Calculation of UTII for retail trade. Retail space or retail space: we calculate UTII Tax UTII retail space

" № 7/2016

Does the tenant have the right to calculate UTII based on the actually used area of ​​the trading floor if he independently separated the storage space with temporary partitions?

The organization rented a retail facility. Since there were no warehouses or utility rooms in the rented areas, the organization installed temporary partitions and equipped them independently (this is stipulated in the lease agreement). When calculating UTII, she used the physical indicator “sales area” based on the actual area used. However, the tax authorities considered this to be unlawful and added additional taxes. In its Resolution dated May 20, 2016 in case No. A71-9313/2015, the AS UO took the side of the fiscals. Read more about this matter in this article.

We are studying the case materials...

In the explanation to the floor plan of the building, the rented premises are indicated as a trading floor with an area of ​​128 sq. m. m. Since there were no warehouse and utility rooms in the leased areas, the organization, having installed temporary partitions (showcases, counters, portable structures), equipped them independently (an additional agreement was drawn up to the lease agreement, according to which the tenant is provided with a retail and warehouse premises with a total area of 128 sq. m, of which 5 sq. m is retail space, 100 sq. m is storage area, 23 sq. m is utility room area). Accordingly, when calculating UTII, the organization used the physical indicator of 5 square meters. m. Is this approach legal? Inspectors and judges think not.

Reading tax laws

To calculate the amount of UTII taking into account the type of business activity - retail trade, carried out through the objects of a stationary trading network that has trading floors, the physical indicator “trading floor area (in sq. m)” is used (clause 3 of Article 346.29 of the Tax Code of the Russian Federation).

It would seem that by indicating as a physical indicator the area of ​​the sales floor actually used in business activities, the organization is doing the right thing. However, in Art. 346.27 of the Tax Code of the Russian Federation contains the following clause: the area of ​​the sales floor is determined on the basis of inventory and title documents.

Analyzing the position of the judges

There is uncertainty in this dispute. On the one hand (according to the explanation to the floor plan of the building), the non-residential premises are a trading floor with an area of ​​128 square meters. m. On the other hand (under the lease agreement) – the area of ​​the sales area is only 5 sq. m. m, the rest is storage and utility rooms. Let us recall that in this dispute the court supported the tax authorities, who assessed additional tax using the value of the physical indicator of 128 square meters. m.

So what happens, the tenant cannot rely on the data contained in the lease agreement? It is impossible to answer this question unequivocally - in each case one must proceed from the specific circumstances of the case.

As the court found out, the disputed premises with an area of ​​128 square meters. m was structurally isolated from other premises, had a separate entrance door, and there were no major partitions. Based on the presented layout plan for the store, the sales area (5 sq. m. area) is located in the middle of the warehouse area (100 sq. m.), from the general hall of the shopping center the buyer enters directly into the warehouse space, the passage to the sales area is not marked. Moreover, according to the protocol of the witness's interrogation, changes to the lease agreement were made at the request of the tenant without actual redevelopment.

As a result of the consideration of the case, the court concluded that the part of the premises of the retail outlet fenced off by the entrepreneur for storage (warehousing) of goods using display cases, counters and other portable structures cannot be recognized as an auxiliary (storage) premises, since the premises themselves presuppose its structural isolation and special equipment . In this case, the court stated that the annex to the lease agreement is not a title or inventory document.

Similar conclusions can be found in other court decisions.

Let's get acquainted with the opinions of officials

The situation analyzed in the article has been of concern to taxpayers for a long time. For example, in Letter No. 03‑11‑11/333 of the Ministry of Finance of the Russian Federation dated December 28, 2010, an individual entrepreneur asked the question: are utility, administrative and service premises, as well as premises for receiving and storing goods, structurally separate from the trading floor if the premises separated (separated from the retail space of the trading floor) not by capital, but by temporary partitions not specified in the technical (cadastral) passport of the property (only in the annex to the lease agreement)? Should these premises be included in the total area of ​​the trading floor for the purpose of UTII taxation?

As often happens, officials avoided a direct answer, but from their answer one can conclude that this is permissible.

When calculating the single tax on imputed income and determining the area of ​​the trading floor, one should be guided by inventory and (or) title documents, in this case, a lease agreement, which must clearly indicate the area of ​​​​the trading floor of the premises leased to an individual entrepreneur.

Drawing conclusions

Currently, fiscal officials are focused on collecting taxes. Therefore, the exclusion of part of the retail space by an organization (IP) from the calculation of the physical indicator for the purpose of calculating UTII is one of the frequent causes of tax disputes. Judges often echo officials.

In the case under consideration, of course, the attention of the tax authorities was attracted by the indication in the UTII declaration of an unlawfully small (5 sq. m) area of ​​the trading floor with a total area of ​​​​the trading premises of 128 sq. m. m. Also, inspectors will notice a violation if, for the same retail item, the area of ​​the trading floor suddenly decreases (for example, in the dispute considered in the Resolution of the Supreme Court of the Far East of December 15, 2015 in case No. A04-9307/2014, the size of the physical indicator of the area of ​​the retail space from January 2011 to January 2012 was 42 sq. m., from February to May 2012 - 32 sq. m., despite the fact that the tenant did not contact the landlord regarding the installation of additional partitions in the rented premises, equipment of a utility room for storing goods ).

Officials do not see a crime in the fact that the area of ​​a retail space can be determined based on the terms contained in the lease agreement. However, it must be taken into account that during an on-site tax audit, representatives of the inspectorate can go to the site and assess the correctness of the application of the physical indicator, as they say, after the fact. Therefore, if a similar situation arises in the activities of an organization, you can count on a positive outcome of the case only if the information specified in the lease agreement corresponds to reality, that is, the trading object is actually divided into several premises (albeit by non-permanent, but still walls) , and the inspectors will verify the nature of use of each of the premises, provided that this division is confirmed by documents (lease agreement, acceptance certificate of the leased object, documents confirming the installation of partitions (“primary” for the purchase of materials, certificate of work performed, etc.)) . The part of the premises of the retail outlet fenced off by the tenant for storing goods using display cases and counters cannot be recognized as ancillary (warehouse) premises.

An entrepreneur who engages in retail trade or provides services Catering, applies UTII. When calculating the “imputed” tax, physical indicators specific to a given taxation system are taken into account, based on the calculation of the area of ​​​​premises used in the activity. At the same time, not only the amount of tax payable, but also the very possibility of an entrepreneur applying UTII depends on the correctness of determining their total footage. Therefore, it is important to know which premises are not taken into account. Tips that can be found in judicial practice will help with this.

You can save on “imputed” tax by reducing the area of ​​premises taken into account for tax purposes. This can be done on completely legal grounds. Let's consider three types of premises that do not need to be included in the calculation of the physical indicator when calculating UTII.

Premises undergoing renovation

Most often, retail premises are rented by individual entrepreneurs. And often before starting work they make repairs or even reconstruction in them. It is possible that part of the premises is still at the stage of preparatory work, and part can already be used for trade. When determining the physical indicator for calculating UTII “sales area (in square meters),” an individual entrepreneur may be faced with the question of whether it is necessary to take into account those areas that are not yet in use.

For your information

Collapse Show

According to sub. 6 paragraph 2 art. 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of UTII can be applied to retail trade carried out through stores and pavilions with a sales area of ​​no more than 150 square meters. m for each trade organization object. The physical indicator in this case is “the area of ​​the sales floor (in square meters).”

To answer this question, one should refer to the definition of what is recognized as the area of ​​a sales floor. It is given in Art. 346.27 of the Tax Code of the Russian Federation.

Document fragment

Collapse Show

<...>area of ​​the trading floor - part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods, conducting cash payments and servicing customers, the area of ​​cash registers and cash booths, the area of ​​working places for service personnel, as well as the area of ​​passages for buyers. The area of ​​the trading floor also includes the rented part of the trading floor area. The area of ​​utility rooms, administrative premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, does not apply to the area of ​​the trading floor. The area of ​​the sales area is determined on the basis of inventory and title documents<...>

The areas where repair work is being carried out are not mentioned here. At the same time, it can be assumed that since the entrepreneur does not carry out trading activities through such premises, they should not be taken into account when determining the area of ​​the trading floor for tax purposes at this stage. After the completion of the repair work, the footage of these premises will affect the final physical indicator. True, most likely, if an entrepreneur decides to temporarily exclude areas where repairs or reconstruction are being carried out, the tax inspectorates, which approach this issue more formally, will not agree with him. Nevertheless, judicial practice confirms the legality of such a decision.

Arbitrage practice

Collapse Show

A similar situation became the subject of consideration by the Federal Antimonopoly Service of the Northwestern District.

Thus, during an on-site tax audit, the inspectorate found that the individual entrepreneur did not include in the area of ​​the trading floor for tax purposes the premises where repairs and reconstruction were carried out. The tax authorities considered that these actions led to an understatement of the tax base, and on this basis they held the entrepreneur accountable and assessed him in addition to a single “imputed” tax. Disagreeing with the decision of the tax authority, the entrepreneur went to court.

The judges found that during the audited period the individual entrepreneur rented premises with a total area of ​​141.2 square meters. m. However, when carrying out retail trade, not the entire area of ​​​​the rented premises was used. The fact is that the basement was still being reconstructed and repair work was underway. To justify this, the entrepreneur presented a reconstruction project, an agreement for the provision of repair services, local estimates, construction permits, etc. It is noteworthy that as evidence of repairs and reconstruction in these premises, complaints from residents about the noise accompanying these works were also addressed to entrepreneur.

In the resolution dated October 15, 2012 in case No. A42-8611/2010, with reference to the provisions of Chapter 26.3 of the Tax Code, the court came to the conclusion that when calculating the tax base for UTII, the area of ​​​​all premises actually used for carrying out activities is taken into account. As a consequence, areas where repairs and reconstruction are carried out are not taken into account. The decision of the inspectorate to hold the entrepreneur accountable and to charge him additional UTII amounts was invalid by the court.

Area used for storing goods

When calculating the area of ​​a sales floor, premises used for storing goods are not taken into account. This conclusion suggests itself from the analysis of the definition of this physical indicator. Indeed, in Article 346.27 of the Tax Code of the Russian Federation, the area of ​​utility rooms, administrative premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, does not relate to the area of ​​the trading floor. But it is important to have confirmation that these areas are used specifically for the specified purposes. Otherwise, tax inspectors may recognize them as part of the retail space. The likelihood of this is quite high, as evidenced by the fact that courts often have to consider disputes about the inclusion of warehouse premises in the retail area. However, the position of the courts on this issue is clear.

Arbitrage practice

Collapse Show

In the resolution dated 06/03/2013 No. F03-1604/2013, the Federal Antimonopoly Service of the Far Eastern District drew special attention to the fact that for the purposes of paying a single tax on imputed income, what matters is the actual use of the area when carrying out trade, and not the method of separating the retail premises from other premises. He came to this conclusion when considering a dispute between an entrepreneur and the tax office about whether it is necessary to take into account for tax purposes the premises used for storing goods.

The entrepreneur, based on a sublease agreement, rented a premises with a total area of ​​24 square meters. m, located in the store. As part of his retail trade, he installed a partition in this room, thereby separating the sales area from the storage area. As a result of these actions, the sales floor area was 16 square meters. m, the area of ​​the room for storing goods is 8 sq. m. When calculating the single tax on imputed income, an individual entrepreneur used the physical indicator “sales area (in square meters)” equal to 16 square meters. m. The room for storing goods is equipped with merchandisers and does not provide customer service.

As for the tax inspectorate, it did not dispute the fact of the existence of premises for storing goods on the merits. However, she believed that since the room was divided into two parts only by a temporary partition, it was one. This means that the tax must be calculated taking into account the total area of ​​24 square meters. m. But the court sided with the entrepreneur and declared the tax inspectorate’s decision to additionally charge him a single tax on imputed income to be unlawful.

Collapse Show

Nadezhda Bovaeva, accountant at Condor CJSC

It is necessary to note that in judicial practice there are also decisions according to which areas for receiving and storing goods must be included in the calculation of the area of ​​a retail space. True, they are associated mainly with the mistakes of the entrepreneur himself. A striking example is the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 24, 2012 in case No. A38-1707/2012.

Based on the results of the desk audit, the tax inspectorate accrued additional UTII to the individual entrepreneur, since the individual entrepreneur unlawfully underestimated the value of the physical indicator “sales area” by the area used for storing goods.

As the judges found out, the entrepreneur carried out a retail sale of shoes on the rented part of a non-residential premises. According to the lease agreement and the acceptance certificate for the sale of goods, the individual entrepreneur was granted the right to temporary paid use of non-residential premises with a total area of ​​20.2 square meters. m, which is located on the territory of a shopping complex and is an isolated retail section without division into retail space and warehouse space.

According to Art. 346.27 of the Tax Code of the Russian Federation, a stationary retail chain that does not have trading floors is located in buildings, structures and structures intended for trading that do not have separate and specially equipped premises for these purposes, and are also used for concluding retail sales contracts and for conducting auctions. These include indoor markets (fairs), shopping malls, kiosks, vending machines, etc. A necessary criterion for classifying a premises as a stationary retail chain with trading floors is the presence of utility and administrative premises, as well as premises for receiving, storing goods and preparing them for sale.

A trading place is understood as a place used for carrying out retail purchase and sale transactions. It includes buildings, structures, structures and land plots used for carrying out retail purchase and sale transactions, as well as retail trade and public catering facilities that do not have sales floors and customer service areas (tents, stalls, kiosks, boxes, containers and other facilities , including those located in buildings, structures and structures), counters, tables, trays (including those located on land plots), land plots used to accommodate retail trade (catering) facilities that do not have sales areas (service areas visitors), counters, tables, trays and other objects.

The entrepreneur’s argument that the division of the premises trade equipment for retail and warehouse space is a sufficient basis for allocating a sales area, the judges rejected it. This is due to the fact that a separate part of the premises of a retail outlet for storing (warehousing) goods using display cases, counters and other portable structures cannot be recognized as a utility room. After all, the very concept of “room” presupposes its constructive isolation and special equipment. The businessman did not provide documents related to the reconstruction of the premises.

The judges came to the conclusion that the disputed premises do not belong to the objects of a stationary retail chain with a sales floor. And when carrying out retail trade through an object recognized as a trading place, the physical indicator “trading place area” includes all areas related to this trading object, including those used for receiving and storing goods.

Bar area

Based on clause 2 of Art. 346.26 of the Tax Code of the Russian Federation, “imputed” types of activities include the provision of public catering services through public catering facilities with a visitor service area of ​​no more than 150 square meters. m for each catering facility.

Document fragment

Collapse Show

Article 346.27 of the Tax Code of the Russian Federation

<...>a public catering facility that has a hall for serving visitors - a building (part of it) or 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, and also for leisure activities. This category of public catering facilities includes restaurants, bars, cafes, canteens, snack bars;

<...>area of ​​the customer service hall - the area of ​​specially equipped premises (open areas) of a catering facility intended for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure, determined on the basis of inventory and title documents<...>

At the same time, the customer service hall includes only an area that is intended directly for eating food and spending leisure time. The area of ​​other premises, for example, a kitchen, a place for distributing and heating finished products, a cashier’s place, utility rooms, etc. for the purpose of paying UTII, it is not included in the area of ​​the visitor service hall. The Russian Ministry of Finance spoke about this in its letter dated 02/03/2009 No. 03-11-06/3/19.

But, despite such clear explanations from the financial department, in practice disputes arise regarding areas that are not directly mentioned in this letter. We are talking, in particular, about bar counters. However, the disputes are understandable: tax officials believe that their territories clearly belong to those where visitors directly consume products, and taxpayers insist on including these areas in the list of places for distribution of finished products and cashier places. Let's see what the judges think about this.

Arbitrage practice

Collapse Show

Based on the results of the on-site audit, the tax inspectorate held the taxpayer liable under clause 1 of Art. 122 of the Tax Code of the Russian Federation for incomplete payment of the single tax on imputed income. The basis was the tax authority’s conclusion that the physical indicator “area of ​​the visitor service hall” was underestimated by an area of ​​18.3 square meters. m, occupied by a bar counter.

FAS Central District found out that the disputed area (18.3 sq. m.) is occupied by a bar counter, behind which there were display cases for displaying culinary products, refrigeration equipment, equipment for heating and cooking, and a cash register. The tax authority did not provide evidence that the consumption of culinary products by visitors took place in this area or directly at the bar counter.

In addition, the bar counter is separated from other parts of the premises by an evacuation passage, the area of ​​which was not the subject of the lease agreement and the prohibition of occupying it with furniture and equipment was expressly provided for in the acts of acceptance and transfer of the leased space.

As a result, the court declared unlawful the inspectorate’s decision to hold the taxpayer liable under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, for incomplete payment of UTII. The FAS of the Central District presented its conclusions in a resolution dated November 21, 2012 in case No. A35-4212/2012.

Is it necessary to take into account the area in front of a retail outlet when calculating UTII?

Is the area of ​​the staircase included in the calculation of the “imputed” tax?

How is the area of ​​a hall rented by several merchants taken into account?

Retail trade can be transferred to UTII. Trading activities can be carried out through shops and pavilions with a sales area of ​​no more than 150 square meters. m for each trade facility (subclause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation), or through objects of a stationary retail chain without trading floors, as well as objects of a non-stationary retail chain (subclause 7, clause 2, article 346.26 of the Tax Code of the Russian Federation). In this case, the “imputed” tax will be calculated based on the physical indicator “sales area” or the “trading place” indicator. Let us remind you that if the area of ​​the retail space exceeds 5 square meters. m, then UTII should be paid based on the area.

The area of ​​the sales area is determined on the basis of inventory and title documents. These are considered to be any documents available to the individual entrepreneur for the retail chain facility, which contain information about the purpose, design features and layout of the premises, information confirming the right to use the facility. For example, a purchase and sale or lease agreement, a technical passport, plans, diagrams, explanations, permission to serve visitors in an open area.

For the purposes of UTII, the area of ​​the trading floor includes a part of the store, pavilion (open area) occupied by equipment intended for displaying, demonstrating goods, conducting cash payments and servicing customers, the area of ​​cash registers and cash booths, the area of ​​working places for service personnel, as well as aisle area for customers. The area of ​​the trading floor also includes the rented part of the trading floor area. The area of ​​utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, does not apply to the area of ​​the trading floor on UTII (Article 326.27 of the Tax Code of the Russian Federation).

The law talks about internal passages of buyers, that is, passages between display windows, passages to cash registers, etc. When determining the area of ​​a sales floor (sales place), is it necessary to take into account the area of ​​external passages for customers?

Area around the outlet

Is the area immediately adjacent to the retail outlet taken into account when calculating UTII? For example, a businessman rents a retail outlet at the market (a tray for displaying and demonstrating goods). The structure is fenced off from the market area by a counter; customers have no access directly to the trading area.

Let's assume the area of ​​the retail space is 5 square meters. m, but in the lease agreement, in addition to the area of ​​the retail space itself, the area in front of the retail outlet is indicated. Often, free market space is distributed among tenants in proportion to the area of ​​the occupied retail space. In addition to the area occupied by the sales tray, the tenant is given a certain part of the area in front of the tray. Despite the fact that the area of ​​passages for buyers is the total area of ​​the market, according to the agreement it is transferred to the businessman. UTII is calculated based on the area indicated in the documents, which means that the area of ​​passages must also be taken into account.

This is precisely the conclusion made in the letter of the Ministry of Finance of Russia dated May 26, 2009 No. 03-11-09/185. It turns out that UTII will have to be paid not from the “trading place”, but based on the “area”, because the limit is 5 square meters. m exceeded. It is unlikely that it will be possible to prove the opposite, because the area, firstly, is indicated in the title documents (in the contract), and must be based on them, and, secondly, it is used when serving customers - customers can approach the entrepreneur’s outlet.

Inclusion in the calculation of UTII of the area in front of the entrepreneur's trading place is legal, says the resolution of the Federal Arbitration Court of the North Caucasus District dated May 11, 2004 No. F08-1934/2004-741A.

Another situation: a businessman rents a container. Under the terms of the agreement, the entrepreneur is given a land plot with a total area of ​​25 square meters. m, of which 20 sq. m occupies a container, 5 sq. m - the area in front of the container where the goods are placed and customer service is provided. What is considered a trading place?

If the site is in front of the container, then UTII can be calculated based on the physical indicator “trading place”. If you sum up the area of ​​the container itself and the area in front of it, then the restriction is violated, and the tax will have to be calculated based on the “sales area” indicator. For a businessman, the first option is more profitable, but inspectors, and after them judges, point to the correctness of the second option.

The Tax Code does not contain any rules for the distribution of retail space. Under the terms of the agreement, the businessman receives a plot of 25 square meters. m, from which UTII must be paid. Even if the contract states that the container is used only for storing goods and preparing for sale, and customer service is provided only in the area in front of the container, it will not be possible to calculate UTII based on the “trading place” indicator.

Indeed, there is a rule that utility, warehouse, administrative and other auxiliary premises are not included when calculating UTII in the area of ​​the trading floor. But it only applies to fixed network objects. A retail space consisting of a container and an open area in front of it is not such.

The Russian Ministry of Finance notes that the code does not provide for a reduction in the area of ​​a retail space by the area where goods are stored or pre-sale preparation is carried out (letter dated July 17, 2008 No. 03-11-04/3/328). Moreover, if a businessman independently allocates part of the area, designating it as utility rooms, this will not affect the calculation of UTII. The tax will have to be paid on the area of ​​the entire retail outlet (letter of the Ministry of Finance of Russia dated August 10, 2009 No. 03-11-09/274).

Another letter from the financial department discusses a situation where an entrepreneur rents a retail space with an area of ​​30 square meters. m., with 20 sq. m. of which are a passage for buyers from one part of the building to another. And in this case, when calculating UTII, the entire area should be taken into account. There is no provision for reducing the area of ​​a retail space by the area of ​​aisles for customers (letter dated March 21, 2008 No. 03-11-05/67).

Is the entrance area to a store counted on UTII?

What about the entrance area to the store? Even if it is only a few meters, I would like to subtract them from the area on the basis of which UTII is determined.

The answer again depends on the documentation for the object. The Ministry of Finance of Russia in letter dated May 15, 2007 No. 03-11-04/3/159 indicates: if the entrance area is included in the total area of ​​the trading floor, then it must be taken into account when calculating UTII. It is difficult to exclude this part of the object from the calculation. Even if in the technical passport or other document this area is not included in the sales floor area, it will most likely be designated as a passage area for visitors, which is included in the calculation.

Now a few words about the area of ​​passages between departments. If a businessman completely owns an object, say, a businessman rents a hall divided into several departments, the entire area must be taken into account. Of course, excluding utility rooms and other auxiliary premises. If a businessman rents a trading floor, but the aisle area is not transferred to him under the terms of the contract, then UTII is paid only from the rented space. The inspectorate may try to charge additional tax by including customer passages in the calculation. Even if, according to the explication of the building, the passages belong to the trade zone, but only the hall was transferred to the merchant under the terms of the agreement, the court will be based on the lease agreement and the UTII will be calculated based on the area transferred for use to the individual entrepreneur (resolution of the Federal Arbitration Court of the North-Western District dated February 4, 2008 No. A56-2078/2007).

A similar conclusion can be drawn from the letter of the Ministry of Finance of Russia dated January 22, 2009 No. 03-11-06/3/05, which considers the situation when the trading floor is leased to different tenants. UTII must be calculated based on the size of the rented area of ​​the retail space, including aisles for customers, determined on the basis of the lease agreement. It turns out that if under the contract the passage areas are not leased, they do not need to be taken into account. Therefore, you can try to negotiate with the landlord to transfer only the retail space to the merchant, without including the area of ​​aisles for customers, and pay for it separately or simply increase the rent proportionally.

Another controversial area in the store is the stairs between the sales areas. It also needs to be taken into account when calculating UTII if it is transferred to the merchant under a lease agreement. If the staircase is common to pavilions located in mall and it is not specified in the contract, then it does not need to be taken into account.

For example, in the resolution of the Federal Arbitration Court of the North Caucasus District dated May 11, 2004 No. F08-1934/2004-741A, the judges agreed that the area immediately in front of the retail outlet should be included in the calculation of the “imputed” tax, but part of the area The court excluded the staircase to the area used by the entrepreneur in trading activities from the calculation of UTII.

Suppose a businessman owns trading floors located on different floors of the same building. In this case, the contract must clearly stipulate the ownership of the areas. If, according to the documents, trading floors located on different floors belong to the same facility of a stationary retail chain, then the total area of ​​the halls should be determined taking into account the area of ​​the stairs. Here the limit of 150 sq. m. may be violated. m and then the merchant will lose the right to work for UTII.

If the trading floors, according to the documents, belong to different retail facilities, then when calculating UTII, the areas are taken into account separately, they do not need to be summed up. In this case, the question must be decided which of the two halls the staircase belongs to. Since it cannot be excluded from the calculation, its area will have to be assigned to one of the halls or divided.

In order for the area of ​​the halls to be taken into account separately, in addition to dividing the retail space according to documents, it is necessary to organize separate accounting for each object. And if an individual entrepreneur makes calculations using a cash register, then each hall must have its own cash register, then the area can not be added up when determining the right to “imputation”.

Judicial practice shows that when assigning aisles for customers to a sales area (shopping area), the main role is played by the terms of the lease agreement. If the landlord included the area of ​​aisles in the sales area, then this indicator should be taken into account when calculating the single tax on imputed income.

"Unified tax on imputed income: accounting and taxation", 2010, N 4

The area of ​​the sales floor is an indicator, when applied, UTII payers have many questions. The article is devoted to determining the area of ​​the sales floor in cases of its use in activities subject to and not subject to UTII, as well as when redistributing space. In addition, issues related to the classification of one or more trading floors located in the same building as a trade organization object are considered.

Legislative norms

Retail trade carried out in a store or pavilion is subject to the payment of UTII if the area of ​​the trading floor in such a trade organization does not exceed 150 square meters. m, and by the decision of the municipality, the specified tax was introduced in relation to this activity (clause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation). On the one hand, the area of ​​the sales floor is taken into account when using restrictions on the use of UTII, on the other hand, it participates in the calculation of the single tax.

When determining this area, you need to know which premises are taken into account and which are not, which is confirmed by inventory and title documents. The area of ​​the trading floor is a part of the store, pavilion (open area), occupied by equipment intended for displaying, demonstrating goods, conducting cash payments and servicing customers, it includes the area of ​​cash registers and cash booths, the area of ​​working places for service personnel, as well as area of ​​aisles for customers (Article 346.27 of the Tax Code of the Russian Federation). The retail space can be either owned or leased. When calculating this indicator, the area of ​​utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, in which customer service is not provided, is not taken into account.

Note that the concept of utility room in the Letter of the Ministry of Finance of Russia dated November 6, 2008 N 03-11-04/3/496 is proposed to be taken from GOST R 51303-99 "Trade. Terms and definitions"<1>.

<1>Approved by Resolution of the State Standard of Russia dated August 11, 1999 N 242-Art.

This GOST defines a premises (store) for receiving, storing and preparing goods for sale, as well as administrative and utility premises.

So, the store’s utility room is a part of the store’s premises intended to house support services and perform maintenance work. technological process. The store's utility room includes storage areas for packaging and strapping materials, technological equipment, inventory, containers, cleaning machines, packaging waste, washing equipment and production containers, receiving glassware from the public, expedition for home delivery of goods, corridors, vestibules, lobbies. In accordance with this, the Letter concluded that the areas of the corridor and vestibule are not included in the area of ​​the trading floor if they are not used for retail trade.

Let us note that recognizing a premises as ancillary in itself is not a basis for not taking its area into account when calculating UTII, since an additional criterion must be met: customer service should not be provided in this premises (Article 346.27 of the Tax Code of the Russian Federation). The reasons for this condition are as follows:

• the name of the premises in title and other documents may not correspond to the nature of its actual use;
• such premises may be partially or fully, temporarily or permanently used for customer service.

In such cases, it is possible that the specified areas will need to be taken into account when calculating UTII.

Financiers in Letters dated 04/17/2009 N 03-11-09/142, dated 03/26/2009 N 03-11-09/115 draw attention to the need for constructive separation of utility rooms and other similar premises from the premises in which customers are served. Please note that following this recommendation reduces the risk of claims from tax authorities.

Documentary confirmation

In Art. 346.27 of the Tax Code of the Russian Federation clarifies that the area of ​​the trading floor is determined on the basis of any documents containing the necessary information about the purpose, design features and layout of the premises of the trade organization, as well as confirming the rights to the premises on the basis of:

• inventory documents, for example, technical passports for non-residential premises, plans, diagrams, explications, orders for the redistribution of space, photographs of premises;
• documents of title, such as purchase and sale agreements, lease (sublease) of non-residential premises or part(s) thereof, permits for the right to serve visitors in an open area.

Title and inventory documents together provide a general picture of the availability and nature of use of space. In some cases, for example, when redeveloping a premises, a significant role may be played not by a technical passport, plan, diagram or lease agreement, but by other documents, such as an organization order, photographs of the premises. An example of the importance of analyzing a set of documents is the Resolution of the Federal Antimonopoly Service VSO dated March 11, 2009 N A33-4391/08-F02-819/09, which concluded: the indication in the technical passport that the area of ​​the office premises is classified as commercial is not an absolute basis for its assignment to the area of ​​the trading floor. The court found that the concept of “trading area” is not identical to the concept of a trading floor and does not in itself prove the fact of the presence of a trading floor in the building and the disputed premises. And from other documents it did not follow that the organization carried out trading activities in these premises.

Calculation of the sales floor area taking into account its actual use for customer service

A taxpayer, having acquired ownership or leased retail premises, often carries out redevelopment in them in order to use the space more rationally, in accordance with his preferences. In this case, the area of ​​the trading floor may remain unchanged, decrease, or increase. Let's consider such cases.

Note. When changing the area of ​​the trading floor, you need to check compliance with the maximum area size at which UTII can be paid.

A taxpayer may choose to increase the area available for display of merchandise at the expense of customer aisle space. In such a situation, the sales area will not change and tax risks will not arise. He can also increase the area intended for displaying goods due to a utility room, resulting in an increase in the area of ​​the sales floor. In this case, it is necessary to promptly apply clause 9 of Art. 346.29 of the Tax Code of the Russian Federation, according to which, if during the tax period the taxpayer has a change in the value of a physical indicator, then when calculating the amount of a single tax, this change is taken into account from the beginning of the month in which the change in the value of the physical indicator occurred. In a situation where part of the utility room is already used for displaying goods, and no changes have been made to the technical passport and other inventory documents, Art. 346.27 of the Tax Code of the Russian Federation, which provides that when determining the area of ​​a sales floor, the area of ​​utility rooms in which customers are not served is not taken into account. Consequently, if customer service is actually carried out in the utility room, then regardless of the changes reflected in the registration certificate, the taxpayer needs to increase the area of ​​the sales floor when calculating UTII.

The opposite situation is possible, when the area of ​​the utility room increases due to the area of ​​the sales floor, as a result of which the latter decreases. The position of financiers on this issue is expressed in Letter dated October 19, 2007 N 03-11-04/3/411: when calculating UTII, the reduced area of ​​the sales floor is taken into account if this is confirmed by inventory data, for example a technical passport, explication. That is, financiers provide that as long as the corresponding changes in retail space are not reflected in the said inventory documents, the taxpayer has no grounds for reducing the sales area when determining imputed income. Tax inspectorates are guided by a similar position.

But the courts do not support them. They proceed from the fact that a mandatory sign for classifying space as “trading floor area” and taking it into account when calculating UTII is actual use of space during trade. And in the case of redevelopment, the courts pay attention not only to the technical passports of the BTI, plan, explication, lease agreement, but also to other documents (orders for the organization on the delimitation of premises, photographs of the premises) confirming the size of the actually used area for servicing customers, the constructive isolation of the premises .

A striking example is the Resolution of the Federal Antimonopoly Service dated May 22, 2008 in case No. A48-3680/07-2<2>. It examines a situation where the redistribution of space was a consequence of a previously committed theft of goods. The taxpayer decided that there was no need to use all the store space, since only the goods remaining after the theft were sold. By order, he redistributed the store's trading area and ordered that trade be carried out in trading floor No. 1, and premises No. 2, which includes two trading floors, be used as a warehouse for storing goods. The use of premises No. 2 as a warehouse is confirmed by the relevant order. The taxpayer informed the inspectorate about the redistribution of the area with a statement indicating the area on which retail trade will be carried out. In addition, the taxpayer sent an application to the Oryol Real Estate Center OGUP with a request to make changes to the technical passport of non-residential premises, but was refused to conduct an inspection and to make changes to the technical passport due to the fact that in relation to the said premises, the definition of the district the court introduced interim measures. The court recognized the calculation of UTII based on the reduced area of ​​the sales floor as justified. Failure to make changes to the technical passport was justified and did not play a decisive role in the issue under consideration.

<2>By ruling of the Supreme Arbitration Court of the Russian Federation dated October 17, 2008 N 11370/08, the transfer of this Resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

A similar conclusion was made by the Federal Antimonopoly Service in its Resolution dated August 25, 2009 in case No. A12-468/2009<3>, having considered the situation when the organization, having issued orders, distributed premises in rented stores into the area of ​​​​the sales floor and the area intended for storing inventory. The court drew attention to the fact that the fact that the areas for storing goods are separated from the sales area is confirmed by photographs of the sales floors and utility rooms; in addition, the areas for storing goods in the sales area are fenced off with display cases.

<3>By the decision of the Supreme Arbitration Court of the Russian Federation dated December 16, 2009 N VAS-16769/09, the transfer of this Resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

A similar position was expressed by the FAS VSO in Resolution dated January 14, 2009 N A33-4993/08-F02-6838/08.

This point of view is also confirmed by the Resolution of the Federal Antimonopoly Service of the North-West District dated 04/09/2010 in case No. A66-5675/2009. According to the arbitrators, the tax authorities unlawfully accrued additional UTII to the entrepreneur, citing the fact that the total area of ​​the store’s sales area was less than 150 square meters. m, since the non-residential premises, designated in the technical passport of the object as an “office”, were rightfully taken into account by the entrepreneur as a retail space due to the fact that the disputed premises were not utility rooms, but were actually used for displaying and demonstrating goods (carpets) to customers.

Thus, if an organization decides to use part of the sales area as a utility room, a place to store goods, etc., then it needs to pay attention to the following points:

• issue an order for the redevelopment of the premises, in which the reasons for this action should be indicated;
• delimit areas, for example, using a structure, a showcase;
• actually use the relevant part of the sales floor for purposes not related to customer service;
• submit documents to the BTI to make changes to the technical passport;
• It makes sense to notify the tax office about the fact of redevelopment and a reduction in the area of ​​the sales area.

If the taxpayer does not actually use part of the sales area for serving customers, then if there is no data on the redevelopment of the premises in the technical passport of the premises, explication and other documents, he has the right to reduce the area of ​​the sales area when calculating the tax. But in this case, he needs to be prepared for disputes with the tax inspectorate, and he will be able to prove his case, including in court, on the basis of the redevelopment order, photographs of the premises and other documents.

Features of classifying trading floors located in a building as one or more trade organization objects

Let us recall that paragraphs. 6 paragraph 2 art. 346.26 of the Tax Code of the Russian Federation provides a criterion, subject to which retail trade may be subject to UTII taxation: the area of ​​the sales area does not exceed 150 square meters. m for each trade organization facility (store, pavilion). Let's consider a situation where the building contains several trading floors through which the taxpayer carries out retail trade. When deciding whether the areas of these halls are summed up, it is necessary to determine how many retail facilities the taxpayer has in the building and which of them this or that trading floor belongs to. The legislator has not prescribed what criteria should be followed in this case. The official position is ambiguous, which confuses the taxpayer, tax authorities and increases the risk of tax disputes.

For example, in Letters of the Ministry of Finance of Russia dated 04/29/2010 N 03-11-11/127, dated 05/19/2010 N 03-11-11/143 it is stated that if the premises located in the building with trading floors, according to inventory and (or) legal documents relate to one retail facility (store or pavilion), then for the purposes of Ch. 26.3 of the Tax Code of the Russian Federation, the total area of ​​sales floors of all premises is taken into account. That is, if the agreement states that a store is being leased and provides a list of premises related to this store, then when determining the area of ​​the sales floor of this store, you need to sum up the areas of all sales floors. The proposed option is quite simplified and does not take into account the specifics of the situation, including the possibility of the owner (tenant) combining two trade organization objects into one or dividing one trade organization object into two or more objects.

• premises used for shops are structurally separated;
• Each store maintains separate records of income received using cash register equipment.

The Letter concluded that if the specified conditions are met, the sales area of ​​stores located in a multifunctional complex is calculated separately.

Let us note that the constructive isolation of premises is the main condition that financiers and tax inspectorates usually pay attention to in this matter. The Letter of the Ministry of Finance of Russia dated March 12, 2010 N 03-11-06/3/32 considers the situation when an organization carries out retail trade in a store with an area of ​​more than 150 square meters. m. This area, which is in its ownership, has a technical passport and a certificate of state registration. The store has an annex, which is owned by another organization, which has a common wall and the same address, but a separate entrance. The retail area of ​​the extension is 41 sq. m. m, which is confirmed by a separate technical passport for it. If an organization enters into a lease agreement for this extension for retail trade, the area of ​​the trading floors, as structurally separate, must be calculated separately.

When determining whether it is necessary to sum up the areas of retail space located in a building, courts take into account a set of criteria that allow them to give a more accurate answer. Let us give two examples of such solutions.

The Supreme Arbitration Court of the Russian Federation, in Determination No. VAS-7430/09 dated November 2, 2009, analyzed the situation when the taxpayer, applying the general taxation regime, proceeded from the terms of the agreement, according to which he was leased one retail space with a total area of ​​203.9 square meters in a shopping center. m. But the judges came to a different conclusion (you need to pay UTII), based on the following:

• the taxpayer carried out retail trade through three trading floors, the area of ​​which individually did not exceed 150 square meters. m.;
• the halls are separated from each other, have a separate entrance, and a cash register is installed in each of them.

FAS ZSO in Resolution dated January 15, 2009 N F04-8161/2008(18804-A81-27)<4>considered that each department in the sales area is an independent object of trade organization. A situation was considered when, on the second floor of a shopping center, the taxpayer carried out trade in three departments: “Clothing and footwear,” “Household chemicals,” and “Household appliances.” The judges proceeded from the fact that each department had cash registers, salespeople and service personnel, separate accounting records were maintained, and goods of different assortments, types and groups were sold. The court noted that the Tax Code does not contain a legal norm that allows combining the areas of trading floors of trade organizations on the basis of their location in the same trading floor and belonging to the same entity carrying out entrepreneurial activities.

<4>By the decision of the Supreme Arbitration Court of the Russian Federation dated June 26, 2009 N VAS-5682/09, the transfer of this Resolution to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision was refused.

From arbitration practice it has been established that the taxpayer needs to pay attention to the following signs that trading floors located in the same building belong to different trade organizations:

• the presence of independent entrances to retail premises;
• the presence of partitions or other boundaries between trading floors;
• availability of cash registers in each sales area;
• presence of sellers and service personnel in each sales area;
• an excellent assortment of product groups sold in different sales areas;
• maintaining separate records for different trading floors;
• the presence of auxiliary premises not intended for customer service.

Trade is carried out on the trading floor, both taxable and not subject to UTII.

Often, trade is carried out on the territory of the trading floor, subject to UTII and under a different taxation regime. In the absence of delimitation of the territory of the trading floor, the question arises: how to determine its area for the purposes of applying Ch. 26.3 Tax Code of the Russian Federation? The Tax Code does not address this situation, and for a long time there were disputes between taxpayers and tax inspectorates regarding the possibility of reducing the area of ​​the trading floor when determining imputed income in accordance with any criterion, for example, based on proceeds from trade, taxable and not taxable . Now the regulatory authorities and the highest court have formed a unanimous opinion on this issue, although not in favor of the taxpayer.

Financiers in Letter dated 04/22/2009 N 03-11-06/3/101 noted that the procedure for distributing the area of ​​a trading floor (or part thereof) when two types of business activities are carried out in it simultaneously, for one of which UTII is paid and as an individual The indicator uses the area of ​​the sales floor (in square meters), which is not defined by the Tax Code. At the same time, for the purposes of calculating UTII and other taxes, different indicators are used that form the tax base. This means that when carrying out retail trade in self-made products, taxed under the simplified tax system, and retail trade in related goods, subject to UTII, in one sales area, the total area of ​​the sales area should be taken into account when calculating the amount of UTII.

The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 9757/09 of October 20, 2009, made a similar conclusion. He pointed out: the fact that in the area of ​​one trading floor the taxpayer carries out two types of activities, taxed under different taxation regimes, is not a basis for changing the values ​​of the physical indicator or the basic profitability of UTII. Since retail sales of goods are carried out on the territory of the entire trading floor, and there is no boundary dividing the trading floor for the needs of retail and wholesale trade, when calculating the amount of UTII it is necessary to take into account the entire area of ​​the trading floor on which retail trade is carried out. At the same time, the highest court overturned the decision of the cassation court, which proceeded from the fact that in order to calculate UTII, the area of ​​the sales floor must be determined in proportion to the revenue received from retail trade.

The position of the Presidium of the Supreme Arbitration Court of the Russian Federation is guided by the courts, for example the FAS North Caucasus Region, which in its Resolution dated 04/26/2010 in case No. A53-14857/2009 in a similar situation came to the same conclusion.

V.V. Nikitin

Journal expert

"UTII: accounting

and taxation"

Apparently, no one is going to “liquidate imputations as a class” in the near future. This means that questions regarding are still relevant.
Many of the imputators are engaged in retail trade. And the single tax is calculated based on such physical indicators as retail space or area of ​​retail space (Clause 3 of Article 346.29 of the Tax Code of the Russian Federation). But it is not always easy for an accountant to determine what status a retail facility has and, accordingly, what physical indicator should be used for calculation. Let's try to be clear.

For reference
If trade is carried out through a stationary retail chain facility with a sales area of ​​no more than 150 square meters. m, then UTII is calculated based on the physical indicator " sales area". If there is no trading floor, then you need to use either the indicator " trading place", if its area does not exceed 5 sq. m, or " retail space area", if its area exceeds 5 sq. m.

Is the purpose of the premises for “imputed” trade important?

First, you need to figure out where you can organize the sale of goods at retail in order to safely apply UTII.
Retail trade is transferred to imputation if it is conducted through stationary retail chain facilities(Subparagraphs 6, 7, paragraph 2, Article 346.26 of the Tax Code of the Russian Federation). These, in turn, include buildings (structures, premises, etc.), intended or used for trading activities(Article 346.27 of the Tax Code of the Russian Federation). The purpose of the premises is indicated in the title and/or inventory documents. These include a purchase and sale or lease agreement, a technical passport, plans, diagrams, and explications.
It would seem that the words " used for trading activities" allow the use of imputation when trading in any objects, even those that are not commercial in their intended purpose. For example, in a premises located in a warehouse or in an industrial zone. And the Ministry of Finance in one of the Letters indicated that the purpose of the premises must be determined not only by documents , but also in fact: how it is actually used (Letter of the Ministry of Finance of Russia dated April 30, 2009 N 03-11-06/3/113).However, in their later explanation, the financiers made it clear that the sale of goods in the office does not translate into UTII (Letter of the Ministry of Finance of Russia dated January 23, 2012 N 03-11-06/3/2).
There are also two Resolutions of the Supreme Arbitration Court of the Russian Federation, in which the court considered the use of imputation unlawful due to the fact that the goods were sold in premises not intended for this purpose: in the first case - in an administrative office building, in the second - in a production workshop (Resolutions of the Presidium of the Supreme Arbitration Court RF dated 01.11.2011 N 3312/11, dated 15.02.2011 N 12364/10).

Conclusion
Tax authorities do not use such an argument as “inconsistency with the purpose of the premises” in courts. And if they refer to him, then, as a rule, he is not the first on the list of complaints. But it is absolutely safe to use imputation only when selling goods in designated places.

How to determine the area of ​​a sales area

In most letters, regulatory authorities, quoting the Tax Code, say that the area of ​​the sales floor is determined according to inventory and title documents(Letters of the Ministry of Finance of Russia dated November 15, 2011 N 03-11-11/284, dated September 26, 2011 N 03-11-11/243). A similar situation, by the way, is with the area of ​​a retail space (Letter of the Ministry of Finance of Russia dated December 15, 2009 N 03-11-06/3/289).
Often, disputes between tax authorities and entrepreneurs arise due to the fact that the documents indicate one area of ​​the hall, but another, usually smaller, one is used for retail trade. According to the courts, the “imputed” tax should be calculated based on the area actually used in the “imputed” activity, and not stated in the documents (Resolution of the Federal Antimonopoly Service ZSO dated May 26, 2010 in case No. A75-512/2009; FAS UO dated April 19, 2010 N Ф09-2486/10-С3). But you also need to be able to prove this. In the absence of partitions, testimony, photographs or other evidence confirming that only part of the area was used for trade, the courts side with the tax authorities (Resolutions of the Federal Antimonopoly Service dated October 14, 2010 in case No. A72-16399/2009; Federal Antimonopoly Service of the Russian Federation dated July 15, 2011 N Ф03-2543/2011).

Advice
If you rent premises, but only use part of it for retail, make sure that the lease agreement clearly states everything regarding the area you occupy.

If you rent out some part of the sales area (sublease), you do not need to take its area into account when calculating the “imputed” tax, including if no changes have been made to the inventory documents (Resolution of the Federal Antimonopoly Service of the Far East of Russia dated January 13, 2011 N F03-9441 /2010) (which is basically impossible in a situation with sublease).
Squares premises for receiving and storing goods, administrative and utility premises and so on. (let's call them auxiliary) are not taken into account when determining the area of ​​the sales floor (Article 346.27 of the Tax Code of the Russian Federation). There will be fewer claims from inspectors if such premises are physically separated from the trading floor itself (Letter of the Ministry of Finance of Russia dated March 26, 2009 N 03-11-09/115). Once, the court supported the imputation, relying on the lease agreement, according to which the tenant installed easily removable partitions to separate the sales area from the warehouse premises (Resolution of the Federal Antimonopoly Service ZSO dated October 18, 2010 in case No. A45-7149/2010).

We warn the manager
If the purpose of the area used in trading activities has changed or the area of ​​the trading floor has changed, on the basis of which the single tax is calculated, in order to avoid disputes with inspectors, it is better to reflect this in inventory documents.

Showroom can also be a trading floor if goods are sold there. This is a mandatory condition (especially in light of the decisions of the Supreme Arbitration Court of the Russian Federation on the possibility of conducting trade only in places designated for this purpose). If different premises are allocated for the display of goods, their payment and release, then the tax is calculated based on the sum of the areas of all these premises (Letter of the Ministry of Finance of Russia dated September 17, 2010 N 03-11-11/246). And, at least once, the court agreed with this approach (Resolution of the FAS VSO dated July 26, 2010 in case No. A33-14088/2009).
It also happens that an entrepreneur (organization) immediately takes several rooms in one building and sells goods at retail in all of them. For example, an organization rents several separate retail facilities on different floors in a shopping center. Then you can easily calculate UTII for each premises separately (Letters of the Ministry of Finance of Russia dated 01.02.2012 N 03-11-06/3/5, dated 03.11.2011 N 03-11-11/274; Federal Tax Service of Russia dated 02.07.2010 N ShS-37-3/5778@).
But one room can be used for trade, simply divided into several departments, for example, by the type of goods sold. Sometimes they do this because different K2 coefficients are established for different groups of goods in the regions (Clause 7 of Article 346.29 of the Tax Code of the Russian Federation). And sometimes this becomes the only chance for the imputed person not to “fly off” the UTII. After all, there is a limit on the sales area of ​​150 square meters. m. How to calculate the “imputed” tax in this case?
The regulatory authorities reason as follows: if the premises are located in the same building and according to the documents they belong to the same store, then the areas need to be summed up (Letter of the Ministry of Finance of Russia dated 02/01/2012 N 03-11-06/3/5). In this case, whether the premises belong to the same object or to different ones is established, naturally, according to the inventory documents for the premises (Letter of the Ministry of Finance of Russia dated November 3, 2011 N 03-11-11/274).
For courts, the information contained in them is not the absolute truth. They pay attention to the isolation of premises (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 06/08/2011 N KA-A41/5949-11), to the presence in each store of its own cash register, its own auxiliary premises, its own staff of employees, to separate accounting of income, the range of goods sold, target the purpose of each part of the premises (Resolutions of the Federal Antimonopoly Service dated September 26, 2011 in case No. A55-426/2011; FAS North Caucasus Region dated June 1, 2011 in case No. A53-16868/2010).
In general, whatever your motives for dividing the total area into several parts, it is better to physically separate the rooms from each other, for example with partitions.

Note
When conducting “imputed” trade and other types of activities in one premises for which the general taxation regime or the simplified tax system is applied, the “imputed” tax must be calculated from the entire area of ​​​​such premises (Letters of the Ministry of Finance of Russia dated March 29, 2011 N 03-11-11/74 , dated 06/07/2010 N 03-11-11/158; Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02.11.2010 N 8617/10, dated 10.20.2009 N 9757/09).

How to determine the area of ​​a retail space

The Tax Code does not say what the area of ​​a retail space is and how it is determined. According to the Ministry of Finance, when calculating it, it is necessary to take into account not only the area where the goods are directly sold, but also the area of ​​auxiliary premises(Letters of the Ministry of Finance of Russia dated December 26, 2011 N 03-11-11/320, dated December 22, 2009 N 03-11-09/410). That is, if you rent a container, part of which you use for selling goods, and the other part as a warehouse, then the tax must be calculated on the entire area of ​​the container (Letter of the Ministry of Finance of Russia dated December 22, 2009 N 03-11-09/410).
Last year, this issue was considered by the Supreme Arbitration Court of the Russian Federation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 N 417/11). Regarding the area of ​​the retail space, the court said that it is determined taking into account all the premises that are used for receiving and storing goods. And since then, there is no more discord in the courts (Resolutions of the Federal Antimonopoly Service of the North Caucasus Region dated August 31, 2011 in case No. A53-22636/2010; FAS Eastern Military District of September 28, 2011 in the case No. A29-1419/2011).
But when renting a plot of land on which goods are sold through a small kiosk with an area of ​​more than 5 square meters. m, according to the explanations of the Federal Tax Service, you need to calculate UTII only from the kiosk area (Letter of the Federal Tax Service of Russia dated June 25, 2009 N ShS-22-3/507@).

Conclusion
It turns out that in some situations it is more profitable for entrepreneurs to insist that they conduct business in a premises with a trading floor. After all, then they will be able to pay tax on a smaller area.

Trading floor or retail space?

This is perhaps the most frequent and most difficult question, as evidenced by the abundance of judicial practice.
When can we talk about the presence of a sales area? When a certain place in the room is allocated for buyers, where they can, moving from one shelf with goods to another, become more closely acquainted with the product. Naturally, a retail space cannot have a hall. Usually it is a counter or showcase from which sales are carried out, and buyers can only stand near it and look at the goods displayed.
According to the Federal Tax Service, if the title and inventory documents for the premises do not indicate anywhere that this is a “shop” or a “pavilion”, or if some part of the premises is not clearly defined as a “trading floor”, then such a premises is considered an object of a stationary retail chain without a trading floor (Letters of the Federal Tax Service of Russia dated 05/06/2010 N ШС-37-3/1247@, dated 07/27/2009 N 3-2-12/83).
Some courts even come to the conclusion that the list of objects that may have a sales area is exhaustive, that is, it must be either a store or a pavilion (Resolution of the Federal Antimonopoly Service of the Moscow Region dated August 14, 2009 N KA-A41/6419-09). So, for example, in a former warehouse the presence of a sales area still needs to be proven. And in a container-type pavilion it is a priori, because it is a pavilion (Letter of the Ministry of Finance of Russia dated December 3, 2010 N 03-11-11/310).

For reference
Shop- a specially equipped building (part of it), intended for the sale of goods and provision of services to customers and provided with retail, utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale.
Pavilion- a building that has a sales area and is designed for one or more workplaces (Article 346.27 of the Tax Code of the Russian Federation).

In general, if your retail area does not exceed 5 square meters. m, there is no point in arguing about which physical indicator should be used when calculating tax. After all, the basic profitability when selling goods on the sales floor will be a maximum of 9,000 rubles. (1800 rubles x 5 sq. m), and exactly the same amount is the basic profitability of a retail space (Clause 3 of Article 346.29 of the Tax Code of the Russian Federation). And the hall is less than 5 square meters. m (when taxable income would be less) is difficult to imagine. The K2 coefficients adopted by regional authorities (Clause 4, 7, Article 346.29 of the Tax Code of the Russian Federation) can make their own adjustments, but even taking them into account, the difference in the final tax amounts will most likely be small. If we are talking about an area of ​​more than 5 square meters. m, then the calculation must be carried out based on the area of ​​the retail space or the area of ​​the trading floor, the profitability for which is set to the same - 1800 rubles. per sq. m.

Conclusion
If the retail space is large, then it is more profitable to equip it in such a way that you have a sales area. After all, as we have already noted, when determining the area of ​​a sales floor, the area of ​​auxiliary premises is not taken into account. And for retail places - it is taken into account.

If there are auxiliary premises, the court can recognize the trade facility as a store (Resolution of the Federal Antimonopoly Service of the North-West District of January 15, 2010 in case No. A56-36135/2009), which means that there will be a trading floor in this facility. But these should be adjacent premises, and not a separate hangar or room in a neighboring building. A similar case was recently examined by the Supreme Arbitration Court of the Russian Federation. The court indicated that trade was carried out through an object with a trading floor, because:
- the sublease agreement stated which part of the premises is used as a warehouse, and which part of the premises is used for selling goods;
- in accordance with the technical passport and explication, the room consisted of two parts;
- each part of the area was used for its intended purpose.
Consequently, the tax should have been calculated based on the area of ​​the trading floor, and not on the area of ​​the retail space (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 N 417/11).
And court decisions made after the release of this Resolution indicate that it has already been adopted by the courts (Resolutions of the Federal Antimonopoly Service of the Eastern Military District dated December 26, 2011 in case No. A79-2716/2010; FAS ZSO dated November 22, 2011 in case No. A45-3709 /2011).

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