In this article, we will talk about what is the income tax rate. Formula for calculating income tax:

Income tax = Tax base * Tax rate / 100%,

As already mentioned above, the tax base is the monetary expression of profit = income - expenses. About taxable, we talked in a previous article. Now let's talk about the second component in the formula for calculating income tax, that is, let's deal with tax rates. So what are the income tax rates?

There are several tax rates, all of which are detailed in Art. 284 of the Tax Code of the Russian Federation. Here I will briefly describe what rates apply for a particular type of income.

Key information on income tax infographic

The figure below discusses the basic concepts of income tax: interest rates, payers, tax and reporting period.

Income tax. Rate 20%

Applied in general case when the rates specified below are not applied (clause 1 of article 284): 2% - credited to federal budget, 18% - credited to the budget of the constituent entities of the Russian Federation.

Income tax. Rate 0%

• for medical and educational institutions (Art. 284 p. 1.1);

• for agricultural and fishery producers, if they meet the criteria specified in Art. 346.2 p.2.;

• dividends, if the organization receiving dividends has a share in the authorized capital of the organization paying dividends, more than 50% (clause 3.1 of article 284);

• bonds issued before 1997 (clause 4.3 of article 284).

Income tax. Rate 9%

• on received dividends that do not fit the 0% rate (clause 3.2 of article 284), in 2015 this rate will increase to 13%, read about the taxation of dividends;

• municipal securities issued before 2007 (clause 4.2 of article 284).

Income tax. Rate 15%

• dividends from foreign organizations (clause 3.3 of article 284);

• government securities issued after 2007 (clause 4.1 of article 284).

Income tax. Rates 10% and 20%

• apply to foreign companies (clause 2 of article 284).

Now, knowing how to determine the tax base, and knowing the income tax rates, you can calculate the amount of income tax and pay it to the budget.

Income tax postings

D99 K68.Profit- Income tax charged.

D68. Profit K51- the amount of income tax is transferred to the budget.

To summarize: we dealt with it, found out what is taxable, and finally, today we considered income tax rates for 2013. Now, armed with the necessary knowledge, we can move on to.

If the right to a zero rate on income tax has been lost by an educational organization, it will be able to apply it again no earlier than five years later. But what about an organization that has already applied the specified rate, and then switched to a “simplified” one? The tax authorities answered the question in a letter dated March 17, 2014 No. GD-4-3 / [email protected]

Application of a zero rate

Income tax rates are determined by Article 284 of the Tax Code of the Russian Federation. The generally established rate of 20 percent is provided for in paragraph 1, and the rate of 0 percent is provided for in paragraph 1.1 of this article. The preferential rate can be used by organizations that conduct educational and (or) medical activities included in the List of activities approved by Decree of the Government of the Russian Federation of November 10, 2011 No. 917. The features of its application are determined by Article 284.1 of the Tax Code of the Russian Federation. An organization can take advantage of the zero rate if a number of conditions are simultaneously met (clause 3 of article 284.1 of the Tax Code of the Russian Federation), namely if:

1) has a license (licenses) to conduct educational and (or) medical activities;

2) its income for the year from educational (and medical, if any) activities, as well as from R&D, is at least 90 percent of total income (or there is no income);

3) its staff includes at least 15 employees continuously throughout the year;

4) does not make transactions with promissory notes and financial instruments of forward transactions during the year.

When conducting medical activities, an additional condition is the presence in the staff of the organization of medical personnel with a certificate of a specialist, in the total number of employees continuously throughout the year at least 50 percent.
Loss of the right to apply the preferential rate

If, during the year in which the preferential rate was applied, educational organization violated at least one of the conditions provided for by clause 3 of article 284.1 of the Tax Code of the Russian Federation, she loses the right to apply it from the beginning of this year (clause 4 of article 284.1 of the Tax Code of the Russian Federation). That is, from the beginning of the year in which the right to a zero rate is lost, the organization switches to a tax rate of 20 percent.

Educational and medical organizations that applied the 0 percent income tax rate and switched to the 20 percent rate are not entitled to re-switch to the zero rate for five years. This period starts from tax period(year), in which they switched to the application of the generally established tax rate (clause 8, article 284.1 of the Tax Code of the Russian Federation).
Voluntary waiver

An organization can also voluntarily stop applying the zero rate. For example, if she decided to switch to a “simplified” system from next year. In this case, the organization does not violate the conditions provided for in paragraph 3 of Article 284.1 of the Tax Code of the Russian Federation. This means that it is not subject to a five-year ban on the repeated application of the 0 percent rate. Therefore, it has the right to switch again to the application of this rate, subject to the conditions established by Article 284.1 of the Tax Code of the Russian Federation. It was this conclusion that the tax authorities came to in their letter No. GD-4-3 / [email protected], which is posted on the website of the tax service in the section "Explanations of the Federal Tax Service, mandatory for use by the tax authorities."

Important to remember

Voluntary refusal to apply the 0 percent rate for income tax and the transition to the use of "simplified" does not deprive the educational organization of the right to re-switch to its application. Of course, subject to all necessary conditions allowing the use of a zero rate.

N. V. Nikiforova, magazine expert

Let us make a reservation right away that this article is addressed to taxpayers who use the medical and educational benefit for income tax, introduced from 01/01/2011 by Federal Law No. 395-FZ 1 . This law supplemented Art. 284 of the Tax Code of the Russian Federation, clause 1.1, according to which organizations engaged in educational and (or) medical activities can use a zero rate when calculating income tax, subject to the provisions of Art. 284.1 of the Tax Code of the Russian Federation. Let's consider some of the issues of applying the preferential taxation regime that organizations face in practice 2 , and also talk about how to confirm its legitimacy.

Who is eligible to use preferential tax treatment

Formally, the 0% rate is not tax break. However, according to the author, it can be recognized as such. After all, according to paragraph 1 of Art. 56 of the Tax Code of the Russian Federation, tax benefits are recognized as the advantages provided by law provided to certain categories of persons in comparison with other taxpayers, including the opportunity not to pay tax or pay it in a smaller amount. When applying a zero rate, an economic entity does not actually pay income tax to the budget, like other taxpayers who tax their income (minus relevant expenses) at a rate of 20%. Therefore, the tax preferences established for educational and medical organizations in clause 1.1 of Art. 284 of the Tax Code of the Russian Federation, can be called a preferential taxation regime.

We emphasize that the application of a zero rate on income tax is not an obligation, but a taxpayer's right. Obviously, its use is beneficial to organizations that have a profit. After all, by virtue of paragraph 1 of Art. 283 of the Tax Code of the Russian Federation for losses received by payers during the period of taxation of income at a rate of 0%, the rules for the transfer to the future do not apply.

Therefore, if during the application of the zero rate the activity of an economic entity is unprofitable, then it will not take advantage of the non-payment of income tax, and will not be able to reduce the profit received in subsequent periods by the amount of losses of previous years.

Features of medical and educational benefits are set out in Art. 284.1 of the Tax Code of the Russian Federation, the provisions of which, by virtue of Part 6 of Art. 5 of Federal Law No. 395-FZ are applicable from January 1, 2011 to January 1, 2020. It follows from paragraph 1 of this article that only organizations that carry out activities named in the List specially approved by the Government of the Russian Federation 3 can switch to preferential taxation. At the same time, legislators did not classify activities related to sanatorium treatment as medical.

Thus, organizations that given view activities do not have grounds for applying a zero rate. How do regulatory authorities determine whether or not the activities of a medical organization are related to sanatorium-and-spa treatment?

Information on the types of activities of the taxpayer can be obtained from the Unified State Register legal entities(Unified State Register of Legal Entities). In accordance with paragraphs. n p. 1 art. 5 of Law No. 129-FZ 4 the Unified State Register of Legal Entities contains information on the codes of types of economic activity of a legal entity, affixed according to the all-Russian classifier (OKVED) 5 . These codes are subject to mandatory indication in the application for state registration when creating an organization and are set by the applicant independently.

Note that medical institutions (OKVED code 85.11) can have one of two codes: 85.11.1 - activities of hospitals general profile and specialized and 85.11.2 - activities of sanatorium-and-spa institutions. Therefore, if in the Unified State Register of Legal Entities the type of economic activity of the organization corresponds to the OKVED code 85.11.2, the regulatory authorities recognize the application of the zero rate for income tax as unlawful. Moreover, it does not matter that the sanatorium and resort institution has licenses for medical activities included in the List.

For example, in Letter No. 03-03-06/1/252 dated May 18, 2012, specialists from the financial department considered the issue of applying a preferential tax regime by an organization that, on the basis of appropriate licenses, carries out about thirty types of medical activities included in the List. Meanwhile, all medical services provided are related to sanatorium and resort treatment, as evidenced by the main type of activity - OKVED code 85.11.2. The Ministry of Finance believes that such a medical institution has no grounds for applying a tax rate of 0%, since this is directly established by Art. 284.1 of the Tax Code of the Russian Federation. At the same time, the financial department recommended contacting the Ministry of Health and Social Development with all questions about the definition of activities related to sanatorium treatment.

What conditions must be met in order to apply the preferential rate

In paragraph 3 of Art. 284.1 of the Tax Code of the Russian Federation, the conditions are given, after fulfilling which the taxpayer receives the right to apply a zero rate on income tax. Condition one. An economic entity must have one or more licenses for the implementation of educational and (or) medical activities, obtained in accordance with the current legislation (clause 1, clause 3, article 284.1 of the Tax Code of the Russian Federation). This condition must be met without fail before the transition to a preferential tax regime. After all, according to clause 5 of this article, organizations that have expressed a desire to apply the 0% rate, no later than one month before the start of the tax period from which it will be applied, file tax authority at the place of its location, an application and copies of the relevant license (licenses).

Controllers also require that, as prescribed in paragraphs. 1 p. 3 art. 284.1 of the Tax Code of the Russian Federation, the condition was fulfilled by the taxpayer on the date of the end of the tax period. So, in Letter No. 16-12 dated January 30, 2012 / [email protected] Moscow tax authorities came to the conclusion that if an educational organization does not have a valid license for the right to carry out educational activities at the end of the tax period, it cannot apply a zero rate in the income tax return. In addition, if the condition of having a license is not met next year, 0% should not be declared in declarations for the reporting periods of this year (until the date of issuing a new license).

It should be noted that in 2011 there were changes in the area of ​​legislation on licensing: Federal Law No. 128-FZ of 08.08.2001 On Licensing Certain Types of Activities was replaced by Federal Law No. 99-FZ 6 . This law came into force on November 3, 2011 - after 180 days from the date of its official publication in Russian newspaper 05/06/2011 (No. 97), except for the provisions for which Art. 24 of this law establishes other terms for the commencement of action.

The list of licensed activities is given in paragraph 1 of Art. 12 of the Federal Law No. 99-FZ. Educational and medical activities (with the exception of activities carried out by organizations located on the territory of the Skolkovo Innovation Center) are indicated in paragraphs. 40 and 46 of this paragraph. In order to implement the said law, the Government of the Russian Federation approved a number of provisions on licensing specific types of activities, containing exhaustive lists of work performed, services rendered, constituting a licensed type of activity (clause 2, clause 1, article 5, clause 2, article 12 of Federal Law No. 99 -FZ).

The regulation on licensing medical activities carried out on the territory of the Russian Federation by medical and other organizations, as well as individual entrepreneurs (with the exception of Skolkovo residents), was approved by Decree of the Government of the Russian Federation of April 16, 2012 No. 291, on licensing of educational activities - by Decree of the Government of the Russian Federation of March 16, 2011 No. 174 In addition, by virtue of paragraphs. 3 p. 4 art. 1 of Federal Law No. 99-FZ, the procedure for licensing educational activities is also regulated by Art. 33.1 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 On Education.

It is important that in accordance with paragraph 4 of Art. 9 of Federal Law No. 99-FZ, licenses are valid indefinitely, that is, they are granted to business entities for an indefinite period (previously, licenses were usually issued for five years). Moreover, licenses issued before the amendments to the legislation on licensing (despite the indication of the validity period in them) also become unlimited, but from the date of entry into force of the said law. After the expiration of the license, it should not be reissued, with the exception of two cases:

If the previously issued license does not contain a list of works (services) that are performed (rendered) as part of the licensed type of activity;

If the name of the licensed type of activity has changed.

According to paragraph 4 of Art. 22 of Federal Law No. 99-FZ in these cases, expired licenses are subject to re-issuance in the manner prescribed by Art. 18. This legal norm lists the circumstances upon the occurrence of which the license must be reissued, namely: when a legal entity is reorganized in the form of transformation, its name and location address are changed; change of place of residence, last name, first name, patronymic of an individual entrepreneur, details of the document proving his identity; change of addresses of places of implementation by a legal entity or an individual entrepreneur of a licensed type of activity; changing the list of work performed, services rendered, constituting the licensed type of activity.

Thus, from November 3, 2011, by virtue of the current legislation, the renewal of any license (regardless of the date of its receipt) is necessary only in the cases specified in Art. 18 and paragraph 4 of Art. 22 of Federal Law No. 99-FZ. This is indicated in the Letter of the Ministry of Economic Development of Russia dated October 21, 2011 No. d09-2534. Condition two. Income for the tax period from educational and (or) medical activities, as well as from R&D should be at least 90% of the income taken into account when determining tax base in accordance with Ch. 25 of the Tax Code of the Russian Federation, or in the tax period there should be no income taken into account when determining the tax base (clause 2, clause 3, article 284.1 of the Tax Code of the Russian Federation). What should organizations pay attention to when fulfilling this condition?

First, when determining the 90% ratio, income from privileged types of activity must be correlated only with the taxpayer's income, which is taken into account when calculating the income tax base. Article 251 of the Tax Code of the Russian Federation provides for a list of income not participating in the formation of the taxable base. So, the income named in this article should be excluded from the total income of educational and (or) medical organizations within the framework of the criterion under consideration. This can be, for example, income in the form of property received free of charge from the founder of the organization (taking into account the specifics established in subparagraphs 11 of paragraph 1 of this article), in the form of property received free of charge educational institutions for their statutory activities (clause 22, clause 1), funds for targeted financing (clause 14, clause 1), targeted income for maintenance non-profit organizations and their conduct of statutory activities (clause 2).

Secondly, non-operating income must be included in the total amount of income, since those determined in accordance with the provisions of Art. 248 of the Tax Code of the Russian Federation, the income of the organization for the purposes of Ch. 25 consist of income from sales (Article 249) and non-operating income (Article 250). The financial department considers that non-operating income includes amounts received by educational or medical organizations from tenants as reimbursement for the cost of consumed by them utilities. This is indicated in the Letter of the Ministry of Finance of Russia dated May 30, 2012 No. 03-03-06 / 4/55.

Thirdly, as part of income from privileged types of activities, only income from activities named in the List should be taken into account, minus the amounts of VAT presented by the taxpayer to the buyer (letters of the Ministry of Finance of Russia dated November 01, 2012 No. 03-03-06/4/105, December 14, 2011 No. 03-03-06/4/145, dated September 21, 2011 No. 03-03-06/1/580). If, for example, an organization, in addition to income from the implementation of additional educational programs, receives fees from students for living in a hostel, then the latter does not apply to income from educational activities. The specialists of the Federal Tax Service indicated this in the Letter dated 11.03.2012 No. ED-4-3 / [email protected]

Fourth, the considered ratio of income from privileged types of activities and the total amount of income must be observed at the end of the tax period. Capital tax authorities in Letter No. 16-15 dated 20.06.2012 / [email protected] noted that non-fulfillment of the criterion provided for in paragraphs. 2 p. 3 art. 284.1 of the Tax Code of the Russian Federation, at the end of the reporting periods does not affect the right to apply a zero rate for income tax for the tax period.

Fifth, the provisions of Art. 284.1 of the Tax Code of the Russian Federation do not establish requirements for rounding the share of income from educational and (or) medical services to whole units. If, for example, the indicator under consideration is equal to 89.9%, the organization is not entitled to apply the preferential taxation regime. This position is stated by the financial department in Letter No. 03-03-06/4/46 dated May 23, 2012.

Condition three. In the staff of an organization engaged in medical activities, at least half of the employees must be certified medical staff (clause 3, clause 3, article 284.1 of the Tax Code of the Russian Federation). At the same time, as the Ministry of Finance pointed out in Letter No. 03-03-06/1/154 dated March 23, 2012, the 50% ratio must be maintained continuously throughout the entire tax period as of any of its dates. When fulfilling this criterion, the provisions of Federal Law No. 323-FZ 7 should be taken into account.

In subparagraph 1 of paragraph 1 of Art. 100 of this law (the article entered into force on 01/01/2012) stipulates that until 01/01/2016 the right to conduct medical activities in the Russian Federation has persons who have received higher or secondary medical education in the Russian Federation in accordance with federal state educational standards and having a specialist certificate. If a certified physician has not worked in his specialty for more than five years, he can be admitted to medical activity only after additional training and if he has a specialist certificate (clause 3, clause 1, article 100). At the same time, certificates issued to medical workers before January 1, 2016 are valid until the expiration of the period specified in them (clause 2, article 100).

Taking into account these provisions of the Federal Law No. 323-FZ, as well as the norms of paragraphs. 3 p. 3 art. 284.1 of the Tax Code of the Russian Federation, in order to apply a zero rate on income tax, it is not allowed to equate other documents received by employees on completion of medical educational institutions. This position was expressed by the Federal Tax Service for Moscow in Letter No. 16-15 dated July 2, 2012 / [email protected]

Condition four. The staff of the organization continuously during the tax period must be at least 15 employees (clause 4, clause 3, article 284.1 of the Tax Code of the Russian Federation). The Ministry of Finance in Letter No. 03-03-06/1/154 dated March 23, 2012 for calculating the criteria established by paragraphs. 3 and 4, paragraph 3 of the said article, recommended using the methodology used to determine the average number of employees. This indicator is calculated from 01.01.2012 on the basis of the Order of Rosstat dated 10.24.2011 No. 435. This document approved, in particular, Instructions for filling out the form of federal statistical observation No. P-4 Information on the number, wages and movement of workers (hereinafter referred to as the Instructions) .

Capital tax authorities in Letter No. 16-15 dated August 28, 2012 / [email protected] noted: to calculate the number, it is necessary to apply the provisions of clause 77 of the Instructions, from which it follows that the average number of employees of the organization includes the average number of employees, the average number of external part-time workers and the average number of employees who performed work under civil law contracts.

By virtue of clause 79 of the Instructions, the headcount of employees includes employees who worked under an employment contract and performed permanent, temporary or seasonal work for one day or more, as well as working owners of organizations who received wages in this organization. The list of categories of employees that are not included in the headcount is given in paragraph 80 of the Instructions. These include, in particular, part-time workers hired from other organizations (clause a), as well as persons who performed work under civil law contracts (clause b). The named employees do not participate in the formation of the average headcount, therefore, they cannot be taken into account when determining the criteria provided for in paragraphs. 3 and 4 paragraph 3 of Art. 284.1 of the Tax Code of the Russian Federation.

Condition five. In the tax period, an organization that has expressed a desire to apply a preferential tax regime should not make transactions with promissory notes and financial instruments of forward transactions (clause 5, clause 3, article 284.1 of the Tax Code of the Russian Federation).

Consequences of non-compliance with the conditions for applying the preferential rate

So, organizations engaged in educational and (or) medical activities are entitled to apply a tax rate of 0%, subject to the conditions provided for in Art. 284.1 of the Tax Code of the Russian Federation. At the same time, as we have established, the fulfillment of the condition on the share of income from the implementation of privileged activities, as well as from the implementation of R & D in the total amount of income is determined as a whole for the tax period, that is, for the calendar year. Other criteria for applying the zero rate (the availability of appropriate licenses, the maximum minimum number of employees of organizations, qualification requirements for them, the absence of transactions with promissory notes and financial instruments of forward transactions) must be fulfilled continuously during the tax period.

By virtue of paragraph 4 of Art. 284.1 of the Tax Code of the Russian Federation, if the organization fails to comply with at least one of the conditions specified in paragraph 3 of this article, the tax rate provided for in paragraph 1 of Art. 284 of the Tax Code of the Russian Federation, - 20%. In this case, the amount of tax is subject to recovery and payment to the budget in the prescribed manner with the payment of appropriate penalties accrued from the day following the day of payment of the tax (advance tax payment), enshrined in Art. 287 of the Tax Code of the Russian Federation. From these norms of the Tax Code, it follows that if the conditions for applying the preferential rate are not met, the organization must submit to the tax authority revised tax returns for the reporting periods and the declaration as a whole for the tax period, calculating advance payments and the amount of tax at the general rate.

According to Art. 287 and 289 of the Tax Code of the Russian Federation, advance payments based on the results of the reporting period are paid no later than 28 calendar days from the end of the corresponding reporting period, and the tax payable at the end of the tax period - no later than March 28 of the year following the expired tax period.

Thus, for the calculated (restored) advance payments for the reporting periods and for the tax calculated according to the declaration for the tax period, penalties should be calculated in accordance with Art. 75 of the Tax Code of the Russian Federation starting from the day following the day on which the deadline for making advance payments and tax expired.

For example, in 2012, the deadline for making advance payments for the 1st quarter expired on April 28, for the six months - on July 30, for 9 months - on October 29, 2012 (including holidays). In turn, the tax payment deadline for 2012 falls on March 28, 2013. A different procedure for calculating penalties, as indicated in the letters of the Ministry of Finance of Russia dated December 28, 2012 No. 01-02-03 / 03-482, the Federal Tax Service for Moscow dated March 12, 2012 No. 16-12 / [email protected], The tax code does not contain.

It should be noted that an educational and (or) medical organization will be able to receive an exemption from income tax again only after five years from the date of the loss of the right to apply a preferential rate. This procedure is enshrined in paragraph 8 of Art. 284.1 of the Tax Code of the Russian Federation. Note that in accordance with paragraph 7 of this article, these organizations may voluntarily return to the general income tax regime.

We report on the fulfillment of the conditions for applying the 0% rate

Educational and (or) medical organizations that have decided to switch to a preferential taxation regime, based on paragraph 5 of Art. 284.1 of the Tax Code of the Russian Federation submit an appropriate application to the tax authority at the location. Moreover, this should be done once - at the beginning of the application of the zero rate (Letter of the Ministry of Finance of Russia dated December 27, 2011 No. 03-03-06 / 4/151). Meanwhile, these organizations are not exempt from submitting income tax returns (letters of the Federal Tax Service for Moscow dated July 2, 2012 No. 16-15 / [email protected], dated 05.03.2012 No. 16-03/ [email protected]).

In addition, organizations exempt from income tax due to the application of the provisions of Art. 284.1 of the Tax Code of the Russian Federation, by virtue of paragraph 6 of this article annually within the time limits established by paragraph 4 of Art. 289 for submission tax return, are required to confirm the validity of the application of the 0% rate, namely, submit to the tax authority information:

About the share of the organization's income from the implementation of educational and (or) medical activities in the total amount of the organization's income;

On the number of employees in the staff of the organization;

On the number of certified medical personnel (for organizations engaged in medical activities).

Organizations must provide this information in the form approved by Order of the Federal Tax Service of Russia dated November 21, 2011 No. ММВ-73 / [email protected] In addition, the specified reporting can be sent to the IFTS in in electronic format via telecommunication channels in accordance with the format approved by the Order of the Federal Tax Service of Russia dated December 30, 2011 No. YaK-7-6 / [email protected]

According to the named order, the information consists of two sheets. The first sheet contains information about the organization representing them, and the second sheet contains the indicators directly named above. The total amount of income taken into account when determining the base for corporate income tax is subject to reflection in line 010, which, in turn, reflects income from sales in the implementation of educational and (or) medical activities (line 011) and non-operating income related to specified types of activities (line 012).

In line 013 fits calculated indicator- the share of income from the implementation of privileged activities in the total amount of income, which is determined by the formula: (line 011 + line 012) / line 010 x 100%. To confirm the right to apply a zero rate on income tax, the indicator of line 013 must be more than 90%.

Information on the number of employees in the organization's staff is indicated in column 3 in lines 020 - 032 on the 1st day of each month of the reporting year and on December 31. In the same lines, but in column 4, organizations engaged in medical activities give the number of medical staff with a specialist certificate, and in column 5 - the share of this staff in the total number of employees.

We emphasize once again that following the results of 2012, medical and (or) educational organizations must submit such information no later than March 28, 2013. If within this period the payer does not confirm the legitimacy of applying the preferential taxation regime, he will lose the right to a zero rate on income tax. And this means that for the entire tax period he will have to calculate the tax at a rate of 20% and pay it to the budget, taking into account penalties.

Features of the application of the zero rate…

… by newly created organizations

Article 284.1 of the Tax Code of the Russian Federation does not regulate the issue of the right of newly created organizations to apply a preferential income tax regime. Specialists of the financial department believe that these taxpayers have no grounds for applying a zero rate on income tax in the first tax period of their activities. This position is stated in Letter No. 03-03-10/23 8 dated March 15, 2012. This conclusion is justified by the officials as follows. On the basis of paragraphs. 4 p. 3 art. 284.1 of the Tax Code of the Russian Federation, one of the conditions for applying the 0% tax rate for organizations engaged in educational and (or) medical activities is the presence of at least 15 employees in the state. This condition must be met continuously as of any date throughout the entire tax period.

By virtue of par. 1 paragraph 3 of this article, another condition for the use of a zero rate for income tax is that the organization has a valid license (licenses), which, in accordance with paragraph 5 of Art. 284.1 of the Tax Code of the Russian Federation, she is obliged to submit to the tax authority along with the corresponding application. This must be done a month before the beginning of the year from which the payer switches to a preferential tax regime. Based on paragraph 2 of Art. 55 of the Tax Code of the Russian Federation, if the organization was created after the beginning of the calendar year, the first tax period for it is the period from the date of its creation to the end of this year. In this case, the day of establishment of the organization is recognized as the day of its state registration. Taking into account the above rules of law, according to financiers, newly created organizations that carry out educational and (or) medical activities from the date of creation cannot fulfill the conditions for the number and submission of a license for privileged activities. Therefore, for the first tax period, they are not entitled to apply the income tax rate of 0%.

…reorganized organizations

Note that this issue is faced by business entities that have undergone transformation during the tax period. At the same time, the form of reorganization matters to solve the problem of using a zero rate. In Letter No. 03-03-06/1/624 dated December 4, 2012, the Ministry of Finance considered the situation when a closed joint-stock company(CJSC) before being transformed into a limited liability company (LLC), on completely legal grounds, did not pay on the basis of Art. 284.1 of the Tax Code of the Russian Federation.

According to the specialists of the financial department, LLC, as a newly created organization, cannot fulfill certain Art. 284.1 of the Tax Code of the Russian Federation of the conditions on the number and submission of a license to carry out educational and (or) medical activities, in connection with which for the first tax period there are no grounds for applying a preferential rate for income tax. The tax department shares the position of the Ministry of Finance, as evidenced by Letter No. ED-4-3/18513 dated November 1, 2012. The Federal Tax Service indicated that, by virtue of paragraph 4 of Art. 57 of the Civil Code of the Russian Federation is considered reorganized (except for cases of reorganization in the form of merger) from the moment of state registration of newly emerged legal entities.

Clause 9 of Art. 50 of the Tax Code of the Russian Federation provides that when one legal entity is transformed into another, a newly emerged organization is recognized as the legal successor of the reorganized legal entity, however, this provision is valid only in terms of fulfilling tax obligations. In addition, from Art. 284.1 of the Tax Code of the Russian Federation it follows that the right to apply a zero rate on income tax is granted to a specific taxpayer, provided that he complies with the conditions provided for by the named article. And since as a result of the reorganization of a legal entity a new organization appears in the form of transformation, the question of whether the newly created entity has the right to apply a reduced rate should be decided separately. Therefore, according to the Federal Tax Service, although the newly formed legal entity in this case acts as a successor in terms of fulfilling tax obligations, succession in terms of the preferential taxation regime established by Art. 284.1 of the Tax Code of the Russian Federation cannot apply to this organization.

With regard to the reorganization of a legal entity in the form of merger, the controllers take a different position. In letters dated October 17, 2012 No. 16-15/ [email protected], dated 05.10.2012 No. 1615/ [email protected] the metropolitan tax office stated the following. By virtue of paragraph 2 of Art. 58 of the Civil Code of the Russian Federation, when a legal entity is merged with another legal entity, the rights and obligations of the merged legal entity are transferred to the latter in accordance with the deed of transfer. This means that with a similar form of reorganization, a legal entity to which another organization was attached continues to operate. In turn, the affiliated organization is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities on the termination of its activities. Taking into account these norms of civil legislation, the tax authorities concluded: an educational organization, reorganized in 2012 in the form of joining another similar organization to it and in a timely manner in 2011 declared its intention to apply the rate established by Art. 284.1 of the Tax Code of the Russian Federation, may use the preferential taxation regime subject to the conditions provided for in clause 3 of this article.

... organizations that lost the right to use the simplified taxation system during the year

In a Letter dated 02.07.2012 16-15/ [email protected] The Moscow tax authorities pointed out that an organization that carries out educational activities and switched to the general taxation system during the tax period due to the loss of the right to apply the special regime - USNO, cannot count on the use of a zero rate for income tax in this tax period.

The arguments of the regulatory authorities are as follows. Paragraph 1 of Art. 285 of the Tax Code of the Russian Federation establishes that the tax period for income tax is a calendar year. By virtue of paragraph 5 of Art. 284.1 of the Tax Code of the Russian Federation for the application by organizations engaged in educational and (or) medical activities that meet the criteria specified in this article, the tax rate of 0% from January 1, 2012, it is necessary to submit to the tax authority a corresponding application and copies of documents provided for by the Tax Code no later than November 30, 2011 of the year. From a literal reading of Art. 284.1 it follows that a taxpayer who satisfies the conditions provided for in clause 3 of the said article cannot apply the preferential rate from the beginning of the reporting period. Financiers are in solidarity with the tax authorities, but they use other norms of the law as a justification for their position.

A similar situation was considered by the Ministry of Finance in Letter No. 03-03-06/4/90 dated August 30, 2012. The authors of the letter recalled that for organizations using the USNO, by virtue of paragraph 1 of Art. 346.19 of the Tax Code of the Russian Federation, the tax period is a calendar year, until the end of which the simplified taxpayer is not entitled to switch to another taxation regime, unless otherwise provided by Art. 346.13 of the Tax Code of the Russian Federation. The specified legal norm provides for cases in the event of which a person applying the simplified taxation system loses the right to use this special regime.

The Ministry of Finance draws attention to the fact that here we are not talking about the independent transition of the taxpayer to the general taxation regime, but about cases where the requirements are violated or the conditions giving the right to apply the special regime are not met. Guided by these provisions, the Ministry of Finance concluded: organizations that have lost the right to apply the simplified taxation system, taxes established by the general taxation regime, are calculated and paid in the manner prescribed by the legislation on taxes and fees for newly created organizations. And the provisions of Art. 284.1 of the Tax Code of the Russian Federation do not provide for the possibility of applying a zero rate on income tax by newly created organizations for the first tax period of their activities.

Thus, if an economic entity engaged in educational or medical activities, after the beginning of the calendar year, has lost the right to apply the simplified taxation system, it is not entitled to apply the preferential taxation regime under Art. 284.1 of the Tax Code of the Russian Federation. It should be noted that arbitration practice on the issue of using a zero rate on income tax has not yet been formed. However, the regulatory authorities have issued quite a lot of clarifications regarding the controversial issues of applying the preferential tax regime. How correct they are - time will tell.

1 Federal Law No. 395-FZ of December 28, 2010 On Amendments to Part Two of the Tax Code Russian Federation and separate legislative acts of the Russian Federation.
2 On the payment of income tax during the transition period, as well as on the specifics of the application of a zero rate on income tax by organizations combining educational and medical activities, see the article by V. V. Kirilin Spheres of Health and Education: a benefit with a catch, No. .
3 List of types of educational and medical activities carried out by organizations for the application of the 0 percent tax rate for corporate income tax, approved. Decree of the Government of the Russian Federation of November 10, 2011 No. 917.
4 Federal Law No. 129-FZ of 08.08.2001 On State Registration of Legal Entities and Individual Entrepreneurs.
5 Adopted and put into effect by the Decree of the State Standard of Russia dated November 6, 2001 No. 454-st.
6 Federal Law No. 99-FZ dated 04.05.2011 On Licensing Certain Types of Activities.
7 Federal Law No. 323-FZ of November 21, 2011 On the Fundamentals of Protecting the Health of Citizens in the Russian Federation.
8 Brought to lower level inspections by Letter of the Federal Tax Service of Russia dated April 3, 2012 No. ED4-3/ [email protected]- this document is posted on the official website of the tax department (www.nalog.ru) in the section Clarifications of the Federal Tax Service, mandatory for use by the tax authorities.

From January 1, 2011 enterprises providing medical (and) or educational services can use the 0% rate for income tax calculation, i.e. actually pay no income tax.

 

Who is entitled to benefit? What are the features of its application? You will find the answer to these questions in our material.

The right to use such a rate gives taxpayers Art. 284.1 of the Tax Code of the Russian Federation, the provisions of which are valid until 01/01/2020.

Who can use?

These are medical and educational organizations whose activities fall into a special List, which is approved by Government Decree No. 917 of November 10, 2011.

Important! Resort and sanatorium services are not included in the “preferential” activities. Medical enterprises (OKVED 85.11) can choose codes: 85.11.1 (“Activity of general and specialized hospital institutions”) or 85.11.2 (“Activity of sanatorium-resort institutions”). And, if the institution indicates code 85.11.2 during registration, it will not be able to calculate income tax at a zero rate in the future.

In addition, the following conditions must be met:

• The enterprise has a license corresponding to its activities (educational, medical).
• Income from such licensed activities (as well as from R&D) must be at least 90% of the income constituting the tax base under Article 25 of the Tax Code of the Russian Federation. Moreover, if the organization conducts both educational and medical activities at the same time, the income from them is summed up.
• In the state of a medical enterprise during the tax period, at least half of total employees are certified professionals.
• The staff of the organization consists of at least 15 employees. Throughout the year, this condition must be observed continuously.
• In the tax period, the enterprise has no operations on bills of exchange and futures transactions.

Important! If at least one of the above conditions is not met, the organization is obliged to calculate the tax at a rate of 20%. In case of unlawful use of benefits, it will be necessary to pay tax to the budget in in full with all penalties and submit corrected returns.

How to switch to paying a zero rate on income tax?

Not later than one month before the start of the year of using the preferential rate, you must submit to the territorial tax office:

• statement;
• photocopies of relevant licenses.

Important! Documents are submitted only once, even if the zero rate will be applied by the enterprise for several years. Annual confirmation is not required.

How to report?

At the end of the year of application of the zero rate, the enterprise, within the time limits established for the annual declaration, must provide the tax authority with:

• calculation of the share of income from conducting licensed activities in relation to the total total income;
• a certificate of the number of full-time employees;
• medical enterprises additionally provide information about the staff in the form MMV-7-3 / [email protected] certified specialist.

Important! “Within” the year for the reporting periods, documents to confirm the zero rate do not need to be submitted. However, income tax returns are submitted by deadlines in a general manner.

Special occasions

1. According to the Ministry of Finance of the Russian Federation, organizations cannot use the benefit immediately after their creation. This is possible not earlier than the next tax period (letter 03-03-10/23).
2. Companies that have lost their right to the simplified tax system will not be able to immediately apply the 0% rate (letter 03-03-06 / 4/90). In this case, the benefit can be used from the year following the loss of the right to the simplified tax system. Documents for benefits are submitted in the usual manner.
3. If an enterprise applying a zero rate wants to switch to a general 20% rate, it must send a corresponding application to its tax authority. Important! In the event that the transition to the general rate does not occur from the beginning of the year, the tax must be restored and paid with interest.
4. Organizations that have switched from a zero rate to a general rate cannot use the benefit again for 5 years (the countdown is from the beginning of the year in which the transition to the general rate took place).

According to Article 284.1 of the Tax Code of the Russian Federation, our organization has been applying a 0% tax rate since 2011. Whether it is necessary to file an annual application for the application of the 0 percent income tax rate to the local tax authorities or was it enough to apply once. The conditions of application have not changed and we provide annual reports.

No, don't. In accordance with paragraphs 5 and 6 of Article 284.1 of the Tax Code of the Russian Federation, an organization must submit an application once from the start of applying the benefit. Then you need to annually confirm the 0% rate by submitting documents along with the tax return in accordance with paragraph 6 of Article 284.1 of the Tax Code of the Russian Federation.

The rationale for this position is given below in the materials of the Glavbukh System vip version

1. Article: Income tax: how to take advantage of the 0 percent rate

Who can apply the rate

· has a license (licenses) to conduct educational and (or) medical activities;

· its income for the year from educational (and medical, if any) activities, as well as from R&D, is at least 90 percent of total income (or there is no income);

· it has at least 15 employees continuously throughout the year;

· does not make transactions with promissory notes and financial instruments of forward transactions during the year.

When conducting medical activities, an additional condition is the presence in the staff of the organization of medical personnel with a certificate of a specialist, in the total number of employees continuously throughout the year, at least 50 percent.

In order to use the 0 percent rate, you need to submit an application to the inspection with a copy of the license (licenses) attached no later than one month before the beginning of the year in which it is planned to apply such a rate (clause 5, article 284.1 of the Tax Code of the Russian Federation). Moreover, the organization has the right to clarify these data and submit them at the end of the first tax period (year), during which it applies the 0 percent tax rate.*

It should be noted that when combining educational and medical activities, a 90% ratio of income is determined by summing up the proceeds from these types of activities. Moreover, if income from educational activities exceeds 90 percent, the condition on the number of certified medical personnel may not be met (letter of the Ministry of Finance of Russia dated February 6, 2012 No. 03-03-10/9). › |

Eligibility must be verified

The legality of applying a zero rate on income tax must be confirmed annually. This is established by paragraph 6 of Article 284.1 of the Tax Code of the Russian Federation. To do this, no later than the deadline for submitting an income tax return for the year in which the zero rate was applied, the following information must be submitted to the inspection:*

· on the share of income from educational (and medical activities, if any) in the total amount of income;

about the number of employees in the state.

If an educational organization also conducts medical activities, then additional information is provided on the number of medical staff with a specialist certificate in the organization's staff.

Important to remember
To apply the zero income tax rate in 2014 (if it is applied for the first time), an application must be submitted to the inspection with a copy of the license (s) attached no later than one month before the end of 2013.

2. Tax Code of the Russian Federation.Part two

Article 284.1. Features of the application of the 0 percent tax rate by organizations engaged in educational and (or) medical activities

The provisions of Article 284_1 (as amended by Federal Law No. 395-FZ of December 28, 2010) apply from January 1, 2011 to January 1, 2020 - see paragraph 6 of Article 5 of Federal Law No. 395-FZ of December 28, 2010.

1. Organizations engaged in educational and (or) medical activities in accordance with the legislation of the Russian Federation shall have the right to apply a tax rate of 0 percent subject to the conditions established by this article.

2. The tax rate of 0 percent in accordance with this article is applied by organizations engaged in educational and (or) medical activities to the entire tax base determined by such taxpayers (with the exception of the tax base, the tax rates for which are established by paragraphs 3 and 4 of Article 284 of this Code ) throughout the tax period.

3. Organizations referred to in paragraph 1 of this article shall be entitled to apply a 0 percent tax rate if they meet the following conditions:

1) if the organization has a license (licenses) to carry out educational and (or) medical activities, issued (issued) in accordance with the legislation of the Russian Federation;

2) if the income of the organization for the tax period from the implementation of educational and (or) medical activities, as well as from the implementation of scientific research and (or) experimental design, taken into account when determining the tax base in accordance with this Chapter, is at least 90 percent of its income taken into account when determining the tax base in accordance with this chapter, or if the organization for the tax period does not have income taken into account when determining the tax base in accordance with this chapter;

3) if in the staff of an organization carrying out medical activities, the number of medical personnel with a certificate of a specialist in the total number of employees continuously during the tax period is at least 50 percent;

4) if the organization continuously employs at least 15 employees during the tax period;

5) if the organization does not perform transactions with promissory notes and financial instruments of forward transactions in the tax period.

4. If the organizations specified in paragraph 1 of this article, which have switched to the application of the 0 percent tax rate in accordance with this article, fail to comply with at least one of the conditions established by paragraph 3 of this article, from the beginning of the tax period in which the said conditions were not observed , the tax rate established by paragraph 1 of Article 284 of this Code is applied. In this case, the amount of tax is subject to recovery and payment to the budget in the prescribed manner with the payment of appropriate penalties accrued from the day following the established article 287

5. Organizations that have expressed a desire to apply the 0 percent tax rate in accordance with this article, not later than one month before the start of the tax period starting from which the 0 percent tax rate is applied, submit an application, copies of the license ( licenses) for educational and (or) medical activities issued (issued) in accordance with the legislation of the Russian Federation.

6. Organizations that apply the 0 percent tax rate in accordance with this article, at the end of each tax period during which they apply the 0 percent tax rate, within the time limits established by this chapter for submitting a tax return, submit to the tax authority at their location the following information:

on the share of the organization's income from the implementation of educational and (or) medical activities, taken into account when determining the tax base in accordance with this Chapter, in the total amount of the organization's income taken into account when determining the tax base in accordance with this Chapter;

about the number of employees in the organization.

Organizations engaged in medical activities additionally provide information on the number of medical personnel with a specialist certificate in the organization's staff.

If not presented in deadlines information specified in this paragraph, to the tax authority at the location of the taxpayer from the beginning of the tax period, data for which were not submitted in the prescribed manner, the tax rate established by paragraph 1 of Article 284 of this Code is applied. In this case, the amount of tax is subject to recovery and payment to the budget in the prescribed manner with the collection from the taxpayer of the appropriate amounts of penalties accrued from the day following the day of tax payment (advance tax payment) established by Article 287 of this Code. The form for submitting the information specified in this paragraph , is approved by the federal executive body authorized to control and supervise taxes and fees.*

7. Organizations that apply the 0 percent tax rate in accordance with this article shall have the right to switch to the application of the tax rate established by paragraph 1 of Article 284 of this Code by sending an appropriate application to the tax authority at their location. At the same time, if the specified transition does not begin from the beginning of a new tax period, the amount of tax for the corresponding tax period is subject to restoration and payment to the budget in the prescribed manner with payment of the amounts of penalties accrued from the day following the day established by Article 287 of this Code for the payment of tax (advance tax). tax payment).

8. Organizations that applied the 0 percent tax rate in accordance with this article and switched to the application of the tax rate established by paragraph 1 of Article 284 of this Code, including in connection with non-compliance with the conditions established by paragraph 3 of this article, are not entitled to re-switch to the application tax rate of 0 percent for five years starting from the tax period in which they switched to the application of the tax rate established by paragraph 1 of Article 284 of this Code.