Penalty for late payment of tax

A penalty is an amount of money that a taxpayer must pay in the event of payment of due amounts of taxes or fees later than the deadlines established by tax legislation. The above also applies to taxes paid in connection with the movement of goods across the customs border of the Customs Union (Clause 1, Article 75 of the Tax Code of the Russian Federation).

The procedure for paying penalties is established by Art. 75 of the Tax Code of the Russian Federation and also applies to payers of fees, tax agents and a consolidated group of taxpayers (clause 7 of Article 75 of the Tax Code of the Russian Federation).

A penalty is accrued for each calendar day of delay in paying a tax (fee), starting from the day following the tax (fee) payment established by the legislation on taxes and fees, unless otherwise provided by Chapters 25 and 26.1 of the Tax Code of the Russian Federation (clause 3 of Article 75 of the Tax Code of the Russian Federation ).

Penalties may also be accrued in the event of late payment of advance tax payments (paragraph 2, paragraph 3, article 58 of the Tax Code of the Russian Federation).

In this case, the following must be taken into account:

The amount of the penalty is determined in the same manner as in case of incomplete payment of tax, in accordance with Art. 75 Tax Code of the Russian Federation;

If, at the end of the tax period, the amount of calculated tax turned out to be less than the amount of advance payments due during this tax period, then penalties accrued for non-payment are subject to a proportionate reduction (clause 14 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

The rules for such a reduction are not established either in the Tax Code of the Russian Federation or in the above-mentioned resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation.

Tax authorities charge penalties on late advance payments only after submitting a tax return for the reporting (tax) period (see letters of the Ministry of Finance of Russia dated January 22, 2010 N 03-03-06/1/15, Federal Tax Service of Russia dated November 13, 2009 N 3-2 -06/127). In the event of a loss at the end of the tax period, penalties accrued on the amount of late advance payments are reversed (see letter of the Federal Tax Service of Russia dated November 11, 2011 N ED-4-3/18934).

The specified procedure also applies when applying the simplified tax system, in the event that the amount of advance payments calculated for reporting periods is less than the minimum tax paid for the tax period (see letter of the Ministry of Finance of Russia dated May 12, 2014 N 03-11-11/22105).

Payment of penalties is made simultaneously with the payment of taxes and fees or after payment of such amounts in full and regardless of the application of other interim measures or measures of liability for violation of tax legislation (clauses 2, 5 of Article 75 of the Tax Code of the Russian Federation).

If the organization does not pay the fines on its own, they can be collected forcibly (Clause 6, Article 75 of the Tax Code of the Russian Federation).

In this case, penalties are not charged on the amount of arrears:

1) which could not be repaid due to the fact that:

By decision of the tax authority, his property was seized;

By decision of the court, interim measures were taken in the form of suspension of transactions on bank accounts, seizure of funds or property of the taxpayer.

In this case, penalties are not accrued for the entire period of validity of the specified circumstances (clause 3 of Article 75 of the Tax Code of the Russian Federation);

2) which was formed by the taxpayer (clause 8 of Article 75 of the Tax Code of the Russian Federation):

As a result of his execution of written explanations on the procedure for calculating or paying tax, or on other issues of application of tax legislation, given to him or to an indefinite number of persons by the Ministry of Finance of Russia, tax authority or other authorized body (an official of this body) within its competence. The specified circumstances are established in the presence of a corresponding document from this body, which in its meaning and content relates to the tax (reporting) periods for which the arrears arose, regardless of the date of publication of such a document;

As a result of the taxpayer’s compliance with the motivated opinion of the tax authority sent to him during tax monitoring (the norm is valid from January 1, 2015).

However, if the specified written explanations, the reasoned opinion of the tax authority are based on incomplete or unreliable information provided by the taxpayer, then penalties will be accrued in the general manner;

3) in respect of which the preemptive period for collection has expired. As stated in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/08/2011 N 8229/10, penalties cannot serve as a way to ensure the fulfillment of the obligation to pay tax, the possibility of collecting which has been lost. See also paragraph 11 of the letter of the Federal Tax Service of Russia dated December 24, 2013 N SA-4-7/23263, letter of the Ministry of Finance of Russia dated October 29, 2008 N 03-02-07/2-192, resolution of the Federal Antimonopoly Service of the Moscow District dated June 10, 2014 N F05 -14553/12, etc.

Under certain circumstances, the taxpayer has the right to apply for a change in the tax payment deadline (deferment, installment plan, investment tax credit). If the tax authority decides to postpone the tax payment deadline, there are no grounds for charging penalties. At the same time, the taxpayer submits an application for a deferment (installment plan) or an investment tax credit does not suspend accrual of penalties on the amount of tax payable (clause 3 of Article 75 of the Tax Code of the Russian Federation, resolution of the Federal Antimonopoly Service of the Central District dated September 11, 2007 N A48-4283/06-6).

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Law No. 137-FZ introduced another innovation into the procedure for calculating penalties. Now penalties are not charged on the amount of arrears that the taxpayer incurred as a result of his compliance with written explanations on the application of tax legislation. True, if explanations are given to a specific taxpayer or an indefinite number of persons by an authorized body state power within his competence. This is what it says in paragraph 8 of Art. 75 of the Tax Code of the Russian Federation. If the explanations are based on incomplete or unreliable information, penalties will be assessed for the resulting arrears.

Thus, since 2007, penalties for late paid advance payments for certain taxes, including monthly advance payments for income tax, are accrued until the end of the reporting (tax) period and the submission of the corresponding declaration starting from the day following the due date for their payment established by the legislation on taxes and fees.

Sanctions for late payment of corporate property tax

Tax offense according to Art. 116 of the Tax Code of the Russian Federation recognizes an illegal (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons, for which liability is established by the Tax Code of the Russian Federation. Article 122 of the Tax Code of the Russian Federation establishes liability for non-payment or incomplete payment of tax (fee) amounts as a result of unlawful actions (inaction), which, in particular, include understatement of the tax base, other incorrect calculation of tax (fee). This act entails a fine of 20% (and, if the offense was committed intentionally, 40%) of the unpaid tax (fee).

In accordance with paragraph 1 of Art. 45 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees. The obligation to pay tax must be fulfilled within the period established by the legislation on taxes and fees. The taxpayer has the right to fulfill the obligation to pay tax ahead of schedule. In case of non-payment or incomplete payment of the tax on time, an arrear is formed (clause 2 of Article 11 of the Tax Code of the Russian Federation), according to which the tax authority collects the tax in the manner prescribed by the Tax Code (clause 2 of Article 45 of the Tax Code of the Russian Federation).

How to calculate the amount of penalties for taxes

• At a profit. It is paid quarterly, for six months and for 9 months. The calculation is based on the amount of profit, the advance payment is based on rates and profit on an accrual basis.
• For property. Advance is equal to 1/4 * tax rate * average cost property. It must be paid in each reporting period.
• Transport. The formula for calculating it is = 1/4 * tax base * tax rate. Tax must be paid in the first, second and third quarters.
• Land. The advance is paid by taxpayers whose reporting period is a quarter. The tax is equal to 1/4 * cadastral value * tax rate.

1. First, the reason for non-payment of tax is the blocking of an individual’s current account by a judicial or tax authority, as well as in cases of seizure of property. Generally speaking, an account or property is frozen, which means it is impossible to pay taxes. This is an objective reason that exempts you from penalties.
2. The second case is that tax arrears are due to a written explanation from the tax office. Such explanations are given to a specific tax payer or a certain circle of persons. But if such recommendations or documents are taken not from the official website of the Federal Tax Service, but from any unreliable source, then the penalty will be charged in full.
3. The third case is an error in the tax return, which caused the tax to be understated. No penalty will be charged on the remaining unpaid amount if you pay the missing tax amount and file an amended return before the desk audit expires. Some make an amendment, but do not pay the tax itself. In this case, the penalty will continue to accrue.

Principle of calculating tax penalties

Citizens often make a request in a search engine for “demand for payment of tax, collection of penalties and fines.” This is a formal notice of unpaid amounts owed by the taxpayer. It is sent regardless of whether fines or penalties are assessed or not. Such a document must contain the following list of elements:

If the taxpayer made a profit but never made deductions, he will have to pay a penalty. You can determine its size yourself. It begins to be counted after the ninetieth day of delay. The counting is carried out from the first day. Penalties are assessed for failure to pay the following tax payments on time:

What are the penalties for non-payment of transport tax?

1. Ground modes of transport– cars, motorcycles, buses and all types of machines that move using pneumatics or tracks.
2. Water vehicles– sailing ships, yachts, motor ships, motor boats.
3. Aircraft- airplanes, helicopters, airliners.

Penalties for possible delays will not be charged in only one of two cases– the taxpayer’s property has been seized, that is, a procedure for forced collection of tax is being carried out, and also if a court decision has suspended all possible transactions on accounts in commercial banks.

Article: Accrual of penalties for late payment of taxes and fees

Until 2007, penalties on the amounts of unpaid advance payments were accrued only after the end of the reporting (tax) period based on the actual tax base indicated in the declaration. The definition and general issues of calculating the tax base are prescribed in Art. Art. 53 and 54 of the Code. If advance payments were calculated based on other indicators (for example, based on the tax accrued in previous quarters), then until January 1, 2007, penalties were not accrued on them until the declaration was submitted.

The rules for calculating penalties are specified in clauses 3 and 4 of Art. 75 of the Tax Code of the Russian Federation. Penalties are accrued for each calendar day of delay in fulfilling the obligation to pay a tax (fee) starting from the day following the deadline for their payment established by law. Penalties are calculated based on 1/300 of the Bank of Russia refinancing rate in effect during the period of delay in fulfilling the obligation to pay taxes and fees.

Calculation of penalties for taxes: accounting entries

Accounting recognizes penalties as another expense, which in no way participates in determining the tax base when calculating income tax. Clause 83 of the PBU and the Instructions for the use of the standard chart of accounts make it possible to verify that obligations of this kind should really be reflected in account 99.

At the end of each year, accounting and tax reporting is generated, which contains information about the income of the enterprise. How to accrue interest on income tax by posting? To do this, use the following entry: Dt 99 Kt 68 “Peni”. To analyze profit before taxes are collected, you can additionally use the posting Dt 91.2 Kt 68 “Peny”. This will not affect the calculation of the taxable base in any way, but will help to estimate the total amount of income received from economic activity for the purpose of developing the enterprise.

Penalties and fines for failure to pay property taxes on time

Payers of property taxes for individuals are required to pay legally established taxes in a timely manner and in full.
Property tax for individuals is calculated by the tax office and paid on the basis of a notification received from it. Payment deadline tax - no later than November 1 of the year following the year for which the tax was calculated. For example, the tax for 2012 must be paid before November 1, 2013. In this case, the notification must be sent to you no later than October 1 (clause 2 of article 52 of the Tax Code of the Russian Federation; clauses 8, 9 of article 5 of the Law of 09.12. 1991 N 2003-1).

If the demand for payment of tax arrears (penalties, fines) is not fulfilled on time, the tax authority may file an application with the court to collect the debt at the expense of your property. For example, through funds in bank accounts, cash. By general rule The deadline for going to court is six months from the date of expiration of the deadline for fulfilling the requirement (clauses 1, 2 of Article 48 of the Tax Code of the Russian Federation).

Accounting entries when calculating penalties for taxes

The taxpayer must pay the late payment penalty on his own (either simultaneously with the tax or after paying it). If this is not done, the inspection will charge a penalty. And it will not only accrue, but may even forcefully collect them at the expense of the taxpayer’s money or property (clause 6 of Article 75 of the Tax Code of the Russian Federation).

Rules accounting expenses of organizations are regulated by PBU 10/99 “Expenses of an organization” (approved by order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n). However, this PBU does not give us specific instructions on the accounting procedure for tax penalties. This means that the organization can determine it independently by enshrining it in its accounting policies (clause 7 of PBU 1/2008 “ Accounting policy organization”, approved by order of the Ministry of Finance of Russia dated October 6, 2008 No. 106n).

What happens if you don't pay transport tax?

1. In the event of failure by a taxpayer (payer of fees) - an individual who is not an individual entrepreneur (hereinafter in this article - an individual), within the established period of time, the obligation to pay a tax, fee, penalty, fines, the tax authority (customs authority) that sent the demand on payment of taxes, fees, penalties, fines (tax authority at the place of residence individual in the event of deregistration of this person with the tax authority that sent the demand for payment of taxes, fees, penalties, fines), has the right to apply to the court with an application for collection of taxes, fees, penalties, fines at the expense of property, including funds in accounts in a bank, electronic funds, transfers of which are carried out using personalized electronic means of payment, and cash, of a given individual within the amounts specified in the request for payment of taxes, fees, penalties, fines, taking into account the specifics established by this article. (as amended by Federal Laws dated June 27, 2011 N 162-FZ, dated July 23, 2013 N 248-FZ)

4. Collection of taxes, fees, penalties, fines from the property of an individual on the basis of a judicial act that has entered into legal force is carried out in accordance with Federal law“On enforcement proceedings”, taking into account the features provided for in this article.

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Penalties are accrued if the payer of taxes or fees pays the tax at a later date than established by law. Moreover, paying penalties is the payer’s obligation, not a right. Let's look at examples of how penalties are calculated.

Fulfillment of the obligation to pay taxes and fees can be ensured in the following ways (Article 72 of the Tax Code of the Russian Federation):

• pledge of property;
• surety;
• fines;
• suspension of transactions on bank accounts and seizure of the taxpayer’s property;
• bank guarantee.

What are penalties, in what cases are penalties calculated, in what amount, what is the procedure for paying penalties - voluntarily and compulsorily - all these and other issues related to ensuring that payers and other persons fulfill their obligations to pay or transfer taxes and fees are regulated by Article 75 of the Tax Code of the Russian Federation.

Webinars for accountants at Kontur.School: changes in legislation, features of accounting and tax accounting, reporting, salaries and personnel, cash transactions.

Penalty calculator

Penalties: definition, important rules

Penalty is recognized as an established amount of money that a taxpayer must pay in the event of payment of due amounts of taxes or fees, including taxes paid in connection with the movement of goods across the customs border of the Customs Union, later than the deadlines established by the legislation on taxes and fees. Important points emerge from this definition:

1. Paying penalties is the payer’s obligation, not a right.
2. Penalties are accrued if the payer of taxes or fees fulfills his obligation at a later date.
3. Penalties are applied whenever tax payments arrive to the budget late and do not depend on sanctions for tax violations.
4. Penalties are accrued not only for payments to domestic market, but also in connection with the movement (i.e. import, export) of goods across the customs border of the Customs Union.
5. The accrual of penalties stops due to the payment of the due amounts of taxes and fees, i.e. the amount of penalties is fixed on the date of repayment of the debt and, if the penalties are not paid by the person, then penalties are not charged on penalties.

At the same time, the rules for calculating penalties apply not only to taxpayers and fee payers, but also to tax agents. Penalties are charged not only on tax payments, but also on advance payments of taxes and fees that the organization transferred late.

Penalties are not charged if:

• the organization has overpaid the relevant tax;
• penalties are completely covered by the existing overpayment;
• if the overpayment arose for the same tax, formed before the arrears arose and completely covers it. However, if the amount of the overpayment was less than the amount of the identified arrears, the amount of fines should be proportionally reduced.

Let us note that an overpayment is the amount of taxes, penalties and fines that were overpaid by the taxpayer or overcharged by the tax authority (clause 1 of Article 78, paragraph 2 of clause 1 of Article 79 of the Tax Code of the Russian Federation). The overpayment may be used to offset existing debt. Basic rules for scoring:

• tax authorities themselves are obliged to offset the overpayment against arrears of taxes, penalties and fines (clause 5 of article 78 of the Tax Code of the Russian Federation).
• offset is made by type of taxes (federal, regional, local) (clauses 1, 5, 14, article 78 of the Tax Code of the Russian Federation).

How are penalties calculated?

Penalties are calculated for each day the tax payment deadline is missed. The first day for which interest is calculated is the next day after the tax (fee) payment date established by law.

Example 1. The tax payment deadline is no later than April 28, 2017. Let’s assume that the taxpayer did not pay the tax amount on April 28, 2017. Therefore, starting from April 29, penalties will be charged. Everything is certain about the start date for accrual of penalties. The question arises: on what date should interest be calculated?

Example 2.Additional conditions of example 1. Let us assume that the taxpayer paid the tax on May 7, 2017. The question arises: May 7th is included in the number of days for which the taxpayer will be accrued penalties due to violation of the payment deadline, or is the last day for which interest will be accrued - May 6th? There is no clear position on this issue.

From the point of view of the Federal Tax Service of Russia, penalties must be accrued up to and including the day the tax is paid (Explanations of the Federal Tax Service of Russia dated December 28, 2009). Judicial practice suggests that the day of payment of arrears is not included in the number of days for which penalties are charged. Thus, if we take into account the opinion of the Federal Tax Service of Russia, then in our example penalties should be accrued in 9 days, and according to judicial practice- in 8 days.

Conclusion: the period for calculating penalties for taxes and fees is not determined precisely and depends on the opinion of regulatory authorities and court decisions.

The same uncertainty existed regarding compulsory insurance contributions. However, starting from January 1, 2015, the period for calculating penalties for mandatory insurance premiums is clearly defined. According to clause 3 of Art. 25 of the Law of July 24, 2009 No. 212-FZ: “Penalties are accrued for each calendar day of delay in fulfilling the obligation to pay insurance premiums starting from the day following the established…. the deadline for payment of insurance premiums, and up to and including the day of their payment (collection). Thus, from 01/01/2015, the date of repayment of arrears on insurance premiums is included in the number of days for which penalties are accrued. It is important that the day the debt is repaid is the day the payment order is submitted to the bank to transfer funds.

Penalty calculation formula

Penalties are calculated as a percentage of the unpaid amount of tax or fee, which is equal to 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time. Penalties are calculated using the formula:

Amount of penalties = Amount of taxes not paid on time x refinancing rate (during the period of delay)/300 x Number of days of delay

The number of days overdue for penalties on taxes is determined from the day following the due date for payment of the tax, and to the day preceding the day of its payment (clauses 3, 4 of Article 75 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 07/05/2016 No. 03-02-07 /2/39318).

For example, the tax debt was paid on February 15, 2017. When calculating penalties, you need to take into account February 14. The payment date (15th) does not need to be included in the calculation.

Continuing example 1 and establishing that the amount of arrears was 100,000 rubles, we obtain the amount of the penalty:

• according to the position of the Federal Tax Service of Russia. Amount of penalty = 100,000 x 8.25%/300 x 9 = 247.5 rubles.
• according to judicial practice. Amount of penalty = 100,000 x 8.25%/300 x 8 = 220 rubles.

The difference between the first and second options is insignificant - 27.5 rubles.

It can be recommended that the organization in this situation assess the “cost” of the risks. Of course, if the “price of the issue” is high, you need to go to court and defend your position, especially since the overwhelming majority of court decisions are in favor of the taxpayer and we must not forget that, according to paragraph 7 of Art. 3 of the Tax Code of the Russian Federation: “All irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees).”

The refinancing rate of the Central Bank of the Russian Federation is not constant. Therefore, e If the refinancing rate (key rate) that was in effect during the period of delay has changed, then penalties must be calculated separately for each rate.

Let's continue example 1. Let's assume that the refinancing rate from May 1, 2017 was 10%. Then the amount of the penalty will be:

• according to the position of the Federal Tax Service of the Russian Federation. Amount of penalty = + = 55 + 233.33 = 288.33 rub.
• according to judicial practice. Amount of penalty = + = 55 + 200 = 255 rub.

Another method for calculating penalties in a situation where the advance payment deadline is missed.

According to clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57, penalties for failure to pay advance tax payments on time are subject to calculation until the date of their actual payment or, in case of non-payment, until the due date for payment of the corresponding tax. If, at the end of the tax period, the amount of calculated tax turned out to be less than the amount of advance payments due during this tax period, penalties accrued for non-payment of these advance payments are subject to a proportional reduction. The same procedure applies if the amount of advance tax payments calculated at the end of the reporting period is less than the amount of advance payments payable during this reporting period.

Thus, when calculating penalties, if the deadline for payment of advance payments is violated, it is necessary to take into account that penalties are accrued depending on the legally established procedure and deadline for payment of the advance payment:

Procedure for making advance payments	The procedure for calculating penalties

32. Do the amounts of penalties accrued for late payment of tax payments and fees relate to sanctions for violation of tax laws and how are they reflected in accounting?

The taxpayer's liability for violations of tax legislation is established by Article 13 of the Law Russian Federation“On the Fundamentals of the Tax System in the Russian Federation”, the first paragraph of which defines the list of imposed financial sanctions (amounts of hidden or understated income (profit)), fines, penalties for late payment of tax and other sanctions reflected by the taxpayer on line 390 “Economic Sanctions” of the form 2 of the annual accounting report of the enterprise (letter of the Ministry of Finance of Russia dated June 24, 1992 N 48, paragraph 3.14 of the Instructions on the procedure for filling out the forms of the annual accounting report of the enterprise).

In accordance with Instruction No. 4 of the State Tax Service of the Russian Federation “On the procedure for calculating and paying income tax of enterprises and organizations to the budget,” amounts contributed to the budget in the form of sanctions in accordance with the legislation of the Russian Federation are not included in expenses from non-operating operations, and relate to the reduction of profit remaining at the disposal of the enterprise, that is, they should be reflected in the debit of account 81.

33. In what order and in what amount are penalties accrued for late payment of tax payments?

ConsultantPlus: note.

In accordance with Decree of the President of the Russian Federation dated 05/08/96 N 685, from May 20, 1996, the penalty collected from the taxpayer in case of delay in tax payment was set at 0.3 percent of the unpaid tax amount for each day of delay in payment.

In accordance with subparagraph "c" of paragraph 1 of Article 13 of the Law of the Russian Federation "On the Fundamentals of the Tax System in the Russian Federation", a fine is collected from the taxpayer in the amount of 0.3 percent (0.7 percent from December 22, 1993 - in accordance with the Decree of the President of the Russian Federation dated December 22, 1993 N 2270 “On some changes in taxation and in the relationship between budgets of various levels”) of the unpaid amount of tax for each day of delay in payment, starting from the established deadline for payment of the identified delayed amount of tax, unless the Law provides for other amounts of penalties.

In case of delay in payment of tax payments due to the fault of a bank or credit institution, a penalty in the amount of 0.2 percent (0.7 percent - from December 22, 1993) is collected from them in the manner established by part four of Article 15 of the Law of the Russian Federation "On the Fundamentals of the Tax System in Russian Federation".

34. Is a penalty collected in case of delay in payment of penalties?

Penalties are not charged in case of delay in payment of penalties for violation of tax laws.

35. Tax payment deadline is October 5, Joint-Stock Company paid tax on October 12; 7 and 8 were days off. Are weekends excluded when calculating days overdue?