Fine for failure to pay personal income tax on time: by an individual or legal entity. You can reduce the fine for non-payment of personal income tax if the company has financial difficulties Responsibility for non-payment of personal income tax of legal entities

The obligation to pay personal income tax may lie with the taxpayer himself - an individual, including individual entrepreneurs, or with the tax agent paying income subject to personal income tax to individuals (clause 1 of article 227, clause 2 of article 214, clause 1 of article 228, Clause 1 of Article 226 of the Tax Code of the Russian Federation). There are penalties for non-payment of tax or late payment.

Fine for non-payment of personal income tax by a tax agent

By general rule if the tax agent does not withhold and/or transfer personal income tax from the taxpayer’s income, or does not fully withhold and/or does not fully transfer the tax, then a fine in the amount of 20% of the amount that needed to be withheld/transferred to the budget may be collected from the tax agent (Article 123 of the Tax Code of the Russian Federation). True, only in the case where the agent had the opportunity to withhold personal income tax from the income of an individual. After all, if a citizen was paid income, for example, only in kind, then tax cannot be withheld from him (clauses 4, 5 of Article 226 of the Tax Code of the Russian Federation, clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court of July 30, 2013 No. 57). And in such a situation, the fine is not applicable to the tax agent.

A fine can be avoided in case of non-withholding/non-transfer if the following conditions are met (clause 2 of Article 123 of the Tax Code of the Russian Federation):

• the personal income tax calculation is submitted to the Federal Tax Service in a timely manner;
• in the calculation there are no facts of non-reflection or incomplete reflection of information and (or) errors leading to an underestimation of the amount of tax payable to the budget;
• the tax agent independently paid the amount of tax not transferred on time and penalties until the moment when the agent became aware of the discovery by the Federal Tax Service of the fact of untimely transfer of personal income tax or the appointment of an on-site tax audit for this tax for the corresponding tax period.

In some cases, tax authorities try to collect from the tax agent, in addition to a fine, arrears and penalties.

Penalty for non-payment of personal income tax by the taxpayer himself

For non-payment or incomplete payment of tax resulting from an understatement of the tax base, an individual may be subject to a fine in the amount of 20% of the unpaid tax amount or 40% if the act was committed intentionally (

All employers (organizations and individual entrepreneurs), being tax agents, must charge, withhold and transfer personal income tax on income paid to their employees. It is very important to do this in a timely manner and not to violate the deadlines established for transferring taxes to the budget, in order to avoid the formation of arrears and sanctions from the Federal Tax Service in the form of a fine for late payment of personal income tax. Tax authorities may discover debts not paid on time during inspections, monitoring and other control actions. Within 3 months after the delay is detected, the Federal Tax Service will issue a demand for payment of tax and penalties (Clause 1, Article 70 of the Tax Code of the Russian Federation), and will also charge a fine.

Let's consider what sanctions may be for employers who violate the deadlines for paying personal income tax.

Penalties for late payment of personal income tax

If previously tax agents were required to pay personal income tax to the budget on the same day when cash was withdrawn from the bank for payments to employees, or funds were transferred to their accounts, then since 2016 these rules have changed. Now the tax must be transferred no later than the next day after the payment of income to the employee. Personal income tax withheld from sick leave and vacation pay can be transferred until the end of the month in which they were paid to the employee (clause 6 of Article 226 of the Tax Code of the Russian Federation).

For the fact that personal income tax has not been paid by a tax agent, as well as for untimely transfer of tax, even if it is only one day overdue, the agent faces a fine of 20% of the amount that he was supposed to transfer to the budget (Article 123 of the Tax Code of the Russian Federation). Required condition To apply this sanction, the tax agent has no obstacles to withhold tax. Moreover, based on judicial practice, liability in the form of a fine cannot be avoided, even if the overdue tax is transferred to the budget before the personal income tax reporting is submitted and the violation of the payment deadline is discovered by the tax inspectorate (determination of the RF Armed Forces dated April 11, 2016 No. 309-KG15-19652).

In the case where the income was received by the employee in kind, or in the form of material benefits, it will be possible to withhold personal income tax only when this individual receives any income in cash from the tax agent (clause 4 of Article 226 of the Tax Code of the Russian Federation). In the absence cash income It is impossible to withhold tax from an employee. To avoid a fine, the tax agent is obliged to inform in writing about the impossibility of withholding personal income tax to the individual taxpayer and the Federal Tax Service (Clause 5 of Article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of the Russian Federation dated 02/09/2010 No. 03-04-06/10-12). The message is a certificate in form 2-NDFL, which must be sent before March 1 of the year following the reporting year (clause 2 of the Federal Tax Service Order No. ММВ-7-3/611 dated November 17, 2010).

If the tax agent withheld personal income tax from the income of employees, but did not transfer it within the prescribed period, penalties are charged for the amount of arrears resulting from non-payment of tax for each overdue calendar day (clause 7 of article 75 of the Tax Code of the Russian Federation). The amount of penalties is equal to 1/300 of the Central Bank refinancing rate currently in effect.

If personal income tax was not withheld from the employee’s income at all, then the tax authorities have no right to collect the arrears, and therefore penalties, since according to the law, payment of tax at the expense of the tax agent is impossible (clause 9 of Article 226 of the Tax Code of the Russian Federation).

We remind you that sanctions are also inevitable for late tax reporting. Thus, for failure to submit 2-NDFL on time, the tax agent faces a fine of 200 rubles for each certificate not submitted on time, and for missing the deadline for submitting the quarterly 6-NDFL calculation, they can be fined 1,000 rubles for each overdue month, both full and incomplete ( clauses 1 and 1.2 of Article 126 of the Tax Code of the Russian Federation).

Everyone is required to pay income tax individuals, receiving profit from almost any source. Employees do this through their tax agents. Let's consider which fine for non-payment of personal income tax laid in 2019.

Basic norms

In order not to run into a fine for non-payment of personal income tax by a tax agent in 2019, you must comply with the following requirements:

Sanction for tax agents

Organizations and businessmen who have concluded employment contract, act as tax agents. They are required to calculate, withhold and pay income tax to the treasury. This requirement is established by paragraph 1 of Art. 24 Tax Code of the Russian Federation. Similar functions are performed by:

1. persons engaged in private practice (lawyers, notaries, etc.);
2. branches of foreign companies located on the territory of the Russian Federation.

Tax agents are required to regularly deduct income tax in the amount of 13% of the taxable amounts (with an accrual total in reporting). But there are other rates: 9, 30 and 35%. They operate depending on:

• income categories;
• type of payer.

Individual entrepreneurs regularly make advance payments for personal income tax. And at the end of the reporting year, they pay tax. Such requirements are established by paragraphs 6 and 9 of Art. 227 Tax Code.

Please note: the amount and procedure for imposing a fine for non-payment of personal income tax by a tax agent in 2019 remained the same.

Sanction for payers

The legislation obliges ordinary individuals who do not have the status of a legal entity or individual entrepreneur to independently deduct contributions from their income, which is received, for example, from the following sources:

• sale of property (condition: it was owned for less than 3 years);
• receiving a cash prize of more than 4,000 rubles;
• big win in the lottery, etc.

Residents of the Russian Federation who received funds from foreign sources are also required to pay tax and file a declaration. The legislation sets a deadline: no later than April 30 of the year following the current one (clause 1 of Article 229 of the Tax Code of the Russian Federation). Failure to comply with this rule entails a fine of 20% of the non-transferred personal income tax amount.

Please note that the deadline for filing 3-NDFL in 2019 has not changed. Based on Article 229 of the Tax Code of the Russian Federation, you must report your income for 2017 by April 30, 2019 inclusive. But since this will be a day off due to the postponement, the deadline according to the official production calendar falls on May 03, 2019. The first working day after the traditional May holidays will be Thursday.

Keep in mind: a person’s ignorance of the fact that he is obliged to deduct personal income tax does not exempt him from liability. The tax authority may impose not only a fine, but also arrears + penalties.

Read also The Federal Tax Service has updated the 3-NDFL declaration form from 2018

Moreover: in case of a deliberate violation (for example, illegal reduction of the tax base), the sanction will increase to 40%. Such cases usually include:

• reduction in the amount of declared income;
• taking deductions that you are not entitled to.

EXAMPLE

Orlov sold the apartment and dacha, which had been owned for less than three years. Sum income tax amounted to 32,800 rubles. However, the citizen deliberately underestimated tax base, having illegally taken advantage of a deduction for installation work. As a result, the tax inspector issued a fine.

The legislation provides for 2 cases in which monetary penalties are not imposed:

1. untimely transfer of income tax to the treasury (clause 19 of the resolution of the Plenum of the Supreme Arbitration Court No. 57; only penalties will be charged);
2. absence from the merchant of advance payments for personal income tax (clause 3 of article 58 of the Tax Code of the Russian Federation).

Statute of limitations and identification features

The tax authorities' demands to pay fines, arrears and penalties have a time limit of 3 years (clause 1 of Article 113 of the Tax Code of the Russian Federation). After this period, it is difficult to recover the amount.

The unpaid amount is usually identified as a result of a tax audit, on the basis of which a report on the discovery of the debt is drawn up.

Remember: timely identification of financial obligations to the budget and compliance with legal regulations will allow you to avoid fines for non-payment of personal income tax. This will prevent additional losses and litigation.

Conclusions

The tax office may collect from the tax agent a fine in the amount of 20 percent of the personal income tax amount that must be withheld and (or) transferred to the budget:

• if, within the established period, the tax agent did not withhold or did not fully withhold tax from cash payments to the counterparty;
• if, within the established period, the tax agent has not transferred or has not fully transferred the withheld amount of tax to the budget.

This follows from the provisions of Article 123 of the Tax Code of the Russian Federation.

The paid fine does not relieve the tax agent from the obligation to transfer the withheld amount of tax to the budget (clause 5 of Article 108 of the Tax Code of the Russian Federation). Moreover, the tax inspectorate can recover these amounts in an indisputable manner (clause 1 of article 46, clause 1 of article 47 of the Tax Code of the Russian Federation).

Having considered the issue, we came to the following conclusion:

The employing organization in the situation under consideration may be held liable on the basis of Art. 123 of the Tax Code of the Russian Federation for violating the deadline for transfer to the budget system of the Russian Federation personal income tax amounts, calculated and withheld from wages in the manner prescribed by the Tax Code of the Russian Federation. The sending by the tax authority of an organization of a demand for payment of arrears or other similar demand is not mandatory for this purpose.

Rationale for the conclusion:

Tax agents are persons who, in accordance with the Tax Code of the Russian Federation, are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation (clause 1 of Article 24 of the Tax Code of the Russian Federation).

In accordance with paragraphs. 1 clause 3 art. 24 of the Tax Code of the Russian Federation, tax agents are obliged to correctly and timely calculate and withhold from cash, paid to taxpayers, and transfer taxes to the budget system of the Russian Federation to the appropriate accounts of the Federal Treasury.

In particular, paragraph 6 of Art. 226 of the Tax Code of the Russian Federation obliges tax agents to transfer the amounts of calculated and withheld personal income tax on income in the form of wages no later than the day following the day of payment of this income to the taxpayer.
For non-fulfillment or improper fulfillment of the duties assigned to him he is liable in accordance with the legislation of the Russian Federation (clause 5 of Article 24 of the Tax Code of the Russian Federation).

Yes, Art. 123 of the Tax Code of the Russian Federation provides for liability in the form of a fine for unlawful failure to withhold and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of tax amounts subject to withholding and transfer by a tax agent in the amount of 20% of the amount subject to withholding and (or) transfer.

As follows from the above norm, it determines the onset of liability even if the tax agent transferred the tax withheld from the taxpayer to the budget system of the Russian Federation, but did so in violation deadline(see, for example, letters from the Ministry of Finance of Russia dated 04/12/2013 N 03-02-07/1/12347 and dated 03/19/2013 N 03-02-07/1/8500).

Thus, the employing organization in the situation under consideration can be held liable on the basis of Art. 123 of the Tax Code of the Russian Federation for violation of the deadline for transferring personal income tax amounts calculated and withheld from wages to the budget system of the Russian Federation, in the manner prescribed by the Tax Code of the Russian Federation, for at least one day.

The basis for bringing a person to justice for violating the legislation on taxes and fees is the establishment of the fact of the commission of this violation by a decision of the tax authority that has entered into force (clause 3 of Article 108 of the Tax Code of the Russian Federation).

In the situation under consideration, the case of an offense committed by the organization can be considered exclusively in the manner provided for in Art. 101 of the Tax Code of the Russian Federation, accordingly, this offense can only be detected as a result of a tax audit (Article 100.1 of the Tax Code of the Russian Federation, clause 37 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when applying arbitration courts part one of the Tax Code of the Russian Federation").

The fact of detection of a tax offense during a tax audit is recorded in the tax audit report (clause 12, clause 3, article 100 of the Tax Code of the Russian Federation). Based on the results of consideration of the report and other materials of the tax audit, the head (deputy head) of the tax authority may make a decision to hold the person accountable for committing a tax offense (hereinafter referred to as the Decision) (clause 1, subclause 1, clause 7, article 101 of the Tax Code of the Russian Federation) . It will come into force after one month from the date of its delivery to the person in respect of whom the Decision was made (his representative), and in the case of filing an appeal - in the manner prescribed by Art. 101.2 of the Tax Code of the Russian Federation (clause 9 of Article 101 of the Tax Code of the Russian Federation). On the basis of the Decision that has entered into force, the person in respect of whom it was made is sent, in accordance with Art. 69 of the Tax Code of the Russian Federation requires the payment of a tax (fee), corresponding penalties, as well as a fine if this person is brought to justice for a tax offense (clause 3 of Article 101.3 of the Tax Code of the Russian Federation).

As we can see, sending the tax authority to the tax agent a demand for payment of arrears or other similar demand is not mandatory to bring him to justice on the basis of Art. 123 Tax Code of the Russian Federation. In this case, the fine under Art. 123 of the Tax Code of the Russian Federation is initially presented for payment to the tax agent by sending him a corresponding request.

Note:

The person in respect of whom the tax audit was carried out (his representative), in case of disagreement with the facts set out in the tax audit report, as well as with the conclusions and proposals of the inspectors, within one month from the date of receipt of the tax audit report, has the right to submit written objections to the relevant tax authority on the specified the act as a whole or according to its individual provisions. At the same time, it has the right to attach to written objections or, within the agreed period, submit to the tax authority documents (their certified copies) confirming the validity of its objections (clause 6 of Article 100 of the Tax Code of the Russian Federation).

According to paragraph 1 of Art. 101 of the Tax Code of the Russian Federation, the tax audit report, other tax audit materials, during which violations of the legislation on taxes and fees were identified, as well as written objections to the said act submitted by the person being inspected (his representative) must be considered by the head (deputy head) of the tax authority that conducted the tax audit. Based on the results of their consideration by the head (deputy head) of the tax authority within 10 days from the date of expiration of the one-month period established by clause 6 of Art. 100 of the Tax Code of the Russian Federation for submitting written objections to the act, in particular, a decision can be made to hold a person accountable for committing a tax offense (clause 1, clause 7, article 101 of the Tax Code of the Russian Federation). The period for reviewing tax audit materials and making an appropriate decision may be extended, but not more than by one month.

This decision can be appealed to a higher tax authority and (or) to court in the manner prescribed by the Tax Code of the Russian Federation (see Chapter 19 of the Tax Code of the Russian Federation) and the relevant procedural legislation of the Russian Federation (clause 1 of Article 138 of the Tax Code of the Russian Federation).

For more detailed information on the procedure for such an appeal, you can use the following materials:

Encyclopedia of solutions. Appealing acts of tax authorities, actions or inactions of their officials;

Encyclopedia of solutions. Pre-trial appeal of non-normative acts of tax authorities, actions and inactions of their officials;

Encyclopedia of solutions. Deadlines for filing a complaint (appeal) to a higher tax authority;

Encyclopedia of solutions. The procedure for filing a complaint (appeal) to a higher tax authority;

Encyclopedia of solutions. Requirements for the form and content of a complaint (appeal) submitted to a higher tax authority;

Encyclopedia of solutions. The procedure for consideration of a complaint (appeal) by a higher tax authority and the types of decisions made;

Encyclopedia of solutions. Time limits for a higher tax authority to make a decision on a complaint ( appeal). When can you go to court?

Encyclopedia of solutions. Responsibility for failure by a tax agent to fulfill the obligation to withhold and (or) transfer taxes (Article 123 of the Tax Code of the Russian Federation);

Encyclopedia of solutions. Transfer by tax agents of withheld personal income tax to the budget. Payment deadlines;

Encyclopedia of solutions. Circumstances mitigating liability under Art. 123 Tax Code of the Russian Federation.

Prepared answer:
Expert of the Legal Consulting Service GARANT
auditor, member of the APR Olga Ivankova

Response quality control:
Reviewer of the Legal Consulting Service GARANT
candidate economic sciences Ignatiev Dmitry