The transition of IP to USN is carried out in the manner prescribed by law. Entrepreneurs need to contact the tax authority at their place of residence. Let us further consider what constitutes a transition to the simplified tax system, when it is possible and how it happens.
General information
An application must be submitted to the tax authority. The transition to the simplified tax system will occur next year after the reporting one, if the paper is served from October 1 to November 30 of the current period. In it, the payer reports the amount of income for the past 9 months, the average number of employees, the value of intangible assets and fixed assets. There are exceptions to this rule. They act for newly formed legal entities and registered individuals as individual entrepreneurs. These entities can send an application within five days from the moment they are registered with the tax authority. The date is indicated in the certificate of state registration.
Mandatory form 26.2-1
A statement, according to tax inspectors, must be submitted. Otherwise, how does the authorized body know that the payer has changed the tax system? In judicial practice, there are a number of cases where the application of the new regime is considered unreasonable. This is due to the fact that the transition to the simplified tax system was made informally. However, there are other solutions.
Some Federal Arbitration Courts recognize as an application the filed declaration drawn up in accordance with the simplified tax system for the first quarter of the reporting year. The FAS of the Moscow District clarified the situation in its own way. The court in its ruling in particular referred to Art. 346.11-346.13 Tax Code. They established that the transition to the simplified tax system by organizations and individuals-entrepreneurs is carried out on a voluntary basis. In this regard, the lack of completed f. 26.2-1 will not act as a basis for a ban on the application of the new regime, if other actions of the subject have indicated the use of this regime from the moment of its registration.
In addition, the FAS took into account Art. 3 Tax Code. Paragraph 7 of this rule states that all contradictions, doubts and ambiguities should be interpreted in favor of the payer. The legal consequences of not submitting an application are not defined by law. However, in order to avoid problems and litigation, experts recommend sending a notice on the transition. STS will be valid until the payer decides to return to the common system. In this case, he should re-apply to the tax authority.
The timing
Tax authorities on the one hand indicate that f. 26.2-1 acts as a notice indicating the desire of the payer to make the transition to the simplified tax system. The legislation does not establish requirements for the control structure to decide on this. Along with this, the tax authority is talking about sending a notice to the payer that his application cannot be considered due to missing the deadlines.
Arbitrage practice
The decisions of the arbitral tribunals on issues related to missing the deadline for submitting an application for transfer are very ambiguous. Some arbitration courts recognize the correctness of the tax office, which denies the payer the right to use the simplified regime because of this. Other instances indicate that missing the deadline alone cannot deprive the subject of the ability to use the simplified tax system if the application was submitted again after removing obstacles that prevented the regime from being changed. The Supreme Arbitration Court of the Russian Federation determined that the submission of a document after a five-day period from the date of registration cannot serve as a basis for refusal.
Important point
It must be remembered that if the last day of the period established by law falls on a day off, then the end date will be the next working day after them. Tax authorities often forget about it and refuse to payers. In such cases, this decision can be challenged in an arbitration court.
Other cases
It happens that the payer did not violate the deadline, but nevertheless was late with the submission of the application. This can happen, for example, if the registration authority made a mistake and issued incorrect primary documents. The taxpayer filed an application for transition to a simplified regime within five days from the date of receipt of the correct securities. In this case, the subject is not guilty, and the court will uphold his right to apply special regime. In some cases, the tax authority refuses to accept the application simultaneously with the registration documents. This instance is motivated by the fact that at this moment the subject is not capable, does not have a PSRN and TIN. Arbitration instances, however, refer to the absence in the legislation of any requirements or restrictions on the delivery of documents. Therefore, such inspection failures can be considered unfounded.
Resubmission of documents
Many organizations change their location, and individual entrepreneurs, respectively, the place of residence. In such cases, there is no need to re-submit the application for transfer to the "simplified tax system" to the tax office at the new address. In the provisions of Ch. 26.2 of the Tax Code there are no such requirements. Clarifications on this issue were given by regulatory authorities (Ministry of Finance, Federal Tax Service, Federal Tax Service for Moscow). There is no need to submit a second notice at the beginning of the next reporting period.
Conversion from STS to VAT
It can be carried out voluntarily or forcibly. In the first case, this is possible from the new reporting period. The payer must notify the tax authority of his refusal to apply the “simplification” by January 15 of the year in which the regime is changed. In this case, another form is filled out, different from the one by which the transition to the simplified tax system is performed. VAT recovery may occur without fail. If the payer’s profit for the year is more than 15 million rubles. or the residual value of fixed assets and intangible assets is more than 100 million rubles, it is considered transferred to the general system from the beginning of the quarter in which the excess is recorded. Notification of the loss of the ability to use the simplified mode is filed within fifteen days from the end date of the period in which the excess profit appeared. The reverse transition to the simplified tax system is allowed no earlier than a year after the loss of this right.
Calculation of tax on DS at the beginning of the period
When switching to the general taxation regime, the payer does not need to recalculate taxes for the past period. But along with this, problems with incomplete operations may appear. In this case, the calculation of VAT is carried out depending on the payment and the date of shipment, the moment of establishing the tax base, fixed by the accounting policy.
If the delivery of goods / services was made during the use of the simplified regime, payments are received after changing the taxation system. VAT may be charged "on shipment". In this case, at the time of delivery, the company was not the payer of this tax. The invoice was issued without VAT or simply was not drawn up. At the time of receipt of the payment, the obligation to accrue tax does not arise. VAT can be calculated "for payment". The funds are received during the period in which the company is the payer of this tax. And at the same time there is a duty to pay VAT.
But since the invoice was drawn up during the use of the simplified regime, and the tax was not allocated in it, the company will have to write new documents. They will need to allocate VAT. These invoices must also be transferred to counterparties. The latter will have the opportunity to present for deduction the amount of VAT paid (if they act as its payers).
Advance payments and shipping after regime change
If VAT is charged "on shipment", then immediately at the time of delivery the company has an obligation to pay tax. In this case, the organization issues an invoice in which it is allocated. If VAT is charged "on payment", then the funds arrived at the time of using the simplified system. The company in this case was not a payer of the specified tax. Consequently, the obligation to expel him did not arise. But at the time of shipment, the company must issue an invoice with a dedicated VAT, because at that moment it is already its payer. Regardless of the fact that the accounting policy fixes the way to determine the base for the tax on DS, in the course of receipt of funds the company will have to pay it after shipment.