Portal trade of food and non-food products. Signs of distribution trade for the purposes of applying UTII
- What is the procedure for placing objects of stationary finely retail?
- Is it necessary to purchase cash register machines for small retail trade?
- What standards and requirements need to be taken into account when trading in summer period?
With the approach of summer, open stalls, kiosks, tents and other temporary trading facilities appear everywhere on the streets. Their installation does not require significant costs, such as, for example, the commissioning of stationary retail outlets (shops, pavilions, other objects intended for trade that have a foundation). The main purpose of these temporary facilities is to carry out retail trade in small volumes of everyday goods through them. This type of trade received the regulatory name “small retail trade.” This is considered to be the sale of food and non-food products of a simple assortment through a stationary and mobile small retail distribution network (letter of Roskomtorg dated April 28, 1994 No. 1-574/38-9). There are 2 main types of small retail trade (Table 1).
Table 1. Types of small retail tradeThe placement of retail outlets in tents, kiosks or stalls should be classified as stationary small retail trade (hereinafter referred to as SMT). General rules and basic requirements for the operation of small objects retail network provided for by letter of Roskomtorg dated March 17, 1994 No. 1-314/32-9 (hereinafter referred to as the Requirements). Based on this document, based on local conditions for trade, the authorities develop rules for a specific region, region, city. Note: since the said letter is quite old, its provisions should be applied taking into account current legislation.
The procedure for placing trade objectsThe first problem an entrepreneur will have to face is finding a site to work on and obtaining the right to use it.
SMT is carried out in places specially designated for this by authorities state power or local self-government (clause 4 of the decree of the President of the Russian Federation of January 29, 1992 No. 65). As a rule, these are the territories of municipal markets. An entrepreneur must contact the local administration to obtain the appropriate trade permit. Having received it, the merchant establishes an object of trade on the site allocated to him, carries out trade and pays the administration “for the place” in the prescribed manner.
It is also possible to place a temporary SMT facility in another territory. In this situation, merchants who already own (rent or temporarily use) plots of land, the intended purpose of which allows them to be used for trade, are in a more advantageous position.
If there is no land, then you should contact the owner (proprietor) of the plot on which the businessman plans to organize SMT. Such plots may be in state or municipal ownership (in which case land issues will have to be resolved in the city or district administration) or in the private property of citizens or legal entities. Having received required area for use, the businessman needs to resolve the issue with the same local administration about the possibility of placing a trading facility in the chosen location. The fact is that, according to Article 8 of the Town Planning Code of the Russian Federation, it is representatives of local government who decide on local territorial planning issues.
When an entrepreneur decides to trade on a plot that already belongs to him, permission from the local administration will be required if, according to cadastral documents, the intended purpose of the plot is not related to trade. In addition, when, under the terms of a lease (use) agreement, a site is provided to a merchant for other purposes (for example, for construction), it will be possible to install MMT facilities after the intended purpose of the site has been changed. Otherwise, the merchant may be held administratively liable for violations. For unauthorized occupation of a plot or use of it without title documents for the land, and, if necessary, without documents permitting activities, the fine for the entrepreneur will be from 1 to 2 thousand rubles. (Article 7.1 of the Code of Administrative Offenses of the Russian Federation). The same amounts are established for the inappropriate use of land (Article 8.8 of the Code of Administrative Offenses of the Russian Federation).
Otherwise, when locating SMT facilities, the entrepreneur must be guided by the requirements of the current legislation, in particular the norms of state standards and sanitary rules.
Registration trading activitiesAn entrepreneur directly engaged in trading activities does not need to obtain additional permits to organize summer trade. Today, trading activities in themselves are not subject to licensing (Federal Law of August 8, 2001 No. 128-FZ). In this case, the provision of paragraph 2 of the Requirements, which provides for a license to trade, is outdated and does not apply. As for certain types of goods for the sale of which a license is required (for example, weapons, strong alcoholic products), it is prohibited to sell them through SMT facilities.
If the main activity of a businessman is not related to trade, he can include in the list of types of activities declared during registration, additional code OKVED. To do this, an application is submitted to the tax office in form No. P24001, approved by Decree of the Government of the Russian Federation of June 19, 2002 No. 439. In this case, the merchant is not issued a new registration certificate. Moreover, if the tax office is not notified, there will be no sanctions. The Federal Tax Service of Russia, in letter No. BE-6-09/795@ dated September 26, 2005, reports that the legislation does not oblige entrepreneurs to submit information to the inspectorate if the state register does not contain complete information about the types of economic activity(OKVED code, name of type of activity). Thus, even if any type of activity is not declared during registration, this does not deprive the merchant of the right to work in this area.
Cash registersCash settlements with the population must be carried out with the mandatory use of cash registers. In this case, the seller is obliged to give the buyer a receipt along with the purchase. At the same time, according to Article 2 Federal Law on KKM dated May 22, 2003 No. 54-FZ cash register equipment in some cases it may not be used. These include, in particular, small-scale retail trade in food and non-food items. food products from trays protected from precipitation by frames covered with plastic film, canvas, or tarpaulin. An exception is the sale of technically complex goods and food products that require certain storage and sale conditions (for example, a certain storage temperature).
Note: according to the standards of GOST R 51303-99 “Trade. Terms and definitions" hawker trade refers to retail trade carried out outside a stationary retail network through direct contact between the seller and the buyer at home, in institutions, organizations, enterprises, transport or on the street. Accordingly, if the tray is installed on the street, the cash register may not be used. In the case where the tray is located, for example, in a store or shopping center, that is, in a stationary object trading network, KKM is necessary. In addition, you don’t have to buy a cash register when selling ice cream and soft drinks by the glass, selling beer, kvass, milk, vegetable oil, live fish, kerosene, and selling vegetables and melons from tanks.
Current retail issuesWhen carrying out trade, a merchant should pay special attention sanitary requirements. The rules for trade in food products (SP 2.3.6.1066-01) establish the specifics of the location of a retail outlet, its water supply, the procedure for receiving, storing and selling products, as well as the requirements for organizing food supply (Table 2). Rospotrebnadzor inspections of retail outlets most often reveal violations of sanitary and epidemiological rules.
Table 2. Hygienic requirements to a small retail network| 1 | Sales of perishable food products in the absence of refrigeration equipment not allowed |
| 2 | It is prohibited to store containers on the territory adjacent to the place of sale. Recyclable containers must be removed daily after completion of work. |
| 3 | In tents, auto shops, and trailers, it is allowed to sell a combined range of goods if there are appropriate conditions for their storage and sale. If the sale of food products is carried out by a single seller, the products (including bread and bakery products) must be sold only in industrial packaging |
| 4 | Hot finished goods(pies, belyashi, pasties, cutlets, etc.) must be dispensed from isothermal or heated containers, carts |
| 5 | Eggs are sold in small retail chains at air temperatures no higher than 20 degrees and no lower than 0 degrees |
| 6 | Mobile means of small retail trade are subject to sanitary treatment at the end of the working day |
| 7 | Storage of mobile and portable commercial equipment and food products sold at sellers’ homes is not carried out |
| 8 | During the period of mass supply of potatoes and fresh fruits and vegetables, the sale of vegetables and fruits from trays, carts, etc., as well as at open vegetable markets is permitted |
| 9 | Stationary points of small retail chains are equipped with toilets and sinks for hand washing |
| 10 | In the summer, the temperature at the seller’s workplace at stationary points should not be higher than 26 degrees, in the cold period - below 18 degrees |
| 11 | The entrepreneur is obliged to provide: a) keeping the SMT facility (tent, kiosk, van, cart, tray), as well as the surrounding area clean; b) acceptance and sale of food products with documents confirming their origin, quality and safety; c) monitoring compliance with expiration dates and rules for dispensing food products (when dispensing, use tongs, scoops, spatulas, etc.) |
| 12 | The seller (the entrepreneur himself or the employee) is obliged to strictly observe the rules of personal hygiene, must be neatly dressed, wear clean sanitary clothing (including a special headdress), a badge with full name. entrepreneur, his address (location), full name of the seller |
| 13 | The seller (entrepreneur or employee) must have and present to officials of the state sanitary and epidemiological service a personal medical book, documents confirming the origin, quality and safety of the products sold |
General Requirements provide for the need for a sign (or stencil) indicating the name of the individual entrepreneur, operating mode, and address. When selling food products, counters must be covered with linoleum, oilcloth, plastic or other waterproof materials. Trays must be provided with folding stands. It is prohibited to place trays directly on the pavement, ground or sidewalk.
Samples of goods (on a display or stand) must be provided with labels indicating the name of the product, type and price. Recommendations for the design of price tags are contained in the letter of Roskomtorg dated March 13, 1995 No. 1-304/32-2 (Table 3). Trade food products Using disposable utensils in the absence of containers for collecting them is prohibited. Acceptance, storage and sale of goods are carried out in compliance with the current rules for the sale of certain types of goods, with which the entrepreneur’s employees must be familiar.
Table 3. Recommendations for the design of price tags for goods sold by retail enterprises| Food products: | |
| - weight goods | name of the product, grade (for goods with grade), price per kilogram or one hundred grams |
| - goods sold by glass | name of the product, price per unit of container or plumb line |
| – piece goods and drinks packaged in bottles by manufacturers, cans, boxes, bags, etc. |
product name, capacity or weight, price per package |
| – piece goods packaged directly in retail establishments | the name of the product, weight and price for packaging are indicated in the insert or on the packaging |
| Non-food products | name of the product, grade (for graded goods), price per kilogram, liter or piece; for small piece goods (perfumes, haberdashery, etc.) the name of the product and price are indicated |
| Price tags must be certified by the signature of the financially responsible or other official. On price tags and inserts, all details must be written clearly, legibly, without corrections of the indicated details, using ink (stamp), ink or paste | |
| Note. Features of the details are provided for in the rules for the sale of certain types of goods, approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55 | |
The requirements for the availability of point of sale certificates for goods. The list of goods subject to certification was approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1013. In addition, when trading, the rules for the sale of certain types of goods approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55 must be strictly observed. General requirements to trade services, their safety are given in the standard “Retail Trade Services (GOST R 51304-99), approved by Resolution of the State Standard of Russia dated August 11, 1999 No. 243-st. Of course, we must not forget about the requirements of the Russian Federation Law on the Protection of Consumer Rights of February 7, 1992 No. 2300-1.
Although organizing small retail trade is not as expensive as compared to all-season trade, it should be treated as carefully as any other trade activity. The fact is that the legislation does not divide the responsibility of an entrepreneur for violating trade rules according to whether his activities relate to MMT or not. Thus, for the sale of goods in violation of sanitary rules, without certificates of conformity, the fine for entrepreneurs ranges from 4 to 5 thousand rubles. or suspension of activities is applied for a period of up to 90 days. In addition, confiscation is possible (Article 14.4 of the Code of Administrative Offenses of the Russian Federation). Often, inspectors, having studied the assortment of goods, looked at price tags, and products displayed on the counter as a sample, identify a whole list of shortcomings. However, penalties do not increase in proportion to the number of errors.
Carry-out and delivery trade is when it is not the buyers who come to the seller, but, on the contrary, the seller, together with the goods, comes to them.
What is common between peddling and delivery trade is retail trade outside of a store, kiosk, market place, etc.
However, there are also differences.
Carry-out is trade from hands, trays, baskets and hand carts, which is carried out on the street, at home, at work, in transport, etc.
Delivery is a trade using a car, a mobile shop, a trailer, a mobile vending machine, etc.
STS and OSN
Doesn't matter
Delivery trade
From tank trucks
- kvass,
- milk,
- vegetable oil,
- live fish,
- kerosene,
Doesn't matter
Doesn't matter
You can work without a cash register
Other goods
UTII and PSN
Without hiring
You can work without a cash register until
You can work without a cash register until
STS and OSN
Doesn't matter
Mandatory use of CCP
* - Subject to the issuance of a sales receipt on the form upon request of the buyer strict reporting(BSO)
When making payments in remote and hard-to-reach places specified in the list by a constituent entity of the Russian Federation, you may not use cash registers, provided that a BSO is issued to the buyer.
When using a cash register for distribution trade, at the time of registering a cash register, you must add the appropriate mark “Outbound trade” to the card.
- Sales receipts and BSO
Carry-out and delivery trade is when it is not the buyers who come to the seller, but, on the contrary, the seller, together with the goods, comes to them.
What is common between peddling and delivery trade is retail trade outside of a store, kiosk, market place, etc.
However, there are also differences.
Carry-out is trade from hands, trays, baskets and hand carts, which is carried out on the street, at home, at work, in transport, etc.
Delivery is a trade using a car, a mobile shop, a trailer, a mobile vending machine, etc.
Example. The individual entrepreneur sells tree seedlings from the trunk of a car. Is this a delivery trade?
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There are some peculiarities regarding peddling and delivery trade. Let's list some of them.
Trade is not considered delivery or carry-out:
- If the goods are delivered in accordance with a previously completed application or purchase and sale agreement
- If the trade equipment does not have the characteristics of a vehicle
- When trading through an online store
- Trading from a table cannot be considered trading from a tray
- If the seller provides delivery services for the goods selected by the buyer
Example. The entrepreneur sells and delivers drinking water to homes by accepting orders by phone. Does this apply to delivery or peddling trade?
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If trade is organized at a market or fair, then the procedure and rules for placing objects of distribution and peddling trade are established by the owners of the market or the organizers of the fair. These rules must comply with current legislation. For example, during distribution trade, the sale of meat that has not passed veterinary control is prohibited.
When peddling food products, you can sell only those packaged in original packaging: soft drinks, confectionery, cakes, ice cream, chocolate, bakery products. When hawking, you cannot sell medicine, jewelry, weapons, audio and video products, computer programs, alcohol. These restrictions are established by the rules for the sale of certain types of goods, which are approved by Government Decree No. 55 of January 19, 1998.
Delivery or peddling trade in tobacco products is permitted only if locality there are no shops or pavilions (clause 2 of article 19 of the Law of February 23, 2013 No. 15-FZ).
When delivering and peddling trade, sellers are required to comply with many rules and regulations - from the law on the protection of consumer rights, sanitary and hygienic standards, rules for the use of cash registers, etc. to more private ones, which operate depending on the specific conditions of distribution and distribution trade.
Taxation in distribution and distribution tradeWhen carrying out distribution and distribution trade, an individual entrepreneur or organization has the right to choose one of the following taxation systems:
- UTII – single tax on imputed income;
- STS – simplified taxation system;
- PSN – patent system for individual entrepreneurs;
- BASIC – general system taxation.
As a rule, sellers choose imputation. However, there are restrictions on the use of UTII. According to Article 346.27 of the Tax Code, retail trade, including peddling and delivery trade, does not include trade:
- according to samples and catalogs outside the stationary distribution network,
- own products,
- medicines on subsidized prescriptions,
- cars, buses, motorcycles,
- fuels and lubricants, etc.
When calculating the imputed tax, the number of employees, including individual entrepreneurs, is taken as a physical indicator. The basic income is 4,500 rubles per month per employee.
Application of CCPBy general rule All organizations and entrepreneurs are required to use cash register equipment (CCT) when selling goods, both when accepting cash and payment cards. However, there are exceptions.
|
Carry trade |
Food and non-food products (except for technically complex goods) |
Doesn't matter |
Doesn't matter |
You can work without a cash register |
|
Technically complex goods |
UTII and PSN |
Without hiring |
You can work without a cash register until July 1, 2019* |
|
|
With hiring |
You can work without a cash register until July 1, 2018* |
|||
|
STS and OSN |
Doesn't matter |
|
||
|
Delivery trade |
From tank trucks
|
Doesn't matter |
Doesn't matter |
You can work without a cash register |
|
Other goods |
UTII and PSN |
Without hiring |
|
|
|
With hiring |
You can work without a cash register until |
|||
|
STS and OSN |
Doesn't matter |
Mandatory use of CCP |
* - Subject to the issuance of a sales receipt on a strict reporting form (SSR) at the buyer’s request
When making payments in remote and hard-to-reach places specified in the list by a constituent entity of the Russian Federation, you may not use cash registers, provided that a BSO is issued to the buyer.
When using a cash register for distribution trade, at the time of registering a cash register, you must add the appropriate mark “Outbound trade” to the card.
- Sales receipts and BSO
- How to switch to a new generation cash register
- For whom the transition to an online cash register has been postponed until July 1, 2019
According to the norms of the current tax legislation, the use of such a special tax regime as UTII is allowed in relation to activities for the retail sale of goods through non-stationary retail chain facilities (clause 7, clause 2, article 346.26 of the Tax Code of the Russian Federation). These activities include, in particular, peddling and delivery trade. Therefore, a correct understanding of these terms is extremely important.
In clauses 1 - 2 art. 346.29 of the Tax Code of the Russian Federation determines that the object of taxation for the application of a single tax is the imputed income of the taxpayer.
As a general rule, the tax base for calculating the amount of a single tax is the amount of imputed income, calculated as the product of the basic profitability a certain type entrepreneurial activity calculated for the tax period, and the value of the physical indicator characterizing this type of activity.
As we indicated above, peddling trade refers to a type of retail trade that is carried out through non-stationary retail chain facilities.
A non-stationary trading network is a trading network that operates on the principles of delivery and distribution trade, as well as objects of trade organization that do not belong to a stationary trading network. In fact, this concept contains three independent components.
At the same time, retail trade is retail trade carried out outside a stationary retail network through direct contact between the seller and the buyer in organizations, in transport, at home or on the street. This type of trade includes trade from hands, trays, baskets and hand carts.
When calculating UTII from retail or distribution trade objects, it is necessary to use the physical indicator “number of employees, including individual entrepreneurs” (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). The basic profitability for this type of activity is 4,500 rubles. This figure is lower than for some other types of retail trade. For example, for one retail trade facility carried out through non-stationary retail chain facilities, the area of the retail space in which does not exceed 5 square meters, the basic profitability is 9,000 rubles. Therefore, it is beneficial for a business entity to use it quite often.
Analysis of current legislation, as well as materials judicial practice allows us to draw a number of important conclusions regarding the interpretation of the term “pocket trade”.
The following situation is quite common. An entrepreneur who has entered into a lease agreement with the market management, trading from a table, mistakenly believes that we are talking about trading from a tray (delivery trading). Let us present a court decision that contains a clear answer to the question why it is dangerous to use this approach from the point of view of the risk of accrual of tax sanctions in the event of an inspection by specialists of regulatory authorities (Decision Arbitration Court Lipetsk region dated 09/08/2010 N A36-1928/2010).
In the Decision, the court indicated that, as follows from Letters of the Committee of the Russian Federation on Trade dated 03/17/1994 N 1-314/32-9 “On the approximate rules for the operation of retail trade enterprises and the basic requirements for the operation of a small retail trading network” and dated 04/28/1994 N 1-574/38-9 “On the concept of small retail trade”, as well as Letter of the Ministry of Foreign Economic Relations and Trade of the Russian Federation dated April 23, 1997 N 21-96, trays, baskets, carts, vans are defined as mobile means of distribution and distribution of small retail trade networks . Trade specialists traditionally understand the concept of “tray” as remote tables that are either removed at the end of trading or installed for a certain period (usually in the spring-summer period) near trading enterprises, on city streets, in parks during entertainment, sports and other events. In this case, trays can be equipped for the convenience of the seller and to protect the goods from atmospheric influences with awnings, umbrellas, metal frames covered with canvas, etc.
Based on the analysis of the concepts given in the above documents, a tray is a device for peddling, and not within a strictly designated retail space. This means that a sales counter (indoor or open), as well as various kinds of tables and canopies located at the time of retail trade in one place, cannot be a tray.
Hand cart, tray and basket from the concept of “pedestrian trade” given in Art. 346.27 of the Tax Code of the Russian Federation, combined into one group such a property as the dispersed nature of trade carried out with their help (with this method of trade, it is not the buyers who approach the seller, but the seller, together with the goods, who approach them).
Taking into account the above, the argument of the individual entrepreneur about carrying out peddling trade from a tray (table) installed in a tent (or in front of it) was not taken into account by the court.
Similar conclusions can be found in many other court decisions. Thus, according to the materials of one of the cases, an entrepreneur carried out retail trade in non-food products at fairs from tables (tables) installed on plot of land provided to her for these purposes for a fee. These tables belonged to her and were delivered to the place of trade by motor transport. The court concluded that the activities carried out by the entrepreneur did not fall under the concept of “distribution trade” (Resolution of the Arbitration Court of the North-Western District of September 17, 2015 N F07-6827/2015 in case N A52-2885/2014).
Trade in computer programs is not possible
It should be noted that Ch. 26.3 of the Tax Code of the Russian Federation does not establish any restrictions regarding the types of goods that can be sold as part of peddling trade. However, it must be borne in mind that in accordance with clause 4 of the Rules approved by Decree of the Government of the Russian Federation of January 19, 1998 N 55, when conducting retail trade outside of stationary shopping facilities Sale is not allowed:
- food products (except for ice cream, soft drinks, confectionery and bakery products in manufacturers' packaging);
- medicines;
- jewelry and other products from precious metals and (or) precious stones;
- weapons and ammunition for them;
- copies of audiovisual works and phonograms;
- programs for electronic computers and databases.
Thus, peddling and delivery trade in these goods is prohibited and impossible as an independent type of activity transferred to UTII.
Distribution of technically complex goods does not contradict the law
In accordance with paragraph 1 of Art. 18 of the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” in relation to a technically complex product, the consumer, if defects are discovered in it, has the right to refuse to execute the sales contract and demand a refund of the amount paid for such a product or make a claim for it replacement with a product of the same brand (model, article) or with the same product of another brand (model, article) with a corresponding recalculation of the purchase price within fifteen days from the date of transfer of such goods to the consumer.
Technically complex goods include only those goods that are included in the List approved by Decree of the Government of the Russian Federation of November 10, 2011 N 924. Since this List includes large heavy goods, there is a misconception that peddling trade in technically complex goods is directly prohibited by law.
This dispute, for example, was considered in the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 3, 2013 N A53-14776/2011. Specialists tax office considered that delivery (distribution) trade at home in vacuum cleaners, which are technically complex household goods, cannot be classified as a type of business activity transferred under UTII.
In the case under consideration, the retail purchase and sale agreement was concluded on the premises. Demonstration vacuum cleaners were accounted for separately from goods to be sold. The conclusion of the contract and the transfer of the goods to the buyer were carried out simultaneously; the buyer inspected the goods he was purchasing, and not a sample of the goods. The taxpayer did not process the purchase of vacuum cleaners in the office, did not issue the goods from the warehouse, and did not deliver the goods upon pre-order to the buyer’s address. The court emphasized that the norms of tax legislation are formulated without any exclusion clauses from the scope of application UTII trade technically complex household appliances. Therefore, such a situation is possible.
Selling products from a tray own production does not apply to peddling trade
Retail trade is one of the types of retail trade.
In accordance with Art. 346.27 of the Tax Code of the Russian Federation, 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.
This type of business activity does not include the sale of excisable goods, food and drinks, including alcoholic beverages, both in the manufacturer’s packaging and packaging, and without such packaging and packaging, in bars, restaurants, cafes and other public catering facilities, unclaimed things in pawnshops, gas, trucks and special vehicles, trailers, semi-trailers, trailers, buses of any type, goods according to samples and catalogs outside the stationary distribution network (including in the form postal items(parcel trade), as well as through teleshopping, telephone communication And computer networks), transfer of medicines on preferential (free) prescriptions, as well as products of our own production (manufacturing).
Thus, the sale of products of one's own production is not retail trade.
If the seller provides services for the delivery of goods chosen by the buyer, this is not carry-out trade
In accordance with Part 1 of Art. 499 of the Civil Code of the Russian Federation, in the case when a retail purchase and sale agreement is concluded with the condition of delivery of goods to the buyer, the seller is obliged to deadline deliver the goods to the buyer at the place specified by the buyer, and if it is not specified, then at the buyer’s place of residence.
According to clause 74 of GOST R 51303-2013. National standard Russian Federation. Trade. Terms and definitions approved by Order of Rosstandart dated August 28, 2013 N 582-st, retail trade is retail trade carried out outside a stationary retail network through direct contact between the seller and the buyer at home, in institutions, organizations, enterprises, transport or on the street.
That is, with peddling trade, direct contact between the seller and the buyer is necessary, while the seller offers his goods to an indefinite circle of people. The desire to purchase a product arises at the moment the seller offers the product.
Thus, delivery of goods to the location of the goods is not retail trade, but retail trade with the condition of its delivery to the buyer. This conclusion is also confirmed by materials from judicial practice (for example, Decision of the Emelyanovsky District Court of the Krasnoyarsk Territory dated September 23, 2010 N 12-130/2010).
Marina Nikolaevna (04/21/2017 at 14:46:08)
Currently, the law “On state regulation trading activity" there are no such concepts - delivery trade or peddling trade; the law deals with non-stationary trade. Delivery and peddling trade is discussed in other regulatory documents – tax code, methodological recommendations, generally accepted business practices, etc.
Non-stationary retail facilities, that is, delivery trade facilities are located on and in buildings that are state or municipal property. For example, in urban food markets.
They are placed there according to a specially designed scheme. The layout of distribution trade facilities is approved by local authorities - city halls, district administrations, etc. These layouts can be found there or in the administrations of the markets and in the management companies of these markets.
All entrepreneurs who are engaged in distribution and distribution trade, including during fairs, must comply with certain rules. They are similar to the rules and regulations that apply to all entrepreneurs in the field of trade, regardless of the type of products sold, sales volumes and other factors.
When selling products during distribution and peddling trade, entrepreneurs (LLC or individual entrepreneur) are required to comply with the law on: providing customers with the necessary information about the product and food products, selling quality goods and other standards. Therefore, you must have certificates for the balls.
In the law “On the Protection of Rights and individual entrepreneurs when implementing state control(supervision) and municipal supervision" dated December 26, 2008 No. 294-FZ there is a list of types of activities in relation to which the notification procedure in trade is applied. But there is also a decree of the Government of the Russian Federation “On the notification procedure for the start of certain types of business activities” dated June 16, 2009 No. 584, where the list of types of activities is specified in more detail. In the end it looks like this:
Retail trade:
In non-specialized stores;
Food products in specialized stores;
Cosmetic and perfumery products;
In tents and markets.
Wholesale trade:
Food products;
Non-food products.
Persons who decide to conduct one of these types of activities do not need to obtain a trade permit, but simply notify the relevant government agency.
The procedure by which a notification is submitted to the authorized body is recorded in Decree of the Government of the Russian Federation No. 584. According to it, the applicant needs to provide 2 completed copies of the notification to the authorized body. Such a body in Moscow is the city district government or the prefecture of the administrative district, it all depends on where the applicant is registered. The form of notification is given in the same resolution.
The notice can be submitted in person, by mail or via the Internet in the form electronic document.
Two copies are submitted in order to immediately return one to the applicant with a mark of delivery. When submitting an electronic document, the applicant is sent confirmation of delivery also in electronic form.
The notification itself contains the following information:
· name of the legal entity or full name of the entrepreneur;
· legal address and actual address of the trading facility;
· type of activity and list of works and services within the framework a separate type activities.
Please note: you do not need to attach any documents to the notification. This procedure is much easier than obtaining a trade permit.
All information from the notification serves to form the Trade Register, which is maintained in accordance with Order of the Ministry of Industry and Trade dated June 16, 2010 No. 602.
Zhigachev Alexander Viktorovich, candidate of legal sciences, tax lawyer, Saratov
Delivery trade is one of the types of business activities in respect of which UTII can be applied (clause 7, clause 2, article 346.26 of the Tax Code of the Russian Federation in conjunction with paragraphs 16-17 of article 346.27 of the Tax Code of the Russian Federation).
At the same time, in the Tax Code of the Russian Federation, the signs of delivery trade are given, in our opinion, not specifically enough, which entails controversial issues when applying UTII in relation to this type of activity.
Let us consider the signs of delivery trade enshrined in the Tax Code of the Russian Federation, taking into account the approaches that have developed to date in law enforcement practice, and we will try to form an understanding of this type of UTII activity that is accessible to ordinary taxpayers.
So, according to para. 17th century 346.27 of the Tax Code of the Russian Federation, delivery trade is retail trade carried out outside a stationary retail network using specialized or specially equipped vehicles for trade, as well as mobile equipment used only with vehicle. This type of trade includes trade using a car, a car shop, a car shop, a toner, a trailer, or a mobile vending machine.
From the above definition the following can be extracted: essential features delivery trade:
1. Distribution trade is always non-stationary (mobile) trade, not tied to a specific location. The attribute in question presupposes a potential (namely potential) opportunity to freely change the place of trade, but does not at all oblige one to systematically change the place of trade.
Thus, for example, if an entrepreneur trades every day, year after year, from a specialized vehicle at the same place at a fair, this in itself does not deprive such trade of the status of distribution trade (in the situation under consideration, the entrepreneur has the potential opportunity to change place of trade).
And, on the contrary, if trade is carried out in the same place, for example, from a car store that does not have an engine and wheels, such trade cannot formally be considered delivery trade (in the situation under consideration, the car store is deprived of the sign of mobility, and is used as a kind of analogue of a kiosk ).
The possibility of temporary connection to engineering support networks, in our opinion, does not exclude the sign of non-stationarity (mobility). At least in clause 16 of GOST R 51303-2013 “National Standard of the Russian Federation. Trade. Terms and definitions" (approved by Order of Rosstandart dated August 28, 2013 No. 582-st), a non-stationary retail facility is defined regardless of the presence or absence of a connection (technological connection) to engineering support networks.
Accordingly, if, for example, when trading at a fair from a car shop, the fair organizers provide the opportunity to temporarily connect to the power supply and (or) water supply network, this in itself does not deprive such trade of the status of distribution trade.
2. Distribution trade is carried out using specialized or specially equipped vehicles for trade.
What, in the context under consideration, is considered a specialized vehicle for trade and a vehicle specially equipped for trade in the Tax Code of the Russian Federation is not specified. We were unable to find relevant criteria in other regulations.
We believe that for the purposes of defining distribution trade, a specialized vehicle for trade should be understood as a vehicle that was initially produced or retrofitted (by “overhaul” installation of equipment on the chassis) as a vehicle for distribution trade.
We believe that a vehicle specially equipped for trade should be considered a vehicle that, according to its functional characteristics, was initially intended for the transportation of passengers or goods, but at specific periods of time (occasionally or regularly) is equipped for delivery trade (by using scales, measuring containers, cash registers). devices or receipt printers, etc.) and is used as such.
In para. 17th century 346.27 of the Tax Code of the Russian Federation exhaustively lists some types of such specialized or specially equipped vehicles for trade:
A car (let’s not forget about the general criterion - specialized or specially equipped);
Automobile shop;
Auto shop;
Caravan;
Mobile vending machine.
Considering that in para. 17th century 346.27 of the Tax Code of the Russian Federation uses, among other things, the general category - a specialized or specially equipped vehicle - we believe that for the purposes of determining distribution trade, specific types of specialized or specially equipped vehicles should also be used vehicles, listed in clause 73 of GOST R 51303-2013 “National Standard of the Russian Federation. Trade. Terms and definitions" (approved by Order of Rosstandart dated August 28, 2013 No. 582-st):
Campervan;
Tank truck.
But with regard to the magazine-car and magazine-vessel specified in clause 73 of GOST R 51303-2013, the issue is controversial. None of those listed in paragraph. 17th century 346.27 of the Tax Code of the Russian Federation, the types of vehicles store-wagon and store-ship are not covered. Accordingly, given the lack of law enforcement practice, we believe that classifying a store-car and a store-ship as specialized or specially equipped vehicles (in the context of paragraph 17 of Article 346.27 of the Tax Code of the Russian Federation) may cause disputes with the tax authorities.
3. When delivering trade, the use of specialized or specially equipped vehicles for trade must also be accompanied by the use of mobile equipment. Such mobile equipment, in our opinion, includes, for example, scales, measuring containers, measuring rulers (roulettes), cash registers or receipt printers, counters, display tables, racks, mannequins, hangers, umbrellas, awnings, canopies, refrigerators (refrigerated display cases), equipment for arranging the seller’s workplace.
Let us note that in Chap. 26.3 of the Tax Code of the Russian Federation, delivery trade is not limited to assortment. Those. this can be trade in food products, live fish, crayfish, shellfish, poultry, other animals, and non-food products. Based on the essence of delivery trade, this is, as a rule, trade in consumer goods (in the sense enshrined in clause 161 of GOST R 51303-2013), however, trade in goods not related to such goods is not excluded (for example, trade in accounting documentation forms, forms of documents for accounting, statistical, tax reporting - see Resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 30, 2013 in case No. A32-10201/2011).
One should also take into account certain legal positions developed in law enforcement practice on the issue of qualification of distribution trade.
For example, Letter No. 03-11-05/284 of the Ministry of Finance of the Russian Federation dated December 2, 2008 states that trade by accepting orders by telephone with subsequent delivery of goods to customers cannot be classified as delivery trade. At the same time, for example, the Federal Antimonopoly Service of the North-Western District in its Resolution dated May 7, 2009 in case No. A56-35181/2008 concluded that the sale of goods by accepting orders by telephone with subsequent delivery of goods to customers falls under delivery trade, provided that payment for goods and registration of purchase and sale (issuance of a receipt) are made directly upon release of goods from the vehicle.
In our opinion, the sale of goods on the “order/request – delivery” principle can be recognized as distribution trade if the following conditions are met:
Purchase and sale, its registration, payment for goods occur precisely upon delivery of goods (which presupposes, in particular, the buyer’s right to freely refuse the purchase and sale of delivered goods and the right to choose among the goods offered);
When goods are delivered by a driver or other accompanying person, due to official or contractual duties, the functions of the seller are performed (demonstration of goods, registration of purchase and sale, acceptance and processing of payment), i.e. delivery should not be limited to just a “pass-and-receive” operation.
The Resolution of the Federal Antimonopoly Service of the Volga Region dated March 1, 2010 in case No. A55-10823/2009 emphasizes that delivery trade as a way of organizing a non-stationary trading network is characterized by its lack of connection with any real estate objects and high degree mobility. Lack of permits from administrative authorities for trade, lack of lease agreements for retail space or land plots, the absence of the fact of payment for the use of trading places or land plots does not in itself deprive the trade of the status of distribution trade.
The Federal Antimonopoly Service of the North Caucasus District in its Resolution dated December 23, 2013 in case No. A32-17083/2012 declared unacceptable the classification of activities as distribution trade if the following signs are present:
The goods were delivered only at the request of buyers in accordance with previously concluded agreements for the wholesale supply of goods;
There was no retail distribution from vehicles at fairs, markets and other places;
The vehicles were not equipped for retail trade, there were no cash register equipment;
When delivering goods to customers, only drivers and loaders were present; they did not perform the functions of sellers.
Delivery trade includes, among other things, trade using mobile vending machines. In this case, mobile vending machines include vending machines, used only with a vehicle (Letters of the Ministry of Finance of the Russian Federation dated January 25, 2008 No. 03-11-04/3/21, dated March 28, 2011 No. 03-11-11/72).
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