Taxation of dividends of legal entities requires the ability to make payments through the use of a special algorithm. The task of enterprise accounting is to calculate the correct values for all recipients without exception, taking into account all payments. However, practice has: not everyone understands who is responsible for paying taxes. Others believe that this should be done by a tax agent, while others are of the opinion that this task is imputed to the recipient of income. Let's try to understand this difficult issue by considering several different situations.
Liquidation
One of the difficult options is taxation related to property distribution provoked by the liquidation of the enterprise. By law, all operations associated with this event are regulated quite clearly. In particular, the Tax Code includes the 43rd article, which explains in detail how, in what order it is necessary to make payments if the company is liquidated.
What does the taxation of dividends come from? The fact is that the law suggests comparing liquidation payments and contributions made to the authorized capital. If the value of the former is greater than the latter, all this difference is considered dividends. Therefore, you have to pay tax. Additionally, a controversial issue was considered in 2015, when the Ministry of Finance even issued a special letter dedicated to this particular problem topic. It was distributed through the Federal Tax Service, in the body of the document the aspects of taxation of dividends of LLCs, individuals were considered.
And if even more complicated?
Suppose there is a parent company, a subsidiary. To complicate the situation, consider the case of belonging to different jurisdictions: one company is geographically located in Russia, and payments must be sent abroad. When considering such a confusing situation and identifying tax rules and dividend payments, it must be remembered that not only the NK installations are in force, but also agreements concluded at the interstate level.
The main difficulty in taxing dividends in such a situation is to avoid double taxation of the target amounts. At present, the standards of international agreements are considered priority, therefore, it is necessary to take them into account, NK is in second place. Most of the documentation is clearly systematized, but there are certain subtle aspects in the taxation of dividends.
I want and should
The legislation imposes certain obligations on the tax agent related to the payment of the due interest to the state authorities. A company paying dividends automatically becomes a tax agent. This means that it is liable for taxation of dividends of individuals, to which profitable amounts are transferred. You will have to pay tax on the profit of legal entities obtained in this way.
In some cases, taxation of dividends is complicated by the inability to directly withhold amounts. This is typical primarily for the natural form. Faced with such conditions, the tax agent is obliged to warn the state institution responsible for the collection of taxes that the recipient has a revenue source. You will have to pay the statutory amount on the day the award is transferred or earlier. If the requirements for taxation of dividends are not met, you will have to bear responsibility in accordance with the law. The issue is considered in detail in the 123rd article of the Tax Code.It is indicated here that as penalties one fifth will have to be paid more than when fulfilling obligations on time. An additional fine in case of non-compliance with the rules for taxation of dividends is the penalty charged daily for overdue obligations.
You do not want? Let's make it!
The issue of taxation of dividends has repeatedly become the topic of discussion among lawmakers. Relatively recently, in 2015, it was decided in the Tax Code to make some changes regarding this aspect. So, the 76th article was corrected, revealing the possibility of blocking a bank account on the basis of a request from the state institution responsible for taxation. Dividends to founders paid without tax become the reason for such a block. It is not the recipient who suffers, but the tax agent. Sanction can be prevented by providing a payment sheet confirming the deduction of the amounts due.
Earlier, the tax inspectorate repeatedly tried to resort to such measures of influence in order to make the process of taxation of dividends of founders simpler, and tax agents - responsible. Arbitration courts, in turn, more often sided with tax agents, since they were only liable for the formation of settlements, which was not accompanied by the preparation of a declaration, which made the requests of the tax service not confirmed by the letter of the law. The latest changes in the Tax Code made it possible to exclude discussions on this topic.
To pay, not to pay, how much to pay?
If taxation of dividends of individuals is organized with errors, you will have to pay for it when violations are identified. The tax agent will need to pay a fine, a fine (calculated according to officially approved formulas). As for the payment of the amount accrued according to the rules of taxation, the approaches of different courts regarding it are somewhat different. So, some rightly point out that the agent is not a tax payer, that is, he should not pay the amount from his own wallet. In such a situation, representatives of the tax authorities must contact the taxpayer directly, that is, the person to whom the dividends were listed, and already receive the amount due under the law from him.
How long does it take to pay a penalty? The tax agent is obliged to pay under this article until the moment when the debt to the budget is paid off, and only the one who received the dividends can pay it. Consequently, until the taxpayer himself resolves this issue, his agent will continue to regularly pay the tax for late payments.
It is important!
The law states that special conditions apply to the situation when dividends are paid to a legal entity registered abroad. In this situation, the tax payer is outside the zone of power of the state institutions responsible for taxes in our country. The tax agent cannot be held responsible for transferring the amounts regulated by legal acts to the budget.
Special attention was paid to this moment at one of the meetings of the Plenum of the Supreme Arbitration Court. As a result of the event, a resolution was issued under number 57. This happened in 2013. From the document you can find out that the agent’s account is unacceptably blocked. However, if you pay attention to the date, it becomes clear that the articles of the Tax Code were corrected after the decision of the HAC, that is, in a specific situation of such a financial conflict, there is a possibility of a lawsuit as the only reasonable way to identify the legitimacy of the claims of one of the parties.
How much to pay?
The tax rate for dividends is determined in the current Tax Code, the third paragraph of the article under number 284 is devoted to this issue. It is indicated here that three rates are currently in force: 0%, 13%, 15%.If the amount must be sent to the recipient registered in another power, the interest rate can be found in the interstate agreement. In some cases, the indicator is lower than generally accepted within the country; it is precisely this indicator that will have to be applied in reality.
The main issue that the tax agent must solve: obtaining confirmation of the fact that the payee is subject to an inter-ethnic agreement. If it is not possible to correctly draw up this delicate moment, the tax authorities are guaranteed to find something to complain about.
What's inside?
If the payee is located, registered, resides within our country, the standard tax rate of 13% applies to him. An exception is made by persons who fall under the terms of the list given in Article 275 of the Tax Code, which is devoted to the exclusion of a certain revenue component.
The idea is this: the taxable amount for a company paying the agreed amount as a dividend to the parent can be reduced by the amount that the person received from its subsidiary. This approach prevents the double taxation of the same amount. In some situations, the subsidiary earns much greater profits than the original company. Dividend taxation is not expected in such circumstances.
The task is more difficult
Often, tax agent accountants are faced with a situation where among the recipients of dividends are people who do not have to pay income taxes at all. This group includes all foreigners, legal and physical, municipalities, federal entities of our state, individuals of our state.
For correct calculations in such a situation, it is necessary to analyze the 275th article in detail. It introduces the concept of specific gravity, it is supposed to analyze the amounts accrued to all participants. The legislation specifies a formula (rather complicated) on which the calculations are based. It is through it that one can take into account how many dividends are received and paid. The task of the tax agent is to correctly distribute the amounts, identify the final value of the tax base and apply the correct rate to each of the recipients.
Subtleties: lurk at every step
To decide that the time has come to pay dividends is one operation. Actual settlement of obligations is the second, and it is different from the first. Of course, you can decide and pay at the same time, but in practice this requires some time intervals. Many, for example, pay the due amounts in stages, since too large amounts are obtained at one time to be able to pay. This approach is practiced: first, all that is paid is paid to one person, then to the second and so on.
If the first reporting quarter was accompanied by the payment of the due profit to only some of the recipients, the tax agent draws up the declaration in the part that is devoted to this issue, taking into account not the actual payments, but all the planned ones, that is, what was determined in the decision. Thus, a basic calculation is carried out. The next step is to determine the quantities actually paid for the reporting period. Based on this indicator, the tax amount payable at the current time is calculated.
What to do?
Sometimes tax agents are faced with such unforeseen difficulties: it is not possible to identify the details of the shareholder, which becomes an obstacle to the payment of due amounts. If the recipient himself is not interested in profit and does not make himself felt, after a certain period of time, dividends become unclaimed, which becomes the basis for applying to them the status of retained earnings.In order to avoid double taxation, the current legislation requires such amounts to be classified as non-operating income.
Not so long ago, many enterprises faced the following problem: if the amounts were sent not to the actual recipient, but to the nominal holder, it was unclear which rate to use for calculating tax amounts, since it was impossible to identify the final recipient. The year 2014 helped put all the dots on the “i”. The laws clearly stipulate that the issuer does not have an agent's obligation to pay taxes, transfers the amount fully received by him and informs the nominal holder of the values D1, D2. The nominal holder in such a situation turns into a tax agent. You can inform in different ways: by payment, by message on the official website, by letter - paper or electronic.
