Online shopping and shopping fee. Does our organization need to constantly monitor the listings to notify the Department that we are not paying the trade tax? Show room trade fee

Advice to Moscow accountants who were the first in Russia to be unlucky.

The Law of the City of Moscow dated December 17, 2014 No. 62 "On Trade Fees" establishes tax rates, benefits and payment deadlines. It also indicates who collects, processes, verifies and transmits information about taxable items to the Federal Tax Service.

In 2018, the trade tax is valid only in Moscow. Entrepreneurs are required to calculate and pay this tax on a quarterly basis.

If your business is subject to a trade tax, then you need to register with the tax. To do this, you need to submit there a notification in the TC-1 form. In the document, indicate the type of activity and characteristics of the point.

Decree of the Moscow Government dated June 30, 2015 No. 401-PP approves the procedure for collecting, processing and transferring information about shopping facilities to tax authorities. It clarifies how to determine the area of \u200b\u200bthe sales area for tax purposes.

In 2015, St. Petersburg and Sevastopol imposed a three-year moratorium on the introduction of a trade tax. It is possible that it will be extended until 2019.

From 1.01.2018, a new trade tax rate has been established in Moscow for non-stationary shopping facilities in the Central Administrative District of the city. Now it is 40,500, not 81,000 rubles as before. For stationary, it remains the same.

In this article, we will be able to consider interesting situations that will help answer, albeit not all, but many, the most topical issuesarising from the payers of the trade tax.

Offsetting the overpayment amount against underpayment

An individual entrepreneur for a trade fee has an overpayment in one IFTS, and in another underpayment.

Question: is it possible to offset the amount of overpayment against underpayment from one IFTS to another?

In accordance with paragraph 1 of Art. 411 of the Tax Code of the Russian Federation, payers of the trade tax are organizations and individual entrepreneurs carrying out business activities within the territory of municipal formation (cities of federal significance Moscow, St. Petersburg and Sevastopol), in respect of which the regulatory legal act of this municipality (by the laws of the federal cities of Moscow, St. Petersburg and Sevastopol), a fee is established using objects of movable and immovable property in the territory of this municipality.

In accordance with the Letter of the Federal Tax Service of Russia dated June 26, 2015 No. GD-4-3 / [email protected] (as amended by the Letter of the Federal Tax Service of Russia dated September 15, 2015 No. GD-4-3 / 16205) payment of the amounts of trade tax is carried out by organizations or individual entrepreneurs registered as a payer of trade tax with the tax authority, at the location of the real estate object - from by indicating the details of the payee and the OKTMO code at the place of trading activity.

In the event that several objects of carrying out types of entrepreneurial activity in respect of which the levy is established are located in territories subordinated to different tax authorities, the taxpayer is registered by the tax authority at the location of the facility, information about which was received from the payer of the levy earlier than about other objects.
Thus, the trade fee is paid to the tax office where the first object is registered. This means that it is necessary to deregister the erroneously placed object and register with the tax office where the first object is registered.

In this case, the overpayment is refunded only after it has been offset against the debt on tax, penalties or fines of the same type. The Inspectorate of the Federal Tax Service will conduct such a credit itself, without a taxpayer's application. The amount remaining after the offset will be returned to the current account.

The legislation does not provide for the procedure for offsetting the overpayment of the trade fee from one inspection to another. Therefore, you will have to pay the arrears in one inspection and write an application for a refund of the overpayment in another.

Terms of notification of deregistration

Failure to submit documents or other information by the taxpayer within the specified time period shall result in a fine of 200 rubles. for each document not submitted. The fee is established in relation to activities at trade objects.

Registration, deregistration of an organization or individual entrepreneur as a tax payer is carried out on the basis of an appropriate notification of the tax payer submitted by him to the tax authority or on the basis of information provided authorized body to the tax authority. In case of termination of entrepreneurial activity using the object of trade, the payer of the fee shall submit a corresponding notification to the tax authority.

The date of deregistration of an organization or individual entrepreneur as a payer of the fee is the date of termination of the type of activity specified in the notification.

Therefore, the payer of the trade tax is obliged to submit an appropriate notification to the tax authority in the event of termination of entrepreneurial activity using the trade object. At the same time, no time limit has been established for the fulfillment of this obligation by the Tax Code of the Russian Federation.
Since a certain period for fulfilling the obligation to submit a corresponding notification to the tax authority in the event of termination of entrepreneurial activity using the object of trade has not been established, it is impossible to determine in which case the payer of the levy should be held liable for failure to provide a notification, since it is not clear with what date should such a payer be considered to have violated the RF Tax Code.

In paragraph 7 of Art. 3 of the Tax Code of the Russian Federation established that all irrevocable doubts, contradictions and ambiguities in the acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees).

Therefore, we can conclude that the organization cannot be held tax liable under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, if it does not submit a notification to the tax authority after the termination of entrepreneurial activity using the object of trade.

Documentary evidence of lack of trade

The organization has a store, but there will be no trade in July, August and September. It is planned to resume it in the fourth quarter. Do I need to pay a third-quarter trade fee? What documents can be used to confirm the absence of trading activity at the trading facility during the third quarter?

The amount of the levy is determined by the payer independently for each taxable object, starting from the taxation period in which the taxable object arose, as the product of the tax rate in relation to the relevant type of business activity and the actual value of the physical characteristics of the corresponding object of trade. Payment of the sales tax is due no later than the 25th day of the month following the taxation period.

In case of termination of entrepreneurial activity using the object of trade, the payer of the levy shall submit a notification to the tax authority. The date of deregistration of the organization as the payer of the fee is the date of termination of the activity specified in the notification.
When an organization is deregistered as a trade tax payer, such tax payer is issued a deregistration notice within five days from the date of deregistration russian organization in the tax authority in the form No. 1-5-Accounting. In the event that such notification is not submitted, the organization continues to be considered a payer of the trade tax. Failure to pay the sales tax by such organizations will be considered a violation of the tax and duty legislation.

Based on the foregoing, in the situation under consideration, the trade tax does not need to be paid if the organization has submitted to the tax authority a notice of deregistration as a payer of the trade tax indicating the date of termination of trading activities.

Whether to pay a fee if there is no trade

The object of taxation with a trade tax is the use of an object of movable or immovable property for carrying out a type of entrepreneurial activity in respect of which the tax is established at least once during a quarter (clause 1 of article 412 of the Tax Code of the Russian Federation).

In accordance with paragraph 2 of Art. 413 of the Tax Code of the Russian Federation, trading activities include the following types of trade:

1) trade through objects of stationary trading networknot having sales areas (with the exception of objects of a stationary trading network that do not have trading floors, which are gas stations);

2) trade through objects of a non-stationary trading network;

3) trade through objects of a stationary trading network, which have trading floors;

4) trade carried out by the release of goods from the warehouse.

Art. 2 Federal law dated 28.12.2009 No. 381-FZ "On the basics state regulation trading activities in Russian Federation»It was determined that trading activity is a type of entrepreneurial activity associated with the purchase and sale of goods. OKVED specified during registration does not affect the trade tax. If the state register contains trade as the main or additional type of activity, but in fact the organization is engaged in another, the fee will not have to be paid.

Showroom and trade fee

The organization in Moscow in Gostiny Dvor has a showroom. Will she have to pay a trade fee if a trade acquiring is installed on the premises?

By the Law of the city of Moscow dated December 17, 2014 No. 62 "On trade fees" (hereinafter referred to as Law No. 62), exemption from the payment of trade fees applies to trade carried out through fixed retail network facilities that do not have a trading floor, non-stationary distribution network facilities or facilities stationary trading network with a hall (s) of less than 100 sq. m, subject to the following conditions:

The main type of activity specified in state registration legal entity or individual entrepreneur, refers to the provision of services by hairdressers and beauty salons, laundry services, dry cleaning and dyeing of textile and fur products, for the repair of clothes and textiles for household use, for the repair of shoes and other leather products, for the repair of watches and jewelry, for the manufacture and repair of metal haberdashery and keys;

The area occupied by equipment intended for displaying and displaying goods is not more than 10% of the total area of \u200b\u200bthe facility used for the activities specified above.

In turn, the Ministry of Finance of the Russian Federation, in its Letter dated 11.02.2013 No. 03-11-06 / 3/3381, indicated that the exhibition hall (showroom) belongs to the objects of a stationary trading network. The courts are of the same opinion (Resolutions of the Federal Antimonopoly Service of the North Caucasus from 24.10.2013 No. A25-347 / 2013 and Volgo-Vyatsky from 15.07.2013 No. A79-8172 / 2012 districts).

Acquiring is a method of paying for goods and services using payment cards. At the same time, trade acquiring is when a client selects a product and provides a card to the seller for payment. The merchant reads the card using the necessary equipment, after which the buyer confirms the transaction by entering the PIN from the card.

Since in the room where the provided demo samples of goods (showroom) will be installed, trade acquiring will be installed, as well as payment will take place through it (sales and purchase agreements with buyers will be concluded), in this case it is necessary to pay a trade fee.

Does an individual entrepreneur have to pay a trade fee if he carries out trading activities, but at the same time applies the patent taxation system (PSN) and pays the uniform agricultural tax (UAT)?

Individual entrepreneurs applying the PSN, as well as individual entrepreneurs and organizations applying the Unified agricultural tax, are not payers of the trade tax and should not submit appropriate notifications to the tax authorities.

PSN is applied by an individual entrepreneur along with other taxation regimes provided for by the legislation of the Russian Federation on taxes and fees.

From the payment of the trade tax for types of entrepreneurial activities, in respect of which the tax is established by the regulatory legal act of the municipal formation (the laws of the cities of federal significance Moscow, St. ), in relation to these types of business activities using the relevant objects of movable or immovable property.

Trade fee: sewing toys

SP on USN is engaged in sewing soft toys to order. The entrepreneur also sells soft toys made by him to his customers. What to do in this case and do I have to pay a trade fee?

On the territory of the city of Moscow, organizations and individual entrepreneurs are recognized as payers of the fee, provided that the following conditions are met:

1) they carry out types of trade related to trading activities;

2) such trading activities are carried out by them at the objects of trade, listed in paragraph 4 of Art. 413 of the Tax Code of the Russian Federation. The presence or absence of the taxpayer's ownership of the object through which the trade is carried out does not matter, since the object of taxation is the “use of such an object to carry out trade”, that is, the fee must be paid by the one who directly trades, and not the owner of the object trade. That is, tenants can also be payers of the fee;

3) in relation to such organizations and individual entrepreneurs benefits do not apply.

According to the explanations of the Federal Tax Service of Russia, given in the Letter dated 05.08.2015 No. GD-4-3 / [email protected], regarding the sale of products own production by organizations that do not have objects of trade, the trade fee cannot be established.

Thus, the activity of an individual entrepreneur for the sale of his own products is subject to trade tax in the case of using a trade object (buildings, structures, premises, stationary or non-stationary object). If an individual entrepreneur does not use trading facilities to sell his own products, then the trade fee is not required.

Trade fee is a serious challenge for many Moscow entrepreneurs. Some have had to raise prices, reduce floor space, or even close business. To handle the load, reduce operating costs, plan purchases, control finances.

Does our organization need to constantly monitor the listings to notify the Department that we are not a trade tax payer?

How to notify the IRS and Department economic policy the article will tell you that the organization is not a payer of the trade fee.

Question:Our organization is registered in St. Petersburg, the main activity is furniture trade. The organization in 2016 had separate subdivision in Moscow (showroom) and a warehouse in the Moscow region of Khimki. the goods were shipped exclusively from the Khimki warehouse. In Moscow, in the exhibition hall, only the demonstration of furniture and the receipt of cash from buyers was carried out. Based on the requirements of the Law of the city of Moscow dated December 17, 2014 No. 62 and Art 411,416,418 of the Tax Code of the Russian Federation, the basis for paying the trade fee is to conduct trading activities in Moscow, and the trade fee is payable if two conditions are met simultaneously: Samples of goods are displayed in the same place where they can be receive. The used option for selling goods by images does not fall under these above conditions. We received a fine of 200 rubles from the tax for not being registered as a payer of the trade fee and a fine of 40,000 for paying the trade fee. tax refers to the fact that the exhibition hall in Moscow was, according to the Department of Economic Policy and Development of Moscow, in accordance with clause 7 of the procedure for collecting, processing and transferring by the tax authority information about the objects of taxation by the trade tax approved. by the decree of 06/30/15 No. 401-PP was included in the list of objects that are payers of the trade tax on 07/27/16. Since our organization has not submitted a notification (application) that we are not such an object within 20 days, we must pay a fine and fee. Are the actions of the tax inspectorate legal? Is it possible for us to avoid the fine? We are opening another showroom in Moscow. Or can the organization in some way notify the tax and the Department of Economic Policy that we are not a payer of the trade tax in advance, without waiting to be included in the lists?

Answer: Yes, they are. According to the position of the Ministry of Finance and the court, the use of exhibition hall a priori it is considered to be subject to trade tax. The fact that the shipment itself is made from the warehouse does not matter, since there is a condition for the demonstration of the goods and receipt of payment - that is, signs confirming the conclusion of the contract.

You can hardly avoid a fine, since in order to avoid it, you need to prove in court that the object is not subject to trade tax, but given that arbitrage practice is in favor of the tax authorities, there is little chance of that.

It makes no sense to follow the lists, since you fall under the definition of a payer if you are demonstrating goods in the showroom (showroom) and accepting payment.

The first "footsteps" of the trade tax: we deal with the ambiguities of the new head of the Tax Code of the Russian Federation

When selling a product through a showroom or showroom, the sales tax will most likely have to be paid

Our company is engaged in wholesale tradeth furniture. Showroom furniture is not for sale and is exhibited as a sample. Since we don't trade directly in the showroom, we don't have to pay the trade fee, right?

Trade tax is imposed on the sale of goods through the objects of a stationary trade network that has trading floors (subparagraph 3, paragraph 2, article 413 of the Tax Code of the Russian Federation). In an organization that sells goods by samples, it is necessary to allocate premises for their demonstration (clause 13 of the Rules for the sale of goods by samples, approved by the decree of the Government of the Russian Federation of 07.21.97 No. 918).

The seller displays such samples at the point of sale in showcases, on counters, podiums, stands, special consoles, the equipment and placement of which allows buyers to familiarize themselves with the goods (clause 14 of the above rules).

Both the Ministry of Finance of Russia and the courts consider that the exhibition hall (showroom) belongs to the objects of a stationary trading network (letter dated 11.02.13 No. 03-11-06 / 3/3381, resolution of the FAS of the North Caucasus dated 24.10.13 No. A25 -347/2013 and Volgo-Vyatka from 15.07.13 No. A79-8172 / 2012 districts). Despite the fact that the furniture presented in the showroom itself is not for sale, the samples contribute to sales.

We believe that the need to pay the sales tax will depend on where you enter into the sales contract. If this happens in a showroom, you will have to pay a trade fee. Even in spite of the fact that the goods will not be the furniture displayed in the showroom, but products from the catalog.

You will not need to pay a trade fee if, after reviewing the samples of the goods, the buyer purchases furniture at your company's office, which is located in a separate room from the showroom. After all, an office is not a trading place and trading through an office does not lead to the need to pay a trade fee.

The company is registered and located in Moscow. Owns buildings and part of a land plot on the territory of Moscow on a leasehold basis, is the copyright holder of the trademark, which transfers under the terms of a non-exclusive license for use to third parties (construction companies), has contractual relations with them, under which the Company provides services for organizing and maintenance of the exhibition area to demonstrate samples of buildings and structures. Construction work is carried out directly by third parties - construction organizations. The exhibition samples of buildings belong to the Company and are not intended for sale. In addition, the Company, within the framework of the contract, provides services for consulting consumers on the subject of construction, and on behalf of third parties - construction organizations draws up construction contracts. The society itself does not perform any construction work, cash are paid directly to the account of the construction company by bank transfer, the entire construction material shipped from a warehouse in the Moscow region. Construction is carried out directly at the customer's site, as a rule, in the Moscow and nearby regions. Is this Society obliged to pay a trade fee, construction companies do i have to pay a trade fee?

Answer

No, we don't have to.

The right to determine the payers of the levy is directly under the jurisdiction of the city of Moscow (Article 441 of the Tax Code of the Russian Federation). According to Art. 2 of the Law of the City of Moscow No. 62 of December 17, 2014 "On Trade Fees", only one type of activity is levied:

Trade through the objects of a stationary trading network that do not have trading floors, and objects of a non-stationary trading network (with the exception of the distribution and distribution retail).

In your case, services are provided and robots are executed, but no trading is conducted.

The rationale for this position is given below in the materials of the "Glavbuh Systems" .

Payers

So who should pay the trade fee?

As a general rule, almost all organizations and entrepreneurs involved in trade can be involved in the payment of the trade tax. Regardless of its nature (retail or wholesale), types of goods and methods of their promotion (stationary or non-stationary trade network). *

There are two exceptions to this rule.

First, the following are exempt from paying the trade fee:

Entrepreneurs applying the patent taxation system;
- organizations and entrepreneurs - payers of the unified agricultural tax.

Secondly, the trade tax is not compatible with UTII. In relation to those types of trading activities that are subject to a trade tax, UTII cannot be applied (clause 2.1 of article 346.26 of the Tax Code of the Russian Federation). However, since the UTII regime has not been established in Moscow, this restriction for the capital's organizations and entrepreneurs is irrelevant.

In addition, eligible sellers do not have to pay the trade fee.

A complete list of types of trading activities that are potentially subject to trade tax is given in article 413 of the Tax Code of the Russian Federation. It includes:

1. Trade through the objects of a stationary trading network without trading floors (except for gas stations).

2. Trade through objects of a non-stationary trading network.

3. Trade through objects of a stationary trading network with trading floors.

4. Sale of goods directly from warehouses.

Important: a trading network is a combination of two or more retail facilities (clause 8 of article 2 of the Law of December 28, 2009 No. 381-FZ). Despite this, when the goods are sold even through one trading object (i.e., in the absence of a trading network as such), sellers are still recognized as payers of the trade tax. Such clarifications are contained in the letter of the Ministry of Finance of Russia dated July 27, 2015 No. 03-11-09 / 43256 (brought to the attention of the tax inspections by the letter of the Federal Tax Service of Russia dated August 5, 2015 No. GD-4-3 / 13686).

In addition, retail market organization activities are considered equivalent to trading activities subject to trade tax. That is, the activities of companies that manage markets in accordance with the Law of December 30, 2006 No. 271-FZ.

In Moscow, the list is abbreviated. Trade in goods from warehouses is excluded from it. With regard to this type of activity, the tax rate has not been established (one of the mandatory elements of taxation), and therefore, the owners of warehouses, wholesalers, etc. are not obliged to pay the trade tax (Article 17 of the Tax Code of the Russian Federation, Article 2 of the Law of the City of Moscow dated December 17, 2014 No. 62).

The law under which an organization or an entrepreneur uses trade objects does not matter. Both property owners and their tenants must pay a trade fee on a general basis.

Attention: if an organization or entrepreneur owns a trading facility, but does not use it in trading activities, there is no need to pay a trading fee on it. This follows from paragraph 4 of the letter of the Ministry of Finance of Russia dated October 19, 2015 No. 03-11-09 / 59842.

Do I have to pay a sales tax when selling non-resale property? Not. Trading activity involves the resale of goods specially purchased for this (part 1 of article 2 of the Law of December 28, 2009 No. 381-FZ). And entrepreneurial activity implies the systematic receipt of profit from the sale of goods (clause 1 of article 2 of the Civil Code of the Russian Federation). Therefore, if the organization is not engaged in trade, but has entered into a one-time trade transaction, for example, has sold a fixed asset, raw materials or materials previously purchased for its own needs, there is no need to pay a trade fee.

Please note: in the Moscow law, delivery and distribution trade is indicated as an independent type of trading activity (Article 2 of the Law of the City of Moscow of December 17, 2014 No. 62). This does not contradict federal law. It is just that the city authorities decided to establish a single rate of trade tax in relation to the distribution and distribution trade, which does not depend on the location of the retail facilities. Delivery and delivery trade is a type of trading activity through the objects of a non-stationary trading network, which are used as mobile means of trade: tonars, vans, auto shops, mobile counters, stands, shopping carts, etc. (p. 16, 19, 73 , 74 GOST R 51303-2013). Such activities are subject to the imposition of a trade tax (subparagraph 2 of clause 2 of article 413 of the Tax Code of the Russian Federation). Therefore, organizations and entrepreneurs who conduct such trade in Moscow are recognized as payers of the trade tax and must register for tax purposes.

Situation: who pays the trade fee when goods are sold under a commission agreement (agency agreement). The intermediary sells the goods of the principal (principal) through his network of stores

The trade fee in this case is paid by the intermediary.

The explanation is as follows. The trade tax is paid by those who actually use the object of trade (movable or immovable) for the sale of goods (Article 411, Clause 1, Article 412 of the Tax Code of the Russian Federation). When selling goods on the basis of a commission agreement (agency agreement), the sale and purchase transactions are made by an intermediary. On his own behalf, he concludes contracts with buyers, accepts payment from them and transfers them the goods of the principal (principal). Considering that these transactions take place in stores owned by the intermediary, it is he who must pay the trade fee.

The transfer by the consignor (principal) of goods for sale to an intermediary cannot be regarded as a purchase and sale transaction. First, the middleman is not the buyer of the goods. After all, the right of ownership to them does not pass to him (clause 1 of article 454, clause 1 of article 996, article 1011 of the Civil Code of the Russian Federation). And secondly, the principal (principal) receives payment for his goods from third parties (buyers). The intermediary only accepts funds and transfers them (minus his remuneration) to the customer (principal or principal) (clause 1 of article 996, clause 1 of article 1005 of the Civil Code of the Russian Federation).

Thus, when selling goods under a commission agreement or an agency agreement, the payer of the trade fee is a commission agent or agent who sells goods on his own behalf and participates in settlements. A similar conclusion is contained in paragraph 1 of the letter of the Ministry of Finance of Russia dated October 19, 2015 No. 03-11-09 / 59842.

Situation: do i need to pay a sales tax to an online store operating in Moscow

There is no need. The system of organizing trade in online stores has no signs of trading activity, in respect of which a trade tax is established in Moscow.

The activity of online stores is based on the following principle. On the store's website, the buyer selects a product, gets acquainted with its characteristics and places an order. After that, the order is completed and transferred to the client in one of three ways:
- self-pickup from the warehouse of the online store;
- via courier;
- at a centralized point of issue.

Such a purchase and sale scheme is provided for by paragraph 57 of Section 2 of GOST R 51303-2013, approved by Rosstandart on August 28, 2013.

Obviously, this scheme does not involve any shopping facilities, the use of which would entail the payment of a trade fee. Online stores have no sales areas, stationary or mobile outlets. The only type of activity that could be subject to taxation in this scheme is the release of goods from the warehouse (subparagraph 4 of paragraph 2 of article 413 of the Tax Code of the Russian Federation). However, in Moscow, this option for distributing goods is also not subject to trade tax - the tax rate has not been set for it (Article 2 of the Law of Moscow of December 17, 2014 No. 62).

Therefore, at present, online stores operating in Moscow are not recognized as payers of the trade tax. Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated July 15, 2015 No. 03-11-10 / 40730 and the Department of Economic Policy and Development of Moscow dated June 26, 2015 No. DPR-20-2 / 1-161 / 15.

Situation: whether it is necessary to pay a trade fee to a separate subdivision of a wholesale trade organization. The division is located in Moscow, the organization itself is in another region. Goods are shipped from the organization's warehouse

There is no need.

The basis for payment of the trade tax is the conduct of trade activities in Moscow. Moreover, the wholesale form of trade, legal address the seller and the fact of sale of goods through separate divisions do not matter. This follows from the provisions of Article 411 of the Tax Code of the Russian Federation. The specific types of trading activities that are subject to the taxation of the trade tax are given in Article 2 of the Law of the City of Moscow of December 17, 2014 No. 62.

In wholesale trade, the seller enters into a sales contract with each buyer. Under this agreement, the seller undertakes to transfer the goods to the ownership of the buyer, and the buyer undertakes to accept this goods and pay a certain amount of money for it (Article 454 of the Civil Code of the Russian Federation). Thus, a sale and purchase transaction is considered complete if three actions are performed:
- the seller handed over the goods;
- the buyer paid for the goods;
- the buyer accepted the goods.

In order for an object to be subject to a trade tax, it must have a room for displaying and displaying goods, serving customers and making payments. In the situation under consideration, these conditions are not met. Therefore, it cannot be said that a separate subdivision makes purchase and sale transactions. It only demonstrates samples of goods and accepts orders (draws up contracts with customers). At the same time, the goods themselves are not transmitted or received. The activity of such a separate trading unit is not recognized. This means that neither a separate subdivision itself, nor an organization with a subdivision in Moscow, is a payer of the trade tax. This conclusion follows from the letters of the Ministry of Finance of Russia dated September 26, 2016 No. 03-11-06 / 4/55977 and dated April 5, 2016 No. 03-11-06 / 4/19272.

Situation: whether it is necessary to pay a trade fee to the organization, in the office of which money is received from buyers and the goods are issued

Yes need.

The trade tax is paid by those who actually use the object of trade (movable or immovable) for the sale of goods (Article 411, Clause 1, Article 412 of the Tax Code of the Russian Federation). At the same time, trade objects are not only specialized retail space (shops, pavilions, etc.), but also other objects that are actually used for trading activities. That is, the object of trade can be any building, structure or premises in which sales and purchases are made. This follows from the provisions of paragraph 4 of Article 2 of the Law of December 28, 2009 No. 381-FZ and paragraph 4 of Article 413 of the Tax Code of the Russian Federation.

In this case, the office fully meets the criteria for a trade object. This means that the seller using the office for trading activities is recognized as the payer of the trade tax.

Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated July 15, 2015 No. 03-11-10 / 40730 and dated October 14, 2015 No. 03-11-09 / 58628 (brought to the tax inspections by the letter of the Federal Tax Service of Russia on October 30, 2015 No. SD-4-3 / 19037).

Situation: do i need to pay a trade fee when selling goods from open areas

There is no need. But only if temporary structures are not equipped in open areas, which are used for trade.

Open areas are not recognized as trade objects. Therefore, if the trade is conducted without any special equipment, the seller is not obliged to pay the trade fee. For example, there is no object of levying trade tax on vegetable debris when vegetables or melons are sold directly from the ground or from pallets.

If at least a temporary structure (tent, tray, collapsible canopy, etc.), which is used for trading, is mounted on an open area, then you will have to pay a trade fee. Such structures are recognized as non-stationary trade objects (clause 6 of article 2 of the Law of December 28, 2009 No. 381-FZ). And the use of such objects in the sale of goods is subject to a trade tax (subparagraph 2 of clause 2 of article 413 of the Tax Code of the Russian Federation).

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated October 14, 2015 No. 03-11-09 / 58630.

Situation: Do I have to pay a trade fee to a simple partnership

There is no need. The members of the partnership must pay the trading fee.

In addition to entrepreneurs, organizations, that is, legal entities (clause 1 of article 411 of the Tax Code of the Russian Federation) are recognized as payers of the trade tax. Simple partnerships legal entities are not (clause 1 of article 1041 of the Civil Code of the Russian Federation). Therefore, a simple partnership alone cannot pay the trade fee. However, the parties to the agreement are not exempt from this obligation.

Each member of a partnership who conducts trading activities using movable or immovable objects of trade must pay the trading fee on his own. In this case, the amount of the trade collection is determined by general rules... But there is one peculiarity: each participant determines the value of a physical indicator (a retail facility or a trading floor area):

  • or in proportion to the value of your contribution;
  • or in proportion to the share distributed in his favor under a simple partnership agreement.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated October 14, 2015 No. 03-11-09 / 58701.

Situation: Does a pharmacy operating in Moscow have to pay a trade fee?

The answer to this question depends on whether the pharmacy only provides social services. If so, then you do not need to pay a trade fee. Otherwise, the fee will have to be transferred.

When do you have to pay a trade fee?

Pharmacies can engage in two types of activities:
- retail trade in medicines and medical goods (clause 35 of article 4 of the Law of April 12, 2010 No. 61-FZ);
- provision of state social assistance to certain categories of citizens (for example, disabled people, war veterans, etc.). Within the framework of this state aid, pharmacies provide citizens with medicines, medical products, and medical food on preferential prescriptions (subparagraph 1 of paragraph 1 of article 6.2 of the Law of July 17, 1999 No. 178-FZ).

Retail trade is subject to trade tax (clause 1 of article 411, clause 1 of article 412, subparagraphs 1, 3 of clause 2 of article 413 of the Tax Code of the Russian Federation). But the provision of preferential categories of citizens with medicines is qualified as a social service (subparagraph 1 of paragraph 1 of article 6.2 of the Law of July 17, 1999 No. 178-FZ). Such services do not qualify as activities subject to trade tax.

Thus, if a pharmacy specializes only in providing social services, it does not have to pay a trade fee. If, along with the provision of social services, a pharmacy sells drugs and medical products at retail, it is recognized as a payer of the retail trade duty. This is stated in the letter of the Ministry of Finance of Russia dated January 28, 2016 No. 03-11-10 / 3649.

What to do if the pharmacy provides services that are both taxable and non-taxable

Pharmacies that provide social services and at the same time sell drugs at retail may not pay the trade tax only if the retail space is accounted for separately.

The fact is that the trade fee rates are set either on shopping facility in general, or 1 sq. m of the trading floor area. If in the same premises a pharmacy sells medicines for money and dispenses them on preferential prescriptions, it needs to prove that not the entire retail space, but only part of it, is subject to trade tax. Only that portion of the retail space used by the retail trade shall be indicated on the trade tax registration notice. But for this it is necessary that in the documents of title this part of the area was designated as a separate room.

Is the amount of the trade fee per part of the taxable area significant for the pharmacy? Then it makes sense to make a redevelopment, to divide the room with partitions into two halls: for retail trade and for dispensing drugs on preferential prescriptions. Such changes need to be registered and new documents of title obtained.

If we isolate retail space to service the privileged categories of the population it is not possible, the trade fee will have to be paid for the entire premises.

Situation: do I have to pay a trade fee to an organization that sells real estate

There is no need.

Selling real estate is not a trading activity. All types of wholesale and retail trade are listed in section G of OKVED. Trading operations with buildings, structures or land plots there. Real estate purchase and sale operations are included in section L of OKVED "Services related to real estate". Therefore, you do not need to pay a sales tax on the sale of buildings and land.

Situation: whether it is necessary to pay a trade fee from the showroom (showroom). In the showroom, only a demonstration of goods and acceptance of payment

Yes need.

The trade fee is paid on the sale of goods through the objects of a stationary trade network (clause 2 of article 413 of the Tax Code of the Russian Federation). In this case, it is considered that the object is used in trading activities, if the purchase and sale agreements with buyers are concluded in this object.

When selling goods based on samples, a retail sale contract can be concluded by acquainting the buyer with the sample (Article 497 of the Civil Code of the Russian Federation). The contract is considered concluded at the moment when you receive money from the buyer and issue cashier's check (Clause 21 of the Rules approved by Decree of the Government of the Russian Federation of July 21, 1997 No. 918).

In the situation under consideration, the showroom is used not only for demonstrating samples, they also accept payment from buyers (equipped necessary equipment). Thus, despite the fact that the goods are shipped from the warehouse, contracts are concluded directly at the showroom. That is, in fact, the showroom is used to sell goods. Based on this, a trade fee must be paid from the showroom (showroom), which is also intended for receiving payments from buyers. The Ministry of Finance of Russia confirms this conclusion in a letter dated September 26, 2016 No. 03-11-06 / 4/55977.

E.A. Sharonova, economist

Trade tax came to Moscow

Who prepares to pay the fee and who does not

So, the miracle did not happen, the moratorium on the trade tax was not introduced, therefore it operates on the territory of Moscow from 01.07.2015 Law of the city of Moscow dated 17.12.2014 No. 62 (hereinafter - Law No. 62).

This means that organizations and entrepreneurs who conduct trading activities in Moscow (even if they are registered with the IFTS in other regions, for example, in the Moscow region), will have to register as payers of the trade tax and pay it.

ATTENTION

If you are registered in Moscow and trade in another region, you will not have to pay the trade fee yet.

We talked about who is the payer of the levy, what is the object of taxation, how and when to pay the levy, as well as the gaps and shortcomings that the legislators made when adopting the Law, in,. But the trouble is that, having passed the crude Law in November last year, federal legislators never returned to this topic. And therefore, the main block of questions from our readers is connected precisely with whether the organization / entrepreneur are payers of the trade tax in this or that situation. And, accordingly, whether it is necessary to register with the IFTS, and if so, which one.

The draft resolution of the Moscow Government, approving the procedure for collecting and processing information about objects of trade tax, can be found: → Tax policy → I-organization-not-zation or I-indie-vie-dual entrepreneur → Trade fee

Recently, some of these issues have been resolved thanks to clarifications from the Federal Tax Service and the Ministry of Finance. And on the website of the Department of Economic Policy and Development of Moscow, there is a whole section dedicated to trade collection, and quite interesting website of the Department of Economic Policy and Development of Moscow... Recall that this Department is exactly the body that will collect, process and transfer to the IFTS information about the used trade facilities located in Moscow. nn. 1- 3 tbsp. 418 of the Tax Code of the Russian Federation; Art. 4 of Law No. 62... Namely, to identify objects of taxation, about which x p. 4, art. 418 of the Tax Code:

  • <или> the payers themselves did not notify the tax authorities (and, as a result, did not register);
  • <или> the payers submitted notices to the tax authorities, but indicated in them false information.

From the information contained on the site, you can at least understand what standards they are going to follow when classifying trade objects as a stationary trading network that has and does not have trading floors, to a non-stationary trading network, to retail and distribution trade, to retail markets and warehouses. For example, these concepts are included in the draft resolution of the Moscow Government, which approves the procedure for collecting and processing information about objects of trade tax. And although this is not yet an official document, from it you can understand what's what. In addition, the site provides answers to frequently asked questions. And although the Department itself says that these answers are not official clarifications on the application of legislation on taxes and fees (and this is understandable, since it is not authorized to give them art. 34.2 of the Tax Code of the Russian Federation), however, they will be useful to organizations and individual entrepreneurs. Now let's move on to the problems of potential and real payers of the trade tax.

Trade through one store is also a "trade network"?

Payers of the trade tax are organizations and individual entrepreneurs who, using objects of trade (movable or immovable property), conduct on the territory of Moscow clause 1 of Art. 411, paragraph 2 of Art. 413 of the Tax Code of the Russian Federation; Art. 2 of Law No. 62:

  • <или> trade through objects of a non-stationary trading network;
  • <или> trade through objects of a stationary trading network that do not have trading floors (except for gas stations);
  • <или> trade through the objects of the stationary trade network, which have trading floors.

However, what is meant by these objects in Ch. 33 of the Tax Code does not say (only the definition of trade and sub. 2 p. 4 art. 413 Tax Code).

Of course, definitions of, for example, terms such as “fixed chain” and “non-stationary chain” can be found in chapters 26.3 and 26.5 of the Tax Code. But the concepts "taxpayer", "object of taxation", "tax base", "tax period" and other specific terms should be used in the meaning given in a specific chapter of the Code. clause 3 of Art. 11 Tax Code.

Therefore, the rules written for the imputed and patent applicants will not help us in this case. And if we do not know what is meant by a particular object of trade, which is the object of taxation with a trade tax, we can say that this tax cannot be considered established. And this applies to all traders, not just those who own a single store or kiosk. The only question is whether any of them are ready to prove in court the impossibility of paying the trade fee on this basis.

And those organizations and individual entrepreneurs who trade through a single store (kiosk, pavilion, etc.) believe that they should not pay a trade fee, guided by the following.

In order to understand what is meant by this or that term, we must use its definition given in the specialized branch of legislation. clause 1 of Art. 11 Tax Code... That, in fact, the owners of the only trade object are doing. They are looking at the definition of a trading network from the Law on State Regulation of Trading Activities. And in it, a retail network is understood as “a set of two or more retail objects that are located under general management, or a combination of two or more trade objects that are used under a single commercial designation or other means of individualization and " clause 8 of Art. 2 of the Law of 28.12.2009 No. 381-FZ... It follows from this definition that if you have only one object of trade (shop, kiosk, pavilion, etc.), then it is not an object of the trade network. Accordingly, we can conclude that there is no need to pay the trade fee from such an object.

It would seem that everything is logical. However, it is hard to believe that lawmakers wanted to levy trade fees only from networkers.

By the way, the website of the Moscow Department of Economic Policy and Development also contains conflicting information. On the one hand, in the section “ Regulations»Among the documents that officials are going to be guided by when identifying the payers of the fee, there are website of the Department of Economic Policy and Development of Moscow:

  • Law on state regulation of trade activities in the Russian Federation;
  • ch. 33 NC;
  • Law on retail market x Law of 30.12.2006 No. 271-FZ;
  • GOST R 51303-2013. National standard of the Russian Federation. Trade. Terms and Definitions approved By order of Rosstandart dated 28.08.2013 No. 582-st... By the way, in GOST the definition of a trading network is similar to that contained in Law No. 381-FZ.

On the other hand, the Department's website also says that the concept of trade tax is based on two taxation regimes: the patent system of taxation and UTII website of the Department of Economic Policy and Development of Moscow... There is also a draft resolution of the Moscow Government, which approves the procedure for collecting and processing information about the objects of trade tax. So, it also gives definitions of all those named in Ch. 33 NK objects. But they are somewhat different from the concepts contained in Ch. 26.3 and 26.5 of the Tax Code of the Russian Federation, although they are close to them.

So, to to objects of a stationary trading network with trading floors, include both stand-alone non-residential buildings (buildings, structures) and non-residential premises used by one organization or individual entrepreneur for the sale of goods and the passage of buyers and equipped with equipment designed for displaying, demonstrating goods, serving customers and conducting cash payments in clause 1.5 of the draft resolution of the Government of Moscow approving the procedure for collecting and processing information about objects of trade tax (hereinafter referred to as the draft) (Attention! PDF format).

TO to objects of a stationary trading network that do not have trading floors, relate clause 1.6 of the project (Attention! PDF-format):

  • located in corridors, halls, lobbies of detached non-residential buildings (buildings, structures), as well as non-residential premises in apartment buildings outlets, used by one or more organizations and (or) individual entrepreneurs for the sale of goods and equipped with equipment designed for laying out, demonstrating goods, servicing customers and conducting cash settlements;
  • located in apartment buildings or non-residential buildings (buildings, structures) non-residential premises, used by one or more organizations and (or) individual entrepreneurs for the sale of goods and equipped with equipment designed for laying out, demonstrating goods, servicing customers and conducting cash payments, including through the goods delivery window, without the access of buyers to the premises;
  • located in apartment buildings or non-residential buildings (buildings, structures) non-residential premises, used by two or more organizations and (or) individual entrepreneurs for the sale of goods and the passage of buyers and equipped with equipment designed for displaying, demonstrating goods, servicing buyers and conducting cash payments.

TO objects of non-stationary trade network include non-stationary shopping facilities located in accordance with the Decree of the Moscow Government dated 03.02.2011 No. 26-PP p. 1.7 of the project (Attention! PDF-format)... These are pavilions, kiosks, vending machines, melons and gourds, Christmas tree bazaars, seasonal cafes, car dealerships (auto shops, caravans), auto cafes, isothermal containers and tanks, carts, trays, tents, baskets and other special devices. clause 4 of the Decree of the Moscow Government dated 03.02.2011 No. 26-PP... That is, everything that does not apply to a stationary network that has / does not have sales areas. But the clerks and patents trade using a car, a car shop, a car shop, a tonar, a caravan, a mobile vending machine refers to the distribution trade art. 346.27, sub. 11, 12 p. 3 art. 346.43 Tax Code... Although otherwise the definitions objects of distribution and distribution retail trade in the draft resolution of the Moscow Government are similar to those used for the application of UTII and the patent a p. 1.7 of the project (Attention! PDF-format).

After getting acquainted with these concepts, there is no longer any confidence that when trading through one object, you will not have to pay a trading fee. Therefore, most likely, the regulatory authorities will insist on the payment of the trade tax when trading through a single facility. And if you are not ready in court to prove the impossibility of paying the trade fee due to flaws in the legislation, it is safer to submit to the Federal Tax Service Inspectorate a notice of registration as a payer of the trade fee and pay it.

No trade - no trade fee

The question of whether companies and individual entrepreneurs who indicated during registration the "trade" codes of activities according to OKVED, which are still listed in the Unified State Register of Legal Entities along with other ("non-trade") codes, were concerned about whether to pay the trade fee. But in fact, these companies do not conduct trading activities, but provide catering services. For example, pizza is prepared to order and delivered by courier to the customer or at a kiosk in mall in the presence of the client, freshly squeezed juices, milk and fruit cocktails are made.

They are worried about whether the payer of the trade tax will be determined by the "trade" code of OKVED. And will they not be forced to pay the fee on this basis. We hasten to calm them down. If there is no trading activity, then the organization / individual entrepreneur is not a payer of the trade tax. clause 1 of Art. 411, paragraph 2 of Art. 413 Tax Code... The mere indication in the Unified State Register of Legal Entities of the code of trading activity according to OKVED is not enough to be recognized as a payer of the trade tax. This activity should be carried out after the fact.

The tenant is also a payer of the trade fee

Organizations and entrepreneurs who trade in rented premises ask the question: are they payers of the trade tax?

Yes, they are, because for the recognition of a company / individual entrepreneur as a payer of the trade tax, only the use of a trade object - real estate (buildings, structures, premises, etc.) for trade and clause 1 of Art. 411, paragraph 1 of Art. 412, sub. 1, 2 p. 4 art. 413 Tax Code... It does not matter whether the company / individual entrepreneur is the owner of this trade object or a tenant.

A special section, which contains explanations of the Moscow Department of Finance on trade fees, can be found: fTS website → Taxation in the Russian Federation → Trade fee → Clarifications of the Department of Finance of the city of Moscow on certain issues of the procedure for the application of rates and benefits on trade fees established by the Law of the city of Moscow dated 17.12.2014 No. 62 "On trade fees"

In the notification of registration (form No. TS-1) in field 2.5 "Basis for using the object of trade" you need to indicate the number 2. This will mean that you lease the object of trade. p. 21 of the Order, approved. By letter of the Federal Tax Service dated June 10, 2015 No. GD-4-3 / [email protected] (hereinafter - Order).

The trading fee is not paid only by those organizations and individual entrepreneurs that trade through leased objects of a stationary and non-stationary trading network located on the territory of retail markets in sub. 3 p. 1 art. 3 of Law No. 62.

However, they also need to submit to the Federal Tax Service Inspectorate at the location of this market a notice of registration as a payer of the trade tax (see details). After all, the tenant is the payer of the fee, but he has the right to a benefit. And as the Department of Economic Policy and Development of Moscow explains on its website, in order to receive benefits, along with a notification, you must submit documents confirming the right to this benefits from website of the Department of Economic Policy and Development of Moscow... And the Moscow Department of Finance said that such documents are, for example, an agreement on the provision of a trading place in the market and a seller's card. This clarification is posted both on the website of the Department itself website of the Moscow Department of Financeand on the FTS website.

Online trade from a warehouse is not subject to trade tax

Perhaps the largest block of questions is related to online trading.

The first option is classic online trading:

  • the buyer selects a product on the website and places an order directly on the website or by phone;
  • the ordered goods are either delivered to the buyer (no matter how - by courier, transport company or by mail), or the buyer himself picks it up at the warehouse or through the point of issue of orders;
  • the ordered goods can be paid in any way (to the current account of the company / individual entrepreneur, through an electronic wallet, by card via the Internet, cash on delivery (if delivery is via Russian Post), in cash to the courier or upon receipt of the goods at the warehouse or at the point of issue of orders).

In this case, you do not need to pay the trade fee. After all, the Law of the City of Moscow "On Trade Fees" does not establish the rate for the type of activity "trade carried out by the release of goods from the warehouse" art. 2 of Law No. 62.

A similar explanation was given by the Moscow Department of Finance Letter of the Moscow Department of Finance dated 20.04.2015 No. 90-01-01-07-53 / 15.

The same position is adhered to by the Department of Economic Policy and Development of Moscow. In particular, he clarifies that the delivery of goods from the warehouse by courier or mail is a service. website of the Department of Economic Policy and Development of Moscow.

Therefore, organizations and individual entrepreneurs trading via the Internet should not submit a notice of registration with the IFTS.

An online store with a showroom is eligible for trade tax

Some companies and individual entrepreneurs, along with classic Internet trading, open a so-called showroom. In fact, this is a small store in which the buyer can not only receive the goods ordered via the Internet, but also buy something from the presented goods. That is, the showroom differs from the usual point of issue of orders in that there are not only generated orders, but also goods that are displayed so that you can see them live and buy. And it doesn't matter where the showroom is located - in a shopping center or in a non-residential area of \u200b\u200ban apartment building.

And such trading is equivalent to trading through a stationary trading network facility. If such an object without a trading floor or with a hall with an area of \u200b\u200bno more than 50 sq. m, then the fee will have to be paid for the object of trade. And the rate of collection will depend on the area of \u200b\u200bMoscow in which the building with the rented premises is located (where the showroom will be located): without a hall - 28 350 rubles, 40 500 rubles. or 81,000 rubles, with a hall - 21,000 rubles, 30,000 rubles. or 60,000 rubles. per quarter (the highest rate in the districts of the Central Administrative District of Moscow). If such an object has a sales area of \u200b\u200bmore than 50 sq. m, then the fee will have to be paid from each square meter trading floor and art. 2 of Law No. 62.

Companion trade is exempt from trade tax, but not everywhere

There are many questions about the trade collection from those organizations and individual entrepreneurs for which trade is not the main type of activity, but an accompanying one:

  • <или> the beauty salon sells skin and hair care products. The goods are presented in a small showcase, which usually occupies no more than 1 - 2 square meters. m;
  • <или> Shoe repair shops sell shoe care products, insoles, laces;
  • <или> watch repair shops sell straps and batteries;
  • <или> the car service sells spare parts.

And so on and so forth. All these organizations have the same questions: whether they are payers or not, and if so, from what area to pay the fee - from the one where the goods are sold (for example, a place for a showcase in a beauty salon or a place for a showcase + a place for a cash register, where are buyers calculated), or from the entire area of \u200b\u200bthe premises?

Based on the norms of Ch. 33 and the current version of the Law of the City of Moscow No. 62, such organizations / individual entrepreneurs are payers of the trade tax in relation to the sale of related products. Indeed, in the situation under consideration, they use real estate not only for the provision of services, but also for trade and an object of a non-stationary trading network;

  • <или> a stationary trading network facility that does not have a trading floor;
  • <или> an object of a stationary retail network with a hall (s) of less than 100 sq. m.

    • In this case, two conditions must be met simultaneously:

    • the main type of activity specified during the state registration of an organization or individual entrepreneur relates to the provision of services by hairdressers and beauty salons, laundry services, dry cleaning and dyeing of textile and fur products, repair of clothes and household textiles, repair of shoes and other leather products, for the repair of watches and jewelry, for the manufacture and repair of metal haberdashery and keys;
    • the area occupied by equipment designed for displaying and displaying goods is no more than 10% of the total area of \u200b\u200bthe used facility.

    Moreover, it is provided that these amendments apply to legal relations that have arisen from July 1, 2015. h. 4 art. 3 of Law No. 29

    This, of course, is good, but with accompanying trade, a notice of registration as a payer of the trade tax must still be submitted to the Federal Tax Service Inspectorate. And along with it, and documents confirming the right to this benefit. This is how the Department of Economic Policy and Development of Moscow explained on its website. website of the Department of Economic Policy and Development of Moscow.

    And here the questions arise: how to fill out this notification and what to indicate in it? The fact is that, before specifying the simplest thing - the tax benefit code (clause and sub-clause of the article of the Law of Moscow No. 62), it must also reflect the amount of the benefit in rubles provided to the trade object. And it cannot be more than the amount of the levy calculated per quarter l nn. 30, 31 Order... That is, you must first calculate the amount of the trade fee, and then write it down as a benefit. And as we have already said, the amount of the fee depends on the rate, which is set either for the trade object or for each square meter.

    Since in those places where there is related trade (for example, in beauty salons, shoe repair shops, etc.), there are no sales areas as such, it is more logical to fill in field 3.1 "Tax rate per trade object" in the notification. And the amount indicated in it will be equal to the indicator of field 3.3 "Calculated amount of the fee for the quarter".

    However, in addition to this notification, a letter must be attached, in which it is necessary to provide a calculation confirming that the area occupied by equipment for displaying and displaying goods is 10% or less of the total area of \u200b\u200bthe facility in which the services are provided.

    Now for the car services that sell parts to customers. If this happens precisely as part of the provision of a car repair service, that is, the cost of spare parts is one of the components of the total cost of repair work sub. "G" clause 15, clause 16 of the Rules, approved. Government Decree of 11.04.2001 No. 290 (it doesn't matter if the cost of spare parts is highlighted on a separate line in the work order or not), then there should be no problems. In this case, it cannot be said that the car service has two types of activities - the sale of spare parts and the provision of repair services. At least in such a situation, organizations that have switched to the payment of UTII pay imputed tax on only one type of activity - the provision of repair services vehicles... YOU came to this conclusion back in 2010, and then the Federal Tax Service agreed with it. Resolution of the Presidium of the Supreme Arbitration Court of 22.06.2010 No. 14630/09; Letter of the Federal Tax Service dated 12.08.2011 No. SA-4-7 / [email protected] (p. 41)... In our opinion, it is possible to draw an analogy with UTII. This is indirectly confirmed by the fact that the Department of Economic Policy and Development of Moscow itself says: the concept of trade tax is based on two taxation regimes - the patent taxation system and UTII website of the Department of Economic Policy and Development of Moscow.

    However, if the car service, in addition to providing repair services, will sell parts, the regulatory authorities will most likely require the payment of a trade fee. And since the car service does not have a trading floor, the fee will have to be paid as for an object of a stationary trading network without a trading floor.

    I am glad that at the last moment, by amendments from the trade tax, trade was freed through the objects of the non-stationary trade network with the specialization "Print", placed in accordance with the procedure, approved by the Government Moscow s h. 1 tbsp. 2 of Law No. 29... In addition, there are other benefits with their own conditions for release.

    In this article read:

    • what is Internet commerce;
    • the general concept of the trade tax and the cases of its mandatory payment;
    • under what conditions an online store can become a payer of the trade fee.

    In Russia, the competition in the retail business is very high. Therefore, aspiring traders and organizations open their first business on the Internet. Many operating business entities will also think about the transition to network sales.

    In this article, you will learn about what Internet commerce is. What regulations should be guided when organizing sales on the Internet. And also about whether an Internet business needs to pay a trade fee.

    You should immediately draw the reader's attention to the fact that in activities related to the sale of goods on the Internet, an economic entity can use both common system taxation, and pay a single tax on the simplified tax system. It is impossible to apply UTII and a patent for such activities. The author once again draws the reader's attention to the fact that this article is about online sales. Demonstration of goods on the site and its sale in retail store does not apply to this situation.

    Also, the sale of goods via the Internet does not apply to small-scale retail trade. See, for example, paragraphs 71-75 of GOST R 51303-2013.

    What is e-commerce

    Internet commerce is regulated by the norms of paragraph 2 "Retail purchase and sale" of Chapter 30 of the Civil Code of the Russian Federation, the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On Protection of Consumer Rights", as well as the Rules for the sale of goods by remote method (approved by the Decree of the Government of the Russian Federation of 27.09 .2007 No. 612).

    In general, the main provisions on Internet commerce are set out in the rules. The document states that the sale of goods by remote means is the sale of goods under a retail sale and purchase agreement. Such an agreement is concluded on the basis of familiarization of the buyer with the goods on the Internet.

    The rules also say that the offer of a product in its description, which contains all the essential terms of the contract and is addressed to an indefinite circle of persons, is recognized as a public offer. In this case, the seller is obliged to conclude an agreement with any person who has expressed an intention to purchase the goods offered in its description.

    Therefore, when selling goods remotely, the contract is considered concluded:

    • from the moment the seller issues the cash register or sales receipt or any other document confirming payment for the goods;
    or
    • from the moment the seller receives a message about the buyer's intention to purchase the goods.

    By the way, from the moment the seller receives the corresponding message from the buyer about the intention to conclude an agreement, the seller has obligations to transfer the goods.

    Thus, online stores sell their goods through distance selling.

    Which OKVED code should be chosen for an online store

    Now organizations and entrepreneurs must indicate in their registration applications oKVED codes from the new classifier (OK 029-2014). If you indicate the old codes (OK 029-2001), then registration may simply be refused. With its clarifications dated June 24, 2016 No. GD-4-14 / 11306, the Federal Tax Service of Russia took care of this.

    In the current classifier Internet business is assigned a code - 47.91 "Retail trade by mail or on the information and communication network Internet".

    Newly registered and are you going to sell on the Internet? Indicate this OKVED in the application for registration.

    Looking to expand your business and sell products online? Then add single register legal entities or entrepreneurs with the appropriate code.

    Mandatory use of an online checkout for an online store

    When selling goods online, a merchant or an organization must use the online CCP. Does the courier deliver the goods to the buyer? Equip it with a special wireless device to dispense checks. You cannot punch checks in advance in the store.

    Is the payment received by a payment card (for example, through the seller's website)? In this case, the online checkout is also used. In this case, the check is sent to in electronic format to the customer's subscriber number or address email at the time of calculation. For such calculations, there is a special CCP that allows you to automate the accounting of settlements and generate receipts without the participation of the seller.

    The buyer pays for the goods through personal Area bank in mobile application or an electronic wallet? Then it is necessary to apply online CCP from 01.07.2018.

    Do you work with a paying agent? In this case, it is he who must apply the online CCP. The online store is obliged to send the payment agent all information about the product being sold. This is due to the fact that this data must be visible on the paying agent's check.

    Trade fee payers

    The trade tax is a local tax. The fee can be set in any locality by decision of the authorities. But in Moscow, St. Petersburg and Sevastopol, the trade tax is established by regional laws.

    To date, this Law is valid only on the territory of the city of Moscow (Law of the city of Moscow dated December 17, 2014 No. 62).

    So, on the basis of the main provisions of the Tax Code of the Russian Federation, all trade organizations and entrepreneurs. The types of activities for which the fee is paid include:

    • trade through objects of a stationary trading network with trading floors;
    • trade through objects of a stationary trading network without trading floors;
    • trade from warehouses.
    • trade through objects of a non-stationary trading network.

    In Moscow, this list is limited. The fact is that the Moscow Law of December 17, 2014 No. 62 does not establish rates for trade from warehouses. If there is no main element in relation to the fee, then you do not need to pay it.

    Trade fee and e-commerce

    The supervisory authorities, represented by the Ministry of Finance of Russia and the Department of Economic Policy and Development of Moscow, indicate that the organization of trade in online stores has no signs of trading activity in respect of which a trade fee should be paid.

    The fact is that online stores do not have trading floors or stationary shopping facilities. As mentioned above, the sale of goods by remote means involves the transfer of goods to the buyer through a courier, at the point of issue of the Order or in a warehouse. And sales from a warehouse in Moscow are not subject to trade tax.

    Therefore, Moscow online stores are not recognized as payers of the trade fee 1. And they cannot become them until:

    • selling online is not equated with selling goods from a warehouse (which is impossible by definition of the Legislation);
    • the tax rate for trade from warehouses will not appear in the Law.

    But what about those business entities who accept Orders on sites, but sell goods directly in the office or in a separate trade pavilion or premises? The author of the article at the very beginning drew attention to the fact that such activity does not fall under the Internet trade. This means that it is impossible to take into account the explanations of the Ministry of Finance of Russia and the Department of Economic Policy and Development of Moscow.

    In this case, the place where the goods are sold by preliminary order is recognized as a trade object. It can be not only a trade object according to title documents. It can be a room or an office in a real estate object - an object in which sales and purchases are made. Therefore, in this case, the economic entity is recognized as the payer of the trade tax.

    By the way, regional and local laws may establish collection exemptions. So, for example, in Article 3 of the Law of the city of Moscow dated December 17, 2014 No. 62, a list of benefits is established both for the direction of trading activities and for individual organizations and merchants.