Automatic exchange and controlled foreign companies: frequently asked questions. Tax resident status, resident of foreign exchange operations At least 183 days in

Who is a "tax resident" and how does it differ from a tax non-resident

In this article, I tried to answer all the questions related to, as well as with situations when the citizens of the Russian Federation, for some reason, were abroad of the Russian Federation for more than six months, while receiving regular income or managed to sell any 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 would ever understand - who are tax non-residents and how to define it - after all, the Tax Code of the Russian Federation (TC) does not have a clear and understandable definition of the concept of "tax resident" or the concept of "tax non-resident"

tax non-resident- this is an individual who is on the territory of 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, based on the provisions of the Tax Code of the Russian Federation, is given. 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, in the Letter of the Federal Tax Service of Russia dated 01.10.2012 N ОА-3-13 / [email protected] are given:

Agreement between the Government of the Russian Federation and the Government of the Republic of Cyprus "On the avoidance of double taxation with respect 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 08.02.1995 (Article 4).

(! ) At the same time, the Tax Code of the Russian Federation until 2017 did not contain provisions obliging taxpayers to notify the tax authorities of the fact of the loss of the status of a tax resident of the Russian Federation, as well as of confirmation of the status of a non-resident of Russia.

As we can see, for determining the status of an individual, only one criterion matters - the time spent on the territory of Russia, and other criteria (including citizenship) do not matter. At the same time (according to clause 2 of Article 207 of the Tax Code) nat. a person is considered to be located on the territory of the Russian Federation and in those cases when physical. a person leaves the territory of the Russian Federation for a short-term (less than 6 months):

• learning;

  fulfillment of labor or other duties related to the performance of work (provision of services) at offshore hydrocarbon deposits.

Note: it is important to note that the basis for taking into account the period of short-term training or treatment abroad in the number of days spent on the territory of the Russian Federation is the purpose of departure: short-term training 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 clarifications regarding short-term training can be found in the 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 treatment (training), indicating the time of the treatment (training), as well as a copy of the passport with the marks of the border control authorities about crossing the border (Letter of the Ministry of Finance of the Russian Federation of 06/26/2008 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 the pages of the 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. ОА-3-17 / [email protected], from 10.06.2016 N ZN-3-17 / [email protected]).

Documents confirming the actual stay of individuals outside the Russian Federation for study purposes may be copies of the pages of the 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 contracts with foreign educational institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated 15.10.2015 N ОА-3-17 / [email protected]).

The puzzle is the answer to the question of tax status for those persons who are going to leave Russia for a long time on a business trip or for permanent residence, in connection with which they sell their property - an apartment, land, house, garage, car and other property.

But this is a matter of principle 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 by 2.3 times is very significant.

Clarifications about whether taxpayers must confirm their status as a tax resident of the Russian Federation or not, and also does not say about the order in which tax agents should do this.

And if you consider that both the tax legislation itself and the opinion of the RF Ministry of Finance and the RF Federal Tax Service 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 for 12 consecutive months"?

In practice, this means that:

the presence or absence of citizenship of the Russian Federation is of no importance for determining the status tax resident (non-resident) does not have (i.e. both citizens of the Russian Federation and 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 the payment of 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 the 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 this tax period. If, at the end of the tax period, the employees of the organization did not acquire the status of a tax resident (they were in the Russian Federation for less than 183 days), their incomes received in this tax period are 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 in which the taxpayer was in Russia for 12 consecutive months.

This 183-day period also includes the day of entry into and exit from Russia. This conclusion is also 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. ОА-3-17 / [email protected]

Here it is necessary to pay attention to the fact that the 183-day period is not interrupted for periods of travel outside the Russian Federation for short-term (less than six months) treatment or training of the taxpayer.

Note: although:

we propose to proceed from:

For these reasons, to determine the status, I suggest:

• 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 real estate.

Our point of view was confirmed by the Ministry of Finance of the Russian Federation, which in its Letter dated April 21, 2016 No. 03-08-RZ / 23009 prohibited the use of letters in which this position was stated, since it contradicts tax legislation,

Features of the "tax non-resident" status

The status of "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;

determination of the status of a tax resident is made on each date of income payment (this rule is relevant when paying regular income (salary and other regular payments) and is aimed at not withholding excess tax from the moment the individual becomes a tax resident);

a refund of overpaid tax (personal income tax) can now be obtained only at the end of the calendar year and only through the tax office;

Note: the rule applies if the property is sold before December 31, 2018. From 01.01.2019, such income is exempt from personal income tax.

Personal income tax (PIT) tax rates for tax residents and non-residents

From the income that an individual has received, the following are established (TC):

for tax residents - 13%;

for tax non-residents - 30%.

For tax non-residents who are from July 1, 2010 income from employment are taxed with personal income tax at a rate of 13%.

In the opinion of the Federal Tax Service of the Russian Federation, the rate of 13% is applied if the corresponding payments are provided for by an employment or civil law contract. Other payments made in favor of foreign highly qualified specialists (material assistance, gifts, etc.) should 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 stay in the Russian Federation of citizens of the Republic of Belarus 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 prevention of tax evasion with respect 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, the remuneration received by a citizen of the Russian Federation or the Republic of Belarus in relation to work for hire, if (for example) between an organization and a citizen of the Republic of Belarus labor contract, providing for his stay on the territory of Russia for at least 183 days, such employee's income organizations received from sources in the Russian Federation, are taxed at a rate of 13 percent from the date of commencement of employment.

This conclusion is also 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).

Withholding tax at a higher rate and its recalculation are made only if the labor activity of the Belarusian worker 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 tax amount adjusted as a result of recalculation is performed by the individual independently - the tax agent is not obliged to withhold the amount of tax from his income. Penalties and fines in these cases are not charged.

Income under a civil law contract is equated to work for hire, therefore the tax agent withholds personal income tax from income paid to such a citizen of an EAEU member country 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 declaration of the patent article 227 1 of the Tax Code.

Features of taxation of citizens of Ukraine

The Governments of Russia and Ukraine signed an Agreement dated 08.02.1995 "On Avoiding Double Taxation of Income and Property and Preventing 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 has worked in Russia in total 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 clause 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 received temporary asylum on the territory of Russia,

The calculation and payment of personal income tax, as well as the filing of a tax return by foreign citizens engaged in employment in the Russian Federation on the basis of a patent issued in accordance with Federal Law No. 115-FZ of July 25, 2002, are made in accordance with the procedure established by Article 227 1 of the Tax Code.

Features of taxation for citizens of the Republic of Kazakhstan

Between the Russian Federation and the Republic of Kazakhstan, the Convention of 18.10.1996 "On the Elimination of Double Taxation and the Prevention of Evasion of Taxes on Income and Capital", hereinafter referred to as the Convention, is in force.

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 taxed only in the Republic of Kazakhstan if:

The recipient is located in Russia for a period or periods, not exceeding a total of 183 days in any 12 months;

The 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 plain language, 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 exempted from paying personal income tax in Russia from income (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), it is necessary to submit an 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 dated May 29, 2014 (entered into force on 01.01.2015), 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. 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 the Letter of the Ministry of Finance of Russia dated January 27, 2015 N 03-04-07 / 2703 and the Letter of the Federal Tax Service of Russia dated February 10, 2015 N BS-4-11 / [email protected]"On 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 dated 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 employment in the Russian Federation on the basis of a patent issued in accordance with Federal Law No. 115-FZ of July 25, 2002, are made in accordance with the procedure established by Article 227 1 of the Tax Code.

Peculiarities 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 01.01.2015, the Treaty on the Eurasian Economic Union entered into force. From the provisions of Article 73 of this Agreement, it follows that from 01.01.2015 income paid by Russian employers, including individuals, to citizens of Armenia under employment contracts, are taxed in Russia at a rate of 13 percent, regardless of the tax status of the recipients of these incomes, 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 entered 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 law 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 conclude a new agreement without leaving within 15 days;
• Since July 20, 2015, migrant workers who have arrived to work in Russia, as well as members of their families, are exempted from the obligation to register for migration within 30 days from the date of entry. When entering Russia according to documents that allow the marking of crossing the state border, citizens of Kyrgyzstan are exempt from filling out a migration card, provided that their stay does not exceed 30 days from the date of entry;
• Kyrgyz migrant workers are exempted 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 taxation of personal income", explained that:

The procedure for the return of personal income tax to a non-resident when changing status during the year

Since January 1, 2011, the procedure for returning personal income tax when changing status during a calendar year has fundamentally changed - now:

It is important to know that recalculation and subsequent refund of personal income tax occurs only for the year in which the taxpayer changed its status and 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 the return of the overpaid personal income tax.

Thus, from January 1, 2011, a special procedure was introduced for the return of personal income tax in connection with the recalculation of tax on income 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 of registration of the taxpayer at the end of the tax period upon submission of the following documents:

On the basis of 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 the signing by the tax authority and this taxpayer of an act of joint reconciliation of taxes paid by it, if such a joint reconciliation was carried out (paragraph 8 of Article 231 of the Tax Code).

Whether to use such recommendations or not is up to you. But one must bear in mind that such a 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 recommendations.

Required documents substantiating and confirming the status of a tax resident or non-resident

Whether taxpayers have to 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 13% and 30% income rates. But this is a very important issue, including for an accountant, since an organization as a tax agent must withhold and transfer to the budget the amount of personal income tax from income that it pays to employees, and since the rates are 2.3 times different, this is very significant moment.

From January 1, 2011, tax agents are required to independently develop tax accounting registers for data on individuals and determine the procedure for reflecting information in them. Such registers must contain data that make it possible to identify a taxpayer, determine his status, type and amount of income paid to him, deductions provided, dates of income payment, withholding and transfer of tax, as well as details of the payment order (the basis is paragraph 1 of Article 230 of the Tax Code of the Russian Federation ).

In other words, in order to substantiate the legality of the application of one or another order of taxation of income, 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 until 2017, such confirmation is possible on the basis of any documents that allow establishing the number of calendar days of stay of a physical 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 30.12.2015 No. ЗН-3-17 / 5083).

The Federal Tax Service has considered the appeal on 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 (residence) 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 - the Code) "Personal Income Tax". At the same time, the provisions of this clause do not contain an indication of the starting or ending dates, regarding which a report of a 12-month period should be produced, 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-SSh / 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 related to the taxpayer's obligation to calculate and pay tax on the income received by him for the relevant 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 from income received from sources outside Russia, which include the CFC's profit. In such a situation, tax residents are individuals who actually stay in the Russian Federation for at least 183 calendar days for the period from January 1 to December 31 of the corresponding calendar year.

The samples available on the site are relevant for both beginners and professionals. The samples have been compiled taking into account the current legislation. Some of the samples can be used without significant editing. You just need to add your specific circumstances to the content 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 your application will not be ignored. Contact us! We will help you draw up an application for you.

The specified period is determined by summing up all calendar days in 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, as well as 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 the days of actual stay in the Russian Federation?

The conditions that the specified 183 calendar days must go in a row, Art. 207 of the Tax Code of the Russian Federation does not contain. Therefore, the days required to determine residency 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 06.04.2011 N 03-04-05 / 6-228, dated 01.04.2009 N 03-04-06-01 / 72, Federal Tax Service of Russia in Moscow from 24.07.2009 N 20-15 / 3 / [email protected]).

For example, in the period from October 21, 2010 to October 20, 2011, an 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 9, 2011 (9 calendar days), he spent his vacation outside the Russian Federation;

From 5 to 24 March 2011 (20 calendar days) and from 1 to 22 July 2011 (22 calendar days) he was on a business trip abroad.

Thus, during 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 already confirmed as of June 3, 2011 (the 183rd day of being in the Russian Federation from October 21, 2010 to October 20, 2011).

Meanwhile, this period is not interrupted for 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, educational disciplines, medical institutions, diseases, as well as on the list of foreign countries (Letter of the Federal Tax Service of Russia dated 09.23.2008 N 3-5-03 / [email protected]). 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 of stay outside the Russian Federation is not taken into account when determining the days of stay on the territory of the Russian Federation (Letter of the Ministry of Finance of Russia dated 07.11.2008 N 03-04-05-01 / 411).

Thus, despite the fact that an individual has been on treatment or study abroad for, for example, 150 calendar days, i.e. was actually absent in the Russian Federation, the indicated time is considered the time of his stay in the territory of the Russian Federation.

At the same time, in the opinion of the Ministry of Finance of Russia, being abroad for the purpose of treatment (training) can be confirmed by the following documents: agreements with medical (educational) institutions or certificates issued by them on treatment (training) indicating the time of such treatment (training), and also copies of the passport with the marks of the border control authorities about crossing the border (Letter of the Ministry of Finance of Russia dated 26.06.2008 N 03-04-06-01 / 182).

For example, let's return to the conditions of the previous example and suppose that the employee of the "Alpha" organization I.I. Ivanov in the periods from December 31, 2010 to January 13, 2011 (14 calendar days), from March 5 to March 24, 2011 (20 calendar days) and from May 1 to May 9, 2011 (9 calendar days) was on treatment and (or) study abroad. In such a situation, his status as a resident of the Russian Federation is confirmed already as of April 21, 2011 (183 days of stay in the Russian Federation 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 in the territory of the Russian Federation and departure outside 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 01.12.2010 N 03-04-06 / 6-283, Federal Tax Service of Russia dated 04.02.2009 N 3-5-04 / [email protected]). Moreover, in the opinion of officials, the provisions of Art. 6.1 of the Tax Code of the Russian Federation in order to establish the status of a tax resident are not applied.

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 term of its actual presence on the territory of the Russian Federation begins to run from September 11, 2011 and lasts until October 20, 2011 inclusive. Thus, the term of the actual stay of this foreign citizen on the territory of the Russian Federation is 40 calendar days.

At the same time, a different approach is encountered in arbitration practice. Thus, the Federal Antimonopoly Service of the Central District in its Resolution of March 11, 2010 N А54-3126 / 2009С4 came to the conclusion that the date of entry into the territory of the Russian Federation is not included in the days of an individual's stay in Russia.

Note

You can learn more about the practice of arbitration courts on this issue in the Encyclopedia of Disputed Situations on Personal Income Tax and Contributions to Extra-budgetary Funds.

For example, we will use the conditions of the previous example, applying clause 2 of Art. 6.1 of the Tax Code of the Russian Federation.

In this case, the period of the 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.

Undoubtedly, 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 in the territory of the Russian Federation is additionally extended by the days of arrival in the Russian Federation.

Note that the calendar dates of arrival in the Russian Federation and departure from the territory of the Russian Federation in order to establish residency can be determined by the access control marks in the identity document, or on the basis of other documents.

Note

You can learn more about this in Sec. 1.2 "Documentary confirmation of the status of a resident or non-resident (time of stay 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 a tax resident of the Russian Federation. This can even happen within one month.

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11th of March

Description of the situation:

The Russian organization creates a representative office on the territory of the Republic of China. Two employees will work in the representative office: the head of the representative office is a resident of Russia (please note that the head of the representative office is not a citizen of Russia, but a stateless person) and an employee is a citizen of China. For employees, the representative office will be the main (permanent) place of work.

Question 1. Are we right to believe that from the point of view of Russian legislation, after 183 days, the head of the representative office will not be a resident of Russia? How important, then, is the fact that the leader is a stateless person?

Answer. The concept of a tax resident of the Russian Federation is contained in clause 2 of Art. 207 of the Tax Code of the Russian Federation: this is an individual who is actually in the Russian Federation for at least 183 calendar days within 12 consecutive months.

Consequently, a non-resident is an individual who is actually not in the Russian Federation for more than 183 calendar days during 12 consecutive months.

When determining the tax status of an individual, any continuous 12-month period is taken into account, determined on the corresponding date of receipt of income, including the one that began in one tax period (calendar year) and continues in another tax period (calendar year).

To determine the tax status of an individual, circumstances other than the period of his actual stay in the Russian Federation do not matter. So, for example, when determining tax residency, it does not matter whether or not the citizenship of the Russian Federation is present (Letter of the Ministry of Finance of the Russian Federation dated 19.03.2012 No. 03-04-05 / 6-318). Therefore, a citizen of the Russian Federation who is on the territory of the Russian Federation for less than 183 calendar days within 12 consecutive months will not be recognized as a tax resident of the Russian Federation, and a foreign citizen or stateless person who is in the Russian Federation for at least 183 calendar days during the next 12 months in a row, on the contrary , will be tax residents of the Russian Federation.

Taking into account the above, we believe that the head of a foreign representative office, who is actually in the territory of the Russian Federation for less than 183 calendar days during the next 12 months in a row, will not be recognized as a tax resident of the Russian Federation. It does not matter that he is a stateless person.

Questions 2, 3. How should a Russian organization or its representative office in China calculate, withhold and transfer tax from the listed income of the Head of the representative office during the first 183 days of his employment in the PRC: according to Russian (13%) or according to Chinese legislation?

Which of the listed types of income refer to income from sources in the Russian Federation, and which refer to income from sources outside the Russian Federation, and how should taxation of certain types of income be carried out during the first 183 days of stay in the PRC?

Answer. By virtue of Art. 7 of the Tax Code of the Russian Federation, international treaties of the Russian Federation containing provisions regarding taxation and fees have priority over the norms of the Tax Code of the Russian Federation.

Therefore, when answering the question asked, first of all, one should take into account the provisions of the Agreement "On avoidance of double taxation and prevention of tax evasion with respect to taxes on income", concluded on May 27, 1994 between the Government of the Russian Federation and the Government of the People's Republic of China (hereinafter referred to as the Agreement).

Clause 1 of Art. 14 of the Agreement stipulates that salaries, wages and other similar benefits received by a resident of a Contracting State in respect of employment shall be taxable only in that Contracting State, unless the employment is carried out in the other Contracting State. If the employment is carried on in this manner, the remuneration thus obtained may be taxed in that other Contracting State.

Thus, as a general rule, the salary received by a person with permanent residence in the Russian Federation for work performed in China may be taxed in China.

There is an exception to this general rule. So, paragraph 2 of Art. 14 of the Agreement states that, notwithstanding the provisions of paragraph 1, remuneration received by a resident of a Contracting State in relation to employment carried out in another Contracting State shall be taxed only in the first-mentioned Contracting State if:

a) the recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in the relevant calendar year; and

b) the remuneration is paid by or on behalf of an employer who is not a resident of the other Contracting State; and

c) the costs of the remuneration are not borne by the permanent establishment or fixed base which the employer has in the other Contracting State.

Taking into account the presence of the preposition "and" between the conditions given in this norm, we believe that for the application of an exception to the general rule, it is necessary to fulfill all three conditions in aggregate. That is, the fulfillment of all three conditions at the same time, established in paragraph 2 of Art. 14 of the Agreement, gives the right to exemption from taxation in China of remuneration received by a person with permanent residence in the Russian Federation for employment in China.

We believe that in the situation under consideration (that is, during the first 183 days of the presence of the Head of the representative office in China), all three conditions will be fulfilled. Therefore, the remuneration for the work received by the Head of the Representative Office will not be subject to income tax in China. After the period of stay of the Head of the Representative Office in China exceeds 183 days, there will no longer be any grounds for exemption of remuneration from income tax in China.

Thus, in our opinion, the salary of the Head of the Representative Office for work in China during the first 183 days will not be subject to income tax in China.

As for the provisions of the RF Tax Code on the issue under consideration.

According to Art. 207 of the Tax Code of the Russian Federation, personal income tax are recognized as taxpayers:

• individuals who are tax residents of the Russian Federation;
• individuals who receive income from sources in the Russian Federation who are not tax residents of the Russian Federation.

By virtue of Art. 209 of the Tax Code of the Russian Federation for individuals - tax residents of the Russian Federation, the object of personal income tax is income received from sources in the Russian Federation and from sources outside the Russian Federation, for individuals - non-residents - income from sources in the Russian Federation.

Thus, if an individual is a tax resident of the Russian Federation, he pays tax on income from sources in the Russian Federation and from sources outside the Russian Federation, and if an individual is not a tax resident of the Russian Federation, he will be recognized as a personal income tax taxpayer only in relation to income from sources in the Russian Federation. ; personal income tax is not paid on income received from sources outside the Russian Federation.

In accordance with sub. 6 p. 3 art. 208 of the Tax Code of the Russian Federation, remuneration for the performance of labor or other duties, the work performed, the service rendered, the commission of an action outside the Russian Federation is recognized as income of the taxpayer from sources outside the Russian Federation.

Thus, wages for performing work on the territory of a foreign state are recognized as income from sources outside the Russian Federation. The RF Ministry of Finance adheres to a similar opinion (Letters of the RF Ministry of Finance dated 11.04.2012 No. 03-04-05 / 6-490, dated 02.04.2012 No. 03-04-06 / 6-89, etc.).

Taking into account the above, we believe that if the head of the representative office of a Russian organization in China is a tax resident of the Russian Federation (during the first 183 days of stay in China), then the salary received by him from a Russian organization for performing labor duties in China is subject to personal income tax. rate of 13%. In this case, the employing organization will not be recognized as a tax agent in this case. By virtue of sub. 3 p. 1 art. 228 of the Tax Code of the Russian Federation, individuals - tax residents of the Russian Federation, receiving income from sources located outside the Russian Federation, calculate, declare and pay personal income tax independently at the end of the tax period.

Thus, in our opinion, the salary of the Head of the representative office for work in China during the first 183 days will only be subject to personal income tax at a rate of 13%.

It should be borne in mind that, unlike wages, other payments - for example, the amount of payment for the cost of renting residential premises and vehicles, the amount of payment for training, treatment of employees, etc. - are not remuneration for the performance of labor duties outside the Russian Federation. This follows from the provisions of Art. 207 of the Labor Code of the Russian Federation. Since these revenues are paid by the Russian organization, they are referred to as revenues from the sources of the RFF. A similar conclusion was made in the Letter of the Ministry of Finance of the Russian Federation dated 03.19.2012 No. 03-04-06 / 6-65.

Consequently, these incomes will be subject to personal income tax even after the Head of the representative office loses the status of a tax resident of the Russian Federation. The only difference is that while the Head of the Representative Office has the status of a tax resident, they will be taxed with personal income tax at a rate of 13%, and after he becomes a non-resident - at a rate of 30%. In either case, the employing organization making the corresponding payments fulfills the duties of a tax agent (clause 1 of article 226 of the Tax Code of the Russian Federation).

Question 4. The tax authority of which state should apply to the tax authority of the head of the representative office in order to avoid double taxation of his income?

Answer. Taking into account the above, we believe that in the situation under consideration (i.e., during the first 183 days of stay in the Russian Federation), the Head of the Representative Office does not experience double taxation, since the salary he receives should be subject to only personal income tax in the Russian Federation.

At the same time, the procedure for eliminating double taxation is established by Art. 232 of the Tax Code of the Russian Federation.

It follows from this rule that in order to be exempted from tax payment, offset, receive tax deductions or other tax privileges, the taxpayer must submit to the tax authorities an official confirmation that he is a resident of the state with which the Russian Federation has entered into a valid tax period (or parts of it) an agreement (agreement) on the avoidance of double taxation, as well as a document on the income received and on the payment of tax by it outside the Russian Federation, confirmed by the tax authority of the corresponding foreign state.

From the analysis of this rule, it follows that a taxpayer of personal income tax, whose income was taxed on income in a foreign state (in particular, in China), with which the Russian Federation has concluded an agreement on the avoidance of double taxation, in order to be exempted from paying personal income tax (offset, etc.) must submit to the tax authorities of the Russian Federation:

• official confirmation that he is a resident of China (the Ministry of Finance of the Russian Federation, in a Letter dated 30.11.2010 No. 03-04-06 / 2-275, indicated that this document applies to the calendar year in which it was issued);
• a document confirming the income received and the payment of tax by it in China, confirmed by the Chinese tax authority.

Confirmation can be submitted both before the payment of tax or advance tax payments, and within one year after the end of the tax period, as a result of which the taxpayer claims to receive tax exemption, offset, tax deductions or privileges.

Thus, in our opinion, income is exempt from double taxation in the above manner.

Question: An individual is a citizen of the Republic of Uzbekistan and has a residence permit in the Russian Federation. An individual has been living and working in the Russian Federation for three years. During the vacation period, twice a year for two weeks, an individual travels outside the Russian Federation. The organization withholds personal income tax from the income of an individual at a rate of 30% as from a tax non-resident of the Russian Federation.

An individual is recognized as a tax resident of the Russian Federation if he is actually in the territory of the Russian Federation for at least 183 days during 12 consecutive months preceding the date of receipt of income.

How to acquire the status of a tax resident of the Russian Federation: to be continuously in the territory of the Russian Federation for 183 consecutive days or to be on the territory of the Russian Federation for a total of 183 days in the 12 months preceding the date of receipt of income?

Is the organization obliged, upon a written application from an individual, to refund the amount of personal income tax in case of excessive withholding?

Answer:
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

The Department of Tax and Customs Tariff Policy considered the appeal on the issue of determining the tax status of an individual and in accordance with Art. 34.2 of the Tax Code of the Russian Federation (hereinafter - the Code) explains the following.

Clause 2 of Art. 207 of the Code establishes that tax residents of the Russian Federation are individuals who are actually in the Russian Federation for at least 183 calendar days within 12 consecutive months.

The period of an individual's stay in the Russian Federation is not interrupted for periods of his departure outside the Russian Federation for short-term (less than 6 months) treatment or training.

183 days of stay in the Russian Federation, upon reaching which an individual will be recognized as a tax resident of the Russian Federation, are calculated by summing up all calendar days in which an individual was in the Russian Federation for 12 consecutive months.

The tax status of an employee of an organization is determined by the tax agent for each date of income payment based on the actual time spent by the employee in the Russian Federation.

When determining the tax status of an individual, it is necessary to take into account the 12-month period determined on the date of his receipt of income, including the one that began in one tax period (calendar year) and continues in another tax period (calendar year).

If an employee of an organization is in the Russian Federation for more than 183 days during the 12 months preceding the date of receipt of income, such a person will be recognized as a tax resident of the Russian Federation and his income from sources in the Russian Federation is subject to taxation at a rate of 13 percent.

Based on the information contained in the letter in question, in tax periods, the number of days spent by an employee of an organization in the Russian Federation was more than 183 days. At the same time, from income from sources in the Russian Federation received by the specified individual, the personal income tax was unnecessarily withheld by the employing organization at a rate of 30 percent.

In the event of excessive withholding by an organization - a tax agent of personal income tax from the income of a specified individual, the amounts of excessively withheld tax shall be refunded to the taxpayer by the tax agent in accordance with the provisions of clause 1 of Art. 231 of the Code.

Refunds of tax amounts by the tax authority are made in accordance with clause 1.1 of Art. 231 of the Code in the event that at the time of income payment an individual was not recognized as a tax resident of the Russian Federation and acquired the status of a tax resident of the Russian Federation based on the results of the tax period.

Deputy Director

Department of Tax

and customs and tariff policy

S.V. RAZGULIN

Total: Clarified the procedure for determining the tax status of a foreign citizen and the rules for the return of unduly withheld personal income tax.

Asked in 2012.

Regarding the previous question No. 538049, I would like to clarify the following: In the passport of an employee from Uzbekistan there is a mark of arrival in the Russian Federation on December 17, 2014, and we hired him after receiving a patent on March 17, 2015. From what date can you count 183 days? And if he leaves for Uzbekistan within 12 months, count 183 days from the moment of the last crossing of the Russian border?

The period for which the number of days of stay in Russia is determined is 12 consecutive months (regardless of whether these months belong to the same calendar year or to different ones). A person is considered a tax resident if he has been in Russia for 183 days or more. In your case, since the employee has a mark of arrival on December 17, 2014 in his passport, 183 days should be counted from this date.

Departure outside Russia is only relevant for counting the number of days of stay in Russia and does not interrupt during a 12-month period.

If a person went abroad for treatment or education (for a period not exceeding six months), then the 12-month period is not interrupted. The duration of the trips is included in the calculation of 183 days. In this case, the purpose of the trip must be documented. If a person left Russia for other reasons (including in connection with the re-registration of migration documents, termination of the employment contract), then the 12-month period for determining the person's tax status is also not interrupted. However, the days of staying abroad should be excluded from the calculation of 183 days (letter of the Ministry of Finance of Russia dated May 26, 2011 No. 03-04-06 / 6-123). That is, if your employee leaves for Uzbekistan within 12 months, then the period is not interrupted, it will only be necessary to exclude the time spent abroad from the calculation of 183 days.

The rationale for this position is given below in the materials of the Glavbukh System

Determination of status

The status of the recipient of income is determined by the number of calendar days that a person has actually been in Russia for 12 consecutive months.

A tax resident is a person who has been in Russia for at least 183 days over the next 12 consecutive months.

A tax non-resident is a person who has been in Russia for less than 183 days during 12 consecutive months.

Calculation of the time of stay in Russia

The period of stay in Russia (less than or more than 183 days) is counted from the day of arrival (entry) to Russia to the day of departure (departure) from it inclusively. This calculation procedure is confirmed by the controlling departments (letters of the Ministry of Finance of Russia dated March 21, 2011 No. 03-04-05 / 6-157, dated July 4, 2008 No. 03-04-06-01 / 187, dated July 3, 2008 No. No. 03-04-05-01 / 228, Federal Tax Service of Russia dated February 4, 2009 No. 3-5-04 / 097).

If a person travels abroad, then the countdown of 183 days is interrupted until his return.

The only exceptions are foreign travel for short-term (less than six months) treatment or training. The duration of such trips is included in the calculation of 183 days, which are required to obtain resident status.

If during the next 12 consecutive months a person has been in Russia for less than 183 calendar days, he is a non-resident.

If a person travels abroad, then until he returns, the countdown of 183 days is interrupted. The only exceptions are foreign travel for short-term (less than six months) treatment or training.

In all other cases (including when on a business trip or vacation abroad), the period of stay abroad is not included in the number of days of stay in Russia.

An example of determining the tax status of a person (resident or non-resident) for personal income tax purposes. During the year, the person repeatedly went on business trips abroad.

The work of a citizen of Moldova A.S. Kondratyev is associated with business trips. During 2015 (365 days), he was sent three times on business trips abroad for a period of 100, 20 and 40 days (excluding the day of leaving Russia and returning to Russia). In total, the duration of business trips abroad was 160 days.

In addition, Kondratyev went on vacation abroad for 24 days (excluding the day of leaving Russia and returning to Russia).

In total, over the past 12 months, Kondratyev has spent:

• abroad - 184 days (160 days + 24 days);
• on the territory of Russia 181 days (365 days - 184 days), that is, less than 183 days.

Kondratyev is recognized as a tax non-resident *.

Valentina Akimova

State Adviser of the Tax Service of the Russian Federation, III rank

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