Евгений Шелест
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Верховный Суд Российской Федерации и нижестоящие суды поддержали налоговый орган в том, что право на применение УСН не могло возникнуть ранее регистрации физлица в качестве ИП в 2015 году. Нормы законодательства не предусматривают перерасчет налоговых обязательств по УСН за предыдущие налоговые периоды, в том числе когда физлицо не обладало статусом ИП (Определение ВС РФ от 29 ноября 2018 г. № 307-КГ18-10426).
Налоговая инспекция провела выездную налоговую проверку ИП за период с 2012 по 2014 годы, по результатам которой доначислила НДС и НДФЛ в общей сумме более 14 млн руб., а также пени и штрафы. При этом физлицо зарегистрировалось в качестве ИП лишь 2 июля 2015 года и с этого момента применяло УСН с объектом налогообложения «доход». Не согласившись с доначислениями, после принятия решения по выездной проверке ИП направил в инспекцию заявление о применении УСН за период с 2012 года до даты регистрации в качестве ИП, а также о пересчете налоговых обязательств за предыдущие периоды. ИП посчитал, что хотя налоговое законодательство и не устанавливает порядок применения УСН физлицами без регистрации в качестве ИП, но само по себе не исключает такую возможность.
Влечет ли превышение в одном месяце отчетного (налогового) периода среднесписочной численности 100 человек для налогоплательщика утрату права на применение УСН? Узнайте из материала «Ограничения по численности работников для применения УСН» в «Энциклопедии решений. Налоги и взносы» интернет-версии системы ГАРАНТ. Получите полный доступ на 3 дня бесплатно!
По результатам рассмотрения дела ВС РФ отказал ИП в передаче кассационной жалобы для рассмотрения в судебном заседании Судебной коллегии по экономическим спорам ВС РФ.
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