Who are tax agents and their rights? Tax agents. What can they be punished for?

Taxpayers are Russian and foreign organizations, both commercial (business partnerships, societies, production cooperatives, etc.) and non-profit (foundations, associations, consumer cooperatives, etc.).

Organizations that do not have the status of a legal entity are not recognized as payers of taxes and (or) fees (for example, trade union organizations).

Taxpayers (payers of fees) have the right:

1) receive from the tax authorities at the place of registration free information about current taxes and fees, legislation on taxes and fees and other acts containing norms of legislation on taxes and fees, as well as about the rights and obligations of taxpayers, the powers of tax authorities and their officials ;

2) receive written explanations from tax authorities and other authorized state bodies on the application of legislation on taxes and fees;

3) use tax benefits if there are grounds and in the manner established by the legislation on taxes and fees;

4) receive a deferment, installment plan, tax credit or investment tax credit in the manner and under the conditions established by the Tax Code of the Russian Federation;

5) for timely offset or refund of amounts of overpaid or overcharged taxes, penalties, fines;

6) represent your interests in tax legal relations personally or through your representative;

7) provide tax authorities and their officials with explanations on the calculation and payment of taxes, as well as on reports of tax audits carried out;

8) be present during an on-site tax audit;

9) receive copies of the tax audit report and decisions of the tax authorities, as well as tax notices and demands for payment of taxes;

10) demand that officials of tax authorities comply with the legislation on taxes and fees when they carry out actions in relation to taxpayers;

11) not to comply with unlawful acts and demands of tax authorities and their officials that do not comply with the Tax Code of the Russian Federation or other federal laws;

12) appeal in the prescribed manner against acts of tax authorities and actions (inaction) of their officials;

13) demand compliance with tax secrecy;

14) demand, in accordance with the established procedure, compensation in full for losses caused by illegal decisions of tax authorities or illegal actions (inaction) of their officials.

Taxpayers also have other rights established by the Tax Code of the Russian Federation and other acts of legislation on taxes and fees.

Taxpayers (payers of fees) are guaranteed administrative and judicial protection of their rights and legitimate interests. The procedure for protecting the rights and legitimate interests of taxpayers (payers of fees) is determined by the Tax Code and other federal laws.

Taxpayers are required to:

1) pay legally established taxes;

2) register with the tax authorities, if such an obligation is provided for by the Tax Code of the Russian Federation;

3) keep records of their income (expenses) and taxable items in accordance with the established procedure, if such an obligation is provided for by the legislation on taxes and fees;

4) submit to the tax authority at the place of registration, in the prescribed manner, tax returns for the taxes that they are obliged to pay, if such an obligation is provided for by the legislation on taxes and fees, as well as financial statements in accordance with the Federal Law “On Accounting”;

5) submit to the tax authorities and their officials in cases provided for by the Tax Code of the Russian Federation, documents necessary for the calculation and payment of taxes;

6) comply with the legal requirements of the tax authority to eliminate identified violations of the legislation on taxes and fees, and also not interfere with the legitimate activities of tax authorities officials in the performance of their official duties;

7) provide the tax authority with the necessary information and documents in the cases and in the manner provided for by the Tax Code of the Russian Federation;

8) for four years, ensure the safety of accounting data and other documents necessary for the calculation and payment of taxes, as well as documents confirming income received (for organizations - also expenses incurred) and taxes paid (withheld);

9) bear other responsibilities provided for by the legislation on taxes and fees.

For failure to fulfill or improper fulfillment of the duties assigned to him, the taxpayer (payer of fees) bears responsibility in accordance with the legislation of the Russian Federation.

Taxpayers (payers of fees) who pay taxes and fees in connection with the movement of goods across the customs border of the Russian Federation also bear responsibilities provided for by the customs legislation of the Russian Federation.

Tax agents are persons who, in accordance with the Tax Code of the Russian Federation, are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to the appropriate budget (extra-budgetary fund).

Tax agents have the same rights as taxpayers, unless otherwise provided by the Tax Code of the Russian Federation.

Tax agents are required to:

1) correctly and timely calculate, withhold from funds paid to taxpayers, and transfer appropriate taxes to budgets (extra-budgetary funds);

2) within one month, notify in writing the tax authority at the place of your registration about the impossibility of withholding tax from the taxpayer and about the amount of the taxpayer’s debt;

3) keep records of income paid to taxpayers, taxes withheld and transferred to budgets (extra-budgetary funds), including personally for each taxpayer;

4) submit to the tax authority at the place of registration the documents necessary to monitor the correctness of calculation, withholding and transfer of taxes.

Tax agents transfer withheld taxes in the manner prescribed by the Tax Code of the Russian Federation for tax payment by a taxpayer.

For failure to perform or improper performance of the duties assigned to him, the tax agent is liable in accordance with the legislation of the Russian Federation.

In cases provided for by the Tax Code of the Russian Federation, acceptance from taxpayers and (or) payers of collections of funds in payment of taxes and (or) fees and transferring them to the budget can be carried out by state bodies, local governments, other authorized bodies and officials - tax collectors and ( or) fees.

The rights, duties and responsibilities of tax and (or) fee collectors are determined by the Tax Code of the Russian Federation, federal laws and legislative acts of constituent entities of the Russian Federation adopted in accordance with them and regulatory legal acts of representative bodies of local self-government on taxes and (or) fees.

Tax agent rights

The functions of a tax agent include transferring the tax collected from the taxpayer, and not paying the tax at his own expense.

If the tax representative did not pay the required amount of personal income tax on time, then, according to a single law, it is impossible to collect from him the amount of personal income tax that he did not calculate. In this situation, the order to pay the tax must be given to the taxpayer, and not to the tax agent.

This fact is associated with the fact that in this case the payer does not cease to be the obligated person. In accordance with the norms of the Tax Code of the Russian Federation, his obligation to pay tax is unfulfilled, since the tax agent did not calculate the amount of tax.

In the event that no cash payments under personal income tax were made to the person paying the taxes during the tax period and withholding the tax amount became impracticable, the tax agent must only calculate the required amount of personal income tax available for payment by the taxpayer and notify the tax authority of the impossibility of calculating the tax.

This position is based on the fact that the obligated person is the payer, to whom a proper demand for tax payment can be made in the event of failure to fulfill the duties of a tax agent.

At the same time, the Plenum of the Supreme Arbitration Court of Russia showed that the thesis about failure to fulfill the duties of a tax agent is not applicable, the money is paid by a foreign citizen, due to his non-registration in the Russian tax service and the impracticability of his tax administration.

Types of tax agents

Tax agents are recognized for 3 taxes - personal income tax, VAT and income tax.

When paying individuals remuneration under employment contracts or other profits in cash, including under civil agreements on the need to perform work, offer services or copyright agreements, the enterprise is obliged to calculate and withhold personal income tax from their profits and transfer the tax to the state budget.

A subject can be a tax agent for VAT if he performs, in particular, the following actions:

leases municipal or state property from authorities;
receives from a foreign person who is not registered with the tax authorities of Russia, goods, the place of sale of which is the territory of Russia.

The subject becomes a tax agent for income tax:

when paying dividends;
when paying profits to a foreign company that does not have a permanent representative in the Russian Federation.

Participants in relations controlled by law also include companies and individuals recognized as tax representatives in accordance with the law.

Tax agents can be individuals and companies who have direct obligations to calculate, withhold and transfer certain taxes to the state budget of Russia.

As applied to income tax, it is established that if the taxpayer is considered to be a foreign enterprise that receives profits from sources in Russia that are not associated with its permanent establishment in Russia, then the obligation to determine the amount of tax, withhold this amount from the taxpayer’s profit and transfer tax to the state budget is assigned to a Russian company or a foreign company operating in Russia through a permanent establishment, paying the required income to the taxpayer.

Tax representatives for value added tax are bodies, companies or private merchants authorized to carry out on the territory of Russia the sale of confiscated property, property sold by court decision, purchased valuables, and also valuables transferred by right of inheritance to the country.

In addition, it is taken into account that when regional self-government bodies provide urban property for rent on the territory of Russia, the tax base is formed as a set of rents, taking into account the tax by the tax representative separately for any paid item of property; in this case, the tax representatives are the tenants of the said property; they have the obligation to calculate, withhold from the money paid to the lessor, and pay the appropriate amount of tax to the state budget.

Tax agents have the same powers as taxpayers, unless otherwise provided by law. Tax authorities are responsible for damages caused to tax representatives due to illegal transactions or inaction of the designated organizations, as well as illegal transactions or inaction of officials and their other employees when fulfilling their official obligations.

Responsibilities of tax agents

Tax agents are required to:

1) correctly and on time calculate, withhold from funds paid by the taxpayer, and transfer taxes to the state budget of Russia to the appropriate accounts of the Federal Treasury;

2) make a written notification to the tax office at the place of own registration about the impossibility of withholding tax and about the amount of the taxpayer’s debt within one month from the moment the tax agent learned about such situations;

3) keep records of accrued and paid profits to taxpayers, calculated, deducted and transferred taxes to the budget system of Russia, including for any taxpayer within the specified time frame;

4) show to the tax office at the place of own registration the papers necessary for monitoring the accuracy of calculation, withholding and transfer of taxes;

5) for 4 years, guarantee the security of papers necessary for the calculation, withholding and transfer of tax fees. In addition, tax agents have every chance to bear other responsibilities provided for by law.

The obligation to pay a certain tax lies with the taxpayer. It must be completed by him without the help of others, unless otherwise is clearly provided for by law. Involving a tax agent in a relationship is considered just such an exception. In connection with the noted importance of tax agents in relations with the fulfillment of direct obligations to pay taxes, the legal point of view on the moment the taxpayer fulfills this direct obligation deserves special interest.

The tax can only be paid in cash, in other words, through the alienation of the taxpayer’s funds, which belong to him by right of ownership. At the same time, the duties of the tax agent to the taxpayer have every chance of being fulfilled in non-monetary form.

In this regard, one should take into account the legal position, according to which in this case, if the profit subject to personal income tax tax from the tax agent was received by the taxpayer in non-monetary form and no financial payments were made in the corresponding tax period, the tax agent does not there are obligations to calculate tax and in this case the required information will be provided by the tax agent.

Responsibility for failure to fulfill the duties of a tax agent

If no payments were made to the taxpayer during the tax period and withholding the amount of tax became unfeasible, tax agents are only required to calculate the required amount of personal income tax available for payment by the taxpayer and inform the tax authority about the impossibility of withholding the tax and the required amount of tax debt of the corresponding taxpayer.

The established judicial body then indicates that the forced fulfillment of the obligations of the tax agent by collecting from him untransferred amounts of tax, and in addition certain amounts of penalties, is permissible only if the tax representative nevertheless deducted the amount of tax from the taxpayer, but was not transferred to the state budget . The Supreme Arbitration Court considers an exception to this rule if the tax was not calculated by the tax representative when paying money to a foreign citizen who is not registered for tax purposes in Russia. In these conditions, it is reasonable to collect from the tax agent not only penalties, but also the amount of the personal income tax tax itself.

The rules defined for taxpayers can be applied to tax representatives only in cases directly determined by law.

In this regard, several legal positions of different judicial organizations are of interest.

Thus, the Supreme Arbitration Court of Russia advised lower courts to take into account the fact that since the likelihood of suspension of transactions on bank accounts is associated with late submission of tax returns, and the tax return can only be shown by the taxpayer, the appropriate interim measure cannot be used in any way to the tax agent if he violates the deadlines for submitting calculations.

On the other hand, in this Resolution, the Supreme Arbitration Court of Russia indicated that the offset or return of overpaid amounts of tax and penalties arising if late payment was made also applies to tax agents, explaining that if, when analyzing the case, the court determines that the excessive funds brought into the state budget by the tax representative do not exceed the amounts deducted from the taxpayer, in this case, the decision to set off or to return these amounts in favor of the tax agent may be made by the court in only two options:

1) in the event that the return to the taxpayer of amounts excessively deducted from him by the tax agent for personal income tax is imposed on him by law;

2) if, at the request of the taxpayer or on his own initiative, the tax representative returned to the taxpayer the necessary amount of personal income tax deducted from him without reason.

Tax agents (Article 24 of the Tax Code of the Russian Federation) are persons who, in accordance with this Tax Code of the Russian Federation, are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to the appropriate budget (extra-budgetary fund).

Tax agents have the same rights as taxpayers, with the exception of cases provided for by the Tax Code of the Russian Federation:

· receive free information from tax authorities at the place of your registration (including in writing) about current taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, rights and responsibilities of taxpayers, powers of tax authorities and their officials, as well as receive tax reporting forms and explanations on the procedure for filling them out;
· receive written explanations from the Ministry of Finance of the Russian Federation on the application of the legislation of the Russian Federation on taxes and fees, from financial authorities in the constituent entities of the Russian Federation and local governments - on the application of the relevant legislation;
· use tax benefits if there are grounds and in the manner established by the legislation on taxes and fees;
· receive a deferment, installment plan, tax credit or investment tax credit in the manner and under the conditions established by the Tax Code of the Russian Federation;
· for timely offset or refund of amounts of overpaid or overcharged taxes, penalties, and fines;
· represent your interests in tax legal relations personally or through your representative;
· provide tax authorities and their officials with explanations on the calculation and payment of taxes, as well as on reports of tax audits carried out;
· be present during an on-site tax audit;
· receive copies of the tax audit report and decisions of the tax authorities, as well as tax notices and demands for payment of taxes;
· demand that officials of tax authorities comply with the legislation on taxes and fees when they carry out actions in relation to taxpayers;
· not comply with unlawful acts and demands of tax authorities, other authorized bodies and their officials that do not comply with the law;
· appeal in the prescribed manner acts of tax authorities, other authorized bodies and actions (inaction) of their officials;
· demand compliance with tax secrecy;
· demand full compensation for losses caused by illegal decisions of tax authorities or illegal actions (inaction) of their officials.

Tax agents are required to:

· correctly and timely calculate, withhold from funds paid to taxpayers, and transfer appropriate taxes to budgets (non-budgetary funds);
· within one month, notify in writing the tax authority at the place of your registration about the impossibility of withholding tax from the taxpayer and about the amount of the taxpayer’s debt;
· keep records of income paid to taxpayers, taxes withheld and transferred to budgets (non-budgetary funds), including personally for each taxpayer;
· submit to the tax authority at the place of your registration the documents necessary to monitor the correctness of calculation, withholding and transfer of taxes.

Tax agents transfer withheld taxes in the manner prescribed by the Tax Code of the Russian Federation for tax payment by a taxpayer.

For failure to perform or improper performance of the duties assigned to him, the tax agent is liable in accordance with the legislation of the Russian Federation.

Tax agents are another subject of tax legal relations, along with taxpayers and tax authorities, but if various authors have constantly written and are writing about taxpayers and tax authorities, trying to most accurately determine their legal status, then tax agents are rarely mentioned anywhere. The Law of the Russian Federation “On the Fundamentals of the Tax System in the Russian Federation” does not give the concept of this subject of tax legal relations, but in Article 15 of this law there is one paragraph that can be attributed to the duties of a tax agent:

Enterprises are required to correctly withhold income tax on income they pay to individuals and promptly transfer the withheld amounts to the budget. In case of failure to fulfill these obligations, the heads of these enterprises are subject to administrative liability in the form of a fine in the amount of five times the minimum monthly wage established by law.

This rule of law establishes the administrative responsibility of heads of tax agent enterprises. In order to find out what types of liability can be imposed on the enterprises themselves, it is necessary to find out what kind of legal structure this is - a tax agent?

Tax agents are subjects of tax legal relations who are entrusted with the obligation to withhold and transfer taxes to the budget for the taxpayer, provided that the person (tax agent) himself was the source of the taxpayer’s income. An example would be the relationship between an employee of an enterprise and the enterprise when the employee receives wages. The company itself calculates the amount of tax from the employee’s salary and transfers it to the budget. The employee receives his salary minus the amount of tax.

The tax agent himself calculates the amount of tax from the taxpayer’s income before paying the latter his income, so in this case the tax is paid at the source of income. The taxpayer, as it were, advances the state, paying tax before receiving income.

The responsibilities of the subject of tax relations in question are provided for in Article 20 of the Law of the Russian Federation “On Income Tax from Individuals”: enterprises, institutions, organizations and individuals registered as entrepreneurs who are sources of income are obliged to: timely and correctly calculate, withhold and contribute to budget amount of taxes on personal income; promptly submit to the tax authorities information about the income they paid to individuals in the manner prescribed by current legislation.

This rule of law establishes responsibilities for tax agents; it must be said that these responsibilities are also the main tasks of tax agents.

Let's consider the specific elements of the offense typical of tax agents, i.e. The subjects of this offense are tax agents.

Failure to pay or untimely payment of tax, i.e. failure to pay the tax by the deadline established by law or payment of the tax later than the deadline by a person obligated by law to calculate, withhold and pay the tax instead of the taxpayer.

The object of this offense is the obligation of tax agents to pay tax on behalf of the taxpayer.

The subjective side can be expressed both in the form of intent and in the form of negligence (negligence, carelessness).

Legislation recognizes as taxpayers citizens and organizations who are entrusted with the obligation to make regular gratuitous and non-refundable contributions to the budget. In cases provided for by regulatory provisions, such entities are foreign structures that are not legal entities. The legislation also provides for such a category as tax agents. Their responsibilities are somewhat broader and, accordingly, their responsibility is higher. Let's consider further how taxpayers and tax agents differ.

Responsibilities of subjects

As a general rule, taxpayers and tax agents must:

Carry out deductions of amounts established by law to the budget.
Register with the control service.
Maintain reports on income and expenses, as well as on objects of taxation in the prescribed manner.
Submit declarations to the tax office.
Send to the control body and its officials documents that are necessary for the calculation and subsequent payment of mandatory fees.
Present a book of expenses and income. This obligation is imposed on individual entrepreneurs, privately practicing notaries, and lawyers who have established offices.
Submit annual financial (accounting) statements to the control body no later than three months from the end of the period. This obligation is not imposed only on those organizations that, in accordance with Federal Law No. 402, are exempt from the need to keep records or are religious associations that have not acquired a taxable object for a certain period of time.
Comply with the requirements of control authorities to eliminate identified violations of the law, and not interfere with the lawful activities of employees.
Ensure the safety of tax and accounting information and other documents required for the calculation and payment of established fees for 4 years. These include, among other things, data confirming expenses and receipt of income.
Perform other duties provided for in the Tax Code.

Tax agent

In some cases, there is a need to accumulate financial resources from a large number of entities. In this case, it is advisable to introduce another participant into the relationship. This is a tax agent (individual or organization). This subject has expanded powers. In particular, the personal income tax tax agent not only receives, but also calculates and withholds the corresponding amounts. For example, when calculating employee salaries, employers deduct from it deductions to be sent to the budget.

Specifics

Tax agents receive their status only for the purpose of performing specific duties. They, in turn, can be assigned only to those citizens and organizations that act as a source of income payment. In various respects, one entity can act as a tax agent and taxpayer. A person cannot renounce his status unless he simultaneously relinquishes his responsibilities for transferring and paying income. Tax agents are, among other things, Russian organizations from which foreign legal entities receive profit that serves as an object of taxation.

Legal options

The legislation establishes the following rights of tax agents:

What should tax agents do?

In accordance with the law, these entities are assigned the following responsibilities:

Accrue withholding and payment of established amounts of fees to the budget. This provision is fixed in the first subparagraph of paragraph 1 of Article 24 of the Tax Code.
Notify control services and their employees about the results of their own activities. This requirement is provided for in subparagraphs 2 and 4 of paragraph 3 of Article 24 of the Tax Code.
Keep records in accordance with the procedure established by law. This obligation is established in the third subclause of clause 3 of Art. 24 Code.
Ensure proper preservation of documentation necessary to perform their duties. This provision is fixed in the fifth subparagraph of paragraph 3 of the above article of the Tax Code.

General procedure

The obligation to deduct statutory payments to the budget means that the tax agent must timely and correctly calculate, withhold from the funds he pays to the taxpayer, and also direct them to the appropriate accounts for the required taxes. There is one important point to note here. Legislation that regulates the tax deduction procedure provided for taxpayers applies to agents only in relation to amounts withheld. The actual transfer of established fees to the budget is carried out according to general rules.

Informing

The obligation to notify the control body and its employees about the results of the activities carried out implies that within a specified period (within a month) at the place of registration the subject reports:

On the impossibility of withholding from the taxpayer the amounts provided by law.
About total debt.

In addition, the law establishes the obligation to provide the documentation necessary to control the correctness of the calculation of the amounts that the tax agent calculated, withheld and transferred (for personal income tax, to extra-budgetary funds).

Accounting

The obligation to maintain reports in the established manner for a tax agent implies the need for personal (for each individual taxpayer) and general (for all entities) generalization of information about:

Responsibility

As mentioned above, the requirements for tax agents are higher than for payers. This is due to the broader powers of the former compared to the latter. In tax legal relations, an agent, unlike, for example, a representative of the payer, represents his own interests rather than his. For failure to comply or improper fulfillment of the requirements established in legislative norms, the former is subject to more stringent sanctions. At the same time, the law does not allow holding a taxpayer accountable for violations committed by a tax agent in his activities. This provision also applies to cases of improper fulfillment by the latter of the duties imposed on him by law to calculate, withhold and send the necessary amounts to the budget.

Tax agents- one of the most numerous groups of subjects of tax law. Tax agents are persons who are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to the appropriate budget (extra-budgetary fund). Tax agents have the same rights as taxpayers, with minor exceptions.
Tax agents are required to:
1. Correctly and timely calculate, withhold from funds paid to taxpayers, and transfer appropriate taxes to budgets;
2. Within one month, notify in writing the tax authority at the place of your registration about the impossibility of withholding tax from the taxpayer and about the amount of the taxpayer’s debt;
3. Keep records of income paid to taxpayers, taxes withheld and transferred to budgets, including personally for each taxpayer;
4. Submit to the tax authority at the place of your registration the documents necessary to monitor the correctness of calculation, withholding and transfer of taxes. For failure to fulfill or improper fulfillment of the duties assigned to them, the tax agent is liable in accordance with the legal norms of Chapters 15 - 17 of the Tax Code of the Russian Federation and other acts of legislation on taxes and fees.
Depending on the nature and content of their duties, tax agents can be divided into several groups.
The first group includes Russian organizations, individual entrepreneurs and permanent representative offices of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income. They are obliged to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with the law.
The second group of tax agents consists of organizations and individual entrepreneurs who pay income in the form of dividends, interest on the sale of shares, real estate, received from the use of property, intellectual property, international transportation, etc. foreign organizations operating in the Russian Federation not through a permanent representative office.
The third group includes organizations and individual entrepreneurs paying for goods (work, services) of foreign organizations that are not registered with the tax authorities of the Russian Federation as taxpayers who are required to calculate, withhold and transfer VAT to the relevant budgets.
The fourth group of tax agents includes organizations that pay income on their shares, bonds, other securities, as well as income from equity participation in them, which are required to withhold taxes on the amounts of income paid (Article 226 of the Tax Code of the Russian Federation).

Interdependent persons.

1. For tax purposes, interdependent persons are recognized as individuals and (or) organizations, relations between which may influence the conditions or economic results of their activities or the activities of the persons they represent, namely:

(as amended by Federal Law dated July 9, 1999 N 154-FZ)

1) one organization directly and (or) indirectly participates in another organization, and the total share of such participation is more than 20 percent. The share of indirect participation of one organization in another through a sequence of other organizations is determined as the product of the shares of direct participation of organizations of this sequence in one another;

(Clause 1 as amended by Federal Law dated 07/09/1999 N 154-FZ)

More on the topic Taxpayers and tax agents, their rights, duties and responsibilities:

Tax agent rights

Types of tax agents

Responsibilities of tax agents

Responsibility for failure to fulfill the duties of a tax agent

Responsibilities of subjects

Tax agent

Specifics

Legal options

What should tax agents do?

General procedure

Informing

Accounting

Responsibility