The use of UTII is allowed in relation to activities for the retail sale of goods through facilities that do not have sales floors. Such objects can be referred to as stationary retail chain (fairs, shopping malls, stationary vending machines, kiosks and other similar objects), and to non-stationary(tents, counters, stalls, containers, boxes, other similar objects). This rule is established by subparagraph 7 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation.

Retail space area

The procedure for calculating UTII for retail trade facilities that do not have sales floors depends on the area of ​​the retail space.

If the area of ​​the retail space is less than 5 sq. m, then the basic profitability indicator is 9,000 rubles. per month for one retail space (clause 3 of Article 346.29 of the Tax Code of the Russian Federation).

If the area of ​​the retail space is more than 5 sq. m, then the basic profitability indicator is 1800 rubles. per square meter per month (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). At the same time, to calculate UTII, it is necessary to take into account the entire area of ​​the retail space, including utility rooms, household premises, as well as premises for receiving, storing and preparing goods for sale (letter of the Ministry of Finance of Russia dated August 10, 2009 No. 03-11-09/274). Maximum size area of ​​retail space for purposes application of UTII not legally limited (letter of the Ministry of Finance of Russia dated December 15, 2009 No. 03-11-06/3/289).

For information on how to calculate UTII for delivery and distribution trade, see How to calculate UTII for delivery (distribution) trade and sales through other objects of a non-stationary network .

Calculate UTII taking into account the rented area of ​​the sales area.

For the tenant organization, the area received for rent is part of the area of ​​the stationary facility trading network having shopping room(Article 346.27 of the Tax Code of the Russian Federation). Regardless of what object is located there (display stand, tray, stand, etc.), UTII in this case must be calculated based on the area of ​​the rented sales area (in sq. m). The size of this area must be specified in the lease agreement. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated May 17, 2007 No. 03-11-04/3/164.

Correction factors

In addition to the physical indicator and basic profitability, when calculating UTII per quantity retail places use values:

• deflator coefficient K1 (clause 4 of article 346.29 of the Tax Code of the Russian Federation);

• correction factor K2 (clause 4 of article 346.29 of the Tax Code of the Russian Federation).

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

Tax rate

If local authorities have not established 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

The procedure for determining the tax base for UTII depends on the area of ​​retail outlets.

For all trading places, the area of ​​​​which is less than 5 square meters. m, the tax base for the quarter is determined by the formula:

If during the quarter the number of retail locations 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).

For all trading places, the area of ​​​​which is more than 5 square meters. m, the tax base for the quarter is determined by the formula:

The value of the physical indicator - the area of ​​retail places - 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). Rounding the size of the physical indicator, its value is less than 0.5 sq. m discard, and 0.5 sq. m or more, round to the nearest whole unit (letter of the Ministry of Finance of Russia dated June 16, 2009 No. 03-11-11/111). In this case, rounding is carried out in relation to the total area of ​​​​all retail places. Include the area of ​​each retail space in the calculation without rounding (for example, 15.42 sq. m). This follows from the letter of the Ministry of Finance of Russia dated November 15, 2011 No. 03-11-06/3/116.

If during the quarter the area of ​​retail spaces 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).

If during the quarter the organization used retail spaces of various sizes (less than and more than 5 sq. m), then the total tax base for the quarter will be:

Calculation of UTII

Having determined the size of the tax base, calculate the amount of UTII using 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. ММВ-7-3/13.

An example of calculating UTII from retail trade through facilities that do not have sales floors. The number of retail locations changed during the tax period

Alpha LLC sells retail through a tent located at the food market and applies UTII.

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

The area of ​​the tent that the organization used until February 8 was 4 square meters. m. From February 10, the area of ​​the tent was increased by one and a half times and amounted to 6 square meters. m. Thus, when calculating the tax base for UTII for the first quarter, the following indicators are used:

• in January - 1 retail space;
• in February - 6 sq. m;
• in March - 6 sq. m.

Imputed income for calculating UTII for the first quarter was:

• for January: 9000 rub./trade. place × 1 bargain. place × 0.7 × 1.798 = 11,327 rubles;
• for February-March: 1800 rub./sq. m × (6 sq. m + 6 sq. m) × 0.7 × 1.798 = 27,186 rubles;
• total for the first quarter: RUB 11,327. + 27,186 rub. = 38,513 rub.

The amount of UTII for the first quarter is equal to:

RUB 38,513 × 15% = 5777 rub.

Is it necessary to take into account the area in front of a retail outlet when calculating UTII?

Is the area of ​​the staircase included in the calculation of the “imputed” tax?

How is the area of ​​a hall rented by several merchants taken into account?

Retail trade can be transferred to UTII. Trading activities can be carried out through shops and pavilions with a sales area of ​​no more than 150 square meters. m for each trade facility (subclause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation), or through objects of a stationary retail chain without trading floors, as well as objects of a non-stationary retail chain (subclause 7, clause 2, article 346.26 of the Tax Code of the Russian Federation). In this case, the “imputed” tax will be calculated based on the physical indicator “sales area” or the “trading place” indicator. Let us remind you that if the area of ​​the retail space exceeds 5 square meters. m, then UTII should be paid based on the area.

The area of ​​the sales area is determined on the basis of inventory and title documents. These are considered to be any documents available to the individual entrepreneur for the retail chain facility, which contain information about the purpose, design features and layout of the premises, information confirming the right to use the facility. For example, a purchase and sale or lease agreement, a technical passport, plans, diagrams, explanations, permission to serve visitors in an open area.

For the purposes of UTII, the area of ​​the trading floor includes part of the store, pavilion (open area) occupied by equipment intended for displaying, demonstrating goods, conducting cash payments and servicing customers, the area of ​​cash registers and cash registers, the area of ​​workplaces service personnel, as well as the area of ​​aisles for customers. The area of ​​the trading floor also includes the rented part of the trading floor area. The area of ​​utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, does not apply to the area of ​​the trading floor on UTII (Article 326.27 of the Tax Code of the Russian Federation).

The law talks about internal passages of buyers, that is, passages between display windows, passages to cash registers, etc. When determining the area of ​​a sales floor (sales place), is it necessary to take into account the area of ​​external passages for customers?

Area around the outlet

Is the area immediately adjacent to the retail outlet taken into account when calculating UTII? For example, a businessman rents a retail outlet at the market (a tray for displaying and demonstrating goods). The structure is fenced off from the market area by a counter; customers have no access directly to the trading area.

Let's assume the area of ​​the retail space is 5 square meters. m, but in the lease agreement, in addition to the area of ​​the retail space itself, the area in front of the retail outlet is indicated. Often, free market space is distributed among tenants in proportion to the area of ​​the occupied retail space. In addition to the area occupied by the sales tray, the tenant is given a certain part of the area in front of the tray. Despite the fact that the area of ​​passages for buyers is the total area of ​​the market, according to the agreement it is transferred to the businessman. UTII is calculated based on the area indicated in the documents, which means that the area of ​​passages must also be taken into account.

This is precisely the conclusion made in the letter of the Ministry of Finance of Russia dated May 26, 2009 No. 03-11-09/185. It turns out that UTII will have to be paid not from the “trading place”, but based on the “area”, because the limit is 5 square meters. m exceeded. It is unlikely that it will be possible to prove the opposite, because the area, firstly, is indicated in the title documents (in the contract), and must be based on them, and, secondly, it is used when serving customers - customers can approach the entrepreneur’s outlet.

Inclusion in the calculation of UTII of the area in front of the entrepreneur's trading place is legal, says the resolution of the Federal Arbitration Court of the North Caucasus District dated May 11, 2004 No. F08-1934/2004-741A.

Another situation: a businessman rents a container. Under the terms of the agreement, the entrepreneur is given a land plot with a total area of ​​25 square meters. m, of which 20 sq. m occupies a container, 5 sq. m - the area in front of the container where the goods are placed and customer service is provided. What is considered a trading place?

If the site is in front of the container, then UTII can be calculated based on the physical indicator “trading place”. If you sum up the area of ​​the container itself and the area in front of it, then the restriction is violated, and the tax will have to be calculated based on the “sales area” indicator. For a businessman, the first option is more profitable, but inspectors, and after them judges, point to the correctness of the second option.

The Tax Code does not contain any rules for the distribution of retail space. Under the terms of the agreement, the businessman receives a plot of 25 square meters. m, from which UTII must be paid. Even if the contract states that the container is used only for storing goods and preparing for sale, and customer service is provided only in the area in front of the container, it will not be possible to calculate UTII based on the “trading place” indicator.

Indeed, there is a rule that utility, warehouse, administrative and other auxiliary premises are not included when calculating UTII in the area of ​​the trading floor. But it only applies to fixed network objects. A retail space consisting of a container and an open area in front of it is not such.

The Russian Ministry of Finance notes that the code does not provide for a reduction in the area of ​​a retail space by the area where goods are stored or pre-sale preparation is carried out (letter dated July 17, 2008 No. 03-11-04/3/328). Moreover, if a businessman independently allocates part of the area, designating it as utility rooms, this will not affect the calculation of UTII. The tax will have to be paid on the entire area point of sale(letter of the Ministry of Finance of Russia dated August 10, 2009 No. 03-11-09/274).

Another letter from the financial department discusses a situation where an entrepreneur rents a retail space with an area of ​​30 square meters. m., with 20 sq. m. of which are a passage for buyers from one part of the building to another. And in this case, when calculating UTII, the entire area should be taken into account. There is no provision for reducing the area of ​​a retail space by the area of ​​aisles for customers (letter dated March 21, 2008 No. 03-11-05/67).

Is the entrance area to a store counted on UTII?

What about the entrance area to the store? Even if it is only a few meters, I would like to subtract them from the area on the basis of which UTII is determined.

The answer again depends on the documentation for the object. The Ministry of Finance of Russia in letter dated May 15, 2007 No. 03-11-04/3/159 indicates: if the entrance area is included in the total area of ​​the trading floor, then it must be taken into account when calculating UTII. It is difficult to exclude this part of the object from the calculation. Even if in the technical passport or other document this area is not included in the sales floor area, it will most likely be designated as a passage area for visitors, which is included in the calculation.

Now a few words about the area of ​​passages between departments. If a businessman completely owns an object, say, a businessman rents a hall divided into several departments, the entire area must be taken into account. Of course, excluding utility rooms and other auxiliary premises. If a businessman rents a trading floor, but the aisle area is not transferred to him under the terms of the contract, then UTII is paid only from the rented space. The inspectorate may try to charge additional tax by including customer passages in the calculation. Even if, according to the explication of the building, the passages belong to the trade zone, but only the hall was transferred to the merchant under the terms of the agreement, the court will be based on the lease agreement and the UTII will be calculated based on the area transferred for use to the individual entrepreneur (resolution of the Federal Arbitration Court of the North-Western District dated February 4, 2008 No. A56-2078/2007).

A similar conclusion can be drawn from the letter of the Ministry of Finance of Russia dated January 22, 2009 No. 03-11-06/3/05, which considers the situation when the trading floor is leased to different tenants. UTII must be calculated based on the size of the rented area of ​​the retail space, including aisles for customers, determined on the basis of the lease agreement. It turns out that if under the contract the passage areas are not leased, they do not need to be taken into account. Therefore, you can try to negotiate with the landlord to transfer only the retail space to the merchant, without including the area of ​​aisles for customers, and pay for it separately or simply increase the rent proportionally.

Another controversial area in the store is the stairs between the sales areas. It also needs to be taken into account when calculating UTII if it is transferred to the merchant under a lease agreement. If the staircase is common to pavilions located in mall and it is not specified in the contract, then it does not need to be taken into account.

For example, in the resolution of the Federal Arbitration Court of the North Caucasus District dated May 11, 2004 No. F08-1934/2004-741A, the judges agreed that the area immediately in front of the retail outlet should be included in the calculation of the “imputed” tax, but part of the area staircase to the area used by the entrepreneur in trading activities, the court excluded it from the calculation of UTII.

Suppose a businessman owns trading floors located on different floors of the same building. In this case, the contract must clearly stipulate the ownership of the areas. If, according to the documents, trading floors located on different floors belong to the same facility of a stationary retail chain, then the total area of ​​the halls should be determined taking into account the area of ​​the stairs. Here the limit of 150 sq. m. may be violated. m and then the merchant will lose the right to work for UTII.

If the trading floors, according to the documents, belong to different retail facilities, then when calculating UTII, the areas are taken into account separately, they do not need to be summed up. In this case, the question must be decided which of the two halls the staircase belongs to. Since it cannot be excluded from the calculation, its area will have to be assigned to one of the halls or divided.

In order for the area of ​​the halls to be taken into account separately, in addition to dividing the retail space according to documents, it is necessary to organize separate accounting for each object. And if an individual entrepreneur conducts calculations using cash registers, then each room should have its own cash machine, then the area may not be summed up when determining the right to “imputation”.

Judicial practice shows that when assigning aisles for customers to a sales area (shopping area), the main role is played by the terms of the lease agreement. If the landlord included the area of ​​aisles in the sales area, then this indicator should be taken into account when calculating the single tax on imputed income.

• When single tax Is it calculated based on the availability of retail space?

• On what basis is the area of ​​the hall determined?

Olga Mishchenko, magazine expert

Trading floor or retail space?

How to calculate “imputed” tax

The “imputed” tax for retail trade is calculated on the basis of one of the indicators: “sales area”, “trading place”. The basic yield in the first case is 1,800 rubles per sq. m. m, in the second - 9,000 rubles per place. If a businessman rents a premises larger than 5 sq. m. m, it is more profitable for him not to call it a hall (5 x 1800 = 9000). Unfortunately, you won’t be able to choose at your own discretion.

Hall - an area (including rented) intended for the passage and service of customers, where equipment for demonstrating products is located. That is, if consumers can go inside the premises where they can examine and purchase goods, the tax is determined based on the area. These include shops and pavilions.

Sales through premises that do not have a hall for customer service and display of goods are subject to a single tax based on the indicator “trading

The trading place is used only for making purchase and sale transactions, that is, transferring goods and receiving payment

place". This becomes a place used only for making purchase and sale transactions, in other words, transferring goods and receiving payment.

Often the choice of indicator depends on how the merchant equips the point. For example, individual entrepreneur rents part of the retail space in the store of 14 sq. m. m. There are demonstration stands and counters, and between them there is a small path for visitors. In fact, it is impossible to serve people in such an area. The Russian Ministry of Finance, in letter dated March 15, 2005 No. 03-06-05-05/27, calls the “path” a trading floor. Since customers have the opportunity to go inside, the businessman must take into account the area. The same applies to merchants who rent part of the hall of a hypermarket or any self-service store. After all, buyers pass between the racks located in the rented area. Doesn't matter

Often the choice of indicator depends on how the merchant equips the outlet

that the passages are common to all shopping areas owned by different entrepreneurs (letter of the Ministry of Finance of Russia dated March 24, 2006 No. 03-11-05/77). Only when a retail outlet is equipped so that visitors do not have access to the pavilion, for example, a counter is installed, then it will be a trading place.

Deceptive document

The area of ​​the sales area is taken from inventory and title documents. These include any papers for the premises, which contain information about its purpose, features, as well as confirming the right of use - registration certificate, plan and diagrams of the building, explications, lease or sale agreement. For example, the lease agreement states that a businessman receives a premises of 100 square meters. m, of which 90 sq. m are intended for trade, and 10 are for storing goods. In this situation, the tax is determined only from 90 square meters. m. The fact is that in the calculations of UTII, utility rooms, warehouses,

When buyers have the opportunity to go inside the premises where they can view and purchase goods, UTII is determined based on the area of ​​the hall

areas where goods are received, stored, and prepared for sale. An exception is that if these territories are actually used for sales, buyers are allowed here. Then they are taken into account (letter of the Ministry of Finance of Russia April 24, 2006 No. 03-11-05/109). As an example, we note the resolution of the Federal Arbitration Court of the East Siberian District dated March 28, 2006 No. A19-20211/05-9-F02-1181/06-S1, where the entrepreneur indicated in the contract that of the rented 84 sq. m retail area is 1 sq. m, from which he paid UTII. The step is quite risky, as it attracts the attention of controllers. The businessman was lucky that the inspectors could not prove otherwise, and the judges proceeded from the information in the documents.

You should not abuse this move, nor should you blindly focus on papers. Even if the premises in the technical passport, contract, or any document are not called “store” or “pavilion”, but it is indicated that it is, say, a warehouse. The status for selecting an indicator is determined based on actual use (letter of the Ministry of Finance of Russia dated October 15, 2004 No. 03-06-05-05/11). Where visitor access is real, UTII is taken from the area.

Instructions

If the retail facility has several rooms, each with an area of ​​no more than 120 square meters. m, then when calculating UTII, the area of ​​each such premises is taken into account separately if they are used as trading floors. If the premises are used as utility rooms, then no tax is paid for their use.

The basis for determining the area of ​​the sales area is the indicator specified in the inventory document. This paragraph applies to taxpayers who own the object of taxation of UTII.

If there is a discrepancy between the technical passport and the area of ​​the sales area due to redevelopment, then it is necessary to conduct a planned technical inventory. A document about this in the future will be the basis for paying imputed tax.

It is necessary to submit a corresponding application to the tax authority to change the retail space and attach a copy of the results of the technical inventory.

If the retail space is leased, then a document confirming the area of ​​the sales area may be a written annex to the lease agreement. It should spell out in detail which area is used for trade itself and which for storage needs. In this case, during the audit, this document is presented to the tax office.

note

According to Art. 346, 27 of the Tax Code of the Russian Federation, the area of ​​warehouse, administrative and utility premises is not included in the area from which UTII is subject to payment.

Helpful advice

If tax inspectors reveal violations in the reflection of the real area of ​​the UTII object in the declaration and understatement of income, an additional charge of unpaid tax is made for the entire period of use of the premises, unless the merchant can prove otherwise. However, there are precedents when the decision of the tax authorities to charge additional UTII and a fine was challenged and overturned by a court decision.

Sources:

• Commentary from the Ministry of Finance of the Russian Federation on this issue
• Description of the judicial precedent for the payment of UTII

The single tax on imputed income is calculated based on the basic profitability and coefficients K1 and K2. They, as a rule, depend on the region in which the activity is carried out. From your tax office you need to purchase a reminder about the imputed tax in your region.

You will need

• Calculator and "Decision on the taxation system in the form of a single tax on imputed income"

Instructions

Helpful advice

It is convenient to generate a report in the Taxpayer Legal Entity program

Sources:

• how is UTII calculated?

To determine a trader, use the five features specified in the Tax Code of the Russian Federation. Only in this case, the services of renting out retail space are subject to the application of such a Single Imputed Income Tax.

You will need

• Tax Code of the Russian Federation.

Instructions

When opening a retail store trading enterprise Special attention pay attention to the choice of a trading place, focusing on 5 signs given in the Tax Code of the Russian Federation.

First of all, choose a part of real estate for a trading place: buildings, buildings, structures or a separate land plot. Choose a trading place to use for the purpose of providing organization services for the public Catering or carrying out retail sales transactions.

As confirmation of the purpose of the trading place, use title or inventory documents, or the very fact of providing services for the public catering or conducting a retail sale.

Only in this case can you apply the Single Tax on Imputed Income to this species activities. If a part of the area rented for a trading place is subleased, it is also subject to the Single Tax charged on imputed income.

Also take into account that a trading place cannot have trading floors in order to be able to apply the Single Imputed Income Tax, and can also be located in stationary trading network facilities that do not have trading floors. Such objects include markets, kiosks, shopping malls, trade and similar objects. An object is recognized as a stationary trading network if the fact of its use for conducting trading activities is confirmed.

Use for trading not only a stationary trading place, but also a mobile and / or collapsible one. Services for the transfer to rent (temporary possession, temporary use) of a selected place for trade located in one of the objects of a stationary trading network, only if all five requirements are met, are subject to the Single Imputed Income Tax.

Video on the topic

note

The law does not clarify who is obliged to prove the actual use of the object as an object of trade - the taxpayer or the tax authority.

Helpful advice

Stationary trade network - a trade network located in buildings, structures, buildings intended and / or used for the organization of trade, connected to communication networks.

When calculating the unified tax on imputed income payable by entrepreneurs engaged in retail trade different goods, the question arises of how to correctly calculate the area of ​​the sales floor. It depends on the correct calculations whether you correctly determine the tax base for UTII.

You will need

• - Letter of the Ministry of Finance of the Russian Federation dated February 24, 2011 No. 03-11-11/43.

Instructions

Consider a specific implementation entrepreneurial activity, for example, for automotive parts and motor oils in the same sales area. The peculiarity of the situation is that motor oil is an excisable product and requires a simplified taxation system (STS), and the sale of spare parts requires the payment of UTII. It is required to calculate the area of ​​the hall to determine the tax base for the "imputation".

Determine whether your retail space meets the requirements for an object in terms of the possibility of applying a single tax on imputed income. In accordance with tax legislation UTII applies to retail trade carried out through pavilions or stores with a sales floor area of ​​no more than 150 square meters. m (for each object trade organization).

Calculate the basic profitability indicator, referred to in the legal regulations as “sales area (in square meters).” The trading floor should include the part of the pavilion or store that is occupied by equipment intended for displaying goods, demonstrating them, and making payments to customers. This also includes the space occupied by cash registers, staff workplaces, as well as aisles for customers.

In the calculations, do not take into account the areas occupied by administrative and premises, as well as premises where goods are received, stored, prepared for sale, that is, those areas where customer service is not provided.

Apparently, no one is going to “liquidate imputations as a class” in the near future. This means that questions regarding are still relevant.
Many of the imputators are engaged in retail trade. And the single tax is calculated based on such physical indicators as retail space or area of ​​retail space (Clause 3 of Article 346.29 of the Tax Code of the Russian Federation). But it is not always easy for an accountant to determine what status a retail facility has and, accordingly, what physical indicator should be used for calculation. Let's try to be clear.

For reference
If trade is carried out through a stationary retail chain facility with a sales area of ​​no more than 150 square meters. m, then UTII is calculated based on the physical indicator " sales area". If there is no trading floor, then you need to use either the indicator " trading place", if its area does not exceed 5 sq. m, or " retail space area", if its area exceeds 5 sq. m.

Is the purpose of the premises for “imputed” trade important?

First, you need to figure out where you can organize the sale of goods at retail in order to safely apply UTII.
Retail trade is transferred to imputation if it is conducted through stationary retail chain facilities(Subparagraphs 6, 7, paragraph 2, Article 346.26 of the Tax Code of the Russian Federation). These, in turn, include buildings (structures, premises, etc.), intended or used for trading activities(Article 346.27 of the Tax Code of the Russian Federation). The purpose of the premises is indicated in the title and/or inventory documents. These include a purchase and sale or lease agreement, a technical passport, plans, diagrams, and explications.
It would seem that the words " used for trading activities" allow the use of imputation when trading in any objects, even those that are not commercial in their intended purpose. For example, in a premises located in a warehouse or in an industrial zone. And the Ministry of Finance in one of the Letters indicated that the purpose of the premises must be determined not only by documents , but also in fact: how it is actually used (Letter of the Ministry of Finance of Russia dated April 30, 2009 N 03-11-06/3/113).However, in their later explanation, the financiers made it clear that the sale of goods in the office does not translate into UTII (Letter of the Ministry of Finance of Russia dated January 23, 2012 N 03-11-06/3/2).
There are also two Resolutions of the Supreme Arbitration Court of the Russian Federation, in which the court considered the use of imputation unlawful due to the fact that the goods were sold in premises not intended for this purpose: in the first case - in an administrative office building, in the second - in a production workshop (Resolutions of the Presidium of the Supreme Arbitration Court RF dated 01.11.2011 N 3312/11, dated 15.02.2011 N 12364/10).

Conclusion
Tax authorities do not use such an argument as “inconsistency with the purpose of the premises” in courts. And if they refer to him, then, as a rule, he is not the first on the list of complaints. But it is absolutely safe to use imputation only when selling goods in designated places.

How to determine the area of ​​a sales area

In most letters, regulatory authorities, quoting the Tax Code, say that the area of ​​the sales floor is determined according to inventory and title documents(Letters of the Ministry of Finance of Russia dated November 15, 2011 N 03-11-11/284, dated September 26, 2011 N 03-11-11/243). A similar situation, by the way, is with the area of ​​a retail space (Letter of the Ministry of Finance of Russia dated December 15, 2009 N 03-11-06/3/289).
Often, disputes between tax authorities and entrepreneurs arise due to the fact that the documents indicate one area of ​​the hall, but another, usually smaller, one is used for retail trade. According to the courts, the “imputed” tax should be calculated based on the area actually used in the “imputed” activity, and not stated in the documents (Resolution of the Federal Antimonopoly Service ZSO dated May 26, 2010 in case No. A75-512/2009; FAS UO dated April 19, 2010 N Ф09-2486/10-С3). But you also need to be able to prove this. In the absence of partitions, testimony, photographs or other evidence confirming that only part of the area was used for trade, the courts side with the tax authorities (Resolutions of the Federal Antimonopoly Service dated October 14, 2010 in case No. A72-16399/2009; Federal Antimonopoly Service of the Russian Federation dated July 15, 2011 N Ф03-2543/2011).

Advice
If you rent premises, but only use part of it for retail, make sure that the lease agreement clearly states everything regarding the area you occupy.

If you rent out some part of the sales area (sublease), you do not need to take its area into account when calculating the “imputed” tax, including if no changes have been made to the inventory documents (Resolution of the Federal Antimonopoly Service of the Far East of Russia dated January 13, 2011 N F03-9441 /2010) (which is basically impossible in a situation with sublease).
squares premises for receiving and storing goods, administrative and utility premises and so on. (let's call them auxiliary) are not taken into account when determining the area of ​​the sales floor (Article 346.27 of the Tax Code of the Russian Federation). There will be fewer claims from inspectors if such premises are physically separated from the trading floor itself (Letter of the Ministry of Finance of Russia dated March 26, 2009 N 03-11-09/115). Once, the court supported the imputation, relying on the lease agreement, according to which the tenant installed easily removable partitions to separate the sales area from the warehouse premises (Resolution of the Federal Antimonopoly Service ZSO dated October 18, 2010 in case No. A45-7149/2010).

We warn the manager
If the purpose of the area used in trading activities has changed or the area of ​​the trading floor has changed, on the basis of which the single tax is calculated, in order to avoid disputes with inspectors, it is better to reflect this in inventory documents.

Showroom can also be a trading floor if goods are sold there. This required condition(especially in the light of the decisions of the Supreme Arbitration Court of the Russian Federation on the possibility of trading only in places designated for this). If different premises are allocated for the demonstration of goods, their payment and release, then the tax is calculated based on the sum of the areas of all these premises (Letter of the Ministry of Finance of Russia dated September 17, 2010 N 03-11-11 / 246). And, at least once, the court agreed with this approach (Resolution of the FAS VSO dated July 26, 2010 in case N A33-14088 / 2009).
It also happens that an entrepreneur (organization) immediately takes several rooms in one building and sells goods at retail in all of them. For example, an organization rents several separate retail facilities on different floors in a shopping center. Then you can easily calculate UTII for each premises separately (Letters of the Ministry of Finance of Russia dated 01.02.2012 N 03-11-06/3/5, dated 03.11.2011 N 03-11-11/274; Federal Tax Service of Russia dated 02.07.2010 N ShS-37-3/5778@).
But one room can be used for trade, simply divided into several departments, for example, by the type of goods sold. Sometimes they do this because different groups goods in the regions, different K2 coefficients are established (Clause 7 of Article 346.29 of the Tax Code of the Russian Federation). And sometimes this becomes the only chance for the imputed person not to “fly off” the UTII. After all, there is a limit on the sales area of ​​150 square meters. m. How to calculate the “imputed” tax in this case?
The regulatory authorities reason as follows: if the premises are located in the same building and according to the documents they belong to the same store, then the areas need to be summed up (Letter of the Ministry of Finance of Russia dated 02/01/2012 N 03-11-06/3/5). In this case, whether the premises belong to the same object or to different ones is established, naturally, according to the inventory documents for the premises (Letter of the Ministry of Finance of Russia dated November 3, 2011 N 03-11-11/274).
For courts, the information contained in them is not the absolute truth. They pay attention to the isolation of premises (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 06/08/2011 N KA-A41/5949-11), to the presence in each store of its own cash register, its own auxiliary premises, its own staff of employees, to separate accounting of income, the range of goods sold, target purpose of each part of the premises (Resolutions of the Federal Antimonopoly Service dated September 26, 2011 in case No. A55-426/2011; FAS North Caucasus Region dated June 1, 2011 in case No. A53-16868/2010).
In general, whatever your motives for dividing the total area into several parts, it is better to physically separate the rooms from each other, for example with partitions.

Note
When conducting “imputed” trade and other types of activities in one premises for which the general taxation regime or the simplified tax system is applied, the “imputed” tax must be calculated from the entire area of ​​​​such premises (Letters of the Ministry of Finance of Russia dated March 29, 2011 N 03-11-11/74 , dated 06/07/2010 N 03-11-11/158; Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02.11.2010 N 8617/10, dated 10.20.2009 N 9757/09).

How to determine the area of ​​a retail space

The Tax Code does not say what the area of ​​a retail space is and how it is determined. According to the Ministry of Finance, when calculating it, it is necessary to take into account not only the area where the goods are directly sold, but also the area of ​​auxiliary premises(Letters of the Ministry of Finance of Russia dated December 26, 2011 N 03-11-11/320, dated December 22, 2009 N 03-11-09/410). That is, if you rent a container, part of which you use for selling goods, and the other part as a warehouse, then the tax must be calculated on the entire area of ​​the container (Letter of the Ministry of Finance of Russia dated December 22, 2009 N 03-11-09/410).
Last year, this issue was considered by the Supreme Arbitration Court of the Russian Federation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 N 417/11). Regarding the area of ​​the retail space, the court said that it is determined taking into account all the premises that are used for receiving and storing goods. And since then, there is no more discord in the courts (Resolutions of the Federal Antimonopoly Service of the North Caucasus Region dated August 31, 2011 in case No. A53-22636/2010; FAS Eastern Military District of September 28, 2011 in the case No. A29-1419/2011).
But when renting land plot, where goods are sold through a small kiosk with an area of ​​more than 5 square meters. m, according to the explanations of the Federal Tax Service, you need to calculate UTII only from the kiosk area (Letter of the Federal Tax Service of Russia dated June 25, 2009 N ShS-22-3/507@).

Conclusion
It turns out that in some situations it is more profitable for entrepreneurs to insist that they operate in a room with a trading floor. After all, then they will be able to pay tax on a smaller area.

Trading floor or retail space?

This is perhaps the most common and most complex issue, as evidenced by the abundance judicial practice.
When can we talk about the presence of a sales area? When a certain place is allocated in the room for buyers, where they can, moving from one shelf with goods to another, get to know the goods more carefully. Naturally, a retail space cannot have a hall. Usually it is a counter or a showcase from which the sale is carried out, and buyers can only stand near it and look at the displayed goods.
According to the Federal Tax Service, if the title and inventory documents for the premises do not indicate anywhere that this is a “shop” or a “pavilion”, or if some part of the premises is not clearly defined as a “trading floor”, then such a premises is considered an object of a stationary retail chain without a trading floor (Letters of the Federal Tax Service of Russia dated 05/06/2010 N ШС-37-3/1247@, dated 07/27/2009 N 3-2-12/83).
Some courts even come to the conclusion that the list of objects that may have a sales area is exhaustive, that is, it must be either a store or a pavilion (Resolution of the Federal Antimonopoly Service of the Moscow Region dated August 14, 2009 N KA-A41/6419-09). So, for example, in a former warehouse the presence of a sales area still needs to be proven. And in a container-type pavilion it is a priori, because it is a pavilion (Letter of the Ministry of Finance of Russia dated December 3, 2010 N 03-11-11/310).

For reference
Shop- a specially equipped building (part of it), intended for the sale of goods and provision of services to customers and provided with retail, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale.
Pavilion- a building that has a sales area and is designed for one or more workplaces (Article 346.27 of the Tax Code of the Russian Federation).

In general, if your retail area does not exceed 5 square meters. m, there is no point in arguing about which physical indicator should be used when calculating tax. After all, the basic profitability when selling goods on the sales floor will be a maximum of 9,000 rubles. (1800 rubles x 5 sq. m), and exactly the same amount is the basic profitability of a retail space (Clause 3 of Article 346.29 of the Tax Code of the Russian Federation). And the hall is less than 5 square meters. m (when taxable income would be less) is difficult to imagine. The K2 coefficients adopted by regional authorities (Clause 4, 7, Article 346.29 of the Tax Code of the Russian Federation) can make their own adjustments, but even taking them into account, the difference in the final tax amounts will most likely be small. If we are talking about an area of ​​more than 5 square meters. m, then the calculation must be carried out based on the area of ​​the retail space or the area of ​​the trading floor, the profitability for which is set to the same - 1800 rubles. per sq. m.

Conclusion
If the retail space is large, then it is more profitable to equip it in such a way that you have a sales area. After all, as we have already noted, when determining the area of ​​a sales floor, the area of ​​auxiliary premises is not taken into account. And for retail places - it is taken into account.

If there are auxiliary premises, the court can recognize the trade facility as a store (Resolution of the Federal Antimonopoly Service of the North-West District of January 15, 2010 in case No. A56-36135/2009), which means that there will be a trading floor in this facility. But these should be adjacent premises, and not a separate hangar or room in a neighboring building. A similar case was recently examined by the Supreme Arbitration Court of the Russian Federation. The court indicated that trade was carried out through an object with a trading floor, because:
- it was specified in the sublease agreement which part of the premises is used as a warehouse, and which part is used for selling goods;
- in accordance with the technical passport and explication, the room consisted of two parts;
- each part of the area was used for its intended purpose.
Consequently, the tax should have been calculated on the area of ​​the trading floor, and not on the area of ​​the trading place (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 06/14/2011 N 417/11).
And the court decisions issued after the release of this Decree indicate that it has already been adopted by the courts (Decrees of the FAS VVO dated December 26, 2011 in case N A79-2716 / 2010; FAS ZSO dated November 22, 2011 in case N A45-3709 /2011).

Despite a fair number of court decisions regarding trading floors and trading places, there are still many questions regarding the calculation of a single tax. The vague wording of the Tax Code will most likely bring more than one taxpayer to court. But if your trading facility has auxiliary premises, then it is probably more profitable for you to organize trade in such a way that you also have a trading floor. Then you can pay less UTII.