TRANSFER TO A SINGLE TAX. PHYSICAL PERSON ENTREPRENEUR – “UNIT”, MUST PAY THE ERU ONLY WITH INCOME

   This conclusion was reached by the Kirovograd district administrative court and in its decision of May 23, 2019 noted that the ERU Law does not contain a clause for natural persons “unified” on the payment of ERU, regardless of the receipt of income.

   A painful topic for the so-called "sleeping" FLP is the obligatory payment of ERUs even in the case of the activities of such entrepreneurs and their not receiving income. In October 2017, before the Law on ERU, namely paragraph 3 of Art. 7 changes are made according to which for individuals - entrepreneurs who have chosen the simplified taxation system, a single fee is charged on amounts that are determined by such payers for themselves, but not more than the maximum amount of the base for accrual of a single contribution established by the Law on ERUs. At the same time, the amount of a single premium cannot be less than the amount of the minimum insurance premium.
   In this decision, the judge of the Kirovograd Regional Administrative Court of Brega R.I. took the side of entrepreneurs and made a very unexpected decision, in which he stated the following:

FLP does not receive income is not obliged to pay ERUs;
The accrual of arrears on this type of contribution is possible only after carrying out an appropriate check by the supervising authority.
   
   But from the beginning we will dwell on the circumstances of this case.

   In this case, the person filed a claim with the court to declare unlawful and cancel the claim for payment of the debt on a single contribution for obligatory state social insurance. Moreover, the claims were motivated by the fact that the claimant was registered as an individual entrepreneur since 1997 and was on a simplified tax system. However, since then he has not carried out entrepreneurial activities, since he submitted an application to the territorial division of the supervisory authority for its termination.

   Since then, the plaintiff has not filed any reports and constantly worked as an employee. At the same time, according to the claimant, while forming and directing the claim, the supervising authority did not carry out an inspection in the manner determined by the tax legislation.

   As noted above, the grounds indicated were the basis for the satisfaction of the claim.

In making such a decision, the court indicated the following:

   In accordance with paragraph 2 of Part 1 of Art. 7 of the Law on ERUs, the fee is charged for the taxpayers referred to in paragraph 4 (except for individuals-entrepreneurs who have chosen the simplified taxation system), 5 and 5-1 h. 1, art. 4 of this Law, - in the amount of income (profit) received from their activities subject to personal income tax. At the same time, the amount of the single premium cannot be less than the amount of the minimum insurance premium per month.

   If such a payer does not receive income (profit) in the reporting quarter or a separate month of the reporting quarter, such payer is obliged to determine the accrual basis, but not more than the maximum amount of the single contribution accrual base established by this Law. At the same time, the amount of a single premium cannot be less than the amount of the minimum insurance premium.

 Therefore, these taxpayers have the obligation to pay a fee in the amount established by law, regardless of the receipt of income (profit).

 The number of these taxpayers does not include individuals-entrepreneurs who have chosen the simplified taxation system.

 At the same time, in accordance with the provisions of paragraph 3 of Part 1 of Art. 7 of this Law it is determined that a single fee is charged for the payers referred to in paragraph 4 of Part 1 of Art. 4 of this Law, which have chosen the simplified taxation system, on the amounts that are determined by such payers for themselves, but not more than the maximum value of the base for calculating the single contribution established by this Law. At the same time, the amount of a single premium cannot be less than the amount of the minimum insurance premium.

   The law does not contain reservations for individuals-entrepreneurs who are on the simplified taxation system for the payment of a fee, regardless of the receipt of income. Contribution is charged only on a certain amount of income and limited to the minimum and maximum.

So, the individual entrepreneur who chose the simplified taxation system and does not receive income (does not carry out business activities) does not have the obligation to pay a minimum contribution.

   In addition, according to Part 2 and 3 of Art. 9 of the aforementioned Law on the calculation of a single contribution is carried out on the basis of accounting and other documents according to which accrual (calculation) is made or which confirm the calculation (calculation) of payments (income) on which a single contribution is charged in accordance with this Law.

   Calculation of a single contribution by the bodies of income and fees in cases stipulated by this Law is carried out on the basis of acts of checking the correctness of the calculation and payment of a single contribution, reporting submitted by payers to the bodies of income and fees, accounting and other documents confirming the amounts of payments (income) which (which) in accordance with this Law accrues a single fee.

   Thus, the supervisory authority has the right to charge contributions by accepting the demand for its payment, on the basis of: an inspection report; reporting submitted by payers to the bodies of income and fees; accounting and other documents confirming the amount of payments (income), the amount of which (which) in accordance with the Law is charged.

  But taking into account the fact that the tax authority did not conduct an audit with respect to the claimant and the latter did not require documents on the activities of the FLP, the formation and direction of the claim is unlawful, because the information on the integrated payer card and from the Registry are not included in the list of “other documents” such as not confirming the amount of payments (income).