Differentiated tax. What are differentiated rates and how are they applied? Transport tax benefits

Differentiated rates for the general tax paid under the simplified taxation system (STS) suggest that the amount of this fee may vary.

Its exact value can range from 5 to 15% of the object of taxation, while the possibility of such differentiated rates arises only if, as an object of taxation, the organization has chosen one of the two available under the simplified tax system, namely income minus expenses (and not income itself) .

Concept and legislative regulation

Similar differentiated rates for such collection are established by the Russian Federation; regions have the right to set them in any amount within the specified range from 5–15 percent of the mentioned tax base.

A differentiated tax rate assumes that, with the same levy from different enterprises, they will be subject to different percentages. Its exact value will be be determined by additional circumstances.

In particular, differentiated tax rate in Russia valid for the fee levied on organizations that have switched to a simplified taxation system, the latter is also abbreviated as simplified taxation.

The simplified taxation system itself assumes that the single payment applicable in accordance with it for a given company replaces a number of others.

These include, first of all, taxes levied on profit organizations, however, this exemption does not apply to the fee that is required to be paid on income that is accrued as dividends.

Moreover, this value added tax(VAT). In addition, the number of such fees replaced by this single tax, paid under a simplified approach, includes that charged on property.

However, starting from 2015, organizations that work under the simplified tax system must still pay this property tax, for which the cadastral value is determined as the tax base.

Moreover, all other taxes in addition to those listed by the organization deducted in full.

At the same time, as object of taxation for the general fee paid by organizations that have switched to the simplified system, either the income itself is determined, or (in a separate case) income, which is reduced by the amount of expenses.

Use for simplified taxation system

Rates for total tax paid with a simplified system taxation vary depending on the object of taxation.

This may be the income of the enterprise, in which case the rate will be 6%. It is also allowed that object of taxation were income minus expenses. In such a situation, the default rate is 15%.

In the latter case (if the object of taxation is income minus expenses), it also becomes possible to introduce differentiated rates, which form the main topic of this article. This right belongs to the constituent entities of the Russian Federation. The range of this value can be from 5 to 15 percent.

In the Russian Federation there is more than 80 subjects Federation, and they offer a very diverse range of general tax rates under the simplified tax system in a specified range from 5 to 15% of income minus expenses.

Conditions of use

Differentiated rates can be chosen only by those organizations that are entitled to the simplified tax system.

A similar opportunity to switch to a simplified system exists for enterprises whose total income from product sales minus value added tax, as well as received from non-operating sources, for a certain period does not exceed a certain value.

Such a period is taken to be nine months related to the calendar year when the corresponding application was received from such a structure.

Please note that such figures may change. So, for the first 9 months of 2016, the amount of this income could not be more than 59.805 million rubles.

And for similar period in 2017, the same figure should not have exceeded the amount of 112.5 million.

It is stipulated that in the future until 2020 for this value the deflator coefficient will no longer be applied. In other words, during this period it will remain unchanged.

Also, for such an organization for the specified period, the average number of employees should not exceed the limit of one hundred people.

In addition, a restriction has been established and for fixed assets, the residual value of the latter cannot be more than 150 million. Moreover, this rule applies only to such fixed assets for which depreciation is carried out, and which, according to Russian legislation, are considered as depreciable property.

Thus, capital construction projects that are currently classified as unfinished, as well as land plots and other land use facilities, are not included in the specified limit of 150 million rubles.

For organizations, there are additional conditions for the transition to the simplified tax system. In particular, other companies cannot own more than a quarter of such organizations (i.e., the share of participation is not more than 25%, otherwise they are deprived of such a right).

At the same time, this restriction on the share of other organizations in the property of this one should be observed for the entire time while they are working on the simplified system. They will not be provided with the simplified tax system if given limit will be violated when they request a transition to such a regime. If they cease to meet this requirement during the period of validity of the simplification, then they will also lose the right to it.

Also not allowed simplification for structures who have their own branches or if they have representative offices.

Besides this there is a whole range of directions, activity within the framework of which is a circumstance that certainly prohibits the transition to the simplified tax system (and, accordingly, the use of differentiated rates within the simplified framework).

In particular, for such a regime cannot claim structures that produce products on which excise taxes are levied.

It is also not available to businesses that are developing minerals, the exceptions in this case are those varieties that are common.

In addition, this opportunity is not available for organizations that are engaged in trade on a professional basis. on the securities market. Likewise, the structures running the gambling business are deprived of it.

Additionally, such a right does not exist for lawyers who have own law offices or institutions that belong to other forms of similar entities, as well as notaries who conduct their own practice.

If an organization is charged a single agricultural tax (UST), then it represents a separate regime, different from the simplified tax system. And in this case, such companies also do not have the right to simplification.

If all the above conditions are met and the company have the right to the simplified tax system, then you should further find out whether it has the ability to apply differentiated rates to it.

The main condition for gaining access to such a rate, which applies to all regions, is that the structure so that gain access to these rates, is obliged to switch to a simplified taxation system with the object of taxation “income from which expenses have been deducted.”

Legal entities that simply have income as such an object do not have such an opportunity.

As a general rule, an enterprise decides independently, what the object of taxation will be for him. All companies entitled to the simplified tax system have the opportunity to prefer either of the two options.

Further conditions are determined at the level of individual subjects Russian Federation. Each of them has the opportunity to set their own differentiated rates for such cases. Their size can range from 5 to 15 percent.

Established benefits

Benefits for enterprises that operate on a simplified taxation system, are absent, since the simplified tax system itself is already preferential and assumes that companies pay less tax than in the general case.

At the same time, differentiated rates by general tax according to the simplified tax system, although they provide for a reduction in its value, they are not considered as benefits.

Payment Features

When paying the main fee according to the simplified tax system for the tax period, it is accepted one year period. There are also three reporting periods, namely quarterly, half-yearly and nine-monthly.

An advance payment is required for each of these accounting periods. The company is obliged to transfer it on time 25 calendar days after the expiration of the reporting period (for example, for a quarterly period - no later than April 25).

Required to be paid at the end of the year all tax minus advance payments, which are counted towards its size.

The enterprise is required to fulfill this obligation to the budget within three months after the expiration of the tax period, i.e. until March 31 of the next calendar year. For individual entrepreneurs, a longer period of four months has been defined (until April 30).

During a similar period (i.e., until March 31 for companies and April 30 for individual entrepreneurs), it is also necessary to draw up a declaration for the general tax under the simplified tax system. It is provided to the appropriate branch of the Federal Tax Service, for companies this is the branch at their location, and for individual entrepreneurs - at the place of his residence.

For more information on how to find out the tax rate under the simplified tax system, see the video below.

Tax rate is the amount of tax per unit of taxation. Determines the portion of income that goes into the budget. In accordance with the Tax Code of the Russian Federation N.s. represents the amount of tax charges per unit of measurement of the tax base.

Tax rates are used to calculate the tax burden of an enterprise in the FinEkAnalysis program in the Calculation of tax burden block.

According to the method of establishment, rates are distinguished:

• fixed - set in an absolute amount per unit of taxation, regardless of the amount of income (usually used when real taxes are imposed on land plots, houses, etc.);
• interest (tax quotas) - expressed as a percentage of the taxation unit, characteristic of the taxation of profits and income.

In relation to the growth dynamics of the tax object, the following rates are distinguished:

• proportional - act in the same percentage of the tax object without taking into account income;
• progressive - increase as taxable income grows;
• regressive - decrease as income increases.

• marginal [directly specified in the tax regulations and applied to the department. parts of income (categories or margins), for example, in the personal income tax of the Russian Federation at different times marginal rates of 12, 15, 20, 25, 30 and 35% were used];
• actual [defined as the ratio of tax paid to the tax base];
• economic [defined as the ratio of tax paid to all income received].

Tax rates can be uniform for all taxpayers or differentiated. Differentiated tax rates are established by tax legislation within certain norms for various reasons:

• differences in the material, property or social status of payers;
• personal services to the state;
• organizational and legal forms of activity, etc.

Differentiation of tax rates can help support the development of individual industries, industries, regions, the flow of capital across areas of activity, attract foreign capital to the economy, and achieve other financial, economic and social results.

Tax rate

Tax rate– the amount of tax charges per unit of measurement of the tax base.

The tax rate is one of the mandatory elements of the tax and one of the main criteria for calculating the tax, along with the object of taxation, the tax base, the tax period, the procedure for calculating the tax amount, etc.

Only when the entire set of these elements is determined, the tax is considered established.

Main types of tax rates

According to the method of calculation, tax rates are of four types: fixed, proportional, progressive and regressive.

Fixed tax rates are set in an absolute amount per unit (sometimes the entire object) of taxation, regardless of the size of the tax base (for example, transport tax). This rate is also called the real tax.

Fixed rates are quite simple from the point of view of calculation by the taxpayer and control by the tax authorities. The specified rates are applied in cases where the tax base represents any quantitative characteristic of the object of taxation, with the exception of the cost characteristic. However, a significant drawback of this type of rate is that in conditions of inflation it is necessary to periodically increase this rate in order to maintain the proper level of property seizure in the form of tax.

The proportional tax rate is expressed as a certain percentage of the tax base, regardless of its volume (for example, income tax, VAT, property tax).

Another example of a proportional tax rate is the personal income tax rate, which is 13 percent.

Proportional rates are applied in cases where the cost characteristics of the taxable object are used as the tax base. The rates are quite universal, since while maintaining the general state tax policy, they do not require indexation.

A progressive tax rate increases as the tax base increases.

There are two types of progressive bets: simple and complex.

With simple progression, the rate increases as the tax base for the entire amount of income increases.

With complex progression, the tax base is divided into parts, each of which is charged tax at its own rate. In this case, the rate is increased not for all income, but only for part of it, which has increased relative to the previous tax period.

The regressive tax rate decreases as the tax base increases. Regressive tax rates are necessary when the government tries to stimulate such growth.

The tax rate expressed as a percentage of the payer's income is called a tax quota.

Great Encyclopedia of Oil and Gas

Differential rate

Differentiated rates are determined by multiplying the basic payment standards by coefficients that take into account environmental factors.

Differentiated fee rates are determined by multiplying the basic fee standards by a coefficient that takes into account environmental factors.

Differentiated fee rates are determined by multiplying the basic fee standards by coefficients that take into account environmental factors.

Differentiated rates of payment for pollution are determined by multiplying the basic payment standards by coefficients that take into account environmental factors for territories and river basins. The coefficients of the ecological situation and the ecological significance of the state of atmospheric air and soil were calculated based on the assessment data of the laboratory for monitoring the natural environment and climate of the State Committee for Hydrostatism of the Russian Federation and the Academy of Sciences. They are based on an indicator of the degree of pollution and degradation of the natural environment in the economic regions of the Russian Federation as a result of emissions into the atmosphere inherent in these areas and waste generated and disposed of on their territory. The coefficients of the environmental situation and the ecological significance of the state of water bodies are calculated based on data on the amount of discharged contaminated wastewater and the category of the water body.

Differential rates are calculated for zones of the city (town) based on the average tax rate.

It is not allowed to establish differentiated rates of taxes and fees, tax benefits depending on the form of ownership, citizenship of individuals or place of origin of capital.

It is not allowed to establish additional taxes, increases or differentiated tax rates or tax benefits depending on the form of ownership, the legal form of the organization, the citizenship of an individual, as well as the state, region or geographical place of origin of the authorized capital (fund) or property of the taxpayer.

In accordance with the Tax Code of the Russian Federation, it is not allowed to establish differentiated rates of taxes and fees, tax benefits depending on the form of ownership, citizenship of individuals or place of origin of capital.

An exception to this rule is the permission to establish special types or differentiated rates of customs duties depending on the country of origin of the goods.

An exception to this general principle is the permission to establish special types of duties or differentiated rates of import customs duties depending on the country of origin of the goods in accordance with the Tax Code and customs legislation of the Russian Federation.

I believe we will do the right thing if we return to considering the issue of applying a differentiated mineral extraction tax rate, taking into account mining and geological conditions and the degree of depletion of oil reserves. This is especially important for the development of low-yield fields with difficult-to-recover reserves, as well as former highly productive oil fields, which today have a water cut of up to 85 percent or more.

If the profitability of an enterprise exceeds the established threshold level, then the profit corresponding to this excess is taxed at differentiated rates.

The fourth, offset method on accounts is most widely used, since it is the most transparent for verification and allows the use of a differentiated tax rate.

Contradictions between the incentive goals of flexible taxation and the fiscal interests of the state can be significantly weakened provided that differentiated tax rates on gas production are applied only to new fields proposed for development. That is, in cases where the question is either-or: either the field will be put into operation thanks to the provision of benefits (and the state will receive a smaller volume of tax payments), or the field will not be developed at all, and the state will not receive any taxes from it.

Transport tax rates for 2017-2018

Transport tax rate is established by the laws of the subject of the Russian Federation, but cannot be greater than the maximum size specified in the Tax Code of the Russian Federation. Our special section will help you calculate the tax base and the amount of payment to the budget for the vehicle. The materials in this section will be useful not only to company accountants, but also to individuals and individual entrepreneurs.

General information about transport tax

Transport tax is a direct payment to the budgets of the regions of the Russian Federation. It is paid by the owners of cars and other vehicles. The obligation to pay tax is assigned to both legal entities and citizens - owners of vehicles. The larger and more powerful the car, the higher the tax amount. The procedure for its calculation and payment is regulated by Ch. 28 of the Tax Code of the Russian Federation and regional legislative acts.

IMPORTANT! The tax rate for transport tax is set by regional authorities.

Transport tax was introduced into Russian economic practice in 2003. In most countries of the world there is no such tax - instead, environmental taxes, road taxes, and taxes on movable property are levied.

The economic meaning of the transport tax is to compensate car owners for damage to the environment and road surfaces. A similar function is performed by excise taxes on gasoline and car production, so in fact the car owner is subject to several taxes at the same time. In 2010, the Government of the Russian Federation proposed to abolish the transport tax, replacing it with an increase in excise taxes on fuel. Excise taxes increased, but the transport tax remained.

With the introduction of the Platon system for trucks in 2015, the idea of ​​abolishing the transport tax was voiced by the President of the Russian Federation. However, everything was limited only to the introduction of a tax deduction for heavy trucks, and then only for the period 2016-2018.

Another initiative of officials is to replace the transport tax with an excise tax on fuel. The meaning of the proposed payment is that a citizen or organization will pay only for the actual time of using transport.

Should we expect the transport tax to be abolished in 2018? and how the government plans to ease the tax obligations of vehicle owners, read here.

Transport tax payers

According to the Tax Code of the Russian Federation, tax payers are the persons to whom the vehicle is registered. It does not matter whether an individual is an entrepreneur or not - the obligation to pay tax remains in any case. And legal entities pay 2 taxes on cars:

• on the property of organizations;
• directly transport.

Since 2013, companies have not paid tax on movable property, however, starting from January 1, 2015, only property belonging to the 1st and 2nd depreciation groups is exempt from taxation. Motor vehicles are not included in these groups; therefore, the company must pay both transport tax and property tax on them.

In 2017, with regard to movable property, regions were given the right to independently decide on the introduction of benefits for this property. It will be implemented from 2018 and may have 2 scenarios:

• the region adopted a law on benefits in 2017 - the benefit has been applied since 2018;
• the law has not been adopted by the region - the benefit has not been valid in the region since 2018.

Since the end of 2015, another fee has been added to payments for cars for companies - for trucks with a maximum weight of more than 12 tons, to compensate for damage to the road surface. It is listed using the Plato system. Payments paid for heavy vehicles, from 07/03/2016, reduce the amount of tax accrued on these vehicles. But such a decrease is valid only for the period 2016-2018.

Transport tax benefits

Who can avoid paying transport tax? The list of persons entitled to benefits under this payment is established in each region separately. However, the following can count on easing the tax burden:

• disabled people of groups I and II;
• WWII veterans;
• heroes of the USSR, holders of the Order of Glory;
• public organizations of disabled people and companies organized by disabled people;
• pensioners and large families (in some regions).

Find out who has transport tax benefits in 2017 here.

Benefits come in different forms. For example, the payer is exempt from paying tax for only one car or pays half of the tax payment amount calculated on a general basis.

The companies organizing the 2018 FIFA World Cup also do not pay the tax. Transport tax holidays may be established in free economic zones. For example, residents of the Zelenograd special economic zone are provided with a 5-year benefit on this payment.

Information on the amount of tax payable to individuals is provided by tax authorities based on the information they have.

IMPORTANT! Until May 2014, the owner of a vehicle could not pay tax if he did not receive an INFS notification by mail in Russia. Since May 2014, citizens have been obliged, if they do not receive a notification from the Federal Tax Service, to independently transfer to the tax authority information about the property they have acquired, including vehicles (Law No. 52-FZ dated 02.02.2014). Read more about this here.

Legal entities calculate the amount of transport tax themselves based on data on movable property registered on the company’s balance sheet. The transport tax rate for 2017-2018 for organizations is determined by the regulations of the constituent entities of the Russian Federation.

Subject to transport tax

What property is transport tax levied on? This issue is regulated by the provisions of Art. 358 Tax Code of the Russian Federation. These are cars, motorcycles, buses, airplanes, helicopters, yachts and other self-propelled watercraft, jet skis, motor sleds and motor boats, as well as a number of other vehicles.

Find out how the tax base for transport tax is determined here.

Not all property that moves is taxed, but only vehicles of a certain capacity. So, they don’t pay tax:

• owners of low-power vehicles, for example, rowing and motor boats, if the power of the motor boat is no more than 5 horsepower;
• disabled people in special cars, if their engine power does not exceed 100 horsepower and they are received through social security authorities.

You need to pay tax on those types of vehicles that are subject to state registration. Some sectors of social importance (for example, agriculture, medicine, border protection and law enforcement) are exempt from paying transport tax on the transport they use. So:

• For organizations and entrepreneurs who carry out river, sea and air transportation, the following relaxation of the tax regime is provided: self-propelled vessels and aircraft belonging to them are not subject to transport tax.
• A similar benefit applies to agricultural producers. Tractors, combines and some other agricultural equipment (for example, milk tankers, livestock trucks, veterinary care vehicles) are not subject to transport tax, provided that they are used specifically for agricultural work.
• Government bodies engaged in law enforcement or military service do not pay this tax either.
• Airplanes and helicopters used in medicine are also exempt from transport tax, as are platforms (mobile and stationary) for oil drilling in the seas.
• Ships listed in the Russian International Register of Ships are also not subject to transport tax.

The tax is not paid if a car or other vehicle from an individual or organization is stolen by criminals (if the victim has documents issued by the internal affairs bodies).

IMPORTANT! The tax rate and the amount of payment depend on the power of the vehicle. Power is usually indicated in horsepower. If the data is indicated in kilowatts, then they are converted to horsepower on the basis that 1 kilowatt is equal to 1.3592 horsepower. For some property, such as aircraft, the tax is calculated on each kilogram of thrust. For specific types of transport (water or air vehicles without an engine), the tax base is determined per unit of transport.

Procedure for calculating transport tax

The amount of transport tax payable for the year for individuals and entrepreneurs is calculated by the tax authorities themselves. The tax period for them is one year. The Federal Tax Service determines the tax base as the power of a vehicle engine in horsepower. For expensive cars, special increasing coefficients have been established, which depend not only on the cost of the car, but also on the length of ownership. Data on the average cost of passenger cars and the criteria for classifying them as expensive are determined by the Ministry of Industry and Trade of the Russian Federation.

Tax authorities stop collecting tax from an individual either with the disappearance of the relevant property or in connection with the death of the owner. If there is a tax debt, it is paid by the heirs.

Find out about the deadlines for paying transport tax for individuals and legal entities here.

How does an organization calculate transport tax? First, the accountant checks whether there are cars or other vehicles on account 01. Then it clarifies whether the company’s transport is subject to taxation. Then you need to find out whether the car is registered with the traffic police - tax is paid only on vehicles registered with the road inspectorate.

At the next stage, the company must find out whether it has a tax benefit. To do this, you need to check Art. 357 of the Tax Code of the Russian Federation and regional legislation - it is possible that additional benefits are provided in the constituent entity of the Russian Federation.

The amount of tax payable is determined as the product of the tax base and rate. The tax base (most often the horsepower of the car) will be determined by the accountant according to the title.

Transport tax rates by region in 2017–2018 can be found on the Federal Tax Service website or in our section “Transport tax rates” .

The amount of tax in some regions may depend on the category of the car, the increasing coefficient, the environmental class or the age of the car. In addition, the accountant needs to take into account the period of ownership of the car during the tax period.

For transport tax, the company pays advances (every quarter, if established by regional law) and an annual payment. In the region, payment of advances can be cancelled, then the budget must be paid once - at the end of the year.

Read about tax and reporting periods for transport tax here.

The company submits tax reports once a year - based on the results of the tax period. Reports can be submitted to the TKS inspection, as well as in person (if necessary, by proxy) or sent by mail. The declaration contains information about the car, its make, number, horsepower and other information necessary to calculate the tax itself.

IMPORTANT! If the Ministry of Industry and Trade has released a new list of expensive cars, and you have already submitted a transport tax return, there is no need to redo the reporting and submit an updated declaration.

The declaration must be submitted to the tax office at the location of the head office or division to which the car is registered.

Transport tax rates by region in 2017–2018: table, nuances

Each subject determines the rates for this tax independently. In order to ensure the most fair taxation of transport, regional authorities have the right to establish differentiated rates based on criteria such as engine power, capacity, vehicle category and year of manufacture, and service life.

The Tax Code of the Russian Federation establishes a tax rate for transport tax, which, being increased by 10 times, is the maximum limit for the corresponding rates of the regions. For passenger cars with an engine power of up to 150 horsepower, the tax rate can be reduced to 0.

Since the transport tax is intended to compensate for the damage to the environment and roads from the use of cars, it is logical to assume that tax rates should depend on the environmental class of the car. Read more about the corresponding initiative of officials in the article “Will the transport tax be replaced with an environmental tax?”.

Tax rates are the same for individuals, individual entrepreneurs and legal entities and depend only on the direct characteristics of the vehicle. For example, for passenger cars the rate varies according to engine power.

In Moscow, there are 8 categories for passenger cars:

• up to 100 horsepower inclusive;
• from 101 to 125 horsepower;
• from 126 to 150 horsepower;
• from 151 to 175 horsepower;
• from 176 to 200 horsepower;
• from 201 to 225 horsepower;
• from 226 to 250 horsepower;
• over 250 horsepower and beyond.

You can find out the transport tax rate in the region you are interested in from this article.

Transport tax rates changed slightly in 2017–2018. Many regions did not cancel the rates that were in effect in 2016 and 2017, respectively, and extended their validity. Several factors influence the calculation of transport tax. In addition to engine power, this is the class of the car, the year of its production, the purchase price, the number of months of ownership, environmental safety, scope of application, etc.

Read articles from our section "Transport tax rates" to be aware of changes regarding this budget payment. And, apparently, there are a lot of them waiting for us.

Differentiated rates "simplified"

Expertise of the article: S.B. Pakhalueva, Advisor to the Department of Special Tax Regimes of the Ministry of Finance of Russia

In 2009, regions were given the opportunity to establish differentiated tax rates paid when applying the simplified tax system (1).

This innovation applies only to those companies that have chosen the object of taxation “income minus expenses”. The rates can range from 5 to 15 percent depending on the categories of taxpayers. Current Accounting will help you determine which category your organization belongs to.

Local authorities used their new powers in different ways. In some regions, a rate of 5 percent was set for all “simplified” companies without exception. This is what, for example, the authorities of the Pskov region did (2). In the Rostov region, preferential taxation was provided for small enterprises operating on the simplified tax system (3). They will determine the tax at 10 percent. In many regions, the rate is tied to the activities carried out by the organization. In particular, in the Jewish Autonomous Region, a 5 percent tax will be paid by companies that process rubber, plastic, glass waste or provide social services. A rate of 10 percent will apply to organizations producing bread and flour products, clothing and accessories, office furniture, etc. (4).

Tax Code of the Russian Federation
Article 346.20
2. If the object of taxation is income reduced by the amount of expenses, the tax rate is set at 15 percent. The laws of the constituent entities of the Russian Federation may establish differentiated tax rates ranging from 5 to 15 percent, depending on the categories of taxpayers.

Of course, these changes are beneficial for “simplified” residents, because their tax burden will be significantly reduced. However, the innovation may also add trouble to accountants of some companies. Namely, those organizations that conduct several types of activities.

Main activity
So, the type of activity will become for many “simplified” people the main factor determining the rate at which they will pay tax. Logically, a company will be able to apply differentiated rates if the “preferential” activity is its main one. And this is where ambiguity arises. How, in this case, should one determine what type of activity the company has? Unfortunately, there is no clear answer to this question in the legislation today. In some regions, this problem was solved as follows. In particular, a list of preferential activities has been approved in the Kemerovo region. At the same time, it is clearly established that an organization can apply a 5 percent rate provided that its income from a given business for the corresponding reporting (tax) period is at least 80 percent of its total amount (5). It turns out that “simplified” people will have to confirm their right to the benefit quarterly (For information on how to correctly write off a loss when calculating the base for a “simplified” tax, read “Actual Accounting” No. 2, 2009). That is, before calculating the tax at a reduced rate, the company will have to determine whether the “preferential” activity was a priority based on the results of the quarter (half year, 9 months, year). Consequently, the company will be able to benefit from the reduced rate only if this activity is carried out in a stable manner. If its income for a certain period does not reach the 80 percent threshold established in the region, the company will have to recalculate the tax at the regular rate.

Example
The company applies the simplified tax system with the object of taxation “income minus expenses”. The organization is engaged in 2 types of activities: furniture production and wholesale trade in office supplies. Activities are carried out in the Kemerovo region. Since January 1, 2009, a reduced tax rate of 5% has been applied to furniture production in the region. The main condition: the share of revenue from this activity must be at least 80% of the company’s income. For wholesale trade, the regular tax rate is 15%.
Let’s say that in the first quarter the company received the following financial results:
— income - 3,500,000 rubles. (including 3,000,000 rubles - from furniture production, 500,000 rubles - from wholesale trade);
— expenses - RUB 2,770,000. (including 2,450,000 rubles - from furniture production, 320,000 rubles - from wholesale trade).
3,000,000 rub. × 100%: RUB 3,500,000 = 85.71%;
500,000 rub. × 100%: RUB 3,500,000 = 14.29%.
Consequently, based on the results of the first quarter, the company can pay a single tax at a rate of 5%. As a result, the simplified tax for the quarter will be equal to:
(3,500,000 rub. – 2,770,000 rub.) × 5% = 36,500 rub.
Based on the results of the first half of the year, the following results were obtained:
— income - 7,600,000 rubles. (including 6,000,000 rubles - from furniture production, 1,600,000 rubles - from wholesale trade);
— expenses - RUB 5,970,000. (including 4,950,000 rubles - from furniture production, 1,020,000 rubles - from wholesale trade).
Share of income from furniture production:
6,000,000 rub. × 100%: 7,600,000 rub. = 78.95%;
Share of income from wholesale trade:
RUB 1,600,000 × 100%: 7,600,000 rub. = 21.05%.
Thus, at the end of the six months the company will have to pay a single tax based on a rate of 15%. Based on the results of the quarter, the company will transfer to the budget:
(7,600,000 rub. – 5,970,000 rub.) × 15% – 36,500 rub. = 208,000 rub.

There are more questions than answers
What will the situation be in regions where there is no clear limit on income from the main activity? What should companies that want to work at differentiated rates focus on?
There are 2 options for determining the main type of economic activity (MAE):
— according to the rules for classifying activities as occupational risk (6);
- in the manner prescribed by “statistical” legislation.
In both cases, the same principle for determining air traffic control applies. So, in the first case, the main type of activity of a commercial organization is the type that, based on the results of the previous year, has the largest share in the total volume of products produced and services provided. A similar rule has been established for statistical reporting (7).
There are no fundamental differences in the procedure that the statistical authorities themselves apply. When determining the main type of activity of a commercial organization, they use the indicator of turnover of goods or services provided (in trade - gross profit) by type of activity as a percentage of the corresponding indicator for the organization as a whole. ATS is determined as of January 1 of the new reporting year on the basis of statistical data on the results of all types of activities conducted by the company for the n-2 calendar year. If for one type of activity the criterion value is 50 percent or more, then this type should be considered the main one (8).
So, as we see, for statistical purposes the main type of activity for the current year is determined based on the results of the previous year. Will this rule apply to differentiated rates under the simplified tax system? At the moment, it is difficult to answer this question. This scenario cannot be ruled out. The company will begin to apply a reduced rate this year, focusing on the main type of activity of the previous year. At the end of the year, it turns out that income from preferential activities was not prevalent. As a result, this will affect the legality of applying the preferential rate in the current year. As a result, the organization will have to recalculate the tax at the regular rate.
The next controversial point: in regional laws the formulation “main type of economic activity” is not always used. In many cases the word "primary" is missing. This can be interpreted in such a way that at reduced rates revenue is taxed not from the main type of activity, but from specific activities listed in the regional law. That is, the rate will apply not for the organization as a whole, but for a separate type of business. And this may entail the need to keep separate records of revenue by type of activity.

M.A. Parkhacheva, member of the scientific and expert council at the Chamber of Tax Consultants of Russia, head of the company “Consulting Group “Econ-Profi”
The establishment of differentiated rates for the simplified tax system is a tax benefit. The benefit is always targeted, and its establishment in relation to “simplified” residents is the exclusive prerogative of regional authorities. They have the right to determine (narrow or expand) the circle of persons to whom it applies. This means that regional authorities independently determine the category of payers who can take advantage of the benefit, including making the possibility of its application dependent on the main type of activity of the company or on the conduct of a specific type of activity. In the first case, in order to receive the benefit, a set of conditions must be met: running a certain type of business, as well as recognizing this type as the main one. Then the preferential rate will apply to all income of the organization. However, failure to comply with these conditions will result in the company losing the benefit altogether. The second case, when the right to a benefit is made dependent on the conduct of a certain type of activity, is more universal. Here, the “simplifier” applies a reduced rate when carrying out specific activities, and conducting other business is subject to a rate of 15 percent. But the “simplified” person will have to pay for using the benefit: he will have the obligation to keep separate records of income and expenses.

*1) . - clause 26 art. 2 of the Federal Law of November 26, 2008 No. 224-FZ
*2) . — Law of the Pskov region dated December 18, 2008 No. 815-OZ
*3) . — Law of the Rostov region dated December 29, 2008 No. 195-ZS
*4) . — Law of the Jewish Autonomous Region dated December 24, 2008 No. 501-OZ
*5) . — Law of the Kemerovo region dated November 26, 2008 No. 99-OZ
*6) . — approved fast. Government of the Russian Federation dated December 1, 2005 No. 713
*7) . - clause 5 of the instructions, approved. by order of Rosstat dated January 14, 2008 No. 3
*8) . — Rosstat order dated October 1, 2007 No. 150

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1. Every person must pay legally established taxes and fees. Legislation on taxes and fees is based on the recognition of the universality and equality of taxation. When establishing taxes, the actual ability of the taxpayer to pay the tax is taken into account.

2. Taxes and fees cannot be discriminatory and applied differently based on social, racial, national, religious and other similar criteria.

It is not allowed to establish differentiated rates of taxes and fees, tax benefits depending on the form of ownership, citizenship of individuals or place of origin of capital.

Paragraph three is no longer valid.

3. Taxes and fees must have an economic basis and cannot be arbitrary. Taxes and fees that prevent citizens from exercising their constitutional rights are unacceptable.

4. It is not allowed to establish taxes and fees that violate the single economic space of the Russian Federation and, in particular, directly or indirectly limit the free movement of goods (work, services) or financial assets within the territory of the Russian Federation, or otherwise limit or create obstacles not prohibited by law economic activities of individuals and organizations.

5. Paragraphs one and two are no longer valid.

No one can be obligated to pay taxes and fees, as well as other contributions and payments that have the characteristics of taxes or fees established by this Code, are not provided for by this Code or are established in a manner other than that determined by this Code.

6. When establishing taxes, all elements of taxation must be determined. Acts of legislation on taxes and fees must be formulated in such a way that everyone knows exactly what taxes (fees, insurance premiums), when and in what order he must pay.

7. All irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (fee payer, insurance premium payer, tax agent).

Commentary to Art. 3 Tax Code of the Russian Federation

Article 3 of the Tax Code of the Russian Federation establishes the basic principles of tax policy in the Russian Federation and the fundamentals of tax legislation of the Russian Federation. Tax policy is based on the principles:

the constitutional principle of universality of taxation, according to which every person, without any exceptions, must, through taxes, participate in the financing of general government expenditures and pay legally established taxes and fees;

the principle of equal taxation, which proclaims the universal obligation of paying taxes and the equality of all payers before the tax law;

the principle of proportionality of taxes, which establishes, first of all, fairness and the real ability of the taxpayer to pay the tax.

Paragraph 1, paragraph 2, art. 3 of the Tax Code of the Russian Federation establishes another principle on which the tax policy of the Russian Federation is based - a constitutional principle that does not allow violation of the constitutional rights of citizens and the principle of equality of taxpayers, that is, discrimination.

The Tax Code of the Russian Federation proclaims a principle that affects the socio-political aspects of taxation and does not allow discrimination of taxpayers on political, ideological, ethnic, religious and other grounds.

Paragraph 2, paragraph 2, art. 3 of the Tax Code of the Russian Federation consists of a norm affecting the economic aspects of legislation and proclaiming a principle that does not allow the establishment of differentiated rates of taxes and fees or tax benefits depending on the form of ownership, citizenship of an individual and place of origin of capital. In this regard, for example, the introduction of higher tax rates for private enterprises compared to state-owned enterprises or for foreign citizens compared to Russian ones is unacceptable.

Tax policy pursues fiscal and non-fiscal goals.

Fiscal goals include increasing tax revenues.

Non-fiscal goals include methods of public administration through the taxation mechanism: differentiated tax rates for subjects, increasing the composition of costs attributable to production costs, increasing depreciation deductions, introducing tax benefits, expanding or reducing the base of tax calculations, alternative tax obligations, etc.

At the same time, para. 1 item 2 art. 3 of the Tax Code of the Russian Federation is open in nature, and para. 2 p. 2 art. 3 of the Tax Code of the Russian Federation, on the contrary, contains a closed (limited) list. Thus, the establishment of differentiated rates of taxes and fees, as well as tax benefits depending on other criteria (except for those specified in paragraph 1, paragraph 2, article 3 of the Tax Code of the Russian Federation - forms of ownership, citizenship of individuals and place of origin of capital) is quite acceptable. Thus, different tax rates can be established by the legislator depending on the relationship of persons (gift tax), the amount of income received (income tax), the type of goods sold (VAT), the price of the claim (state duty), categories of land (land tax), etc. d. Various benefits are provided in connection with differences in the property status of citizens (income tax), areas of spending money (income tax), etc.

Clause 3 of Art. 3 of the Tax Code of the Russian Federation establishes one of the principles of tax policy of the Russian Federation - the principle of economic justification for taxation by a specific type of tax or the principle of economic justification for establishing taxes.

The economic justification for establishing a tax must first of all be expressed in the efficiency and self-sufficiency of taxes, that is, the amounts levied by the state for each individual tax must exceed the costs of its collection, maintenance and control.

The establishment of a tax cannot be arbitrary.

Also, when setting a tax, the consequences for both the country's economy and the taxpayer must be taken into account.

Clause 4 of Art. 3 of the Tax Code of the Russian Federation enshrines the principle of the unity of the economic space of the Russian Federation, which does not allow both the introduction of regional taxes, which may limit the free movement of goods, services, financial assets or the legal activities of the taxpayer within a single economic space, and the introduction of regional taxes, which allows the formation of budgets some territories at the expense of tax revenues of other territories or transfer the payment of taxes to taxpayers of other regions.

Thus, the establishment of taxes that violate the unity of the economic space of Russia is not allowed. In particular, taxes that restrict the free movement of goods (work, services) or financial assets within the territory of the Russian Federation or otherwise limit or create obstacles to the legal activities of economic entities are not allowed. It is unacceptable to establish additional duties, fees or increased rates on goods originating from other regions of the country or exported to other regions.

In any case, when, as a result of the imposition of a tax or fee, it is economically unprofitable for the taxpayer to carry out its activities within several regions, such a tax must be declared illegal.

Clause 4 of Art. 3 of the Tax Code of the Russian Federation corresponds to Art. 34 of the Constitution of the Russian Federation, according to which “everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.”

No one can be obligated to pay taxes and fees, as well as other contributions and payments that have the characteristics of taxes or fees established by the Tax Code of the Russian Federation, are not provided for by the Tax Code of the Russian Federation or are established in a manner other than that determined by the Tax Code of the Russian Federation.

Thus, the Tax Code of the Russian Federation enshrines the principle of tax policy of the Russian Federation - the principle of the legal establishment of taxes and fees, which means that if such payments and contributions are not provided for by the Tax Code of the Russian Federation or are introduced in violation of the procedure provided for by the Tax Code of the Russian Federation, then such payments and contributions are not meet the above principle and cannot be considered legal. Consequently, no one is obliged to pay illegal payments or contributions.

However, the fact that a payment or contribution, which is essentially a tax or fee, does not comply with the law must be established in court, and only after that is it possible to fail to comply with the requirements of the normative act establishing such taxes or fees.

Article 17 of the Tax Code of the Russian Federation establishes the general conditions for the establishment of taxes and fees. In this case, the tax is considered established only if the taxpayers and elements of taxation are determined, namely:

object of taxation;

the tax base;

taxable period;

tax rate;

tax calculation procedure;

procedure and deadlines for tax payment.

Clause 6 of Art. 3 of the Tax Code of the Russian Federation enshrines the principle of convenient taxation or clarity of tax legislation, establishing the rule according to which the tax should be collected at such a time and in a manner that represents the greatest convenience for the payer, and acts on taxes should be understandable for him.

Although in paragraph 6 of Art. 3 of the Tax Code of the Russian Federation, the principle of certainty is aimed primarily at acts of legislation on taxes and fees; it should be directly applied to regulatory legal acts of executive bodies on taxes and fees. After all, in accordance with Art. 4 of the Tax Code of the Russian Federation, these acts must comply with the legislation on taxes and fees.

In conjunction with paragraph 6 of Art. 3 of the Tax Code of the Russian Federation should be considered clause 7 of Art. 3 Tax Code of the Russian Federation. In case of violation of the principle of certainty and clarity of the legislation on taxes and fees, all irremovable doubts, contradictions and ambiguities of acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of the fee).

This has direct practical significance when considering tax disputes in court.

In accordance with paragraph 3 of Art. 5 of the Tax Code of the Russian Federation, acts of legislation on taxes and fees that eliminate or mitigate liability for violation of legislation on taxes and fees or establish additional guarantees for the protection of the rights of taxpayers, payers of fees, tax agents, and their representatives, have retroactive effect. Consequently, paragraph 7 of Art. 3 of the Tax Code of the Russian Federation has retroactive effect.

Taxpayers can apply clause 7 of Art. 3 of the Tax Code of the Russian Federation for their protection in administrative or judicial proceedings.

However, the taxpayer’s internal conviction alone about the existence of contradictions and ambiguities is not enough; official confirmation (by a judicial or other government body considering the case) of this fact is necessary as a basis for applying clause 7 of Art. 3 Tax Code of the Russian Federation. But the opinion of state bodies is also not in itself a basis for applying paragraph 7 of Art. 3 Tax Code of the Russian Federation.

The final answers to these questions can be developed in the course of judicial practice of applying the Tax Code.

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"Simplified", 2009, N 4

Interesting changes occurred among the “simplers” with the object of taxation “income minus expenses” in 2009. If previously a single tax rate of 15% was provided for them, now regional authorities are given the right to establish differentiated rates ranging from 5 to 15% in depending on the categories of taxpayers.

Federal Law No. 224-FZ dated November 26, 2008 amended paragraph 2 of Art. 346.20 of the Tax Code of the Russian Federation, which came into force on January 1, 2009, and now the tax rate for “simplified people” with the object of taxation “income minus expenses” can be reduced. What does this mean? It's quite simple. Starting this year, regional authorities have the right to decide that some taxpayers who apply the “simplified tax system” with the object of taxation “income minus expenses” pay tax not at a single rate, but at special reduced rates (but not more than 10%). To do this, a law must be issued at the level of the subject of the Russian Federation.

The corresponding amendments to the Tax Code were approved quite late, almost at the very end of last year. For this reason, not all regional authorities managed to adopt the necessary laws before the beginning of 2009. However, we note that even if the law of a particular subject of the Federation was adopted already in 2009, differentiated rates for “simplified” in this region can be applied from January 1 current year. And that's why. In paragraph 4 of Art. 5 of the Tax Code of the Russian Federation establishes a rule according to which a legislative act that improves the situation of a taxpayer can have retroactive effect if this is expressly stated in it. Thus, if a regional law was adopted in mid-2009 and states that it applies to the period from January 1, 2009, the tax is calculated at reduced rates from that date.

Note. A similar conclusion is also contained in the joint Letter of the Ministry of Finance of Russia and the Federal Tax Service of Russia dated December 2, 2008 N ШС-6-3/881@.

On a note. There is no law in the Ryazan region, but it is expected

The Federal Tax Service for the Ryazan region, in Letter dated January 11, 2009 N 12-18/00035@, hastened to reassure the Ryazan “simplified people”, saying that the absence of a regional law establishing differentiated rates at the beginning of 2009 does not exclude the possibility of a later adoption of such a law with the spread it for legal relations that arose starting from January 1, 2009. That is, if the law does not appear before April, taxpayers using the simplified tax system with the object of taxation “income minus expenses” will have to make advance payments at a rate of 15%. But after its publication, persons to whom the benefit will be extended will be able to adjust the tax taking into account the reduced rates. (The information is given as of the date the issue was signed for printing. - Editor's note.)

By the way, many regional legislators did just that. For example, in Art. 3 of the Law of the Moscow Region dated February 12, 2009 N 9/2009-OZ and in Art. 2 of the Law of the Republic of Mordovia dated 04.02.2009 N 5-3 states that the law comes into force from the moment of its official publication, but extends its effect to legal relations arising from January 1, 2009.

It is clear that the purpose of these innovations was the desire of the legislator to alleviate the plight of small businesses against the backdrop of the rapidly developing global economic crisis, but regional authorities do not express much enthusiasm for reducing the tax burden of this category of taxpayers. At the moment, there are not even two dozen regions in which differentiated rates for the simplified tax system have been introduced. And in the adopted laws, preferential rates are mainly extended only to a small part of the “simplified” workers operating in the most relevant areas for a particular region.

Thus, the Law of the Kaluga Region dated December 18, 2008 N 501-OZ states that the tax rate of 5% is established for those “simplified” who carry out activities in accordance with Section. D All-Russian Classifier of Types of Economic Activities (food production, textile and clothing production, etc.).

Note. The All-Russian Classifier of Types of Economic Activities OK 029-2007 (NACE Rev. 1) was put into effect by Decree of the State Standard of Russia dated November 6, 2001 N 454-st.

The adoption of regional laws establishing different tax rates for “simplified” taxable persons with the object of taxation “income minus expenses” has raised quite a lot of questions among taxpayers.

Thus, many do not understand what the phrase “differentiated rates will be applied depending on the category of taxpayers” means. How are taxpayers included in one category or another? Wouldn't the establishment of benefits for one category of "simplified" discrimination against other categories and a violation of the principle of equality and fairness of taxation declared in Art. 3 of the Tax Code of the Russian Federation and Art. 19 of the Constitution of the Russian Federation? Let's try to understand each of the questions posed.

Rights of regions

First of all, it should be noted that the reduction in the tax rate for certain categories of taxpayers in accordance with Art. 56 of the Tax Code of the Russian Federation is recognized as a tax benefit. Therefore, differentiated rates are nothing more than benefits provided to certain taxpayers. The basic rule for benefits is that the legislation defining the grounds, procedure and conditions for their application should not be of an individual nature. In paragraph 3 of Art. 56 of the Tax Code of the Russian Federation states that federal tax benefits must be specified in the Tax Code. And regional authorities are given the full right to establish or cancel regional tax benefits by their own laws, if such a possibility is provided for by the Tax Code of the Russian Federation. The tax under the simplified tax system is not listed among federal, regional, or local (Articles 13 - 15 of the Tax Code of the Russian Federation), it replaces the payment of three federal taxes (VAT, Unified Social Tax, income tax or personal income tax) and one regional or local (property tax of organizations or property tax of individuals).

Note. The exemption of tax payers under the simplified tax system from payment of VAT, unified social tax, income tax (personal income tax on income from business activities) and property tax is stated in paragraphs 2 and 3 of Art. 346.11 Tax Code of the Russian Federation.

However, in the case under consideration, the right to establish benefits is granted to regional authorities precisely by the norms of the Tax Code (clause 2 of Article 346.20), and this right is not limited. In addition, regions are given broad powers in determining the categories of taxpayers eligible for benefits. At the same time, as has been repeatedly noted in decisions of the Constitutional Court of the Russian Federation, the constitutional principle of equality of all before the law does not limit the legislator in establishing benefits for one category of taxpayers and not providing the same benefits to another category. That is, the obligation to establish them for certain categories of taxpayers and payers of fees does not directly follow from the Constitution of the Russian Federation, and the choice of categories is entirely at the discretion of the legislative body (see, for example, Resolution of the Constitutional Court of the Russian Federation of July 14, 2005 N 9-P and the Determination of the Constitutional Court RF dated June 27, 2005 N 232-O).

What is a category?

What is meant by the category of taxpayers? Considering that it is impossible to find a definition of this in the current legislation, we have to turn to official explanations of authorized bodies and judicial practice.

For example, according to the Ministry of Finance, expressed in Letter No. 03-11-11/29 dated February 27, 2009, each specific category reflects the most general features and essential properties characteristic of the corresponding population of taxpayers. This includes the type of economic activity, the size of the enterprise, for whom the work or services are performed, location, etc. From the Determination of the Constitutional Court of the Russian Federation of March 25, 2004 N 96-O, it follows that in order to transfer a taxpayer to another category, it is sufficient that the person has other conditions and type of activity.

The main conclusion that can be drawn from the above is the following. To classify a taxpayer into a particular category, he must meet certain criteria (features) established for this category.

The question of the criteria by which this or that category of taxpayers is identified is discussed in more detail in the Ruling of the Supreme Court of the Russian Federation dated May 17, 2006 N 44-G06-7. In particular, the judicial panel carried out a systematic analysis of the legal norms of Art. Art. 381 and 395 of the Tax Code of the Russian Federation, establishing benefits for payers of land tax and property tax. As a result of this study, the judges came to the conclusion that the industry affiliation of the organization, the number of its employees and the amount of capital investments made can be recognized as criteria for determining the category of taxpayers.

It follows from this that the implementation of various types of activities by individuals allows them to be classified as different categories of taxpayers, for whom different tax rates (benefits) may be established.

Thus, it is not difficult to answer the last question that concerns taxpayers: is the establishment of benefits for one category of “simplified” discrimination against other “simplified” and a violation of the principle of equality and fairness of taxation? Obviously it is not.

According to the Constitutional Court of the Russian Federation, the establishment of different tax benefits for different taxpayers does not violate the constitutional principle of equality before the law (Article 19 of the Constitution of the Russian Federation). This principle guarantees the same rights and obligations for subjects belonging to the same category, and does not exclude the possibility of establishing different conditions for different categories of legal subjects. However, such differences cannot be arbitrary; they must be based on objective characteristics of the relevant categories of subjects (Resolution of the Constitutional Court of the Russian Federation of March 13, 2008 N 5-P). In particular, the Decree of the Constitutional Court of the Russian Federation dated 06/09/2005 N 287-O states that the constitutional principle of equality cannot be considered violated when the differences between certain categories of taxpayers are sufficient to provide for different legal regulation for them.

If there are several categories

So, one taxpayer can engage in several types of activities and, accordingly, belong to two or more categories. What rates should be applied in this case? The answer to this question will depend on how the norm of the regional law is formulated.

It is clear that if the law of a subject of the Russian Federation only establishes a reduced rate and there is no indication of the types of activities, then any “simplified” person with the object of taxation “income minus expenses” will be able to apply it regardless of the types of activities he carries out.

Note. Example a similar law is Law of the Pskov Region dated December 18, 2008 N 815-OZ.

If the norms of the regional law are formulated in such a way that the application of a preferential tax rate under the simplified tax system depends on what type of activity the taxpayer carries out, two options are possible.

First option. The regional law states that a preferential tax rate is established for taxpayers whose main activity is included in a certain list. Then the taxpayer simply needs to find out whether his type of activity is named in this list. If yes, then all his income will be taxed at a preferential rate. At the same time, the law usually directly indicates the share of income from the main type of activity in the total volume, that is, the condition under which the activity is considered the main one and, accordingly, the right to apply a reduced rate is granted. Let us explain this with an example.

Example 1. Perseus LLC, registered in the Kemerovo region, applies the simplified tax system with the object of taxation “income minus expenses”. The main activity (85% of the revenue) is the production of clothing, the non-main activity (15% of the revenue) is the rental of equipment. Let us determine at what rate the income received by the company should be taxed.

The Law of the Kemerovo Region dated November 26, 2008 N 99-OZ states that the reduced rate is applied only to those taxpayers whose income from certain types of activities exceeded 80%. Clothing production is one of the preferential activities mentioned in paragraph 2 of Art. 1 of the said Law. Considering that this type of activity accounts for more than 80% of income, Perseus LLC has the right to apply a tax rate of 5% to the entire tax base.

Note. A preferential rate of 10% for some types of activities is also applied in the Moscow region (Article 2 of the Law of the Moscow Region dated February 12, 2009 N 9/2009-OZ).

Second option. The regional law establishes the possibility of applying a reduced tax rate for a certain type of activity and does not specify whether such activity is the main activity of the taxpayer or not. In this case, it turns out that the reduced tax rate should not be applied to the entire tax base, but specifically to income and expenses for this type of activity. In this case, it does not matter what share of the “simplified” income comes from the preferential type of activity.

Example 2. CJSC "Mercury", registered in the Khanty-Mansiysk Autonomous Okrug, applies the simplified tax system with the object of taxation "income minus expenses". The company provides tourism services and has a small hotel. The share of income received from the main type of activity (tourist services) is 80%, from the provision of hotel services - 20%. Let us determine at what rate the income of CJSC "Mercury" should be taxed.

In accordance with paragraphs. 5 p. 2 art. 2 of the Law of the Khanty-Mansiysk Autonomous Okrug - Ugra dated December 30, 2008 N 166-OZ, activities for the provision of hotel services are preferential. It has a tax rate of 5%. Accordingly, the part of the tax base attributable to income and expenses from the provision of hotel services will be taxed at a rate of 5%.

Tourist services are not included in the preferential types of activities; therefore, a general rate of 15% is applied to income and expenses for this type of activity.

As you understand, in both cases the “simplified” person will have to keep separate records, although this is not directly stated anywhere. In the first, it is only necessary to record income from various types of activities - in order to find out whether the preferential type of activity is the main one. In the second, separate accounting should be kept of both income and expenses by type of activity for which reduced and regular rates are applied. If separate accounting is not observed, the taxpayer may lose the right to the benefit, and then the tax will have to be paid at a rate of 15%. Of course, separate accounting is an extra hassle, but it will be justified by the significant tax savings.

Let's summarize. In order for a “simplified” person to apply a reduced tax rate, the following conditions must be simultaneously met:

1. the object of taxation is income minus expenses;
2. in the region where the taxpayer is registered, a law has been adopted establishing differentiated tax rates under the simplified tax system;
3. the taxpayer’s activity relates to preferential types of activity or the regional law does not contain special conditions for the application of a reduced rate.

And one last thing. If preferential rates have been introduced in the region only for certain types of activities, then the “simplified” ones must fulfill the fourth condition - keep separate records.

G.V.Belyaykina

Leading Lawyer

Consulting group "Econ-Profi"

Expertise of the article: S.B. Pakhalueva, Advisor to the Department of Special Tax Regimes of the Ministry of Finance of Russia

In 2009, regions were given the opportunity to set differentiated rates for taxes paid when applying the simplified tax system.

This innovation applies only to those companies that have chosen the object of taxation “income minus expenses”. The rates can range from 5 to 15 percent depending on the categories of taxpayers. Current Accounting will help you determine which category your organization belongs to.

Local authorities used their new powers in different ways. In some regions, a rate of 5 percent was set for all “simplified” companies without exception. This is what the authorities of the Pskov region did, for example. In the Rostov region, preferential taxation was provided for small enterprises operating on the simplified tax system. They will determine the tax at 10 percent. In many regions, the rate is tied to the activities carried out by the organization. In particular, in the Jewish Autonomous Region, a 5 percent tax will be paid by companies that process rubber, plastic, glass waste or provide social services. A rate of 10 percent will apply to organizations producing bread and flour products, clothing and accessories, office furniture, etc.

Tax Code of the Russian Federation
Article 346.20
2. If the object of taxation is income reduced by the amount of expenses, the tax rate is set at 15 percent. The laws of the constituent entities of the Russian Federation may establish differentiated tax rates ranging from 5 to 15 percent, depending on the categories of taxpayers.

Of course, these changes are beneficial for “simplified” residents, because their tax burden will be significantly reduced. However, the innovation may also add trouble to accountants of some companies. Namely, those organizations that conduct several types of activities.

Main activity
So, the type of activity will become for many “simplified” people the main factor determining the rate at which they will pay tax. Logically, a company will be able to apply differentiated rates if the “preferential” activity is its main one. And this is where ambiguity arises. How, in this case, should one determine what type of activity the company has? Unfortunately, there is no clear answer to this question in the legislation today. In some regions, this problem was solved as follows. In particular, a list of preferential activities has been approved in the Kemerovo region. At the same time, it is clearly established that an organization can apply a 5 percent rate provided that its income from a given business for the corresponding reporting (tax) period is at least 80 percent of its total amount. It turns out that “simplified” people will have to confirm their right to the benefit quarterly (For information on how to correctly write off a loss when calculating the base for a “simplified” tax, read “Actual Accounting” No. 2, 2009). That is, before calculating the tax at a reduced rate, the company will have to determine whether the “preferential” activity was a priority based on the results of the quarter (half year, 9 months, year). Consequently, the company will be able to benefit from the reduced rate only if this activity is carried out in a stable manner. If its income for a certain period does not reach the 80 percent threshold established in the region, the company will have to recalculate the tax at the regular rate.

Example
The company applies the simplified tax system with the object of taxation “income minus expenses”. The organization is engaged in 2 types of activities: furniture production and wholesale trade in office supplies. Activities are carried out in the Kemerovo region. Since January 1, 2009, a reduced tax rate of 5% has been applied to furniture production in the region. The main condition: the share of revenue from this activity must be at least 80% of the company’s income. For wholesale trade, the regular tax rate is 15%.
Let’s say that in the first quarter the company received the following financial results:
- income - 3,500,000 rubles. (including 3,000,000 rubles - from furniture production, 500,000 rubles - from wholesale trade);
- expenses - RUB 2,770,000. (including RUB 2,450,000 from furniture production, RUB 320,000 from wholesale trade).
3,000,000 rub. × 100%: RUB 3,500,000 = 85.71%;
500,000 rub. × 100%: RUB 3,500,000 = 14.29%.
Consequently, based on the results of the first quarter, the company can pay a single tax at a rate of 5%. As a result, the simplified tax for the quarter will be equal to:
(3,500,000 rub. - 2,770,000 rub.) × 5% = 36,500 rub.
Based on the results of the first half of the year, the following results were obtained:
- income - 7,600,000 rubles. (including RUB 6,000,000 from furniture production, RUB 1,600,000 from wholesale trade);
- expenses - RUB 5,970,000. (including RUB 4,950,000 from furniture production, RUB 1,020,000 from wholesale trade).
Share of income from furniture production:
6,000,000 rub. × 100%: 7,600,000 rub. = 78.95%;
Share of income from wholesale trade:
RUB 1,600,000 × 100%: 7,600,000 rub. = 21.05%.
Thus, at the end of the six months the company will have to pay a single tax based on a rate of 15%. Based on the results of the quarter, the company will transfer to the budget:
(7,600,000 rub. - 5,970,000 rub.) × 15% - 36,500 rub. = 208,000 rub.

There are more questions than answers
What will the situation be in regions where there is no clear limit on income from the main activity? What should companies that want to work at differentiated rates focus on?
There are 2 options for determining the main type of economic activity (MAE):
- according to the rules for classifying activities as occupational risk;
- in the manner prescribed by “statistical” legislation.
In both cases, the same principle for determining air traffic control applies. So, in the first case, the main type of activity of a commercial organization is the type that, based on the results of the previous year, has the largest share in the total volume of products produced and services provided. A similar rule has been established for statistical reporting.
There are no fundamental differences in the procedure that the statistical authorities themselves apply. When determining the main type of activity of a commercial organization, they use the indicator of turnover of goods or services provided (in trade - gross profit) by type of activity as a percentage of the corresponding indicator for the organization as a whole. ATS is determined as of January 1 of the new reporting year on the basis of statistical data on the results of all types of activities conducted by the company for the n-2 calendar year. If for one type of activity the value of the criterion is 50 percent or more, then this type should be considered the main one.
So, as we see, for statistical purposes the main type of activity for the current year is determined based on the results of the previous year. Will this rule apply to differentiated rates under the simplified tax system? At the moment, it is difficult to answer this question. This scenario cannot be ruled out. The company will begin to apply a reduced rate this year, focusing on the main type of activity of the previous year. At the end of the year, it turns out that income from preferential activities was not prevalent. As a result, this will affect the legality of applying the preferential rate in the current year. As a result, the organization will have to recalculate the tax at the regular rate.
The next controversial point: in regional laws the formulation “main type of economic activity” is not always used. In many cases the word "primary" is missing. This can be interpreted in such a way that at reduced rates revenue is taxed not from the main type of activity, but from specific activities listed in the regional law. That is, the rate will apply not for the organization as a whole, but for a separate type of business. And this may entail the need to keep separate records of revenue by type of activity.

M.A. Parkhacheva, member of the scientific and expert council at the Chamber of Tax Consultants of Russia, head of the company “Consulting Group “Econ-Profi”
The establishment of differentiated rates for the simplified tax system is a tax benefit. The benefit is always targeted, and its establishment in relation to “simplified” residents is the exclusive prerogative of regional authorities. They have the right to determine (narrow or expand) the circle of persons to whom it applies. This means that regional authorities independently determine the category of payers who can take advantage of the benefit, including making the possibility of its application dependent on the main type of activity of the company or on the conduct of a specific type of activity. In the first case, in order to receive the benefit, a set of conditions must be met: running a certain type of business, as well as recognizing this type as the main one. Then the preferential rate will apply to all income of the organization. However, failure to comply with these conditions will result in the company losing the benefit altogether. The second case, when the right to a benefit is made dependent on the conduct of a certain type of activity, is more universal. Here, the “simplifier” applies a reduced rate when carrying out specific activities, and conducting other business is subject to a rate of 15 percent. But the “simplified” person will have to pay for using the benefit: he will have the obligation to keep separate records of income and expenses.

*1) ... - clause 26 of Art. 2 of the Federal Law of November 26, 2008 No. 224-FZ
*2) ... - Law of the Pskov region dated December 18, 2008 No. 815-OZ
*3) ... - Law of the Rostov region dated December 29, 2008 No. 195-ZS
*4) ... - Law of the Jewish Autonomous Region dated December 24, 2008 No. 501-OZ
*5) ... - Law of the Kemerovo region dated November 26, 2008 No. 99-OZ
*6) ... - approved. fast. Government of the Russian Federation dated December 1, 2005 No. 713
*7) ... - clause 5 of instructions, approved. by order of Rosstat dated January 14, 2008 No. 3
*8) ... - Rosstat order dated October 1, 2007 No. 150