What is considered the area of ​​the trading floor? How to calculate UTII for retail trade without using trading floors Which premises are considered trading premises

" № 7/2016

Does the tenant have the right to calculate UTII based on the actually used area of ​​the trading floor if he independently separated the storage space with temporary partitions?

The organization rented a retail facility. Since there were no warehouses or utility rooms in the rented areas, the organization installed temporary partitions and equipped them independently (this is stipulated in the lease agreement). When calculating UTII, she used the physical indicator “sales area” based on the actual area used. However, the tax authorities considered this to be unlawful and added additional taxes. In its Resolution dated May 20, 2016 in case No. A71-9313/2015, the AS UO took the side of the fiscals. Read more about this matter in this article.

We are studying the case materials...

In the explanation to the floor plan of the building, the rented premises are indicated as a trading floor with an area of ​​128 sq. m. m. Since there were no warehouse and utility rooms in the leased areas, the organization, having installed temporary partitions (showcases, counters, portable structures), equipped them independently (an additional agreement was drawn up to the lease agreement, according to which the tenant is provided with a retail and warehouse premises with a total area of 128 sq. m, of which 5 sq. m. – retail space, 100 sq. m. warehouse area, 23 sq. m – utility room area). Accordingly, when calculating UTII, the organization used the physical indicator of 5 square meters. m. Is this approach legal? Inspectors and judges think not.

Reading tax laws

To calculate the amount of UTII taking into account the type entrepreneurial activity– retail trade carried out through stationary facilities trading network that has trading floors, the physical indicator “trading floor area (in sq. m)” is used (Clause 3, Article 346.29 of the Tax Code of the Russian Federation).

It would seem that by indicating as a physical indicator the area of ​​the sales floor actually used in business activities, the organization is doing the right thing. However, in Art. 346.27 of the Tax Code of the Russian Federation contains the following clause: the area of ​​the sales floor is determined on the basis of inventory and title documents.

Analyzing the position of the judges

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

So what happens, the tenant cannot rely on the data contained in the lease agreement? It is impossible to answer this question unequivocally - in each case one must proceed from the specific circumstances of the case.

As the court found out, the disputed premises with an area of ​​128 square meters. m was structurally isolated from other premises, had a separate entrance door, and there were no major partitions. Based on the presented store layout plan, the sales area (5 sq. m. area) is located in the middle of the warehouse area (100 sq. m.), from the common hall shopping center the buyer enters directly into the warehouse; the passage to the sales area is not marked. Moreover, according to the protocol of the witness's interrogation, changes to the lease agreement were made at the request of the tenant without actual redevelopment.

As a result of the consideration of the case, the court concluded that the part of the premises of the retail outlet fenced off by the entrepreneur for storage (warehousing) of goods using display cases, counters and other portable structures cannot be recognized as an auxiliary (storage) premises, since the premises themselves presuppose its structural isolation and special equipment . In this case, the court stated that the annex to the lease agreement is not a title or inventory document.

Similar conclusions can be found in other court decisions.

Let's get acquainted with the opinions of officials

The situation analyzed in the article has been of concern to taxpayers for a long time. For example, in the Letter of the Ministry of Finance of the Russian Federation dated December 28, 2010 No. 03‑11‑11/333 individual entrepreneur asked the question: are utility, administrative and service premises, as well as premises for receiving and storing goods, structurally separated from the trading floor if the premises are separated (separated from the trading area of ​​the trading floor) not by permanent partitions, but by temporary partitions not specified in the technical (cadastral) passport of the property (only in the annex to the lease agreement)? Should these premises be included in the total area of ​​the trading floor for the purpose of UTII taxation?

As often happens, officials avoided a direct answer, but from their answer one can conclude that this is permissible.

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

Drawing conclusions

Currently, fiscal authorities are focused on collecting taxes. Therefore, the exclusion of part of the retail space by an organization (IP) from the calculation of the physical indicator for the purpose of calculating UTII is one of the frequent causes of tax disputes. Judges often echo officials.

In the case under consideration, of course, the attention of the tax authorities was attracted by the indication in the UTII declaration of an unlawfully small (5 sq. m) area of ​​the trading floor with a total area of ​​​​the trading premises of 128 sq. m. m. Also, inspectors will notice a violation if, for the same retail item, the area of ​​the trading floor suddenly decreases (for example, in the dispute considered in the Resolution of the Supreme Court of the Russian Federation of December 15, 2015 in case No. A04-9307/2014, the size of the physical indicator of the area of ​​the retail space from January 2011 to January 2012 was 42 sq. m., from February to May 2012 - 32 sq. m., despite the fact that the tenant did not contact the landlord regarding the installation of additional partitions in the rented premises, or equipment for a utility room for storing goods. ).

Officials do not see a crime in the fact that the area of ​​a retail space can be determined based on the terms contained in the lease agreement. However, it must be taken into account that during an on-site tax audit, representatives of the inspectorate can go to the site and assess the correctness of the application of the physical indicator, as they say, after the fact. Therefore, if a similar situation arises in the activities of an organization, you can count on a positive outcome of the case only if the information specified in the lease agreement corresponds to reality, that is, the trading object is actually divided into several premises (albeit by non-permanent, but still walls) , and the inspectors will verify the nature of use of each of the premises, provided that this division is confirmed by documents (lease agreement, acceptance certificate of the leased object, documents confirming the installation of partitions (“primary” for the purchase of materials, certificate of work performed, etc.)) . The part of the premises of the retail outlet fenced off by the tenant for storing goods using display cases and counters cannot be recognized as ancillary (warehouse) premises.

The tax system in the form of UTII is a special regime for entrepreneurs and legal entities providing various household services for individuals, as well as having small retail outlets. The main condition for the use of this system is the implementation of certain types of activities, their list is enshrined in the Tax Code.

Since last year, this system has become voluntary for use. small organizations or entrepreneurs.

Calculation formula

To calculate the tax amount, the imputed income indicator is used. It is defined as the product of the base profitability for a specific type of activity and a physical indicator. This amount is then adjusted by the deflator coefficient K1 and the correction coefficient K2. The resulting value is multiplied by a tax rate of 15%.

How you can reduce the amount of UTII tax - we suggest watching the video. Enjoy watching!

Calculation from area

How to calculate UTII tax for individual entrepreneurs and LLCs from the area? When calculating UTII for retail trade or public catering, the physical indicator is the retail space. At the same time, the area of ​​warehouse, administrative and other premises is not included in the tax calculation.

For example, a store area of ​​100 sq. meters, of which the sales area occupies 50 sq. meters. To calculate the tax, only 50 square meters are taken into account. meters.

Quarterly calculation

For example, a company is engaged in retail trade y. The size of the retail area is 15 sq. meters. According to the Tax Code, the basic profitability for this activity is 1,800 rubles per sq. m. meter. K1 is set at 1.672, K2 is equal to 1.1. The tax calculation will look like this:

(1800*15)*1.672*1.1 = 49,658.40 – imputed income for 1 month

49,658.40 * 3 = 148,975.20 – imputed income for the quarter

148,975.20*15% = 22,346.28 – the amount of “imputed” tax for the quarter.

The tax amount can be reduced if you offset insurance premiums, paid for compulsory insurance of employees, but not more than 50%. At the same time, an entrepreneur does not have the right to reduce the amount of calculated tax on mandatory contributions paid for his insurance.

Reporting and tax payment

The UTII declaration is submitted to the Federal Tax Service quarterly by the 20th day of the month following the declared period. For filing a return late, an organization or individual entrepreneur is subject to a fine in the amount of 5% of the tax due, but not less than 1000 rubles. The calculated tax amount is transferred no later than the 25th day of the month following the reporting quarter. If the tax is not paid or paid late, the taxpayer faces a fine ranging from 20% to 40% of the tax debt.

In addition, the organization or entrepreneur retains the obligation to comply with cash discipline, as well as to submit reports on taxes and contributions calculated from employee benefits.

When calculating UTII for this type of activity, use a physical indicator - the area of ​​the sales floor (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). The basic profitability indicator is 1800 rubles. per month from 1 sq. m of area (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

For the purposes of applying UTII, the concept of “trading floor” is not defined by tax legislation. Due to this tax service recommends being guided by the definition of a trading floor, which is given in GOST R 51303-99 (letter of the Federal Tax Service of Russia dated July 2, 2010 No. ShS-37-3/5778). According to this definition, under trading floor refers to a specially equipped main part of the store’s trading premises, intended to serve customers (clause 43, section 2.3 of GOST R 51303-99).

Establish the area of ​​the sales area according to the data of title and inventory documents (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation). For example, this could be a purchase and sale agreement for non-residential premises, a technical passport, plans, diagrams, explications, a lease (sublease) agreement for non-residential premises or part thereof (paragraph 24 of Article 346.27 of the Tax Code of the Russian Federation).

Include the following in the sales area:

• part of a store, pavilion (open area) occupied by equipment for displaying, demonstrating goods, making payments and serving customers;

• area of ​​cash registers and booths;

• area of ​​working places for service personnel;

• aisle area for customers;

• rented part of the retail space.

Exclude from the sales floor area:

• area of ​​utility rooms;

• area of ​​administrative and amenity premises;

• area of ​​premises for receiving, storing goods and preparing them for sale, in which customer service is not provided.

Such requirements are contained in paragraph 22 of Article 346.27 of the Tax Code of the Russian Federation.

In addition, to calculate UTII, you can exclude the area leased (subleased) from the sales area. To do this, the landlord (or the tenant subletting part of the retail space) must have documents confirming the size of the area that is not used by him for retail trade. Such documents may be lease (sublease) agreements, which indicate the size of the area transferred to the tenant (subtenant).

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated December 9, 2013 No. 03-11-11/53554.

By general rule when calculating UTII, the area of ​​cash registers and booths must be included in the area of ​​the sales floor (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation).

However, this procedure applies if the cash register is located directly in the sales area of ​​a stationary retail facility. If the cash register is removed from the sales floor or located in another room, then do not take into account the area it occupies when calculating UTII. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated November 6, 2006 No. 03-11-04/3/443.

If the warehouse is equipped with a sales area, calculate UTII based on its area. If there is no sales area in the warehouse, use the number of sales places or their area to calculate UTII.

Thus, the answer to this question depends on the characteristics of the retail facility.

To calculate UTII from retail trade (except for delivery and distribution), the following physical indicators are used:

• area of ​​the sales floor, if the premises used are classified as fixed network with trading floors (shops and pavilions);

• number of retail spaces, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network and its area is less than 5 square meters. m;

• area of ​​retail space, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network, and its area is more than 5 square meters. m.

This follows from paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

Fixed network facilities with trading floors include buildings that simultaneously meet the following requirements:

• intended for trading and connected to engineering communications (paragraph 13, 14 of article 346.27 of the Tax Code of the Russian Federation);

• equipped with premises for trade (display of goods) and customer service, trading floors (this follows from the definitions of a store and a pavilion - paragraph 26, 27 of Article 346.27 of the Tax Code of the Russian Federation).

Thus, if a warehouse is intended for trading and is equipped with the necessary trading premises, this means that it belongs to the facilities of a stationary trading network. As for the condition of connection to utilities (electrical and heat networks, water supply, sewerage), then, according to the Ministry of Finance of Russia, it is not mandatory (letter of the Ministry of Finance of Russia dated January 12, 2006 No. 03-11-05/4).

To determine which retail facility the premises belong to (with or without a sales area), refer to the title and inventory documents. If the warehouse meets the definition of a store or pavilion, that is, it is equipped with a sales area, calculate the UTII based on its area. If there is no sales area in the warehouse, to calculate UTII use:

• number of retail spaces (if the area of ​​each of them does not exceed 5 sq. m);

• area of ​​retail spaces (for retail spaces whose area exceeds 5 sq. m).

This follows from the provisions of paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

According to the Russian Ministry of Finance, if an organization does not use the premises for its technical purpose, then appropriate changes should be made to the inventory documents (technical passport). To do this, you need to carry out a technical inventory (letters dated April 9, 2007 No. 03-11-04/3/107, dated April 9, 2007 No. 03-11-05/65, dated July 4, 2006 No. 03-11 -04/3/335 and dated April 24, 2006 No. 03-11-05/109).

Situation: how to calculate UTII if an organization uses the same sales area for different types of activities? For example, for wholesale and retail operations or for retail trade and the provision of household services, catering services.

If the trading floor is used to conduct different types of activities, when calculating UTII, the entire area of ​​the hall must be taken into account.

In particular, this should be done if the organization conducts both retail and wholesale operations in the same sales area; conducts retail trade and provides household services or catering services; retails purchased goods and merchandise own production. This is stated in letters of the Ministry of Finance of Russia dated April 2, 2013 No. 03-11-11/128, dated April 22, 2009 No. 03-11-06/3/101, dated July 3, 2008 No. 03-11- 04/3/311, dated April 13, 2007 No. 03-11-04/3/115.

The entire area must be taken into account even if the same hall is used for retail trade under different tax regimes. For example, if part of retail trade is associated with the sale of excisable goods (not transferred to UTII), and part is associated with the sale of other goods. Despite the fact that in such a situation only part of the sales floor is used for activities within the framework of UTII, the tax must be calculated based on the total area. Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated September 11, 2012 No. 03-11-11/276.

The position of the financial department is explained by the absence in Chapter 26.3 of the Tax Code of the Russian Federation of a mechanism for the distribution of retail space that is simultaneously used to conduct several types of activities or to conduct one type of activity under different tax regimes. The legality of this approach is confirmed by Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2009 No. 9757/09.

Correction factors

In addition to the physical indicator and basic profitability, when calculating UTII from the area of ​​trading floors, use the following values:

• deflator coefficient K1 (clause 4 of article 346.29 of the Tax Code of the Russian Federation);

• correction factor K2 (clause 4 of article 346.29 of the Tax Code of the Russian Federation).

In this case, the value of coefficient K1 is not rounded, but the value of coefficient K2 is rounded to three decimal places (clause 11 of article 346.29 of the Tax Code of the Russian Federation).

Tax rate

If local authorities have not established a reduced tax rate, calculate the amount of UTII at a rate of 15 percent (Article 346.31 of the Tax Code of the Russian Federation).

The tax base

To calculate UTII, first determine the tax base for the reporting quarter. This can be done using the formula:

The value of the physical indicator - the area of ​​the sales floor - is included in the calculation of UTII rounded to whole units (clause 11 of Article 346.29 of the Tax Code of the Russian Federation). When rounding the size of a physical indicator, discard values ​​less than 0.5 units, and round 0.5 units or more to a whole unit (letter of the Ministry of Finance of Russia dated June 16, 2009 No. 03-11-11/111).

Change in physical indicator

If during the quarter the area of ​​the sales floor increased or decreased, take into account the changes from the beginning of the month in which they occurred (clause 9 of Article 346.29 of the Tax Code of the Russian Federation).

Calculation of UTII

Having determined the size of the tax base, calculate the amount of UTII for the reporting quarter. To do this, use the formula:

This follows from subparagraph 10 of paragraph 5.2 of the Procedure, approved by order of the Ministry of Finance of Russia dated January 23, 2012 No. ММВ-7-3/13.

An example of calculating UTII from retail trade through facilities with trading floors. The sales area changed during the tax period

Alpha LLC trades retail through its own store and applies UTII.

In 2016, the value of the deflator coefficient K1 is 1.798. The value of the correction factor K2 by local authorities is set at 0.7. The tax rate is 15 percent.

The sales area of ​​the organization's store (according to technical documentation) is 80 square meters. m. On February 10, a premises of 10 square meters was added to the trading floor. m (corresponding changes have been made to the technical documentation).

Thus, the sales floor area used by Alfa in retail trading was:

• in January - 80 sq. m;
• in February - 90 sq. m;
• in March - 90 sq. m.

Imputed income for calculating UTII for the first quarter was:
1800 rub./sq. m × (80 sq. m + 90 sq. m + 90 sq. m) × 0.7 × 1.798 = 589,025 rub.

UTII for the first quarter is equal to:
RUB 589,025 × 15% = 88,354 rub.

"Unified tax on imputed income: accounting and taxation", 2010, N 4

The area of ​​the sales floor is an indicator, when applied, UTII payers have many questions. The article is devoted to determining the area of ​​the sales floor in cases of its use in activities subject to and not subject to UTII, as well as when redistributing space. In addition, issues related to the classification of one or more trading floors located in the same building as a trade organization object are considered.

Legislative norms

Retail trade carried out in a store or pavilion is subject to the payment of UTII if the area of ​​the trading floor in such a trade organization does not exceed 150 square meters. m, and the solution municipality The specified tax has been introduced in relation to this activity (clause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation). On the one hand, the area of ​​the sales floor is taken into account when using restrictions on the use of UTII, on the other hand, it participates in the calculation of the single tax.

When determining this area, you need to know which premises are taken into account and which are not, which is confirmed by inventory and title documents. The area of ​​the trading floor is a part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods, conducting cash payments and servicing customers, it includes the area of ​​cash registers and cash booths, the area of ​​work places for service personnel, as well as area of ​​aisles for customers (Article 346.27 of the Tax Code of the Russian Federation). The retail space can be either owned or leased. When calculating this indicator, the area of ​​utility, administrative and service premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, is not taken into account.

Note that the concept of utility room in the Letter of the Ministry of Finance of Russia dated November 6, 2008 N 03-11-04/3/496 is proposed to be taken from GOST R 51303-99 "Trade. Terms and definitions"<1>.

<1>Approved by Resolution of the State Standard of Russia dated August 11, 1999 N 242-Art.

This GOST defines a premises (store) for receiving, storing and preparing goods for sale, as well as administrative and utility premises.

So, the store’s utility room is a part of the store’s premises intended to accommodate auxiliary services and perform maintenance work on the technological process. The store's utility room includes storage areas for packaging and strapping materials, technological equipment, inventory, containers, cleaning machines, packaging waste, washing equipment and production containers, receiving glassware from the population, expedition for home delivery of goods, corridors, vestibules, lobbies. In accordance with this, the Letter concluded that the areas of the corridor and vestibule are not included in the area of ​​the trading floor if they are not used for retail trade.

Let us note that recognizing a premises as ancillary in itself is not a basis for not taking its area into account when calculating UTII, since an additional criterion must be met: customer service should not be provided in this premises (Article 346.27 of the Tax Code of the Russian Federation). The reasons for this condition are as follows:

• the name of the premises in title and other documents may not correspond to the nature of its actual use;
• such premises may be partially or fully, temporarily or permanently used for customer service.

In such cases, it is possible that the specified areas will need to be taken into account when calculating UTII.

Financiers in Letters dated 04/17/2009 N 03-11-09/142, dated 03/26/2009 N 03-11-09/115 draw attention to the need for constructive separation of utility rooms and other similar premises from the premises in which customers are served. Please note that following this recommendation reduces the risk of claims from tax authorities.

Documentary confirmation

In Art. 346.27 of the Tax Code of the Russian Federation clarifies that the area of ​​the trading floor is determined on the basis of any documents containing the necessary information about the purpose, design features and layout of the premises of the trade organization, as well as confirming the rights to the premises on the basis of:

• inventory documents, for example, technical passports for non-residential premises, plans, diagrams, explications, orders for the redistribution of space, photographs of premises;
• documents of title, such as purchase and sale agreements, lease (sublease) of non-residential premises or part(s) thereof, permits for the right to serve visitors in an open area.

Title and inventory documents together provide a general picture of the availability and nature of use of space. In some cases, for example, when redeveloping a premises, a significant role may be played not by a technical passport, plan, diagram or lease agreement, but by other documents, such as an organization order, photographs of the premises. An example of the importance of analyzing a set of documents is the Resolution of the Federal Antimonopoly Service VSO dated March 11, 2009 N A33-4391/08-F02-819/09, which concluded: the indication in the technical passport that the area of ​​the office premises is classified as commercial is not an absolute basis for its assignment to the area of ​​the trading floor. The court found that the concept of “trading area” is not identical to the concept of a trading floor and does not in itself prove the fact of the presence of a trading floor in the building and the disputed premises. And from other documents it did not follow that the organization carried out trading activities in these premises.

Calculation of the sales floor area taking into account its actual use for customer service

Taxpayer, purchasing or renting retail premises, often carries out redevelopment in them in order to use the space more rationally, in accordance with their preferences. In this case, the area of ​​the trading floor may remain unchanged, decrease, or increase. Let's consider such cases.

Note. When changing the area of ​​the trading floor, you need to check compliance with the maximum area size at which UTII can be paid.

A taxpayer may choose to increase the area available for display of merchandise at the expense of customer aisle space. In such a situation, the sales area will not change and tax risks will not arise. He can also increase the area intended for displaying goods due to a utility room, resulting in an increase in the area of ​​the sales floor. In this case, it is necessary to promptly apply clause 9 of Art. 346.29 of the Tax Code of the Russian Federation, according to which, if during the tax period the taxpayer has a change in the value of a physical indicator, then when calculating the amount of a single tax, this change is taken into account from the beginning of the month in which the change in the value of the physical indicator occurred. In a situation where part of the utility room is already used for displaying goods, and no changes have been made to the technical passport and other inventory documents, Art. 346.27 of the Tax Code of the Russian Federation, which provides that when determining the area of ​​a sales floor, the area of ​​utility rooms in which customers are not served is not taken into account. Consequently, if customer service is actually carried out in the utility room, then regardless of the changes reflected in the registration certificate, the taxpayer needs to increase the area of ​​the sales floor when calculating UTII.

The opposite situation is possible, when the area of ​​the utility room increases due to the area of ​​the sales floor, as a result of which the latter decreases. The position of financiers on this issue is expressed in Letter dated October 19, 2007 N 03-11-04/3/411: when calculating UTII, the reduced area of ​​the sales floor is taken into account if this is confirmed by inventory data, for example a technical passport, explication. That is, financiers provide that as long as the corresponding changes in retail space are not reflected in the said inventory documents, the taxpayer has no grounds for reducing the sales area when determining imputed income. Tax inspectorates are guided by a similar position.

But the courts do not support them. They proceed from the fact that a mandatory sign for classifying space as “trading floor area” and taking it into account when calculating UTII is actual use of space during trade. And in the case of redevelopment, the courts pay attention not only to the technical passports of the BTI, plan, explication, lease agreement, but also to other documents (orders for the organization on the delimitation of premises, photographs of the premises) confirming the size of the actually used area for servicing customers, the constructive isolation of the premises .

A striking example is the Resolution of the Federal Antimonopoly Service dated May 22, 2008 in case No. A48-3680/07-2<2>. It examines a situation where the redistribution of space was a consequence of a previously committed theft of goods. The taxpayer decided that there was no need to use all the store space, since only the goods remaining after the theft were sold. By order, he redistributed the store's trading area and ordered that trade be carried out in trading floor No. 1, and premises No. 2, which includes two trading floors, be used as a warehouse for storing goods. The use of premises No. 2 as a warehouse is confirmed by the relevant order. The taxpayer informed the inspectorate about the redistribution of the area with a statement indicating the area on which retail trade will be carried out. In addition, the taxpayer sent an application to the Oryol Real Estate Center OGUP with a request to make changes to the technical passport of non-residential premises, but was refused to conduct an inspection and to make changes to the technical passport due to the fact that in relation to the said premises, the definition of the district interim measures were introduced by the court. The court recognized the calculation of UTII based on the reduced area of ​​the sales area as justified. The failure to make changes to the technical passport was justified and did not play a decisive role in the issue under consideration.

<2>By decision of the Supreme Arbitration Court of the Russian Federation dated October 17, 2008 N 11370/08, the transfer of this Resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

A similar conclusion was made by the Federal Antimonopoly Service in its Resolution dated August 25, 2009 in case No. A12-468/2009<3>, having considered the situation when the organization, having issued orders, distributed premises in rented stores into the area of ​​​​the sales floor and the area intended for storing inventory. The court drew attention to the fact that the fact that the areas for storing goods are separated from the sales area is confirmed by photographs of the sales floors and utility rooms; in addition, the areas for storing goods in the sales area are fenced off with display cases.

<3>By the decision of the Supreme Arbitration Court of the Russian Federation dated December 16, 2009 N VAS-16769/09, the transfer of this Resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

A similar position was expressed by the FAS VSO in Resolution dated January 14, 2009 N A33-4993/08-F02-6838/08.

This point of view is also confirmed by the Resolution of the Federal Antimonopoly Service of the North-West District dated 04/09/2010 in case No. A66-5675/2009. According to the arbitrators, the tax authorities unlawfully accrued additional UTII to the entrepreneur, citing the fact that the total area of ​​the store’s sales area was less than 150 square meters. m, since the non-residential premises, designated in the technical passport of the object as an “office”, were rightfully taken into account by the entrepreneur as a retail space due to the fact that the disputed premises were not utility rooms, but were actually used for displaying and demonstrating goods (carpets) to customers.

Thus, if an organization decides to use part of the sales area as a utility room, a place to store goods, etc., then it needs to pay attention to the following points:

• issue an order for the redevelopment of the premises, in which the reasons for this action should be indicated;
• delimit areas, for example, using a structure, a showcase;
• actually use the relevant part of the sales floor for purposes not related to customer service;
• submit documents to the BTI to make changes to the technical passport;
• It makes sense to notify the tax office about the fact of redevelopment and a reduction in the area of ​​the sales area.

If the taxpayer does not actually use part of the sales area for serving customers, then if there is no data on the redevelopment of the premises in the technical passport of the premises, explication and other documents, he has the right to reduce the area of ​​the sales area when calculating the tax. But in this case, he needs to be prepared for disputes with the tax inspectorate, and he will be able to prove his case, including in court, on the basis of the redevelopment order, photographs of the premises and other documents.

Features of classifying trading floors located in a building as one or more trade organization objects

Let us recall that paragraphs. 6 paragraph 2 art. 346.26 of the Tax Code of the Russian Federation provides a criterion, subject to which retail trade may be subject to UTII taxation: the area of ​​the sales area does not exceed 150 square meters. m for each trade organization facility (store, pavilion). Let's consider a situation where there are several trading floors in a building through which the taxpayer carries out retail trade. When deciding whether the areas of these halls are summed up, it is necessary to determine how many retail facilities the taxpayer has in the building and which of them this or that trading floor belongs to. The legislator has not prescribed what criteria should be followed in this case. The official position is ambiguous, which confuses the taxpayer, tax authorities and increases the risk of tax disputes.

For example, in Letters of the Ministry of Finance of Russia dated 04/29/2010 N 03-11-11/127, dated 05/19/2010 N 03-11-11/143 it is stated that if the premises located in the building with trading floors, according to inventory and (or) legal documents relate to one retail facility (store or pavilion), then for the purposes of Ch. 26.3 of the Tax Code of the Russian Federation, the total area of ​​sales floors of all premises is taken into account. That is, if the agreement states that a store is being leased and a list of premises related to this store is provided, then when determining the area of ​​the sales floor of this store, you need to sum up the areas of all sales floors. The proposed option is quite simplified and does not take into account the specifics of the situation, including the possibility of the owner (tenant) combining two trade organization objects into one or dividing one trade organization object into two or more objects.

• premises used for shops are structurally separated;
• Each store maintains separate records of income received using cash register equipment.

The Letter concluded that if the specified conditions are met, the sales area of ​​stores located in a multifunctional complex is calculated separately.

Note that the constructive isolation of premises is the main condition that financiers and tax inspectors usually pay attention to in this issue. The Letter of the Ministry of Finance of Russia dated March 12, 2010 N 03-11-06/3/32 considers the situation when an organization carries out retail trade in a store with an area of ​​more than 150 square meters. m. For this area, which is in its ownership, there is a technical passport and a certificate of state registration. The store has an annex, which is owned by another organization, which has a common wall and the same address, but a separate entrance. The retail area of ​​the extension is 41 sq. m. m, which is confirmed by a separate technical passport for it. If an organization enters into a lease agreement for this extension for retail trade, the area of ​​the trading floors, as structurally separate, must be calculated separately.

When determining whether it is necessary to sum up the areas of retail space located in a building, courts take into account a set of criteria that allow them to give a more accurate answer. Let us give two examples of such solutions.

The Supreme Arbitration Court of the Russian Federation, in Determination No. VAS-7430/09 dated November 2, 2009, analyzed the situation when the taxpayer, applying the general taxation regime, proceeded from the terms of the agreement, according to which he was leased one retail space with a total area of ​​203.9 square meters in a shopping center. m. But the judges came to a different conclusion (you need to pay UTII), based on the following:

• the taxpayer carried out retail trade through three trading floors, the area of ​​which individually did not exceed 150 square meters. m.;
• the halls are separated from each other, have a separate entrance, and a cash register is installed in each of them.

FAS ZSO in Resolution dated January 15, 2009 N F04-8161/2008(18804-A81-27)<4>considered that each department in the sales area is an independent object of trade organization. A situation was considered when, on the second floor of a shopping center, the taxpayer carried out trade in three departments: “Clothing and footwear,” “Household chemicals,” and “Household appliances.” The judges proceeded from the fact that each department had cash registers, salespeople and service personnel, separate accounting records were maintained, and goods of different assortments, types and groups were sold. The court noted that the Tax Code does not contain a legal norm that allows combining the areas of trading floors of trade organizations on the basis of their location in the same trading floor and belonging to the same entity carrying out entrepreneurial activities.

<4>By the decision of the Supreme Arbitration Court of the Russian Federation dated June 26, 2009 N VAS-5682/09, the transfer of this Resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

From arbitration practice it has been established that the taxpayer needs to pay attention to the following signs that trading floors located in the same building belong to different trade organizations:

• the presence of independent entrances to retail premises;
• the presence of partitions or other boundaries between trading floors;
• availability of cash registers in each sales area;
• presence of sellers and service personnel in each sales area;
• an excellent assortment of product groups sold in different sales areas;
• maintaining separate records for different trading floors;
• the presence of auxiliary premises not intended for customer service.

Trade is carried out on the trading floor, both taxable and not taxable to UTII.

Often, trade is carried out on the territory of the trading floor, subject to UTII and under a different taxation regime. In the absence of delimitation of the territory of the trading floor, the question arises: how to determine its area for the purposes of applying Ch. 26.3 Tax Code of the Russian Federation? The Tax Code does not address this situation, and for a long time there were disputes between taxpayers and tax inspectorates regarding the possibility of reducing the area of ​​the trading floor when determining imputed income in accordance with any criterion, for example, based on proceeds from trade, taxable and not taxable . Now the regulatory authorities and the highest court have formed a unanimous opinion on this issue, although not in favor of the taxpayer.

Financiers in Letter dated 04/22/2009 N 03-11-06/3/101 noted that the procedure for distributing the area of ​​a trading floor (or part thereof) when two types of business activities are carried out in it simultaneously, for one of which UTII is paid and as an individual The indicator uses the area of ​​the sales floor (in square meters), which is not defined by the Tax Code. At the same time, for the purposes of calculating UTII and other taxes, different indicators are used that form the tax base. This means that when carrying out retail trade in self-made products, taxed under the simplified tax system, and retail trade in related goods, subject to UTII, in one sales area, the total area of ​​the sales area should be taken into account when calculating the amount of UTII.

The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 9757/09 of October 20, 2009, made a similar conclusion. He pointed out: the fact that in the area of ​​one trading floor the taxpayer carries out two types of activities, taxed under different taxation regimes, is not a basis for changing the values ​​of the physical indicator or the basic profitability of UTII. Since the sale of goods at retail is carried out on the territory of the entire trading floor, and the boundary dividing the trading floor for the needs of retail and wholesale trade, is missing, then when calculating the amount of UTII it is necessary to take into account the entire area of ​​the trading floor on which retail trade is carried out. At the same time, the highest court overturned the decision of the cassation court, which proceeded from the fact that in order to calculate UTII, the area of ​​the sales floor must be determined in proportion to the revenue received from retail trade.

The position of the Presidium of the Supreme Arbitration Court of the Russian Federation is guided by the courts, for example the FAS North Caucasus Region, which in its Resolution dated 04/26/2010 in case No. A53-14857/2009 in a similar situation came to the same conclusion.

V.V.Nikitin

Journal expert

"UTII: accounting

and taxation"

One of the most popular types of small business in our country is retail trade. At the same time, each business entity is free to choose the most acceptable tax deduction system. One of the most convenient special regimes is the tax on imputed income. According to the Tax Code of the Russian Federation (Chapter 26.3), small businesses are allowed to use UTII for retail trade. This is acceptable if this tax is imposed in your region in relation to this type of activity. What changes to UTII in retail trade occurred in 2018? Which last news about this special regime? How can an individual entrepreneur on UTII work in retail?

Who can use

Payment of UTII from retail trade in 2018 is acceptable if 2 criteria are met:

1. introduction of this special regime in relation to retail sales in a specific constituent entity of the Russian Federation;
2. business compliance with certain parameters.

Under the necessary conditions To work on UTII, not only the organizational and legal structure of the enterprise is subject to, but also the number of employees (up to 100 people).

Types of retail sales

In the Tax Code of our country, the term “retail trade” on UTII is fixed in Article 346.27 (paragraph 12).

Retail trade according to the Tax Code of the Russian Federation (subclauses 6 and 7 of clause 2 of article 346.26) is classified into several types:

• by using large facilities whose trading area is no more than 150 square meters. m each (pavilions, shops);
• through objects that do not have retail space, since they are very small;
• sales of products by delivery or manual distribution.

Working on an imputed basis makes sense if retail sales serve as an activity for the enterprise that is aimed at regularly generating income. At the same time, for each buyer there are all the signs of a retail purchase and sale agreement (Article 492 of the Civil Code of the Russian Federation).

Please note: retail trade and UTII are not compatible with supply contracts (including for the needs of the state, municipal authorities). At the same time, you can calmly interact with legal entities and individual entrepreneurs: the law does not oblige you to monitor for what purposes they purchase this or that product. In addition, in 2017 you can still work on imputation without a cash register.

The method of payment with clients – cash/non-cash/mixed type of payment/using a plastic card – does not in any way affect the use of UTII (paragraph 12 of Article 346.27 of the Tax Code of the Russian Federation).

What is a shopping area

The term “sales area” in retail trade on UTII includes only:

• location of cash registers, display cases and refrigerators;
• a place that is used for the work of the seller and for making purchases by customers.

Please note: some types of premises are never classified as retail, and therefore are not taken into account when determining the area for UTII purposes. In particular, these are:

• household and utility rooms;
• premises for employees;
• space allocated for storage.

Businessmen on imputation

The overwhelming number of individual businessmen pay UTII from retail trade through their mini-retail outlets. As a rule, they do not have financial resources to contain serious retail space.

Classification of such retail outlets quite varied. It can be:

• tents at fairs;
• points in shopping centers;
• vending machines;
• stalls;
• trade trailers;
• hand carts, trays, etc.

When calculating UTII from the listed objects, the following criteria are used (see table).

What's new: UTII in retail trade 2018

New coefficient K1

An important change to the UTII since 2018 was introduced by Order No. 579 of the Ministry of Economic Development of Russia dated October 30, 2017. According to it, when calculating the tax, the basic yield in 2018 must be multiplied by the deflator index K1, which is 1.868. Let us give an example of calculating imputed tax taking into account the K1 deflator from 2018.