LETTER OF DEPARTMENT OF TAX AND CUSTOMS AND TARIFF POLICY OF THE MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

of August 24, 2009 No. 03-11-11/169

The department of tax and customs and tariff policy on letters from 07.07.2009 N 3-2-07/43, from 10.08.2009 N 3-2-07/57 and from 11.08.2009 N 3-2-07/59 (further - the Code) reports the following about procedure for application of provisions of articles 346.12 and 346.13 of the Tax Code of the Russian Federation.

According to Item 2 of article 346.12 of the Code of the organization could pass to simplified taxation system if following the results of nine months of that year in which the organizations submitted the application for transition to this system of the taxation, the income determined according to article 248 of the Code did not exceed 15 million rubles.

The specified extreme size of the size of the income of the organization limiting the right of transition to simplified taxation system was subject to indexation on the coefficient deflator established annually for each next calendar year and considering change of consumer prices of goods (works, services) in the Russian Federation for the previous calendar year, and also on coefficients deflators which were applied according to this Item earlier. The coefficient deflator was determined and was subject to official publication according to the procedure, established by the Government of the Russian Federation.

In the called procedure according to item 4 of article 346.13 of the Code the extreme size of the size of the income of the taxpayer (both the organization, and the individual entrepreneur) limiting the right to application of simplified taxation system following the results of the accounting (tax) period was subject to indexation.

According to the order of the Government of the Russian Federation of 25.12.2002 N 1834-p of the Ministry of Economic Development of the Russian Federation annually no later than November 20 publishes in "The Russian newspaper" the coefficient deflator approved with the Ministry of Finance of the Russian Federation the next year.

So, the Ministry of Economic Development of the Russian Federation establishes coefficients deflators in the following sizes:

the order of the Ministry of Economic Development of the Russian Federation of 03.11.2005 N 284 "About establishment of coefficient deflator for the purpose of application of Chapter 26.2 "Simplified taxation system" of the Tax Code of the Russian Federation for 2006" the coefficient deflator for 2006 is established by equal 1,132;

of 03.11.2006 N 360 "About establishment of coefficient deflator for the purpose of application of Chapter 26.2 "Simplified taxation system" of the Tax Code of the Russian Federation for 2007" the coefficient deflator for 2007 is established by the order of the Ministry of Economic Development of the Russian Federation in the amount of 1,241;

of 22.10.2007 N 357 "About establishment of coefficient deflator for the purpose of application of Chapter 26.2 of the Tax Code of the Russian Federation "Simplified taxation system" for 2008" the coefficient deflator for 2008 is established by the order of the Ministry of Economic Development of the Russian Federation in the amount of 1,34;

of 12.11.2008 N 395 "About establishment of coefficient deflator for the purpose of application of Chapter 26.2 of the Tax Code of the Russian Federation "Simplified taxation system" for 2009" the coefficient deflator for 2009 is established by the order of the Ministry of Economic Development of the Russian Federation in the amount of 1,538.

At the same time the coefficient deflator for the next calendar year was established taking into account the coefficients deflators established on previous years.

At the same time the Presidium of VAS of Russia the resolution N 12010/08 accepted of 12.05.2009 on specific case (according to the claim of the Novgorod dental center) other decision. Despite the developed arbitral practice in the resolution YOU of Russia it is specified that all established for previous and flowing years coefficients deflators are subject to multiplication that in practice leads to repeated indexation.

With respect thereto the Ministry of Economic Development of the Russian Federation with participation of the Ministry of Finance of the Russian Federation prepared the letter to the chairman of VAS of Russia with the offer on settlement.

Besides, in connection with the order of the Government of the Russian Federation the Ministry of Economic Development of the Russian Federation together with the Ministry of Finance of the Russian Federation considers the possibility of entering of amendments into the specified orders of the Ministry of Economic Development of the Russian Federation now that values of coefficients deflators are established taking into account coefficients deflators for previous years.

Concerning question of the size of the income, limiting possibility of application by taxpayers of simplified taxation system in 2009, we report the following.

According to Item 1 of article 4 of the Federal Law of 19.07.2009 N 204-FZ "About modification of part the second the Tax Code of the Russian Federation" the specified Federal Law becomes effective since January 1, 2010, but not earlier than after one month from the date of its official publication, except for Item 1 of Article 1, parts 1 and 2 of article 2 of the specified Federal Law.

With respect thereto provisions of Item 2 of Article 1 and part 3 of article 2 of the called Federal Law are applied since January 1, 2010.

Therefore, in case of limiting determination of the size of the income in 2009 allowing taxpayers to keep the right to application of simplified taxation system this year it is necessary to be guided by provisions of item 4 of article 346.13 of the Code and the order of the Ministry of Economic Development of the Russian Federation of 12.11.2008 N 395.

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