When an organization acts as a tax agent. Tax agent for personal income tax

06.12.2023

Taxpayers pay taxes independently, but in some cases they are transferred not directly, but through tax agents. A tax agent is a person who calculates taxes, withholds them from the taxpayer, and then pays the withheld taxes to the budget (Clause 1 of Article 24 of the Tax Code of the Russian Federation).

In this material we will look at who tax agents are, their rights and responsibilities.

Types of tax agents

Tax agents can be both organizations and individual entrepreneurs. The most common example for tax agents is employers who are personal income tax agents for their employees. According to the Tax Code of the Russian Federation, you can become a tax agent for three taxes:

According to personal income tax, all employers are recognized as tax agents. When paying income to their employees and other individuals, they must withhold income tax from it, then transfer it to the budget. Agents must submit personal income tax reports to the Federal Tax Service: annual certificates 2-NDFL and quarterly form 6-NDFL.
For VAT, tax agents are persons who may not themselves be payers of this tax. Thus, an organization can become a VAT agent by leasing state property from authorities, or by purchasing goods (services, works) sold in Russia from foreign entities, or when selling goods from foreign sellers as an intermediary when participating in settlements, etc. (Articles 146, 161 of the Tax Code of the Russian Federation). If the agent is a VAT payer, he can accept the tax paid in this capacity as a deduction (clause 3 of Article 171 of the Tax Code of the Russian Federation). When submitting a VAT return, the agent must fill out section 2 of the tax to be paid according to the tax agent.
The concept of “tax agent” for income tax refers to organizations paying: dividends to legal entities (Russian and foreign), interest on valuable state or municipal securities (Article 310.1 of the Tax Code of the Russian Federation), income to foreign companies without permanent establishments in the Russian Federation (clause 1 Article 309 of the Tax Code of the Russian Federation). The legal status of tax agents obliges them, like income tax payers, to file a declaration, and if the tax was withheld for foreign legal entities, a tax calculation.

Tax agents: their rights and obligations

A tax agent pays taxes for other persons, and not for himself, and he has exactly the same rights as a taxpayer, unless tax legislation provides otherwise (Article 24 of the Tax Code of the Russian Federation).

The rights of tax agents are ensured in accordance with Art. 21 and 22 of the Tax Code of the Russian Federation, according to which they, in particular, can:

receive information from the Federal Tax Service Inspectorate about taxes, fees, current regulations on taxation, tax reporting forms, etc., and from the Ministry of Finance of the Russian Federation and regional authorities - clarifications on emerging issues of application of tax legislation,
take advantage of tax benefits if available,
receive a deferment, installment plan, investment tax credit, if there are grounds for this,
receive a credit/refund of overpayments on taxes (penalties, fines) in a timely manner,
carry out reconciliation with tax authorities, receive reconciliation reports from the Federal Tax Service,
provide explanations to the Federal Tax Service on accrued/paid taxes, as well as on tax audit reports,
be personally present during an on-site tax audit, receive copies of audit reports and decisions of tax officials, tax requirements and notifications,
not to comply with unlawful demands of tax authorities, and also to appeal acts of the Federal Tax Service.

The main responsibilities assigned to tax agents of the Tax Code of the Russian Federation are the correct and timely calculation, withholding and transfer of tax for the taxpayer. In addition, the tax agent is obliged (Article 24 of the Tax Code of the Russian Federation):

inform the Federal Tax Service Inspectorate in writing about the amount of tax debt of the taxpayer that cannot be withheld from him - this must be done within a month,
keep records for each taxpayer of income accrued and paid to him, taxes withheld from him,
submit documents to tax authorities that allow you to control the correctness of tax calculations,
keep documents required for the calculation, withholding, and transfer of taxes for at least 4 years.

The above list is not exhaustive, since everyone who is a tax agent is also subject to other requirements stipulated by tax legislation: the duties of tax agents for VAT reporting are provided for in paragraph 5 of Art. 174 of the Tax Code of the Russian Federation, features of personal income tax withholding by agents - Art. 226 of the Tax Code of the Russian Federation, etc.

Failure to fulfill the duties of a tax agent

If any duties are not fulfilled by the agent, the Federal Tax Service may apply appropriate sanctions.

The liability of tax agents arises when the tax from the taxpayer is not withheld/transferred to the budget, or the withholding and transfer are made, but only partially. The tax agent will face a fine of 20% of the amount subject to withholding and payment, as well as penalties. Tax authorities can apply this measure only when the agent had the opportunity to withhold tax from the taxpayer (Articles 75, 123 of the Tax Code of the Russian Federation).

If the tax agent does not submit the required reports to the Federal Tax Service within the prescribed period, he will also be fined. For a declaration not submitted or submitted late, the tax agent faces a 5% fine, calculated from the amount unpaid under this declaration, for each full and partial overdue month from the day established for its filing. At the same time, the maximum fine is limited to 30% of this amount, and its minimum will be 1000 rubles (Article 119 of the Tax Code of the Russian Federation).

A 6-NDFL calculation submitted late by a tax agent will cost the agent a fine of 1,000 rubles for each full and partial month of delay (Clause 1.2 of Article 126 of the Tax Code of the Russian Federation). In the absence of certificates of income of individuals in Form 2-NDFL, the tax agent will have to pay a fine of 200 rubles for each of the certificates not submitted (clause 1 of Article 126 of the Tax Code of the Russian Federation).

Submission by a tax agent of reports containing unreliable indicators and data threatens him with a fine of 500 rubles for each such document (Article 126.1 of the Tax Code of the Russian Federation).

A tax agent is an intermediary between the state and taxpayers. Such intermediary services are necessary for the transfer of taxes and fees to budgets. This article will discuss the main aspects regulating their activities.

A tax agent can be represented by an organization that performs the duties of settlements and withholdings from taxpayers, and also transfers these amounts to the budget. At the same time, she has the same rights as a regular taxpayer.

The main task of a tax agent is to withhold taxes in a timely and reliable manner with subsequent transfer to the Russian budget. He must keep targeted (for each specific taxpayer) accounting of income, expenses and taxes that should go to the budgets.

All document flow must also be carried out by this business entity. He needs, in addition to providing the tax authorities with documents that at any time confirm the correctness of calculation and payment for taxation, also ensure the safety of the above materials for four years.

A tax agent is an organization that, like any payer, can be involved in any of its functions. Such a company performs its functions for specific taxes. Let's try to look at them in more detail.

Tax agents for VAT - the procedure for determining them has some features. In the case when foreign companies or ordinary foreign citizens who are not registered with the tax authorities are engaged in the sale of goods on the territory of Russia, the amount of income from their sale is determined as the tax base and the tax calculated from it is subject to payment to the budget. At the same time, the main function of tax agents lies in carrying out calculations for each individual transaction.

Both an ordinary legal entity and an individual entrepreneur can act as a tax agent. A prerequisite is that these business entities must be registered with the tax authorities and purchase goods on the territory of Russia from the above-mentioned foreign entities.

In the case when government agencies lease property on Russian territory, it should be determined at the level of the amount of rent calculated for each leased property. In this case, the tenant acts as a tax agent who is obliged to charge and withhold taxes from the income received, transferred to the lessor, and pay the received amount to the budget.

When selling goods on Russian territory that belong to foreigners who are not registered with the Russian tax authorities, agents are recognized as companies conducting business activities secured by contracts of assignment, commission, and agency agreements.

These documents must contain information about foreign individuals and legal entities involved in business. In this case, the tax base is determined by the cost of goods for the agent, who is obliged to remit the tax to the location of both its structural divisions and its main enterprise.

Any Russian organization, notary and individual entrepreneur, lawyer can be tax agents for personal income tax. This can only happen if the taxpayer receives income from them. The calculated and withheld tax is paid on the entire income of the payers, the source of which is the tax agent.

Personal income tax is calculated monthly from the beginning of each year on an accrual basis based on the results of activities.

There are certain rules that should be followed when paying personal income tax to a tax agent. Let’s figure out what nuances such people should know in 2019.

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Tax agents must perform certain duties (calculation, withholding, payment of income tax).

In case of violation of the law, the company will be held liable for failure to remit personal income tax. Therefore, it is worth considering what regulations govern the payment of amounts by tax agents.

Basic moments

What do you mean by “tax agent”? Is an individual entrepreneur a tax agent for personal income tax, or is the obligation to pay tax for individuals assigned only to the LLC?

Definitions

Personal income tax is a direct tax at the federal level, which is levied on the profits of individuals at rates regulated by legislative acts.

Although the payers are individuals (both Russian citizens and foreigners with income within the Russian Federation), the payment itself can be made by tax agents ().

A personal income tax agent is an intermediary between the taxpayer and the state.

It can be a legal entity, self-employed persons (notaries and lawyers who have opened a private office), representative offices of non-residents who have an obligation to calculate and pay personal income tax on behalf and at the expense of the citizen.

He also keeps records of employee profits, prepares reports, submits them to the local branch of the federal tax service and is responsible for violations of the rules described in the Tax Code.

Who is the tax agent?

They may also be:

A separate division of a foreign company in Russia. It is worth considering one nuance - if a foreign enterprise pays funds not through a separate division, it cannot be a tax agent.
Notary.
Private practicing lawyer.

The same persons may be tax agents in relation to the profits of foreigners who work under a patent (Article 226, paragraphs 1 - 2, paragraph 1, Article 1, part 1, Article 2).

The customer who concluded the contract is also a tax agent.

There are several types of income for which a company or individual entrepreneur will not act as a tax agent for an individual.

This applies to the profit that was received:

An individual when carrying out business activities. In this case, the person must be registered as an individual entrepreneur with the Tax Inspectorate.
A citizen who receives profit from the activities of a notary and other private practitioner.
A person who receives profit in accordance with agreements that are concluded with other individuals who do not act as a tax agent. This applies to rentals.
A person who has profit from the sale of property that belonged to him as a property owner, if the object belonged to such a citizen for no more than 3 years.
A resident who receives profit from a source located outside the Russian Federation.
The person who received the winnings.
A person who has taxable income from which the required amounts were not withheld by the tax agent.

Legal grounds

The concept of “tax agent” is discussed in Art. 24 Tax Code. The rules for carrying out calculations and paying personal income tax to the budget by tax agents are stated in Art. 226 of the Tax Code of the Russian Federation.

Obligation of a tax agent to pay personal income tax

When paying personal income tax, tax agents should be guided by special rules.

How to withhold tax correctly?

The tax agent withholds personal income tax on all profits, except for what is specified in Art. 226 clause 2 of the Tax Code.
The company withholds personal income tax on transfers to employees, but not in all cases.

For example, there are restrictions when withholding the amount of tax on material benefits received in kind or when a person has become a non-resident (the payer status has changed in the middle of the year). In such a situation, the tax will need to be recalculated at a rate of 30%.

If the employee had no other profit in monetary terms and filed after such events, the tax agent will not be able to withhold personal income tax at all.

The same rules are provided for when profit is received in kind by a person who is not an employee of the company (for example, in relation to customers).

In the event that an employee is paid other profits in cash, the tax agent may withhold the amount of arrears. But there is a limit - the amount of total income tax cannot be more than 50% of wages.

The organization must inform the inspector about the amounts transferred to an individual from which taxes were not withheld. The allotted time frame for this is 1 month.

If the notice is not given in a timely manner, the company is considered to be in violation and will be subject to liability in accordance with,.

Special rules should be followed when submitting reports about the impossibility of withholding personal income tax when conducting transactions with shares.

The deadline for providing information about non-withheld personal income tax will be determined depending on what happened earlier:

After notifying tax authorities of the impossibility of withholding tax, the organization has the right not to fulfill such an obligation, even if such an opportunity arises later.

If the notice is submitted on time, no penalties or fines will be assessed. The fact that personal income tax has not been withheld must also be notified to the payer to whom the funds were paid (Article 226, paragraph 5 of the Tax Code).

Emerging obligations

Tax agents have the following responsibilities:

Accurately and on time carry out personal income tax calculations, withhold the necessary amounts from the taxpayer’s profit and deposit the calculated amounts into government agencies of the Russian Federation.
Submit written notice within one month if it is impossible to withhold income taxes.
Keep records of funds transferred to payers, withholdings and income tax amounts paid separately for each individual.
Submit documentation to the regional tax office that will be necessary for inspections by authorized bodies.

In the event that such obligations are not fulfilled, the tax agent will be held liable in accordance with the legislative acts of the Russian Federation.

KBK

Personal income tax on profit when its source is a tax agent, except for that profit when Art. 227, (when making recalculations, arrears, debt payments, including when it is cancelled)	182 1 01 02010 01 1000 110
Penalty for income tax, which is levied on the payer’s profit received from the tax agent, except for the situations listed in Art. 227, 227.1, 228 Tax Code of the Russian Federation	182 1 01 02010 01 2100 110
Interest on income tax, if the source of its receipt is a tax agent. The exceptions are the same situations as in the above paragraphs	182 1 01 02010 01 2200 110
Personal income tax fines that are levied on profits received from a tax agent, in addition to making payment in accordance with Art. 227, 227.1, 228 NK	182 1 01 02010 01 3000 110

Tax payment procedure

The rules for paying personal income tax have undergone some changes. Here are the main points that tax agents should consider:

Tax must be calculated upon actual receipt of profit (clause 3 of Article 226 of the Tax Code) - when paying funds to an individual in cash (clause 4 of the same article).
The timing of the transfer is specified in paragraph 6 of this article. An exception is the transfer of tax on payments for temporary disability.
The amount of personal income tax is calculated on an accrual basis for each type of profit. There is no need to take into account funds received from another tax agent.
Payment is made at the place of registration of the company (to the regional tax authority).
If the amount of income tax does not exceed 100 rubles, it can be added to the funds that will be paid next month, but in the same tax period.
It is not permissible to transfer tax at the expense of a tax agent. Agreements that provide for the assumption of obligations to bear costs of this type by the company are considered void.
It is necessary to transfer tax on all amounts paid to individuals by tax agents, except for those described in Articles 227 and 228 of the Tax Code.
If an organization, at the request of employees, makes transfers from their earnings to third parties, personal income tax is not paid ().
An individual who does not have the status of an individual entrepreneur cannot be a tax agent when making payments to hired personnel. In such a situation, calculations and payments are carried out by the citizens themselves who received such income (in accordance with).

The tax agents calculate the amounts in relation to the entire income of the employee. The exception is income, which according to the law must be calculated independently (for example, when selling an apartment, etc.).

In this case, you should rely on. The amount of income tax payable is calculated by the tax agent on an accrual basis from the beginning of the year at the end of each month.

In this case, the funds withheld earlier are offset. When determining the amount of personal income tax, tax deductions are also taken into account, which are specified in.

The tax period is a calendar year. The basis is .

Provided personal income tax reporting

Employers submit the following documents:

(paper or electronic)	Such a document is drawn up for each employee individually. The form contains information about the individual’s profit, deductions provided, calculated and paid personal income tax amounts. One certificate is issued even if several bets are used in calculations
Tax register, which reflects data on the profit of an individual	Prepared in paper form. When compiling, it is worth paying attention to debiting from current accounts according to registers. A payment is made for distribution - the company transfers one amount, but it applies to all employees. Distribution occurs in proportion to individuals (according to calculated and withheld taxes)

The record keeping form itself is not submitted by tax agents unless it is requested by a territorial agency inspector.

If an obligation arises to pay tax on their own, individuals and individual entrepreneurs submit 3-NDFL, but no later than April 30 of the following year after the end of the tax period.

Questions that arise

There are a number of issues worth talking about. Knowing some things will help you avoid troubles in the future.

When should the transfer be made?

The tax agent pays personal income tax for an individual within the following periods:

When funds are received into an account in one of the banks to pay income tax	No later than the day when the funds were withdrawn from the account (paragraph 1, clause 6, article 226 of the Tax Code)
When earnings are transferred from current accounts to an employee’s bank card	On the day when funds arrive to an individual’s account
When money is transferred from the employer’s account to a third party’s card on behalf of the employee	On the day the amount is received
When a person receives profit in the form of material benefits or in kind	No later than the next day after the tax is withheld (paragraph 2, paragraph 6, article 226 of the Tax Code)
If a person receives income from the sale of securities, the payment deadline will be as follows	when paying amounts in the tax period - within a month from the date of payment to employees; if the money is not paid before the end of the tax period - until January 31 of the following year after the end of the reporting year
In other cases	No later than the next day after receipt of the amount by an individual

When renting from an individual

If a company leases real estate from individuals, it acts as a tax agent. This means that an obligation arises to withhold and pay personal income tax on the transferred rental amounts.

Shifting such responsibilities to landlords is not permitted. This is discussed in.

Clause 1 of Art. 226 also contains data that a company that enters into transactions in which individuals make a profit must calculate, withhold and transfer income tax to government authorities.

It follows from this that when transferring rent for the premises provided, the company is a tax agent.

Data about employees can be provided by an enterprise that has a separate division based on its location. A separate enterprise is based on the place where it was registered.

If the document is drawn up by the parent company for the employees of the division, after the TIN the checkpoint of the separate division is reflected (use the separating sign “/”).

Provided that the employee worked in several departments, it is necessary to prepare several certificates about the income of the individual.

For the period when an individual worked in the parent company, it is worth reflecting the KPP and OKATO of this company, for the period of work in the division - the KPP and OKATO of this division.

Fine for non-payment of personal income tax by a tax agent

If the tax agent does not fulfill his obligations, he will have to bear liability regulated.

This article provides for a fine for late payment of personal income tax. The payment amount is 20% of the income tax.

If the amount of personal income tax was withheld by the tax agent, but not paid to the state treasury, then you will have to pay a penalty. A penalty is charged for each overdue day ().

Let's consider what obligations a tax agent has for personal income tax when renting from an individual, as well as which tax office to pay personal income tax for an individual. the person leasing the premises.

Obligations of the tenant as a tax agent for personal income tax

Using the leased property to conduct its business, the tenant makes rental payments and incurs cash costs. Since the cash outflow results in a decrease in the tenant's wealth, he incurs rental costs. By virtue of the law, the organization has obligations to the state to record expenses in tax and accounting registers in accordance with the norms of tax and accounting legislation, respectively.

In addition, the tenant, when paying income in the form of rent to an individual who is not an entrepreneur, has obligations as a tax agent for personal income tax in relation to this individual - the lessor. That is, the tenant needs to calculate personal income tax on income in the form of rent, withhold tax when paying income to an individual and transfer it to the budget (clause 2 of article 226 of the Tax Code of the Russian Federation, article 228 of the Tax Code of the Russian Federation).

What does it mean? Tax obligations arise from an individual, but will the enterprise be responsible for paying the tax?

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The fact is that a feature of paying personal income tax is paying tax through intermediaries (tax agents) on the majority of your income. The state by certain provisions of ch. 23 of the Tax Code of the Russian Federation entrusts enterprises with calculating and transferring personal income tax to the budget for another taxpayer - an individual. In the terminology of tax legislation, this means that the enterprise is recognized as a tax agent for personal income tax.

It is the organization recognized as the agent that will deal with all issues regarding tax calculation, withholding when paying income, and payment to the budget. It is impossible to transfer the payment of personal income tax from rental income to an individual, even if this is stated in the lease agreement. For clarification, you can refer to the letter of the Ministry of Finance of Russia dated 03/09/2016 No. 03-04-05/12891.

The need for an organization to fulfill the duties of a tax agent arises due to the provisions of clauses 1 and 2 of Art. 226 of the Tax Code of the Russian Federation as a result of payment to an individual who is not an individual entrepreneur of income in the form of rent payments under a lease agreement.

Since the Russian organization was the source of payment of income to an individual, it must act as a kind of intermediary between the taxpayer - the individual who received the income and the state represented by the tax authorities, in order to ensure that personal income tax flows into the budget in the correct amount and on time from the income paid.

But the functions of a tax agent are not limited to this.

The entire list of obligations that the state imposes on the tax agent is contained in Art. 230 Tax Code of the Russian Federation. Here are all the obligations of the tenant organization to the state when paying income in the form of rent:

Insurance premiums when renting from an individual

According to the lease agreement, the tenant bears expenses in the form of rent, and by virtue of Law No. 402-FZ and Ch. 25 of the Tax Code of the Russian Federation has an obligation to the state to reflect expenses in the accounting and tax registers. The tenant is also recognized as a tax agent in relation to personal income tax and is called upon to fulfill the duties of a tax agent for personal income tax listed in Article 230 of the Tax Code of the Russian Federation (see table above).

It should be said that rent paid to an individual under a property lease agreement does not entail the obligation to pay insurance premiums to the Pension Fund, Social Insurance Fund, Federal Compulsory Medical Insurance Fund and Social Insurance Fund for injuries (clause 4 of Article 420 of the Tax Code of the Russian Federation, Article 5 of the Federal Law of July 24 .1998 No. 125-FZ). You can learn more about this from.

General conclusion. An accountant needs to understand the economic consequences of a transaction in order to correctly reflect income, expenses and obligations to the partner and the budget system in accounting. To do this, we offer a graphic illustration of what has been said:

Companies and individual entrepreneurs that make payments to individuals are recognized as tax agents for personal income tax. They must calculate, withhold and transfer tax to the budget.
When do you need to withhold personal income tax?

Companies and individual entrepreneurs that make payments to individuals are recognized as tax agents for personal income tax. They must calculate, withhold and transfer tax to the budget (clause 1, article 24, clauses 1, 2, article 226 of the Tax Code of the Russian Federation).

Tax does not need to be withheld if:

in accordance with tax legislation, an individual must pay it independently;

the individual recipient of the income is an entrepreneur (lawyer, notary), and he received the specified income as a result of entrepreneurial activity (clause 2 of Article 226, Article 227, clause 1 of Article 228 of the Tax Code of the Russian Federation).

In all other cases, personal income tax must be withheld from the individual’s income by the organization (entrepreneur). Moreover, the condition of non-withholding of tax, which the company includes in an employment contract or a civil contract, is void (letters of the Ministry of Finance of Russia dated December 28, 2012 No. 03-04-05/10-1452, dated April 25, 2011 No. 03-04-05 /3-292).

Residents and non-residents

The tax agent must withhold tax from both residents of the Russian Federation and non-residents. In the first case, income received from sources in the Russian Federation and abroad is subject to taxation. In the second case, tax is withheld only from income received in the Russian Federation (Articles 208, 209 of the Tax Code of the Russian Federation).

Let us add that if a company has an employee - a foreign citizen who has a patent for working in the Russian Federation, then when paying him income, personal income tax should be withheld, taking into account the tax paid when purchasing the patent (Clause 2 of Article 226, Article 227.1 of the Tax Code of the Russian Federation ).

If personal income tax cannot be withheld

In practice, an organization (IP) may encounter a situation where it is impossible to withhold personal income tax. For example, the employee who received the income quits, or this is the only income received from the company.

In such a situation, you need to notify the tax office about what happened. The message must be submitted no later than March 1 of the year following the year of payment of income (clause 5 of Article 226 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated October 19, 2015 No. BS-4-11/18217).

In addition, the organization (IP) must notify the individual itself (clause 5 of Article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337).

If the inability to withhold personal income tax is related to securities, then the deadline for submitting a message to the tax authority may vary. So, if a month has passed since the end of the tax period in which personal income tax was not withheld, then the message to the tax office should be sent before March 1 of the next year. If the validity period of the last agreement under which personal income tax was calculated between the company and the tax agent has expired, then the tax authority must be notified of the impossibility of withholding personal income tax within a month from the date of expiration of this agreement (clause 14 of article 226.1 of the Tax Code of the Russian Federation).

To notify the tax inspectorate, form 2-NDFL is used (clause 2 of the order of the Federal Tax Service of Russia dated October 30, 2015 No. ММВ-7-11/485, clause 1 of the Procedure, approved by order of the Federal Tax Service of Russia dated September 16, 2011 No. ММВ-7-3/ 576).

If, after sending a message to the inspectorate about the impossibility of withholding personal income tax, the company has the opportunity to withhold tax, this should not be done. This is explained by the fact that after written notification, the tax agent’s obligation to withhold the corresponding amounts of personal income tax is terminated (letter of the Ministry of Finance of Russia dated March 12, 2013 No. 03-04-06/7337).