Due to the fact that from this year, personal income tax on the income of residents and non-residents is credited to one KBK, you will not have to write applications to the inspectorate to offset the tax from one KBK to another, as was previously the case. So that's one less problem.

And do not forget that when calculating insurance premiums to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund on the income of foreigners, it does not matter at all whether they are residents of the Russian Federation or not.

183 days are counted over a continuous 12-month period determined as of the relevant date of receipt of income, including those beginning in the previous calendar year and continuing in another calendar year.

The tax resident status for citizens of the Republic of Belarus is established completely differently.

Taxation of citizens of the Republic of Belarus is carried out taking into account the provisions of the Protocol of 01/24/2006 to the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on the avoidance of double taxation and the prevention of tax evasion in relation to taxes on income and property of 04/21/1995.

Clause 1 of Art. 1 of the Protocol provides that remuneration received by a citizen of the Republic of Belarus in relation to work for hire carried out in the Russian Federation during a period of stay in Russia of at least 183 days in a calendar year or continuously for 183 days, starting in the previous calendar year and expiring in the current calendar year, may be taxed in the Russian Federation in the manner and at the rates provided for persons with permanent residence in the Russian Federation.

According to paragraph 2 of Art. 1 of the Protocol, the specified tax regime is applied from the date of commencement of employment in the Russian Federation, the duration of which, in accordance with the employment contract, is at least 183 days.

The Ministry of Finance of the Russian Federation, in Letter No. 03-04-06/6-98 dated April 5, 2012, clarified that based on the results of the tax period, the final tax status of an individual is established, in accordance with which the tax rate of his income received during the tax period is determined.

If, at the end of the tax period, a citizen of Belarus will stay in the Russian Federation for less than 183 days in a calendar year, the condition of clause 1 of Art. 1 of the Protocol will not be observed and personal income tax on his income must be withheld by a Russian organization - a tax agent at a rate of 30 percent.

In this case, in relation to income received in the next year, a rate of 13 percent should be immediately applied.

If during the tax period a Belarusian acquired the status of a tax resident (stayed in the Russian Federation for more than 183 days), the personal income tax amounts withheld by the tax agent in the previous year at a rate of 30 percent are not recalculated.

Example: a citizen of Belarus arrived on the territory of the Russian Federation on August 16, 2011 and entered into an open-ended employment contract with a Russian organization from August 17, 2011.

On the date of payment of remuneration under the employment contract during 2011, the Belarusian will not be a resident of the Russian Federation (the time spent in the Russian Federation is less than 183 days).

Thus, income received by a non-resident in 2011 is subject to taxation at a tax rate of 30%.

Income paid in 2012, in accordance with the specified employment contract, is subject to taxation at a tax rate of 13%. (See Letter of the Federal Tax Service for Moscow dated December 7, 2011 N 20-14/3/118425@)

We do recalculation

If during a calendar year an employee acquired the status of a tax resident and this status can no longer change (that is, an individual is in the Russian Federation for more than 183 days in the current calendar year), the amount of remuneration received by the employee from the employer for performing work duties from the beginning of the current years are subject to tax at a rate of 13 percent.

In such cases, one should be guided by the provisions of paragraph 3 of Art. 226 of the Tax Code of the Russian Federation, according to which tax amounts are calculated on an accrual basis from the beginning of the tax period based on the results of each month.

Thus, starting from the month in which the number of days of the employee’s stay in the Russian Federation in the current calendar year exceeded 183 days, personal income tax amounts withheld at a rate of 30 percent are subject to offset against the withholding of 13 percent when determining the tax base on an accrual basis based on the employee’s income. , including income on which tax was withheld at a rate of 30 percent (Letter of the Ministry of Finance of the Russian Federation dated January 18, 2012 N 03-04-06/6-7)

In this case, the employer must obtain a tax refund application from the employee (17% of income);

Since personal income tax withheld from residents and non-residents is transferred to different budget classification codes (BCC), it is necessary to offset the resulting overpayment from one BCC to another (Letter of the Ministry of Finance of Russia dated July 26, 2007 N 03-04-06-01/268).

At the same time, the financial department indicates that the tax agent does not have the right to independently return excessively withheld personal income tax at the expense of the tax amount for other individuals, since such a possibility is not provided for by the Tax Code of the Russian Federation (Letter of the Ministry of Finance of the Russian Federation dated February 22, 2008 N 03-04-06-01 /41).

If, before the end of the calendar year, the entire amount of personal income tax at a rate of 30% cannot be offset against the withholding of 13%, then the employee must apply to the tax office for its payment. in the manner established by paragraph 1.1 of Article 231 of the Tax Code of the Russian Federation

In this case, the certificate of form 2-NDFL is filled out only at a rate of 13%, because the tax from the beginning of the year is recalculated at a rate of 13%. Line 5.3 should indicate the tax calculated at a rate of 13% on all income for the year, and line 5.4 should indicate the actual tax withheld. The difference between these lines should be reflected in line 5.6 Amount of tax over-withheld by the tax agent. It is this amount that the employee can return by independently contacting the Federal Tax Service.

However, there is no need to worry about confusion with the KBK. The Ministry of Finance of the Russian Federation, in Letter No. 03-02-08/31 dated March 29, 2012, stated that the Tax Code of the Russian Federation does not provide that an incorrect indication of the BCC is the basis for recognizing the obligation to pay tax as unfulfilled.

Tracking the status

Having received resident status, an employee can go abroad for a short period of time on vacation, on a business trip, etc.)

The Ministry of Finance of the Russian Federation, by letter dated March 6, 2012 N 03-04-05/6-256, reassured doubting accountants and said that upon the employee’s return, the number of calendar days should be counted during the 12 months preceding the date of receipt of income. And if there are more than 183 of them, then the 13% rate should continue to be applied.

Parting with the employee

The Federal Tax Service, by Letter No. ED-4-3/21628@ dated December 19, 2011, explained that if on the date of receipt of income, including the date of dismissal, an employee of the organization was a tax resident of the Russian Federation, then upon his dismissal before the end of the tax period there will be no recalculations tax amounts withheld at a rate of 13 percent are not made by the tax agent. This is confirmed by Letter of the Ministry of Finance of Russia dated July 14, 2011 N 03-04-06/6-169.

Related information.

Who is a “tax resident” and how does he differ from a tax non-resident?

In this article, I tried to answer all the questions related to, as well as situations where citizens of the Russian Federation, for some reason, stayed abroad for more than six months, while receiving regular income or managed to sell some property during the same period of time (apartment, house, other real estate, car, jewelry, etc.).

Tax legislation is written in such a way that after reading it no one will ever understand who tax non-residents are and how to define it - after all, in the Tax Code of the Russian Federation (TC) there is neither a clear and understandable definition of the concept of “tax resident”, nor the concept of “tax non-resident”

tax non-resident- this is an individual who is in Russia for less than 183 days during a calendar year.

Note: the procedure for determining the status of a tax resident of the Russian Federation is given, based on the provisions of the Tax Code of the Russian Federation. Meanwhile, by virtue of Art. 7 of the Tax Code of the Russian Federation, if an international treaty of the Russian Federation establishes rules and norms other than those provided for by the legislation of the Russian Federation on taxes and fees, then the rules and norms of international treaties are applied. This means that an international agreement may, among other things, establish a different procedure for determining residence. As an example, the Letter of the Federal Tax Service of Russia dated October 1, 2012 N OA-3-13/3527@ gives:

Agreement between the Government of the Russian Federation and the Government of the Republic of Cyprus “On the avoidance of double taxation in relation to taxes on income and capital” dated December 5, 1998 (Article 4);

Agreement between the Government of the Russian Federation and the Government of Ukraine "On the avoidance of double taxation of income and property and the prevention of tax evasion" dated 02/08/1995 (Article 4).

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

As we see, to determine the status of an individual, only one criterion is important - the time spent on the territory of Russia, and other criteria (including citizenship) are of no importance. At the same time (according to paragraph 2 of Article 207 of the Tax Code) physical. a person is considered to be located on the territory of the Russian Federation in cases where an individual. a person travels outside the territory of the Russian Federation for a short-term (less than 6 months):

• training;

  performance of labor or other duties related to the performance of work (provision of services) in offshore hydrocarbon fields.

Note: It is important to note that the basis for counting the period of short-term study or treatment abroad in the number of days of stay on the territory of the Russian Federation is the purpose of departure: short-term study or treatment. If an individual was abroad for other purposes and during this period underwent training (treatment) there for up to six months, the days of training (treatment) during the period of stay in the Russian Federation are not included. In particular, similar explanations regarding short-term training can be found in Letter of the Ministry of Finance of Russia dated September 26, 2012 No. 03-04-05/6-1128.

Documents confirming the presence of an individual outside the Russian Federation for treatment or training may be contracts with medical (educational) institutions for treatment (training), certificates issued by medical (educational) institutions indicating the provision of treatment (training), indicating time of treatment (training), as well as copies of the passport with border crossing marks from the border control authorities (Letter of the Ministry of Finance of the Russian Federation dated June 26, 2008 N 03-04-06-01/182).

Documents confirming the actual presence of individuals outside the Russian Federation for the purpose of treatment may be copies of pages of a foreign passport with special (medical) visas issued by consular authorities of foreign states, and marks of border control authorities on crossing the border, as well as copies of contracts with foreign medical institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated May 27, 2016 No. OA-3-17/2417@, dated June 10, 2016 No. ZN-3-17/2619@).

Documents confirming the actual presence of individuals outside the Russian Federation for study purposes may be copies of pages of a foreign passport with special (study) visas issued by consular authorities of foreign states, and marks of border control authorities on crossing the border, as well as copies of agreements with foreign educational institutions on the provision of relevant services (Letter of the Federal Tax Service of Russia dated October 15, 2015 N OA-3-17/3850@).

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

But this is a fundamental question for any person, on which depends what tax should be withheld from the income of such a person (personal income tax or personal income tax) - 13% or 30%, because the difference of 2.3 times is very significant.

There is no clarification on whether taxpayers must confirm their status as tax residents of the Russian Federation or not, and no information on the order in which tax agents should do this.

And if you consider that both the tax legislation itself and the opinion of the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation change like the weather in September, then it becomes sad.

The procedure for determining the status of “tax resident - non-resident” or how to calculate the period of 12 months and 183 days when determining the status of an individual

What does it practically mean to stay “at least 183 calendar days over the next 12 consecutive months”?

In practice this means that:

the presence or absence of Russian citizenship has no significance for determining status tax resident (non-resident) does not have (i.e., citizens of the Russian Federation, foreign citizens and stateless persons can be both tax residents and non-residents);

any continuous 12-month period is taken into account, which can begin in one year and end in another (this is relevant for paying salaries to non-residents);

the final status of the taxpayer is determined at the end of the calendar year (clause 3 of Article 225 of the Tax Code), since the tax period for personal income tax is a calendar year.

Note: Income in connection with work for hire carried out in the Russian Federation by citizens of member states of the Eurasian Economic Union is subject to personal income tax at a tax rate of 13% starting from the first day of their work in the territory of the Russian Federation. At the same time, based on the results of the tax period, the final tax status of an individual is determined depending on the time of his stay in the Russian Federation in a given tax period. If, at the end of the tax period, the organization’s employees did not acquire tax resident status (stayed in the Russian Federation for less than 183 days), their income received in this tax period is subject to personal income tax at a rate of 30% (letter of the Ministry of Finance of Russia dated February 27, 2019 No. 03-04-06/12764).

The 183-day period is determined by adding up all calendar days on which the taxpayer was in Russia for 12 consecutive months.

This 183-day period includes the day of entry into the Russian Federation and exit from Russia. This conclusion is confirmed by the explanations of the Federal Tax Service, set out in the Letter of the Federal Tax Service of Russia dated June 10, 2015 No. OA-3-17/2276@.

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

Note: Although:

We suggest starting from:

For these reasons, I propose to determine the status:

• proceed from the above definition of tax resident (non-resident) status;

• Clause 3 of Article 225 of the Tax Code, according to which the tax period for personal income tax is a calendar year;

• apply (in writing) to the Federal Tax Service at the place of your residence (stay) or the location of the real estate.

Our point of view was also confirmed by the Ministry of Finance of the Russian Federation, which in its Letter dated 04/21/2016 No. 03-08-RZ/23009 prohibited the use of letters that set out this position, since it contradicts tax legislation,

Features of the "tax non-resident" status

Having the status “tax non-resident of the Russian Federation” has the following features:

persons who are not tax residents of the Russian Federation are payers of personal income tax only on income, received from sources in the Russian Federation;

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

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

Note: the right applies if the property is sold before December 31, 2018. From January 1, 2019, such income is exempt from personal income tax.

Tax rates for personal income tax (NDFL) for tax residents and non-residents

The income that an individual received is as follows (TC):

for tax residents - 13%;

for tax non-residents - 30%.

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

According to the Federal Tax Service of the Russian Federation, a rate of 13% is applied if the corresponding payments are provided for in an employment or civil law contract. Other payments made in favor of foreign highly qualified specialists (material assistance, gifts, etc.) must be subject to personal income tax at a tax rate of 30%.

Tax rates for personal income tax for citizens of the Republic of Belarus working in Russia and citizens of the Russian Federation working in Belarus

Confirmation of the presence of citizens of the Republic of Belarus in the Russian Federation is carried out in accordance with the general procedure, taking into account the provisions of the Protocol to the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on the avoidance of double taxation and the prevention of tax evasion in relation to taxes on income and property dated April 21, 1995, signed on January 24 .2006 (hereinafter referred to as the Protocol).

According to Article 1 of the Protocol, remuneration received by a citizen of the Russian Federation or the Republic of Belarus in relation to employment, if (for example) an agreement is concluded between the organization and a citizen of the Republic of Belarus employment contract, providing for his stay on Russian territory for at least 183 days, the income of such an employee organizations received from sources in the Russian Federation, are subject to tax at a rate of 13 percent from the date of commencement of employment.

This conclusion is confirmed by the explanations of the Ministry of Finance of the Russian Federation (for example, Letters of the Ministry of Finance of the Russian Federation dated April 14, 2011 No. 03-04-05/6-259, dated February 21, 2011 No. 03-04-05/6-112).

Tax withholding at a higher rate and its recalculation are carried out only if the labor activity of a Belarusian employee in Russia was terminated (i.e. the employment contract was terminated) before the expiration of 183 days. In this case, the obligation to pay the amount of tax adjusted as a result of recalculation is fulfilled by the individual independently - the tax agent is not obliged to withhold additional tax from his income. Penalties and fines are not charged in these cases.

Income under a civil law agreement is equal to employment, therefore the tax agent withholds personal income tax on income paid to such a citizen of a member country of the EAEU at a rate of 13% from the first day of his work in Russia (Letter of the Ministry of Finance of Russia dated July 17, 2015 No. 03 -08-05/41341).

tax return of a patent under Article 227 1 of the Tax Code.

Features of taxation of citizens of Ukraine

The Governments of Russia and Ukraine concluded an Agreement dated 02/08/1995 “On the avoidance of double taxation of income and property and the prevention of tax evasion” (hereinafter referred to as the Agreement).

Under the terms of paragraph 1 of Article 15 of the Agreement Income of Ukrainian citizens from employment in Russia is subject to personal income tax in Russia. But if a citizen of Ukraine worked in Russia for a total of less than 183 calendar days during a calendar year, then his income is subject to taxation in Ukraine.

To do this (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), an employee who is a citizen of Ukraine should submit to the employer and to the tax authority where the employer is registered with the tax authorities, confirmation of his permanent residence on the territory of Ukraine, issued by the tax authorities of Ukraine.

who have received temporary asylum in Russia,

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

Features of taxation for citizens of the Republic of Kazakhstan

The Convention of October 18, 1996 “On the elimination of double taxation and the prevention of tax evasion on income and capital”, hereinafter referred to as the Convention, is in force between the Russian Federation and the Republic of Kazakhstan.

Article 15 of the Convention provides that remuneration received by a resident of the Republic of Kazakhstan in connection with employment carried out in the Russian Federation is taxable only in the Republic of Kazakhstan if:

The recipient is located in Russia during the period or periods not exceeding an aggregate of 183 days in any 12 months;

Remuneration is paid by the employer or on behalf of the employer, non-resident of Russia;

The remuneration is not paid by a permanent establishment or a permanent base that the employer has in Russia.

Translated from Russian into understandable, this means that if a citizen of the Republic of Kazakhstan lives and works in Russia for less than 183 days in a calendar year or the salary is paid by a tax non-resident of the Russian Federation, then the salary for the performance of labor duties (i.e., under an employment contract) not subject to personal income tax() in Russia, but is subject to taxation in the Republic of Kazakhstan.

To be exempt from paying personal income tax in Russia on income (according to the rules of paragraph 2 of Article 232 of the Tax Code of the Russian Federation), it is necessary to provide official confirmation that a citizen of the Republic of Kazakhstan is its tax resident.

Similar agreements (conventions) on the elimination of double taxation have also been concluded with Kyrgyzstan, Tajikistan and some other states.

According to the provisions of Article 73 of the Treaty on the Eurasian Economic Union of May 29, 2014 (came into force on January 1, 2015), income in connection with employment received by citizens of the Republic of Belarus, the Republic of Kazakhstan and the Republic of Armenia, from January 1, 2015 are taxed at a tax rate of 13 percent, starting from the first day of their work on the territory of the Russian Federation(clarifications given in Letter of the Ministry of Finance of Russia dated January 27, 2015 N 03-04-07/2703 and Letter of the Federal Tax Service of Russia dated February 10, 2015 N BS-4-11/1561@ “On the taxation of income from employment received by citizens of the Republic of Belarus , the Republic of Kazakhstan and the Republic of Armenia, in connection with the entry into force on 01/01/2015 of the Treaty on the Eurasian Economic Union of May 29, 2014").

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

Features of taxation of income of citizens of Armenia

From the provisions of paragraph 2 of Article 14 of the Agreement between the Russian Federation and the Republic of Armenia on the elimination of double taxation on income and property dated December 28, 1996, it follows that income paid to a resident of Armenia by a Russian employer may be taxed in the Russian Federation.

On January 1, 2015, the Treaty on the Eurasian Economic Union came into force. From the provisions of Article 73 of this Treaty, it follows that from January 1, 2015, income paid by Russian employers, including individuals, to citizens of Armenia under employment contracts, is taxed in Russia at a rate of 13 percent, regardless of the tax status of the recipients of this income, if the work is performed by them on Russian territory.

Features of taxation of income of citizens of Kyrgyzstan

On August 12, 2015, the Treaty on the Accession of Kyrgyzstan to the Eurasian Economic Union came into force, which means that Kyrgyz citizens:

• can work in Russia without a labor patent;
• The duration of the temporary stay (residence) of migrant workers from Kyrgyzstan and members of their families on the territory of our country is determined by the duration of the labor or civil contract concluded with the employer. If these agreements are terminated after 90 days from the date of entry into Russia, Kyrgyz citizens have the right to enter into a new agreement within 15 days without leaving;
• Since July 20, 2015, migrant workers who arrived to work in Russia, as well as members of their families, are exempt from the obligation to register for migration within 30 days from the date of entry. When entering Russia with documents that allow the affixing of marks to cross the state border, citizens of Kyrgyzstan are exempt from filling out a migration card, provided that their period of stay does not exceed 30 days from the date of entry;
• Kyrgyz migrant workers are exempt from undergoing the procedure for recognizing educational documents issued in their country.

The Federal Tax Service of Russia in its Letter dated August 27, 2015 N ZN-4-11/15078 “On the taxation of income of individuals” explained that:

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

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

It is important to know that the recalculation and subsequent refund of personal income tax occurs only for the year in which the taxpayer’s status changed and he became a tax resident. For example, he came to Russia in September 2013 and immediately (in September) got a job. After 6 months (from April 2014), such an employee became a tax resident. In such a situation, this taxpayer can count on a refund of overpaid personal income tax.

Thus, from January 1, 2011, a special procedure for the return of personal income tax amounts was introduced in connection with the recalculation of the income tax of an individual after he acquired the status of a tax resident of the Russian Federation.

Such recalculation is carried out by the tax authority at the place where the taxpayer is registered at the end of the tax period upon submission of the following documents:

Based on these documents, the tax authority is obliged to make a decision on the return of the amount of overpaid tax within 10 days from the date of receipt of the taxpayer’s application for the return of the amount of overpaid tax or from the date of signing by the tax authority and this taxpayer of a joint reconciliation report of the taxes paid by him, if such a joint reconciliation was carried out (clause 8 of Article 231 of the Tax Code).

It is up to you to decide whether to use such recommendations or not. But you need to keep in mind that this situation is called your tax risk, i.e. the one who recommends does not risk anything, and the tax agent will be responsible for the implementation of such recomendations.

Necessary documents justifying and confirming the status of tax resident or non-resident

Whether taxpayers must confirm their tax resident status or not, there is not a word in the Tax Code of the Russian Federation - it would be funny if it were not for the choice between rates of 13% and 30% on income. But this is a very important issue, including for an accountant, since the organization, as a tax agent, must withhold and transfer to the budget the amount of personal income tax on the income it pays to employees, and since the rates differ by 2.3 times, this is very significant moment.

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

In other words, in order to justify the legality of applying a particular income taxation procedure, it is necessary to document and confirm the tax status of an individual.

Since a specific list of documents that would justify (confirm) the tax status of a taxpayer was not established by the Tax Code of the Russian Federation or any other regulatory documents before 2017, such confirmation is possible on the basis of any documents that allow establishing the number of calendar days of stay of an individual persons on the territory of the Russian Federation during the previous 12 consecutive months. This conclusion is confirmed by the explanations of the Federal Tax Service (for example, Letter of the Federal Tax Service of Russia dated December 30, 2015 No. ZN-3-17/5083).

The Federal Tax Service has considered an appeal regarding the procedure for confirming the fact that an individual - a citizen of Russia has lost the status of a tax resident of the Russian Federation and reports the following.

There is no special procedure for determining the tax status (residency) of an individual for the purposes of applying the legislation of the Russian Federation on controlled foreign companies (CFCs). Currently, this concept is disclosed in Chapter 23 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) “Income Tax for Individuals”. However, the provisions of this paragraph do not contain indications of the start or end dates regarding which the 12-month period should be reported, within which it is necessary to take into account the number of days of the taxpayer’s stay in the Russian Federation.

According to the letter of the Ministry of Finance of the Russian Federation dated April 18, 2007 N 01-СШ/19, sent to the Federal Tax Service of Russia, the establishment of this fact for the purposes of applying Chapter 23 of the Code is associated with the taxpayer’s obligation to calculate and pay tax on the income received by him for the corresponding tax period ( calendar year).

In this case, we are talking about the payment of tax by such a person independently on the basis of the provisions of Articles 228 and 229 of the Code, including on income received from sources outside of Russia, which includes the profit of a CFC. In such a situation, tax residents are recognized as individuals who are actually in the Russian Federation for at least 183 calendar days for the period from January 1 to December 31 of the corresponding calendar year.

This is due to the fact that for these categories there are:

• different lists of income on which tax must be paid (Article 209 of the Tax Code of the Russian Federation);

• different tax rates (Article 224 of the Tax Code of the Russian Federation).

In addition, a resident has the right to receive tax deductions for personal income tax, but a non-resident does not (clauses 3 and 4 of Article 210 of the Tax Code of the Russian Federation).

Most Russian citizens are tax . If a person often travels abroad (or has recently arrived in Russia), he may be .

Definition of status

The status of an income recipient is determined by the number of calendar days that a person was actually in Russia over the next 12 consecutive months.

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

A tax non-resident is a person who stayed in Russia for less than 183 days over the next 12 consecutive months.

An exception is provided only for:

• Russian military personnel serving abroad;

• employees of state authorities and local governments sent to work outside the Russian Federation.

Such citizens are recognized as residents regardless of how much time they spend in Russia. This is stated in paragraph 3 of Article 207 of the Tax Code of the Russian Federation.

In addition, a different procedure for establishing residence may include double taxation agreements signed by Russia with other states.

Reference date

If personal income tax is withheld and transferred to the budget by a tax agent, then the date from which you need to count down , willincome payment date . This conclusion is confirmed by the provisions of paragraph 2 of Article 207, Article 223 and paragraph 4 of Article 226 of the Tax Code of the Russian Federation. A similar point of view was expressed in letters of the Ministry of Finance of Russia dated May 25, 2011 No. 03-04-06/6-122, dated March 19, 2007 No. 03-04-06-01/74.

If personal income tax on your income the person pays himself , then the countdown date is January 1 of the year following the year in which the income was received. In this case, the 12-month period is equal to the calendar year in which the person received the income. That is, the tax status for calculating personal income tax obligations must be determined based on the results of this year. This conclusion is confirmed by the provisions of paragraph 2 of Article 207, Articles 216 and 228 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated April 25, 2011 No. 03-04-05/6-293.

Calculation of time spent in Russia

The period of stay in the Russian Federation (less than or more than 183 days) is counted from the day of arrival (entry) to Russia to the day of departure (departure) from it, inclusive. This calculation procedure is confirmed by regulatory agencies (letters of the Ministry of Finance of Russia dated March 21, 2011 No. 03-04-05/6-157, Federal Tax Service of Russia dated April 24, 2015 No. OA-3-17/1702).

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

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

The purpose of the trip, the days of which are included in the calculation of 183 days, must be documented.

Situation: On the basis of what documents can you establish the time of stay in Russia in order to determine your tax status (resident or non-resident) for the purpose of calculating personal income tax?

The legislation does not contain a list of documents by which the number of days of stay in Russia can be determined to determine tax status. Consequently, these can be any documents confirming the fact that a person is in the country. Thus, the dates of entry into and exit from the Russian Federation can be determined by the marks of the Russian border service:

• in the passport;

• in a diplomatic passport;

• in the service passport;

• in the migration card;

Marks made on documents by border services of foreign states (including member states of the Customs Union) are not taken into account when determining tax status: they cannot confirm the duration of a person’s stay on the territory of Russia (letter of the Ministry of Finance of Russia dated April 26, 2012 No. 03-04-05/6-557).

If there is no mark in the passport (for example, a person came from Ukraine or the Republic of Belarus), then other documents can be used as proof of stay in Russia. For example, receipts for hotel accommodation, and for working citizens - time sheets or certificates from the place of work issued on the basis of these time sheets. For citizens studying in Russia, such documents may be certificates from the place of study, which confirm the actual attendance of the educational institution in the relevant period. It should be noted that documents with a registration mark at the place of residence cannot be used as confirmation of tax status - in themselves they do not allow establishing the actual duration of stay in Russia. Similar clarifications are contained in letters of the Ministry of Finance of Russia dated January 13, 2015 No. 03-04-05/69536, dated June 27, 2012 No. 03-04-05/6-782, Federal Tax Service of Russia dated May 25, 2011 No. AS- 3-3/1855.

Situation: When determining your tax status (resident or non-resident) for the purposes of calculating personal income tax, how can you take into account the days you are on business trips and vacations abroad?

When a person travels abroad, he leaves the territory of Russia.

When determining the tax status (non-resident or resident), only the days of the person’s actual stay in the Russian Federation are taken into account.

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This is stated in paragraph 2 of Article 207 of the Tax Code of the Russian Federation.

In this case, the period of stay in Russia (less than or more than 183 days) includes both the day of arrival (entry) into Russia and the day of departure (departure) from it. This calculation procedure is confirmed by the Ministry of Finance of Russia in letters dated March 21, 2011 No. 03-04-05/6-157, dated July 4, 2008 No. 03-04-06-01/187 and dated July 3, 2008 No. 03 -04-05-01/228.

If a person travels abroad, then until he returns, the countdown of 183 days is interrupted. The only exceptions are .

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

This procedure follows from paragraph 2 of Article 207 of the Tax Code of the Russian Federation. This conclusion is also confirmed by the Russian Ministry of Finance in a letter dated July 26, 2007 No. 03-04-06-01/268.

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

The work of Moldovan citizen A.S. Kondratieva is associated with business trips. During 2015 (365 days), he was sent on business trips abroad three times for periods of 100, 20 and 40 days (excluding the day of departure from Russia and return to Russia). The total duration of official business trips abroad was 160 days.

In addition, Kondratiev went on vacation abroad for 24 days (excluding the day of departure from Russia and return to Russia).

In total, over the past 12 months, Kondratiev has carried out:

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

Kondratiev is recognized as a tax non-resident.

Situation: Is the 12-month period interrupted when determining the tax status of a foreigner who, due to the expiration of his residence permit in Russia, leaves the country? Next year he will enter the Russian Federation again.

No, it is not interrupted.

The legislation establishes a uniform procedure by which a person’s tax status is determined when calculating personal income tax for non-residents.

If over the next 12 consecutive months a person has been in Russia for 183 calendar days or more, he is considered taxable .

If during the next 12 consecutive months a person was in Russia for less than 183 calendar days, he is taxable .

This follows from the provisions of paragraph 2 of Article 207 of the Tax Code of the Russian Federation. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated May 5, 2008 No. 03-04-06-01/115.

The use of a 12-month period to determine the tax status of a personal income tax payer is mandatory. Moreover, if a person pays personal income tax on his own income, then the 12-month period is equal to the calendar year in which the income was received (Clause 2 of Article 207, Articles 216 and 228 of the Tax Code of the Russian Federation). Interruption of this period is not provided for by law (including for reasons, for example, termination or re-conclusion of an employment contract, departure and re-entry into the territory of Russia). At the same time, the number of days a person stays in Russia (less than or more than 183 days) during a 12-month period may be interrupted. This is confirmed by the provisions of paragraph 2 of Article 207 of the Tax Code of the Russian Federation.

If a person traveled abroad for treatment or study (for a period of no more than six months), then the 12-month period is not interrupted. The duration of trips is included in the calculation of 183 days (clause 2 of article 207 of the Tax Code of the Russian Federation). In this case, the purpose of the trip must be confirmed documented (for example, when undergoing treatment - an agreement with a medical institution, a certificate indicating the time of its implementation and a copy of the passport with a border control stamp) (letter of the Ministry of Finance of Russia dated June 26, 2008 No. 03-04-06- 01/182).

If a person left the Russian Federation for other reasons (including in connection with the renewal of migration documents, termination of an employment contract), then the 12-month period by which the person’s tax status is determined is also not interrupted. However, days spent abroad must be excluded from the calculation of 183 days (letter of the Ministry of Finance of Russia dated May 26, 2011 No. 03-04-06/6-123).

Documents confirming short-term stay abroad

Documents confirming a person’s presence outside Russia for short-term treatment or training include:

• contracts with medical (educational) institutions for treatment (training);

• certificates issued by medical (educational) institutions indicating the completion of treatment (training) indicating its time;

• copies of passport pages with special visas and border control stamps on border crossings.

At the same time, there are no restrictions on age, types of educational institutions and disciplines studied, medical institutions and diseases, or the list of countries in which training or treatment takes place.

This is stated in the letters of the Ministry of Finance of the Russian Federation dated June 26, 2008 No. 03-04-06-01/182, the Federal Tax Service of Russia dated October 15, 2015 No. OA-3-17/3850 and dated July 20, 2012 No. OA3- 13/2525.

Traveling abroad is only important for calculating the number of days of stay in Russia (less than or more than 183 days). It does not interrupt the course of the 12 month period.

This procedure follows from paragraph 2 of Article 207 of the Tax Code of the Russian Federation.

It is possible that over the course of a year (for example, seven months) the number of days a person stays in Russia will reach 183 days. In this case he becomes . And this status cannot change until the end of the year. This is confirmed by letters from the Ministry of Finance of Russia dated March 29, 2007 No. 03-04-06-01/94 and dated March 29, 2007 No. 03-04-06-01/95.

An example of determining a person’s tax status (resident or non-resident) for personal income tax purposes

In June 2014, A.V. Lvov received income from the sale of the car.

Lviv must calculate personal income tax on the amount received and transfer it to the budget independently (subclause 2, clause 1, article 228 of the Tax Code of the Russian Federation).

To find out what rate to take to calculate personal income tax, Lvov must determine its tax status (resident or non-resident).

The tax period for personal income tax is a year (Article 216 of the Tax Code of the Russian Federation). Lviv must calculate and transfer the tax to the budget based on its results - when the year ends (clause 4 of Article 228 of the Tax Code of the Russian Federation). Therefore, Lvov determined its tax status as of January 1, 2015 (when 2014 ended, in which it received income from the sale of a car).

The 12 months preceding this date are the period from January 1 to December 31, 2014 (365 days).

During this period, Lvov left Russia only once - for 28 days during vacation (excluding the day of departure from Russia and return to Russia). During this time, the course of the 12-month period during which Lviv must determine his time in Russia (more or less 183 days) is not interrupted. However, the 28 days that Lvov vacationed abroad are not included in the calculation of the time spent in Russia (more or less 183 days).

Thus, over the next 12 consecutive months of 2014, Lvov spent in the Russian Federation:
365 days – 28 days = 337 days

Since Lvov spent more than 183 days in Russia (337 days > 183 days) over the 12 consecutive months of 2014, he is a tax resident of Russia.

Situation: Does a residence permit confirm the time of a person’s actual stay in Russia? The actual time of stay in the Russian Federation must be calculated to determine the tax status of a person (resident or non-resident) for the purposes of calculating personal income tax

No, it doesn't confirm.

The legislation does not contain a list of documents by which the number of days of stay in Russia can be determined to determine tax status. These can be any documents confirming the fact that a person is in the country. Thus, the dates of entry into and exit from Russia can be determined by the marks:

• in the passport;

• in a diplomatic passport;

• in the service passport;

• in the seafarer’s passport (seafarer’s identity card);

• in the migration card;

• in the refugee's travel document, etc.

If there is no mark in the passport (for example, a person came from Ukraine or the Republic of Belarus), then other documents may be proof of stay in Russia. For example, documents on registration of residence, receipts for hotel accommodation. For working people - timesheets or certificates from the place of work issued on the basis of these timesheets. For students - a certificate from the place of study, which confirms the actual attendance of the educational institution.

This follows from letters of the Ministry of Finance of Russia dated January 13, 2015 No. 03-04-05/69536, Federal Tax Service of Russia dated May 25, 2011 No. AS-3-3/1855.

A residence permit confirms only the right of a foreign citizen (stateless person) to permanent residence in Russia, as well as to free entry into Russia and exit from the country. For stateless persons, a residence permit is also an identity document. This is stated in paragraph 1 of Article 2 of the Law of July 25, 2002 No. 115-FZ.

Thus, a residence permit confirms a citizen’s right to reside in the Russian Federation (certifies his identity), but is not a document confirming the actual time a person is in the country.

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

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

Traveling outside of Russia is only relevant for calculating the number of days of stay in Russia and does not interrupt the flow of the 12-month period.

If a person traveled abroad for treatment or study (for a period of no more than six months), then the 12-month period is not interrupted. The duration of travel is included in the calculation of 183 days. In this case, the purpose of the trip must be documented. If a person left Russia for other reasons (including in connection with the renewal of migration documents, termination of an employment contract), then the 12-month period by which the person’s tax status is determined is also not interrupted. However, days spent abroad must be excluded from the calculation of 183 days (letter of the Ministry of Finance of Russia dated May 26, 2011 No. 03-04-06/6-123). That is, if your employee leaves for Uzbekistan within 12 months, the period will not be interrupted; you will only need to exclude the time spent abroad from the calculation of 183 days.

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

Definition of status

The status of an income recipient is determined by the number of calendar days that a person was actually in Russia over the next 12 consecutive months.

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

A tax non-resident is a person who stayed in Russia for less than 183 days over the next 12 consecutive months.

Calculation of time spent in Russia

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

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

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

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

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

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

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

The work of Moldovan citizen A.S. Kondratieva is associated with business trips. During 2015 (365 days), he was sent on business trips abroad three times for periods of 100, 20 and 40 days (excluding the day of departure from Russia and return to Russia). The total duration of official business trips abroad was 160 days.

In addition, Kondratiev went on vacation abroad for 24 days (excluding the day of departure from Russia and return to Russia).

In total, over the past 12 months, Kondratiev has carried out:

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

Kondratiev is recognized as a tax non-resident*.

Valentina Akimova

State Advisor to the Tax Service of the Russian Federation, III rank

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