Punishment for violation of clause 9 of Article 226 of the Tax Code of the Russian Federation. Tax and accounting Article 226 of the Tax Code of the Russian Federation with comments

Commentary to the Federal Law of May 2, 2015 No. 113-FZ.

On May 2, 2015, the Federal Law of May 2, 2015 No. 113-FZ “On Amendments to Parts One and Two” was published on the Official Internet Portal of Legal Information (http://www.pravo.gov.ru) Tax Code Russian Federation in order to increase the responsibility of tax agents for failure to comply with the requirements of the legislation on taxes and fees" (hereinafter referred to as Federal Law No. 113-FZ). The said regulatory act as a whole, starting from 01/01/2016, significantly changes the rules for calculating personal income tax by all tax agents, introduces new tax obligations for them, some of which we will consider in more detail.

Date of receipt of income

Article 223 of the Tax Code of the Russian Federation, which determines the date of actual receipt of income by taxpayers, is modified and supplemented with the following new provisions:

1. Clause 1 of Art. 223 of the Tax Code of the Russian Federation is supplemented by paragraphs. 4, according to which the date of actual receipt of income is determined as the day of offset of similar counterclaims. Currently, the Tax Code of the Russian Federation does not contain any specific features that determine the date of receipt of income from claims offset operations.

According to the general rule established by Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part by offsetting a counterclaim of a similar nature, the due date of which has come or the due date of which has not been specified or is determined by the moment of demand. In cases provided for by law, it is allowed to set off a counterclaim of the same type that has not come due. For offset, a statement from one party is sufficient.

According to the Ministry of Finance (Letter No. 03-04-05/39938 dated August 11, 2014), the date of receipt of income in the event of termination of obligations by offsetting counter-similar claims is the day of termination of the relevant obligations, determined by the day the obligation becomes due for fulfillment, the due date for which came later ( This position is set out in paragraph 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims”). In this case, the value expression of such income must be considered the amount by which counter-similar claims are offset.

2. Clause 1 of Art. 223 of the Tax Code of the Russian Federation will be supplemented with paragraphs. 5, according to which the date of actual receipt of income is defined as the day the bad debt is written off in the prescribed manner from the organization’s balance sheet. This rule, formulated in the Tax Code of the Russian Federation for the first time, essentially reflects the law enforcement approaches that have developed in tax practice. Thus, in the Determination of the Supreme Court of the Russian Federation dated February 27, 2015 No. 305-KG14-534, it was concluded that individuals economic benefit arises in the form of the amount of debt forgiven by the company and, accordingly, income subject to personal income tax from the moment of write-off (forgiveness) debt company with an expired statute of limitations.

The Ministry of Finance adheres to a similar point of view, for example, in Letter dated March 13, 2015 No. 03-04-05/13615 in relation to the debt forgiven by the bank to the borrower, it is noted that the debtor is relieved of the obligation to repay the debt amount and it becomes possible to dispose of funds in his own way discretion, that is, he has an economic benefit and, accordingly, income in the amount of the amount of debt forgiven by the bank under the loan agreement, which is subject to personal income tax in the generally established manner using a tax rate of 13% (for debt on accountable amounts, see also Letter of the Ministry of Finance of the Russian Federation dated September 24, 2009 No. 03-03-06/1/610).

3. An important innovation is paragraph. 6 clause 1 art. 223 of the Tax Code of the Russian Federation, establishing that the date of actual receipt of income is defined as the last day of the month in which it is approved after the employee returns from a business trip. To date, the Tax Code of the Russian Federation does not establish what is the date of receipt of income when an employee returns from a business trip.

For example, previously the Ministry of Finance indicated that the date of receipt of income in the form of daily allowances paid in excess of the norm is the date of their payment (Letter of the Ministry of Finance of the Russian Federation dated June 25, 2010 No. 03-04-06/6-135). Currently, according to official authorities, funds issued to an employee on account when sent on a business trip cannot be considered as economic benefits and, accordingly, income until the employee returns from the business trip and the head of the organization approves the advance report submitted by the employee in the prescribed manner. The determination of income subject to taxation is made after approval of the employee's advance report, and the calculation and deduction of tax amounts are carried out in accordance with clause 4 of Art. 226 of the Tax Code of the Russian Federation as of the nearest date of payment of income to the employee in cash (Letter of the Ministry of Finance of the Russian Federation dated January 14, 2013 No. 03-04-06/4-5). Amounts in foreign currency are converted into rubles at the rate of the Central Bank of the Russian Federation in effect on the date of approval of the advance report(letters of the Ministry of Finance of the Russian Federation dated March 27, 2015 No. 03-04-07/17023, dated December 29, 2014 No. 03-04-06/68074, Federal Tax Service of the Russian Federation dated April 7, 2015 No. BS-4-11/5737).

An employee of the institution is sent on a business trip abroad. He received an advance payment for travel expenses in the form of daily allowances on April 21, 2015 (at the rate of $100 for each day on a business trip). Departure date for a business trip is 04/30/2015, return date is 05/15/2015. The advance report was submitted on May 20, 2015, approved by the head of the organization on June 1, 2015.

The date of receipt of income in the form of excess daily allowance (from an amount exceeding 2,500 rubles per day - paragraph 12, clause 3, article 217 of the Tax Code of the Russian Federation) will be June 1 2015 (on the specified date, the foreign currency daily allowance should be recalculated at the rate of the Central Bank of the Russian Federation - clause 5 of Article 210 of the Tax Code of the Russian Federation). If the conditions of the example are translated to 2016, then the date of receipt of income will be June 30 2016. It is on this date that excess daily allowance should be included in the taxpayer’s income.

However, the question arises: On what date should the amount of foreign currency daily allowances be converted into rubles?– directly on the date of approval of the advance report or on the last day of the month in which the advance report was approved?

Based on clause 5 of Art. 210 of the Tax Code of the Russian Federation, taxpayer income expressed (nominated) in foreign currency is recalculated into rubles at the official exchange rate of the Central Bank of the Russian Federation established on the date of actual receipt of said income. That is, the rate used is as of June 30, 2016. Moreover, if the exchange rate of the Central Bank of the Russian Federation as of June 30, 2016 is higher than the rate in effect on the date of approval of the advance report, this may lead to negative consequences for the taxpayer, since it will entail an increase in the tax base for personal income tax.

In our opinion, the use of exchange rates valid after the end of settlements for a business trip seems incorrect and economically unjustified. It seems that it would be advisable to use the exchange rate of the Central Bank of the Russian Federation in force on the date of approval of the advance report, that is, on the date of completion of settlements for the business trip. However, this requires a special clause in the Tax Code of the Russian Federation.

Tax calculation procedure

Federal Law No. 113-FZ adjusts the rules for calculating tax amounts on an accrual basis from the beginning of the tax period with the offset of previously withheld amounts set out in paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, in relation to income taxed at the rate established by clause 1 of Art. 224 of the Tax Code of the Russian Federation in the amount of 13%: it is determined that the tax will be calculated on the date of actual receipt of income(currently – based on the results of each month).

Features of tax withholding

As before, tax agents will be required to withhold the accrued amount of tax directly from the taxpayer’s income upon actual payment. However, a clarification has been made that is of a technical nature - when the taxpayer pays income in kind or receives income in the form of a material benefit, the calculated amount of tax is withheld by the tax agent at the expense of any income paid by the tax agent to the taxpayer in cash, and the withheld amount of tax cannot exceed 50% of the amount of income paid in cash (clause 4 of Article 226 of the Tax Code of the Russian Federation).

The procedure for a tax agent to act if it is impossible to withhold tax is set out in paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, which has also been adjusted.

1. According to the position of official authorities at present after the end of the tax period, in which the tax agent paid income to an individual, and a written message from the tax agent to the taxpayer and the tax authority at the place of registration about the impossibility of withholding personal income tax, the obligation to pay tax is assigned to the individual, and the tax agent’s obligation to withhold the corresponding amounts of tax is terminated (Letter of the Ministry of Finance of the Russian Federation dated 11/17/2010 No. 03-04-08/8-258 was brought to the attention of the tax authorities by Letter of the Federal Tax Service of the Russian Federation dated 12/02/2010 No. ШС-37-3/16768@).

Therefore, the impossibility of withholding should be understood as the impossibility of withholding tax during the tax period in which the income was paid. However, the Tax Code of the Russian Federation does not directly provide for this provision.

Since 2016, the obligation of the tax agent to provide written notification to the taxpayer and the tax authority of information about the impossibility of withholding tax, if such an obligation arises, has been clarified during the tax period.

This formulation of the legislator does not seem entirely suitable for those tax agents who will complete final payments for payments to taxpayers not in December of the current tax period, but, for example, in January of the next year. In particular, this applies to wages for December 2016, payment of which will be made in January 2017 and, accordingly, tax withholding will also be made in January 2017. In the situation under consideration, the tax agent does not have the opportunity to calculate personal income tax in 2016. The question remains open: should the tax be withheld upon the final payment made in 2017, or should the rules of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation and inform interested parties about the impossibility of withholding tax?

We note that in connection with the new wording of clause 5 of Art. 226 of the Tax Code of the Russian Federation, since 2016, the legislator has optimized the norms of Art. 231 of the Tax Code of the Russian Federation and repealed clause 2 of the said article, which determines that amounts of tax not withheld from individuals or not fully withheld by tax agents are collected from individuals until these individuals fully repay the tax debt in the manner prescribed by Art. 45 of the Tax Code of the Russian Federation.

2. The deadlines for reporting information about the impossibility of withholding personal income tax are changing: currently – no later than January 31 of the year, following the reporting one; since 2016 – no later than March 1 of the year following the previous one tax period.

In this case, you need to pay attention to the following.

2.1. Remained the same general norm pp. 2 p. 3 art. 24 of the Tax Code of the Russian Federation, according to which tax agents are required to inform in writing the tax authority at the place of their registration about the impossibility of withholding tax and the amount of debt of the taxpayer within one month from the date when the tax agent became aware of such circumstances.

Meanwhile, taking into account the priority of the action of special norms over general ones (Definitions of the Constitutional Court of the Russian Federation dated 02/17/2015 No. 262-O, dated 05/21/1999 No. 83-O), in the situation under consideration special norms of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, regulating the duties of tax agents for the purpose of calculating personal income tax.

2.2. Law enforcement officials may have a question: when should the relevant information be submitted based on the results of 2015 - before February 1 or before March 2, 2016?

As a general rule, it establishes rights and obligations based on facts (events and actions) that took place after the entry into force of this legal act (see, in particular, Letter of the Ministry of Finance of the Russian Federation dated July 10, 2007 No. 03-04-08-01/36, communicated for guidance and use in the work of tax authorities by Letter of the Federal Tax Service of the Russian Federation dated July 20, 2007 No. ХС-6-04/581@).

Since the changes in question come into force on 01/01/2016 (clause 3 of article 4 Federal Law No. 113-FZ), and the corresponding obligation of tax agents will also arise in 2016, then the deadline for submitting the relevant information based on the results of 2015 is no later than March 1, 2016.

2.3. A technical clarification has also been made that the relevant information is provided to interested parties not only about the amount of tax not withheld, but also about the amount of income from which tax has not been withheld. At the same time, the new edition of clause 5 of Art. 226 of the Tax Code of the Russian Federation (in contrast to new edition clause 2 art. 230 of the Tax Code of the Russian Federation) does not contain a specific requirement to submit relevant information exclusively in electronic form (including depending on the number of persons who received income from the tax agent).

A similar rule stating that the Tax Code of the Russian Federation does not contain rules obliging a tax agent to provide information about the impossibility of withholding personal income tax and the amount of tax to the tax authority at the place of its registration in electronic form is still in effect - Letter of the Federal Tax Service of the Russian Federation dated April 18, 2011 No. KE -4-3/6132.

Tax payment procedure

Currently, paragraph 6 of Art. 226 of the Tax Code of the Russian Federation defines different deadlines for transferring withheld personal income tax amounts to the budget: if funds for the payment of income are received from a bank or income is transferred from the bank account of a tax agent, then the tax must be transferred on the same day. In other cases, the transfer is made no later than the day following the day the taxpayer actually receives income.

Starting next year, a general rule for transferring taxes to the budget will be introduced: no later than the day following the day of payment of income to the taxpayer.

However, a completely new deadline has been introduced for the transfer of tax when paying the taxpayer income in the form of temporary disability benefits and in the form of vacation pay - no later than the last day of the month in which such payments were made(currently, in relation to the specified income, the day of tax withholding and transfer is set as day of their payment– letters of the Ministry of Finance of the Russian Federation dated October 10, 2007 No. 03-04-06-01/349, dated January 26, 2015 No. 03-04-06/2187, Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 7, 2012 No. 11709/11).

Calculation, withholding and transfer of personal income tax to the budget must be made on 06/03/2015.

Calculation and withholding of personal income tax must be made on 06/03/2016. Tax transfer to the budget must be made no later than June 30, 2016.

Procedure for paying taxes to the budget

Since 2016, the rule of paragraph 7 of Art. will remain practically unchanged. 226 of the Tax Code of the Russian Federation stating that personal income tax amounts are paid to the budget at the place of registration(additionally added - “place of residence”) of the tax agent in tax authority.

However, one cannot fail to note a number of fundamentally important innovations.

Firstly, for institutions with separate divisions, it is introduced new order transfer of tax to the budget at the location of such units: the amount of personal income tax will be determined based on the amount of income subject to taxation, accrued and paid to individuals under agreements concluded with these separate divisions.

Currently, the amount of tax to be transferred to the budget at the location of the units is determined based on the income paid employees such units.

By virtue of paragraph 2 of Art. 11 of the Tax Code of the Russian Federation and Art. 20 and 56 of the Labor Code of the Russian Federation, an employee is understood as an individual working in an organization under an employment contract.

Accordingly, at present, the Tax Code of the Russian Federation does not contain a norm defining the specifics of payment of tax amounts withheld from payments under civil contracts made by organizations that have separate divisions.

However, this did not stop the Ministry of Finance from declaring that the stated procedure applies regardless of whether the work is performed under employment contracts or civil law contracts (letters dated 06.08.2012 No. 03-04-06/3-216, dated 29.03 .2010 No. 03-04-06/53).

Since 2016, this conflict in the Tax Code of the Russian Federation has been eliminated and for all types of contracts the calculated and withheld personal income tax must be transferred to the location of the separate divisions.

Tax agent reporting

Since 2016, paragraph 2 of Art. 230 of the Tax Code of the Russian Federation establishes two types of tax reporting for a tax agent:

1) a document containing information about the income of individuals for the expired tax period, including information on the amounts of personal income tax calculated, withheld and transferred to the budget for each individual, which is submitted to the tax authority (currently this is a certificate in form 2-NDFL, submitted within the same period);

2) calculation of personal income tax amounts calculated and withheld by the tax agent(it is assumed that this will be a new form 6-NDFL, not personalized).

The new clause 1 of Art. correlates with this norm. 80 of the Tax Code of the Russian Federation, which entered into force from 06/02/2015: calculation of the amounts of personal income tax calculated and withheld by the tax agent is a document containing generalized information by the tax agent on all individuals who received income from the tax agent (a separate division of the tax agent), on the amounts of accrued and paid income provided by them tax deductions, about the calculated and withheld amounts of tax, as well as other data serving as the basis for calculating the tax (note that there is no mention of the listed tax amounts).

This calculation appears to be:

• for the first quarter - no later than April 30;
• for half a year - no later than July 31;
• in nine months - no later than November 30;
• per year - no later than April 1 of the year following the reporting year.

As a general rule, tax agents, as now, will submit these reports to the tax authority at their place of registration. However, for the first time in the Tax Code of the Russian Federation it is specified that tax agents are Russian organizations having separate divisions, submit such reports to the tax authority at the location of such separate divisions.

Let us note that this norm reflects the current position of official authorities that the supposed obligation of tax agents to provide information on income “corresponds” with the obligation to pay the total amount of tax at the place of registration of the tax agent with the tax authority. And an organization that is a tax agent and has information on the income of individuals (in relation to employees of a separate division) submits at the place of registration of the organization to the Federal Tax Service at the location of the separate division - letter of the Ministry of Finance of the Russian Federation dated 02/06/2013 No. 03-04-06/8- 35, dated 08/07/2012 No. 03-04-06/3-222 and dated 04/05/2012 No. 03-04-06/8-103, Federal Tax Service of the Russian Federation dated 05/30/2012 No. ED-4-3/8816, dated 28.01. 2015 No. BS-4-11/1208.

In order to fulfill the requirements of paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, tax agents with separate divisions, organizations - the largest taxpayers, individual entrepreneurs using UTII and PSN, submit to the tax authorities information about the amounts of income from which tax is not withheld and the amount of tax not withheld.

Reporting is submitted by tax agents according to the TKS. At the same time, it was determined that with the number of individuals who received income in the tax period, up to 25 people(that is, no more than 24 people) tax agents may represent specified information and calculation of tax amounts on paper. Forms, formats and procedures for reporting must be approved by the Federal Tax Service.

The following questions may arise:

• In what form should information on the income of individuals be submitted based on the results of 2015 (form 2-NDFL)?
• If at the end of 2015 the number of individuals who received income from a tax agent is more than 10 people, but less than 25 people (for example, 15 people), is it possible to submit information on paper?
• Based on the results of 2015, is it necessary to provide a calculation of the amounts of personal income tax calculated and withheld by the tax agent (form 6-NDFL)?

In our opinion, since the new provisions of paragraph 2 of Art. 230 of the Tax Code of the Russian Federation applies to legal relations that arose from January 1, 2016, and establishes rights and obligations based on facts (events and actions) that took place after Federal Law No. 113-FZ came into force, then:

• information on the income of individuals based on the results of 2015 (form 2-NDFL) must be submitted according to new form(if it is developed by the Federal Tax Service);
• if the number of individuals who received income from a tax agent in 2015 is less than 25 people, then the information is provided on paper;
• no later than April 1, 2016, tax agents will be required to send reporting form 6-NDFL to the tax authority based on the results of 2015.

Suspension of transactions on tax agent bank accounts

From 01/01/2016 Art. 76 of the Tax Code of the Russian Federation is supplemented by clause 3.2, according to which the decision of the tax authority to suspend operations of a tax agent on his bank accounts and transfers of his electronic funds is also made by the head (deputy head) of the tax authority in the event that the specified tax agent fails to provide a calculation of personal income tax amounts (f. 6-NDFL), calculated and withheld by the tax agent, to the tax authority within 10 days after the expiration of the deadline for submitting such a calculation.

From the analysis of this very difficultly formulated phrase (taking into account clause 6 of Article 6.1 of the Tax Code of the Russian Federation) it follows that the appropriate decision is made if:

• the tax agent did not submit the calculation within 10 working days after the due date;
• there is no specified period during which the relevant decision can be made. It can be assumed that before the above-mentioned 10-day period, the tax authority does not have the right to make a decision to suspend transactions on accounts.

At the same time, from the new paragraph. 2 clause 3.2 art. 76 of the Tax Code of the Russian Federation it follows that if a tax agent submits a corresponding calculation, the decision must be canceled no later than one business day following the day the calculation was submitted.

Responsibility of tax agents

Since 2016, the responsibility of tax agents has become stricter. In particular, Art. 126 of the Tax Code of the Russian Federation is supplemented by clause 1.2, according to which failure by a tax agent to submit calculations of personal income tax amounts (form 6-NDFL) to the tax authority at the place of registration within the prescribed period entails a fine from the tax agent in the amount of 1,000 rubles. for each full or partial month from the day established for its submission.

A new art. is also being introduced. 126.1 of the Tax Code of the Russian Federation, which establishes that the submission by a tax agent to the tax authority of documents provided for by the Tax Code of the Russian Federation, containing false information, entails a fine of 500 rubles. for each submitted document containing false information.

At the same time, the Tax Code of the Russian Federation does not contain a definition of the term “unreliable information”. In particular, with regard to the certificate in form 2-NDFL, we believe that this may be an incorrect reflection of any details that require filling out (for example, INN and KPP of the tax agent, OKTMO, full name of the taxpayer, amounts, etc. .).

In addition, it should be noted that by virtue of paragraph 1 of Art. 88 of the Tax Code of the Russian Federation, starting from 2016, tax authorities have the obligation to conduct a desk tax audit of the calculation of personal income tax amounts (form 6-NDFL).

This raises the question: is it possible to apply, in some cases, the sanctions established by Art. 123 of the Tax Code of the Russian Federation? In our opinion, it should be taken into account that, by virtue of Art. 123 of the Tax Code of the Russian Federation, a fine is collected from a tax agent 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 from the taxpayer (clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation”).

Since the calculation of NLFL amounts (f. 6-NDFL) according to the definition set out in Art. 80 of the Tax Code of the Russian Federation contains information about the calculated and withheld amounts of tax, then the tax authority, as a general rule, has the right to hold the tax agent liable under Art. 123 of the Tax Code of the Russian Federation, if the amount of tax withheld is less than the amount of calculated tax (provided that the relevant data relate to the same time period). Under such conditions, one should not exclude the possibility of bringing a tax agent to justice under the specified article of the Tax Code of the Russian Federation in the event that the amount of personal income tax withheld for the reporting period is higher than the amounts transferred by the agent to the budget, information about which is available in the tax authority’s CRSB.

In conclusion, let’s say a few words about the new provisions of Art. 52 Tax Code of the Russian Federation: from 06/02/2015 Clause 4 is put into effect, according to which, if the total amount of taxes calculated by the tax authority is less than 100 rub.., a tax notice is not sent to the taxpayer, except in the case of sending a tax notice in a calendar year, after which the tax authority loses the opportunity to send a tax notice (paragraph 3, clause 2, article 52 of the Tax Code of the Russian Federation - when the notice is sent in that year, after the end of the three-year period for which taxes may be assessed expires.

Thus, citizens are payers of property tax for individuals, transport tax, land tax paying these taxes on the basis of a tax notice from the tax authority (Article 52, paragraph 4 of Article 57, paragraph 6 of Article 58, paragraph 3 of Article 363, paragraph 4 of Article 397, paragraph 2 of Article 409 of the Tax Code RF), has the right not to pay the appropriate taxes in the absence of a tax notice from the tax authority.

See also paragraphs. 5 paragraph 7 art. 272 of the Tax Code of the Russian Federation regarding corporate income tax.

Agents, as well as the timing and procedure for its payment. This norm also defines the categories of obligated entities. Let us consider further the provisions of Art. 226 Tax Code of the Russian Federation.

Basic rules

According to paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, Russian enterprises, their individual entrepreneurs, privately practicing lawyers and notaries, from whom or as a result of relations with whom the payer received income, are obliged to accrue, withhold and pay the amount of tax to the budget. When calculating, the rules of Article 224 are taken into account. Personal income tax on the income of lawyers is calculated, withheld and paid by legal consultations, bar associations and bureaus.

Terms

In paragraph 2 of Art. 226 of the Tax Code of the Russian Federation establishes that the calculation of personal income tax amounts is carried out in relation to all income of the payer, the source of which is there are exceptions to this rule. They relate to income from which deduction and payment are made in accordance with the provisions of Articles 214.3-214.6, 228, 227, as well as Art. 226.1 Tax Code of the Russian Federation. As a general rule, the calculation is carried out by offsetting the amounts of tax previously allocated to the budget. In the cases and procedure established by Article 227.1, a reduction by the amount of fixed advances paid by the payer is also taken into account.

Calculation features

In paragraph 3 of Art. 226 of the Tax Code of the Russian Federation determines that the calculation tax amounts carried out by agents on the date of actual receipt of income to the payer. The calendar date is established in accordance with Article 223 of the Code. The calculation is made using the cumulative total method from the beginning of the period in relation to all income to which the rate is applied. It is established in paragraph one of Article 224 of the Code. The calculation takes into account income accrued to the payer for the specified period, while the amounts withheld in previous months of the current reporting period are taken into account. An exception to the rule is income from equity participation in enterprises. Their calculation, as well as the calculation of income tax amounts to which other rates apply, is carried out separately for each of them. In this case, receipts from other agents and the amounts of personal income tax withheld by them are not taken into account.

Payment specifics

In paragraph 4 of Art. 226 of the Tax Code of the Russian Federation establishes that agents must withhold the tax amount directly from the funds due to the payer upon actual payment. In this case, it is necessary to take into account a number of conditions. If the payment is made in kind or the payer receives income in the form of a benefit of a material nature, the calculated amount is withheld from any income expressed in money. A limitation has been set. The amount of personal income tax withheld should not exceed 50% of the amount of cash income.

Exceptions

The provisions of paragraph four of Art. 226 of the Tax Code of the Russian Federation do not apply to agents who are credit institutions. The rules do not apply to the withholding and payment of tax on income received by their clients as a material benefit. It is determined by paragraphs 1 and 2. paragraph one of Article 212 of the Code. The exception is for clients acting as employees of these credit structures.

Agent Responsibilities

In paragraph 5 of Art. 226 of the Tax Code of the Russian Federation defines the procedure for the actions of the subject if it is impossible to withhold the calculated amount of personal income tax from the payer’s income. In this case, the agent is obliged to inform the person receiving the income, as well as the tax office, about the difficulties that have arisen. In accordance with paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, the subject in the notification also indicates the amount that was not withheld. It also shows the amount of income from which funds were not written off.

The notification provided for in paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, is sent no later than March 1 of the year following the completed reporting period within which impeding circumstances arose. The form of the message is approved by the executive body of the federal government, which has the authority to exercise control in the field of taxation. The Code also establishes that agents that are Russian organizations that have separate divisions, companies included in the list of largest payers, as well as entrepreneurs registered at the address of their activities in connection with the use of the patent system or UTII, notify the amounts of unwithheld tax and the amount of corresponding income according to special rules (Articles 226, 230 of the Tax Code of the Russian Federation).

Deadlines

Clause 6 of Art. 226 of the Tax Code of the Russian Federation establishes that agents must transfer the amount of calculated and withheld personal income tax no later than the day following the date of payment of income. The subject may receive payment for temporary disability, including for caring for sick minors, and in the form of vacation pay. In these cases, in accordance with paragraph 6 of Art. 226 of the Tax Code of the Russian Federation, deductions of amounts to the budget are carried out no later than the last calendar day of the month within which the corresponding accruals were made.

Nuances

The total amount of tax calculated and withheld by the agent from the payer, for whom the former acts as a source of income, is paid to the budget at the registration address (place of residence) of the enterprise. This procedure is considered general. For some entities, special rules apply. Thus, Russian organizations, which are indicated in paragraph one of the commented article, which have representative offices/branches, must transfer personal income tax to the budget both at their location and at the address of each division. In the latter case, the amount payable is determined by the amount of income subject to taxation, calculated and paid to employees, as well as by revenues provided for under the terms of civil contracts drawn up with individuals on behalf of the main enterprise. Individual entrepreneurs registered at the place of their activities in connection with the use of the patent system or UTII must transfer personal income tax amounts to the budget at the accounting address from the income of hired employees.

Additionally

The total amount of personal income tax accrued and withheld from the payer’s income, amounting to more than 100 rubles, is transferred to the budget in accordance with the above rules. If the tax amount is less than 100 rubles, it is added to the deduction for the next month, but not later than the last month of the current period. Payment of tax from the agent's funds is not allowed. When drawing up contracts and concluding transactions, it is prohibited to include clauses in the terms of agreements that imply the enterprise's acceptance of obligations to bear the costs associated with the deduction of personal income tax.

1. Russian organizations, individual entrepreneurs, notaries dealing private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income specified in paragraph 2 of this article, are required to calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with with Article 224 of this Code, taking into account the features provided for in this article. Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers.

(see text in the previous edition)

Unless otherwise provided by paragraph 2 of Article 226.1 of this Code, Russian organizations and individual entrepreneurs who make payments under agreements for the purchase and sale (exchange) of securities concluded by them with taxpayers are also recognized as tax agents.

When determining the tax base for transactions with securities based on a taxpayer’s application, the tax agents specified in this paragraph take into account actual and documented expenses that are associated with the acquisition and storage of the relevant securities and that the taxpayer incurred without the participation of a tax agent.

As documentary evidence of the relevant expenses, an individual must submit originals or duly certified copies of documents on the basis of which this individual made the relevant expenses, brokerage reports, documents confirming the fact of transfer of rights to the relevant securities to the taxpayer, the fact and amount of payment of the relevant expenses . If an individual submits original documents, the tax agent is obliged to make certified copies of such documents and store them for five years.

2. Calculation of amounts and payment of tax in accordance with this article are carried out in relation to all income of the taxpayer, the source of which is a tax agent, with the offset of previously withheld tax amounts (except for income in respect of which tax amounts are calculated in accordance with Article 214.7 of this Code ), and in cases and in the manner provided for in Article 227.1 of this Code, also taking into account the reduction by the amount of fixed advance payments paid by the taxpayer.

(see text in the previous edition)

3. Tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with Article 223 of this Code, on an accrual basis from the beginning of the tax period in relation to all income (except for income from equity participation in an organization, as well as income in respect of which tax amounts are calculated in accordance with Article 214.7 of this Code), in respect of which the tax rate established by paragraph 1 of Article 224 of this Code, accrued to the taxpayer for a given period, is applied, with the offset of the tax amount withheld in previous months of the current tax period.

(see text in the previous edition)

The amount of tax in relation to income in respect of which other tax rates are applied, as well as to income from equity participation in an organization, is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer.

(see text in the previous edition)

The tax amount is calculated without taking into account the income received by the taxpayer from other tax agents and the tax amounts withheld by other tax agents.

4. Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon their actual payment, taking into account the specifics established by this paragraph.

(see text in the previous edition)

When paying income to a taxpayer in kind or receiving income in the form of a material benefit, the tax agent withholds the calculated amount of tax from any income paid by the tax agent to the taxpayer in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of income paid in cash.

(see text in the previous edition)

The provisions of this paragraph do not apply to tax agents that are credit organizations with regard to the withholding and payment of tax amounts on income received by clients of these credit organizations (except for clients who are employees of these credit organizations) in the form of material benefits determined in accordance with subparagraphs 1 and 2 paragraphs 1 of Article 212 of this Code.

5. If it is impossible to withhold the calculated amount of tax from the taxpayer during the tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify in writing the taxpayer and the tax authority at the place of his registration about the impossibility of withholding tax, the amount of income from which tax is not withheld, and the amount of tax not withheld.

(see text in the previous edition)

The form of notification about the impossibility of withholding tax, the amount of income from which tax was not withheld, and the amount of unwithheld tax, as well as the procedure for submitting it to the tax authority, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

(see text in the previous edition)

Tax agents are Russian organizations with separate divisions, organizations classified as the largest taxpayers, individual entrepreneurs who are registered with the tax authority at the place of business in connection with the application of the taxation system in the form of a single tax on imputed income for individual species activities and (or) the patent taxation system, report the amounts of income from which tax is not withheld, and the amount of unwithheld tax in a manner similar to the procedure provided for in paragraph 2 of Article 230 of this Code.

(see text in the previous edition)

6. Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day of payment of income to the taxpayer.

When paying a taxpayer income in the form of temporary disability benefits (including benefits for caring for a sick child) and in the form of vacation pay, tax agents are required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made.

(see text in the previous edition)

7. The total amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of which it is recognized as a source of income, is paid to the budget at the place of registration (place of residence) of the tax agent with the tax authority, unless a different procedure is established by this paragraph.

(see text in the previous edition)

Clause 1 of this article that have separate divisions are required to transfer calculated and withheld tax amounts to the budget both at their location and at the location of each of their separate divisions.

(see text in the previous edition)

The amount of tax payable to the budget at the location of a separate division of the organization is determined based on the amount of income subject to taxation accrued and paid to employees of this separate division, as well as based on the amount of income accrued and paid under civil contracts concluded with by individuals of a separate division (authorized persons of a separate division) on behalf of such an organization.

(see text in the previous edition)

Tax agents - individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) a patent taxation system, are required to transfer calculated and withheld tax amounts to the budget at the place of registration in connection with the implementation of such activities.

Tax agents are Russian organizations specified in paragraph 1 of this article that have several separate branches in the territory of one municipality, has the right to transfer calculated and withheld tax amounts to the budget at the location of one of such separate divisions or at the location of the organization, if the specified organization and its separate divisions are located on the territory of one municipality, independently selected by the tax agent, taking into account the procedure established by paragraph 2 of Article 230 of this Code.

7.1. For the purposes of this chapter, tax agents are also recognized as Russian organizations that transfer amounts of allowance, salary, wages, and other remuneration (other payments) to military personnel and civilian personnel (federal civil servants and employees) of the Armed Forces of the Russian Federation.

The total amount of tax calculated and withheld by the tax agent from the specified amounts is transferred to the budget at the place of registration of the tax agent with the tax authorities.

8. The total amount of tax withheld by a tax agent from the income of individuals for whom he is recognized as a source of income, exceeding 100 rubles, is transferred to the budget in the manner prescribed by this article. If the total amount of withheld tax payable to the budget is less than 100 rubles, it is added to the amount of tax payable to the budget in the next month, but no later than December of the current year.

9. Payment of tax at the expense of tax agents is not allowed, except in cases of additional assessment (collection) of tax based on the results of tax audit in accordance with this Code in case of unlawful non-withholding (incomplete withholding) of tax by a tax agent. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume obligations to bear the costs associated with paying tax for individuals.

(see text in the previous edition)

The specifics of tax calculation by agents are described in Art. 226 Tax Code of the Russian Federation. The same norm defines the procedure and terms for payment of calculated amounts to the budget by these entities. Let's take a closer look at the article.

Subjects

Tax agents under Art. 226 of the Tax Code of the Russian Federation recognizes those registered and operating in Russia:

1. Organizations.
2. Notaries and lawyers in private practice.
3. Individual entrepreneurs.

This category also includes separate divisions of foreign companies. Tax agents are distinguished from payers by their responsibilities. They are responsible for calculating, withholding and directing taxes on the income their employees receive to the budget. Deductions from the profits of lawyers are made by bureaus, colleges and legal consultations.

General procedure (clause 2 of Article 226 of the Tax Code of the Russian Federation)

Taxes are calculated and paid in relation to any profit of the payer, the source of which is an agent (individual entrepreneur/organization). The exception is income, the calculation and deduction of which is made in accordance with the norms 214.3-214.6, 227-228 and art. 226.1 Tax Code of the Russian Federation. When calculating, previously withheld amounts are taken into account. In cases specified in Article 227.1, payments are reduced by the amount of fixed advances paid by the entities.

Calculation specifics

Calculation of tax amounts under Art. 226 of the Tax Code of the Russian Federation is carried out on the date on which the payer actually received income. It is determined according to Article 223. Calculation is carried out on an accrual basis from the beginning of the period in relation to all income. The exception is profit that is received from equity participation in an enterprise. In relation to income subject to taxation, the rate provided for in paragraph one of Article 224 is applied. When calculating, the amounts withheld from the payer in the previous months of the reporting period are taken into account. Deductions from profits for which other rates are used, as well as income received in connection with equity participation, are calculated separately for each payment. The calculation is carried out without taking into account receipts from other agents and amounts of mandatory payments withheld by them.

Hold

In paragraph four of Art. 226 of the Tax Code of the Russian Federation states that tax is collected from the payer’s income upon actual payment. If the subject receives a profit in kind or in the form of material benefit, it is carried out at the expense of any amounts of money paid by the agent. The amount of deduction levied cannot be more than 50% of cash income. This paragraph does not apply to agents acting as credit institutions in relation to the withholding and deduction of tax amounts from profits received by their clients in the form of material benefits. The exception is direct employees of such companies.

Impossibility of retention (clause 5 of Article 226 of the Tax Code of the Russian Federation)

In some cases, the agent cannot collect and, accordingly, deduct established tax amounts from the payer’s income. In these situations, the subject must, no later than 1.03 of the period following the end of the year in which the specified circumstances occurred, send a notification to the control body and the subject from which the withholding was not made. It indicates the amount of profit and tax not allocated to the budget. The form of the notification and the procedure for sending it are determined by the executive federal institution of government.

Important point

In paragraph 5 of Art. 226 of the Tax Code of the Russian Federation speaks separately about tax agents - domestic companies with separate divisions, companies classified as the largest payers, as well as individual entrepreneurs registered with control service at the place of their activities related to the use of UTII or the patent taxation system. They must report the amounts of profit from which no deduction was made, as well as the amount of payments not allocated to the budget in the manner established in paragraph two of Article 230.

Term

It is defined in paragraph 6 of Art. 226 Tax Code of the Russian Federation. Agents must calculate and withhold the established amounts no later than the day following the date of profit payment. Clause 6 Art. 226 of the Tax Code of the Russian Federation also provides that if a subject is provided with income in the form of benefits for the period of incapacity (illness), including for caring for sick children, as well as in the form of vacation pay, the transfer must be made no later than last date the month in which these payments were made.

To what budget should the amounts be allocated?

In paragraph seven of Art. 226 of the Tax Code of the Russian Federation states that payments are made at the place of residence (registration) of the agent, unless another procedure is provided for by law. Agents - organizations in whose structure separate divisions are formed, must transfer the calculated and withheld amounts both to the budget at the address of their location and the location of their branches. Individual entrepreneurs using the patent system or UTII must make mandatory payments at the place of registration.

Calculation for separate divisions

The tax payable to the budget at the location of the company's branch is established in accordance with the amount of profit subject to taxation, accrued and paid to employees. The calculation is also made based on the amount of income received under civil agreements that were concluded by a separate division with individuals.

Cumulative amount

The total amount of tax withheld by the agent from the profits of individuals for whom he is recognized as a source of income, more than 100 rubles, is sent to the budget in the manner prescribed by the article in question. If the total payment amount is less than 100 rubles, the amount is added to the deduction due in the next month, but no later than December of the current period.

Additionally

The law does not allow the payment of taxpayers' taxes at the expense of the agent's funds. When concluding contracts and making other transactions, it is prohibited to include clauses in their terms under which the entities paying the profit assume costs related to the deduction of amounts to the budget for individuals.

Art. 226 Tax Code of the Russian Federation: comments

The occurrence of tax agent obligations is associated with the payment of income to individuals. The subject does not have the right to refuse them if he acts as a source of income for payers. Meanwhile, there is a dispute over the issue relating to the payment of advances to employees under the terms of civil law agreements. According to a number of officials of the Ministry of Finance and some judges, payment of funds for services not yet provided or work not performed obliges the enterprise to withhold income tax and pay it to the budget. However, in practice there are a number of decisions that determine that an advance cannot be considered as an object of taxation until the individual fulfills his obligations.

Income in kind

In cases where an enterprise paid an individual with products, but other than this income, no cash payments were made to him, the company cannot withhold income tax. In such a situation, the employee himself must calculate and pay personal income tax to the budget. At the same time, the enterprise has an obligation under clause 5 of Art. 226 of the Tax Code of the Russian Federation, send a notice to the control body about the inability to withhold tax and transfer it to the budget. The article specifies a one-month notice period. Law No. 113 extended this period. Thus, the enterprise is obliged to send a notification in accordance with paragraph 5 of Art. 226 of the Criminal Code of the Russian Federation no later than 1.03 of the year following the expired one, in which, accordingly, the withholding was not carried out. This rule is effective from January 1st. 2016

Changes to the article

In addition to increasing the period for notifying control authorities and the payer about the impossibility of withholding, other amendments were made to the norm in question. In particular, they touched upon clause 6 of Art. 226 of the Tax Code of the Russian Federation establishes a single date for tax transfer. It coincides with the number following the day of actual payment of income. In the previous edition, tax on vacation and sick pay was to be deducted on the day they were received by individuals. The amended article moved this deadline to the end of the month in which these payments were made.

Conclusion

From January 1, 2015, paragraph two of Art. 226 of the Tax Code came into effect as amended by Federal Law No. 368. In connection with the changes made to Article 227.1 concerning the need to pay a fixed advance by citizens of foreign states working in Russia for hire from individual entrepreneurs or organizations (if their entry does not require obtaining visas), the total amount of personal income tax on the payers’ profits, which is subject to withholding by agents, should be reduced by the amount of these payments already made. In addition to the amendments already made to the norm under consideration, several more additions are being discussed. In this regard, experts recommend that tax agents regularly review updates in legislation to timely take note of them and comply with regulations. Additional clarifications on specific issues related to the calculation, withholding and payment of personal income tax can be obtained directly from the territorial division of the Federal Tax Service. Timely information received will prevent violations of tax laws.

Article 226. Peculiarities of tax calculation by tax agents. Procedure and deadlines for tax payment by tax agents

1. Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received the income specified in paragraph 2 of this article, are obliged calculate, withhold from the taxpayer and pay the amount of tax calculated in accordance with Article 224 of this Code, taking into account the specifics provided for in this article. Tax on the income of lawyers is calculated, withheld and paid by bar associations, law offices and legal advice centers.

The persons specified in paragraph one of this paragraph are referred to in this chapter as tax agents.

Unless otherwise provided by paragraph 2 of Article 226.1 of this Code, Russian organizations and individual entrepreneurs who make payments under agreements for the purchase and sale (exchange) of securities concluded by them with taxpayers are also recognized as tax agents.

When determining the tax base for transactions with securities based on a taxpayer’s application, the tax agents specified in this paragraph take into account actual and documented expenses that are associated with the acquisition and storage of the relevant securities and that the taxpayer incurred without the participation of a tax agent.

As documentary evidence of the relevant expenses, an individual must submit originals or duly certified copies of documents on the basis of which this individual made the relevant expenses, brokerage reports, documents confirming the fact of transfer of rights to the relevant securities to the taxpayer, the fact and amount of payment of the relevant expenses . If an individual submits original documents, the tax agent is obliged to make certified copies of such documents and store them for five years.

2. Calculation of amounts and payment of tax in accordance with this article are carried out in relation to all income of the taxpayer, the source of which is a tax agent, with the offset of previously withheld tax amounts (except for income in respect of which tax amounts are calculated in accordance with Article 214.7 of this Code ), and in cases and in the manner provided for in Article 227.1 of this Code, also taking into account the reduction by the amount of fixed advance payments paid by the taxpayer.

Peculiarities of calculation and (or) payment of tax on certain types of income are established by Articles 214.3, 214.4, 214.5, 214.6, 214.7, 226.1, 227 and 228 of this Code.

3. Tax amounts are calculated by tax agents on the date of actual receipt of income, determined in accordance with Article 223 of this Code, on an accrual basis from the beginning of the tax period in relation to all income (except for income from equity participation in an organization, as well as income in respect of which tax amounts are calculated in accordance with Article 214.7 of this Code), in respect of which the tax rate established by paragraph 1 of Article 224 of this Code, accrued to the taxpayer for a given period, is applied, with the offset of the tax amount withheld in previous months of the current tax period.

The amount of tax in relation to income in respect of which other tax rates are applied, as well as to income from equity participation in an organization, is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer.

The tax amount is calculated without taking into account the income received by the taxpayer from other tax agents and the tax amounts withheld by other tax agents.

4. Tax agents are required to withhold the accrued amount of tax directly from the taxpayer’s income upon their actual payment, taking into account the specifics established by this paragraph.

When paying income to a taxpayer in kind or receiving income in the form of a material benefit, the tax agent withholds the calculated amount of tax from any income paid by the tax agent to the taxpayer in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of income paid in cash.

The provisions of this paragraph do not apply to tax agents that are credit organizations with regard to the withholding and payment of tax amounts on income received by clients of these credit organizations (except for clients who are employees of these credit organizations) in the form of material benefits determined in accordance with subparagraphs 1 and 2 paragraphs 1 of Article 212 of this Code.

5. If it is impossible to withhold the calculated amount of tax from the taxpayer during the tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify in writing the taxpayer and the tax authority at the place of his registration about the impossibility of withholding tax, the amount of income from which tax is not withheld, and the amount of tax not withheld.

The form of notification about the impossibility of withholding tax, the amount of income from which tax was not withheld, and the amount of unwithheld tax, as well as the procedure for submitting it to the tax authority, are approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

Tax agents are Russian organizations with separate divisions, organizations classified as the largest taxpayers, individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) patent taxation system, report the amounts of income from which tax is not withheld and the amount of unwithheld tax in a manner similar to the procedure provided for in paragraph 2 of Article 230 of this Code.

6. Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day following the day of payment of income to the taxpayer.

When paying a taxpayer income in the form of temporary disability benefits (including benefits for caring for a sick child) and in the form of vacation pay, tax agents are required to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made.

7. The total amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of which it is recognized as a source of income, is paid to the budget at the place of registration (place of residence) of the tax agent with the tax authority, unless a different procedure is established by this paragraph.

Tax agents - Russian organizations specified in paragraph 1 of this article that have separate divisions are required to transfer calculated and withheld tax amounts to the budget both at their location and at the location of each of their separate divisions.

The amount of tax payable to the budget at the location of a separate division of the organization is determined based on the amount of income subject to taxation accrued and paid to employees of this separate division, as well as based on the amount of income accrued and paid under civil contracts concluded with by individuals of a separate division (authorized persons of a separate division) on behalf of such an organization.

Tax agents - individual entrepreneurs who are registered with the tax authority at the place of activity in connection with the application of the taxation system in the form of a single tax on imputed income for certain types of activities and (or) a patent taxation system, are required to transfer calculated and withheld tax amounts to the budget at the place of registration in connection with the implementation of such activities.

Tax agents - Russian organizations specified in paragraph 1 of this article, having several separate divisions on the territory of one municipality, have the right to transfer calculated and withheld tax amounts to the budget at the location of one of such separate divisions or at the location of the organization, if the specified organization and its separate divisions are located on the territory of one municipal entity, independently selected by the tax agent, taking into account the procedure established by paragraph 2 of Article 230 of this Code.

7.1. For the purposes of this chapter, tax agents are also recognized as Russian organizations that transfer amounts of allowance, salary, wages, and other remuneration (other payments) to military personnel and civilian personnel (federal civil servants and employees) of the Armed Forces of the Russian Federation.

The total amount of tax calculated and withheld by the tax agent from the specified amounts is transferred to the budget at the place of registration of the tax agent with the tax authorities.

8. The total amount of tax withheld by a tax agent from the income of individuals for whom he is recognized as a source of income, exceeding 100 rubles, is transferred to the budget in the manner prescribed by this article. If the total amount of withheld tax payable to the budget is less than 100 rubles, it is added to the amount of tax payable to the budget in the next month, but no later than December of the current year.

9. Payment of tax at the expense of tax agents is not permitted, except in cases of additional assessment (collection) of tax based on the results of a tax audit in accordance with this Code in the event of unlawful non-withholding (incomplete withholding) of tax by a tax agent. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume obligations to bear the costs associated with paying tax for individuals.