Can the owner of the single tax payer to give your product the entrepreneur on a common system of taxation ? What are the consequences for both parties? It is not regarded as a non-cash payments , which for the owner of the single tax payer banned? ( question came to the forum on site «Accounting and Taxes «).
Relations between the parties ( the donor and the donee ) as a result of donation of property gl.55 regulates the Civil Code of Ukraine (hereinafter — Civil Code ) . As a gift giver transfers or undertakes to transfer to the second side of the future — the donee free of any thing in the property (the gift ) . A feature of such relations (as opposed to , for example, supply contracts, swap ) is at no charge to bestow the benefit of the parties to fulfill the donor any action property or non-property . Gift may be immovable and movable property , including any material assets , goods .
At the request of Art. 291.6 of the Tax Code of Ukraine single tax payers have to make payments for goods shipped , works , services provided only in the form of money ( cash or non-cash ) . Note that the term » estimates «, » cash settlement » ( both cash and non-cash) in the Tax Code of Ukraine is not interpreted . In such a case it is advisable to use st.5.3 of the Tax Code of Ukraine , which establishes the possibility of using other laws for the interpretation of the terms unknown at the Tax Code.
General provisions on the calculation set Ch. 74 of the Civil Code , where in the article . 1087 of the Civil Code defines two forms — cash and non-cash. At the same time , in the Tax Code of Ukraine is mentioned in the same non-cash form of payment * . Analyzing the situation of the Tax Code of Ukraine , you can come to the conclusion that the tax legislation under the » calculations «, apparently , it is useful to understand the receipt by one party of the second sum of money (the contract of delivery ) , any property in exchange for the shipped material goods ( barter , barter) , fees for use of the property ( lease ) , annuity , etc. A common feature in this case is the presence of paid transmitted compensation on the one hand to the other party for the implementation of specific actions.
When the contract of donation of the property is given to bestow free, that is — without any compensation. A paragraph 2 of Art . 717 of the Civil Code categorically does not recognize the lease relationship, in which the party shall give as gifts in favor of the giver any action or non-material property . In comments to the civil law jurists stated that the settlement obligations mediate making payments for any actions ( transfer of goods, works and services) or for other reasons , the purpose of which is to design appropriate transfer of funds by the debtor to the creditor . ** As mentioned above, in the case of registration of a deed of gift to bestow side of the property is transferred without any compensation. That is, in this case, payments for donated property missing. Therefore , the owner of the single tax payer , transferring goods on the other side of the donation contract does not violate the terms of Art. 291.6 of the Tax Code of Ukraine.
According to Art . 177.2 of the Tax Code of Ukraine net taxable income of the owner of the business is the difference between the total taxable income and documented expenses . St.14.1.56 of the Tax Code of Ukraine treats income as total income of the entrepreneur all activities received ( accrued ) during the reporting period in cash, tangible or intangible forms . A st.164.2.10 of the Tax Code of Ukraine includes property received as a gift in the tax base . Thus, received as gifts in the economic activity of the goods will be counted as income on the basis of the entrepreneur and st.177.1 of the Tax Code of Ukraine taxed at the personal income rate of 15 %.
For the avoidance of doubt such transactions, the auditors and to minimize tax risks, comply with gl.55 Civil Code regarding registration of contracts of donation. In the above case, the deed of gift of goods on the basis of st.719 of the Tax Code of Ukraine , preferably in writing. In addition, st.168.1 of the Tax Code of Ukraine provides for the obligation of a tax agent ( entrepreneur) to pay the tax on personal income in the budget in the case of a gift of any property to the individual. In order to avoid the ambiguity of interpretation of the status of the parties ( and, consequently, to additional employer — giver tax on personal income for donations were way) in the donation contract should specify that the donor and bestow side are business entities and the transaction is carried out in the framework of their economic activities . In the event of a dispute with the control , it is advisable to use Art. of the Tax Code of Ukraine 4.1.4 , which establishes a presumption of legality of decisions of the taxpayer if the rules of law are ambiguous interpretation of the rights and responsibilities of taxpayers. Challenge the conclusions of the tax may be administratively or judicially.
* St.14.1.10 of the Tax Code of Ukraine to non-monetary forms of payment are clearly barter ( barter ) transactions that provide for payments for goods in kind under a single contract .
** The Civil Code of Ukraine: Scientific and practical commentary.
Published August 2013.