DI. Ryakhovsky, Vice-Rector for Quality and Advanced Technologies of the Institute of Economics and Crisis Management, Dr. econom. Sciences, Associate Professor
A.V. Kotsyuba, Master's student of the program "Tax and financial policy"Institute of Economics and Crisis Management, arbitration manager
Bankruptcy legislation is constantly being improved. Accordingly, the system of obligatory payments in various bankruptcy procedures is also changing. Therefore, the question of the order and priority of their payment does not lose its relevance.
When selling the property of debtors declared bankrupt, from October 1, 2011, VAT is calculated and paid to the budget by the buyers of the said property, since from that date it is the buyers who are recognized as tax agents for VAT. New rules were introduced by Federal Law No. 245-FZ of July 27, 2011 and are enshrined in clause 4.1 of Article 161 of the Tax Code of the Russian Federation.
According to the new rules when selling on site Russian Federation property and (or) property rights of debtors recognized in accordance with Russian legislation bankrupt, the tax base is determined as the amount of income from the sale of this property, including tax. In this case, the tax base is determined tax agent separately for each transaction for the sale of the specified property.
In this case, the buyers of the specified property and (or) property rights (with the exception of individuals not individual entrepreneurs), which are obliged to calculate VAT by the calculation method, withhold it from the income paid and pay the corresponding amount of tax to the budget. The tax base is defined as the amount of income from the sale of bankruptcy property, including VAT.
Thus, the new rules provide for the following procedure for a buyer acquiring bankrupt property.
Based on the price of the property being sold, taking into account the tax, the tax base for VAT is determined. The amount of tax should be determined on a computational basis, the tax rate is determined as percentage tax rate, provided for in clause or article 164 of the Tax Code of the Russian Federation, to the tax base taken at 100 and increased by the corresponding size of the tax rate.
For example, the sale price of a bankrupt's property is RUB 16,800,400, therefore, the tax base is RUB 16,800,400.
The calculation method calculates the amount of VAT to be paid to the budget. In this case, in accordance with paragraph 4 of Article 164 of the Tax Code of the Russian Federation, the tax base is multiplied by settlement rate 18/118 or 10/110. Based on the conditions of the example, the amount of VAT will be 2,562,772.88 rubles. (16 800 400 rubles x 18/118).
The calculated amount of VAT is withheld from the income paid and paid to the budget.
In accordance with paragraph 4 of Article 173 of the Tax Code of the Russian Federation, the amount of tax payable to the budget is calculated and paid in full by tax agents - buyers of the property of debtors who have been declared bankrupt. According to paragraph 3 of the same article, tax agents pay the calculated VAT at their location.
It should be said that paragraph 4 of Article 174 of the Tax Code of the Russian Federation establishes a special procedure for paying VAT for the sale of works (services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers. In accordance with this procedure, the tax is paid by the tax agent simultaneously with the payment (transfer) Money specified taxpayers. In other cases, VAT is paid to the budget by a tax agent in accordance with the procedure established by paragraph 1 of clause 1 of Article 174 of the Tax Code of the Russian Federation, for the expired tax period in equal shares no later than the 20th of each of the three months following the expired tax period.
Thus, when paying VAT by a tax agent on the acquired property of debtors declared bankrupt, it is necessary to be guided by the above norm Tax Code RF.
Although the bankruptcy administrators always have a question whether it is generally legitimate to withhold VAT from the proceeds from the sale of property included in the bankruptcy estate?
According to the Ministry of Finance of Russia, set out in a letter dated 11.06.2009 No. 03-07-11 / 155, when arbitration (bankruptcy) administrators fulfill the duties of tax agents, the rights of debtors and their creditors are not violated, since VAT is paid to the budget at the expense of property buyers.
But quite recently, the Presidium of the Supreme Arbitration Court of the Russian Federation (Resolution No. 439/11 of June 21, 2011) questioned the validity of this approach. Having considered the case in which the liquidator transferred VAT from the proceeds from the sale of property to the budget, former subject pledge, with which the pledge creditor (bank) categorically disagreed, the Supreme Arbitration Court of the Russian Federation made the following conclusions.
The first - imposing the obligation to pay VAT on organizations and entrepreneurs selling the debtor's property violated the provisions of the Bankruptcy Law. In this case, VAT must be paid by the debtor himself as a taxpayer within the time limits established by paragraph 1 of Article 174 of the Tax Code of the Russian Federation. At the same time, obligatory payments to the budget are paid in accordance with the priority established by the Bankruptcy Law.
In accordance with paragraph 2 of Article 134 of the Bankruptcy Law, the claim for the payment of these payments belongs to the fourth priority. The preferential satisfaction of the claim for the payment of VAT is inadmissible.
Second, the property being sold was the subject of a pledge, and during the allocation and payment of VAT, the arbitration manager violated the rights of the pledged creditor to receive satisfaction of the claim secured by the pledge in the established proportion, which is determined based on the entire amount received from the sale of the pledged property. The basis is paragraph 2 of Article 138 of the Bankruptcy Law.
The amendments made to the Tax Code of the Russian Federation, effective from October 1, 2011, did not solve the problem voiced in the aforementioned resolution of the Supreme Arbitration Court of the Russian Federation. VAT will continue to be paid from the proceeds from the sale of property constituting the bankruptcy estate, which means that the provisions of the Bankruptcy Law will be violated.
The situation even changed for the worse: if earlier the provisions of Chapter 21 of the Tax Code of the Russian Federation provided for the presentation of VAT in addition to market value property, now the amount of tax is determined by the buyer by calculation and is withheld from the income credited to the current account of the debtor. And the argument of the Russian Ministry of Finance that the rights of bankrupt debtors and their creditors are not violated seems even more dubious.
But to prove their innocence to both, apparently, will still have to in court. Only now organizations and individual entrepreneurs authorized to sell the property of bankrupt debtors will not be responsible for the priority satisfaction of VAT claims in violation of the Bankruptcy Law.
First, a bankrupt organization can switch to a simplified taxation system ( regulatory framework there are no restrictions for such a transition). Since the bankruptcy procedure, as a rule, does not take place in one tax period, a bankrupt organization has the right to write from October 1 to November 30 an application for the transition to a simplified taxation system and from January 1, applying the simplified taxation system, sell the bankruptcy estate without tax on Additional cost.
Secondly, a bankrupt organization can be exempted from the duties of a VAT payer in accordance with Article 145 of the Tax Code of the Russian Federation. Then the bankruptcy estate will also be sold without VAT.
Third, the sale of the bankruptcy estate should be carried out by individuals who are not individual entrepreneurs. However, when using this option, certain questions arise related to the complexity of the participation of these persons in electronic trading.
In the above three situations, when selling the bankruptcy estate, neither the seller nor the buyer has an obligation to pay VAT. True, such paths are not suitable for all bankrupt organizations. The use of the “simplified system” imposes significant restrictions on the amount of proceeds (for a bankrupt organization, the bankruptcy estate should not cost more than 60 million rubles, or the sale of the bankruptcy estate should take place over several tax periods) and does not allow the use of the mechanism for the transfer of losses to the future, provided for in Article 283 Tax Code of the Russian Federation. And the Tax Code of the Russian Federation provides for an even smaller amount of proceeds from sales - no more than 2 million rubles. for every three consecutive calendar months.
Tax Payment Procedure in Other Bankruptcy Proceedings
With other procedures (supervision, external control), the following disputes take place. From the moment of the introduction of supervision in an indisputable manner, on the basis of a collection order, only current requirements for mandatory payments can be fulfilled. The tax authority, fulfilling this prescription of the Bankruptcy Law, as well as paragraph 2 of Article 854 of the Civil Code of the Russian Federation, is obliged to indicate in the collection order the data confirming the classification of the collected taxes to the current (expiration date tax period).
In relation to current claims, tax payments, the compulsory collection period for which has already expired, while the tax authorities often indicate in the collection request not the period for which the payment is being collected, but the due date (later date).
When deciding on the moment of occurrence of a mandatory payment for the purpose of classifying the relevant claims as current or to be included in the register of creditors' claims, the following should be taken into account.
By virtue of paragraph 1 of Article 38 and paragraph 1 of Article 44 of the Tax Code of the Russian Federation, the obligation to calculate and pay tax arises for a taxpayer if he has an object of taxation and tax base.
The object of taxation as a set of taxable transactions (facts) is formed by the end of the tax period. At the same time, it is formed in relation not to individual financial and economic transactions or other facts that are significant for taxation, but to the totality of relevant transactions (facts) committed (occurred) during the tax period.
This means that the occurrence of the obligation to pay tax is determined by the presence of the object of taxation and the tax base, and not by the onset of the last date of the period during which the corresponding tax must be charged.
Federal Law No. 296-FZ of December 30, 2008 changed in the Bankruptcy Law the concept of current payments and the legal regime of obligations that arose before the initiation of bankruptcy proceedings, the deadlines for which were to come after the introduction of supervision. Based on the provisions of paragraph 5 of paragraph 1 of Article 4, paragraph 1 of Article 5 and paragraph 3 of Article 63 of the Bankruptcy Law as amended by Law No. 296-FZ, only monetary obligations and mandatory payments that have arisen after the initiation of a bankruptcy case are current. In this regard, monetary obligations and mandatory payments that arose before the initiation of a bankruptcy case, regardless of the term of their execution, are not current in any procedure.
If pecuniary obligation or obligatory payment arose before the initiation of a bankruptcy case, but the deadline for their execution should have come after the introduction of supervision, such requirements in their legal regime are similar to the requirements for which the due date has come on the date of introduction of supervision, therefore they are subject to the provisions of the new version of the Bankruptcy Law on claims, to be included in the register.
Payment of personal income tax
When resolving disputes arising from legal relations in which the debtor acts as a tax agent (for example, in relation to personal income tax), the following must be borne in mind.
Requirement for a tax agent who has not fulfilled the obligation to transfer to the budget withheld at source personal income tax payments, represents having a special legal nature a claim that does not fall under the notion of compulsory payment determined by the provisions of the Articles and the Bankruptcy Law and cannot be qualified as a demand for the payment of compulsory payments.
This requirement, regardless of the moment of its occurrence, is not included in the register of creditors' claims and is satisfied in accordance with the procedure established by tax legislation. Disputes arising from legal relations in which the debtor acts as a tax agent are considered outside the bankruptcy case.
Payment of penalties
The claim for payment of penalties accrued during the observation period for late payment of taxes (fees), the due date of which came before the adoption of the application for declaring the debtor bankrupt, is not current and must be satisfied in the manner prescribed by the Bankruptcy Law, since the main claim for payment of arrears is not current.
The rule on non-accrual of penalties applies only to claims for the payment of mandatory payments to be included in the debt repayment schedule, that is, those that are not current in the financial recovery procedure.
With regard to external management, the outlined approach is enshrined in paragraph 3 of paragraph 2 of Article 95 of the Bankruptcy Law.
When applying the rule provided for in paragraph 3 of paragraph 1 of Article 126 of the Bankruptcy Law on the termination of the accrual of penalties (fines, penalties), interest and other financial sanctions for all types of debtor's debt, the courts should proceed from the fact that this provision applies both to claims to be included in the register of creditors' claims, and to current claims that arose prior to the opening of bankruptcy proceedings.
Claims for penalties accrued during the bankruptcy proceedings in respect of compulsory payments arising after the opening of bankruptcy proceedings are satisfied in the same manner as the main claim for payment of arrears, that is, in the order established by paragraph 4 of Article 142 of the Bankruptcy Law.
Accordingly, the system of obligatory payments in various bankruptcy procedures is also changing. Therefore, the question of the order and priority of their payment does not lose its relevance. Pursuant to article 2 Federal law dated 26.10.2002 No. 127-FZ "On insolvency (bankruptcy)" (hereinafter referred to as the Bankruptcy Law): compulsory payments are taxes, fees and other compulsory contributions paid to the budget of the corresponding level budgetary system Of the Russian Federation and (or) state extrabudgetary funds in the manner and on the terms that are determined by the legislation of the Russian Federation, including fines, penalties and other sanctions for non-fulfillment or improper fulfillment of the obligation to pay taxes, fees and other mandatory contributions to the budget of the corresponding level of the budgetary system of the Russian Federation and (or) state extra-budgetary funds, as well as administrative fines and fines established by criminal law. Currently, in Russia, the vast majority of bankruptcy cases are considered in accordance with new edition Bankruptcy Law (as amended by Federal Law No. 429-FZ dated 28.12.2010.
The Supreme Arbitration Court of the Russian Federation has streamlined the queue of current payments in bankruptcy cases
But practice shows that what more money will be aimed at paying off current payments, the less will go to the registered creditors. Therefore, in bankruptcy procedures, it is important to ensure that current payments are used only for direct appointment, and not for the illegal enrichment of certain persons. When sending a request for a current payment, it is worth indicating the date of occurrence of the obligation. The leitmotif of Resolution No. 36 is the observance of the priority of current payments and the distribution of responsibility for its violation.Tax arrears in the event of a debtor's bankruptcy
Penalties and fines for personal income tax have also been charged. Will the debt on taxes, penalties and fines be considered current or should it be included in the register of creditors' claims, as it had arisen before filing an application with the arbitration court? For the purpose of applying bankruptcy legislation, taxes, fines, penalties are recognized as compulsory payments that relate to current payments, provided that they arise after the date of acceptance of the application for declaring the debtor bankrupt (Art. The company at first intermittently and then consistently is not able to satisfy creditor claims, including compulsory payments. Market economy for centuries it has been developing a system of diagnostics, control and certain protection of companies from collapse (bankruptcy system). Such an inevitable, in fact, economic procedure, reflecting the state of the national state economy countries are the most pressing problem for different states.Legal assistance in the field of taxation
In this regard, the tax legislation of Russia is rather complex. Instability, inconsistency, the presence of numerous gaps, ambiguities and uncertainties in the legislation on taxes and fees, sometimes different legal position of tax (financial) and judiciary on controversial tax issues, unfortunately, no one is surprised. Contacting a lawyer, a specialist in the field tax legislation, will allow you to avoid many difficulties and problems in the formation of your tax liabilities how organizations are in the process of maintaining economic activity and citizens, and in the event of disagreements with the tax authorities regarding the fulfillment of the tax obligation, the participation of a lawyer in tax process will provide competent protection of the rights and legitimate interests of the taxpayer in tax dispute in a court of general jurisdiction or in an arbitration court. Tax disputes often arise due to different interpretations by taxpayers and tax authorities of the current tax legislation.Priority of payments in bankruptcy
If the applicant did not manage to submit the application in time, his requirements may not be satisfied. Concepts The formation of a system of control and protection of organizations from financial collapse began in 1992 by the Decree of the President of Russia. Currently acting regulation is the Federal Law No. 127 dated 26.10.2002. This law determines the procedure for conducting bankruptcy proceedings and the sequence of payment of debts to creditors. Usually the bankruptcy process is initiated by creditors after the organization has failed to pay off the debt. If a company has large debts and is not able to cope with them on its own, then bankruptcy for them is a kind of defensive reaction.The insolvency process is handled by the bankruptcy commissioner.
The company is at the stage of bankruptcy. Already bankruptcy proceedings. What taxes should be paid and what not. Tax regime STS 6%. Yes, property is being sold 16:02:03, 28 January income from renting premises and what taxes to pay? And from the sale of property to pay off the register of creditors' claims.
Answer
Your question from 01/28/2016«»
Please note that... Consider assets under the new rules. Read the details in the magazine
Yes, the organization is obliged to reflect the income subject to taxation on the sale of property, constituting the bankruptcy estate to satisfy the claims of creditors.
At STS income are determined in the manner determined by Chapter 25 of the Tax Code of the Russian Federation.
For the purposes of Ch. 25 of the Tax Code of the Russian Federation, revenue from sales is recognized as revenue from the sale of goods (work, services) as own production, and previously acquired, proceeds from the sale of property rights (clause 1 of article 249 of the Tax Code of the Russian Federation).
Sales proceeds are determined based on all receipts associated with settlements for goods (work, services) sold or property rights expressed in cash and (or) in kind (clause 2 of article 249 of the Tax Code of the Russian Federation).
Thus, when the bankruptcy trustee sells the bankruptcy estate, the organization receives taxable income.
According to paragraph 8 of Art. 142 of the Law of October 26, 2002 No. 127-FZ, creditors 'claims can be settled by providing the debtor's property as compensation, which is not encumbered with a pledge, subject to the priority and proportionality of satisfying the creditors' claims.
The transfer of ownership of property (goods) under an agreement on compensation for tax purposes is recognized as an implementation (clauses 2, 3, article 38, clause 1, article 39 of the Tax Code of the Russian Federation).
When transferring property as compensation, the amount of income from its sale is determined as the amount of the compensation obligation terminated by the transfer (excluding VAT) (paragraph 3, clause 1 of article 105.3 of the Tax Code of the Russian Federation).
Thus, both when transferring property to creditors and when selling property to meet the claims of creditors, the company is obliged to reflect income.
The foregoing fully applies to the amount of rent received on the accounts of the enterprise, which is in the bankruptcy proceedings.
It is important to note that the norms of the Tax Code of the Russian Federation do not contain special rules on how the taxable base of an organization is calculated in the course of bankruptcy proceedings.
Therefore, until the exclusion of a bankrupt from the Unified State Register of Legal Entities, the organization must maintain tax accounting in full in its activities. The Tax Code of the Russian Federation and the Law of 26.10.2002 No. 127-FZ do not contain any indulgences for such organizations.
What to do with VAT and income tax if declared bankrupt has the organization sold the property in the course of bankruptcy proceedings?
VAT - pay or not?
Until November 24, 2014, in the previously valid version of the Tax Code of the Russian Federation, clause 4.1 of Article 161 provided for the obligation of the bankrupt debtor to calculate and pay VAT on the sale of property and (or) property rights.At the moment, according to sub. 15 p. 2 of Art. 146 of the Tax Code of the Russian Federation are not recognized as an object for the purposes of VAT taxation, transactions involving the sale of property and (or) property rights of debtors recognized as insolvent (bankrupt) in accordance with the legislation of the Russian Federation. According to paragraph 3 of Article 38 of the Code, any property sold or intended for sale is recognized as a commodity for tax purposes.
Thus, if the debtor organization is declared bankrupt, the income from the sale of its property is not subject to VAT.
This position is clarified by the Ministry of Finance (letter dated September 30, 2015 N 03-07-14 / 55736), FTS (letter dated August 17, 2016 N SD-4-3 / [email protected]) and is confirmed by judicial practice.
Income tax
Chapter 25 of the Tax Code "Income Tax" does not contain special requirements for the calculation and payment of income tax when selling the property of an organization declared bankrupt.For corporate income tax, the tax period is a calendar year. Reporting period- quarter, half year, 9 months.
Repayment of creditors' claims in this case is not an expense, because accounting policy is based on the movement of goods, and not on the movement of money.
The Federal Law "On Bankruptcy" establishes certain consequences and the order of satisfaction of creditors' claims within the framework of bankruptcy proceedings. In particular, out of turn, at the expense of the bankruptcy estate, the claims of creditors for current payments are paid mainly to creditors whose claims arose before the adoption of the application for declaring the debtor bankrupt.
For other current payments, claims are satisfied in the fifth order. This also applies to mandatory payments that arose after the date of acceptance of the application for declaring the debtor bankrupt. When resolving the issue of qualifying arrears for compulsory payments as current or registered, one should proceed from the end of the tax (reporting) period, as a result of which the debt was formed ("Review judicial practice, approved Presidium of the Supreme Court of the Russian Federation on 12/20/2016).
By virtue of paragraph 1 of Art. 38, paragraph 1 of Art. 44 of the Tax Code of the Russian Federation, the obligation to calculate and pay tax arises for a taxpayer if he has an object of taxation and a tax base. This means that the occurrence of the obligation to pay tax is determined by the presence of the object of taxation and the tax base, and not by the onset of the last day of the period during which the tax must be calculated and paid.
The end of the tax period after the court accepts the application for declaring the debtor bankrupt entails the qualification of the claim for payment of tax calculated based on the results of the tax period as the current one. So in this case tax authority has the right to satisfy its claims in the mode of current payments.
If the tax authority has filed claims for the payment of income tax from the sale of the property of a bankrupt organization in the process of bankruptcy proceedings, it must be satisfied in accordance with Article 134 of the Federal Law "On Bankruptcy" - out of turn at the expense of the bankruptcy estate.
The claim cannot arise earlier than the deadline for the payment of tax (Article 69 of the Tax Code of the Russian Federation). But what if the organization received income from the sale of property, and the arbitration court terminated the bankruptcy proceedings and liquidated the organization before the expiration of the period when the tax authority had the right to file a claim for the payment of income tax?
The FTS believes that upon completion of the bankruptcy proceedings before the expiration of the tax period, the bankruptcy administrator of the debtor, knowing that in connection with the sale of property an obligation to pay tax has arisen, is obliged, in accordance with paragraph 4 of Article 55 of the Tax Code of the Russian Federation, to apply to the tax authority in advance with an application for a change in the tax period. He must calculate and pay the amount of tax for the time from the date of the beginning of the tax period to the date of completion of the liquidation, acting at the same time to the detriment of the interests of other creditors.
In fact, this position is supported by the RF Armed Forces (definition of the RF Armed Forces of May 12, 2017 N 305-ES17-1599), the case on the claim of the FTS was sent for a new consideration, the first court hearing to the Moscow Arbitration Court appointed for August 31, 2017
Thus, if an organization declared bankrupt by an arbitration court, in the course of bankruptcy proceedings, sold the property:
- the income received is not subject to VAT;
- Income tax must be paid out of turn at the expense of the bankruptcy estate, and an attempt to complete the bankruptcy proceedings before the end of the tax period, without paying income tax, seems to be quite risky.
