home Investment IP on the patent catering food delivery. Registration of catering on the patent. Retail restrictions

IP on the patent catering food delivery. Registration of catering on the patent. Retail restrictions

47. Services Catering provided through public catering facilities with a visitor service area of not more than 50 square meters for each catering facility:

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47.1.	Catering services provided through public catering establishments with an area of a visitor service hall of no more than 50 square meters for each public catering facility (except for canteen catering services):
47.1.1.	area up to 5 sq. m inclusive
47.1.2.	the number of areas from 5 to 10 square meters. m inclusive
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47.2.	Catering services provided through public catering facilities with an area of a visitor service hall of not more than 50 square meters for each catering facility (canteen catering services):
47.2.1.	area up to 10 sq. m inclusive
47.2.2.	number of areas from 10 to 15 sq. m inclusive
47.2.3.	the number of areas from 15 to 20 square meters. m inclusive
47.2.4.	number of areas from 20 to 25 sq. m inclusive
47.2.5.	the number of areas from 25 to 30 square meters. m inclusive
47.2.6.	number of areas from 30 to 35 sq. m inclusive
47.2.7.	the number of areas from 35 to 40 square meters. m inclusive
47.2.8.	number of areas from 40 to 45 sq. m inclusive
47.2.9.	number of areas from 45 to 50 sq. m inclusive
47.2.10.	number of areas from 50 to 55 sq. m inclusive
47.2.11.	number of areas from 55 to 60 sq. m inclusive
47.2.12.	number of areas from 60 to 65 sq. m inclusive
47.2.13.	number of areas from 65 to 70 sq. m inclusive
47.2.14.	number of areas from 70 to 75 sq. m inclusive
47.2.15.	number of areas from 75 to 80 sq. m inclusive
47.2.16.	number of areas from 80 to 85 sq. m inclusive
47.2.17.	number of areas from 85 to 90 sq. m inclusive
47.2.18.	number of areas from 90 to 95 sq. m inclusive
47.2.19.	number of areas from 95 to 100 sq. m inclusive
47.2.20.	number of areas from 100 to 105 sq. m inclusive
47.2.21.	number of areas from 105 to 110 sq. m inclusive
47.2.22.	number of areas from 110 to 115 sq. m inclusive
47.2.23.	number of areas from 115 to 120 sq. m inclusive
47.2.24.	number of areas from 120 to 125 sq. m inclusive
47.2.25.	number of areas from 125 to 130 sq. m inclusive
47.2.26.	number of areas from 130 to 135 sq. m inclusive
47.2.27.	number of areas from 135 to 140 sq. m inclusive
47.2.28.	number of areas from 140 to 145 sq. m inclusive
47.2.29.	number of areas from 145 to 150 sq. m inclusive
47.2.30.	number of areas from 150 to 155 sq. m inclusive
47.2.31.	number of areas from 155 to 160 sq. m inclusive
47.2.32.	number of areas from 160 to 165 sq. m inclusive
47.2.33.	number of areas from 165 to 170 sq. m inclusive
47.2.34.	number of areas from 170 to 175 sq. m inclusive
47.2.35.	number of areas from 175 to 180 sq. m inclusive
47.2.36.	number of areas from 180 to 185 sq. m inclusive
47.2.37.	number of areas from 185 to 190 sq. m inclusive
47.2.38.	number of areas from 190 to 195 sq. m inclusive
47.2.39.	number of areas from 195 to 200 sq. m inclusive
47.2.40.	number of areas from 200 to 205 sq. m inclusive
47.2.41.	number of areas from 205 to 210 sq. m inclusive
47.2.42.	number of areas from 210 to 215 sq. m inclusive
47.2.43.	number of areas from 215 to 220 sq. m inclusive
47.2.44.	number of areas from 220 to 225 sq. m inclusive
47.2.45.	number of areas from 225 to 230 sq. m inclusive
47.2.46.	number of areas from 230 to 235 sq. m inclusive
47.2.47.	number of areas from 235 to 240 sq. m inclusive
47.2.48.	number of areas from 240 to 245 sq. m inclusive
47.2.49.	number of areas from 245 to 250 sq. m inclusive
47.2.50.	number of areas from 250 to 255 sq. m inclusive
47.2.51.	number of areas from 255 to 260 sq. m inclusive
47.2.52.	number of areas from 260 to 265 sq. m inclusive
47.2.53.	number of areas from 265 to 270 sq. m inclusive
47.2.54.	number of areas from 270 to 275 sq. m inclusive
47.2.55.	number of areas from 275 to 280 sq. m inclusive
47.2.56.	number of areas from 280 to 285 sq. m inclusive
47.2.57.	number of areas from 285 to 290 sq. m inclusive
47.2.58.	number of areas from 290 to 295 sq. m inclusive
47.2.59.	number of areas from 295 to 300 sq. m inclusive
47.2.60.	number of areas from 300 to 305 sq. m inclusive
47.2.61.	number of areas from 305 to 310 sq. m inclusive
47.2.62.	number of areas from 310 to 315 sq. m inclusive
47.2.63.	number of areas from 315 to 320 sq. m inclusive
47.2.64.	number of areas from 320 to 325 sq. m inclusive
47.2.65.	number of areas from 325 to 330 sq. m inclusive
47.2.66.	number of areas from 330 to 335 sq. m inclusive
47.2.67.	number of areas from 335 to 340 sq. m inclusive
47.2.68.	number of areas from 340 to 345 sq. m inclusive
47.2.69.	number of areas from 345 to 350 sq. m inclusive
47.2.70.	number of areas from 350 to 355 sq. m inclusive
47.2.71.	number of areas from 355 to 360 sq. m inclusive
47.2.72.	number of areas from 360 to 365 sq. m inclusive
47.2.73.	number of areas from 365 to 370 sq. m inclusive
47.2.74.	number of areas from 370 to 375 sq. m inclusive
47.2.75.	number of areas from 375 to 380 sq. m inclusive
47.2.76.	number of areas from 380 to 385 sq. m inclusive
47.2.77.	number of areas from 385 to 390 sq. m inclusive
47.2.78.	number of areas from 390 to 395 sq. m inclusive
47.2.79.	number of areas from 395 to 400 sq. m inclusive
47.2.80.	number of areas from 400 to 405 sq. m inclusive
47.2.81.	number of areas from 405 to 410 sq. m inclusive
47.2.82.	number of areas from 410 to 415 sq. m inclusive
47.2.83.	number of areas from 415 to 420 sq. m inclusive
47.2.84.	number of areas from 420 to 425 sq. m inclusive
47.2.85.	number of areas from 425 to 430 sq. m inclusive
47.2.86.	number of areas from 430 to 435 sq. m inclusive
47.2.87.	number of areas from 435 to 440 sq. m inclusive
47.2.88.	number of areas from 440 to 445 sq. m inclusive
47.2.89.	number of areas from 445 to 450 sq. m inclusive
47.2.90.	number of areas from 450 to 455 sq. m inclusive
47.2.91.	number of areas from 455 to 460 sq. m inclusive
47.2.92.	number of areas from 460 to 465 sq. m inclusive
47.2.93.	number of areas from 465 to 470 sq. m inclusive
47.2.94.	number of areas from 470 to 475 sq. m inclusive
47.2.95.	number of areas from 475 to 480 sq. m inclusive
47.2.96.	number of areas from 480 to 485 sq. m inclusive
47.2.97.	number of areas from 485 to 490 sq. m inclusive
47.2.98.	number of areas from 490 to 495 sq. m inclusive
47.2.99.	number of areas from 495 to 500 sq. m inclusive

Public catering enterprises have many problems with the calculation of UTII: 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 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, vending machines have been excluded from catering facilities that do not have a customer service hall, legislators have replaced them with culinary shops (sections, departments).

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 a volume fraction ethyl alcohol more than 1.5%, except for 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 room (open area) for the consumption of finished 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, provision of 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 way passenger transport(including in a compartment, a cabin);

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

The provision of these services may involve significant amount employees, at the same time it is the most difficult to control income for the tax authorities. In this case, the changes made set value basic profitability (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 many more types of 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 trade. 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 utility, administrative and amenity premises, as well as premises for receiving, storing goods and preparing them for sale, which do not serve visitors.

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 square meters. 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 no grounds for switching to a common taxation system.

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 you can reflect its installation 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 home-made products, but also purchased food and drinks.

Retail is defined in Art. 346.27 of the Tax Code of the Russian Federation. It also says here that retail does 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, the state standard clearly states 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, stainless steel cutlery, and high-quality glassware. This food point does not have all this, therefore it is not a cafe, but a canteen (Resolution of the FAS 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 customer 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 schools 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 the new version of Chapter 26.3 of the Tax Code of the Russian Federation (Subclause 8, Clause 2, 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, to the payment the unified tax on imputed income does not transfer the provision of public catering services if this is an integral part of the functioning of these institutions and these services are provided directly by the institutions themselves.

In view of the foregoing, the entrepreneurial activity of the organization related to 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 beverages 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 providing 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 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, explained that the parking area should be determined based on the technical documentation for this facility.

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.

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 SPE in your state, you can in the 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.

Question from reader Clerk.Ru Marina (Rostov-on-Don)

I am opening an individual entrepreneur retail trade in confectionery and I want to set up several tables in a rented room so that buyers can eat the same products. I will not cook anything, only juices. In addition to retail trade, OKVED also added cafe activity (UTII). Will there be any complications in the tax?

You should carefully approach the choice of tax regime, because. recently there have been major changes in the taxation system (patent system). Federal Law No. 94-FZ of June 25, 2012 "On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" was adopted. The changes that have occurred because of it are very noticeable and have affected mainly individual entrepreneurs.

Retail trade and catering services have appeared in the list of activities transferred to the patent. As with UTII, retail trade is transferred to a patent. At the same time, there is a restriction on the area of the trading floor for each individual object, but it is 3 times less than for UTII, and is equal to 50 square meters. m.

You can choose which of the modes is more profitable for you.

For individual entrepreneurs engaged in the provision of catering services, the area of the visitor service hall should also not exceed 50 square meters. m. I will immediately note an important detail for you: in the absence of a visitor service hall at the catering facility, a patent will not be issued. These include, among other things, bars and cafes, provided that they do not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods.

The new patent system also allows an entrepreneur to employ up to 15 employees. When paying UTII, the number of employees there can reach up to 100 people (clause 1, clause 2.2, article 326 of the Tax Code of the Russian Federation). This limitation on the number applies to all types of activities that the entrepreneur conducts at the same time, and is determined by the total number.

The size of the annual income potentially to be received by an individual entrepreneur by types of entrepreneurial activity, in respect of which the patent system of taxation is applied, is established by the laws of the constituent entities of the Russian Federation. They should be in the range from 100,000 to 1,000,000 rubles. taking into account the deflator coefficient.

You must obtain a patent in the subject of the Russian Federation where you intend to carry out the relevant type of activity. You can contact tax authority at the place of residence. The patent received in it is valid only on the territory of the corresponding subject of the Russian Federation. An application for a patent shall be sent in any possible form no later than 10 days before the start of the application of the patent system.

A patent is issued for a period of 1 to 12 months, but it is specified that this is within a calendar year.

If an individual entrepreneur combines the patent system and the usual USNO, provided for in Chapter 26.2 of the Tax Code of the Russian Federation, the entire amount of income from sales received under both regimes must be compared with this ceiling. In case of excess, taxes under the general taxation regime should be recalculated from the beginning of the tax period for both special regimes.

The same must be done if during the tax period the maximum number of employees provided for by paragraph 5 of Art. 346.43 of the Tax Code of the Russian Federation, and, in addition, in case of non-payment of tax from patent activities on time.

To record income, the taxpayer must maintain an income ledger. The Ministry of Finance was instructed to develop a form and the procedure for filling it out. For the current patent system, the same accounting book is used that is used by taxpayers who are on the simplified taxation system (clause 12 of article 346.25.1 of the Tax Code of the Russian Federation). However, a separate income ledger will be maintained for each activity for which a patent has been issued. Income is actually recognized according to the same rules as those established for the simplified taxation system.

You need to know that entrepreneurs who have switched to the patent system, as well as those who use UTII, will have the right not to use cash register equipment for the corresponding type of activity, subject to the issuance of a document confirming acceptance at the request of the buyer Money(Art. 5 FZ N 94-FZ).

Getting a personal consultation with Irina Salnikova online is very simple - you need to fill out. Several of the most interesting questions will be selected daily, the answers to which you can read on our website.

Composition of catering services

An organization that provides catering services municipality where UTII is allowed for such activities may apply this special tax regime.

UTII covers a set of public catering services:

for the manufacture of culinary products and (or) confectionery;

creating conditions for the consumption and (or) sale of finished culinary products, confectionery and (or) purchased goods;

spending leisure time.

This is stated in paragraph 19 of Article 346.27 of the Tax Code of the Russian Federation.

Catering services do not include the sale of products manufactured in vending machines(stationary and mobile). For the purposes of taxation of UTII, such activities are recognized as retail trade (Article 346.27 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated October 27, 2008 No. 03-11-04 / 3 / 483).

Situation: what relates to leisure services when calculating UTII from activities for the provision of catering services?

Leisure services in the calculation of UTII include entertainment for visitors to catering.

The Tax Code of the Russian Federation does not contain a definition of leisure services. To answer this question, one should turn to other branches of legislation (clause 1, article 11 of the Tax Code of the Russian Federation).

According to the classifier OK 002-93 (code 122500), leisure services include:

music service, holding concerts, variety programs and video programs;

provision of newspapers, magazines, board games, slot machines, billiards.

The organization of such entertainment events for visitors to public catering for the purpose of applying UTII is recognized as an activity in the field of public catering, subject to the simultaneous fulfillment of two conditions:

leisure services are provided in the same premises as the catering services themselves (letters of the Ministry of Finance of Russia dated February 3, 2009 No. 03-11-06 / 3/19, dated February 9, 2006 No. 03-11-04 / 3 /75). Moreover, if, for example, billiards is separated from the bar by a light partition and visitors can go there with drinks and food, it is considered that leisure services (billiards) are provided in the catering premises (letter of the Ministry of Finance of Russia dated August 31, 2006 No. 03-11-04 /3/399);

recreational activities are not separate view activities of the organization subject to taxation under other tax regimes.

Situation: does the sale of alcoholic beverages and cigarettes in a cafe refer to catering services when calculating UTII?

Yes, it does, except for alcoholic beverages and beer own production.

UTII applies to catering services, including those provided through a cafe with a customer service hall with an area of \u200b\u200bno more than 150 square meters. m (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). At the same time, catering services are understood, in particular, as activities for the sale of certain purchased goods (paragraph 19 of article 346.27 of the Tax Code of the Russian Federation). These include alcoholic beverages and cigarettes purchased for resale. The sale of purchased food and beverages, including alcoholic beverages, both in packaging and packaging, and without them, at public catering outlets does not apply to retail trade. Thus, their sale, if it occurs through catering facilities, is included in catering services. So, in relation to these services, the organization can apply UTII.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated November 7, 2014 No. 03-11-11 / 56159.

The sale of alcoholic beverages and beer of own production is not transferred to UTII. From these operations, the organization must pay taxes under the general taxation system. This procedure is provided for by subparagraph 8 of paragraph 2 of Article 346.26 and paragraph 19 of Article 346.27 of the Tax Code.

UTII payers

UTII can be paid from catering services:

organizations (entrepreneurs) that carry out this activity through visitor service halls, the area of which does not exceed 150 square meters. m for each item. For example, cafes, restaurants, canteens, snack bars, bars;

organizations (entrepreneurs) that organize meals for visitors in facilities that do not have visitor service halls. These include kiosks, tents, as well as culinary shops (departments) at restaurants, bars, cafes, canteens, eateries, etc.

Advice: if it is beneficial for an organization to apply UTII, and the area of the visitor service hall exceeds 150 sq. m, try to reduce this figure. For example, part of the premises can be rented out.

The areas leased out will not have to be taken into account when calculating the limit value, which limits the use of UTII, and the organization will be able to switch to this tax regime (letter of the Ministry of Finance of Russia dated November 25, 2004 No. 03-06-05-04 / 57). However, rental income will have to pay taxes in accordance with the general or simplified taxation system.

In addition, UTII can be used by educational, medical and social institutions that receive income from the provision of catering services.

An exception to this rule is catering services that simultaneously meet the following criteria:

are a prerequisite for the functioning of such institutions (for example, providing food for patients in hospitals or children attending preschool educational institutions);

find themselves in facilities with a visitor service hall with an area of not more than 150 square meters. m;

are provided directly by the institution itself (cooking food and creating conditions for its consumption is provided by the employees of the institution).

If educational, medical or social institution provides meals to its employees for a fee (for example, doctors, educators or technical staff), then such activities are also not transferred to UTII. Depending on the applicable taxation system, income tax or a single tax with simplification must be paid on the income received.

This procedure follows from the provisions of subparagraphs 8, 9 of paragraph 2, as well as subparagraph 4 of paragraph 2.2 of Article 346.26 of the Tax Code and is confirmed in letters from the Ministry of Finance of Russia dated October 28, 2009 No. 03-11-06 / 3/255, dated October 26, 2009 No. 03-11-06/3/251.

When providing catering services, payers of the unified agricultural tax who sell products of their own production through catering facilities are not entitled to apply UTII (clause 2.1 of article 346.26 of the Tax Code of the Russian Federation).

Conditions for the use of UTII

It is possible to use UTII in the provision of catering services, regardless of what form of settlement with the visitor the organization (entrepreneur) uses. It can be cash, non-cash, using plastic cards, or a mixed form (letters of the Ministry of Finance of Russia dated December 24, 2007 No. 03-11-04 / 3/516 and dated February 22, 2007 No. 03-11-05 / 34 ).

It also does not matter who orders and pays for services - individuals, organizations or entrepreneurs (letter of the Ministry of Finance of Russia dated August 9, 2013 No. 03-11-06 / 3 / 32245). So, it is possible to apply UTII even if the organization provides catering services on the basis of a state or municipal contract (letter of the Ministry of Finance of Russia dated May 21, 2013 No. 03-11-11 / 17969).

Situation: does the activity of an organization that provides catering services in two cafes fall under UTII? The area of halls of service of visitors: in one cafe - 70 sq.m. m, in the other - 200 sq. m.

It does, but only for one object.

The right of an organization to pay UTII when providing catering services through facilities with an area of \u200b\u200bno more than 150 square meters. m does not depend on whether it conducts similar activities through objects whose area exceeds the specified limit (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). Therefore, from the activities of the cafe, in which the area of \u200b\u200bthe customer service hall is 70 square meters. m, pay UTII.

Provision of catering services through facilities with an area of more than 150 sq. m is not subject to transfer to UTII. Consequently, taxes must be paid from the activities of the second cafe according to the general taxation system or according to simplified taxation (clause 7 of article 346.26, clause 4 of article 346.12 of the Tax Code of the Russian Federation). A similar point of view is stated in the letter of the Federal Tax Service of Russia dated March 9, 2005 No. 22-1-12 / 315.

Situation: does the activity of an Internet cafe fall under UTII?

It is eligible if, in addition to accessing the Internet, visitors can use catering services.

Thus, the answer to this question depends on the nature of the services that an Internet cafe provides to visitors.

If visitors receive only access to the Internet, then from such activities the organization must pay taxes under the general taxation system or a single tax with simplification. If, in addition to accessing the Internet, visitors can use catering services, then such activities can be transferred to UTII. Provided that catering services meet the criteria established in subparagraphs 8 or 9 of paragraph 2 of article 346.26 of the Tax Code of the Russian Federation, and in the municipality where the Internet cafe is located, these services are subject to UTII (clause 1 of article 346.26 of the Tax Code of the Russian Federation).

A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated May 7, 2007 No. 03-11-04/3/148.

Situation: do services for the delivery of home-made hot meals on consumer orders (to offices, residential premises, etc.) fall under UTII??

No, they don't.

In terms of their content, such services do not meet the requirements that tax legislation imposes on activities in the field of catering and retail trade.

Organizations providing catering services can apply UTII only under certain conditions. They are given in subparagraphs 8 and 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. So, UTII can be paid by public catering organizations with a service hall area of \u200b\u200bno more than 150 square meters. m or selling food products through facilities that do not have a customer service hall. The latter include kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars, etc. products on site. Offices, residences and other similar places specified in orders for the delivery of hot meals cannot be recognized as catering facilities. Thus, the delivery of hot meals at the location of customers (to offices, to homes) does not comply with the conditions for the use of UTII in the provision of catering services.

It should be noted that for the purposes of UTII, the sale of products of own production is not recognized as retail (paragraph 12 of article 346.27 of the Tax Code of the Russian Federation). Therefore, even if we consider the sale of food at the location of customers as a retail sale of goods, a general or simplified taxation system should be applied to such activities.

Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated May 26, 2014 No. 03-11-06/3/24936, dated May 2, 2012 No. 03-11-06/3/29.

Advice: there are arguments that allow organizations to apply UTII in relation to services for the delivery of hot meals of their own manufacture at the location of customers. They are as follows.

UTII covers the totality of such types of public catering services as:

services for the manufacture of culinary products and (or) confectionery;

services for creating conditions for the consumption and (or) sale of finished culinary products, confectionery and (or) purchased goods;

leisure services.

This is stated in article 346.27 of the Tax Code of the Russian Federation.

An integral part of the activity for the provision of catering services may be the delivery of finished culinary products to customers at their location. If the provision of such services is provided for by contracts concluded by a catering organization, then they are also subject to UTII (subject to other conditions). Some arbitration courts recognize the legitimacy of this approach (see, for example, the decision of the Federal Antimonopoly Service of the West Siberian District of April 14, 2009 No. F04-2196 / 2009 (4457-A67-19)).

Situation: does UTII cover the provision of catering services in restaurants operating on trains or on ships?

No, it doesn't.

Activities for the provision of catering services can be transferred to UTII:

through facilities with visitor service halls (no more than 150 sq. m);

through facilities that do not have visitor service halls.

This is stated in subparagraphs 8 and 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation.

Restaurant cars and restaurants on motor ships have service halls. However, for the purpose of applying UTII, a building (part of it) or a building that has a specially equipped room for eating and organizing leisure activities is recognized as a catering facility with a customer service hall (Article 346.27 of the Tax Code of the Russian Federation). According to All-Russian classifier fixed assets vehicles (trains, ships) do not apply to buildings or structures. Therefore, activities for the provision of catering services in restaurants that operate on trains or on ships are not transferred to the payment of UTII. Similar explanations are contained in the letters of the Ministry of Finance of Russia dated June 15, 2007 No. 03-11-04/3/218 and dated December 5, 2006 No. 03-11-04/3/524. Some courts share the point of view of the financial department (see, for example, the decision of the Federal Antimonopoly Service of the North-Western District of January 14, 2010 No. А56-20453 / 2008).

Advice: there are arguments that allow the use of UTII in the provision of catering services in restaurants operating on trains or on ships. They are as follows.

First, according to the All-Russian Classifier of Fixed Assets, vehicles include vehicles designed to move people and goods. The main purpose of dining cars and restaurants on motor ships is to provide catering services, and not to transport people and goods. Such facilities can be considered as mobile catering establishments and classified as buildings (similar to stationary catering facilities), and not as vehicles. This is discussed in the introduction to the OKOF.

Secondly, the main criterion for the belonging of mobile restaurants to catering facilities is the activities that the organization conducts using these facilities. It does not follow from the provisions of articles 346.26 and 346.27 of the Tax Code of the Russian Federation that catering facilities must be located in real estate. That is, the activities of restaurants operating on trains or on ships may fall under UTII. In arbitration practice, there are examples of court decisions confirming the legitimacy of such an approach (see, for example, paragraph 5 information letter Presidium of the Supreme Arbitration Court of the Russian Federation of March 5, 2013 No. 157, determination of the Supreme Arbitration Court of the Russian Federation of May 25, 2009 No. VAS-4430/09, resolution of the FAS of the Ural District of December 15, 2008 No. F09-9263 / 08-C2).

It should be noted that in connection with the release of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157, arbitration practice on this issue should become uniform.

Situation: does it fall under the organization for the production and sale of culinary products (confectionery)? Hall for customer service commercial premises No.

The answer to this question depends on whether the trade Organization conditions for the consumption of manufactured products.

The sale of products of own production does not apply to retail trade (paragraph 12 of article 346.27 of the Tax Code of the Russian Federation). Therefore, in relation to the activities for the sale of culinary products (confectionery) manufactured by a trade organization, the UTII regime provided for by subparagraphs 6 and 7 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation (retail trade) does not apply.

In the situation under consideration, the sale of culinary products (confectionery) of own production can be qualified as an activity for the provision of catering services through facilities that do not have visitor service halls. In relation to such activities, the use of UTII is also allowed. However, this requires that, in addition to selling food products, the organization creates conditions for visitors to consume them on the spot (for example, placing tables for eating next to the trading place, providing visitors with cutlery). This procedure follows from the provisions of subparagraph 9 of paragraph 2 of Article 346.26, paragraphs 22 and 24 of Article 346.27 of the Tax Code of the Russian Federation.

Therefore, if a trade organization creates conditions for the consumption of manufactured culinary products (confectionery), it can apply UTII on the basis of subparagraph 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. If such conditions are not created, taxes must be paid on the production and sale of culinary products (confectionery) in accordance with the general or simplified taxation system.

Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated October 3, 2013 No. 03-11-11 / 41042, dated May 17, 2013 No. 03-11-11 / 161, dated January 23, 2012 No. 03-11-11 / 10, July 1, 2009 No. 03-11-09/233, January 26, 2009 No. 03-11-06/3/10. In arbitration practice, there are examples of court decisions confirming the legitimacy of such an approach (see, for example, the decision of the Federal Antimonopoly Service of the Central District dated March 26, 2013 No. A54-4101 / 2012).

Situation: what taxes should the hotel pay on OSNO on the cost of breakfast, which it included in the cost of living? The activity of the restaurant opened at the hotel was transferred to UTII.

From the cost of catering services, which are included in the price hotel services, you need to pay taxes provided for by the general system of taxation. That is - VAT and income tax.

This follows from the provisions of paragraph 2 of article 153 and paragraph 2 of article 248 of the Tax Code, according to which the revenue (income) forming the tax base is determined based on all receipts related to settlements for goods sold(works, services).

Since the cost of breakfast is included in the price of the room and is paid by the guest according to a single document (invoice, receipts, etc.), there are no grounds to exclude it from the revenue from hotel activities. Accordingly, there are no grounds for recognizing income from the sale of breakfasts received as part of activities transferred to UTII. The amount of UTII that the organization pays from the operation of the restaurant is calculated based on the area of \u200b\u200bthe customer service hall (clause 3 of article 346.29 of the Tax Code of the Russian Federation). This amount does not depend on the number and cost of catering services, so double taxation does not arise in this situation.

Economically justified and documented expenses associated with the provision of breakfasts reduce the revenue from the provision of hotel services (clause 1, article 252 of the Tax Code of the Russian Federation). The input tax from the cost of food products used for preparing breakfasts is deductible (subclause 1, clause 2, article 171 of the Tax Code of the Russian Federation). However, an organization can use both rights only if it keeps separate records of income, expenses and input VAT related to different types activities (clause 7 of article 346.26, clause 9 of article 274, clause 4 of article 170 of the Tax Code of the Russian Federation). In particular, an organization can apply a VAT deduction provided that the input tax on products that are spent on preparing breakfasts and on providing other catering services (within the framework of UTII) is accounted for separately. This follows from paragraph 4 of Article 170 of the Tax Code.

Attention: the lack of separate accounting for income and expenses associated with activities under the general taxation system and UTII can serve as a basis for bringing the organization to tax and administrative liability (Article 120 of the Tax Code of the Russian Federation, Article 15.11 of the Code of Administrative Offenses of the Russian Federation).

Advice: To reduce the tax base for VAT and income tax, exclude the proceeds from the sale of breakfast from the cost of hotel services. To do this, organize separate accounting for income and expenses related to the provision of hotel services (excluding the cost of breakfast) and catering services.

Fix the method of maintaining separate accounting in the accounting policy of the organization for tax purposes (clauses 6 and 7 of article 346.26 of the Tax Code of the Russian Federation). The provision of breakfasts can be attributed to additional services provided by the hotel (subparagraph “h” of paragraph 10 of the Rules approved by the Decree of the Government of the Russian Federation of October 9, 2015 No. 1085). The cost of additional services (providing breakfast to hotel guests) is better reflected in separate primary documents.

The procedure for calculating UTII

The procedure for calculating UTII from catering services depends on whether the catering facility has a customer service hall or not.

Availability of a service hall

If the catering facility has a customer service hall (canteens, cafes and restaurants), the physical indicator for calculating UTII is the area of the service hall (clause 3, article 346.29 of the Tax Code of the Russian Federation). It should not be more than 150 sq. m (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). The indicator of basic profitability for this type of activity is 1000 rubles. per month for 1 sq. m of the area of the hall (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

Information on the area of the premises where catering services are provided, take from the inventory and title documents (Article 346.27 of the Tax Code of the Russian Federation). For example, a technical passport for non-residential premises, a contract for the sale of premises, plans, schemes, explications, a lease (sublease) agreement for premises or part (s) thereof, permission for the right to serve visitors in an open area, etc. (letters from the Ministry of Finance of Russia dated August 29, 2012 No. 03-11-11/259, dated August 8, 2012 No. 03-11-11/231).

Situation: what premises belong to the visitor service hall when calculating UTII for catering services?

The concepts of "catering facility" and "area of the service hall" should be distinguished.

A catering facility means a building (part of it) or a structure that has a specially equipped room (open area) for the provision of catering services. This is a specially equipped place and is a visitor service hall. This is stated in article 346.27 of the Tax Code of the Russian Federation.

Thus, the object of the catering organization is a complex that includes production, administrative, utility, utility and other premises necessary for doing business. While the service hall is only a part of this room, where the direct service of visitors takes place. The area of \u200b\u200bthe service hall is the indicator that is used when calculating UTII. When determining the area of the service hall, do not take into account the kitchen, distribution and heating areas finished products, the place of the cashier, as well as utility rooms (see, for example, letters from the Ministry of Finance of Russia dated March 21, 2008 No. 03-11-04 / 3/143, the Federal Tax Service of Russia for the Moscow Region dated May 2, 2006 No. 22-19- I / 0192, resolutions of the Federal Antimonopoly Service of the Urals District of November 15, 2007 No. F09-8749 / 07-S3, of the Central District of December 19, 2007 No. A36-1291 / 2007, of the Volga District of June 26, 2007 No. A65-17953 /2006-CA1-19).

When calculating UTII, take into account not only your own, but also rented areas. Do not include in the calculation only those that are leased (sublease) or not used (for example, are under repair). This is stated in the letter of the Ministry of Finance of Russia dated November 25, 2004 No. 03-06-05-04 / 57.

If, according to inventory documents, for the provision of catering services, a room is used, parts of which are not structurally separated from each other and are located in one real estate object, then when calculating UTII, the total area of \u200b\u200bthe premises should be taken into account (letter of the Ministry of Finance of Russia dated March 31, 2011 No. 03-11- 06/3/38). For example, the area of leisure facilities (billiard rooms, dance halls, etc.) and open areas that are combined (combined) with the visitor service hall should also be included in the tax calculation. This follows from the letters of the Ministry of Finance of Russia dated August 31, 2006 No. 03-11-04 / 3/399 and the Federal Tax Service of Russia for the Moscow Region dated May 2, 2006 No. 22-19-I / 0192.

If the places of leisure are structurally separated from the visitor service hall, do not take into account their area when calculating UTII (letter of the Ministry of Finance of Russia dated July 8, 2008 No. 03-11-03 / 14).

Situation: when calculating UTII for catering services, is it necessary to take into account the area of \u200b\u200bthe summer cafe located in front of the restaurant? Tables for visitors are located in the open area. Guests are served by the restaurant staff.

Yes need.

Include the area of the summer cafe in the calculation of the total area of the restaurant. If the resulting figure exceeds 150 sq. m, refuse to use UTII.

In the situation under consideration, the cafe, which in summer period located on the territory adjacent to the restaurant should be qualified as an open area - a place specially equipped for public catering located on a land plot (paragraph 25 of article 346.27 of the Tax Code of the Russian Federation). The area of such facilities in public catering organizations is recognized as part of the visitor service hall (paragraph 23 of article 346.27 of the Tax Code of the Russian Federation).

Since the visitors of the summer cafe are served by the restaurant staff, the independent functioning of the open area is impossible. Consequently, the restaurant and the outdoor area of the summer cafe are recognized as a single catering facility. In this case, the total area of the visitor service hall for calculating UTII is determined as the sum of all areas used by the organization. Such clarifications are contained in the letter of the Ministry of Finance of Russia dated March 19, 2013 No. 03-11-06/3/8505.

The area of the territory on which the organization is organized in the summer open cafe, determine on the basis of any title and inventory documents available to the organization. For example, on the basis of a lease agreement for a land plot for a summer cafe or a permit for the right to serve visitors in an open area. This conclusion is confirmed by the provisions of paragraph 24 of Article 346.27 of the Tax Code of the Russian Federation.

If the total area of the visitor service hall (the area of the restaurant hall and summer cafe) exceeds 150 sq. m, the organization must abandon the use of UTII and switch to another tax regime. This follows from the provisions of subparagraph 8 of paragraph 2 of article 346.26 and paragraph 3 of paragraph 3 of article 346.28 of the Tax Code of the Russian Federation.

Catering enterprises with several objects of their activity must calculate the area of the service hall for each of them separately (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation). At the same time, all catering facilities must be separated in the inventory and title documents. Otherwise, they should be considered as a single complex, and when determining the area of the service hall, the total area of all objects should be taken into account. This follows from the letters of the Ministry of Finance of Russia dated January 31, 2006 No. 03-11-04 / 3/51, dated July 26, 2005 No. 03-11-04 / 3/34.

No service hall

If the catering facility does not have a customer service hall (kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars, etc.), the physical indicator for calculating UTII is the number of employees, including an individual entrepreneur (p. 3 article 346.29 of the Tax Code of the Russian Federation). The value of the basic profitability for this type of activity is 4500 rubles. per month from each employee (clause 3 of article 346.29 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated April 8, 2008 No. 03-11-04 / 3/182).