Tax agent - this is an entity that carries out the calculation and payment of the amounts established by law to the budget. These payments represent a certain part of the income of the persons working for him (as full-time employees, for example).
Difference from the payer
A tax agent is, simply put, a tenant (employer). Unlike the payer (employee), he does not deduct personal income tax from his own income. Moreover, he must calculate the tax, withhold it when paying salaries to employees. This amount should be directed to the budget.
Responsibilities and Rights
The agent has the same legal capabilities as the payer, unless otherwise provided in the Tax Code. The subject calculates, levies and deduces the established amounts to the budget, regardless of whether he pays personal income tax. In addition, the tax agent must:
- Timely and correctly calculate, charge and send to the budget the established amounts.
- To inform the regulatory authorities of the impossibility of withholding tax (this notice is sent in writing).
- Take into account accrued and paid income, taxes for each payer separately.
- Provide the territorial division of the Federal Tax Service with the documentation necessary to ensure control over the calculation, collection and transfer of the established amounts to the budget.
- Keep reporting for 4 years.
A responsibility
For failure by a tax agent to withhold and / or transfer taxes, a sanction is provided. It is expressed in money. A fine is established. 123 Tax Code. Its amount is 20% of the amount subject to collection or deduction to the budget. Consider further Art. 123 Tax Code with commentary.
Features of the norm
The sanction under this article is assigned for incomplete deduction or deduction of the established amount to the budget. The subject pays the employee part of his income. This amount is sent to the budget as personal income tax.
If the employer does not have the ability to withhold tax, he must report this to the supervisory authority. A notification is sent within a month. If the payer’s income, acting as an object of taxation, consists in economic benefit or is provided in kind, despite the fact that no cash payments were made in the corresponding period, the person has no obligation to withhold tax from the payer.
In such a situation, the employer provides information to the authority of the Federal Tax Service according to the rules established by Art. 24 (paragraph 3, subsection 2) of the Code.
Object of violation
The collection of a fine in accordance with the considered norm is carried out if the procedure for deduction of the established amounts to the budget provided for in the Code has been violated. In this case, the guilty person violates several articles. In particular, he does not comply with the provisions of norms 46, 47, 24, 23 and 9.
As a direct object of the violation, the liability for which is defined in Art. 123 of the Tax Code of the Russian Federation, relations concerning the implementation of the requirements of the legislation on the calculation, collection and deduction of established amounts to the budget are advocated.
Objective part
Danger of violation punishable by art. 123 of the Tax Code of the Russian Federation, lies in the fact that this act undermines the system of financial support for the functioning of the state or the Moscow Region. This is due to the fact that the payer, although not through his own fault, does not comply with the provisions of Art. 57 of the Constitution and Art.3 Codex.
When characterizing the objective side of the violation, the sanction for which is established by Art. 123 of the Tax Code of the Russian Federation, several important points should be noted:
- Prescriptions that the subject does not observe are determined not only by the Code, but also by other normative acts.
- Of all the duties provided for the agent, the article in question covers full or partial tax withholding. At the same time, in order to charge the established amount, you must first calculate it. According to the rules of Art. 52-56, this procedure is carried out not by the payer, but by the tax agent.
Nuances
Despite the fact that in Art. 123 of the Tax Code of the Russian Federation, we are talking about non-cash deduction of amounts, it must be borne in mind that in some cases the Code allows the payment of cash. Accordingly, situations where this action was not carried out are also covered by the norm in question.
The objective part of the violation also occurs when the guilty person did not simultaneously withhold, did not transfer (did not contribute) the corresponding tax to the budget, did not fulfill one of the indicated duties, or partially realized them. Moreover, in order to bring the subject to responsibility, the amount of the unpaid amount to the budget is not taken into account. But at the same time, a small amount of tax can be taken into account as a mitigating circumstance.
Subjective part
Responsibility under the considered norm occurs only in relation to tax agents-legal entities. Punishment is applied to citizens if there are no signs of a crime in the violation. The prosecution of an agent-legal entity does not exempt the head of the organization or other entity performing managerial functions from criminal, administrative and other measures, if there are sufficient grounds for this.
This provision is enshrined in Article 108 (Part 4) of the Tax Code. In addition, an entity held liable under the rule in question must pay unpaid amounts to the budget. The subjective part of the violation is characterized by the presence of an imprudent form of guilt and intent.
Additionally
In accordance with Decree of the Presidium of the Supreme Arbitration Court of Ukraine No. 15483/11 of 04/03/2012, if a foreign person is not registered with the Russian territorial body of the Federal Tax Service, regardless of the conditions for concluding an agreement with him, for non-fulfillment by a domestic company registered with the tax inspectorate of obligations withholding VAT from paid funds to the counterparty does not exempt the latter from calculating this tax and transferring it to the budget. If the company does not calculate and deduct the amount due from the foreign company, the supervisory authority has the right to hold him accountable. Punishment occurs in accordance with Art. 123 NK.
Sanctions Features
The considered norm establishes that a guilty person is fined, the amount of which is 20% of the amount that has not been calculated and deducted to the budget from the payer's income. In this case, the amount of sanction may vary.
In particular, as mentioned above, when considering the issue of bringing the perpetrator to the established liability mitigating circumstances may be taken into account. In addition to the insignificant amount unpaid to the budget, the size of the sanction may be affected by the fact that the entity committed the violation for the first time. As a result, by decision of the authorized body, the size of the fine may be reduced.
However, aggravating circumstances may be taken into account. These include a large amount that is not credited to the budget, the frequency of violations, etc. In such cases, the amount of sanction can be increased. If there are sufficient grounds, the subject can additionally be brought to administrative, criminal or other liability established by law.
Conclusion
The head of any enterprise, when recruiting staff or concluding contracts with individuals for the performance of certain works, must understand the responsibility for failure to comply with tax laws.
The Constitution states that each person must pay a certain part of his income to the budget. For employees, this obligation is performed by the employer. It is he who calculates, charges and transfers the established amounts to the budget. In order to avoid prosecution under the considered norm, the head must timely and fully fulfill his duties.
