Organization of public catering envd. How to calculate TNVD for catering services. Reduction of tax on the amount of insurance premiums

10.03.2022

Restaurant, cafe, snack bar Sviridova Elena Ivanovna

CHAPTER 6 Application of the special tax regime: UTII

The taxation system in the form of a single tax on imputed income for certain types of activities is put into effect by the laws of the constituent entities of the Russian Federation and can be applied by decision of the constituent entity of the Russian Federation in relation to the types of entrepreneurial activities specified in paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation, carried out by organizations and individual entrepreneurs in the territory the corresponding subject of the Russian Federation.

For example, the Law of the Moscow Region, adopted by the Decree of the Moscow Regional Duma dated November 17, 2004 No. 1/117P, established types of entrepreneurial activity in respect of which the single tax on imputed income is mandatory for payment. The activities include the provision of catering services, carried out using a hall with an area of \u200b\u200bno more than 150 square meters, as well as carried out through catering facilities that do not have a customer service hall.

In accordance with Article 346.26 of the Tax Code of the Russian Federation, by decision of the regional authorities, such activities as “the provision of catering services carried out using a service hall with an area of \u200b\u200bno more than 150 square meters for each catering facility” can be transferred to the payment of UTII. That is, three conditions must be met:

1) the activity is a catering service;

2) the company has a customer service hall;

3) the area of the hall does not exceed 150 square meters for each catering facility.

Catering services include:

1) meals in restaurants, bars, cafes, canteens, snack bars and other types of enterprises, according to OKUN - group codes 122100;

2) organization of leisure (musical accompaniment, concerts, variety programs and video demonstrations, provision of press and board games) - group codes 122500.

That is, according to officials, there is a closed list of catering services that fall under UTII, and it consists of only two items. Meanwhile, according to OKUN, the group “Public catering services” includes many more types of activities. For example, the manufacture of culinary products and confectionery - code 122200.

Since the sale of culinary products (code 122400) does not require a customer service hall, the activities of restaurants, canteens, cafes do not fall under UTII when they sell their products through stores. The same applies to stalls selling grilled chicken, donuts, pies, etc. For such types of business, organizations must pay taxes in a general manner or under a simplified system.

If the organization has opened a canteen only for its employees and gives them coupons for lunch for free, it is also impossible to switch to an imputed tax. In such a situation, the organization pays for the food of employees at the expense of its own profit, therefore, this activity is not aimed at generating income.

For the purposes of Chapter 26.3 of the Tax Code of the Russian Federation, the provision of public catering services carried out through public catering facilities with an area of \u200b\u200bthe hall for serving visitors of more than 150 square meters for each public catering facility is recognized as a type of entrepreneurial activity in respect of which a single tax is not applied.

If the area of the service hall is more than 150 square meters, the entrepreneur (organization) pays VAT and other "traditional" taxes. Or it can switch to a simplified taxation system.

The area of the visitor service hall is understood as the area of specially equipped premises (open areas) of a public catering facility intended for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities, determined on the basis of inventory and title documents. The area of the visitor service hall does not include the area of administrative and amenity premises and premises for receiving goods.

Example 18

The restaurant LLC "Razlivayka" occupies 2 floors in a rented building, each floor has its own customer service hall, while let's assume that the area of one of them is 80 square meters. m, and the area of another 220 sq. m. What to do in this case, is the restaurant obliged to switch to “imputation”? If an economic entity provides public catering services through public catering organizations that have several visitor service halls, then the area of visitor service halls for the purpose of calculating UTII is taken into account in the aggregate of all areas of the premises (halls) of such an object used by the taxpayer for the provision of public catering services.

In the situation under consideration, the restaurant Razlivayka LLC, as a public catering enterprise, cannot be transferred to the taxation system in the form of UTII.

Example 19

The area of the hall of the restaurant "Weeping Willow" is 120 sq. m. In summer, the restaurant received permission to use the area adjacent to the building - 50 sq. m. m. But in the accompanying documentation, the head of the restaurant indicated that only 25 sq. m. m. The rest of the area will be occupied by a buffet counter.

Thus, the total area of the visitors' service hall was: 120 sq. m + 25 sq. m = 145 sq. m. 145 sq. m ‹150 sq. m.

The Weeping Willow restaurant does not need to switch to the general taxation system and pay VAT.

The total area of service halls is determined on the basis of documents issued by the technical inventory bureau. But it is enough if the required area is indicated in the BTI certificate.

Most likely, the tax inspector will not check it and measure your real area.

Many bars and cafes set up additional outdoor tables in the summer (the so-called summer cafes). The area of these summer cafes should also be taken into account when calculating the area of the service hall. It happens that the total area of the service hall, taking into account summer cafes, exceeds 150 square meters, but not without them.

In this case, you will have to switch from paying tax on imputed income to the regular system of taxation. But only for those few months in which summer cafes operate.

Note that you will not be able to switch to the “simplified” system for these few months in such a situation. The fact is that you can start working under the simplified taxation system only from January 1.

Of course, switching to paying VAT and other “traditional” taxes for 3-4 months, and then returning to the tax on imputed income is very inconvenient. This will take a lot of time and will require additional costs.

This unpleasant situation can be avoided. For example, in this way: register another organization and open a summer cafe under a new sign. But in this case, firstly, you will have to pay additional taxes, and secondly, you will have to re-obtain all permits. In addition, if there are alcoholic drinks on the menu, you will have to get another license, and this is unprofitable.

Therefore, it is better to determine in advance the area on which you are going to place tables, and make sure that, together with the area of the main hall, it does not exceed 150 square meters.

Paragraph 11 of Article 346.27 of the Tax Code of the Russian Federation establishes that the service hall "does not include the area of utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale."

It is possible to determine the area of all premises using inventory and title documents. This follows from article 346.27 of the Tax Code of the Russian Federation. They are certificates of registration of ownership of the building (premises), lease agreements, technical passports for buildings, floor plans, explications, etc.

Consider several situations related to determining the area of the hall.

1. Services are provided in several locations. In accordance with Article 346.27 of the Tax Code of the Russian Federation, the area of the visitor service hall includes the area of \u200b\u200ball premises and open areas used for catering. With a literal reading of the norm of the Tax Code of the Russian Federation, it is necessary to sum up all the areas that the company uses in the provision of services. This approach is most often practiced by tax inspectors. By adding up the areas of food outlets located on different floors of the same building or in different parts of the city, they often get more than 150 square meters and forbid the company to apply “imputation”.

How justified is such an approach?

In accordance with Article 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of a single tax on imputed income for certain types of activities is put into effect by the laws of the constituent entities of the Russian Federation and can be applied by decision of the constituent entity of the Russian Federation in relation to the types of entrepreneurial activities specified in paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation, carried out by organizations and individual entrepreneurs on the territory of the corresponding subject of the Russian Federation.

These activities, in particular, include the provision of catering services, carried out using a hall with an area of \u200b\u200bno more than 150 square meters.

According to Article 346.27 of the Code, a public catering facility with a visitor service hall includes a building (part of it) or a structure intended for the provision of public catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or ) purchased goods, as well as for leisure activities. This category of public catering facilities includes restaurants, bars, cafes, canteens, snack bars.

Sales floor area (visitor service area) - the area of all premises and open areas used by the taxpayer for trade or public catering, determined on the basis of inventory and title documents.

If, for example, 3 separate lease agreements for premises located in different places of the shopping center building are concluded for the implementation of activities in the field of catering services, and at the same time, based on the inventory and title documents, the area of \u200b\u200beach visitor service hall does not exceed 150 square meters and each hall is supposed to be equipped with a separate cash register, in this case the rented premises are considered as a single catering facility, despite the fact that the rent of each restaurant premises is carried out on the basis of a separate lease agreement

Accordingly, the area of the visitor service hall for the purposes of applying Chapter 26.3 of the Tax Code of the Russian Federation must be determined in total for all points located in the building.

This position is indicated in the letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated May 16, 2006 No. 03-11-04/3/260.

2. If there is a stage in the hall. To fulfill the requirements of GOST R 50762-95 for restaurants, it is necessary to organize the so-called "live music" for visitors. Moreover, the presence of a stage and a dance floor is obligatory. Do I need to pay tax for these meters?

In any case, public catering enterprises should take into account the area of the stage when calculating the "imputed" tax. After all, it is designed for artists to perform in front of visitors. According to OKUN, services such as organizing variety shows and holding concerts are classified as catering services (code 122500). Given this, the stage area must be subject to UTII.

How to calculate the tax on imputed income depends on the type of activity. Moreover, the tax rate is the same for organizations and entrepreneurs and amounts to 15% of imputed income.

The amount of imputed income tax paid by an entrepreneur does not depend on the size of his revenue or on the amount of profit, but only on the so-called physical indicators - the area of occupied premises, the number of employees. For taxpayers providing public catering services, it is calculated as the product of the basic profitability of public catering services, the value of the physical indicator, and the values of the adjustment coefficients:

The amount of tax per month = the value of the imputed

income x K1 x K2 x 15%,

where K1, K2 are correction factors.

The physical indicator in calculating the imputed tax for public catering organizations is the area of the visitor service hall, in square meters. Basic income - 1000 rubles per month.

For enterprises providing public catering services through public catering facilities that do not have visitor service halls subject to UTII, from January 1, 2006, the maximum values of basic profitability indicators were determined. The physical indicator is the number of employees, including an individual entrepreneur, the basic profitability per month is 4,500 rubles.

K1 is a deflator coefficient set for a calendar year that takes into account changes in consumer prices for goods (works, services) in the Russian Federation in the previous period. The deflator coefficient is determined and subject to official publication in the manner prescribed by the Government of the Russian Federation. By order of the Ministry of Economic Development and Trade in the Russian Federation of November 3, 2006 No. 360, it was set at 1.241.

K2 is a correction coefficient of basic profitability, taking into account the totality of the features of doing business, including the range of goods (works, services), seasonality, mode of operation, the actual period of time of the activity, the amount of income, the specifics of the place of doing business, the area of the information field of light and electronic scoreboards, the area of the information field of electronic scoreboards, printed and (or) printed outdoor advertising and other features.

For the type of entrepreneurial activity "public catering", the value of the correction factor K2 (K2op) is determined, which is calculated as follows:

K2op \u003d Ktp x Kmo x Kz x Kv,

where: Ktp - coefficient taking into account the type of public catering organization;

Kmo - coefficient taking into account the peculiarities of doing business in an urban district, municipal district;

Kz is a coefficient that takes into account the peculiarities of doing business within an urban district, municipal district;

Кв - coefficient taking into account the peculiarities of the implementation of this type of entrepreneurial activity only on Saturday, Sunday and non-working holidays (Кв = 0.6).

The following values of Ktp are determined, a coefficient that takes into account the type of public catering organization (Table 16).

Table 16

Values of coefficient Ктп

As follows from the above formula, in order to calculate the tax, first of all, it is necessary to determine the amount of imputed income and adjustment factors. Correction factors are determined the same for all areas of activity. The value of the imputed income of the organization (entrepreneur) is calculated as follows. For each type of activity, the Tax Code of the Russian Federation establishes its own basic profitability (a certain amount in rubles). Multiplying the basic return by a physical indicator (which is also set for each type of activity), we get the amount of imputed income.

Example 20

The area of the customer service hall in the restaurant "Fruit Paradise" LLC is 120 square meters. m. The amount of tax on imputed income per month will be: 1000 rubles. H H 120 sq. m H 1.241 H 15% \u003d 22,338 rubles.

Example 21

In January 2007, ZAO Pirozhok decided to provide catering services. To do this, the organization rented a room with a maintenance area of 120 sq. m. Suppose that the K2 coefficient for canteens is 0.1, for cafes - 0.2.

If CJSC "Pirozhok" opens a canteen, then for the 1st quarter of 2007 it must pay the following amount of imputed tax: 1000 rubles. H 120 sq. m H 0.1 H 1.241 H 3 months. H 15% \u003d 6701.40 rubles. If CJSC "Pirozhok" organizes a cafe in the rented premises, then UTII for the 1st quarter of 2007 will be:

1000 rub. H 120 sq. m H 0.2 H 1.241 H 3 months. H 15% \u003d 13,402.80 rubles. From the point of view of the tax burden, it is more profitable for an organization to open a canteen, since in this case it saves 6,701.40 rubles on paying UTII. (13402.80 - 6701.40).

In this case, the amount of tax calculated for payment by an economic entity - a taxpayer of UTII, may be reduced in accordance with paragraph 2 of Article 346.32 of the Tax Code of the Russian Federation.

Example 22

Cafe Ltd. "Kiselnye Berega" provides catering services. The area of the hall for visitors is 80 square meters. m. For the I quarter of 2007, the wage fund of employees amounted to 180,000 rubles. Contributions for compulsory pension insurance in the amount of 25,200 rubles were paid from this amount.

Let us assume that the value of the coefficient K2, established by the subject of the federation, in whose territory this organization operates, is equal to 1.0. Then the sum of the imputed income of the cafe "Kiselnye Berega" for the 1st quarter of 2007 will be: = 297,840 rubles. Consequently, the tax will be: 297,840 H 15% = 44,676 rubles.

For the 1st quarter of 2007, Kiselnye Berega cafe paid contributions for mandatory pension insurance in the amount of 25,200 rubles.

In accordance with tax legislation, a cafe can reduce the amount of a single tax by no more than 50%.

Let's determine the maximum amount by which the tax amount can be reduced: 44,676 × 50% \u003d 22,338 rubles.

Thus, the amount of UTII, which LLC "Kiselnye Berega" must transfer to the budget, will be:

RUB 44,676 - 22,338 rubles. = 22,338 rubles, despite the fact that he actually transferred contributions in the amount of 25,200 rubles.

An individual entrepreneur can reduce UTII not only by the amount of insurance premiums paid in the payment of employee benefits, but also by the amount of fixed payments that he pays for his insurance.

This text is an introductory piece.

From 01/01/2021, a special tax regime is canceled in the Russian Federation - the taxation system in the form of a single tax on imputed income for certain types of activities (UTII)

UTII taxpayers can switch to the following tax regimes:

General system of taxation

Simplified system

Taxation

patent system

Taxation (only for sole proprietors)

Filling out an application for deregistration for UTII, in connection with the transition to another taxation system -

2 500 rub

we draw up documents for deregistration of UTII for you, you submit them to the IFTS yourself

Deregistration according to UTII, in connection with the transition to another "turnkey" taxation system -

8 000 rub

we draw up documents for the transition to UTII and independently submit them for registration with the Federal Tax Service

How to Calculate Catering Tax
with UTII in 2020? How to switch to UTII?

What is public catering (public catering)?

Public catering is a service for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the sale and (or) consumption of products on the spot, as well as conditions for leisure activities (Article 346.27 of the Tax Code of the Russian Federation). Manufacturing involves mixing products (eg preparing salads, sandwiches) and/or modifying their original properties (eg frying frozen convenience foods or fresh meat). This is what catering differs from the sale of finished products at retail (letter of the Ministry of Finance of the Russian Federation dated 04.28.07 No. 03-11-05 / 85). And leisure services include organizing music services, holding concerts, variety shows and video programs, organizing board games (for example, billiards), etc.

Who is the UTII payer for public catering?

Tax payers are individual entrepreneurs and organizations that own or lease premises intended for running a catering business and use them for commercial purposes.

Entrepreneurs and companies that provide catering services through public catering facilities can be transferred to pay a single tax on imputed income.

having a visitor service hall (the area of the premises should not exceed 150 sq. m)

without a customer service hall

Restrictions on the use of UTII

Taxpayers are not entitled to work on the “imputation”

producing and selling their own alcoholic beverages

delivering food products to customers at home or in the office (letters of the Ministry of Finance of the Russian Federation dated July 25, 07 No. 03-11-04 / 3/295)

Catering facility with service hall

An object of a public catering organization with a visitor service hall is a building (part of it) or a structure intended for the provision of catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery, purchased goods and leisure activities. This category includes restaurants, bars, cafes, canteens and eateries (paragraph 20 of article 346.27 of the Tax Code of the Russian Federation).
If the taxpayer provides catering services to visitors in the service hall, then when calculating UTII, a base yield of 1,000 rubles per month should be applied. At the same time, the physical indicator of profitability is the area of the customer service hall in square meters (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

documents containing the necessary information about the purpose, design features and layout of the premises

contract for the sale of non-residential premises

technical passport, plans, schemes, explications

lease agreement (sublease) of non-residential premises or part thereof

permission for the right to serve visitors in an open area and other documents

When determining the value of a physical indicator, it should be remembered that the area of the visitors' service hall includes only a place that is intended directly for eating and spending leisure time. Such premises as, for example, a kitchen, a place for distributing and heating finished products, a cashier's place, utility rooms, etc., should not be included in the area of \u200b\u200bthe customer service hall (letter of the Ministry of Finance of the Russian Federation dated 03.21.08 No. 03-11-04 / 3 / 143)

A catering facility may have several separate customer service halls. The Ministry of Finance in this situation recommends taking into account title and inventory documents. So, if according to the documents the objects are not separated, the premises are recognized as one object of the catering organization. The area of the service hall in such a situation is calculated in total for all premises. Otherwise, the area of the service hall should be calculated for each room separately (letters of the Ministry of Finance of the Russian Federation dated 30.03.07 No. 03-11-04/3/98, dated 08.02.07 No. 03-11-04/3/41).

When different types of activities are carried out in the same hall, for example, catering and retail services are provided, then the total area of \u200b\u200bthe premises is taken into account when calculating the tax. This position is taken by specialists of the Ministry of Finance (letter of the Ministry of Finance of Russia dated 03.07.08 No. 03-11-04/3/311). Argument: Chapter 26.3 of the Tax Code does not provide for the distribution of the area of the trading floor (visitor service hall) when several types of activities are carried out on the same area. This means that in the described situation, the calculation of UTII for the provision of catering services is based on the total area of the customer service hall, and for retail trade - the total area of the trading floor.

Catering facility without a service hall

If a catering facility does not have products specially equipped for consumption, then it is recognized as a catering facility that does not have a customer service hall (Article 346.27 of the Tax Code of the Russian Federation). Such objects include kiosks, tents, culinary shops (sections, departments) and other similar catering points. An example is the manufacture and sale of whites and pasties through a trailer on the market. Such activities relate to catering services that fall under UTII (letter of the Ministry of Finance of the Russian Federation dated February 20, 08 No. 03-11-05 / 36). Please note: from 2009, the sale through vending machines of goods or public catering products (for example, coffee) made in these vending machines will be related to retail trade (Federal Law No. 155-FZ of July 22, 2008).

Now the issue of taxation of such machines is controversial. So, from January 1, 2008, vending machines were included in the list of stationary trade objects that do not have trading floors (Article 346.27 of the Tax Code of the Russian Federation). However, the Ministry of Finance indicated: if culinary products of own production (soups, drinks made from dry ingredients and water) are sold through a vending machine, UTII is paid as when providing catering services through catering organizations that do not have a customer service hall (letters dated March 28, 2008 No. 03-11-02/35, dated 12.05.08 No. 03-11-05/119).

When calculating a single tax on catering services without a customer service hall, a base income of 4,500 rubles per month should be applied (clause 3 of article 346.29 of the Tax Code of the Russian Federation) and a physical indicator - the number of employees, including an individual entrepreneur (clause 3 of article 346.29 of the Tax Code of the Russian Federation) .

Calculation of the amount of UTII tax

The tax rate is 15%. The tax is determined by multiplying the tax rate by the tax base, which is equal to

tax base for UTND = basic profitability * value of physical indicator * K1 * K2

Basic profitability - conditional monthly profitability established by the Tax Code

K1 - coefficient taking into account inflation

K2 - coefficient that takes into account the peculiarities of doing business (range of goods, seasonality, mode, work, etc.)

K2 is set by local authorities

K1 according to UTII for 2020

The deflator coefficient K1 for each year is set by the Ministry of Economic Development and published in the Russian newspaper no later than November 20 of the previous year

Notice of transition to UTII in 2020

UTII is a single tax on imputed income. The use of the regime in which taxes are paid on the basis of imputed income is accompanied by the mandatory filing of an application with the tax authorities. In accordance with paragraph 3 of Art. 346.28 This must be done by both organizations and entrepreneurs within a period not exceeding 5 working days after the start of activities in this mode. For the date of registration, the data specified in the application will be accepted

Switching to UTII in 2020

The transition to the payment of a single tax is carried out voluntarily through the submission of an application for registration of an organization or individual entrepreneur as a UTII taxpayer to the tax authority. When calculating and paying UTII, the amount of income actually received does not matter, taxpayers are guided by the amount of income imputed to them, which is established by the Tax Code of the Russian Federation

UTII is designed to make life easier for individual entrepreneurs and LLCs, it provides for the exemption of entrepreneurs from a number of taxes, is voluntary and can be combined with other taxation regimes

Terms of payment of UTII tax

payment for the I quarter - until April 25 of the current year
payment for the II quarter - until July 25 of the current year
payment for the III quarter - until October 25 of the next year
payment for the IV quarter - until January 25 of the next year

Tax reporting. Deadlines for filing a tax return

Submitted 4 times a year, by the 20th day of the month following the end of the quarter

UTII tax reduction

Individual entrepreneurs and LLCs that do not have employees can completely reduce the amount of tax on paid insurance premiums, including 1% from the amount exceeding the limit of 300,000 rubles

Individual entrepreneurs and LLCs with employees can reduce the tax by no more than 50% of the amount of insurance payments

Accounting

Not maintained

Voluntary transfer of a taxpayer from UTII to other taxation regimes

From next calendar year

Transfer of the taxpayer from UTII to the simplified tax system, in case of loss of the right to use UTII

From the next calendar month following the end month of UTII

Call us and we will help you

we will calculate the cost of UTII for you

we will issue all documents in the Federal Tax Service of the Moscow Region for the transition to UTII

One of the most common activities that fall under UTII is the provision of catering services. Read more about taxation of catering services in this article.

What is considered catering

Entrepreneurs and companies that provide catering services through public catering facilities can be transferred to pay a single tax on imputed income:
- having a visitor service hall (the area of the premises should be no more than 150 sq. m.);
- do not have a customer service hall.

At the same time, the public catering facility must belong to the taxpayer on the basis of ownership or be provided to him for use under a lease agreement or other similar agreement (letter of the Ministry of Finance of the Russian Federation dated 03.20.07 No. 03-11-04 / 3/72). At the same time, a taxpayer who produces and sells alcoholic beverages is not entitled to work on the “imputation”. But if purchased alcohol and beer are sold through a public catering facility, then such activities can be transferred to the payment of UTII (letters of the Ministry of Finance of the Russian Federation dated 01.18.08 No. 03-11-04 / 3/6, dated 12.17.07 No. 03- 11-04/3/497). In addition, activities for the production and sale of alcoholic cocktails obtained by mixing the relevant ingredients by a bartender in restaurants, cafes, bars and other public catering facilities also fall under the “imputed” regime (letter of the Ministry of Finance of the Russian Federation dated 16.06.08 No. 03-11-04 / 3/275).

In addition, a company that does not sell food products through catering facilities, but delivers them to customers at home or in the office, is not transferred to the “imputation” (letters of the Ministry of Finance of the Russian Federation dated July 25, 07 No. 03-11-04 / 3/295). An organization engaged in such activities must apply either a general or a simplified taxation regime.

Catering facility with service hall

The area of the hall is understood as the area of a specially equipped room intended for the consumption of finished products, confectionery and purchased goods. The size of the area is determined on the basis of title and inventory documents. These include:
- documents containing the necessary information about the purpose, design features and layout of the premises;
- contract for the sale of non-residential premises;
— technical passport, plans, schemes, explications;
- a lease (sublease) agreement for non-residential premises or a part thereof;
- permission to serve visitors in an open area and other documents.

And when different types of activities are carried out in the same hall, for example, catering and retail services are provided, then the total area of \u200b\u200bthe premises is taken into account when calculating the tax. This position is taken by specialists of the Ministry of Finance (letter of the Ministry of Finance of Russia dated 03.07.08 No. 03-11-04/3/311). Argument: Chapter 26.3 of the Tax Code does not provide for the distribution of the area of the trading floor (visitor service hall) when several types of activities are carried out on the same area. This means that in the situation described, the calculation of UTII for the provision of catering services is based on the total area of the customer service hall, and for retail trade - the total area of the trading floor.

No service hall

The organization plans to open a food court in a shopping center. The area for cooking, the distribution line will be provided for rent. There will be no private eating area. There is such an area in the shopping center, but it is not rented to the organization. Visitors to the shopping center will use this area for eating, while there will be several such catering outlets in the food court of the shopping center. Is the organization entitled to pay UTII in this case?

Catering services such as "food court" and the payment of a single tax. According to subparagraphs and paragraph 2 of article 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of UTII can be applied to catering services provided through public catering facilities with an area of \u200b\u200bthe customer service hall of no more than 150 square meters. m for each catering facility, as well as through catering facilities that do not have a customer service hall.

Based on Article 346.27 of the Tax Code of the Russian Federation, a building (part of it) or a building intended for the provision of catering services, having a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or ) purchased goods, as well as for leisure activities. This category of objects includes restaurants, bars, cafes, canteens, snack bars.

A catering facility that does not have a customer service hall is a catering facility that does not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods. This category of objects includes kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars and other similar catering outlets.

In addition, we note that catering services for the purposes of Chapter 26.3 of the Tax Code of the Russian Federation include services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities. Public catering services do not include services for the production and sale of excisable goods specified in subparagraph 3 of paragraph 1 of Article 181 of the Tax Code of the Russian Federation.

According to the national standard GOST R 50647-2010 “Public catering. Terms and definitions”, approved by the order of Rosstandart dated November 30, 2010 No. 576-st, public catering is understood as a set of enterprises of various organizational and legal forms and individual entrepreneurs engaged in the production, sale and organization of consumption of culinary products.

Thus, the activity of a catering facility, both with a visitor service hall and without a visitor service hall, regardless of its location and type, also provides for the organization of the consumption of purchased products on the spot.

In the situation under consideration, on the line of the food court in the shopping center, where the organization plans to open a catering point, there is an area for eating. However, in this area for visitors to the shopping center, conditions are organized for the consumption of products from several similar catering outlets.

At the same time, it should be noted that in almost every large shopping center or shopping complex there are so-called restaurant lines (food courts), the principle of serving visitors on which, as a rule, is organized in the manner described above. Accordingly, the condition for organizing the consumption of purchased products on the spot, regardless of the fact that the organization is not leased out part of the area of the visitor service hall in the shopping center, will be fulfilled in this case.

Thus, in the situation under consideration, the organization's activities can be attributed to "imputed" catering services provided through a catering facility that does not have a customer service hall. It will be necessary to calculate the single tax using the physical indicator “number of employees, including an individual entrepreneur”. Similar explanations are contained in the letter of the Ministry of Finance of Russia dated 04/09/2010 No. 03-11-06/3/56.

According to paragraphs. 8 p. 2 art. 346.26 of the Tax Code of the Russian Federation, “imputation” includes activities in the provision of catering services through catering facilities with a customer service hall of no more than 150 sq. m. To such catering facilities on the basis of Art. 346.27 of the Tax Code of the Russian Federation includes restaurants and cafes. Accordingly, if an organization or an individual entrepreneur provides catering services through a restaurant or cafe, the area of \u200b\u200bthe customer service hall in which does not exceed 150 sq. m, then they can switch to paying a single tax on imputed income.

Note. Organizations and entrepreneurs providing catering services must register as tax authorities at the place where such services are provided (clause 2, article 346.28 of the Tax Code of the Russian Federation).

Terms. Restaurant- a public catering establishment with a wide range of dishes of complex manufacture, including custom-made and signature dishes and products, alcoholic, soft, hot and other types of drinks, flour confectionery and bakery products, tobacco products, purchased goods, with a high level of service and, as a rule, combined with the organization of recreation and entertainment.

A cafe- a public catering enterprise for organizing catering and recreation for consumers with the provision of a limited range of public catering products compared to a restaurant, selling branded, custom-made dishes, products, alcoholic and non-alcoholic drinks.

This is stated in Art. 346.27 of the Tax Code of the Russian Federation and GOST R 50762-2007, approved by the Order of Rostekhregulirovanie dated December 27, 2007 N 475-st.

However, to switch to this special mode, fulfillment of this condition alone is not enough. There are others. Firstly, an organization or an individual entrepreneur must comply with the requirements of clause 2.2 of Art. 346.26 of the Tax Code of the Russian Federation. Secondly, in the municipal district, urban district or in the city of federal significance, where the restaurant or cafe is located, in relation to the specified type of activity, it has been introduced. Thirdly, public catering services are recognized as such for the purpose of paying a single tax on imputed income. Fourthly, a restaurant or cafe must be owned by an organization or individual entrepreneur or be transferred to them for use under a lease or other similar agreement (Letter of the Ministry of Finance of Russia dated 03.20.2007 N 03-11-04 / 3/72 and the Resolution of the FAS West Siberian District dated July 26, 2007 N F04-5208 / 2007 (36853-A81-29)).

What is meant by catering services?

In accordance with Art. 346.27 of the Tax Code of the Russian Federation public catering services in order to pay a single tax on imputed income services are recognized for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as for leisure activities. Services for the production and sale of beer, alcoholic products (drinking spirits, vodka, alcoholic beverages, cognacs, wine and other food products with a volume fraction of ethyl alcohol of more than 1.5%, with the exception of wine materials) are not included in public catering services.

At the same time, what should be understood by culinary products and confectionery, in Ch. 26.3 of the Tax Code of the Russian Federation is not specified. So, given the provisions of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, let's turn to GOST R 50647-94 "Public catering. Terms and definitions" and GOST R 53041-2008 "Confectionery and semi-finished confectionery products. Terms and definitions".

Note. GOST R 50647-94 and GOST R 53041-2008 were approved respectively by the Decree of the State Standard of Russia dated February 21, 1994 N 35 and the Order of Rostekhregulirovanie dated December 15, 2008 N 402-st.

They say that a culinary product is a set of dishes, culinary products and culinary semi-finished products, and a confectionery product is a multicomponent food product, ready to eat, having a certain predetermined shape, obtained as a result of technological processing of the main types of raw materials (sugar, flour, fats, cocoa products), with or without food ingredients, food additives and flavors. Confectionery is divided into the following groups: chocolate, cocoa, sugary confectionery, flour confectionery.

Thus, if culinary products and (or) confectionery products are sold to visitors in a restaurant or cafe, then an organization or an individual entrepreneur can apply a taxation system in the form of UTII in relation to this type of activity.

At the same time, it should be noted that in order to classify activities as public catering services, the implementation of one sale of culinary products and (or) confectionery products is still not enough. It is also necessary that one more condition be met, namely: conditions for the consumption of the specified products have been created in the catering facility. Not only regulatory authorities agree with this position, but also judges (Letters of the Ministry of Finance of Russia dated 01.07.2009 N 03-11-09 / 233, dated 01.26.2009 N 03-11-06 / 3/10, dated 07.21.2006 N 03 -11-04/3/359 and the Decree of the Federal Antimonopoly Service of the Volga District of March 11, 2009 in case N A12-11657/2008).

Now consider several situations in which questions may arise in choosing a taxation system.

If the production and sale of culinary products are carried out in different places

Claims from the regulatory authorities in this case, although they take place, are not substantiated. This is due to the fact that in order to recognize the activities of catering services Ch. 26.3 of the Tax Code of the Russian Federation does not establish such a requirement as the sale of culinary products and confectionery products in the same place where they were produced. The main thing is that these products are sold through their own service network (Resolution of the Federal Antimonopoly Service of the West Siberian District of March 30, 2010 in case N A27-10571 / 2009).

Thus, if culinary products and (or) confectionery products are sold through kiosks, tents and culinary shops (departments) operating at a restaurant or cafe, then such activities are recognized as catering services.

If a cafe (restaurant) delivers its products to customers

Today, many restaurants (cafes) have small halls and cannot serve a large number of guests. Therefore, along with cooking, they often deliver ready meals. In this regard, the question arises: will such activities for the purposes of Ch. 26.3 of the Tax Code of the Russian Federation to be recognized as catering services? Since in this case conditions are not created for the consumption of manufactured products directly in the catering facility, entrepreneurial activity related to the delivery of ready-made meals to consumers does not correspond to the concept of "catering services" established by Art. 346.27 of the Tax Code of the Russian Federation, and cannot be transferred to the payment of UTII. Delivery-related transactions should be taxed under the general taxation system or the USN (Letters of the Ministry of Finance of Russia dated 10.12.2010 N 03-11-06 / 3/166, dated 12.07. dated 13.05.2010 N 03-11-11/133).

By the way, the sale of culinary products to take away, that is, without the consumption of these products on the spot, will also not be included in catering services for the purpose of paying UTII (Letter of the Ministry of Finance of Russia dated 06.12.2006 N 03-11-04 / 3/528).

Sale of purchased goods

In cafes and restaurants, in addition to products of their own production, purchased goods are often sold. To what kind of "imputed" type of activity should such a sale be attributed - to retail trade or catering services? The Presidium of the Supreme Arbitration Court of the Russian Federation in Decree N 17123/08 of 23.06.2009 indicated that the sale of purchased food products at retail through a public catering organization is an activity for the provision of public catering services. And the regulatory authorities attributed the sale of not only food, but also non-food products to public catering services. For example, in Letters No. 03-11-04/3/148 dated March 24, 2008 and No. 03-11-04/3/170 dated May 22, 2007, the Ministry of Finance of Russia indicated that the sale of purchased cigarettes and lighters through catering facilities refers to catering services and can be transferred to the payment of UTII.

Note that if ready-to-use non-alcoholic drinks and cocktails (milk, sour-milk, fermented, fruit, etc.) purchased for subsequent sale in the manufacturer’s packaging and packaging are sold through retail outlets, then this entrepreneurial activity is retail trade for the purpose of paying UTII (Letter Ministry of Finance of Russia dated December 17, 2009 N 03-11-09 / 403).

Sale of alcoholic products

As you know, when selling alcoholic products on the territory of the Russian Federation, companies should be guided by the norms of the Federal Law of November 22, 1995 N 171-FZ "On state regulation of the production and circulation of ethyl alcohol, alcoholic and alcohol-containing products" and the Rules for the sale of certain types of goods, approved by the Decree of the Government of the Russian Federation dated 19.01.1998 N 55.

Based on them, documents for alcoholic products (waybills and certificates for them, certificates of conformity and quality certificates) must be located directly at the outlet. The seller must be ready to present them at the first request of the buyer or the regulatory authority. Judicial practice also testifies to this (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 12, 2010 in case N A29-11272 / 2008).

As for the "imputed" public catering, it includes the sale in restaurants and cafes of only purchased alcoholic beverages and beer, both in the manufacturer's packaging and packaging, and without it (Letters of the Ministry of Finance of Russia dated 30.07.2009 N 03-11-06 / 3 / 199, of 16.06.2008 N 03-11-04/3/275 and of 17.12.2007 N 03-11-04/3/497). For more information on the taxation of the sale of alcoholic products, see Table. one.

Table 1. Taxation of the sale of alcoholic products shares

Kind of activity	Taxation system
Production of alcoholic products and beer and their subsequent sale through a catering facility	This type of activity is not no catering services nor retail trade for the purpose of paying UTII, therefore, from the income received must pay taxes within the general systems or USN
Sale of alcoholic products and beer of own production through a retail network
Implementation via object catering purchased alcoholic beverages and beer	to "imputed" public services food
Sales through retail network of purchased alcoholic products and beer	This type of activity is to "imputed" retail trade

Production of cocktails and soft drinks

Production and sale of non-alcoholic drinks and cocktails, except for phyto-cocktails obtained by mixing the relevant ingredients immediately before use in restaurants and cafes, are classified as catering services and are subject to taxation in the form of UTII.

Thus, freshly squeezed juices are produced by mechanical cooking of fruits and vegetables to give them new properties, which makes them suitable for consumption in the form of drinks. If subsequently these juices are sold through public catering facilities, then such activities are recognized as public catering services and transferred to the payment of UTII (Letter of the Ministry of Finance of Russia dated 04.28.2007 N 03-11-05 / 85).

But the preparation of teas, herbal cocktails, infusions, decoctions and other non-alcoholic beverages of plant origin used by visitors as strengthening medical drugs, according to the Russian Ministry of Finance, does not apply to public catering services (Letter of December 17, 2009 N 03-11-09 / 403 ). This is due to the fact that, in accordance with the All-Russian Classifier of Economic Activities, Products and Services (OKDP), the production and consumption of drinks using medicinal plant materials are classified as phytotherapy services (code 8512503), which must be provided by clinics and private doctors.

Note. OKDP approved by the Decree of the State Standard of Russia of 08/06/1993 N 17.

The sale of oxygen cocktails will also be taxed under the general regime or the simplified taxation system. Let's explain why. According to Appendix N 1 to the Nomenclature classifier of medical devices and medical equipment (medical devices), approved by the Order of Roszdravnadzor dated November 9, 2007 N 3731-Pr / 07, special medical equipment is used to prepare oxygen cocktails, namely an apparatus for preparing singlet-oxygen mixtures (cocktails) (code 168 4408). In addition, the State Register of Medicines of Roszdravnadzor defines the purpose of use and the recipe for an oxygen cocktail. Thus, an oxygen cocktail is recognized as a drug.

Organization of leisure in a cafe

Very often, the services of restaurants and cafes include activities to organize the leisure of visitors. And what about leisure services for the purpose of paying a single tax on imputed income? Let us turn to the All-Russian classifier of services to the population OK 002-93, approved by the Decree of the State Standard of Russia of June 28, 1993 N 163. According to its provisions, leisure services include the organization of music services, concerts, variety programs and video programs, the provision of newspapers, magazines, board games, gaming vending machines, billiards. A similar opinion is shared by the financial department (Letter of the Ministry of Finance of Russia dated August 31, 2006 N 03-11-04 / 3/399).

Note. The organization of leisure is not a mandatory criterion for classifying restaurants and cafes as UTII payers.

Take note. Payment for the public performance of musical works

So, restaurants and cafes, along with catering services, can provide leisure services for their visitors. Moreover, in relation to restaurants and cafes of the luxury class, the presence of a stage in which is a mandatory requirement, live music cannot be separated from public catering services (GOST R 50762-2007 "Public catering services. Classification of public catering establishments" approved by the Order of Rostekhregulirovanie dated December 27 .2007 N 475-st). Therefore, charging a separate fee for live music in these catering facilities is illegal.

It is worth noting that in other restaurants and cafes, charging for live music is a direct violation of paragraph 2 of Art. 16 of the Law of the Russian Federation of 07.02.1992 N 2300-1 "On Protection of Consumer Rights", since the opportunity to use catering services (ordering dishes) is made dependent on payment for live music.

An additional fee may be charged only for those services that the consumer can avoid without giving up the catering service. Therefore, when charging an additional fee for the public performance of musical works, if the visitor refuses to pay for this service, he must be offered another hall for the consumption of the ordered products.

However, for the recognition of leisure activities as catering services, it is not enough just to provide the above services. It is also necessary to take into account where the conditions for this are created (Table 2).

Table 2. Application of UTII in relation to leisure activities

Room features for leisure	Kind of activity	Taxation system
Venue for holding leisure constructively separated from the hall visitor service	Activity for leisure regarded as independent view entrepreneurial activities	Income received from implementation of the activities should be taxed under the general regime or USN
Site visitors catering can pass with snacks and (or) drinks in the premises for leisure or in these rooms are service tables	Activity for leisure regarded as accompanying services Catering	Activity for the organization of leisure visitors in this case recognized "imputed" services Catering

Determine the area of the customer service hall

As you know, a modern restaurant or cafe often includes not only a hall for the consumption of cooked products, but also a dressing room, many corridors, a kitchen, a billiard room, a bowling alley, a dance floor or a stage. Therefore, "imputers" often have a question about what premises are included in the area of the visitors' service hall when calculating UTII in relation to the provision of catering services. Let's try to figure it out.

According to Art. 346.27 of the Tax Code of the Russian Federation, the area of \u200b\u200bthe visitor service hall is understood as area of specially equipped premises(open areas) of a public catering facility intended for consumption finished culinary products, confectionery and (or) purchased goods, as well as for leisure. That is, areas where food consumption by visitors and their leisure activities (kitchen, places for serving dishes, utility rooms, etc.) are not provided for should not be taken into account in the area of \u200b\u200bthe visitor service hall (Letters of the Ministry of Finance of Russia dated 03.02.2009 N 03-11 -06/3/19 and dated 03/21/2008 N 03-11-04/3/143).

In order to determine the indicated area, one should use the inventory and title documents (Article 347.27 of the Tax Code of the Russian Federation).

Recall that inventory and title documents include any documents available to the taxpayer containing information about the purpose, design features and layout of the premises of such an object, as well as information that confirms the right to use this object. This can be both a contract for the sale of non-residential premises, a technical passport for non-residential premises, plans, diagrams, explications, as well as a lease (sublease) agreement for non-residential premises or its part (s), permission for the right to serve visitors in an open area and many others. the documents.

Thus, if the area of the visitor service hall is allocated in the documents, then it is this area that must be taken into account when calculating the single tax on imputed income. If a restaurant or cafe uses a smaller area than indicated in the documents, then UTII can be calculated from the actual area used. However, in this case, in order to avoid disputes with regulatory authorities, we advise you to conduct a technical inventory and make appropriate changes to the documents. That is, clearly indicate in them exactly what area is intended for food consumption and leisure activities for customers (Letter of the Ministry of Finance of Russia dated 01.25.2010 N 03-11-06 / 3/8).

Note. A similar opinion is shared by the judges (Resolutions of the Federal Antimonopoly Service of the West Siberian District of March 29, 2010 in case No. A45-13412 / 2009, the Federal Antimonopoly Service of the Volga District of July 15, 2010 in case No. A12-20984 / 2009 and the Federal Antimonopoly Service of the Central District of December 19, 2007 in case No. A36-1291/2007).

By the way, according to the arbitrators, taxpayers can confirm the actual use of the area of the catering facility with such documents as lease agreements, acts on redevelopment, repair or reconstruction, estimates of work performed, plans for leased premises (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated 08.10.2010 in the case N A27-673 / 2010 and the Federal Antimonopoly Service of the North Caucasus District dated January 26, 2010 in case N A63-5939 / 2009-C4-17).

When the Leisure Area is Included in the Visitors Hall Area

So, according to Art. 346.27 of the Tax Code of the Russian Federation, the area for leisure activities should be taken into account when determining the area of the service hall. However, this provision does not always apply. If the premises intended for the provision of leisure services, structurally isolated from the premises in which public catering services are directly provided, then the area of such premises not taken into account in the area of the visitors' service hall(Letters of the Ministry of Finance of Russia dated March 26, 2010 N 03-11-06 / 3/46, dated April 15, 2010 N 03-11-06 / 3/60 and dated August 31, 2006 N 03-11-04 / 3/399).

Thus, if, for example, a billiard room is separated from the customer service hall where food is consumed by partitions and visitors cannot eat there, then the area intended for playing billiards is not taken into account in the area of the customer service room.

Example 1 . OOO "Magnolia" provides catering services through the restaurant, which belongs to him on the right of ownership. The area of the restaurant, according to the inventory and title documents, is 185 square meters. m, of which the kitchen occupies 17 sq. m, utility rooms - 19 sq. m, cashier's place and showcase - 5 sq. m. Are catering services subject to the taxation system in the form of UTII in this case? If so, what area of the visitor service hall should be taken into account when calculating UTII?

Solution

In accordance with par. 20 st. 346.27 of the Tax Code of the Russian Federation, restaurants are catering facilities that have a customer service hall. Therefore, in order to apply UTII, it is necessary to have a visitor service hall of no more than 150 sq. m.

In accordance with the lease agreement, the entire occupied area is one catering facility. But since some of the premises are not used for eating and spending leisure time (kitchen, utility rooms, cashier's place and shop windows), the area of the visitors' service hall will be 144 sq. m (185 sq. m - 17 sq. m - 19 sq. m - 5 sq. m). Thus, in this case, the restaurant has the right to switch to a taxation system in the form of UTII.

UTII payable will be calculated on the basis of the physical indicator "the area of the visitor service hall (in square meters)" in the amount of 144 square meters. m.

If the restaurant (cafe) has several halls for serving visitors

In practice, such situations, when a restaurant or cafe uses several customer service halls to provide catering services, are quite common. How to determine the physical indicator in this case?

Based on the provisions of paragraphs. 8 p. 2 art. 346.26 of the Tax Code of the Russian Federation, the area of \u200b\u200bthe hall or halls for serving visitors must be determined as a whole for the catering facility.

Thus, if a restaurant or cafe has several halls for serving visitors, then when calculating UTII, the total area of \u200b\u200bthese halls will be taken into account (Letters of the Ministry of Finance of Russia dated 04/30/2009 N 03-11-06/3/116, dated 06/27/2008 N 03-11 -04/3/300 and dated 03/06/2007 N 03-11-04/3/63).

When considering disputes, judges accept the following circumstances as evidence that catering services are provided through one facility with several halls. Namely: the visitor service halls have common utility rooms, a common kitchen, common service personnel, a common cash register, etc. This conclusion is contained in the Resolutions of the Federal Antimonopoly Service of the North-Western District dated February 11, 2010 in case N A26-3172 / 2009 and the Federal Antimonopoly Service of the Moscow District dated 10/17/2007 No. КА-А41/9776-07.

If catering services are provided through several catering facilities, each of which has its own customer service hall, then when calculating UTII, the area of the customer service hall must be considered separately for each facility. The presence of several catering facilities can be established on the basis of inventory and title documents (Letter of the Ministry of Finance of Russia of March 30, 2007 N 03-11-04 / 3/98 and Resolution of the Federal Antimonopoly Service of the Volga District of June 16, 2009 in case N A57-16468 / 2008).

Example 2 . Appetite Center LLC, which provides catering services, owns a restaurant, on one floor of which there is a visitor service hall with an area of 148 sq. m, and on the other - an area of 63.7 sq. m. According to the inventory and title documents, these premises have a single entrance, a common kitchen, and common utility rooms. Can an organization switch to a taxation system in the form of UTII?

Solution

Since in this case, according to the inventory and title documents, the customer service rooms are located in one restaurant and have a single entrance, a common kitchen, and single utility rooms, for the purposes of applying the taxation system in the form of UTII, the area must be determined in total for two service rooms.

Thus, the total area of the customer service hall in the restaurant LLC "Center of Appetite" is 211.7 square meters. m (148 sq. m + 63.7 sq. m), that is, exceeds the established limit of 150 sq. m. m. Accordingly, the organization in relation to catering services is not entitled to switch to the payment of UTII.

We calculate the amount of the single tax

For activities related to the provision of catering services through restaurants and cafes, physical indicator is the area of the visitor service hall(in square meters) and the basic yield is set at 1,000 rubles. per month per square meter.

Example 3 . Let's use the conditions of example 1 and assume that the company provides catering services on the territory of the city of Velikiye Luki. Calculate the amount of UTII payable for the 1st quarter of 2011.

Solution

In 2011, the value of K1 is 1.372. The value of K2 in the territory of Velikie Luki for this type of activity is 0.77.

The tax base for UTII for the 1st quarter of 2011 is 456,382.08 rubles. . The amount of the calculated UTII will be 68,457.31 rubles. (456,382 rubles x 15%).

By the way, the company has the right to reduce the amount of UTII payable by the amount of paid insurance premiums and paid sickness benefits, but not more than 50%.