Non-standard catering. How to calculate UTII for catering services Patent catering without a service hall insurance premiums

Enterprises Catering many problems with UTII calculation: unclear criteria by which they fall under the "imputation"; difficulties in determining the area of ​​the service hall; problems if there are several halls, etc.

federal law dated May 17, 2007 No. 85-FZ “On Amendments to Chapters 21, 26.1, 26.2 and 26.3 of Part Two of the Tax Code Russian Federation”(hereinafter - Law No. 85-FZ) many significant changes have been made that relate to public catering enterprises, which will begin to operate from January 1, 2008.

Firstly, they are excluded from catering facilities that do not have a customer service hall, vending machines, legislators replaced them with shops (sections, departments) of cooking.

Secondly, the production and sale of excisable goods specified in subpara. 3 and 4 paragraph 1 of Art. 181 of the Tax Code of the Russian Federation. Recall that these subparagraphs correspond to alcoholic products (drinking alcohol, vodka, alcoholic beverages, cognacs, wine and other food products with an ethyl alcohol volume fraction of more than 1.5%, with the exception of wine materials) and beer. It turns out that in the new year, the sale of alcohol and beer through public catering facilities will be taxed in accordance with other taxation regimes.

In addition, from January 1, 2008, the provision of catering services by educational, healthcare and social security institutions will also not be subject to UTII. It is assumed that the provision of such services is inextricably linked with the functioning of these institutions, that is, catering is not an independent type of entrepreneurial activity for them (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation).

15.1. The main criteria determining which catering establishments fall under UTII

In accordance with Art. 346.26 of the Tax Code of the Russian Federation, by decision of the regional authorities, such activities as “the provision of catering services carried out using a hall with an area of ​​\u200b\u200bnot more than 150 sq. m.

That is, three conditions must be met:

1) the activity is a catering service;

2) the company has a customer service hall;

3) the area of ​​the hall does not exceed 150 sq. m.

In addition, regardless of their desire, organizations and entrepreneurs providing public catering services through public catering facilities that do not have halls for serving visitors should switch to “imputation”.

According to the definition given in the Law, “a public catering facility that does not have a customer service hall is a public catering facility that does not have a specially equipped premises ( open area) for finished consumption culinary products, confectionery and/or purchased goods. This category of public catering facilities includes kiosks, tents, vending machines and other similar public catering outlets.

When providing public catering services through public catering facilities that do not have halls for serving visitors, a physical indicator “the number of employees, including individual entrepreneurs” has been established with a base yield of 4,500 rubles.

Catering services include:

1) meals in restaurants, bars, cafes, canteens, snack bars and other types of enterprises, according to OKUN - group codes 122100;

2) organization of leisure ( musical accompaniment, concerts, variety programs and video demonstrations, press and board games) – group codes 122500.

According to the definition of public catering services given in the Law - "services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities" . Accordingly, public catering services in relation to their provision through public catering facilities that do not have visitor service halls include:

– production of culinary products and confectionery products, including those ordered by consumers;

– sale of culinary products outside the enterprise;

- completing sets of culinary products for the journey, including for tourists for self-preparation of culinary products;

– delivery of culinary products, confectionery products and customer service at workplaces and at home;

- delivery of culinary products and confectionery products on orders and customer service along the route of passenger transport (including in a compartment, cabin);

– delivery of culinary products and confectionery on orders and room service;

When providing these services, a significant number of employees can be involved, at the same time, this is the most difficult income for the tax authorities to control. In this case, the changes introduced led to the established value of the base yield (clause 9, clause 2, article 346.26) and guaranteed tax revenue to the budget.

According to officials, there is a closed list of catering services that fall under UTII, and it consists of only two items. Meanwhile, according to OKUN, the “Public catering services” group includes much more species activities. For example, the manufacture of culinary products and confectionery - code 122200.

The fact is that, for the sale of culinary products (code 122400), a visitor service hall is not required. That is why the activities of restaurants, canteens, cafes do not fall under UTII when they sell their products through stores. The same applies to stalls selling grilled chicken, donuts, pies, and so on. For such types of business, organizations must pay taxes in general order or the simplified system.

For public catering enterprises using UTII, there is no restriction on the form of payment. Therefore, they can pay with them both in cash and by bank transfer.

They have such a right, because the restriction in the form of payment is set only for retail. Here, payment in cash or by means of a plastic card is prerequisite. And for catering companies, the method of obtaining money is not important. This is also confirmed by the Federal Antimonopoly Service of the Volga-Vyatka District in the Decree of August 9, 2004 in case N A28-11959 / 2003-601 / 21.

If a company has opened a canteen only for its employees and gives them lunch coupons for free, then such activities are not subject to the “imputed” tax. In such a situation, the organization pays for the food of employees at the expense of its own profit, therefore, this activity is not aimed at generating income.

And if a company that has a canteen feeds not only its employees, but also employees of other organizations, then the activity of the canteen falls under UTII.

You also have to pay UTII if only employees of the company eat in the canteen, but for money. After all, the dining room takes a fee for lunch, that is, it receives income, which means it is engaged in entrepreneurship.

15.2. Determining the area of ​​the service hall

In accordance with Art. 346.27 of the Tax Code of the Russian Federation, “Area trading floor(visitor service hall) is the area of ​​all premises and open areas used by the taxpayer for trade or public catering, determined on the basis of inventory and title documents, with the exception of auxiliary, administrative and household premises, as well as premises for receiving, storing goods and preparing them for sale, in which visitors are not serviced.

That is, the code clearly states that the footage of utility rooms and offices, as well as kitchens, warehouses and other utility rooms, is not taken into account.

If a separate agreement is concluded for each premises used for serving visitors (for example, a lease agreement), then each such area should be considered as a separate object and it is not necessary to add them up in order to determine whether their total area does not exceed 150 m2 and you need to whether to pay UTII.

In its Letter No. 03-06-05-05/12 dated October 20, 2004, the financial authority considered the situation where a catering company rented several premises in one mall. Each of them has a cash register, each has its own lease agreement, which indicates the area of ​​​​a particular room - less than 150 square meters. m. However, if you add up all the areas, then more than 150 square meters will come out. m.

According to the Ministry of Finance, in such a situation, it is not necessary to add up the area of ​​\u200b\u200bthe premises. They are independent cafes and bars, and therefore all fall under UTII.

If one lease agreement is concluded for several premises, then it is better for organizations to protect themselves from possible claims of the inspector and nevertheless conclude their own lease agreement for each premises.

Organizations also retain the right to pay UTII for those facilities whose area does not exceed 150 sq. m, if one of the catering facilities has an area of ​​\u200b\u200bthis bar.

The Ministry of Finance of Russia, in Letter No. 03-06-05-02/22 dated December 21, 2004, supported the taxpayers. The tax authorities agreed that organizations whose area of ​​one of the stores exceeds 150 sq. m, they can still switch to UTII at other points.

When calculating UTII, you can not take into account the area occupied by slot machines. But only if they are not standing in the common room, but, for example, separated from it by a partition. And, of course, this division should be reflected in the documents for the premises. It is necessary that they show what the total footage of the hall is and how much slot machines occupy.

But in any case, public catering enterprises will have to take into account the area of ​​​​the stage when calculating the "imputed" tax. After all, it is designed for artists to perform in front of visitors. According to OKUN, services such as organizing variety shows, holding concerts are classified as catering services (code 122500). Given this, the stage area must be subject to UTII.

When establishing additional outdoor tables for the warm season, public catering enterprises will have to lay down the area for serving visitors.

According to paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation, only those public catering establishments in which the area of ​​​​the customer service hall does not exceed 150 square meters are transferred to the payment of tax on imputed income. m. Moreover, the Code does not give the right to regional authorities to change this figure.

If the total area of ​​the service hall, taking into account the summer cafe, exceeds 150 sq. m, then the company will have to switch from paying tax on imputed income to the usual taxation system. True, only for those few months in which the summer cafe operates. Moreover, it will not work to switch to a simplified taxation system in such a situation. After all, you can start working on the “simplified” plan only from January 1.

There are two ways to avoid switching from imputed income tax to regular taxation in this situation.

The first method is suitable for enterprises in which the area of ​​​​service halls exceeded the limit established by the Tax Code (150 sq. M) slightly.

According to Art. 346.27 of the Tax Code of the Russian Federation, the area of ​​​​the visitor service hall is determined on the basis of inventory and title documents. When applying to open a summer cafe (or summer trade), you need to make sure that the area of ​​\u200b\u200bvisitor service rooms does not exceed 150 square meters. m.

The area of ​​the restaurant hall is 100 sq. m. In summer, the restaurant received permission to use the area adjacent to the building - 70 sq. m. m. But in the accompanying documentation, the director of the restaurant indicated that only 40 sq. m. m. The rest of the area will be used for an open kitchen.

Thus, the total area of ​​the visitor service hall was:

100 sq. m + 40 sq. m = 140 sq. m.

Therefore, the restaurant can continue to pay tax on imputed income.

Second method: suitable for catering establishments, if the total area of ​​service halls is significantly more than 150 sq. m.

After obtaining permission to use the area adjacent to the building, rent it out to a trusted person. As an option: the owner of the restaurant can get a certificate individual entrepreneur and rent space from the company. In this case, the area of ​​service halls for the purpose of paying tax on imputed income will need to be considered separately. And if the area of ​​the summer hall is less than 150 sq. m, then there are grounds for switching to common system no taxation.

If the bar is not separated from the gambling hall in any way, then the tax authorities demand that the entire area of ​​​​the premises be included in the calculation of the single tax (of course, provided that it does not exceed 150 sq. M). In this case, the data is taken from the certificate of the technical inventory bureau.

You can get out of this situation. We offer two ways to solve the problem.

First way. You can separate the bar room with some kind of partition. If the partition is decorative, then its installation can be reflected in the plan of the room, approving the change in the layout with an internal administrative document.

But, of course, it is better that the technical inventory authorities (BTI) confirm the presence of the partition and indicate this in the technical passport of the premises, plan, diagram ... In addition, it would not be superfluous to indicate the purpose of the property in the papers. In this case, the tax authorities will no longer have a reason to complain. And a single tax on activities related to trade must be paid only from the area that is occupied by the bar.

The second way. Part of the premises reserved for a bar or cafe must be leased to a subsidiary or an individual entrepreneur. Then it turns out that a separate legal (or natural) person is engaged in the “imputed” type of activity. And the company itself only leases its space.

UTII in this case will be paid from the area specified in the lease. And the inspectors will have no doubts.

Additionally, we would like to advise you to conclude a lease for a period of less than a year, and then extend it (or conclude a new one). In this case, you do not have to register this agreement.

15.3. Features of calculating UTII for catering

Catering services that fall under UTII are the sale of not only products own production but also purchased food and beverages.

Retail is defined in Art. 346.27 of the Tax Code of the Russian Federation. It also says that retail sales do not include the sale of food and beverages (including alcoholic) in bars, restaurants, cafes and other catering outlets. And it is emphasized: it does not matter whether these goods are sold in the packaging and packaging of the manufacturer or not.

Moreover, in state standard it is clearly stated that the services of restaurants and other establishments include the sale of purchased goods (clauses 4.2.1, 4.2.2, 4.2.3 GOST R 50764-95).

The sale of cigarettes in the customer service area is also considered to be catering.

In those regions where the K2 coefficient does not have a fixed value, but depends on the type of establishment, the company needs to decide which type of its catering business belongs to. Indeed, for restaurants and bars, this coefficient is higher than for cafes, eateries, and even more so, canteens. Such a scale of K2 values ​​has been introduced, for example, in the Vologda Oblast, Krasnodar, and Krasnoyarsk Territories.

The standard by which the type of enterprise can be determined is GOST R 50762-95. This is what the courts often use. Here is one of the arbitration cases.

Tax inspectors tried to prove that the catering point is not a canteen, but a cafe. And all because the institution is open until the evening, sells alcoholic beverages and has a waiter on its staff.

The judges did not support the inspection. Their decision was based on the requirements of GOST R 50762-95, according to which the cafe must have a ventilation system, cutlery made of of stainless steel, sorted glassware. This food point does not have all this, therefore it is not a cafe, but a canteen (Resolution of the Federal Antimonopoly Service of the East Siberian District of September 17, 2003 No. A33-3497 / 03-S3S-F02-2717 / 03-S1). Accordingly, the company must take into account a small correction factor established for canteens.

In accordance with the letter of the Ministry of Finance of the Russian Federation dated July 3, 2006 N 03-11-02 / 150, the delivery of culinary products and confectionery products manufactured by a public catering enterprise for general educational institutions and temporary detention facilities cannot be classified as public catering services, since as it does not meet the definition of the concept of "catering services".

A public catering facility with a visitor service hall is a building (part of it) or a structure intended for the provision of public catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities. This category of public catering facilities includes restaurants, bars, cafes, canteens, snack bars.

In this case, the public catering enterprise provides only services for the delivery of its culinary products and confectionery products and does not participate in the creation of conditions for the consumption and (or) sale of its products.

In addition, general education educational establishments and temporary detention facilities, to which a public catering enterprise supplies its products, do not have specially equipped premises for the consumption of manufactured culinary products and confectionery products (canteens), as well as separate facilities for their sale (kiosks, tents, etc.).

At the same time, in accordance with Article 346.27 of the Code, public catering services include services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as for leisure activities.

Thus, the activities carried out by a public catering enterprise for the delivery of culinary products and confectionery products manufactured by it for general educational institutions and temporary detention facilities cannot be classified as public catering services, since it does not meet the definition of the concept of "public catering services".

In view of the foregoing, such activities should be taxed in accordance with the generally established procedure or in accordance with the simplified taxation system.

With its letter dated September 11, 2007 No. 03-11-04 / 3 / 359 “On the manufacture of culinary products and the sale of purchased goods”, the Ministry of Finance of Russia answers the following question:

Will the activities of the organization for the manufacture of culinary products, confectionery, from 2008 fall under the taxation system in the form of UTII?

The organization provides services for the manufacture of culinary products, confectionery products, and creates conditions for their consumption and sale, as well as conditions for the consumption and sale of purchased goods, including alcoholic beverages and beer, both in the manufacturer's packaging and packaging, and without such packaging and packaging . In addition, the organization, at the same time, creates conditions for leisure activities through catering facilities, with a service hall area of ​​​​no more than 150 square meters. m for each catering facility.

Answer: According to Article 346.27 of the Code, catering services include services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities .

At the same time, from January 1, 2008, the amendments introduced by Federal Law No. 85-FZ of May 17, 2007 “On Amendments to Chapters 21, 261, 262 and 263 of Part Two of the Tax Code of the Russian Federation” come into force.

This Law amended Article 346.27 of the Code, which, in particular, clarified the concept of “public catering services”.

Public catering services will not include services for the production and sale of excisable goods specified in subpara. 3 and 4 paragraph 1 of Art. 181 of the Code.

Thus, catering services will not include the production and subsequent sale of drinking alcohol, vodka, alcoholic beverages, cognac, wine and other food products with an ethyl alcohol volume fraction of more than 1.5 percent (except for wine materials), as well as beer.

Therefore, if an organization manufactures those listed in paragraphs 3-4 of Art. 181 of the Code excisable goods and further sells these goods through a public catering facility, then such activities are not subject to transfer to the taxation system in the form of a single tax on imputed income, and must be taxed under the general taxation regime.

If the organization sells through the catering facility acquired for subsequent sale listed in paragraphs 3-4 of Art. 181 of the Code excisable goods, then such activities can be classified as public catering services and, accordingly, transferred to the taxation system in the form of a single tax on imputed income.

In addition, according to new edition Chapter 26.3 of the Tax Code of the Russian Federation (subclause 8, clause 2 of Article 346.26 of the Tax Code of the Russian Federation) from January 1, 2008, the provision of public catering services by educational, healthcare and social security institutions is not transferred to the payment of UTII, that is, the payment of a single tax on imputed income is not the provision of public catering services is transferred if this is an integral part of the functioning of these institutions and these services are provided directly by the institutions themselves.

Given the above, entrepreneurial activity organizations associated with the provision of services for the manufacture of culinary products and confectionery products, as well as the creation of conditions for the consumption and sale of these products and purchased goods, including, alcoholic products and beer in the packaging and packaging of the manufacturer and without such packaging and packaging; for leisure activities through public catering facilities, with an area of ​​\u200b\u200bthe hall for serving visitors no more than 150 sq. m. for each object, in 2008 can be transferred to the taxation system in the form of UTII, subject to the norms established by Article 346.26 and Article 346.27 of the Code regarding entrepreneurial activity in the provision of public catering services, taking into account the new version of Chapter 26.3 of the Code.

15.4. Provision of car storage services Vehicle their clients

In accordance with the current version of Article 346.27 of the Tax Code of the Russian Federation, paid parking lots are areas (including open and covered areas) used as places for the provision of paid services for the storage of vehicles. Moreover, in Chapter 26.3 of the Tax Code of the Russian Federation it was not indicated on the basis of which documents the parking area should be determined and what should be included in it.

Now legislators have introduced the concept of "parking area". This is the total area of ​​the land plot on which paid parking is located, determined on the basis of title and inventory documents.

Many trade organizations and public catering organizations maintain paid parking lots designed to store customers' vehicles.

In accordance with paragraph 4.1 of paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation, activities related to the provision of services for the storage of vehicles in paid parking lots fall under the taxation system in the form of a single tax on imputed income. According to paragraph 3 of Art. 346.29 of the Tax Code of the Russian Federation, the physical indicator of the basic profitability for this type of activity is the parking area (in square meters).

Article 346.27 of the Tax Code of the Russian Federation determines that paid parking lots are areas (including open and closed areas) used as places for the provision of paid services for the storage of vehicles. The Ministry of Finance of Russia, in Letter No. 03-06-05-04/143 dated May 25, 2005, clarified that the parking area should be determined based on technical documentation to this object.

In the new wording of article 346.27, the “parking area” has been changed. Now this is the total area of ​​the land plot on which paid parking is located, determined on the basis of title and inventory documents.

That is, on the one hand, when calculating the physical indicator, we were obliged to take into account the entire area of ​​the land plot, and on the other hand, it was finally determined that this area should be calculated on the basis of inventory and title documents.

We want to organize a bar area in the car dealership (preheated pastries, coffee, tea, drinks). The bar will be issued on IP, the patent system of taxation. In our region, the patent taxation system is provided for in several categories: Catering services provided through public catering facilities with an area of ​​​​a hall for serving visitors no more than 50 square meters for each public catering facility, including: restaurant catering services 1,000,000 cafe catering services 800,000 services Canteen catering480,000Snack bar catering400,000Bar catering600,000Other types of catering services270,000What category does the activity we want to organize belong to?Thank you!

In order to understand what type of public catering your activity will belong to, you should find out the definitions of such types. They can be given in the document that established the patent system in the region. If such concepts are not established there, you can use GOST 30389-2013. Based on the definitions given in this document, we can conclude that you will have a quick service business, that is, "the provision of catering services to other types of businesses."

Rationale

ORDER, GOST ROSSTANDARD DATED 22.11.2013 No. 1676-ST, GOST 30389-2013

GOST 30389-2013. Interstate standard. Catering services. Catering establishments. Classification and general requirements

3. Terms and definitions

This standard uses the terms and definitions in accordance with GOST 31985, as well as the following terms with the corresponding definitions:

3.1. enterprise (object) of public catering (enterprise (object) of catering): Property complex used legal entity or an individual entrepreneur to provide catering services, incl. production of public catering products, creating conditions for the consumption and sale of public catering products and purchased goods both at the place of manufacture and outside it on orders, as well as for the provision of a variety of additional services.

3.2. restaurant: A catering enterprise (object) that provides the consumer with services for organizing meals and leisure or without leisure, with a wide range of complex dishes, including specialties and products, alcoholic, soft, hot and other types of drinks, confectionery and bakery products, purchased goods .

3.3. cafe: A catering enterprise (object) that provides the consumer with services for organizing meals and leisure or without leisure, with the provision of a limited range of products and services compared to a restaurant, selling specialty dishes, confectionery and bakery products, alcoholic and non-alcoholic drinks, purchased goods.

3.4. bar: A catering enterprise (object) equipped with a bar and selling, depending on specialization, alcoholic and (or) non-alcoholic drinks, hot and soft drinks, dishes, cold and hot snacks in a limited assortment, purchased goods.

3.5. fast-food establishment: A catering enterprise (object) that sells a narrow range of dishes, products, drinks of simple manufacture, as a rule, from semi-finished products high degree readiness, and ensuring the minimum time spent on customer service.

3.6. buffet: A public catering enterprise (object) that sells a limited range of public catering products from semi-finished products of a high degree of readiness, including cold and hot dishes, snacks, flour culinary, bakery and confectionery products, alcoholic and non-alcoholic drinks, purchased goods .

3.7. cafeteria: A catering enterprise (object) equipped with a buffet or bar counter, selling hot drinks, soft drinks, a limited range of catering products from semi-finished products of a high degree of readiness, including sandwiches, bakery and confectionery products, hot simple dishes manufacturing and purchased goods.

3.8. canteen: A public catering enterprise (object) that prepares and sells a variety of dishes and culinary products with the consumption on the spot in accordance with the menu, which differs by day of the week.

3.9. snack bar: A catering enterprise (object) with a limited range of dishes and products of simple manufacture and intended for quick service to consumers, with a possible sale alcoholic beverages, purchased goods.

3.10. culinary shop (department): Shop (department) for the sale of public catering products to the population in the form of culinary products, semi-finished products, confectionery and bakery products.

3.11. type of enterprise (object) of public catering: Type of enterprise (object) with characteristic service conditions, assortment of public catering products sold and technical equipment.

3.12. preparation shop (object): A public catering enterprise (object) that manufactures culinary products, bakery and confectionery products and supplies them to pre-cooking facilities, shops (departments) of culinary, retail trading network and other organizations, as well as for delivery to consumers on their orders.

"Public catering enterprises: accounting and taxation", 2009, N 9

In what cases does a catering company operate through a facility that does not have a customer service hall? Is it necessary to create conditions for the consumption of products of the catering facility in this case? About this in this article.

Services without product consumption

In accordance with paragraphs. 8, 9 p. 2 art. 346.26 of the Tax Code of the Russian Federation in relation to the provision of public catering services, UTII can be applied when they are carried out through public catering facilities with an area of ​​\u200b\u200ba visitor service hall of no more than 150 square meters. m for each facility, as well as through catering facilities that do not have a customer service hall. A public catering organization that does not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods is a facility that does not have a visitor service hall.

On the other hand, catering services<1>- services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities (Article 346.27 of the Tax Code of the Russian Federation).

<1>These services do not include services for the production and sale of excisable goods specified in paragraphs. 3, 4 p. 1 art. 181 of the Tax Code of the Russian Federation.

In other words, it is allowed:

• creation of conditions only for consumption;
• implementation only;
• creation of conditions for consumption and sale.

The definition of a catering facility without a service hall also indicates that conditions for consumption are not created in such an facility. For the purposes of applying UTII, the definition of catering services contained in Art. 346.27 of the Tax Code of the Russian Federation, takes precedence over the provision of GOST R 50647-94<2>"Public catering. Terms and definitions" (hereinafter - GOST R 50647-94). So, according to Art. 3 GOST R 50647-94 public catering is understood as a set of enterprises of various organizational and legal forms and individual entrepreneurs engaged in the production, sale and organization of consumption of culinary products. As you can see, the union "or" in this definition is absent.

<2>Approved by the Decree of the State Standard of Russia dated February 21, 1994 N 35.

Although, for example, in GOST R 50762-2007 "Catering services. Classification of catering establishments"<3>, put into effect from 01/01/2009, a public catering enterprise is an enterprise intended for the production, sale and (or) organization of consumption of public catering products, including culinary products, flour confectionery and bakery products. In addition, one of the types of public catering enterprises, depending on the nature of their activities, are enterprises that organize the sale of public catering products (with possible consumption on the spot) (culinary shops, buffets, cafeterias, small retail trade network enterprises) (clause 4.1 of GOST R 50762 -2007). No consumption is mentioned in the definition of a culinary store contained in GOST R 50762-2007 (clause 4.15) and GOST R 50647-94 (clause 14 of Appendix A).

<3>Approved by the Order of Rostekhregulirovanie dated December 27, 2007 N 475-st.

Note. A culinary shop is a public catering enterprise that has its own culinary production and sells culinary products, semi-finished products, flour bakery and confectionery products and purchased food products to consumers (paragraph 4.15 of GOST R 50762-2007).

Federal Law No. 155-FZ of July 22, 2008 established that from January 1, 2009, kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, eateries and other similar catering outlets (Article 346.27 of the Tax Code of the Russian Federation). In the previous version, this provision was as follows: this category of public catering facilities includes kiosks, tents, culinary shops (sections, departments) and other similar public catering outlets.

Note that covered markets (fairs), shopping malls, kiosks, vending machines and other similar objects are objects of a stationary trading network that does not have trading floors (Article 346.27 of the Tax Code of the Russian Federation). The Ministry of Finance refers to other similar objects as separate objects located on land plots and not subject to movement for any period of time (for example, during the period of the lease agreement), in particular tents, stalls, containers, boxes, etc. (Letter dated May 22, 2006 N 03-11-04/3/267). As we can see, two objects (kiosks and tents) can be used as catering and trade objects. According to Art. 346.27 of the Tax Code of the Russian Federation, a kiosk is a building that does not have a trading floor and is designed for one workplace seller, and a tent - a collapsible structure, equipped with a counter, which does not have a trading floor. Similar definitions are also contained in GOST R 51303-99 "Trade. Terms and definitions"<4>. But in GOST R 50647-94, the concepts of "kiosk" and "tent" are completely absent. Yes, and culinary shops can be both at catering enterprises and trade. The presented provisions show that the creation of conditions for the consumption of culinary products is not mandatory requirement for recognition of activities through a catering facility without a service hall as a service of a catering facility transferred to the payment of UTII. In this case, how to distinguish kiosks, tents, culinary catering departments from similar objects belonging to a stationary trading network that does not have trading floors?

<4>Approved by the Decree of the State Standard of Russia dated 11.08.1999 N 242-st.

We believe that the preposition "at" in the definition of catering facilities that do not have a customer service hall plays a key role: only those kiosks, tents, culinary shops (departments) that are located at a catering establishment carry out activities related to catering services . Although, we note, the Ministry of Finance believes that the concept of "a public catering facility that does not have a service hall" has not essentially changed since 01/01/2009 (Letter of 12/24/2008 N 03-11-05 / 309). He points out that the activities of the organization for the sale of culinary products of its own production (culinary flour, bakery and confectionery products) through culinary shops, as well as culinary departments at culinary workshops, both in 2008 and from January 1, 2009, refer to entrepreneurial activity in the provision of public catering services, carried out through public catering facilities that do not have a customer service hall, and, accordingly, are subject to transfer to the payment of UTII.

Opinion of officials: services for consumption are needed in any case

financial authority in its early letters pointed out that the activity of a public catering facility, both with a visitor service hall and without it, regardless of location and type (kiosk, tent and other similar public catering points), also provides for the organization of the consumption of purchased products on the spot (Letter of 01.02 .2006 N 03-11-04/3/55). This conclusion is substantiated by the fact that otherwise there is a discrepancy with the concept of "public catering" contained in Art. 3 GOST R 50647-94. Similar conclusions were also voiced in Letter No. 03-11-04/3/295 dated July 25, 2007. Note that in Appendix A "Description of groupings" OK 029-2007 (NACE Rev. 1.1)<5>it is stated that the grouping "Hotels and restaurants" (code 55) does not include the production of culinary products, semi-finished products or finished products not intended for consumption on the spot.

<5> All-Russian classifier species economic activity OK 029-2007 (NACE Rev. 1.1), approved. Order of Rostekhregulirovanie dated November 22, 2007 N 329-st.

Later, the Ministry of Finance, in Letter No. 03-11-05/34 dated February 18, 2008, indicated that the activity for the manufacture and sale of culinary products (grilled chicken, pancakes, hot sausages with buns, coffee) through a kiosk refers to catering services provided through the facility a public catering organization that does not have a customer service hall, and, accordingly, can be transferred to the payment of UTII. Moreover, this Letter does not say a word about creating conditions for consumption.

However, this year, in response to a similar question regarding grilled chickens sold through a kiosk in which conditions for their consumption are not created, the Ministry of Finance indicated that since the prepared grilled chickens are sold without consumption on the spot, this activity does not belong to the catering sector, which is taxed UTII (Letter of 07/01/2009 N 03-11-09 / 233). Is not this species activities and retail trade subject to UTII, as there is a sale of products of own production<6>(Article 346.27 of the Tax Code of the Russian Federation). Based on this, it is noted that this type of activity is subject to taxation under the OSNO or USNO.

<6>From 01.01.2009, in accordance with Federal Law No. 155-FZ of 22.07.2008, retail trade includes the sale through vending machines of goods and (or) catering products manufactured in these vending machines.

With regard to the sale of culinary and confectionery products of its own production through a tray on the street, the Ministry of Finance in Letter dated 03.03.2007 N 03-11-04 / 3/63 indicated that this type of activity relates to peddling and it is subject to the provisions for retail trade . Since the sale of products of own production (manufacturing) does not apply to retail trade, the sale by an organization of culinary and confectionery products of its own production through a tray on the street is not retail trade and should be subject to the general taxation regime.

As you can see, despite the presence in the definition of a catering facility without a customer service hall (Article 346.27 of the Tax Code of the Russian Federation) there is an indication that there is no specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, officials insist on the need to create conditions for consumption in this case as well.

How can you create conditions for consumption in the absence of a service hall? The Ministry of Finance does not answer this question. At the same time, if tables are set up next to the culinary department, the tax authority considers that in this case the culinary department in the store’s trading floor cannot be attributed to public catering facilities that do not have a customer service hall (Letter of the Federal Tax Service for the Moscow Region dated 07.02.2007 N 24-16/0106@). In another Letter (dated 06.03.2007 N 03-11-04 / 3/63) the Ministry of Finance also says that if in the inventory documents the area equipped for the consumption of culinary products and confectionery products (for placing tables) is allocated in the culinary department, then it should be attributed to a public catering facility that has a customer service hall.

Note. In accordance with Art. 346.27 of the Tax Code of the Russian Federation, a service hall is a specially equipped room or an open area for the consumption of finished culinary products, confectionery and (or) purchased goods. This category of public catering facilities includes restaurants, bars, cafes, canteens and snack bars. And an open area is a place specially equipped for public catering, located on a land plot.

What conditions for consumption can be created in kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars and other similar public catering outlets so that a customer service hall does not arise? For taxpayers who do not want to enter into a dispute with officials, one can only recommend supplying visitors with napkins, disposable tableware, and bags.

We count the number

A physical indicator of the provision of catering services through a catering facility that does not have a customer service hall, on the basis of paragraph 3 of Art. 346.29 of the Tax Code of the Russian Federation is the number of employees, including the entrepreneur. The basic yield is 4500 rubles. per month.

If a public catering enterprise carries out two types of activities (with and without the area of ​​\u200b\u200bthe hall for serving visitors), the question arises: how to determine the physical indicator "number of employees, including an individual entrepreneur" necessary to calculate the amount of a single tax?

Note. Number of employees - average (average) for each calendar month of the tax period, the number of employees, taking into account all employees, including those working part-time, work contracts and other civil law contracts (Article 346.27 of the Tax Code of the Russian Federation).

Order of distribution this indicator Not defined by the tax code. In turn, administrative and managerial personnel - AUP (management, accountants, etc.) and auxiliary personnel (janitors, cleaners, etc.) are involved in all types of activities. Until May of this year, officials believed that the number of employees employed in activities subject to UTII should include those who are directly related to this activity and those who are not directly related to it (Letters of the Ministry of Finance of Russia dated 06.03.2009 N 03- 11-09/88, dated 08/28/2008 N 03-11-04/3/404, dated 09/06/2007 N 03-11-05/216). Moreover, as the FAS ZSO pointed out in the Decree of December 09, 2008 N F04-7728 / 2008 (17505-A03-19), it is impossible to receive potential income without management personnel. In this regard, the inclusion of these employees in the physical indicator "number of employees" when calculating the tax base is legitimate.

In recent clarifications (Letters dated June 25, 2009 N ShS-22-3 / 507 @, dated May 8, 2009 N 3-2-16 / 49 @), the tax authorities have radically changed their position, indicating that they consider it appropriate when determining the physical indicator "quantity employees, including an individual entrepreneur" the average number of employees participating simultaneously in all types of activities, distributed by types of activities carried out in proportion to the calculated average (average) number of employees directly involved in each type of their activity.

Moreover, in these Letters, the tax authority, with reference to the invalid Guidelines on the application of Chapter 26.3 of the Tax Code of the Russian Federation and the Letter of the Ministry of Finance of Russia dated March 18, 2003 N 04-05-12 / 21 claims that he had previously adhered to this point of view, "forgetting" about the above official explanations.

At the same time, the federal tax service notes that if it is impossible to distribute the number of employees by type of business activity (there is no assignment of employees for specific types of activity), the value of this indicator should be determined based on the total headcount of employees, which includes both administrative and managerial and support staff, as well as the number external part-timers and employees performing work under civil law contracts. This means that all employees of the entrepreneur, for example, in the culinary department, work in shifts, which means that UTII will need to be paid from the total number of employees, including AUP, support staff, as well as the number of external part-time workers and workers performing work under civil law contracts.

Enterprises that do not agree with this point of view can use the conclusions of the Presidium of the EAC. So, revenue can also be used as a basis for distribution. It concerns the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 23, 2009 N 17123/08 of the area of ​​​​the trading floor and testifies to the right of the taxpayer to pay UTII not from the total area of ​​\u200b\u200bthe store, but from the corresponding part (purchased goods and own production). In particular, the Presidium of the Supreme Arbitration Court concluded that the analysis of the provisions of Art. 346.26 of the Tax Code of the Russian Federation and the general principles of legislation on taxes and fees allow us to conclude that the physical indicator "sales area" must be determined in this case in proportion to revenue. We believe that these conclusions can be transferred to our physical indicator - "the number of employees, including an individual entrepreneur." The only thing to remember is that a dispute with the regulatory authority is possible, so the selected base for the distribution of the indicator must have an economic justification.

N.V. Lebedeva

Magazine editor

"Public catering establishments:

accounting and taxation"

According to paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), the taxation system in the form of a single tax on imputed income for certain types activities can be applied by decisions of representative bodies municipal districts, urban districts, legislative (representative) bodies state power the federal cities of Moscow and St. Petersburg, in particular, in relation to the provision of catering services through public catering facilities that do not have a customer service hall.

Article 346.27 of the Code determines that public catering services are services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities. Public catering services do not include services for the production and sale of excisable goods specified in subparagraphs 3 and 4 of paragraph 1 of Article 181 of the Code.

At the same time, a public catering facility that does not have a customer service hall is a public catering facility that does not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods. This category of catering facilities includes kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars and other similar catering outlets.

In accordance with the Classification of catering establishments (GOST R 50762-2007), approved by order of Rostekhregulirovanie dated December 27, 2007 No. 475-st (hereinafter referred to as the Classification), a buffet is a public catering establishment located in residential and public buildings, selling with consumption on the spot a limited range of catering products from semi-finished products of a high degree of readiness, including cold dishes, snacks, hot, sweet dishes of simple preparation, flour culinary, bakery and confectionery products and purchased goods.

According to paragraph 4.1. of this Classification, buffets belong to enterprises that organize the sale of catering products (with possible consumption on the spot) along with culinary shops, cafeterias, and small retail trade network enterprises.

In this regard, for the purposes of Chapter 26.3 of the Code, entrepreneurial activity for the manufacture and sale of culinary products of own production through a buffet, bar counter, etc. is recognized as a public catering service carried out through public catering facilities that do not have a customer service hall, and can be transferred to the payment of a single tax on imputed income for certain types of activities.

In this case, to calculate the amount of a single tax on imputed income for certain types of activities, the physical indicator “Number of employees, including an individual entrepreneur” is used with a base income of 4,500 rubles per month.

Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation S.V. Razgulin

Expert comment

UTII: sale of culinary products through a catering facility

The payment of UTII transfers activities for the manufacture and sale of culinary products of own production through a buffet, a bar counter, that is through a catering facility.

Interestingly, the sale of culinary products of our own production includes the sale of soups and drinks. But if we are talking about the sale of soups made from dry ingredients and water through vending machines, then such activity is recognized as the provision of catering services, which is carried out through public catering facilities that do not have a customer service hall (letter of the Federal Tax Service of Russia dated 04.22.2008 No. ShS-6-3/305).

So, when qualifying culinary products for their own production, judges indicate that the goods being sold must have their original properties changed, that is, signs of culinary processing(Resolution of the Federal Antimonopoly Service of the Moscow District of August 16, 2011 No. А41-24446/10).

Also, the sale of culinary products includes the sale of purchased food products in the cooking room. This is also stated in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 23, 2009 No. 17123/08. The judges issued a verdict that the sale of culinary products and other food products at retail through a catering facility is a catering activity.

The sale of products in a specially designated dining room is not regarded as an independent type of activity - retail trade.

In addition, “taxable” activities in the provision of catering services include:

• activities related to the production (manufacturing) and retail sale of confectionery products, hot and cold drinks through a production and sales outlet located in a shopping center and not having a customer service hall (letter of the Ministry of Finance of Russia dated February 24, 2012 No. 03-11-06 / 3 /15);
• activities in the field of production and sale of soft drinks and cocktails (milk, sour-milk, fruit), obtained by mixing the relevant ingredients by a catering organization employee immediately before use in catering facilities that have and do not have visitor service halls.

However, activities for the manufacture and sale of oxygen cocktails carried out through retail facilities are not transferred to the payment of UTII (letter of the Ministry of Finance of Russia dated February 22, 2012 No. 03-11-06 / 3/13 *) if:

• services are provided through leased pavilion with dedicated visitor service hall(but not more than 150 sq. m), then such activity should be considered as entrepreneurial in the provision of catering services, carried out through a catering facility that has a visitor service hall;
• the provision of services is carried out through a pavilion in which a visitor service room is not allocated, then such activity can be attributed to entrepreneurial in the field of catering services, carried out through a catering facility that does not have a customer service hall (letter of the Ministry of Finance of Russia dated 10.01.2012 No. 03-11-11 / 337).

Specialists finance ministry in their letter dated January 23, 2012 No. 03-11-11/10, they noted that the activity of a catering facility, both with a visitor service hall and without a service hall, regardless of its location and type, always provides for the organization of the consumption of purchased products on the spot .

Entrepreneurs cannot pay UTII in relation to services for the preparation and delivery of catering products to their homes, since they are not related to the use of public catering facilities (letter of the Ministry of Finance of Russia dated December 10, 2010 No. 03-11-06 / 3/166).

Need to create the necessary conditions for consumption

In order to have the right to apply the taxation system in the form of UTII in relation to the sale of culinary products through catering facilities, it is necessary to comply with the established requirements. One of these requirements is the creation of conditions for the consumption and sale of finished culinary products.

Often, payers are mistaken that they have created such conditions for the possibility of consuming culinary products. So it was in the decision of the Federal Antimonopoly Service of the Urals District dated January 30, 2012 No. F09-9298 / 11.

The Company provided municipal educational institutions with services for catering for schoolchildren. Culinary products were prepared by staff in accordance with the requests of institutions, and their consumption by students took place in canteens.

Schools did not transfer to the society the premises necessary for catering for students. He was provided only with the equipment necessary for heating semi-finished products.

In this case, the arbitrators insist that, for the purposes of taxation, a person manufacturing culinary products must create conditions for their consumption or sale of finished culinary products.

As a result, the judges ruled that the provision of services municipal enterprise providing students with culinary products is not the provision of catering services, in which the service is provided directly to the consumer.

In addition, the payer did not create conditions for the consumption of culinary products.

The consumption of hot meals was organized by the municipalities themselves. educational institutions who were the owners of the premises. Therefore, the company had no reason to apply the taxation system in the form of UTII in relation to these catering facilities.

Tax consultant I.M. Khomenko

Can an individual entrepreneur involved by the organization apply PSN by type of activity "Public catering services provided through the organization's facilities that do not have a visitor service hall", if it operates on the territory of the customer's site.

Question: We - production organization. The production site is located 300 km from the city. Workers live on site throughout the production season. There is no desire to organize food on your own. Engaged IP. Can he apply the PSN for the type of activity "Catering services provided through catering facilities that do not have a visitor service hall" if he operates on the territory of our site?

Answer: Public catering services are recognized as services for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the consumption and (or) sale of finished culinary products, confectionery products and (or) purchased goods, as well as leisure activities.

Public catering facilities that do not have a customer service hall are catering facilities that do not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods. This category of catering facilities includes kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens and other similar catering outlets.

Thus, if an entrepreneur provides services for the preparation of meals and the creation of conditions for its consumption directly on the territory of the organization, then such activities can be classified as activities for the provision of catering services for the purposes of applying the patent taxation system (PST).

If an individual entrepreneur cooks food on his territory, and then delivers hot meals of his own production to order (on the basis of a concluded contract) to the territory of the organization, then such activities can be qualified as services of cooks for cooking dishes at home for the purposes of applying PSN.

Rationale

Who can apply the patent system of taxation

For what types of activities a patent is issued

The list of activities for which a patent can be obtained is established by paragraph 2 of Article 346.43 of the Tax Code of the Russian Federation. At the same time, the subjects of the Russian Federation have the right to expand this list in relation to other household services specified in OKVED 2 and OKPD 2. Codes for types of activities and codes for services that are related to household are listed in the lists approved by Decree of the Government of the Russian Federation dated November 24, 2016 No. 2496-r (subclause 2, clause 8, article 346.43 of the Tax Code of the Russian Federation). Look full list services that are subject to SPEs in your subject area can be found in your local law. A selection of such laws is in the table.

If an entrepreneur plans to simultaneously engage in several of the listed activities, he must obtain patents for each of them.