When calculating UTII for this type of activity, use a physical indicator - the area of ​​the sales floor (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). The basic profitability indicator is 1800 rubles. per month from 1 sq. m of area (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

For the purpose application of UTII The concept of “trading floor” is not defined by tax legislation. Due to this tax service recommends being guided by the definition of a trading floor, which is given in GOST R 51303-99 (letter of the Federal Tax Service of Russia dated July 2, 2010 No. ShS-37-3/5778). According to this definition, under trading floor means a specially equipped main part commercial premises store, intended to serve customers (clause 43, section 2.3 of GOST R 51303-99).

Establish the area of ​​the sales area according to the data of title and inventory documents (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation). For example, this could be a purchase and sale agreement non-residential premises, technical passport, plans, diagrams, explications, lease (sublease) agreement for non-residential premises or part thereof (paragraph 24 of article 346.27 of the Tax Code of the Russian Federation).

Include the following in the sales area:

• part of a store, pavilion (open area) occupied by equipment for displaying, demonstrating goods, making payments and serving customers;

• area of ​​cash registers and booths;

• workplace area service personnel;

• aisle area for customers;

• rented part of the retail space.

Exclude from the sales floor area:

• area of ​​utility rooms;

• area of ​​administrative and amenity premises;

• area of ​​premises for receiving, storing goods and preparing them for sale, in which customer service is not provided.

Such requirements are contained in paragraph 22 of Article 346.27 of the Tax Code of the Russian Federation.

In addition, to calculate UTII, you can exclude the area leased (subleased) from the sales area. To do this, the landlord (or the tenant subletting part of the retail space) must have documents confirming the size of the area that is not used by him for retail trade. Such documents may be lease (sublease) agreements, which indicate the size of the area transferred to the tenant (subtenant).

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated December 9, 2013 No. 03-11-11/53554.

By general rule when calculating UTII, the area of ​​cash registers and booths must be included in the area of ​​the sales floor (paragraph 22 of article 346.27 of the Tax Code of the Russian Federation).

However, this procedure applies if the cash register is located directly in the sales area of ​​a stationary retail facility. If the cash register is removed from the sales floor or located in another room, then do not take into account the area it occupies when calculating UTII. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated November 6, 2006 No. 03-11-04/3/443.

If the warehouse is equipped with a sales area, calculate UTII based on its area. If there is no sales area in the warehouse, use the number of sales places or their area to calculate UTII.

Thus, the answer to this question depends on the characteristics of the retail facility.

To calculate UTII from retail trade (except for delivery and distribution), the following physical indicators are used:

• the area of ​​the trading floor, if the premises used belong to a stationary network that has trading floors (shops and pavilions);

• the number of retail spaces, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network and its area is less than 5 square meters. m;

• area of ​​retail space, if the premises used belong to a stationary network that does not have trading floors, or to a non-stationary network, and its area is more than 5 square meters. m.

This follows from paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

Fixed network facilities with trading floors include buildings that simultaneously meet the following requirements:

• are intended for trading and are attached to engineering communications(paragraph 13, 14 of article 346.27 of the Tax Code of the Russian Federation);

• equipped with premises for trade (display of goods) and serving visitors, trading floors (this follows from the definitions of a store and a pavilion - paragraph 26, 27 of Article 346.27 of the Tax Code of the Russian Federation).

Thus, if a warehouse is intended for trading and is equipped with the necessary trading premises, this means that it belongs to stationary facilities trading network. As for the condition of connection to utilities (electrical and heat networks, water supply, sewerage), then, according to the Ministry of Finance of Russia, it is not mandatory (letter of the Ministry of Finance of Russia dated January 12, 2006 No. 03-11-05/4).

To determine which retail facility the premises belong to (with or without a sales area), refer to the title and inventory documents. If the warehouse meets the definition of a store or pavilion, that is, it is equipped with a sales area, calculate the UTII based on its area. If there is no sales area in the warehouse, to calculate UTII use:

• number of retail spaces (if the area of ​​each of them does not exceed 5 sq. m);

• area of ​​retail places (for retail places whose area exceeds 5 sq. m).

This follows from the provisions of paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

According to the Russian Ministry of Finance, if an organization uses the premises inappropriately technical purpose, then the inventory documents (technical passport) should be amended accordingly. To do this, you need to carry out a technical inventory (letters dated April 9, 2007 No. 03-11-04/3/107, dated April 9, 2007 No. 03-11-05/65, dated July 4, 2006 No. 03-11 -04/3/335 and dated April 24, 2006 No. 03-11-05/109).

Situation: how to calculate UTII if an organization uses the same sales area for different types of activities? For example, for wholesale and retail operations or for retail trade and the provision of household services, catering services.

If the trading floor is used for conducting different types activities, when calculating UTII, you need to take into account the entire area of ​​the hall.

In particular, this should be done if the organization conducts both retail and wholesale operations in the same sales area; conducts retail trade and provides household services or catering services; retails purchased goods and merchandise own production. This is stated in letters of the Ministry of Finance of Russia dated April 2, 2013 No. 03-11-11/128, dated April 22, 2009 No. 03-11-06/3/101, dated July 3, 2008 No. 03-11- 04/3/311, dated April 13, 2007 No. 03-11-04/3/115.

The entire area must be taken into account even if the same hall is used for retail trade under different tax regimes. For example, if part of retail trade is associated with the sale of excisable goods (not transferred to UTII), and part is associated with the sale of other goods. Despite the fact that in such a situation only part of the sales floor is used for activities within the framework of UTII, the tax must be calculated based on the total area. Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated September 11, 2012 No. 03-11-11/276.

The position of the financial department is explained by the absence in Chapter 26.3 of the Tax Code of the Russian Federation of a mechanism for the distribution of retail space that is simultaneously used to conduct several types of activities or to conduct one type of activity under different tax regimes. The legality of this approach is confirmed by Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2009 No. 9757/09.

Correction factors

Besides physical indicator and basic profitability, when calculating UTII from the area of ​​trading floors, use the 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, and 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).

Tax base

To calculate UTII, first determine the tax base for the reporting quarter. This can be done using the formula:

Tax base for UTII for the quarter

=

Basic profitability per month (RUB 1,800)

×

The area of ​​the trading floor used for purchase and sale transactions in the first month of the quarter

+

The area of ​​the trading floor used for purchase and sale transactions in the second month of the quarter

+

The area of ​​the trading floor used for purchase and sale transactions in the third month of the quarter

×

×

K2

The value of the physical indicator - the area of ​​the sales floor - 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). When rounding the size of a physical indicator, discard values ​​less than 0.5 units, and round 0.5 units or more to a whole unit (letter of the Ministry of Finance of Russia dated June 16, 2009 No. 03-11-11/111).

Change in physical indicator

If during the quarter the area of ​​the sales floor 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).

Calculation of UTII

Having determined the size of the tax base, calculate the amount of UTII for the reporting quarter. To do this, use 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 with trading floors. The sales area changed during the tax period

Alpha LLC trades retail through its own store 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 sales area of ​​the organization's store (according to technical documentation) is 80 square meters. m. On February 10, a premises of 10 square meters was added to the trading floor. m (corresponding changes have been made to the technical documentation).

Thus, the sales floor area used by Alfa in retail trading was:

• in January - 80 sq. m;
• in February - 90 sq. m;
• in March - 90 sq. m.

Imputed income for calculating UTII for the first quarter was:
1800 rub./sq. m × (80 sq. m + 90 sq. m + 90 sq. m) × 0.7 × 1.798 = 589,025 rub.

UTII for the first quarter is equal to:
RUB 589,025 × 15% = 88,354 rub.

Trading organizations and individual entrepreneurs have the right to apply UTII only on the condition that the area of ​​the sales floor of their store does not exceed the values ​​​​specified in the Tax Code. What should this area be and what other restrictions does UTII provide for? retail trade in 2019, this article will tell you.

Retail space is the main physical indicator with which UTII is calculated for organizations and individual entrepreneurs engaged in retail trade. The Tax Code of the Russian Federation directly states how exactly the area of ​​a retail facility affects the amount of the single tax, and other non-retail premises - on the value of the physical indicator. UTII retail 2017 is regulated by paragraphs. 6 paragraph 2 art. 346.26 Tax Code of the Russian Federation. It states, in particular, that trading organizations and individual entrepreneurs can choose UTII as the taxation system if:

• The area of ​​the premises in which trade is carried out is less than 5 square meters. m, in this case the indicator “ trading place»;
• The sales floor area does not exceed 150 square meters. m for each trade object (stationary or non-stationary), the physical indicator for UTII retail trade in this case is the “sales area”.

Shops, pavilions and sites at UTII

There is no direct formulation of what a trading floor is in tax legislation. However, stores and other retail outlets must determine this important physical indicator strictly on the basis of documents. These may be inventory records and title documents for real estate. They should indicate:

• purpose of the property;
• layout and design features;
• information about the right to use the object.

It is important to correctly differentiate internal passages for customers, namely approaches to display cases or cash registers. If they are indicated in the documents, they also need to be taken into account when determining the physical indicator. If, taking into account these values, the size of the hall turns out to be greater than the permissible limit, the UTII tax cannot be applied to retail trade.

When a warehouse becomes a sales area

The calculation of UTII in 2019 for retail trade includes the area of ​​all premises in which customers are served. Therefore, if buyers have access to warehouses and utility rooms in which goods are also displayed, the physical indicator increases. This was indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 417/11. However, in a controversial situation, the responsibility to prove the use of such a warehouse for direct customer service falls on the Federal Tax Service specialists. Sometimes this cannot be proven, and the courts take the side of taxpayers.

In relation to retail trade, you can use one of the following physical indicators: retail space, sales floor area, sales space area. From the article you will learn in what cases to use each of these physical indicators and how to determine them.

First of all, we note that the physical indicator characterizes a certain type of “imputed” activity. Therefore, its correct determination directly affects the amount of the single tax payable to the budget. However, this is not easy to do for all “imputed” activities. One such activity is retail trade.

According to the provisions of Chapter 26.3 of the Tax Code of the Russian Federation, organizations and those engaged in retail trade must apply one of the following physical indicators for a single tax:

- area of ​​the trading floor (in square meters);
— number of retail places;
— area of ​​the retail space (in square meters);
— number of employees, including individual entrepreneurs;
— number of vending machines.

As a rule, no difficulties arise with the last two physical indicators, but we will consider the rest in more detail.

Sales area

The physical indicator “trading floor area (in square meters)” is used when organizations and individual entrepreneurs conduct retail trade carried out through stationary retail chain facilities that have trading floors.

In order to pay UTII, the area of ​​the sales area should not exceed 150 square meters. m. Article 346.27 of the Tax Code of the Russian Federation determines that the area of ​​the trading floor includes:

- part of a store, pavilion (open area) occupied by equipment intended for displaying and demonstrating goods;
— area used for cash transactions and customer service;
— area of ​​cash registers and cash registers;
— area of ​​working places for service personnel;
— area of ​​aisles for customers.

Also included in the sales area are the rented areas of the sales area. But the area of ​​utility, administrative and service premises, the area of ​​premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, is not included in the area of ​​the trading floor for the purpose of paying UTII.

The area of ​​the sales area is determined on the basis of inventory and title documents. Such documents may be a purchase and sale agreement for non-residential premises, technical passport for non-residential premises, plans, diagrams, explications, (sublease) of non-residential premises or part (parts), permission to serve visitors in an open area, etc.

It would seem that everything is simple. There are documents that indicate the area of ​​the sales area, which should be taken into account. But in practice, a situation often arises when they themselves change the area of ​​the sales floor, for example, by converting part into a warehouse. And, as a result, they think single tax based on a smaller area.

Financiers believe that this should under no circumstances be done. You need to calculate UTII only using the size of the sales floor area that is indicated in the inventory and title documents. But what is actually used by an organization or individual entrepreneur for the purpose of running a retail sales floor does not matter. This conclusion is contained, for example, in letter dated 03/07/2013 No. 03-11-11/94.

Judges generally side with taxpayers and, when considering cases, find out the actual area of ​​the trading floor. Thus, in the resolution of the Federal Antimonopoly Service of the Volga District dated December 24, 2012 No. A57-9062/2012, the arbitrators found that the total area of ​​the trading floor was divided into a retail area and a utility area with display cases. In the place for receiving, storing goods and preparing them for sale, in the utility rooms, there was no equipment intended for displaying, demonstrating goods, or conducting cash payments. Service in specified places was not carried out, customer access was prohibited. In this regard, the arbitrators came to the conclusion that the taxpayer used only the retail space to sell goods and lawfully calculated UTII from this area.

A similar conclusion is contained in the resolutions of the Federal Antimonopoly Service of the Central District dated June 15, 2012 No. A35-3273/2011 and the Federal Antimonopoly Service of the Ural District dated October 8, 2012 No. F09-9981/11, dated January 26, 2011 No. F09-10943/10-S3.

The Federal Antimonopoly Service of the East Siberian District, in its resolution dated October 13, 2009 No. A78-3625/08, indicated that a mandatory criterion for classifying space as “trading floor area” and taking it into account when calculating the single tax is the actual use of these spaces when carrying out trade. And the burden of proving that the “imputed” person used a large area for retail trade lies with the tax authorities.

Similar conclusions are contained in the resolutions of the FAS Volga District dated 04/11/2012 No. A57-3313/2011, the FAS West Siberian District dated 10/18/2010 No. A45-7149/2010, the FAS Far Eastern District dated 07/15/2011 No. F03-2543/2011 and the Moscow FAS District dated 04/01/2010 No. KA-A41/2694-10.

At the same time, it is worth noting that there are court decisions in which the arbitrators took into account only inventory and title documents. At the same time, they noted that such documents must be drawn up by competent authorities (for example, BTI authorities). In the resolution of the FAS Volga-Vyatka District dated 08/06/2012 No. A29-6075/2011 (upheld by the Ruling of the Supreme Arbitration Court of the Russian Federation dated 12/19/2012 No. VAS-16459/12), the arbitrators refused to accept as evidence of a change in the area of ​​the trading floor the floor plan that was compiled by a third-party individual entrepreneur.

The same conclusions can be found in the decisions of the Federal Antimonopoly Service of the North-Western District dated 03/05/2011 No. A66-6259/2010, as well as the FAS of the East Siberian District dated 02/24/2012 No. A74-3677/2010 and dated 05/13/2009 No. A78-4725/ 08-С3-22/186-Ф02-2154/09.

Thus, in order to avoid claims from outside, we recommend that changes in the retail space be completed in a timely manner so that it complies with the BTI data. In addition, the information in the inventory documents must match the data in the title documents.

Example 1
Tea Plantations LLC, which uses UTII, carries out retail trade in various types of tea and coffee through a store with a total area of ​​160 square meters. m. The store is located in the city (Oktyabrsky district). In accordance with the inventory plan, the sales area is 100 square meters. m, the rest of the area is occupied by administrative, household and warehouse premises. Let's calculate the amount of UTII that is payable to the budget for the fourth quarter of 2014.

The basic profitability for retail trade carried out through stationary retail chain facilities with trading floors is 1,800 rubles. per month. Physical indicator - the area of ​​the sales floor (in square meters). IN in this case it is 100 sq. m. The coefficient K1 in 2014 is 1.672 (order of the Ministry of Economic Development of Russia dated November 7, 2013 No. 652).

According to the decision of the Kirov City Duma dated November 28, 2007 No. 9/4 (as amended by the decision dated November 28, 2012 No. 8/4), the value of K2 in relation to retail trade through stationary retail chain facilities with trading floors in the district is 0.44 ( for food products).

Thus, the amount of UTII payable to the budget based on the results of the fourth quarter of 2014 will be:
1800 rub. × (100 sq. m + 100 sq. m + 100 sq. m) × 1.672 × 0.44 × 15% = RUB 59,590.08

In whole units - 59,590 rubles.

The company has the right to reduce this amount of UTII by paid insurance premiums and temporary disability benefits paid to employees, but not more than 50%.

Retail space area

When conducting retail trade through stationary retail chain facilities that do not have sales floors, as well as through non-stationary retail chain facilities, the following physical indicators are used:

— number of retail places;
— area of ​​the retail space (in square meters).

And the choice of which physical indicator to use to calculate UTII depends on the area of ​​the retail space. If the area of ​​the retail space does not exceed 5 sq. m, then the physical indicator “number of retail spaces” is used if it exceeds 5 sq. m, then “sales area”. About this - paragraph 3 of Article 346.29 of the Tax Code of the Russian Federation.

Let's first consider how to determine the area of ​​a retail space. And let us immediately note that the Tax Code of the Russian Federation says nothing about this. Therefore, we will turn to the regulatory authorities for clarification. Thus, the department’s specialists point out that the area of ​​a retail space, as well as the area of ​​a sales floor, should be determined on the basis of inventory and title documents. This is stated in letters of the Ministry of Finance of Russia dated 08.08.2012 No. 03-11-11/231, dated 03.05.2012 No. 03-11-11/68, dated 26.12.2011 No. 03-11-11/320, dated 10.08.2009 No. 03-11-09/274 and dated May 26, 2009 No. 03-11-09/18. The tax authorities also agree with the financiers (letter dated July 27, 2009 No. 3-2-12/83).

Note that there are no restrictions on the size of the area of ​​a retail space used for the purposes of “imputed” retail trade in Chapter 26.3 of the Tax Code of the Russian Federation. Not provided for by the provisions of Chapter 26.3 of the Tax Code of the Russian Federation and a reduction in the area of ​​a retail space by the area of ​​​​premises for receiving, storing goods and preparing them for sale , where customer service is not provided. The Ministry of Finance of Russia drew attention to this in letters dated 03/05/2012 No. 03-11-11/68, dated 12/26/2011 No. 03-11-11/320, dated 12/22/2009 No. 03-11-09/410, dated 10.08. 2009 No. 03-11-09/274 and dated 05/26/2009 No. 03-11-09/185. See also letter of the Federal Tax Service of Russia dated June 25, 2009 No. ШС-22-3/507@.

As for the judges, they completely agree with the regulatory authorities. For example, in the resolution of the Federal Antimonopoly Service of the North-Western District dated May 29, 2012 No. A05-10400/2011, the arbitrators indicated that when retail trade is carried out through an object recognized as a trading place, the physical indicator “trading place area” includes all areas related to this object of trade, including those used for receiving and storing goods. Similar conclusions are contained in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 No. 417/11, FAS Volga-Vyatka District dated May 16, 2012 No. A79-6987/2011, dated February 13, 2012 No. A11-8979/2010, FAS Moscow District dated February 10, 2012 No. A41-31817/10, FAS of the Central District dated 03/11/2011 No. A62-4419/2010 and FAS of the Volga District dated 02/09/2010 No. A12-16000/2009.

What if trade is carried out through several retail premises located in the same building? Chapter 26.3 of the Tax Code of the Russian Federation does not provide for this. Letters from the Ministry of Finance of Russia dated December 31, 2010 No. 03-11-11/335 and the Federal Tax Service of Russia dated July 2, 2010 No. ШС-37-3/5778@ say that if retail trade is carried out using several retail facilities that belong to one store (pavilion) and are located in the same building, then when calculating the amount of UTII, the area of ​​​​all trading floors must be summed up. If retail trade is carried out using several retail facilities that are located in the same building, but are independent stores (pavilions), then when calculating the amount of UTII, the area of ​​the sales floor for each store (pavilion) is taken into account separately according to inventory and title documents.

Let's look at an example of the procedure for calculating UTII using the physical indicator “area of ​​retail space”.

Example 2
Let's use the conditions of example 1 and assume that the company retails various types of tea and coffee through a retail space with an area of ​​5.9 square meters. m, located in shopping center. The shopping center is located in Kirov (Novovyatsky district). In this case, separate premises for receiving, storing goods and preparing them for sale are not provided. The goods are stored in a display case, which is a retail space. Let's calculate the amount of UTII that is payable to the budget for the fourth quarter of 2014.

The basic yield in this case is 1800 rubles. per month. The physical indicator “area of ​​a retail space (in square meters)” is 5.9 square meters. m. The value of K2 in relation to retail trade through objects of a non-stationary retail network, the area of ​​the retail space in which exceeds 5 sq. m. m, in the Novovyatsky district it is equal to 0.27 (for food products).

The amount of UTII payable to the budget based on the results of the fourth quarter of 2014 is:
1800 rub. × (5.9 sq. m + 5.9 sq. m + 5.9 sq. m) × 1.672 × 0.27 × 15% = 2157.43 rub.

In whole units - 2157 rubles.

Now let's look at another example and note that when using the same physical indicator in different cases The tax amount may vary significantly. Therefore, organizations and businesses, when planning their trading activities you should carefully approach the choice of the object of trade.

Example 3
MasterOk LLC, which applies the taxation system in the form of UTII, carries out retail trade building materials. For this activity, the company rented a pavilion on the construction market with a total area of ​​80 square meters. m. At the same time, a counter is installed inside the pavilion, where customers pay and receive goods. The counter occupies an area of ​​6 square meters. m. The goods themselves are stored in the pavilion, buyers have free access to them for inspection. The construction market is located in Kirov (Leninsky district). Let's calculate the amount of UTII that is payable to the budget for the fourth quarter of 2014.

The basic profitability for this type of activity is 1800 rubles. per month. The physical indicator “area of ​​a retail space (in square meters)” in this case will be 80 square meters. m. The value of K2 in relation to retail trade through objects of a non-stationary retail network, the area of ​​the retail space in which exceeds 5 sq. m. m, in the Leninsky district is 0.35 (for non-food products).

The amount of UTII payable to the budget based on the results of the second quarter of 2014 is:
1800 rub. × (80 sq. m + 80 sq. m + 80 sq. m) × 1.672 × 0.35 × 15% = RUB 37,920.96

In whole units - 37,921 rubles.

The company has the right to reduce this amount of UTII by insurance premiums paid and sickness benefits paid to employees, but not by more than 50%.

Number of retail places

Article 346.27 of the Tax Code of the Russian Federation defines a trading place as a place used for carrying out retail purchase and sale transactions. These include:

- buildings, structures, structures (parts thereof) or land plots used to carry out retail purchase and sale transactions;
— retail trade facilities that do not have sales areas (tents, stalls, kiosks, boxes, containers and other facilities, including those located in buildings, structures and structures);
— counters, tables, trays (including those located on land);
- land plots used to accommodate retail trade facilities that do not have sales floors, counters, tables, trays, and other facilities.

As you can see, specific physical characteristics or minimum requirements to the trading place Tax Code RF not established. In a letter dated 07/05/2005 No. 03-11-04/3/2, financiers indicated that if goods are released from a warehouse, and the buyer and seller settle at the company’s office, then the number of retail locations must be determined by the number of employees carrying out the sale.

In letter dated March 29, 2006 No. 03-11-04/3/169, the Ministry of Finance of Russia considered the situation when a taxpayer rents retail space in the form of separate sections fenced off lightweight structures, or in the form of trade counters food products. In this case, financiers recommended determining the number of retail spaces based on the number of individual sections for rent. And if trading places behind the counters are equipped with scales for weighing products, then the number of trading places behind the counters should be determined by the number of scales placed on them.

In another letter dated 07/02/2007 No. 03-11-04/3/247, employees of the financial department indicated that taxpayers renting stationary retail space behind counters in the indoor market building should determine the number of retail spaces on the basis of lease agreements. A similar conclusion is contained in the letter of the financial department dated 08/06/2010 No. 03-11-10/110.

Judges, in turn, pay attention to all factual circumstances. Thus, the Federal Antimonopoly Service of the West Siberian District, in resolution dated April 12, 2007 No. F04-2192/2007 (33335-A75-19), indicated that a trading place is defined as a place used for making purchase and sale transactions.

According to GOST R 51303-99 “Trade. Terms and Definitions" (approved by Decree of the State Standard of Russia No. 242-st dated August 11, 1999), a trading place in retail trade should be understood as a specially equipped place of direct interaction between the seller and the buyer for the transfer of goods in pursuance of a retail purchase and sale agreement. Such a place is characterized by the presence of a certain spatial isolation and commercial equipment, as well as the possibility of direct contact between the seller and the buyer when providing trade services.

Thus, the arbitrators concluded that several retail locations located next to each other could be used as one retail outlet. However, the conditions must be met: there are no internal partitions, there is a single assortment of goods, a common cash register, one counter and (or) seller. Similar conclusions are contained in the decisions of the Federal Antimonopoly Service of the Ural District dated November 19, 2007 No. Ф09-9383/07-С3, the Volga District Federal Antimonopoly Service dated April 5, 2007 No. А12-16770/06 and the North Caucasian District Federal Antimonopoly Service dated January 16, 2007 No. Ф08-6177/2006- 2527A.

Therefore, taking into account the above, we can conclude that the number of trading places for the “imputed” should be determined based on specific situation. However, the UTII taxpayer should be prepared to confirm his position with relevant documents. Since in the absence of any evidence of the number of trading places used, judges may not support it (see, for example, the resolution of the Federal Antimonopoly Service of the North-Western District dated March 22, 2007 No. A56-34563/2006).

Example 4
LLC "Tea World", which applies the taxation system in the form of UTII, carries out retail trade in various types of tea through retail outlets in the form of counters located in several stores in the Moscow region. The number of counters is 5 pieces, each area is 4.9 square meters. m. Let's calculate the amount of UTII that is subject to payment to the budget for the fourth quarter of 2014.

The basic profitability for this type of retail trade is 9,000 rubles. per month. The physical indicator “number of retail places” is equal to 5. According to the decision of the Council of Deputies of Kolomna dated October 13, 2005 No. 58-RS (as amended by the decision dated October 31, 2012 No. 16-RS), the value of K2 in relation to retail trade through non-stationary retail chain facilities, The area of ​​the retail space does not exceed 5 square meters. m is 0.8.

The amount of UTII payable to the budget based on the results of the fourth quarter of 2014 will be:
9000 rub. × (5 pcs. + 5 pcs. + 5 pcs.) × 1.672 × 0.8 × 15% = RUB 27,086.40

In whole units - 27,086 rubles.

The organization also has the right to reduce this amount of UTII by insurance premiums paid and temporary disability benefits paid to employees, but not by more than 50%. 

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 on the basis of such physical indicators as, a trading place or the area of ​​a trading place (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 premises production workshop(Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 1, 2011 N 3312/11, dated February 15, 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 (Resolutions 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 Far East of Russia 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 etc. (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 a lease agreement, according to which the tenant installed easily removable partitions to separate the sales area from storage facilities(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.

Exhibition hall can also be a trading floor if goods are sold there. This prerequisite(especially in light of the decisions of the Supreme Arbitration Court of the Russian Federation on the possibility of conducting trade only in places designated for this purpose). If, however, the display of goods, their payment and release are reserved different rooms, 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 No. 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 also be used for trade, simply divided into several departments, for example, by the type of goods sold. Sometimes they do this because different groups products in the regions are installed different odds K2 (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 specified in them is not 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 reasons 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 20.10.2009 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 a plot of land on which 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 conduct business in a premises 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 frequent and most difficult question, as evidenced by the abundance of judicial practice.
When can we talk about the presence of a sales area? When a certain place in the room is allocated for buyers, where they can, moving from one shelf with goods to another, become more closely acquainted with the product. Naturally, a retail space cannot have a hall. Usually it is a counter or showcase from which sales are carried out, and buyers can only stand near it and look at the goods displayed.
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're talking about about an area of ​​more than 5 sq. 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 object 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 object. 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:
- the sublease agreement stated which part of the premises is used as a warehouse, and which part of the premises 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 based on the area of ​​the trading floor, and not on the area of ​​the retail space (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 N 417/11).
And court decisions made after the release of this Resolution indicate that it has already been adopted by the courts (Resolutions of the FAS VVO dated December 26, 2011 in case No. A79-2716/2010; FAS ZSO dated November 22, 2011 in case No. A45-3709 /2011).

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

Sales area

Retail trade is carried out through shops and pavilions. It can be transferred to the taxation system in the form of UTII only in one case. The area of ​​the sales area should not exceed 150 square meters. m for each trade organization object.

Let's turn to. The area of ​​the sales floor is the 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 booths, the area of ​​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 ​​the sales floor does not include the area of ​​utility rooms, administrative premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided.

The area of ​​the sales area is determined on the basis of inventory and title documents.

Such documents include any documents the taxpayer has for the object of trade organization. They contain information:

About the appointment design features and the layout of the premises of such a facility;
- about the right to use this object.

This may be a non-residential premises, a technical passport for a non-residential premises, plans, diagrams, explications, (sublease) of a non-residential premises or its part(s), etc.

Let's look at an example.

The Den organization rents from individual entrepreneur shop. They entered into a lease agreement.

According to the terms of this document, the total area of ​​the store is 200 square meters. m. At the same time, 50 sq. m is the sum of the areas of utility rooms and warehouse, and 150 sq. m - area of ​​the trading floor.

The size of the sales area of ​​the store used by the Kniga organization for retail trade does not exceed 150 square meters. m. This confirms the lease agreement. In such a situation, the Den organization is obliged to tax UTII activities on retail trade. Of course, subject to all other conditions established by Ch. 26.3 Tax Code of the Russian Federation.

What should you do if the area of ​​your retail premises has changed during the tax period?

For example, you have allocated part of the room for additional warehouse, rented out, etc. You have the right to reduce the value of the physical indicator “sales area” for calculating UTII. The new value of the indicator can be applied from the beginning of the month in which it changed. Grounds - clause 9 of Art. 346.29 Tax Code of the Russian Federation. However, this can only be done if you have the appropriate title and inventory documents. It is advisable to submit these documents along with the declaration. Moreover, in this case, the title document (manager’s order to change intended purpose premises, lease agreement, etc.) must be supplemented with an inventory document (explication or BTI certificate). About this - letter of the Ministry of Finance of Russia No. 03-11-04/3/411.

Is it possible to calculate the area of ​​a retail space only based on the data in the lease agreement?

Title documents are not enough to reliably determine the area of ​​a sales area. For this purpose, both a lease agreement for non-residential premises and inventory documents are used, including an explication issued by the BTI (Letter of the Ministry of Finance of Russia N 03-11-05/10).

If done, do I need to take any action?

If you have remodeled, you must conduct an unscheduled technical inventory. This obligation arises from the provisions of the Regulations on State Technical Accounting and Technical Inventory in Russian Federation capital construction projects approved by Decree of the Government of the Russian Federation N 921 (see Letter of the Ministry of Finance of Russia N 03-11-05/17).

That is, inventory documents must always correspond to the actual state of things. We recommend that inventory documents be reissued in a timely manner so that the actual area of ​​the sales area corresponds to the BTI data. Also monitor the compliance of these title and inventory documents.

What is meant by trading place

A trading place is a place used to carry out retail purchase and sale transactions. Retail locations include:

Buildings, structures, structures (parts thereof) and (or) land plots used for retail purchase and sale transactions;
- retail trade facilities that do not have sales areas (tents, stalls, kiosks, boxes, containers and other facilities, including those located in buildings, structures and structures);
- counters, tables, trays (including those located on land plots);
- land plots used to accommodate retail trade facilities that do not have sales floors, counters, tables, trays and other facilities.

Retail space area

How to determine the area of ​​a retail space in relation to retail trade? It is possible based on various inventory documents ( technical documentation on the object of trade, explication, plan, etc.).

Along with inventory documents, the basis for determining the area of ​​a retail space may be documents of title (including a lease (sublease) agreement for a retail space).

In the current edition of Ch. 26.3 of the Tax Code of the Russian Federation there is no rule that the area of ​​a retail space does not include areas intended for receiving, storing goods, preparing them for sale, and other similar areas. This rule is established only in relation to trade through shops and pavilions (paragraph 22, article 346.27 of the Tax Code of the Russian Federation).

Therefore, the area of ​​the place where you store goods or carry them out pre-sale preparation, as well as the space for buyers to pass through will have to be taken into account when calculating UTII (see, for example, Letter of the Ministry of Finance of Russia N 03-11-05/67). For example, the Den organization rents premises with a total area of ​​35 square meters. m at the indoor construction market. In this room, the organization simultaneously stores goods purchased in bulk and sells them at retail. There is a special counter at the entrance to the premises. Behind him, a representative of the Den organization pays the customers and hands out the packaged goods. The area where payments are made and goods are issued is 5.8 square meters. m.

Despite the fact that most of the area of ​​the rented premises is used for storing goods, the area of ​​the retail space will be 35 sq. m. m.

Area less than 5 sq.m.

If the area of ​​the retail space through which trade is carried out is less than or equal to 5 square meters. m, then you must use the physical indicator “sales location”. The basic profitability per unit of physical indicator per month in this case will be 9,000 rubles.

Area more than 5 sq.m.

The area of ​​the retail space through which trade is carried out is more than 5 square meters. m. The physical indicator for retail trade will be “the area of ​​the retail space (in square meters).”

The basic profitability per unit of physical indicator per month in this case will be 1800 rubles.