Instruction manual

The issue of documentary reduction in the retail space for retail is primarily relevant for UTII payers. Big trading area  can "eat" the lion's share of profit. In order to avoid this, businessmen are forced to cunning and look for ways to reduce their costs.
For these purposes, manipulations with the numbers in the lease of retail space. Trading is considered areaat which the sale of goods is carried out (note that the exhibition hall in which the windows for displaying the goods are located is not considered trading, therefore, it can be safely deducted from the total area of \u200b\u200bthe lease and allocated in a separate column). Places of storage and warehousing of the rest of the goods in the trade area  are not included and are considered warehouse (utility, auxiliary, etc.). With this in mind, when drawing up a lease, these areas should be allocated in two different units.

The next step will be to optimize the outlet itself for the indicators specified in the contract. Otherwise, checking and measuring the premises may lead to penalties. Here you can take advantage of a combination of design techniques, the installation of a double showcase (the back of which will be a warehouse). The main goal is to achieve a visual perception of the proposed area, since the first assessment will be just visual, it may not come to measurements.

Each company aims to minimize costs. One way to do this is to reduce the paid UTII. This tax depends on the physical indicators established for a certain type of activity. In this regard, if the company is engaged in trade or catering, it is most reasonable to reduce the area used by the meters of the room.

Instruction manual

Analyze the efficiency of using the room. Determine whether it is possible to lease any part or remodel into a utility room.

Perform manipulations with the footage of the room. The sales area is the part of the premises that is used for the sale of goods, and in the case of catering, which is intended for customers to consume food and spend leisure time. These provisions are established by Art. 346.27 of the Tax code of the Russian Federation. Thus, the place of warehousing and storage of goods, as well as the area for receiving dishes and making payments are auxiliary and are not taxed on UTII.

Enter into two lease agreements for the premises if you are a trader. The first contract will correspond to the sales area used to sell the goods, and the second will relate to the place of storage and demonstration of the goods. Attach a BTI plan to each contract, in which you must separate the room yourself. According to tax legislation and the letter of the Ministry of Finance of the Russian Federation No. 03-06-05-05 / 43 of December 21, 2004, the UTII tax will be calculated separately for each agreement. Divide the room with the help of partitions into the trading room and the hall for the demonstration of goods by hanging an appropriate sign in front of the second.

In the BTI plan, highlight the queue and food area if you are engaged in catering. According to the letter No. 03-11-04 / 3/143 of March 21, 2008, this plan serves as a title and inventory document for calculating the area taxed by UTII. The letter also notes that areas that are not intended for eating and leisure activities are exempt from tax. Directly in the room, these zones can be distinguished by special screens and decorative partitions, and you can also organize a circular movement between the places of serving dishes and

Based on the actually used area of \u200b\u200bthe trading floor, if he independently separated the storage room with temporary partitions?

The organization has leased a trade item. Since there were no storage and utility rooms on the leased premises, the organization, having established temporary partitions, arranged them on its own (specified in the lease agreement). When calculating the UTII, she used the physical indicator "floor space" based on the actual used area. However, the tax authorities considered this unlawful and charged additionally. AS UO in the Decree dated 05/20/2016 in the case No. A71-9313 / 2015 took the side of fiscals. Read more about this case in this article.

We study the case materials ...

In the explication to the floor plan of the building, the leased premises are indicated as a trading floor area of \u200b\u200b128 square meters. m. Since there were no storage and utility rooms on the rented areas, the organization, having established temporary partitions (showcases, counters, portable structures), arranged them independently (an additional agreement was drawn up to the lease agreement, according to which a tenant is provided with a commercial and warehouse space for the intended use 128 sq. M, of which 5 sq. M - retail space, 100 sq. M - storage area, 23 sq. M - utility room area). Accordingly, when calculating UTII organization used a physical indicator of 5 square meters. m. Is such an approach legitimate? Examiners and judges say no.

Read tax laws

To calculate the amount of UTII, taking into account the type of entrepreneurial activity, retail trade carried out through the objects of a stationary trading network that has trading floors uses the physical indicator “sales area (in sq. M)” (Clause 3 of Article 346.29 of the Tax Code of the Russian Federation).

It would seem that by indicating as the physical indicator the area of \u200b\u200bthe trading floor actually used in entrepreneurial activity, the organization is doing the right thing. However, in Art. 346.27 of the Tax Code of the Russian Federation contains the following disclaimer: the area of \u200b\u200bthe sales area is determined on the basis of inventory and title documents.

We analyze the position of the judges

There is uncertainty in this dispute. On the one hand (according to the explication to the floor plan of the building), the non-residential premises are a trading floor area of \u200b\u200b128 square meters. m. On the other (under a lease agreement) - the sales area is only 5 square meters. m, the rest - storage and utility rooms. Recall that in this dispute, the court supported the tax authorities, who charged additional tax using the value of the physical indicator of 128 sq. m

So what happens, the tenant can not rely on the data contained in the lease? It is impossible to unequivocally answer this question - in each case it is necessary to proceed from the specific circumstances of the case.

As the court found, the disputed premises of 128 square meters. m was structurally isolated from other rooms, had a separate entrance door, there were no capital partitions. Based on the presented plan of the store, the trading floor (with an area of \u200b\u200b5 sq. M) is located in the middle of the warehouse area (100 sq. M), from the general hall of the shopping center the buyer goes directly to the warehouse, the passage to the trading floor is not marked. Moreover, according to the witness’s interrogation protocol, changes to the lease were made at the request of the tenant without actual redevelopment.

As a result of the consideration of the case, the court concluded that the part of the premises of the retail outlet fenced off by the entrepreneur for storing (warehousing) the goods with the help of shop windows, counters and other portable structures cannot be recognized as auxiliary (warehouse) premises, since the premises themselves presuppose its structural isolation and special equipment . In this case, the court found that the annex to the lease is not a title or inventory document.

Similar findings can be found in other court decisions.

Details of the decision	Judges Conclusions
Decision of the AU BBO dated 01/18/2016 in the case No. A79-1326 / 2015	The part of the premises of a retail outlet fenced off by a tenant for storing goods using shop windows and counters cannot be recognized as an auxiliary (warehouse) premise. Counters, shop windows, curtains can only be considered as conditional borders with gaps
Decision of the AU ZCO of 06.15.2016 in the case No. A45-5796 / 2015	Since the total area of \u200b\u200bthe trading floor is not structurally divided into any parts, including warehouses, storage rooms, or administrative premises (this follows from the technical passport of the premises, building plans, explications to them, lease agreements, additional agreements to the agreements, floor plan ), the physical indicator should be calculated from the total area of \u200b\u200bthe leased premises

We get acquainted with the opinion of officials

The situation analyzed in the article worries taxpayers for a long time. For example, in the Letter of the Ministry of Finance of the Russian Federation dated December 28, 2010 No. 03-11-11 / 333, the question was asked: are subsidiary, administrative and utility rooms, as well as premises for receiving, storing goods if the premises are separated, structurally isolated from the trading floor? separated from the sales area of \u200b\u200bthe trading floor) not by capital but by temporary partitions not indicated in the technical (cadastral) passport of the property (only in the appendix to the lease agreement)? Should for the purpose of assessing UTII include these premises in the total area of \u200b\u200bthe trading floor?

As often happens, officials shied away from a direct answer, while from their answer we can conclude that this is permissible.

When calculating the single tax on imputed income and determining the area of \u200b\u200bthe sales area, one should be guided by inventory and (or) title documents, in this case, a lease agreement, which should clearly indicate the area of \u200b\u200bthe sales area of \u200b\u200bthe premises leased to an individual entrepreneur.

Draw conclusions

Currently, fiscals are “sharpened” for tax collection. Therefore, the exclusion of an organization (IP) from the calculation of a physical indicator in order to calculate UTII part of the retail space is one of the common causes of tax disputes. Often judges echo officials.

In this case, of course, the attention of the tax authorities was attracted by the indication in the declaration on UTII of the unlawfully small (5 sq. M) floor space of the trading floor with a total floor space of 128 sq. M. m. Also, inspectors see a violation if the area of \u200b\u200bthe trading floor suddenly decreases for the same trading object (for example, in a dispute examined in the Resolution of the Far Eastern Administrative Court of 15.12.2015 in case No. A04-9307 / 2014, the size of the physical indicator of the area of \u200b\u200bthe trading place from January 2011 to January 2012 it was 42 sq. m, from February to May 2012 - 32 sq. m., while the tenant did not contact the lessor regarding the installation of additional partitions in the rented premises, equipment of the utility room for placing goods )

Officials do not see a crime in the fact that the area of \u200b\u200bthe trading floor can be determined on the basis of the conditions contained in the lease. However, it should be borne in mind that during the on-site tax audit, inspection representatives can go to the site and evaluate the correctness of the use of a physical indicator, as they say, in fact. Therefore, if a similar situation exists in the organization’s activities, one can count on a positive outcome only if the information specified in the lease agreement is true, that is, the trading object is actually divided into several rooms (albeit non-capital, but still walls) , and the inspectors will verify the nature of the use of each of the premises, provided that this separation is documented (by a lease agreement, an act of transfer and acceptance of the leased property, documents, confirmation holding the installation of partitions (“primary” for the acquisition of materials, certificate of completion, etc.)). The part of the premises of a retail outlet fenced off by a tenant for storing goods using shop windows and counters cannot be recognized as an auxiliary (warehouse) premise.

E.V. Labutina, Auditor of Audit-Partner LLC

When selling goods at retail for calculating UTII, the use of the indicator “trading place” or “floor space” is of great importance, since the amount of tax depends on the use of a specific term. How to correctly determine the indicator so as not to violate the Tax Code and be able to protect your interests in a dispute with a tax inspector or in a court dispute? We will understand the situation.

Separate flies from cutlets

The object of taxation for the application of UTII is the imputed income of the taxpayer (paragraph 1 of article 346.29 of the Tax Code of the Russian Federation). This refers to the potential income of the single tax payer, calculated taking into account the totality of factors directly affecting its receipt, and used to calculate the value of the single tax at the established rate.

Moreover, the value of imputed income, according to paragraph 2 of Art. 346.29 of the Tax Code of the Russian Federation, calculated as the product of the basic profitability for a certain type of entrepreneurial activity calculated for the tax period and the value of the physical indicator characterizing this type of activity.

Legislatively for the type of activity “retail trade” two indicators are established: “area of \u200b\u200bthe trading floor (in square meters)” and “trading place”. Despite the fact that the provisions of Ch. 26.3 of the Tax Code of the Russian Federation contain detailed instructions, including the conceptual framework, about in which cases which indicator should be used, the practical application of these norms clearly demonstrates that these instructions need to be further developed.

For example, clause 3 of article 346.29 of the Tax Code of the Russian Federation divides trade into:

Retail trade carried out through objects of a stationary trading network having trading floors;

Retail trade carried out through stationary trading network facilities that do not have trading floors;

Retail trade through the objects of non-stationary trading network.

As can be seen from the data given in the table above, the option of paying for the “trading place” is most attractive.

In order to correctly determine the physical indicator of basic profitability, it is necessary to consider in detail the concepts of Article 346.27 of the Tax Code.

In accordance with the requirements of Art. 346.27 of the Tax Code stationary is a trading network located in specially equipped, intended for trading buildings (their parts) and structures. In other words, the stationary trading network is formed by building systems, firmly connected with the foundation to the land and connected to utilities.

A store is a specially equipped stationary building (part of it) designed to sell goods and provide services to customers and provided with commercial, utility, administrative and household premises, as well as premises for receiving, storing goods and preparing them for sale;

Pavilion - a building with a trading floor and designed for one or more workplaces;

A kiosk is a building that does not have a trading floor and is designed for one seller’s workplace.

According to the current legislation, only those shops and pavilions with a floor space of less than 150 square meters can be transferred to UTII. m. At the same time, the area of \u200b\u200bthe trading floor refers to the area of \u200b\u200ball premises and open areas used by the taxpayer for trade, determined on the basis of inventory and legal documents, with the exception of utility, administrative and household premises, as well as premises for receiving, storing goods and preparing them for sales where visitors are not served. We note that such a revision of Sec. 26.3 of the Tax Code of the Russian Federation - clearly excluding utility, administrative, and warehouse premises from the trading floor space - entered into force on April 1, 2005.

However, in the text of Ch. 26.3 of the Tax Code does not specify what exactly is included in the concept “Inventory and title documents”. At the same time, both the Ministry of Finance of Russia and the Ministry of Taxes and Duties of Russia (now the Federal Tax Service of Russia) have repeatedly expressed the opinion that title documents and inventory documents include any documents that a taxpayer has for an object of a stationary retail network containing the necessary information about the purpose, design features and layout of premises of such an object, as well as information confirming the right to use this object, in particular:

Transfer agreement (sales contract) of non-residential premises;

Technical passport for non-residential premises;

Plans, schemes, explications;

Lease agreement (sublease) of non-residential premises or its part (parts);

Permission for the right to serve visitors in an open area

This is stated in letters of the Ministry of Finance of Russia dated December 21, 2004 No. 03–06–05–05–05 / 43 and dated May 7, 2004 No. 04–05–12 / 25, and in letters of the Ministry of Taxes of Russia dated March 2, 2004 No. 22–2–14 / [email protected]  and from 01.08.2003 No. 22–2–14 / 1757-AB026 and in some other explanations of the financial and tax departments.

Unsteady, according to Ch. 26.3 of the Tax Code of the Russian Federation, it is considered a trading network that operates on the principles of distribution and distribution of trade, as well as other objects of the organization of trade, not related to the stationary trading network. For example, an outdoor area and a tent.

In our opinion, the issue of a physical indicator needs to be decided in each case based on the characteristics of a particular outlet.

According to sub. 4 p. 2 Article 346.26 of the Tax Code of the Russian Federation, when deciding on the need to use UTII, an object that is directly operated by a taxpayer is considered, and when choosing a physical indicator, it is necessary to take into account the characteristics of this particular object. If the object directly operated by the taxpayer does not have a trading floor, then the indicator “trading place” should be used.

Here the content of the contract will be of no small importance. If the area is not defined in it, then it will be easier to prove that the tax must be paid from the trading place. In addition, you can confirm the use of a particular physical indicator by inventory and title documents.

Litigation - in favor of taxpayers!

There is an arbitration practice of making decisions on this issue in favor of taxpayers. For example, the Federal Antimonopoly Service of the West Siberian District, in a resolution dated February 24, 2005 No. F04–495 / 2005 (8576-A03–19), indicated that the retail space rented directly by the entrepreneur (11 and 9.5 sq. M) did not have sales areas and correspond to the concept of “trading place” defined by Art. 346.27 of the Tax Code. Since the tax authority did not provide evidence confirming that the entrepreneur used the trading floors for retail trade, the court refused to satisfy the claims (in recovering the single tax arrears calculated on the basis of the “sales area” indicator).

Similar decisions were made by the same court on January 11, 2005 in case No. F04–9232 / 2004 (7492-A03–19) and on December 9, 2004 in case No. F04–8791 / 2004 (6897-A03-19).

Courts usually justify the decision on the illegality of using the indicator “trading place” by the presence of a trading floor directly with the taxpayer. So, for example, in a resolution of the Federal Antimonopoly Service of the West Siberian District dated September 22, 2004 No. F04-6704 / 2004 (A46–4853–27), the arbitration court established what exactly area actually occupied by the entrepreneur  meets signs trading floor  (has a separate entrance, the installation site of the cash register machine, the seller’s workplace, stands and display cases with goods, walkways for buyers). A similar decision was made by the Federal Antimonopoly Service of the Urals District (Decree No. F09–4726 / 04-AK of November 30, 2004).

Official letters of regulatory authorities do not contain any clear explanations on this issue. Thus, the Ministry of Finance of Russia answered a very vague answer to the entrepreneur’s question about the applicability of the physical indicator “trading place” when renting a fenced-out trading place in a store in the form of a kiosk (that is, without a trading floor). He indicated that the indicator “trading place” should be used if the premises used for retail trade do not comply with the established ch. 26.3 of the Tax Code of the Russian Federation to the concept of a store (see letter of 02.02.2005 No. 03–06–05–05/05). And what to do when the premises themselves correspond to the concept of a “store”, and the trade is conducted from its part, in which there is no sales area, the Ministry of Finance did not inform.

Another problem is the lack of art. 346.27 of the Tax Code of the Russian Federation of the very concept of “trading floor” There is the concept of “sales area”, but it only helps to determine which premises should be excluded from the calculation (for example, warehouse, administrative, etc.) if the indicator “floor space” is used, and the answer to the question of how to determine whether there is a trading floor in the composition of the taxpayer’s area does not.

The wording “the area of \u200b\u200ball premises used for trade” gives tax officials grounds to consider as a trading floor any area used for trading in a stationary building (for example, a wholesale warehouse from which goods are sold for cash).

The law - that drawbar, as the court turned, so it happened

Some criteria of the trading floor are trying to form courts when considering the materials of specific cases.

For example, the Federal Antimonopoly Service of the North-Western District recognized that there is a trading room in the premises used by the entrepreneur for trade, on the grounds that it is equipped with a counter, shop windows and has a place to serve visitors (Decree No. A26-6098 / 04 dated February 14, 2005 –29).

In another case, the court decided that the part of the trading floor used by the entrepreneur does not correspond to the characteristics of the trading floor, as it is designed for one sales place of the seller, it lacks a self-service area and an aisle area for customers (Decision of the Federal Antimonopoly Service of the Ural District dated December 14, 2004 No. F09-5526 / 04-AK). The same FAS in another case took advantage of the provisions of Article 65 APC RF on the obligation of the tax authority to prove their views. Since the tax authority was unable to prove the fact of the presence of a trading floor in the premises used by the taxpayer, the court recognized the use of the “trading place” indicator as legitimate (resolution of the Federal Antimonopoly Service of the Urals District dated 18.01.2005 No. F09-5871 / 04-AK).

The criterion of the sales area as a place where aisle areas for buyers should be present is also used in the decisions of the Federal Antimonopoly Service of the West Siberian District (see Decisions dated 11.01.2005 No. Ф04–9232 / 2004 (7492-А03–19) and dated 02.12.2004 No. Ф04–8494 / 2004 (6606-А03–19)). If there is no such space, then the use of the indicator “trading place” is recognized as legitimate.

Labyrinths of chapter 26.3 of the Tax Code of the Russian Federation - not for the faint of heart

If a trading object does not meet any criteria of a stationary trading network, then it should be attributed to the objects of a non-stationary trading network. As follows from the definitions of Art. 346.27 of the Tax Code, only specially equipped and intended for trading buildings (their parts) and structures can be classified as stationary trading networks.

Therefore, if a taxpayer carries out retail trade from a premises that does not meet these criteria, then regardless of the presence (absence) of a trading floor, he has the right to use the indicator “trading space”.

Consider the signs of a stationary trading network in more detail.

1. The building (part of it) must be specially equipped.

What does this mean? In our opinion, the presence of shop windows, counters, racks, refrigeration units (if necessary), etc. Equipping the premises in this way is not difficult, therefore, this condition is feasible in relation to any room. Moreover, the degree of “equipment” is determined depending on the nature of trade and the desire of the taxpayer.

2. The building (part of it) should be intended for trade.

Who is "intended", the Tax Code does not specify. However, the current legislation requires mandatory cadastral and technical accounting (inventory) of all real estate, as well as state registration of rights to real estate and transactions with it (Articles 1 and 2 of Federal Law dated July 21, 1997 No. 122-FZ “On State registration of rights to real estate and transactions with it ”). Therefore, the purpose of the property should be determined on the basis of inventory and title documents for the building (structure). The Rules for maintaining the Unified State Register of Rights to Real Estate and Transactions therewith, approved by Decree of the Government of the Russian Federation of February 18, 1998 No. 219, stipulate that the certificate of state registration of rights must also include a description of the object of law (Section 74 of the Rules )

Since the description of the real estate object of the Unified State Register is made with the main purpose of the object, for example: residential, non-residential building, industrial, warehouse, commercial premises, etc. (paragraph 30 of the Rules), it can be assumed that the purpose of the object will be indicated in the certificate.

As for the technical inventory documents (data sheet, explication, etc.), then the indication of the purpose of the property is mandatory.

From the foregoing, we can conclude that the purpose of real estate is always determined in advance. It cannot be changed by the installation of commercial equipment in the premises or by an agreement on leasing it with the indication of trade as the purpose of use.

Apparently, the Ministry of Finance was guided by similar considerations when answering the taxpayer’s question about choosing a physical indicator in case of retail trade in the premises rented for these purposes in the building of the Communication House (the type of building was identified as production by the documents).

As explained by the Ministry of Finance, if the title and inventory documents do not allocate such a room as part of a building specially equipped and intended for trade, then this object should be considered as an object of an unsteady trading network and to use the physical indicator “trading place” to calculate UTII  (see letter of the Ministry of Finance of Russia dated March 26, 2004 No. 04–05–12 / 16).

The new position of the main financial department is as follows.

The technical passport for the premises is a document that only confirms the occupied area, but the status of the premises is determined based on the conditions of its actual use. Therefore, the premises can be attributed to the objects of an unsteady trading network only if it does not correspond to the established ch. 26.3 of the Tax Code of the Russian Federation to the concept of a store (see letters from the Ministry of Finance of the Russian Federation of 08.31.2004 No. 03–06–05–05/05, of 01.09.2004 No. 03–06–05–05 / 03, of 06.09.2004 No. 03–06– 05–04 / 13, dated October 15, 2004 No. 03–06–05–05–05 / 11).

However, the criterion of "intended for trade" is also present in the definition of a store given in Art. 346.27 of the Tax Code. Therefore, determining the status of the premises only on the basis of the conditions for its use is contrary to the Tax Code.

Note that the “chief executives” who use the indicator “trading place” when trading from an unsteady trading network have the right to refer to the above letter of the RF Ministry of Finance dated March 26, 2004 No. 04–05–12 / 16 (containing a more favorable position for taxpayers). According to sub. 3 p. 1 art. 111 of the Tax Code of the Russian Federation, the implementation of the written clarifications of the Ministry of Finance is a circumstance exempting the taxpayer from tax liability. So, at least this letter will exempt from the fine, but the additional charge of tax and penalties depends on what the position of the courts will be.

If one is nevertheless guided by the new position of the Ministry of Finance of Russia on this issue, then the choice of a physical indicator when trading from a premises not intended for these purposes should be based on other signs of the store:

The room should be specially equipped for the sale of goods and the provision of services to customers;

The room must be provided with commercial, utility, administrative and household premises, as well as premises for the reception, storage and preparation of goods for sale.

In addition, as follows from the definition of “stationary trading network”, the premises must have a trading floor.

In our opinion, even if we proceed from this interpretation by the Ministry of Finance of this issue, the single tax for trading from the office still needs to be calculated using the indicator “trading place”. As for trade from a warehouse or from other premises that are not intended for trade by documents, it all depends on how much these premises correspond to the characteristics of the store.

The definition of "trading place" in Art. 346.27 of the Tax Code there is (a place used to complete sales transactions). However, it is formulated in such a way that it gives rise to various interpretations.

To begin with, a deal is an institution civillegislation. According to paragraph 1 of Art. 11 of the Tax Code of the Russian Federation institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation used in the Tax Code of the Russian Federation are applied in the sense in which they are used in these sectors of the legislation, unless otherwise provided by the Tax Code of the Russian Federation.

In a purchase and sale transaction (or rather, under an agreement), one party (seller) agrees to transfer the thing into ownership to the other side (buyer), and the buyer agrees to accept this thing and pay a certain monetary price for it (clause 1 of article 454 of the Civil Code of the Russian Federation )

Place of transaction  civil law does not define. Speaking about the place of the transaction, the author of this definition apparently meant the place where the parties fulfill their obligations under the contract. Since the sale is carried out in cash, the place of performance of obligations under the contract should be considered the point of sale of the seller.

The question arises: how to calculate the number of trading places?  If one businessman himself works in his kiosk, then everything is obvious. And if three employees work behind three counters, and money makes its way through one cash register? What is considered a place of transaction - cash desk or counter? At the cash desk, the buyer performs his obligations under the transaction, and the seller at the counter.

The practical interpretation of this definition, in our opinion, is that the trading place is the seller’s workplace. Although a different point of view is possible.

Another problem with a trading place is that the owners of premises often use the wording “trading place” in the lease in their understanding, thus designating a distinguished retail outlet on the market or in another retail facility. And the tax authorities, having seen such an agreement, draw conclusions on the number of trading places based on it.

For example, the Federal Antimonopoly Service of the Central District considered a situation where an individual entrepreneur, who rented a trading counter, paid rent in accordance with the contract for two standard trading places (since this counter, according to the calculations of the market administration, allowed two sellers to work). But the entrepreneur worked alone, and therefore he calculated UTII as one trading place.

Guided by the lease, the tax authority demanded that the taxpayer pay the UTII, however, the court upheld the entrepreneur. As indicated by the FAS, in this case, the amount of the rent paid by the tenant for the use of the retail space of one counter cannot serve as a determining indicator of the number of trading places that are subject to UTII taxation (see Resolution No. A54–1153 / 04-C2 of 05.08.2004).

Similar decisions were made by the Federal Antimonopoly Service of the Volga Region (see Decisions dated 09.12.2004 No. A12–19074 / 04-C25 and dated 25.04.2002 No. A06–1376u – 19k / 01).

Changes to UTII, effective from January 1, 2006

Federal Law of July 21, 2005 No. 101-FZ expanded the types of entrepreneurial activity that are transferred to the payment of UTII.

Moreover, again clause 2.1 of Art. 346.26 of the Tax Code indicates that if the types of activities referred to in this article are carried out within the framework of a simple partnership agreement (joint activity agreement), they cannot be transferred to UTII.

But the disputed issues between the UTII payers and the tax authorities regarding:

- area calculation when deciding on the transition of retail and catering  on UTII, that is, the area is determined separately for each object;

- definitions of retail:  entrepreneurial activities related to the sale of goods (including cash, as well as using payment cards), based on sales contracts;

- taxation of trucking organizations,  which provide services for the transport of passengers and goods. Motor organizations may transfer to UTII if they own, by ownership or other right (use, possession and / or disposal), no more than 20 vehicles;

- definitions of catering services:  these include the manufacture of culinary products and confectionery products, the creation of conditions for the consumption and sale of industrial products, purchased goods, as well as leisure activities;

- transfer to UTII catering organizations that do not have a hall for serving visitors.

From 01.01.2006, the owners of kiosks, tents, vending machines and other similar facilities providing catering services will pay UTII.

The law of July 21, 2005 No. 101-ФЗ separately introduced as UTII payers organizations that place advertisements on vehicles, which include trucks and cars of organizations, as well as public transport (buses, trams, trolleybuses), water transport (river vessels ) and even trailers, semi-trailers, trailers-dissolution. At the same time, the place of information or installed billboards, signs and electronic displays is the roof and side surfaces of the bodies, and the basic yield from each vehicle is 10 thousand rubles.

Since 2006, the following are also transferred to UTII:

- services for the temporary placement and residence of citizens, that is, the hotel business, but we must take into account that the total area of \u200b\u200bthe sleeping quarters should not exceed 500 square meters. m;

- activities for the provision for temporary use of trading places in markets and other trading places that do not have a hall for serving visitors. The principle of calculating UTII acts, as in the case of non-stationary retail trade, and a trading place is taken as an indicator of basic profitability.