Public catering Taxation of public catering establishments. Conditions for using UTII

Why was such a scheme for determining the area of ​​the visitor service hall for the purpose of calculating UTII, applied by the tax authority, not supported by the judges?

This is precisely the scheme that the tax authorities applied when determining the area of ​​the visitor service hall for the purpose of calculating UTII and concluded that it was illegal for the company to use the “imputed” taxation system when providing services. Catering in the cafe. Were you able to defend in court the right to use a special regime in the form of UTII?

By virtue of paragraphs. 8 paragraph 2 art. 346.26 of the Tax Code of the Russian Federation, the specified taxation system can be applied when providing public catering services through catering facilities with a customer service area of ​​no more than 150 square meters. m for each such object. Catering services for the purposes of applying Ch. 26.3 of the Tax Code of the Russian Federation includes services for the production 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.

When calculating the amount of UTII, the physical indicator “area of ​​the visitor service hall (in square meters)” is used.

Inventory and title documents include any documents available to an organization or individual entrepreneur for a catering facility, containing:

– necessary information about the purpose, design features and layout of the premises of such a facility;

– information confirming the right to use this object.

Such documents include, for example, a purchase and sale agreement for non-residential premises, a technical passport for non-residential premises, plans, diagrams, explanations, (sublease) of non-residential premises or part(s) thereof, permission to serve visitors in an open area.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 14 of Information Letter No. 157 dated 03/05/2013 indicated that the physical indicator of basic profitability “the area of ​​the visitor service hall (in square meters)” should include only those areas that actually can be used for food consumption and leisure activities. Other areas in which there are no conditions for visitors to consume food and spend leisure time and which do not affect the basic profitability should not be taken into account when calculating UTII. Such areas include, in particular, the areas of utility rooms intended for preparing and serving food and washing dishes.

In the situation under consideration, the tax authorities considered that, in addition to premises No. 16 “dining hall”, the company, when determining the area of ​​the visitor service hall, should also have taken into account premises No. 8 “bar” and No. 9 “VIP hall”. The area of ​​the service hall determined in this way exceeds 150 square meters. m.

The judges found that the bar was inaccessible to visitors during the entire period under review (it was structurally separated from the general area of ​​the dining room, visitors’ access to the bar was blocked by a bar counter), and was not intended for eating or spending leisure time. Consequently, the area of ​​premises No. 8 does not affect the profitability of public catering services and cannot be included in the physical indicator “area of ​​the customer service hall” for the purpose of calculating UTII.

Regarding the area of ​​the VIP hall (room No. 9), the tax authority did not provide unconditional and sufficient evidence of the use of this premises by the company when organizing catering in the cafe. It does not follow from the case materials that conditions for food consumption and leisure activities were created in the VIP room during the period under review. It does not follow from the inspection protocol that catering services and leisure activities were organized in the VIP room. The mere presence of one table does not confirm this circumstance. In this regard, the tax authority also had no reason to take into account premises No. 9 as part of the physical indicator “area of ​​the visitor service hall” for the purpose of calculating UTII.

The case materials did not include evidence of the actual use of the bar and VIP room for food consumption and leisure activities. Therefore, the area of ​​​​premises No. 8 (bar) and No. 9 (VIP hall) does not affect the profitability of catering services and cannot be included in the physical indicator “area of ​​the customer service hall” for the purpose of calculating UTII (Resolution of the Supreme Court of the Russian Federation dated March 6, 2017 No. F01 -125/2017 in case No. A43-27985/2015).

By the way, having studied the materials of case No. A03-15290/2015, you can find out why the judges decided that the individual entrepreneur did not reasonably take into account the area of ​​the emergency exit when determining the value of the physical indicator “area of ​​the visitor service hall (in square meters)” and lawfully applied the taxation system in the form of payment of UTII (see Resolution of the AS ZSO dated September 29, 2016 No. F04-4204/2016).

Good day! I am glad that you continue to visit my site for beginners in business and today I want to reveal another topic, namely “ How to calculate UTII tax for”.

In order to correctly calculate UTII for public catering, you must use.

The formula is: UTII = BD*FP*K1*K2*15%

Let's look at 2 types of catering using examples:

• Activities in the field of catering with customer service areas;
• Activities in the catering sector without customer service areas.

Catering with service halls

As you probably already understood from the name, these are catering establishments that have halls serving visitors.

These include: cafes, canteens, bars, restaurants, bistros, etc.

Now let’s calculate the UTII tax for CATERING with halls:

UTII = BD*FP*K1*K2*15% where in our case:

DB is for activity in the field of catering with customer service halls, its size is 1000 rubles. per sq.m.;

FP is a physical indicator for catering with trading floors equal to = area of ​​the customer service hall;

The size of which is the same for all types of activities and in 2015 it is equal to 1,798;

K2 – deflator coefficient for a certain type of activity and in a certain region. Its size must be viewed on the website of the city administration in which you operate. Its maximum value = 1 and it is downward.

An example of calculating catering with halls

I will not deviate from my traditions and will calculate the UTII tax for the city in which I live.

For example: An entrepreneur runs a cafe in the city of Megion, the cafe employs 5 people and the total area of ​​the cafe is 80 sq.m. of which the area of ​​the visitor service hall is 50 sq.m.

We immediately need to highlight what interests us:

1. The cafe has a service hall, which means the basic profitability will be 1000 rubles, and the physical indicator will be 50 (the area of ​​the customer service hall);
2. City of Megion - this affects the value of the correction factor K2.

We are not interested in any more information (the number of employees does not affect anything in this example).

Now let's do the calculations:

UTII = 1000 rub. (this is the size of the basic profitability for catering with halls serving visitors) * 50 (area of ​​the hall serving visitors) * 1,798 (K1 coefficient in 2015) * 1 (K2 coefficient adopted in Megion for catering in cafes, bars and restaurants) * 15% (the amount of tax payable to the state.

Naturally, when carrying out the calculations themselves, there is no need to describe each variable and I just pointed out so that you understand this important point, now let's do the calculations:

UTII = 1000*50*1,798*1*15% = 13,485 rubles. – now we have received the amount of UTII tax for our catering example for 1 month. Since reporting and payment of UTII tax occurs once a quarter, in the end the tax amount will need to be multiplied by 3 (months in a quarter).

Catering without service halls

Let's first define what falls under this concept: kiosks, tents (related to the production and sale of food: cheburek, pancake, etc.), culinary departments, etc.

UTII = BD*FP*K1*K2*15% where:

DB - the amount of basic profitability for catering that does not have customer service areas is 4,500 rubles;

FP – the physical indicator in this case will be the number of employees employed in this activity, including the entrepreneur himself;

K1 – this coefficient is the same for all types of activities and in 2015 its size was 1.798;

K2 - this indicator depends on the specific city in which the activity is carried out, since I am considering the city of Megion, its size in my case is 0.8.

An example of calculating UTII for catering without halls

For example: An entrepreneur in the city of Megion operates a culinary shop; there are 4 employees hired for this activity.

Conclusions from the example:

1. Since it’s cooking, that means there are no customer service areas, and in this case the base income is equal to 4,500 rubles;
2. The physical indicator will be the number of people (including the entrepreneur) who are engaged in this activity, in my example 4 employees + 1 entrepreneur total: 5;
3. K1 = 1.798 (same for all);
4. K2 = 0.8 (for cooking in Megion).

Now let’s do the calculations: UTII = 4500*5*1.798*0.8*15% = 4854 rubles. 60 kopecks – this is the tax amount for 1 month. When submitting the UTII declaration, calculate according to the months worked in the quarter.

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Composition of catering services

An organization providing catering services in municipal formation, where the use of UTII is allowed in relation to such activities, may apply this special tax regime.

A set of public catering services falls under UTII:

• for the production of culinary products and (or) confectionery products;

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

• leisure activities.

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 produced in vending machines (stationary and mobile). For the purposes of UTII taxation, 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 applies to leisure services when calculating UTII from the provision of catering services?

Leisure services when calculating UTII include holding entertainment events for catering visitors.

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 of article 11 of the Tax Code of the Russian Federation).

According to the OK 002-93 classifier (code 122500), services for organizing and conducting leisure activities include:

• music services, concerts, variety shows 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 if two conditions are simultaneously met:

• leisure services are provided in the same premises as the catering services themselves (letters from 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);

• holding entertainment events is not a separate species activities of an organization subject to taxation under other tax regimes.

Situation: does the sale of alcoholic beverages and cigarettes in cafes count as catering services when calculating UTII??

Yes, this applies, excluding 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 ​​no 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 related to 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. This means that the organization can apply UTII for these services.

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

Sales of alcoholic beverages and beer of own production are not transferred to UTII. The organization must pay taxes on these transactions according to the general taxation system. This procedure is provided for in subparagraph 8 of paragraph 2 of Article 346.26 and paragraph 19 of Article 346.27 of the Tax Code.

Payers of UTII

The following can pay UTII from catering services:

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

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

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

The areas leased will not have to be taken into account when calculating the maximum value that 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, you will have to pay taxes on rental income 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 prerequisite 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 area of ​​no more than 150 square meters. m;

• are provided directly by the institution itself (food preparation and the creation of conditions for its consumption are provided by the institution’s employees).

If educational, medical or social institution provides food to its employees (for example, doctors, teachers or technical staff) for a fee, then such activities are also not transferred to UTII. Depending on the taxation system used, you must pay income tax or a single tax on simplified income.

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 of 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 their own products through catering facilities do not have the right to apply UTII (Clause 2.1 of Article 346.26 of the Tax Code of the Russian Federation).

Conditions for using UTII

You can use UTII when providing catering services regardless of what form of payment with the visitor the organization (entrepreneur) uses. This 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 the services - individuals, organizations or entrepreneurs (letter of the Ministry of Finance of Russia dated August 9, 2013 No. 03-11-06/3/32245). Thus, UTII can be applied 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? Area of ​​customer service halls: in one cafe – 70 sq. m, in another – 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 ​​no 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 ​​the customer service hall is 70 sq. m, pay UTII.

Providing catering services through facilities with an area of ​​over 150 square meters. m cannot be transferred to UTII. Consequently, taxes on the activities of the second cafe must be paid according to the general tax system or a simplified tax system (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 expressed 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??

Covers if, in addition to Internet access, visitors can use catering services.

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

If visitors only receive Internet access, then the organization must pay taxes on such activities according to the general taxation system or a single tax under a simplified system. If, in addition to access to 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: are services for the delivery of home-made hot food according to consumer orders (to offices, residential premises, etc.) covered by UTII??

No, they don't.

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

Organizations providing public catering services can apply UTII only if certain conditions are met. They are given in subparagraphs 8 and 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. Thus, catering organizations with a service area of ​​no more than 150 square meters can pay UTII. m or selling food products through facilities that do not have a customer service area. The latter include kiosks, tents, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars, etc. At the same time, for the purposes of UTII, the activities of a catering facility that does not have a hall for serving visitors must provide for the creation of conditions for the consumption of purchased goods. products on site. Offices, residential premises and others similar places specified in orders for hot food delivery cannot be recognized as catering facilities. Thus, the delivery of hot meals to customers’ locations (offices, home) does not comply with the conditions for the use of UTII when providing catering services.

It should be noted that for the purposes of UTII, the sale of products of own production is not recognized as retail trade (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 the sale of goods at retail, a general or simplified taxation system must be applied to such activities.

Similar clarifications are contained in 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 home-made hot food to the location of customers. They are as follows.

The UTII includes a set of such types of public catering services as:

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

• services to create conditions for 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 provision of catering services may include the delivery of finished culinary products to customers at their location. If the provision of such services is provided for in 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 resolution of the Federal Antimonopoly Service of the West Siberian District dated April 14, 2009 No. F04-2196/2009(4457-A67-19)).

Situation: is the provision of catering services in restaurants operating on trains or ships covered by UTII?

No, it doesn't.

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

• through facilities with visitor service halls (with an area of ​​no more than 150 sq. m);

• through facilities that do not have visitor service areas.

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

Dining cars and restaurants on ships have service lounges. However, for the purpose of applying UTII, a catering facility with a hall serving visitors is recognized as a building (part of it) or structure that has a specially equipped room for eating and organizing leisure time (Article 346.27 of the Tax Code of the Russian Federation). According to All-Russian classifier Fixed assets vehicles (trains, ships) do not belong to buildings or structures. Therefore, the provision of catering services in restaurants that operate on trains or on ships does not translate into UTII payment. Similar clarifications are contained in 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 resolution of the Federal Antimonopoly Service of the North-Western District of January 14, 2010 No. A56-20453/2008).

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

Firstly, according to the All-Russian Classification of Fixed Assets, vehicles include vehicles intended for moving people and goods. The main purpose of dining cars and restaurants on ships is to provide catering services, and not to transport people and goods. Such facilities can be considered mobile catering establishments and classified as buildings (by analogy with stationary catering facilities), rather than vehicles. This is stated in the introduction to OKOF.

Secondly, the main criterion for mobile restaurants to be classified as catering facilities is the activity 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 necessarily be located in real estate. That is, the activities of restaurants operating on trains or ships may be subject to UTII. There are examples in arbitration practice court decisions, confirming the legality of this approach (see, for example, paragraph 5 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157, the determination of the Supreme Arbitration Court of the Russian Federation dated May 25, 2009 No. VAS-4430/09, the resolution of the Federal Antimonopoly Service of the Ural District dated 15 December 2008 No. Ф09-9263/08-С2).

It is worth noting 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 organizations for the production and sale of culinary products (confectionery)? Hall for serving visitors in commercial premises No.

The answer to this question depends on whether it creates trade Organization conditions for 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 in 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 one’s own production can be qualified as an activity in the provision of public catering services through facilities that do not have customer service areas. 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 site (for example, places them next to trading place tables for eating, provided 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 activities for the production and sale of culinary products (confectionery) in accordance with the general or simplified taxation system.

Similar clarifications are contained in 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, dated July 1, 2009 No. 03-11-09/233, dated January 26, 2009 No. 03-11-06/3/10. In arbitration practice there are examples of court decisions confirming the legality of this approach (see, for example, the resolution of the Federal Antimonopoly Service of the Central District dated March 26, 2013 No. A54-4101/2012).

Situation: what taxes does the hotel need to pay on OSNO from the cost of breakfast, which it included in the price of the stay? The activities of the restaurant opened at the hotel were transferred to UTII.

On the cost of catering services, which are included in the cost of hotel services, you need to pay taxes provided for by the general taxation system. 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) that forms tax base, is determined based on all receipts associated with payments for goods sold(works, services).

Since the cost of breakfast is included in the price of the room and is paid by the guest using a single document (invoice, receipt, etc.), there is no reason to exclude it from the revenue from hotel activities, No. Accordingly, there is no reason to recognize income from the sale of breakfasts as received within the framework of activities transferred to UTII. The amount of UTII that an organization pays from the activities of a restaurant is calculated based on the area of ​​the customer service hall (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). This amount does not depend on the quantity and cost of catering services, so double taxation does not arise in this situation.

Economically justified and documented expenses associated with the provision of breakfast reduce revenue from the provision of hotel services (clause 1 of Article 252 of the Tax Code of the Russian Federation). Input tax on the cost of food spent on preparing breakfasts is accepted for deduction (subclause 1, clause 2, article 171 of the Tax Code of the Russian Federation). However, an organization can take advantage of both rights only if it keeps separate records of income, expenses and input VAT associated with 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: lack of separate accounting of income and expenses associated with activities in the conditions common system taxation and UTII, can serve as a basis for bringing an 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 revenue from the sale of breakfasts from the cost of hotel services. To do this, organize separate accounting of income and expenses associated with the provision of hotel services (excluding the cost of breakfast) and catering services.

The methodology for maintaining separate accounting should be established in the organization’s accounting policy for tax purposes (clauses 6 and 7 of Article 346.26 of the Tax Code of the Russian Federation). The provision of breakfast can be classified as additional services provided by the hotel (subclause “z” of clause 10 of the Rules, approved by 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 best reflected in separate primary documents.

Procedure for calculating UTII

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

Availability of a service hall

If a catering facility has a hall serving visitors (canteens, cafes and restaurants), the physical indicator for calculating UTII is the area of ​​the service hall (clause 3 of 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). Basic profitability indicator this species activity is 1000 rubles. per month for 1 sq. m of hall area (clause 3 of Article 346.29 of the Tax Code of the Russian Federation).

Take information about the area of ​​premises where catering services are provided from 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 purchase and sale agreement for premises, plans, diagrams, explications, a lease (sublease) agreement for premises or its part(s), permission 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: which premises are included in the visitor service hall when calculating UTII for catering services?

The concepts of “catering facility” and “service hall area” 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 specially equipped place is a visitor service hall. This is stated in Article 346.27 of the Tax Code of the Russian Federation.

Thus, a catering facility is a complex that includes production, administrative, utility, utility and other premises necessary for conducting business activities. While the service hall is only a part of this room where direct service to visitors takes place. The area of ​​the 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, places for distributing and heating finished products, the cashier’s place, as well as utility rooms (see, for example, letters of the Ministry of Finance of Russia dated March 21, 2008 No. 03-11-04/3/143, Federal Tax Service Russia in the Moscow region dated May 2, 2006 No. 22-19-I/0192, resolution of the Federal Antimonopoly Service of the Ural District dated November 15, 2007 No. F09-8749/07-S3, Central District dated December 19, 2007 No. A36-1291 /2007, Volga District dated June 26, 2007 No. A65-17953/2006-SA1-19).

When calculating UTII, take into account not only your own, but also rented space. Do not include in the calculation only those that are leased (subleased) or not in use (for example, under renovation). This was 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, a premises is used for the provision of catering services, the parts of which are not structurally separated from each other and are located in one piece of real estate, then when calculating UTII the total area of ​​the 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, in the tax calculation it is necessary to include the area of ​​leisure facilities (billiard rooms, dance halls, etc.) and open areas that are combined (combined) with the visitor service hall. This follows from 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 leisure venues are structurally separated from the visitor service hall, do not take their area into account when calculating UTII (letter of the Ministry of Finance of Russia dated July 8, 2008 No. 03-11-03/14).

Situation: is it necessary to take into account the area when calculating UTII for catering services? summer cafe located in front of the restaurant? Tables for visitors are located in an open area. Visitors are served by 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 is summer period located on the territory adjacent to the restaurant, it should be qualified as an open area - a place specially equipped for public catering, located on a plot of land (paragraph 25 of article 346.27 of the Tax Code of the Russian Federation). The area of ​​such facilities in catering organizations is recognized as part of the customer service hall (paragraph 23 of article 346.27 of the Tax Code of the Russian Federation).

Since visitors to the summer cafe are served by restaurant staff, independent functioning of the outdoor area is impossible. Consequently, the restaurant and the open 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 in which summer time is being organized 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 plot of land 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 customer 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 that have 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 inventory and title documents. Otherwise, they need to be considered as a single complex and when determining the area of ​​the service hall, take into account the total area of ​​all objects. This follows from 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.

Lack of service area

If a catering facility does not have a hall serving visitors (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 individual entrepreneur(clause 3 of article 346.29 of the Tax Code of the Russian Federation). The value of the basic profitability for this type of activity is 4,500 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).

Hello Andrei!

1-2. Depending on whether the premises in which catering services are provided, the conditions for food consumption (tables, sofas, etc.) are distinguished:

1. Catering with a service hall:

a public catering facility with a hall for serving visitors - a building (part of it) or structure intended for the provision of public catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, and also for leisure activities. This category of public catering facilities includes restaurants, bars, cafes, canteens, snack bars;

2. Catering that does not have a customer service area:

a public catering facility that does not have a hall for serving visitors - 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, culinary shops (departments) at restaurants, bars, cafes, canteens, snack bars and other similar public catering outlets;

The size of the basic profitability and the physical indicator used when calculating the tax on UTII depends on the availability of a service hall.

So for catering with a customer service hall, the physical indicator is the area of ​​this hall in sq.m, and the base profitability is 1,000. For catering without a service hall, the physical indicator is the number of employees, including individual entrepreneurs, and the base profitability is 4,500.

In this regard, the tax on UTII when providing catering services in a premises with a service hall is usually higher than in a premises without one.

Regarding additional permits for premises equipped with places for on-site consumption of food, this should be clarified with the territorial body of Rospotrebnadzor or the local administration.

3. Tax legislation does not establish requirements for the minimum seating area. For the purposes of calculating UTII, only the total area of ​​the visitor service hall is important, and not the area of ​​a specific seat.

4. The tax paid when applying UTII when providing catering services in a premises with a customer service hall is in most cases higher than without it, but this cannot be said with certainty; calculations must be made in each specific case.

5. In the UTII declaration, when carrying out the type of activity “provision of public catering services provided through public catering facilities with an area of ​​the customer service hall of no more than 150 square meters for each public catering facility,” the size of the basic profitability is indicated - 1000 and the physical indicator - area service hall.

If an individual entrepreneur carries out activities related to the provision of catering services in a premises that does not have a hall for serving visitors, the UTII declaration indicates the basic profitability - 4500 and the physical indicator - quantity employees, including individual entrepreneurs.

Today it is no secret that it is more profitable to pay UTII than general regime taxes or the simplified tax system. Therefore, many people want to become “imputed” people, but not everyone succeeds. The fact that the activity carried out by the taxpayer is mentioned in the treasured list of “imputed” types of activity does not yet guarantee the transition to UTII. It may well turn out that the taxpayer’s occupation (even though it is called the same as in the list) does not correspond to the definition of this type of activity given in Chapter 26.3 of the Tax Code of the Russian Federation.

I. Kiryushina

Let's consider the above using the example of catering.

The UTII system can be applied to the provision of public catering services provided through catering facilities:

– with an area of ​​the visitor service hall of no more than 150 sq.m for each such facility (subclause 8, clause 2, article 346.26 of the Tax Code of the Russian Federation);

– do not have a visitor service hall (subclause 9, clause 2, article 346.26 of the Tax Code of the Russian Federation).

In other words, the Tax Code of the Russian Federation connects the possibility of using UTII for this type of activity with the presence of two circumstances:

1) provision of public catering services as such;

2) provision of these services through a visitor service hall or another facility that does not have a visitor service hall (kiosk, tent, etc.).

Public catering services include services for the production 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 (Article 346.27 of the Tax Code of the Russian Federation ).

What the process of manufacturing culinary products is is known to everyone, and, as a rule, it does not need explanation. Although there are exceptions.

For example, an organization that produces and sells freshly squeezed juices doubted what type of activity it was carrying out.

In response to her request, the Russian Ministry of Finance quite rightly classified her activities as providing public catering services (letter dated April 28, 2007 No. 03-11-05/85).

Let us note that Chapter 26.3 of the Tax Code of the Russian Federation does not contain a specific list of public catering services. Therefore, if difficulties arise in qualifying the activities carried out by an organization, the Ministry of Finance of Russia suggests contacting the All-Russian Classifier of Services to the Population OK 002-93, approved by Resolution of the State Standard of Russia dated June 28, 1993 No. 163 (letter dated June 15, 2007 No. 03-11-04/3 /218).

For example, organizations that feed and serve clients along the route of passenger transport provide catering services (code 122308 OKUN).

We have already written about what is meant by creating conditions for the consumption of finished culinary products in issue 5 of the magazine “Small Accounting” for 2006.

A public catering facility with a hall for serving visitors is understood as a building (part of it) or structure intended for the provision of public catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities.

If an enterprise does not have a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, then it provides catering services through a facility that does not have a customer service area. This category includes kiosks, tents, vending machines and other similar public catering outlets (Article 346.27 of the Tax Code of the Russian Federation).

There is no doubt that the activities of those organizations and entrepreneurs who feed visitors in restaurants, cafes, canteens, snack bars, bars, etc. are subject to transfer to UTII. The same can be said about those who produce culinary products and sell them to consumers - individuals.

But in this article we will talk about “non-standard” catering. With this term we decided to unite all those who cannot be classified as catering in its generally accepted sense. In addition, “unusual” situations that an ordinary caterer may find themselves in will be considered.

Everyone wants to eat, always and everywhere: at work and at school, on weekdays and on holidays, on a cruise and at a conference. This list can be continued indefinitely.

Accordingly, there are companies that are ready, for a fee, to prepare food (from their own products or from the customer’s products), deliver it to the right place (or prepare it at the place specified by the customer), organize the consumption of culinary products (set the table, serve dishes, etc.) etc.) to serve clients.

Is your activity entrepreneurial?

Catering as a type of entrepreneurial activity is transferred to UTII. Entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematic obtaining profits from the use of property, sale of goods, performance of work or provision of services (Article 2 of the Civil Code of the Russian Federation).

If the provision of catering services meets the criteria of entrepreneurial activity, UTII may be applied to these services.

According to the Russian Ministry of Finance, as stated in letter No. 03-11-04/3/118 dated April 17, 2007, one of these signs is charging workers for lunch.

The conclusion follows from this: the provision of catering services for employees of the organization, which is provided for a fee by deducting the cost of lunches from wages, is recognized as entrepreneurial activity and, under certain conditions, may be subject to UTII.

However arbitrage practice refutes this conclusion (see, for example, resolutions of the Federal Antimonopoly Service of the West Siberian District dated March 22, 2007 No. F04-1693/2007(32724-A03-7), Northwestern District dated December 19, 2005 No. A56-33205/04, Ural District dated June 13, 2007 No. Ф09-4380/07-С3 No. А71-7930/06).

What the organization does not carry out entrepreneurial activity, according to the courts (decrees of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 9, 2007 No. A43-17482/2006-30-469, West Siberian District dated March 22, 2007 No. F04-1693/2007(32724-A03-7), dated March 14 .2006 No. F04-1018/2006(20540-A27-23), Central District dated April 13, 2007 No. A09-6535/06-15), the following facts indicate:

• the cost of lunches is deducted from employees' wages;
• the canteen serves only employees of the enterprise and is created exclusively for this purpose;
• the canteen is located on the territory of the enterprise, which excludes the possibility of access to it by unauthorized persons;
• The purpose of the canteen is not to make a profit.

Customer of services – legal entity

A contract for catering services is usually concluded between a catering establishment and legal entity, while individuals use the services provided (the specifics of public catering are such that it is simply impossible to do otherwise).

In our opinion, it does not matter who is the customer under the contract: a legal entity or an individual. The content of the services provided is important.

In this case, the nature of the catering enterprise’s activities does not change: it does not care who it serves – visitors “from the street” or seminar participants (tourists, enterprise employees, etc.).

Thus, a catering enterprise can be transferred to UTII, provided that the remaining requirements of Chapter 26.3 of the Tax Code of the Russian Federation for this type of activity are met.

The organization entered into an agreement with a cafe to host a banquet on the occasion of the organization’s anniversary. The area of ​​the cafe service hall is 120 sq.m. For those invited to the banquet, the cafe provided standard set services.

In this case this activity The cafe is subject to transfer to UTII.

Cashless payments

What if the customer paid for catering services by bank transfer? Could this fact prevent the organization from transferring to UTII?

No, he can not.

The issue of applying UTII in relation to catering services does not depend on the source of financing and the form of payment for these services (letters of the Ministry of Finance of Russia dated 01.06.2007 No. 03-11-04/3/190, dated 22.02.2007 No. 03-11-05/34, Resolution of the Federal Antimonopoly Service of the Central District dated July 5, 2006 No. A23-6456/05A-18-818).

Thus, for the purposes of applying UTII, any form of payment is suitable: in cash by bank transfer, mixed form of payment (part of the money for payment is received from the client in cash, and the other part is paid by bank transfer).

Is there an object? - That is the question

When a catering enterprise provides a full range of services (from the production of culinary products to serving visitors), its taxation regime depends on where the finished culinary products are consumed.

If services are provided through a catering facility that meets the requirements of Chapter 26.3 of the Tax Code of the Russian Federation, then in this case the organization is subject to transfer to UTII for this type of activity.

Note! The organization must have this object on some legal basis (for example, ownership or lease).

If catering services are provided by the enterprise through an object in use (ownership) third party organization, then this enterprise has no grounds for applying UTII (see, for example, letter of the Ministry of Finance of Russia dated May 14, 2007 No. 03-11-04/3/156).

The company's balance sheet includes a canteen, but there are no cooks on the company's staff. In order to organize meals for employees, the enterprise enters into an agreement with a food processing plant. The functions of the plant workers include preparing lunches and serving visitors. The plant does not rent canteen space.

If we follow the position of the Russian Ministry of Finance, then the plant must pay taxes in accordance with the general regime or the simplified tax system.

There is no object

Those catering workers who provide their services not through catering facilities will not receive UTII.

If the activities of a catering enterprise are limited only to the preparation of dishes and their delivery to the place of consumption (for example, “lunches at the office”, “pizza at home”), then such activities are not considered as an “imputed” type of activity.

Representatives of the financial department share this point of view (letters of the Ministry of Finance of Russia dated July 3, 2006 No. 03-11-02/150, dated December 20, 2005 No. 03-11-05/122).

However, one can argue with the arguments that the Russian Ministry of Finance gives to justify it.

The company produces culinary products and sells them to consumers. Its activities, in our opinion, meet the definition of catering services. But these products are not sold through a catering facility (the company does not have one). It is for this reason that the enterprise is not subject to transfer to UTII for the type of activity “providing public catering services.”

According to the Ministry of Finance, when delivering lunches to your home or office, the conditions for applying UTII in relation to retail trade are not met (see letter dated December 20, 2005 No. 03-11-05/122).

Let's take another case.

The catering company produces culinary products and supplies them to schools and temporary detention centers.

The Ministry of Finance believes that the enterprise does not provide public catering services, as defined by Chapter 26.3 of the Tax Code of the Russian Federation, because schools and temporary detention centers do not have specially equipped premises for the consumption of manufactured culinary products (canteens), as well as separate facilities for its sale (kiosks, tents, etc.) (clause 2 of the letter of the Ministry of Finance of Russia dated July 3, 2006 No. 03-11-02/150).

In our opinion, determining the taxation regime for an enterprise in no way depends on the presence (absence) of a catering facility at the customer (school). But what really matters is whether the enterprise itself has such an object.

And if the enterprise does not have such a facility, then its activities in providing catering services are not transferred to UTII.

A catering establishment (restaurant) enters into an agreement with the company that it will serve the seminar participants during the three days of the seminar. Catering services will be provided in one of the premises of the building rented by the company for the seminar.

In relation to such catering services, the restaurant cannot be transferred to UTII. He must pay taxes under the general taxation regime or under the simplified tax system.

Some organizations find themselves in very unfair situations.

These are those organizations that provide catering services in a specially designated place - a restaurant. But their problem is that the restaurant is located on a ship or on a train. Consequently, it is not part of a building or structure, as required by the definition of a catering facility. Therefore, the provision of catering services in vehicles cannot be transferred to pay UTII (letters of the Ministry of Finance of Russia dated June 15, 2007 No. 03-11-04/3/218, dated December 5, 2006 No. 03-11-04/3/524).

The law is strong, but it's law. Let's hope that legislators will eventually eliminate the existing misunderstanding.

If an organization purchases finished culinary products from other catering enterprises and delivers them to individuals, in our opinion, it is not engaged in the provision of catering services. Consequently, the organization cannot be transferred to pay UTII. This is due to the fact that in this case the main component of public catering services is missing: the organization itself does not produce anything.

Representatives of the Ministry of Finance of Russia, explaining a similar situation (see letter dated July 25, 2007 No. 03-11-04/3/295), believe that the organization’s activities cannot be classified as catering services, since it does not correspond to the definition of this concept given in Chapter 26.3 of the Tax Code of the Russian Federation.

They keep insisting that hallmark catering services is the consumption of finished culinary products on site, which follows from the provisions of Art. 3 State standard RF “Public catering. Terms and definitions” (GOST R 50647-94).

This approach seems to us more than controversial, since if there is a definition of catering services in Chapter 26.3 of the Tax Code of the Russian Federation, there is no need to turn to GOST.

Retail trade in the sense given to this concept by Chapter 26.3 of the Tax Code of the Russian Federation, the activities of the organization also do not constitute, since it does not have an object for organizing trade.

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