GNAU letter from 22.12.06 of No. 24159/7/17-0717 in which recommendations to consider certain provisions of the legislation are made at issue of references is printed.
About RESOLUTION KMU APPLICATION
ABOUT APPLICATION OF RESOLUTION KMU
from AUGUST 1, 2006 of No. 1063
ABOUT THE STATEMENT OF THE ORDER OF ISSUE OF THE REFERENCE ON THE RIGHT OF THE INDIVIDUAL TO OBTAINING THE INCOME OF THE TAX AGENT WITHOUT DEDUCTION OF THE TAX AND ITS FORM
GNAU letter from 22.12.06 of No. 24159/7/17-0717
The public tax administration of Ukraine considered <…> letter <…> concerning praktichesyoky application of the resolution of Cabinet council of Ukraine from August 1, 2006 of No. 1063 About an utverzhdeyoniya of the Order of issue of the reference on the right of the individual to obtaining the income of the tax agent without an uderzhayoniya of a tax and its form (further – the Resolution and the Reference), developed in execution podpunkta 4.3.36 points 4.3 of article 4 of the Law of Ukraine from 22.05.03 of No. 889 About a tax on the income of individuals (further – the Law No. 889) and as the Ministry of Finance of Ukraine and Goskomzem Ukrainy was sorazrabotchik of this resolution, GNA of Ukraine within svoyoy competence reports the following.
Considering that in Ukraine now at zakonoyodatelny level some questions in the land use sphere aren’t settled, in particular, the question concerning sale of land finally isn’t solved, process of an exchange of land certificates on Gosudarstvenyonye acts of an ownership right on the earth, and also that the vast majority of owners such Gosudaryostvennykh of acts independently isn’t used by sobstvenyony shares isn’t complete, and lease them or serve (at all don’t use), etc., respectively there are also nekoyotory moments of inconsistency of the civil, zemelyyony and tax legislation.
In this regard GNA of Ukraine considers expedient to recommend at issue of References to consider sleduyoyushchy provisions of the legislation.
Subparagraph 4.3.36 of point 4.3 of article 4 of the Law No. 889 predostavlyaet privileges to payers of a tax – sobstvennikam agricultural production concerning the income received by them from alienation of selskokhozyayyostvenny production (including production of primary processing), grown up (made) on the zemelyyony sites provided by it for maintaining lichnogo of a country economy if their size wasn’t increased as a result of received in nature (by districts) a ground share (share); construction and service of a house, economic buildings and constructions (personal plots), maintaining sadovodyostvo and individual country construction.
According to article 121 of the Land code of Ukraine from 25.10.01 of No. 2768 citizens of Ukraine have the right to gratuitous transfer of zemelyyony sites by it next sizes:
• for maintaining a personal country economy – no more than 2,0 hectares;
• for conducting gardening – no more than 0,12 hectares;
• for construction and service of a house, economic buildings and constructions (a priusadebyony site) in villages – no more than 0,25 hectares, in settlements – no more than 0,15 hectares, in the cities – no more than 0,10 hectares;
• for individual country construction – no more than 0,10 hectares.
According to the Law of Ukraine from 15.05.03 of No. 742 About a personal country economy the personal krestyyoyansky economy – is economic activity which is led without creation of the legal entity by the individual individually or persons, koyotory consist in family or related otnosheyoniya and in common live, with a view of an udovletvoreyoniya of personal needs by production, a pereyorabotka and consumption of an agricultural produkyotsiya, realization of its surpluses.
At the same time, according to the Law of Ukraine from 19.06.03 of No. 973 About a farm commodity selskoyokhozyaystvenny production – is production of selskokhoyozyaystvenny production intended for realization.
Realization – is economic operation of the subject of an entrepreneurial activity, which predusmatrivaet transfer of property on a proyoduktsiya (works, services) to other subject of predpriyonimatelsky activity in exchange for the ekvivalentyony sum of means or debts (The law of Ukraine from 28.12.1994 of No. 334 About the taxation of profit of the enterprises).
According to article 42 Economic kodeksa Ukraine business as the type of hoyozyaystvenny activity – is independent, initiative, systematic, on own risk economic activity which is carried out by subjects of managing (businessmen) with a view of achievement economic and social rezultatov and receiving arrived.
That is, proceeding from the given norms of a zakonodatelyyostvo, citizens, including members of a personal country economy, should realize surpluses of vyrayoshchenny production (made) in their farms and shouldn’t have for an object cultivation (proizvodyostvo) and realization of commodity agricultural production with a view of receiving profit on its realization.
Thus both to local councils, and tax organam, it is necessary to carry out explanatory work among the population of that production and realization of commodity agricultural production carries signs enterprise deyatelnosti and demands its corresponding state registration and tax discharge from the income (profit) without application of norm of subitem 4.3.36 of item 4.3 of Art. 4 of the Law.
Thus, as issue of References is assigned to village, settlement and city councils which are responsible for reliability of information specified in References, at their delivery the last should, krome statements of the citizen, use others dosyotoverny (official, documentary podtverzhyodenny, etc.) information sources otnosiyotelno the land lots and grown-up (proizyovedenny) agricultural production.
Considering given if citizens have in a sobyostvennost the land lots for maintaining a krestyanyosky economy in the sizes provided by Art. 121 of the Land code of Ukraine, they have the right to obtaining the reference but provided that they don’t realize commodity agricultural products
At the same time, the bases for issue of the Reference, despite the sizes own ground uchastkov, are absent, in particular, if:
• the citizen personally didn’t grow up didn’t make) agricultural production which it imeet intention to realize (is perekupshchiyoky agricultural products);
• the citizen has a size of the land lot for a vedeyoniya of a personal country economy which he received in a property by acquisition, a poluyocheniye in inheritance or a gift, exceeds ustanovyolenny the Land code of Ukraine the size (2 hectares);
• the citizen actually uses for cultivation (production) of agricultural production which is realized by it, the zeyomelny sites belonging to it, which size exceeds ustayonovlenny Art. 121 of the Land code of Ukraine razyomer that is if ground shares (shares) not sdayutsya in rent and/or aren’t served, etc.,
• the citizen grows up agricultural products on zeyomelny sites on which it has no ownership right, including on the rented;
• the citizen is the chairman or the member of a farm;
• the citizen is registered by the subject of predpriniyomatelsky activity with a kind of activity a vyyorashchivaniye and/or agricultural products realization;
• specified in the statement of the citizen the type of vyrashchiyovayemy (made) agricultural products doesn’t correspond to the actual;
• the citizen is engaged in cultivation (proizvodyostvo) and/or realization of commodity selskokhozyayyostvenny production.
In addition we specify that according to Art. 1 of the Law of Ukraine from 25.06.1991 of No. 1251-XII About nalogoyooblozheniye system to local councils the right to establish side benefits concerning a nalogoobloyozheniye within the sums arriving in their budgets is granted.
As to questions to which it is necessary to pay attention of tax agents at an explanation of poloyozheniye of the Resolution to focus their attention follows that, apparently from the name of the Resolution No. 1063, existence of the Reference gives pravo to the individual on obtaining the income of the nalogoyovy agent without tax deduction.
At the same time to tax agents follows rekomendovat when receiving from citizens of References ubezhdatsya that a copy (x-copy) of the Reference given to them sootvetstvuet to its original (the original of the Reference remains at the citizen, a copy – in affairs of the tax agent).
Besides, tax agents should check that the reference is the established form (form No. 3-DF) and in it all opredelenyony requisites are filled.
Thus, if the type of production which is realized by the individual, isn’t specified regarding the Reference otnoyositelno agricultural products names, the naloyogovy agent is obliged to hold a tax from all sum paid for purchase of such production.
The income, paid (added) to physical manufacturing persons of agricultural production in a soyootvetstviye with subitem 4.3.36 of item 4.3 of Art. 4 of the Law, the tax agent is obliged to reflect in tax calculation for a form No. 1-DF with a sign of the income 53 The income of sale of selskokhozyayyostvenny production with the corresponding reflection of deduction or not deduction of a tax on this income.
Vice-chairman S. doctor
"Balans-Agro" makes comments
THE CITIZENS LEASING GROUND SHARES (SHARES), CAN RECEIVE REFERENCES IN NO. FORM ZDF
In the made comments letter of GNAU lists the citizens who do not have the rights to references on the right of the fizichesyoky person on obtaining of the income of the tax agent without deduction of a tax (in a No. ZDF form) (further – spravka).
In particular, citizens are included in this list:
• using independently ground shares (shares) for cultivation (production) of commodity agricultural products;
• being the chairman or the member of a farm;
• registered by subjects of an entrepreneurial activity.
At the same time citizens who hand over a ground share (share) belonging to them or the land lot in rent (that is don’t use them independently for production cultivation), have the right to obtaining the reference.
In the presence of the reference tax agents according to subitem 4.3.36 of the Law No. 889 shouldn’t hold the personal income tax from the income received by citizens from sale to agricultural products (including production of primary processing) which is grown up on the land lots provided for maintaining a personal country economy.
GNAU recommends to village, settlement and local councils (further – to the Village Soviets) which bear an otvetstvenyonost for reliability of the data provided in references to accept from the citizens having personal country farms, except statements the documents confirming use received in nature (on the district) a zeyomelny share (share) and the grown-up agricultural products.
Copies can be such documents, in particular:
– model treaty of a ground lease;
– model treaty of rent of a ground share (share);
– the act of acceptance transfer of the land lot according to the lease contract;
– act of use of the land lot.
After consideration of the specified documents the Village Soviets make the decision on issue of the reference on the ground that citizens hand over the land lots (shares, shares) in rent, instead of process them independently with a view of a poluyocheniye of commodity agricultural products.
It is necessary to give special attention to the list of types of the agricultural products, specified in the reference as at sale of production which has not been called in the list, the tax agent is obliged to hold the personal income tax from all sum of the income.
Take into consideration: if the rent is received in a natural form (for example, agricultural products), the privilege on the basis of subitem 4.3.36 of the Law No. 889 isn’t applied. The income of sale by citizens of such production is assessed with the personal income tax in accordance with general practice (15 %) as in this case the agricultural products are grown up not in a lichyony country economy.
(On Balans-Agro newspaper materials).