When the imputator can sell goods to legal entities at retail
An organization or entrepreneur engaged in retail trade may apply subject to the conditions specified in paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. Let us remind you that the single tax on imputed income is regional. And you can switch to paying it voluntarily if you are engaged in those types of activities for which in the form of UTII the relevant law of the subject of the Russian Federation of the region in which you work.

A single tax on imputed income can be a sufficient tax regime, since the amount of the tax is known in advance and does not depend on real income. In addition, there is no need to use cash register equipment, which is also perceived by many as a definite plus (clause 2.1 of Article 2 of the Federal Law of May 22, 2003 No. 54-FZ).

However, if, in addition to the activities transferred to the taxation system in the form of UTII, you are also engaged in other types of business, for them you must apply other tax regimes - “simplified” or a general taxation system.

It’s good if you know in advance which business is subject to which taxes, and immediately pay all the required payments. It’s not very pleasant when you find out that you have an obligation to pay additional taxes after the fact. After all, then the need to pay fines is added to the amount of additional accrued payments.

Thus, UTII payers who trade in the sale of goods to legal entities may be required to pay taxes under the general taxation system if inspectors classify any transaction as wholesale trade.

This is exactly what we will talk about in this article - sales to legal entities with UTII are safe for the “imputed”, and when not. What should a UTII payer pay attention to and how to insure yourself in case of inspectors.

What type of trade is retail?

As we have already said, you can pay a single tax on imputed income if you trade retail. Wholesale sales are not transferred to this special regime (subclauses 6 and 7 of Article 346.26 of the Tax Code of the Russian Federation).

Accordingly, the first question to which you need to know the answer is: how does retail trade differ from wholesale? Article 346.27 of the Tax Code of the Russian Federation states that retail trade includes activities that are carried out under retail purchase and sale agreements. That is, the key point is the execution of a retail contract.

The main distinguishing feature of a retail contract is the purpose of further use of the goods by the buyer. Thus, under a retail agreement, you can sell goods only for personal use not related to commercial activities (clause 1 of Article 492 of the Civil Code of the Russian Federation). And here it doesn’t matter to whom exactly you are selling - an individual or a legal entity. He made this conclusion in his letters dated July 24, 2013 No. 03-11-11/29238 and dated July 22, 2013 No. 03-11-06/3/28611. Similar information is given in paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157. That is, the main thing is that the valuables should be used for a person’s personal consumption or to support the activities of a company, and not purchased for sale. Then the key features of a retail sales contract are preserved for you (clause 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 No. 18).

But if your buyer intends to use the purchased goods for resale (or processing with subsequent resale), then you cannot enter into a retail contract with him. In this case, this will already be a supply agreement and you will lose the right to apply “imputation” (resolutions of the Federal Antimonopoly Service of the Ural District dated June 25, 2012 No. F09-5408/12, Federal Antimonopoly Service of the Central District dated August 22, 2011 No. A35-6752/2010 and dated February 22, 2011 No. A62-1684/2010).

It is clear that you cannot control how the buyer will use the product in the future. Only tax officials can find out this during counter audits. Therefore, there is a kind of presumption of innocence here. If you have retail trade through stores or pavilions with an area of no more than 150 square meters and you are a UTII payer, then you are not obliged to control how the buyer will use the product (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03/05/2013 No. 157). You are required to document the transaction as a retail purchase and sale agreement. And if this condition is met, how the buyer uses the purchased value is his business.

What documents confirm the conclusion of a retail contract?

So, we found out that retail is the sale of goods only for personal consumption, and its key feature is retail purchase and sale. How exactly should it be formatted?

In accordance with Article 493 of the Civil Code of the Russian Federation, a retail contract is considered concluded at the time of issuance of a cash receipt, sales receipt or strict reporting form. At the same time, a written form of the contract is not required if your buyer pays at the time of the transaction (Clause 2 of Article 159 of the Civil Code of the Russian Federation). Accordingly, if an individual buys something from you, paying in cash or by card, this is a sign that a retail purchase and sale agreement has been concluded.

Please note that UTII payers may not use cash register equipment when selling goods at retail (Clause 2.1, Article 2 of Federal Law No. 54-FZ of May 22, 2003). It is enough to issue a document that confirms payment (sales receipt, etc.), and this should be done only at the request of the buyer.

Accordingly, the retail purchase and sale agreement in this case will be concluded at the moment when you received money from the buyer and issued him, for example, a sales receipt. But even if you do not issue the buyer any documents at all, the retail contract will still be concluded at the time of transfer of money (Article 493 of the Civil Code of the Russian Federation).

When is a written retail purchase and sale agreement required?

So, if your buyer is an individual, there are no problems with documents. Another question is when, for example, a legal entity wants to purchase goods from you for personal consumption and pay by bank transfer. For you, the signs of a retail purchase and sale agreement in this case are preserved (letters of the Ministry of Finance of Russia dated July 24, 2013 No. 03-11-11/29238 and dated July 22, 2013 No. 03-11-06/3/28611, information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03/05/2013 No. 157). However, a retail contract must be concluded in writing. Because payment does not occur at the time of the transaction (Clause 2 of Article 159 of the Civil Code of the Russian Federation).

Specialists of the Ministry of Russia, in their letters dated 07/09/2012 No. 03-11-11/205 and dated 03/07/2012 No. 03-11-11/78, remind that a retail purchase and sale agreement should not contain signs of a supply agreement. Then the sale of goods to a legal entity, including by bank transfer, will not lead to the loss of the right to pay UTII.

We have provided information on how wholesale and retail contracts differ from each other in the table.

Table Differences between wholesale and retail sales contracts

No.	Terms of the agreement	Supply contract	Retail contract
	Product name and quantity	Must contain these two conditions, as they apply to any purchase and sale agreement (Article 455 of the Civil Code of the Russian Federation)
	Delivery times
	Product price	(Article 485 of the Civil Code of the Russian Federation)
	Information about the configuration, characteristics, operating conditions, term, etc.	Not a requirement
	Terms, period, delivery schedule, in what batches the goods are supplied
	Delivery and shipment procedure
	Terms of delivery of goods
	Procedure for acceptance of goods by the buyer
	Procedure and form of payments
	Product range
	Conditions for replenishment of undelivered goods
	Conditions on the procedure for issuing penalties and penalties for violation of the terms of the contract
13	The contract is concluded for a long term and involves not a one-time supply, but long-term cooperation	Can be concluded (clause 1 of article 508 of the Civil Code of the Russian Federation)	It cannot be concluded, since after the transfer of the goods the obligations on it are fulfilled (Article 458 of the Civil Code of the Russian Federation)

Also, wholesale sales may be indicated by the fact that you are selling goods at a price lower than to individual buyers. If the specifics of a product sold to legal entities presuppose its use in production (for example, food raw materials, fuel, special products, etc.), then inspectors can also consider such a supply to be wholesale.

Is it possible to issue a waybill No. TORG-12 and an invoice?

If the buyer, being a legal entity, pays for the purchase by bank transfer, most likely he is interested in receiving full accounting documents for the goods, for example, an invoice in form No. TORG-12. Let’s say right away that you can write it out, this will not lead to the loss of the right to use the taxation system in the form of UTII. Since the invoice itself does not indicate the wholesale nature of the supply. The Ministry of Finance of Russia came to this opinion in its letters dated 07/09/2012 No. 03-11-11/205 and dated 03/07/2012 No. 03-11-11/78. Judges hold a similar opinion, which is confirmed by practice (see, for example, resolutions of the FAS Far Eastern District dated October 5, 2012 No. F03-3802/2012, FAS East Siberian District dated November 10, 2009 No. A33-2713/2009, dated June 25, 2009 No. A19-12740/08 and Federal Antimonopoly Service of the Volga Region dated 07/09/2009 No. A72-7445/2008).

As for invoices, it is better not to issue them. After all, then, firstly, you will have to pay VAT to the budget, and after the end of the quarter, file it, and, please note, from January 1, 2014, it is obligatory (clause 5 of article 173 and clause 5 of article 174 of the Tax Code of the Russian Federation) .

And, secondly, the presence of issued invoices will give inspectors more reasons to doubt that you maintain the tax regime for this transaction, such as the taxation system in the form of UTII. After all, “imputers” are not. This means that if you charge this tax on a sale, you can assume that this transaction is not a retail trade. Although the auditors, of course, will have to prove this fact in court. However, if you do not want such proceedings, there is no need to issue invoices to legal entities.

After all, the more signs of wholesale sales to legal entities under UTII the transaction you conclude carries, the more opportunities the tax authorities have to recognize the application of the taxation system in the form of UTII as unlawful. Then you will have to prove your case in court, but the judges will consider all the circumstances together, and the tax authorities can win such a dispute. This is confirmed by judicial practice (for example, resolutions of the Federal Antimonopoly Service of the West Siberian District dated January 31, 2013 No. A75-10108/2011, FAS Volga District dated December 20, 2012 No. 65-9622/2012 and the Federal Antimonopoly Service of the Central District dated April 25, 2012 No. A08-5141 /2011).

This morning my son and I went shopping. I needed to buy a lot of things, so I planned to go to the store and the market.

While walking through the supermarket, my little helper asked me why his favorite corn pops had two price tags for wholesale and retail purchases.

I told him that there are many intermediaries between the manufacturer and the consumer. I had to simplify everything for the baby to understand, but it didn’t change the essence.

Explaining the difference between wholesale and retail trade to my son, I remembered my university years, when professors told us the same thing. Each entrepreneur pays a single tax on imputed income (UTII).

I realized that there is no need for a child to understand such a jungle, and it would not be superfluous to refresh his knowledge. Therefore, I have prepared material for you.

Understanding the difference between wholesale and retail trade from an imputation point of view can be difficult, but don’t be alarmed ahead of time. Each product is sold for different purposes, with or without documentation, and the status of the buyer does not matter. Today we will understand this entire ocean of information.

An organization thinks about the type, nature and qualifications of its transactions when it has to transfer one of its activities to pay UTII.

The peculiarity of the “imputation” is that it is introduced in relation to certain types of activities in the territory of municipal districts, urban districts and cities of federal significance. These types of activities are listed in paragraph 2 of Art. 346.26 Tax Code of the Russian Federation.

These include retail trade carried out through shops and pavilions with a sales floor area of no more than 150 square meters. m for each trade facility, and retail trade carried out through stationary retail chain facilities that do not have sales floors, as well as non-stationary retail chain facilities. It is the retail sale of goods that we will pay attention to in this article.

Main features of wholesale and retail trade

The Tax Code of the Russian Federation does not contain a definition of wholesale trade. It is given in Art. 2 of Federal Law No. 381-FZ of December 28, 2009 “On the fundamentals of state regulation of trade activities in the Russian Federation” (hereinafter referred to as Law No. 381-FZ).

Thus, wholesale trade is recognized as a type of trading activity associated with the acquisition and sale of goods for use in business activities (including for resale) or for other purposes not related to personal, family, household and other similar use.

Note that Law No. 381-FZ also contains a definition of retail trade. However, in order to pay UTII it is necessary to use the concepts given in Chapter. 26.3 Tax Code of the Russian Federation.

According to Art. 346.27 of the Tax Code of the Russian Federation, retail trade is business activity related to trade in goods(including in cash, as well as using payment cards) based on retail sales contracts.

This type of activity, in particular, does not include the sale of certain excisable goods, food and beverages, including alcoholic beverages, in catering establishments. The full list of goods is contained in the specified article of the Tax Code of the Russian Federation.

Thus, the Tax Code of the Russian Federation allows settlements for retail transactions in cash and non-cash form and does not contain restrictions regarding the quantity of goods sold and the persons buying it.

In this case, the main emphasis is on documenting the transaction. And Law N 381-FZ refers to the future fate of goods (their use only for personal, family, household and other purposes not related to business activities). These two parameters can be considered fundamental. Let's stop at them.

Documentation

The sale of goods at retail is formalized by a retail purchase and sale agreement. This agreement is public, that is, it establishes obligations for the sale of goods, performance of work and provision of services that must be carried out in relation to all interested parties.

Under such an agreement, the seller undertakes to transfer the goods for personal, family, home or other use not related to business activities (Articles 426 and 492 of the Civil Code of the Russian Federation).

According to Art. 493 of the Civil Code of the Russian Federation, a retail purchase and sale agreement is considered concluded in the proper form from the moment the seller issues a cash receipt or sales receipt or other document confirming payment for the goods to the buyer.

And when selling goods in bulk, a supply agreement or other civil law agreement is drawn up, containing the features of a supply agreement.

In ch. 30 of the Civil Code of the Russian Federation provides the data that such an agreement must contain: the parties to the transaction, the range of goods, the procedure and form of payments, the moment of transfer of ownership of the goods. Under the supply agreement, the seller undertakes to transfer the goods for use in business activities (for example, for resale) or other purposes not related to personal, family, home and other similar use (Article 506 of the Civil Code of the Russian Federation).

A distinctive feature of a supply agreement is the seller’s obligation to transfer the goods to the buyer within the specified time frame.

Thus, the first and main difference between documenting retail and wholesale transactions is the conclusion of a retail purchase and sale agreement and a supply agreement, respectively.

If the execution of a retail transaction consists of issuing to the buyer a cash or sales receipt or other document confirming payment for the goods, then in order to sell goods in bulk the seller must issue several more documents:

invoices;
invoices;
logs of received invoices;
logs of issued invoices;
books of purchases and sales.

(Letter of the Ministry of Finance of Russia dated January 16, 2006 N 03-11-05/9).

Let us remember that “imputers” are not VAT payers (except for cases of importing goods into the customs territory of the Russian Federation or performing the duties of a tax agent). Therefore, when selling goods, they should not issue invoices.

However, companies purchasing goods in bulk require invoices in form N TORG-12 or invoices in form N 1-T to register them and confirm expenses incurred.

Note. The State Statistics Committee of Russia approved form N TORG-12 by Resolution No. 132 of December 25, 1998, and form N 1-T by Resolution No. 78 of November 28, 1997.

If the goods are purchased through an accountable person, then the availability of sales and cash receipts, as well as an advance report, may be sufficient for its receipt.

In both situations there is a wholesale purchase. However, in the first case it is issued according to the rules of wholesale, and in the second - according to the rules of retail sale. The question arises: is it a violation to register a wholesale transaction with sales and cash receipts?

Based on the established practice of organizing document flow, the taxpayer does not violate the requirements of the law.

Sale of goods to an accountable person

When selling goods to a citizen - an accountable person, the seller is not obliged to enter into a supply agreement with him and issue invoices, but he also does not have the right to refuse the sale due to the public nature of the transaction. Should the “imputed person” then recognize this transaction as a wholesale transaction and lose the right to apply a single tax on imputed income?

Unfortunately, it is difficult to answer this question. We believe that in this case it should be assumed that a delivery agreement is not concluded between the buyer and the seller, the payment procedure and delivery time are not determined.

And this is proof that there is no wholesale transaction. Of course, tax officials can recognize a transaction as wholesale regardless of the set or absence of documents, but to do this they will have to present their evidence to the arbitrators.

Thus, based on the peculiarities of execution of retail and wholesale transactions, we note that when conducting retail trade, a retail purchase and sale agreement is drawn up in the form of issuing a cash or sales receipt or other document confirming payment for the goods.

In this case, the transaction is considered concluded at the moment of transfer of these documents to the buyer. And when carrying out wholesale trade, it is necessary to conclude a supply agreement or another similar agreement, as well as issue invoices (when working under the general taxation regime), goods or waybills.

The wholesale transaction is considered concluded at the moment of signing the contract. Keep in mind that accompanying documents must be drawn up in accordance with the qualifications of the legal relations of the parties to the transaction.

Purpose of purchasing goods

At the beginning of this article, we already mentioned that the Tax Code of the Russian Federation classifies transactions formalized by retail purchase and sale agreements as retail trade. The essence of this agreement is that the seller undertakes to transfer the goods to the buyer for personal, family, home or other use not related to business activities.

That is, first of all, the “imposers” need to determine the purposes for the further use of the goods, and then draw up either a retail purchase and sale agreement or a supply agreement.

If, for example, an individual purchased something for use at home or in the country, then we can say with confidence that a retail transaction was made. And if a company purchased goods for further resale, then this is already a wholesale transaction.

Purchase by an organization or individual entrepreneur of property not related to a personal purpose.

But what if an organization or individual entrepreneur purchases office equipment or furniture for use in the office?

According to paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 N 18, the purchase by the buyer of goods to ensure his activities as an organization or individual entrepreneur is not related to personal goals.

However, in the case when these goods are purchased from a seller engaged in business activities of selling goods at retail, the relations of the parties are governed by the rules on retail purchase and sale.

Consequently, the activities of an “imputed person” who sells office furniture, office equipment, materials for repair work and similar goods to organizations or merchants to ensure the conduct of their activities can be recognized as retail trade and transferred to the payment of UTII.

Please note: the Tax Code of the Russian Federation does not establish the seller’s obligation to control the buyer’s further use of the purchased goods. If it comes to court proceedings, then such an obligation is imposed on the tax authorities.

Note that, despite the above decision of the Plenum of the Supreme Arbitration Court of the Russian Federation, the Ministry of Finance of Russia classifies the sale of certain types of goods to organizations and entrepreneurs for doing business as wholesale transactions.

This concerns the implementation:

CCT, receipt tapes, paper and packaging materials (Letter dated November 12, 2007 N 03-11-05/265);
scales, banknote detectors and safes (Letter dated 08/10/2007 N 03-11-04/3/316);
commercial and refrigeration equipment (Letter dated 06.10.2008 N 03-11-05/234);
office equipment (Letter dated September 20, 2007 N 03-11-05/226).

Sharing the position of the financial department, tax authorities in most cases can recognize the above-mentioned transactions as wholesale. However, we should not forget that the above Letters are of a recommendatory nature and judges never rely on them in their conclusions.

Based on judicial practice in similar cases, arbitrators are guided by the opinion of the Plenum of the Supreme Arbitration Court of the Russian Federation and often side with taxpayers (Resolutions of the Federal Antimonopoly Service of the North-Western District dated December 21, 2007 in case No. A66-1015/2007, dated October 17, 2008 in case No. A56-37983 /2007 and FAS Volga District dated 08/07/2008 in case No. A55-17831/07). Therefore, if such disputes arise with the Federal Tax Service, the taxpayer will have to seek protection in court.

Consequently, the activity of an “imputed person” who sells office furniture, office equipment, materials for repair work and similar goods to organizations or merchants to ensure the conduct of their activities can be recognized as retail trade and transferred to the payment of UTII.

Thus, retail for the purposes of applying the taxation system in the form of UTII can be recognized as the sale of goods for the purposes of personal, family and home use by individuals, as well as retail trade for office use by organizations and individual entrepreneurs.

And wholesale is the sale of goods for purposes not related to personal, family and home use.

Real life situations and judicial practice

Let’s say an entrepreneur pays UTII when selling goods at retail through a store. After conducting a desk audit, the tax inspectorate charged him additional VAT on the amount of sales of the organization’s goods.

And the inspectors justified the decision by the fact that this product was purchased by a company by bank transfer to ensure the conduct of production activities aimed at making a profit. In this situation, the Federal Antimonopoly Service of the North-Western District justified the actions of the individual entrepreneur and left the cassation appeal of the inspection unsatisfied (Resolution of December 21, 2007 in case No. A66-1015/2007).

First of all, the court relied on the execution of the transaction and the further purpose of using the sold goods. It was found that:

the goods were purchased at retail, since no supply agreement was concluded. The buyer paid for the goods on the basis of issued invoices, and the amount of VAT was not allocated in them;
the inspectors did not prove that the buyer used the specified goods for resale or for work by third parties.

That is, for arbitrators in the matter of classifying a transaction as wholesale or retail, important criteria are documentation and the purpose of using the purchased product. At the same time, judges have repeatedly emphasized that the Tax Code of the Russian Federation does not contain a provision that organizations and individual entrepreneurs selling goods are obliged to control the subsequent use of goods.

In addition, the servants of Themis do not pay attention to the form of payment and the parties to the transaction, since they do not consider them to be fundamental (Resolution of the Federal Antimonopoly Service of the East Siberian District dated June 25, 2008 N A69-1122/06-3-6-9-5-03AP- 1436/07-F02-2733/08).

Can transactions for the sale of goods to budgetary institutions under government contracts be recognized as retail trade?

According to the financial and tax authorities, such activities relate to business activities in the field of wholesale trade and are taxed under the general regime or simplified taxation system.

In addition, the municipal contract does not bear any signs of publicity, since it is concluded only based on the results of auctions, tenders and requests for quotations for the supply of goods. The conclusion of municipal and state contracts for the retail purchase and sale of goods with institutions appears to be unfounded.

A similar point of view is reflected in Letters of the Federal Tax Service of Russia dated 03/01/2010 N ШС-22-3/144@, as well as the Ministry of Finance of Russia dated 03/09/2010 N 03-11-11/44 and dated 11/16/2009 N 03-11-06/ 3/268.

For example, the Supreme Arbitration Court of the Russian Federation, in its Determination No. VAS-9435/09 dated August 6, 2009, took into account that food products sold by an entrepreneur in pursuance of municipal contracts were not used by institutions to carry out business activities and were purchased from a UTII payer selling goods at retail.

Under such circumstances, the courts came to the conclusion that there were no grounds for assessing additional taxes to the merchant under the general taxation system. The Federal Antimonopoly Service of the West Siberian District also recognized the sale of goods for the own needs of budgetary institutions as retail trade (Resolution of January 20, 2010 in case No. A81-1989/2009).

Note. The same conclusion is contained in the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 29, 2008 N F08-7929/2008.

Three nuances

So, we found out that, firstly, the main differences between wholesale and retail are:

documenting the transaction;
the purpose of further use of the goods by the buyer.

Wholesale trade is characterized by commercial use (for example, further resale of goods). In this case, the documentary execution of the transaction will be the conclusion of a supply agreement, execution of invoices and issuance of invoices.

Retail sales pursue the goal of selling goods for personal, family and household needs. This also includes the sale of goods to organizations and entrepreneurs for use in the office. The fact of a retail transaction is confirmed by issuing to the buyer a sales or cash receipt or other document confirming payment for the goods.

Secondly, the number of goods sold, the status of the buyer, as well as the payment procedure do not matter in the qualification of transactions.

Thirdly, tax legislation does not impose an obligation on sellers to control the further use of goods. Only a court can refute the fact of retail sales of goods, of course, if the tax authorities present convincing evidence.

How to avoid a situation in which the tax authorities refuse to treat the transaction as a retail transaction? The Federal Tax Service often refuses to recognize a number of transactions as retail trade operations. As a result, their taxation under the UTII system becomes impossible. To avoid this, it is important to complete the transaction correctly:

you should not issue invoices;
it is advisable not to issue invoices, but instead issue information letters with details;
A sales receipt or a cash receipt can serve as confirmation of a transaction.

Is it possible to partition off a retail space in order to reduce the area of the sales area for UTII purposes? The delimitation of the area of warehouse premises, which are not included in the area used for paying the tax, must be indicated in the documents for the premises.

Is wholesale trade possible with UTII?

But what if an organization or individual entrepreneur purchases office equipment or furniture for use in the office? According to paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 N 18, the purchase by the buyer of goods to ensure his activities as an organization or individual entrepreneur is not related to personal goals. However, in the case when these goods are purchased from a seller engaged in business activities of selling goods at retail, the relations of the parties are governed by the rules on retail purchase and sale.

When is wholesale trade allowed under the UTII regime?

Attention

Home — Articles An organization thinks about the type, nature and qualification of its transactions when it has to transfer one of its activities to pay UTII. The peculiarity of the “imputation” is that it is introduced in relation to certain types of activities in the territory of municipal districts, urban districts and cities of federal significance.

These types of activities are listed in paragraph 2 of Art. 346.26 Tax Code of the Russian Federation. These include retail trade carried out through shops and pavilions with a sales floor area of no more than 150 square meters.
m for each trade facility, and retail trade carried out through stationary retail chain facilities that do not have sales floors, as well as non-stationary retail chain facilities. It is the retail sale of goods that we will pay attention to in this article.

Retail or wholesale? This is important for the UTII!

Therefore, if you have such documents, then the tax authorities will have no reason to cling to you. After all, without documents, inspectors will not be able to prove anything. Resolution of the Federal Antimonopoly Service dated January 18, 2011 No. A57-4687/2010.

*** If you are truly engaged in wholesale trade, do not try to disguise it as retail. There is a good chance that these tax savings will ultimately backfire.
And if you have a real imputation, then don’t complicate anything and don’t fill out unnecessary papers. A sales or cash receipt is enough. Other articles from the magazine "MAIN BOOK" on the topic "UTII - calculation and payment": 2018

Receiving payment from a legal entity does not oblige the person responsible to pay VAT, No. 9
CCT deduction: how to reflect it in the UTII declaration, No. 6

UTII: differences between wholesale and retail trade

It can be found in the Tax Code, clarified by the Federal Tax Service, or taken from the table above.

K1 or the deflator coefficient reflects the change in cents for various goods and services. In 2016, it was set at 1.798.
K2 – the correction factor is determined under the influence of a large number of factors.
Tax legislation provides for a range of changes in this indicator from 0.005 to 1 (see → Coefficients K1 and K2 UTII). The correction factor is set for each region separately.
The standard tax rate for UTII is 15%.

But regions are allowed, based on the economic situation in the territory, to reduce this value. Up to 7.5%.

Is it possible to apply UTII in wholesale trade? infographics

UTII), it is said that it is conducted on the basis of retail purchase and sales contracts. 346.27 Tax Code of the Russian Federation. And under a retail purchase and sale agreement, goods are sold for personal, family, home or other use not related to business activities. 1 tbsp. 11

Info

Tax Code of the Russian Federation; clause 1 art. 492 of the Civil Code of the Russian Federation. Goods purchased for use in business activities (including for resale) are sold under supply contracts. 506 of the Civil Code of the Russian Federation and already within the framework of wholesale trade. 2 tbsp. 2 of the Federal Law of December 28, 2009 No. 381-FZ “On the fundamentals of state regulation of trading activities in the Russian Federation.” Therefore, the fundamental difference between wholesale and retail is how the buyer intends to use the purchased product.

How tax officials identify suspicious transactions Tax officials can suspect something wrong only when checking the documents of the imputator.

Wholesale trade and UTII (Yusupov L.R.)

Therefore, it is advisable to clarify the tax rate in your department of the Federal Tax Service. Ultimately, the formula for calculating monthly payments for UTII can be presented as a product of the presented indicators: UTII = Physical indicator x Basic income x K1 x K2 x Tax rate Example #1. Calculation of UTII in trade Through a store with an area of 15 sq.m., rented in a shopping center, vegetables and fruits are traded.

Revenue for the 1st quarter of 2016 amounted to 400,000 rubles. Of these, 50,000 rubles were received from a cafe located in the same building (see.

→ how to calculate UTII for cafes and restaurants: features). On February 14, 2016, the owner redeveloped the shopping center. As a result, the area of the department decreased by 3 sq.m. and is currently 12 sq.m.
Let's assume that for the region in which the store operates, the tax rate is set at 15%, and K2 is equal to 0.3.

Is it possible to apply UTII in wholesale trade?

The conclusion of municipal and state contracts for the retail purchase and sale of goods with institutions appears to be unfounded. A similar point of view is reflected in Letters of the Federal Tax Service of Russia dated 03/01/2010 N ШС-22-3/, as well as the Ministry of Finance of Russia dated 03/09/2010 N 03-11-11/44 and dated 11/16/2009 N 03-11-06/3/ 268.

However, we note that firms and merchants who tax income from the sale of goods to public sector employees under these contracts within the framework of “imputation” have a chance to defend their position in court. For example, the Supreme Arbitration Court of the Russian Federation, in its Determination No. VAS-9435/09 dated August 6, 2009, took into account that food products sold by an entrepreneur in pursuance of municipal contracts were not used by institutions to carry out business activities and were purchased from a UTII payer selling goods at retail.

Home

Entrepreneurs and trading firms regularly ask themselves which taxation system to use most effectively. Many people consider the best option to pay payments to the budget using the UTII system.

But not everyone knows that imputation is not applicable for all types of trade. In this article we will look at how wholesale trade on UTII is carried out.

When can you use UTII? The figure in the infographic below discusses the main signs for the possibility of switching to the special UTII regime. UTII in trade The single tax on imputed income is a voluntary regime. Under it, it is not the profit received that is taxed, but a certain type of activity. Under certain conditions, this may include trade.
The Tax Code clearly defines the types of activities that fall under UTII.

If the tax office finds out that the taxpayer has limited them using portable structures, additional taxes will be assessed. In addition, fines, penalties and penalties will be assessed.

Is it possible not to pay UTII tax if the store has been closed for some time? UTII is paid in any case, even if the activity has been suspended for some time. If the store was closed due to force majeure (court decision, repairs, expiration of a lease agreement, etc.) and there is documentary evidence of this, you can try to ask the tax office not to pay the tax. Where is the tax reduction indicated? The amounts deducted from the UTII tax are indicated when filling out the corresponding tax return. The form contains columns specially provided for these purposes.

One of the most popular types of small business in our country is retail trade. At the same time, each business entity is free to choose the most acceptable tax deduction system. One of the most convenient special regimes is a tax on imputed income. According to the Tax Code of the Russian Federation (Chapter 26.3), small businesses are allowed to use UTII for retail trade. This is acceptable if this tax is imposed in your region in relation to this type of activity. What changes to UTII in retail trade occurred in 2018? What's the latest news about this special regime? How can an individual entrepreneur on UTII work in retail?

Who can use

Payment of UTII from retail trade in 2018 is acceptable if 2 criteria are met:

introduction of this special regime in relation to retail sales in a specific constituent entity of the Russian Federation;
business compliance with certain parameters.

The necessary conditions for working on UTII include not only the organizational and legal structure of the enterprise, but also the number of employees (up to 100 people).

Types of retail sales

In the Tax Code of our country, the term “retail trade” on UTII is fixed in Article 346.27 (paragraph 12).

Retail trade according to the Tax Code of the Russian Federation (subclauses 6 and 7 of clause 2 of Article 346.26) is classified into several types:

by using large facilities whose trading area is no more than 150 square meters. m each (pavilions, shops);
through objects that do not have retail space, since they are very small;
sales of products by delivery or manual distribution.

Working on an imputed basis makes sense if retail sales serve as an activity for the enterprise that is aimed at regularly generating income. At the same time, for each buyer there are all the signs of a retail purchase and sale agreement (Article 492 of the Civil Code of the Russian Federation).

Please note: retail trade and UTII are not compatible with supply contracts (including for the needs of the state, municipal authorities). At the same time, you can calmly interact with legal entities and individual entrepreneurs: the law does not oblige you to monitor for what purposes they purchase this or that product. In addition, in 2017 you can still work on imputation without a cash register.

The method of payment with clients – cash/non-cash/mixed type of payment/using a plastic card – does not in any way affect the use of UTII (paragraph 12 of Article 346.27 of the Tax Code of the Russian Federation).

What is a shopping area

The term “sales area” in retail trade on UTII includes only:

location of cash registers, display cases and refrigerators;
a place that is used for the work of the seller and for making purchases by customers.

What's new: UTII in retail trade 2018

New coefficient K1

An important change to the UTII since 2018 was introduced by Order No. 579 of the Ministry of Economic Development of Russia dated October 30, 2017. According to it, when calculating the tax, the basic yield in 2018 must be multiplied by the deflator index K1, which is 1.868. Let us give an example of calculating imputed tax taking into account the K1 deflator from 2018.

Wholesale trade and UTII (Yusupov L.R.)

Article posted date: 01/21/2015

Wholesale companies selling food, manufactured goods, etc. tend to reduce their tax burden through the use of UTII. Most of these companies pay UTII depending on the area of the trading floor where retail trade takes place, but at the same time this allocated trading area is also used for wholesale trade, calling it retail.
In this article I provide legal solutions to this problem.

Use of UTII by taxpayers in wholesale trade

Let's take a closer look at the concept of retail trade and UTII in retail trade.
Persons with retail trade objects carried out through shops and pavilions with a sales floor area of no more than 150 square meters for each trade organization can switch to UTII (clause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation).
According to the Tax Code of the Russian Federation, retail trade (for the purpose of applying UTII) is understood as entrepreneurial activity associated with the trade of goods on the basis of retail sales contracts (Article 346.27 of the Tax Code of the Russian Federation).
The Civil Code defines the concept of retail trade differently: “Under a retail purchase and sale agreement, a seller engaged in business activities of selling goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities” (p. 1 Article 492 of the Civil Code of the Russian Federation).
Entrepreneurs in this area trade using the following taxation systems: OSNO - for trading with large buyers who require sales to be carried out with VAT; UTII/USNO (6% or 15%) - for sale to smaller entrepreneurs, who, in turn, use preferential taxation systems (usually they also use UTII) and, having a VAT benefit, do not require the sale of goods from the VAT company."
A “wholesale” entrepreneur sells goods on UTII for cash, justifying this by the fact that with non-cash transfers there are risks that the sale is recognized as not retail (and he carries out part of the sale through non-cash transfers from the parent company to OSNO, or from an interdependent intermediary to USNO). Indeed, these risks do exist, since in this case the tax authorities will have more grounds to recognize this trade as wholesale.
In a letter dated July 24, 2013 N 03-11-11/29238, the Ministry of Finance explained that “for the purposes of applying Chapter 26.3 of the Tax Code of the Russian Federation, retail trade includes business activities related to the trade of goods both in cash and for non-cash payments, carried out under retail purchase and sale agreements, regardless of which category of buyers (individuals or legal entities) these goods are sold." The Code does not establish obligations for organizations and individual entrepreneurs selling goods to identify the purpose of purchase by buyers of goods and control their subsequent use.
One of the main conditions that allows the taxation system in the form of UTII to be applied to retail trade is the implementation of this activity exclusively through the objects of a stationary and (or) non-stationary trading network, mentioned in clauses 6 and 7 of clause 2 of Art. 346.26 Tax Code of the Russian Federation.
If the tax authority has not provided evidence of an individual entrepreneur carrying out retail trade not only through these facilities, the court considers that the UTII paid by the taxpayer-seller also covers transactions for the sale of goods to legal entities and individual entrepreneurs (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05.03 .2013 N 157).
When determining the safety of trading on UTII, you need to pay attention to how the purchased product is used by the buyer (it does not matter who the buyer is: a legal entity, an individual entrepreneur or an individual, and it does not matter how he makes the payment). If the product is not used for the purpose of resale, then it is quite safe to sell to such buyers. Of course, the entrepreneur selling the product does not have any control functions and cannot monitor how this product is used, but often such an entrepreneur guesses or knows how the product is used (for example, for resale), and prefers not to look at it or not be aware of this.
This approach is dangerous.
If in this case the frequency of delivery is discovered, it is unsafe: “... the court noted that in relation to the remaining buyers - legal entities and individual entrepreneurs, there was a supply of goods, and not retail, since the frequency of transactions for the purchase of materials was established” (Resolution of the Presidium Supreme Arbitration Court of the Russian Federation dated July 5, 2011 N 1066/11).
From all this we can conclude: if the buyer comes to the base himself and purchases goods on his own and this does not happen periodically (there is no exact criterion determining the number of purchases, starting from which the buyer becomes “periodic”), then the seller of this goods, you can use the UTII taxation system, regardless of whether payment is made in cash or by transfer to a current account. But if there is a frequency of deliveries and we prove the fact of transportation by the seller of the goods or his intermediary, with whom a contract for the transportation of goods was concluded, then this sale will most likely be recognized as wholesale trade, not subject to UTII, even in the case when the payment was made in cash .
The very fact that there was no resale on the part of the buyer (a legal entity or an individual entrepreneur) indicates that the purchased products (regardless of the method of payment) were not used for the purpose of entrepreneurial activity.
An entrepreneur, together with the chief accountant, needs to analyze and take into account the following arbitration practice:
"The courts established from primary documents that the goods were sold by the entrepreneur of the organization at intervals of 2 - 3 times a month in large quantities of vegetables and fruits for the latter to carry out entrepreneurial activities in the provision of public catering services. Payment for the goods was made by the company to the bank account. The quantity of goods, its range and characteristics as perishable products do not allow the purchase of goods for personal consumption. Under these circumstances, the courts made the correct conclusion about the legality of additional assessments of tax payments by the inspectorate under the general taxation system" (Resolution of the Federal Antimonopoly Service of the East Siberian District of April 26, 2012 No. A33-1779/2011 ).
Based on this, we can conclude that it is extremely dangerous to use the UTII taxation system when selling to legal entities and individual entrepreneurs goods that they use for the purpose of further resale.

Agency agreement as an alternative to supply agreements

Due to the fact that the danger of canceling UTII in 2018 still exists, wholesale companies simply will not be able to have a small retail space previously allocated for the purpose of applying UTII. They will have to trade either on OSNO or USNO. Since their turnover from activities on UTII on average amounts to 70% of the company’s total turnover and clearly exceeds 60 million rubles. per year, then the use of the simplified tax system as an alternative to UTII in most wholesale companies practically disappears.
Is it possible to solve these problems without a significant increase in tax burdens, taking into account the possible abolition of UTII in 2018, and in the near future to avoid risks in connection with the use of UTII?
There is such an alternative: the use of an agency relationship between the buyer and the wholesale company. The general principle is the following: the buyer changes his status and becomes a customer. The wholesaler also changes his status and becomes a performer. The main thing is to write the contract in great detail and determine the primary documentation (since there are no unified forms of primary documentation for such relations, you will have to develop them yourself). There is nothing complicated in developing such documents. The main thing is that they need to reflect the required number of details regulated by law, in accordance with paragraph 2 of Art. 9 of the Federal Law “On Accounting” N 402-FZ of December 6, 2011, the customer instructs the contractor to purchase the required quantity of goods. The contractor purchases the goods on his own behalf, but at the expense of the customer (in this case, the contractor does not have ownership rights) and transfers these goods to the customer. The customer pays a remuneration to the contractor (or the contractor himself withholds the remuneration from the funds received from the customer).
The turnover of the contractor in this case will not be the cost of the purchased and transferred goods, but intermediary services; Thus, this company will be able to switch to the simplified tax system and not be a payer of income tax, VAT, or property tax. In fact, this will be a direct alternative to UTII, i.e. all buyers who do not require VAT sales are included in this category.
There are some difficulties in implementing such relationships. For example, a large clientele in wholesale companies (usually thousands of stores) leads to an increase in document flow under new contracts, since there will be a little more primary documentation (to reduce paper document flow with counterparties, you can switch to electronic document flow). Sometimes it is difficult to convey to former buyers that they are now not buyers, but customers. Sometimes it is difficult to convey to sales agents (representatives) the idea that there is a new format for relationships with former customers. But these difficulties are associated only with developing new relationships and educating your employees and clients, and this can be achieved if desired.
Now let's touch on the legal component. The main question is: how to formalize these relationships?
I suggest using an agency agreement, although you can also use a commission agreement.
So, an agent - an individual entrepreneur who is on the simplified taxation system of 6% (Chapter 26.2 of the Tax Code of the Russian Federation) enters into an agency agreement with buyer-principals (Chapter 52 of the Civil Code of the Russian Federation). The principal instructs the agent to find a seller of the goods, the price of which is determined by the principal, and the agent can receive an additional reward, which will remain with him if he purchases the goods at more favorable prices than in the principal’s application.
In accordance with paragraph 1 of Art. 1005 of the Civil Code “under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal.”
Reports are an integral attribute of an agency agreement. They must be accompanied by the necessary evidence of expenses incurred by the agent at the expense of the principal, unless the contrary is stated in the agency agreement. But since the agent will have to make one-time transfers to suppliers, and he will have thousands of principals, then the agent will accordingly not be able to attach justification to his costs, so this rule will need to be written down in the contract, referring to clause 2 of Art. 1008 of the Civil Code of the Russian Federation.
The principal instructs the agent, for a fee, to perform legal and other actions on his own behalf, but at the expense of the principal, in particular, to search for a supplier of goods. The agent does not keep tax records of transactions for these transactions, even if he acts in them on his own behalf (the goods are accounted for in off-balance sheet accounts), since he does not have ownership of the goods.
Since the agent acts on his own behalf, he purchases goods under a supply agreement or a purchase and sale agreement, and primary documents from counterparties are issued in the agent’s name.
The income of an agent - an individual entrepreneur is only the amount of remuneration, this is expressly stated in paragraph 1 of clause 1 of Art. 156 of the Tax Code: "... taxpayers, when carrying out business activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements, determine the tax base as the amount of income received by them in the form of remuneration (any other income) in the performance of any of these agreements" , by analogy, this can be attributed to the single tax on the simplified tax system.
The business purposes for using an agent are obvious:
A. The agent is directly involved in commercial activities: he negotiates with the supplier, maintains databases, and so on.
B. The agent actually makes a profit and has a direct interest in expanding the supply.
B. The agent has a limited area of work (works with entrepreneurs with small turnover), which is fully consistent with business customs when applying such agreements.
Benefits when using this design:
Accumulation of funds from the agent.
After paying the tax by an individual entrepreneur agent (6% of the agency fee), he can dispose of funds at his own discretion.
To minimize risks, it is necessary to take into account the above recommendations (maintain the integrity of the taxpayer - a legal entity, etc.), draw up a competent agency agreement, and also maintain all the documentation accompanying it (agent’s reports, etc.).

Changes in legislation since 2014

Since 2014, persons who are not VAT taxpayers, in the event of issuing and (or) receiving invoices when carrying out business activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements, are required to keep logs of received and issued invoices - invoices in relation to the specified activities (clause 3.1 of Article 169 of the Tax Code of the Russian Federation).
Clause 1 of Art. 169 of the Tax Code of the Russian Federation defines that “an invoice is a document that serves as the basis for the buyer to accept tax amounts for deduction presented by the seller of goods that sell goods.” Accordingly, customers who did not pay VAT often did not require invoices if this was expressly stated in the agency agreement. According to paragraph 2 of Art. 1008 of the Civil Code of the Russian Federation, the agent’s report may not include the necessary evidence of expenses (if specified in the contract) made by the agent at the expense of the principal.
Recently, such a norm appeared in the Tax Code of the Russian Federation. That is, the intermediary company using the simplified tax system will have to keep invoice logs. Such an intermediary will receive invoices and reissue them on its own behalf to the name of the principal.
If customers (or principals under an agency agreement) are not VAT payers, and have an intermediary using the simplified tax system, then this company using the simplified tax system will still have to keep such journals, although it will not have to submit VAT returns. From January 1, 2015, such intermediaries will be required to submit to the tax authority a log of received and issued invoices in electronic form.

Arbitration practice when using mediation agreements

It is necessary to take into account that the basic document flow of intermediary relations must be worked out with the utmost care - otherwise problems may arise.
For example, it is necessary to enter the amount of the intermediary agreement on a separate line. In the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 31, 2011 in case No. A82-1769/2010, the courts agreed with the tax authorities, since the amount of remuneration is not reflected in a separate line, and therefore recognized that the income received by the taxpayer (intermediary) from transactions with the specified counterparties (customers of services), is income from the sale of goods.
When using intermediary agreements for the purchase of goods, it is necessary to follow this basic document flow, since the tax office may attempt to reclassify these transactions as relations under a purchase and sale (supply) agreement. In our case, the intermediary is on a simplified taxation system, and such requalification will lead to the fact that the intermediary will exceed the turnover that gives the right to use the simplified tax system (the intermediary’s turnover is remuneration, and thus, with a large turnover, the intermediary can maintain this preferential tax regime), which will lead accordingly to an increase in taxes. But judicial practice shows that the courts in such situations take the side of the taxpayer.
The Resolution of the Federal Antimonopoly Service of the West Siberian District dated November 23, 2011 in case No. A27-20430/2009 is indicative. Tax authorities, after conducting an audit, concluded that it was unlawful for the company to use a simplified taxation system with the taxable object “income”, since in fact the company had lost the right to use a simplified taxation system, taking into account the creation by the taxpayer of a formal document flow for fictitious transactions with a counterparty, carrying out purchase and sale transactions through the specified organization under the guise of a commission agreement concluded with a counterparty.
The taxpayer, disagreeing with the tax authorities, protested this decision in court. The courts, having analyzed the provisions of Art. 346.11, 346.12, 346.13 of the Tax Code of the Russian Federation, taking into account the explanations of the Plenum of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 53 of October 12, 2006 “On the assessment by arbitration courts of the validity of the taxpayer receiving a tax benefit” (hereinafter referred to as Resolution No. 53), in conjunction with the presented in the case materials with evidence, they came to the conclusion that the tax authority did not prove that the taxpayer received an unjustified tax benefit.
The arguments that the taxpayer created a scheme for the purpose of withdrawing from taxation the income received from the taxpayer's activities on behalf of the counterparty during the execution of commission agreements have not been documented by the inspectorate.
The courts, having examined the commission agreements available in the case materials, according to which the taxpayer (commission agent) purchased goods for his counterparty (committee) from a number of suppliers, delivery notes, invoices, reasonably pointed out that there was no evidence of the taxpayer carrying out activities on behalf of the counterparty.
The courts rightfully rejected the tax authority's arguments about the inflated price of raw materials and indicated that the tax authority did not provide evidence indicating the illegality of this conclusion (Resolution of the Federal Antimonopoly Service of the West Siberian District dated November 23, 2011 in case No. A27-20430/2009, Resolution of the Federal Antimonopoly Service of the West Siberian District West Siberian District dated June 10, 2010 in case No. A27-13811/2009). The arbitration courts established and confirmed by the case materials that commission agreements were concluded between the taxpayer and his counterparties - individual entrepreneurs, according to which these entrepreneurs assumed obligations to purchase goods on their own behalf, but for the taxpayer and at his expense, as well as to provide a number of services to the taxpayer.
According to clause 2.3 of these agreements, the taxpayer was obliged to reimburse its counterparty for the costs of purchasing goods and providing services related to the execution of orders, including the cost of purchased goods, storage services, transport services, payment for warehouse rent and other expenses, and to accept a report on the work done by the counterparty work, pay the counterparty remuneration, as well as reimburse other expenses incurred by him.
The arbitration courts examined the documents presented by the parties during the trial confirming the right to apply a VAT tax deduction: invoices, payment orders, copies of reports from the applicant’s counterparties under the above-mentioned agreements, which detail the work performed by the counterparty and the costs incurred by it. Based on the above evidence, the courts established that the taxpayer has the right to apply a VAT deduction and concluded that the company has proven the right to apply a VAT deduction. During the trial, the tax authority did not challenge the evidence presented, nor did it declare the presence of false information in it.
During the tax audit, it was established that the suppliers of goods, entrepreneurs (commission agents), are on a simplified taxation system and unlawfully presented the company with VAT as part of the cost of goods.
Based on the norms of Art. Art. 171, 172, paragraph 5 of Art. 173 of the Tax Code of the Russian Federation, arbitration courts concluded that the taxpayer lawfully applied VAT deductions on invoices of commission entrepreneurs, since the norms of tax legislation do not contain as a condition for accepting as VAT the purchase of goods (work, services) from a person who is a VAT payer. The supplier of goods who is under a special taxation regime is obliged to pay VAT to the budget on the basis of the norm of clause 5 of Art. 173 of the Tax Code of the Russian Federation in case they issue invoices to buyers with the allocation of the VAT amount.
Considering that the amount of applicable deductions on the invoices of commission agent entrepreneurs exceeds the amount of additional VAT accrued based on the results of the audit, the arbitration courts rightly invalidated the decision of the tax authority regarding the additional accrual of VAT and the corresponding penalties.
The participation of mediators in resolved disputes at the simplified tax system once again proves - albeit indirectly - the absolute legitimacy of these mediation relationships.