Russian and World NewsCards of double interpretation
In a number of regions of Russia the shops earlier working with plastic cards, refuse to serve them now. And the reason at all mistrust to banks or buyers, and requirements of tax inspectors.
The better, the worse
Calculations by means of bank cards are convenient for buyers who do not need to care of safety of money, moreover quite often they manage to receive a discount. They are favourable and to sellers whom, using clearing settlements with buyers, involve new clients and thus partially get rid of efforts on inkassirovaniju a cash. Encourage such operations and banks, after all thanking it they involve additional means. And if banks receive additional money, they and put them, thereby developing economy. It turns out, card calculations are favourable and to the state. Besides, to the authorities these operations are convenient also what to supervise them easier, than transactions with nalichkoj .
All is common truths, but we have repeated them, as they are unknown to the Ministry of Taxes and Tax Collection of Russia. Or tax specialists intentionally forget about them. After all now from those who works on plastic cards, they try to take more taxes, than from other tax bearers. Such discrimination has already led to that in a number of regions sellers refuse to serve those who wants to pay off by a card.
as an example we will consider the situation which has developed in Krasnodar territory where for retail trade the uniform tax to the made income (ENVD) is imposed. It replaces the majority of the basic taxes (the VAT, the tax from sales, the profit tax...) . But ENVD it is charged only from those incomes in which will specify the regional authorities. And they have the right to force to pay the made tax, only if the firm or the businessman is engaged in activity which is resulted in chapter 26. 3 Tax codes (NK) the Russian Federation, in particular retail trade. Under the Tax code the gain from retail trade is assessed with the made tax, only if she is encashed (item 346. 27 NK).
the Kuban tax inspectors have used This norm of the code. In the message which they have published recently on the site and have supported with the reference to the letter of the Ministry of Taxes and Tax Collection of Russia from February, 17th, 2003 #22 - 1 - 14/ 384 - Ε893, they have declared that the incomes received by bank cards, are not considered as a gain from retail trade. Hence, from them all basic taxes are paid.
on it officials have finished the explanations. But if to continue their reasonings, the conclusion turns out unfavourable. Tax specialists have held back that any dealer working with plastic cards, also realises the goods and in cash. So, the businessman receives a gain assessed ENVD. The sum of this tax depends not on profit of the tax bearer, and on the area of a shop and its site. Accordingly, it turns out that two identical shops located in the neighbourhood, will pay the equal sums of the made tax.
and now we will assume that the first enterprise does not work with bank cards, and second half of incomes receives from these operations. Then the second shop will pay in the budget not only ENVD, but also other taxes, that is the first will give to the budget much more, than.
to pay spare cash it would be desirable to nobody. Therefore many sellers terminate contracts with the banks serving plastic cards. Certainly, businessmen lose clients (and frequently provided), but the saved taxes exceed the missed profit.
However before to refuse operations with plastic cards, it is necessary to understand, whether requirements of officials are defensible?
retail or wholesale
Inspectors believe that trading organisations working with bank cards should pay the basic taxes for two reasons. The first - they are engaged in the wholesale trade, the second - conduct clearing settlements. Thus tax specialists have not tried to understand at all: and what is considered wholesale and a clearing settlement?
answering this question, we will go by contradiction - we will consider that admits retail trade and cash calculations. In the Tax code trade is carried to retail in cash, but is not established, than it differs from wholesale. From item 11 NK the Russian Federation follows that in the absence of direct explanations (if any definition is not present in tax laws) it is necessary to address to other documents, in particular to item 492 GK the Russian Federation. There it is told that retail is any sale of goods for personal needs of the buyer. And it can pay off and under the clearing settlement, but sale will be considered all the same retail (item 124 of section 2 of State standard of the Russian Federation of GOST R 51303 - 99 Trade. Terms and definitions entered by the decision of Gosstandart of the Russian Federation from August, 11th, 1999, and also the letter of the Ministry of Taxes and Tax Collection of Russia from January, 19th, 2001 #ΒΑ - 6 - 26/ 48). If ordinary inspectors do not consider instructions of Gosstandart of Russia and the department it is necessary to address in judicial instances which usually support payers (see, for example, the decision of FAS Severo - the Western district from March, 26th, 2003 #ΐ66 - 5876 - 02).
So, with whom pay off on plastic cards, it is impossible to name the Cash or a clearing settlement wholesalers. Now we will disassemble the second statement of officials - that pay off with these firms and businessmen on a clearing settlement. It is at first sight indisputable. After all all calculations share on non-cash and cash (item 861 GK the Russian Federation), and payments by cash are considered as the last only. But, as it is paradoxical, under the current legislation of operation with cards it is impossible to carry unequivocally and to clearing settlements. The matter is that kinds of such calculations are resulted in item 862 GK the Russian Federation where is not present words about bank cards. However, there is not present and the closed list of clearing settlements.
in search of the additional information it is reversible to documents of the Central Bank of the Russian Federation which regulates rules of monetary operations (item 4 of the federal law from July, 10th, 2002 #86 - FZ). But in them directly it is not established, payments concern what operations by cards. On the one hand, in Position about an order of their issue it is told that a number of operations with cards is made out the same as and at clearing settlements (item 5. 7 Positions from April, 9th, 1998 #23-). But, on the other hand, after the edition of this document Position of the Central Bank of Russia from October, 3rd, 2002 #2 - P " was accepted; About clearing settlements in the Russian Federation in point 1. 2 which those forms of calculations on which it extends are listed. Among them payments by cards are not present.
Besides, since July, 1st, 2003 clearing settlements of citizens will be regulated by special position of the Central Bank of Russia from April, 1st, 2003 #222 - by P.No i in it also is not established, payments concern what operations by cards.
It turns out that on bank cards it is possible to recognise transfers non-cash only on customs of a business turn that is because so it is got . But these customs are applied in the civil legislation, and in NK the Russian Federation is told nothing about them. There it is established that in tax disputes all ineradicable doubts are interpreted in favour of the tax bearer (item 7 of item 3 NK the Russian Federation). In our case such doubt (the defect of laws and Central Bank documents) is available. Besides, it is necessary to consider that in one case payments of physical persons on cards are equal to cash (item 349 NK the Russian Federation). However, this norm is entered in chapter 27 the Tax from sales but in the code it is not specified that it is not applied to other taxes.
who will go to court
Unfortunately, it is not necessary to hope that officials will consider so in details the legislation and will cancel surtaxes for payers ENVD. After all it only under the Tax code of the Russian Federation inspectors should solve contradictions in favour of the organisations and businessmen. Actually the majority of tax specialists is interpreted by contradictions how it favourably. That is why more often the interests to businessmen should be protected in court. Naturally, any judicial lawsuits - business hlopotnoe that is why it is no wonder that owners of shops do not want to have legal proceedings, preferring to refuse operations with plastic cards.
from such decision of businessmen suffer both buyers, and banks. But the market of clearing settlements of physical persons is not so developed yet that owners of plastic cards have started to address in court and to try to deny statements of tax specialists. So if banks want, that explanations of sneaks have been recognised by illegal, they should have legal proceedings.
However, it is necessary to consider that judges can not accept the statement of claim from credit institutions, having declared that consultations of inspectors concern not them, and to shops and, hence, do not infringe on interests of banks. But with it it is possible to argue, after all from - for doubtful explanations of tax specialists buyers will use less often plastic cards. Means, incomes of banks decrease. Therefore they have the right to challenge opinions of officials in spite of the fact that from banks do not demand superfluous taxes. This conclusion proves to be true in definition of the Constitutional court of the Russian Federation from November, 5th, 2002 #319 - the Island In particular, in this definition is told that judges are obliged to estimate legality of documents of tax specialists not only when the statutory act directly infringes on interests of the claimant but also when in court the organisation to which yet it is not shown claims addresses. The court should provide protection of the rights of any organisations. In our case - the bank right to spend work with plastic cards.
artem RODIONS, the expert of magazine Double record
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