How to implement the transition to USN: step by step instruction. Transition to USN: restoration of VAT

Transfer of IP to USN is carried out in the order established by the legislation. Entrepreneurs need to apply at the place of residence to the tax authority. Let's consider what the transition to the USN is, when it is possible and how it happens.

General information

The tax authority must file an application. The transition to the USN will occur next year after the report, if the paper will be filed from October 1 to November 30 of the current period. In it, the payer reports on the amount of income for the past 9 months, the average number of employees of the enterprise, the value of intangible assets and fixed assets. There are exceptions to this rule. They act for newly formed legal entities and registered natural persons as individual entrepreneurs. These entities can send an application within five days from the date of their registration with the tax authority. The date is indicated in the certificate of state registration.

Obligation of the form 26.2-1

The application, according to tax inspectors, must be submitted. Otherwise, how does the authorized body know that the payer has changed the taxation system? In judicial practice, there are a number of cases where the application of the new regime is recognized as unfounded. This is due to the fact that the transition to the USN was made informally. However, there are other solutions.

Some Federal Arbitration Courts recognize as a petition filed a declaration, compiled for USN for the first quarter in the reporting year. FAS Moscow District explained the situation in its own way. The court in its decision in particular referred to Art. 346.11-346.13 NK. They found that the transition to USN by organizations and individual entrepreneurs is carried out on a voluntary basis. In this connection, the absence of a filled f. 26.2-1 will not act as a ground for banning the application of the new regime, if other actions of the entity testified to the use of this regime from the moment of its registration.

In addition, the FAS took into account Art. 3 NC. In paragraph 7 of this rule it is stated that all contradictions, doubts and ambiguities should be interpreted in favor of the payer. The legal consequences of not submitting an application are not determined by law. However, in order to avoid problems and litigation, experts recommend sending a notice for the transfer. USN will operate until the payer decides to return to the common system. In this case, he should re-apply to the tax authority.

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 USN. Legislation does not establish requirements for the control structure to decide on this. Along with this, the tax authority talks about sending a notice to the payer that his application can not be considered due to missed deadlines.

Arbitrage practice

Arbitration decisions on issues relating to missing the deadline for submitting a transfer application are highly ambiguous. Some arbitration courts recognize the rightness of a tax inspection that denies the payer the right to use the simplified regime because of this. Other instances indicate that passing the deadline by itself can not deprive the subject of the opportunity to apply the simplified tax system if the application was reapplied after removing obstacles that prevented the regime from being changed. The Supreme Arbitration Court of the Russian Federation has determined that the filing of a document after the expiration of a five-day period from the date of registration can not act as a ground for refusal.

An Important Moment

It should be remembered that if the last day of the statutory period falls on the day off, the end date will be the next working day after them. Tax authorities often forget about this and deny payers. In such cases, it is possible to challenge this decision in an arbitration court.

Other cases

It happens that the payer did not violate the deadline, but nevertheless he was late with the application. This can happen, for example, if the registering authority made a mistake and issued incorrect primary documents. The taxpayer applied for the transition to a simplified regime within five days from the date of receipt of the correct papers. In this case, there is no guilt of the subject, and the court will support his right to apply special regime. In some cases, the tax authority refuses to accept the application simultaneously with the registration documents. This is motivated by the fact that at that moment the subject is not legally capable, there is no OGRN and INN. The arbitration authorities, however, refer to the absence of any requirements or restrictions on the delivery of documents in the legislation. Therefore such refusals of inspections can be recognized as unfounded.

Re-submission of documents

Many organizations change their location, and individual entrepreneurs, respectively, the place of residence. In such cases, there is no need to repeatedly apply for a transfer to the "simplified tax" at the tax office at the new address. In the positions of Ch. 26.2 NC requirements of such are not established. Explanations on this issue are given by the controlling bodies (the Ministry of Finance, the Federal Tax Service, the Federal Tax Service in Moscow). No need to re-notify at the beginning of the next reporting period.

Transition from USN to VAT

It can be carried out voluntarily or compulsorily. In the first case, this is possible from a new reporting period. The payer must notify the tax authority of his refusal to apply the "simplified tax" until January 15 of the year in which the regime change takes place. In this case, another form is filled, different from the one by which the transition to the USN is made. Restoration of VAT can occur without fail. If the payer's profit for the year is more than 15 million rubles. Or the residual value of the OS and NMA is more than 100 million rubles, it is considered to be transferred to the common system from the beginning of the quarter, in which the excess is fixed. A notice of the loss of the possibility to use the simplified regime shall be filed within fifteen days from the end date of the period in which the excess profit occurred. Reverse passage to the USN 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 previous period. But with this, there may be problems with unfinished operations. In this case, the calculation of VAT is carried out depending on the payment and the date of shipment, the time when the tax base fixed by the accounting policy is established.

If the delivery of the goods / services is made during the use of the simplified regime, payments are received after the change in the taxation system. VAT can be charged "on shipment." In this case, at the time of delivery, the enterprise was not the payer of this tax. The invoice was issued without VAT or simply was not compiled. At the time of receipt of the payment, the duty of calculating the tax does not arise. VAT can be calculated "on payment". The funds are received in the period in which the company is the payer of this tax. And simultaneously with it there is a duty of payment of the VAT.

But since the invoice was drawn up during the period of using the simplified regime, and the tax in it is not allocated, the enterprise will have to write out new documents. They will need to provide VAT. These invoices must also be transferred to counterparties. The latter will have the opportunity to present a deduction for the amount of VAT paid (if they act as its payers).

Advance payments and shipping after changing the mode

If the VAT is calculated "on shipment", then immediately at the time of delivery the enterprise 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 moment of using the simplified system. The enterprise in this case was not the payer of the specified tax. Consequently, there were no obligations to deduct him. But at the time of shipment, the company must issue an invoice with the VAT allocated, because at that moment it is already its payer. Regardless of the fact that the accounting policy fixes the way of determining the tax base for DS, in the course of the receipt of funds the enterprise will have to pay it after the shipment.