Legal entities and entrepreneurs paying profits to individuals are required to withhold Personal Income Tax from them, otherwise carry out the work of tax agents. This obligation is defined by Article 226 of the Tax Code of the Russian Federation. But in its paragraph 2 the features of this rule are given. Thus, the norms of a certain article are not applied to certain types of income, which are taxed in accordance with the well-known articles 214.1, 227 and 228 of the Tax Code of the Russian Federation.
In this case, our attention is drawn to Article 214.1 of the Tax Code of the Russian Federation, which includes the procedure for calculating personal income tax when buying and selling securities. Part 3 of this article shows a list of persons who play a role as tax agents in the purchase and sale of securities of individuals. face.
The tax agent may be one of the special members of the securities market:
- trustee;
- broker;
- the person performing transactions under the agency agreement;
- a person performing transactions under a commission agreement;
- a person who carries out transactions in favor of an individual under any other agreement, similar to an agency agreement, for example, an agency agreement;
- a person who performs transactions in favor of an individual under an agreement other than contracts of agency, commission or trust management.
Thus, those organizations or citizens who directly purchase securities from an individual are not tax agents. If an individual sells securities without going through an intermediary, he must pay the tax himself and submit a tax return. True, if the buyer of securities is an organization, it is obliged to submit information to the tax authority about income paid to an individual.
Article 214.1 of the Tax Code applies only to the types of income that are directly listed in it, namely income:
- from transactions of purchase and sale of securities;
- from redemption of investment shares;
- from forward transactions, the subject of which (the underlying asset) are securities.
Other transactions with securities (for example, receipt of interest, dividends, income from the redemption of bills) are not adjusted by this article. Consequently, the tax on them is withheld from the individual, Article 226 of the Tax Code of the Russian Federation. Therefore, an organization or individual entrepreneur, when paying similar income to an individual, must withhold Personal Income Tax.
If the payment of interest (accumulated coupons) accompanies each transaction for the purchase and sale of securities (Example of corporate bonds) In this case, income for personal income tax purposes must be differentiated - the result from the purchase and sale of securities and the difference in interest paid and received (accumulated coupons) are taken into account separately ).
How to determine the tax base when purchasing securities
During an internship, a situation is possible when a physical. a person purchases securities at prices lower than market prices. In this example, is the excess of the market value of securities over the amount of actual expenses for their acquisition taxable? Yes, it is subject to Personal Income Tax. persons as material benefit (Article 1, 212 of the Tax Code of the Russian Federation). The market value of securities is determined taking into account the limits of fluctuations in their market price (see sidebar “Please note”).
The date of receipt of income in the form of material benefit is the date of acquisition of the security (subclause 3, clause 1, article 223 of the Tax Code of the Russian Federation). That is, the date of transfer of ownership of the security to the buyer.
For issue-grade securities (see the “Help” sidebar), the transfer of ownership occurs at the time of making a credit entry in a securities account, an account in the register of owners, or at the time of transfer of a security certificate. When purchasing non-issue securities, the material benefit is not determined, since they are not traded on the organized securities market.
How to determine the tax base when selling securities
The tax base for personal income tax from the sale of securities is determined upon their sale. If there were no sales during the tax period, the tax base is not determined. According to paragraph 3 of Article 214.1 of the Tax Code of the Russian Federation, the tax base can be determined in two ways. Firstly, it is calculated as the amount received from the sale of securities, minus the confirmed costs of their acquisition, storage and sale. Secondly, it is defined as the amount received from the sale of securities, minus the property tax deduction. However, the second method is applied only when it is impossible to apply the first, that is, when there are no documented expenses. The deduction can only be obtained in the tax period in which the securities were sold.
How to determine the market price and the maximum limit of fluctuations in the market price of securities
Market prices for securities for tax purposes are determined according to the standards established by Chapter 25 “Income Tax” of the Tax Code. This is stated in paragraph 14 of Article 40 of the Tax Code of the Russian Federation.
However, Chapter 23 of the Tax Code of the Russian Federation contains a special norm that serves to determine the market price (clause 4 of Article 212 of the Tax Code of the Russian Federation). In accordance with it, for personal income tax purposes, when determining the market price of securities, one should be guided by departmental acts of the body that regulates the securities market in Russia. Until recently, such a body was the Federal Securities Commission of Russia, and now it is the Federal Service for Financial Markets.
The procedure for determining the maximum limit for fluctuations in market prices for securities traded on the organized securities market is established by Resolution of the Federal Commission for the Securities Market of Russia dated December 24, 2003 No. 03-52/ps. According to this document, the maximum limit for fluctuations in the market price of securities is set at 20% upward or downward from the market price of the security on the date of the transaction. The market price is defined as the weighted average price of a trading day on an organized market. If a security is traded on several organized markets, the taxpayer has the right to choose any of them to use his data in the calculation.
The weighted average price of the current day can be used provided that at least 10 transactions have been made. If less than 10 transactions were concluded on the market during the day, the weighted average price is calculated based on the last 10 transactions over the last 90 days. In this case, the volume of transactions must be at least 300,000 rubles.
If over the last 90 days there have been less than 10 transactions or their total volume was less than 300,000 rubles, then this security is considered to have no market value.
Please note: the above procedure for determining the market price and the limits of its fluctuations applies only to securities traded on the organized securities market. As for securities that are not traded on an organized market, their market price is not determined.
Please note: according to the tax authorities, the first method is used even in cases where at least one of the expenses is confirmed. For example, in practice, a situation often arises when the costs of acquiring and storing securities cannot be confirmed, while the costs of sales (remuneration to a broker or trustee) can be confirmed. Then the first method is used to determine the tax base, although the second method would be more beneficial to the taxpayer.
It is known that transactions of individuals in the stock market can be both profitable and unprofitable. Article 214.1 of the Tax Code of the Russian Federation allows during the tax period to reduce taxable income by the amount of losses from transactions with securities, subject to certain conditions.
For tax purposes, securities are divided into two categories: traded and non-traded on the organized market.
Losses from transactions with securities are deducted from the tax base of the current period, but in an amount not exceeding income from the same category of securities. Therefore, in order to correctly determine the tax base during the year, it is necessary to keep separate records of income and losses from transactions with securities - traded and not traded on the organized market.
If a taxpayer operates in the stock market through a professional intermediary who is a tax agent (broker, trustee), such records are maintained by the agent. However, the taxpayer can carry out transactions on the stock market independently. In this case, he must keep records of income and expenses himself.
Good content. How to pay less income taxes (NDFL) when withdrawing funds from a broker.
Sberbank broker withholds personal income tax at the end of the year at the end of the tax period, or when withdrawing the DS, if the client has a profit in the brokerage account. It is optimal to withdraw funds at the end of the year, delaying tax payment as much as possible.
But we will consider the option when the trader withdraws part of the profit during the year. And it is in the trader’s interests to pay as little taxes as possible.
When withdrawing DS, the broker retains 13% of the profit. When withdrawing DS, you can reduce the amount of personal income tax that the broker withholds. To do this, you need to withdraw a DS amount less than what you need to pay taxes. Then the tax will be withheld not from the profit, but from the withdrawn amount.
Let's look at a specific example. For example, a trader made a profit of 100 thousand rubles. The tax is 13,000. If a trader withdraws an amount greater than 13,000 rubles, the broker will withhold a tax of 13,000 and transfer the rest to the client. If a trader withdraws less than 13,000, then the broker will withhold 13% from 13,000. A trader, for example, withdraws 15,000 from his brokerage account, the broker will withhold tax of 13,000, and transfer 2,000 to the client. If you withdraw 10,000, the broker will keep 1,300 and transfer 8,700 to the client.
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Taxation of income received from the sale of securities by a taxpayer
The specifics of determining the tax base in relation to income from transactions of purchase and sale of securities, as well as the procedure for calculating and paying tax are established in Art. 214.1 NK. Provisions of Art. 214.1 of the Tax Code are used to determine the tax base in relation to income from transactions of purchase and sale of securities, both by tax agents and taxpayers themselves.
The procedure for determining the tax base in relation to income from the sale of securities, calculation and payment of tax is the most complex compared to other income.
Firstly, the procedure for calculating the tax base depends on how the taxpayer received the securities.
Secondly, when determining the tax base, the taxes produced by the taxpayer are taken into account. In this case, the amount of the resulting loss is also accepted.
Other expenses directly related to the purchase, sale and storage of securities, incurred for services provided by professional participants in the securities market within the framework of their professional activities.
If the taxpayer's costs for the acquisition, sale and storage of securities cannot be attributed directly to the costs of the acquisition, storage and sale of specific securities, the specified ones are distributed in proportion to the valuation of the securities to which the specified ones belong. The valuation of securities is determined on the date of these expenses.
If the specified expenses were paid for the taxpayer by other persons, then the amounts of such expenses are not taken into account when determining the tax base.
The date of actual receipt of income from the sale of securities will be considered:
When receiving income in monetary terms, the day the taxpayer receives the income, including the day the amounts due to the taxpayer are credited to a brokerage account or trustee account. When transferring income to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties, the date of receipt of the income is recognized as the day of transfer of such income;
When receiving income in kind - the day of transfer of income in kind. This rule applies, as we see, in the case of settlements under a transaction for the purchase and sale of securities in non-monetary form, for example, when exchanging some securities for other securities.
Tax on transactions of purchase and sale of securities is defined as received based on the results of the tax period on transactions with securities, determined taking into account the provisions of clause 3 of Art. 214.1 NK. In this case, the tax rate is determined separately for each category of securities.
It should be noted that for transactions of purchase and sale of securities traded on the organized securities market, the income received is reduced by the amount of interest paid for the use of raised funds for the acquisition of such securities, within the amounts calculated based on the current refinancing rate of the Bank of Russia .
Example 7
The taxpayer, who is a tax resident of the Russian Federation, received a loan from the bank on November 26, 2007 to purchase securities of the Kometa joint-stock company. Under the loan agreement, this taxpayer was provided with a loan in the amount of 500,000 rubles with interest paid at the rate of 5% per annum for each day of use of loan funds until the day the loan is repaid.
The taxpayer returned the loan amount to the bank and paid interest on December 25, 2007. The amount of interest paid by the taxpayer for the use of credit funds amounted to 2054.79 rubles ((500,000 * 0.05 * 30)/365). The refinancing rate of the Bank of Russia for the period of using credit funds was 10% per annum.
In January 2008, these shares were sold by the taxpayer for 600,000 rubles. The costs of their acquisition, storage and sale amounted to 550,000 rubles.
The total amount of expenses, including interest paid, amounted to 552,054.79 rubles. The tax base is determined as the difference between the amount received from the sale of securities and the total amount of expenses incurred. Thus, the tax base is calculated in the amount of 47,945.21 rubles.
If a loss is incurred as a result of the sale of securities, the taxpayer has the opportunity to accept the amount of such loss to reduce the tax base for transactions with securities of the corresponding category. Thus, a loss on transactions with securities traded on the organized securities market, resulting from the results of these transactions performed in the tax period, reduces the tax base for transactions of purchase and sale of securities of this category.
If purchase and sale transactions of securities belonging to different categories of securities are carried out, the tax base is determined separately for transactions with securities traded on the organized securities market and for transactions with securities not traded on the organized securities market.
Example 8
In 2008, two securities purchase and sale transactions were completed. Shares traded on the organized securities market were sold in the amount of 1,000 on April 1, 2008 for 500,000 rubles, and on April 25, 2008, 50 shares not traded on the organized securities market were sold for 5,000 rubles.
Expenses for the acquisition, sale and storage of securities sold on April 1, 2008 amounted to 300,000 rubles. The income received from this securities purchase and sale transaction amounted to 200,000 rubles (500,000 - 300,000).
Expenses for the acquisition, sale and storage of securities sold on April 25, 2008 amounted to 10,500 rubles. For this transaction, a loss was received in the amount of 5,500 rubles (5,000 – 10,500).
Transactions were carried out with securities of different categories. Therefore, the tax base is determined separately for each transaction of purchase and sale of securities.
In this case, for the first transaction, the tax base is determined in the amount of 200,000 rubles. For the second transaction, the tax base will be zero. Accordingly, the amount of loss on the second transaction cannot be taken into account to reduce the tax base on the first transaction.
However, there are exceptions for certain cases. Thus, income from transactions of purchase and sale of securities not traded on the organized securities market, which at the time of their acquisition met the requirements established for securities traded on the organized securities market, can be reduced by the amount of the loss received in the tax period , on transactions of purchase and sale of securities traded on the organized securities market.
In some cases, the amount of loss on securities purchase and sale transactions is accepted with restrictions. For example, the amount of loss on transactions of purchase and sale of securities traded on the organized securities market is determined taking into account the maximum limit of market price fluctuations.
Sale of securities received by a taxpayer as a gift
In the case of the sale of securities received by a taxpayer as a gift from legal entities, the tax base is determined minus the amount of expenses incurred. In this case, the cost of securities received as a gift is also taken into deduction. At the same time, only the value of securities on which the tax was calculated and paid when receiving securities as a gift is accepted for deduction.
Example 9
An individual who is a tax resident of the Russian Federation received 1,000 shares as a gift from the bank in 2007. Their market value was 315,000 rubles. Based on clause 28 of Art. 218 of the Tax Code of the Russian Federation, the tax base was determined in the amount of 311,000 rubles. The tax was calculated and paid at a rate of 13% in the amount of 40,430 rubles.
In 2008, these securities were sold by the taxpayer for 500,000 rubles. The amount of expenses for storage and sale of securities amounted to 50,000 rubles.
The tax base is determined minus the expenses incurred and the cost of securities on which personal income tax is paid.
Thus, the total amount accepted for deduction when determining the tax base will be 365,000 rubles (311,000 + 50,000). The tax base is determined in the amount of 135,000 rubles (500,000 – 365,000). The tax is calculated and paid at a rate of 13% in the amount of 17,550 rubles.
If the taxpayer received shares or shares as a gift from individuals who are not family members or close relatives of the recipient, then in the event of their sale, the tax base is determined minus the amount of expenses incurred for the storage and sale of these securities, as well as the amount of tax paid by the taxpayer when receiving them as a gift. In this case, the value of securities received from individuals as a gift is not accepted for deduction.
Sale of securities purchased by a taxpayer at a price below the market price or free of charge
In the case of the sale of securities acquired by the taxpayer into ownership at prices below market prices or on a gratuitous basis, when taxing the income received from purchase and sale transactions of such securities, the amounts on which the tax was calculated and paid are also taken into account as documented deductible expenses. when purchasing (receiving) these securities.
Example 10
By decision of the shareholders' meeting, a member of the board of the joint-stock bank in 2007 received 1,000 shares free of charge as an incentive. The market price of one share on the date of the decision to transfer them to the taxpayer was 500 rubles. Taking into account the maximum fluctuation limit of the market price, the cost of one share was 400 rubles. In July 2008, these shares were sold for 800,000 rubles. The costs of storing and selling shares amounted to 50,000 rubles.
The specified taxpayer in 2007–2008 is a tax resident of the Russian Federation.
The material benefit received in 2007 as a result of the gratuitous receipt of 1,000 shares was determined in the amount of 400,000 rubles (400 * 1,000). Personal income tax was calculated and withheld by the bank from this taxpayer at a rate of 13% in the amount of 52,000 rubles.
When determining the tax base for income received in 2008 from the sale of shares, expenses incurred by the taxpayer in the amount of 50,000 rubles and the cost of shares in the amount of 400,000 rubles, on which tax was paid, are taken for deduction. In this case, the tax base for income received from the sale of shares will be 350,000 rubles, and the amount of personal income tax will be 45,500 rubles (350,000 * 0.13).
If the taxpayer received securities free of charge, the tax on the value of which was not calculated or paid, then when selling such securities, for the purpose of determining the tax base, only expenses actually incurred by the taxpayer are accepted and the value of the securities is not accepted for deduction.
It should be noted that in the event of the sale of shares received by the taxpayer as a result of the exchange (conversion) of shares by the issuing organization, the costs of acquiring shares that the taxpayer owned before their exchange (conversion) are recognized as documented expenses of the taxpayer.
When selling shares received by a taxpayer during the reorganization of organizations, the cost of their acquisition is recognized as the cost determined in accordance with clauses 4–6 of Art. 277 of the Tax Code of the Russian Federation, subject to documentary confirmation by the taxpayer of expenses for the acquisition of shares of reorganized organizations.
General rules for determining the tax base, calculation and payment of tax
The tax base for the taxpayer's income is determined by the bank from which or as a result of relations with which the taxpayer received income subject to personal income tax.
If the bank determines the tax base in relation to the taxpayer’s income, then it is also obliged to calculate and withhold the amount of tax from the taxpayer and transfer the withheld amount of tax to the budget system of the Russian Federation.
The tax base for income received from a bank is usually determined when the taxpayer receives the income. Simultaneously with the calculation of the tax base, the tax is calculated and withheld. This is stated in Art. 226 Tax Code of the Russian Federation.
However, special rules for determining the tax base are established in Art. 214.1 of the Tax Code of the Russian Federation in relation to income received from transactions for the purchase and sale of securities. In particular, the tax base for income from the sale of securities is determined:
Tax agents (banks) - at the end of the tax period (during the tax period - at the end of the contract);
Taxpayers - on the basis of a tax return submitted by them to the tax authority in the manner established by Art. 228 and 229 of the Tax Code of the Russian Federation.
When the bank pays money to the taxpayer during the tax period, the tax is calculated on the share of income determined in accordance with clause 8 of Art. 214.1 Tax Code of the Russian Federation. The share of income is determined by the formula:
DD = OSD * (SV/SOP),
where DD is the share of income;
TSD - total amount of income;
SV - payment amount;
SOP - portfolio valuation (valuation of securities, amount of funds).
However, banks that are tax agents, in accordance with clauses 3 and 8 of Art. 214.1 of the Tax Code of the Russian Federation has the right to determine the tax base in relation to income from transactions of purchase and sale of securities carried out by them on the basis of intermediary agreements of a civil nature concluded with taxpayers, namely an agency agreement, trust management, agency agreement. Accordingly, in relation to income from such transactions, banks are required to calculate the tax base and calculate the amount of tax, as well as withhold it and pay it to the budget at the expense of the taxpayer’s funds available to the tax agent.
With regard to income from transactions with securities carried out by banks on the basis of securities purchase and sale agreements concluded with taxpayers (purchase of securities from these taxpayers in the interests of the bank, that is, not intermediary agreements), the tax base is determined by taxpayers. The latter are required to declare income received from transactions with securities.
Tax amounts in respect of income paid by the bank are calculated on an accrual basis from the beginning of the tax period based on the results of each month in relation to all income in respect of which a tax rate of 13% is applied, with the offset of the tax amount withheld in previous months of the current tax period. The amount of tax in relation to income in respect of which other tax rates are applied is calculated separately for each amount of the specified income accrued to the taxpayer.
Banks determine the tax base and tax amounts without taking into account the income received by the taxpayer from other tax agents and the tax amounts withheld by other tax agents.
The tax agent withholds the accrued amount of tax from the taxpayer at the expense of any funds paid by him to the taxpayer upon actual payment of these funds to the taxpayer or on his behalf to third parties. The total amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of which it is recognized as a source of income, is paid at the place of registration of the tax agent with the tax authority to the appropriate budget account.
The source of income payment cannot delegate the powers of a tax agent to other persons. If the tax agent cannot withhold tax amounts from the taxpayer, he is obliged to notify the tax authority in writing about this and the amount of the taxpayer’s debt within one month from the moment the relevant circumstances arise.
The amounts of tax on the taxpayer's income calculated and withheld by the bank are transferred to the budget system of the Russian Federation within the time limits established in Art. 214.1 and 226 of the Tax Code of the Russian Federation.
Please note that in accordance with the amendments made to Art. 214.1 of the Tax Code of the Russian Federation Federal Law No. 216-FZ dated July 24, 2007, from January 1, 2008, the transfer of tax withheld from the taxpayer on income from transactions with securities is carried out within one month from the end of the tax period or the date of payment of funds (transfer of securities ). In this case, the payment of funds means the payment of cash, the transfer of funds from the accounts of tax agents in a bank to the accounts of the taxpayer or, on his behalf, to the accounts of third parties in banks. This procedure for transferring tax withheld from the income of individuals from transactions of purchase and sale of securities is established in clause 8 of Art. 214 Tax Code of the Russian Federation.
The taxpayer also independently determines the tax base and the amount of tax, and if the tax agent did not withhold the tax, then the taxpayer independently pays the tax to the budget system of the Russian Federation.
The procedure for determining the tax base and tax amount by the taxpayer is similar to the procedure followed by the tax agent. All calculations by the taxpayer are carried out in a tax return, to which are attached the relevant documents confirming the receipt of income from transactions with securities and the right to deductions, and an application for the provision of deductions.
Example 11
In 2001, the taxpayer acquired 1,000 shares of a joint stock company. The cost of one share was 100 rubles. In 2007, he sold these shares to the bank under a purchase and sale agreement for 300,000 rubles. The taxpayer's expenses for the acquisition, sale and storage of securities amounted to 110,000 rubles.
The tax base in this case is determined minus the actual expenses incurred and will be 190,000 rubles (300,000 - 110,000).
At the end of 2007, the taxpayer independently calculates the tax base and the amount of tax in the tax return. It must be submitted to the tax authority at the place of residence no later than April 30, 2008. Payment of the calculated tax amount is made no later than July 15, 2008.
If the bank determined the tax base and the amount of tax in relation to the taxpayer’s income, but the tax was not withheld, then the tax agent is obliged to send information about income to the tax authority in Form No. 2-NDFL “Certificate of Income of an Individual” about the impossibility of withholding tax at the source of payment income. In this case, the tax is paid by the taxpayer on the basis of a tax notice, which is handed to him by the tax authority. In this case, the taxpayer is also obliged to submit a tax return for personal income tax to the tax authority at the place of residence in the Russian Federation.
It should be noted that, according to sub. 2 p. 1 art. 228 of the Tax Code of the Russian Federation, individuals who received income from the sale of property are required to declare the specified income within the time limits established by Art. 229 Tax Code of the Russian Federation. Therefore, taxation of income from the sale of securities and payment of tax on such income at the source of payment do not exempt the taxpayer from filing a tax return with the tax authority at his place of residence.
The obligation of an individual to pay tax is considered fulfilled from the date of payment of the due amount of tax. When the tax is calculated by a tax agent, the obligation to pay the tax is considered fulfilled from the date the tax agent withholds the calculated amount of tax. Payment of tax at the expense of a tax agent or other person is not permitted.
V.M. Akimova, State Advisor to the Tax Service of the Russian Federation, III rank
Income from a foreign broker: features of personal income tax calculation
Many taxpayers carry out transactions on the stock market, these include transactions with securities and transactions with financial instruments of futures transactions. As a result of these operations, a citizen can receive not only a profit, but also a loss.
What must an investor do if a profit is made at the end of the year?
It all depends on whether the broker is a foreign company or not. If we are talking about a Russian legal entity, then tax calculations and reporting are carried out directly by the broker himself, because it is he who acts as a tax agent for personal income tax. But if the broker is a foreign company, then the investor himself is obliged to pay income tax (NDFL) and report the amount of income.
A foreign broker is not a tax agent under Russian tax legislation.
Report submission deadline- until May 3 of the year following the reporting year. For example, for 2017 you will need to submit a report before May 3, 2018.
The tax payment deadline is July 15 of the year following the reporting year. For 2017, personal income tax must be paid by July 15, 2018. As we can see, the deadline for paying tax is set a little later than the deadline for submitting reports. There is no need to rush and pay income tax before the declaration is submitted. It is not necessary. It is best to first submit documents to the inspectorate, which the tax inspector will check and, if errors are found, will correct the final tax amount.
Do I need to attach a copy of the personal income tax payment receipt to the declaration?
No, a copy of the tax payment document is not attached to the declaration, because the declaration reflects only the amount of accrued personal income tax, but not paid.
At the end of a profitable year, a tax return 3-NDFL is required to be filed. Such a declaration is completed for one specific year. That is, you cannot combine the amount of income for several years at once into one declaration. Each year has its own tax return. Moreover, the 3-NDFL declaration form can change every year and it is necessary to fill out the form that was in force for a particular year.
For example, an investor made a profit from a securities transaction in 2015, but he did not know about the obligation to submit a 3-NDFL declaration. In 2017, he received a request from the tax office to submit reports. So, in 2017, the investor needs to fill out the 3-NDFL declaration form for 2015, because he received income in 2015.
At what rate is personal income tax calculated?
If the taxpayer (investor) is a tax resident of Russia, the personal income tax rate is 13%.
What documents must be attached to the 3-NDFL tax return?
To confirm the income received, the following documents must be submitted to the tax office:
- A certificate from the broker (this can be not only a certificate, but also an account statement or other document). The certificate is provided in the original. The document must reflect information about the income received, currency, and date of receipt of income. There must be a date. Why is such detailed information necessary? The fact is that in order to calculate the amount of tax, you need to calculate the amount of income received in rubles for each transaction for each day. That is, you need to convert this or that currency into rubles at the Central Bank exchange rate. And, as we know, the rate changes every day, which is why the fact of indicating the date in the document from the broker is important. The certificate must be ordered from the broker at the end of the year. There is no need to request such a document before the end of the year.
- A copy of the passport (indicating the series, number, name of the authority that issued the passport and page with registration).
Do I need a 2-NDFL certificate?
As we said above, a foreign broker is not a tax agent and does not withhold income tax from the investor’s income. Certificate 2-NDFL is used within the framework of Russian tax legislation. Therefore, there is no need to request a 2-NDFL certificate from a foreign broker, he will not be able to give it.
What happens if you don’t submit your 3-NDFL declaration?
In the event that the declaration is not submitted on time (with late), then the investor will be charged a fine of 5% of the unpaid tax amount in accordance with the calculation in the declaration, but not more than 30% of the specified amount and not less than 1000 rubles (based on Article 119 of the Tax Code of the Russian Federation).
Is it possible to take into account losses incurred in previous periods when calculating taxes?
As you know, if income is received on the Russian stock market, then each investor will be able to offset losses and return 13% of the amount of the loss received. This is called getting a tax deduction for transactions with securities.
If an investor makes a profit at the end of the year from a foreign broker, he will also be able to offset losses (accepted as a reduction in the tax base for a profitable year) from previous years. Reason: Article 220.1 of the Tax Code of the Russian Federation.
When determining the size of the tax base, the state allows us to use the right to receive tax deductions when carrying forward losses from transactions with securities traded on the organized securities market and with financial instruments of futures transactions (FIT) traded on the organized market. There are no restrictions regarding a foreign broker in Article 220.1 of the Tax Code of the Russian Federation.
How to take into account losses from previous years?
Tax deductions when carrying forward to future years losses from transactions with securities and transactions with financial instruments of futures transactions are provided:
- In the amount of losses received from transactions with securities traded on the organized securities market. The specified tax deduction is provided in the amount of losses actually received by the taxpayer from transactions with securities traded on the organized securities market in previous tax periods within the size of the tax base for such transactions;
- In the amount of losses received from transactions with financial instruments of futures transactions traded on the organized market. The specified tax deduction is provided in the amount of losses actually received by the taxpayer from transactions with financial instruments of futures transactions traded on the organized market in previous tax periods within the size of the tax base for such transactions.
In other words, if you had a loss on derivatives, then it can be offset only with profit on financial instruments, “without interfering” with profit on transactions with securities.
In order to take into account losses, it is imperative to request from a foreign broker not only a certificate or other document for a profitable year, but also a document confirming the amount of loss received for a loss-making year.
You can fill out the declaration easily and without errors using the tax service website. Using the website service, you can not only fill out a declaration, but also receive qualified assistance in filling out the document, which will help you avoid mistakes and speed up the process of receiving your tax deduction.
In addition, in the website service you can place an order for the preparation of a 3-NDFL declaration by tax consultants. Consultants will make you a 3-NDFL tax return within one business day.
Good luck with your declaration!
It is no secret that the most difficult problems for accountants arise when calculating personal income tax on transactions related to the purchase and sale and redemption of securities. In some cases, the calculation of tax is influenced not only by the norms of tax legislation, but also by the provisions of securities legislation. The article describes who and in what order calculates personal income tax on transactions with securities.
When a tax agent withholds personal income tax
In Article 214.1 of the Tax Code of the Russian Federation, the definition of a person who must perform the functions of a tax agent when selling securities by an individual is given twice. For example, paragraph 3 states that a tax agent is a broker, trustee or other person performing transactions under an agency agreement, other similar agreement in favor of the taxpayer. And paragraph 8 says that a tax agent is a broker, trustee or other person performing transactions under an agency agreement, commission agreement, another agreement in favor of the taxpayer.Comparing these two definitions, we can conclude that the tax agent can be one of the professional participants in the securities market:
Trustee;
The person performing transactions under the agency agreement;
A person performing transactions under a commission agreement;
A person who carries out transactions in favor of an individual under any other agreement, similar to an agency agreement, for example, an agency agreement;
A person who carries out transactions in favor of an individual under an agreement other than an agency, commission or trust agreement.
Sometimes in practice the question arises: what is meant by operations in favor of an individual? Can this include any operations of organizations that are associated with payments in favor of individuals under transactions for the purchase and sale of securities? In other words, the phrase “another agreement in favor of an individual” can be understood in two ways. Or like any other intermediary agreement where the organization operates in the interests of this individual. Or like any other agreement providing payments to an individual from an organization.
Based on the text of Article 214.1 of the Tax Code of the Russian Federation, we can conclude that the legislator, by tax agents, still meant intermediary organizations (brokers, trustees and others). “Agreement in favor of an individual” is not a synonym for “agreement with an individual.” An agreement in favor of an individual should be understood as an agreement concluded in the interests of an individual, that is, an intermediary agreement. The legislator simply made the list of such intermediaries open, limiting it only to professional participants in the securities market. And this is quite justified, given the variety of types of intermediary agreements in civil law. In addition, intermediary agreements can be combined. An example of this is mixed contracts. In addition, Article 426 of the Civil Code of the Russian Federation gives the parties the right to draw up their own types of agreements, including intermediary agreements, not provided for by the Civil Code.
Thus, those organizations or citizens who directly purchase securities from an individual are not tax agents. If an individual sells securities without going through an intermediary, he must pay the tax himself and submit a tax return. True, if the buyer of securities is an organization, it is obliged to submit information to the tax authority about income paid to an individual.
Please note: Article 214.1 of the Tax Code applies only to those types of income that are directly listed in it, that is, income:
From transactions of purchase and sale of securities;
From redemption of investment shares;
From forward transactions, the subject of which (the underlying asset) are securities.
All other transactions with securities (for example, receipt of interest, dividends, income from the redemption of bills) are not regulated by this article. Therefore, the tax on them is withheld from an individual in accordance with Article 226 of the Tax Code of the Russian Federation. That is, an organization or individual entrepreneur must withhold personal income tax when paying such income to an individual.
What if the payment of interest (accumulated coupons) accompanies every transaction for the purchase and sale of securities (for example, corporate bonds)? Then income for personal income tax purposes must be divided - the result from the purchase and sale of securities and the difference in interest paid and received (accumulated coupons) are taken into account separately.
How to determine the tax base when purchasing securities
In practice, a situation is possible when an individual buys securities at prices below market prices. In this case, is the excess of the market value of these securities over the amount of actual expenses for their acquisition subject to taxation? Yes, it is subject to personal income tax as a material benefit (subclause 3, clause 1, article 212 of the Tax Code of the Russian Federation). The market value of securities is determined taking into account the maximum fluctuation limit of their market price (see the “Please note” sidebar).The date of receipt of income in the form of material benefit is the date of acquisition of the security (subclause 3, clause 1, article 223 of the Tax Code of the Russian Federation). That is, the date of transfer of ownership of the security to the buyer.
For issue-grade securities (see the “Help” sidebar), the transfer of ownership occurs at the time of making a credit entry in a securities account, an account in the register of owners, or at the time of transfer of a security certificate. When purchasing non-issue securities, the material benefit is not determined, since they are not traded on the organized securities market.
EXAMPLE 1
I.I. Sokolov bought 10,000 shares of RAO UES on August 5, 2004 at a price of $0.15 per share. The weighted average price of RAO UES shares as of August 5 was USD 0.236 per share. The US dollar exchange rate on this date is 29.1764 rubles/dollar. USA. On the same day I.I. Sokolov purchased for 170,000 rubles. bill with a nominal value of 200,000 rubles. with a maturity date of October 1, 2004.
RAO UES shares are traded on the organized market. Consequently, their market price is determined as the weighted average trading price, taking into account the limit of maximum fluctuations - $0.1888 per share ($0.236 - $0.236 x 20%). Material benefit I.I. Sokolov when purchasing shares:
($0.1888 – $0.15) x 29.1764 RUR/USD USA x 10,000 shares = RUB 11,320.44
The bill is not traded on the organized securities market. Consequently, material benefits are not calculated from it.
How to determine the tax base when selling securities
The tax base for personal income tax from the sale of securities is determined upon their sale. If there were no sales during the tax period, the tax base is not determined. According to paragraph 3 of Article 214.1 of the Tax Code of the Russian Federation, the tax base can be determined in two ways. Firstly, it is calculated as the amount received from the sale of securities, minus the confirmed costs of their acquisition, storage and sale. Secondly, it is defined as the amount received from the sale of securities, minus the property tax deduction. However, the second method is applied only when it is impossible to apply the first, that is, when there are no documented expenses. The deduction can only be obtained in the tax period in which the securities were sold.| NOTE | |
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Please note: according to the tax authorities, the first method is used even in cases where at least one of the expenses is confirmed. For example, in practice, a situation often arises when the costs of acquiring and storing securities cannot be confirmed, while the costs of sales (remuneration to a broker or trustee) can be confirmed. Then the first method is used to determine the tax base, although the second method would be more beneficial to the taxpayer.
It is known that transactions of individuals in the stock market can be both profitable and unprofitable. Article 214.1 of the Tax Code of the Russian Federation allows during the tax period to reduce taxable income by the amount of losses from transactions with securities, subject to certain conditions.
For tax purposes, securities are divided into two categories: traded and non-traded on the organized market.
Losses from transactions with securities are deducted from the tax base of the current period, but in an amount not exceeding income from the same category of securities. Therefore, in order to correctly determine the tax base during the year, it is necessary to keep separate records of income and losses from transactions with securities - traded and not traded on the organized market.
If a taxpayer operates in the stock market through a professional intermediary who is a tax agent (broker, trustee), such records are maintained by the agent. However, the taxpayer can carry out transactions on the stock market independently. In this case, he must keep records of income and expenses himself.
How to determine the amount of confirmed expenses for the purchase of securities
When forming the tax base, the most important point is to determine the amount of confirmed expenses of an individual.Clause 3 of Article 214.1 of the Tax Code of the Russian Federation provides a list of expenses that reduce the tax base. This list is open. It includes:
Expenses for the purchase of securities;
Commissions of exchanges and brokers;
Deposit fees;
Interest on loans for the purchase of securities (within the refinancing rate of the Central Bank of the Russian Federation);
Payment for registrar services;
Other expenses directly related to the purchase and sale of securities.
Please note: if the taxpayer received securities in ownership free of charge or with partial payment, then the amounts on which the tax was calculated and paid upon receipt of such securities are taken into account as documented expenses for the acquisition of these securities.
In a number of cases, taxpayer expenses associated with the acquisition, storage or sale of securities can technically be calculated only by calculation. Then these expenses are distributed in proportion to the valuation of the securities to which these expenses relate. The valuation of securities is determined on the date of these expenses. This is stated in paragraph 3 of Article 214.1 of the Code.
A similar situation arises, for example, if the taxpayer owns a block of shares that were purchased by him at different times and at different prices. All these securities can be reflected in total and impersonally on one securities account in the depository or personal account in the register of shareholders. When selling part of a stake, it is impossible to accurately determine the costs of acquiring these particular shares. After all, all issue-grade securities within one issue (series) are no different from each other.
A similar situation is typical for the case when the depository charges a monthly subscription fee for maintaining a custody account. It applies to all securities in this account. However, this year the taxpayer can sell only part of this package. Therefore, for tax purposes, depositary expenses will be accepted in the proportion corresponding to the sold package.
EXAMPLE 2
For maintaining a custody account, the depository charges a monthly fee of 300 rubles. At A.A. Ivanov, on January 1, 2004, a deposit account was opened in which securities in the amount of 200,000 rubles are stored. In August 2004, part of the securities in the amount of 70,000 rubles. was sold.
The costs of maintaining a securities account are distributed in proportion to the value of all securities. Therefore, 735 rubles can be taken into account as part of confirmed expenses when calculating personal income tax. (300 rub. x 7 months: 200,000 rub. x 70,000 rub.).
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Article 214.1 of the Tax Code of the Russian Federation contains a general requirement to distribute expenses in proportion to the valuation of securities. However, Chapter 23 of the Tax Code of the Russian Federation in its current version does not establish which specific methods for such distribution the taxpayer has the right to use. For comparison: Chapter 25 of the Code establishes specific methods for distributing expenses - FIFO, LIFO and the “unit cost” method (clause 9 of Article 280). Therefore, personal income tax payers can independently choose the methods of such distribution. Tax authorities recommend that the chosen method be specified in the assignment agreement with a professional participant in the securities market. This is necessary so that the tax agent uses this method when calculating the tax base for a given taxpayer. The simplest method is cost averaging. That is, calculating the average cost of acquisition, storage and sale per security. For example, when selling part of a block of shares, the distribution of expenses in proportion to the valuation of securities can be realized by calculating the average cost of securities sold, similar to how this is done in accounting.
EXAMPLE 3
I.A. Petrov in January 2004 acquired 2,000 shares worth 250,000 rubles. And in March, he bought another 700 shares of the same par value and issuer in the amount of 119,000 rubles. He sold 1,500 shares in August.
I.A. Petrov can calculate the cost of purchasing shares at an average cost. In this case, there are 136.67 rubles per share. [(RUB 250,000 + RUB 119,000): (2,000 shares + 700 shares)] acquisition costs. I.A. Petrov can reduce the tax base for personal income tax by 205,005 rubles. (RUB 136.67 x 1,500 shares).
Features of providing a property deduction when selling securities
According to paragraph 3 of Article 214.1 of the Tax Code of the Russian Federation, if the taxpayer’s expenses when selling securities cannot be documented, he has the right to take advantage of the property tax deduction. This deduction can be provided by the source of income payment (tax agent) or the tax authority when the taxpayer submits a return.In the case where the securities were owned by an individual for less than three years, the fixed deduction is equal to 125,000 rubles. If the period of holding securities is three years or more, a deduction is provided for the entire amount of proceeds from the sale of securities.
In practice, two important issues arise related to the provision of a property deduction. Firstly, what is the taxation procedure if the taxpayer received income from securities transactions with several tax agents? Secondly, what to do if the taxpayer can document expenses for some transactions with securities, but not for others?
The answer to the first question can be found in paragraph 3 of Article 214.1 of the Tax Code of the Russian Federation. It says that if there are several sources of income payment, a property tax deduction is provided only for one of them. Moreover, at the choice of the taxpayer. According to the same paragraph, if the calculation and payment of tax is carried out by a tax agent and he also provides a property tax deduction, then at the end of the tax period when filing a tax return, the taxpayer can recalculate the amount of this deduction.
In other words, at the end of the year, the taxpayer has the right to use the tax deduction only once from one tax agent. However, in the future - when submitting a declaration to the tax authority - the taxpayer can recalculate the tax base.
For example, a taxpayer managed to sell securities through one broker in the amount of RUB 50,000, and through another - in the amount of RUB 70,000. Both packages were in his ownership for two years. In the first case, the broker provided the individual with a deduction in the amount of the entire amount of revenue, since it does not exceed 125,000 rubles. Therefore, in the second case, an individual no longer has the right to take advantage of such a deduction. And this despite the fact that the total of both transactions does not exceed 125,000 rubles. However, at the end of the year, the taxpayer can recalculate when filing a return and take advantage of the deduction in full.
A more complex situation arises if for some transactions an individual had confirmed expenses for the acquisition, storage and sale of securities, but for others - not. Such a case is not directly described in Article 214.1 of the Tax Code of the Russian Federation, and today there are two points of view on this issue.
The first is that only one method should be used during the year, since the simultaneous provision of two types of deductions is not provided for in Article 214.1 of the Tax Code of the Russian Federation. Its disadvantage is that the taxpayer becomes a “hostage” of his first transaction made in the current year. And if a property tax deduction is received on it, then all subsequent income will be taxed in full. Moreover, even if there are confirmed expenses for them.
The second position is that Article 214.1 of the Tax Code of the Russian Federation does not provide for the simultaneous provision of two types of deductions for different transactions during the year, but it does not directly prohibit this. Paragraph 3 of this article only prohibits the multiple use of property tax deductions by different tax agents.
According to paragraph 2 of Article 214.1 of the Tax Code of the Russian Federation, the tax base for each operation specified in paragraph 1 of the same article, determined separately. Paragraph 3 of this article states that income (loss) from transactions for the purchase and sale of securities is determined as the amount of income from the totality of transactions with securities of the corresponding category made during the tax period, minus the amount of losses. In other words, the tax base is determined for each group of securities (traded and non-traded on the organized securities market). And the income (loss) from these transactions for the year as a whole is nothing more than the sum of the income (losses) from each transaction in the group.
This means that the income calculation algorithm provided for in Article 214.1 of the Code must be applied to each transaction for the sale of securities. That is, first of all, we must try to determine the taxpayer’s expenses, since this method is a priority.
Refusal from the method of confirmed expenses under Article 214.1 is possible only in one case - if the expenses cannot be confirmed. Moreover, since the tax base is calculated for each transaction, we are talking about expenses specifically for given deal. Article 214.1 of the Tax Code of the Russian Federation does not contain any other grounds for refusing this priority method.
Please note: although the Russian Tax Ministry adheres to the second position, it believes that the intermediary can determine at a minimum the taxpayer’s expenses for implementation (commission). Therefore, the taxpayer is unlikely to be able to use the fixed deduction method when selling securities through a tax agent.
Peculiarities of calculating the tax base by a broker (trustee)
According to paragraph 4 of Article 214.1 of the Tax Code of the Russian Federation, an individual’s income from the sale of securities is considered an accrual total during the year. Income accounting must be kept separately for two categories of securities - traded and non-traded on the organized market. For each transaction for the sale of securities, the costs of acquiring securities must be determined, including the purchase price, overhead costs for purchase and sale. This is stated in paragraph 3 of Article 214.1 of the Tax Code of the Russian Federation.If costs cannot be linked to a specific transaction for the sale of securities (for example, storage costs), they are distributed over the entire package of available securities.
If an individual does not withdraw funds from an agreement with a broker (trustee) during the year, the tax base for the amount of income is determined on the last day of the year.
In case of withdrawal of funds from trust management during the year, tax is withheld from part of the accrued income at the time of payment. When an individual works in the stock market through a trustee, this part is determined as the ratio of the amount of cash payment to the valuation of securities (money) on the date of payment. The valuation of securities in an individual’s portfolio refers to the actually incurred and documented expenses for their acquisition (paragraph 3, clause 8, article 214.1 of the Tax Code of the Russian Federation).
EXAMPLE 4
N.N. Sidorov withdraws part of the funds in the amount of 400,000 rubles. from trust management. The valuation of securities on the date of payment is RUB 200,000. Funds in the amount of RUB 100,000 remained in trust management. The accumulated tax base for personal income tax of N.N. Sidorov is 60,000 rubles.
When withdrawing funds from trust management, the trustee as a tax agent must withhold personal income tax. The amount of withholding tax is determined based on the ratio of the amount of cash payment to the valuation of securities (cash) on the date of withdrawal of funds. That is, the tax agent must withhold from N.N. Sidorova:
60,000 rub. x 400,000 rub. : (200,000 rub. + 100,000 rub. + 400,000 rub.) = 34,285.71 rub.
When an individual works on the organized market through a broker, the proportion is the ratio of the amount of cash payment to the valuation of securities determined on the date of payment of funds. This is stated in paragraph 8 of Article 214.1 of the Tax Code of the Russian Federation.
It would seem that, based on the literal interpretation of the Code for a broker, the amount of payment is divided by the value of the portfolio valuable papers, and for the trustee - by the value of the portfolio valuation securities (cash).
However, in practice, the client’s funds at the disposal of the broker at any given moment can be either in the form of investments in securities or in the form of free cash.
If the broker divides the amount of funds withdrawn only by the value of the securities portfolio, various technical misunderstandings may arise when calculating the tax base. Thus, a situation is possible when the ratio of the cash payment to the value of the securities will be greater than 1. This will happen if the client has sold almost all of his securities (but some small part is still left), and decided to withdraw all the proceeds.
EXAMPLE 5
Let's use the conditions of example 4. Let's assume that the tax agent is not a trustee, but a broker.
If money is not taken into account in the denominator of the fraction, it turns out that the tax agent must withhold an amount of tax greater than the calculated tax base, that is, 120,000 rubles. (60,000 rubles x 400,000 rubles: 200,000 rubles).
It is even possible that the denominator of the fraction for calculating the tax base may even contain zero. For example, if the client sold all the securities, but did not withdraw all the money. It turns out that in paragraph 8 of Article 214.1 of the Tax Code of the Russian Federation, when describing the procedure for calculating the share of income when paying funds by a broker, a technical error was made.
To avoid these problems, most tax brokers put in the denominator of the fraction the sum of the value of the securities portfolio at purchase prices and the client’s funds remaining at the disposal of the broker at the time of withdrawal. In addition, the Russian Tax Ministry recommends doing the same.
Taxation of income from securities in the form of interest and dividends
According to subparagraph 1 of paragraph 1 of Article 208 of the Tax Code of the Russian Federation, interest (including on securities) and dividends received from Russian organizations and (or) a foreign organization in connection with the activities of its permanent representative office in Russia are classified as income from sources in Russia. Article 209 of the Code states that the specified income is subject to personal income tax taxation for both residents and non-residents. However, subparagraph 25 of Article 217 of the Tax Code of the Russian Federation provides for one exception. Namely: income in the form of interest on government securities of the Russian Federation and constituent entities of the Russian Federation is not subject to taxation.Income received from a foreign organization that does not have a permanent representative office in Russia, or not related to the activities of its permanent representative office, is subject to personal income tax taxation only for resident individuals (subclause 1, clause 3, article 208, article 209 of the Tax Code of the Russian Federation ).
What if the interest on the security is received in the form of a discount? In this case, the issuer will be able to withhold tax only if he himself sold this security to an individual. In other cases, the amount of the discount received by an individual is not known to the tax agent.
Dividends from resident individuals received from Russian organizations are subject to personal income tax at the source of payment (issuer of the security) at a reduced rate of 6%. This is established by paragraph 4 of Article 224 of the Tax Code of the Russian Federation. In this case, the amount of taxable dividends is reduced by dividends previously received by the issuer in the current and previous tax periods, if these dividend amounts were not included in the calculation when determining taxable income in the form of dividends. This is stated in paragraph 2 of Article 214 and paragraph 2 of Article 275 of the Tax Code of the Russian Federation. For non-residents the rate is higher - 30% (clause 3 of Article 224 of the Tax Code of the Russian Federation). In addition, the income of a non-resident founder of a Russian organization in the form of dividends is fully taxed. Moreover, regardless of whether the source of payment receives dividends from other organizations. The basis is paragraph 2 of Article 214 and paragraph 3 of Article 275 of the Tax Code of the Russian Federation.
EXAMPLE 6
The authorized capital of OJSC Snezhinka is divided into 10,000 shares. At the same time, 2,000 shares are owned by individuals - non-residents of Russia, and the rest by individuals - residents. Based on the results of 2004, the company decided to pay dividends in the amount of 5 rubles. per share. In turn, OJSC Snezhinka received dividends from other organizations in the amount of 8,000 rubles.
The total amount of dividends to be paid by Snezhinka OJSC is 50,000 rubles. (5 rubles x 10,000 shares).
The company, acting as a tax agent, must withhold personal income tax from non-resident individuals in the amount of 3,000 rubles. (5 rubles x 2000 shares x 30%).
The amount of dividends taxed at a rate of 6% is RUB 32,000. .
OJSC Snezhinka must withhold personal income tax from each payment of dividends to a resident individual. The total amount of tax withheld from residents will be 1920 rubles. (RUB 32,000 x 6%).
A resident who received income in the form of dividends from a foreign organization that does not have a permanent establishment in Russia, or is not related to the activities of its permanent establishment, calculates tax at a rate of 6%. In addition, he has the right to reduce the amount of personal income tax by the amount of tax calculated and paid at the location of the source of income. True, only if the source of income is located in a foreign state with which a treaty (agreement) on the avoidance of double taxation has been concluded, and the non-resident presents a document confirming his right to offset the tax in Russia (Article 232 of the Tax Code of the Russian Federation).
Features of taxation of dividends on shares held in trust
When accruing dividends, the issuer is obliged to withhold personal income tax from a resident individual at a rate of 6%. Tax is withheld from shareholders. The list of shareholders for participation in the meeting and payment of dividends is compiled according to the register of shareholders. If for any reason the shares in the register are in the account of a nominee holder, the issuer requests from him a list of the real owners of the securities. And, as established by Article 8 of Federal Law No. 39-FZ dated April 22, 1996 “On the Securities Market,” the nominee holder is obliged to provide such a list.However, the specifics of Russian legislation on the securities market are such that if the shares are in the account of a trustee, then there are no regulations that would oblige him to provide the issuer with information about his clients. And without such a list, the issuer cannot perform the functions of a tax agent. After all, the names of taxpayers in this situation are known only to the trustee.
The fact that a trustee is not required to disclose the names of his clients at the request of the issuer of shares is not accidental. A trustee is not a simple intermediary, but a person to whom the owner has completely entrusted the care of his property and has granted the right to replace himself in all legal relations related to this property. Moreover, this is the person who has the right to receive income from the shares transferred to the trust. This is established by clause 5.2 of the Regulations on the trust management of securities and funds for investing in securities, approved by Resolution of the Federal Securities Commission of Russia dated October 17, 1997 No. 37. Thus, the recipient of dividends on shares is the trustee, who acts on his own behalf.
According to Article 24 of the Tax Code of the Russian Federation, tax agents are persons who, in accordance with the Code, are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to the appropriate budget.
As established by Article 43 of the Tax Code of the Russian Federation, a dividend is any income received by a shareholder from an organization during the distribution of its profit remaining after taxation. Thus, the source of dividend income is generally the issuer of the security. That is, the organization from whose profits these payments are made.
At the same time, the concept of “source of payment” implies a direct relationship between the one who pays and the one who receives the income. The payout source must at least know to whom it is paying the dividends. When shares are held by a trustee, there may not be such a relationship between the issuer and the shareholder.
The issuer does not know the names of its shareholders, and the latter deal only with the trustee and receive income from him. The specificity of the trust management agreement is such that, in fact, the source of all income for the trust management founder is the manager. From this, many taxpayers conclude that in relation to dividends on shares that are transferred into trust management, the tax agent should be the manager, and not the issuer. However, this approach is not enshrined in the Tax Code, which creates difficulties in taxing such transactions.