Finance dated December 17, 2015 No. 03-11-06/2/7397).

Insurance premiums

Some “simplified” workers, before losing the right to the simplified tax system, calculated insurance contributions to extra-budgetary funds using general tariffs: 26 percent in the Pension Fund, 2.9 percent in the Social Insurance Fund, 5.1 percent in the Federal Compulsory Medical Insurance Fund. If such an organization loses the right to use the simplified tax system, then no changes will occur in terms of calculation and payment of contributions. It will continue to use general tariffs.

note

If the policyholder loses the right to apply reduced insurance premium rates, then in the RSV-1 Pension Fund calculation, compiled at the end of the period when this right was lost, two subsections 2.1 will need to be filled out - separately for each premium rate.

Things are different if the former “simplified” applied a reduced rate of insurance premiums. The category of beneficiaries, in particular, includes companies engaged in textile and clothing production, furniture production, construction, healthcare, and the provision of social services (subclause 8, clause 1, article 58 of Law No. 212-FZ of July 24, 2009).

If they are from a special regime, then from the beginning of the quarter when they lose the right to use the simplified tax system, they are required to pay insurance premiums at the basic rates (letter of the Ministry of Health and Social Development of Russia dated November 24, 2011 No. 5004-19). And if the loss of the simplified payment becomes known only in the last month of the quarter, contributions for the first, and maybe even the second, months will need to be additionally charged and paid.

In this case, you will not have to pay a penalty. After all, the restored amount of insurance premiums is not an additional payment due to incomplete payment of insurance premiums on time. And for previous periods, the reduced tariff was applied lawfully. Therefore, there are no grounds for charging a penalty (letter from the Ministry of Labor of Russia dated 05/04/2014 No. 17-4/ОOG-243, dated 07/05/2013 No. 17-3/1084).

An example will show what to do with reporting.
Example 3
Let's return to the conditions of example 2. Since the organization switched to the general regime from July 1, 2014, starting from the third quarter it must apply general insurance premium rates. Different tariff codes are provided for “simplified” and “general” tariffs. Therefore, in the calculation of the RSV-1 Pension Fund for 9 months of 2014 and for 2014, the company must include two sheets each of subsection 2.1 “Calculation of insurance premiums according to the tariff” of section 2. In subsection 3.5 “Calculation of the compliance of conditions for the right to apply a reduced tariff for paying insurance contributions by insurance premium payers specified in clause 8 of part 1 of article 58 of the Federal Law of July 24, 2009 No. 212-FZ” section 3, data for the first half of 2014 should be indicated, confirming the legality of using reduced insurance premium rates.

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.

Income tax

After switching to the general regime, you need to calculate taxes as if you were a newly created organization (clause 4 of Article 346.13 of the Tax Code of the Russian Federation).
Newly created ones can pay advance income tax payments quarterly. But they are forced to comply with the condition: sales revenue should not exceed one million rubles per month or three million rubles per quarter. Having violated the specified limit, the company will have to pay monthly advance payments from the next reporting (tax) period (clause 5 of Article 287 of the Tax Code of the Russian Federation). At the same time, there is no need to pay penalties for late transfer of advance payments to the “transition” quarter (clause 4 of Article 346.13 of the Tax Code of the Russian Federation). Example 4
LLC from July 1, 2014 switched from the simplified tax system to the general tax regime. Revenue from sales of products amounted to: in July - 800,000 rubles, in August - 1,100,000 rubles and in September - 1,200,000 rubles. Based on paragraph 2 of Article 286, paragraph 5 of Article 287 and paragraph 4 of Article 346.13 of the Tax Code, the company is obliged to pay a quarterly advance payment based on the results of the third quarter. But since revenue in the third quarter exceeded 3,000,000 rubles (3,100,000 rubles > 3,000,000 rubles), the company must make monthly advance payments during the next reporting period (fourth quarter). The amount of each payment will be 1/3 of the amount of the advance payment calculated for the third quarter.

If a company incurred a loss during the application of the simplified tax system, then after returning to the general regime it cannot take it into account in tax accounting.

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

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

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

Example 3. ABC LLC in the reporting period for the first quarter of 2020 indicates income equal to 152 million rubles. Thus, ABC LLC is obliged to begin conducting its activities in accordance with the general taxation system from the 2nd quarter. If ABC LLC does not voluntarily express a desire to change the taxation system, it will be forced to work in accordance with the general taxation system.

VAT

“Simplers” are not VAT payers, with the exception of VAT on the import of goods and when carrying out transactions under simple partnership agreements (joint activity agreements).

Therefore, difficulties in calculating this tax after the loss of the special regime may arise if the “simplified” person receives an advance payment, but ships goods (performs work, provides services), transfers property rights, having already switched to the general regime. In this case, he must include the prepayment amount in “simplified” income and pay a single tax on it.

After switching to the general regime, the company (entrepreneur) is obliged to issue VAT invoices to customers and pay tax to the budget. But since the prepayment was received during the period of work on the “simplified” system, VAT was not included in it.

Therefore, after switching to the general regime, draw up an additional agreement with the buyer to the contract, increasing its amount by VAT. The buyer will remit the tax to you.

If the terms of the contract cannot be changed, you will pay VAT to the budget at your own expense. As a result, you will lose a significant part of your profit.

Working on the simplified tax system, a company can purchase materials for production needs and goods for resale.

She must include the input VAT on materials in “simplified” expenses in full in the period when the materials are paid to the seller and posted to the warehouse.

The company will include input VAT on goods purchased for resale in expenses in proportion to the cost of goods paid to the seller and shipped to the buyer.

However, the organization may not use part of the resources during the period of work under the “simplified” tax regime, but do so under the general tax regime. Since inventories were not included in expenses when calculating the single tax, the company has the right to deduct VAT on them when it becomes a tax payer (clause 6 of Article 346.25 of the Tax Code of the Russian Federation). After all, the resources will now be used in operations subject to VAT. Such a VAT deduction can be applied from the first quarter, in which work resumes under the general regime (letter of the Ministry of Finance of Russia dated March 15, 2011 No. 03-07-11/53).

A more complex option is also possible, when a company buys inventories under the general regime, accepts VAT on them for deduction, and then becomes a payer of the simplified tax system.
The company recovers the deductible VAT and takes it into account as part of other expenses. At the same time, part of the goods purchased under the general regime of activity, and the other - after returning to the general taxation system. It will not be possible to deduct the recovered VAT on inventories that were not used while working on the simplified system. Since this is not provided for by the Tax Code (letters of the Ministry of Finance of Russia dated June 23, 2010 No. 03-07-11/265, dated January 27, 2010 No. 03-07-14/03, dated June 30, 2009 No. 03-11-06/3/174 ). Example 5
In November last year, an LLC, working in general mode, bought goods for 118,000 rubles (including VAT - 18,000 rubles).
We didn't manage to sell them last year. Since the beginning of this year, I have worked in this mode for six months, having lost the right to it from the beginning of the third quarter. During this time, goods worth 60,000 rubles were sold. The company was then forced to return to paying regular taxes. The accountant reflected transactions with this batch of goods with postings: in November 2013 DEBIT 41 CREDIT 60 - 100,000 rubles. (118,000 – 18,000) – goods are accepted for accounting; DEBIT 19 CREDIT 60 – 18,000 rub. – VAT on goods is taken into account; DEBIT 68 subaccount “Calculations for VAT” CREDIT 19 – 18,000 rub. – accepted for deduction of VAT on goods; DEBIT 60 CREDIT 51 – 118,000 rub. – goods have been paid to the supplier. December 31, 2014 DEBIT 19 CREDIT 68 subaccount “VAT calculations” – 18,000 rubles. – input VAT on goods has been restored; DEBIT 91 subaccount “Cost of sales” CREDIT 19 – 18,000 rub.
– the recovered VAT is written off as other expenses. An invoice for VAT amounting to 18,000 rubles was entered into the sales book.

The “fate” of VAT on fixed assets and intangible assets depends on the period of their purchase (creation, construction, etc.): before the transition to the simplified system or while working on the simplified system.

If a company acquired a non-current asset under the general taxation system, then on the eve of the transition to the simplified system, it restores the input VAT, writing it off as other expenses.

If a non-current asset was acquired by a “simplified” person, then the VAT presented by the supplier must be taken into account in the cost of the property. When putting a fixed asset into operation (accepting intangible assets for accounting), the tax can be written off as an expense.

If the object was not put into operation, then the costs of its purchase were not taken into account when calculating the “simplified” tax (subclause 1, clause 3, article 346.16 of the Tax Code of the Russian Federation). Consequently, the organization also did not take into account the amount of input VAT in expenses that reduce the tax base. It follows from this that after the transition to the general taxation regime, input VAT on non-current assets that were not put into operation under the simplified tax system can be deducted in the generally established manner (clause 1 of Article 172 of the Tax Code of the Russian Federation). The same is stated in letters of the Ministry of Finance of Russia dated March 17, 2010 No. 03-11-06/2/36 and dated January 29, 2009 No. 03-07-10/03.

Rules for the formation of the tax base for the transition period In 2005

Currently, it is assumed that a return to the general regime should be carried out according to the following rules established by paragraph 2 of Art. 346.25 Tax Code of the Russian Federation.

Rule 1. When transitioning to a general taxation regime, funds received after the transition to a general taxation regime are not included in the tax base if, according to tax accounting rules, these amounts were included in income when calculating the tax base when applying a simplified taxation system.

Rule 2. Expenses incurred by the taxpayer during the period after the transition to the general taxation regime are recognized as expenses deducted from the tax base on the date of their implementation, regardless of the date of payment of such expenses.

However, these rules do not regulate the procedure for accounting for income (expenses) received (produced) but not taken into account during the period of application of the simplified tax system due to their non-payment. Moreover, rule 1 does not actually apply. Since the simplified tax system uses the cash method of accounting for income and expenses, the situation described in rule 1 is impossible in principle: income that is actually not received (in the form of cash and other property) cannot be included in the income that forms the tax base for the single tax.

Rule 2 is obvious, describes the procedure for accounting for expenses when applying the general tax regime and, in our opinion, does not reflect the process of transition from one tax regime to another. In this case, it would be more appropriate to talk about accounting for expenses incurred during the application of the simplified tax system and paid after the transition to calculating income tax using the accrual method.

In general, when deciding on the accounting of certain incomes or expenses that form the tax base, within the framework of a particular taxation regime, one should proceed from the fact that income and expenses should, in principle, be taken into account. And if they cannot be taken into account when applying the simplified tax system due to their non-payment, they should be taken into account when applying the general taxation regime.

The Ministry of Finance of Russia in Letter dated March 10, 2005 N 03-03-02-04/1-62 regarding the determination of the tax base during the transition period stated the following: “Inclusion in the tax base for the purpose of calculating the single tax of amounts of income that were not actually received into accounts in banks and (or) to the cash desk of an organization during the period of application of the simplified tax system, and accordingly their non-inclusion in the tax base upon transition to the general taxation regime, as well as other deviations from the provisions of Chapter. 26.2 of the Code, despite the fact that such actions may be “expedient, fair and simple” for the organization, is a violation of the legislation of the Russian Federation on taxes and fees, in particular Articles 346.17 and 346.25 of the Code.”

Thus, it can be argued that funds and other property received during the period of application of the general tax regime in payment for goods (work, services) shipped (performed, rendered) during the period of application of the simplified tax system are subject to inclusion in the tax base for income tax.

Example 1 . In June 2005, an organization using the simplified tax system shipped products worth 40,000 rubles to the buyer. Cash to pay for the products was received in September. Based on the results of 9 months of 2005, the organization's income amounted to 19 million rubles.

Accordingly, the organization must switch to the general taxation regime from July 1, 2005. Income in the amount of 40,000 rubles. will be taken into account when calculating the tax base for income tax.

On the date of transition to the general taxation regime, tax accounting must reflect the residual value of fixed assets, which in 2005 is determined based on their original cost minus depreciation amounts calculated for the period of application of the simplified taxation system in the manner prescribed by Chapter. 25 of the Tax Code of the Russian Federation (clause 3 of article 346.25). Moreover, if the amount of expenses for the acquisition of fixed assets, accepted when calculating the tax base for the single tax for the period of application of the simplified tax system, exceeded the amount of depreciation calculated in accordance with Chapter. 25 of the Tax Code of the Russian Federation, they do not reduce the residual value of fixed assets on the date of the taxpayer’s transition to the general taxation regime, and the resulting difference is recognized as income upon transition to the general taxation regime.

Example 2 . The organization has been applying the simplified tax system since January 1, 2005. As of January 1, 2005, the organization’s balance sheet included an item of fixed assets with an initial cost of 60,000 rubles and a useful life of 5 years. The annual depreciation rate for accounting and tax purposes is 20%. The residual value of the property as of January 1, 2005 is 52,000 rubles.

From October 1, 2005, the organization switched to the general taxation regime (one of the conditions for applying the simplified tax system was violated).

Based on paragraphs. 2 p. 3 art. 346.16 of the Tax Code of the Russian Federation for 9 months of 2005, 19,500 rubles were included in expenses for such an item of fixed assets. (26,000 rub.

Organizational property tax

The object of taxation for corporate property tax is movable and immovable property, which is taken into account on the balance sheet as fixed assets according to accounting data.

The tax base for this tax is calculated, in particular, based on the residual value of real estate and movable property accepted for accounting as fixed assets before January 1, 2013 (clause 1, subclause 8, clause 4, article 374 of the Tax Code of the Russian Federation).

And even if by the time you lose the “simplified tax” the value of your fixed asset has been completely written off in tax accounting, but not completely written off in accounting, it must be included in the base for calculating property tax.

Since, when switching from the simplified tax system to the general regime, taxes are considered as for a newly created organization, for calculating the tax, the residual value of fixed assets in those months when is taken equal to zero (clause 1 of article 375, clause 4 of article 346.13 of the Tax Code of the Russian Federation).

note

Starting from 2020, “simplified” people become payers of corporate property tax, paid in relation to real estate, the tax base for which is determined as their cadastral value (clause 2 of article 346.11 as amended by Law dated 02.04.2014 No. 52-FZ).

Who has the right to apply the simplified tax system

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

Last declaration

Having lost the right to the simplified tax system, the former “simplified tax” must calculate the single tax for the last time and submit a “simplified” declaration.

If you leave the simplified system before the end of the year, the last reporting period for the single tax is also the last tax period (letter of the Federal Tax Service of Russia dated March 27, 2012 No. ED-4-3/5146). And the last tax period, as controllers indicate, will be considered the reporting period preceding the quarter from the beginning of which the company switches to the general regime.

Thus, for a “simplified” person with the object “income,” the last payment for the “simplified” tax will be the payment for the reporting period preceding the quarter in which the right to the simplified tax system was lost. All he has to do is submit a tax return for this reporting period. This must be done no later than the 25th day of the first month following the quarter in which the company lost the right to the special regime (clause 3 of Article 346.23 of the Tax Code of the Russian Federation).

This rule also applies to most “simplified” people with the object “income minus expenses”. Why most and not all? The fact is that, under certain conditions, some firms and entrepreneurs are required to calculate and pay a minimum tax of one percent of the amount of income received. This happens if the amount of tax calculated at the end of the tax period in the general manner is less than the amount of the minimum tax calculated for the same period. Or when a loss is received at the end of the tax period (clause 6 of Article 346.18 of the Tax Code of the Russian Federation).

For a long time, officials strongly recommended using this procedure for calculating the minimum tax for “simplified” people who had lost the right to use the special regime before the end of the year (letter of the Federal Tax Service of Russia dated March 27, 2012 No. ED-4-3/5146, Ministry of Finance of Russia dated June 8, 2005 No. 03-03- 02-04/1-138, dated 05.24.2005 No. 03-03-02-04/2/10).

The Presidium of the Supreme Arbitration Court of Russia came to a similar conclusion. In the resolution dated July 2, 2013, senior judges indicated that the tax period in relation to the simplified tax system is the reporting period preceding the quarter in which the “simplified” lost the right to apply this tax regime.

This means that a company (entrepreneur) that has lost the right to the income-expenditure simplified tax system will need to submit a final declaration and transfer the tax itself no later than the 25th day of the first month following the quarter in which it lost the opportunity to apply the special regime (clause 7 of Art. 346.21, paragraph 3 of Article 346.23 of the Tax Code of the Russian Federation).

Let's look at an example of how to pay tax and file a return in this case.
Example 6
An organization worked for a year using the simplified tax system, paying a single tax on the difference between income and expenses. For six months, she received income in the amount of 30,500,000 rubles, expenses for this period amounted to 29,000,000 rubles. In September, the company's income exceeded the permissible limit. As a result, the company lost the right to a simplified regime in the third quarter. The amount of the advance payment for the single tax for the half-year was: (30,500,000 rubles – 29,000,000 rubles) × 15% = 225,000 rubles. The amount of the minimum tax for the tax period is: RUB 30,500,000. × 1% = 305,000 rub. Since the minimum tax is greater than the single tax, the company must submit a final return and pay the minimum tax. The tax must be transferred no later than the 25th day of the first month following the third quarter, i.e. no later than October 25 of the current year. The company's accountant must send a message to the tax office about the loss of the right to use the simplified tax system in form 26.2-2 no later than October 15 of the current year.

Thus, if an organization has lost the right to use the simplified tax system during the year and has not completed the entire tax period under this special regime, it is not exempt from paying the minimum tax (if there are appropriate grounds for this).

Boris Svain, for the magazine “Practical Accounting”

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Conditions for returning to general mode

In paragraph 3 of Art. 346.12 of the Tax Code of the Russian Federation lists certain categories of taxpayers who do not have the right to apply the simplified taxation system (clauses 1 - 13), and establishes the conditions for its application (clauses 14 - 16).

Please note that clause 3 of Art. 346.12 of the Tax Code of the Russian Federation determines not the criteria that organizations and individual entrepreneurs must meet at the time of transition to the simplified tax system, but the conditions under which they, in principle, do not have the right to apply this tax regime. Therefore, it is obvious that taxpayers corresponding to those established in paragraph 3 of Art. 346.12 of the Tax Code of the Russian Federation, the conditions at the time of the transition to the simplified tax system and those who violated them in the process of applying the “simplified tax system” must return to the general taxation regime.

Meanwhile, the mechanism for returning to the general taxation regime is spelled out in the current version of Chapter. 26.2 of the Tax Code of the Russian Federation does not apply to all cases of violation of the conditions for applying the simplified tax system: clause 4 of Art. 346.13 of the Tax Code of the Russian Federation obliges taxpayers to return to the general taxation regime only if they exceed the income limit (15 million rubles) and the residual value of fixed assets and intangible assets (100 million rubles). However, despite this, the official bodies require a return to the general taxation regime in 2005 in the manner established by clause 4 of Art. 346.13 of the Tax Code of the Russian Federation, in case of violation of other conditions established by Art. 346.12 Tax Code of the Russian Federation. This is the position of the Ministry of Finance of Russia, set out, in particular, in Letters dated 05.08.2004 N 03-03-02-04/1/2 and dated 28.01.2005 N 03-03-02-04/1/25.

To be fair, it should be noted that the courts often decide this issue in favor of the taxpayer (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated April 21, 2005 N KA-A41/3201-05).

From January 1, 2006, with the entry into force of Art. 1 of Federal Law No. 101-FZ of July 21, 2005, which amended the wording of Ch. 26.2 of the Tax Code of the Russian Federation, the situation will be resolved.

According to the new edition of paragraph 4 of Art. 346.13 of the Tax Code of the Russian Federation, a taxpayer is recognized as having lost the right to use the simplified tax system if he violates any of the established clauses 3 and 4 of Art. 346.12 of the Tax Code of the Russian Federation requirements.

In addition, in 2006, those whose income at the end of the reporting (tax) period, determined in accordance with Art. 346.15 et pt. 1 and 3 paragraphs 1 art. 346.25 of the Tax Code of the Russian Federation, will exceed 20 million rubles.

Loss of the right to use the simplified tax system in 2018

The legislation establishes a fine: for citizens - from 100 to 300 rubles, for officials - from 300 to 500 rubles.

From the moment of transition to the general taxation regime, the organization must calculate and pay taxes according to the general taxation regime: income tax, which is calculated only based on the data of the quarter in which the organization lost the right to the simplified taxation system, similar to VAT, corporate property tax.

Penalties and penalties for late payment of monthly payments during the quarter in which the organization switched to the OSN are not accrued to it (paragraph 2, paragraph 4, article 346.13 of the Tax Code of the Russian Federation). Even if she did not notify the tax authority on time about the loss of the right to use the simplified tax system (see Resolution of the Federal Antimonopoly Service of the Far Eastern District dated November 5, 2008 N F03-3908/2008).

Also, the organization is not held liable for late submission of declarations for this period for those taxes that are paid under OSNO. This was brought to the attention of the Federal Antimonopoly Service of the West Siberian District in Resolution No. F04-6118/2008 dated 05.11.2008 (15332-A81-34).

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