Article makes comments on provisions of the tax legislation of Ukraine concerning debt on the personal income tax. The question of limitation period application to debt on the personal income tax is considered.
Tatyana DOBRODIJ, head of department of consideration of addresses of payers of Department of the taxation of individuals of GNA of Ukraine
The enterprise is in arrears on payment in the personal income tax budget. Whether the limitation period is applied to this debt?
No, it is not applied.
First of all, I will notice that it is necessary to distinguish isyokovy prescription in civil law and prescription in the tax legislation.
So, limitation period in civil law – is term within which the person can appeal to court with the requirement about protection of the grazhdanskogo the right or interest (Art. 256 Civil kodeksa). The general limitation period is established lasting three years, but for nekotoyory cases the law provided the reduced term.
In the tax legislation a limitation period sostavlyaet 1 095 days from the date of, a deadline of representation of the tax declaration following behind poyosledny day and in case such nalogoyovy declaration was presented later – behind day of its actual representation (Law subitem 15.1.1 from 21.12.2000 of No. 2181-111 About an order of a poyogasheniye of obligations of taxpayers before budgets and state target fondami, further – the Law No. 2181).
In the cases concerning repayment of a zadolzhenyonost on tax payment, the priority has the nayologovy legislation. Therefore its norms I will consider in more detail.
Payers of a tax on the income of individuals are residents and nonresidents – individuals (Law item 2.1 from 22.05.03 of No. 889-IV About naloge from the income of individuals, further – the Law No. 889).
I will notice that the duty of the individual on uplate taxes stops with their payment or cancellation, and also in case of death of such individual (h. 4 Art. 9 of the Law from 25.06.91 of No. 1251-XII About taxation system).
The enterprise is only tax agent of the individual. In its duties the nayochisleniye, deduction and payment (transfer) enters into the budget of a tax on the income paid in interesax of the individual.
Payment (transfer) of the personal income tax in the budget proizvoditsya at payment of the taxable income to the payer of a tax. If such income nachislyaetsya, but isn’t paid, the personal income tax is subject uplate (transfer) in the budget in terms, ustanovlenyony for the monthly tax period (Law No. 889 subitem 8.1.2).
Therefore, emergence at the enterprise of debt for the personal income tax testifies that, having held the personal income tax, it didn’t transfer into its budget.
Duties of the tax agent also include representation into body of GNS in established sroki tax calculation of the sums of the income, nachislennogo (paid) in interests nalogoplatelshhikov, and the sums of the tax withheld from them in a No. 1DF form.
Dismissed isn’t the tax declaration in understanding of item 1.11 of the Law No. 2181 as on it charge and/or personal income tax payment isn’t made.
Taking into account stated, to debt of the naloyogovy agent to the budget on the personal income tax the limitation period provided by Art. 15 of the Law No. 2181 (1 095 days), isn’t applied. The enterprise Obyayozannost as on personal income tax payment in the budget is considered the tax agent vypolyonenny after the actual payment (peyorechisleniye) of this tax.
T. DOBRODIJ, head of department of consideration of addresses of payers of Department of the taxation of individuals of GNA of Ukraine.