Who is a “tax resident” and how does he differ from a tax non-resident?
In this article, I tried to answer all the questions related to, as well as situations where citizens of the Russian Federation, for some reason, stayed abroad for more than six months, while receiving regular income or managed to sell some property during the same period of time (apartment, house, other real estate, car, jewelry, etc.).
Tax legislation is written in such a way that after reading it no one will ever understand who tax non-residents are and how to define it - after all, in the Tax Code of the Russian Federation (TC) there is neither a clear and understandable definition of the concept of “tax resident”, nor the concept of “tax non-resident”
tax non-resident- this is an individual who is in Russia for less than 183 days during a calendar year.
Note: the procedure for determining the status of a tax resident of the Russian Federation is given, based on the provisions of the Tax Code of the Russian Federation. Meanwhile, by virtue of Art. 7 of the Tax Code of the Russian Federation, if an international treaty of the Russian Federation establishes rules and norms other than those provided for by the legislation of the Russian Federation on taxes and fees, then the rules and norms of international treaties are applied. This means that an international agreement may, among other things, establish a different procedure for determining residence. As an example, the Letter of the Federal Tax Service of Russia dated October 1, 2012 N OA-3-13/3527@ gives:
Agreement between the Government of the Russian Federation and the Government of the Republic of Cyprus "On the avoidance of double taxation in relation to taxes on income and capital" dated 05.12.1998 (Article 4);
Agreement between the Government of the Russian Federation and the Government of Ukraine “On the avoidance of double taxation of income and property and the prevention of tax evasion” dated 02/08/1995 (Article 4).
(! ) At the same time, the Tax Code of the Russian Federation did not contain provisions obliging taxpayers to notify the tax authorities about the fact of loss of the status of a tax resident of the Russian Federation, as well as about confirmation of the status of a non-resident of Russia.
As we see, to determine the status of an individual, only one criterion is important - the time spent on the territory of Russia, and other criteria (including citizenship) are of no importance. At the same time (according to paragraph 2 of Article 207 of the Tax Code) physical. a person is considered to be located on the territory of the Russian Federation in cases where an individual. a person travels outside the territory of the Russian Federation for a short-term (less than 6 months):
-
training;
performance of labor or other duties related to the performance of work (provision of services) in offshore hydrocarbon fields.
Note: It is important to note that the basis for counting the period of short-term study or treatment abroad in the number of days of stay on the territory of the Russian Federation is the purpose of departure: short-term study or treatment. If an individual was abroad for other purposes and during this period underwent training (treatment) there for up to six months, the days of training (treatment) during the period of stay in the Russian Federation are not included. In particular, similar explanations regarding short-term training can be found in Letter of the Ministry of Finance of Russia dated September 26, 2012 No. 03-04-05/6-1128.
Documents confirming the presence of an individual outside the Russian Federation for treatment or training may be contracts with medical (educational) institutions for treatment (training), certificates issued by medical (educational) institutions indicating the provision of treatment (training), indicating time of treatment (training), as well as copies of the passport with border crossing marks from the border control authorities (Letter of the Ministry of Finance of the Russian Federation dated June 26, 2008 N 03-04-06-01/182).
Documents confirming the actual presence of individuals outside the Russian Federation for the purpose of treatment may be copies of pages of a foreign passport with special (medical) visas issued by consular authorities of foreign states, and marks of border control authorities on crossing the border, as well as copies of contracts with foreign medical institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated May 27, 2016 No. OA-3-17/2417@, dated June 10, 2016 No. ZN-3-17/2619@).
Documents confirming the actual presence of individuals outside the Russian Federation for study purposes may be copies of pages of a foreign passport with special (study) visas issued by consular authorities of foreign states, and marks of border control authorities on crossing the border, as well as copies of agreements with foreign educational institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated October 15, 2015 N OA-3-17/3850@).
The answer to the question of tax status is also a puzzle for those people who are going to leave Russia for a long time on a business trip or for permanent residence, and therefore sell their property - an apartment, land, house, garage, car and other property.
But this is a fundamental question for any person, on which depends what tax should be withheld from the income of such a person (personal income tax or personal income tax) - 13% or 30%, because the difference of 2.3 times is very significant.
There is no clarification on whether taxpayers must confirm their status as tax residents of the Russian Federation or not, and no information on the order in which tax agents should do this.
And if you consider that both the tax legislation itself and the opinion of the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation change like the weather in September, then it becomes sad.
The procedure for determining the status of “tax resident - non-resident” or how to calculate the period of 12 months and 183 days when determining the status of an individual
What does it practically mean to stay “at least 183 calendar days over the next 12 consecutive months”?
In practice this means that:
the presence or absence of Russian citizenship has no significance for determining status tax resident (non-resident) does not have (i.e., citizens of the Russian Federation, foreign citizens and stateless persons can be both tax residents and non-residents);
any continuous 12-month period is taken into account, which can begin in one year and end in another (this is relevant for paying salaries to non-residents);
the final status of the taxpayer is determined at the end of the calendar year (clause 3 of Article 225 of the Tax Code), since the tax period for personal income tax is a calendar year.
Note: Income in connection with work for hire carried out in the Russian Federation by citizens of member states of the Eurasian Economic Union is subject to personal income tax at a tax rate of 13% starting from the first day of their work in the territory of the Russian Federation. At the same time, based on the results of the tax period, the final tax status of an individual is determined depending on the time of his stay in the Russian Federation in a given tax period. If, at the end of the tax period, the organization’s employees did not acquire tax resident status (stayed in the Russian Federation for less than 183 days), their income received in this tax period is subject to personal income tax at a rate of 30% (letter of the Ministry of Finance of Russia dated February 27, 2019 No. 03-04-06/12764).
The 183-day period is determined by adding up all calendar days on which the taxpayer was in Russia for 12 consecutive months.
This 183-day period includes the day of entry into the Russian Federation and exit from Russia. This conclusion is confirmed by the explanations of the Federal Tax Service, set out in the Letter of the Federal Tax Service of Russia dated June 10, 2015 No. OA-3-17/2276@.
Here it is necessary to pay attention to the fact that the 183-day period is not interrupted by periods of travel outside the Russian Federation for short-term (less than six months) treatment or training of the taxpayer.
Note: Although:
We suggest starting from:
For these reasons, I propose to determine the status:
proceed from the above definition of tax resident (non-resident) status;
Clause 3 of Article 225 of the Tax Code, according to which the tax period for personal income tax is a calendar year;
apply (in writing) to the Federal Tax Service at the place of your residence (stay) or the location of the real estate.
Our point of view was also confirmed by the Ministry of Finance of the Russian Federation, which in its Letter dated 04/21/2016 No. 03-08-RZ/23009 prohibited the use of letters that set out this position, since it contradicts tax legislation,
Features of the "tax non-resident" status
Having the status “tax non-resident of the Russian Federation” has the following features:
persons who are not tax residents of the Russian Federation are payers of personal income tax only on income, received from sources in the Russian Federation;
The tax resident status is determined on each date of payment of income (this rule is relevant when paying regular income (salaries and other regular payments) and is aimed at not withholding excess tax from the moment an individual becomes a tax resident);
a refund of overpaid tax (NDFL) can now be obtained only at the end of the calendar year and only through the tax office;
Note: the right applies if the property is sold before December 31, 2018. From January 1, 2019, such income is exempt from personal income tax.
Tax rates for personal income tax (NDFL) for tax residents and non-residents
The income that an individual received is as follows (TC):
for tax residents - 13%;
for tax non-residents - 30%.
For tax non-residents who are from July 1, 2010, income from employment is subject to personal income tax at a rate of 13%.
According to the Federal Tax Service of the Russian Federation, a rate of 13% is applied if the corresponding payments are provided for in an employment or civil law contract. Other payments made in favor of foreign highly qualified specialists (material assistance, gifts, etc.) must be subject to personal income tax at a tax rate of 30%.
Tax rates for personal income tax for citizens of the Republic of Belarus working in Russia and citizens of the Russian Federation working in Belarus
Confirmation of the presence of citizens of the Republic of Belarus in the Russian Federation is carried out in accordance with the general procedure, taking into account the provisions of the Protocol to the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on the avoidance of double taxation and the prevention of tax evasion in relation to taxes on income and property dated April 21, 1995, signed on January 24 .2006 (hereinafter referred to as the Protocol).
According to Article 1 of the Protocol, remuneration received by a citizen of the Russian Federation or the Republic of Belarus in relation to employment, if (for example) an agreement is concluded between the organization and a citizen of the Republic of Belarus employment contract, providing for his stay on Russian territory for at least 183 days, the income of such an employee organizations received from sources in the Russian Federation, are subject to tax at a rate of 13 percent from the date of commencement of employment.
This conclusion is confirmed by the explanations of the Ministry of Finance of the Russian Federation (for example, Letters of the Ministry of Finance of the Russian Federation dated April 14, 2011 No. 03-04-05/6-259, dated February 21, 2011 No. 03-04-05/6-112).
Tax withholding at a higher rate and its recalculation are carried out only if the labor activity of a Belarusian employee in Russia was terminated (i.e. the employment contract was terminated) before the expiration of 183 days. In this case, the obligation to pay the amount of tax adjusted as a result of recalculation is fulfilled by the individual independently - the tax agent is not obliged to withhold additional tax from his income. Penalties and fines are not charged in these cases.
Income under a civil law agreement is equal to employment, therefore the tax agent withholds personal income tax on income paid to such a citizen of a member country of the EAEU at a rate of 13% from the first day of his work in Russia (Letter of the Ministry of Finance of Russia dated July 17, 2015 No. 03 -08-05/41341).
tax return of a patent under Article 227 1 of the Tax Code.
Features of taxation of citizens of Ukraine
The Governments of Russia and Ukraine concluded an Agreement dated 02/08/1995 “On the avoidance of double taxation of income and property and the prevention of tax evasion” (hereinafter referred to as the Agreement).
Under the terms of paragraph 1 of Article 15 of the Agreement Income of Ukrainian citizens from employment in Russia is subject to personal income tax in Russia. But if a citizen of Ukraine worked in Russia for a total of less than 183 calendar days during a calendar year, then his income is subject to taxation in Ukraine.
To do this (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), an employee who is a citizen of Ukraine should submit to the employer and to the tax authority where the employer is registered with the tax authorities, confirmation of his permanent residence on the territory of Ukraine, issued by the tax authorities of Ukraine.
who have received temporary asylum in Russia,
The calculation and payment of personal income tax, as well as the filing of a tax return by foreign citizens engaged in paid labor activities in the Russian Federation on the basis of a patent issued in accordance with Federal Law No. 115-FZ of July 25, 2002, are carried out in the manner established by Article 227 1 of the Tax Code.
Features of taxation for citizens of the Republic of Kazakhstan
The Convention of October 18, 1996 “On the elimination of double taxation and the prevention of tax evasion on income and capital”, hereinafter referred to as the Convention, is in force between the Russian Federation and the Republic of Kazakhstan.
Article 15 of the Convention provides that remuneration received by a resident of the Republic of Kazakhstan in connection with employment carried out in the Russian Federation is taxable only in the Republic of Kazakhstan if:
The recipient is located in Russia during the period or periods not exceeding an aggregate of 183 days in any 12 months;
Remuneration is paid by the employer or on behalf of the employer, non-resident of Russia;
The remuneration is not paid by a permanent establishment or a permanent base that the employer has in Russia.
Translated from Russian into understandable terms, this means that if a citizen of the Republic of Kazakhstan lives and works in Russia for less than 183 days in a calendar year or the salary is paid by a tax non-resident of the Russian Federation, then the salary for the performance of labor duties (i.e., under an employment contract) not subject to personal income tax() in Russia, but is subject to taxation in the Republic of Kazakhstan.
To be exempt from paying personal income tax in Russia on income (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), it is necessary to provide official confirmation that a citizen of the Republic of Kazakhstan is its tax resident.
Similar agreements (conventions) on the elimination of double taxation have also been concluded with Kyrgyzstan, Tajikistan and some other states.
According to the provisions of Article 73 of the Treaty on the Eurasian Economic Union of May 29, 2014 (came into force on January 1, 2015), income in connection with employment received by citizens of the Republic of Belarus, the Republic of Kazakhstan and the Republic of Armenia, from January 1, 2015 are taxed at a tax rate of 13 percent, starting from the first day of their work on the territory of the Russian Federation(clarifications given in Letter of the Ministry of Finance of Russia dated January 27, 2015 N 03-04-07/2703 and Letter of the Federal Tax Service of Russia dated February 10, 2015 N BS-4-11/1561@ “On the taxation of income from employment received by citizens of the Republic of Belarus , the Republic of Kazakhstan and the Republic of Armenia, in connection with the entry into force on 01/01/2015 of the Treaty on the Eurasian Economic Union of May 29, 2014").
The calculation and payment of personal income tax, as well as the filing of a tax return by foreign citizens engaged in paid labor activities in the Russian Federation on the basis of a patent issued in accordance with Federal Law No. 115-FZ of July 25, 2002, are carried out in the manner established by Article 227 1 of the Tax Code.
Features of taxation of income of citizens of Armenia
From the provisions of paragraph 2 of Article 14 of the Agreement between the Russian Federation and the Republic of Armenia on the elimination of double taxation on income and property dated December 28, 1996, it follows that income paid to a resident of Armenia by a Russian employer may be taxed in the Russian Federation.
On January 1, 2015, the Treaty on the Eurasian Economic Union came into force. From the provisions of Article 73 of this Treaty, it follows that from January 1, 2015, income paid by Russian employers, including individuals, to citizens of Armenia under employment contracts, is taxed in Russia at a rate of 13 percent, regardless of the tax status of the recipients of this income, if the work is performed by them on Russian territory.
Features of taxation of income of citizens of Kyrgyzstan
On August 12, 2015, the Treaty on the Accession of Kyrgyzstan to the Eurasian Economic Union came into force, which means that Kyrgyz citizens:
- can work in Russia without a labor patent;
- The duration of the temporary stay (residence) of migrant workers from Kyrgyzstan and members of their families on the territory of our country is determined by the duration of the labor or civil contract concluded with the employer. If these agreements are terminated after 90 days from the date of entry into Russia, Kyrgyz citizens have the right to enter into a new agreement within 15 days without leaving;
- Since July 20, 2015, migrant workers who arrived to work in Russia, as well as members of their families, are exempt from the obligation to register for migration within 30 days from the date of entry. When entering Russia with documents that allow the affixing of marks to cross the state border, citizens of Kyrgyzstan are exempt from filling out a migration card, provided that their period of stay does not exceed 30 days from the date of entry;
- Kyrgyz migrant workers are exempt from undergoing the procedure for recognizing educational documents issued in their country.
The Federal Tax Service of Russia in its Letter dated August 27, 2015 N ZN-4-11/15078 “On the taxation of income of individuals” explained that:
The procedure for returning personal income tax to a non-resident when changing status during the year
From January 1, 2011, the procedure for returning personal income tax when changing status during the calendar year has fundamentally changed - now:
It is important to know that the recalculation and subsequent refund of personal income tax occurs only for the year in which the taxpayer’s status changed and he became a tax resident. For example, he came to Russia in September 2013 and immediately (in September) got a job. After 6 months (from April 2014), such an employee became a tax resident. In such a situation, this taxpayer can count on a refund of overpaid personal income tax.
Thus, from January 1, 2011, a special procedure for the return of personal income tax amounts was introduced in connection with the recalculation of the income tax of an individual after he acquired the status of a tax resident of the Russian Federation.
Such recalculation is carried out by the tax authority at the place where the taxpayer is registered at the end of the tax period upon submission of the following documents:
Based on these documents, the tax authority is obliged to make a decision on the return of the amount of overpaid tax within 10 days from the date of receipt of the taxpayer’s application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of a joint reconciliation report of the taxes paid by him, if such a joint reconciliation was carried out (clause 8 of Article 231 of the Tax Code).
It is up to you to decide whether to use such recommendations or not. But you need to keep in mind that this situation is called your tax risk, i.e. the one who recommends does not risk anything, and the tax agent will be responsible for the implementation of such recomendations.
Necessary documents justifying and confirming the status of tax resident or non-resident
Whether taxpayers must confirm their tax resident status or not, there is not a word in the Tax Code of the Russian Federation - it would be funny if it were not for the choice between rates of 13% and 30% on income. But this is a very important issue, including for an accountant, since the organization, as a tax agent, must withhold and transfer to the budget the amount of personal income tax on the income it pays to employees, and since the rates differ by 2.3 times, this is very significant moment.
From January 1, 2011, tax agents are required to independently develop tax registers for data on individuals and determine the procedure for reflecting information in them. Such registers must necessarily contain data that allows you to identify the taxpayer, determine his status, the type and amount of income paid to him, deductions provided, the date of payment of income, withholding and transfer of tax, as well as details of the payment order (based on paragraph 1 of Article 230 of the Tax Code of the Russian Federation ).
In other words, in order to justify the legality of applying a particular income taxation procedure, it is necessary to document and confirm the tax status of an individual.
Since a specific list of documents that would justify (confirm) the tax status of a taxpayer was not established by the Tax Code of the Russian Federation or any other regulatory documents before 2017, such confirmation is possible on the basis of any documents that allow establishing the number of calendar days of stay of an individual persons on the territory of the Russian Federation during the previous 12 consecutive months. This conclusion is confirmed by the explanations of the Federal Tax Service (for example, Letter of the Federal Tax Service of Russia dated December 30, 2015 No. ZN-3-17/5083).
The Federal Tax Service has considered an appeal regarding the procedure for confirming the fact that an individual - a citizen of Russia has lost the status of a tax resident of the Russian Federation and reports the following.
There is no special procedure for determining the tax status (residency) of an individual for the purposes of applying the legislation of the Russian Federation on controlled foreign companies (CFCs). Currently, this concept is disclosed in Chapter 23 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) “Income Tax for Individuals”. However, the provisions of this paragraph do not contain indications of the start or end dates regarding which the 12-month period should be reported, within which it is necessary to take into account the number of days of the taxpayer’s stay in the Russian Federation.
According to the letter of the Ministry of Finance of the Russian Federation dated April 18, 2007 N 01-СШ/19, sent to the Federal Tax Service of Russia, the establishment of this fact for the purposes of applying Chapter 23 of the Code is associated with the taxpayer’s obligation to calculate and pay tax on the income received by him for the corresponding tax period ( calendar year).
In this case, we are talking about the payment of tax by such a person independently on the basis of the provisions of Articles 228 and 229 of the Code, including on income received from sources outside of Russia, which includes the profit of a CFC. In such a situation, tax residents are recognized as individuals who are actually in the Russian Federation for at least 183 calendar days for the period from January 1 to December 31 of the corresponding calendar year.
183 days are counted over a continuous 12-month period determined as of the relevant date of receipt of income, including those beginning in the previous calendar year and continuing in another calendar year.
The tax resident status for citizens of the Republic of Belarus is established completely differently.
Taxation of citizens of the Republic of Belarus is carried out taking into account the provisions of the Protocol of 01/24/2006 to the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on the avoidance of double taxation and the prevention of tax evasion in relation to taxes on income and property of 04/21/1995.
Clause 1 of Art. 1 of the Protocol provides that remuneration received by a citizen of the Republic of Belarus in relation to work for hire carried out in the Russian Federation during a period of stay in Russia of at least 183 days in a calendar year or continuously for 183 days, starting in the previous calendar year and expiring in the current calendar year, may be taxed in the Russian Federation in the manner and at the rates provided for persons with permanent residence in the Russian Federation.
According to paragraph 2 of Art. 1 of the Protocol, the specified tax regime is applied from the date of commencement of employment in the Russian Federation, the duration of which, in accordance with the employment contract, is at least 183 days.
The Ministry of Finance of the Russian Federation, in Letter No. 03-04-06/6-98 dated April 5, 2012, clarified that based on the results of the tax period, the final tax status of an individual is established, in accordance with which the tax rate of his income received during the tax period is determined.
If, at the end of the tax period, a citizen of Belarus will stay in the Russian Federation for less than 183 days in a calendar year, the condition of clause 1 of Art. 1 of the Protocol will not be observed and personal income tax on his income must be withheld by a Russian organization - a tax agent at a rate of 30 percent.
In this case, in relation to income received in the next year, a rate of 13 percent should be immediately applied.
If during the tax period a Belarusian acquired the status of a tax resident (stayed in the Russian Federation for more than 183 days), the personal income tax amounts withheld by the tax agent in the previous year at a rate of 30 percent are not recalculated.
Example: a citizen of Belarus arrived on the territory of the Russian Federation on August 16, 2011 and entered into an open-ended employment contract with a Russian organization from August 17, 2011.
On the date of payment of remuneration under the employment contract during 2011, the Belarusian will not be a resident of the Russian Federation (the time spent in the Russian Federation is less than 183 days).
Thus, income received by a non-resident in 2011 is subject to taxation at a tax rate of 30%.
Income paid in 2012, in accordance with the specified employment contract, is subject to taxation at a tax rate of 13%. (See Letter of the Federal Tax Service for Moscow dated December 7, 2011 N 20-14/3/118425@)
We do recalculation
If during a calendar year an employee acquired the status of a tax resident and this status can no longer change (that is, an individual is in the Russian Federation for more than 183 days in the current calendar year), the amount of remuneration received by the employee from the employer for performing work duties from the beginning of the current years are subject to tax at a rate of 13 percent.
In such cases, one should be guided by the provisions of paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, according to which tax amounts are calculated on an accrual basis from the beginning of the tax period based on the results of each month.
Thus, starting from the month in which the number of days of the employee’s stay in the Russian Federation in the current calendar year exceeded 183 days, personal income tax amounts withheld at a rate of 30 percent are subject to offset against the withholding of 13 percent when determining the tax base on an accrual basis based on the employee’s income. , including income on which tax was withheld at a rate of 30 percent (Letter of the Ministry of Finance of the Russian Federation dated January 18, 2012 N 03-04-06/6-7)
In this case, the employer must obtain a tax refund application from the employee (17% of income);
Since personal income tax withheld from residents and non-residents is transferred to different budget classification codes (BCC), it is necessary to offset the resulting overpayment from one BCC to another (Letter of the Ministry of Finance of Russia dated July 26, 2007 N 03-04-06-01/268).
At the same time, the financial department indicates that the tax agent does not have the right to independently return excessively withheld personal income tax at the expense of the tax amount for other individuals, since such a possibility is not provided for by the Tax Code of the Russian Federation (Letter of the Ministry of Finance of the Russian Federation dated February 22, 2008 N 03-04-06-01 /41).
If, before the end of the calendar year, the entire amount of personal income tax at a rate of 30% cannot be offset against the withholding of 13%, then the employee must apply to the tax office for its payment. in the manner established by paragraph 1.1 of Article 231 of the Tax Code of the Russian Federation
In this case, the certificate of form 2-NDFL is filled out only at a rate of 13%, because the tax from the beginning of the year is recalculated at a rate of 13%. Line 5.3 should indicate the tax calculated at a rate of 13% on all income for the year, and line 5.4 should indicate the actual tax withheld. The difference between these lines should be reflected in line 5.6 Amount of tax over-withheld by the tax agent. It is this amount that the employee can return by independently contacting the Federal Tax Service.
However, there is no need to worry about confusion with the KBK. The Ministry of Finance of the Russian Federation, in Letter No. 03-02-08/31 dated March 29, 2012, stated that the Tax Code of the Russian Federation does not provide that an incorrect indication of the BCC is the basis for recognizing the obligation to pay tax as unfulfilled.
We track the status
Having received resident status, an employee can go abroad for a short period of time on vacation, on a business trip, etc.)
The Ministry of Finance of the Russian Federation, by letter dated March 6, 2012 N 03-04-05/6-256, reassured doubting accountants and said that upon the employee’s return, the number of calendar days should be counted during the 12 months preceding the date of receipt of income. And if there are more than 183 of them, then the 13% rate should continue to be applied.
Parting with the employee
The Federal Tax Service, by Letter No. ED-4-3/21628@ dated December 19, 2011, explained that if on the date of receipt of income, including the date of dismissal, an employee of the organization was a tax resident of the Russian Federation, then upon his dismissal before the end of the tax period there will be no recalculations Tax amounts withheld at a rate of 13 percent are not made by the tax agent. This is confirmed by Letter of the Ministry of Finance of Russia dated July 14, 2011 N 03-04-06/6-169.
Related information.
Tax Code of the Russian Federation Article 207. Taxpayers
ConsultantPlus: note.
When amending Art. 207, the legislator apparently made an inaccuracy: a comma after the words “from sources” was not excluded. Text of Art. 207 is given in strict accordance with the amendments made by the Federal Law of December 29, 2000 N 166-FZ.
1. Taxpayers of personal income tax (hereinafter in this chapter - taxpayers) are individuals who are tax residents of the Russian Federation, as well as individuals who receive income from sources in the Russian Federation who are not tax residents of the Russian Federation.
2. Unless otherwise provided by this article, tax residents are individuals who are actually in the Russian Federation for at least 183 calendar days over the next 12 consecutive months. The period of stay of an individual in the Russian Federation is not interrupted by periods of his departure outside the territory of the Russian Federation for short-term (less than six months) treatment or training, as well as for the performance of labor or other duties related to the performance of work (provision of services) in offshore hydrocarbon fields raw materials.
(see text in the previous edition)
2.1. Tax residents in 2015 are recognized as individuals who are actually located in the Russian Federation in the territories of the Republic of Crimea and (or) the federal city of Sevastopol for at least 183 calendar days during the period from March 18 to December 31, 2014. The period of stay of an individual in the Russian Federation in the territories of the Republic of Crimea and (or) the federal city of Sevastopol is not interrupted by short-term (less than six months) periods of his departure outside the territory of the Russian Federation.
3. Regardless of the actual time spent in the Russian Federation, Russian military personnel serving abroad, as well as employees of state authorities and local governments sent to work outside the Russian Federation, are recognized as tax residents of the Russian Federation.
4. If during the tax period, restrictive measures introduced by a foreign state, state association and (or) union and (or) state (interstate) institution of a foreign state or state association and (or) union were applied to an individual, a list which are determined by the Government of the Russian Federation (hereinafter in this Code - restrictive measures), such an individual, regardless of the period of actual stay in the Russian Federation, may not be recognized as a tax resident of the Russian Federation in this tax period, if in this tax period such an individual was a tax resident foreign state.
(see text in the previous edition)
An individual specified in paragraph one of this paragraph is not recognized as a tax resident of the Russian Federation on the basis of his application submitted to the federal executive body authorized for control and supervision in the field of taxes and fees, with the attachment of a document confirming the tax residency of this individual, issued by the competent authority of a foreign state (tax residence certificate), or a justification drawn up in a free form for the impossibility of obtaining such a certificate from the authorized body of a foreign state with the attachment of supporting documents.
To calculate personal income tax, it is important to determine the tax status of the employee. In other words, whether he is a resident of the Russian Federation or not. The answer to this question determines the tax rate (there are exceptions to this rule, we will note them) and the provision of standard tax deductions. Moreover, the tax status depends on the number of days spent in the Russian Federation. Let’s figure out what documents can be used to confirm the presence of an employee in Russia.
Tax residents
Tax residents are individuals who are actually in the Russian Federation for at least 183 calendar days over the next 12 consecutive months. The period of stay of an individual in the Russian Federation is not interrupted by the time of travel abroad for short-term (less than six months) treatment or training, as well as for the performance of labor or other duties related to the performance of work (provision of services) in offshore hydrocarbon fields (clause 2 Article 207 of the Tax Code of the Russian Federation).
To determine the tax status, the citizenship of an individual does not matter (letters of the Ministry of Finance of Russia dated 05/05/2015 No. 03-04-05/25727 and dated 04/03/2015 No. 03-04-05/18625). So, tax residents of the Russian Federation, as well as non-residents, can be citizens of any state (letter of the Ministry of Finance of the Russian Federation dated August 14, 2009 No. 03-08-05).
For your information
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The concepts of tax resident and resident for the purposes of applying the provisions of currency legislation do not coincide (letter of the Federal Tax Service of Russia dated September 3, 2014 No. OA-3-17/2962).
Please note that residency depends on the actual time of stay on the territory of the Russian Federation, and not on the time of official employment (letter of the Ministry of Finance of Russia dated 04/03/2015 No. 03-04-05/18625).
For your information
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The final tax status of an individual, which determines the taxation of his income received during the tax period (calendar year), is clarified taking into account the period of stay in the Russian Federation in a given year (letter of the Ministry of Finance of Russia dated December 30, 2014 No. 03-04-06/68489).
The calculation of the 183 days mentioned above is carried out by employers on the date of actual receipt of income by the employee (letter of the Federal Tax Service of Russia dated March 2, 2015 No. OA-3-17/779@).
A 12-month period is taken into account, incl. starting in one and ending in the next calendar year (letters of the Federal Tax Service of Russia dated 04/29/2015 No. OA-4-17/7402@ and the Ministry of Finance of Russia dated 03/31/2015 No. 03-04-05/17664).
183 days are calculated by summing up all calendar days on which an individual was in the Russian Federation for the next 12 consecutive months (letter of the Federal Tax Service of Russia dated August 22, 2012 No. ED-4-3/13897@ and the Ministry of Finance of Russia dated June 29, 2015 No. 03-04- 05/37275). At the same time, the provisions of the Code do not contain requirements for the continuity of the specified 183 days (letters of the Federal Tax Service of Russia dated June 10, 2015 No. OA-3-17/2276@ and dated June 27, 2014 No. OA-3-17/2137).
Days of entry into and exit from the territory of Russia are considered as days of stay in the Russian Federation (letters of the Federal Tax Service of the Russian Federation dated June 10, 2015 No. OA-3-17/2276@, dated April 1, 2009 No. ShS-17-3/72@, dated April 24 .2015 No. OA-3-17/1702@).
When an individual travels outside the Russian Federation to undergo treatment, the period of stay on the territory of the Russian Federation may include days during which the taxpayer issued mandatory permits for treatment (letter of the Ministry of Finance of Russia dated July 2, 2015 No. 03-04-05/38173).
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The legislation does not contain provisions obliging taxpayers to notify tax authorities of the fact of loss of tax resident status of the Russian Federation (letters of the Federal Tax Service of Russia dated January 16, 2015 No. OA-3-17/87@ and dated December 19, 2014 No. OA-3-17/4397@) .
Who is responsible for the wrong status?
The Russian Ministry of Finance in letter No. 03-04-06/32676 dated 08/12/2013 said that responsibility for the correct determination of the tax status of an individual receiving income, calculation and payment of tax in accordance with his tax status lies with the employer.
Therefore, if there are grounds to believe that a citizen of the Russian Federation may not be a tax resident, the employer has the right to request the relevant documents or copies thereof from the individual. Notarization of copies of such documents, as well as notarization of their translation into Russian, is not required. If an individual does not submit the requested documents, the tax agent has the right to apply to the income paid to this individual the tax rate and procedure for calculating the tax base provided for persons who are not tax residents.
The establishment of the tax status of individuals who receive income is carried out by the employer independently based on the characteristics of each specific situation (letter of the Ministry of Finance of the Russian Federation dated March 16, 2012 No. 03-04-06/6-64).
Supporting documents
The legislation does not stipulate a list of documents confirming the presence of individuals on the territory of the Russian Federation (letters of the Federal Tax Service of Russia dated 03/05/2013 No. ED-3-3/743@ and the Ministry of Finance of Russia dated 01/13/2015 No. 03-04-05/69536). Therefore, let us consider the explanations of the officials.
Passport
Documents confirming the actual presence of an individual on the territory of the Russian Federation are, first of all, copies of passport pages with marks from border control authorities about crossing the border (letter of the Federal Tax Service of Russia dated June 10, 2015 No. OA-3-17/2276@).
Meanwhile, the border crossing mark is not always placed in the passport. Moreover, this applies to both neighboring countries and beyond. For example, with an internal Russian passport you can enter Abkhazia, Belarus, Kazakhstan and Kyrgyzstan. If we talk about non-CIS countries, many countries do not issue an exit stamp (New Zealand, USA, UK, etc.). Let's see how to confirm tax status in these cases.
Other documents
An approximate list of supporting documents was set out in letters of the Federal Tax Service of Russia dated June 10, 2015 No. OA-3-17/2276@, dated December 19, 2014 No. OA-4-17/26338, dated October 22, 2014 No. OA-3-17/3584@ , dated 03/05/2013 No. ED-3-3/743@, dated 01/22/2013 No. ED-3-3/150@, Ministry of Finance of Russia dated 01/13/2015 No. 03-04-05/69536, dated 12/25/2014 No. 03 -04-05/67311, dated 04/26/2012 No. 03-04-05/6-557. Documents confirming the actual presence of an individual on the territory of the Russian Federation are:
- information from the working time sheet;
- migration card data;
- documents confirming registration at the place of residence or stay;
- certificates from previous places of work;
- certificates from educational institutions;
- hotel receipts.
These may also be other documents drawn up in the manner regulated by the legislation of the Russian Federation, on the basis of which it is possible to establish the duration of the actual stay of an individual in Russia (letters of the Federal Tax Service of Russia for Moscow dated March 15, 2012 No. 20-14/022432@ and the Federal Tax Service of the Russian Federation dated 07/22/2011 No. ED-4-3/11900@).
If we are not talking about a mark in the passport, then most often the presence in Russia is confirmed by a set of documents (for example, from the list indicated above). For example, the following do not in themselves prove presence in the Russian Federation:
- notification of arrival at the place of stay (letter of the Ministry of Finance of Russia dated December 19, 2014 No. 03-04-06/65970);
- residence permit (letter of the Ministry of Finance of Russia dated December 25, 2014 No. 03-04-05/67311);
- registration (temporary / permanent) at the place of residence in the Russian Federation and a certificate of registration of an individual with the tax authority (letter of the Ministry of Finance of Russia dated January 13, 2015 No. 03-04-05/69536).
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An employee can provide the employer with the documents necessary to withhold tax in accordance with his tax status, independently or at the request of the employer (letter of the Federal Tax Service of the Russian Federation dated September 23, 2008 No. 3-5-03/529@).
Documents for treatment and training
As we have already said, the period of stay of an individual in the Russian Federation is not interrupted by the time he travels abroad for short-term (less than six months) treatment or training (clause 2 of Article 207 of the Tax Code of the Russian Federation).
Training is understood as the process of mastering an educational program by an individual student, and not the provision of teaching services by a teaching staff (letter of the Ministry of Finance of Russia dated May 27, 2013 No. 03-04-05/19093).
Documents confirming that you are studying may be copies of pages of a foreign passport with special (study) visas and border crossing marks from border control authorities, as well as copies of agreements with foreign educational and other organizations on the provision of relevant services (letter of the Federal Tax Service of Russia dated May 28, 2013 No. OA-4-13/9604).
Confirming that an individual is undergoing treatment can be concluded by contracts with medical institutions, certificates issued by medical institutions indicating the implementation of treatment, indicating the time of treatment, as well as copies of a passport with marks from border control authorities about crossing the border (letter of the Ministry of Finance of the Russian Federation dated June 26, 2008 No. 03 -04-06-01/182).
Let us note that restrictions on age, types of educational institutions, academic disciplines, medical institutions, types of diseases, as well as on the list of foreign countries in which citizens can undergo treatment or training (less than six months) are not established in the legislation. This conclusion was made in the letter of the Federal Tax Service of the Russian Federation dated September 23, 2008 No. 3-5-03/529@.
Please note that days of residence abroad for the purpose of short-term (less than six months) training / treatment are taken into account when calculating days spent in the Russian Federation only if an individual leaves the Russian Federation for training / treatment and returns to the Russian Federation after completing training / treatment (letter from the Ministry of Finance Russia dated September 26, 2012 No. 03-04-05/6-1128).
When tax status doesn't matter
Minimum tax regardless of status
In some cases, regardless of the tax status of an individual, the employer calculates the tax on such an employee based on a rate of 13%. We are talking about the following situations:
One person, but different rates
As you can see, the tax status of a foreigner does not always affect the personal income tax rate. It is always necessary to consider in what capacity a foreign citizen arrived in Russia. For example, taxation of income of individuals who left the Donetsk and Lugansk regions of Ukraine depends, first of all, on the time of their stay in the Russian Federation. At the same time, if these citizens have received refugee status in the Russian Federation, then income from labor activities, regardless of their stay in the Russian Federation, is taxed at a rate of 13% (letter of the Ministry of Finance of Russia dated April 3, 2015 No. 03-04-05/18625, dated March 11. 2015 No. 03-04-05/12859 and dated 01/29/2015 No. 03-04-05/3267). If a citizen loses refugee status, but is not a tax resident of the Russian Federation, then his income is subject to taxation at a rate of 30% (letter of the Federal Tax Service of Russia dated March 6, 2015 No. BS-4-11/3628@).
As you can see, tax resident status is always relevant.
Let's give another example. Not any income received by a highly qualified specialist is subject to taxation at a rate of 13%, but only from carrying out labor activities in the Russian Federation (letter of the Ministry of Finance of Russia dated March 17, 2015 No. 03-04-06/14003). If such an employee is not a tax resident, then the amount of payment by the organization for the costs of transporting luggage from the place of residence to the place of work, the cost of training, rental of residential premises and car parking are taxed at a rate of 30% (letter of the Ministry of Finance of Russia dated April 2, 2015 No. 03-04- 06/18278 and dated December 16, 2014 No. 03-04-06/64843).
Standard deductions and tax status
When calculating the tax, the income of employees is taxed at the rate provided for in paragraph 1 of Art. 224 of the Tax Code of the Russian Federation (13%), can be reduced by the amount of tax deductions due (clause 3 of Article 210 of the Tax Code of the Russian Federation). This right is exercised by taxpayers regardless of their citizenship and place of registration (letter of the Federal Tax Service of Russia for Moscow dated February 29, 2012 No. 20-14/14805@).
Considering that this norm refers specifically to a specific clause of the Tax Code of the Russian Federation, and not just to the tax rate, we can conclude that in order to receive a deduction, you must be a tax resident of the Russian Federation.
For example, if a foreign citizen who is recognized as a refugee or has received temporary asylum in Russia is not a tax resident of the Russian Federation, and his income is taxed at a rate of 13% (according to paragraph 3 of Article 224 of the Tax Code of the Russian Federation), then tax deductions are not provided. When the specified person becomes a tax resident of the Russian Federation and his income will be taxed at the rate of 13% established by clause 1 of Art. 224 of the Tax Code of the Russian Federation, he may be granted deductions for personal income tax (letter of the Federal Tax Service of Russia dated October 30, 2014 No. BS-3-11/3689@).
Let's give another example. Income in connection with employment in the Russian Federation received by citizens of the republics of Belarus, Kazakhstan and Armenia, from January 1, 2015, is taxed at a rate of 13%. However, the provision of the Treaty on the application to the income of citizens of these states of the tax rates provided for tax residents of the Member States does not mean that these citizens are automatically recognized as residents in the relevant state. The issues of recognizing an individual as a tax resident of any of the Member States are not regulated by the Treaty. For these purposes, the provisions of national legislation are used (letter of the Ministry of Finance of Russia dated 04/09/2015 No. 03-04-06/20223).
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A citizen can receive income from sources located not only in the Russian Federation, but also abroad. For example, if a tax resident of the Russian Federation received income abroad, the tax will have to be calculated twice (in the Russian Federation and in the country where the income was paid). To avoid such situations, states enter into special agreements to avoid double taxation.
The procedure for confirming the status of a tax resident of the Russian Federation for the purpose of avoiding double taxation is set out in the information message of the Federal Tax Service of the Russian Federation “On the procedure for confirming the status of a tax resident of the Russian Federation.”
All necessary information about the procedure for filing an application for confirmation of tax resident status is posted on the website of the Federal Tax Service of Russia in the section “individuals” in the branch “Issues of residence and citizenship” (letter of the Federal Tax Service of Russia dated June 27, 2014 No. OA-3-17/2137).
Let us note that since 2016, a new procedure for exempting the income of individuals who are tax residents of foreign states has been introduced (clause 3 of Article 1 of the Federal Law of June 8, 2015 No. 146-FZ “On Amendments to Chapter 23 of Part Two of the Tax Code of the Russian Federation ").
The samples available on the site are relevant for both beginners and professionals. The samples are compiled taking into account current legislation. Some samples can be used without significant editing. You only need to add your specific circumstances to the contents of such a sample and sign it. It must be remembered that an incorrectly executed document will be left without consideration, which means that only a thoughtful approach to filling it out will guarantee that the application you submitted will not be left without attention. Contact us! We will help you prepare an application.
The specified period is determined by summing up all calendar days on which an individual was in Russia for 12 consecutive months.
When determining the period of 183 calendar days required to establish residence, taxpayers may have the following questions:
1. Should these days, like 12 months, be consecutive and go in a row?
2. Are the days of arrival in the Russian Federation and departure from the Russian Federation considered days of actual stay in the Russian Federation?
The conditions that the specified 183 calendar days must be consecutive, Art. 207 of the Tax Code of the Russian Federation does not contain. Therefore, the days required to determine residence do not have to be consecutive; they can be interrupted, for example, during vacations and business trips (Letters of the Ministry of Finance of Russia dated 04/06/2011 N 03-04-05/6-228, dated 04/01/2009 N 03-04-06-01/72, Federal Tax Service of Russia for Moscow dated July 24, 2009 N 20-15/3/076408@).
For example, in the period from October 21, 2010 to October 20, 2011, employee of the Alpha organization I.I. Ivanov was on the territory of the Russian Federation for more than 183 calendar days. These calendar days fall on the following dates:
Wherein:
From December 31, 2010 to January 13, 2011 (14 calendar days) and from May 1 to May 9, 2011 (9 calendar days) he spent his vacation outside the Russian Federation;
From March 5 to March 24, 2011 (20 calendar days) and from July 1 to July 22, 2011 (22 calendar days) he was on a business trip abroad.
Thus, for 12 consecutive months from October 21, 2010 to October 20, 2011, I.I. Ivanov was a tax resident of the Russian Federation. Moreover, his status as a resident of the Russian Federation was confirmed as of June 3, 2011 (the 183rd day of his stay in the Russian Federation in the period from October 21, 2010 to October 20, 2011).
Meanwhile, this period is not interrupted by periods of travel outside the Russian Federation for short-term (less than six months) treatment or training (clause 2 of Article 207 of the Tax Code of the Russian Federation). Moreover, the Tax Code of the Russian Federation does not contain restrictions on age, types of educational institutions, academic disciplines, medical institutions, diseases, as well as on the list of foreign countries (Letter of the Federal Tax Service of Russia dated September 23, 2008 N 3-5-03/529@). The main thing is that such training or treatment should be short-term, i.e. lasted less than six months. If training or treatment exceeds the specified period, then such time spent outside the Russian Federation is not taken into account when determining days spent on the territory of the Russian Federation (Letter of the Ministry of Finance of Russia dated November 7, 2008 N 03-04-05-01/411).
Thus, despite the fact that an individual was undergoing treatment or studying abroad for, for example, 150 calendar days, i.e. was actually absent from the Russian Federation, the specified time is considered the time of his presence on the territory of the Russian Federation.
At the same time, according to the Ministry of Finance of Russia, staying abroad for the purposes of treatment (training) can be confirmed by the following documents: agreements with medical (educational) institutions or certificates issued by them about treatment (training) indicating the time of such treatment (training), and also copies of the passport with marks from the border control authorities about crossing the border (Letter of the Ministry of Finance of Russia dated June 26, 2008 N 03-04-06-01/182).
For example, let's return to the conditions of the previous example and assume that an employee of the Alpha organization I.I. Ivanov was on the treatment and (or) study abroad. In such a situation, his status as a resident of the Russian Federation is confirmed as of April 21, 2011 (183 days of stay on the territory of the Russian Federation in the period from October 21, 2010 to October 20, 2011).
SITUATION: Is it necessary to take into account the days of arrival in the Russian Federation and departure from the Russian Federation when determining the number of days of actual stay in Russia?
According to the regulatory authorities, the calendar dates of arrival on the territory of the Russian Federation and departure from the Russian Federation are included in the number of days of actual stay in Russia (Letters of the Ministry of Finance of Russia dated March 21, 2011 N 03-04-05/6-157, dated December 29, 2010 N 03- 04-06/6-324, dated December 1, 2010 N 03-04-06/6-283, Federal Tax Service of Russia dated February 4, 2009 N 3-5-04/097@). Moreover, in the opinion of officials, the provisions of Art. 6.1 of the Tax Code of the Russian Federation do not apply for the purpose of establishing tax resident status.
For example, a foreign citizen entered the territory of the Russian Federation on September 11, 2011, and left its territory on October 20, 2011.
The period of his actual presence on the territory of the Russian Federation begins on September 11, 2011 and lasts until October 20, 2011 inclusive. Thus, the period of actual stay of this foreign citizen on the territory of the Russian Federation is 40 calendar days.
However, in arbitration practice there is a different approach. Thus, the Federal Antimonopoly Service of the Central District, in Resolution No. A54-3126/2009C4 dated March 11, 2010, came to the conclusion that the date of entry into the territory of the Russian Federation is not included in the days an individual is in Russia.
Note
You can learn more about the practice of arbitration courts on this issue in the Encyclopedia of Dispute Situations on Personal Income Tax and Contributions to Extra-Budgetary Funds.
For example, let’s use the conditions of the previous example, applying to them clause 2 of Art. 6.1 Tax Code of the Russian Federation.
In this case, the period of actual stay of a foreign citizen on the territory of the Russian Federation is calculated from September 12, 2011 and lasts until October 20, 2011 inclusive. Consequently, the period of stay of an individual on the territory of the Russian Federation will be 39 calendar days.
Of course, the position of the Ministry of Finance of Russia, which is shared by the Federal Tax Service of Russia, is beneficial to taxpayers, since with this approach the period of stay on the territory of the Russian Federation is additionally increased by the days of arrival in the Russian Federation.
Please note that the calendar dates of arrival in the Russian Federation and departure from the territory of the Russian Federation for the purpose of establishing residence can be determined by access control marks in an identity document or on the basis of other documents.
Note
You can find out more about this in section. 1.2 "Documentary confirmation of resident or non-resident status (time spent on the territory of the Russian Federation)."
As can be seen from the above, individuals during the tax period (calendar year) can repeatedly acquire and lose the status of tax resident of the Russian Federation. This can happen even within one month.
Why do you need a sample?
The need to go to court arises when the right of an individual or legal entity is violated and this person has no other way to protect it other than going to court, unless the law provides for an alternative.
You have decided to go to court. You have two options: first, find a specialist; the second is to draw up a statement of claim (statement) to the court yourself. In the first case, everything is quite simple, you need to pay for the work of a specialist and receive legal services in the form of a ready-made statement of claim. In the second case it is more difficult.
Writing a statement of claim to the court will require you not only to master the terms of law, but also to know the current legislation. If you do not have this, then you will need samples, templates, standard forms available on our website.
How to use the sample correctly
It must be remembered that sample statements of claim come in different contents. Some can be made in the form of a template (standard form), others in the form of actual statements of claim. The claim template, as a rule, does not contain a detailed description of the circumstances that led to the application to the court. The author of the application is asked to include these circumstances in the content of the statement of claim independently. However, this is not easy to do without proper preparation. If you are unable to correctly draw up a statement of claim based on a template, then you are looking for samples of statements of claim with ready-made content. The samples available on the site are relevant for both beginners and professionals. The samples are compiled taking into account current legislation. Some samples can be used without significant editing. You only need to add your specific circumstances to the contents of such a sample and sign it. It must be remembered that an incorrectly executed document will be left without consideration, which means that only a thoughtful approach to filling it out will guarantee that the application you submitted will not be left without attention.
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