The Single Social Contribution (ESA) is not a tribute, and FOPs are not serfs in their own country!
Unlawful claims for payment of debt (arrears) from SSC in the absence of income and obligations to pay wages or income equated to it
Large-scale in Ukraine, the phenomenon of demanding control bodies of debt (arrears) with the ESA in registered natural persons-entrepreneurs (FOP) in accordance with the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Formations" and information about them Unified State Register (EDRPOU), but did not carry out entrepreneurial activity on the general or simplified tax systems, did not receive income (profit) from such activity, liabilities for accrual wages (income) employees or persons performing work (services) for civil contracts - were not.
Registration of SDR payers and information in the Register of Insurers about them as grounds for appealing claims for payment of debt (arrears) with SSC
Such claims may be challenged on the grounds of their unlawfulness.
According to item 2 of part 1 of article 1 of the Law of Ukraine "On a single social contribution" (hereinafter - the Law), the sole contribution to obligatory state social insurance (hereinafter - the single contribution) is a consolidated insurance contribution, the collection of which is paid to the system. compulsory state social insurance compulsorily and on a regular basis in order to ensure in the cases provided for by law the rights of insured persons to receive insurance payments (services) under the existing types of compulsory state social security lnoho insurance.
FOPs, according to part 1 of Article 4 of the Law, are determined by the payers of the ERUs: among employers as those who use the work of other persons under the terms of an employment contract (contract) or other conditions stipulated by the labor legislation, or under a civil contract ( paragraph 3 item 1) and independently, as individuals - entrepreneurs, including those who have chosen a simplified system of taxation (item 4).
Their registration by the payers of the ESA, in accordance with paragraph 2 of Part 1 of Article 5 of the Law, is carried out by the body of income and fees by entering the relevant information in the register of insurers on the basis and no later than the next working day from the date of receipt of information on the registration card provided by the state the registrar.
In the register of insurers, in accordance with Part 2 of Article 19 of the Law, the following shall be entered: the identification number of natural persons - taxpayers or the relevant information when the person refused such number (item 1); surname, name, patronymic (item 2); the place of registration of the place of residence or the place of actual residence (item 3); form of ownership (item 5); types of economic activity, including the main ones (item 5); the number of employees at the reporting date and the persons performing the work (providing services) under the civil contracts (item 7); other information needed to account for payers, their obligations and payment of a single payment (item 8).
Justification of the absence of grounds and obligation to calculate (determine) SRS more than its minimum value in the absence of income and liabilities for the payment of wages or income equated to it
On FOPs, according to Part 3. Article 6 of the Law, the duties stipulated in Part 2 apply. Article 6 of the Law, in particular according to claim 1, in a timely and complete manner, to calculate, calculate and pay a single contribution.
The calculation of the single contribution, in accordance with Part 2 of Article 9 of the Law, is carried out on the basis of accounting and other documents, in accordance with which the accrual (calculation) is carried out or confirming the accrual (calculation) of payments (income) to which, in accordance with this Law, contribution.
According to the provisions of paragraph 1 of Part 2 of Part 1 of Article 7 of the Law, which determines the calculation of a single contribution, the amount of which may not be less than the minimum insurance premium per month - is the receipt of income (profit), which is subject to taxation on physical income persons. And in the absence of such income (profit), according to the provisions of paragraph 2 of clause 2 of part 1 of Article 7 of the Law, the payer is obliged to determine the base of accrual of a single contribution not exceeding its maximum value established by the Law and that the amount of a single contribution shall not be less than the amount of the minimum insurance premium. That is, when the value of the minimum insurance premium is 0.00 UAH, the amount of the single contribution can be identical to 0.00 UAH, but not less than 0.00 UAH. or an increased payer (not the controlling authority) of not more than its maximum value.
According to the provisions of paragraph 1 of part 3 of part 1 of Article 7 of the Law, which determines for the calculation of a single contribution, the amount of which may not be less than the amount of the minimum insurance premium per month - are self-defined FOPs that have chosen a simplified tax system, the amounts no more than the maximum value of the single contribution basis established by this Law. That is, when the value of the minimum insurance premium is 0.00 UAH, the amount of the single contribution can be identical to 0.00 UAH, but not less than 0.00 UAH. in the case when the self-designated FOPom (not controlling body) amount was determined in the amount of 0,00 UAH. Also, not determining such amount does not cause the controlling authority to conclude on any other amount of this amount in the range of more than 0.00 UAH up to a maximum value of the single contribution basis.
Minimum insurance premium, according to item 5 of part 1 of Article 1 of the Law, is the sum of the single contribution, which is calculated as the product of the minimum wage for the amount of the contribution, established by law for the month for which the wage (income) is calculated, and payable monthly.
Article 3 of the Law of Ukraine "On Remuneration" and Part 1 of Article 95 of the Labor Code of Ukraine, it is determined that the minimum wage is the statutory minimum wage for the employee's monthly (hourly) rate of work. The amount of the minimum wage, according to item 5 of Art. 38 of the Budget Code of Ukraine, is defined in the Law on the State Budget for the respective year. In 2017, the minimum wage was 3200.00 UAH, in 2018 - 3723.00 UAH. and in 2019 is 4173 UAH. month.
Therefore, according to the provisions of item 5 of part 1 of article 1 of the Law, determining the minimum insurance premium is the calculation of wages (income) in the respective month. In the absence of information in the Register of insurers on the number of employees at the date of reporting and persons who perform work (provide services) under civil contracts, as provided for in paragraph 7 of part 2 of Article 19 of the Law, the controlling body has no reason to reach conclusions on the obligation of the FOP to accrue wages (income) in the respective month. That is, if the rate of payroll (income) in the corresponding month is 0.00 UAH. owing to the absence of employees and obligations in the FOP to accrue their wages (income), the result of the product of multiplication by the minimum wage may be only 0,00 UAH. accordingly - the minimum insurance premium is 0.00 UAH. and it cannot be otherwise.
According to the provisions of paragraph 2 of Part 5 of Article 8 of the Law, determining the income in the corresponding month, which is more than 0,00 UAH. and less than or equal to the minimum monthly wage. That is, this rule does not apply in the absence of income (profit) or when it (income (profit)) is greater than the minimum wage established by law for a month. Thus, the absence of an FOP, regardless of the general or simplified system of taxation, obligations to calculate wages (income) for employees or persons performing work (providing services) under civil contracts determines the value of the minimum insurance contribution of 0, 00 UAH Accordingly, no FOP, regardless of general or simplified taxation system, income in the respective month or self-defined FOPs, who have chosen a simplified taxation system, the amount of 0.00 UAH. - does not oblige such FOPs to charge, calculate and pay a single premium more than the value of the minimum insurance premium of 0.00 UAH.
Justification of the obligation to calculate SRS by the body of revenues and fees on the basis of inspection acts
Calculation of a single contribution by the bodies of income and fees, in accordance with Part 3 of Article 9 of the Law, in the cases stipulated by this Law, is carried out on the basis of the acts of checking the correctness of calculation and payment of a single contribution, reporting submitted by the payers to the bodies of income and fees, accounting and other documents confirming the amounts of payments (income), the amounts of which (in which) a single contribution is accrued under this Law. And the calculation of the single contribution for the previous periods, in accordance with Part 4 of Article 9 of the Law, is carried out on the basis of the amount of the single contribution, which was effective on the day of calculation (calculation, determination) of wages (income), for which, according to this Law, a single contribution is calculated.
Ignoring the fiscal prescriptions of parts three and four of Article 9 of the Law as well as sending claims for arrears in violation of Part 4 of Art. 25 of the Law, the payers of the only contribution who have no arrears, although it is a violation of Article 68 of the Constitution of Ukraine, however, in accordance with paragraph 3 of Part 4 of Art. 25 of the Law, the demand for payment of arrears is an executive document, under which the FOP is obliged to pay within a period of 10 calendar days the amount of arrears and penalties specified therein together with the accrued interest in accordance with paragraph 4 of part 4 of Art. 25 of the Law, and in case of disagreement with the calculation of the amount, in accordance with paragraph 5 of Part 4 of Art. 25 of the Law, to challenge such a claim in administrative or judicial order.
Failure to pay or not appeal the claim within the specified time limits, in accordance with paragraph 10 of Part 4 of Art. 25 of the Law, stipulates that it enters into force and is sent to the State Enforcement Division for compulsory execution with all possible consequences and “inconveniences” of enforcement proceedings for the debtor, such as seizure of assets, prohibition of traveling abroad, etc.
Appeal against illegal claims for payment of SSC for more than ten days
Appeal which has entered into force may be brought directly to the court within the time limits for appeal against decisions of the supervisory authorities under the rules of administrative justice within six months from the receipt, if not appealed administratively or within three months from the date of receipt of refusal to satisfy the complaint. However, such an appeal does not suspend enforcement proceedings and, if an administrative claim is satisfied after the enforcement proceedings have been recovered, a new enforcement procedure will be required.
Warnings about the need to appeal the SDR requirements on other grounds
The grounds for disputing the claim for debt (arrears) with the ESAs referred to in this article apply only to FOPs whose information is recorded in the Unified State Register (EDRPOU). They are not suited to challenge claims by persons who have registered as business entities - individuals before 01.07.2004 and did not update information about themselves, and EDRPOU does not contain such information.
On the grounds for challenging the claims of the persons registered with the SPD-FO, I set out in another article under this link Appeal from the claim for a lump sum payment on compulsory state social insurance (EUB)
Translated from Ukrainian using Google translator