How an entrepreneur from Kuzbass challenged the property tax

An entrepreneur from the city of Prokopievsk (Kemerovo region - Kuzbass) owned non-residential premises in the Pobeda shopping center (but not all) and lived quietly (but this is not certain.

In August 2018, the Federal Tax Service Inspectorate sent a tax notice to the entrepreneur about the payment of personal property tax for 2017 in the amount of 2% of the cadastral value. As it turned out, at the end of 2016, the highest executive body of the subject (the Board of Administration of the Kemerovo Region) included the SEC building in such a List for 2017.

• Applying the simplified tax system, the merchant was sure that he should not pay tax on the property of individuals.
  

Indeed, an individual entrepreneur applying the simplified taxation system, as a general rule (clause 3 of Article 346.11 of the Tax Code of the Russian Federation), does not pay personal property tax on property used in entrepreneurial activities. An exception has been established from this rule: this exemption does not apply to objects of taxation on the property of individuals included in a special list of objects, the owners of which pay tax on the property of individuals from the cadastral value. The maximum (and accepted almost everywhere in the Russian Federation) tax rate for such premises from the List is 2% of the cadastral value.

• Since the List includes the building, and not the premises themselves, while the object of ownership and taxation is the premises, the entrepreneur proceeded from the fact that he is not taxed on his premises.
  

Indeed, the law (Article 378.2 of the Tax Code of the Russian Federation) does not contain a rule that if a building is included in the List, then the property tax on the cadastral value is paid by the owner of each room in this building. And how it pays from the cadastral value of the premises or building (in proportion to the area of ​​​​the premises).

The courts take into account the position of the Supreme Court of the Russian Federation on this issue: the tax base of the premises should be determined based on the cadastral value of the building in which the taxpayer owned non-residential premises, taking into account the share of the area of ​​\u200b\u200bthe premises in the total area of ​​​​the building (Determination of the Supreme Court of the Russian Federation dated 07.25. 6783 in case No. A40-44828/2016).

So, of course, it is logical, but it was still possible to argue. The owner of the premises did just that - he appealed the tax notices and the refusal to recalculate the tax, first to the Federal Tax Service for the region, then went through all the courts, up to the Supreme Court - everywhere he was refused.

Summary:

• Since the building is included in the list, the status of the owner of the premises does not matter: JSC / LLC / IP / individual, therefore, the owner of the premises pays an increased property tax for it (as a rule, 2% of the cadastral value of the building in proportion to the area of ​​\u200b\u200bhis premises in the total building area).

• If the owner had not been registered as an entrepreneur or would have been registered, but did not apply the simplified tax system, he would have to pay property tax at a rate 4 times less - 0.5% of the cadastral value.

• If the building in which the owner's premises are located, or the premises themselves, were not included in the List, then an individual entrepreneur applying the simplified tax system should not pay tax on the property of individuals (it is important to prove that he uses these premises in business - he rents for rent, trades himself, etc.).
  

The original source - the decision of the Arbitration Court of the Kemerovo Region is available at the link

Author

Dmitriy Alexandrovich Malinin

Chairman of the Bar Association "Jurproekt"