The constitutional court freed the entrepreneur from overpayment of insurance premiums

Individual entrepreneurs operating on the common system of taxation (i.e., paying income tax at a rate of 13%), are not required to pay insurance contributions to the Pension Fund based on the gross income from the activity — they are entitled to deduct the expenses and pay the fees in fact based on net profit. Such a ruling adopted by the constitutional court on 30 November (decision published on Friday, December 2).

In practice, this decision affects only entrepreneurs working on DOS (this is usually the most profitable for individual entrepreneurs tax regime) and paying contributions for themselves — that is, in fact self-employed individuals, says the head of the legal Department of the company “MEF-Audit” Alexander Ovesnov.

The decision is relevant only for those entrepreneurs, whose income exceeds 300 thousand rubles, — they now save on contributions to the pension Fund. Maximum savings in 2016 will amount to 135 thousand rubles., depending on the amount of insurance premiums and rules of payment for the current year.

So much could save this year the Kirov businessman Vladimir Tishchenko, whose dispute with the local office of the Pension Fund and was permitted by the Constitutional court. Tishchenko worked as a PI from April 2013 to August 2014 (engaged in “consultation on questions of commercial activity and management” and wholesale trade, the extracts from egrip). During this period, he received income in the amount of slightly less than 16.6 million rubles, but the costs produced almost the same amount, so the profit was only 39 thousand RUB It on the basis of net profit Tishchenko has paid the insurance contribution to the pension Fund in the amount of about 20 thousand rubles (the same fixed payment for all entrepreneurs, earning in the range of 300 thousand rubles). But the management of the RPF assessed that the entrepreneur is almost 118 thousand rubles and asked the local district court of the Kirov region, to recover the arrears.

The pension Fund came from the fact that premiums should be calculated based on the total income of FE — 16.6 million rubles in excess of the income above the PI value of 300 thousand rubles the employer pays to the Pension Fund of a fixed fee plus 1% of the amount of income exceeding 300 thousand, the maximum amount you can pay SP to the Pension Fund amounts to eight minimum sizes of wage (minimum wage) — in 2014, it was 138,6 thousand rubles., in 2016 the maximum amount of the fee is 154,9 thousand RUB FIU demanded Tishchenko highest possible amount.

The dispute in a few instances reached the constitutional court, there is in June 2016 he was sent Kirov regional court. In the end, the constitutional court reasoned that although the tax legislation of Russia and does not use the concept of “profit” in relation to the basis for calculating personal income tax, but in the case of individual entrepreneurs for income tax purposes shall be reduced by the amount of expenses directly related to the recovery of income (similarly to the determination of profit for purposes of corporate income tax). The same logic must apply in this case and the definition of income for purposes of the payment of premiums, the court decided. Otherwise, the situation is not excluded (as in the case of the Tishchenko) when the size of insurance premiums will result in the obligation to pay to the Pension Fund of the amount of times more than net profit of the entrepreneur, “will cause excessive financial burden for individual entrepreneurs who pay the tax to incomes of physical persons”, according to the ruling of the constitutional court.

Earlier, at least a few disputes on this question the courts have indicated that the legislation on insurance premiums does not contain provisions allowing the calculation of insurance contributions for compulsory pension insurance to reduce the resulting individual entrepreneur income in the amount of incurred expenses, says Ovesnov. The decision of the constitutional court is not subject to appeal, entered into force on the day of its official publication, acts directly and requires no confirmation by other bodies and officials. That is, starting with contributions for the year 2016 the authorities of the FIU to determine the base for insurance contributions should take into account the profits earned by an individual entrepreneur (a personal income tax payer, no employees), points out the lawyer. With one caveat: from 1 January 2017, the current law on insurance contributions to extra-budgetary funds shall be invalidated on the issues of calculation and payment of contributions will be governed by new Chapter 34 of the Tax code. Therefore, if lawmakers fail to make the appropriate changes, the clarification of the constitutional court contributors will be able to use only in 2016, says Ovesnov.