Not a tax agent. Who is a tax agent? Failure to fulfill the duties of a tax agent

07.06.2024

Tax agents, as an intermediate link in the connection between taxpayers and the state, have certain rights, powers and responsibilities. The mechanism of their actions is regulated by the norms of Article 24 of the Tax Code of the Russian Federation. It states, in particular, that a tax agent is a person who is entrusted with the responsibility of calculating tax, withholding it from the taxpayer and transferring the received amount to the budget of the Russian Federation.

What taxes are collected by tax agents?

The Tax Code sets out a list of taxes that can be collected by tax agents. The main tax that is almost entirely administered in this way is the personal income tax or personal income tax. In addition, all organizations that are payers of income and value added taxes also serve as tax agents.

Who can act as a tax agent?

A tax agent can be an individual or an organization. For example, an individual entrepreneur with employees and a company in which employees work under employment contracts or civil contracts are tax agents for personal income tax. This means that all employers, when paying income to their employees, are required to calculate personal income tax amounts, withhold them from citizens and transfer them to budget accounts at the appropriate level.

Banks often act as tax agents; in accordance with current legislation, they withhold income taxes on deposits and securities transactions from their clients. Tax agents are notaries engaged in private practice and lawyers who have their own offices. They charge their clients a state fee for performing legally significant actions. Then the amounts of withheld tax and state duties are also transferred to the budget.

What rights and responsibilities does a tax agent have?

Tax agents are granted the same rights by the state as taxpayers. The responsibilities of tax agents include:
- correctly and timely calculate, withhold and pay taxes to the budget;
- inform tax authorities in writing about the impossibility of withholding tax and the amount of tax not withheld;
- maintain analytical records of accrued and paid income, including by taxpayer;
- submit to the tax authority documents confirming the completeness and correctness of the calculation and payment of taxes;
- ensure the safety of the above documents for 4 years.

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:

If an organization acts as an agent of an individual (principal) for leasing residential premises, it is not recognized as a tax agent for the calculation, withholding and transfer of personal income tax to the budget. This conclusion is contained in. The source of income of an individual - a landlord - is the tenants (tenants) of residential premises owned by this individual.

Let us recall that under an agency agreement, one party (agent) must, for a fee, perform legally significant and other actions on behalf of the other party (principal) on its own behalf at the expense of the principal, or on behalf of the principal and at his expense (). For example, an agent, on behalf of the principal, can sell and purchase goods, provide services, and perform work. In this case, the ownership of things in relation to which the agent performs the above actions is retained by the principal (,).

Does a tax agent have the right to change the procedure for fulfilling his duties assigned to him by the norms of the Tax Code of the Russian Federation on the basis of an agreement concluded between two organizations? Find out from the material "Calculation and payment of personal income tax by tax agents" in "Encyclopedia of solutions. Taxes and fees" Internet version of the GARANT system. Get 3 days free!

Since under an agency agreement one party acts as an intermediary and receives remuneration from the principal for fulfilling its obligations and, according to the terms of the agency agreement, the organization (agent) does not pay income to the individual on its own behalf, it cannot be recognized as a tax agent.

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 Art. 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 clause 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).

June 13, 2017, 01:47, question No. 1665159 Novel, Nizhny Novgorod

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Lawyers' answers (3)

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Hello, the customer is required by law to withhold personal income tax from the contractor’s income, so this cannot be stipulated in the contract.

An individual who performs work or provides services for an organization receives income. And this income is subject to personal income tax (clause 6, clause 1, article 208 of the Tax Code). The organization is the source of payment of this income, and therefore is a tax agent (clause 1 of Article 226 of the Tax Code). Therefore, the organization must withhold personal income tax from payments under a civil contract and pay it to the budget.

Tax Code of the Russian Federation Article 226. Features of tax calculation by tax agents. Procedure and deadlines for tax payment by tax agents

1. Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received the income specified in paragraph 2 of this article, are obliged calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Article 224 of this Code, taking into account the specifics provided for by this article. Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers.
(as amended by Federal Laws dated December 29, 2000 N 166-FZ, dated December 31, 2002 N 187-FZ, dated July 27, 2006 N 137-FZ, dated July 24, 2007 N 216-FZ)

(see text in the previous edition)

entails a fine in the amount of 20 percent of the amount subject to withholding and (or) transfer.
(as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 07/27/2010 N 229-FZ)

(see text in the previous edition)

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