What is included in the area of ​​the trading floor. Calculation of UTII in retail trade with examples

One of the most popular types of small business in our country is retail. At the same time, each of the business entities is free to choose the most acceptable tax deduction system for itself. One of the most convenient special regimes is the imputed income tax. According to the Tax Code of the Russian Federation (Chapter 26.3), small businesses are allowed to use UTII for retail. This is acceptable if the tax is in place in your area for this type of activity. What changes in UTII in retail trade took place in 2018? What kind latest news about this special mode? How does an individual entrepreneur on UTII work in retail?

Who can use

Payment of UTII from retail in 2018 is permissible if there are 2 criteria:

1. the introduction of this special regime in relation to retail sales in a specific subject of the Russian Federation;
2. business compliance with certain parameters.

The necessary conditions for working on UTII include not only the organizational and legal structure of the enterprise, but also the number of employees (up to 100 people).

Varieties of retail sales

In the Tax Code of our country, the term "retail trade" on UTII is fixed in article 346.27 (paragraph 12).

Retail trade according to the Tax Code of the Russian Federation (subparagraphs 6 and 7, paragraph 2 of article 346.26) is classified into several types:

• through the use of large facilities, the area of ​​​​which for trade is not more than 150 square meters. m each (pavilions, shops);
• through objects that do not have retail space, since they are very small;
• sale of products by delivery or manual delivery.

Working on imputation makes sense if retailing is an activity for the enterprise that is aimed at generating regular income. At the same time, for each buyer, there are all signs of a retail sale and purchase agreement (Article 492 of the Civil Code of the Russian Federation).

Please note: retail trade and UTII are not compatible with supply contracts (including for the needs of the state, municipal authorities). At the same time, you can safely interact with legal entities and individual entrepreneurs: the law does not oblige you to monitor the purposes for which they purchase this or that product. In addition, in 2017 it is still possible to work on an imputation without a cash register.

Method of settlement with customers - cash / bank transfer / mixed type of payment / using plastic card- does not affect the use of UTII in any way (paragraph 12 of article 346.27 of the Tax Code of the Russian Federation).

What is a shopping area

The term "area trading floor» for retail trade on UTII includes only:

• location of cash registers, showcases and refrigerators;
• a place that is used for the work of the seller and making purchases by customers.

Please note: some types of premises are never classified as commercial, therefore they are not taken into account when determining the area for UTII purposes. In particular, these are:

• household and utility rooms;
• premises for employees;
• storage space.

Businessmen on the sly

The vast majority of individual businessmen pay UTII from retail through their mini outlets. They usually don't have financial resources to contain serious retail space.

The classification of such outlets is quite diverse. It can be:

• tents at fairs;
• points in the shopping center;
• vending machines;
• stalls;
• commercial trailers;
• hand carts, trays, etc.

When calculating UTII from the listed objects, the following criteria are used (see table).

What's new: UTII in retail trade 2018

New coefficient K1

An important change in UTII since 2018 was introduced by the order of the Ministry of Economic Development of Russia dated October 30, 2017 No. 579. According to it, when calculating the tax, the basic yield in 2018 must be multiplied by the K1 deflator index, which is 1.868. Let us give an example of calculating the imputed tax, taking into account the deflator K1 from 2018.

A company may retail goods at facilities that do not have a sales floor (for example, from a warehouse or from a container). In this case, it is important to correctly determine the area trading place, which can become a physical indicator for calculating the "imputed" tax. Approaches to this issue officials and judges are different.

The physical indicator depends on the size of the area

An object (warehouse, container, box, hangar, etc.) in which retail trade is carried out may consist of the actual premises in which the direct sale of goods is carried out, and of utility rooms for storing goods, household needs of employees, etc. .

In such a situation, the question arises: how to determine the area of ​​\u200b\u200ba trading place (that is, to recognize as such the entire area of ​​\u200b\u200bthe object or only that part of it where goods are sold).

After all, it depends on the size of the area which physical indicator (and the basic profitability - the sizes of physical indicators and basic profitability - in the section "For reference") will be applied when calculating the single tax on “imputed” income. So, if retail trade is conducted through objects with an area of ​​\u200b\u200bthe trading place of not more than 5 sq. m, then to calculate the "imputed" income, the number of trading places is multiplied by the base yield - 9000 rubles. per month. If the sales area exceeds 5 sq. m, then the physical indicator "area of ​​the trading place" is used, and the basic yield is 1800 rubles. per month. The basis is the Tax Code of the Russian Federation.

Position of officials

When deciding which physical indicator to use to calculate the “imputed” income (“trading place” or “trading place area”), the entire area of ​​​​the object must be taken into account. Including household and storage facilities (that is, the total area, which is indicated in the inventory and title documents).

Reducing the size of a trading place by the area of ​​​​premises for receiving, storing goods and preparing them for sale (as well as administrative and amenity premises) is not provided for by the Tax Code of the Russian Federation.

Accordingly, when calculating the "imputed" income, the total area of ​​​​the warehouse (container, hangar, etc.) is also taken.

Moreover, this should be done even if the utility rooms are separated from the site where direct customer service is carried out, constructively.

This position is reflected, in particular, in the letters of the Ministry of Finance of Russia dated August 10, 2009 No. 03-11-09 / 274, the Federal Tax Service of Russia dated June 25, 2009 No. ShS-22-3 / [email protected]

Officials come to similar conclusions in their oral explanations. Additionally, they indicate that if we are talking about the trading floor, then a special norm of the Tax Code of the Russian Federation applies. It provides that the area of ​​premises in which customer service is not performed (administrative and domestic, for receiving, storing goods and preparing them for sale) does not apply to the area of ​​\u200b\u200bthe trading floor for the purposes of calculating UTII. As for the trading place, the Tax Code of the Russian Federation does not establish a similar special provision for it.

EXAMPLE 1

The company sells shoes individuals from a rented container.

The area on which direct customer service is carried out is 4 square meters. m. The size of the utility room for storing goods - 12 square meters. m.

The total area of ​​the container specified in the lease agreement is 16 sq. m.

The utility room and the platform for the sale of goods are structurally separated.

Recall that in 2010 the value of the deflator coefficient K1 is 1.295. This is determined by the order of the Ministry of Economic Development of Russia dated November 13, 2009 No. 465. Let's assume that the local authorities set a correction factor K2 of 0.5.

Since the total area of ​​the object exceeds 5 sq. m, in this situation, according to the explanations of officials, the physical indicator "shopping area" is used.

The accountant calculated the tax base for the single tax on "imputed" income based on the total area of ​​the container (16 sq. m.).

Thus, for the month the amount of "imputed" income was:

1800 rub/sq. m x 16 sq. m x 1.295 x 0.5 = 18,648 rubles.

The judges have a different opinion

The Federal Antimonopoly Service of the Volga District (Decree of September 29, 2009 No. A55-1991/2009) considered such a case. A retail trading company has been subleased a non-residential premises that does not have a trading floor. It consists of a warehouse area of ​​38 sq. m and retail space of 4 sq. m. This is reflected in the contract and the technical passport of the object. The company calculated a single “imputed” income, using the physical indicator “trading place” with a base yield of 9,000 rubles. per month (since the area of ​​the place for trade is less than 5 sq. m.).

During the inspection, the inspectors fined the company for underpayment of the “imputed” tax. In their opinion, it was necessary to apply the physical indicator "area of ​​the trading place" (basic profitability - 1800 rubles per month). When determining this indicator, all areas must be taken into account, including the area of ​​\u200b\u200bthe premises where the goods are stored and pre-sale preparation is carried out, as well as the place for the passage of buyers. Accordingly, the company should have calculated the "imputed" income based on the total area of ​​​​the object - 42 square meters. m (38 + 4).

The judges sided with the company. They referred to the definition of a trading place given in the Tax Code of the Russian Federation. Namely: it is “a place used for making retail sales transactions”. That is, in this situation, it should be considered as such a site of 4 square meters. m, where direct customer service is provided. The arbitrators pointed out: since the inspectors did not prove the fact of retail purchase and sale transactions on the entire area of ​​​​the object, in this case, the physical indicator “trading place” is used. Inspection requirements are invalid.

Turning to the Supreme court of Arbitration Russian Federation, the inspection did not find support there either (determination of the Supreme Arbitration Court of the Russian Federation dated February 12, 2010 No. VAS-741/10).

EXAMPLE 2

Let's use the conditions of the previous example.

Assume that a trading company has taken not the entire area of ​​the container as the area of ​​the trading place, but only that part of it where customer service is directly taking place.

Since the size of this site is 4 sq. m, "trading place" is used as a physical indicator.

Therefore, the amount of "imputed" income for the month is:

9000 rub/unit x 1 unit x 1.295 x 0.5 = 5827.50 rubles.

Now let's assume that the area of ​​the place where the company conducts retail sales of shoes is not 4, but 7 square meters. m. Accordingly, the size of the utility room for storing goods is 9 square meters. m (since the total area of ​​the container specified in the lease agreement is 16 sq. m).

If we are guided by the position of the judges, then the area of ​​​​the trading place is 7, not 16 square meters. m. However, in this situation, the physical indicator will be the “area of ​​the trading place”, because this area exceeds 5 square meters. m.

The amount of "imputed" income for the month will be:

1800 rub/sq. m x 7 sq. m x 1.295 x 0.5 = 8158.50 rubles.

Drawing conclusions

As you can see, it is much more profitable to consider only the area of ​​​​the premises where the goods are directly sold (and not the entire area of ​​​​the warehouse or container) as the area of ​​\u200b\u200bthe trading place: the amount of "imputed" income in this case turns out to be less. However, this approach can lead to claims and sanctions from the inspectors.

In case of tax disputes trading company can count on the support of the arbitration court.

In order for the judges not to have doubts that the utility rooms are really used only for storing goods or for the domestic needs of employees, and not for serving customers, this should be documented. So, in particular, inventory and title documents should clearly indicate which area is used for the direct sale of goods, and which - for other needs.

When calculating UTII from this type of activity, use a physical indicator - the area of ​​\u200b\u200bthe trading floor (clause 3 of article 346.29 of the Tax Code of the Russian Federation). The indicator of basic profitability is 1800 rubles. per month from 1 sq. m of area (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

For the purpose of applying UTII, the concept of "trading floor" is not defined by tax legislation. In this regard, the tax service recommends being guided by the definition of the trading floor, which is given in GOST R 51303-99 (letter of the Federal Tax Service of Russia dated July 2, 2010 No. ShS-37-3 / 5778). According to this definition under trading floor refers to a specially equipped main part of the store's sales area, designed to serve customers (clause 43 of section 2.3 of GOST R 51303-99).

Set the area of ​​the trading floor according to the data of title and inventory documents (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation). For example, it can be a contract for the sale of non-residential premises, a technical passport, plans, diagrams, explications, a lease (sublease) contract for non-residential premises or a part thereof (paragraph 24 of article 346.27 of the Tax Code of the Russian Federation).

In the area of ​​the trading floor, include:

• part of the store, pavilion (open area), occupied by equipment for laying out, demonstrating goods, making payments and servicing customers;

• area of ​​cash registers and booths;

• work area service personnel;

• aisle area for buyers;

• the rented part of the trading floor.

Exclude from the area of ​​the trading floor:

• the area of ​​utility rooms;

• area of ​​administrative and amenity premises;

• the area of ​​premises for receiving, storing goods and preparing them for sale, in which customer service is not performed.

Such requirements are contained in paragraph 22 of Article 346.27 of the Tax Code of the Russian Federation.

In addition, to calculate UTII, the area leased (sublease) can be excluded from the sales area. To do this, the landlord (or the tenant subletting part of the trading floor) must have documents confirming the size of the area that is not used by him for retail. Such documents may be lease (sublease) agreements, which indicate the amount of space transferred to the tenant (subtenant).

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated December 9, 2013 No. 03-11-11 / 53554.

By general rule when calculating UTII, the area of ​​\u200b\u200bcheckout units and booths must be included in the area of ​​\u200b\u200bthe trading floor (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation).

However, this procedure is valid if the cash desk is located directly on the trading floor of the stationary trade facility. If the cash point is removed from the trading floor or located in another room, then do not take into account the area it occupies when calculating UTII. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated November 6, 2006 No. 03-11-04/3/443.

If the warehouse is equipped with a trading floor, calculate UTII based on its area. If there is no trading floor in the warehouse, use the number of trading places or their area to calculate UTII.

Thus, the answer to this question depends on the characteristics of the trading facility.

The following physical indicators are used to calculate UTII from retail trade (except for delivery and delivery trades):

• the area of ​​the trading floor, if the premises used belong to a stationary network that has trading floors (shops and pavilions);

• the number of trading places, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network and its area is less than 5 square meters. m;

• the area of ​​trading places, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network, and its area is more than 5 sq. m.

This follows from paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

Stationary network objects with trading floors include buildings that simultaneously meet the following requirements:

• are intended for trading and are connected to engineering communications (paragraphs 13, 14 of article 346.27 of the Tax Code of the Russian Federation);

• equipped with premises for trade (demonstration of goods) and customer service, trading floors (this follows from the definitions of a store and a pavilion - paragraphs 26, 27 of article 346.27 of the Tax Code of the Russian Federation).

Thus, if the warehouse is intended for trading and is equipped with the necessary trading premises, this means that it belongs to the objects of a stationary trading network. As for the condition of connection to utilities (electricity and heat networks, water supply, sewerage), then, according to the Ministry of Finance of Russia, it is not mandatory (letter of the Ministry of Finance of Russia dated January 12, 2006 No. 03-11-05 / 4).

To determine which object of trade the premises belong to (with or without a trading floor), refer to title and inventory documents. If the warehouse meets the definition of a store or pavilion, that is, it is equipped with a trading floor, calculate UTII based on its area. If there is no trading floor in the warehouse, use the following to calculate UTII:

• the number of trading places (if the area of ​​each of them does not exceed 5 sq. m);

• area of ​​trading places (in relation to trading places, the area of ​​which exceeds 5 sq. m).

This follows from the provisions of paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

According to the Ministry of Finance of Russia, if an organization uses the premises not according to technical purpose, then appropriate changes should be made to the inventory documents (registration certificate). To do this, you need to conduct a technical inventory (letters dated April 9, 2007 No. 03-11-04 / 3/107, dated April 9, 2007 No. 03-11-05 / 65, dated July 4, 2006 No. 03-11 -04/3/335 and dated April 24, 2006 No. 03-11-05/109).

Situation: how to calculate UTII if the organization uses the same trading floor in different activities? For example, for wholesale and retail operations or for retail trade and the provision of personal services, catering services.

If the trading floor is used to conduct various types of activities, when calculating UTII, the entire area of ​​​​the hall must be taken into account.

In particular, this should be done if the organization conducts both retail and wholesale operations on the same trading floor; retails and provides domestic services or catering services; retails purchased goods and merchandise own production. This is stated in the letters of the Ministry of Finance of Russia dated April 2, 2013 No. 03-11-11 / 128, dated April 22, 2009 No. 03-11-06 / 3/101, dated July 3, 2008 No. 03-11- 04/3/311, April 13, 2007 No. 03-11-04/3/115.

The entire area must also be taken into account if the same hall is used for retail trade under different tax regimes. For example, if part of the retail trade is associated with the sale of excisable goods (not translated into UTII), and part - with the sale of other goods. Despite the fact that in such a situation only part of the trading floor is used for activities within the framework of UTII, the tax must be calculated based on the total area. Similar explanations are contained in the letter of the Ministry of Finance of Russia dated September 11, 2012 No. 03-11-11 / 276.

The position of the financial department is explained by the absence in Chapter 26.3 of the Tax Code of the Russian Federation of a mechanism for allocating retail space that is simultaneously used for conducting several types of activities or for conducting one type of activity under different tax regimes. The legitimacy of this approach is confirmed by the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2009 No. 9757/09.

Correction factors

In addition to the physical indicator and basic profitability, when calculating UTII from the area of ​​trading floors, use the following values:

• deflator coefficient K1 (Clause 4, Article 346.29 of the Tax Code of the Russian Federation);

• correction factor K2 (Clause 4, Article 346.29 of the Tax Code of the Russian Federation).

In this case, the value of the coefficient K1 is not rounded, and the value of the coefficient K2 is rounded to three decimal places (clause 11, article 346.29 of the Tax Code of the Russian Federation).

tax rate

If the local authorities do not set a reduced tax rate, calculate the amount of UTII at a rate of 15 percent (Article 346.31 of the Tax Code of the Russian Federation).

The tax base

To calculate UTII, first determine the tax base for the reporting quarter. This can be done using the formula:

The value of the physical indicator - the area of ​​\u200b\u200bthe trading floor - is included in the calculation of UTII rounded to whole units (clause 11 of article 346.29 of the Tax Code of the Russian Federation). When rounding the size of a physical indicator, discard its values ​​\u200b\u200bless than 0.5 units, and round 0.5 units or more to a whole unit (letter of the Ministry of Finance of Russia dated June 16, 2009 No. 03-11-11 / 111).

Change in physical indicator

If during the quarter the area of ​​\u200b\u200bthe trading floor increased or decreased, take into account the changes from the beginning of the month in which they occurred (clause 9 of article 346.29 of the Tax Code of the Russian Federation).

UTII calculation

Having determined the size tax base, calculate the amount of UTII for the reporting quarter. To do this, use the formula:

This follows from subparagraph 10 of paragraph 5.2 of the Procedure approved by order of the Ministry of Finance of Russia dated January 23, 2012 No. MMV-7-3 / 13.

An example of calculating UTII from retail trade through objects with trading floors. The area of ​​the trading floor changed during the tax period

Alfa LLC retails through its own store and uses UTII.

In 2016, the value of the deflator coefficient K1 is 1.798. The value of the correction factor K2 by the local authorities is set at 0.7. The tax rate is 15 percent.

Trading area organization store (according to technical documentation) is 80 sq. m. On February 10, a room of 10 square meters was attached to the trading floor. m (corresponding changes have been made to the technical documentation).

Thus, the area of ​​the sales floor used by Alfa in retail sales amounted to:

• in January - 80 sq. m;
• in February - 90 sq. m;
• in March - 90 sq. m.

The imputed income for calculating UTII for the first quarter was:
1800 rub./sq. m × (80 sq. m + 90 sq. m + 90 sq. m) × 0.7 × 1.798 = 589,025 rubles.

UTII for the first quarter is equal to:
RUB 589,025 × 15% = RUB 88,354

Entrepreneurs involved in trade are faced with the need to calculate the area of ​​\u200b\u200bthe trading floor, the value of which will be required when determining UTII. What is needed is the actual area, measured in square meters. The use of UTII is allowed for retail space up to 150 m2.

The trading area is considered to be the part of the pavilion or store, intended directly for communication between the buyer and the seller. The calculation of the area does not take into account the premises for the acceptance, storage of goods, their pre-sales preparation, administrative and household premises.

What is considered a retail space?

• Equipment. Everything that is intended for the demonstration and display of goods (showcases, racks, shelves).
• service points. A place for servicing and making settlements with the buyer (point for the issuance of goods, cash desk, cash desks or booths).
• Workplace for service personnel. These may be passages to which buyers have free access.

Management

To determine the desired value, it is necessary to use data from title and inventory documents.

Often documents do not contain necessary information, therefore, you will have to calculate the area of ​​\u200b\u200bthe trading floor yourself. To do this, use the plans of the premises available in the technical passport. To place a complex configuration, it is divided into rectangular, triangular or other areas. Then their areas are calculated and the obtained values ​​are added up.

From the resulting area, it is necessary to subtract the values ​​​​of the areas of auxiliary premises (elevator shafts, flights of stairs, etc.).

If on the territory of the trading floor are carried out different types activities, which, respectively, are subject to and not subject to UTII, then the entire used area should be taken into account. To minimize the size of UTII, it is recommended to constructively separate them in any way (wall, partition). Separate contracts can be drawn up for leased premises.

If a part of the premises is rented for trade, and not the entire trading floor, then the tenant must require the value of the actual area that he occupies to be included in the lease agreement.

Question: Is it legally possible to take into account the smaller area of ​​the hall when calculating the tax?
Answer: Taking into account that in determining this area, data given from title or inventory documents are used, this can be done under the following conditions. To rent out part of the premises, prescribing the actual indicators in the lease agreement. There should also be a constructive distinction between leased and non-leased areas. This will avoid ambiguous interpretations by tax representatives.

Question: The store was remodeled, as a result of which the trading floor was reduced. Based on what area is it necessary to calculate UTII?
Answer: For the calculation, it is necessary to take the value of the area, which is indicated in the inventory documentation. If it does not correspond to the real situation, then it is recommended to re-register the documents in the relevant authorities. Then disagreement with tax service will not occur.

Question: In what cases is it beneficial to use the concept of a trading floor, and in which trading place?
Answer: If the trading place exceeds 5 m2, it is more profitable to convert it into a trading floor. This allows you to allocate space in it for auxiliary premises and deduct their area when calculating the tax.

In relation to retail trade, it is possible using one of the following physical indicators: trading place, trading floor area, trading place area. From the article you will learn in which cases to apply each of these physical indicators and how to determine them.

First of all, we note that a physical indicator characterizes a certain type of “imputed” activity. Therefore, its correct definition directly affects the amount of a single tax payable to the budget. However, with respect to not all "imputed" activities, this is easy to do. One such activity is retail.

According to the provisions of Chapter 26.3 of the Tax Code of the Russian Federation, organizations and retailers, with a single tax, must apply one of the following physical indicators:

- area of ​​the trading floor (in square meters);
- the number of trading places;
- area of ​​the trading place (in square meters);
- the number of employees, including individual entrepreneurs;
- the number of vending machines.

As a rule, there are no difficulties with the last two physical indicators, but we will consider the rest in more detail.

Sales floor area

The physical indicator "sales area (in square meters)" is used when organizations and individual entrepreneurs conduct retail trade through stationary trading network facilities that have trading floors.

In order to pay UTII, the area of ​​\u200b\u200bthe trading floor should not exceed 150 square meters. m. Article 346.27 of the Tax Code of the Russian Federation determines that the area of ​​\u200b\u200bthe trading floor includes:

- part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods;
- area used for cash settlements and customer service;
— the area of ​​cash registers and cash booths;
— the area of ​​workplaces of service personnel;
— the area of ​​passages for buyers.

Also, the area of ​​the trading floor includes the rented space of the trading floor. But the area of ​​​​auxiliary, administrative and amenity premises, the area of ​​\u200b\u200bpremises for receiving, storing goods and preparing them for sale, in which customer service is not performed, is not included in the area of ​​\u200b\u200bthe trading floor for the purpose of paying UTII.

The area of ​​the trading floor is determined on the basis of inventory and title documents. Such documents may be a contract for the sale of non-residential premises, a technical passport for non-residential premises, plans, diagrams, explications, (sublease) of non-residential premises or its part (parts), permission for the right to serve visitors in an open area, etc.

It would seem that everything is simple. There are documents that indicate the area of ​​the trading floor, which should be taken into account. But in practice, a situation often arises when they themselves change the area of ​​\u200b\u200bthe trading floor, for example, by converting part of it into a warehouse. And, as a result, they consider a single tax based on a smaller area.

Financiers believe that this should never be done. It is necessary to calculate UTII only using the size of the area of ​​the trading floor, which is indicated in the inventory and title documents. And actually used by the organization or individual entrepreneur for the purpose of maintaining a retail sales area does not matter. Such a conclusion is contained, for example, in a letter dated 07.03.2013 No. 03-11-11/94.

Judges basically take the side of taxpayers and, when considering cases, find out the actual area of ​​the trading floor. Thus, in the decision of the Federal Antimonopoly Service of the Volga District dated December 24, 2012 No. A57-9062/2012, the arbitrators found that the total area of ​​the trading floor was divided into a trading area and an area of ​​a utility room by showcases. In the place for receiving, storing goods and preparing them for sale, in the back rooms, there was no equipment intended for laying out, demonstrating goods, making cash payments. Service in the indicated places was not carried out, the access of buyers was prohibited. In this regard, the arbitrators came to the conclusion that for the sale of goods the taxpayer used only the trading area and lawfully calculated UTII from this area.

A similar conclusion is contained in the resolutions of the Federal Antimonopoly Service of the Central District of June 15, 2012 No. A35-3273 / 2011 and the Federal Antimonopoly Service of the Urals District of October 08, 2012 No. Ф09-9981 / 11, of January 26, 2011 No. Ф09-10943 / 10-С3.

The Federal Antimonopoly Service of the East Siberian District, in its resolution dated 10/13/2009 No. A78-3625 / 08, indicated that the obligatory sign of classifying areas as “sales area area” and accounting for a single tax is the actual use of these areas in the implementation of trade. And the burden of proving that the “scammer” used a large area for retail trade rests with the tax authorities.

Similar conclusions are contained in the resolutions of the Federal Antimonopoly Service of the Volga District dated April 11, 2012 No. A57-3313 / 2011, the Federal Antimonopoly Service of the West Siberian District dated October 18, 2010 No. A45-7149 / 2010, the Federal Antimonopoly Service Far Eastern District No. F03-2543/2011 dated July 15, 2011 and Federal Antimonopoly Service of the Moscow District dated April 1, 2010 No. KA-A41/2694-10.

At the same time, it is worth noting that there are court decisions in which arbitrators took into account only inventory and title documents. At the same time, they noted that such documents should be drawn up by the competent authorities (for example, the BTI authorities). In the decision of the Federal Antimonopoly Service of the Volga-Vyatka District of August 6, 2012 No. A29-6075 / 2011 (upheld by the Ruling of the Supreme Arbitration Court of the Russian Federation of December 19, 2012 No. VAS-16459 / 12), the arbitrators refused to accept as evidence of a change in the area of ​​​​the trading floor the floor plan, which was compiled by a third party individual entrepreneur.

The same conclusions can be found in the resolutions of the Federal Antimonopoly Service of the North-Western District of March 5, 2011 No. A66-6259 / 2010, as well as the FAS of the East Siberian District of February 24, 2012 No. A74-3677 / 2010 and of May 13, 2009 No. A78-4725 / 08-S3-22/186-F02-2154/09.

Thus, in order to avoid claims from outside, we recommend that you make changes to the sales area in time so that it corresponds to the BTI data. In addition, the information in the inventory documents must match the data in the title documents.

Example 1
LLC "Tea plantations", using in the form of UTII, carries out retail trade various types tea and coffee through a shop with a total area of ​​160 sq. m. The store is located in the city (Oktyabrsky district). In accordance with the inventory plan, the area of ​​​​the trading floor is 100 square meters. m, the rest of the area is occupied by administrative and storage facilities. Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.

The basic profitability for retail trade carried out through objects of a stationary trading network with trading floors is 1,800 rubles. per month. The physical indicator is the area of ​​the trading floor (in square meters). AT this case it is 100 sq. m. The coefficient K1 in 2014 is 1.672 (order of the Ministry of Economic Development of Russia dated November 7, 2013 No. 652).

According to the decision of the Kirov City Duma dated November 28, 2007 No. 9/4 (as amended by the decision dated November 28, 2012 No. 8/4), the value of K2 in relation to retail trade through stationary trading network facilities with trading floors in the district is 0.44 ( for food items).

Thus, the amount of UTII payable to the budget following the results of the 4th quarter of 2014 will be:
1800 rub. × (100 sq. m + 100 sq. m + 100 sq. m) × 1.672 × 0.44 × 15% = 59,590.08 rubles.

In whole units - 59,590 rubles.

The company has the right to reduce this amount of UTII by paid contributions and temporary disability benefits paid to employees, but not more than 50%.

Trade area

When conducting retail trade through objects of a stationary distribution network that do not have trading floors, as well as through objects of a non-stationary distribution network, the following physical indicators are used:

- the number of trading places;
- area of ​​the trading place (in square meters).

And the choice of which physical indicator to use to calculate UTII depends on the area of ​​\u200b\u200bthe trading place. If the area of ​​the trading place does not exceed 5 sq. m, then the physical indicator "number of trading places" is used if it exceeds 5 sq. m, then "the area of ​​the trading floor." About this - paragraph 3 of article 346.29 of the Tax Code of the Russian Federation.

Let's first consider how to determine the area of ​​\u200b\u200bthe trading place. And we immediately note that the Tax Code of the Russian Federation does not say anything about this. Therefore, we turn to the regulatory authorities for clarification. So, the department's specialists point out that the area of ​​the trading place, as well as the area of ​​the trading floor, should be determined on the basis of inventory and title documents. This is stated in the letters of the Ministry of Finance of Russia dated 08.08.2012 No. 03-11-11 / 231, dated 05.03.2012 No. 03-11-11 / 68, dated 12.26.2011 No. 03-11-11 / 320, dated 08.10.2009 No. 03-11-09/274 and dated May 26, 2009 No. 03-11-09/18. Agree with financiers and tax specialists (letter dated July 27, 2009 No. 3-2-12 / 83).

Note that there are no restrictions on the size of the area of ​​the trading place used for the purposes of "imputed" retail trade, Chapter 26.3 of the Tax Code of the Russian Federation No provision is made for the provisions of Chapter 26.3 of the Tax Code of the Russian Federation and the reduction of the area of ​​the trading place by the area of ​​​​premises for receiving, storing goods and preparing them for sale where customer service is not provided. The Ministry of Finance of Russia drew attention to this in letters dated 05.03.2012 No. 03-11-11/68, dated 26.12.2011 No. 03-11-11/320, dated 22.12.2009 No. 03-11-09/410, dated 10.08. 2009 No. 03-11-09/274 and dated May 26, 2009 No. 03-11-09/185. See also the letter of the Federal Tax Service of Russia dated 06/25/2009 No. ШС-22-3 / [email protected]

As for the judges, they fully agree with the regulatory authorities. For example, in the resolution of the Federal Antimonopoly Service of the North-Western District dated May 29, 2012 No. A05-10400/2011, the arbitrators indicated that when retailing through an object recognized as a trading place, the physical indicator "shopping area" includes all areas related to this object of trade, including those used for the acceptance and storage of goods. Similar conclusions contain resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 417/11 of June 14, 2011, FAS of the Volga-Vyatka District of May 16, 2012 No. A79-6987/2011, No. A11-8979/2010 of February 13, 2012, FAS of the Moscow District of February 10, 2012 No. А41-31817/10, Federal Antimonopoly Service of the Central District of March 11, 2011 No. А62-4419/2010 and Federal Antimonopoly Service of the Volga District of February 9, 2010 No. А12-16000/2009.

What if the trade is carried out after several commercial premises that are in the same building? Chapter 26.3 of the Tax Code of the Russian Federation does not allow this. In the letters of the Ministry of Finance of Russia dated December 31, 2010 No. 03-11-11 / 335 and the Federal Tax Service of Russia dated July 2, 2010 No. ShS-37-3 / [email protected] states that if retail trade is carried out using several shopping facilities, which belong to the same store (pavilion) and are located in the same building, then when calculating the amount of UTII, the area of ​​\u200b\u200ball trading floors must be summed up. If retail trade is carried out using several trading facilities that are located in the same building, but are independent stores (pavilions), then when calculating the amount of UTII, the area of ​​\u200b\u200bthe trading floor for each store (pavilion) is taken into account separately according to inventory and title documents.

Consider, for example, the procedure for calculating UTII using the physical indicator "area of ​​the trading place".

Example 2
Let's use the conditions of example 1 and assume that the company retails various types of tea and coffee through a trading place with an area of ​​5.9 square meters. m, located in the shopping center. Shopping center is located in the city of Kirov (Novovyatsky district). Separate premises for receiving, storing goods and preparing them for sale in this case are not provided. The goods are stored in a showcase, which is a trading place. Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.

The base yield in this case is 1800 rubles. per month. The physical indicator "the area of ​​the trading place (in square meters)" is 5.9 square meters. m. The value of K2 in relation to retail trade through the objects of a non-stationary trading network, the area of ​​\u200b\u200bthe trading place in which exceeds 5 square meters. m, on the territory of the Novovyatsky district is 0.27 (for food products).

The amount of UTII payable to the budget following the results of the IV quarter of 2014 is:
1800 rub. × (5.9 sq. m + 5.9 sq. m + 5.9 sq. m) × 1.672 × 0.27 × 15% = 2157.43 rubles.

In whole units - 2157 rubles.

Now let's look at another example and note that when using the same physical indicator in different cases, the tax amount can differ significantly. Therefore, organizations and merchants, when planning their trading activities care should be taken in the choice of the object of trade.

Example 3
MasterOk LLC, which applies the taxation system in the form of UTII, carries out retail trade building materials. For this activity, the company rented a pavilion in the construction market with a total area of ​​80 square meters. m. At the same time, a counter is installed inside the pavilion, where buyers make payment and receive goods. The counter occupies an area of ​​6 square meters. m. The product itself is stored in the pavilion, buyers have free access to it for review. The construction market is located in the city of Kirov (Leninsky district). Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.

The basic profitability for this type of activity is 1800 rubles. per month. The physical indicator "the area of ​​the trading place (in square meters)" in this case will be 80 square meters. m. The value of K2 in relation to retail trade through the objects of a non-stationary trading network, the area of ​​\u200b\u200bthe trading place in which exceeds 5 square meters. m, in the district is 0.35 (for non-food products).

The amount of UTII payable to the budget following the results of the II quarter of 2014 is:
1800 rub. × (80 sq. m + 80 sq. m + 80 sq. m) × 1.672 × 0.35 × 15% = 37,920.96 rubles.

In whole units - 37,921 rubles.

The company has the right to reduce this amount of UTII by paid insurance premiums and sickness benefits paid to employees, but not more than 50%.

Number of trading places

Article 346.27 of the Tax Code of the Russian Federation defines a trading place as a place used for making retail purchase and sale transactions. These include:

- buildings, structures, structures (a part of them) or used for retail purchase and sale transactions;
- objects of retail organization that do not have trading floors (tents, stalls, kiosks, boxes, containers and other objects, including those located in buildings, structures and structures);
— counters, tables, trays (including those located on land plots);
— land, used to place retail trade organization objects that do not have trading floors, counters, tables, trays, and other objects.

As you can see, the Tax Code of the Russian Federation does not establish specific physical characteristics or minimum requirements for a trading place. In a letter dated 07/05/2005 No. 03-11-04 / 3/2, the financiers indicated that if the goods are released from the warehouse, and the buyer and seller are settled at the company's office, then the number of trading places should be determined by the number of employees involved in the sale.

In a letter dated March 29, 2006 No. 03-11-04/3/169, the Ministry of Finance of Russia considered the situation when a taxpayer rents trading places in the form of separate sections, fenced off with light structures, or in the form of counters for trade food products. In this case, the financiers recommended determining the number of trading places based on the number of separate sections for rent. And if the trading places behind the counters are equipped with scales for weighing products, then the number of trading places behind the counters should be determined by the number of scales placed on them.

In another letter dated 02.07.2007 No. 03-11-04/3/247, employees of the financial department indicated that taxpayers renting stationary trading places behind counters in the covered market building should determine the number of trading places on the basis of lease agreements. A similar conclusion is contained in the letter of the financial department dated 08/06/2010 No. 03-11-10/110.

Judges, in turn, pay attention to all factual circumstances. Thus, the Federal Antimonopoly Service of the West Siberian District, in its Resolution No. F04-2192/2007 (33335-A75-19) dated April 12, 2007, indicated that a trading place is defined as a place used to complete purchase and sale transactions.

According to GOST R 51303-99 “Trade. Terms and definitions ”(approved by the Resolution of the State Standard of Russia dated 11.08.99 No. 242-st), a trading place in retail trade should be understood as a specially equipped place for direct interaction between the seller and the buyer for the transfer of goods in pursuance of a retail sale contract. Such a place is characterized by the presence of a certain spatial isolation and commercial equipment, as well as the possibility of direct contact between the seller and the buyer in the provision of trading services.

Thus, the arbitrators came to the conclusion that several trading places located next to each other can be used as one trading outlet. However, the following conditions must be met: there are no internal partitions between them, there is a single assortment of goods, a common CCP, one counter and (or) a seller. Similar conclusions are contained in the resolutions of the Federal Antimonopoly Service of the Urals District of November 19, 2007 No. F09-9383 / 07-S3, the Federal Antimonopoly Service of the Volga District of April 5, 2007 No. A12-16770 / 06 and the Federal Antimonopoly Service of the North Caucasus District of January 16, 2007 No. F08-6177 / 2006- 2527A.

Therefore, taking into account the foregoing, we can conclude that the number of trading places for a “spoofer” should be determined based on a specific situation. However, the UTII taxpayer should be prepared to confirm his position with relevant documents. Since in the absence of any evidence of the number of trading places used, the judges may not support it (see, for example, the decision of the Federal Antimonopoly Service of the North-Western District of March 22, 2007 No. A56-34563 / 2006).

Example 4
LLC "Tea World", applying the taxation system in the form of UTII, carries out retail trade in various types of tea through retail outlets in the form of counters located in several stores in the Moscow region. The number of counters - 5 pieces, each area is 4.9 square meters. m. Let's calculate the amount of UTII, which is payable to the budget for the IV quarter of 2014.

The basic profitability for this type of retail trade is 9,000 rubles. per month. The physical indicator "number of trading places" is equal to 5. According to the decision of the Council of Deputies of the city of Kolomna dated October 13, 2005 No. 58-RS (as amended by decision No. 16-RS dated October 31, 2012), the value of K2 in relation to retail trade through objects of a non-stationary trading network, the area of ​​the trading place in which does not exceed 5 square meters. m, is 0.8.

The amount of UTII payable to the budget following the results of the 4th quarter of 2014 will be:
9000 rub. × (5 pcs + 5 pcs + 5 pcs) × 1.672 × 0.8 × 15% = RUB 27,086.40

In whole units - 27,086 rubles.

The organization also has the right to reduce this amount of UTII by paid insurance premiums and temporary disability benefits paid to employees, but not more than 50%.