Consultation when on agricultural enterprises, at acquisition of the goods by them (works, services) at business owners, are assigned fiction of tax agents on charge, deduction and payment in the personal income tax budget is given.
TAXATION
Acquisition by agricultural enterprises of the goods (works, services) at business owners – quite widespread phenomenon. In this consultation we will consider, when in that case functions of tax agents are assigned to the enterprises on charge, deduction and payment in the personal income tax budget.
When the agricultural enterprise isn’t the tax agent
The agricultural enterprise isn’t the tax agent at payment to the individual – to the businessman of the income of sale of the goods by it (service, works) if this income is received within an entrepreneurial activity of such person. After all in this case the income is taxed by the rules established by the special legislation (Law No. 889 subitem 9.12.1).
I will remind that businessmen can apply the general or simplified system of the taxation, the account and the reporting. The general system is regulated by norms of section IV of the Decree No. 13-92 and the Instruction No. 12, and simplified – standards of the Decree No. 746.
For confirmation of that the individual is a businessman, the copy of the Certificate on the state registration of the individual – the businessman (further - the Certificate on state registration) should be provided to them.
If the businessman pays the single tax, except the Certificate on state registration it should provide a copy of the Certificate on payment of the single tax (further – the Certificate of "edinshchik"). After all according to Decree No. 746 Art. 2 the single tax assesses the income of implementation of the activity specified in the Certificate of "edinshchik".
I will notice that earlier taxing authorities insisted on granting also tax notice of payment of advance fees according to the personal income tax or a copy of the payment order on payment of the single tax. In particular, about it it is told in the Tax explanation No. 633. Now the position of GNA of Ukraine changed a little. Considering that tax discharge is only in the plane of the relations the businessman – taxing authority, providing such documents to the tax agent is excessive.
Considering stated, it is possible to draw a conclusion: if the businessman confirmed the right to the income without personal income tax deduction (i.e. provided copies of aforementioned documents), the agricultural enterprise isn’t the tax agent.
Agricultural enterprise – the tax agent
If the businessman receives the income not within the entrepreneurial activity, such income is taxed by the general rules established by the Law No. 889 for taxpayers, not being subjects of managing (subitem 9.12.2 of this Law). Therefore, at their payment the agricultural enterprise is the tax agent and should add, hold and pay in the personal income tax budget.
I want to pay attention to widespread situations when the agricultural enterprise according to the specified norm should be the tax agent:
• the businessman didn’t provide copies of necessary confirming documents;
• acquisition at the businessman – the payer of the single tax of production (the goods, works, services), trade which doesn’t treat the kinds of activity specified in its Certificate of "edinshchik".
Each of these situations we will consider separately.
If the businessman didn’t provide copies
Certificates on state registration and Certificates of "edinshchik", he didn’t confirm the enterprise status. Therefore, the agricultural enterprise can’t consider the income paid to it as the income connected with an entrepreneurial activity. Therefore it is obliged to add, hold and transfer into the personal income tax budget from the sum of such income. This conclusion follows from standards of item 14 of the Instruction No. 12 and the Tax explanation No. 633.
The businessman who has chosen simplified system of the taxation, pays the single tax from the income received from activity, specified in the Certificate of "edinshchik". The income received by it from other kinds of activity, is taxed on standards of the Law No. 889 (Law No. 889 subitem 9.12.2). At payment of such income agricultural enterprise obyazayono to hold and transfer into the personal income tax budget (despite provided the Certificate on state registration and the Certificate of "edinshchik").
Order of deduction and personal income tax transfer
At income charge to the businessman who has not provided copies of necessary documents, or at income charge to the payer of the single tax for the activity which has not been specified in the Certificate of "edinshchik", agricultural enterprise it is obliged to add, hold and transfer into the budget of the personal income tax for a rate of 15 %.
The tax is charged and keeps for that tax month in which the income was added, and in the budget is listed during payment of the taxable income in the location of the tax agent, irrespective of a place of the tax address of the individual – the businessman (Law No. 889 subitem 8.1.2).
If the taxable income is charged, but not paid to the taxpayer, the personal income tax from it is subject to payment in the budget before the termination of the 30th day of the month following after a month in which the income was added.
Tax calculation on f. No. 1DF
The agricultural enterprise irrespective of, it holds the personal income tax from the income paid to the businessman or not, is obliged to reflect such income in tax calculation on f. No. 1DF.
In this calculation the income will have a sign:
• 01 if it is paid to the businessman who has not confirmed the enterprise status (not provided to a copy of documents), or for the activity which has not been specified in the Certificate of "edinshchik";
• 42 if it is paid to the businessman who has confirmed the enterprise status (provided to a copy of documents).
For example, in May, 2008 the enterprise paid:
• to the businessman (1234567890) who has not confirmed the enterprise status – 1 000 UAH.;
• to the businessman (1234560987) who has provided copies of necessary documents – 4000 UAH.
Tax calculation on f. No. 1DF for the II quarter 2008 will have the following appearance:
(Fragment)
Responsibility
Financial responsibility for untimely and incomplete transfer of the sums of the personal income tax in the corresponding local budget the tax agent charging (paying) taxable income (bears subitem 16.3.5, the Law No. 889 item 20.2 "and").
The tax agent who has not held the personal income tax at payment of the income to the taxpayer, is obliged to transfer into his budget at the expense of own means (Law No. 889 subitem 20.3.2).
If by results of documentary check by body of GNS it will appear that the tax agent didn’t hold and didn’t list (not completely transferred into) the budget the personal income tax sum, to it the penalty in the double size from such sum (Law No. 2181 subitem 17.1.9) will be applied. Besides, according to Law No. 2181 subitem 16.1.2 for untimely transfer of the personal income tax the fine will be added.
In case the enterprise independently elicits the fact of not deduction and not transfer of the sum of the personal income tax and to a proyovedeniye of documentary check will pay it in the budget, the specified penalty isn’t applied. However the fine will be thus added (from the first working day following behind the last day of a deadline of payment of the sum of the personal income tax, till day of acceptance by bank of the payment order on payment of this sum).
The public officials of the tax agent which have allowed violation of an order of deduction and transfer of the personal income tax in the budget, according to the Art. 1634KUoAP bear administrative responsibility in the form of the prevention or a penalty at the rate from 2 to 3 NMDG (from 34 UAH. to 51 UAH.). At repeated violation within a year the size of a penalty makes from 3 to 5 NMDG (from 51 UAH. to 85 UAH.).
Remark: if the businessman provides unreliable or incomplete information (for example, being the payer of the single tax, doesn’t provide the certificate of "edinshchik" as carries out the activity not specified in it), responsibility for failure to pay of the personal income tax is assigned to such businessman, After all as the subject of managing it is obliged in due time and to pay fully taxes in the budget.
List of documents
1. KUoAP – the Code of Ukraine about administrative offenses from 07.12.84 of No. of the 8073rd.
2. The decree No. 746 – the Presidential decree of Ukraine from 03.07.98 of No. 727/98 About the simplified system of the taxation, the account and the reporting of subjects of small business in edition of the Presidential decree of Ukraine from 28.06.99 of No. 746/99.
3. The law No. 889 – the Law of Ukraine from 22.05.03 of No. 889-I V About a tax on the income of individuals.
4. The law No. 2181 – the Law of Ukraine from 21.12.2000 of No. 2181-III About an order of repayment of obligations of taxpayers before budgets and the state specialized funds.
5. The decree No. 13-92 – KMU Decree from 26.12.92 of No. 13-92 About the incomes tax from citizens.
6. The instruction No. 12 – the Instruction about the taxation of the income of individuals from occupation by an entrepreneurial activity, approved by order GGNIU from 21.04.93g. No. 12.
7. A tax explanation No. 633 – the Tax explanation concerning application of provisions of point 1.8 of article 1, point 9.12 of article 9 of the Law of Ukraine About a tax on the income of individuals, approved by the order GNAU from 29.12.03 of No. 633.
(On Balans-Agro newspaper materials).