How to make the transition to the simplified tax system: step by step instructions. Transition to the simplified tax system: VAT recovery

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

The transition of IP to the simplified tax system is carried out in the manner prescribed by law. Entrepreneurs need to contact the tax authority at the place of residence. Let us further consider what the transition to the simplified tax system is, when it is possible and how it happens.

General information

An application must be submitted to the tax authority. The transition to the simplified tax system will occur next year after the reporting year, if the paper is filed from October 1 to November 30 of the current period. In it, the payer reports on the amount of income for the last 9 months, the average number of employees of the enterprise, the value of intangible assets and fixed assets. There are exceptions to this rule. They are valid for newly formed legal entities and registered individuals as individual entrepreneurs. These subjects can send an application within five days from the date of their registration with the tax authority. The date is indicated in the certificate of state registration.

Mandatory form 26.2-1

The application, according to tax inspectors, must be submitted. Otherwise, how will the authorized body know that the payerchanged the taxation system? In judicial practice, there are a number of cases when the application of the new regime is recognized as unreasonable. This is due to the fact that the transition to the simplified tax system was made unofficially. However, there are other solutions.

Some Federal Arbitration Courts recognize as an application a filed declaration drawn up under the simplified tax system for the first quarter of the reporting year. The Federal Antimonopoly Service of the Moscow District explained the situation in its own way. The Court, in its ruling, referred in particular to Art. 346.11-346.13 NK. They established that the transition to the simplified tax system by organizations and individual entrepreneurs is carried out on a voluntary basis. In this regard, the lack of a completed f. 26.2-1 will not act as a basis for a ban on the application of the new regime, if other actions of the subject indicated the use of this regime from the moment of its registration.

In addition, the FAS took into account Art. 3 NK. Paragraph 7 of this norm states that all contradictions, doubts and ambiguities should be interpreted in favor of the payer. The legal consequences of failure to submit an application are not defined by law. However, in order to avoid problems and litigation, experts recommend sending a notification to the transition. The simplified tax system will be valid until the payer decides to return to the general system. In this case, he should re-apply to the tax authority.

Timing

Tax authorities, on the one hand, indicate that f. 26.2-1 acts as a notice indicating the desire of the payermake the transition to USN. The legislation does not establish requirements for the control structure to make a decision regarding this. At the same time, the tax authority speaks of sending a notice to the payer that his application cannot be considered due to missed deadlines.

Court practice

Decisions of arbitral tribunals on issues related to missing the deadline for filing a transfer application are very mixed. Some arbitration courts recognize the correctness of the tax inspectorate, which denies the payer the right to use the simplified regime because of this. Other authorities point out that missing the deadline in itself cannot deprive the subject of the opportunity to apply the simplified tax system if the application was resubmitted after the removal of the obstacles that prevented the regime from being changed. The Supreme Arbitration Court of the Russian Federation determined that the filing of a document after a five-day period from the date of registration cannot act as a basis for refusal.

Important moment

It must be remembered that if the last day of the statutory deadline falls on a weekend, then the end date will be the next working day after them. Tax authorities often forget about this and refuse payers. In such cases, this decision can be challenged in the arbitration court.

Other occasions

It happens that the payer did not violate the deadline, but nevertheless was late in submitting the application. This can happen, for example, if the registration authority made a mistake and issued incorrect primary documents. The taxpayer filedan application for the transition to a simplified regime within five days from the date of receipt of the correct papers. In this case, the subject is not guilty, and the court will support his right to apply the special regime. In some cases, the tax authority refuses to accept the application simultaneously with the registration documents. The instance motivates this by the fact that at this moment the subject is not legally capable, does not have a PSRN and TIN. Arbitration instances, however, refer to the absence in the legislation of any requirements or restrictions on the delivery of documents. Therefore, such refusals of inspections can be considered unreasonable.

Resubmission

Many organizations change their location, and individual entrepreneurs, respectively, their place of residence. In such cases, there is no need to re-submit an application for the transition to "simplification" to the tax office at a new address. In the provisions of Ch. 26.2 of the Tax Code does not establish such requirements. Clarifications on this issue were given by the regulatory authorities (Ministry of Finance, Federal Tax Service, Federal Tax Service in Moscow). There is no need to re-notify at the beginning of the next reporting period.

Transition from STS to VAT

It can be done voluntarily or forcedly. In the first case, this is possible from the new reporting period. The payer must notify the tax authority of his refusal to apply the "simplification" until January 15 of the year in which the change of regime is carried out. In this case, another form is filled out, different from the one by which the transition to the simplified tax system is made. VAT recovery can be mandatory. If the payer's profit at the end of the year is more than 15 million rubles. or the residual value of fixed assets and intangible assets is more than 100 million rubles, it is considered transferred to the general system from the beginning of the quarter in which the excess was recorded. A notice of the loss of the opportunity to use the simplified regime is submitted within fifteen days from the date of the end of the period in which the excess profit appeared. The reverse transition to the simplified tax system is allowed no earlier than a year after the loss of the specified right.

Calculation of tax on DS at the beginning of the period

When switching to the general taxation regime, the payer does not need to recalculate taxes for the past period. But along with this, problems with unfinished operations may appear. In this case, the calculation of VAT is carried out depending on the payment and the date of shipment, the moment the tax base is established, fixed by the accounting policy.

If the supply of goods/services is carried out during the use of the simplified regime, payments are received after the change in the taxation system. VAT may be charged "on shipment". In this case, at the time of delivery, the enterprise was not a payer of this tax. The invoice was issued without VAT or simply was not drawn up. At the time of receipt of the payment, the obligation to calculate the tax does not arise. VAT can be calculated "on payment". Funds are received in the period in which the company is a payer of this tax. And at the same time, the obligation to pay VAT appears.

But since the invoice was drawn up during the period of using the simplified regime, and the tax was not allocated in it, the company will have to issue new documents. They will need to allocate VAT. These invoices must also be transferred to counterparties. The latter will have the opportunity to present for the deduction of the amount of VAT paid (if they act as its payers).

Advance payments and shipment after mode change

If VAT is charged "on shipment", then immediately at the time of delivery, the company has an obligation to pay tax. In this case, the organization issues an invoice in which it is highlighted. If VAT is charged "on payment", then the funds were received at the time of using the simplified system. The enterprise in this case was not the payer of the specified tax. Therefore, there was no obligation to remove him. But at the time of shipment, the company must issue an invoice with VAT allocated, since at that moment it is already a VAT payer. Regardless of the fact that the accounting policy fixes the method of determining the basis for the tax on DS, in the course of receipt of funds, the enterprise will have to pay it after shipment.