What does it mean that the application is closed by patent? When an individual entrepreneur has a patent, but no business

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

DEPARTMENT OF TAX AND CUSTOMS TARIFF POLICY

LETTER

dated April 27, 2018 N 03-11-12/28952

The Department of Tax and Customs Policy has considered the appeal on issues related to the procedure for applying the patent tax system (hereinafter referred to as the PSN), and reports the following.

Paragraph 8 of Article 346.45 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) establishes that an individual entrepreneur is obliged to declare to the tax authority the loss of the right to apply PSN on the grounds specified in paragraph 6 of this article of the Code, or the termination of business activities in respect of which it is applied. PSN, within 10 calendar days from the date of occurrence of the circumstance that is the basis for the loss of the right to use PSN, or from the date of termination of business activity in respect of which PSN was applied.

An application for loss of the right to use the PSN is submitted to the tax authority with which the individual entrepreneur is registered as a taxpayer using the PSN. The form of this application is approved by the federal executive body authorized for control and supervision in the field of taxes and fees (Order of the Federal Tax Service of Russia dated July 11, 2017 N ММВ-7-3/544@).

Based on paragraph 1 of Article 346.49 of the Code, the tax period when applying PSN is recognized as a calendar year. If, on the basis of paragraph 5 of Article 346.45 of the Code, a patent is issued for a period of less than a calendar year, the tax period is the period for which the patent was issued. If an individual entrepreneur ceased business activities in respect of which the PSN was applied before the expiration of the patent, the tax period is recognized as the period from the beginning of the patent until the date of termination of such activities specified in the application submitted to the tax authority in accordance with paragraph 8 of Article 346.45 of the Code.

If an individual entrepreneur ceases to carry out a type of business activity in respect of which the PSN was applied, before the expiration of the patent, the amount of tax paid when applying the specified special tax regime is subject to recalculation based on the actual period of time for carrying out the specified type of business activity in calendar days.

If, during the recalculation, an individual entrepreneur who has paid the previously calculated amount of tax within the time limits established by paragraph 2 of Article 346.51 of the Code has an overpayment of tax, then he has the right, by submitting the appropriate application, to return it or offset it against the payment of other taxes in the manner prescribed by Article 78 of the Code , if there is an amount of tax to be paid additionally, then based on the current norms of the Code, the calculated amount of tax must be paid no later than the deadlines specified in the patent.

At the same time, we inform you that this letter from the Department does not contain legal norms, does not specify regulatory requirements and is not a regulatory legal act. Written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees are of an informational and explanatory nature and do not prevent taxpayers from being guided by the norms of the legislation of the Russian Federation on taxes and fees in an understanding that differs from the interpretation set out in this letter.

Deputy Director of the Department

An individual entrepreneur working under the patent tax system (PTS), like anyone else, can decide to stop his business at any time. If this happens when the patent is about to expire, there is no need to do anything special, the patent will be canceled automatically. If an entrepreneur wants to continue his activities with the same tax system, he will need a new patent with a new validity period. But if the patent continues to be valid, and the individual entrepreneur is going to “wind up”, what is the right thing to do so as not to get into trouble with the tax authorities?

Full step-by-step instructions for closing a patent by an individual entrepreneur on their own are in this article.

The tax office obliges

The patent tax system is a convenient and beneficial form of activity for entrepreneurs in certain regions, since individual entrepreneurs with a patent do not pay many taxes and fees typical for other types of tax systems, and there is also no requirement to provide regular reports and declarations that are mandatory for all other entrepreneurs. Additional conveniences include permission not to conduct accounting and not to use cash registers. The relationship between the tax office and individual entrepreneurs on the PSN is extremely transparent and as simplified as possible.

The only serious requirement put forward by the tax office to “patent holders,” in addition to timely payment of fees, is to correctly close tax reporting upon liquidation of an individual entrepreneur.

IMPORTANT! Violation of the procedure for closing an individual entrepreneur in the patent taxation system may result in the accrual of fines and penalties as a result of the occurrence of tax arrears.

Why close a patent early?

The question may arise: why take steps to close a patent? Perhaps it would be more logical to simply wait until the end of its validity period for automatic cancellation? Even if the activity is no longer being carried out, you just need to continue to conduct it. This path is possible, but in this case the entrepreneur will lose part of the cost of the patent that he paid earlier.

The Ministry of Finance of the Russian Federation explained that, according to the norms of paragraph 8 of Article 346.45 of the Tax Code of the Russian Federation, an individual entrepreneur must notify the tax authorities of the termination of activities under a patent or the loss of the right to it within one decade. If this period can be met, the individual entrepreneur receives the right to return part of the money spent on the patent.

FOR YOUR INFORMATION! Tax officials recalculate according to the following scheme: if the patent was issued for a year, you need to calculate what share of the interest rate corresponds to one month, that is, divide this number by 12, and then multiply by the number of months used. The resulting figure will show what share of the patent should be left in the budget, and the rest will be returned to the entrepreneur.

If the individual entrepreneur has not informed the tax office

If the individual entrepreneur does not provide this information to the tax authorities on time, then the patent continues to be considered valid until the expiration of the period for which it was issued. The individual entrepreneur must continue to make the required payments, otherwise there will be a delay, which entails, in addition to collection of the arrears, the accrual of a fine and penalty, and in addition a transfer to the general taxation system with the recalculation of all taxes from the date of issue of the patent.

Step-by-step algorithm for closing a patent

Many entrepreneurs believe that the process of liquidating an individual entrepreneur is too complicated to carry out on their own, and turn to specialists for this purpose. This opinion has especially taken root among businessmen who have chosen PSN for themselves, since their contacts with tax authorities in the process of work were minimal. Meanwhile, correct and consistent implementation of all steps guarantees the desired result without any problems or complications. An individual entrepreneur, including one with a patent, is quite capable of independently going through the entire closure process step by step.

Step 1. Preparing for closing. This point is typical for an entrepreneur in any tax system. You need to know exactly where to go and what you will need for this. PSN payers must clarify two important points:

• which regional department of the tax service they belong to;
• What details will you need to use to transfer the state duty for the liquidation of an individual entrepreneur?

Step 2. Preparing a patent waiver application. You can take the form to fill out from the tax office or download it yourself. Please note that this is the latest current version - form 26.5-4, approved by Order of the Federal Tax Service of December 14, 2012 No. ММВ-7-3/957. We remind you that the date on the application must be no later than 10 days from the date of actual cessation of business activity. This day will in the future be considered the moment of deregistration.

If you are worried about filling out the application correctly, you can use the services of professionals or special online services designed to assist in preparing such documentation. The documents generated in this way are checked by a lawyer, and if an error has crept in somewhere, he will send corrections and recommendations to the customer. The cost of such a service is lower than completely entrusting the liquidation of an individual entrepreneur to a third-party service.

Step 3. Payment of state duty. The individual entrepreneur must pay a fixed amount of 160 rubles according to the previously determined details (currently this is the state duty for this legally significant action). The receipt of payment must be kept.

Step 4. Submission of documents to the Federal Tax Service office. We clarify once again that to close you must have the following documents with you:

• a completed application in the prescribed form;
• receipt for payment of state duty;
• passport of an individual – individual entrepreneur.

NOTE! A personal signature on the application must be placed immediately before submission - its authenticity must be certified by a tax inspector.

After submitting the documents, the individual entrepreneur will receive a corresponding receipt from the inspector.

If it is not possible to bring documents to the tax office in person, this can be done in one of the ways authorized by law:

• entrust to another person (you will have to present a notarized power of attorney and identity card of the replacement person);
• send by mail with a description of the attachment and notification (in this case, the application form must also be certified by a notary).

Step 5. Obtaining an extract from the Unified State Register of Individual Entrepreneurs and a certificate of liquidation of the individual entrepreneur. After 5 days allocated by law for consideration of our application, another visit to the tax office will be required. Upon presentation of a passport, the tax inspector will issue an extract from the Unified State Register of Individual Entrepreneurs stating that the activity of this individual as an individual entrepreneur has been terminated. The second document received will be a certificate of state registration of termination of the activities of the individual entrepreneur.

ATTENTION! If a person does not appear for these papers within the prescribed period, the tax service will send them by mail, indicating the address listed in the registration papers of the individual entrepreneur.

Step 6. Submitting reports. To complete the liquidation smoothly, the individual entrepreneur must fully report to the tax authorities. The declaration must be submitted no later than the 25th day of the month following the month in which the patent was closed and the individual entrepreneur was liquidated. It does not matter whether the activity was carried out or no longer. Before this, you need to close the current account with the bank, if you had one, and also deregister the cash register if the entrepreneur still used it on the PSN.

PSN payers must clarify two important points:

• which regional department of the tax service they belong to;
• What details will you need to use to transfer the state duty for the liquidation of an individual entrepreneur?

Step 2. Preparing a patent waiver application. You can take the form to fill out from the tax office or download it yourself. Please note that this is the latest current version - form 26.5-4, approved by Order of the Federal Tax Service of December 14, 2012 No. ММВ-7-3/957. We remind you that the date on the application must be no later than 10 days from the date of actual cessation of business activity. This day will in the future be considered the moment of deregistration.

IP and psn. closure of one of the outlets on PSN

If an individual entrepreneur has ceased activities that have been transferred to the patent taxation system, then the value of the patent is recalculated based on the actual period of its use. But only if the individual entrepreneur filed an application to terminate activities before the patent expires.

The patent was paid in the amount of one third of the tax amount. In fact, the premises were rented out only for one month - February, and then the lease agreement was terminated by agreement of the parties.

How to properly close a patent

Info

Is it possible under the patent system for early voluntary termination or suspension of activities (if the entrepreneur has no orders or contracts are terminated)? S.B. Pakhalueva: An entrepreneur with a patent can voluntarily cease his activities.

Attention

No later than 10 calendar days after cessation of activity, he must report this to the tax office. 8 tbsp. 346.45 Tax Code of the Russian Federation. The tax period under the patent system for such an entrepreneur will begin on the day the patent begins to be valid and end on the day the patent activity is terminated.

In case of early termination of activity, the value of the patent is recalculated

FOR YOUR INFORMATION! Tax officials recalculate according to the following scheme: if the patent was issued for a year, you need to calculate what share of the interest rate corresponds to one month, that is, divide this number by 12, and then multiply by the number of months used. The resulting figure will show what share of the patent should be left in the budget, and the rest will be returned to the entrepreneur.

If the individual entrepreneur did not inform the tax office If the individual entrepreneur did not provide this information to the tax office on time, then the patent continues to be considered valid until the expiration of the period for which it was issued. The individual entrepreneur must continue to make the required payments, otherwise there will be a delay, which entails, in addition to collection of the arrears, the accrual of a fine and penalty, and in addition a transfer to the general taxation system with the recalculation of all taxes from the date of issue of the patent.

If a patent is terminated early, the individual entrepreneur may receive a recalculation of its value

Obtaining an extract from the Unified State Register of Individual Entrepreneurs and a certificate of liquidation of the individual entrepreneur. After 5 days allocated by law for consideration of our application, another visit to the tax office will be required.
Upon presentation of a passport, the tax inspector will issue an extract from the Unified State Register of Individual Entrepreneurs stating that the activity of this individual as an individual entrepreneur has been terminated. The second document received will be a certificate of state registration of termination of the activities of the individual entrepreneur. ATTENTION! If a person does not appear for these papers within the prescribed period, the tax service will send them by mail, indicating the address listed in the registration papers of the individual entrepreneur. Step 6. Submitting reports. To complete the liquidation smoothly, the individual entrepreneur must fully report to the tax authorities.
The declaration must be submitted no later than the 25th day of the month following the month in which the patent was closed and the individual entrepreneur was liquidated.

Procedure for closing a patent

PSN. The individual entrepreneur must decide independently which method of terminating activities to choose in this situation. Regardless of the chosen method of terminating the activities of the individual entrepreneur, he is obliged to notify the tax authority about the loss of the right to use the PSN, or about the termination of the activity in respect of which the PSN was applied, within 10 calendar days from the date of the occurrence of the circumstance that is the basis for the loss of the right to use the PSN, or from the date of termination of business activity in respect of which the PSN was applied (clause 8 of Article 346.45 of the Tax Code of the Russian Federation). In this case, the circumstance that is the basis for the loss of the right to use PSN may be failure to pay the remaining amount of tax to the budget.

It is better not to violate the rules of working on a patent

The Tax Code of the Russian Federation states that if an entrepreneur prematurely terminates the activity of applying the PSN, the tax period for him will be the time from the beginning of the patent until the date of termination of such activity specified in the application. In such a situation, the entrepreneur will not have to calculate taxes under the general taxation regime for individual entrepreneurs for the period from the start of the PSN to the date of termination of such activities.

However, the tax authority can recalculate the tax on the PSN based on the actual number of days of application of the PSN and require payment of additional tax to the budget (although the calculation of tax based on the number of days of application of the PSN is not provided for in Chapter 26.5 of the Tax Code of the Russian Federation). Thus, an individual entrepreneur has the right to stop using PSN before the expiration of the patent in two cases (clause

3 letters from the Federal Tax Service dated 02/11/2013 N ED-3-3/447): 1. if he has lost the right to use the PSN (due to non-payment of the required amount of tax); 2.

If you are worried about filling out the application correctly, you can use the services of professionals or special online services designed to assist in preparing such documentation. The documents generated in this way are checked by a lawyer, and if an error has crept in somewhere, he will send corrections and recommendations to the customer.

The cost of such a service is lower than completely entrusting the liquidation of an individual entrepreneur to a third-party service. Step 3. Payment of state duty. The individual entrepreneur must pay a fixed amount of 160 rubles according to the previously determined details (currently this is the state duty for this legally significant action).

The receipt of payment must be kept. Step 4. Submission of documents to the Federal Tax Service office.
Is it possible to recalculate the cost of tax based on the actual rental period? And is it necessary to pay the rest of the tax if the income was received only for 1 month? The tax period when applying the patent tax system can be calculated differently. This may be a calendar year, the validity period of the patent (less than a year), or the period from the beginning of the patent to the date of termination of business activity (Article 346.49 of the Tax Code of the Russian Federation). Accordingly, upon termination of an activity transferred to the patent taxation system before the expiration of the patent, its value is recalculated based on the actual period of time for carrying out the activity in calendar days.

The closure of one store under the patent of another remains

Now, if the individual entrepreneur stopped all trade altogether, then this would be a termination of activity and the value of the patents could be recalculated. And then there would be a condition that when resuming an activity, a patent can only be purchased from the new year, but it is not mandatory - I have read that this is not possible, since there is only one type of activity, then you need to use either a patent everywhere, or another system. There is no UTII in Moscow, so the point in Moscow cannot, in principle, be on UTII and you have no problems with this individual entrepreneur Anna_1981 03/03/2016, 16:25 For me, the main question is: do the rest of the stores in other districts of Moscow remain under patent or are they going away? Can I apply UTII in the Moscow Region, since it is another subject of the Russian Federation? Or is it just in Moscow for a patent and in the Moscow Region too? Nad.K 03/03/2016, 18:03 For me, the main question is, do the remaining stores in other districts of Moscow remain under patent or are they going under? They remain, of course.

• We meet Patent 2013, No. 23
• An entrepreneur changes his “registration” address: what needs to be done, No. 22
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• How an Entrepreneur Can Turn Proceeds into Personal Cash, No. 19
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• How to properly reduce the cost of a “simplified” patent for insurance premiums, No. 11
• An entrepreneur hires workers: where and when he needs to register, No. 11
• The entrepreneur died - the accountant remained, No. 8
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2011

On this page:

• The tax office obliges
• Why close a patent early?
• If the individual entrepreneur has not informed the tax office
• Step-by-step algorithm for closing a patent

An individual entrepreneur working under the patent tax system (PTS), like anyone else, can decide to stop his business at any time. If this happens when the patent is about to expire, there is no need to do anything special, the patent will be canceled automatically. If an entrepreneur wants to continue his activities with the same tax system, he will need a new patent with a new validity period. But if the patent continues to be valid, and the individual entrepreneur is going to “wind up”, what is the right thing to do so as not to get into trouble with the tax authorities? Full step-by-step instructions for closing a patent by an individual entrepreneur on their own are in this article.

There is no such thing as suspension of “patent” activity. But an entrepreneur can simply stop conducting activities in respect of which the PSN is applied, even if the patent has not yet expired.

The reasons may be different. For example, the lease agreement for the only facility in which trade was carried out or services were provided was terminated, there are no orders, etc. Then, within 10 calendar days after the termination of activities, the individual entrepreneur must report this to the inspectorate by submitting an application in form N 26.5-4 (Clause 8 of Article 346.45 of the Tax Code of the Russian Federation; Appendix No. 4 to the Order of the Federal Tax Service of Russia dated December 14, 2012 N ММВ-7- 3/957@). The tax period for PSN in this case will begin from the first day of the patent’s validity period and end on the day of termination of the “patent” activity specified in the application.

You need to understand that if you have, for example, three stores on PSN, then trading through each store, for which a separate patent has been received, will be considered as an independent type of activity. That is, by ceasing trading in any of the stores before the patent expires, you can inform the tax authorities about the termination of activities under this patent.

If you received one patent for two retail outlets, but actually operated in only one, the patent will still have to be paid in full, and not in the amount of 50% of its cost (Letter of the Federal Tax Service of Russia dated December 11, 2015 N SD-3-3/4725 @). Indeed, for early termination of the application of PSN for ongoing activities in 2017, there are only two grounds left (Clause 6 of Article 346.45 of the Tax Code of the Russian Federation):

— since the beginning of the calendar year, the income of individual entrepreneurs from all types of “patent” activities has exceeded 60 million rubles;

— the average number of employees during the tax period under a patent exceeded 15 people.

Patent payment

If the individual entrepreneur has fully paid for it by the time the activity under the patent ceases, then the tax authorities will not have any questions for him. Moreover, having received an application in Form N 26.5-4, the inspectorate is obliged to recalculate the cost of the patent based on the actual period of “patent” activity in calendar days. If it turns out that a businessman overpaid the tax on a patent, then the overpayment can be returned or offset against the payment of other taxes in the usual manner (Letter of the Ministry of Finance of Russia dated May 25, 2016 N 03-11-11/29934).

It often happens that the patent is not fully paid for. Then the individual entrepreneur must also pay extra only for the actual time of work under the patent, that is, for the period up to and including the day of termination of activity specified by him in the application.

An individual entrepreneur may stop applying the patent taxation system in the following cases:

A) voluntary decision to cease carrying out business activities in respect of which the patent taxation system was applied, before the expiration of the patent. If an individual entrepreneur ceased business activities in respect of which the patent tax system was applied before the expiration of the patent, the tax period is recognized as the period from the beginning of the validity of the patent until the date of termination of such activities specified in the application submitted to the tax authority in accordance with paragraph 8 of Art. . 346.45 of the Tax Code of the Russian Federation (clause 3 of Article 346.49 of the Tax Code of the Russian Federation).

The recommended form “Application for termination of business activities in respect of which the patent tax system was applied (form No. 26.5-4)” is given in Order of the Federal Tax Service of Russia dated December 14, 2012 No. ММВ-7-3/957@.

Deregistration with the tax authority of an individual entrepreneur applying the patent taxation system is carried out within 5 days from the date of expiration of the patent (clause 2 of Article 346.46 of the Tax Code of the Russian Federation).

If an individual entrepreneur ceases to carry out a type of business activity in respect of which the patent tax system was applied, before the expiration of the patent, the amount of tax paid when applying the specified special tax regime is subject to recalculation based on the actual period of time for carrying out the specified type of business activity in calendar days ( letter of the Ministry of Finance of Russia dated October 15, 2013 No. 03-11-12/42971).

Moreover, if, during recalculation, an individual entrepreneur who paid in accordance with clause 2 of Art. 346.51 of the Tax Code of the Russian Federation, the deadlines for the previously calculated amount of tax appear:

- overpayment of tax, then he has the right, by submitting an appropriate application, to return it or offset it against the payment of other taxes in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation;

– the amount of tax to be paid additionally, then, based on the current norms of the Tax Code of the Russian Federation, the calculated amount of tax must be paid no later than the deadlines specified in the patent;

EXAMPLE

In 2015, an individual entrepreneur acquired a patent for the type of activity “Repair and maintenance of household radio-electronic equipment, household machines and household appliances, watches, repair and manufacture of metal products, replacement of batteries in electronic watches and other devices” for implementation in Moscow.

The amount of potential annual income for the type of activity declared by the entrepreneur amounted to 600,000 rubles.

The cost of the patent was 30,000 rubles (600,000 rubles x 6%: 12 x 10).

The first part of the cost of the patent in the amount of 10,000 rubles

On July 1, 2015, I. I. Ivanov stopped carrying out the activities declared upon receipt of the patent. He notified the tax office about this on July 2, 2015.

Since the tax period turned out to be less than 10 months (i.e., the period for which the patent was received), the individual entrepreneur must recalculate the amount of tax (the cost of the patent) in proportion to the number of calendar days during which he actually carried out his activities.

Initially, the tax period for a patent was 305 calendar days (from March 1 to December 31, 2015).

In fact, the individual entrepreneur operated from March 1 to July 2, 2015, that is, 124 calendar days.

The cost of the patent for the period of business activity was: 12,196.72 rubles (30,000 rubles: 305 days x 124 days).

Since Ivanov I.I. transferred an amount of 10,000 rubles to the budget, the difference in the amount of 2,196.72 rubles (12,196.72 rubles - 10,000 rubles) is subject to additional payment on July 3, 2015.

B) loss by an individual entrepreneur of the right to use the patent taxation system. According to the provisions of paragraph 6 of Art. 346.45 of the Tax Code of the Russian Federation, an individual entrepreneur is considered to have lost the right to use the patent taxation system and switched to the general taxation regime from the beginning of the tax period for which he was issued a patent in the case of:

1) if, from the beginning of the calendar year, the taxpayer’s income from sales, determined in accordance with Art. 249 of the Tax Code of the Russian Federation, for all types of business activities in respect of which the patent taxation system is applied, exceeded 60 million rubles.

Moreover, if an individual entrepreneur simultaneously applies the simplified tax system and the patent taxation system, then in order to comply with the limit on the amount of income limit set at 60 million rubles, income under both of these special tax regimes is taken into account, and within the framework of the patent taxation system, income under all types of business activities in respect of which the patent taxation system is applied.

Order of the Ministry of Economic Development of Russia dated October 29, 2014 No. 685 “On the establishment of deflator coefficients for 2015” established the deflator coefficient required for the purposes of applying Chapter 26.2 “Simplified Taxation System” and Chapter 26.5 “Patent Taxation System” of the Tax Code of the Russian Federation, equal to 1.147 .

Thus, for individual entrepreneurs using the simplified taxation system and the patent taxation system, the maximum amount of income for the tax (reporting) period of 2015 should not exceed 68.820 million rubles. (60 million rubles x 1.147) (letter of the Ministry of Finance of Russia dated February 20, 2015 No. 03-11-12/8135);

2) if during the tax period the taxpayer failed to comply with the requirement established by clause 5 of Art. 346.43 of the Tax Code of the Russian Federation.

Clause 5 of Art. 346.43 of the Tax Code of the Russian Federation establishes that when applying the patent taxation system, an individual entrepreneur has the right to attract employees, including under civil contracts. At the same time, the average number of employees, determined in the manner established by the federal executive body authorized in the field of statistics, should not exceed 15 people during the tax period for all types of business activities carried out by an individual entrepreneur.

At the same time, the individual entrepreneur himself is not included in the calculation of the number of employees.

Instructions for filling out federal statistical observation forms: No. P-1 “Information on the production and shipment of goods and services”, No. P-2 “Information on investments in non-financial assets”, No. P-3 “Information on the financial condition of the organization”, No. P -4 “Information on the number and wages of employees”, No. P-5(m) “Basic information on the organization’s activities” was approved by Rosstat Order No. 428 dated October 28, 2013.

It should be borne in mind that if the patent specifies a certain number of indicators (average number of employees, number (area) of objects, etc.), and during the tax period there was an increase in such indicators, then for the purposes of applying the patent system taxation in relation to new indicators, an individual entrepreneur has the right to obtain a new patent or apply a different taxation regime in relation to them. Moreover, in the event of a decrease in indicators, tax recalculation within the framework of the patent taxation system is not provided.

Accordingly, an individual entrepreneur who has received a patent, which indicates a certain number of indicators (average number of employees, number (area) of objects, etc.), cannot independently recalculate the value of the received patent due to an increase in the number of such indicators, in particular with an increase in the number of hired workers (letter of the Ministry of Finance of Russia dated April 29, 2013 No. 03-11-11/14921).

Please note that the amount of annual income potentially received by an individual entrepreneur for each type of business activity in respect of which the patent tax system is applied can be established:

a) depending on the average number of employees;

b) or without taking into account the average number of employees.

For example, Regional Law of the Novgorod Region dated October 31, 2012 No. 149-OZ “On the Patent Taxation System” established the following amounts of potential annual income for an individual entrepreneur to receive by type of activity - hairdressing and cosmetic services if this type of activity is carried out:

– without hiring employees – 250,000 rubles;

– up to 3 employees, inclusive – 375,000 rubles;

– over 3 to 10 employees, inclusive – 750,000 rubles;

– over 10 to 15 employees, inclusive – 1,067,000 rubles.

At the same time, in the Moscow Law of October 31, 2012 No. 53 “On the Patent Taxation System”, the amount of annual income potentially received by an individual entrepreneur in relation to activities in the provision of hairdressing and cosmetic services is established without taking into account the average number of employees and is 900,000 rubles .

Based on the foregoing, the question arises as to whether in all cases a change in the average number of employees can affect the loss of the right by an individual entrepreneur to use the patent taxation system.

EXAMPLE

An individual entrepreneur applied to the Moscow tax office to obtain a patent for the type of business activity - provision of hairdressing and cosmetic services. The patent validity period is 8 months.

In the application for a patent, the individual entrepreneur indicated the number of employees he has - 12 people. However, after 2 months of activity, the number of employees of an individual entrepreneur amounted to 15 people.

From Art. 1 of Moscow Law No. 53, the potential annual income for the type of business activity “Hairdressing and cosmetic services” is 900,000 rubles.

For types of business activities for which the amount of annual income potentially received by an individual entrepreneur established by a constituent entity of the Russian Federation does not depend on the average number of employees, changes in the number of employees during the tax period are not taken into account.

Due to the fact that the Moscow Law of October 31, 2012 No. 53 “On the Patent Taxation System”, the amount of annual income potentially received by an individual entrepreneur in relation to activities in the provision of hairdressing services is established without taking into account the average number of employees, the average number of hired employees from 12 to 15 people, an individual entrepreneur does not lose the right to use the patent tax system in connection with such an increase (letter of the Ministry of Finance of Russia dated February 8, 2013 No. 03-11-12/19).

An exception to the above procedure is the restrictions established by Chapter 26.5 of the Tax Code of the Russian Federation on the average number of employees, which are the basis for the loss of the right to use the patent tax system (letter of the Ministry of Finance of Russia dated February 8, 2013 No. 03-11-12/19);

3) if the taxpayer did not pay the tax within the time limits established by clause 2 of Art. 346. Tax Code of the Russian Federation.

Please note that the above list of conditions, subject to which it is possible to apply the patent taxation system, does not indicate restrictions on the cost of fixed assets. This distinguishes the conditions that must be met for the application of the patent taxation system from the conditions established for taxpayers using the simplified tax system.

Let us recall that in accordance with paragraphs. 16 clause 3 art. 346.12 of the Tax Code of the Russian Federation does not have the right to apply the simplified tax system to organizations whose residual value of fixed assets, determined in accordance with the legislation of the Russian Federation on accounting, exceeds 100 million rubles. For the purposes of this subclause, fixed assets that are subject to depreciation and are recognized as depreciable property are taken into account in accordance with Chapter 25 of the Tax Code of the Russian Federation. This rule does not apply to individual entrepreneurs.

At the same time, according to paragraph 4 of Art. 346.13 of the Tax Code of the Russian Federation, if based on the results of the reporting (tax) period, the taxpayer’s income, determined in accordance with Art. 346.15 of the Tax Code of the Russian Federation and paragraphs. 1 and 3 paragraphs 1 art. 346.25 of the Tax Code of the Russian Federation, exceeded 60 million rubles and (or) during the reporting (tax) period there was a non-compliance with the requirements established by paragraph 3 and paragraph 4 of Art. 346.12 and paragraph 3 of Art. 346.14 of the Tax Code of the Russian Federation, such a taxpayer (both an organization and an individual entrepreneur) is considered to have lost the right to apply the simplified tax system from the beginning of the quarter in which the specified excess and (or) non-compliance with the specified requirements was allowed.

In contrast to the above procedure for the loss of the right to use the simplified tax system, subject to all other conditions provided for in Chapter 26.5 of the Tax Code of the Russian Federation, an individual entrepreneur, if he has a fixed asset worth more than 100 million rubles, has the right to apply the patent taxation system in relation to business activities for leasing residential and non-residential premises owned by him (letter of the Ministry of Finance of Russia dated February 13, 2015 No. 03-11-12/6555).

By virtue of clause 8 of Art. 346.45 of the Tax Code of the Russian Federation, an individual entrepreneur is obliged to declare to the tax authority the loss of the right to use the patent taxation system on the grounds specified in paragraph 6 of Art. 346.45 of the Tax Code of the Russian Federation, and on the transition to a general taxation regime within 10 calendar days from the date of occurrence of the circumstance that is the basis for the loss of the right to use the patent taxation system.

According to paragraph 7 of Art. 346.45 of the Tax Code of the Russian Federation, the amount of taxes payable in accordance with the general taxation regime for the period in which an individual entrepreneur lost the right to use the patent taxation system on the grounds specified in paragraph 6 of Art. 346.45 of the Tax Code of the Russian Federation, provided for by the legislation of the Russian Federation on taxes and fees for newly registered individual entrepreneurs. At the same time, these individual entrepreneurs do not pay penalties in case of late payment of advance payments of taxes payable in accordance with the general taxation regime during the period for which the patent was issued.

The amount of personal income tax payable for the tax period in which an individual entrepreneur lost the right to use the patent tax system in accordance with clause 6 of Art. 346.45 of the Tax Code of the Russian Federation, is reduced by the amount of tax paid in connection with the use of the patent tax system.

After an individual entrepreneur loses the right to use the patent taxation system, the tax that was not paid (in whole or in part) within the framework of the specified taxation system is not subject to recovery.

At the same time, the taxpayer’s untimely submission of the said application does not cancel the onset of the consequences provided for in clauses 6 and 7 of Art. 346.45 of the Tax Code of the Russian Federation. Therefore, an individual entrepreneur who has not submitted this application within the prescribed period must fulfill his obligations to pay taxes in accordance with the general taxation regime for the period from the date of commencement of the patent to the date of occurrence of the circumstance serving as the basis for the loss of the right to use the patent taxation system.

Thus, in the event of loss of the right to use the patent taxation system due to failure to pay tax (full or partial) within the established time frame, an individual entrepreneur from the beginning of the tax period for which he was issued a patent becomes obligated to calculate and pay taxes under the general regime taxation. In this regard, after an individual entrepreneur loses the right to use the patent taxation system, the tax that he did not pay (in whole or in part) during the period of application of the patent taxation system is not subject to recovery.

If a taxpayer has received 2 or more patents for the right to apply the patent taxation system and has not paid (in whole or in part) the tax on one of the patents, he is considered to have lost the right to use the patent taxation system and transferred to the general taxation regime only for that patent, tax for which they were not paid (in whole or in part).

Deregistration with the tax authority of an individual entrepreneur who has lost the right to use the patent taxation system and has switched to the general taxation regime or has ceased business activities in respect of which the patent taxation system is applied is carried out within 5 days:

a) from the date the tax authority receives the application submitted to the tax authority in accordance with clause 8 of Art. 346.45 of the Tax Code of the Russian Federation;

b) or a message from the tax authority that accepted such an application about the loss of the taxpayer’s right to use the patent tax system;

c) or in the case provided for in paragraphs. 3 paragraph 6 art. 346.45 of the Tax Code of the Russian Federation, from the date of expiration of the tax payment period.

The date of deregistration of an individual entrepreneur with the tax authority is the date of transition of the individual entrepreneur to the general taxation regime or the date of termination of entrepreneurial activity in respect of which the patent tax system was applied (clause 3 of Article 346.46 of the Tax Code of the Russian Federation).