Accepting mobile payments. Loopholes for the clever. Entrepreneurial activity in the field of mobile telecommunications

Having experienced many of the types of earnings in the field, I can say the following: the path to success in this field is difficult and thorny, just like any other business.

Therefore, if you have firmly decided that you want to devote several years of your life to the activity described below, I recommend that you be patient and prepare for tireless and painstaking work. I warn you right away that the work will involve not only your favorite communication with portable communication devices and such achievements of the 20th century as the Internet, but also contacts with government agencies, controlling the activities of individual entrepreneurs and organizations. You will also have to master at least the basics of conducting accounting, constantly familiarize yourself with changes in laws and study new government regulations that may affect your activities.

If all of the above made you shudder, do not read the article further. I assure you, own business is for the brave and enterprising, so save time that you can spend searching for yourself in some other areas. Perhaps taking full responsibility for the activities of an entire enterprise is too burdensome for you, and you will find work in the field cellular communication as an employee. In this article we will focus on those points that are important primarily for an independent entrepreneur. We will try to bring legal basis, which you should rely on when running a specific business in the field of mobile communications.

Accepting payments for services of mobile operators

So, one of the noteworthy types of business is accepting payments for the services of cellular operators. It is the acceptance of payments, without making connections to the operator’s network and providing other services. Because, in order to provide services for connecting to networks of cellular operators, you must obtain permission from them. It’s not only difficult for a beginner to do this, but almost impossible.

The fact is that the activity of accepting payments does not require permission from the company itself and is not subject to licensing or mandatory certification. Let me make a reservation that all these advantages apply only if, when accepting payments, you act as an agent of any company that organizes the system. She has everything Required documents must definitely be present.

Profit and expenses

Millions of people across the country replenish their balance every day. cell phone to stay in touch. Some of these people live in your city or town.

Of course, currently the competition in this area is quite high. And yet, if, after carrying out some simple research, you notice that in your area there are definitely not enough places where you can top up your balance, and not only you, but also a good half of the population of your area lack them, it’s time to act and organize your own small socially useful business.

You will receive a small percentage of each payment. Usually from 1%-5%. Yours the main task organize the work of the payment acceptance point in such a way that cash subscribers were credited to their account on time. Provided you have good and high-quality service, people will be drawn to you. I suggest you do simple calculations of potential profit yourself: take the average payment amount; the average percentage of commission that you will charge from the client, or that the provider will pay you for services; guess how many people per day can top up their balance at the service point you choose. Having the above data, it’s easier than ever to assess the feasibility of the idea. I recommend not to deceive yourself and take into account the maximum possible indicators. Take the minimum, you can't go wrong. If the revenue is more than expected, you will be pleasantly surprised and rejoice from the bottom of your heart.

After minimum amount the expected profit has been determined, include in the estimate the costs of renting a small space in a public place, the salary of an employee who will accept payments (if you do not plan to do this yourself) and much more.

It is necessary to think through everything down to the smallest detail. In order for a business not to collapse in the first months of its formation, it is necessary to have starting capital. Also determine its size yourself: add up the cost of the first months of rent, the costs of equipment for the point, advertising (mainly outdoor) and other needs, which will be discussed below.

How it's done

In order to organize the acceptance of payments, you must have certain rights - the rights of a legal entity. This means that you will have to register as an individual entrepreneur. Fortunately, it is quite inexpensive (check the amount of state duty at the Federal Tax Service Inspectorate at your place of registration). To accept cash from the public, you will need a cash register, abbreviated as KKM.

I can imagine how you grimaced your face with displeasure. This dissatisfaction is understandable. KKM is quite expensive. When faced with people on duty who want to engage in this type of activity, one often hears about their reluctance to purchase cash register machines. Anticipating questions like: “Is it possible without a cash register?”, I will say that without it, my dear, it is absolutely impossible. Why is the topic of a separate article. For now, just take my word for it. Although, okay... There are some alternative methods. If anyone is interested in learning about them, raise your hands. Okay, you, you and you read on. You can do without your own cash register in two cases: using a portable radio terminal to accept payments and... using someone else's cash register.

Using the cash register of another legal entity

The subtitle of this part may sound a little criminal, don't worry. You won’t have to take someone else’s cash register out of the neighboring store you broke into under the cover of darkness. Stop even thinking about such methods. Moreover, there is a wonderful legal way to use someone else’s cash register - concluding an agreement with its owner on the provision of paid services. If you have such an agreement, you can receive interest on payments accepted through the cash desk of another entrepreneur, without even leaving your home. So make an agreement (in writing) and go for it. Naturally, you will share the profit among yourself, according to the agreement.

Portable radio terminal - the solution to all problems

If you want to do without buying a cash register and even without purchasing a computer, I advise you to look towards wonderful devices - radio terminals for accepting payments.

This thing is specially “sharpened” for this type activities. The terminal combines the ability to receive and transmit payments through channels and print cash receipt, which in our case cannot be avoided. Therefore, if you want to deal only and only with accepting payments, and do not plan to simultaneously develop retail trade at your point, we recommend it! The price of the device is very, very competitive.

You can also accept payments from the public by installing software created for these purposes on your computer. An essential condition for working under this scheme is the ability to access the Internet.

Principal, Agents and Subagents are parts of one business

The most important link that ensures the very possibility of your work in this area is the presence of an agency agreement with the organizing company (Principal, in legal terms) of the payment acceptance system. Currently, there are several well-established organizations operating in Russia. We will not name them so as not to create advertising.

The principal will provide you with software (if working via a computer), a power of attorney to carry out transactions on his behalf and provide 24-hour information support.

Working conditions for almost all organizers are the same. You, as an individual entrepreneur, open a bank account, through it you transfer an advance payment to a special deposit account of the system organizer and then accept cash payments from the public within the limits of the advance payment you made. That. You get your money back and earn interest on customer payments. The scheme of work may seem too complicated to some, but upon closer examination everything is quite simple.

Perhaps, and most likely, someday the moment will come when you want to receive more profit from this type of activity. If you already have enough experience in accepting payments yourself to teach this to other people and provide them with information and technical support, start developing a subagent network. You can enter into an agreement similar to the one concluded between you and the organizer of the system with an unlimited number of organizations and entrepreneurs who want to provide a service for accepting payments to the public. With the normal functioning and stable turnover of your subagent points, you will receive profit from their activities, only once having expended efforts to attract them to this business.

Of course, it’s good if you can provide your subagents with consulting services and assistance in installation software etc. Build trusting relationships with partners, this is really beneficial.

Accounting and taxes

I would like to warn you against negligence in making payments, maintaining accounting and calculating taxes. In the accounting of an entrepreneur or organization involved in accepting payments, there are significant features that cannot be ignored. Therefore, if you are not savvy in accounting, it is better to immediately hire an accountant who will keep your affairs in order and prevent problems from arising with regulatory authorities.

The best taxation option for this type of activity would be to use the simplified taxation system (STS). It is ideal for entrepreneurs working under agency agreements. As they say, pay your taxes and sleep well.

Good luck in business, dear readers!

IN modern conditions mobile phone is an indispensable attribute of the life of most Russians, and even more so, it is almost impossible to imagine a working person without a means of communication. For organizations, mobile operators are developing special tariff plans, which can significantly reduce the cost of cellular communications.

On modern stage development of the country's economy, the telecommunications sector, and, in particular, the cellular communications market, plays an important role in the interaction and economic development of business structures. This area not only serves as a necessary condition for the effective functioning of enterprises in all industries, but also energetically influences the management processes themselves. The role of cellular communications in economic development is determined by the fact that by introducing the latest information and communication technologies, it makes it possible to include both consumers and producers in a single information space not only in Russia, but throughout the world. How component market economy, it ensures the rapid transmission and dissemination of information flows, and, therefore, is the most important factor in increasing the competitiveness of enterprises. In modern conditions efficient use information resources necessary for any company. Segmentation Information target market allows the company to identify marketing opportunities. Information is needed to clearly define competitive advantages company and its strategic positioning. Finally, information about a company's strategic position in the market is required to build an effective business strategy based on competitive advantage. Under these conditions, increasingly high demands are placed on business structures in the telecommunications sector.

Demonopolization of the telecommunications sector led to increased competition in the cellular communications market, the emergence of new types of communications and alternative operators, which contributed to the structuring of the market and increasing its transparency. However, the emergence of new types of communications has brought to life new problems associated with the diversification of the activities of telecommunications enterprises. In the current conditions, the effective functioning of business structures in the cellular communications market is possible only by identifying the main consumer preferences and motives of consumer behavior, as well as by solving the problem of choosing the preferred method of servicing the target market. In this regard, the development of methodological approaches to forecasting the activities of entrepreneurial structures in the telecommunications sector in order to develop a strategy for their market behavior is becoming urgent.

The financial condition, competitiveness, and, accordingly, the prospects for economic development of business entities depend on a huge number of factors. In most cases, the economic results of an organization's activities are directly related not only to the conclusion of profitable contracts, but also to the reasonable and rational use of the organization's resources, both material and labor. To a large extent, savings are achieved through the use of the most attractive and favorable prices and tariffs offered by suppliers. The role of tariff plans becomes especially important when using certain goods, works or services in the daily activities of the organization. There is no doubt that the category of such “fixed” expenses includes communication services, in particular mobile (cellular).

In modern conditions, a mobile phone is an indispensable attribute of the life of most Russians, and even more so, it is almost impossible to imagine a working person without a means of communication. Every day, mobile operators offer an increasing number of tariffs that meet the needs various categories users. Almost all companies providing cellular communication services provide different tariffs for individuals and business entities. In particular, corporate tariff plans are especially popular among organizations and individual entrepreneurs, the advantages of which are well known:

Low subscription fee or its complete absence;

The lowest possible cost for outgoing calls to the most frequently used directions;

Wide range of additional services;

Flexible system of discounts depending on the intensity of conversations and the number of telephone numbers registered to the organization;

Preferential long-distance/international calls;

Intranet roaming at reduced rates and others.

Large organizations have long appreciated the effectiveness and ease of use of corporate tariff plans. Currently, cellular operators are paying increasing attention to organizations and individual entrepreneurs classified as small and medium-sized businesses, for which special tariffs are being developed. In particular, when using corporate tariffs each employee taking into account his own job responsibilities can use additional discounts in the most popular areas when connecting special services. Corporate tariffs, as a rule, are structured in such a way that they can be optimized for any employee depending on his type of activity.

As practice shows, the use of these tariffs allows not only to significantly reduce the cost of cellular communications, but also to minimize document flow, which is especially important for organizations and entrepreneurs, “in which every person counts.” Cellular operators provide special services within the framework of corporate tariffs, which, for example, allow you to make calls to the phones of company employees for free, or there is no charge from the second minute of the call. In addition, corporate tariff plans may provide for the provision of such “useful and necessary” services as “caller ID”, “call waiting”, “mobile office”, “ Mobile Internet" and some others without any payment.

Several of the most promising directions are identified, following which will allow market players to achieve significant success in the coming years. These include:

1. Seamless migration of broadband to mobile All-IP to meet the ever-growing needs of the industry.

2. Providing premium class IP services to provide subscribers with high-quality services and the benefits of reliable communications.

3. Application of original creative solutions in order to expand the subscriber base and increase ARPU.

4. Improving the efficiency of narrowband communications through expanding the coverage areas of the urban network.

5. Promote single access points to meet the needs of horizontal integrated radio networks and support voice services, offering narrowband data services and mobile broadband services.

6. Creation of large-scale networks to handle the ever-increasing data traffic.

7. Introduction of new voice transmission models into the operator environment.

8. Provide necessary bandwidth performance, such as intelligent traffic management and processing of high-speed data traffic.

9. Support for traditional telecom operators, using their extensive subscriber base to provide content transmission and multimedia services.

The development of these areas will help optimize the construction and support of networks around the world, the main advantages of which will be quality and the ability to quickly respond to various requirements. Humanity is increasingly dependent on information technology and therefore no single society will be able to function normally outside the global information network. This is the reality of development modern societies in the world.

The globalization of the economy generates a flow of information that is increasingly increasing in volume and rapidly changing in content. All this has an impact on people’s activities and entails certain economic consequences, often on a fairly large scale. According to the prominent German public and statesman H.D. Genscher, “access and use of information, knowledge and communications have today become the fourth factor of production, along with land, capital and labor.” Information technology today has become a branch of the global economy. Currently, scientific and technological progress is reaching a new higher level, and one of the areas of breakthrough is information Technology: a combination of a computer and modern communications.

Entrepreneurial activity in the field of telecommunications, each country has its own specifics. However, the appearance digital technologies and the massive introduction of services to provide access to the Internet have led to the fact that today almost any telecommunications operator operates not only in the local (regional or national) but also in the global telecommunications services market. The advent of digital technology has brought about radical changes in the telecommunications industry. Traditional voice communication has begun to be replaced by interactive services, such as the Internet, data transmission, and mobile communications.

The creation of a Russian information and telecommunications infrastructure should be considered as most important factor rise national economy, growth of business and intellectual activity of society, strengthening the country’s authority in on a global scale. The rapid development of telecommunications is a necessary condition for the development of business infrastructure, the creation of favorable conditions for attracting foreign investment, solving employment issues.

The domestic market for communication services remains quite closed. On the one hand, this is due to the huge scale of the country’s territory, thanks to which the main income of telecom operators is formed. On the other hand, Russia is still outside the world market of international traffic, which until now has been a consequence of insufficient high level digitalization of trunk channels and lower quality of communication compared to world standards. However, recently the quality long distance communication in the country has improved significantly, and its role in the international transit of telecommunications services has begun to increase.

Recently, the globalization of national markets for communication services has been taking place. If previously the business activities of the national operator were limited to the borders of their own country, now the largest telephone companies provide services abroad. This becomes possible mainly through the acquisition of large stakes in foreign operators.

Telecommunications mergers and acquisitions have had mixed results.
On the one hand, the globalization of communication services markets inevitably leads to changes in the capital management of operators; on the other hand, the sweeping “wave” of mergers contributed to the fact that “absorber” companies issued too many bonds to finance acquisitions, which led to a decrease in the credit ratings of many of them. them and had a negative impact on the stock market.

Telecommunications in the leading countries of the world are perhaps the most dynamic sector of the national economy. Throughout the post-war period, the pace of its development was high and almost unaffected by the deterioration of economic conditions. All Western economic and structural crises only slowed down investment activity, but did not in any way restrain the growth of the industry: the worse things are in the economy, the higher the need for quick, complete and comprehensive information. And the higher the organization of society, the brighter this trend. The rapid growth rate of communications is an objective pattern of a highly industrialized economy, reflecting its needs for adequate information support. There is a clear empirical relationship here: the volume of information flows transmitted by means of communication should increase at least in proportion to the square of the growth of the country's economic potential. In other words, the economy’s needs for communication services are met if the growth rate of information flows is at least twice the growth rate of GDP. Thus, the degree of development of telecommunications is one of the significant indicators of the maturity of the national economy.

On October 1, the Presidium of the Supreme Arbitration Court considered a dispute about the taxation regime for organizations and individual entrepreneurs applied to activities related to the sale of express payment cards and SIM cards. The question, we note, is very relevant in the age of rapid development of mobile telephony and, as a consequence, business activity in this area. Quite often, tax forums discuss the legality of applying “imputation” to this type of sale. Taxpayers, trying to protect themselves in advance from disputes with controllers, ask questions about their right to sell payment cards and SIM cards through a chain of stores for cash. They are interested in what type of activity such sales fall under and what taxes they should be subject to.

Enterprising people try to find cunning ways recognition of retail trade in cards for the purposes of applying a special regime in the form of UTII. They are looking but cannot find. There are disputes and disagreements everywhere, escalating into litigation. And, as an analysis of judicial practice shows, arbitrators have until now lacked uniformity in resolving disputes with similar circumstances.

On the right to use “imputation”

Specific situation: a taxpayer (organization or individual entrepreneur) trades in express payment cards and SIM cards, which he purchases from a mobile operator dealer for their further sale. The communication shop through which trade is carried out has an area trading floor less than 150 sq. m. A fair question that arises in the course of this type of activity: is it subject to transfer to a special regime in the form of UTII?

In accordance with clause 2 art. 346.27 Tax Code of the Russian Federation translated into “imputation” retail through shops and pavilions with a sales floor area of ​​no more than 150 sq. m for each trade organization facility and retail trade through stationary facilities trading network that does not have trading floors, as well as through non-stationary retail chain facilities. Retail trade is a business activity related to the trade of goods (including in cash, as well as using payment cards) on the basis of retail purchase and sale contracts, the subject of which is the transfer to the buyer of goods intended for personal, family, household or other use not related to business activities ( Art. 492 Civil Code of the Russian Federation).

According to Art. 38 Tax Code of the Russian Federation goods are any property sold or intended for sale. Property refers to types of objects civil rights(except for property rights) related to property in accordance with the Civil Code of the Russian Federation. Objects of civil rights include things, including cash and documentary securities, other property, including non-cash funds, uncertificated securities, property rights; results of work and provision of services; protected results of intellectual activity and means of individualization equivalent to them (intellectual property); intangible benefits (Art. 128 Civil Code of the Russian Federation).

From the above, we can conclude that entrepreneurial activity in the sale of express payment cards for communication services and SIM cards purchased as property for further sale on one’s own behalf through a communication store with a sales area of ​​less than 150 sq. m, can be classified as retail trade and transferred to the taxation system in the form of UTII.

This is the official position of the Ministry of Finance (see, for example, letters dated 07/05/2007 No. 03-11-04/3/253 , dated June 15, 2009 No. 03-11-09/211 ).

It should also be taken into account that express payment cards and SIM cards can be sold within commission agreements . Article 990 of the Civil Code of the Russian Federation It is established that under the commission agreement, one party - the commission agent (in our case, the taxpayer, clarifying the issue of the lawful use of “imputation” by him when carrying out this sale) undertakes, on behalf of the other party - the committent (organization - telecom operator) to carry out one or more transactions for a fee on its own behalf, but at the expense of the principal.

According to officials, the activities of a commission agent in retail trade are subject to UTII if he sells goods on his own behalf through a trade facility that belongs to him or is used by him in business activities on legal grounds (ownership, lease). In addition, if the commission agent sells goods at retail areas leased from the principal, then such activities are also subject to transfer to a special regime in the form of UTII (see, for example, letters dated December 24, 2007 No. 03-11-04/3/512 , dated 30.03.2010 No. 03-11-11/84 ). The exception, according to the Ministry of Finance, is activities carried out on premises owned by the principal: it is subject to taxation in the generally established manner or using the simplified tax system.

Next important point concerns situations in which the sale of cards is carried out within the framework of agency agreement , concluded between the taxpayer and the telecom operator. In this case, such activities should be taxed within the framework of the general taxation system or simplified taxation system. According to the Ministry of Finance, if express payment cards and SIM cards are sold by an organization under an agency agreement not on its own behalf, but on behalf of the principal (who has all the rights and obligations under the transaction), then such activities are subject to taxes under the general taxation regime or simplified taxation system (USNO) letters dated October 26, 2011 No. 03-11-11/269 , dated 30.03.2010 No. 03-11-11/84 , dated 12.02.2009 No. 03-11-06/3/30 ).

Does a taxpayer-agent acting as an agent have the right to apply imputation? in one's own name (this possibility is also included in clause 1 art. 1005 Civil Code of the Russian Federation)? Some judges give a negative answer to this question (see, for example, Resolution of the FAS VSO dated 04.06.2009 No.А10-3076/08-Ф02-2539/09), noting that in any case, the execution by an agent of an agency agreement is a type of activity different from retail trade. The agent in this case plays the role of an intermediary who receives an agency fee as a result of his activities. Types of activities subject to UTII taxation are named in clause 2 art. 346.26 Tax Code of the Russian Federation, and without mentioning intermediary activities in it. Accordingly, the taxation system in the form of UTII should not be applied in such a situation, and income in the form of agency fees is taxed according to common system taxation or simplified taxation system.

In any case, the arbitrators, considering the circumstances of very numerous disputes, tried to find out whether the organization acted as a seller in a retail purchase and sale of goods transaction, or whether the activity of selling express payment cards for communication services and SIM cards was carried out within the framework of agency agreements concluded with telecom operator-principal.

Thus, some arbitrators believed legitimate application of a special regime in the form of UTII retailers express payment cards for communication services and SIM cards (see, for example, Resolution of the Federal Antimonopoly Service of the Eastern Military District dated March 13, 2009 No.  A43-6112/2008-6-104, FAS Central Election Commission dated October 14, 2008 No.  A48-4840/07-13). At the same time, the courts analyzed the terms of the agreement itself and the documents presented, on the basis of which the following points were clarified: where the taxpayer sold the cards (in retail outlets or not), on the basis of what documents he received cards from counterparties, on what terms he sold them - on his own behalf or not (whether he punched a check using a cash register). And if the circumstances of the case confirmed that the organization purchased goods from counterparties under waybills for the purpose of resale, then entrepreneurial activity in the sale of express payment cards and SIM cards acquired in ownership for the purpose of retail sales, the arbitrators qualified it as retail trade, and the income received was considered subject to UTII taxation.

However, more often, judicial authorities consider express payment cards and SIM cards as a means of pre-payment for relevant services. That is, the sale of such cards, in their opinion, is considered not retail trade, but the provision of services for their distribution. FAS NWO, based on a systemic interpretation Art. 209, 454 , 491 , 492 Civil Code of the Russian Federation, indicated that according to general rule The seller, in relation to the goods he sells, must have the rights of the owner or other limited property right, from which follows his authority to dispose of the property that is the goods ( Resolution No. dated 08.12.2010  A44-2366/2010). The judges noted that the taxpayer did not acquire ownership of the cards, but assumed obligations to collect advance payments for communication services provided by cellular operators and distribute cards in accordance with the operators' tariffs with payment of remuneration to him. Under the terms of the agreement, the taxpayer, for a fee, entered into subscriber agreements on behalf of the telecom operator (signed up a connection to cellular communication services), accepted payments for the services of telecom operators, including through the sale of payment cards. In this regard, the court decided that payment cards for services telephone communication cannot be recognized as a product with consumer properties, since, along with cash and other forms of payment, they are a means of payment. The person selling the said cards acts in such legal relations as a settlement organization. Making payments for telephone communications provided by a telecom operator does not fall under the type of business activity subject to UTII taxation..

IN Resolution dated April 23, 2013 No.  A21-9381/2011 FAS NWO indicated that express payment cards and SIM cards could not act as property used for resale within the framework of concluded sales and purchase agreements in the retail trade, since they did not meet the characteristics of the goods listed in Art. 38 Tax Code of the Russian Federation. At the same time, according to paragraph 24, 25 Rules for the provision of communication services telephone services are provided on the basis compensation contracts. The parties to the agreement are a legal entity (IP), on the one hand, and a telecom operator, on the other. By virtue of clause 1 art. 64 Communications Law Payment for communication services is made through cash or non-cash payments - immediately after the provision of such services by making an advance payment or with deferred payment.

The payment card for telephone services contains information encoded in a certain way, which is used to communicate information about payment for telephone services to the telecom operator ( clause 108 of the Rules for the provision of communication services). Such a card is a means of preliminary (advance) payment for these services, providing access to them. The card seller does not provide communication services. This service will be provided to the subscriber by the telecom operator after the card is activated and the subscriber has a telephone connection with his correspondent.

As part of the concluded agreements, the taxpayer sold the telecom operator’s products at prices established by it. At the same time, the taxpayer provided services not to subscribers, but to the operator itself. It turns out that the activity within the framework of the concluded agreement was not retail trade and in relation to it the application of a special regime in the form of UTII was unlawful.

note

Previously, officials claimed that express payment cards cannot act as property used for resale within the framework of concluded sales and purchase agreements in the retail trade sector (Chapter 30 of the Civil Code of the Russian Federation). They also do not meet the characteristics of the goods defined by Art. 38 of the Tax Code of the Russian Federation, since by their nature they are only a means of preliminary (advance) payment for telephone services not yet provided and a form of obligation within the framework of concluded contracts for the provision of communication services in accordance with Chapter. 7 of the Communications Law and ch. 39 of the Civil Code of the Russian Federation. Also, according to the Ministry of Finance, SIM cards are not goods, since with the help of them the telecom operator provides access to the service it provides. Therefore, activities related to the sale of express payment cards and SIM cards for the purpose of applying a special regime in the form of UTII cannot be recognized as retail trade and must be taxed under the OSNO or simplified taxation system (USNO) Letter of the Ministry of Finance of Russia dated March 27, 2006 No. 03-11-04/3/164 , from 10.01.2006 03-11-05/1, dated June 22, 2005 No. 03-06-05-04/173 ).

Dispute resolution by senior judges

Controllers during the field visit tax audit came to the conclusion that the means of payment for cellular communication services and access to it were the property of legal entities, the remuneration was received by the entrepreneur under agency agreements and, accordingly, was not subject to UTII taxation. These conclusions were confirmed during the trial: the businessman carried out activities in providing communication services exclusively on behalf of and at the expense of organizations that have the right to provide such services. Business activity in this case was carried out on the basis of agreements concluded with cellular operators.

The entrepreneur, as a commercial representative, was entrusted with the responsibility to transfer in full all funds received under subscription agreements, to ensure strict accounting and control over the use and storage of SIM cards, to provide inventory reports on SIM card balances within one day and for the return of all SIM cards not sold by him for the period specified in the contract. For services rendered, the entrepreneur received payment from the principal in the form of an agency fee.

The senior judges, having assessed the terms of the contracts concluded by the entrepreneur and taking into account the provisions Art. 38, 346.26 , 346.27 Tax Code of the Russian Federation, Art. 1005 Civil Code of the Russian Federation, ruled that the disputed cards did not meet the characteristics of the goods and, by their nature, were only a means of pre-payment for telephone services, providing access to such services, and the entrepreneur actually assumed obligations to collect pre-payments for services provided by the cellular operator and distribute cards according to the operator’s tariffs with the payment of an agent’s fee. Accordingly, the entrepreneur’s activity was not retail trade and was not subject to UTII, and the agency fee received by the entrepreneur for the sale of express payment telephone cards and SIM cards was his income from the provision of services and should have been taxed under the general taxation regime.

This is how the highest arbiters resolved the dispute. Frankly speaking, for the author, not all issues were resolved with the release of this resolution. See for yourself: the entrepreneur has simply become a hostage to a situation in which the main role (far from in favor of the businessman) was played by the same agency agreement concluded with the telecom operator, which gives the relationship an intermediary character. We have already said that the courts initially excluded intermediary operations from being subject to the single tax (as follows from the norms of tax legislation). Now the VAC has confirmed the position that has been developing over many years.

Let us note that the entrepreneur (the losing party in the lawsuit) confirmed his actions with official explanations from the Ministry of Finance ( letters no. 03-11-04/3/253 , №  03-11-04/3/512 ), which also indicated that entrepreneurial activities for the implementation in one's own name express payment cards and SIM cards purchased from a cellular dealer into the property , through a communication salon with a sales area of ​​less than 150 sq. m, still can be attributed to retail trade and transferred to “imputation”. It turns out that in this case it is simply incorrect (precisely for the purposes of applying the norms of Chapter 26.3 “Taxation system in the form of a single tax on imputed income for individual species activities" of the Tax Code of the Russian Federation) from a legal point of view, formalized the contractual relationship with the telecom operator. In other words, if there were no evidence of contractual relations within the agency agreement in the case materials, perhaps the outcome of the case would have been different. Moreover, we have already given examples of court cases in favor of the taxpayer, where the activity of selling express payment cards and SIM cards acquired by him for the purpose of retail sale was classified by the arbitrators as retail trade, and the income received was considered subject to UTII taxation (see. , For example, Resolution of the Federal Antimonopoly Service of the Eastern Military District dated March 13, 2009 No.  A43-6112/2008-6-104). The whole question is in the correct qualification of the transaction and its proper execution.

Therefore, put a bold point in long-standing dispute, according to the author, it is still early. Not all issues have been resolved. Only one has been resolved so far: now, without a doubt, the taxation system in the form of UTII does not apply to business activities related to the sale of express payment cards and SIM cards carried out on the basis of agency agreements concluded with cellular operators.

Question: ...An individual entrepreneur applies the simplified tax system with the object of taxation being income. It carries out activities to accept payments from cellular operators. Is the 5% commission his income? Does he have the right to use one cash register when making cash payments for types of activities subject to UTII taxation and types of activities for which he applies the simplified tax system? (Letter from the Federal Tax Service of the Russian Federation for Moscow dated November 21, 2005 no. 18-12/3/85786)

The text of the letter has been published
"Moscow Tax Courier", 2006, N 8
Question: An individual entrepreneur applies a simplified taxation system with the object of taxation being income. It carries out activities to accept payments from cellular operators (MTS, Megafon, Beeline, etc.) in Moscow and the Moscow region. All operations for crediting money to the phone are carried out through the e-port electronic system. Is a 5% commission considered income for a sole proprietor? Does an individual entrepreneur have the right to use one cash register, entering the received amounts of money into different departments, when making cash payments for types of activities subject to UTII taxation, and types of activities for which he applies a simplified taxation system?
Answer:
FEDERAL TAX SERVICE DEPARTMENT
IN MOSCOW
LETTER
dated November 21, 2005 N 18-12/3/85786
The taxation system in the form of UTII for certain types of activities is put into effect by regulatory legal acts of representative bodies of municipal districts, city districts, laws of the federal cities of Moscow and St. Petersburg in relation to the types of business activities named in paragraph 2 of Art. 346.26 Tax Code of the Russian Federation.
At the same time, paragraph 2 of Art. 346.26 of the Tax Code of the Russian Federation does not provide for such type of entrepreneurial activity as carrying out intermediary activities for accepting payments from the population and transferring them according to the details of cellular operators (MTS, Megafon, Beeline, etc.).
Thus, income received from carrying out activities for accepting payments in Moscow and (or) in any other constituent entity of the Russian Federation, including in the Moscow region, must be taken into account for the purposes of taxation paid in connection with the application of the simplified tax system, in accordance with according to the procedure established by Art. Art. 346.15 and 346.17 of the Tax Code of the Russian Federation.
Based on Art. 346.15 of the Tax Code of the Russian Federation, taxpayers, when determining the tax base for the tax paid in connection with the application of the simplified tax system, take into account income from sales in accordance with Art. 249 of the Tax Code of the Russian Federation and non-operating income in accordance with Art. 250 Tax Code of the Russian Federation. In this case, income provided for in Art. 251 Tax Code of the Russian Federation.
In particular, in paragraphs. 9 p. and 1 tbsp. 251 of the Tax Code of the Russian Federation establishes that when determining the tax base, income in the form of property (including funds) received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, as well as for reimbursement of expenses incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) other principal, if such expenses are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements . The indicated income does not include commission, agency or other similar remuneration.
Consequently, the income of a commission agent (agent), taken into account for tax purposes, tax paid in connection with the application of the simplified taxation system, is a commission, agency or other similar remuneration.
The date of receipt of income in accordance with clause 1 of Art. 346.17 of the Tax Code of the Russian Federation recognizes the day of receipt of funds into bank accounts and (or) the cash desk, receipt of other property (work, services) and (or) property rights (cash method).
In accordance with paragraph 1 of Art. 2 of the Federal Law of May 22, 2003 N 54-FZ "On the use of cash register equipment when making cash payments and (or) settlements using payment cards" (hereinafter referred to as Law N 54-FZ) in cases of sale by an individual entrepreneur of goods, execution works or provision of services on the territory of the Russian Federation and the execution of cash payments and (or) settlements using payment cards, a cash register included in the state register must be used.
According to the Procedure for registering cash registers with the tax authorities, approved by Order of the State Tax Service of Russia dated June 22, 1995 N VG-3-14/36, tax authorities register cash registers. In this case, the operation of the cash register is carried out at the actual installation address indicated by the individual entrepreneur in the application and in the registration card of the cash register with the tax authority.
Thus, an individual entrepreneur carrying out various types of activities (selling goods, performing work or providing services) in different territories or, as in this case, one type of activity, but in different entities Russian Federation(Moscow and Moscow region), when making cash payments, you are not entitled to use one cash register.
Deputy
Head of the Department
actual state councilor
tax service of rank II
S.KH.AMINEV
21.11.2005

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